Equal Protection... Maybe Not

               Fighting for the right to vote                   Desegregating the University of Mississippi

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Salient excerpt from Section 1 of the 14th Amendment to the Constitution of the United States of America.

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. 

Section 1 of the 15th Amendment.

The Supreme Court has struggled mightily over the meaning and application of the three constitutional amendments resulting from the Union victory in the Civil War: the 13th (emancipation), 14th (equal protection) and 15th (setting voting rights for former slaves and persons of color). From rulings that “separate but equal” did not render segregation unlawful (Plessy vs Ferguson – 1896) to rejecting the notion that separate could ever be equal and mandating school integration (Brown vs Board of Education – 1954), the Court faced clear discriminatory practices that permeated society – often with different motivations – with a decidedly mixed mind.

Limiting African American participation in society, for example, was a practice that kept WWII military units and public schools segregated, Jim Crow laws legally enforceable, redlining and other profoundly negative restrictions on Blacks intact. Brown began a series of decisions that began to purge laws permitting those discriminatory practices from as much of public life as they could. It was followed by Civil Rights and Voting Rights legislation from Congress, aimed at eliminating racial discrimination, often requiring federal force to implement. The remedy of centuries of slavery and racial discrimination against Blacks was often affirmative action, literally taking race into consideration to ensure more African Americans were given the opportunity to attend college and graduate school.

In 2003, a narrow 5-4 decision in Grutter vs Bollinger, the Court sustained (at least for 25 years) the notion of preferential college admission standards to help Black applicants. It was a retroactive fix to adjust for the long period of discrimination. It’s been 19 years since that case was decided, but the issue is very much before the Supreme Court this term in two challenges to minority admission preferences at Harvard and the University of North Carolina. The rise of White anger and MAGA domination of the GOP, reinforced by a radical Supreme Court evidencing open hostility to prior Supreme Court rulings (as with Dobbs vs Jackson Woman’s Health Organization which reversed Roe vs Wade earlier this year), has given hope to White Christian nationalists that their ”cause” just might find support in the Trump-reconfigured Court.

In her OpEd for the October 28th NY Times, Pulitzer Prize-winning journalist, Linda Greenhouse, delves into the Court’s willingness hear cases where lower courts have upheld affirmative action in college admissions and found voting district gerrymandering resulting in clear racial marginalization unlawful. While these are two separate considerations of differing judicial precedents and legislative action, they are united by racial discrimination.

Starting with the two university admissions standards, Greenhouse writes: “There are more than 100 briefs, representing the views of hundreds of individual and organizational ‘friends of the court,’ in addition to those filed by the parties themselves… Both cases were developed by a made-to-order organization called Students for Fair Admissions Inc. The group asks the court in both cases to overturn Grutter v. Bollinger, its 2003 decision upholding affirmative action in student admissions to the University of Michigan’s law school [which followed the 1978 ruling in University of California vs Bakke]….

“‘Just as Brown overruled Plessy’s deviation from our ‘colorblind’ Constitution [John Marshall Harlan’s dissent in Plessy arguing that the Constitution is ‘colorblind’], this court should overrule Grutter’s,’ the group asserts in its brief. ‘That decision has no more support in constitutional text or precedent than Plessy.’

“Briefs on the universities’ side take vigorous issue with what the University of North Carolina’s brief calls ‘equal protection revisionism.’ Noting that Justice Harlan’s objection to enforced separation of the races was that it imposed a ‘badge of servitude’ on Black citizens, the brief observes that ‘policies that bring students together bear no such badge.’” MAGA Republicans believe that the Court will end affirmative action.

But then there is the other prong of equal protection matters under the Court’s consideration: legislative actions which do not in their wording set forth racially based voting districts but create that effect. Lower courts found that, despite the fact that Black people comprise 27% percent of Alabama’s population, such voters control just 14% — one of seven — of the state’s congressional districts. In February, the Supreme Court temporarily blocked that lower court order, one that would have forced Alabama to draw a new congressional map by creating an additional “Black” district. That block clearly impacted our mid-terms, but the full case is being heard more formally this term. Alabama is appealing that lower court decision.

Alabama’s solicitor general, Edmund LaCour, slammed the lower court decision as imposing a what he believed was a racial gerrymander that placed the Voting Rights Act ‘at war with itself and with the Constitution… The Fourteenth Amendment is a prohibition on discriminatory state action,’ he told the justices. ‘It is not an obligation to engage in affirmative discrimination in favor of some groups vis-à-vis others.’” In short, legislatures can discriminate to favor incumbents, as long as their wording does not directly exclude a constitutionally protected class.

Greenhouse explains that “The newest member of the court, Justice Ketanji Brown Jackson, pushed back strongly with an opposite account of the 14th Amendment’s origins. ‘I don’t think that the historical record establishes that the founders believed that race neutrality or race blindness was required,’ she said. ‘The entire point of the amendment was to secure the rights of the freed former slaves.’” Added to the controversy surrounding the Fall Term is Harper vs. Moore, which will determine if state legislatures can override voter choices… one more threat to the viability of the equal protection clause of the 14th Amendment. Will a rogue Court overrule our democracy’ most vital equal protection mandate?

I’m Peter Dekom, we face a radical and overwhelmingly right-wing Supreme Court with no seeming trepidation at repealing clear sections of the Constitution and reversing earlier Supreme Court rulings fostering human dignity and personal choice.