The Supreme Court is on a mission to ensure the US assumes the form that the Republican Party wants

"It is really hard to reconcile these decisions with one another in terms of an overarching theory of law"

By Chauncey DeVega

Senior Writer

Published July 5, 2023 5:45AM (EDT)

Clarence Thomas and John Roberts (Photo illustration by Salon/Getty Images)
Clarence Thomas and John Roberts (Photo illustration by Salon/Getty Images)

Last week, the United States Supreme Court issued a series of decisions that ended race-based affirmative action programs at colleges and universities, voided President Biden's student loan forgiveness program, and made it legal for people to cite sincere "religious objections" as a reason for discriminating against the LGBTQ community (and presumably other marginalized individuals and groups as well) in ways that violate civil rights laws.

The Washington Post bizarrely described the Supreme Court's last term as "restrained." The reality is very much the opposite: it was a political and judicial bloodletting, a collective act of radical right-wing judicial activism that will have serious negative implications for the American people and the country as a whole for decades to come. These decisions by the "conservative" majority on the Supreme Court are part of a decades-long project to return American society to a time period before the civil rights movement(s) of the 1960s and 1970s and back to the Gilded Age (if not before) when white men and moneyed interests – a true tyranny of the minority —were able to exercise dominion over American society, largely uncontested.

In an attempt to make better sense of the Supreme Court's recent decisions about race-based affirmative action and its broad implications for American democracy, the law, and society, I recently spoke with Khiara M. Bridges. She is a Professor of Law at UC Berkeley School of Law whose scholarship examines race, class, reproductive rights, and the intersection of the three. Professor Bridges is the author of three books, the most recent of which is Critical Race Theory: A Primer.

This conversation has been lightly edited for length and clarity.

How are you feeling given the Supreme Court's decisions this week, in particular the decision to ban the consideration of race in university and college admissions? 

I'm tired – even though none of this is surprising. All of this was perfectly predictable. We knew that decisions such as the one gutting affirmative action were almost inevitable after Kavanaugh and Barrett joined the court. The decisions this week are the realization of a long-term project by the Republican Party to use the federal judiciary to shape the nation into its vision of what the country ought to be.

It has been an exhausting week.

How do we connect the dots between the affirmative action decision and the decision to allow "religious objections" to be used as a justification for discriminating against gays and lesbians — and presumably other groups as well?

"I think that what we are seeing is just how hellbent the Supreme Court is on ensuring that the U.S. assumes the form that the Republican Party wants it to assume."

Those two decisions represent a backlash against people of color and LGBTQ people. Both groups have realized substantial gains in terms of being conceptualized as equal and valuable members of the body politic. Many people want to reverse those gains. They want to return LGBTQ people and Black and brown people to second-class citizenship. The court is doing the bidding for those folks.

The Republicans, "conservatives" and other members of the larger white right are joyous and celebrating the end of affirmative action. Black and brown folks, white folks and others who believe in multiracial democracy and equality are hurting and lamenting this decision and what it symbolizes and means for our society and the harm it does to real people. How are you reconciling those divergent responses? 

I understand these celebrations as consistent with a right-wing effort to erase America's brutal history of racial subjugation and to deny the consequences that history has on society today. Conservatives are celebrating the myth that America is "post-racial" and the lie that events like chattel slavery, Jim Crow, redlining, "urban renewal," etc. really have no effect on contemporary society. And most of all, they are celebrating the fact that there is a Supreme Court that is willing to affirm those fictions. 

In the most basic sense, what are the competing visions of the law and its role in society that we are seeing play out with the Supreme Court this week, and of course the Age of Trump these last few years?

I think that what we are seeing is just how hellbent the Supreme Court is on ensuring that the U.S. assumes the form that the Republican Party wants it to assume. It is important to keep in mind that the Court creates its own docket; it selects the cases that it wants to hear. And it is no coincidence that the Court is deciding to hear cases that touch on all of these hot button issues: affirmative action, abortion, guns, religious freedom, LGBTQ rights. And of course, it is no coincidence that the Court is deciding these cases in ways that are consistent with the Republican Party's platform.

