Affirmative Action Is Dead. Long Live Affirmative Action.

John Roberts’ lifelong mission to erase the gains of the Civil Rights movement is nearly complete.

Pay no mind to Roberts’ ruling in a recent case brought to the Supreme Court by the vast and insidious far-right legal project bent on nullifying the Voting Rights Act of 1965. Roberts and Brett Kavanaugh sided with the Court’s three liberals to stop further erosion of the VRA – a strange move indeed for Roberts, who in 2013 wholeheartedly endorsed ripping the beating heart out of the Voting Rights Act and giving Republican-held states the legal greenlight to pass a raft of discriminatory anti-voting laws designed to uphold the supremacy and domination of both white people and capital.

That vast far-right legal project has many players: Some more important than others. There’s no one more important than Roberts.

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There’s every reason to take a maximally cynical approach to analyzing Roberts siding with the Beer Enjoyer and the Court’s liberals. Roberts, the Court’s chief justice since 2005, is commonly called an “institutionalist” in major media outlets, a fancy word for someone who doesn’t want the radicalized Supreme Court to lose all institutional legitimacy. It’s been a tough balancing act for Roberts: He’s been tasked with rolling back the liberal victories of the 20th century in a deliberate manner, working closely with anti-democracy judges like Samuel Alito and Clarence Thomas – who delivered a bad-faith whopper in last week’s VRA ruling when he said raced-based congressional maps are racist – to ignore generations of Court precedent without going too far too fast and forcing a Democratic president to pack the Court with pro-democracy justices who would counter SCOTUS’ fascist drift.

Probably Roberts and Kavanaugh decided to save what’s left of the Voting Rights Act because the Supreme Court’s conservatives are about to deliver the death knell for affirmative action in college admissions.

The far right’s capture of the Supreme Court will almost certainly lead to the end of race-conscious college admissions after hard fought victories by civil rights leaders and landmark SCOTUS rulings led by the likes of Thurgood Marshall, who saw all this bad-faith legal bullshit coming three decades ago.

Ending affirmative action – a term the right has successfully smeared for at least two generations of Americans – would fall in line with Roberts’ belief that racism is in fact over, that the United States has advanced beyond the racial tumult of the Civil Rights era and that it’s time to acknowledge that everyone is playing on an equal playing field now (this must be true if race-conscious programs are going to be eliminated from American society). Gains in racial justice, however slow and tortured and minimal, have given Roberts and Alito and Thomas the opening for a veritable bad-faith nuke: That continuing race-conscious public policy to balance the scales of racial injustice is racist against white Americans. If we’re all equal, these conservatives say, then we’re all equal. No one should get special treatment, even if they are only four generations removed from enslavement. You want equality, they say, shoving their thumb in your eye. I'll give you equality.

It does not matter that American society is more unequal today than ever before. That racial discrimination and animus persists and grows with the proliferation of international fascism – fueled by people afraid of boys who dress like girls – doesn’t matter.

Here at Bad Faith Times, we do not cite statistics to show racism persists and remains ingrained in every part of western civilization. That amounts to countering the right’s bad faith with good faith; doing so is the political equivalent of smashing one’s skull against a brick wall until your neck is holding up nothing but a pile of mush. Here at Bad Faith Times, we counter bad faith with no faith. We look for ways to short circuit bad faith, to take away the right wing’s opportunity to craft reality and force the left into defending unpopular policies and ideas.

And the end of affirmative action in college admissions will give the left an opportunity to strip conservatives of the bad-faith arguments they have used so artfully to dismantle affirmative action as a tool for educational and economic justice and equality. Yes, the end of affirmative action can be a good thing, if we want it to be.

The Left’s Losing Battle Is Over

It turns out everyone hates affirmative action in college admissions. Obviously this includes Republican voters, who buck at the mere mention that some Americans are born more equal than others and happily choose to remain ignorant to the horrors of systemic discrimination.

But loyal Democratic voters hate affirmative action too.

Democratic Party bigwigs in 2020 trumpeted California’s Proposition 16, which would have restored race-conscious admissions at public universities, and in government hiring and contracting. Everyone from Joe Biden to Gavin Newsom to the Obamas to the Golden State Warriors and Oakland Athletics urged California voters to pass Proposition 16 and reverse a 1996 referendum that ended affirmative action in the state. Backers of Proposition 16 outspent opponents 19 to 1, according to a New York Times analysis. With liberals set to swamp the polls to oppose Donald Trump’s reelection bid, the return of affirmative action in California seemed inevitable.

