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Chief Justice John Roberts
The Chief (In) Justice
Smiling faces, sometimes, pretend to be your friend
Smiling faces, show no traces, of the evil that lurks within…
Let me tell you: the truth is in the eyes, 'cause the eyes don't lie, Amen.
Remember, a smile is just a frown turned upside down, my friend.

Smiling Faces Sometimes, The Undisputed Truth (1971)

Supreme Court Chief Justice John J. Roberts
The truth is in the eyes, 'cause the eyes don't lie.
When John Glover Roberts Jr. was nominated to serve as the 17th chief justice of the United States Supreme Court in 2005, many of us warned that if he were in fact elevated, it would be the beginning of the accelerated end for hard-fought rights that the historically oppressed had come to count on over the last 50 years for their equality. We knew. We tried to warn people. Many did not listen, or fought only for their pet causes relating to individual liberties, instead of caring passionately for the whole enchilada. Judge Roberts' jurisprudence from the DC Circuit (including his infamous decision in Hedgepeth v. WMATA (PDF) in which he readily upheld the arrest of a 12-year-old Black girl for eating a single French fry on the DC Metro all while saying with a straight face that "nobody is happy" about what happened), his work in the attorney general's office during the Reagan and Bush I administrations (too many issues of import to list but pretty much if it was a right that liberals cared about, Roberts wrote at least one document opposing it), and especially his very close personal relationship (born from Roberts' clerkship) with Chief Justice William Rehnquist (who he lovingly referred to as one of "a handful of great chief justices") made that plain. Unfortunately, many of us who said that were mostly pooh-poohed as drama queens about our worries for Black people and other "minorities." Pooh-poohed about Roberts— especially in comparison to the subsequent hue and cry and rending of garments that followed Samuel Alito's nomination because of fears related to legal abortion rights. (This is where I remind Kossacks, bluntly, that other than Sen. Ted Kennedy, nobody we elected seemed to care about Alito's impact on anything else, despite the fact that there was a much better chance of beating back Alito focusing on issues not related to abortion, because he'd left a better paper trail.)

Well, we were right, when it came to John Roberts. We knew. Follow me beneath the fold for what we didn't know.

This is what we didn't know: that Chief Justice Roberts would further his long game of taking away hard-won legal rights from those historically discriminated against in virtually every serious aspect of life (criminal law and punishment, education and employment) all while smiling in our faces. We didn't know that John Roberts would spend his tenure as Chief Justice masterfully demonstrating that he could and would use the very rhetoric undergirding those hard-won legal rights to render them null and void in the 21st century when it comes to actually enforcing them. We certainly didn't know that John Roberts would smile all throughout his court's corruption of the legal analysis of prior Supreme Court decisions that brought us those rights. A corruption rendering those legal precedents, born out of antidiscrimination principles, largely useless to actually stop or remedy discrimination except as a device to protect the so-called rights of the white majority against the historically oppressed. John Roberts' smiling long-game has no apparent pause, not even to acknowledge that the white majority continues to disproportionately benefit from our nation's original sin of racism (not to mention equally bad sins like sexism). Justice Roberts' smile hides what his authored cases, and his leadership of the Supreme Court since 2006, make plain: his mission is to preserve the disproportionate power and control the white majority in America has had, and continues to have, over the lives of the nonwhite and otherwise racially/ethnically oppressed.

That John Roberts appears to always be smiling while coopting judges who should know better into saying things Roberts would later use to corner them into supporting his views, rather than what we know from their independent writing are truly their own views on issues involving discrimination, is notable. But it should also be frightening. As was noted in the New York Times:

Chief Justice Roberts has proved adept at persuading the court’s more liberal justices to join compromise opinions, allowing him to cite their concessions years later as the basis for closely divided and deeply polarizing conservative victories.

His patient and methodical approach has allowed him to establish a robustly conservative record while ranking second only to Justice Anthony Kennedy as the justice most frequently in the majority....

On Tuesday, when the court struck down a part of the Voting Rights Act, Chief Justice Roberts harvested seeds he had planted four years before. In his 2009 opinion, writing for eight justices, he allowed the Voting Rights Act to stand. But the price he exacted from the court’s liberal wing was language quoted in Tuesday’s decision that seems likely to ensure the demise of the law’s centerpiece, Section 5, which requires federal oversight of states with a history of discrimination.

The chief justice helped plant new seeds on Monday, when seven justices, including two liberals, agreed to sign an opinion that over time could restrict race-conscious admissions plans at colleges and universities.

I'll give Justice Roberts this: He is cynical as hell. A cynic with a reasonable smile. But a cynical son-of-a-bitch nonetheless.

