Can the Trump Court End Affirmative Action?

Fabrizio Evola, American Renaissance, February 17, 2017

One originalist appointment may not be enough.

President Trump has kept his promise and nominated an originalist, Judge Neil Gorsuch, to replace Justice Scalia on the Supreme Court. Judge Gorsuch’s confirmation by the Senate appears likely, and conservatives should be pleased that he promises to be a reliable vote on issues such as abortion, religious freedom, marriage, and the Second Amendment. However, President Trump will probably have to fill one more vacancy before the Supreme Court ends the anti-white discrimination known as affirmative action.

In past decisions, the Court has banned the most straightforward—and transparent—forms of affirmative action. The 1978 Bakke decision struck down the use of racial quotas by the University of California, and the 2003 Gratz decision disallowed the use of a points system to give non-white college applicants a quantifiable advantage over whites. The Court has found that racial diversity is a “compelling interest” that justifies discrimination against whites, so long as it is “holistic” and not based on a formula. One can argue that quotas and points systems are better—whites know exactly what they are up against—whereas under an opaque “holistic” system of discrimination, only insiders know how much of a penalty it is to be white.

President Trump’s personal views on affirmative action are not reassuring. He has supported affirmative action in the past, and he criticized Justice Scalia for noting that black students do not do well when admitted to universities through affirmative action. But Mr. Trump’s own views are irrelevant if he continues to keep his promise to nominate justices recommended by the Federalist Society and the Heritage Foundation. So long as Mr. Trump selects nominees from the list he published, the Court is likely to change in ways congenial to the Right.

Confirming Judge Gorsuch to the Supreme Court is the first step to ending affirmative action. Judge Gorsuch is a member of the Federalist Society, a group dedicated to an originalist judicial philosophy. The plain reading of the 14th Amendment’s Equal Protection Clause prohibits government from discriminating against any citizens, including whites, and the Civil Rights Act of 1964 extends this prohibition to private parties. There is every reason to believe that, if confirmed, Judge Gorsuch would join originalist Justices Thomas and Alito and Chief Justice Roberts to give the Court four solid votes against affirmative action.

Judge Gorsuch

However, four votes are not enough to end affirmative action, because the Court also has four committed liberals who support anti-white discrimination. Justices Ginsburg, Breyer, and Sotomayor have all ruled in favor of affirmative action. Justice Kagan has recused herself from several affirmative action cases, but she supported it in her role as a domestic policy adviser to the Clinton administration.

Unfortunately, the current swing voter, Justice Kennedy, is not a reliable originalist on this or any other issue. Justice Kennedy ruled against affirmative action in Ricci, Gratz, Grutter, and Schuette. But he surprised the legal community in the 2016 Fisher II decision by upholding the use of race in college admissions, albeit under limited circumstances.

To establish a Supreme Court majority that would prohibit affirmative action, President Trump must appoint at least one more justice after Judge Gorsuch. Justice Kennedy is 80 years old, and there are rumors he will step down within the year. He was appointed by President Reagan, has sided with the originalist justices on many issues, and would probably want a Republican to name his successor. Justices Breyer (age 78) and Ginsburg (age 83) may also be near retirement. Both are committed liberals appointed by President Clinton and would not want President Trump to name their successors. However, it is hard to imagine that both could outlast a second Trump term. Even if he serves only one term, Mr. Trump should get to appoint at least one justice after Judge Gorsuch.

As a replacement for Scalia, Judge Gorsuch would not reduce Democrat power on the Court, but Democrats will surely try to block further Trump appointments to prevent an originalist majority. Such a Court would thwart their plans to remake America through unelected judges and against the popular will.

Democrats could filibuster a nominee, which would require a supermajority of 60 votes to break. Although Republicans could eliminate the filibuster rule with a simple majority vote, many are reluctant to do so because they would thereby lose a valuable tool of the opposition if they become the minority. This is the reason Democrats did not eliminate the filibuster for Supreme Court nominees when they changed the Senate rules in 2013. If Democrats try to filibuster Judge Gorsuch, however, Majority Leader Mitch McConnell has indicated that he might be willing to eliminate the filibuster—this would be a repudiation of a long-standing Senate custom and is called the “nuclear option.” Both parties are wary of changing the rules in ways that would give them less leverage when they are in the minority.

The current Republican Senate majority is small enough that even a few defections by more liberal senators such as Susan Collins, Lisa Murkowski, or John McCain could scuttle a nominee. However, the GOP’s Senate majority is likely to grow in the 2018 elections. Democrats are defending 25 seats—many in states that Trump won by wide margins—whereas Republicans are defending only eight seats, nearly all in deep red states.

Yet even a fifth originalist justice may not be enough to end affirmative action. Courts are reluctant to overturn longstanding precedents on close votes, because such decisions could easily be reversed if the composition of the Court changed. For instance, the Court did not overturn Plessy v. Ferguson until its 9-0 decision in Brown v. Board of Education. Affirmative-action precedents go back nearly 40 years, and Mr. Trump may need to appoint at least two more justices besides Judge Gorsuch before the Court considers overturning those precedents. The Democrats will probably try to filibuster any future nominee, so the GOP would do well to eliminate that threat at the first opportunity.

There is reason to be optimistic about the prospects for ending affirmative action. We have a chance over the next four to eight years to secure the Court for a generation. There will be fierce resistance from the Left, and the GOP must be bold in order to succeed. Mr. Trump must nominate justices from his list, and Senate Republicans must eliminate the filibuster, stand united in confirmation votes, and increase their majorities in 2018. There is little room for error.

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Fabrizio Evola

Fabrizio Evola is a former prosecutor who is now in private practice. He specializes in criminal defense, family law, probate, and real estate.

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