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Ketanji Brown Jackson’s Dissent Is An Argument For Institutional Racism

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Supreme Court Justice Ketanji Brown Jackson hardly feigned interest in adjudicating the constitutionality of affirmative action in her dissent today. Remember all that talk about Jackson’s “progressive originalism?” It’s not a thing.

Instead, Jackson offered more than 9,000 overwrought words of leftist social commentary, “expound[ing] upon the universal benefits of considering race in this context.” Her embrace of identitarianism and defense of Asian-American discrimination is jarring. Jackson believes state-funded institutions should judge Americans by their immutable characteristics and historical sins rather than their individual accomplishments and actions. It’s really that simple.

“With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat,” Jackson’s sarcastically noted. I dunno; colorblindness seems like a worthy ambition. But the Supreme Court didn’t institute “colorblindness for all.” It could no more do that than stop justices from mixing their metaphors. What it did was reaffirm colorblindness as a matter of law. On this topic, the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964 is clear:

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

The Civil Rights Act does not make exceptions for disadvantaged groups, “lived experiences,” or race — quite the opposite. Using Jackson’s logic, any institution could adopt any racial preferences they wanted. As long as there was some emotional argument for it. Though, in fairness, there isn’t much logic to be had in progressive Calvinlaw.

Moreover, as Jackson surely knows, the Supreme Court exists to use “legal fiat” to uphold the Constitution. Every opinion that Jackson has been on the majority has used this approach.

Jackson argues that government-funded policies that are prejudiced against white and Asian kids — all of them, no matter how hard they work or what their backgrounds might be — are not only legal but necessary. What she fails to concede is that for every instance of “affirmative” race-based admission to a college, there is corresponding instance of race-based discrimination.

Instead of wrestling with this reality, Jackson creates two hypothetical strawstudents — John and James, one white and one black. Never once does she imagine that a white kid from, say, rural West Virginia might have overcome more societal barriers than a black kid from a middle-class suburb in Los Angeles. In her worldview, a black kid can’t overcome barriers without a lowering of standards. That is an extraordinarily corrosive and demeaning position to take. And it also has nothing to do with the law. (It’s also worth remembering that it’s highly debatable whether affirmative action helps minority students.)

The hypothetical couple in Jackson’s dissent should be James and the son of immigrants from India or Vietnam. Many Asians come to the United States from crushing generational poverty and racist caste systems. Many of these immigrants, as immigrants in the past, have proven that, despite all our well-documented imperfections, the United States is, at heart, a meritocracy. It’s why people “of color” flood our borders. That’s a highly inconvenient reality for the left.

Jackson is free to make the case that our history has robbed black Americans of their agency, and so the Fourteenth Amendment should be rewritten. She is free to believe that Asian Americans and whites, and perhaps others, do not deserve equal protection under the law. But those arguments belong in the editorial pages of The Atlantic or The New York Times, not in the Supreme Court.


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