Students for Fair Admissions v. Harvard

The Supreme Court has overturned one of our nation's only proactive strategies for addressing its foundational sin. But what's worse, the most annoying guy on the cross country team just lost his last best excuse for why he didn't get into Harvard. Enjoy SUNY Binghamton, Bronckton!.

A podcast where we dissect and analyze the Supreme Court cases that have left our civil rights struggling, like a young white white boy trying to get into Emory

0:00:00.1 S?: We'll hear argument next in case 20-1199 students for fair admissions versus the President and Fellows of Harvard College.

0:00:11.8 Leon: Hey everyone, this is Leon from Fiasco and Prologue Projects. On this episode of 5-4, Peter, Rhiannon and Michael are talking about students for fair admissions fee, president and Fellows of Harvard College. This is a case from the court's most recent term, and it completes a mission that conservatives have been on since the advent of affirmative action.

0:00:32.9 S?: Breaking news from the Supreme Court. The court has just issued a landmark ruling on affirmative action, officially ending the practice in college admissions processes. Colleges and universities will no longer be permitted to take race into account when reviewing the college applications.

0:00:50.7 Leon: To come to their conclusion, majority had to bend over backwards to misinterpret our nation's history. As a result. Up is down, good is bad, and the attempt to negate centuries of discrimination is racism. This is 5-4, a podcast about how much the Supreme Court sucks.

0:01:11.9 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have left our civil rights struggling like a young White boy trying to get into Emory.

0:01:21.2 Rhiannon: Tough out there. Tough out there.


0:01:24.3 Peter: I'm here with Michael.

0:01:25.4 Michael: Hey, everybody.

0:01:26.3 Peter: And Rhiannon.

0:01:27.7 Rhiannon: Oh, that 3.6 isn't doing much for you, huh?

0:01:30.7 Peter: Yeah. It's not gonna cut it.

0:01:31.9 Rhiannon: Yeah. That's rough.

0:01:33.4 Michael: Not at a top 30th percentile school like Emory.


0:01:37.9 Peter: Pickleball scholarship not working out.


0:01:43.2 Peter: Today's case, folks, students for fair admissions, the Harvard. This is a case from this past term that struck down affirmative action in higher education. One of our first episodes, if you recall, was about Fisher v. University of Texas, where we told the tale of Abigail Fisher, a hapless little moron who thought that affirmative action prevented her from getting into the University of Texas. Now she didn't quite get affirmative action overturned there, but today her dream is a reality. As the Supreme Court used this case to forbid the consideration of race in college admissions, we regret only that Abigail herself is not alive to see this as several years ago, she became hopelessly entangled in a ball of knitting yarn and was unable to escape. Rest in peace. Abby. The dream lives on.


0:02:41.5 Michael: Did you guys ever see the, it was like a screenshot from Facebook that was passed around where somebody being like, I was on an escalator and it broke down, and I was stuck on it for like hours. And then somebody replies, I think you mean elevator and she replies back. No, it wasn't an escalator. That is, that's Abigail. That was Abigail Fisher. People don't know that, but that was...

0:03:09.5 Peter: Somebody, Abby.

0:03:10.2 Rhiannon: That's a true story about her.

0:03:12.6 Peter: Yeah. Rhia, I'll let you jump into it here, we've got a lot to cover. This was 237 pages.

0:03:20.4 Rhiannon: Of an opinion.

0:03:22.0 Michael: Ugh.

0:03:22.6 Peter: The shit we do for you folks.

0:03:24.4 Rhiannon: I know. Absolutely exhausting. Absolute bullshit from top to bottom on the majority in these concurrences here. Let's jump into the story. What brought this awful pair of cases? This is actually two cases consolidated into one. There's a case against Harvard College, there's a case against UNC, the University of North Carolina. Harvard's a private school. Of course, UNC is a public school, so the challengers to affirmative action we're attacking on both of these fronts, right? So there's a long history of the legality and the constitutionality of affirmative action at the Supreme Court that you really do have to understand to understand how we got here. We talked, one of our very first episodes is Fisher. That's one of the cases you have to understand. We will talk about that in just a second. But first, let's talk about the admissions processes at UNC and Harvard.

0:04:16.6 Rhiannon: Both schools did consider race as a factor in admissions, but it's important when you hear that race is considered in a school's admissions process to actually understand what that looked like. So let's take Harvard's admissions process first, every application to Harvard College was initially reviewed by an admissions official who is referred to as a first reader. The first reader would assign a score to the applicant in six categories. That's academic, extracurricular, athletic, school support, personal, and then an overall rating. You get rated from one to six in each category, with one being the best. Now, that last category, the overall category, that is really like a composite of the five other ratings, giving you an overall score. So then those categorical ratings and the application then go to consideration by a subcommittee. The subcommittee would then review the ratings that were given by the first reader, and the subcommittee would give their recommendation to the full admissions committee.

0:05:22.6 Rhiannon: So at Harvard you have basically like a three step application review process. The first reader, a subcommittee, and then the full admissions committee. Now, the full admissions committee at Harvard is about 40 members. They would consider each of these applicants that have been recommended by the subcommittee for admission. Each applicant has to get a majority of the full committee's votes to be tentatively accepted for admission. Now, once the full committee goes through and votes on the pool of those tentatively admitted applicants, the racial composition of that whole pool is disclosed to the committee. So like what percentage of this tentative admissions group are Black students, White students, Asian students, et cetera. That tentative pool is still more students than Harvard is going to admit. So there's a final stage of the admissions process called the Lop. That's lop, L-O-P, at this stage.

0:06:18.6 Peter: This is where they really find the perverts. They really narrow it down to only the most disgusting pervs...


0:06:25.8 Peter: That's right.

0:06:27.4 Rhiannon: Yes. No, actually, at this stage, they're looking to cut people from the tentatively admitted group, and for applicants that they consider cutting, they look at four final factors. Those factors are legacy status, recruited athlete status, financial aid, eligibility, and race.

0:06:45.4 Peter: Dun. Dun. Dun.

0:06:51.0 Rhiannon: Right [laughter] This is in the final stages of the process where the whole pool of students who are going to be admitted is constantly being assessed and reassessed for different proportions and makeups of all kinds of things, including race. So they're like, okay, this percentage of this applicant pool is White, this percentage is a legacy Admit this percentage is from the South, this percentage is from outside the United States. All of these factors are constantly being counted and then recounted as they lop, as they cut off applicants and get to the final amount, the final group that are going to be admitted to Harvard.

0:07:32.0 Peter: And I think what's important to remember about both the Harvard program and the UNC program, which you're about to explain, is that race is part of this like big holistic set of factors. And the reason that's important is because that's exactly what the Supreme Court in the past had directed schools to do. So these programs are designed to comply with previous Supreme Court rulings.

0:07:58.8 Rhiannon: Yeah. That's exactly right. In the Fisher case, the University of Texas's admissions system, you heard the phrase over and over again, that race was used as a factor of a factor. Race in none of these programs is used as sort of this primary indicator of whether somebody is going to get in. It's a factor within a factor. It's a factor within another category. And it's all part of a holistic understanding and a holistic review process of a person's entire application and background.

0:08:28.0 Michael: So they can get an applicant pool that overall has a nice mix of backgrounds and interests.

0:08:35.4 Rhiannon: Exactly.

0:08:35.9 Michael: So you don't have all STEM majors from New England, Named Bryce [laughter]

0:08:42.1 Rhiannon: Exactly. So yes. In these final stages, all kinds of things are being considered, including race at Harvard. And so it ends up being that for around 10% of Harvard's admitted class, those 10% of students it's said, would most likely not have been admitted had race not been considered in their admission. So you could say for around 10% of Harvard's admitted class race was a consideration in their admission that at least in some small way played a dispositive role. Was a factor that said, okay, yes, thumbs up. This person is admitted.

0:09:18.3 Michael: They were in that large pool of maybe borderline applicants who are all qualified to be at Harvard, where one random determining factor like their dad is a rich oil executive or...

0:09:33.0 Peter: Connections to Epstein. That's something that can get you in.

