JURIST Guest Columnist Benjamin Davis of the University of Toledo College of Law examines the recent oral arguments in Schuette v. Coalition to Defend Affirmative Action …

From reading the transcript of the oral argument in the Schuette v. Coalition to Defend Affirmative Action, I was appalled at the level of the US Supreme Court’s questions on such a fundamental case. Let me go through some of the pitiful scenes.

During the appellant’s argument the question was raised about the decreases in the number of minorities at Michigan’s law school. The appellant’s response was that the numbers stayed the same the next year after Grutter which, given that Grutter was decided that June 23, 2003, it would seem evident that most of the entering class at either the Michigan undergrad or law school was locked in by the time that the decision was made and so the next year numbers would be essentially under the previous year’s affirmative action approach, was at best disingenuous. Then when the numbers for the later years were demonstrating declines, the point was that following the census in 2010, the numbers for minorities were modified due to people self-identifying as two or more categories as opposed to falling into one category. As Professor Meera Deo of Thomas Jefferson Law School has reminded me recently, race is a social construct and so quite normally, one might expect a followup question about the number of minorities that self-identify as a social construct as minorities having gone down and what that meaning would be. Nothing.

During the appellant’s argument, they hailed the Sander work on mismatch theory. If I hear one more person praise that work I think I will just lay down and die. I asked Sander at the AALS Annual Meeting in January 2013 about whether the minority students at the elite schools who are to be the so-called beneficiaries of being downgraded to a less elite school prefer getting the degree from the elite school or welcome the downgrade. He has no data on this focusing on what he thinks would be a better result for those minorities. Underlying this whole view is an almost antebellum and sinister undermining of minority agency. From the work of Professor Meera Deo cited in the Society of American Law Teachers amicus brief [PDF] it is patently clear that even if the environment is difficult at elite schools, persons who identify themselves as minorities understand the value of that degree and want to be at those elite schools. Put another way, assuming they had the choice of going to Michigan or “Podunk” when they were admitted, they went to Michigan even if (or especially because) it was tougher or (just as likely) the upside potential from such a degree due to the networks and resources was vastly higher than at “Podunk.” That rational approach of a minority is simply missed by the members of the court. That willingness of minorities to accept the challenge and desire to accept the challenge is pooh-poohed by a court more concerned with “what is good for them” it seems than in enhancing diversity or overcoming racial discrimination.

One of the further key points in the appellant’s argument is that the diversity rationale is the only rationale that can be used for affirmative action. It is not to be used (post-Grutter and post-Fisher) to remedy past discrimination. But, and maybe I am the only one living in America who raises this question, what about affirmative action being used to remedy current day discrimination? That the kind of brutally explicit bias is not so present (but you can watch on television or social media profoundly racist exchanges that harken back to antebellum times almost every night with the talking heads), but that the research has further confirmed that implicit bias and stereotype threat are prevalent and bedevil us seems to be too subtle for the court to grasp. What about the property tax based/reduced state funding schooling systems coupled with racial segregation in housing where the majority of black and Hispanic children are going to poor and essentially all minority schools with less resources while poor whites are more likely to be going to richer schools and getting the benefits of the better quality schools? That is the real world of America today and we countenance it in our system. That such a structure is in place is simply appalling. Yet, the thinking at the court did not seem to be able to reach those fundamental structural concerns.

Shall I go on? In the respondent’s argument, the respondent asserted the original meaning of the Fourteenth Amendment to Scalia, and in his inimitable style, he immediately said that the Supreme Court rejected those views in all the cases since. He pushed the lawyer to name a case. Maybe I am missing the point here, but I did think that Scalia was an originalist and would welcome someone speaking to the original intent of the Fourteenth Amendment. After all, in John O. McGinnis and Michael Rappaport’s new book entitled Originalism and the Good Constitution the authors “point out that Brown would probably not even have been necessary had the federal government effectively enforced the original meaning of the Fourteenth and Fifteenth amendments between the 1880s and 1950s.” The pedigree of those two as originalists is without question, and they are hailing the original intent that the BAMN respondent asserted. And Scalia, in one of those pirouettes when it comes to race that seems inevitable, jumps from his originalist vision to focus on all those decisions that were about “keeping barbarians at the gate,” the newly freed slaves and their descendants in the long darkness of segregation. Well, we can see if Justice Thomas will be able to warm up his originalist bona fides and side with the respondent’s position on the interpretation to properly be made to the Fourteenth Amendment. On the other hand, given these are issues that hit affirmative action, I fully expect that he will revert to his endemic concern with the slights he has experienced as opposed to the needs of racial justice. Lots of us who went to great schools do not have his hangups about having been there as an affirmative action person. After all, one might argue that Harvard Law School is the result of decades-old privilege built on the souls of the black slaves whom the Royal family sold in Antigua to finance the first gift to create the school. Those sugar cane stalks on the Harvard crest are not just there by happenstance.

