Yahoo Finance William Watson: SCOTUS chooses equality. We should, too
Elite Canadian opinion naturally is disdainful of the SCOTUS (Supreme Court of the United States) decision rejecting race-based admissions practices at Harvard and the University of North Carolina. Our best and brightest regard the colour-blind view of the world that the U.S. Court sees in the post-Civil War 14th Amendment to the U.S. Constitution — the “equal protection” clause — as naive and simplistic, if not outright simple-minded. Not to mention overly influenced by politics, considering how SCOTUS justices are selected, and tainted by Trumpism.
In the eyes of history, 2016 Democratic presidential candidate Hillary Clinton and her accomplice in defeat, FBI director James Comey, now have even more to answer for. Had Donald Trump not won the 2016 election and with it the right to pick three SCOTUS justices (Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett), last week’s decision almost certainly would have been different.
On the other hand, polls regularly show that 75 per cent of Americans oppose affirmative action and prefer a society that is colour-blind. (Before scoffing at their naïveté, understand that in a 2017 poll, two-thirds of Canadians said much the same thing.) And SCOTUS decisions around the turn of this century allowed consideration of race in admissions only as a temporary evil, necessary for just one more generation, roughly 25 years, which gives it an expiry date of 2028 or so, i.e., not long after the graduation date of this September’s entering university classes. So it’s at least arguable that change would be coming anyway.
Here, too. There is a long history of political, social and legal influences from the United States seeping over the border and eventually altering how this country runs. Where do you think the doctrine that racism is systemic and omni-present came from in the first place? As that theory increasingly is challenged in the U.S. and its influence slowly ebbs, my bet is that, with the customary lag, the same thing happens here. Come back in 10 years and we’ll compare notes.
What SCOTUS’s decision clearly is not is simplistic. The justices argue over 237 single-spaced pdf pages. The main decision is 40 pages long. There are concurring opinions from Clarence Thomas (58 pages), Neil Gorsuch (25 pages) and Brett Kavanaugh (eight pages) and dissents from Sonia Sotomayor (69 pages) and Ketanji Brown Jackson (29 pages). Footnotes your thing? There are 179 in total. It’s hardly beach reading. But it’s accessible, generally well written and, in its way, compelling.
To a great extent, the principal combatants are Thomas and Jackson. That both are Black is actually germane to the argument. Court decisions in the 1970s that allowed race to be considered in admissions approved it only for educational purposes, where impacts might possibly be measured, rather than for overall social purposes, where they cannot be.
In this view no education would be complete without exposure to people from other groups and “how they think.” But do people from different groups necessarily think differently? Justices Thomas and Jackson maintain judicial decorum (barely) in denouncing each other’s views on affirmative action but they could not disagree more. Their skin colour is far from their greatest contribution to the diversity of SCOTUS.
Compare that to our own Supreme Court, where people of diverse regional and gender backgrounds seem to disagree less than their counterparts in the U.S., and may become even more monochromatic ideologically with the retirement of Russell Brown and his replacement by another Justin Trudeau pick, bringing to six the members of the court the current prime minister will have appointed — with the advice and consent, to use the American phrase for what the U.S. Senate does, mainly of legal insiders.
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The test I’d impose on would-be members of our own Supreme Court is whether they agree with the following: “In the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” That’s from Justice John Marshall Harlan’s one-person dissent in the Plessy vs. Ferguson case, in 1896, the case that imposed the doctrine of “separate but equal” until Harlan’s doctrine of equality was itself imposed in Brown vs. Board of Education in 1954.
I’d spell it “colour-blind” but equality before the law for everyone should be the test. I expect a substantial majority of Canadians would agree.
