Wounding Mission Accomplished

By GENE NICHOL

There was nothing surprising about the 6-3 majority’s ruling in the Students For Fair Admissions case. The most right-wing Supreme Court in American history did its worst. As everyone said it would. Still, it stings deeply to see the ideological arrows aimed at the university one loves. And words that wound our national mission touch more brutally when they hit the page.

Chief Justice John Roberts opened by granting the “formed for litigation” plaintiff an extraordinarily generous grant of standing. No conservative jurisprudence here. But, as in the earlier Bakke and Fisher cases, conservative justices created special exemptions from jurisdictional rules to allow plaintiffs to challenge what they claimed to be the special privileges of affirmative action. The courthouses door yawns widely for one’s friends. Roberts was on a mission he’d passionately pursued since he was a twenty-something justice department lawyer. He even invited his wife in to see the spectacle. Roberts was as proud to reverse the Grutter decision as Brett Kavanaugh had been to bury Roe v. Wade. Number one on the bucket list.

Justices Clarence Thomas and Samuel Alito also cast aside their heady promises of tight originalism from last summer’s abortion and gun rulings. Justice Sonia Sotomayor proved readily that the 14th Amendment’s framers embraced the remedial use of race to overcome the relentless vestiges of slavery. But the Thomas-Alito originalism only applies to the claims of their enemies, not their allies.

The stunning work of Students For Fair Admission, though, was done by the high court’s newest member, Ketanji Brown Jackson.

But first, a word.

I’ve been a constitutional law teacher for 45 years. I came in, almost precisely, with Bakke. I applauded the decision, but always regretted its central rationale. Bakke rejected the broad goal of ameliorating the effects of a brutal, murderous, and exclusionary history to justify affirmative action, in favor of the achievement of a racially diverse student body. Don’t get me wrong, a diverse student body is beyond crucial. I’ve seen it in my own career. I can attest that teaching Brown v. Board of Education in an essentially all white institution is a decidedly inferior educational undertaking. But achieving diverse student membership pales in comparison to the constitutional necessity of facing and addressing America’s shameful past. A history that plays out in our streets every day.

Justice Jackson’s opinion is one of the most powerful and important writings ever authored by a Supreme Court justice. I plead with you to read it. And I can’t, obviously, reflect it fully here. I was taken deeply, maybe irrevocably, though, by her comparison of two hypothetical Tar Heel applicants – both “tracing their family’s North Carolina roots to the year of UNC’s founding in 1789.” One White — “a seventh generation” to graduate from Carolina, and one Black, the descendant of slaves. Jackson forces us, like it or not, to face our past.

“Seven generations ago” when one student’s family was building its knowledge and wealth base on campus, the other “was enslaved in North Carolina fields.” Six generations ago, NC “Redeemers” aimed “to nullify the results of the Civil War” through terrorism. Five generations ago, NC “Red Shirts finished the job.” Three and four generations ago, “Jim Crow was so entrenched that UNC enforced its own regulations.” Two generations ago, our governor “still railed against integration” and “UNC Black enrollment was miniscule.” At a “bare minimum,” one student’s family was “six generations behind because of his race.” To John Roberts, this is irrelevant “to the very concept of who merits admission.”

This, as Justice Jackson explains, is “not every student’s story.” But it is Carolina’s story. Even if Republican politicians demand we erase it.

Gene Nichol is Boyd Tinsley Distinguished Professor of Law at the University of North Carolina School of Law and in 2015 started the North Carolina Poverty Research Fund after the UNC Board of Governors closed the state-funded Poverty Center for publishing articles critical of the governor and General Assembly.

From The Progressive Populist, August 1, 2023

Populist.com