A weird thing happened. California voters rejected the referendum. Biden crushed Trump in ultra-blue California; Proposition 16’s rejection was a similarly lopsided affair: Fifty-seven percent of voters rejected it. Led by Asian and Latino voters joining whites, California’s rejection of affirmative action was total. Democratic Party leaders were stunned. Racial justice activists were stunned. The press was stunned.

Optics of racial progress matter greatly. In a society whose reality is defined by flashing images on a screen, prominent people and events matter far more than objective reality. The US has had a black president. We now have a black woman as vice president. A black man, Hakeem Jeffries, leads Democrats in the House of Representatives. Last year, Wes Moore became the third black governor in U.S. history when he won in Maryland. Black celebrities and athletes and artists are featured across media platforms, and, importantly, on TV, much more than they were a generation ago. Luxury brands now almost exclusively cast people of color in their ads. Watch a Cadillac commercial and you might think the best way to fight racism is to purchase a new Escalade.

None of this means anything for the everyday lives of black and brown people in the US. None of it signifies anything about the progress of racial justice. Our drift toward cultural liberalism and corporate brands’ willingness to use people of color to sell their shit doesn’t mean the United States has beaten back the evils of racism, that we’ve dug out the centuries of racist rot that has come to define every aspect of American society. Quite the opposite, in fact. There are black and brown people on your TV because cynical corporate decision makers are trying to sell their wares to guilt-ridden, college-educated white folks with plenty of disposable cash. Corporations are appealing to the sensibilities of the people with money to burn, as they always have.

Back to the point: Optics matters. Very few Americans – even in liberal California –  see racism as a problem to solve with massive governmental intervention. That should be all that matters for those on the left who want to make life slightly more dignified for people who exchange their labor for currency (working people). No amount of charts or presentations or books or anecdotal evidence is going to create a sea-change in the way Americans see racism in the 21st century.

“Why are we going back to the past?” Gloria Romero, a former Democratic California state senator, told the New York Times after her state’s voters said no to affirmative action in 2020. “We’re no longer in a ‘walk over the bridge in Selma’ phase of our civil rights struggle.”

This encapsulates the thinking of those who might say the struggle is over. Black people can vote, they can hold office, they can star in national advertising campaigns. What else do they want? This isn’t 1966. I don’t see furious white people like Jerry Jones protesting public school integration. I don’t see cops blasting black children with fire hoses. Widespread and systemic racism belongs to another era (it doesn’t). As my grandfather told me shortly after my high school graduation: "Black guys are making good money in the NBA. What's the problem?"

Affirmative action is a political dead letter, and soon, thanks to John Roberts and the frothing right wingers populating the Supreme Court, it will be a legal dead letter.

That opens up the chance to push (and hopefully, one day implement) class-based affirmative action programs. That’s precisely what California policymakers did in the two-plus decades between voters killing affirmative action and the Proposition 16 referendum in 2020: The state has spent upwards of $50 million a year assisting students from low-income communities across California. This class-based approach to affirmative action has cultivated an economically and racially diverse student body at most public colleges and universities in the Golden State after an alarming initial decrease in student body diversity following the 1996 referendum ending affirmative action in admissions.

Several states have experimented with similar efforts to make sure disadvantaged kids are getting a fair shake in the highly-competitive admissions process.

In states where affirmative action has been banned, universities have introduced new admissions and financial aid strategies based on socioeconomic status,” Richard D. Kahlenberg and Halley Potter of the Century Foundation wrote in 2014. “These socioeconomic-based admissions and support strategies not only promoted greater economic diversity on campus but in most cases continued to deliver a racially diverse student body as well. Seven out of 10 leading public universities we examined in a 2012 Century Foundation report were able to maintain, or even increase the proportion of African-American and Latino students among their ranks, by replacing race-based preferences with strategies that target socioeconomic inequality.”

This kind of class-based approach represents a gleaming opportunity for the left to counter the politics of resentment and racism that has tanked affirmative action over the past half century. Programs based on income levels are often more popular across racial groups and less vulnerable to political maneuvering. In other words, a class-based affirmative action program would be more likely to survive a Republican administration on the state or federal level. The left should always try to blunt conservatives’ use of racial hatred in dividing working people and sabotaging government efforts to at least offer a more dignified life. Bad-faith politics is the right's most valuable weapon, a cudgel with which they can destroy almost any progressive policy. It must be taken from them at any and every opportunity.

The widespread belief that the civil rights struggle achieved its every goal and that we now live in a utopia of racial harmony will continue to make race-based affirmative action programs an impossible sell for Democrats. There’s no getting around the reality created by movies and TV shows and commercials. Really, there’s no reason to even try.

Roberts and the Supreme Court’s right-wing ghouls are going to end affirmative action. Long live affirmative action.

Follow Denny Carter on Twitter at @CDCarter13.