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US Supreme Court ruling on affirmative action: the language of oligarchy

By Barry Grey
1 July 2003

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The New York Times, reflecting the general view of what passes for the liberal press in the US, hailed last week’s Supreme Court ruling upholding affirmative action as “a historic stand for equality of opportunity.” As the extraordinary decision handed down by Associate Justice Sandra Day O’Connor demonstrates, however, such claims are a gross distortion of the truth.

The most remarkable feature of the ruling upholding the University of Michigan Law School’s admissions policy, which prevailed by a five-to-four vote, was its unabashed acknowledgment of the existence of a ruling elite in America and its defense of the political and economic interests of that elite. A Supreme Court scholar would be hard pressed to find a precedent in the previous history of the high court for the transparent manner in which O’Connor invoked the concerns of the corporate, military and political establishment in arguing for the expediency of racial preferences.

O’Connor, the swing vote on the divided court, felt little need to disguise the fact that “friend of the court” briefs from representatives of the military and major corporations urging the court to uphold racial preferences outweighed legal precedent or constitutional principles in the formulation of her ruling. An extraordinary number of such briefs—over a hundred—were filed with the court in the University of Michigan Law School case. These included filings supporting affirmative action from such corporate giants as 3M Corporation, Exxon Mobil and General Motors, and a brief from two dozen retired senior military officers and former commandants of the military service academies.

In defending the position (first laid down by Justice Lewis Powell in the 1978 Bakke case) that racial and ethnic diversity on college campuses is a “compelling state interest” which justifies the use of racial preferences, O’Connor gave short shrift to questions of democracy or equality. In the pivotal section of her decision, she argued as follows:

“These benefits are not theoretical, but real, as major American businesses have made clear that the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas and viewpoints. What is more, high-ranking retired officers and civilian leaders of the United States military assert that, ‘[b]ased on [their] decades of experience,’ a ‘highly qualified, racially diverse officer corps ... is essential to the military’s ability to fulfill its principal mission to provide national security.’... At present, ‘the military cannot achieve an officer corps that is both highly qualified and racially diverse unless the service academies and the ROTC used limited race-conscious recruiting and admissions policies.’... We agree that, ‘[i]t requires only a small step from this analysis to conclude that our country’s other most selective institutions must remain both diverse and selective.’

Here O’Connor declared that a racially diverse officer corps was not only a “compelling state interest,” but a matter of “national security.” She then argued that the use of racial preferences at elite law schools was no less crucial to the functioning of the political power structure in the US:

“Individuals with law degrees occupy roughly half the state governorships, more than half the seats in the United States Senate, and more than a third of the seats in the United States House of Representatives. The pattern is even more striking when it comes to highly selective law schools. A handful of these schools accounts for 25 of the 100 United States Senators, 74 United States Courts of Appeals judges, and nearly 200 of the more than 600 United States District Court judges.”

There followed a remarkable sentence revealing the essence of O’Connor’s decision:

“In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.”

In other words, affirmative action is an important tool for bolstering the legitimacy of the ruling elite—and keeping the masses in their place. That this has nothing to do with democracy or equality in any serious sense of these words is self-evident. One can imagine similar prescriptions being laid down by defenders of the British Raj who calculated that admitting a visible layer of natives into the colonial administration would keep the Indian masses in check.

The elitist and fundamentally antidemocratic basis of the court’s ruling was made even more explicit by Associate Justice Stephen Breyer, one of the four justices who joined O’Connor’s decision, during last April’s oral arguments. Breyer summed up the case made by affirmative action supporters as follows: “[W]e think from the point of view of business, the armed forces, law, etc., that this is an extraordinary need, to have diversity among elites throughout the country, that without it, the country will be much worse off.”

In his dissenting opinion, Clarence Thomas, a member of the high court’s extreme right “troika” consisting of himself, Chief Justice Williams Rehnquist and Associate Justice Antonin Scalia, focused, for his own political purposes, on the elitist character of O’Connor’s decision. He repeatedly referred to the University of Michigan Law School, one of a handful of highly selective public law schools in the US, as an elite institution. “The interest in remaining elite and exclusive that the majority thinks so obviously critical,” he wrote, “requires the use of admissions ‘standards’ that, in turn, create the Law School’s ‘need’ to discriminate on the basis of race.”