Let me now turn to Alito. When informed that 90 percent of the black Michiganders voting decided to vote against the Proposition 2 [PDF], he blithely stated that “what is popular may not be what is beneficial.” Leaving to the side, as my colleague Professor Vinay Harpalani has noted, that the diversity rationale of Grutter and Fisher was the only valid rationale (benefit to whites of diverse campuses) the Supreme Court was recognizing, making benefit to blacks both central and or no moment was so very troubling. Even if one is the most ardent anti-affirmative action person, I hope that the emasculation of black agency in such a flippant statement by a justice that harkens back to an almost antebellum (or should I say ante-deluvian?) kind of disdain for what black people think. It would seem to me that if 90 percent of the black Michiganders voted against this so called beneficial law, they got what that law would portend and they are not buying that story. The fact that so many voted against it, to a simpleton like me, would carry more weight and warrant far more than a flippant comment said with dripping sarcasm or disdain. He shows the kind of ignorance that Judge Posner is regretting today in his decision on the Voter ID law of Indiana back in 2007.

On the other hand, when the point is raised that one of the key initial supporters of the Proposition 2 was supporting it as it would bring back segregation, the appellant’s argument that there are always a few bad apples was another amazing elision of any sense of the deadly animus in such a statement. And, of course, the lack of worry about how to think about implicit bias in this setting in all of the questions seems to demonstrate a profound difficulty for the members of the court to catch up with the social science research. That the court below found no racial animus is quite laughable but mainly points to what I would call the successful disguising of animus by the sophisticated persons who put this kind of law together. The supporters are writing to the court to make it burdensome for minorities but in a way that will pass muster with the Supreme Court.

Which of course gets us to Chief Justice Roberts and the need to “get past race.” I have been watching for nigh on five years a black president in the White House. For that entire period I have had white people, yes white people, say to me that they are ashamed of the white people who are all over America and very vocal in their hate of Obama. These white people do not mince words with me. They say it is not about his policies, it is about him being a black man in the White House. Yes, white people say this to me. If white people here in Toledo can see that and openly say that, then it sure seems to me that the levels of racial animosity that undergird the violence of the rhetoric on Obama is something that should sharpen the wits of our justices. I hope the Supreme Court does not continue to narrow its vision of itself as a jurisdiction to adjudicate by not seeing what ordinary Americans understand is going on in this country today, not just for Obama but for any manner to race a topic (poverty, voting rights, etc) so as to focus intense energy on dominating the less well off. The sad thing is that the old game of encouraging poor whites to at least take solace in their being white seems to be working with still some success as it did in the nineteenth century. Not as well as back then, but still being played by the rich under the game of divide and conquer. It is like we cannot get out of these ruts. We need to get out of our comfort zones and move toward our healing zones.

So after Fisher and Shelby County, I await a tone deaf Supreme Court gliding over the surface again. They will most likely try to stay out of the affirmative action box and move to find a question of what limiting principle and at what level up to a state constitutional referendum is it appropriate to have the concern about political burdens shifting the balance of government. It would seem to me that whatever the decisionmaking level, to the extent that level is stepping back from affirmative action as a policy it can be challenged. If it is the faculty, it can be challenged. If it is the Dean, it can be challenged. If it is the university leadership or regents, it can be challenged. If it is the governor and legislature in legislation, it can be challenged, and if it is by a majority in a statewide referendum to change the constitution it can be challenged. The argument at each level may be different but the doctrinal result across the levels should be the same, strict scrutiny and heavy burden to support the stepping back from even these modest efforts to make sure that our schools reflect our population whether in students, faculty, or in alumni. It is not to wrangle about words, but to confront oppression and strike it out root and branch.

A black person should have rights that the Supreme Court respects, to say what they think injures them, to say what they think is invidious to their and America’s progress, and to say that we are not duped by sophisticated machinations, and to say where we think we will be better off. And the Supreme Court should be able to actually hear those black persons, not through some kind of implicit negative filter of disdain, but with the open mind and heart of a person who has more than a passing in the car interest in the downtrodden.

Once when I was fly-fishing in Montana with former Justice Sandra Day O’Connor, I asked what her advice would be if she had a child in law school. She emphasized writing, but as to Supreme Court cases, she said they should look carefully at the equal opportunity jurisprudence of the court as that reveals much. I look at that emaciated Roberts Court equal opportunity jurisprudence and find the narrowness of the spirit of this Court simply appalling.

Fortunately, I work on the international plane, the plane of the International Convention on the Elimination of All Forms of Racial Discrimination, which the US has ratified and about which the periodic review is ongoing right now of the UN Committee on the Elimination of Racial Discrimination with the session next August, 2014, after Schuette comes out. Reading the spirit and letter of those treaty obligations, one sees how much greater we could be, but, alas, how narrowly tailored our vision of racial (and social) justice has become 50 years after the March on Washington.

Where are the great justices with vision that bestride the judicial power? Do they cabin their activism only to arbitration cases, surely the most judicially active space on the court. It is appalling that the Supreme Court shrinks from the task rather than shows a bit more grandeur and understanding of history

Benjamin Davis is an associate professor of law at the University of Toledo College of Law. He has served as legal counsel for the International Court of Arbitration of the International Chamber of Commerce. He led the effort to adopt the American Society of International Law Centennial Resolution on Detainee Treatment and the Laws of War.

Suggested citation: Benjamin Davis, Schuette Oral Argument: The Appalling Supreme Court, JURIST – Forum, Oct. 19, 2013, http://jurist.org/forum/2013/10/benjamin-davis-schuette-argument.php.