0:09:36.1 Rhiannon: There's another percentage of students who were admitted because they are athletes. There's another percentage of students who are admitted because of their legacy status. Again, this is one of the factors considered in a holistic process. So going to UNC, the University of North Carolina, their admissions process looks a little bit different. But again, race is used as one of the factors in one of the categories as part of this holistic review. At UNC, there's a group of about 40 admissions office readers, each of whom does initial application assessments. So readers consider race and ethnicity as one factor in that review, along with academic performance and academic rigor, standardized test scores, extracurriculars, essays, and of course personal factors and personal background stuff like Harvard, the readers at UNC give numerical ratings for these categories. And then the reader comes up with their sort of final assessment whether or not they recommend admission.

0:10:36.9 Rhiannon: And in making that decision, they can give a plus to an individual candidate based on their race. Then an admissions committee reviews those recommendations from the initial readers. They look over the category ratings that the reader gave. They also look over general academic stats like GPA and the admissions committee also reviews the applicant's status as a North Carolina resident, as again, a legacy or as a special recruit. So that's the committee that gives the final decision to approve or reject the recommendation of the reader. And in that final decision, again, they can consider the applicant's race. So these are the admissions processes that are being challenged here. And the plaintiffs who is challenging this, this organization should sound familiar to listeners. In fact, it's the very same organization that brought the Fisher case in 2016 against the University of Texas's admissions policy. They are the Students for Fair Admissions SFFA.

0:11:42.0 Peter: Sounds legit.

0:11:43.5 Rhiannon: This is an organization run by Ed Bloom. Who again, also brought the Fisher case. Also one of the attorneys challenging the constitutionality of the Voting Rights Act in Shelby County.

0:11:54.5 Peter: Oh. That's an interesting confluence of legal interests.

0:11:57.9 Rhiannon: Interests? Yeah.

0:12:00.2 Peter: Crazy.

0:12:00.5 Rhiannon: Also leads the way in litigation against private companies for their diversity goals and requirements.

0:12:07.4 Peter: Just another coincidental interest of his.

0:12:10.9 Rhiannon: Yeah, that's Exactly.

0:12:11.8 Michael: My man just likes fairness.


0:12:14.5 Michael: Okay. He's one of the chief fairness lawyers in the United States.

0:12:19.6 Peter: That's right.

0:12:20.6 Rhiannon: What students for fair admissions are arguing here is a couple of different things. There's of course the tried and true argument that similarly situated White people, White applicants are not getting admitted to these schools because a student of color is getting admitted because of their race. But there's also a claim made on behalf of Asian-American applicants to Harvard that the race-based considerations in the admissions process there hurt not just White applicants, but Asian applicants as well. So remember in the Harvard admissions process, applicants are given a numerical score in different categories, including academic, extracurricular, and personal categories, et cetera. So students for fair admissions is saying that the data shows that Asian-American applicants to Harvard consistently get rated lower in the personal categories. For factors like courage and personality. So the argument there is that race is being considered and it's hurting those applicants not helping them. We'll talk in a bit about why that is a bad faith argument that students for fair admissions does not give a fuck about Asian applicants to colleges.

0:13:29.7 Peter: But it's also interesting because it's largely ignored by the court.

0:13:35.2 Rhiannon: Yes.

0:13:35.6 Peter: One of several arguments that is ignored by the court, this is two cases. One against UNC, one against Harvard. UNC is a public school, so the Constitution applies to it. It's a matter of whether they violate the equal protection clause. But then Harvard is a private school, and the question is about Title 6, because Harvard receives federal funding. And Title 6 says you can't discriminate on a race if you receive federal funding. So two theoretically different standards here, but the court just merges them into one analysis, one consolidated opinion and does away with that distinction in a footnote being like, actually we think the equal protection analysis applies to both in function. And then you have this sort of Asian-American student angle, which a lot of people thought introduced a lot of different possibilities for how the court might handle this, might dispose of this. But instead they just ignored it. It's on the periphery the whole time. They just do what they wanna do here.

0:14:40.1 Michael: Yeah. And it's worth noting since it's not really addressed by the majority that, like the personal ratings in Harvard, it's not like, oh, these are the vibes we're getting from the kids. Like a rating for the admissions office. It's, that's derived from things like teacher recommendations.

0:15:00.2 Peter: Guidance counselor.

0:15:00.3 Michael: Guidance counselor. And so there's some reason to believe that Asian-American applicants are doing poorly on this because it's like a racist input that teachers are like not connecting with kids and not seeing kids in their individual selves if they're of Asian descent and giving them lackluster letters of wreck and that's harming them.

0:15:25.9 Peter: And the irony of course being that the other racist input you could point to would be things that impact Black applicants more.

0:15:35.4 Michael: Of course.

0:15:35.9 Peter: But this entire project is about ignoring those racist inputs. Anyway, let's not get ahead of ourselves, let's talk about legal history here.

0:15:44.3 Michael: Yes.

0:15:44.6 Peter: There are a few cases that serve as precedent. For the most part, they all get functionally overturned by this case, though, it's worth noting that the court does not admit that it's overturning them.

0:15:54.8 Michael: The concurrences are less shy, but.

0:15:57.2 Peter: Yeah, Clarence Thomas says, yeah, no, we're overturning them. But [chuckle], John Roberts is like, no me overturn a case, no.

0:16:04.6 Michael: A longstanding president, never. Never.

0:16:08.1 Peter: Right and funny, because I imagine that the reason that he chose to say that he's not overturning them, even though he clearly is, is just to avoid bad press. And I don't know, I think it just goes to show how hollow this shit is, where he is just like, well, let's just say we're not, even though we are LOL. Like, that's it. Anyway, so in 1978, there was a case called Regents of the University of California V. Bakke, where the court said that you cannot have racial quotas in admissions, but affirmative action is constitutional in some contexts. Then in 2003, you had Grutter V. Bollinger, which said that schools were allowed to use affirmative action to pursue diversity on campus as long as race was like one factor of many in a holistic process, which is why you can see that race is like "A factor within a factor" in the processes that re-described here, Fisher V. Texas, reifies that says, yeah, it has to be just like the tiniest smidgen of a part of the process. It's all very annoying because they want schools to pretend that race is not a factor.

0:17:22.8 Peter: Or minimize the aesthetics of race being a factor there's also another point here, which is that the court has said that you can't do affirmative action with the goal of like remediating past discrimination. The valid reason for affirmative action is diversity on campus. This has created a awkward tension because almost everyone who supports affirmative action supports it with the goal of remediating past discrimination and the court has said, no, you can't do that. And that has created a thing where like no one's really being honest. And this is something we talked about way back in Fisher too, where you have a situation where these schools are clearly interested in remediating past discrimination, but they can't say that they have to talk about diversity on campus. And so everyone is sort of bullshitting.

0:18:16.9 Michael: It's just layers and layers of bullshit.

0:18:19.5 Peter: Everyone is being dishonest about what they actually want. So there are several arguments and issues swirling around as we get into the opinion, but the fundamental question is whether schools are allowed to consider race as a factor in admissions, even a tiny little baby factor. And the court of course says no. John Roberts writes the majority, and then nearly every other justice chimes in to some degree. Thomas and Gorsuch and Kavanaugh. All write Concurrences, Sotomayor and Jackson, both write dissents. Now, before we get into Roberts, the basic contours of this debate, all throughout these opinions are relatively simple and it's a debate that you've seen before. Supporters of affirmative action think that due to historical wrongs against Black Americans, especially the continuing existence of systemic racism and the proven value of diversity in educational settings, schools should be able to factor race into their admissions criteria.

0:19:20.0 Peter: Opponents of affirmative action believe that our system should be colorblind. There are plenty of bad faith criticisms of affirmative action, but I think the good faith critique is that any discrimination on the basis of race is an inherent wrong, even if it's well intended or at least that using racial categories is sort of a step down, a very dangerous path, a very slippery slope. So this is the same debate that the court is having. They dress it up with leak legal terminology and discussions of precedent, et cetera, et cetera. But same basic debate Conservatives think that societal racism is largely behind us, and that liberal efforts to remedy racism are the real problem.

0:20:06.0 Rhiannon: Right.

0:20:07.6 Peter: So the gist of the majority opinion is that the constitution's equal protection clause forbids any consideration of race in admissions by state universities or state funded universities. Now what's remarkable about this decision and I'm not really exaggerating, is that Roberts paints it as like part of a heroic effort against discrimination.

0:20:30.8 Rhiannon: Yeah.

