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Is The Supreme Court About To End Affirmative Action? LOL, Dumb Question. Obviously, Yes.

The other racist shoe is about to drop.

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(Photo by Mark Wilson/Getty Images)

Today, the First Circuit rang the Pavolvian bell that got inveterate racists all over the country salivating like it was potluck day at the MAGA rally. In upholding the district court ruling in favor of Harvard, the appellate court set the clock ticking on the all but inevitable showdown at the Supreme Court to put an end to affirmative action once and for all. Finally, Harvard won’t be able to put the thumb on the scale in favor of racial diversity in admissions and will have to return to just putting the thumb on the scale to admit legacy candidate Thurston Warrington Cabot IV and his C+ average from Philips Exeter.

“AS IT SHOULD BE!” shout a million sixth-generation Vanderfucks in unison.

After watching Becky with the Bad Grades fail to overcome affirmative action in 2016 with the last minute assistance of Justice Kennedy, padding his cherished reputation as a “swing vote” that not one serious person should ever repeat again after he announced his retirement to push America under the Brett Kavanaugh Brewsky Express. But now Kennedy is gone, Gorsuch has replaced Antonin Scalia — who had died before the Fisher opinion — and Typhoid Amy has taken RBG’s seat. This is now the House That Susie Built, and after Susan Collins whined about “respect for precedent” she’s going to watch as stare indeterminata reigns and practices affirmed for DECADES are demolished one after the other.

In SFFA v. Harvard, affirmative action foes took a different tack and replaced the white woman whose middling grades that kept her out of a state school in favor of Asian American students who couldn’t get into Harvard and think the problem is all the Black and Latinx students that got in, rather than the aforementioned inbred white legacy applicants. Hey, part of the strategy is building the sympathetic test case! The district court ruled against SFFA, noting that the plaintiffs couldn’t find a single individual candidate disadvantaged by the policy and, indeed, found it more likely that many Asian American students actually benefitted from Harvard’s policy (e.g., Asian American women).

The First Circuit unanimously (2-0, one judge did not take part in the opinion) affirmed and now this case that should simply rest on the strength of the district court’s considered opinion will be scooped up by the Supreme Court to allow Clarence Thomas to finally cap his odious career by putting the symbolic garnish on the concept that racial diversity is a laudable value that, ironically, was the precise reason George H.W. Bush selected him to replace Thurgood Marshall. What good is a ladder if you can’t kick it over for all the people behind you?

Or maybe Chief Justice Roberts will hold onto it to add to his “What’s Racism” series that he kicked off in his Shelby County opinion. Either way, we all know what’s coming. We knew it last year when Elie Mystal wrote:

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Technically, [anti-affirmative action litigation mastermind Ed] Blum failed. If you actually care about why affirmative action is Constitutional, read this opinion. But Blum and the conservatives are playing a long game here. This case was never set up to win at trial, again, the white people pushing this do not actually care about Asian-American concerns. This case was set up to give the Supreme Court an opportunity to end affirmative action on appeal, and that project still very much goes forward.

And there’s nothing that can be done about it right now. There is no magic fix to repair decades of liberal apathy about the courts and it certainly isn’t some half-cocked court packing scheme that actually looks like it may have cost the Democrats the Senate in three races that focused on the issue down the stretch. Right now, all that’s left is to get more Americans to care about the courts and vote with those issues in mind. A key part of that mission would be to orient around the massively popular proposal to require Supreme Court service term limits that would foreground the courts every election in an orderly and democratic way.

As the passage above notes, America is in this mess because the enemies of diversity have been playing the long game. At this point, it’s time for everyone else to come together and organize around a similar strategic approach to repairing the damage this aberrant regression to segregationist jurisprudence has wrought. There isn’t an immediate fix, but there’s an opening for a lasting one.

(The full First Circuit opinion is on the next page.)

Earlier: Harvard Won, But Affirmative Action Is Still Set Up To Lose
Congress Introduces First Supreme Court Term Limits Bill!
Court Packing Advocates Probably Cost Democrats The Senate
Liberal Calls For Court Packing Gain Steam, And Mitch McConnell Couldn’t Be Happier

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HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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