Has Affirmative Action Really Been Overturned?

Posted By Titus Livius On In North American New Right | Comments Disabled

[1]3,412 words

Aside from forecasting the future in terms of how college admissions will work, the recent Supreme Court ruling on affirmative action — Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, which can be read here [2] — provides us an opportunity to analyze the current state of United States law and to pierce the undeserved mystique surrounding the legal profession. Your reading of this essay alone will demonstrate in itself that lawyering is not alchemy.

The ruling also shows that constitutionalist, civic nationalist, or “Alt Lite” jurisprudence is so uninspiring and beset with contradictions that it is largely ineffective and has no future. It may give us a few favorable rulings from time to time, as it clashes with the up and coming “woke” radicals, but it is still fatally flawed.

With the headlines screaming “affirmative action overturned!”, the Obamas complaining from their luxury yacht, and law schools offering chamomile tea and counseling to the trembling snowflakes, it certainly seemed that something important happened. But a “ruling” is not always the same as the “rule” that is handed down. Yes, Harvard and the University of North Carolina’s admissions programs were struck down — but affirmative action is not dead.

The plaintiffs in this case sued under the Equal Protection Clause of the Fourteenth Amendment [3], which plainly says that no state shall “deny to any person within its jurisdiction the equal protection of the laws.”

But there are major issues with the Fourteenth Amendment which are evident in the court’s opinion. For the sake of brevity, we will overlook the glaring fact that it was passed via coercion instead of consent. The next issue is its intent. The Fourteenth Amendment’s original intent was to eliminate slavery and to not allow it to reemerge under false labels. But it was overkill. Nobody thought it would one day permit blacks, or those of other races, to enjoy special privileges at the expense of their white descendants.

The Equal Protection Clause’s plain meaning is that citizens will be treated equally under the law. The government will be colorblind in its dealing with citizens. The existence of affirmative action for decades obviously clashes with this. How did this come to pass?

The Supreme Court created the test of “strict scrutiny” in United States v. Carolene Products Co. in 1938. Courts strictly scrutinize cases when a fundamental constitutional right is infringed, or when there is a “suspect classification,” a term coined in Hirabayashi v. United States in 1943 and Korematsu v. United States in 1944 which encompasses things such as race, religion, etc. Admittedly, courts had to develop an orderly way of dealing with constitutional litigation, but we should never forget that the entire matrix of civil rights law has been pulled out of thin air. These seemingly innocuous and even useful terms would bear bitter fruit in the so-called civil rights era.

Strict scrutiny requires a compelling government interest, which is pursued in a manner that is narrowly tailored to that interest and the least restrictive means to pursue that interest. The majority opinion claims that only two race-based classifications have supposedly survived judicial review: segregation of prison inmates for their own safety, and remedying “specific, identified instances of past discrimination.” The second exception is exceedingly rare and must fall within living memory, unlike vague demands for generic reparations.

So, given the foregoing combined with the fact that publicly-funded universities — and even private ones –  must comply with constitutional law because of civil rights litigation and legislation, how has affirmative action survived for so long? There are two answers. First, constitutional law is almost entirely derived from the courts and not the Constitution, and when we say “courts,” we mean human judges. And second, despite their having good intentions, conservatives are cowardly, inept, and full of contradictions.

Affirmative action is plainly anti-white — and nowadays also anti-straight — discrimination, and no fancy reasoning can refute this fundamental fact. Previous courts — or to be more precise, factions of judges in the Supreme Court — have been wishy-washy on affirmative action. In Regents of the University of California v. Bakke in 1978, the Court ruled that affirmative action is fine so long as there are no hard racial quotas. And in Grutter v. Bollinger in 2003, which is the case most discussed in the recent ruling, affirmative action was allowed to endure so long as it was done in a “narrowly tailored” and individualized way. The Court in Grutter also stated its hope that affirmative action would no longer be needed in 25 years — or that at least it would not be made permanent.

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You can buy Greg Johnson’s The Year America Died here. [5]

At first glance, the Supreme Court in the recent Students for Fair Admissions case seems to have handed down a fair, bright line rule with a three-prong test.