0:20:30.9 Peter: That started with reconstruction.

0:20:33.8 Michael: Oh, it's disgusting.

0:20:36.8 Rhiannon: It's real disgusting, yeah.

0:20:36.9 Michael: Yeah, like every single opinion, I think tries to claim the mantle of Justice Marshall, Thurgood Marshall, like they all are like, yeah we are the true heirs of Thurgood Marshall [laughter] here majority concurrences descents, it's insane.

0:20:53.7 Rhiannon: It's real sick.

0:20:54.8 Rhiannon: So Robert says that you had separate but equal after Plessy v. Ferguson and then that ends with Brown V. Board and the court did tha he's like, we did this. [laughter]

0:21:06.9 Michael: We did this.

0:21:07.1 Rhiannon: Nice pat on the back.

0:21:07.4 Peter: And then we continued the good work from there. He says, "In the decades that followed, the court continued to vindicate the Constitution's pledge of racial equality, which is not how I'd describe Palmer V. Thompson. [laughter] Where they allowed towns to shut down public facilities rather than desegregate them or Milliken v. Bradley, where they held that school districts did not have to desegregate unless it could be proven that the district lines were drawn with racist intent. In reality, the legacy of the court after Brown was that it eliminated express segregation while reifying and insulating de facto segregation.

0:21:48.1 Rhiannon: That's right.

0:21:48.4 Michael: Sure.

0:21:48.6 Peter: Meaning that as long as it wasn't explicit in the law, segregation was not only legal, but protected. And this case continues that tradition. Roberts claims that he was continuing the work of Brown V. Board. Meanwhile, justice Thurgood Marshall actually argued Brown V. Board.

0:22:09.8 Rhiannon: That's right.

0:22:10.5 Michael: The lead litigator.

0:22:11.2 Peter: And spent that entire era after it when he was on the court dissenting from nearly every segregation case that came to the court.

0:22:18.4 Michael: Right.

0:22:18.6 Peter: Only to have John Roberts, shit kicking little cunt, we can edit this. [laughter] Who spent much of this era trying to undermine the Voting Rights Act.

0:22:31.8 Michael: Right.

0:22:32.3 Peter: Claim to be the heir to Marshall's moral compass.

0:22:36.1 Rhiannon: Vomit.

0:22:39.1 Peter: Just, is fucking disgusting.

0:22:39.2 Michael: They're overturning backie in which, for all intents and purposes, Marshall joined in part and dissented in part 'cause he didn't think it went far enough.

0:22:46.8 Peter: Right.

0:22:47.1 Michael: Like he didn't like how constrained Backie was. And they're overturning it as Thomas points out, while claiming Marshall's mantle, it's really grotesque.

0:23:00.6 Peter: Yeah.

0:23:00.6 Rhiannon: Yeah.

0:23:00.9 Peter: At one point, Roberts is responding to the dissent and he says, lost in the false pretense of judicial humility that the dissent espouses is a claim to power so radical, so destructive that it required a second founding to undo, I'm like, excuse me. [laughter]

0:23:17.8 Rhiannon: Don't fix your mouth to talk to me about the second founding motherfucker. I will fucking hurt you. Do you hear me? I will hurt you.

0:23:26.4 Peter: Censor Rhiannon.


0:23:28.5 Michael: Second founding, by the way, is a phrase, I don't know if it was coined by him, but is the title of a book by a very liberal historian by the name of Eric Foner. Who is cited extensively in a lot of these opinions because he's like one of the lead historians.

0:23:47.6 Peter: Right.

0:23:47.6 Michael: On the reconstruction era of American history. And so they're really claiming a mantle here.

0:23:55.2 Peter: Right.

0:23:55.5 Michael: But like Foner thinks this is all crap.

0:23:58.3 Peter: Right. Right.

0:23:58.8 Michael: Like a 100%.

0:24:00.7 Peter: Roberts seems to be implying that programs designed to facilitate racial diversity in higher education caused the Civil War.


0:24:10.2 Michael: Well, when you put it like that.

0:24:13.6 Rhiannon: I can't. I fucking Can't.

0:24:15.4 Michael: It sounds, it sounds a little off.

0:24:16.9 Peter: Yeah. This is just another place where he wants to suggest that the use of race as a factor in admissions is somehow like of a feather. With the racism of slavery.

0:24:30.4 Michael: Right.

0:24:31.3 Rhiannon: Right.

0:24:32.1 Peter: That these things are somehow on the same basic page.

0:24:33.7 Rhiannon: Yeah.

0:24:34.6 Peter: Now, Roberts makes a handful of more specific complaints. He says that a lot of the benefits of diversity in higher education cited by the schools are too amorphous and difficult to measure. The idea being that courts need to analyze these things. So if you don't give us like objective criteria, it's hard for us to analyze it. Which is an odd complaint 'cause I feel like if anything, the benefits of diversity are much more measurable than the harm posed by allowing affirmative action, which is mostly just like an abstract complaint about fairness and...

0:25:09.7 Michael: Right.

0:25:10.2 Peter: The use of race. Right.

0:25:11.1 Rhiannon: Right.

0:25:11.3 Michael: Yeah.

0:25:11.4 Peter: He also talks about how racial categories are themselves to [0:25:15.0] ____, so like for example, schools group Asian students together, which doesn't account for differences between east and South Asians. Right.

0:25:24.9 Michael: Right.

0:25:26.4 Peter: And like, yeah. Racial categories are imperfect Race itself is a social construct. I'm not sure. I remember John Roberts being so concerned about that when he greenlit like the Dragnet FBI operations targeting Arabs and Muslims in Ashcroft to be Iqbal.

0:25:40.1 Rhiannon: Thank you.

0:25:40.5 Peter: Or in Trump V. Hawaii when he signed onto the Muslim ban. Right.

0:25:45.0 Rhiannon: Thank you.

0:25:45.5 Peter: All of a sudden he's very woke about race. Oh, the Muslim ban is unconstitutional because it conflates the cosmopolitan northern sections of Iran with the more agrarian southern sections.


0:26:01.9 Peter: He also says "Eliminating racial discrimination means eliminating all of it". Which feels like it hearkens directly to one of his closing lines in parents involved. Right?

0:26:13.6 Michael: Yes.

0:26:13.9 Peter: Where he says the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.

0:26:20.9 Rhiannon: Good.

0:26:21.0 Peter: Which like I guess he felt was a mic drop, right?

0:26:24.2 Michael: Yes. [laughter] Absolutely.

0:26:25.0 Peter: And so he's just like, I'm gonna do it again. I'm gonna revisit that same tautology. Yeah.

0:26:29.7 Michael: Yeah.

0:26:29.9 Rhiannon: Yeah.

0:26:30.4 Peter: It's like when a guy tells a bad joke in a group setting and no one laughs and he's like, maybe no one heard. And like he says it again.

0:26:33.7 Rhiannon: Yeah, let me just pull this out again. Surely the people love this.

0:26:34.9 Peter: Yeah. This time everyone's gonna love it.

0:26:41.6 Rhiannon: Right.

0:26:41.9 Peter: This will be the time that it ends the debate, sir.

0:26:45.4 Rhiannon: Right.

0:26:47.3 Michael: [laughter] Right.

0:26:47.7 Peter: Just a schmuck. And an opinion before we move on. That I think spends page after page evading the actual conversation, which is what is discrimination really?

0:27:00.9 Rhiannon: Right.

0:27:01.4 Peter: You know what I mean? What sorts of discrimination are we actually talking about when we're talking about the equal protection clause?

0:27:07.6 Michael: Right.

0:27:08.3 Peter: That's the fundamental question here. And he wants to imagine that that question is an easy one and it's absolutely not.

0:27:16.9 Michael: No.

0:27:17.3 Peter: So there's a lot more in here. You could peel this back like an onion for days on end.


0:27:23.3 Rhiannon: Oh yeah.

0:27:23.6 Peter: But I think we need to move on.

0:27:26.1 Michael: If you did that, it'll just make you cry. Like.

0:27:27.0 Rhiannon: Right [laughter]

0:27:30.1 Michael: You're just peeling an onion, though.

0:27:32.0 Peter: That metaphor's got layers.


0:27:37.9 Peter: So, we should move on to a very disturbing piece of American literature.

0:27:45.5 Michael: Yes.