Thomas added a barbed reference to the privileged status of the corporate and military leaders who intervened in the case on the side of affirmative action—as well as, by inference, those justices who supported the majority decision. He wrote: “Were this Court to have the courage to forbid the use of racial discrimination in admissions, legacy preferences (and similar practices) might quickly become less popular—a possibility not lost, I am certain, on the elites (both individual and institutional) supporting the Law School in this case.” (“Legacy preferences” refer to the virtually universal practice of granting special status to the offspring of alumni who seek admission to American universities and colleges. Special treatment is also given the sons and daughters of major financial donors.)

Thomas, himself a beneficiary of affirmative action, nevertheless speaks for a faction of the Republican right that opposes racial preferences out of hostility toward anything that remotely smacks of social reform. These forces include a hard core of segregationists who seek to cloak their racism with hypocritical invocations of legal equality. This faction—including the Christian right, anti-abortion fanatics, the pro-gun lobby and militia elements—exercises enormous influence within the Republican Party and the Bush administration.

For the broad masses of minority workers and youth, however, the other side in the long-simmering controversy over affirmative action within the corporate and political establishment in no way represents a progressive alternative. As last week’s ruling by the Supreme Court majority makes clear, its perspective is fundamentally reactionary.

Ultimately the decision will have the salutary benefit of helping strip away the democratic trappings in which the policy of racial preferences has been decked out over the past several decades. It is no accident that affirmative action was first given official sanction by the Democratic administration of Lyndon Johnson in the midst of the urban riots and the political radicalization that arose with the protest movement against the Vietnam War. This policy was expanded and institutionalized by Richard Nixon, in line with his promotion of “black capitalism.”

It was a response by the ruling elite to the volatile and irresolvable social contradictions of American capitalist society that were so explosively revealed in the 1960s. Affirmative action was adopted by the federal government precisely at the point when it became clear that the elimination of poverty and the provision of such social necessities as universal health care, decent and affordable housing, quality education for all and full employment were incompatible with the defense of the profit system and the economic interests of the ruling class. It took only a few short years for Johnson’s “War on Poverty” and “Great Society” programs to be revealed as more chimera than reality, and then essentially wound up.

At the same time, the US debacle in Vietnam exposed the dangerous implications for American imperialism of a military consisting of a working class soldiery, disproportionately African-American, led by a virtually all-white officer corps.

Hence the adoption of a policy aimed at fostering a privileged stratum within the minority populations that would assist in the administration of the cities—still wracked with poverty and social decay—help in the policing of the working class, and play a larger role in supervising American military operations around the world. Affirmative action created a political framework in which questions of race and ethnicity were placed at the forefront, so that the working class public could be diverted from the more fundamental social and class questions underlying the crisis of American society, and divisions within the working class on the basis of race and national origin could be stoked up.

That racial preferences were conceived of and debated within ruling circles as a means of diversifying the “elite,” rather than creating conditions of broad social equality, was already made clear by Thurgood Marshall, a liberal Democrat and the first African-American Supreme Court justice. Marshall wrote at the time of the 1978 Bakke case: “[W]e must permit the institutions of this society to give consideration to race in making decisions about who will hold the positions of influence, affluence and prestige in America.”

What is new in the current ruling is the naked way in which these considerations are articulated and defended. Traditionally, the Supreme Court has been careful to speak in the language of legal precedent, constitutional jurisprudence and overarching principles. It has felt constrained by democratic opinion, within the population at large and, to a lesser extent, within the political establishment itself, to conceal the class essence of even the most reactionary rulings.

That the high court no longer feels itself bound by such constraints—and issues rulings openly in the name of the elite and its interests—reflects a profound change in the outlook and political orientation of the corporate and political establishment. It has largely shed any identification with the democratic norms and methods of the past.

This shift in consciousness must, in turn, reflect profound changes in the underlying social structure of the country. Of the many complex and far-reaching socioeconomic developments of recent decades, the most important is the enormous growth of social inequality.

The United States has become the most economically polarized of all the major industrialized countries. Just two days after the June 23 high court ruling upholding racial preferences, the Internal Revenue Service (IRS) released a report documenting the colossal enrichment of the wealthiest Americans and the ongoing concentration of income in the hands of a privileged few. The IRS reported that the 400 wealthiest taxpayers accounted for over 1 percent of all income in the US in the year 2000, more than double their share just eight years earlier. At the same time, their tax burden fell sharply.

