Contrary to what is being reported, the Republican controlled US Supreme Court has not prohibited affirmative action. It has only prohibited affirmative action that does not benefit white people. For example, the Republican majority on the court allowed “legacy” admissions. That means that if your daddy (and it probably was your daddy) went to Harvard (and your grandpa also probably preceded him there), then it’s fine for you to have a leg up. But since legacies inevitably favor those who were privileged in the past – meaning white people – then this means that pro-white affirmative action is permissible.
The court hides behind the pretense that society is color blind. That is a lie.
For example, the University of Pennsylvania Law School studied racial disparities in criminal cases. They reported: “Black, White and Latinx indigent defendants in San Francisco have substantially different experiences during the criminal adjudication process. Specifically, defendants of color are more likely to be held in custody during their cases, which tend to take longer than the cases of White defendants. Their felony charges are less likely to be reduced, and misdemeanor charges more likely to be increased during the plea bargaining process, meaning that they are convicted of more serious crimes than similarly situated White defendants. In addition, Black and Latinx defendants are more likely to plead guilty, and the nature of those pleas are different; Black defendants plead guilty to more charges than White or Latinx defendants, while Latinx defendants plead guilty to a smaller fraction of the charges they are booked for than Black or White defendants. After examining multiple potential causes of these differences, we find that the majority of the variance can be explained by two factors: the initial booking decisions made by officers of the San Francisco Police Department and racial differences in previous contact with the criminal justice system in San Francisco County.”
Note that while poverty is of course a factor, indigent white defendants are treated differently from indigent defendants of color. So, this form of “affirmative action” – in favor of whites – is perfectly okay with the Supreme Court, just so long as nobody openly says what they are doing.
What is true in the criminal (in)justice system is true in the education system and in employment. The one exception the Supreme Court granted was for the military. They are allowed to continue practicing affirmative action. Why? Because it’s recognized that diversity strengthens the military as a whole. But if that’s true for the military, it’s true for schools too – diversity in the universities strengthens the student body, helps all students learn. But it’s not so vital for the interests of US capitalism as is a strong and loyal military. So therefore it can fall by the wayside in the interests of pleasing the Republicans’ racist base.
Of the three branches of the federal government, the judicial branch tends to be the most conservative and this one is the most blatantly political of all. However, it is subject to pressure and Chief (in)Justice Roberts most of all. As opposed to some of the others like Alito and Thomas, Roberts is concerned with the stability of US capitalist rule. That is the meaning of his concern that the court be seen as apolitical. It is why he secured a majority to rule against the theory of independent state legislatures. That theory claims that the state legislatures have sole power to run and determine the outcome of federal elections. If that were true, then the state legislatures could send anybody they liked to Washington as the presidential electors. The legislatures could have sole power to decide who won any election in their state. In a case involving redistricting, Roberts got a majority to rule against that. Had they not, then the Democrats would have been in an uproar beyond anything we’ve seen so far.
The point is that the Republican majority, Roberts included, will push the Republican agenda as far as they think they can go. Just like the elected politicians, the court judges are subject to political pressure. The question is when, where and through what channels will a movement in the streets develop, and through that a working class political organization, which means a working class political party.