0:27:46.5 Rhiannon: Yeah. [laughter]

0:27:46.7 Michael: At some point in time in this podcast, I became the Thomas guy.

0:27:50.2 Peter: Yeah.

0:27:51.1 Michael: And gets his concurrences.

0:27:52.4 Peter: I've just been letting that happen, and I think Rhi has too, and it's been great for us. [laughter]

0:27:56.7 Michael: I want to return to sender [laughter] this gift I've received from my co-host. I'm not interested. Oh, my God. Okay, so Thomas writes a brutal 60 page concurrence, longer than the majority opinion, where he sets out his own sort of history of race relations in the United States and our legal jurisprudence and laws around it. His history is demented, to say the least.

0:28:29.4 Peter: Yeah.

0:28:29.6 Michael: I don't want to summarize 60 pages of argument, so I'm going to just go through some things that I think are, really high-level points he tries to make. So he says this is an originalist defense of their decision here to end affirmative action. And he wants to say this case that came shortly after the passage of the 14th Amendment, known in legal circles as the Slaughterhouse cases, is sort of our best insight into what the 14th Amendment means. The Slaughterhouse cases, he says, portrayed this very color blind view of the Constitution, where no race can be favored over another regardless, right? This isn't about helping freed former slaves. This is about equality, color blindness. And he says things went awry later in infamous cases Plessy V. Ferguson, which helped create Jim Crow and segregation.

0:29:33.4 Rhiannon: Right, separate but equal.

0:29:34.9 Michael: He cites Eric Foner, as I mentioned. He cites Akhil Amar, a well-respected Centrist Yale law Prof. So I just want to mention what both those guys think of the Slaughterhouse cases. Amar says, virtually no serious modern scholar, left, right, and center, thinks that the decision is a plausible reading of the 14th Amendment. And Foner says, the court's study distinction between the privileges deriving from state and national citizenship should have been seriously doubted by anyone who read the congressional debates of the 1860s. The Slaughterhouse cases, as I learned them, were the start of the gutting of the 14th Amendment.

0:30:18.9 Peter: Yeah.

0:30:20.1 Rhiannon: That's right.

0:30:20.8 Michael: The total kneecapping of the privileges and immunities clause of the 14th Amendment and the beginning of the construction of Jim Crow. And Thomas is recasting this as our original bulwark against segregation that would later be weakened.

0:30:39.9 Rhiannon: Yeah.

0:30:40.1 Michael: And it's just nonsense. He also takes a look at laws passed shortly after the passage of the 14th Amendment or around the time, and offers some really weak arguments for why they are evidence.

0:30:54.7 Peter: This is the best part of the opinion, because he is...

0:30:58.4 Rhiannon: This is wild.

0:31:00.8 Peter: Flailing.

0:31:01.4 Michael: Flailing.

0:31:01.6 Peter: Flailing. And just to be clear here, the idea is that if the same Congress that passed the 14th Amendment with the Equal Protection Clause also passed laws that discriminate based on race by conferring benefits to Black people, for example.

0:31:20.8 Michael: Right.

0:31:20.9 Peter: That would defeat the Originalist case against affirmative action.

0:31:23.9 Michael: That's right. So one thing that Congress did was create something called the Freedmen's Bureau, which gave a lot of benefits to freed slaves who, if you really paid attention in American history, you might remember, those were mainly Black people. [laughter] Those were black Americans. And he says, well, this is a quote, "Importantly, however, the act applied to freed men and refugees, a formerly race-neutral category, not Blacks, writ large."

0:32:00.3 Rhiannon: You fucking psycho.

0:32:02.4 Peter: He's saying that the term freedman is race-neutral.

0:32:06.7 Michael: It's a race-neutral term.

0:32:08.2 Rhiannon: What the fuck?

0:32:08.9 Michael: Three years after slavery has ended.

0:32:11.9 Peter: There were no white freedmen. It was a necessarily all-Black category. [laughter] It only refers to Black people.

0:32:17.6 Rhiannon: It only refers to black people.

0:32:20.1 Michael: Yeah.

0:32:20.2 Peter: Now, what he's doing is saying, well, it's not a literal proxy for the term black because there were Black people who were previously not slaves. And that's true. That's not what race-neutral means.

0:32:30.8 Michael: Right.

0:32:30.9 Peter: It doesn't mean that it's literally a proxy for the term black, right?

0:32:34.9 Michael: Yeah.

0:32:35.1 Peter: It's a necessarily all-black category.

0:32:36.3 Michael: Right.

0:32:36.6 Peter: And if I can add something here, he makes that point that you highlighted that the Freedmen's Bureau also helped white refugees.

0:32:48.1 Michael: Yeah.

0:32:48.9 Peter: Sort of loosely implying that, well, maybe freedmen also included white refugees. But in reality, the full name of the Bureau was the Bureau of refugees, freedmen, and abandoned lands, making it clear that they were separate categories, right? He never spells out the full name of the Bureau.

0:33:07.1 Michael: Yes.

0:33:07.2 Peter: And it's hard not to read that as intentional.

0:33:09.6 Michael: Oh, absolutely. I mean, he's defending a ridiculous proposition, which is that the 14th Amendment, the Congress that passed the Civil War Amendments was color blind and didn't want racial categories ensconced in our Constitution. This is ridiculous. He doesn't mention the 15th Amendment, which explicitly mentions race, explicitly uses the word race.

0:33:33.4 Peter: Yeah. How high would you have to be to be like do you think the 15th Amendment violates the 14th.


0:33:39.8 Michael: I was like, that's the same Congress. It's the same people.

0:33:45.2 Rhiannon: He also doesn't recognize that formerly enslaved people who had been freed before the Emancipation Proclamation, say before the end of legal slavery before the ratification of the 13th Amendment. He doesn't recognize that those people did not enjoy equal protection of the law. Right?

0:34:02.2 Peter: Right [laughter]

0:34:02.6 Rhiannon: They also needed the 14th amendment because they were excluded from equal protection of the law based on their fucking race, sir. Their race. It's just so fucking stupid. It's just ridiculous.

0:34:15.5 Peter: Yeah. I mean, the question he's fundamentally asking is like, was slavery racist?


0:34:22.9 Rhiannon: Was that a race-based oppression?

0:34:26.9 Peter: So there were various statutes that classified expressly based on race from the time that the 14th Amendment was passed. And he's like addressing them one by one and like for each one, he just makes up an excuse for why it was not the same.

0:34:40.6 Michael: Yes, Yes. [laughter]

0:34:40.7 Peter: And my absolute favorite is a law from 1867 that provided money for "Freedman or destitute colored people in Washington DC" Now there's really just no way out of this one for Thomas, right?

0:34:56.3 Rhiannon: Right.

0:34:57.7 Peter: Trying to make this originalist case that the people who wrote the 14th amendment thought it was forbidden to use racial categories. But here they are using one and not just that, but clearly conferring an entitlement on a specific race.

0:35:14.3 Michael: Right.

0:35:14.6 Peter: And what he says is like, well, at the time, many former slaves lived in these shanty towns in DC, right?

0:35:22.2 Michael: Yes. Yes [laughter]

0:35:22.3 Peter: And quote, "Congress thus may have enacted the measure, not because of race, but rather to address a special problem in shanty towns in the district where blacks lived" What?


0:35:37.6 Peter: It's not because of race. It's just to address a problem specific to black people.

0:35:46.2 Rhiannon: Run that back, sir.

0:35:47.8 Michael: It's so convoluted.

0:35:49.2 Peter: If the rule is you're allowed to use racial classifications as long as it's to address a problem specific to a certain race.

0:35:56.2 Michael: Yeah.

0:35:56.3 Rhiannon: Right.

0:35:56.8 Peter: I have bad news, Clarence.

0:36:00.7 Michael: [laughter] Yeah.

0:36:00.9 Rhiannon: Yeah.

0:36:01.3 Peter: For what that means for your affirmative action argument.

0:36:02.0 Rhiannon: What are we doing here? What are we doing here today, sir? Answer me back.

0:36:07.2 Peter: Like, why do no clerks say sir.


0:36:11.3 Rhiannon: No, I think they did. 'Cause then he later says, those might have passed strict scrutiny. They might have [laughter]

0:36:15.1 Peter: Right, right.

