Affirmative action, quotas and the Supreme Court

Published: 4/3/2022 8:01:09 AM

Modified: 4/3/2022 8:00:03 AM

Roy Schweiker lives in Concord.

A recent 3-Minute Civics (“A primer on affirmative action,” Monitor2/27) regarding affirmative action veered into opinion before discussing racial quotas in admissions and employment.

While the US Supreme Court has often supported diversity, it has been more negative on affirmative action and downright hostile to any form of quotas, even non-explicit ones. The split decision on the case of Regents of the University of California v. Bakke in 1978 turned on a set-aside of 16 slots that were never made available to white people, and ordered Allan Bakke admitted to the medical school.

In Ricciv. DeStefano, the New Haven civil service board had refused to promote any firefighters after no Black people passed the promotion exam. The Supreme Court in 2009 backed the white and Hispanic firefighters who appealed, holding that the city could not discard the test merely on the basis of results without challenging the actual questions which had been carefully screened for racial bias.

The campaign promised by candidate Joe Biden to appoint a Black woman to the Supreme Court would almost certainly be unconstitutional if applied to a specific seat. White men have little to gripe about that since they held 100% of the seats for a couple of centuries and still hold a majority, but by pandering to one race President Biden is leaving out other races such as Asians, Native Americans, and Pacific Islanders who have never held a seat on the Supreme Court.

Diversity is more than race and gender. Ketanji Brown Jackson is well qualified to sit on the Supreme Court, but a Black woman growing up in a middle-class professional household and attending Ivy League schools probably has more in common with her male classmates than with someone from a slum, a reservation or a farm.

If she is confirmed, it would mean that 8 of the 9 justices attended either Harvard or Yale Law School. In effect we are letting the admissions staff of two small schools thirty years ago pre-screen Supreme Court justices. There are other good law schools and outstanding graduates of lesser schools who could bring a broader perspective to the Court. Like a majority of continuing justices, Judge Jackson has spent her career in the Northeast. Only Justice Gorsuch is from the West.

Do we want a Supreme Court that looks like America or one that looks like the Harvard Alumni Association? All it takes is one Democratic senator to decline to support Judge Jackson and President Biden would have to choose a different and hopefully more diverse candidate. They do exist. Kamala Harris for example.

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