Supreme Court Justice Ketanji Brown Jackson displayed little genuine interest in deliberating the constitutionality of affirmative action in her dissent today. Despite previous claims of her “progressive originalism,” such a stance appears nonexistent.
Instead, Jackson presented an extensive, emotionally charged leftist commentary, advocating for the consideration of race in this particular context. Her endorsement of identitarianism and defense of discrimination against Asian Americans is quite striking. Jackson believes publicly funded institutions should evaluate Americans based on their inherent characteristics and historical transgressions rather than their individual achievements and conduct. It’s a simplistic viewpoint.
In a sarcastic tone, Jackson ironically remarked, “With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat.” While achieving colorblindness may be commendable, the Supreme Court did not establish “colorblindness for all.” Such an outcome is beyond its reach.
Instead, the Court reaffirmed colorblindness as a legal principle. In the United States, the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964 state that no person should face exclusion, denial of benefits, or discrimination based on their race, color, or national origin in any program or activity that receives federal financial assistance. The Civil Rights Act does not provide exceptions for disadvantaged groups, personal experiences, or race. In fact, it is quite the opposite. Under Jackson’s reasoning, any institution could adopt any racial preferences as long as they could present an emotional argument in support. However, it must be acknowledged that there is little logical basis in progressive Calvinlaw.
Furthermore, Jackson is surely aware that the Supreme Court exists to employ “legal fiat” in upholding the Constitution. Every opinion in which Jackson has been part of the majority has utilized this approach. She argues that government-funded policies that discriminate against white and Asian students—regardless of their hard work or background—are legal and necessary. Yet, she fails to acknowledge that for every instance of race-based “affirmative” admission to a college, there is a corresponding instance of race-based discrimination.
Rather than grappling with this reality, Jackson fabricates two hypothetical students—John and James, one white and one black. She never considers the possibility that a white student from a rural area in West Virginia may have overcome greater societal obstacles than a black student from a middle-class neighborhood in Los Angeles. In her worldview, a black student cannot overcome barriers without lowering standards. This perspective is highly corrosive and demeaning while also being unrelated to the law.
Additionally, it’s worth noting that the effectiveness of affirmative action in aiding minority students is a highly debatable matter.
If we follow Jackson’s dissent, the hypothetical couple should consist of James and the son of immigrants from India or Vietnam. Many Asians immigrated to the United States from severe poverty and oppressive caste systems. Like immigrants before them, many of these individuals have demonstrated that, despite our well-documented imperfections, the United States fundamentally operates as a meritocracy. This inconvenient truth challenges the left’s narrative.
Jackson is entitled to argue that our history has deprived black Americans of their agency. Thus the Fourteenth Amendment should be reimagined. She is free to believe that Asian Americans, whites, and perhaps others do not deserve equal protection under the law.
Perhaps Justice Thomas summed it up best. Thomas wrote that Jackson’s race-infused worldview falls flat on every level. A person’s unique experiences, challenges, and accomplishments make him or her who he or she is. It’s not the barriers they face that matter, but how they choose to overcome them. And “their race is not to blame for everything—good or bad—that happens in their lives.”