Justice Ketanji Brown Jackson Has the Wrong Job

“Deeming race irrelevant in law does not make it so in life.” 

So wrote Justice Ketanji Brown Jackson in her dissent to Chief Justice John Roberts’ opinion in Students for Fair Admissions v. Harvard, the affirmative action case in which the Supreme Court held that our nation’s constitutional prohibition of racial discrimination constitutionally prohibits racial discrimination. 

Justice Jackson is not exactly wrong—it is simply that she is answering a question that nobody has asked her in any official capacity. What was at question in SFFA was not whether racial preference in admissions at elite universities is a necessary precondition for racial justice in these United States—though perhaps Ivy League practice is not the top priority of black families in, say, Chicago, where the Democrats will hold their 2024 national convention and where only 6 in 100 black students can do math at the appropriate grade level. Rather, as the court’s majority opinion put it, “The question presented is whether the admissions systems used by Harvard College and UNC are lawful under the Equal Protection Clause of the Fourteenth Amendment.” The court rightly held that these practices are unlawful. 

SFFA, which represented applicants of Asian background who were discriminated against by Harvard on racial grounds, argued that “race-based admissions programs violate, respectively, Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment,” as Roberts put it. The majority opinion focuses almost exclusively on the Equal Protection Clause, while the concurring opinion written by Justice Neil Gorsuch and cosigned by Justice Clarence Thomas emphasizes the text of the Civil Rights Act, which deserves attention: “Without question, Congress in 1964 could have taken the law in various directions. But to safeguard the civil rights of all Americans, Congress chose a simple and profound rule. One holding that a recipient of federal funds may never discriminate based on race, color, or national origin—period. … The words of the Civil Rights Act of 1964 are not like mood rings; they do not change their message from one moment to the next.” The dissenters in the case make a mockery of the law, suggesting that “discriminate” doesn’t mean what it plainly means (“To ‘discriminate’ against a person meant in 1964 what it means today,” the Gorsuch opinion answers) or that a little bit of discrimination here and there is acceptable, in spite of what the law says, if it goes the right way—meaning the way progressives want that racial discrimination to go.  

For Justice Jackson and like-minded judicial activists, the inconvenient thing about the Civil Rights Act of 1964 is that it says what it says, and, as the Bostock opinion put it, “only the words on the page constitute the law adopted by Congress and approved by the President.” Justice Jackson does not have the law on her side. So, instead, she offers political rhetoric. 

No one benefits from ignorance. Although formal race-linked 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.

It isn’t even very good political rhetoric. 

Justice Jackson’s most obviously misplaced claim is that “deeming race irrelevant in law does not make it so in life.” The Supreme Court’s only purpose is to rule on what is necessary or forbidden “in law,” and its purpose most certainly is not to try to correct every injustice “in life.” The “in life” part is Congress’ business, the business of the state legislatures, the business of city councils, the business of other legislative bodies. The law says what the law says, and it is legislators who write it, not judges. If Justice Jackson wishes the law said something else, then she should resign her seat—she should resign her seat in any case if she cannot, for reasons of private conscience, faithfully execute the duties of her office—and then run for Congress. Perhaps Justice Jackson could try to knock off Rep. Maria Elvira Salazar in her native Miami. That would be something to watch: An African American Democratic woman who went to graduate school at Harvard running a campaign against a Cuban American Republican woman who went to graduate school at Harvard—the proletariat will tingle with anticipation, I am sure. 

“No one benefits from ignorance,” Justice Jackson insists—as though she were arguing with someone who took the opposite point of view. It is not ignorance that is at issue but viciousness—that Harvard has been subjecting high-achieving Asian American applicants (and other applicants from disfavored racial groups) to discriminatory measures similar to those which were used for generations to keep down the number of high-achieving Jews in the Ivy League. Intellectual currents come and go: It was not very long ago, in historical terms, that T.S. Eliot—who once held a Harvard professorship named for his relative, Harvard professor Charles Eliot Norton; another relative was president of Harvard—argued that what was necessary for educational excellence was not “diversity” but “unity of religious background.” He added: “Reasons of race and religion combine to make any large number of free-thinking Jews undesirable.” 

