Hammer: As the Supreme Court Readies to Address Real Racism, Biden Makes a Truly Evil Move


On Monday, the Supreme Court finally granted a writ of certiorari in two affirmative action cases — Students for Fair Admissions v. Harvard College and Students for Fair Admissions v. University of North Carolina.

The cases will be jointly argued during the next Supreme Court term, and they place directly in their crosshairs the court’s noxious precedents in the thorny area of race-conscious university admission policies. The leading question the justices will consider is “whether the Supreme Court should … hold that institutions of higher education cannot use race as a factor in admissions.”

The court should, of course, do so posthaste. The propagandist assertion that America in the year 2022 is bedeviled by a sprawling, institutional “systemic racism” is a destructive lie, but the ubiquity of affirmative action means that university admissions offices do, in fact, propagate systemic racism.

Fortunately, there is reason for optimism that the justices will do their job. It was the mercurial Chief Justice John Roberts himself who, in the 2007 case of Parents Involved in Community Schools v. Seattle, penned perhaps his most iconic line: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

But by Wednesday afternoon, Monday’s propitious step forward toward an America no longer obsessed with race and identity politics was abruptly undermined by a step backward toward a race-centric polity.

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Justice Stephen Breyer, an octogenarian and the senior statesman of the court’s liberal bloc, announced his retirement, effective at the end of this court term and contingent upon the successful confirmation of his successor. The announcement was hardly surprising; given Breyer’s long-standing Democratic ties, his liberal jurisprudence and the fact that Republicans are poised to retake control of the Senate this fall, it would have been more surprising if Breyer had not retired this year.

The more interesting twist came after news broke of the impending retirement. President Joe Biden affirmed that he intends to fulfill his 2020 campaign promise to nominate a black woman — not a black man, not a Hispanic woman, but specifically a black woman — to replace the retiring justice.

There is only one way to describe crass identity politics at this high a level: evil.

The nine justices of the Supreme Court are the most important jurists in the country. They swear an oath to uphold the Constitution and the American rule of law, which has the principle of equality at its very core.

From the Declaration of Independence to the 14th Amendment to the Civil Rights Act of 1964, genuine equality under the law and an eschewing of the centrality of something as arbitrary as race has always been the American lodestar. For Abraham Lincoln, the equality-centric Declaration was an “apple of gold” for which the Constitution was but an enveloping “frame of silver.”

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Biden’s affirmation of his campaign promise to nominate someone from such a specific population subgroup is a dagger to the telos of the United States — true colorblind equality and justice.

Even apart from the lunacy of announcing at the outset of a Supreme Court justice search that one intends to limit that search to roughly 2 percent of the national lawyer pool, the message Democrats telegraph by doubling down on their identity politics obsession is extraordinarily pernicious. How can a justice who knows she was selected purely on the basis of race and gender reasonably be expected to adjudicate cases involving race and gender?

Furthermore, consider the impact Biden’s announcement surely has on young lawyers all across the nation who do not fit into the narrow sliver of the intersectional pie that he has now proclaimed will comprise his entire prospective talent pool. Never mind white men; that ship seems to have sailed. What kind of message does this send to black male lawyers? Or Asian-American lawyers?

Why stop at the intersectional sliver of black and female? Why not preemptively announce that the next two hypothetical court picks will be a Muslim and a homosexual, respectively? (Jews and Mormons, religious minorities who nonetheless sit low in the left’s intersectional hierarchy, need not apply.)

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The juxtaposition of the court’s colorblind certiorari grant on Monday and Biden’s color (and sex)-centric announcement on Wednesday is nothing if not ironic. Perhaps Republicans might be galvanized to make opposition to identity politics a key part of their 2022 midterm election platform.

Regardless of who replaces Breyer, the court next term will hopefully bring us closer to a society that is race-blind — and not besotted by cancerous identity politics — by gutting affirmative action in America.


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Josh Hammer is the opinion editor of Newsweek, a research fellow with the Edmund Burke Foundation, counsel and policy advisor for the Internet Accountability Project ad a contributing writer for American Compass.