Affirmative Action on Trial
The Supreme Court’s ruling supporting a Michigan constitutional ban on the use of race as a criterion for admission to its public universities, one also found in constitutional amendments of California and other states, confirms the widespread antidemocratic surge gripping the nation for several decades, really from the Vietnam Era and even before, and itself inseparable from the Iraq and Afghan interventions, CIA torture-rendition-disappearance, drone assassinations, attempted regime change in Latin America, and, most recent, regime change in Ukraine, within the context of geopolitical efforts to isolate, contain, and reduce the influence and power of Russia and China, to stave off America’s declining status as unilateral Superpower Numero Uno—with no other numbers to follow. The ship of state is listing dangerously to the Right, with Chief Justice Roberts and his merry band of pranksters, playing games with the Constitution, ruthlessly pushing steerage passengers aside in their pell-mell rush for the lifeboats, Obama watching from a safe distance as race is crucified on the altar of popular majority rule (aka, plebiscitary fascism, in which, not the cardinal principle of Equality, but whatever a narcotized, somewhat intimidated, increasingly reactionary, mass populace want—or think they do). Affirmative action as a pathway to racial equality, economic democratization, piercing the boils of ethnocentrism, while not a guaranteed outcome (for the foundation in attitudinal change would require significant alteration if not scrapping of capitalism as a system of power), would at least make a start in these directions. A black/Hispanic underclass is not exactly the ideal prescription for democratic governance, an outcome, in any case, not wanted by the Supreme Court here, Congress, the Executive, the financial and business communities, the power structure per se in all its splendor, Team Obama expressing US interests which integrate racial subordination in America with superordination of US capitalism globally, a not too difficult leap in vision when one’s corporate heart beats strongly.
Down to cases, specifically Schuette v. Coalition to Defend Affirmative Action, we see the Court hiding behind the straw man of majority rule, when, in fact, the purpose of the Constitution is to prescribe and require implementation of rights which should, if they are not, be raised to the dignity of inalienable and universal—in this instance, society predicated on the inherent dignity of the individual. No, affirmative action does not go that far, and in its practice has witnessed abuses, gamesmanship, and the pattern of reverse discrimination (all of which I personally opposed in faculty appointments, even while spanning a civil-rights career over decades of involvement). But even I can learn, when it becomes a necessity in a democracy for the young people to have the fullest opportunity to discover and act upon their potential. We are not speaking here of black faculty who combine mock-radicalism with three-piece suits, which Schuette does not touch, but the rank discrimination in which public institutions of learning close their doors on their own citizenry in the name of—what? Elitism, implicit racial arrogance, unstated premises of hierarchical social ordering, in which race and poverty are brought into confluence as a means of prejudging the individual a failure, and further reinforce societal conditions to ensure that this becomes so.
Affirmative action is a way out of the vicious circle of degradation for those deemed unworthy, socially branded pretty much from birth, and screened thereafter in a carefully structured framework valuing wealth, power, and property as chief signifiers of constitutional rights. Shuette opens for me a can of worms which will satisfy perhaps no-one. On one hand it acts to reinforce, indeed re-energize, power relations in America, which means, in turn, sanctioning all that comes within that context, including, war, intervention, global hegemony, capitalism as an absolute given. Doubt that? Just imagine an American society totally racially emancipated, what that would mean for human social relations, attitudes toward labor, willingness to subjugate persons of color in the Third World, the scrimping on the social safety net, all the trimmings conferring superior status, access to capital, deferential behavior of Authority, the taste of champagne enlivened by the denial of societal privilege and advantages to those who for that reason are deemed inferior—below the Constitution and the public university.
What Schuette uncovers, wholly without realizing, is a second, more fundamental confluence, beyond race and poverty, now also, race and CLASS, given the disproportional representation of blacks among working people and lower social strata. The conservation of capitalism, period, but also, practically speaking, in its acceptable form, underlines the constitutional invalidation in the Michigan case. Oh, the Justices are shrewd—their decision, Kennedy and Roberts maintain, does not invalidate the principle of affirmative action; rather, it allows the majority of each state to make its own determination. Capitalism finds too much democratization an anathema, in twisted minds finding an affinity between privatization and racial discrimination (coded, here, for the latter, popular sovereignty speaking its will, the denial of which somehow threatens property as an institution, if for no other reason, subliminally, than the long-term association of and accustomation with capitalism and racism in America as inseparable, reciprocal, interdependent.)