Harvard was governed by one set of prejudices a century ago; surely it is at least conceivable that some of the prejudices by which Harvard is governed today may be lamented as similarly immoral in the not-very-distant future. 

Against those prejudices, we have a simple rule: We do not permit racial discrimination in college admissions, business hiring, and the like. 

It is a good rule. And it is, as the Supreme Court has finally admitted, also the law. 

Perhaps it will seem strange to us, someday, that self-described liberals and progressives such as Justice Jackson so reliably rule in favor of powerful institutions such as Harvard and in favor of powerful political constituencies—please let us dispense with the fanciful notion that what happens at Harvard has anything at all to do with the situation of the poor and genuinely marginalized black communities that exist in this imperfect nation of ours—while ruling against the poor, the powerless, children of immigrant families facing invidious racial discrimination from the swells at Harvard, etc. If that does seem strange to you, allow me to recommend what may be the most valuable political book of the past several years. 

I do not think that Judge Amul Thapar of the 6th Circuit Court of Appeals would be quick to describe his recent book, The People’s Justice: Clarence Thomas and the Constitutional Stories that Define Him, as a political book, but that is what it is, in addition to being an excellent and accessible book about the legal issues at question in a dozen major Supreme Court cases across Justice Thomas’ remarkable career. (I am not sure that I have anything of substance to disclose here, but, in the interest of full disclosure: I have met Justice Thomas socially on a few occasions and admire him a great deal. I’d take seven more justices just like him and leave one spot for Randy Barnett.) It is a political book not in the sense that Justice Thomas is, or understands himself to be, a political actor—if anything, he has been a more scrupulous textualist than even the canonized patron saint of judicial probity, Antonin Scalia, notably on the matter of marijuana prohibition and Congress’ power over interstate commerce—but in the sense that the disputes over the Supreme Court, and the political attempts to operate the court as if by remote control, making of it a policymaking super-legislature for the satisfaction of progressive priorities unsatisfied by democratic means, illuminates our politics in ways that election results and opinion polls cannot. 

Take, for example, the Supreme Court’s lawless and immoral rubber-stamping of corporate theft with the help of municipal accomplices in Kelo, the infamous eminent-domain decision. In the Kelo matter, authorities acting for the City of New London, Connecticut, stole a tract of real estate from blue-collar residents of that town in order to give the property to Pfizer, in the hopes that Pfizer would use the land to do something that would improve the local economy in New London, which had long languished under the incompetent and corrupt maladministration that defines so much of public life in Connecticut. (As Thapar notes, two of the key figures in the Kelo case, Gov. John Rowland and his chief of staff, who had arranged to reserve for himself a condominium with a water view in the development that would be put up after the inconvenient poor people had been cleared out, ended up going to prison on related federal corruption charges.) Who was on the side of the blue-collar community whose only crime was inhabiting land with a nice view of the water? Justice Thomas was, because the law was. And who was on the side of Pfizer and the cutpurses in New London? Ruth Bader Ginsburg, of course. 

That’s the theme of the book, really. Our Constitution is a good one, and our laws are mostly pretty good, too. As a result, the textualist, Justice Thomas, is on the side of the low-income people of New London; in other cases considered in the book, we find Thomas defending the 43-year-old mother trying to go to law school in Michigan, the poor families Cleveland desperately trying to get their children out of dangerous and dysfunctional schools, the medical marijuana patient in desperate straits. And who was against them? Ask the plaintiffs in the marijuana case. 

What shocked Angel and Diane more than the vote tally was who voted against them—all the justices people had told them were liberal. Why wouldn’t these justices be sympathetic to their plight? Weren’t those the justices who were supposed to favor the “little guy”? Why would Justice Ruth Bader Ginsburg vote against them? At the very least, they had thought they could count on her.

Equally shocking to Angel and Diane, but not to [lawyers Robert Raich and Randy Barnett], were the justices who voted with them. Justice Scalia was not with them, but Justice Thomas was. Justice O’Connor and Chief Justice Rehnquist also sided with Angel and Diane in a separate opinion.

Why was Justice Thomas, who does not strike anybody with eyes and ears as reflexively pro-marijuana, on the side of the marijuana users? Because he believes that Congress’ power over interstate commerce is power over interstate commerce, and that it is not power over that which is neither interstate nor commerce.