Many people have written this week about the Supreme Court decision in Shelby County v. Holder, which paralyzed the ability to use the Voting Rights Act to prevent racially discriminatory conduct during voting registration and voting. It would therefore be extremely redundant for me to talk much about that case again. So, in the interests of avoiding that, this diary does not focus on Shelby County as I originally intended. I'll just say that Shelby County confirms several truths. First, yes, the decision Shelby County really is as bad as folks believe it is and no amount of Eric Holder insisting that he'll keep pressing voting rights cases will change that (as his boss, President Obama, effectively admitted). All that the DOJ now has left to it litigation under Section 2 of the VRA. Given the years-long nature of litigation, there can almost certainly be no prospective relief provided from these suits (i.e. stopping in advance a VRA violation actually depriving someone of their vote) for the voter suppression practices that have plagued elections since 2000. The second truth Shelby revealed is this: Wealthy neoconservative white men continue to get what they secretly pay for when it comes to the power to ensure the law is restored in their favor in this country.

In the face of those truths, as discussed more below, this week's Shelby County decision gutting the ability to meaningfully enforce the Voting Rights Act of 1965 was just one of the latest successful efforts brokered (and in the Shelby County decision, authored) by our ever-smiling chief justice of the United States Supreme Court that reversed or narrowed the ability of Black people, women and other oppressed minorities to access practical (as opposed to theoretical) equality in their lives through the law and the courts. Using the very language that once granted them that access.

That's what I really press home: John Roberts' long-game of systematically dismantling civil rights with rhetorical cynicism disguised behind a seemingly benign smile. To do that, I'm going to focus on the other major setback for civil rights law that occurred just this week.

There has been a lot of pundit reassurance about the outcome this week in Fisher v. University of Texas at Austin, following the Supreme Court remanding the case on a 7-1 vote (a majority that included Justice Sonia Sotomayor, a different discussion for a different time.) I'm still trying to figure out why folks said it "wasn't so bad." Perhaps it's because they don't understand the record developed in Fisher. Perhaps they don't really understand the line of cases that led to Fisher, and why they should have led to a different outcome than remand. I don't know. What I do know is that the Fisher remand is just as insidious—even if facially polite—an attack as the decision in Shelby County on the fight to bring true racial equality (as opposed to just Kumbaya rhetoric about the desire for racial equality) to this country once and for all.

Context is important. It certainly explains why precisely the Fisher case was brought in the first place.  The University of Texas at Austin is not just some garden-variety college: US News ranks it 46th out of 100 of the top national universities. It is the flagship campus in the Texas public university system. In other words, it is a premier school. Odds are good that some of its graduates will be among the leaders in this country, someday. Thus, as is the case with many selective universities, UT Austin doesn't admit just everyone. In 2008, the year at issue in Fisher, the University of Texas at Austin admitted just 6,718 of 29,501 applicants.

You'd have thought that Ms. Fisher's case would have ended right there: her odds of gaining admission to UT Austin the year she applied were less than 1 in 4.

But we're talking about racial entitlement here, not reason and logic.

So, Ms. Fisher contended that the reason she didn't get admitted was, you guessed it, race discrimination. Specifically, she pled that students who were admitted because the University took race into account in calculating their application scores ended up with more points than her. But that argument, too, belies not only the actual facts of Ms. Fisher's application (she never submitted any evidence about how her own application was scored or anyone else specific) but also the facts about how the admissions program at UT at Austin really works on the ground.

This is the Supreme Court's own description (PDF) of the admissions program at University of Texas Austin in the year (2008) that Abigail Noel Fisher was denied admission:

In recent years the University has used three different programs to evaluate candidates for admission. The first is the program it used for some years before 1997, when the University considered two factors: a numerical score reflecting an applicant's test scores and academic performance in high school (Academic Index or AI), and the applicant's race. In 1996, this system was held unconstitutional by the United States Court of Appeals for the Fifth Circuit. It ruled the University's consideration of race violated the Equal Protection Clause because it did not further any compelling government interest. Hopwood v. Texas, 78 F. 3d 932, 955 (1996).

The second program was adopted to comply with the Hopwood decision. The University stopped considering race in admissions and substituted instead a new holistic metric of a candidate's potential contribution to the University, to be used in conjunction with the Academic Index. This "Personal Achievement Index" (PAI) measures a student's leadership and work experience, awards, extracurricular activities, community service, and other special circumstances that give insight into a student's background. These included growing up in a single-parent home, speaking a language other than English at home, significant family responsibilities assumed by the applicant, and the general socioeconomic condition of the student's family. Seeking to address the decline in minority enrollment after Hopwood, the University also expanded its outreach programs.

The Texas State Legislature also responded to the Hopwood decision. It enacted a measure known as the Top Ten Percent Law, codified at Tex. Educ. Code Ann. 51.803
(West 2009). Also referred to as H. B. 588, the Top Ten Percent Law grants automatic admission to any public state college, including the University, to all students in the top 10% of their class at high schools in Texas that comply with certain standards. The University's revised admissions process, coupled with the operation of the Top Ten Percent Law, resulted in a more racially diverse environment at the University. Before the admissions program at issue in this case, in the last year under the post-Hopwood AI/PAI system that did not consider race, the entering class was 4.5% African American and 16.9% Hispanic. This is in contrast with the 1996 pre-Hopwood and Top Ten Percent regime, when race was explicitly considered, and the University's entering freshman class was 4.1% African-American and 14.5% Hispanic.

