The end of affirmative action may be just the beginning

There are two important ways in which this week’s decision could be the beginning, not just the end, of a chapter for the Court. The first would move the law in a meaningfully more conservative direction. Second, if fully realized, it would have legal and political consequences equal to or even more volatile than last year’s decision. Roe v. Wade,

The first, and most likely, “next blow” after this week’s ruling is a ruling that invalidates the “disparate impact” rules. The idea behind disparate impact is simple: Too often, people who act for bad reasons don’t wear their racist motives on their sleeves or are simply careless about how their actions perpetuate past, race-based harm. How to increase So disparate impact laws allow plaintiffs to prove they suffered discrimination by pointing to large and glaring racial disparities.

But conservative judges have had a disproportionate influence in his eyes over a decade Now: This week’s more outspoken ruling against race-based college admissions adds a powerful new weapon to his repertoire. Because it’s impossible to talk about “racially disparate impact” without talking about race.

There are provisions in both state and federal law with significant disparate effects: just this March Housing and Urban Development Department reinstated A housing rule with a disproportionate impact that was rolled back by the Trump administration. Important Federal employment law includes The language prohibits disparate effects, although there is some debate as to how effective this is. Illinois And California Their laws also contain prohibitions with widely disparate effects.

Setting aside all these provisions will make the law far less favorable to those who face discrimination at the hands of someone who is not foolish enough to uncover their illegal motives. Therefore, judicially enforced race-blindness would make it easier for people at large to act on race-based motives. In fact, race-blindness by the Supreme Court will make it easier for other people to discriminate. So much for Roberts’ Pat but very misleading saying that “the way to stop discriminating on the basis of race is to stop discriminating on the basis of race.”

Of course, the federal courts’ turn to the right means that discrimination plaintiffs who are not white already face an uphill battle. But another potential “next shoe” could have even more far-reaching and disruptive consequences.

Consider a case that is winding its way through the federal courts in Virginia concerning admissions procedures for the exclusive Thomas Jefferson High School for Science and Technology in Fairfax County. one of the claims The group suing the county school board says the public school is engaging in “permissible racial balance” with the goal of creating an integrated class, even without using an explicitly race-aware rule. On this principle, no government action can be challenged because it mentions race; It can be challenged because it was intended to reduce harm to a specific racial group.

There are, of course, many technical reasons why the law does not justify this result. But when the plaintiffs in the Thomas Jefferson case asked to stop Last April, three conservative justices — Samuel Alito, Clarence Thomas and Neil Gorsuch — voted to approve the admissions policy, a sign that some support for this approach already exists. .

Read broadly, a decision that effectively says “no racial justice” will have wide-ranging consequences. This may call into question many state and federal laws that have been implemented in part because of concerns of an increased burden on minority groups. just an example State laws that establish protections for minority voters, It is not hard to imagine a court often hostile to minority voters and looking down on these measures.

Meanwhile, a disappointing number of policy problems remain that affect racial minorities more sharply. For example, consider the worrying racial gap in maternal mortality: National Institute of Health to be established in 2021 they are black women Five times White women are more likely to die from bleeding during childbirth than white women. The recent tragic death of track star Tory Bowie is just the tip of the iceberg. The “no racial justice” rule can severely deter the government from reacting to such horrific facts.

To be sure, even if the Court declared that the state could not act to reduce racially inequitable harms, it could avoid such sweeping consequences by arbitrarily changing its rule: it would in fact , When he sees the “unified intention”, he can choose and choose. Its objective is to remove the barriers created by race in social and economic life. But that would leave state efforts to deal with racially focused harms up to the whims of judges – hardly a better scenario.

Why would the court take any of these routes? A Old Intelligence It is believed among political scientists that judges “follow the election returns.” That is, because of the close ties between the judges and their political sponsors of one side or the other, the court never strays far from broad majoritarian views. That’s not the case now, if it ever was. According to a recent survey conducted by the NORC Center for Public Affairs, about 63 percent of Americans They did not want the court to ban race-conscious affirmative action in higher education. and, of course, strong Majority Support for Abortion Rights Last summer did not approach the court.

Instead the Supreme Court today is moving more closely in line with the preferences of the Republican Party. Radical destabilization of laws promoting equality promotes partisan interests in two ways. First, measures such as the State Voting Rights Act are generally disliked by Republicans. So there is clear partisan legitimacy in his removal. Second, a growing element of the party took up arms against what it called “awakened” politics.

If the court targets a vague category of race-conscious policies as unconstitutional, it creates a legal framework for what has until now been a free-floating term for political abuse (even if some conservative ) Flounder when asked what “wock” means, The court therefore creates an incentive for partisan figures to label policies they do not like as “social justice” minded and therefore invalid. And while calling something “woke” is tantamount to labeling it “unconstitutional,” there will be a powerful urge to label any policy that favors minorities as discriminatory. In effect, it would stop the hands of Democrats (but not Republicans) from furthering the interests of the many groups that make up their electoral coalitions.

In this way, the affirmative action decision could open the door to a new kind of political warfare—one that could easily soon dominate state and national agendas.

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