First, race-based admissions must pass “strict scrutiny,” which means they must have a compelling interest and be narrowly tailored to that interest. This means they must be sufficiently measurable to permit judicial review. The Court dismissed vague talk of the supposed benefits of diversity as impossible for a court to measure, and made it clear that it is not going to simply defer to colleges saying, “Trust us, bro.”

Second, the Court says admissions programs must “. . . comply with the Equal Protection Clause’s twin commands that race may never be used as a ‘negative’ and that it may not operate as a stereotype.”

Third, admissions programs must have a logical endpoint, and cannot last forever. Simply reviewing affirmative action programs is not enough.

But there is an obvious loophole:

. . . nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.

If you, dear reader, are beginning to see some puzzling contradictions, it’s not because you’re failing to grasp a metaphysical doctrine. It’s rather because US constitutional law since the 1960s is almost as full of contradictions as the Talmud. This is due only due to Jewish subversion, but also to the inherent contradictions of race-blind civic nationalism, which has a poor track record of opposing Jewish subversion.

Supreme Court decisions were previously made available only in massive tomes, libraries, and perhaps legal periodicals — or in summaries that were filtered through the subversive media. Today, with the Internet, anyone can read them instantly and spot the contradictions. I was proud to see that the Telegram community identified the loophole within minutes of the opinion dropping and began to ponder its significance.

The ultimate takeaway is that affirmative action will likely continue in some form, albeit a sneakier one, and in a way that helps Asians much more than whites. Lawyers try to invent loopholes where there are none — and lawyers will absolutely exploit a loophole that is being offered to them on a silver platter.

The majority opinion sternly warned that “. . . despite the dissent’s assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today.” But this is precisely what will happen in real life, outside the Supreme Court’s ivory tower.

The Court even seems to claim that colleges have been disobeying their previous rulings: “We have never permitted admissions programs to work in that way, and we will not do so today.” Are we to believe that colleges will now fall in line because of a stern finger-wagging alongside a convenient loophole? Will a white applicant who writes about confronting anti-white animus, or how his German ancestry inspired him, receive preferential treatment? Asian “tiger cubs” who have been taking standardized tests since they were in diapers but who can also claim to have been “hated on” or “inspired by” their identity, seem to be the only ones who will really benefit.

This is the natural result of whites not openly and honestly advocating for themselves as every other race does. If the battle against anti-white discrimination hitches itself to, or hides behind the skirts of, fighting anti-Asian discrimination, then it is only natural that white efforts will advance Asian goals — with scarcely a single scrap disdainfully tossed from the victor’s table.

Arguing that affirmative action should be overturned because it hurts blacks due to stereotyping is also doomed to failure. It is disingenuous, because few blacks care about stereotypes if they get them special treatment and free stuff — or even if it just gets whitey. Even among the talented tenth, very few blacks advance the argument that affirmative action hurts blacks despite the growing numbers of people who are hesitant to put their lives in the hands of a black surgeon or their case in the hands of a black lawyer. Trying to advance pro-white policies in relation to concern-trolling for blacks is as ridiculous and ineffective as trying to use pro-Asian policies as a surrogate or shield for pro-white policies.

This ruling in fact backfired against whites in many ways. Spots which should go to whites because of our merit — and even more importantly, because this is our country — will continue to go to other races. And college-educated Asians tend to be as arrogantly anti-white as other races. It will simply be harder to sue colleges. In many ways, the civic nationalist Supreme Court did the far Left a favor by allowing affirmative action to continue in a more discrete form, because blatant anti-white discrimination galvanizes pro-white sentiment and is easier to litigate. White students may get a few more seats than before, but let’s not pretend that affirmative action was really overturned.

But there are other points which deserve our attention, and perhaps a laugh or two.

In discussing previous case law, the Court repeats the civil rights-era argument that “separate cannot be equal.” The Court’s reasoning is that it will hurt black people’s all-important feelings, thus giving them a mental stigma that is as psychologically damaging as touching a black woman’s hair. Separate actually is inherently unequal, but it is because the races are unequal. Similar to casual gamers complaining about how a video game is hard or unbalanced, blacks simply have a “skill issue” when it comes to playing the game of life due to low IQ and so on. The tone deaf self-own of the “equality versus equity” cartoons shows this perfectly. Blacks and other victim groups will always need artificial help to compete against whites, or they will need to cut whites down to their level. White privilege really means white genetic advantage.

