The Patriot Post® · The Supreme Court's 'Half a Loaf' Decision

As the old expression goes, “half a loaf is better than none.” And whether Americans realize it or not, that’s all they got with the Supreme Court’s latest ruling on affirmative action. The 6-2 decision, upholding the ban on racial preferences with regard to admission to the University of Michigan law school, was as narrow as it could possibly be. “This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it," wrote Justice Anthony Kennedy. Sorry, Justice Kennedy, not good enough.

Don’t get me wrong. Any move in the direction of a society where merit trumps quota-mongering is OK by me. But who’s kidding whom? Either the Constitution of the United States means something, or it doesn’t. Here’s the relevant portion of the 14th Amendment:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.”

According to Kennedy and five of his fellow Justices, the italicized part of the 14th Amendment above is essentially optional. Either the people of a state can decide to follow it, or they can decide to ignore it. Kennedy tries to flatter the public in the process, insisting that there is nothing in their rejection of race-based preferences “too sensitive or complex to be within the grasp of the electorate; or that the policies at issue remain too delicate to be resolved save by university officials or faculties, acting at some remove from immediate public scrutiny and control; or that these matters are so arcane that the electorate’s power must be limited because the people cannot prudently exercise that power even after a full debate," but that flattery begs a giant question: what if the electorate were voting on the issue of abortion rather than affirmative action?

Now you know why progressive heads are exploding. They much prefer the kind of one-size-fits-all determination such as the one provided by the same Supreme Court on Roe v. Wade – as long as it comes down in their favor. They were quite happy that, as far as abortion goes, the Court ruled the electorate had no business deciding an issue that was neither too sensitive nor complex as to be beyond their grasp. And whether the Court would ever admit it, the so-called "right to privacy” asserted as the primary reason for doing so, is nowhere to be found in the Constitution. Ironically, part of the right to privacy established by the Court derives from the 14th Amendment, in that it is against the law to deprive a person of  “life, liberty, or property, without due process of law.”

The 800 pound gorilla? The necessity of the Court to establish the idea that “personhood” does not apply at the moment of conception, but only after an arbitrarily determined period of time within the gestation cycle. Otherwise, the issue becomes one of competing rights between a mother and a baby. If nothing else, Roe v. Wade was a great victory for the “clump of cells” crowd – albeit a temporary one at best. Why? Try this from the ruling, delivered courtesy of Associate Justice Harry Blackmun:

“With respect to the State’s important and legitimate interest in potential life, the ‘compelling’ point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.”

Technological advances will continue pushing the viability timeline to earlier moments in the gestation cycle. This leaves one obvious out, as in the life of the mother, and one obvious escape hatch, as in the “health” of the mother. I say escape hatch because, while any danger to the mother’s physical health can be determined beyond a reasonable doubt, there is a tremendous amount of latitude in determining a mother’s mental health. One progressives are willing to drive a Mack truck through if it abides their pro-abortion predilections.

With regard to affirmative action, progressives believe that the 14th Amendment must be “tempered” in order to achieve “diversity.” Diversity has long been the Holy Grail of the American left, in that they view any aspect of American life that lacks the proper distribution of ethnic and/or gender participation as suspect at best, and racist and/or misogynistic at worst.

Well, almost any aspect. The notion of putting one’s thumb on the scales breaks down completely with regard to professional sports. The reason why is obvious: replacing a seven foot, 280 pound black American NBA center with a six foot, 150 pound Jewish American, to satisfy the proper amount of ethnic distribution that diversity demands, reveals it for the fraud it truly is.

Furthermore, such fraudulence gets a big helping hand from progressive themselves. While they yearn for "proper" ethnic and gender distribution, diversity of ideas is an entirely different matter. As I documented in a previous column for The Patriot Post, progressives have no problem firing people such Mozilla CEO Brendan Eich for daring to support California’s Prop 8, withdrawing an honorary degree for women’s rights champion Ayaan Hirsi Ali, demanding a ban on a Charles Krauthammer column questioning global warming, or imposing speech codes on college campuses as a means of warning the nation that any deviation from the progressive worldview can have serious consequences.

Such disdain for the diversity of ideas is overwhelmingly political. Nothing is more toxic to the American left and their statist ambitions than independently-thinking Americans, unafraid to express their opinions. They don’t call it Political Correctness for nothing.

It is time the nation moved beyond such pernicious nonsense, and part of that movement involves pointing the finger at the genuine racists and misogynists among us. They are people who either firmly believe, or as is more often the case, have made a lucrative career for themselves, promoting the notion that an entire subset of Americans is inherently incapable of performing as well as their fellow Americans. That is not to say everyone is capable of doing everything in equal proportions. As the brilliant columnist Thomas Sowell has pointed out on many occasions, different people from different backgrounds have different talents and abilities. He also rightly notes such differences should be applauded, not condemned because they might not accrue to the progressive notions of proper distribution among various enterprises.

Finally, a word about the Supreme Court’s most vociferous dissenter regarding last week’s decision. In my opinion, Justice Sonia Sotomayor has no business being on the Supreme Court. The woman who said on more than one occasion, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life,” has utterly belied the spirit and the letter of the law contained in the 14th Amendment, if not the entire Constitution itself. When her dissent noted that the elimination of racial preferences constituted “selective barriers against racial minorities,” she made it plain that she is immune to a colorblind society where people are judged by the content of their character, not the color of their skin.

This is one American who’s getting damn tired of progressives’ Orwellian logic, which has long posited that the elimination of preferences disproportionately affects those who benefitted from those preferences – ergo, their elimination violates the equal protection clause contained in the 14th Amendment. And though this latest ruling allows individual states to jettison such noxiousness, the fact that the Supreme Court remains somewhat intimidated by the grievance-mongers among us, troubles me greatly. It is time the 14th Amendment applied to everyone, and it’s time the Court said so – in no uncertain terms.

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