0:36:16.2 Michael: Yeah. A concept that wouldn't be invented for another 95 years or whatever.


0:36:22.9 Peter: Yeah. But dude, the program was literally just like money for black people in DC and Clarence is like, no, no. Maybe that's not because of race.

0:36:31.2 Michael: No.

0:36:32.2 Rhiannon: Right. That's race neutral actually.

0:36:33.4 Michael: No, this is good. 'Cause I wanted to round out the rest of the opinion by just talking about it's very rambly and it's angry and incoherent and he's yelling at both the dissents.

0:36:43.4 Peter: You can tell that he wants it to be his magnum opus, but it's not coming together.

0:36:46.8 Michael: No. It's not. It's not. It's a mess.

0:36:48.7 Rhiannon: He wanted to write this majority so bad.

0:36:49.6 Peter: Yeah, yeah.

0:36:50.8 Rhiannon: You know that he did. You know that he wanted this majority bad?

0:36:56.6 Michael: Yeah.

0:36:56.9 Rhiannon: And John Roberts said, no, it's gonna be me...

0:36:58.0 Michael: White man keeping him down once again.

0:37:00.0 Rhiannon: Yeah.


0:37:02.5 Michael: But I just wanna highlight some of his more ridiculous claims. He refers to the universities here, the colleges and universities as Discriminators regularly, and he's like there're open Discriminators and he says, in fact, it is error for a court to defer to the views of an alleged discriminator while assessing claims of racial discrimination. This judicial skepticism is vital. History has repeatedly shown that purportedly benign discrimination may be pernicious and discriminators may go to great lengths to hide and perpetuate their unlawful conduct. He follows this by detailing the history of pernicious and malignant racism and discrimination at Harvard and UNC trying to keep out Jews, trying to keep out blacks, clan presences, segregationists and clan members on the names of buildings still today, et cetera. But it's like, what are you trying to intimate here? Are these schools purposefully letting in minority students in order to stamp them with a stigma of affirmative action and ruin their future lives?

0:38:09.0 Peter: Or like to create fishers in the broader sociopolitical body?


0:38:13.7 Michael: It's just like insinuation and implication and like, you know he really is grasping at straws because then he just sort of trails off and changes his subject. It's like, in any of it. [laughter] He's like, they used to be super racist and now they're doing affirmative action and we're supposed to trust them. That this isn't more of the same. And it's like, "Yeah, when you go from trying to keep minorities out to welcoming them in and trying to make them comfortable," they're not the same.

0:38:43.2 Rhiannon: It's weird because those things are opposites not the same. And I don't think it takes a 4.0, to figure that out. Put it that way.

0:38:51.6 Rhiannon: Right. Even Bryce could get that.


0:38:54.2 Rhiannon: I bet our girl Abby would agree.


0:38:58.0 Rhiannon: Yeah.

0:39:00.0 Rhiannon: RIP.

0:39:00.5 Michael: He says, again, taking aim at the university's arguments for the benefits of race-based solutions have proved pernicious and segregationist circles, bro, segregationists are still around. And let me tell you what they think about affirmative action [laughter] They fucking hate it. They hate it. They do not like it. Affirmative action is just a part of integration, which is literally the policy response to segregation. It's like, what are you talking about?

0:39:31.6 Peter: It's so funny that they have like crafted a narrative where this is not part of the integration project. Which it so obviously is. This is part of the process of integrating schools post segregation, and eventually the court just like put their foot down and was like, actually this is segregation somehow.

0:39:55.3 Michael: Yes. Well, Thomas, if you're like, well, how does he get there? He does suggest that these schools are, in essence segregation. It's because once they bring minorities on campus, they go to great lengths to then segregate their campuses. And at first I was very confused by this portion of it. I wasn't quite understanding what he was getting at until I read the descents and I realized what he was talking about is, affinity groups. Like black student organizations equating that to segregation is offensive. Like look, my mom is Cuban. When I was at Dartmouth, the doula or whatever, the Dartmouth undergraduate Latin student Organization or whatever it was called, I don't remember. They used to send me little emails every fucking week about meetings. I never went to one. I didn't really care. That's not the same as segregation. That's not the same as a whites only bathroom. [laughter] That's not the same as forbidding me from attending the school because my mom is Cuban. What the fuck are you talking about?

0:40:58.2 Michael: This ain't nothing of the fact that just about every college campus in this country has white affinity groups. They're called fraternities and sororities [laughter] Those have existed forever and are integral parts of campus culture everywhere. What the fuck are you talking about? It's nuts. It's totally nuts.

0:41:19.4 Peter: Go watch TikToks of sorority girls doing chance during rush and telling me the Klan's not still around.


0:41:31.4 Michael: Oh my God. This guy.

0:41:33.2 Peter: Look, dude, one of the premises of our podcast is that you don't need to be an expert to grasp Supreme Court opinions. And they're less complex than they seem. Thomas on affirmative action, is the rare exception. You need a PhD in psychology to even begin to understand [laughter] what is going on here. This is a man so unwilling to admit that he's been helped. So, deeply terrified that he does not deserve the obscene wealth and power that he has accrued. That he built an entire constitution to protect himself.

0:42:07.9 Michael: It is fragile ego. Yes.

0:42:09.8 Peter: And you now live under it.

0:42:12.5 Michael: Right. And this is one of the reasons why he's so angry at Sotomayor and Jackson. Because they are two obviously brilliant women. Only the biggest hacks on the right deny that they're talented and intelligent. And the conservatives respect them, but they're not ashamed that they were helped by affirmative action. They don't feel a stigma. And that fucking burns him up because he does, and he hates people thinking it was good and they're fine and they think other people should be helped. The idea that he isn't supremely deserving here, that he didn't earn every inch and that anybody would doubt his qualifications because he might be an affirmative action hire drives him nuts. Like absolutely nuts. It really gets him at his core.

0:43:09.7 Peter: You can sense his irritation with Jackson in the opinion.

0:43:15.0 Rhiannon: It's... I would call it vitriolic. He is spitting bile, at Ketanji Brown Jackson in this concurrence, I think the whole concurrence is written as a response to her descent.

0:43:26.3 Peter: Yeah. That's how it comes across, right?

0:43:27.1 Michael: Yeah.

0:43:28.3 Rhiannon: Yeah.

0:43:30.6 Michael: And one last point that I wanna make about Thomas's resentments here, there's been a lot of energy and thought put into his brand of conservatism, his brand of reactionary thought, whether he has like a black nationalist tradition and all sorts of stuff, but being possessed of the belief that you alone are responsible for your successes you don't owe anyone anything, and hating anyone who suggests you might, and that we might want to extend similar help to others is like core generic white guy conservatism. There's nothing special here. Like this is just a different twist on what every fucking Republican thinks about the world and their place in it and their supreme position of authority. And how much they deserve it. And fuck you for suggesting that anybody but themselves are responsible for getting there. And why the fuck should they should have to pay taxes and...

0:44:35.2 Rhiannon: Well, it's an acceptance of the insult that conservatives try to make affirmative action, out to be. When you said, Sotomayor and Ketanji Brown Jackson don't think it's an insult because the rest of us understand that John Roberts and Brett Kavanaugh and Neil Gorsuch, they didn't fucking purely earn "Their positions either" It was a ton of other factors, none of which are objective. Many of which they did not choose, they did not fucking work hard for. They were born with, they lucked into, they were in the right place at the right time, et cetera, et cetera, et cetera. Again, when you holistically evaluate a person's background. When you holistically evaluate who a person is, what they have gone through in their life, and you use race as one of those factors, one of those considerations, it is not an insult. Thomas has accepted what conservatives say about affirmative action, that that consideration is insulted. He's demeaned by it. That maybe affirmative action played a role in his life. He accepts that it's an insult, and so he's offended by it. And he wants everybody else to be offended by it too.

0:45:40.9 Michael: Yep. That's right. Before we continue, it took a lot outta me. I wanna refresh my drink. [laughter] I'm drinking through this episode. [laughter]

0:45:44.9 Peter: Get ready. 'Cause I'm gonna be talking about the concurrences from Gorsuch and Kavanaugh.

0:45:45.9 Michael: Yes.


0:45:46.6 Peter: The good stuff.

0:45:47.9 Rhiannon: We are back.