Following this Court's decisions in Grutter v. Bollinger, supra, and Gratz v. Bollinger, 539 U. S. 244 (2003), the University adopted a third admissions program, the 2004 program in which the University reverted to explicit consideration of race. This is the program here at issue.

The University of Texas at Austin pretty clear about the role that race plays in the scoring of any individual student's file (PDF) where the student is not guaranteed admission under Top Ten:
The UT Austin admissions routine for students not automatically admitted [under Top Ten] is elaborate and entails a broad concept of merit. Beginning with the entering class of 1997, for those not automatically admitted, the idea of merit was expanded from class rank and test scores exclusively to the inclusion of the following factors:

The Academic Index (AI)

  • High School Record:
  • Class rank
  • Completion of UT required high school curriculum
  • Extent to which students exceed the UT required units
  • SAT/ACT score

The Personal Achievement Index (PAI)

  • Scores on two essays
  • Leadership
  • Extracurricular Activities
  • Awards/honors
  • Work experience
  • Service to school or community
  • Special circumstances:
    • Socio-economic status of family
    • Single parent home
    • Language spoken at home
    • Family responsibilities
    • Socio-economic status of school attended
    • Average SAT/ACT of school attended in relation to student's own SAT/ACT
    • Race (addition approved by the UT Board of Regents in 2003)
Critically, as it relates to the PAI, none of the factors set forth above have a pre-assigned value or weight. An excellent, but lengthy, discussion of the legal history of the University of Texas, Austin admissions program and affirmative action in Texas is contained in the District Court's order granting summary judgment to the University in 2009.
Statistics of enrollment at the University of Texas from 2007-2011, by race.
Such a violent drop in white enrollment just isn't fair!
Continuing to put the Fisher case in context, let's look at what was really going on in terms of admissions. Fisher and her co-plaintiff complained that the consideration of race as one a plethora of factors in a formula that counts for only 40 percent of the score an applicant receives resulted in a "dramatic increase" in minority enrollment. She makes this claim about a state where as of the 2010 census 12.2 percent of the population was Black, and 38.1 percent was of Latino descent. In other words, admitting one-third of the percentage of Black students that would have gained admission to University of Texas Austin if students reflected the normal population distribution (4.2 percent), and only one-third of the Latino students (17.1 percent), is still too much. It is apparently no problem that 1.7 times the number of "white only" students and 3.6 times the number of Asian students than would normally be expected in a truly race-neutral school system were admitted.  Because everyone knows they are the most qualified when one takes into account all factors, always, right?

This is the context in which Abigail Fisher sued to overturn the admissions program at University of Texas, Austin as it related to the use of race in connection with the applications of Black and Latino students (and, yes, the record makes clear that Ms. Fisher had no complaint about how the program worked for Asian students. Racist model minority myth, anyone?)

Like the record in Hopwood v. Texas (the case that preceded the infamous Grutter v. Bollinger), the court record in Fisher disclosed that the offended young white miss who brought the lawsuit, Fisher, couldn't really say (even though of course she said it anyway) that some undeserving minorities (but only the Black and Latino ones) had taken "her spot" at UT at Austin. Said differently, Fisher's contention that she was injured because she didn't get into UT Austin is as disingenuous as she (and her co-plaintiff Rachel Michalewicz, who wisely did not seek the spotlight given her insistence that 89.5% is really 90% and who equally wisely ultimately dropped out of the litigation completely) could get. Fisher never disputed, for example, that she did not qualify for admission under the Top Ten program.  She never disputed that had AI scores been used alone, she would not have been offered admission. She didn't even dispute that minority students with higher combined AI and PAI were admitted.

[Although it is indeed labor-intensive, I am BEGGING people to follow the links and read the entire trial court record in Fisher. I am BEGGING people to look at the actual admissions statistics at UT Austin and judge for yourselves whether the evidence supports the complaint.]  And I am BEGGING you to read the transcript of the oral argument (PDF) before SCOTUS that was held last year.]

The record explains a lot about why the decision in Fisher is not as innocuous as folks contend it to be. It is an excellent example of why the decision in fact is not intended to preserve affirmative action, but intended to make its destruction inevitable the next time a white plaintiff comes to court with this argument. Although the decision in Fisherwas authored by Justice Kennedy, it nonetheless is just another incremental move towards SCOTUS eliminating race-based affirmative action in education completely. And it was brokered by someone whose hostility to civil rights has been evident since long before he joined the court: Justice Roberts.

It is IMO quite significant in thinking about this case that Fisher declined to enroll in another University of Texas campus under its Coordinated Admissions Program (CAP) for her freshman year. This would have guaranteed her transfer admission to UT Austin so long as she was a student in good standing and completed the required coursework.  Fisher did not accept this offer nor the offer she received to attend Baylor University (national university Rank 77). Thus, she ultimately enrolled at Louisiana State Baton Rouge, ranked 134th (as opposed to 46th) of all national universities. Ask yourself this: what are the other schools Fisher didn't get into such that she had to make herself the most recent poster-child of white entitlement rather than simply attend a comparable school to University of Texas at Austin? (Be sure to take into account what you know in your experience to be true: usually following the advice of their parents, most aspiring college-bound seniors apply to at least one safety school and one over-reach school, just in case you get either really lucky or really unlucky.)

