Marjorie Cohn Race Supreme Court

The Racism of the Supreme Court’s Supermajority Was on Full Display This Week

Proponents for affirmative action in higher education rally in front of the U.S. Supreme Court before oral arguments in Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina on October 31, 2022, in Washington, D.C.
Proponents for affirmative action in higher education rally in front of the U.S. Supreme Court before oral arguments in Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina on October 31, 2022, in Washington, D.C.

By Marjorie Cohn / Truthout

During more than five hours of oral arguments in two cases that will probably spell the death of affirmative action in colleges and universities, the racism of the six right-wingers on the Supreme Court was on full display. It appears the court will overrule existing precedent that permits limited affirmative action.

The court ruled in the 2003 case of Grutter v. Bollinger that the 14th Amendment allows public universities to consider race as one factor in a “holistic” admissions process in order to assemble a diverse student body. “Numerous studies show that student body diversity promotes learning outcomes, and ‘better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals,’” the court explained.

In 2016, the court reaffirmed the Grutter holding in Fisher v. University of Texas.

Now “Students for Fair Admissions” (SFFA) is asking the court to reverse Grutter. SFFA, a front group for Ed Blum who is not a student but a long-time conservative activist seeking to overturn the Voting Rights Act and affirmative action, is suing Harvard and the University of North Carolina at Chapel Hill (UNC)SFFA says its mission is helping “to help restore colorblind principles to our nation’s schools, colleges and universities.

“Colorblind” is a euphemism for allowing racial inequality and unequal opportunity to continue.

When the court heard oral arguments in Merrill v. Milligan, which the right-wing majority will likely use to uphold Alabama’s racist gerrymandered district map, Ketanji Brown Jackson cited the “race-conscious” goal of the drafters of the 14th Amendment, who were “trying to ensure that people who had been discriminated against … were actually brought equal to everyone else in the society.… That’s not a race-neutral or race-blind idea,” Jackson said.

The radical right-wing supermajority is likely to use the so-called colorblind or race-neutral rationale to gut affirmative action in higher education.

UNC considers “more than forty criteria,” only one of which is the applicant’s race, in its holistic admissions process. There was no evidence in the court record that race was the decisive factor for any applicant.

Harvard’s attorney Seth Waxman said, “Race for some highly qualified applicants can be the determining factor just as being an oboe player in a year in which the Harvard-Radcliffe Orchestra needs an oboe player will be the tip.” John Roberts snapped back, “We did not fight a Civil War about oboe players. We did fight a Civil War to eliminate racial discrimination.”

SFAA lawyer Patrick Strawbridge also alluded to so-called reverse discrimination, shamefully arguing that the landmark case of Brown v. Board of Education forbids race-conscious affirmative action policies. He claimed that Brown “finally and firmly” forbade racial classifications to affect educational opportunities.

But in their amicus brief, the National Association for the Advancement of Colored People (NAACP) and the NAACP Legal Defense and Educational Fund wrote that “Brown did not espouse Petitioner’s version of ‘colorblindness,’ which would require decisionmakers to willfully ignore ongoing racial inequality,” adding that SFFA “seeks to re-write Brown to facilitate the resegregation of UNC in direct contravention to Brown’s express goals.”

Strawbridge maintained that while it would be improper to ask applicants to check a box indicating their race, it would be permissible for them to discuss in their essays how their cultural experiences affected them. “The race is part of the culture and the culture is part of the race, isn’t it?” Elena Kagan asked. “I mean, that’s slicing the baloney awfully thin.”

Jackson pointed out the unequal treatment of two hypothetical applicants, both of whom had families in North Carolina since before the Civil War and wanted to honor their family’s legacy by attending UNC. One wished to be the fifth generation to graduate from UNC. The family of the other applicant had been enslaved. “The first applicant would be able to have his family background considered and valued by the institution,” Jackson said, “while the second one wouldn’t be able to, because his story is, in many ways, bound up with his race and with the race of his ancestors.” She wondered aloud why this wouldn’t violate equal protection.

Roberts, Brett Kavanaugh, Amy Coney Barrett and Neil Gorsuch wanted an “end point” for the use of race as a factor in admissions. They cited Sandra Day O’Connor’s Grutter opinion that said, “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” But that was an expectation, not a command.

