Civil and Human Rights

Up Next at the Supreme Court: A Challenge to Equality for All Americans

A legal mastermind seeks to gut affirmative action and voting rights by rewriting the Fourteenth Amendment


The country’s most dangerous legal mastermind returns to the Supreme Court this week.


Ed Blum is not a lawyer. Instead, he recruits plaintiffs, hires counsel, and helps to finance litigation designed to move the law sharply to the right on issues of race and voting. Two years ago, Blum helped to bring two cases to the Supreme Court, Shelby County v. Holder, which sought to gut the Voting Rights Act, and Fisher v. University of Texas, which was designed to strike down affirmative action in college admissions. Now, with two cases from Texas, including a second trip to the Supreme Court for the Fisher case, he is hoping to rewrite the Fourteenth Amendment’s broad guarantee of equality, seeking to sharply limit affirmative action on college campuses and deny unnaturalized immigrants, children, and others equal representation in state legislatures. Blum’s campaign seeks to turn the Fourteenth Amendment into an obstacle to efforts to ensure real equality, denying the government the power to redress our nation’s long history of racial discrimination.


On Tuesday, the Court will hear Evenwel v. Abbott, Blum’s effort to change the rules for state legislative redistricting. Our Constitution promises equal representation for all persons, and across the nation, states draw districts that contain a substantially equal number of persons, ensuring that all persons are represented. That’s what Texas did in 2013 when it enacted its current redistricting plan. In Evenwel, Blum’s team insists that the Equal Protection Clause of the Fourteenth Amendment requires states to draw districts on the basis of the state’s voter population, not its total population. In other words, only a subset of the population is entitled to representation in state legislatures. Blum’s argument is that unnaturalized immigrants, children, and other who lack access to the ballot should not be counted for purposes of legislative representation, which would unquestionably result in a major shift in political power away from urban population centers toward the whiter, more rural areas of the state. No court in history has ever accepted Blum’s radical claim—which would wreak havoc with the redistricting process and require a new kind of U.S. census—but Blum hopes to make history in the Evenwel case.


Making such far-reaching claims is Blum’s stock in trade. Two years ago, in Shelby County, Blum spearheaded the legal challenge that struck down one of the most important and successful parts of the Voting Rights Act, which had helped countless Americans exercise their constitutional right to vote. However, Blum’s attack on affirmative action that same year proved less successful. Abigail Fisher’s initial challenge to the race-conscious admissions policy of the University of Texas at Austin, which uses race in an extremely modest way to help ensure a diverse student body and provide pathways to leadership for all persons regardless of race, resulted in a 7-1 opinion sending Fisher’s case back to the lower courts for a second look. The conservative-dominated Fifth Circuit upheld UT’s admissions policy again, and now Fisher will be back before the Supreme Court on Wednesday. This time around, Blum is hoping that Chief Justice John Roberts and his conservative colleagues join in a sweeping ruling striking down UT’s race-conscious admissions policy as a form of discrimination against white students. Blum wants universities across the nation to abandon admissions policies that, for decades, have helped our nation realize the promise of equal opportunity for all regardless of race.


The Fourteenth Amendment—which turns 150 next year—is at the heart of both Evenwel and Fisher. In both cases, Blum’s argument depends on turning a blind eye to the basic facts of Fourteenth Amendment history. 


Blum’s claim that representation should be based on the number of voters was explicitly rejected in the debates over the Fourteenth Amendment. Following the end of the Civil War and the abolition of slavery, the framers of the Fourteenth Amendment debated whether to base representation in Congress on total population or on the number of eligible voters, with many members of Congress introducing proposals to amend the Constitution to change the basis of representation from total population to voter population. After seven months of heated debates, the framers of the Fourteenth Amendment decreed that the “whole population is represented; that although all do not vote, yet all are heard. That is the idea of the Constitution.” Evenwel is urging the Court to impose on the states a system of representation rejected during the Fourteenth Amendment’s great debate over the nature of representation. No wonder no court has ever accepted this argument.  


