The Post-Racial Deception of the Roberts Court

Abstract

Students for Fair Admissions v. Harvard/UNC (SFFA) is a post-racial deception unmoored from precedent and societal reality. SFFA deceives the polity and signals an all out assault on anti-discrimination law. To preserve its institutional legitimacy, the Roberts Court promotes doctrinal and conceptual distortions—post-racial deceptions of cognizable injuries advanced through reverse discrimination claims of white plaintiffs; racial proxy claims of discrimination proffered by Asian-Americans; and the fairness rationale of the Court’s circular post-racial edict that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Chief Justice Roberts’s majority opinion discards the anti-subordination principle of the Fourteenth Amendment and replaces it with a post-racial anti-differentiation principle: “Eliminating racial discrimination means eliminating all of it.” Expanding the circularity of Chief Justice Roberts’s post-racialism even further, Justice Thomas’s concurrence offers an ostensibly originalist reinterpretation of the Fourteenth Amendment that erases the race-conscious history of the Reconstruction Amendments and reframes it as the codification of the Declaration of Independence. Rejecting this post-racial deception, Justices Sotomayor and Jackson, in dissent, foreground the anti-subordination principle as the essential doctrinal core of the Fourteenth Amendment and offer a rebuke of the Court’s facile post-racialism with a comprehensive discussion of systemic racism, structural inequality, and the present-day effects of past discrimination. The Court’s post-racial constitutionalism is a post-racial deception which must be discredited and rejected if we are to ever achieve the multi-racial democracy promised by the Second Founding.