By Kevin
D. Williamson
Monday,
July 03, 2023
“Deeming
race irrelevant in law does not make it so in life.”
So wrote
Justice Ketanji Brown Jackson in her dissent to Chief Justice John Roberts’
opinion in Students for Fair Admissions v. Harvard, the affirmative
action case in which the Supreme Court held that our nation’s constitutional
prohibition of racial discrimination constitutionally prohibits racial
discrimination.
Justice
Jackson is not exactly wrong—it is simply that she is answering a question that
nobody has asked her in any official capacity. What was at question in SFFA was
not whether racial preference in admissions at elite universities is a
necessary precondition for racial justice in these United States—though perhaps
Ivy League practice is not the top priority of black families
in, say, Chicago, where the Democrats will hold their 2024 national convention
and where only 6 in 100 black students can do math at the appropriate grade
level. Rather, as the court’s majority opinion put it, “The question presented
is whether the admissions systems used by Harvard College and UNC are lawful
under the Equal Protection Clause of the Fourteenth Amendment.” The court
rightly held that these practices are unlawful.
SFFA, which represented applicants of
Asian background who were discriminated against by Harvard on racial grounds,
argued that “race-based admissions programs violate, respectively, Title VI of
the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth
Amendment,” as Roberts put it. The majority opinion focuses almost exclusively
on the Equal Protection Clause, while the concurring opinion written by Justice
Neil Gorsuch and cosigned by Justice Clarence Thomas emphasizes the text of the
Civil Rights Act, which deserves attention: “Without question, Congress in 1964
could have taken the law in various directions. But to safeguard the civil
rights of all Americans, Congress chose a simple and profound rule. One holding
that a recipient of federal funds may never discriminate based on race, color,
or national origin—period. … The words of the Civil Rights Act of 1964 are not
like mood rings; they do not change their message from one moment to the next.”
The dissenters in the case make a mockery of the law, suggesting that
“discriminate” doesn’t mean what it plainly means (“To ‘discriminate’ against a
person meant in 1964 what it means today,” the Gorsuch opinion answers) or that
a little bit of discrimination here and there is acceptable, in spite of what
the law says, if it goes the right way—meaning the way progressives want that
racial discrimination to go.
For
Justice Jackson and like-minded judicial activists, the inconvenient thing
about the Civil Rights Act of 1964 is that it says what it says, and, as
the Bostock opinion put it, “only the words on the page
constitute the law adopted by Congress and approved by the President.” Justice
Jackson does not have the law on her side. So, instead, she offers political
rhetoric.
No one benefits from ignorance. Although formal race-linked legal
barriers are gone, race still matters to the lived experiences of all Americans
in innumerable ways, and today’s ruling makes things worse, not better. The
best that can be said of the majority’s perspective is that it proceeds
(ostrich-like) from the hope that preventing consideration of race will end racism.
But if that is its motivation, the majority proceeds in vain. If the colleges
of this country are required to ignore a thing that matters, it will not just
go away. It will take longer for racism to leave us. And, ultimately, ignoring
race just makes it matter more.
It isn’t
even very good political rhetoric.
Justice
Jackson’s most obviously misplaced claim is that “deeming race irrelevant in
law does not make it so in life.” The Supreme Court’s only purpose is to rule
on what is necessary or forbidden “in law,” and its purpose most certainly is
not to try to correct every injustice “in life.” The “in life” part is
Congress’ business, the business of the state legislatures, the business of
city councils, the business of other legislative bodies. The law says what the
law says, and it is legislators who write it, not judges. If Justice Jackson
wishes the law said something else, then she should resign her seat—she should
resign her seat in any case if she cannot, for reasons of private conscience,
faithfully execute the duties of her office—and then run for Congress. Perhaps
Justice Jackson could try to knock off Rep. Maria Elvira Salazar in her native
Miami. That would be something to watch: An African American Democratic woman
who went to graduate school at Harvard running a campaign against a Cuban
American Republican woman who went to graduate school at Harvard—the
proletariat will tingle with anticipation, I am sure.
“No one
benefits from ignorance,” Justice Jackson insists—as though she were arguing
with someone who took the opposite point of view. It is not ignorance that is
at issue but viciousness—that Harvard has been subjecting high-achieving Asian
American applicants (and other applicants from disfavored racial groups) to
discriminatory measures similar to those which were used for generations to
keep down the number of high-achieving Jews in the Ivy League. Intellectual
currents come and go: It was not very long ago, in historical terms, that T.S.
Eliot—who once held a Harvard professorship named for his relative, Harvard
professor Charles Eliot Norton; another relative was president of
Harvard—argued that what was necessary for educational excellence was not
“diversity” but “unity of religious background.” He added: “Reasons of race and
religion combine to make any large number of free-thinking Jews
undesirable.”