It is also important to keep in mind that it is really hard to reconcile these decisions with one another in terms of an overarching theory of law. So, the government can force people to carry pregnancies to term, but the government cannot forbid people from carrying firearms outside of the home. Institutions cannot consider race when making college admissions decisions, but they can consider their customers' sexual orientation and gender identity when deciding whether to sell products and services to them. Those decisions cannot be reconciled with one another very easily in terms of law. It's all politics.  

In simple terms, how do we explain what "affirmative action" is or isn't and how it's been distorted by the right wing and its propaganda machine for the general (white) public?

In order to understand what affirmative action is in the context of university admissions, one has to understand how decisions traditionally have been made about who is admitted to a school.  This generally has consisted of evaluating a student's GPA and performance on standardized tests. Affirmative action moves beyond just grades and standardized testing. It insists that those measures are not the totality of an individual. We actually know empirically that grades and standardized testing only imperfectly predict success in college. For example, a student that has had to raise their younger siblings while they're in high school probably has the determination and grit to succeed in a four-year university. We might guess that a student who has managed to learn and succeed in an underfunded school lacking in resources will likely learn and succeed at a university or college that has lots of resources.

Race-based affirmative action specifically says that we ought to be conscious of a student's race when making admissions decisions, because a student's race might help us understand their grades and standardized test scores. Race contextualizes those numbers. Despite what conservatives say about it, affirmative action is not some type of "handout" like "welfare" for lazy and unqualified Black and brown people.

Of course, the right-wing members of the court did not mention legacy admissions or how the children of big money donors get preferential treatment — what is a de facto type of white privilege and white unearned advantage, an "affirmative action" program for unqualified white people. Likewise, the majority did not object to how at most universities a decision is made to admit more "unqualified" male students as a way of achieving gender parity in a given cohort.

There is a conservative argument about so-called "mismatch," where students of color are imagined to be admitted through affirmative action into institutions where they supposedly do not have the skills and preparation to succeed. Clarence Thomas mentions this theory repeatedly. But the science is not there to justify mismatch theory. It has been debunked time and time again, which Justice Sotomayor mentions in her dissent. Interestingly, the right-wing justices who claim to be concerned about mismatch in terms of students of color going to competitive colleges and universities do not have the same level of concern about mismatch in terms of legacy admits.

"It is really hard to reconcile these decisions with one another in terms of an overarching theory of law."

Your dad and granddad having graduated from college does not prove that you have the academic chops, or discipline, or determination to succeed in the school. Similarly, your family having donated millions of dollars to the university does not translate into academic ability and intelligence. Students who lack the highest SAT scores and GPAs, but who are admitted because they are athletes, would fall into that category as well. The court was not concerned about those students either.

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For me, this reveals that the justices who signed on to these opinions are not really worried about whether Black and brown students are going to do well in elite institutions; it is just that they do not want Black and brown students to "take the seats" of white and Asian students who they believe actually deserve to be at these elite institutions.

In their decision to end affirmative action at the nation's colleges and universities, the right-wing justices summoned up Brown v. Board of Education. This is part of a larger project by the "conservative" movement and white right to weaponize, distort, abuse, and misrepresent the victories of the long Black Freedom Struggle and civil rights movement as a way of undermining and ultimately reversing them. Please help me process their twisted readings of Brown v. Board and the Equal Protection Clause.

Brown v. Board looms over these debates about affirmative action. Those who oppose race-based affirmative action and those who support it both say that their position is faithful to Brown v. Board. In 1954, the court decided in Brown that racially separate schools were inherently unequal and that they were a violation of the Equal Protection Clause of the 14th Amendment. Brown is subject to many interpretations. One interpretation is that Brown mandated colorblindness; it forbade school districts from taking into consideration students' races when assigning them to schools.

Another equally plausible interpretation of Brown is that the court was concerned with anti-subordination. In this view, segregated Black and white schools were unconstitutional because they functioned to subordinate Black people; they functioned to subjugate Black people vis-à-vis their white counterparts. So, which is the better understanding of Brown? Was Brown about colorblindness, or was it about antisubordination?