Thus, assuming that racial equality is a self-evident truth, as the civic nationalists on the Court believe, and not a ludicrous lie, as we believe, why have victim groups not caught up to white men? The 25 years of affirmative action which the Court in Grutter hoped would level the playing field have nearly passed, and yet blacks are still failing at life. The Left has propounded critical race theory, implicit bias, and systemic racism to explain black failure. None of these stand up to statistics, history, Occam’s razor, or the fact that Obama was twice elected President by a supposedly racist country. But such facts don’t matter if racial equality is unquestionable a priori.

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You can buy Greg Johnson’s White Identity Politics here. [7]

Civic nationalism is cowardice, because it avoids confronting the awkward question of why supposedly equal races have such disparate outcome despite the losers having received decades of pampering. It is simply contradictory and indefensible. Hardly anyone believes in it outside of an ageing segment of the population, which — like the Court until recently — was insulated from its failures. Civic nationalism has no future, and no amount of money donated to the Federalist Society can change this.

The Court also writes that “[e]liminating racial discrimination means eliminating all of it.” This high-minded talk does not comport with reality. As explained by Christopher Caldwell in The Age of Entitlement, the crusade against racial discrimination via the Civil Rights Act and a novel interpretation of the Fourteenth Amendment is of such importance that it can now infringe upon the right to private property and freedom of association. This is like an obese black woman taking up more space than her seat can accommodate on an airplane to the discomfort of the other passengers.

Private establishments can no longer racially discriminate or even segregate due to the notion of “public accommodations,” which the courts invented. But colleges have long discriminated against whites, and because the diversity tokens produced by affirmative action at the college level cannot compete against whites in the workplace, employers have also openly discriminated against whites under the cover of diversity. This is despite the fact that private businesses ought to logically fall under the doctrine of public accommodations. The Supreme Court’s lofty rhetoric does not correspond to its rulings, and to reality even less. They are willfully blind or indifferent.

Next, let us return to this phrase: “We have never permitted admissions programs to work in that way, and we will not do so today.” Yes, colleges may have creatively interpreted or completely ignored past rulings. But there is another issue lurking here: that of the doctrine of stare decisis, which says that courts should follow their past precedents. This is a big “should.” Overturning established precedent can cause chaos and ambiguity. But this is what lawyers are paid big bucks to deal with. And more importantly, if a past court, which is a collection of smart but fallible humans, gets something wrong, is it worse to stand by it for convenience and stability, or to put things right? It depends on the specifics, but stare decisis should act like a general principle, not as a categorical imperative.

Furthermore, stare decisis usually works in only one direction: the Left. The Court in this decision badmouths not only previous courts but entire generations of pre-civil rights Americans. The Courts of the civil rights era had no compunction about stare decisis when it came to mutating constitutional law into a mockery of what was intended not only in 1789, but even in 1868 with the Fourteenth Amendment. No sooner does the ink dry on a novel judicial concept than the Left begins to sing their hymns to hallowed tradition.

In 69 pages of liberal tears, dissenting Señora Sotomayor writes:

Lost arguments are not grounds to overrule a case. When proponents of those arguments, greater now in number on the Court, return to fight old battles anew, it betrays an unrestrained disregard for precedent. It fosters the People’s suspicions that “bedrock principles are founded . . . in the proclivities of individuals” on this Court, not in the law, and it degrades “the integrity of our constitutional system of government.”

Her words ironically betray stare decisis’ ulterior motive, which is to lend the judiciary a false sense of majesty. They are nothing more than a gaggle that decides cases according to their individual preferences, except for those few conservacucks who can be seduced by the siren song of big words such as “principles,” “the law,” and “precedent” — despite the fact that the time has long since passed when those words meant anything.

Power is all that matters in a decaying multi-racial empire, and only a fool thinks otherwise. Everyone knows that Supreme Court appointments are political in nature, because presidential elections have acquired an apocalyptic dimension due to the question of who the next President might nominate for the Supreme Court, thus shaping the law to their whim for years to come — if they have the will to do so.

