Wednesday, July 30, 2014

Schuette v. BAMN: SCOTUS Sets Back Minority Rights 50 Years--At Least

The current Supreme Court of the United States (SCOTUS) has done more damage to minorities than anything else it has harmed during its scorched earth campaign. Its recent decision in Schuette v. BAMN continues its assault on minority rights, turning back the clock to the time before Brown v. Board of Education.

In Schuette, the conservative majority of the court ruled that the electorate of Michigan had a right to stop preferential treatment for African Americans in college admissions. The Justices ruled that letting more minority students into college is harmful to the majority and they put an end to it, not just in Michigan, but everywhere else, since SCOTUS rulings are binding in all states. This ruling reversed SCOTUS rulings in Bakke (1978) and Grutter (1996). In both those cases, SCOTUS upheld the right of admissions officers to use race as one factor in making decisions about who would or would not be admitted to a college or university. Now, the only way to give race-based preference would be to pass a state-wide initiative. In her dissenting opinion, Justice Sotomayor notes that placing such an initiative on the ballot would be extremely expensive and, more to the point, it has never been successful.

The Justices knew exactly what they were doing because they had done it before, when they ruled that California's populace had a right to stop race-based admissions by sustaining California's intolerance initiative, Proposition 209, in 1996. Affirmative action programs in California's colleges had made getting a quality education easier for minorities during the decades prior to Prop. 209. Afterwards, according to Sotomayor's dissent, minority admissions plunged from 30% in 1995 to 13% in 2006.

Since the conservative Justices knew what had happened in California, they knew what would happen in Michigan. State-supported institutions that are supposed to support the aspirations of all the people stopped admitting minorities. Michigan's Law schools once again became the almost exclusive prerogative of the white and wealthy. Minority populations would find it far more difficult to find lawyers or physicians of their own kind, or even any white or Asian physicians who were willing to practice in minority communities. But the conservative Justices approved that result. They explained that they were protecting the rights of the white majority, who, Sotomayor pointed out, needed no protection. Though the conservative Justices claim that they are not racist, the results of their decision, in this case and in many others--more all the time--are exactly the same as if they were racist down to their nylon socks and black wing-tips.

Whence comes this vehemence? Why are Scalia et al. so adamant that African Americans achieving success should be prevented at all costs? Scalia and his friends claim to be following the intentions of the Framers, the 18th Century politicians who wrote the Constitution and turned it into law. But their motives go much deeper than that. They intend to preserve the social order as it existed in 1789, with a wealthy minority in charge of the government and a disenfranchised majority. The Constitution holds the seeds for such oppression, since it permits a minority to thwart the will of the majority, with two houses of Congress, with a tiny but powerful Supreme Court, with presidential veto power that can only be overridden by two thirds of both House and Senate. The Framers wanted those few who were then in power to remain in power forever.

Times change. Ideas are abandoned. Slavery was abolished. Senators are elected by direct vote. But the Supreme Court is struggling mightily to turn back the clock and freeze time and institutions in one and the same moment.

A government that cannot change with the times is a government that cannot last. The pace of change is so fast now that our government will be forced to change faster to keep up. Time is inexorable. Gentlemen of the Supreme Court, your time has past.

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