The average income of these 400 was nearly $174 million, almost quadruple the $46.8 million average in 1992.

These figures—and those contained in dozens of similar studies of American society—expose the existence of a financial oligarchy—one which controls the political system lock, stock and barrel. Under such conditions, democratic forms of rule can only become increasingly empty shells, destined to be dispensed with altogether as the inevitable social upheavals fueled by these disparities of wealth erupt and assume a political form.

The corollary of the growing social chasm is the political disenfranchisement of the working class, as the entire political system and both bourgeois parties lurch to the right and openly serve the further enrichment of the elite. No section of the political establishment and no institution of political rule—whether the presidency, Congress or the courts—retains any serious commitment to democratic principles.

Far from a victory for democratic rights, last week’s Supreme Court ruling reflects the irreversible decay of American democracy. It underscores the futility of any perspective that seeks to defend basic rights while accepting the existing capitalist system and relying on its political institutions. It demonstrates, moreover, the fundamentally reactionary role of racial politics, which cuts across the critical struggle to unite working people on the basis of a genuinely democratic and egalitarian program through the building of a socialist party of the working class.


June 29, 2003
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Justices Take a Turn to the Left
* The Supreme Court's rulings for gay rights and affirmative action surprise many -- and leave Justice Antonin Scalia on the margins.



By David G. Savage, Times Staff Writer

WASHINGTON — The Supreme Court was surprisingly empty on the last day of the term. Only a few dozen lawyers had gathered for the final decisions. Those who had were about to hear the rarest of judicial opinions: an apology for a past mistake and the promise of a distinctly new direction.

For the second time in a week, the normally conservative high court would proclaim a liberal policy of full inclusion for all. Monday's unexpectedly broad victory for affirmative action would be followed Thursday by a strong endorsement of gay rights.

A term that had produced some solid gains for conservatives — including the upholding of California's three-strikes law, new limits on punitive damages verdicts against corporations and a ruling that public libraries can be forced to put pornography filters on their computers — would end as the worst term for conservative causes since 1992.

And one of the court's strongest conservative justices, Antonin Scalia, would be left looking isolated and marginalized.

In a courtroom where silence and decorum are the rule, what unfolded Thursday made for a moment of extraordinary emotion, especially for a group of mostly young attorneys who sat in one front row.

They had worked on the pending case from Texas. At one end sat aging Harvard Law professor Laurence H. Tribe, who had argued — and lost — a challenge to Georgia's sodomy law 17 years ago.

Moments after the gavel sounded, Chief Justice William H. Rehnquist announced that Justice Anthony M. Kennedy would deliver the opinion in Lawrence vs. Texas.

Kennedy began by saying that the court had dealt with this issue before, in the 1986 Georgia case of Bowers vs. Hardwick. Then the court had delivered a thundering condemnation of homosexuals. Its opinion spoke of "heinous acts" and "crimes against nature." But on Thursday, it soon became clear Kennedy was not citing the Bowers precedent to follow it, but to admit that the court had been wrong — and tragically so.

As Kennedy spoke, one of the young lawyers who had been listening intently peeked up and looked into the eyes of those down the row, as if seeking confirmation that they too had heard the same words of respect and dignity that she had heard.

"Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers vs. Hardwick should be and now is overruled," Kennedy said.

There are no high-fives or applause in the Supreme Court. But across the front row could be heard quiet weeping. Tears flowed amid the smiles.

In one decision from the nation's highest court, gays and lesbians had gone from outcasts in the eyes of the law to full-fledged Americans entitled to the same rights and respect as others.

Day to day, the Supreme Court decides legal questions, and usually does so as narrowly as possible. But it also has a unique power to speak broadly to the nation and to proclaim basic principles of American law. Thursday's opinion was such a statement.

And it was the second such statement in a week. On Monday, the court endorsed the principle of racial diversity as a "compelling" goal. Race still matters, said Justice Sandra Day O'Connor, and it is essential that the door to opportunity remains open for blacks and Latinos.

The message of both opinions was that liberty and equality are not for some, but for all Americans. Gays and lesbians are entitled to be treated with dignity and blacks and Latinos are entitled to be full participants in the leadership ranks of the nation, the court said.

