BLOG: Justice Kagan’s Question: The Glaring Silence of the Supreme Court’s Conservative Originalists in the Affirmative Action Cases
The Supreme Court’s conservative supermajority has repeatedly claimed the mantle of originalism to move the law far to the right. But during oral argument last week in the momentous affirmative action cases, the Court’s conservative originalists showed little to no interest in the text and history of the Fourteenth Amendment. Why this turn about? The conservative supermajority is quick to abandon originalism when it strongly favors progressive results, as it does on the question of whether race-conscious measures may be considered to foster equality.
Given the insistence of many of the Court’s conservatives that they are bound by the original public meaning of the Constitution, one would have expected them to ask lots of questions during the argument about the text and history of the Fourteenth Amendment. Yet more than two and a half hours into the Court’s argument, it was not one of the Court’s conservatives—but Justice Elena Kagan—who put the question of originalism on the table, asking “what would a committed originalist think about the kind of race-consciousness that’s at issue here?”
Justice Kagan’s question was not a difficult one. In some areas, constitutional history is murky. Not so here. In writing the Fourteenth Amendment, the Framers recognized that, after centuries of enslavement and subjugation of Black Americans, the Constitution could not be blithely “colorblind”; in order to make real the promises of the post-Civil War Constitution, intentional steps would need to be taken. That’s why the Framers of the Fourteenth Amendment were the originators of affirmative action.
The same members of Congress who wrote the constitutional amendment guaranteeing the equal protection of the laws to all persons also contemporaneously enacted many forward-looking race-conscious measures designed to foster racial equality. The most prominent of these was the Freedmen’s Bureau Act, which established a federal entity whose explicit mission was to provide Black Americans with assistance, including access to educational opportunities. Only with race-conscious efforts by the government in the field of education could Black Americans hope to break through the vestiges of centuries of oppression and enjoy the equal citizenship promised by the Fourteenth Amendment. There is a throughline between the Freedmen Bureau legislation and today’s efforts to ensure meaningful equality.
Congress enacted numerous other race-conscious measures, broadly extending assistance to Black Americans, whether or not they had been forced in bondage, a point Justice Sonia Sotomayor highlighted. Congress in 1865 established a bank just for persons freed from enslavement and “their descendants.” In 1866 and 1867, Congress enacted legislation to protect the bounty and prize money owed to Black soldiers who served in the Union Army and provided chaplains for the education of Black troops, even as similar protections were not provided to white soldiers.
Opposition to the nation’s first affirmative action programs was phrased in terms of facile colorblindness, the same principle invoked by those challenging race-conscious admissions programs today. More than 150 years ago, opponents denounced the Freedman’s Bureau for making “a distinction on account of color between the two races.” The law, they insisted, was “in opposition to the plain spirit” of the Constitution. The Framers of the Fourteenth Amendment consistently rejected these arguments.
Now, in a vicious form of anti-originalism, the Court’s conservative majority is pressing nearly identical arguments. Chief Justice John Roberts suggested that any use of race in admissions was unconstitutional, insisting that “[w]e did fight a Civil War to end racial discrimination.” Justice Amy Coney Barrett insisted that any use of race was “very dangerous and corrosive to society.” What these comments miss is that ending racial subjugation was the true purpose of the Fourteenth Amendment.
In their zeal to insist that affirmative action must end even as racial inequality in educational opportunities persist, the Court’s conservative justices spent the vast majority of the argument trying to duck the fact that affirmative action is consistent with the original meaning of the Fourteenth Amendment. They chose, in other words, to bury their heads in the sand rather than grapple with the fact that race-consciousness is baked into the text and history of the Fourteenth Amendment.
The Supreme Court’s legitimacy is reeling following a year that saw the conservative supermajority twist the Constitution and cherry-pick history to achieve conservative results. It can’t hope to restore its legitimacy by practicing a selective form of originalism that pays attention to the Constitution’s text and history only when it lines up with their ideological priors. The Court’s job is to faithfully interpret our Constitution’s bedrock principles and guarantees. Here, that requires recognizing that the Constitution permits race-conscious measures to ensure equal educational opportunities for persons of all races.