When President Biden fumed that the Supreme Court’s affirmative action ruling is “not normal,” he spoke more truth than he may have intended. It is certainly not normal nowadays to acknowledge, even implicitly, that discrimination against whites is possible, or even wrong. The Supreme Court blasted the vaporous pretexts that elites have used to justify this invidious scheme, which has carried on indefinitely, feasting on countless dreams without satisfying a bottomless hunger of unquantifiable grievance. The sentimental and, arguably, self-serving wailing of the dissenters, particularly Justice Jackson, draws from that same source.
Although affirmative action has long been unpopular with the public, the outcome in this case is paradoxically more provocative than the Dobbs decision, which cut against popular opinion on abortion. The reason is that racially conscious discrimination has been the rule of American life for the better part of a century. When, in the majority opinion, the famously milquetoast John Roberts asserted that all racial discrimination is bad, he was appealing to a supposed truism that has been repudiated in theory and practice by this country’s ruling class.
To the left, the court’s colorblind worldview is casuistry. Judging by the fruits of civil rights, the left would seem to have the better argument. From its inception, civil rights has meant almost exclusively treating certain groups favorably and others disfavorably. Affirmative action at elite universities was merely the most high-stakes example of this system. From corporate hiring to television advertising and the way newspapers report, or do not report, crime, life in America is now encoded in the subtlest of ways by racial preferences. Even in the most informal of situations, everyone understands the power of the proverbial “race card.” Some employees are virtually unfireable because of their skin color. Freedom of speech has been throttled by a pervasive dread of retaliation for causing even unintentional offense on the basis of race.
Justices Sotomayor and Jackson envision a totalitarian nightmare where wealth, honors, and opportunities are perpetually redistributed until some intangible state of “equality” is reached. Yet this terror, indistinguishable from communism, is the reality in which Americans have lived for a long time. The disruption of that reality makes the court’s ruling anomalous. Can civil rights law now be repurposed to protect everyone, as originally advertised? Perhaps, but the role of blind luck and accident in this ruling should not be underestimated. Had Donald Trump lost in 2016, or Ruth Bader Ginsburg had a bit more humility, these opinions would have been flipped.
Christopher Caldwell, in his excellent book The Age of Entitlement, traces the discord of our era to an indissoluble conflict between the written Constitution and an informal one, based on group rights for minorities, that has actually governed American life since the 1960s. The Supreme Court’s sharply worded rulings on affirmative action and LGBT rights this term are a reflection of that contradiction. A faithful reading of American history and law cannot countenance a “right” to force a person to jeopardize their soul and conscience so that they may conduct business. Nor can it support a rejection of the “pursuit of happiness,” which is but an illusion under such a pernicious scheme as affirmative action.
The normally reserved Roberts ripped the “radical” and “destructive” view of the dissent, subtly acknowledging that affirmative action is a form of racial supremacy, the mirror image of Jim Crow. He credits the “Second Founding” during Reconstruction with the end of a system based on caste, but is that how things have worked out? This is perhaps an uncomfortable question to ponder, but a truthful inquiry cannot long ignore it. The truth is that the dense thicket of “equal protection” has forced courts to take convoluted paths back to this nation’s basic principles. When courts sometimes uphold the Constitution, they do so, as it were, by mistake.
It is time we accept that the precious liberties on which this nation was founded cannot be reconciled with a political and legal system that revolves around “equality” and the collective rights of so-called “protected classes,” which ought to be recognized for what they are: modern-day castes wholly unfit to the American ethos.
The Supreme Court has closed its term with a rare glimpse of renewal, but steep challenges lie ahead. The “woke” Constitution of Justices Jackson and Sotomayor is in vogue with the top law schools, along with the remainder of our prestigious institutions. If deliverance comes, it is not likely to come through a hoary edict. Until we can say that the strong should succeed and the weak must be allowed to fail; until we learn to desire real progress more than the counterfeit “progress” of righteousness; until we leave behind racial score settling over issues that died centuries ago, we will continue marching backwards into darkness.