US Supreme Court must not ignore inequality
In cases on campaign finance (McCutcheon v. FEC) and affirmative action, the US Supreme Court will again consider how best to ensure 'a level playing field.' The Roberts court should be careful not to favor an idealized principle of equal treatment that ignores social realities.
The Roberts court is deeply skeptical of what it perceives as social engineering, and that skepticism will again be tested as the Supreme Court’s new term begins this week.Skip to next paragraph
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Under Chief Justice John Roberts, the conservative majority has viewed government attempts to “level the playing field” as contrary to the constitutional values of the United States. It has demonstrated this concern in several important areas, including race and elections. Both issues will return to the court this year for further refining. Today, the court will hear arguments on campaign finance rules in McCutcheon v. Federal Election Commission. It would be troubling if the majority rules on these cases as it has in the recent past, interpreting the Constitution to mandate an idealized principle of equal treatment that ignores contemporary social realities.
The court will revisit racial preferences when it hears arguments in Schuette v. Coalition to Defend Affirmative Action on Oct. 15. The court will be asked to decide whether a voter-approved, constitutional amendment that bans race- and gender-preferences in Michigan conforms to the US Constitution. Michigan featured in a landmark ruling in 2003, when the high court upheld favored admissions for underrepresented minority groups at the University of Michigan Law School.
Writing for the majority at the time, then-Justice Sandra Day O’Connor also expressed her hope that “25 years from now” affirmative action will no longer be needed. A mere 10 years later, in its 2013 ruling in Fisher v. University of Texas, the court seemed to accelerate that timeline. The majority demanded that UT more strongly demonstrate that race-conscious measures were still needed to ensure a diverse student body. Indeed, the view that minorities no longer need special consideration came through loud and clear in June, when the court struck down a key provision of the Voting Rights Act of 1965.
All of these situations involve a conflict between a mandate of equal treatment and a consideration of continuing inequalities. Does the Constitution require race blindness? Or, may the law acknowledge that apparently neutral rules about admissions, voting, or preferences may in fact entrench existing racial disparities? Given current conditions, differential treatment may be necessary to promote equality for quite some time.
After all, a recent study documented the continuing underrepresentation of minority students. As of 2009, the combined African-American and Hispanic share of the college-age population was 33 percent, but their share of enrollment at top colleges was only 15 percent.