The shapers of US discourse must properly confront the illegitimately stacked, partisan court – before it's too late
I used to love the month of June. The days are at their longest, and all the possibilities for summer fun are laid out before you as unrealized potential and delicious anticipation. As a schoolchild, summer meant freedom to me, and I've never fully shaken the association as an adult, which I suppose makes particular sense given how much of my adult life I spent in academia. On top of all that, I have a summer birthday. But these days, June brings me more dread than anticipation, and for that I have the Republican Party and its transformation of the US Supreme Court into a radical partisan institution to thank.
The Supreme Court's annual term begins on the first Monday in October and ends in late June or early July. In fall and winter, the court hears oral arguments for the cases it will rule on by the end of its term. Most of its decisions are handed down in June. And over the past few years, many of those decisions have been antidemocratic bombshells, undermining the (at this point largely fictional) separation of church and state in this country and dealing painful blows to civil rights for people who aren't straight white Christian men.
Last year, of course, the extreme right-wing court overturned Roe vs Wade, ending the federal right to abortion in the United States, and explicitly left open the possibility of abolishing the rights to same-sex marriage and even contraception in the future.
In a certain sense, sad as it is to say so, we're lucky that neither happened this year. But that doesn't make last month's rulings any less devastating, with losses including affirmative action in university admissions. The court's 6-3 ruling in Students for Fair Admissions vs Harvard, handed down on 29 June, dictates to both public and private American colleges and universities that they may no longer consider race when deciding which students to admit. The aim of considering race, of course, was to achieve a more diverse student body - one that better reflects the racial makeup of the US - and to help level the educational and professional playing fields that remain heavily skewed by racial bias and the consequences of centuries of direct policies aimed at keeping BIPOC Americans down. Students may still write about how race has shaped their lives in their admissions essays, but direct consideration of race by admissions officials is no longer allowed.
We don't have to guess about how this will play out because in 1996, right-wing activists succeeded in ending affirmative action in California's state universities via the ballot initiative known as Proposition 209. As the president and chancellors of the University of California system wrote in an amicus brief submitted to the Supreme Court regarding Students for Fair Admissions vs Harvard, "After Proposition 209 barred consideration of race in admissions decisions at public universities in California, freshmen enrollees from underrepresented minority groups dropped precipitously at UC, and dropped by 50% or more at UC's most selective campuses."
According to the brief, the UC system has since spent more than half a billion dollars on race-neutral outreach programs (for example to communities where children are unlikely to attend university) designed to increase diversity, including racial diversity. Despite those efforts, the president and chancellors were compelled to conclude that:
UC struggles to enroll a student body that is sufficiently racially diverse to attain the educational benefits of diversity. The shortfall is especially apparent at UC's most selective campuses, where African American, Native American, and Latinx students are underrepresented and widely report struggling with feelings of racial isolation.
While the Supreme Court's right-wing majority claims to be opposed to discrimination, the facts are clear. Without affirmative action, the US's elite universities - which are, incidentally, still able to factor in 'legacy' status when the descendants of alumni apply - will again become whiter, more patrician, more Christian, more conservative places. The access to upward mobility and elite career trajectories the institutions afford their students will likewise become more limited to members of privileged groups than it already is. In the wake of the affirmative action ruling, a lawsuit has been filed challenging the practice of legacy admissions, but we can hardly expect a brazenly partisan court majority to rule consistently and declare the practice unconstitutional. Even if it does, however, the end of affirmative action will render American society less equitable.
Justice Ketanji Brown Jackson, the first African-American woman to sit on the Supreme Court, recognized this in her powerful dissent against the majority opinion in the affirmative action case. Summarizing much of the history of extreme racial discrimination in the United States and its continuing impact in the present, Jackson observed that: "The majority seems to think that race blindness solves the problem of race-based disadvantage. But the irony is that requiring colleges to ignore the initial race-linked opportunity gap between applicants... will inevitably widen that gap, not narrow it."
She concluded: "It would be deeply unfortunate if the Equal Protection Clause [of the Fourteenth Amendment to the US Constitution] actually demanded this perverse, ahistorical, and counterproductive outcome. To impose this result in that clause's name when it requires no such thing, and to thereby obstruct our collective progress toward the full realization of the clause's promise, is truly a tragedy for us all."
With this decision - far from the only bad one handed down this term - the Supreme Court's right-wing majority has once again shown complete disregard for not only precedent but also for facts that don't support right-wing ideological orthodoxy. In last week's column, I praised vice president Kamala Harris for naming the Supreme Court as the villain it is in her speech commemorating the one-year anniversary of the overturning of Roe, although I noted that she and other prominent Democrats must go further.
It is demoralizing that, until now, the Democratic leadership has seemingly acquiesced to the fundamentally unfair actions of radicalized Republicans that have brought us to the present. And it is even more demoralizing that even after the court's most recent antidemocratic rulings, president Joe Biden reiterated his opposition to expanding the court to restore fairness, claiming this would "politicize" an already obviously politicized court and expressing naive optimism that the court will moderate going ahead because of its legitimacy crisis with the public. Even if this were likely (it is not), the out of touch president apparently expects Americans to simply live with the devastating losses we have already suffered at the hands of this rogue court.
Legacy media outlets have likewise acquiesced to this intolerable situation. They routinely describe the Supreme Court as having "grown more conservative in recent years", as if this was something that just happened, rather than a trend deliberately engineered by Republicans who denied president Obama the chance appoint a justice to a vacancy that opened up during his second term in office, unprecedentedly claiming the people should get to vote in the presidential election first, but then rammed through an appointment near the end of Trump's term, cementing their supermajority and completing the transformation of the court into an illegitimate partisan circus.
The shapers of our elite discourse must do better; they must directly confront the illegitimately stacked, partisan Supreme Court with an eye toward restoring fairness to that body via impeachment and/or the addition of more justices as soon as possible. Failing to do so will mean the US is stuck with a court supermajority determined to undo decades of American civil rights gains for the foreseeable future - and we will feel the harmful consequences of its rulings for generations to come.
This court cannot be allowed to go on remaking the US in the image of the white Christian theocrats who control the Republican Party.
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