Mary Sheehy Moe: Montana Republicans

The nine people making the decision won their current positions on the basis of checking the “right” boxes.

• Did you graduate from Harvard or Yale? (Only two justices appointed in the last 42 years didn’t.)
• Did your race or sex create a more diverse court? (Five justices check this box.)
• Have you been a member of the libertarian/conservative Federalist Society? (The court’s entire supermajority have that tie.)
• Are you Catholic? (Seven of the nine justices are, as well as Leonard Leo, the man primarily responsible for getting most of them nominated and connecting at least two of them with luxury perks once confirmed.)

So for this court to condemn what it considers a check-the-box path to opportunity betrays not just ignorance, but shameless hypocrisy. No matter. When Students For Fair Admissions, funded to the tune of $8.5 million by groups connected with Leonard Leo and the Federalist Society, asked the court to roll back the clock on race considerations in college admissions, the supermajority happily obliged.

“Many universities have for too long wrongly concluded that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned, but the color of their skin,” Chief Justice John Roberts wrote. “This nation’s constitutional history does not tolerate that choice.”

Enter the new kid on the block, the first justice with skin “that color” and no Y chromosome. Using debate skills acquired at a public high school (only one other justice attended one), Ketanji Brown Jackson schooled Roberts on why affirmative action is the appropriate response to the uneven playing field the actions of our government, its Constitution notwithstanding, created for Black people.

“At the risk of stating the blindingly obvious,” she wrote, “the Fourteenth Amendment was intended to undo the effects of a world where laws systematically subordinated Black people and created a racial caste system.” Even post-emancipation, the subordination continued: sharecropping, vagrancy laws, the Black Codes, Jim Crow, red-lining, bank loans, the GI Bill …. Our Constitution notwithstanding, “government policies affirmatively operated — one could say, affirmatively acted — to dole out preferences to those who, if nothing else, were not Black.”

Although “gulf-sized race-based gaps” in the well-being of American citizens “were created in the distant past,” Jackson noted, they’ve “indisputably been passed down to the present day.” She itemized a few: White Americans have 8 times the wealth of Black Americans. Blacks represent 13% of our population, but only 5% of our lawyers. Of the 1,800 CEOS who’ve made the Fortune 500 list, only 25 have been Black.

Wealth inequities lead to health inequities. Infant and maternal mortality, children’s blood lead levels, prostate cancer, uterine cancer, obesity, hypertension, strokes, life expectancy itself? Vastly poorer data for Blacks. As salt for the open wound, Blacks typically pay more for health care and take on more medical debt.

You want “challenges bested” to be the criterion for college admission, Mr. Chief Justice? That’s just what the consideration of race (or rurality or poverty) does. Get out of your Ivy tower and learn something. Jackson’s compelling explanation of the holistic way colleges consider race in admissions is a good place to start.

And why narrow your condemnation to race considerations? Elite colleges routinely give preference to the children of alumni. They still rely on standardized test scores even though high-stakes, multiple-choice tests of this kind are better suited to identifying Jeopardy contestants than future Ivy-leaguers. Such is the depth of the “lessons learned” that SAT tutoring improves the average retake score by 56 points.

Colleges also prefer rigorous high school coursework, like trigonometry, even though students from rural schools seldom have the student demand or the funding needed to offer such high-level courses. These “acceptable” criteria derive almost entirely from wealth and access, both of which skew heavily against Blacks.

I didn’t go to an elite college like all the U.S. Supreme Court justices did. I just went to a fine Montana university that rivals Columbia and Georgetown for the Rhodes Scholars it produces. But we yokels know how to describe the college admissions philosophy this decision returns us to: Them as has, gits.