Last year, the Fifth Circuit upheld the University of Texas’s affirmative action plan in Fisher v. University of Texas. But they did so in a petulant, childish manner, as if somebody was forcing them to eat their vegetables. At the time, I said they were openly begging for a right-wing Supreme Court to review and overturn their ruling.
It looks like the members of the Fifth Circuit are going to get their wish. The Supreme Court granted cert on Fisher, and now we get to have an affirmative action debate right in the middle of an election cycle where a black man is running for reelection.
I’m sure that last part is just coincidence though….
It would be more shocking to accuse the Supreme Court of tampering with a presidential election if it hadn’t already shown a willingness to tamper with presidential elections earlier this century. The Court’s timing on this is perfectly set up for an October surprise. Even CNN sees it:
If health care reform, illegal immigration crackdowns, voting rights and TV indecency were not enough, now the nine-member bench is poised to add to its high-profile docket, wading into the divisive, sea-change issue of state-mandated racial diversity and affirmative action. Oral arguments would be held this fall, ensuring the court — however, it decides the appeal — will be a major campaign issue.
It looks like punishment, you see, for all the bad press the Court has been taking over Citizens United.
Hey, this is what happens when you give nine unelected people inscrutable power: they tend to use it.
Whatever the Court decides will be less interesting than when the justices have chosen to argue about it. The Fisher opinion was written directly to Anthony Kennedy — again, Kennedy being the conservative who is called a “swing” vote because he’s not as ideologically rigid as the other eight justices. We all know that Chief Justice John Roberts thinks that the way to make white people stop discriminating against black and brown people is to talk about discrimination suffered by white people. We know Justice Clarence Thomas thinks that all the white people who disrespected him will magically change if the only poor test takers allowed into colleges and universities are legacies and the children of rich donors. And we know that liberals think that if bad things happen to poor white males, it didn’t really happen.
So waiting for Kennedy to tell us what he think about this subject is perhaps critical to the future of this issue at public schools in our country, but having this all come down to one guy who nobody voted for isn’t all that interesting to me.
But feeling like the Court is using this issue to influence what happens when we do get to vote is deeply troubling. The worst thing that has happened to the Court since Bush v. Gore is that it is now easy to see how this body is concerned with politics, not justice. Inserting itself into the political fray like this delegitimizes the court. Maybe not now, when all we’re fighting about is education and health care, but at some point, these people are supposed to act as a legitimate restraint against elected officials with truly bad or megalomaniac intentions. We need to be able to trust these people to be above politics.
Instead, the justices want to flex their political muscles a month before a presidential election. It sends a really bad message. Call me an alarmist, but I’m telling you, next thing you know these people will want to choose the president and obviate the electoral process altogether.
Oh, wait, that already happened.