0:45:48.9 Peter: Alright, let's talk about the Gorsuch and Kavanaugh Concurrences, at least briefly. Gorsuch's is fairly technical remember UNC is public and Harvard is private, and that should be two distinct analyses but, Roberts just collapses them into one. And then drops a footnote being like, "Yeah, we did this." [laughter] And Gorsuch is sort of like, "Hey, I agree with the outcome but these should really be two separate analyses. We should be doing a full title six analysis for Harvard, blah, blah." It doesn't lead them to a different place. Just sort of a technical point. Kavanaugh on the other hand, files a classic calf concurrence.

0:46:37.8 Rhiannon: Here he goes again, this silly fucking clown.

0:46:41.4 Peter: Yeah. This is a phenomenon we first talked about a couple years back I think we first touched on this. But Kavanaugh likes to contribute a concurrence that adds nothing substantively.

0:46:49.9 Michael: No.


0:46:50.1 Peter: But just sort of like re-articulate the majority opinion. And also sometimes maybe just like frames it a little nicer. Like with Dobbs, he was like, "We're not outlawing abortion. We're just returning it to the states." And it's like, "Yeah, sure." That no one needed to be told that Brad.


0:47:09.1 Rhiannon: Yeah, yeah, yeah. This is like writing an essay for Philosophy 101. You read a book and the author says something that you'd like to say, and so you just say the same thing. It's... You don't have a new argument here. You're just regurgitating what everybody else said.

0:47:22.1 Peter: Yeah. He just wants to add his own thoughts. We call it the me too concurrence.

0:47:26.2 Michael: Right. Definitely no double meanings there.

0:47:28.3 Peter: Google Brett Kavanaugh, me too. [laughter] For more information. [laughter] So like here, he says, "Look, racial disparities still exists. It's just that affirmative action is not the proper vehicle for addressing them. The proper vehicle is civil rights laws." He says, "Federal and...

0:47:45.2 Rhiannon: Which you don't fucking believe in either. You stupid piece of shit.

0:47:50.8 Peter: He says, "Federal and state civil rights laws serve to deter and provide remedies for current acts of racial discrimination." Note, he's purposefully ruling out remedies for past discrimination. He says, current acts of discrimination. Anyway, I don't think it should be legal to add a concurrence like this when there are already over 200 pages of opinions. I think that should be illegal.

0:48:14.4 Michael: It's not, right.

0:48:15.2 Peter: It's time for a new amendment, one that makes that unconstitutional.


0:48:20.9 Rhiannon: Yeah. No Kavanaugh concurrences. How about that? Let's put that one.

0:48:23.9 Michael: Because Kavanaugh doesn't get the right opinions anymore. [laughter] He just gets to vote and that's it.

0:48:27.7 Rhiannon: All right. Well, we have reached the part of the case where some justices finally have some good things to say, some powerful things to say. Of course, you're only gonna find that in the dissent.

0:48:40.5 Peter: That's right.

0:48:41.3 Rhiannon: Justices Sotomayor and Brown Jackson, both right dissents talking about Jackson's first. The theme throughout the majority and the concurrences is affirmative action is unfair. And so she kind of takes that, the claim that it's unfair and just completely eviscerates, just completely breaks that down. It's history. It's jurisprudence, it's legal, it's historical, it's social, it's all of it. Early in her dissent, she says, "Students for fair admissions has maintained both subtly and overtly that it is unfair for a college's admissions process to consider race as one factor in a holistic review of its applicants. This contention blinks both history and reality in ways too numerous to count, but the response is simple. Our country has never been colorblind, given the lengthy history of state-sponsored race-based preferences in America to say that anyone is now victimized. If a college considers whether that legacy of discrimination has unequally advantaged, its applicants fails to acknowledge the well-documented intergenerational transmission of inequality that still plagues our citizenry." So she's like unfair?

0:49:51.9 Peter: Unfair.

0:49:52.9 Rhiannon: Let me fucking tell you about unfair actually. And so she goes through the entire, I'm laughing because it's like what we've just been through in the majority of the concurrence is fucking absurd. Wildest. You, it's a Dali painting. That's where you are. [laughter] And so Jackson, you can feel, she's like, "What the fuck are we talking about? What the fuck did you just say Clarence Thomas?" And so here she is she breaks it down history from the beginning of the United States. What is unfair, Ketanji Brown Jackson says, is the history of race-based consideration in society at every level from the time of the founding.

0:50:31.8 Rhiannon: That race-based consideration hurt, oppressed, subordinated, black people, beginning, of course with slavery, but even after passage of the reconstruction amendments, right? This was a legal system that forced, formerly enslaved people into sharecropping. These were vagrancy laws that criminalized black people's jobs. If they didn't work for white people, it criminalized their existence. It criminalized moving to a better place. This is the creation of laws about where freed black people could live, could move to, could work. This is the system of Jim Crow. It is other policies and laws and practices that explicitly disfavored black people's social and economic mobility. We are talking every level of the economy of education, of civil society and social mobility. We are talking banking and loans. We are talking discriminatory housing. She mentions the history of the federal housing administrations. Look into that bitch. The history of the Veterans Administration. And how racist they were explicitly so they were all built to funnel benefits to white people and not to black people. After going through all of this list, she's like, "This is just illustrative. This isn't even exhaustive. There's 1,051,000 billion more examples of this shit in every aspect of our law from the beginning, you stupid ugly monsters."

0:52:05.1 Rhiannon: She says, "For present purposes. It is significant that in so excluding black people, government policies, affirmatively operated, one could say affirmatively acted to dole out preferences to those who, if nothing else were not black. Those past preferences carried forward and are reinforced today by, among other things, the benefits that flow to homeowners and to the holders of other forms of capital that are hard to obtain unless one already has assets. She goes through congressional history, legislation passed in the 20th century that is protective of workers, retirees, families. They were all designed to actually provide benefits for white people and not black people. Black people were excluded from mortgages and home buying. They were excluded from the consumer credit market on and on and on. Until today, what you have is persistent inequality based on what? On race.

0:53:05.1 Rhiannon: And of course you see it in higher education." She goes into details and stats about that. A lower percentage of black high school graduates go to college than their white counterparts. A lower percentage of black college students graduate from college. Black students who do graduate from college find themselves in twice as much student debt as white graduates, because you're talking about the poverty level that they entered college with to begin with. Workplace gaps, health gaps, on and on. So don't say there can be no constitutional consideration of race. When every layer of the system there was built in consideration of race. It's disingenuous. Your claim of unfairness is hollow. It's weak, it's malicious, it's really disgusting, and it's a powerful dissent. She's calling it out on every single level. And that's why Clarence Thomas is that mad.

0:54:01.9 Peter: Yeah. And probably the funniest part of the opinion is that Thomas spends like, I don't like a dozen or so pages, maybe more directed at the dissents. And like Jackson's dissent in particular, and she responds to him in a footnote. [laughter] Where she says that he is responding to a dissent I did not write in order to assail an admissions program that is not the one UNC has crafted. [laughter] And then says that his opinion demonstrates an obsession with race consciousness [chuckle] and like just sort of does like a real quick takedown of a couple of his points. But basically says that he has like...

0:54:45.3 Rhiannon: Why you so obsessed with me?


0:54:49.4 Peter: But she specifically says he ignites too many more straw men to list or fully extinguish here.


0:54:57.0 Rhiannon: Woo.

0:54:58.5 Peter: Just, that not even getting a substantive response, like her not deeming his points worthy of substantive response. Oh he got mad.

0:55:10.6 Michael: Big mad. Sotomayor also writes a descent. It's also very good though. I have my quibbles with it. We'll get into, but it also starts with a history lesson, an excellent one worth reading if you are interested in the history of race in America. She properly understands that the beginning of Jim Crow started almost immediately after the passage of the Civil War Amendments doesn't like delay it recharacterize and reframes colorblindness in this way, like Thomas's obsession with colorblindness as echoing more slaughterhouse cases and segregationists than what he thinks it's supposed to echo. She also specifically notes how much they all want to claim the mantle of Thurgood Marshall and calls it nothing but revisionist history and an affront to the legendary life of Justice Marshall, a great jurist who is a champion of true equal opportunity, not rhetorical flourishes about colorblindness.

0:56:20.6 Rhiannon: Get his ass.

