Justice Ketanji Brown Jackson Has the Wrong Job

United States Supreme Court Justice Ketanji Brown Jackson on October 7, 2022 in Washington, DC. (Photo by Alex Wong/Getty Images)

“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.  

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