From xxxxxx <[email protected]>
Subject The Anti-Antiracist Court
Date January 30, 2023 4:25 AM
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[How the Supreme Court has weaponized the Fourteenth Amendment and
Brown v. Board of Education against antiracism. [A decision on SFFA v.
Harvard, which was heard in October 2022, is pending as of January 29,
2023].]
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THE ANTI-ANTIRACIST COURT  
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Jonathan Feingold
October 24, 2022
The Forum [[link removed]]


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_ How the Supreme Court has weaponized the Fourteenth Amendment and
Brown v. Board of Education against antiracism. [A decision on SFFA v.
Harvard, which was heard in October 2022, is pending as of January 29,
2023]. _

, Illustration by Christin Apodaca

 

On October 31, the Supreme Court will consider two lawsuits—SFFA v.
Harvard SFFA v. UNC—that target race-conscious university
admissions. The outcome is all but certain. The Court’s rightwing
majority will ban all universities from considering an applicant’s
race. The decision will cap more than fifty years of judicial
hostility to antiracist projects that followed the Civil Rights Act of
1964.

This result is itself extreme; it constitutionalizes white racial
advantages and legitimizes racial inequality. But the Court’s
reasoning is also extreme. To justify a ruling that outlaws modest
tools to remedy racism in America, the majority will deploy three of
our country’s most racially progressive precedents: The Fourteenth
Amendment, Title VI, and _Brown v. Board of Education_. Through raw
power and judicial fiat, the Supreme Court will transform antiracism
mandates into commands for colorblindness. This fidelity to
colorblindness threatens more than affirmative action. The Supreme
Court is poised to deploy the same logic to further gut voting rights
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curtail protections for indigenous communities
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to remedy racial inequality—_even_ efforts implemented
through _colorblind_ means
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Ratified in 1868, the Fourteenth Amendment buttressed a nascent
“abolitionist project” to reconstitute America’s racial order.
Sitting between the Thirteenth Amendment (which abolished slavery) and
the Fifteenth Amendment (which expanded suffrage), the Fourteenth
Amendment extended to Black Americans citizenship and the rights and
protections guaranteed by the Bill of Rights. Three years’
later, the Supreme Court observed
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the three Reconstruction Amendments had “one pervading purpose . . .
the freedom of the slave race, the security and firm establishment of
that freedom, and the protection of the newly-made freeman and citizen
from the oppressions of those who had formerly exercised unlimited
dominion over them.” Professor Brandon Hasbrouck explains that for
Black Americans, “the Reconstruction Amendments guaranteed their
right to establish and protect this new society.
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two centuries later, Justice Thurgood Marshall put it plainly
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Union survived the Civil War, the Constitution did not.” Where an
anti-democratic and white supremacist document once stood, the
guarantee of a multiracial union took its place.

Yet within less than a decade, the Supreme Court usurped the
democratic convictions and commitments that had birthed this promise.
In the _Slaughter-House Cases_ in 1873, the Court nullified the
Privileges and Immunities Clause, which many had viewed as the
Fourteenth Amendment’s most important provision because its
reference to the Bill of Rights infused into the Amendment rights and
liberties essential to full citizenship. Ten years later in
the _Civil Rights Cases_, the Court struck down Congress’ first
attempt to prohibit anti-Black discrimination in public accommodations
like inns, theaters, and restaurants. To justify the result, the Court
rehearsed one of the earliest “reverse racism” claims:

When a man has emerged from slavery, and by the aid of beneficent
legislation has shaken off the inseparable concomitants of that state,
there must be some stage in the progress of his elevation when he
takes the rank of a mere citizen, and ceases to be the special
favorite of the laws, and when his rights as a citizen, or a man, are
to be protected in the ordinary modes by which other men’s rights
are protected.

By 1896, in _Plessy v. Ferguson_, the Supreme Court further
entrenched racial hierarchy when it blessed the “separate but
equal” doctrine. Within a single generation after the Civil War, the
Supreme Court accomplished what the Confederacy could not: it
constitutionalized an afterlife for slavery.