0:56:21.5 Michael: Excellent She goes at the court, the majority for a lot of things. She points out, they do their own fact finding, which is like not what the Supreme Court's supposed to be doing, ignores the lower courts. She points out that a lot of the arguments that you find in the majority in concurrences were arguments that you can find in the dissents, in Gruber and Backie and says lost arguments are not grounds to overrule a case.

0:56:46.0 Michael: He points out that the court has in the past permitted the consideration of people's race in certain law enforcement decisions, like at the border. And in traffic stops. So she says the result of today's decision is that a person's skin color may play a role in assessing individualized suspicion to justify a stop and frisk, to justify a stop at the border, et cetera. But it cannot play a role in assessing that person's individualized contributions to a diverse learning environment. That indefensible reading of the Constitution is not grounded in law and subverts the 14th amendment's guarantee of equal protection.

0:57:26.7 Michael: But really her main idea that I felt like I came to on my own as I was reading the first half of her opinion, and then realized, no, she just like led me to water [laughter] and then as I got to the second half, I was like, no, that's just the point of her opinion is that really what we're talking about here is that even after the Civil Rights Movement, there have been big efforts to recreate de facto segregation. The construction of the suburbs. And then when those started getting integrated, the exurbs separate school districts with local taxation, construction of highways to facilitate people moving to all white neighborhoods, the hollowing out of inner cities, the ghettoizing of inner cities, the gutting of social services, on and on and on, things we've talked about at length in this podcast.

0:58:18.7 Michael: These people went to all these efforts to recreate the segregated society, and it pisses them off when then colleges go and say, well, we're just gonna go and make a point of taking some of these underrepresented and underserved populations. They're like, no, we spent 50 years creating an unequal society. We should have front of the line here at Harvard and here at UNC. And she says, the majority's true objection appears to be that a limited use of race in college admissions does in fact achieve what it is designed to achieve that helps equalize opportunity and advances respondents objectives by increasing the number of underrepresented racial minorities on college campuses. That's what pisses them off.

0:59:05.8 Rhiannon: Right.

0:59:06.2 Peter: Yep.

0:59:06.2 Michael: They want fewer black and Latino people on campuses. In higher education and in society in general. They've spent a ton of political capital and money and effort over generations to ensure that, and this is in their way.

0:59:24.9 Peter: What's the point of spending all that money on bronc and squash lessons?


0:59:30.2 Peter: If someone can get the same benefit just by being Hispanic.

0:59:33.2 Michael: That's right.


0:59:34.8 Michael: It is a rosy or optimistic opinion, she ends it by saying, "Despite this courts unjustified exercise of power, the opinion today will serve only to highlight the court's own impotence in the face of an America whose cries for equality resounds." I don't necessarily disagree with her on that point, but I think I would like a little more from her on the mechanism by which those cries can be turned into policy. In other opinion, she's written very positively about the role social movements play in changing the law, and I think what that was missing here. The only other equivalent I have with this opinion, which is excellent, I wanna be clear, is there is a bit of like valorization of diversity as an educational goal post Bakke, which was the case that basically said, "Diversity is a compelling interest that can justify racial discrimination in the education context." And it's not that I am against diversity, I think it's great, and I think a lot of her describing its benefits are true, but I wish there was a little more on the point that she does make, that Marshal and a lot of civil rights leaders did not think that was enough, did not think that diversity was the only reason for affirmative action, and wanted something broader and better.

1:01:00.1 Peter: Right. Or like maybe more to the point, why do we need affirmative diversity action? In just about every case, it's because of inequity that pre-exists, right? Inequity that results from historic discrimination, et cetera. You can't separate these two things and you can't talk about diversity like you're doing fucking HR shit. We're talking about the structure of society down to its bones. We're talking about the process and project of desegregation.

1:01:36.8 Rhiannon: Right.

1:01:37.3 Michael: Yeah. And I mean, I get it. I get she's trying to like frame her argument as like we are the heirs of Bakke and Grutter and Brown V. Board and all these cases, and so she's confining herself to that, but I would like the liberals to think bigger, especially when you're in a 6-3 descent here, right? You lost big. Like you can be ambitious. You can think bigger.

1:02:04.6 Peter: No one cites Millikin, no one cites Palmer V. Thompson. They don't talk about the court's role in impeding desegregation.

1:02:14.9 Rhiannon: Yeah, I think this leads me to the broader takeaways I have reading a case like this, knowing over the past few years that this case is coming. That like when they took this case, it was like, "Okay. Well, they're about to overturn invalidate affirmative action." And I think this is related a little bit, Michael, because ultimately the hollowness that they say diversity holds or that diversity is not really that important, it's too opaque, what are you talking about? That can't be a compelling government interest? Diversity?

1:02:50.8 Michael: The autonomous is like, "Does this improve test scores?" I don't see any evidence of that." [laughter] Like that's the only educational goal you can have is improving test scores.

1:03:00.1 Rhiannon: Diversity, like what does that even mean? But that tone, we got to that because the Supreme Court said [laughter] that diversity is the only acceptable goal of affirmative action, is the only reason you could have affirmative action, right? And so I just kind of like wanna highlight that this has been a Supreme Court project since Brown versus Board, right?

1:03:23.1 Michael: Absolutely.

1:03:23.6 Rhiannon: This has been decades in the making. Desegregation. The desegregation that is ordered across society because of Brown versus Board, that desegregation order doesn't work without proactive remedial measures, including affirmative action, right?

1:03:42.1 Michael: Yeah.

1:03:42.4 Rhiannon: This concept of diversity, I think it's pretty hollow. It's hollow in the jurisprudence, because the Supreme Court has ruled over and over again that the 14th Amendment cannot be remedial. So if you go back to the history of the passage of the 14th Amendment, and you just think of what the 14th Amendment Congress was contending with "The end of slavery" you have formerly enslaved people, what does our law say about them? And with the 14th amendment, with the history shows what the drafters were talking about and arguing is that formerly enslaved people should have the same rights and privileges that white people enjoy across the country, period. And so what does that then entail about the law. What does the law mean? It must mean that you can remedy all of the harm that the law caused before that. That a system of slavery imposed on people and their families, the community, generations.

1:04:43.1 Peter: And not just at the law caused, right?

1:04:46.4 Rhiannon: Right.

1:04:46.8 Peter: Like it can also be harms that private actors cause.

1:04:49.7 Rhiannon: Absolutely.

1:04:50.2 Peter: The government plays that function all the time, right?

1:04:52.4 Rhiannon: Right.

1:04:52.9 Peter: If you become disabled or get in a car accident, the government will give you disability funds. You might get damages. That's a function that the government regularly serves.

1:05:04.7 Rhiannon: That's exactly right. And so, when a modern Supreme Court is saying, all the 14th Amendment means is we can't classify people based on race. It is inaccurate, it's a historical, and it is a modern interpretation that they're saying is true because they have repeated it over and over again since Brown v. Board of Education. They have latched on to a couple of uses throughout Supreme Court history of the term color blind, and they have decided since the court ordered unanimously that public society must be desegregated in Brown V. Board, that actually what the 14th Amendment means is, let's just not classify anybody based on race, let's just not have racial categories in the law. Why? Because it's hollow, because it doesn't fucking do anything, because it doesn't make white people act differently. That's why. So our modern anti-racism culture mirrors this jurisprudence, or at least has developed parallel to...

1:06:08.4 Rhiannon: This conservative interpretation of the 14th Amendment, right? That diversity, In the workplace" being, "Respectful of a different culture" that that is the solution to racism, right? Not remediation of racist economic structures that start from childhood, that start from generations back, right? In education, through college, financially, in the economy, in every level of society, right? So, when you find yourself, as we do, in a modern debate about racism, what racism has wrought in our society, how do we fix it?

1:06:47.2 Rhiannon: Know that the terms of this debate, the tone of this debate, the vocabulary that we're using, we have accepted the conservative terms, right? And that has been a political project since the Civil Rights Movement, to hollow out any effort at remediating racism. And that's what this case does, right? It's the ultimate, it's the nail in the coffin, right? The court has been doing it in all of the desegregation cases, in all of the affirmative action cases, bit by bit by bit, until finally, we had some vague, this word, diversity, and John Roberts could say, "Fuck that, that doesn't mean anything."

1:07:26.1 Michael: Right.

1:07:27.2 Rhiannon: Right.