Justice Thomas agreed with Barnett’s argument. There was simply no interstate commerce here. Angel and Diane’s privately grown marijuana never crossed state lines—what was “interstate” about that? As for “commerce,” Justice Thomas pointed out that Angel and Diane did not purchase the marijuana. . . . Since Angel’s and Diane’s conduct wasn’t truly commerce according to the original meaning of the Constitution, it was beyond the power of Congress to regulate their conduct. It was that simple. After all, the federal government was established as a government of “limited and enumerated powers.”

Our progressive friends often purport to speak in behalf of “the people”—or, if you prefer, “the People.” But their attitude toward “the people” is approximately that of a rancher toward his livestock: Yes, they must be fed and cared for, but in a custodial and proprietary way, in order to serve interests that are, ultimately, not the herd’s own: Sometimes the stock are to be shorn, and sometimes they are to be slaughtered—if that is what “progress” demands. “Progress,” too, is a jealous god. 

I recommend to you Thapar’s very interesting and useful book. The only criticism I would offer is that in an overly solicitous effort at being what invariably is described as “accessible,” Thapar occasionally produces prose in the style of a very smart man writing for people who are less smart, but perhaps not so much less as he thinks they are, with an insipidizing effect. But that is a small complaint. The book is not short, but it can be read in a sitting—if you happen to have booked a flight on British Airways this summer, put this one at the top of the stack of three or four books you’ll get through before you reach your destination. 

I learned about The People’s Justice: Clarence Thomas and the Constitutional Stories that Define Him the same way I get 99 and 44/100 percent of my legal news, via the Advisory Opinions podcast. If you have not listened to Sarah Isgur’s excellent interview with Amul Thapar, do yourself a favor.

Words About Words

Allow me to sing some praises. Begin with Luke Winkie, writing in Slate, who is not a fan of Pat Sajak but is a fan of using the word career correctly rather than substituting careen, which means something else entirely. 

Yes, perhaps the reason Sajak has maintained such a curdled persona is his long-standing status as one of Hollywood’s most public Republicans—and, like many men in their 70s, he’s careered into more whackadoodle territory during the twilight of his life. Sajak’s Twitter feed is a trove of your typical conservative death-cult stuff—most of the highlights are from around 2014 or so, and all of them provide an eerily prescient snapshot of where political discourse was headed. (A choice quote from the Sajak files: “I now believe global warming alarmists are unpatriotic racists knowingly misleading for their own ends.” Not quite sure what that means!) Sajak also flirted with some early anti-woke ideation, once remarking that the next big “cause du jour” will be “Plants Rights”—a joke that mirrors the exact sort of fraught boomer memes that bloomed out of the fetid Facebook swamp and are currently destabilizing our democracy.

Elsewhere in nicely turned phrases, read J. Michael Luttig in the New York Times, who observes: “As only the Republicans can do, they are already turning this ignominious moment into an even more ignominious moment.” Ignominious is a much-abused word—but that’s how you use it. About his headline writer, who insists, “It’s Not Too Late for the Republican Party,” I would suggest therapy, prayer, and a copy of the complete works of Michel Houellebecq as an antidote to his obviously delusional optimism. 

Now, some of you are thinking—maybe already emailing!—that insipidize is not an English word. I do not think you will find it in any dictionary, but you will find it in IBM Jargon and General Computing Dictionary, Tenth Edition. Meaning: “To dull. Usage (mostly in marketing departments): “Our claims have all been insipidized by Legal.” 

Ain’t that always the way? 

We have a presidential election already under way—insipidize is a word we need.  

Also:

Headline: “How a Nonhuman Author Could Write a Bestseller.”

Well. Have you read Marley and Me? I read John Grogan’s work in the Philadelphia Inquirer for years and never once suspected that he was an actual human being. 

In Further Wordiness …

Looking for a different grave, I came across that of Vladimir Nabokov in Montreux. Nabokov lived for 17 years in the hotel I am staying at here—which reminds me that I write the wrong kind of books. I should be writing about teenage wizards or amorous vampires or something like that, and putting around in my pristinely restored Riva Aquarama. But I should write something long about Nabokov one of these days, too. Lolita is a misunderstood book—Nabokov himself lamented that readers picked it up expecting something erotic or pornographic and then put it down, disappointed. It is a different kind of book from that.