It would take nearly a century for Jim Crow to fall. In 1954,
following massive grassroots resistance, geopolitical necessity, and
decades of litigation, _Brown v. Board_ chipped away
at _Plessy_ and rediscovered the Fourteenth Amendment’s antiracist
mooring. But the decision proved ineffectual; a decade after _Brown_,
the South’s commitment to Jim Crow remained unyielding. Congress
responded with a suite a civil rights legislation. These laws, which
included Title VI, reflected America’s renewed commitment to
multiracial democracy and gave teeth to _Brown_’s promise of a
post-apartheid America.

Yet as before, the Supreme Court defused democratic efforts to build a
more perfect union. Between 1969 and 1971, President Nixon appointed
four justices and reshaped the Supreme Court. Among those justices was
Lewis Powell, who had openly opposed state-mandated integration, and
William Rehnquist, who had advocated for _Plessy_ as a Supreme Court
clerk.

By 1974, the Supreme Court had defanged _Brown_ and neutralized
Title VI’s commensurate desegregation mandate. That year,
in _Milliken v. Bradley_, the Supreme Court prohibited lower courts
from mandating integration when the underlying segregation occurred
across district lines. This holding constitutionalized white flight
and other social forces that fuel and entrench racial segregation but
lack an identifiable intent to segregate. Lamenting this reality,
Thurgood Marshall—who only two decades before had
litigated _Brown_ before the Supreme Court—accused the majority of
“mak[ing] a solemn mockery” of _Brown_.

If _Milliken_ neutralized _Brown_’s attempt to reinvigorate the
Fourteenth Amendment, _Regents v. Bakke_ turned _Brown_ and the
Fourteenth Amendment on their heads. Decided in
1978, _Bakke_ comprised the Supreme Court’s first substantive
engagement with a remedial race-conscious university admissions
program. Many view Bakke as a partial win for affirmative action
because it introduced the “diversity rationale”—which multiple
Supreme Court majorities have invoked to uphold race-conscious
admissions policies.

But reading _Bakke_ as a partial win overlooks how the Court’s
majority turned the Fourteenth Amendment into a weapon against
antiracism itself. _Bakke_ presented a critical question: _What
standard of review should apply to remedial race-conscious
policies?_ Five justices (including three of Nixon’s appointees)
concluded that strict scrutiny—the most demanding level of
review—should apply. The conclusion rendered all race-conscious
efforts presumptively suspect—thereby constitutionalizing an
equivalence between the Black Codes and Jim Crow, on the one hand, and
affirmative action, on the other. The Supreme Court transformed the
Fourteenth Amendment and Title VI from antiracism mandates into
mandates against antiracism.

In the decades since, the Supreme Court has continued to wield our
most racially progressive precedents as weapons of racial
retrenchment. The pending admissions cases will further this
tradition. The Court is poised to ban all race-conscious admissions
policies—even when a historically white university considers race to
promote “meritocracy,” counter white racial advantages, or
desegregate its campus. The Court will tell us the Fourteenth
Amendment, Title VI, and _Brown_ command this result—even as that
result is celebrated by the same constellation of interests that
protested the Fourteenth Amendment, contested Title VI, and
maligned _Brown_. And when it does, the Supreme Court will accomplish
what the longest filibuster in American history failed to do:
constitutionalize an afterlife for Jim Crow.

_JONATHAN FEINGOLD. Boston University School of Law Professor Jonathan
Feingold’s scholarship explores the relationship between race, law,
and the mind sciences. Feingold co-authored an amicus brief on behalf
of race-conscious admissions at Harvard and UNC, and his work has been
cited in U.S. Supreme Court amicus briefs defending affirmative
action._

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* U.S. Supreme Court
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* Racism
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* Fourteenth Amendment
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* Brown v Board of Education
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* Education
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* affirmative action
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