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There’s a glaring flaw in the Supreme Court lawsuits attacking affirmative action.
Justice Ketanji Brown Jackson was hearing only the third case of her career as a Supreme Court justice when she went after one of her conservative colleagues’ most sacred cows: the idea that the Constitution requires all US laws to be colorblind.
The Court’s right flank — now in the majority — has long argued that US laws cannot draw distinctions on the basis of race. As Chief Justice John Roberts argued in Parents Involved v. Seattle School District (2007), a case about whether public school districts may take voluntary steps to racially integrate its schools, “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
But, as Jackson pointed out earlier this month during oral arguments in Merrill v. Milligan, an important case about racial gerrymandering, Roberts’s colorblind narrative is at odds with the Constitution’s history.
Roberts and his ideological allies derive the colorblindness principle from the 14th Amendment’s guarantee that all individuals will receive “the equal protection of the laws.” But Jackson explained that the framers of this amendment did not strive for colorblindness. Instead, they were “trying to ensure that people who had been discriminated against” — that is, formerly enslaved Black people — “were actually brought equal to everyone else in the society.”
And Jackson brought receipts. Among other things, she cited the Civil Rights Act of 1866, a law enacted by the very same Congress that wrote the 14th Amendment, which provides that all Americans shall have the same contracting and property rights as “white citizens,” and that any non-white person convicted of a crime shall be punished the same way as “white persons.”
The Congress that wrote the 14th Amendment, in other words, rejected the “colorblind” theory, and instead wrote a landmark civil rights statute that explicitly requires the government to consider race when deciding whether a non-white individual’s rights were fully respected. And the Civil Rights Act of 1866 is only one of many such laws enacted by Reconstruction-era lawmakers.
Now, the Supreme Court is about to decide whether Roberts or Jackson is correct about the Constitution and “colorblindness.” Given that Republicans appointed two-thirds of the justices, it would be shocking if a majority of the justices do not side with Roberts — even if Jackson is correct about how the Constitution was originally understood.
But, lest there be any doubt, the overwhelming weight of historical evidence suggests that Jackson is correct.
This debate will be on full display in two cases the Supreme Court will hear at the end of October. The plaintiff in Students for Fair Admissions v. President & Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina asks the Court to overrule nearly a half-century worth of Supreme Court decisions holding that universities may, under limited circumstances, have affirmative action programs that consider race in student admissions.
Specifically, Students for Fair Admissions — which is led by Ed Blum, a white man who is a perennial opponent of the Voting Rights Act and other efforts to correct America’s legacy of race discrimination — seeks to banish affirmative action from university admissions.
Because Republican appointees control two-thirds of the seats on the Supreme Court, virtually no one expects the Court’s pro-affirmative action precedents to survive. And yet, to reach that decision, many of the Court’s Republican appointees would need to abandon another principle that they claim to hold dear: originalism.
Many of the Court’s most conservative members claim to believe that the only legitimate way to interpret the Constitution is to read its words as they were understood when they were written or ratified. As Justice Clarence Thomas said at a 2019 conference at Yale Law School, reading the Constitution any other way “usurps power from the people” because it gives too much power to judges.
And yet, neither Thomas, who may be the Court’s most outspoken opponent of affirmative action, nor any other justice who identifies as an originalist, has ever offered a substantial originalist defense of the colorblind thesis that racial preferences are always impermissible. Conservative originalist scholars themselves recognize this: As University of San Diego law professor Michael Rappaport wrote in 2013, “Justice Thomas, like Justice Scalia, has not made a serious effort to show that the colorblindness approach is consistent with the original meaning.”
I want to be clear that the full story of how the generation that framed the 14th Amendment understood racial equality is far more nuanced than “they thought affirmative action was fine.” Many of their views on questions of race — and especially on public school segregation — are so wildly out of step with modern values that no justice embraces those views. And some prominent conservative originalists have poked holes in some of the originalist evidence supporting affirmative action.
But these same conservatives have barely even attempted to show that the Constitution, as originally understood, forbids affirmative action. In a world where Supreme Court justices decide cases based on their previously stated views about how the Constitution must be interpreted, the lawsuits challenging affirmative action should be doomed.
The originalist argument that the Constitution permits affirmative action programs — and does not mandate colorblindness — has been around for a very long time.
In Regents of the University of California v. Bakke (1978), a majority of the Supreme Court ruled that affirmative action is permitted in some limited circumstances. Justice Thurgood Marshall wrote a separate opinion that would have given universities more leeway to consider race in admissions, and he supported that argument with historical evidence much like the civil rights law Justice Jackson cited.
“The Congress that passed the Fourteenth Amendment,” Marshall wrote, “is the same Congress that passed the 1866 Freedmen’s Bureau Act, an Act that provided many of its benefits only to Negroes.”
Seven years later, in 1985, civil rights lawyer and future law professor Eric Schnapper published a seminal paper arguing that the 14th Amendment was originally understood to permit affirmative action. “From the closing days of the Civil War until the end of civilian Reconstruction some five years later,” according to Schnapper, “Congress adopted a series of social welfare programs whose benefits were expressly limited to blacks.” These race-conscious programs, moreover, “were supported by the same legislators who favored the constitutional guarantee of equal protection.”
