The U.S. Supreme Court really outdid themselves at the end of their session this year.
For the top cadre of the American judicial branch — one experiencing its lowest level of public confidence in the history of measuring it — you would think they would try harder. And now that the ink is dry on some of the court’s lowlights from last week, the white folks celebrating them should be sober enough to give these awful rulings a little thought.
It is always fascinating to see the reactions to SCOTUS rulings. They often say more about the celebrators than they do about the decisions, and this week is a prime example. In the expected decisions ending affirmative action programs at Harvard and the University of North Carolina, Americans rejoicing were largely white, largely male, and largely Republican. It will take some time, but time will show how that bunch is largely wrong.
Segments of our culture continue to display infinite smallness, and those supporting the decisions in Students for Fair Admissions (“SFFA”) v Harvard/UNC-Chapel Hill, do so by claiming these are victories for fairness. “Merit-based” standards for college admission is the only way for the process to truly be fair, right? The problem with this shallow perspective primarily is its smallness.
Look no further than the precedent that was overturned by the rulings themselves, the landmark decision on affirmative action, Regents of the University of California v Bakke in 1978 for guidance. Most of those celebrating this week don’t mention the reversal of the reasoning of this case, because the most important part of it is the finding that affirmative action in admissions provides obvious value to everyone.
Kevin Brown, a former law professor at Indiana University, currently at the University of South Carolina, described the important standard from that case in an interview with The Atlantic. He said that in the ruling, the court “went on to say that the only justification for affirmative action was the educational benefits of having a diverse student body.” Those are educational benefits that white people benefit from too.
Trust me. I’ve already seen it with my own eyes. The value of a diverse classroom cannot be overstated, and that value is felt by every student in the class. Yes, every student.
No one in America won on Thursday when the court attempted to throw red meat at partisans who believe that any benefit felt by a minority is, by definition, a loss to the majority. The white majority will not benefit from a less diverse student body. And the white majority won’t always be the racial majority in America either.
In the 1978 case, six of the nine justices wrote opinions. Justice Harry Blackmun wrote, “In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently.” The decision ended quotas in admissions while touting the inherent value affirmative action provided.
Compare the thoughtfulness that the court invested in the 1978 decision versus the lack of it in 2023, and it becomes clear how far the institution has fallen. Today’s court doesn’t seem to have the capacity to handle concepts as difficult as “equal but different.”
This lack of capacity is even more evident in 303 Creative v Elenis. In this case, the court says a website designer can refuse to provide services for a gay wedding on the grounds of free speech. 303 Creative is so creative, it created the scenario that led to the complaint itself. There was no request, no gay couple, no standing for the complaint. The whole scenario was a fabricated, hypothetical one designed to manipulate this court into their predictable conclusion.
Justice Elena Kagan pointed that out in her dissent, but this majority seemingly cares more about that red meat than it does about judicial integrity. The absence of standing was conveniently ignored, and Justice Neil Gorsuch wrote for the majority that “the state cannot compel (303 Creative) to create a message (it) does not believe in…”
This conclusion will lead to discrimination against the LGBTQ+ community in a variety of ways, many the court didn’t consider. And it will hurt the straight community too. Imagine the ways this “free speech” will lead to other refusals against other groups for a moment. The result will be more and more of us separated from one other, a type of “apartness,” which, in Afrikaans interprets to “apartheid.”
I’m a white, straight, 55-year-old man. I’m equal, different, and got screwed by the court this week too. They did it by making the country less together, less of a community, and in general, less American for all of us.