Harvard
was governed by one set of prejudices a century ago; surely it is at
least conceivable that some of the prejudices by which Harvard
is governed today may be lamented as similarly immoral in the not-very-distant
future.
Against
those prejudices, we have a simple rule: We do not permit racial discrimination
in college admissions, business hiring, and the like.
It is a
good rule. And it is, as the Supreme Court has finally admitted, also the
law.
Perhaps
it will seem strange to us, someday, that self-described liberals and
progressives such as Justice Jackson so reliably rule in favor of powerful
institutions such as Harvard and in favor of powerful political
constituencies—please let us dispense with the fanciful notion that what
happens at Harvard has anything at all to do with the situation of the poor and
genuinely marginalized black communities that exist in this imperfect nation of
ours—while ruling against the poor, the powerless, children of immigrant
families facing invidious racial discrimination from the swells at Harvard,
etc. If that does seem strange to you, allow me to recommend what may be the
most valuable political book of the past several years.
I do not
think that Judge Amul Thapar of the 6th Circuit Court of Appeals would be quick
to describe his recent book, The People’s Justice: Clarence
Thomas and the Constitutional Stories that Define Him, as a political book, but that
is what it is, in addition to being an excellent and accessible book about the
legal issues at question in a dozen major Supreme Court cases across Justice
Thomas’ remarkable career. (I am not sure that I have anything of substance to
disclose here, but, in the interest of full disclosure: I have met Justice
Thomas socially on a few occasions and admire him a great deal. I’d take seven
more justices just like him and leave one spot for Randy Barnett.) It is a political
book not in the sense that Justice Thomas is, or understands himself to be,
a political actor—if anything, he has been a more scrupulous textualist
than even the canonized patron saint of judicial probity, Antonin Scalia,
notably on the matter of marijuana prohibition and Congress’ power over
interstate commerce—but in the sense that the disputes over the Supreme Court,
and the political attempts to operate the court as if by remote control, making
of it a policymaking super-legislature for the satisfaction of progressive
priorities unsatisfied by democratic means, illuminates our politics in ways
that election results and opinion polls cannot.
Take,
for example, the Supreme Court’s lawless and immoral rubber-stamping of
corporate theft with the help of municipal accomplices in Kelo, the
infamous eminent-domain decision. In the Kelo matter,
authorities acting for the City of New London, Connecticut, stole a tract of
real estate from blue-collar residents of that town in order to give the
property to Pfizer, in the hopes that Pfizer would use the land to do something
that would improve the local economy in New London, which had long languished
under the incompetent and corrupt maladministration that defines so much of
public life in Connecticut. (As Thapar notes, two of the key figures in
the Kelo case, Gov. John Rowland and his chief of staff, who
had arranged to reserve for himself a condominium with a water view in the
development that would be put up after the inconvenient poor people had been
cleared out, ended
up going to prison on related federal corruption charges.) Who was on the side
of the blue-collar community whose only crime was inhabiting land with a nice
view of the water? Justice Thomas was, because the law was. And who was on the
side of Pfizer and the cutpurses in New London? Ruth Bader Ginsburg, of
course.
That’s
the theme of the book, really. Our Constitution is a good one, and our laws are
mostly pretty good, too. As a result, the textualist, Justice Thomas, is on the
side of the low-income people of New London; in other cases considered in the
book, we find Thomas defending the 43-year-old mother trying to go to law
school in Michigan, the poor families Cleveland desperately trying to get their
children out of dangerous and dysfunctional schools, the medical marijuana
patient in desperate straits. And who was against them? Ask the plaintiffs in
the marijuana case.
What shocked Angel and Diane more than the vote tally was who voted
against them—all the justices people had told them were liberal. Why wouldn’t
these justices be sympathetic to their plight? Weren’t those the justices who
were supposed to favor the “little guy”? Why would Justice Ruth Bader Ginsburg
vote against them? At the very least, they had thought they could count on her.
Equally shocking to Angel and Diane, but not to [lawyers Robert Raich
and Randy Barnett], were the justices who voted with them. Justice Scalia was
not with them, but Justice Thomas was. Justice O’Connor and Chief Justice
Rehnquist also sided with Angel and Diane in a separate opinion.
Why was
Justice Thomas, who does not strike anybody with eyes and ears as reflexively pro-marijuana,
on the side of the marijuana users? Because he believes that Congress’ power
over interstate commerce is power over interstate commerce, and that it is not
power over that which is neither interstate nor commerce.
Justice Thomas agreed with Barnett’s argument. There was simply no
interstate commerce here. Angel and Diane’s privately grown marijuana never
crossed state lines—what was “interstate” about that? As for “commerce,”
Justice Thomas pointed out that Angel and Diane did not purchase the marijuana.
