Supreme Court conservatives sound awfully keen on white power

One day after hearing oral arguments in cases that would, if conservatives have their way, solidify white voting power in the apportionment and redistricting processes in states around the country, the Supreme Court is hearing arguments today in a case with even more explicit racial implications: Fisher v University of Texas – Austin.

The case, which rehashes a 2013 case of the same name, asks whether race-based considerations in college admissions violate the Equal Protection Clause of the 14th Amendment. In 2013, the Court held by a 7-1 margin that such considerations were acceptable, but only under strict scrutiny. Justice Kennedy has already expressed frustration today that there appear to be no new facts in this year’s version of the case. Since he is generally considered to be the Court’s swing justice, this bodes well for those who would like to see the University’s admissions policy upheld, although Elena Kagan’s recusal (she was involved in the case during her time as solicitor general) makes a 4-4 tie a real possibility. In that case, the University’s admissions policy would be upheld, but no precedent would be set.

Either way, the case still represents potential long-term challenges for non-white students, as the Court’s more conservative justices have lent credence to some strikingly racist ideas during today’s proceedings.

First up, Antonin Scalia, because of course Scalia said something awful today:

From TalkingPointsMemo:

Antonin Scalia, via Wikimedia Commons

Antonin Scalia, via Wikimedia Commons

Referencing an unidentified amicus brief, Scalia said that there were people who would contend “that it does not benefit African-Americans” who don’t do well in the schools that accept them under affirmative action, and that those students would be better off in the less advanced schools that they would have otherwise gone to.

One could just as easily ask if white students are disadvantaged by systems of privilege — such as legacy admissions — that put them in more prestigious schools with (presumably) more difficult classes. Of course, no one would take such an argument seriously because of course getting a leg up into Harvard, or UT-Austin (which does not have legacy admission), helps the student in the long run.

But it wasn’t just Scalia, the Twitter-egg-turned-Supreme-Court-Justice, who questioned the very premise of affirmative action. Chief Justice John Roberts, who previously voided much of the Voting Rights Act under the deliberately ignorant assumption that racism in America no longer exists, later mused that diversity isn’t a worthwhile goal for a college because math doesn’t discriminate:

Roberts also asked lawyers for the defendants if there would ever be a time in which racial considerations would no longer be necessary, citing a 25-year standard the Court proposed in a 2003 case involving the University of Michigan:

The majority of Justice Alito’s questions focused on comparing the non-white students admitted through Texas’s policy of guaranteeing admission to any public school student in the top ten percent of their graduating class to the non-white students who were admitted through the holistic admissions process. As the holistic admissions process, which includes race, is, well, holistic, it’s impossible to make an apples-to-apples comparison between the two groups. However, lawyers for the University stated repeatedly throughout the proceedings that the number of non-white students at UT-Austin dramatically increased after the policy was adopted.

At the end of the day, some of the most powerful white men in the country just legitimized a host of racist arguments that perpetuate the myth that America is some post-racial, colorblind society that doesn’t put non-white kids on a track that makes them less likely to be accepted to our best schools — or to any school, for that matter. Even if the Court upholds this particular admissions policy, these arguments are sticking around for next time.

Jon Green graduated from Kenyon College with a B.A. in Political Science and high honors in Political Cognition. He worked as a field organizer for Congressman Tom Perriello in 2010 and a Regional Field Director for President Obama's re-election campaign in 2012. Jon writes on a number of topics, but pays especially close attention to elections, religion and political cognition. Follow him on Twitter at @_Jon_Green, and on Google+. .

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18 Responses to “Supreme Court conservatives sound awfully keen on white power”

  1. Camera Obscura says:

    If Kagan didn’t think she could do the job because of so many issues of recusal the ethical thing to do would be to refuse the nomination. Is this going to go on for her entire term? It’s not like it was yesterday she joined the court.

  2. Mike_in_the_Tundra says:

    One possible explanation is that Kagan is ethical, and Scalia is an ethically challenged SOB.

  3. Camera Obscura says:

    I am so fed up with Kagan recusing herself when there is nothing to force her to do that. Scalia doesn’t recuse himself when the conflict of interest is blatant and obvious. She shouldn’t have accepted the nomination if she’s going to keep doing that.