In other words, this is not a young lady cheated out of a seat at a prestigious university because of any "unqualified minorities". This is a pretty mediocre young lady believing that somehow she was entitled to go to school where she wanted to go.

My view is that the record in Fisher discloses conclusively that, under normal principles of standing, Ms. Fisher (and her co-plaintiff, another white woman named Rachel Michalewicz who contended with a straight face in her complaint that her ranking of 36 out of 355 students meant that she was in the top 10 percent of her high school class and should have been automatically admitted under the Top Ten Program)—proving beyond a shadow of a doubt that our children is indeed not learning, since you don't round people) should not have gotten further than the courthouse door. Fisher admitted that she was not in top 10 percent of her academic class. She came forward with no evidence that her AI score combined with her PAI score excluding the factor of race was higher than minority students admitted to UT in that 10 percent "discretionary admissions" group. She never proved injury tied to the use of race as one of many admissions factors, even though she had the full benefit of discovery in the trial court to obtain the data necessary to do so. (The case was resolved at the trial court level on summary judgment following application of strict scrutiny; important to remember when you read the Supreme Court's pronouncements about "too much deference" being the reason that Fisher was remanded.)

But Fisher's lack of any evidence of injury to her didn't matter.

It is solely because race might have played a role, however miniscule it might have been, in a student's PAI score—which constitutes just 40 percent of the mathematical formula—that Abigail Fisher was given an open door to the courthouse.

In my opinion, this fact is in violation of all of the rules I was taught in law school about the actual standing requirements in federal court. Article III standing requires, most fundamentally, actual injury, or the certainty of future injury. Fisher and her co-plaintiff simply didn't meet that standard. Each confirmed that they had no further desire or intent to reapply to UT at Austin through the CAP program. Each admitted that it was not certain that they had been denied a spot they would have otherwise had because of race. Both enrolled in other colleges and raised no any argument that they had a lesser quality education at either. They suffered no actual injury that they could prove.

But don't believe me when I talk about Abigail Fisher aka spoiled fucking brat and her sense of entitlement to something she couldn't prove she actually lost. Read what she said when she was discussing this case in the media about why she was pressing this case:

I dreamt of going to UT (the University of Texas) ever since the second grade. My dad went there, my sister went there, and tons of friends and family. And it was a tradition I wanted to continue.
Notice something? Nowhere does she mention that she was absolutely, positively, a strong enough student to have qualified for admission to a selective school. She couldn't.

Yet it didn't matter. Fisher and Michalewicz, entitled as they felt, sued to try and gut the method used to admit just 10 percent of the students at UT Austin in the year at issue, because they were mad they didn't get in. Not because they were actually provably injured where their lives were adversely impacted.

This makes these two white women who brought Fisher the same as a white woman named Cheryl Hopwood. The same as a woman named Barbara Grutter. The same as a white woman named Jennifer Gratz, who recently bit the Uncle Tom hand that fed her nationwide in her quest to ensure that no poor defenseless mediocre white student would ever again have to worry that a Black or Latino kid might be deemed more deserving than she in terms of elite school admissions and the resultant "opportunities" following graduation.

Here's a truth: Unconscious white racists are convinced to the core of their very being that their entitlement to privileged opportunities trumps that of what any Black person ... or other person of color might have to the same thing.

At oral argument in Fisher, the champion of those unconscious racists, the so-called objective umpire who never once challenged Fisher's lawyer on the fundamental standing and injury questions present in the case and raised by his colleagues on the bench as well as in briefing was Justice John Roberts.

On the lack of cognizable injury, he stood moot. On standing, he pooh-poohed its importance, on the grounds that the University's Supreme Court brief only had "a footnote" on this subject, then proceeded to minimize the impact on standing of the most direct SCOTUS case on point (Texas v. Lesage, which denied relief to a white African to bring an equal protection claim against University of Texas after the university demonstrated that he would not have been admitted even if race had not been considered as part of the application process).  

All this makes clear that John Roberts had had only one real interest. When you review the Fisher transcript it is obvious that, over and over again, John Roberts is asking questions about only one thing: the very underpinnings of Grutter and its so-far still viable but extremely limited authorization for consideration of race in higher education admissions. But instead of just being honest and saying "I want to throw out the entire idea of affirmative action for minorities" Roberts plays cute, cynical, games with hypotheticals that have nothing to do with the actual case before him (whether or not Ms. Fisher was racially discriminated against.) He asks, whether someone who is 1/4 Latino is really entitled to check the box "Hispanic" on her application and whether it would be a violation of the Honor Code for a 1/8th Latino student to claim that she is "Hispanic." For example, challenging the University on why 15% minority enrollment TOTAL (in a state where the majority of the population is nonwhite, remember) under the AI/PAI rubric for non-Top 10 students wasn't "enough", Roberts insisted repeatedly at oral argument that the refusal of the University to say they were shooting for a particular number of diverse students (i.e. its refusal to set a QUOTA, absolutely prohibited under race discrimination law and Justice Roberts knows it) as opposed to "critical mass" meant that he "couldn't do his job" of deciding whether or not Ms. Fisher really had been unfairly discriminated against in the individualized assessment of her application such that the entire admissions system was suspect.  From the transcript (previously linked, above) of oral argument:

CHIEF JUSTICE ROBERTS: I understand my job, under our precedents, to determine if your use of race is narrowly tailored to a compelling interest. The compelling interest you identify is attaining a critical mass of minority students at the University of Texas, but you won't tell me what the critical mass is. How am I supposed to do the job that our precedents say I should do?

