The Most Blistering Lines From The Supreme Court's Affirmative Action Dissents
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The Supreme Court’s ideological divisions were on full display Thursday as it handed down its ruling on affirmative action: All six conservative justices declared such programs unconstitutional, while all three liberals voted to preserve them.
Writing for the majority, Chief Justice John Roberts argued that affirmative action violated the 14th Amendment’s equal protection clause.
Justices Sonia Sotomayor and Ketanji Brown Jackson penned separate, fiery rebuttals to the majority, joined in each by Justice Elena Kagan.
The high court had combined two cases addressing the same topic — one against Harvard, and another against the University of North Carolina. While Sotomayor’s dissent covered both cases, Jackson recused herself from the Harvard case because she received both her undergraduate and law degrees from the institution and had recently sat on its board. She focused instead on the UNC case and the overall purpose of affirmative action programs.
Notably, Justice Clarence Thomas did not recuse himself despite his wife’s involvement; she sits on the board of an organization that filed amicus briefs in support of ending affirmative action. Alongside the conservative establishment, both Thomases have long sought to end the practice, which aimed to grow higher education enrollment by Black and other nonwhite students when appropriate in order to correct historical discrimination, under the assumption that one day it would no longer be necessary.
Sotomayor and Jackson each slammed the majority for ignoring that historical discrimination and the present-day inequalities it produced.
The decision, Sotomayor wrote, was “not grounded in law or fact.”
It “stunts … progress without any basis in law, history, logic or justice,” Jackson said.
Read on for more key excerpts.
‘Let-them-eat-cake obliviousness’
In a particularly searing portion of her dissent, Jackson accused the majority of ignoring “race-linked gaps that the law (aided by this Court) previously founded and fostered” — in other words, of ignoring reality.
“With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat. But deeming race irrelevant in law does not make it so in life. And having so detached itself from this country’s actual past and present experiences, the Court has now been lured into interfering with the crucial work that UNC and other institutions of higher learning are doing to solve America’s real-world problems,” Jackson wrote.
She continued: “No one benefits from ignorance. Although formal race-linked legal barriers are gone, race still matters to the lived experiences of all Americans in innumerable ways, and today’s ruling makes things worse, not better. The best that can be said of the majority’s perspective is that it proceeds (ostrich-like) from the hope that preventing consideration of race will end racism. But if that is its motivation, the majority proceeds in vain. If the colleges of this country are required to ignore a thing that matters, it will not just go away. It will take longer for racism to leave us.”
A tragic ‘Don Quixote’ comparison
Jackson argued that the majority ignored affirmative action’s benefits, quipping that was “hard to do, for there is plenty.”
She continued: “Ultimately, the Court surges to vindicate equality, but Don Quixote style— pitifully perceiving itself as the sole vanguard of legal high ground when, in reality, its perspective is not constitutionally compelled and will hamper the best judgments of our world-class educational institutions about who they need to bring onto their campuses right now to benefit every American, no matter their race.”
‘Success in the bunker, not the boardroom’
In a footnote, Roberts said military academies could be exempt from the ruling. Sotomayor questioned why military academies but not other institutions.
Jackson responded: “The Court has come to rest on the bottom-line conclusion that racial diversity in higher education is only worth potentially preserving insofar as it might be needed to prepare Black Americans and other underrepresented minorities for success in the bunker, not the boardroom (a particularly awkward place to land, in light of the history the majority opts to ignore).”
‘Unelected’ officials ‘upend[ing] the status quo’
Critics of the Supreme Court have argued with renewed urgency in recent years that its conservative majority has been taking a sledgehammer to long-established rights and norms in an affront to the democratic process.
As Sotomayor put it, “The six unelected members of today’s majority upend the status quo based on their policy preferences about what race in America should be like, but is not, and their preferences for a veneer of colorblindness in a society where race has always mattered and continues to matter in fact and in law.”
‘The devastating impact of this decision cannot be overstated’
“Today,” Sotomayor wrote, “this Court overrules decades of precedent and imposes a superficial rule of race blindness on the Nation. The devastating impact of this decision cannot be overstated. The majority’s vision of race neutrality will entrench racial segregation in higher education because racial inequality will persist so long as it is ignored.”
She concluded her opinion with a Martin Luther King Jr. quote.
“Despite the Court’s unjustified exercise of power, the opinion today will serve only to highlight the Court’s own impotence in the face of an America whose cries for equality resound. As has been the case before in the history of American democracy, ‘the arc of the moral universe’ will bend toward racial justice despite the Court’s efforts today to impede its progress,” Sotomayor wrote.
Thomas ‘responds to a dissent I did not write’
The two Black justices on the court each addressed the other’s views in their writing. Thomas wrote that, as Jackson sees things, “we are all inextricably trapped in a fundamentally racist society.” He dubbed affirmative action “cancerous.”
“In fact, on her view,” Thomas writes, “almost all of life’s outcomes may be unhesitatingly ascribed to race.”
“Even in the segregated South where I grew up, individuals were not the sum of their skin color. Then as now, not all disparities are based on race; not all people are racist; and not all differences between individuals are ascribable to race,” Thomas said.
Jackson replied: “Justice Thomas’ prolonged attack … responds to a dissent I did not write.”
His opinion “also demonstrates an obsession with race consciousness that far outstrips my or UNC’s holistic understanding that race can be a factor that affects applicants’ unique life experiences,” she said.
According to an NBC News reporter, Jackson looked “visibly angry” while Thomas read from his opinion at the Supreme Court.