1:07:27.3 Michael: Right. Yeah, that's why I think the only sort of remediation that the court has basically given the green light in the racial discrimination, "Context" is, if you can prove you specifically were, like, the subject of government discrimination, which is why I think Harvard should announce that for the next, like, five years, they're only accepting applicants who can show that their family were the victims of red-lighting. And watch conservatives...

1:07:57.3 Rhiannon: Lose their mind.

1:07:57.8 Michael: Absolutely lose their mind. Just absolutely implode.

1:08:01.2 Rhiannon: Just melt their brains, yeah.

1:08:03.9 Peter: I mean, there was a moment in oral argument where they were arguing about the whole Freedman's Bureau point.

1:08:10.0 Rhiannon: Yeah.

1:08:10.8 Peter: And the lawyer was making the point that Thomas did. He said, well, Freedman is sort of race-neutral. It's not referring to race in and of itself.

1:08:18.3 Michael: Yeah.

1:08:19.0 Peter: And then Kavanaugh was like, well, okay, what if instead of race per se, we said we were gonna give privileges and admissions to the descendants of slaves?

1:08:30.3 S?: Descendants of slaves would not be race-based, correct?

1:08:33.0 Peter: And the lawyer was like...

1:08:34.4 S?: I think that's incorrect, Justice Kennedy.

1:08:36.7 Peter: No, I don't...

1:08:38.0 Rhiannon: Yeah, can't compute. Oh, wait a minute. Yeah.

1:08:41.2 Michael: What?

1:08:41.9 Rhiannon: Yeah, exactly. It's so flimsy, all of their arguments.

1:08:46.8 Peter: Right. I always had this sort of, like, thought in my head that conservatives could write a law just listing out the names of every Black person in the country and being like, yeah, these people can't vote. And then if someone was like, well, it's racist, they're like, whoa, whoa, whoa, it's actually race-neutral. It's just a list of names.

1:09:04.6 Rhiannon: Right, right.

1:09:05.6 Michael: Yeah, exactly.

1:09:06.8 Peter: That's the logic that they want you to believe is sound, right? The conservative position on this stuff has always been semantics, and it's intended as a deflection from the central issue, right? The central issue is that Black Americans have been systematically separated from wealth and power in this country for hundreds of years. Started with slavery, continued with Jim Crow and segregation, redlining, and every other discriminatory practice in the mid-century on through the present day.

1:09:32.8 Michael: Mass incarceration.

1:09:34.0 Rhiannon: Everything.

1:09:34.6 Michael: It hasn't stopped.

1:09:35.6 Peter: Yeah, I mean, and the result is a country that is plainly segregated by race across nearly every material metric, right? Black people in this country are disproportionately poor, receive less education on average. Large segments of their populations are siloed into pockets of urban decay that were created in the mid-century and remain to this day. Research shows that prejudice against Black people still exists in significant amounts in the micro, right? Like those studies that repeatedly show that resumes with Blacker-sounding names will be rejected at much higher rates than identical resumes with whiter-sounding names. So the broad issue is just, like, what's to be done about all of this?

1:10:16.0 Michael: Right.

1:10:16.3 Peter: And if you think that in the face of that vast inequity, college is giving some preference to Black applicants is beyond the pale, I don't think you're being serious, right? What this is actually about is the fact that conservatives believe that the relative position of Black Americans in this country is, in fact, good and natural and just.

1:10:39.3 Michael: Yes.

1:10:39.6 Peter: And affirmative action and other efforts to create mobility for Black people are just liberal tampering with that hierarchy, that just hierarchy, that natural hierarchy.

1:10:52.3 Michael: Right, these are the same groups. Like, you can't separate this from, like, the same policymakers and political coalitions that, like, really like Charles Murray, right? Who argues that Black people are genetically inferior and therefore we shouldn't even bother with social programs aimed at benefiting them, because that's just, like, pissing money down the drain. They're just different parts of the same movement. It's very frustrating to have this conversation with centrists who, like, refuse to acknowledge that.

1:11:26.9 Peter: Right.

1:11:27.2 Michael: Oftentimes because they themselves might have some sympathies for those positions.

1:11:31.7 Peter: Well, because they, I think, agree with a lot of the premises, but they don't necessarily agree with the conservative policy approach, right? Centrists often probably in their hearts believe that, like, okay, Black people are probably culturally or genetically inferior, but they also deserve a helping hand, right? And that's the difference between the centrist and the conservative, right? They agree with the same premises.

1:11:54.8 Michael: Right.

1:11:55.0 Peter: It's just about where they take them.

1:11:56.6 Michael: Yeah. I also think, like, where we've ended here, not, like, in the episode, but socially, it makes me think of... I think there's this very sort of endemic idea on the left, broadly speaking, of this country, like, the liberal left, that social problems are sort of discrete issues that you can address and fix. And move on from, you can pass the Voting Rights Act and the Civil Rights Act, and then racism is done.

1:12:29.1 Rhiannon: Right.

1:12:29.3 Michael: And you don't have to think about it anymore. And you can feel good about it. You can pass ObamaCare and then healthcare is solved and you don't have to think about it anymore.

1:12:38.5 Rhiannon: You can get Brown V. Board. Right?

1:12:40.3 Michael: Right. You get Brown V. Board and then schools are integrated.

1:12:43.4 Rhiannon: We don't have segregation anymore.

1:12:46.1 Michael: And you can put it behind us.

1:12:46.4 Rhiannon: Yep.

1:12:46.5 Michael: And it's sort of this like the arc of history bends towards justice idea, which I don't think is correct. Like I don't think the arc of history bends towards justice. I think people sometimes bend it towards justice with their actions through social movements by applying pressure to politicians. But I think a better analogy is, I think the more evocative, like putting your shoulder to the wheel of history, it takes a massive amount of people pushing and ever pushing forward. The work doesn't stop.

1:13:23.2 Rhiannon: Right.

1:13:23.7 Michael: I don't mean to sound pessimistic on that, and I don't mean to sound like you need to make it your life. It's just something that you do. Maybe it's just volunteering at a soup kitchen or it's how you donate your money or whatever. But it is a work that if we believe that the world can be better, we all have to engage in continuously throughout our lives. And we have to understand that there's no end point. There's no like, we made it, we're here. We're at the utopia and everyone is happy. But it's just a part of being a good person is working to better your society and make sure that your neighbors are treated well. That sentiment is not in vogue.

1:14:10.7 Peter: Yeah.

1:14:11.5 Michael: And it's unfortunate because a lot of well-meaning people who could do a lot of good, take a lot of comfort in the idea that these problems have been solved and then are shocked to see them resurface. In the modern day.

1:14:27.8 Peter: What's a joke we could make here?



1:14:32.2 Peter: All right, folks. Next week we're gonna do another premium episode, and we wanted to talk about Clarence Thomas 'cause everyone's talking about Clarence Thomas.

1:14:46.5 Michael: Talk of the town.

1:14:46.6 Peter: But we thought, what do we have to add in this day and age? What he's getting so much attention.

1:14:52.7 Rhiannon: Yeah.

1:14:52.9 Peter: And so we thought we would take a look at his dissents and report on what we think they tell us about Clarence Thomas.

1:15:01.4 Rhiannon: What's Clarence Thomas mad about?

1:15:03.0 Peter: Yeah. [laughter]

1:15:04.5 Peter: Follow us at five four Pod. You can head on over to to subscribe to our show across platforms to hear the premium episode about Clarence Thomas's descents and other premium episodes and ad free episodes, and get access to special events, our Slack, et cetera. We'll see you next week.

1:15:27.7 Michael: Bye everybody.

1:15:28.6 Rhiannon: Bye.

1:15:29.2 Speaker 5: Five to four is presented by Prologue Projects. Rachel Ward is our producer, Leon Naifac and Andrew Parsons provide editorial support. And our researcher is Jonathan DeBruin. Peter Murphy designed our website, Our artwork, is by Teddy Blanks @chipsny, and our theme song is by spatial relations.


1:16:06.3 Peter: So that is coming. [laughter] You can cut all this. Rachel?

1:16:09.0 Rachel: Yeah, this is...


1:16:10.7 Rachel: Rachel.

1:16:10.8 Peter: Leave it in. This is great.

1:16:12.1 Rachel: This is Rachel discretion.