MR. GARRE: Your Honor, what -- what this Court's precedents say is a critical mass is an environment in which students of underrepresented - -

CHIEF JUSTICE ROBERTS: I know what you say, but when will we know that you've reached a critical mass?

MR. GARRE: Well - -

CHIEF JUSTICE ROBERTS: Grutter said there has to be a logical end point to your use of race. What is the logical end point? When will I know that you've reached a critical mass?

MR. GARRE: Your Honor, this question, of course, implicates Grutter itself. And, again, I
understood my friend not to challenge that. They haven't challenged that diversity is a compelling interest at all.

(Paraphrasing Mr. Garre, who would never be as rude as I: why, Mr. Chief Justice, in the hell are you treating this case as a facial challenge to the legality of a race-conscious admissions program when it is an as-applied challenge? But to ask the question is to answer it.)

Really read the record in Fisher and predecessor cases Grutter, Gratz and Hopwood. Really take the time to look at the underlying record at the trial court level in each and every one of these cases that I've mentioned. You'll find no evidence that any of these women were actually injured. You'll find evidence that they weren't (such as, for example, in the case of Cheryl Hopwood, where there were plenty—140, to be exact—white students with worse academic records than hers admitted into University of Texas Law School, far more than the number—63—of purportedly inferior Black and Latino law students of color admitted her year). Or in the case of Grutter, where there were 16 similarly "less qualified" whites. Yes, it's a lot of work. That's no excuse, not if you're going to raise Word 1 excusing away what has happened in those cases and what is going to be the certain (a) death of all education-based affirmative action the next time a white plaintiff with a halfway decent trial court record seeks SCOTUS review; and (b) resegregation of higher education in the United States.

[And, now, let's go to a personal storytelling break. I hereby confess one of my personal humiliations in this life. My eldest daughter, the only one of my children who listened to her mother even half the time, did not get into Stanford University. Stanford University was not only my alma mater, twice. It was also her father's. And her uncle's. And the school of one of her grandparents. And the school I had actually taught at. And donated generously to. Yet she didn't get in. I still remember not just her rejection letter, but the letter that the school sent me apologizing for not admitting her. She had a 3.47 GPA, a lot more than Ms. Abigail Fisher. She was a student leader at her school, having helped found the Gay-Straight Alliance and been selected for its diversity leadership program. She was the school's Spirit Commissioner (yes, I know—head cheerleader.) She had work experience. She had lots of life suffering experience despite the academic overkill of her parents (thanks to the ugliness that led to and followed my divorce from her father, a different discussion for a different time.) But she didn't get in, even though Stanford University, being a private rather than state school, could have taken her race into account, period. The story ended fine: my daughter had wanted to (and did) go to UC Davis to become a vet anyway, her (as opposed to my) lifelong dream. And, even when her dream proved to be a little less attractive in practice (after making Dean's List her freshman and sophomore years, my eldest discovered she didn't dig having to study living cows with plastic-covered holes cut in them) she ultimately transferred to UCLA (a higher ranked school, to be sure, although the difference was between the 38th-ranked UC Davis and the 24th ranked UCLA matters only to us education snobs) to study filmmaking, which she continues today.

I know, I know. It's sad tale. But here's why I told it: did anyone see me here saying that I sued Stanford University, or even complained to Stanford University, based upon the "tradition" of my daughter's family where Stanford University is concerned? About what, reading between the lines, Fisher believes was her "birthright" (since she never talks not about her qualifications, only her familial pedigree?) as it related to my daughter? Nope. Why not? Because getting to attend any particular college, public or private, is NOT a birthright!

Personal storytelling over.]

Chief Justice Roberts knew all about the record, when it came to Abigail Noel Fisher's entitled whining. He had the trial record. He knew the university's plan, and how little weight race actually had in any admissions decision relating to a single student. He knew the actual statistics showing how little impact even adding race back into the equation has had in terms of diversity. Yet he voted to reverse two lower courts' denial of relief and remanded anyway, on the stated grounds that the lower courts had "deferred too much" to the actual evidence confirming that (a) Fisher had suffered no cognizable injury in fact and (b) the UT admissions system makes race not only a comparatively unimportant, but an almost de minimis, factor in any student's individual chance to attend University of Texas at Austin.  