And just 19 years after Grutter, the conservatives appear ready to end any consideration of race in college admissions.

Clarence Thomas cynically stated, “I’ve heard the word diversity quite a few times, and I don’t have a clue what it means.” In his Grutter dissent, Thomas wrote, “Like [Frederick] Douglass, I believe blacks can achieve in every avenue of American life without the meddling of university administrators.”

Samuel Alito feigned ignorance about the phrase “underrepresented minorities,” asking, “What does that mean?”

In his Fisher dissent, Alito characterized affirmative action as “systematic racial discrimination.” He wrote, “What is at stake is whether university administrators may justify systematic racial discrimination simply by asserting that such discrimination is necessary to achieve ‘the educational benefits of diversity.’”

Roberts has a sordid record of rejecting the consideration of race in voting and discrimination cases. When he was a young lawyer in the Reagan administration, Roberts advocated a “colorblind” approach to voting rights and discrimination in public schools. In a 2006 voting rights case, Roberts wrote, “It is a sordid business, this divvying us up by race.” The following year, he flippantly wrote in a case that struck down voluntary desegregation programs in Louisville and Seattle, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” In 2013, Roberts authored the opinion in Shelby County v. Holder, which gutted a critical provision of the Voting Rights Act.

Kavanaugh has also eschewed affirmative action. When he was a White House staffer, he derisively called an affirmative action program used in federal contracting a “naked racial set-aside.”

In supporting a colorblind process, the right-wing members of the court are in denial about the persistence of racism in our society. “So in the end, our color blindness, whatever that means because our society is not color blind in its effects,” Sonia Sotomayor said, “that comes as a high cost not only to UNC and to the state and to the nation as a whole, correct?”

UNC was “founded to educate the enslaving elite of this Southern state, allied for generations with the cause of white supremacy, roiled by racial tensions in recent years over the fate of a Confederate monument and treatment of Black faculty members,” education journalist Nick Anderson wrote in the Washington Post.

Sotomayor noted that the states which have banned any consideration of race saw a “dramatic drop in enrollment of unrepresented minority students, particularly black students and Native American students, but particularly black students.”

Indeed, as the president and chancellors of the University of California (UC) wrote in their amicus brief, the UC system has served as a “laboratory for experimentation” for race-neutral measures since 1996 when California banned race-conscious admissions procedures. Underrepresented minority enrollment decreased “50% or more at UC’s most selective campuses,” they found.

“A blanket ban on race-conscious admissions would cause racial diversity to plummet at many of our nation’s leading educational institutions,” U.S. Solicitor General Elizabeth Prelogar told the court. “Race-neutral alternatives right now can’t make up the difference, so all students at those schools would be denied the benefits of learning in a diverse educational environment, and because college is the training ground for America’s future leaders, the negative consequences would have reverberations throughout just about every important institution in America.”

The cases are expected to be decided by the end of June 2023.

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Marjorie Cohn

Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and a member of the national advisory boards of Assange Defense and Veterans For Peace, and the bureau of the International Association of Democratic Lawyers. Her books include Drones and Targeted Killing: Legal, Moral and Geopolitical Issues. She is co-host of “Law and Disorder” radio.


  1. Essentially you support selecting students for attending top educational institutions prioritising skin colour over academic record and achievement?

    And anybody who doesn’t support that is racist?

    No wonder I fled the left a few years ago when I discovered they had become so confused they can no longer differentiate who is male and female….but have no hesitancy to readily divide people into the non deserving “white” and the “deserving POC”

    1. You’re living proof that not only is this country savagely racist, but that same savagery will be the end of the country and the planet. White supremacy is one of the most absurd and obscene contradiction in terms in the language.

    1. One comment in the article really caught my attentuin. Clarence Thomas does not have a clue. Let me amend that statement. Thomas and his wife are a symbol of everything wrong with this country.The people who nominated and voted for his appointment to the court should have been drawn and quartered. A 1st or 2nd year law student would have been a better choice. That goes double for Trumps appointments. Down the road to repression of peoples rights and the installing Fascism legally in the US we go.I would not count on congress to save us.