The Court issued a weak ruling in part because they are trying to pretend that they did not actually overrule those previous cases which allowed affirmative action. They would rather claim that colleges were not following the Court’s previous rulings, and so that what is needed is a clarification of existing law instead of a reversal. This public-relations stunt has obviously backfired, as the Left is hysterical now that they can’t be as brazenly anti-white as before. In their mind, affirmative action was overturned.

On the other hand, the dissident Right and even some mainstream conservatives are correct in identifying the loophole as a major flaw. In trying to make everyone happy, the Court made almost everyone unhappy, thereby undermining their precious legitimacy while also ensuring that affirmative action will have to be relitigated yet again in a future case, after the loophole is inevitably abused.

The Court is also talking out of both sides of their mouth by moving to affirmative action lite. They claim that race can only operate as a “plus” for a particular applicant, both in Grutter and in this ruling. But the Court also correctly states that “[c]ollege admissions are zero-sum, and a benefit provided to some applicants but not to others necessarily advantages the former at the expense of the latter.” If you are bewildered by this contradiction, it is not that you are failing to grasp an arcane secret but that you are reading the case with a critical eye. This is a paradox, and one which cannot be resolved without dishonesty. In a way, the Court is lying to themselves and to us — and liars do not deserve respect.

Also, despite the Court’s fervent praise of diversity, this and other recent decisions are examples of the phenomenon of upper-class whites promoting diversity until it affects them. Sotomayor is nothing more than a diversity token who is out of her league. For example, she repeatedly confused de jure and de facto segregation [8]. The Court’s putative swerve to the Right roughly coincided with Lil Ketanji Jackson being added as a second affirmative-action hire. Like the residents of Martha’s Vineyard when Ron DeSantis bussed foreign invaders into their sheltered bubble, the Supreme Court is undoubtedly annoyed by the ways in which diversity has finally come to enrich them. They might not consciously admit this, but the Court may have ruled as it did in part because the consequences of their decisions had finally caught up with them. There are certainly some unusually incisive comments directed at Sotomayor and Jackson in the majority opinion’s footnotes.

Speaking of footnotes, the fourth footnote all but announces an important exception to the rule. The majority says that they chose not to address military academies because none are party to the case, and because of “the potentially distinct interests that military academies may present.” The Supreme Court may not defer to even the highest of civilian colleges, and even take great umbrage at the suggestion, but it discreetly does to the military. They do not like to admit this, but their entire existence is predicated upon loyal zogbots, especially officers, protecting the regime. Furthermore, this strongly suggests that even the insular Supreme Court can see that the enlisted ranks are well on their way to being filled with the scum of society as traditional white military families cease to serve the openly anti-white regime. These vibrant new conscripts will need vibrant new officers, if racial animosity is to be avoided. Legal theories take a back seat to the realities of race and power.

What this ruling means is that affirmative action will now continue as affirmative action lite. It will not help whites significantly, but it may help Asians. Thus, if the Court and our racial competitors are going to be Talmudic, white students must be prepared to be so as well. While some are concerned about the recent spike of college applicants identifying as LGBT or with gender dysphoria, it is likely that many of them are whites who are trying to game the anti-white system. It’s doubtful that colleges will demand that students offer proof, because this will open the door to harassment — but it would be wise to be cautious with one’s social media when pursuing this course of action.

This case also shows that the judiciary is wholly irredeemable, and therefore undeserving of our reverence. Civic nationalists are not loyal to our nation, and they lack both the intellectual arguments and the will to survive the woke Left’s onslaught. Thankfully, the courts have no inherent power. No judge is going to arm up to enforce his own ruling. Judges rely upon the executive branch for enforcement, and they further rely entirely upon respect to bind the executive branch to them — as if by enchantment. This is why they are so sensitive about contempt.

Delegitimizing the judiciary as comically absurd is a vital step in liberating the executive branch, such as state governors and local sheriffs, from its undue tyranny. And whether the courts are filled with woke Leftists or civic nationalists, I’m sure they will continue to make fools of themselves.

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