So much for John Roberts' comments during his confirmation hearings about the importance of the record, in response to a query about the difference between a "facial" and "as applied" constitutional challenge to a law:

ROBERTS: And in those situations, you do need to know what the record is, you do need to know what the facts are, because the challenge might be this law might be fine for other cases but when you apply it to this case, when you apply it to this record or these facts, then it's unconstitutional.
Disingenuous, sneaky, lyin' motherfucker.

If even one student had race taken into account at all in the 40 percent of his or her score that represents API instead of PAI, the Constitution was violated.

Remember what I said above about who was the bankrolling silent partner in the debacle that is now called Shelby County v. Holder? Meet the one that was behind Fisher v. University of Texas at Austin. (As a bonus Mr. Blum also had a hand in the predecessor case to Shelby County v. Holder, the one decided in 2009 where everyone agreed that we'd dodged a bullet as it related to Section 5 of the VRA.)

Here's a free safety tip: If someone comes to you with a straight face and contends that the entire  admissions system used by a premier school should be gutted on racial discrimination grounds even though they can't prove they would have been admitted without consideration of race and when the only legally possible recovery they can have for a cognizable injury if they win is $100 (representing the application fee and advance housing deposit), they are bullshitting you about personally caring enough to litigate all the way up to the United States Supreme Court. You should therefore ask precisely who was upset enough to press the matter.

(Again, I am begging you, please read the links in this diary. The linked Yale Law Review article about the fundamental legal reasons that SCOTUS should not have taken the Fisher case based upon its own precedents about standing, and the links to the record in the trial and appellate courts, makes the case far better than I can here.)

But neither Fisher nor Shelby County was the first time Roberts engaged in smilin' lyin' in order to gut civil rights. The proof of that is evident with a superficial read of Parents Involved in Community Schools v. Seattle School Dist. 1, et. al.

Does anyone (other than the lawyers here) even remember Parents Involved? From June 2007? Well, just in case you don't, let me remind you of it. That case, in which the majority SCOTUS decision was once again authored by our smilin' cynical lyin' Chief Justice John Roberts, is the one that put the knife through a precedent as important to civil rights as the Voting Rights Act: Brown v. Board of Education.

I wrote at length about Parents Involved when it was issued in June 2007, in a diary called To Elizabeth Eckford, the Little Rock Nine, Linda Brown, Nikki and Nettie Hunt. At that time, I did not focus on the language of the SCOTUS decision gutting Brown because, to be brutally honest, I was not emotionally capable of it at the time. I chose instead to focus on what it meant to Black people, in terms of not just how we should feel about it, but what I still believe we need to do to survive as a people, education-wise, despite it.

I bring up (and link) that old diary up again because Parents Involved is the decision that in 2007 gave us the first inkling of exactly how willing John Roberts was to cynically misuse the legacy of the civil rights movement—and in particular the Warren Court's civil rights decisions—to further his end: the end of undoing the law that allowed for the baby steps towards real equality we have made in the past 50 years.

The central holding of of Parents Involved makes clear, read in conjunction with Fisherand Grutter v. Bollinger, that affirmative action in higher education, and government action to cure the effects of ongoing white racism on educational segregation because of housing segregation, is taking in its last, dying breaths:

Racial balancing is not transformed from ‘patently unconstitutional’ to a compelling state interest simply by relabeling it ‘racial diversity.'

These words, read in light of his colloquy with the University and DOJ attorneys defending the University of Texas plan, make plain as day the realperspective of Justice Roberts on diversity as a compelling state interest justifying the use of race in education decisions. But he couldn't even just lie. He had to be cute and manipulative in his reasoning, using the legacy of the Court's civil rights jurisprudence against it. Roberts, writing the majority decision in Parents Involved, unleashed upon us what may be the most insidious twisting of the normal meaning of the word "discrimination," and certainly the most cynical twisting of the intent of the constitutional laws and cases that were intended to secure Black (and, later, other oppressed groups') equality in the United States, ever unleashed. Ever:

The parties and their amici debate which side is more faithful to the heritage of Brown [v. Board of Education], but the position of the plaintiffs in Brown was spelled out in their brief and could not have been clearer: “[T]he Fourteenth Amendment prevents states from according differential treatment to American children on the basis of their color or race.” Brief for Appellants in Nos. 1, 2, and 4 and for Respondents in No. 10 on Reargument in Brown I, O. T. 1953, p. 15 (Summary of Argument). What do the racial classifications at issue here do, if not accord differential treatment on the basis of race? As counsel who appeared before this Court for the plaintiffs in Brown put it: “We have one fundamental contention which we will seek to develop in the course of this argument, and that contention is that no State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.” Tr. of Oral Arg. in Brown I, p. 7 (Robert L. Carter, Dec. 9, 1952). There is no ambiguity in that statement. And it was that position that prevailed in this Court, which emphasized in its remedial opinion that what was “[a]t stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis,” and what was required was “determining admission to the public schools on a nonracial basis.” Brown II, supra, at 300–301 (emphasis added). What do the racial classifications do in these cases, if not determine admission to a public school on a racial basis?    Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again—even for very different reasons. For schools that never segregated on the basis of race, such as Seattle, or that have removed the vestiges of past segregation, such as Jefferson County, the way “to achieve a system of determining admission to the public schools on a nonracial basis,” Brown II, 349 U. S., at 300–301, is to stop assigning students on a racial basis. The way to stop discrimination based upon race is to stop discriminating based upon race.
Have you ever read anything so mind-numbingly stupid about what type of discrimination was being challenged as unconstitutional in Brown v. Board of Ed in your life?

