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    Warm your bones by Ketanji Brown Jackson’s dissents on the affirmative action ruling.

    Janet Manley

    June 29, 2023, 11:39am

    The Supreme Court of the United States of America sure know how to set the mood for summer, setting their flat legal pavlovas and soggy pasta salads onto the picnic table just in time for the Fourth of July. Today, we got the anticipated ruling on affirmative action suits against the University of North Carolina and Harvard University and … goodbye to all that. The court found, in a majority opinion, that “race was a determinative tip” in admissions to Harvard, and that affirmative action processes therefore violated the Fourteenth Amendment establishing equal rights. Kewl.

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    It’s a small consolation, but Justice Ketanji Brown Jackson wrote a concurring dissent to Justice Sotomayor’s minority dissent that functions as a small history lesson in ways that affirmative action has benefitted white people: Bans on Black Americans fishing or hunting in the south post-slavery, the Homesteading Act, eligibility for federal Home Owner’s Loan Corporation and FHA mortgages, retiree protections, rates of access to non-contaminated water, and Jim Crow-compliant G.I. bill benefits, to name just a few. It’s truly a TED Talk in What Are We Doing Here?

    Jackson’s dissent is a real barn burner.

    Here are some of the highlights, if you can call them that:

    In which Jackson says the majority is tilting at windmills:

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    “Ultimately, the Court surges to vindicate equality, but Don Quixote style—pitifully perceiving itself as the sole vanguard of legal high ground when, in reality, its perspective is not constitutionally compelled and will hamper the best judgements of our world-class educational institutions about who they need to bring onto their campuses right now to benefit every American, no matter their race.”

    The bit where she asks them if they even read, bro:

    “Rather than leaving well enough alone, today, the majority is having none of it. Turning back the clock (to a time before the legal arguments and evidence establishing the soundness of UNC’s holistic admissions approach existed), the Court indulges those who either do not know our Nation’s history or long to repeat it.”

    And then bites her thumb at them:

    “The best that can be said of the majority’s perspective is that it proceeds (ostrich-like) from the hope that preventing consideration of race will end racism.”

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    Someone please make this into a cake reel:

    “With  let-them-eat-cake obliviousness, today, the majority pull the ripcord and announces ‘colorblindness for all’ by legal fiat. But deeming race irrelevant in law does not make it so in life.”

    Really the nugget that has it all:

    “For present purposes, it is significant that, in so excluding Black people, government policies affirmatively operated—one could say, affirmatively acted—to dole out preferences to those who, if nothing else, were not Black.”

    And a warning about this daft ruling:

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    “History speaks. In some form, it can be heard forever.”

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