. . . Since Angel’s and Diane’s conduct wasn’t truly commerce according to the
original meaning of the Constitution, it was beyond the power of Congress to
regulate their conduct. It was that simple. After all, the federal government
was established as a government of “limited and enumerated powers.”
Our
progressive friends often purport to speak in behalf of “the people”—or, if you
prefer, “the People.” But their attitude toward “the people” is approximately
that of a rancher toward his livestock: Yes, they must be fed and cared for,
but in a custodial and proprietary way, in order to serve interests that are,
ultimately, not the herd’s own: Sometimes the stock are to be shorn, and
sometimes they are to be slaughtered—if that is what “progress” demands.
“Progress,” too, is a jealous god.
I
recommend to you Thapar’s very interesting and useful book. The only criticism
I would offer is that in an overly solicitous effort at being what invariably
is described as “accessible,” Thapar occasionally produces prose in the style
of a very smart man writing for people who are less smart, but perhaps not so
much less as he thinks they are, with an insipidizing effect. But that is a
small complaint. The book is not short, but it can be read in a sitting—if you
happen to have booked a flight on British Airways this summer, put this one at
the top of the stack of three or four books you’ll get through before you reach
your destination.
I
learned about The People’s Justice: Clarence
Thomas and the Constitutional Stories that Define Him the same way I get 99 and
44/100 percent of my legal news, via the Advisory Opinions podcast.
If you have not listened to Sarah Isgur’s excellent interview with Amul
Thapar, do yourself a favor.
In
Other News
Ron
DeSantis crypto-factotum Pedro Gonzalez turns out to be a Jew-hating weirdo with a sideline in
traditional racism.
Well, raise my rent. Pillars of intellectual fortitude of the sort affiliated
with the Claremont Institute have rallied to his defense, of course. That is
what so-called conservatives do, now: defend the indefensible, as long as
the New York Times—Democrats, Silicon Valley, the Jews, whoever—is
on the other side.
This has
been treated as something of a news story. It isn’t news.
These
people have been either forthrightly antisemitic or playing footsie with
antisemitism since at least 2015. Gonzalez, presumably a Gonzalez of the Mayflower Gonzalezes,
writes from time to time of the “genocide” directed at “America’s
European-descended whites.” About Jews, the group of people who have literally
been subjected to an attempted genocide in recent history, he says that “as a
group I see them as problematic.”
Problematic is a funny, cowardly word.
Growing up in West Texas in the 1980s, I knew a lot of the actual knuckleheads
that Gonzalez et al., are trying to homogenize for popular consumption, and I
am very sure that in the utopia those atavistic creatures envision for
“America’s European-descended whites,” everybody named “Pedro” is going to be
chucked over the wall to the southerly side of the border. That’s what they
understand problematic to mean.
Pedro
Gonzalez does not matter very much in the world, but Ron DeSantis does, and it
is an open question whether he has the judgment and the character to be
president of these United States. I myself am not at all convinced that he
does. He strikes me as a man who seems to desire power intensely enough that he
should not have it. But I may be wrong about him. What does Gov. DeSantis
think about all this? I would like to know.
No, a
politician is not responsible for every creep and misfit who supports him, but
DeSantis is very solicitous of the Very Online Right—and it is not only his
enemies that a man may be measured by.
What say
you, Gov. DeSantis? Plain, declarative English sentences, three or four of
them, will do.
In
Closing
Immigrants
such as my friend Charles C.W. Cooke tend to see America with something like a
convert’s zeal; Charlie writes (movingly) as a man “in love with the United
States.” For my part, if I were on Facebook, my relationship status with the
United States would read, “It’s complicated.” I am in Switzerland and Italy for
a bit, and it is easy to think poorly of the United States when one’s immediate
points of reference are some of the most beautiful places in the world. Though
I am more of a Europhile (and more friendly toward the European Union in
particular) than most of my fellow conservatives, I try to make a point of
reminding readers—and myself!—that what tourists see of Europe is, usually, the
best of Europe. It doesn’t all look like Lake Como or Funky Claude’s. That being written, even Kyiv—a capital at war—seems more orderly and more safe
than, say, St. Louis. (By my admittedly rough English-major estimate, Kyiv
today is literally safer than St. Louis in terms of the
likelihood of dying a violent death.) The differences across the Atlantic are
pronounced: The United States can’t make a train run on time or keep a public
space halfway spruce, but there is hardly a 21st century technology company
worth knowing about that came up in the European Union and stayed there.
(Internet regulators, the European Union has oodles of;
internet firms, not so much.) It is a pickle.
That
being said: If I had the late Tina Turner’s royalty income, I might very well
do what she did and stay in Switzerland, where there is good public order and
no capital gains tax to speak of.
As I
said, it’s complicated: I still love my country, but I think we should start
seeing other people.
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