Blum’s attack on the use of race to foster equality ignores that the framers of the Fourteenth Amendment were the originators of affirmative action. The 39thCongress that wrote the amendment in 1866 recognized that forward-looking, race-conscious measures would help fulfill the Constitution’s promise of equality, “break down discrimination between whites and blacks,” and “ameliorat[e] . . . the condition of the colored people.” In writing the Fourteenth Amendment, the framers time and again rejected proposed constitutional language that would have prohibited race-conscious measures designed to foster equality of opportunity. Faced with the task of fulfilling President Abraham Lincoln’s promise of a “new birth of freedom” and integrating African Americans into the civic and economic life of the nation, the framers of the Fourteenth Amendment recognized that the Constitution could not be simplistically colorblind. 


Not only does the Fourteenth Amendment’s text permit government to enact race-conscious measures to fulfill the Constitution’s promise of equality, the framers enacted many such measures. Contemporaneous with the Fourteenth Amendment, the Reconstruction Congress repeatedly approved race-conscious assistance to African Americans, passing laws that provided educational assistance to newly free slaves as well as African American soldiers, helped to ensure that African American soldiers received bounties for their service in the Union army, and provided benefits to poor, destitute African Americans. The most prominent of these federal race-conscious measures was the Freedmen’s Bureau Act, which established a federal bureaucracy whose explicit mission was to provide assistance to African Americans, including food, clothing, health care, and employment. 


Opposition to the nation’s first affirmative action programs, like Blum’s opposition to the use of race in college admissions, was phrased in terms of colorblindness. Opponents denounced the Freedman’s Bureau for making “a distinction on account of color between the two races” that made African Americans “superior” rather than “equal before the law.”  The law, they insisted, was “in opposition to the plain spirit” of the Constitution. The framers of the Fourteenth Amendment consistently rejected these arguments. In their view, efforts to ensure equality of opportunity and assist African Americans in securing the full measure of freedom promised in the Fourteenth Amendment were consistent with, not contrary to, the new constitutional guarantee of equality.


Will the justices accept Blum’s far-reaching arguments to rewrite the Fourteenth Amendment’s guarantee of equality for all? We won’t know for sure for many months, but we’ll undoubtedly get a window into the justices’ thinking by the end of the two days of argument. 


Blum’s attack on the basic principle of equal representation for equal numbers of people should face an uphill battle. Evenwel’s case rests on the Fourteenth Amendment, but that amendment specifically requires “counting the whole number of persons in each State” in order to ensure that everyone has a voice in government and guarantees the equal protection of the laws to “any person,” not merely voters. No court in history has ever accepted the claim made by Evenwel, and the justices—both those on the right and those on the left—should recognize that Evenwel’s claim simply has no basis in the Constitution. 


Fisher will likely be closer, and will almost certainly turn on Justice Anthony Kennedy’s vote. Chief Justice John Roberts and a number of his conservative colleagues have repeatedly voted to strike down race-conscious educational policies as a violation of the Fourteenth Amendment. In Roberts’s myopic view—announced in the 2007 case Parents Involved in Community Schools v. Seattle School District that limited the authority of school districts to combat racial isolation—“the way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” but he has yet to find a fifth vote to strike down governmental efforts to use race to foster equality. In Parents Involved, Kennedy sharply disagreed, explaining that Roberts’s opinion was “too dismissive of the legitimate interest government has in ensuring all people have equal opportunity regardless of their race.” 


Two years ago, in Fisher, Kennedy recognized that the sensitive use of race in admissions “serves values beyond race alone, including enhanced classroom dialogue and the lessening of racial isolation and stereotypes.” Last term, in Texas Department of Housing v. Inclusive Communities Project, Kennedy split with Roberts and the Court’s other conservative justices, authoring a 5-4 ruling affirming that federal civil rights laws have to be broadly interpreted to promote integration and redress our nation’s long history of racial discrimination and oppression. That ruling explained that “[m]uch progress remains to be made in our Nation’s continuing struggle against racial isolation,” emphasizing the ways that “unconscious prejudices and disguised animus” that result from “covert and illicit stereotyping” stand in the way of ensuring equal opportunity to all. The question now, heading into Wednesday’s oral argument in Fisher, is whether Kennedy will break from Roberts once again, and honor the judgment of the framers of the Fourteenth Amendment that government may use race to help realize the equal protection of the laws.

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