Supreme Court Justice Ketanji Brown Jackson attends President Joe Bidens State of the Union address in the House Chamber of the U.S. Capitol on Tuesday, February 7, 2023.
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Supreme Court Justice Ketanji Brown Jackson excoriated her colleagues who voted to strike down race-conscious college admissions policies, accusing the majority of “turning back the clock” on affirmative action.
“With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat,” Jackson wrote in a thundering dissent to the major court ruling Thursday.
“But deeming race irrelevant in law does not make it so in life,” she wrote.
“History speaks. In some form, it can be heard forever. The race-based gaps that first developed centuries ago are echoes from the past that still exist today. By all accounts, they are still stark,” Jackson wrote.
Jackson, a nominee of President Joe Biden, is the high court’s newest justice and the first Black woman to sit on the bench.
Her dissent accused the six-member conservative majority of not only ignoring the nation’s long and continuing history of racial discrimination, but also stunting the progress that academic institutions have made to address those social ills.
“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,” Jackson wrote.
“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,” the justice wrote.
“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,” she warned.
The justice also argued that race-conscious college admissions policies benefit society in a multitude of ways, including strengthening the U.S. workforce and business leadership.
“A less diverse pipeline to these top jobs accumulates wealth and power unequally across racial lines, exacerbating racial disparities in a society that already dispenses prestige and privilege based on race,” Jackson wrote.
Thursday’s ruling dealt with two separate cases related to affirmative action policies at Harvard University and the University of North Carolina.
In the Harvard case, the vote on the decision was 6-2, as Jackson took no part in considering the case due to her membership on Harvard’s Board of Overseers. Jackson dissented in the UNC case, where the vote was 6-3.
Her polemical dissent followed another blistering rebuke from liberal Justice Sonia Sotomayor.
“The devastating impact of this decision cannot be overstated,” Sotomayor wrote. “The majority’s vision of race neutrality will entrench racial segregation in higher education because racial inequality will persist so long as it is ignored.”
Both dissents were joined by the Justice Elena Kagan, the court’s third liberal.
The majority held that the admissions programs of Harvard and UNC violate the equal protection clause of the 14th Amendment to the U.S. Constitution because they “unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points.” The clause enshrines that states must apply laws equally to their citizens.
Chief Justice John Roberts wrote for the majority that “We have never permitted admissions programs to work in that way, and we will not do so today.”
He noted, however, that universities can still consider race in a prospective student’s application in the context of a “discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.”
“In other words, the student must be treated based on his or her experiences as an individual — not on the basis of race,” Roberts wrote.
The liberals rejected the majority’s interpretation of the Constitution.
“It would be deeply unfortunate if the Equal Protection Clause actually demanded this perverse, ahistorical, and counterproductive outcome,” Jackson wrote. “To impose this result in that Clause’s name when it requires no such thing, and to thereby obstruct our collective progress toward the full realization of the Clause’s promise, is truly a tragedy for us all.”
Jackson also took aim at conservative Justice Clarence Thomas, the court’s second Black justice, who in a concurring opinion accused Jackson of believing that “almost all of life’s outcomes may be unhesitatingly ascribed to race.”
Thomas “ignites too many more straw men to list, or fully extinguish, here,” Jackson responded in a footnote of her dissent.