Politics, Affirmative Action, and the Court

By GENE NICHOL

Here are four true things. nn• The US Supreme Court will review the University of North Carolina’s and Harvard’s affirmative action programs in the October, 2022 term.

• The US Supreme Court now tells us it is an adherent of originalism.

• There is no way to invalidate affirmative action under an originalist regime.

• The US Supreme Court will invalidate it anyway.

In its stunning summer gun and abortion decisions, our radicalized Supreme Court explained it was committed to interpreting “the text of the constitution as informed by history” and that our liberties are to be measured through “historical inquiries” into our “deeply rooted traditions.” The idea is that vague phrases like due process and equal protection of the law cannot be read to reach more broadly than they were understood to reach when enacted.

Given that, it becomes essential to ask whether the framers of the 14th amendment believed the provision would invalidate government actions designed to ameliorate the effects of discrimination against African-Americans? Clearly they did not.

The Congress that proposed the 14th Amendment passed a number of statutes designed specifically to benefit black Americans after the civil war. The Freedman’s Bureau Act of 1866 provided extensive assistance to African-Americans on a broad array of fronts — in education, employment, food, shelter, medical care, land distribution, commerce and law. President Andrew Johnson vetoed the bill, saying it benefitted “one class or color of our people more than another.” Congress promptly overrode Johnson’s veto, giving him the back of their hands.

Congressman Moulton explained “the very object of the bill is to ameliorate the condition of (Black) people.” Rep. Phelps added that the statute provided “assistance to Black citizens because they lacked the same political power as White citizens to advance their rights.” As the Constitutional Accountability Center put it in its amicus brief: “the framers of the 14th Amendment were the originators of affirmative action.”

A smaller measure, passed the next year, appropriated funds for “destitute (black) people in DC.” The sponsors cast aside objections that it was “class legislation applicable to (black) people and not white people.” They explicitly rejected the notion that race cannot be used to redress the impact of past deprivation and discrimination. They thought that sounded like nonsense. Even if it’s what Clarence Thomas believes today.

Still, no student of constitutional law doubts that the Trump Supreme Court will, next term, invalidate affirmative action. None. Federalist Society lawyers learn, and pledge, opposition to it at their mothers’ breast. The great Satans, they rehearse, are Roe and Bakke. The breathless chorus is unanimous. Any pretense that such judges won’t uniformly march to the command is purposely feigned. It’s no more meaningful than a Brett Kavanaugh pledge to honor precedent.

A sanctimonious originalist claim can be readily mustered to inter Roe. But not affirmative action. So, what’s to be done? No problem. Originalism will be simply mutilated, or, more likely, ignored. A right-wing judicial partisan has to do what he, or she, has to do. Be real.

So originalism be damned, for now. But they’ll simply roll it out again the next week when it’s helpful to deny some human rights claim. No one will notice, they assume. It’ll be fake news. Besides, they’re life tenured. They hold the cards. And Democrats, they know, don’t have the nerve to mess with them. Originalism is reserved to defeat the claims of their opponents. To own the libs. It holds no purchase on their own political aspirations. Their White Republican benefactors, after all, must be compensated. From his grave, Antonin Scalia applauds the hypocrisy.

Gene Nichol is Boyd Tinsley Distinguished Professor of Law at the University of North Carolina School of Law and in 2015 started the North Carolina Poverty Research Fund after the UNC Board of Governors closed the state-funded Poverty Center for publishing articles critical of the governor and General Assembly.

From The Progressive Populist, September 15, 2022

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