If you truly want to understand why the U.S. Supreme Court dropped the hammer yesterday on affirmative action for kids of color, you need only study this 2016 electoral statistic:
77,744 votes in the swing states of Pennsylvania, Michigan, and Wisconsin.
That tiny margin was just enough to tilt the Electoral College to Donald Trump. He had explicitly promised to stack the Supreme Court with judges who’d make America a safe place for white cultural conservatives. Many had qualms about Trump’s dirtbag traits, but those concerns were trumped by their abiding fear that America was becoming too racially diverse for their tastes.
Trump prioritized the high court as a campaign issue, and so did they. According to the exit polls, 21 percent of all voters cited the court as “the most important” factor in their voting decision. Among those folks, Trump swamped Hillary Clinton by 15 points (56-41). Among the 14 percent of voters who said the court was “not a factor at all,” Clinton beat Trump by 18 points (55-37).
Translation: Elections have consequences. Democrats and progressives who skipped the balloting (because Hillary wasn’t pure enough, or her voice was shrill, or she wasn’t Bernie, or she cackled when she laughed, or whatever) bear serious responsibility for today’s runaway right-wing court. A court that decreed, in its 6-3 affirmative action smackdown, that colleges shall no longer help kids of color by considering race as an admissions factor, despite the systemic racism that still blights our society.
As Justice Sonia Sotomayor pointed out in her dissent, the three Trump appointees and three other Republican appointees have invented “a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter.” But if feckless Democrats and progressives hadn’t stayed home on election day 2016, affirmative action would’ve been upheld (as it had been for decades) and Sotomayor wouldn’t be sidelined.
Everything is connected. Everything traces back to 2016. The MAGA voters were terrified about America’s 21st-century demographics – minorities gaining more power, women gaining more power – and they viewed the high court as a bailiwick for the old “values.” Even John Boehner, the ex-House Speaker who said that Trump’s behavior “disgusted” him, nevertheless said in ’16 that “the only thing that really matters over the next four years or eight years is who is going to appoint the next Supreme Court nominees.”
Actually, conservatives have long prioritized the court as a campaign issue; I heard that a lot while covering the Bush-Gore race 23 years ago. But for whatever reason, Democrats have never matched that fervor, not even close. Their ‘tude seemed to be that abortion was safe because it was settled law grounded in precedent, that affirmative action was safe because it was settled law grounded in precedent (and the 14th amendment guarantee of equal protection), so therefore it would be a waste of time, or bad form, to campaign about the composition of the court.
So is anyone surprised that the current court rules as it does? That its affirmative action decision is a veritable Federalist Society wet dream?
The Republican right has been playing the long game, with predictably minimal Democratic pushback, and now it’s paying off. Thanks to the affirmative action ruling, our elite colleges, which funnel the most young people into the power pipeline, will have less flex to give minority kids a helping hand – whereas white kids with connections will have the same muscle they’ve long had.
The MAGA-GOP court majority doesn’t oppose all affirmative action; it’s totally fine with affirmative action for legacy kids (with family ties to the school), athletes (jock recruitment is often a priority), kids with faculty parents, and kids with rich family members who donate oodles of money. That’s the white status quo, and there are stats to back it up. A 2019 study by the National Bureau of Economic Research found that almost 70 percent of all Harvard legacy applicants were white. Another measure: Of all the white students admitted to Harvard, 43 percent were legacies, recruited jocks, faculty kids, or donor kids; only 16 percent of Black, Latino, or Asian-American kids came from any of those categories.
And gay people got hammered earlier today, when the MAGA-GOP majority ruled in favor of a evangelical Christian graphic artist in Colorado who said she’d refuse to create gay wedding websites (if any gay person ever asked her) despite the state’s protective anti-discrimination law. Colorado’s attorney general had warned the court that, if they ruled for the graphic artists, gay-haters would feel free to invoke their purported beliefs in God as a cover for their “ignorance, whim, bigotry, caprice, and more.” But naturally that plea fell on theocratic deaf ears.
So, with so much damage being done, it would be nice if Biden and the Democrats campaigned in 2024 against the court’s attacks on women, gays, and kids of color. It would be nice if, by doing so, they inspired a huge Democratic turnout. But I’ll believe it when I see it. How many times does that party need to get whacked in the head with a 2 x 4?