In total, Schnapper documented “eight Reconstruction measures establishing programs limited, in varying degrees, to blacks.” They include the Freedmen’s Bureau Act invoked by Justice Marshall, as well as less significant legislation providing targeted benefits to certain groups of African Americans. Often, this legislation was written in explicitly racial terms that leave no doubt that Congress intended to provide benefits exclusively to members of a disadvantaged race.
One such law, for example, appropriated $15,000 “for the relief of freedmen or destitute colored people in the District of Columbia.” Another provided safeguards specifically to Black veterans of the Union army.
The Reconstruction-era federal government was especially active in providing educational benefits specifically to Black people. As Schnapper notes, “the Freedmen’s Bureau educated approximately 100,000 students, nearly all of them black.” Howard University, the elite, historically Black school in Washington, DC, was founded after it received land and financial assistance from the Freedmen’s Bureau, as were about a dozen other colleges and universities formed to provide education to Black students.
All of this is significant evidence that the 14th Amendment, at the time of its drafting and ratification, was understood to permit the government to enact race-conscious programs intended to benefit a disadvantaged racial group.
The plaintiffs’ briefs in the Harvard and UNC cases read like the sort of documents a lawyer might file if they are so assured of victory that it’s not worth the effort to support their legal arguments with actual evidence.
Their opening brief to the justices devotes only a single paragraph to the argument that affirmative action has “no support in the Fourteenth Amendment’s ‘historical meaning.’” And the only historical evidence they provide for this claim is a single quote from a single senator, Sen. Daniel Pratt, who said in 1874 that “free government demands the abolition of all distinctions founded on color and race.”
The 14th Amendment was proposed by Congress in 1866 and ratified by the states in 1868. And Pratt, who served only a single term in the Senate from 1869 to 1875, wasn’t even a member of Congress when the amendment was debated.
The Harvard and UNC plaintiff also filed a second brief in the Harvard case, which replied to Harvard’s arguments for affirmative action. And that reply brief does provide some additional historical evidence for the colorblind position. Specifically, it quotes a single member of the Pennsylvania state legislature, who said in 1867 that “justice” should be “blind.” And it also quotes a speech by Rep. Thaddeus Stevens saying that the 14th Amendment would ensure that “the law which operates upon one man shall operate equally upon all.” (The Harvard reply brief also claims, falsely, that the Civil Rights Act of 1866 “imposed strict colorblindness.”)
The first of these briefs is signed by nine different attorneys, three of whom clerked for a Supreme Court justice, and the reply brief is signed by eight of these nine lawyers. The fact that this team of elite litigators presented such a thin originalist argument, despite having months to prepare one, is strong evidence that there is no good originalist argument against affirmative action.
Former Attorney General Edwin Meese also filed an amicus brief making a longer originalist case, but his primary argument rests on arguably colorblind language that was part of an early draft of the civil rights law — and that, as Meese admits, “was stricken from the 1866 act.”
And then there’s Rappaport’s 2013 essay, Originalism and the Colorblind Constitution. That essay seems to have been written because, in the then-35 years since Bakke deemed affirmative action legal, none of the Court’s self-avowed originalists had “made any real effort to justify” their opposing view “based on the Constitution’s original meaning.”
Rappaport’s affirmative case for a colorblind Constitution is difficult to summarize, but it boils down to this: Two other scholars, John Harrison and Melissa Saunders, both published papers arguing that the 14th Amendment’s “equality component” was originally understood in a manner that is vastly different from the way the Supreme Court currently reads it. Rappaport argues that either Harrison’s or Saunders’s theory “can be read to support a colorblindness approach.”
So, to be clear, the originalist case against affirmative action appears to consist of three quotes from 19th-century lawmakers — one of whom played no role in the creation of the 14th Amendment and another who played only a very limited role. It also includes proposed statutory language that never became law, and one scholar’s assertion that the iconoclastic work of two other scholars “can” be read to support colorblindness.
I should note as well that all of these sources — the Supreme Court briefs and Rappaport’s essay — also make a negative case against Marshall’s and Schnapper’s evidence. That is, they also accuse the pro-affirmative action side of overreading some of the historical record.
Rappaport, Meese, and the anti-affirmation action litigation team all argue, for example, that the fact that Congress created race-conscious federal programs does not mean that a state government (or a state university) may do so. The 14th Amendment, after all, provides that “no state” may deny anyone the “equal protection of the laws.” So, in the 1860s, federal lawmakers may have believed that they have more authority to enact race-conscious policies than their counterparts in state legislatures.
That’s a plausible argument, although not one that provides any affirmative evidence that the 14th Amendment was originally understood to mandate colorblindness.
Additionally, the conservative sources argue that at least some of the Reconstruction-era statutes creating race-conscious programs should not be read that way. Meese, for example, argues that an 1866 law providing relief to poor Black women and children should not be read as a race-conscious statute because the law actually provided a grant to a private organization. “Because thousands of private organizations receive federal appropriations every year,” Meese claims, “it would make little sense to use this appropriation as evidence that the Reconstruction-era Congress believed that the Fourteenth Amendment allowed race-specific benefit conferral.”
