U.S. Supreme Court Chief Justice John Roberts (L) arrives at the U.S. Capitol January 21, 2020 in Washington, DC.(Win McNamee/Getty Images)
By Marshall H. Tanick
Racism no longer exists in America!
No less an authority than Chief Justice John Roberts of the United States Supreme Court has told us so.
Thanks, chief. So glad that, after more than 400 years, we don’t have to put up with racial inequities any more. What a relief!
All of this came to fruition in the chief justice’s opinion for the court in its ruling ending affirmative action at the end of the tribunal’s 2022-23 term in the case Students for Fair Admissions v. Harvard.
It marked a culmination of decades of efforts by Roberts as an attorney and a judge attacking, challenging and refuting any recognition in legal proceedings that racism exists or, even if it ever did, it was eradicated by the Civil War and the ensuing post-war constitutional amendments banning slavery in the 13th Amendment; extending citizenship, equal protection and due process in the 14th Amendment; and granting the right to vote via the 15th Amendment.
Never mind Jim Crow, segregation, lynchings, anti-miscegenation laws and other depravities.
In Roberts’ neighborhood, racism is an outmoded vestige of the past that, accordingly, does not warrant any judicial empathy and certainly no relief.
His worldview was famously reflected in his remark in a school desegregation case 16 years ago in which he instructed that “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” That phrase is so vacuous, naive and unrealistic that it outranks his confirmation hearing statement that judges are like baseball umpires impartially “calling balls and strikes,” which overlooks that they also establish the strike zone in ways beneficial to favored players (or in the case of the judiciary, causes) and occasionally change the strike zone in the midst of the game.
He manifested that same outlook in writing the opinion gutting the Voting Rights Act in the case of Shelby County v. Holder a decade ago, pointing out that because Black people in some southern states had a higher voting turnout than whites, the protective and prophylactic measures in the 1965 Voting Rights Act were no longer necessary.
That remark prompted the oft-cited “umbrella” retort by dissenting Justice Ruth Bader Ginsburg, who accused the majority of “throwing away your umbrella in a rainstorm because you are not getting wet” — a telling analogy reflecting that the chief was all wet when it came to racial issues.
But these obtuse observations were but a prelude to the crowning blow of the chief justice’s long crusade to extinguish any preferential treatment based on race in any facet of society.
Before doing so, however, he did write one of a pair of opinions for the court invalidating racially gerrymandered congressional districts in Alabama and Louisiana. While sensitive to racial inequities, the decisions may have been sops to avoid being regarded as a sap in the looming college admissions case.
The court’s evocation of a “color-blind” society in the affirmative action case was premised on the faulty notion that admission to colleges, especially top-flight private ones like Harvard and public ones like the University of North Carolina — the other school in the litigation — is based solely on academic merit.
But that presumption overlooks the many other factors conventionally taken into account in college admissions, such as legacy, family financial donations, athletic prowess, age, gender, geography, and a myriad of other matters. Contrary to the assumption underlying the court’s opinion, meritocracy has about as much to do with who gets into elite schools as it does on which audience members are selected to “come on down” and be the next contestant on “The Price is Right.”
That fallacy was taken up within days of the court’s decision when a civil rights group initiated the first of what promises to be a legion of all sorts of post-Fair Admissions lawsuits. This one challenged Harvard’s legacy admissions preferences, which the advocacy group maintains are skewed against ethnic and racial minority applicants lacking much of a generational alumni legacy at all.
Having done his handiwork in dismantling affirmative action, the chief justice has accomplished his long-held objective in his 17th year atop the tribunal, the second most senior jurist next to Clarence Thomas, who had lots more to say as he wrapped up his 32nd year on the bench at the court’s burial service for affirmative action, reiterating his long-held view that “(t)wo discriminatory wrongs cannot make a right.”
But it took the youngest, least senior jurist, Ketanji Brown Jackson to provide a glimpse of the real world. Coming off a remarkably astute and productive rookie year, the first Black woman justice on the Supreme Court injected a dose of reality into the fantasyland crafted by the chief justice and his five right-wing colleagues. In her dissenting opinion, she lamented that “deeming race irrelevant in law does not make it so in life,” while schooling her right-wing radical colleagues in the “real-world problems” of racial bias.
In Minnesota, colleges and universities were prepared for the ruling, which came as no surprise to most observers. (See the Reformer in April: “First universities, next workplaces: Supreme Court ruling could doom diversity initiatives.”)
Some have pledged to continue to work with ways to assure diversity with their student bodies, while others are taking a wait-and-see attitude. Hardly any have given much attention — except guffaws — to the chief justice’s suggestion that students be allowed to mention their race in discussing their life stories in admission essays, while at the same time prohibiting the schools from taking their race into account.
In short, students can present a tableau of color in applying for admission, but schools must be color-blind when reading those accounts.
Go figure that one out, chief.
Marshall H. Tanick is a Twin Cities employment law attorney with the law firm of Meyer Njus Tanick. He wrote this piece for the Minnesota Reformer, a sibling site of the Pennsylvania Capital-Star, where it first appeared.
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