Dear Justice Roberts: it was educational segregation-you disingenuously smiling racist asshole....I mean Your Honor.

(There is an excellent history of Parents Involved that I urge everyone to read. In it, you will not only find the context--a long history of racial discrimination in housing particularly in Seattle--but also find advance echoes of the narrowing of the country's right to continue to pursue racial equality legally that Fisher and Shelby County represent.

Throughout it all, throughout Roberts' having hoist the march to true equality on its own petard using its own (purposefully, I would argue, and Alan Freeman would have argued) rhetoric, the white man in charge of the nation's highest court named John Roberts is restoring to this nation's majority what it has longed for since the 1950's when the Civil Rights movement began in earnest: a return to the good old days where the country's benefits flowed disproportionately to white people and all others need not complain. Reflecting an (IMO)undeniable fact about the white majority in America that Professor Derrick Bell first noted many years ago now in his seminal work Brown v. Board of Education and the Interest-Convergence Dilemma(PDF):

Deep down in its collective heart, white America is completely, utterly, unwilling to sacrifice any meaningful portion of the generations-long advantages in education, employment and even freedom that legal white supremacy gave their forebears. Even if those advantages are still alive and well today. They will collectively sacrifice nothing in furtherance of undoing the ongoing harm created by hundreds of years of racist evil. Period.

SCOTUS' race jurisprudence under Roberts (the mere end game of jurisprudence that began under Rehnquist) makes clear today, all you have to do if you're white is scream, "Help, help, I'm being [OPPRESSED] by those damned unqualified minorities!", without regard to any largely absent piece of proof you might actually have in your possession that you've been harmed by any remedy for historic racial discrimination against people of color. Without any regard to the purportedly equal imperative the courts to further the original intent of the 13th through 15th amendments to benefit people of color as compensation for this nation's history and present. Under the Roberts' court, all you have to do is yell. At htat point, the burden shifts to everyone else on the planet to prove you're not being oppressed.

(Which, as I also cannot possibly show you in a single diary, is now also largely impossible for plaintiffs, thanks to a huge line of cases SCOTUS cases including Ricci v. Destefani, largely gutting the ability to use statistics to demonstrate the racially discriminatory effects of a particular racist practice on a large group.)

Given that Justice Roberts' stated philosophy in Parents Involved about how to cure ongoing racial inequality as it actually plays out on the ground sounds retrograde-level stupid, and given that if nothing else Roberts is a very good lawyer and certainly well-versed in SCOTUS precedents he knows make it extremely hard to prove a race discrimination claim (unless, apparently it's a "reverse discrimination claim" brought by a white person, in which case actual proof is apparently not required), it is obvious why our Chief Justice is smiling all the bloody time.

He's grinnin', folks, because he's winning. In just 8 years, he has successfully used more than once the legal foundation of the civil rights movement against itself preserve and restore racial inequality—just as Professor Alan Freeman said the Court appeared to be systematically doing in 1978 (in his seminal law review article, "Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Rewiew of Supreme Court Doctrine".) Roberts is winning at the long-game that his mentor Justice Rehnquist and his colleagues Justice Alito, and Justice Scalia, and Justice Thomas have never made any secret about if one was paying close attention to what they said instead of to the media talking about what they said.  

As I noted in a diary I wrote back then called John Roberts, Major League Umpire) Justice Roberts, albeit disingenously, told us during his confirmation process that he had no intention of actually fairly and thoroughly applying the principles of stare decisis and scrutiny of the record when deciding the (formerly) settled law in this country, including the law of racial discrimination.  Instead, it was going to be called as he—ultimate umpire of the game—believed HE saw things. Unfortunately, we missed that nuance reacting collectively to his pacifying opening statement at his confirmation hearings:

My personal appreciation that I owe a great debt to others reinforces my view that a certain humility should characterize the judicial role.

Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them.

The role of an umpire and a judge is critical. They make sure everybody plays by the rules.

But it is a limited role. Nobody ever went to a ball game to see the umpire.

Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath.

And judges have to have the modesty to be open in the decisional process to the considered views of their colleagues on the bench.

Humility, service, and modesty my big Black ass.  Lyin' Motherfucker.

(Mostly) quoting a writer whom I normally don't like, because (in furtherance of her own bias against Justice Kagan during her nomination process) she actually has spoken some truth as it relates to the valuelessness of Justice Roberts' stated judicial philosophy and his (lying) insistence that as chief justice he is just an umpire in some objectively-observable game:

As [Justice Benjamin] Cardozo says, the march of history and the evolution of human values necessitate that a judge be a product of her time and place. The corollary is that this necessarily entails making periodic adjustments to the strike zone (just as baseball has repeatedly done over the years)....