Coming, however, to this race-class confluence from another direction is disheartening. The decision focuses on Michigan, as direct a working-people’s state, conveniently identified as blue, as one can find. Yet in a 2006 vote, affirmative action in state universities was banned. It took the US Court of Appeals for the Sixth Circuit, in Cincinnati, in 2012, to remove the ban, as violating the Constitution’s equal-protection clause, and now for the Supreme Court to reverse that decision and uphold the ban. My antecedent concern is, why the ban, in Michigan, in the first place? And as unpopular as it is to say, the labor movement, its members, its organizers, have something to answer for—at the very least, failing to mount a nationwide drive in support of affirmative action! This holds equally true for US foreign policy, the interventions, torture, presidential (drone) assassinations, paramilitary operations for regime change, deregulation of business giantism, the whole proto-fascistic schtick of monopoly capital and global hegemony. The working class is silent as the tomb when it comes to consequential actions on behalf of human freedom. (Perhaps to antagonize CP readers further, never my intention, this applies as well to construction workers with respect to Keystone XL—my point being, so much in the political-economic-social-legal fabric is interrelated. Taking a firm stand anywhere, will give strength to needed adversarial positions everywhere.)
In this light, the Justices in the majority are perfectly in synch with a large portion of the American public who perpetuate racism as a psychological anchor to give assurance to the more inclusive perpetuation of a capitalist system unable to function otherwise, in the name of democracy its nullification subjoined to privation at home, conquest abroad. Consulting Adam Liptak’s article in the New York Times, “Court Backs Michigan on Affirmative Action,” (Apr. 23), one learns how slippery the Court majority is, posing as guardians of liberty by holding, in his words, that “policies affecting minorities…should be decided at the ballot box rather than in the courtroom.” Yet the courtroom presumably protects constitutional rights, while the ballot box, as in Michigan, can be used to ignore or destroy them. The ballot box is open season on gun rights etc. etc., in which the people can do no wrong, except of course when—highly unlikely—they move against capitalism, pollution, war, in which case, we can trust that ways will be found to invalidate such actions.
Justice Kennedy, joined by Chief Justice Roberts and Justice Alito, wrote: “This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it.” Already the emphasis shifts from principle to procedure, the “how” reflecting above all the compatibility with the Constitution, the “who,” acting in conformity with that, and not as it chooses, or the Document becomes a dead letter. He then adds: “There is no authority in the Constitution of the United States or in this court’s precedents for the judiciary to set aside Michigan laws that commit this policy determination to the voters.” Yet, the Court exercises such authority all the time, and here “policy determination” is not about green-eggs-and-ham but the equal protection clause of the Constitution, the very bulwark in the people’s protection against tyranny, whether by government or “the voters”. To her everlasting credit, Justice Sottomayor fought back (joined by Justice Ginsburg), writing—actually stating from the bench: “The Constitution does not protect racial minorities from political defeat. But neither does it give the majority free rein to erect selective barriers against racial minorities.” In a word, conceivably green-haired applicants get a pass, those from remote parts of a state get a pass, provisions can be anything, so long as they do not include race.
Justice Scalia, doing Chief Justice Roberts one better, when the latter wrote, in solemn inanity, “The way to stop discrimination on the basis of race is to stop discrimination on the basis of race,” (Gertrude Stein would be no doubt envious), had this to say: “Even taking this court’s sorry line of race-based admissions cases as a given [his reference to the University of Texas case decided last summer, in which he reluctantly concurred on narrow grounds of the state’s right to decide, even though he detested the principle], I find the question presented [in Schuette] only slightly less strange: “Does the equal protection clause forbid a state from banning a practice that the clause barely—and only provisionally—permits?” “Barely” should go down in judicial infamy, as making light of fundamental rights of equal protection. Let’s give him the last word. The courts should not involve judges “in the dirty business of dividing the nation into racial blocs. That task is as difficult as it is unappealing.” And in one of his famous displays of erudition, he asked: “Does a half-Latin, half-American Indian have Latino interests, American-Indian interests, both, half of both?” Laugh on, the woods are burning.
Norman Pollack has written on Populism. His interests are social theory and the structural analysis of capitalism and fascism. He can be reached at email@example.com.