In Other News 

Ron DeSantis crypto-factotum Pedro Gonzalez turns out to be a Jew-hating weirdo with a sideline in traditional racism. Well, raise my rent. Pillars of intellectual fortitude of the sort affiliated with the Claremont Institute have rallied to his defense, of course. That is what so-called conservatives do, now: defend the indefensible, as long as the New York Times—Democrats, Silicon Valley, the Jews, whoever—is on the other side. 

This has been treated as something of a news story. It isn’t news. 

These people have been either forthrightly antisemitic or playing footsie with antisemitism since at least 2015. Gonzalez, presumably a Gonzalez of the Mayflower Gonzalezes, writes from time to time of the “genocide” directed at “America’s European-descended whites.” About Jews, the group of people who have literally been subjected to an attempted genocide in recent history, he says that “as a group I see them as problematic.” 

Problematic is a funny, cowardly word. Growing up in West Texas in the 1980s, I knew a lot of the actual knuckleheads that Gonzalez et al., are trying to homogenize for popular consumption, and I am very sure that in the utopia those atavistic creatures envision for “America’s European-descended whites,” everybody named “Pedro” is going to be chucked over the wall to the southerly side of the border. That’s what they understand problematic to mean.

Pedro Gonzalez does not matter very much in the world, but Ron DeSantis does, and it is an open question whether he has the judgment and the character to be president of these United States. I myself am not at all convinced that he does. He strikes me as a man who seems to desire power intensely enough that he should not have it. But I may be wrong about him.  What does Gov. DeSantis think about all this? I would like to know. 

No, a politician is not responsible for every creep and misfit who supports him, but DeSantis is very solicitous of the Very Online Right—and it is not only his enemies that a man may be measured by.  

What say you, Gov. DeSantis? Plain, declarative English sentences, three or four of them, will do. 

Economics for English Majors

I am afraid that I don’t have much to say on this this week. But I will suggest some reading:

Wall Street Journal: “Impeachment Investigators Look Into Texas Attorney General’s Real-Estate Spree.”

E. J. Dionne continues to use the phrase “trickle-down economics” as though these words described an actual school of thought rather than a partisan caricature. As economic analysis, that is incompetent; as journalism, it is dishonest. He should knock it off. 

New York Times: “No Job, No Marriage, No Kid: China’s Workers and the Curse of 35.”

Elsewhere

You can buy my most recent book, Big White Ghetto, which is not about teen-aged wizards or frisky vampires, here. 

You can buy my other books here. 

You can see my New York Post columns here.

Please subscribe to the Dispatch if you haven’t. 

In Closing

Immigrants such as my friend Charles C.W. Cooke tend to see America with something like a convert’s zeal; Charlie writes (movingly) as a man “in love with the United States.” For my part, if I were on Facebook, my relationship status with the United States would read, “It’s complicated.” I am in Switzerland and Italy for a bit, and it is easy to think poorly of the United States when one’s immediate points of reference are some of the most beautiful places in the world. Though I am more of a Europhile (and more friendly toward the European Union in particular) than most of my fellow conservatives, I try to make a point of reminding readers—and myself!—that what tourists see of Europe is, usually, the best of Europe. It doesn’t all look like Lake Como or Funky Claude’s. That being written, even Kyiv—a capital at war—seems more orderly and more safe than, say, St. Louis. (By my admittedly rough English-major estimate, Kyiv today is literally safer than St. Louis in terms of the likelihood of dying a violent death.) The differences across the Atlantic are pronounced: The United States can’t make a train run on time or keep a public space halfway spruce, but there is hardly a 21st century technology company worth knowing about that came up in the European Union and stayed there. (Internet regulators, the European Union has oodles of; internet firms, not so much.) It is a pickle. 

That being said: If I had the late Tina Turner’s royalty income, I might very well do what she did and stay in Switzerland, where there is good public order and no capital gains tax to speak of. 

As I said, it’s complicated: I still love my country, but I think we should start seeing other people.