In 2007, he famously wrote, ‘The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.’ Today he said the same thing.
It’s a good day, folks. But hold your breath for a moment. Many of us are still waiting for the rulings in 303 Creative (the religious-conscience case out of Colorado) and Nebraska v. Biden/Dep’t of Education v. Brown (the student-loan-forgiveness cases, handled jointly) to be released by the Supreme Court tomorrow.
Anything is possible, but it would not surprise court-watchers to see the former’s opinion fall to Justice Alito (expect a stemwinder) and the latter’s to . . . Chief Justice John Roberts. Which could signify a 5-4 majority in either direction in a case that, if upheld, would condone executive quasi-czarism. So, as Samuel L. Jackson said in Jurassic Park, “hold on to your butts.” We may all be singing a very different tune ’round about 10 a.m. Eastern Time on Friday.
But in the meantime, do take note of the sheer rhetorical force of John Roberts’s majority opinion in today’s ruling striking down racial discrimination in college admissions (Students for Fair Admissions v. Harvard/University of North Carolina — the meat begins around page 18, after standing issues are dealt with). This is no timid opinion: Roberts anchors himself in an originalist reading of the equal-protection clause of the 14th Amendment as one whose “core purpose” is “doing away with all governmentally imposed discrimination based on race.” He immediately goes on to say that “eliminating racial discrimination means eliminating all of it.” In explaining how hard it should be for a racially discriminatory regime to survive the withering judicial gaze of “strict scrutiny,” he pulls no punches, citing directly to Korematsu v. United States (the infamous Japanese-internment case) as the last time a racially discriminatory regime survived it, and pointing out how mortifying that is nowadays.
He then goes to Grutter v. Bollinger (2002), the last case considering race-based admissions standards and one whose O’Connor-written 5-4 majority opinion was a notoriously temporizing mishmash that essentially said “racial discrimination isn’t okay, but we’ll allow it for 25 more years.” The logic was unsupportable then and remains stupid now, but give Roberts credit for pointing out that one way or another, time’s up, buddy.
The entire opinion is 237 pages; one way to save time is to skip the dissents. Ketanji Brown Jackson’s dissent is memorable only for its unfortunately amateurish drafting (she mixes metaphors like I usually only do after I’ve mixed a few too many cocktails), and Sotomayor’s counterargument is so vapid that Roberts — not normally one to throw punches in his prose — cannot help but clown on it himself: “‘Separate but equal is inherently unequal,’ said Brown. It depends, says the dissent.” Clarence Thomas’s thundering concurrence alone deserves a separate write-up, and much more will be written about the repercussions of these cases in the days ahead, but for one night conservatives (all Americans, honestly) can savor a victory for sanity.
If nothing else, you must give John Roberts credit for genuine consistency. In 2007’s Parents Involved in Community Schools v. Seattle — a very different era only five years after Grutter v. Bollinger, and a very different court he had only just joined — he famously wrote “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” They were wonderfully pithy words back then, and the only question was what he would say today. As it turns out, he said the same thing, only much more loudly, eloquently, and with a six-vote majority to back him.