Monday saw the U.S. Supreme Court grant a writ of certiorari to two cases involving affirmative action, Students for Fair Admissions against Harvard College and Students for Fair Admissions against University of North Carolina. The cases will be jointly argued during the next Supreme Court term, and they place directly in their crosshairs the court’s noxious precedents in the thorny area of race-conscious university admission policies.
As presented to the court, the leading question the justices will consider is “whether the Supreme Court should … hold that institutions of higher education cannot use race as a factor in admissions.”
The court should, of course, do so after the fact. The propagandist assertion that America in the year 2022 is bedeviled by a sprawling, pan-institutional “systemic racism” is a destructive lie, but the ubiquity of affirmative action means that university admissions offices do, in fact, propagate systemic racism.
There is reason to believe that the justices will perform their duties. It was the mercurial Chief Justice John Roberts himself who, in the 2007 case of Parents Involved in Community Schools v. Seattle, penned perhaps his most iconic line: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
But by Wednesday afternoon, Monday’s propitious step forward toward an America no longer obsessed with race and identity politics was abruptly undermined by a severe step backward toward a race-centric polity. Justice Stephen Breyer, an octogenarian Jewish male and the senior statesman of the court’s liberal bloc, announced his retirement, effective at the end of this court term and contingent upon the successful confirmation of his successor.
The announcement was hardly surprising; given Breyer’s long-standing Democratic ties, his liberal jurisprudence, and the fact that Republicans are poised to retake control of the U.S. Senate this fall, it would have been more surprising if Breyer had not retired this year.
The more interesting twist came after news broke of the impending retirement: President Joe Biden affirmed that he intends to fulfill his 2020 campaign promise to nominate a Black woman—not a Black man, not a Hispanic woman, but specifically a Black woman—to replace the retiring Jewish male justice.
There is only one way that you can describe crass identification politics implemented at this high a level of political power: Evil.
The Supreme Court’s nine justices are the most prominent jurists in America. They swear an oath that they will uphold the Constitution, the American rule of laws, and the equality principle.
From the Declaration of Independence to 1964’s 14th Amendment to Civil Rights Act, real equality under the law has been America’s star.
Americans have often fallen short on our stated ideals, but the equality ideals of race neutrality and equality have often provided American statemen with support during their darkest hours. For Abraham Lincoln, the equality-centric Declaration was an “apple of gold” for which the Constitution was but an enveloping “frame of silver.”
Biden’s affirmation of his campaign-season promise to nominate such a specific population subgroup is a dagger to the telos—the overarching orientation of true colorblind equality and justice—of the United States.
Even ignoring the sheer lunacy of announcing at a Supreme Court justice hunt that one plans to limit that search only to 2% of the national pool of lawyers, the higher-level message Democrats send by doubling down in their identity politics obsession is extremely pernicious.
How can a justice who was selected solely based on race and gender be expected to hear cases that are related to race and gender during her court tenure
Furthermore, consider the impact Biden’s announcement surely has on young lawyers all across the nation who do not fit into the narrow sliver of the intersectional pie that he has now proclaimed will comprise his entire prospective talent pool.
White men should not be ignored; the ship appears to have sailed. What message does this send to young liberal attorneys who are Black? Or what about the message it sends Hispanic young liberal lawyers?
And why stop at the intersectional sliver Black and female? Why not announce preemptively that his next two hypothetical court picks would be a Muslim or a homosexual? (Jews and Mormons, two religious minorities who nonetheless sit low on the left’s intersectional hierarchy pyramid, of course need not apply.)
The juxtaposition of the court’s colorblind certiorari grant on Monday and Biden’s color- (and sex-) centric announcement on Wednesday is nothing if not ironic. Maybe Republicans will be motivated to make identity politics an integral part of their 2022 midterm platform.
And regardless of who replaces Justice Breyer, the court next term will hopefully take us closer to a society that is race-blind—and not besotted by cancerous identity politics—by gutting affirmative action in America.
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