  4. newbroom says:

    Richard Posner’s recent NYT editorial is interesting. In a recent speech
    to law students at Georgetown, he argued that there is no principled
    basis for distinguishing child molesters from homosexuals, since both
    are minorities and, further, that the protection of minorities should be
    the responsibility of legislatures, not courts. After all, he remarked
    sarcastically, child abusers are also a “deserving minority,” and added,
    “nobody loves them.”

  5. MDC says:

    This is why it is very important to vote in 2016. Our next president will likely appoint 3 to 4 justices. Heaven help us if it someone who doesn’t see anything unconstitutional with deporting people born in the US or banning all Muslims from entering the country.

  6. Don Chandler says:


    Found the link:

    I remember his difficult confirmation but it had little to do with liberals and much more to do with “Long Dong Silver.” Here is his attack on progressives:

    Thomas’s most deeply felt opinions are about race, and he pulls no punches. For Thomas, the menacing racists who donned white sheets in the segregated South of his childhood are as bad or worse as the northern liberal zealots in suits and ties.

    “These people who claim to be progressive … have been far more vicious to me than any southerner,” Thomas says, “and it is purely ideological.”

    Thomas talks about the virulent racism he encountered growing up in the segregated South, when blacks were considered second-class citizens and kept separate from whites by law, and he equates those attitudes with the stereotypes he believes people hold today.

    “People get bent out of shape about the fact that when I was a kid, you could not drink out of certain water fountains. Well, the water was the same. My grandfather always said that, ‘The water’s exactly the same.’ But those same people are extremely comfortable saying I can’t drink from this fountain of knowledge,” Thomas says. “They certainly don’t see themselves as being like the bigots in the South. Well, I’ve lived both experiences. And I really don’t see that they’re any different from them.”

    He says his critics — the people who question whether he is smart or qualified to be on the Court or who suggest he merely does what a white Supreme Court colleague dictates — are as also as bigoted as the whites of his childhood in the deep South.

    What a long dong silver [in the work place]

  7. Don Chandler says:

    He said that Today?

  8. BeccaM says:

    I remember those days. Having grown up with an enthusiastic racist for a father, I knew not only all the slurs, but the nuances and details of ethnic and racist bigotry. According to him, southern Italians and Sicilians, given their tendency to be darker-skinned than northern Europeans, were “just a small sea away from being N*****s”. He totally did not consider Italians to be ‘white’.

  9. Hue-Man says:

    Or imprisoned!

    “Italian-Canadian internment began when Italy declared war on Canada on June 10, 1940.”

  10. nicho says:

    Wow — that statement alone should disqualify him from practicing law — never mind sitting on the Supreme Court. He’s like a curse George HW Bush put on the country. Typical Bush cynicism. “You want a black justice? Then here, take this intellectually and morally challenged POS.”

  11. nicho says:

    It wasn’t that long ago that Scalia and Alioto would have been considered second-class citizens. When I was growing up, my best friend had an aunt who was shunned by her family for marrying an Italian. A bartender in one of my hangouts, an Italian guy, told me that his wife’s family would have nothing to do with them because he wasn’t “white.”

  12. BeccaM says:

    I felt similarly, although I was at home. I went to bed feeling relief that the Dim Son former Texas governor had lost, although the race had been closer than I liked.

    Then the next morning all hell broke loose and it was surreal, like waking up in as you say, a kind of parallel world where things stopped making sense.

  13. BeccaM says:

    More importantly, SCOTUS conservative GOP justices have shown they’re open to the idea of a new form of gerrymandering to ensure a minority party controls the country.

    I’m sure most of you can see this is just a step in a continuing disenfranchisement strategy. This would work hand-in-hand with the Republicans’ ongoing voter suppression strategies. Apportion based on eligible voters…then ensure the opposition’s supporters aren’t eligible.

  14. Doug105 says:

    The young still think life is fair.

  15. Doug105 says:

    What, Scalia didn’t have time to work his puppet today?

  16. nicho says:

    There are times when I think that something happened to me at some point and I slipped into a parallel universe. I can trace it to Nov. 7, 2000. I was watching election results in a bar in San Francisco. Al Gore was declared the winner. I celebrated with another drink and walked back to the house where I was staying. When I woke up in the morning, I was living in Bizarro World, and it’s just gotten worse, by the day for 15 years.

  17. BeccaM says:

    This is so not the country I thought America would be in 2015, when I was growing up in the 1960s and 70s…

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