In his egregiously wrong Supreme Court decision ending affirmative action in college admissions, Chief Justice Roberts appended a sneaky little footnote exempting the nation’s service academies — West Point, the Naval Academy, and the Air Force Academy. Roberts doubtlessly thought he was being crafty when he noted that there are “potentially distinct interests that military academies may present” that necessitates exempting them from the decision. Earlier in his opinion, Roberts wrote that because the 14th Amendment affords citizens “equal protection under the laws,” it forbids discriminating between them on the basis of race. “Eliminating racial discrimination means eliminating all of it,” Roberts wrote.
Roberts’ decision is corrupt on so many levels, it’s hard to know where to start, but this little corner gives us a window into the depth of the corruption of the reasoning by Roberts and the other five Republican-appointed justices. The service academy exemption proves all by itself that the six conservative justices had made up their minds to end affirmative action and, in going shopping for a legal justification, ran into a completely obvious legal quandary: if the 14th Amendment is supposed to protect the rights of all American citizens, why doesn’t it protect the rights of citizens who apply for admission to the service academies? In other words, if affirmative action is so wrong that it necessitates “eliminating all of it,” why not eliminate it for the service academies?
It’s a classic “what’s good for the goose is good for the gander” situation, isn’t it? That Roberts and the other conservatives didn’t see the obvious hole they were driving into tells you all you need to know about how dirty was their legal windshield. An amicus brief supporting affirmative action signed by a former superintendent of West Point and two former chairmen of the joint chiefs of staff asserted that “units that are diverse across all levels are more cohesive, collaborative, and effective.” It’s hardly worth noting that these retired generals who collectively share more than 90 years experience in the military know what they’re talking about. The strength that diversity brings to the military is inarguable.
But if it works for the military, wouldn’t it work in civilian life as well? If the service academies believe that diverse student bodies produce better educated and better trained leaders for the military, and they do, why didn’t the Supreme Court accept the same argument when it was made by Harvard and the University of North Carolina? Don’t American corporations, and law firms, and hospitals, and police forces, and insurance companies and every other kind of employer need the same benefits that diversity gives to the military?
Of course they do, and that is why colleges have had affirmative action policies for decades. Affirmative action works. Not only does it take steps to make up for the decades of discrimination against Black and Brown people, affirmative action improve education for college students who are exposed to diverse opinions and life experiences in diverse student bodies. Can you imagine sitting in a classroom at a university and studying Reconstruction after the Civil War, or the Jim Crow era, or the Civil Rights Movement, and every face in the room including that of the professor is white? That’s the way it was at colleges and universities for decades. The very people whose history students were studying were not there.
The ruling by the Roberts/Thomas/Alito court on affirmative action has created two classes of education in this country: one for the military academies, and one for all the other institutions of higher learning. I predict that this decision is so weak and shot full of logical holes that it won’t take long for a university somewhere to file a lawsuit that basically says, hey! We want to be treated like West Point and the Naval Academy! We compete against them in admissions, trying to attract the best students. There ought to be a level playing field, and this Supreme Court decision tilts it against civilian colleges.
Congressman Jason Crow, Democrat from Colorado and a former Army Ranger, wrote on Twitter, “The court is saying diversity shouldn’t matter, EXCEPT when deciding who can fight and die for our country,” and that may be correct, but it was not the reasoning behind the Roberts opinion that exempted the service academies from having to end their affirmative action programs. Roberts, and the other five conservatives on the Supreme Court, appear to have accepted the arguments made by the former generals in their amicus brief, that diversity is necessary if you want to educate and train leaders of a military that is as diverse as the country is, and you want that military to be more “cohesive, collaborative, and effective.”
Which is interesting, because the exact opposite argument was used against President Truman’s order integrating the military in 1948. General Dwight Eisenhower and General Omar Bradley testified before the Senate Armed Services Committee that racially integrating the military would “damage unit cohesion, morale, and good order and discipline.” General Colin Powell, 45 years later, would make the same argument to President Bill Clinton on the day that as Chairman of the Joint Chiefs of Staff, he led the other chiefs of the army, navy, marines, and air force into the Oval Office in February of 1993. Powell told Clinton that if he did the same thing Truman did and integrate gay people into the military, it would “destroy unit cohesion, discipline, and morale” and weaken the United States military, and he, Powell, and the other service chiefs would resign. A similar argument was made when women were integrated into the military in 1976 by President Gerald Ford. Women were predicted to “damage our military strength and readiness” the argument went.
We all know what happened after the military was integrated by race, gender, and sexual orientation. Our military isn’t weaker today. It’s stronger than it ever was.
So, if the Supreme Court is going to accept the argument that affirmative action is necessary at the service academies because units that are diverse and led by leaders who are Black, Brown, Asian, and female are all the better for it, why shouldn’t civilian colleges and universities be able to do the same thing with their student bodies? Won’t the leaders their graduating classes produce be better prepared to go out and get jobs and succeed in an America that is more diverse than at any time in its history?
You know what the answer is, and so do I, and so do Justices Roberts and Thomas and the rest of them. But they don’t care, because what they’re doing isn’t interpreting the Constitution, it’s serving a conservative agenda that has wanted to turn the clock back for over 50 years. By overturning one precedent after another, from abortion, to affirmative action, to environmental regulations, to reversals of long-standing rulings on the First Amendment’s guarantees of free speech and religious freedom, the Supreme Court is turning itself into a legislature. The Congress under Republican control and a Republican president relaxed so-called CAFÉ standards for automobiles, regarding both gas mileage and pollution controls. When Joe Biden got in the White House, he returned the standards to the way they were and imposed new and stronger ones.
What’s happening with the Supreme Court is the same thing. Conservatives didn’t like the old standards for college admissions, so they put justices on the court who would overturn them. Conservatives didn’t like the standards of medical care for women established under Roe v Wade, so they spent 40 years getting conservative justices on the court who would overturn that decision. Legislatures and the executive offices in states and in the nation are inherently political. That’s why we have elections every two, four, and six years. Now the Supreme Court has become so politicized that we should be electing its justices, but the Constitution won’t let us.
This imbalance in political and practical power is being exploited by conservatives to serve their own ends, and it’s going to persist and even get worse in the future because the issues conservatives want to push onto the country are so unpopular, they are going to lose election after election, and they know it. A democracy is supposed to respect the rights of the minority but be controlled by the majority. I think we are heading into at least two decades of minority rule by judicial fiat, and we had better come up with some ways to counter it, or one right after another is going to fall to the totalitarian rule of six out of control arch-conservative justices who are so corrupt, they won’t even write themselves a code of ethics to control their greed and worst impulses.