Justice Jackson’s Dissent: ‘Our Country Has Never Been Colorblind’

Associate Justice Ketanji Brown Jackson, President Joe Biden’s nominee to the Supreme Court, dissented in strident terms from Thursday’s decision striking down racial preferences in college admissions decisions.

(The full decision, and the concurring opinions and the dissents, may be found here.)

Brown accused the Court’s six conservative justices of pretending that the U.S. is a “colorblind” society, and ignoring pervasive racial inequalities that persist even in the absence of formal racial discrimination laws.

She outlined a history of black suffering in America, from slavery to sharecropping, from Jim Crow to redlining: “The race-based gaps that first developed centuries ago are echoes from the past that still exist today.”

She added (original emphasis):

To demand that colleges ignore race in today’s admissions practices—and thus disregard the fact that racial disparities may have mattered for where some applicants find themselves today—is not only an affront to the dignity of those students for whom race matters. It also condemns our society to never escape the past that explains how and why race matters to the very concept of who “merits” admission.

Describing the use of race in admissions at Harvard and the University of North Carolina as a “plus” factor (and ignoring the burden suffered by Asian-Americans and others harmed by the policy), she argued that there were “universal” benefits to using race in college admissions policies, not just for the beneficiaries.

“Do not miss the point that ensuring a diverse student body in higher education helps everyone, not just those who, due to their race, have directly inherited distinct disadvantages with respect to their health, wealth, and wellbeing,” she wrote (original emphasis).

She argued that “race blindness … will delay the day that every American has an equal opportunity to thrive, regardless of race.”

She concluded (original emphasis):

With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces “colorblindness for all” by legal fiat. But deeming race irrelevant in law does not make it so in life. And having so detached itself from this country’s actual past and present experiences, the Court has now been lured into interfering with the crucial work that UNC and other institutions of higher learning are doing to solve America’s real-world problems.

No one benefits from ignorance. Although formal racelinked legal barriers are gone, race still matters to the lived experiences of all Americans in innumerable ways, and today’s ruling makes things worse, not better. The best that can be said of the majority’s perspective is that it proceeds (ostrich-like) from the hope that preventing consideration of race will end racism. But if that is its motivation, the majority proceeds in vain. If the colleges of this country are required to ignore a thing that matters, it will not just go away. It will take longer for racism to leave us. And, ultimately, ignoring race just makes it matter more.

In his own concurring opinion, Justice Clarence Thomas took on Justice Jackson’s dissent. While agreeing that our society is not, and has never been, “colorblind,” he said the Constitution itself was, in fact, colorblind.

He argued:

JUSTICE JACKSON would replace the second Founders’ vision with an organizing principle based on race. In fact, on her view, almost all of life’s outcomes may be unhesitatingly ascribed to race. …

This lore is not and has never been true. Even in the segregated South where I grew up, individuals were not the sum of their skin color. Then as now, not all disparities are based on race; not all people are racist; and not all differences between individuals are ascribable to race. … Worse still, JUSTICE JACKSON uses her broad observations about statistical relationships between race and select measures of health, wealth, and well-being to label all blacks as victims. Her desire to do so is unfathomable to me. I cannot deny the great accomplishments of black Americans, including those who succeeded despite long odds.

JUSTICE JACKSON then builds from her faulty premise to call for action, arguing that courts should defer to “experts” and allow institutions to discriminate on the basis of race. Make no mistake: Her dissent is not a vanguard of the innnocent and helpless. It is instead a call to empower privileged elites, who will “tell us [what] is required to level the playing field” among castes and classifications that they alone can divine. … Then, after siloing us all into racial castes and pitting those castes against each other, the dissent somehow believes that we will be able—at some undefined point—to “march forward together” into some utopian vision. … Social movements that invoke these sorts of rallying cries, historically, have ended disastrously.
Unsurprisingly, this tried-and-failed system defies both law and reason.

…

While articulating her black and white world (literally), JUSTICE JACKSON ignores the experiences of other immigrant groups (like Asians, see supra, at 43–44) and white communities that have faced historic barriers. Though JUSTICE JACKSON seems to think that her race-based theory can somehow benefit everyone, it is an immutable fact that “every time the government uses racial criteria to ‘bring the races together,’ someone gets excluded, and the person excluded suffers an injury solely because of his or her race.” Parents Involved, 551 U. S., at 759 (THOMAS, J., concurring) (citation omitted). Indeed, JUSTICE JACKSON seems to have no response—no explanation at all—for the people who will shoulder that burden. How, for example, would JUSTICE JACKSON explain the need for race-based preferences to the Chinese student who has worked hard his whole life, only to be denied college admission in part because of his skin color? If such a burden would seem difficult to impose on a bright-eyed young person, that’s because it should be. History has taught us to abhor theories that call for elites to pick racial winners and losers in the name of sociological experimentation.

Nor is it clear what another few generations of race-conscious college admissions may be expected to accomplish. Even today, affirmative action programs that offer an admissions boost to black and Hispanic students discriminate against those who identify themselves as members of other races that do not receive such preferential treatment. Must others in the future make sacrifices to re-level the playing field for this new phase of racial subordination? And then, out of whose lives should the debt owed to those further victims be repaid? This vision of meeting social racism with government-imposed racism is thus self-defeating, resulting in a never-ending cycle of victimization. There is no reason to continue down that path. In the wake of the Civil War, the Framers of the Fourteenth Amendment charted a way out: a colorblind Constitution that requires the government to, at long last, put aside its citizens’ skin color and focus on their individual achievements.

The cases are Students for Fair Admissions v. Presidents and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina, Nos. 20-1199 and 21-707 in the Supreme Court of the United States.

Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the new biography, Rhoda: ‘Comrade Kadalie, You Are Out of Order’. He is also the author of the recent e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.