In my opinion, Brown was about antisubordination. And I get there because I think that we have to pay attention to the motivations behind the Equal Protection Clause, which was added to the Constitution after the Civil War. The 14th Amendment, which contains the Equal Protection Clause, was proposed and ratified in order to make formerly enslaved Black people equal citizens.

"The conservative majority on the court does not care; they are very comfortable with subjugating non-white people in America."

The Equal Protection Clause was designed to undo slavery. And the problem of chattel slavery was not that white people weren't being colorblind. The problem of chattel slavery was that white people thought that Black people were an inferior race of humans and treated them accordingly. The Equal Protection Clause was ratified not to make white people colorblind, but rather to ensure that Black people were no longer treated as subhuman. Race-based affirmative action programs are consistent with what the 14th Amendment requires because it is interested in real racial equality, not just colorblindness.

A Supreme Court justice made the intervention not too long ago that to get past racism one must take account of race.

That guy's gone, right? It's really just a numbers game with the Supreme Court today. Before Justice Kennedy retired, conservatives on the court just didn't have the votes to instantiate this view that the Constitution mandates colorblindness. Now they do. It's not that those arguments make more sense today than they did 10 years ago. It's not that there is more evidence to support that right-wing view. It is most certainly not true that we as a country are closer to a multiracial democracy than we were ten years ago. Ultimately, the only thing that has changed is the composition of the court.

As a factual and historical matter, the United States Constitution is not "colorblind." In reality, it is a document that represented the interests of the white slave-owning class and was one of the bedrock documents of a herrenvolk racial state. Serious historians and other scholars have repeatedly documented how as a group the framers and other white elites saw little if any contradiction between white on Black chattel slavery, white supremacy, and their vision of (white) democracy. Yet, the right-wing justices insist on the Constitution somehow being "colorblind" and then reasoning from that incorrect premise to whatever conclusion they want to reach. Taking them seriously, how is such a view of the Constitution structured?

I think they believe that if you keep saying it, somehow it becomes true. But reality does not work that way. The Constitution is very much aware of race. The document literally contemplates race. The 3/5th clause is an obvious example. The majority opinion in the court's recent affirmative action decision repeats "colorblind" so many times that an uninformed person may actually think that if you read the Constitution, you would see the words "colorblind" or "colorblindness." But it doesn't say that. What it does say is that no person shall be denied "equal protection of the laws." Conservatives insist that those words mean "colorblindness."

What the conservative majority will say is that during those lamentable and tragic moments in our nation's racial history, the court was not interpreting the Constitution to be colorblind. They would say that the problem was that the court was allowing people to think about race. However, in my view, the problem of separate but equal, for example, wasn't that people were thinking about race. The problem was how people were thinking about race. And they were thinking about race in order to conserve the existing racial hierarchy and to protect white supremacy. The conservative majority pretends that it cannot see the difference between those divergent uses of race. These conservative justices—all of whom got the finest educations from competitive universities—supposedly cannot see the difference between thinking about race in order to subjugate somebody and thinking about race in order to attempt to undo that subordination. Of course, they can see the difference. They know better.

The distinction here is important. Do the right-wing justices, like Clarence Thomas for example, actually believe in the factually wrong version of history and the Constitution (and reality) that they are articulating in the decision to end affirmative action, and more generally in terms of their legal theories? Or are they just ideologues and operatives, zealots, who don't really care about the substance of the law and the Constitution and are just using it to advance a larger political and societal project?

I don't know. And I don't think it matters. What I do know for sure is that they are very comfortable signing on to decisions and handing down interpretations of the Constitution that will hurt people of color. In the end that is all I need to know. They won't lose any sleep at night thinking about how students of color are going to be even more underrepresented in the nation's colleges and universities. They don't care about the real world implications of striking down affirmative action; they don't care that, quite literally, lives will be lost, as Justice Jackson so compellingly and brilliantly demonstrated in her dissent when she talked about the effect that doctor-patient racial concordance has on reducing Black infant mortality. The conservative majority on the court does not care; they are very comfortable with subjugating non-white people in America. 

By Chauncey DeVega

Chauncey DeVega is a senior politics writer for Salon. His essays can also be found at He also hosts a weekly podcast, The Chauncey DeVega Show. Chauncey can be followed on Twitter and Facebook.

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