A crucial aspect of the court’s mission is to uphold fairness; that is, its jurisprudence is supposed to work for us, not in spite of us. Yet as Souter demonstrates with his Plessy/Brown example, fairness -- and perceptions of fairness—is a notion as fluid and ever-changing as society itself. If the Supreme Court is to maintain it, then it is ridiculous to force its members to play with a 1787—or even a 2009—rulebook.

. . . Preserving the Supreme Court as a “judicial monastery” practically invites warped decisions that, while [judicially] sound, are divorced from the reality on the ground. It’s difficult to look past the practical, popular experience Earl Warren garnered as governor of California when looking at his court’s landmark Civil Rights decisions of the 1960s.

No one is suggesting that Kagan play by her own rules if and when she sits on the court. But we must expect her—and her eight colleagues—to consider the 300 million Americans who live and work beyond the walls of the court. These Americans, after all, still rely on the court to preserve their notions of what “America” is, and what it could and should be.

Don't let the handshake and the smile fool you....
Justice Roberts' intent to undo a century of progress when it comes to the rights of the oppressed and the underdog in this country is now forever cloaked behind not only his false smile, but behind the robes of the most powerful judicial officer in these United States. And successful. It is now easier for aggrieved whites like Fisher to access the courthouse on racial grounds than it is for the original beneficiaries of antidiscrimination law. They need not prove injury. They need not worry about the history of discrimination in this country against others, especially as it relates to the private-party housing discrimination and voluntary segregation that leads to totally legal "separate and unequal" racial discrimination in education. All they need to show is that a darkie or wetback (I use this blunt language because this is how folks like Abigail Fisher think) got something special they felt belonged to them and the courthouse, after Fisher, can no longer throw them out on their ears even if the school at issue can prove that race is really not a significant issue. As one legal analyst noted after the Fisher decision, in response to someone who continued to insist that Fisher is "not so bad":
[Until Fisher, Supreme Court precedent made it relatively easy for universities to defend preference policies so long as the official justification for them was “diversity.” By contrast . . .Fisher significantly tightens judicial scrutiny of such policies, and makes them a lot harder to defend.
Given that, wouldn't you smile too if you were Justice Roberts? Especially if you had managed to accomplish in less than eight years so much of your apparent life's mission to roll the clock back on the rights of every group but your own? All while, for most of it, getting cover because of the existence of a tiny segment of Black people (such as the guy who just happens to be not only be a graduate of one of the country's most prestigious universities (Rank: 2) but President of United States) that managed to make it through the gauntlet despite ongoing institutional white supremacy? Seriously: Did you really think that a man whose great-grandfather was at Appomatox fighting alongside Robert E. Lee would pass that opportunity up to undo the legal remedies that didn't guarantee whites what they wanted in life no matter what people of color wanted?

Disingenuous, cynical racist motherfucker.

Unfortunately, there is nothing we can do to get rid of Justice Roberts, nor the incremental backwards jurisprudence of the Supreme Court begun under his friend William Rehnquist and continued on Roberts' watch. We weren't listening, when it really mattered. So all that's left is to try and change the Congress. At least, most folks are arguing that's all.

Who knows whether that's going to make a difference, though.

I admit that is the thing that makes me spit nails. The political process has proven it won't make any positive difference legislative enactments to cure race discrimination (unless we're talking about "reverse racial discrimination"). Not since 1984 it hasn't. That wouldn't bother me so much, except for this. It's not just that the overwhelming majority of whites reject the idea that affirmative action is necessary to restore the equality that theoretically the 13th through 15th amendments of the United States Constitution guaranteed to its former slave population (and, subsequently, other oppressed groups). Instead, it is that that same white majority unconsciously knows that the rhetoric of "colorblindness" is, in effect, a deliberate misinterpretation of what racial activists like Dr. Martin Luther King Jr. called for during their lifetimes. They know—or would if they had the ability to apply to themselves any unflinching self-assessment of not just what they overtly say, but what they really think—that this articulation of "colorblindness" as the ideal of what Dr. King stood for and died for is no more than a false, self-serving, stolen dream.

Despite this, talking heads on the Left and Right are still saying that it's "not so bad," the Roberts court's march towards the inevitable reversal of all the gains of the Civil Rights movement and then some, unless they feel their own personal interests are going up in flames. So, please do me one last favor: Read again. This time, read the media/pundit commentary about the impact of Shelby County and the media/pundit commentary about Parents Involved. You will readily be able to distinguish between the hue and cry that Shelby County decision (which implicated everyone's voting rights regardless of race, although as is too often the case the practices at issue first were used against minority communities) legitimately raised by the Left from the muted responses those same folks have had to cases like Fisher and Parents Involved.

The rewinding of the Warren Court continues apace.

Your enemy won't do you no harm
Cause you'll know where he's coming from
Don't let the handshake and the smile fool ya
Take my advice I'm only try' to school ya

Smiling Faces Sometimes, The Undisputed Truth (1971)

Originally posted to Daily Kos on Sun Jun 30, 2013 at 05:00 PM PDT.

Also republished by Black Kos community and Barriers and Bridges.

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