Of course, the Supreme Court does not by itself change attitudes. More often, it simply reflects a shift in thinking. In the case of gays and lesbians, the court could be said to have caught up with the generational shift in the public's notion of homosexuality.

The author of the 1986 Bowers opinion, Justice Byron White, was a football star of the 1930s. Then, homosexuality was seen as a moral failing or a psychological disorder, best to be avoided and free to be condemned.

In recent years, homosexuality has come be viewed by many as akin to being left-handed, a variation on the norm.

In May, a Gallup poll found that Americans by a 2-1 margin say sex laws targeting gays should be repealed. While the public remains split on same-sex marriages, the polls suggest a large majority supports the court's decision striking down the Texas law against "deviate" sex acts.

The court's view on affirmative action reflects elite opinion more than general sentiment. When asked about who should be admitted to colleges or law schools, the public by a large margin says "merit" should be the sole deciding factor.

But university officials, military leaders and corporate executives urged the court to give them leeway to choose minorities from the pool of highly qualified applicants. By a 5-4 vote, the court agreed and upheld the affirmative action policy at the University of Michigan Law School.

For social conservatives, the unexpected decisions of the 2003 term on affirmation action and gay rights brought back memories of that 1992 term.

Then, the court was dominated by new appointees of Presidents Reagan and George H.W. Bush. Eight of the nine justices were Republican appointees, and the only Democratic appointee was the conservative Justice White.

That spring, the court had taken up an abortion case from Pennsylvania and a school graduation prayer case from Rhode Island. Many believed the court was on the verge of overturning Roe vs. Wade, the ruling that legalized abortion nationwide, and the bans on school-sponsored prayers handed down during the 1960s.

Instead, in a pair of 5-4 rulings, with O'Connor and Kennedy in the majority, the court affirmed the basic right to choose abortion and the prohibition on school-sponsored invocations and prayers. Scalia delivered a vehement dissent that accused his colleagues of betrayal.

This spring saw something of a replay.

The court had appeared poised to overturn the Bakke decision on affirmative action.

A conservative legal group had won a ruling knocking down race-based admissions policies in Texas and Georgia. It then took on the University of Michigan and succeeded in bringing the case before the high court, only to see the court strongly endorse the Bakke decision and affirmative action.

The court's new support for gay rights is not shared by all — some believe homosexuality is sinful and should be illegal.

Scalia spoke for them Thursday.

"Today's opinion is the product of a court that has largely signed on to the so-called homosexual agenda," Scalia said in an angry tone. The majority has joined the "homosexual activists [who seek to] eliminate the moral opprobrium that has traditionally attached to homosexual conduct," he said. Only Rehnquist and Justice Clarence Thomas joined him.

As Scalia spoke, his colleagues seemed determined to ignore him. They gazed straight ahead or studied the ceiling.

Although Scalia's views resonate with a large segment of the public, his influence within the court appears to be minimal.

Without question, he is smart, quick, witty and devoted to the law. He is considered the court's most gifted writer, and he often dominates the oral arguments. Yet he rarely writes an important opinion for the court. Even when there is a conservative majority, Rehnquist assigns the court's opinion elsewhere, such as to Justices O'Connor and Kennedy.

Scalia has a rigidity and an abrasiveness that drives away the others. He is known for his sharply worded dissents — but little else.

When he joined the court in 1986, many assumed the former University of Chicago law professor would emerge as the true leader of the court. But from the beginning he had a hard time concealing his disdain for his colleagues.

Now 67, Scalia seems resigned to — or perhaps relishes — the role of the great dissenter.



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ASSASSIN of JFK, Patton, many other Whites

killed 264 MILLION Christians in WWII

killed 64 million Christians in Russia

holocaust denier extraordinaire--denying the Armenian holocaust

millions dead in the Middle East

tens of millions of dead Christians

LOST $1.2 TRILLION in Pentagon
spearheaded torture & sodomy of all non-jews
millions dead in Iraq

42 dead, mass murderer Goldman LOVED by jews

serial killer of 13 Christians

the REAL terrorists--not a single one is an Arab

serial killers are all jews

framed Christians for anti-semitism, got caught
left 350 firemen behind to die in WTC

legally insane debarred lawyer CENSORED free speech

mother of all fnazis, certified mentally ill

10,000 Whites DEAD from one jew LIE

moser HATED by jews: he followed the law Jesus--from a "news" person!!

1000 fold the child of perdition


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