After the Supreme Court’s recent ruling on affirmative action, Americans have voiced their opinions for and against. In many ways, the case illustrates deep philosophical and epistemological differences that impact the political and social climate in the nation. It also raises important questions regarding the relationship between principle and pragmatism – as well as time and space.
Affirmative action is an umbrella term for measures and policies designed to counter discriminatory practices in employment and education. The term was coined through a passage in the 1961 executive order signed by President John F. Kennedy, which established the President’s Committee on Equal Employment Opportunity. In the order, government contractors were instructed to “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin.”
The current Supreme Court case involved considerations of race as a factor in academic admissions, and by a vote of 6–3, the court ruled that this practice violates the Equal Protection Clause of the 14th Amendment.
MORALITY AND CAUSALITY
If we leave the legal arguments aside for a moment and look at the recent public debate on the topic, it appears that the arguments presented primarily deal with morality and causality. People on both sides of the debate seem to share a common goal: to stop and prevent discrimination based on factors such as the color of someone’s skin. The disagreement, however, concerns how to get there.
Causality, in this case, deals with the ability to identify the causes behind social, political and economic realities. Built into this problem is the concept of change. Is change possible and if so, how does it come about – by which measures, and when? How can we trace the causal relationships that affect social outcomes – and how do we account for the impact of changing societal conditions, attitudes and norms?
Legally, the case is less about these amorphous concepts. Rather, it is about jurisprudence. The ruling stands firmly on the principle of the individual as the legal subject and rejects group-based attributes (race) in the formation of legal doctrine. But the justices’ opinions on the case provide a clue to the major political fault line in America today: the irreconcilable differences between communitarianism and liberalism (in the classic sense of the word).
By contrasting Justice Clarence Thomas’ and Justice Ketanji Brown Jackson’s opinions, it seems clear that these two – though both black – have completely disparate interpretations of not just the law of the land, but the realities for black Americans, the facts on the ground – and the causality which impacts a person’s life trajectory.
FOREVER HISTORY
In her dissenting opinion, Justice Jackson argues that the historical discrimination of black Americans still informs their life trajectories in contemporary society – and she seems to suggest that this may in fact have no end in space or time.
“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,” Justice Jackson writes.
Justice Jackson also uses statistics to support her stance that black Americans still suffer from discrimination. She includes pragmatic arguments on how the practice of affirmative action would benefit society in general. It seems clear that in her opinion, the state and other institutions must take action to solve the problem of discrimination.
“With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat. But deeming race irrelevant in law does not make it so in life. … 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,” Justice Jackson writes.
ARE WE THERE YET?
It seems that her position is that yes – things have gotten better, but we’re not quite there yet. And in order to get there, measures like affirmative action are necessary.
“The point behind her history lesson is to draw attention to the fact that Black people are not statistically behind White people in key markers of health, wealth, and well-being by mere accident. It’s a direct reflection of a history of government-sanctioned discrimination against Black people that never allowed Blacks to catch up,” writes attorney Kamaria Fayola regarding Justice Jackson’s opinion.
This begs the question: how do you measure when and to what degree black Americans have “caught up” with their white compatriots? And how do you correctly identify – how do you draw a straight line between cause and effect – for what’s impacting black Americans to still be an oppressed, discriminated and disadvantaged group?
A much less visceral response to the ruling than Justice Jackson’s comes from former President Barack Obama.
Obama – who based his entire ascent to the nation’s highest office on the concept of “change” and its viability as well as desirability among Americans – doesn’t dismiss the idea that change in fact may have occurred since affirmative action was introduced, and that the necessity for such measures may have declined over time:
“Affirmative action was never a complete answer in the drive towards a more just society. But for generations of students who had been systematically excluded from most of America’s key institutions – it gave us the chance to show we more than deserved a seat at the table,” Obama wrote on Twitter.
“PERPETUAL INFERIOR CASTE”
In his concurring opinion, Justice Clarence Thomas addresses the arguments rooted in pragmatism and communitarianism brought by Justice Jackson.
“Nor do JUSTICE JACKSON’s statistics regarding a correlation between levels of health, wealth, and well-being between selected racial groups prove anything. Of course, none of those statistics are capable of drawing a direct causal link between race – rather than socioeconomic status or any other factor – and individual outcomes. So JUSTICE JACKSON supplies the link herself: the legacy of slavery and the nature of inherited wealth. This, she claims, locks blacks into a seemingly perpetual inferior caste. Such a view is irrational; it is an insult to individual achievement and cancerous to young minds seeking to push through barriers, rather than consign themselves to permanent victimhood,” Justice Thomas writes.
Whereas Justice Jackson supports solutions driven by government mandates and “experts” in order to “level the playing field” between groups, Justice Thomas provides a dire warning about such ambitious social projects as they have always “ended disastrously.” He always comes back to the individual citizen as the only legitimate subject:
“Eschewing the complexity that comes with individuality may make for an uncomplicated narrative, but lumping people together and judging them based on assumed inherited or ancestral traits is nothing but stereotyping,” Justice Thomas writes.
