Grassroots/Hank Kalet

Unpack the Court!

The “most diverse Supreme Court” in the nation’s history has made it clear that it does not view diversity as a public good, and more significantly that diversity is something that should not be a part of the public discourse.

In its 6-3 decision on June 29, the court ruled that affirmative action had outlived its need and violated the 14th Amendment’s Equal Protection clause, continuing the conservative legal assault on programs designed to diversity student bodies and work forces and redress the historic discrimination that has created a massive racial wealth gap.

This isn’t “calling balls and strikes,” as Chief Justice John Roberts described his job during his confirmation hearing. This is not a version of baseball. It is more like professional wrestling, a sport that is rigged from the outset and all about performance.

We knew what was going to happen with abortion last year and we knew, well before the affirmative action ruling came down in June, what the court was likely to do. Roberts signaled it in a 2007 case that gutted a Seattle school equity plan.

“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Roberts wrote in 2007, erasing what was then 230 years of racial and racist history — a radical move by an unaccountable court and part of a larger attack on modernity by the Conservative movement.

While the court’s ruling was not a surprise, it still feels like a gut punch for those of us who believe the chains of White Supremacy remain mostly intact, if not always visible, and who see efforts by higher education to expand the demographic pool of potential applicants is an important value in and of itself.

Roberts writes that “Eliminating racial discrimination means eliminating all of it,” echoing his earlier comment and pretending that racial discrimination is not deeply embedded in our social and economic structures. The 14th Amendment’s Equal Protection Clause, he said, has been held by the court to apply “‘without regard to any differences of race, of color, or of nationality’ — it is ‘universal in [its] application,’” adding that its guarantee “‘cannot mean one thing when applied to one individual and something else when applied to a person of another color.’” Racial preferences deemed necessary in the past were not meant to be permanent, he says, arguing that they eventually must end.

This is ahistorical, and buys into the bogus notion that we have reached a point where “reverse discrimination” has overtaken actual anti-Black, anti-Brown, and anti-LGBTQ discrimination as the chief threat to equality in the United States.

Historically, the court is a conservative institution — “conservative” in that it has been slow to change and slow to accept change. The current court is conservative in a different way, in an ideological way, a “capital C” way that justifies its radical erasure of precedent and its revanchist efforts to return to a mythical golden past twisting the language of earlier courts and the facts of American and world history.

In a sane democracy, the court would have to stand up to public scrutiny, but this court — despite an array of unpopular decisions and a series of scandals — is immune. It’s not changing. Justices should be term limited, but that would require a constitutional amendment. Other remedies — clear rules about the appointment process and what is required of nominees, impeaching individual justices — are non-starters today.

Our best approach — a long shot at the moment — is to expand the court by adding members on a schedule that ensures current and future presidents a minimum number of appointments, which would prevent the kind of packing we’ve seen from conservatives and prevent the outright theft of seats we witnessed by Republicans during the Obama administration.

This will not remove politics from the court, but that shouldn’t be the goal. The court is a political institution cloaked in a mythology of non-partisan distance, of balls and strikes, of a Dragnet-like insistence that it deal only with the facts. This is as much a myth today as it was when the first court took the bench. Letting the court grow and giving presidents more of an influence just makes the politics more apparent, and potentially allows the court to be more responsive to the moments in which it will act.

Hank Kalet is a journalist and poet. He teaches journalism as an adjunct at Rutgers University in New Brunswick, NJ, and teaches writing at two community colleges. Email, hankkalet@gmail.com; Substack, hankkalet.Substack.com.

From The Progressive Populist, August 1, 2023

Populist.com