Justice Ketanji Brown Jackson (2022) v. John Marshall Harlan (1896) on affirmative action

The Supreme Court recently held extended argument on the divisive issue of affirmative action, where race is considered a factor in college admissions. Blacks are given a plus; Asians are given a minus. Esteemed universities are shown to be less than we expected: benefits if your dad went there, a plus, if your dad gave them money (isn’t that bribery?); if the corporations want diversity or the U.S. military, academic achievement is put on hold. Major universities had to explain themselves before the Supreme Court in the context of requiring a compelling interest plus necessity to discriminate by race, the strict scrutiny test.

We, just being human, discriminate. Discrimination per se is not illegal; only illegal discrimination is illegal. For example, at the court hearing, they talked about some 40 dimensions where this business of discrimination can determine who is admitted. Most of those dimensions were not illegal, even the one on personality (seems the Asians are not cool, being quiet and reserved). The issue is race: whether it is illegal to give race a plus or minus. Admissions for limited seats is a zero-sum game, when giving one plus point, or taking a point away, may eliminate a competitor. Would we as sports fans tolerate race playing such a role? The answer is clearly no, unthinkable; but very thinkable in the college admissions game. It is the principle of Grutter v. Bollinger (2003), the main precedent before the court, which would be overturned if the use of race is considered to be illegal.

We shall examine here the 14th Amendment Equal Protection Clause (1868), although the statutory Civil Rights Act of 1964 is also a relevant legal standard. What was the original intent versus the textual language of the said Equal Protection Clause?

The new justice, Ketanji Brown Jackson, has an interesting take on this issue. She has said that the original intent was to give Black people a leg up so they could be equal under the Equal Protection Clause, having been slaves shortly before. She quotes a legislator who proposed said 14th Amendment: It was designed to “make people who had less opportunity and less rights equal to white citizens.” Thus, the intent was to favor Black people, that is, affirmative action. Now, since conservatives usually use original intent, Jackson has got conservatives hoisted by their own petard. Someone called this “progressive originalism,” or “tactical jujitsu.”

But the liberal Justice John Marshall Harlan took a more textualist view of the said Equal Protection Clause, writing only 28 years after the clause became law. The occasion was his dissent, which has become famous in our law, to the opinion in Plessy v. Ferguson (1896), which had held that separate facilities for Black citizens were OK as long as facilities were equal. (Henry Billings Brown, a Michigander, who wrote the opinion has been discriminated against himself in modern times).

Harlan is known for the “color blindness” approach. Summarizing a prior case regarding the 13th and 14th amendments, he wrote: “…in legal effect, this Court has further said ‘that the law in states shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the states, and, in regard to the colored race, for whose protection the amendment was primarily designated, that no discrimination shall be made against them by law because of their color.’” Notice, we do not discriminate for or against them.

Harlan uses the colorblind language here: “Our Constitution is colorblind and neither knows nor tolerates classes among citizens … In respect of civil rights, all citizens are equal before the law.” No pluses or tips.

Which is it? According to Harlan, race should not be considered as a leg up, as Jackson allows. I am thinking about Brown v. Board of Education (1954) — the hearts and minds of the individual applicants — when they are discriminated against — the injustice never to be undone. Look elsewhere, business and military, for legally admitted recruits consistent with the strict scrutiny test.

James W. Pfister, J.D. University of Toledo, Ph.D. University of Michigan (political science), retired after 46 years in the Political Science Department at Eastern Michigan University. He lives at Devils Lake and can be reached at jpfister@emich.edu.

This article originally appeared on The Daily Telegram: James Pfister: Historical views on affirmative action on Supreme Court