      1. Race as a determinant of human qualities is not recognized in biological science. Though race does bear some relation to social condition if the comparison is draw in certain ways, anyone who’s been to impoverished areas of upstate Maine or Appalachia or the West knows that lots of so called white people are deprived of a broad array of culture or education or means to live well. Historically in the US from colonial times “white trash” was a category of persons against whom serious prejudice was practiced in all areas including education, work, living accommodations etc.

        As for “diversity,” we can see by the example of the oreo Barak Obama, President Wall St. Drone Strike, black skin in the White House may carry shock value for shut-ins or sheltered white people sill living in 1951, and it may bring tears to the eyes of those Whites with guilty consciences at party nominating conventions. But as he proved, a Black President who attended Harvard can be just as greedy as Jamie Dimon or just as militarist as Ariel Sharon and just as duplicitous as Donald Trump.

        An array of skin colors is probably not a useful point of added diversity for college age kids today, who are a very culturally mixed lot by nature.

        The SCOTUS is not “racist” and all the Jurists on it are pretty much brilliant legal thinkers albeit with differing points of view. This is what the SCOTUS is supposed to be in the US. I would guess that almost nobody who posts comments here actually read high court decisions.

  2. Amazing how so called intelligent human beings can’t recognize that affirmative action isn’t designed to benefit persons based upon skin color.
    I thought it was meant to finally give a shot at an education to persons who are members of ethnicities, who have been subject to discrimination, slavery, and attempted genocide.
    You know, folks other than USA connected Caucasian folks, not including us white trash of course.
    I say, boycott all USA based education, until it’s corrected, and geared towards the student body, and now the administration, and their corporate paymasters.
    Drop out.
    Read a book.
    Dialogue with you fellows.
    Become a useless eater.
    Enough solidarity will break the backs of these money centric bottom feeders.
    Whatever you do, never become cannon fodder for these pricks.
    Leave them to themselves in their gated, ivory, and gold towers.
    The $hit in the black robes will be gone soon enough.
    Their rot, from the inside out, will rid us of them soon enough.
    F*ck their pronouncements, from of high.
    Take what you need to live your life.
    It’s your birthright.

    1. Affirmative action was instituted to make amends for past wrongs of discrimination, where for instance black skinned persons were denied certain entry to certain programs that were using, at least in part, Federal money. That they “add to diversity” is a more recent angle born of a push to reform social values that may be inculcated at colleges. That’s why the SCOTUS, which is limited to applying The Constitution, thinks it may not pass the smell test.

      Everyone, including us “White Trash,” can attend some higher ed if we can find the money. That is not the issue, the issue is admission to the most selective institutions, that by force of their reputation practically guarantee some spot in the higher levels of American society. That said, if a person attends State U. and kills it, they will do as well as a bum at Harvard, the point being hard workers in college do well by their own efforts.

      Your advice is some sort of misery-loves-company stuff. And while we do need miserable cranks who can’t make their way, most young people would be best advised to just get into a college, finish it, and worry about the details later. Your misery may be prideful today, but it gets real old and worthless, when you get real old.

  3. This country has been racist since before our founding, and the class that promotes it the most is our racist Oligarchy. they are so powerful that they can do whatever they decide and could end racism in a short time (with all their billions), but the refuse to! I say let’s stop the Oligarchy, now!!!

  4. Some of us would love a rerun of Scopes monkey trial from 1925. Then Donald’s Supreme Court would make it stick. Then next quit being non secular but like many other countries, enshrine our version of religion as sacrosanct before other faiths take control. We have been an Exceptional Nation for too long to give it up now. Isn’t it our Burden to rule over all of the world??

    1. What do you mean make it stick? The trial was a rather trivial tug-of-war over details of local law, the SCOTUS ruled on the basis of deferring to the state legislature as to whether teaching evolution preferenced any religion, so in that way it did uphold the lower court decision, only overturning on a technicality ie the imposition of the $100 fine against Scopes. It then advised the case be nol pros or dropped.
      You use a vague reference to an obscure trial to ramble off into your imagination about the world at large.

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