The name of the private organization that Congress provided funding to in 1866, by the way, was the “National Association for the Relief of Destitute Colored Women and Children.”
Had the Harvard and UNC plaintiffs wanted to do so, they could have cited many statements from Reconstruction-era figures who embraced the colorblindness theory — including the president of the United States.
President Andrew Johnson twice vetoed legislation extending the life of the Freedmen’s Bureau. In his first veto message, Johnson claimed that no “good reason” can be offered for a federal agency “founded for one class or color of our people more than another.”
He also vetoed the Civil Rights Act of 1866, complaining that it would “establish for the security of the colored race safeguards which go infinitely beyond any that the General Government has ever provided for the white race.” And Johnson had allies in Congress who made similar statements supporting the colorblindness theory.
Yet, while proponents of colorblindness were well-represented in the debates surrounding the 14th Amendment and related legislation, they ultimately lost the argument. Congress overrode Johnson’s veto of the civil rights law. And, after Johnson’s first veto of the Freedmen’s Bureau bill, Congress modified the bill in ways that, if anything, made it more explicitly race-conscious.
Though Johnson vetoed this bill a second time, Congress overrode his second veto — by a vote of 104 to 33 in the House and 33 to 12 in the Senate.
Cases like Harvard and UNC, in other words, seek to relitigate a fight that supporters of the colorblind theory lost in the 1860s. A fight they lost by veto-proof margins.
Lest there be any doubt, the original history of the 14th Amendment reveals at least as many pitfalls for racial liberals as it does for conservatives. Perhaps the most glaring is the framing generation’s understanding of school segregation.
As originalist Justice Amy Coney Barrett admitted in an article she co-authored shortly before she became a judge, “adherence to originalism arguably requires … the reversal of Brown v. Board of Education,” the landmark Supreme Court decision declaring that racially segregated public schools are unconstitutional. Indeed, the evidence that Civil War and Reconstruction-era Americans believed that segregated schools should be allowed is quite substantial.
In 1862, four years before the 14th Amendment was drafted, Congress enacted a law “initiating a system of education of colored children” in the District of Columbia. Initially, these schools were funded through a tax specifically on property owned by people of color, although that tax was abolished in 1864. Still, federal law in 1864 provided that white children in DC shall be educated “at any one of the schools provided for the education of white children,” and “any colored resident shall have the same rights with respect to colored schools.”
This provision remained in effect long after the 14th Amendment was ratified, and the same Congress that drafted that amendment appropriated funding to DC’s segregated school system in 1866. The 1866 Congress also did so against a legal backdrop in the states that strongly supported segregated schools. According to legal historian Michael Klarman, 24 of the 37 states in the union during the congressional debates over the 14th Amendment “either required or permitted racially segregated schools.”
All of this is powerful evidence that the 14th Amendment, as originally understood, permitted the very kind of school segregation declared unconstitutional in Brown. (There is one well-known paper, by former federal judge Michael McConnell, which argues that Brown is consistent with originalism. McConnell’s argument is sufficiently convoluted that I won’t even attempt to summarize it — but if you are interested in his paper, you can read it here.)
An originalist approach to racial equality, then, would most likely lead to results that few Americans would find acceptable. And yet, some members of the Court’s right flank have claimed that judges nevertheless must adhere to an originalist approach, even when the results are upsetting.
In a 2019 book, for example, Justice Neil Gorsuch echoed Thomas’s argument that non-originalist interpretation gives judges too much discretion to impose their preferences on the nation. “Our separation of powers makes clear that a judge’s task is not to pursue his own policy vision for the country,” Gorsuch wrote, before arguing that “respect for the separation of powers implies originalism in the application of the Constitution.”
Originalism supposedly serves this goal of preventing judges from substituting their own policy preferences for the law by insisting that the Constitution has one fixed meaning, determined at the time that a particular provision is drafted or ratified, and that this fixed meaning can be discovered by examining objective sources such as the words of the Constitution, the way they were originally understood, and the provision’s “historical context.”
As his model, Gorsuch named Justice Scalia, whom he praised for his supposed ability to set aside his personal preferences in favor of objective evidence. “Bring [Scalia] evidence about what the written words on the pages of the law books mean — evidence from the law’s text, structure, and history,” Gorsuch wrote, “and you could win his vote.”
If Gorsuch is serious about living up to this (rather idealized) image of his idol, then he is in a terrible bind when the Court takes up affirmative action later this month. Only one side in the Harvard and UNC cases has made a meaningful attempt to argue that the words of the 14th Amendment were originally understood to support their position. For 44 years since Justice Marshall’s opinion in Bakke and 37 years since Schnapper laid out the originalist case for affirmative action at length, no originalist justice has even attempted to rebut that case.
And, if the thin evidence offered by the Harvard and UNC plaintiff’s briefs is any sign, there’s a very good reason why highly intelligent originalists like Scalia, Thomas, and Gorsuch have never attempted an originalist case against affirmative action. It’s because there isn’t a good one to make.
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