With Monday the last day left on its calendar, the Supreme Court is expected to signal this coming week where it stands in the scrum over tradition versus modernity, civil rights, and the ’60s, as it is poised to rule on the constitutionality of the University of Texas’s affirmative-action program, the Defense of Marriage Act, gay marriage in California, and the pre-clearance requirements of the Voting Rights Act. The status quo may take a big hit.
Already this past week, the court struck down Arizona’s voter-identification law, holding that in federal elections the issue of proof of citizenship has been preempted by federal law, thus preserving Congress’s prerogative to set the terms of voter eligibility. Set against the ongoing immigration debate, the court let Congress—not the states—run the show for now.
Significantly, the court also agreed to entertain a challenge to the standard used in federal housing-discrimination cases. Specifically, the court will hear arguments in the fall and determine by next summer whether a plaintiff claiming discrimination must demonstrate a defendant’s intention to discriminate or whether a statistical showing of “disparate impact” will suffice.
At a time of growing global inequality, wage stagnation here at home, and America on its way to being a majority-minority country by midcentury, the stakes of this challenge are higher than they may appear. The case is not just about liability for municipalities, builders, and lenders. The battle over intent versus impact is also a proxy for many of the political clashes that mark the age of Obama and that will be with us after he leaves office.
Although the administration was loath to say it aloud, the fight over Obamacare was, in part, about transferring wealth from more affluent and older white Americans to younger and poorer minorities. Like it or not, ethnicity, assimilation and wages are the same the currents that roil immigration. As Eleanor Clift recently lamented, the brouhaha in Congress over food stamps is not just about budgets.
The court’s expected decision in the Texas admissions case—coupled with its announcement that it will review what constitutes housing discrimination—places it at the intersection of America’s more pressing and raw demographic and political dilemmas. As for affirmative action, the court is being asked to resolve the fact that it has shifted from being a tool engineered nearly half a century ago to address blatant discrimination against blacks into an ethnic entitlement that more often than not benefits upper-income Americans of all races in the name of diversity.
Given our growing social calcification, the need to boost growth and social mobility is great. But whether this goal can be achieved remains an open question. Regardless, constituents continue to make new demands and politicians must harvest votes.
The status quo may take a big hit.
Yet, even against this backdrop of needs and wants, the silent majority has made clear that it views racial preferences as an unfair advantage that should no longer be used in awarding jobs or seats in the classroom. A recent Washington Post–ABC poll pegged voter opposition to race-based admissions at almost 80 percent. Still, the public remains sympathetic to income-based programs, and even if the administration has sided with the University of Texas, Candidate Obama acknowledged the wisdom of a class-based approach, and this is where universities may need to go after Monday, or go nowhere at all.
During an interview with George Stephanopoulos in 2007, Obama mused over whether his daughters should be beneficiaries of affirmative action. Obama said: “Well, first of all, I think that my daughters should probably be treated by any admissions officer as folks who are pretty advantaged, and I think that there’s nothing wrong with us taking that into account as we consider admissions policies at universities. I think that we should take into account white kids who have been disadvantaged and have grown up in poverty and shown themselves to have what it takes to succeed.”
Not doing anything about deepening inequality is politically unacceptable, particularly in the face of the browning of America, with white deaths now exceeding white births and a majority of children age 5 and younger being minorities. To put things in historical context, earlier Catholic immigrations combined with the Great Depression helped bring FDR, the New Deal, and Keynesianism to the White House, while Jewish immigration altered traditional legal understandings of the First Amendment’s Establishment Clause and elevated the separation of church and state to a whole new plane.
Dominant Protestant suppositions were supplanted by a different ethos in both instances, and these days, America’s minorities once again bring a different point of view to the table. According to a recent Gallup poll, minorities are more trusting of government and institutions than whites—with the exception of the military, police, and small business. In other words, America’s divides are real. The question is whether they are intractable.
Practically, making peace with gay marriage appears to be the easier piece of the social puzzle, if not the judicial one. Letting the relatively affluent do what they want to do on their own dime and time should be a no-brainer, especially as religious institutions have squandered the moral authority that they once possessed and lower-income family structure becomes ever more fragile. Squaring the needs and aspirations of an ossifying underclass, however, is the more difficult lift.
In the end, the taxpaying body politic can realistically be expected to do only so much. America is not Iceland, and it cannot afford to be Sweden. The Republic’s tectonic plates will continue to grind and clash.