On Monday, the U.S. Supreme Court finally granted a writ of certiorari in two now-consolidated affirmative action cases, Students for Fair Admissions v. Harvard College and Students for Fair Admissions v. University of North Carolina. The cases will be jointly argued during the next Supreme Court term, and they place directly in their crosshairs the Court’s noxious precedents in the thorny area of race-conscious university admission policies. As presented to the Court, the leading question the justices will consider is “whether the Supreme Court should … hold that institutions of higher education cannot use race as a factor in admissions.”
The Court should of course do so posthaste. The propagandist assertion that America in the year 2022 is bedeviled by a sprawling, paninstitutional “systemic racism” is a destructive lie, but the ubiquity of affirmative action means that university admissions offices do, in fact, propagate systemic racism. Fortunately, there is reason for optimism that the justices will do their job. It was the mercurial Chief Justice John Roberts himself who, in the 2007 case of Parents Involved in Community Schools v. Seattle, penned perhaps his most iconic line: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
But by Wednesday afternoon, Monday’s propitious step forward toward an America no longer obsessed with race and identity politics was abruptly undermined by a severe step backward toward a race-centric polity. Justice Stephen Breyer, an octogenarian Jewish male and the senior statesman of the Court’s liberal bloc, announced his retirement, effective at the end of this Court term and contingent upon the successful confirmation of his successor. The announcement was hardly surprising; given Breyer’s long-standing Democratic ties, his liberal jurisprudence and the fact that Republicans are poised to retake control of the U.S. Senate this fall, it would have been more surprising if Breyer had not retired this year.
The more interesting twist came after news broke of the impending retirement: President Joe Biden affirmed that he intends to fulfill his 2020 campaign promise to nominate a Black woman — not a Black man, not a Hispanic woman, but specifically a Black woman — to replace the retiring Jewish male justice.
There is only one way to describe crass identity politics operationalized at this high a political level: Evil.
The nine justices of the Supreme Court are the most important jurists in the country. They swear an oath to uphold the Constitution and the American rule of law, which has the equality principle at its very core. From the Declaration of Independence to the 14th Amendment to the Civil Rights Act of 1964, genuine equality under the law and an eschewing of the centrality of something as arbitrary as race has always been the American lodestar. Americans have often fallen short of our enunciated ideals, but the equality ideal of race neutrality has often provided American statesmen succor during our darkest hours. For Abraham Lincoln, the equality-centric Declaration was an “apple of gold” for which the Constitution was but an enveloping “frame of silver.”
Biden’s affirmation of his campaign-season promise to nominate such a specific population subgroup is a dagger to the telos — the overarching orientation of true colorblind equality and justice — of the United States. Even holding aside the lunacy, from a sheer sample size perspective, of announcing at the outset of a Supreme Court justice search that one intends to limit that search to roughly 2% of the national lawyer pool, the higher-level message Democrats telegraph by doubling down on such an identity politics obsession is extraordinarily pernicious. How can a justice who knows she was selected purely on the basis of race and gender reasonably be expected to adjudicate cases during her Court tenure that implicate issues of race and gender?
Furthermore, consider the impact Biden’s announcement surely has on young lawyers all across the nation who do not fit into the narrow sliver of the intersectional pie that he has now proclaimed will comprise his entire prospective talent pool. Hold aside white men; that ship seems to have sailed. What kind of message does this send to young liberal lawyers who are Black men? Or how about the message it sends to young liberal lawyers who are Hispanic women? And why stop at the intersectional sliver of Black and female? Why not preemptively announce that his next two hypothetical Court picks will be a Muslim and a homosexual, respectively? (Jews and Mormons, two religious minorities who nonetheless sit low on the left’s intersectional hierarchy pyramid, of course need not apply.)
The juxtaposition of the Court’s colorblind certiorari grant on Monday and Biden’s color (and sex)-centric announcement on Wednesday is nothing if not ironic. Perhaps Republicans might be galvanized to make opposition to identity politics a key part of their 2022 midterm election platform. And regardless of who replaces Justice Breyer, the Court next term will hopefully take us closer to a society that is race-blind — and not besotted by cancerous identity politics — by gutting affirmative action in America.
Josh Hammer is opinion editor of Newsweek, a research fellow with the Edmund Burke Foundation, counsel and policy advisor for the Internet Accountability Project, a syndicated columnist through Creators and a contributing editor for Anchoring Truths. A frequent pundit and essayist on political, legal and cultural issues, Josh is a constitutional attorney by training and the co-host of two podcasts: Newsweek's "The Debate" and the Edmund Burke Foundation's "NatCon Squad."
An outspoken conservative, Josh opines on conservative intellectual trends, contemporary domestic and foreign policy debates, constitutional and legal issues, and the intersection of law, politics and culture. He has been published by many leading outlets, including the Los Angeles Times, the New York Post, Newsweek, National Affairs, American Affairs, The National Interest, National Review, City Journal, First Things, Public Discourse, Law & Liberty, Tablet Magazine, Deseret Magazine, The Spectator, The American Conservative, The American Mind, American Greatness, American Compass, Anchoring Truths, Townhall, The Epoch Times, The Daily Wire, Fortune, Fox Business, Pairagraph, The Jerusalem Post, The Times of Israel, The Forward, Jewish Telegraphic Agency and the Jewish Journal. He has had formal legal scholarship published by the Harvard Journal of Law & Public Policy and the University of St. Thomas Law Journal.
Josh is a college campus speaker through Intercollegiate Studies Institute and Young America's Foundation, as well as a law school campus speaker through the Federalist Society. Prior to Newsweek and the Daily Wire, where he was an editor, Josh worked at a large law firm and clerked for a judge on the U.S. Court of Appeals for the Fifth Circuit. Josh has also served as a John Marshall Fellow with the Claremont Institute.
Josh graduated from Duke University, where he majored in economics, and from the University of Chicago Law School. He lives in Miami, but remains an active member of the State Bar of Texas.
