The future of constitutional rulings will be irrevocably premised on the  judicial arrogation of the Roberts Court.  In an effort to defend Roberts, my fellow TCC contributor Trenton Wheat insightfully describes Roberts’ maneuver to uphold the Affordable Care Act as an instance of judicial restraint.  Upon further inspection, however, it is wise to remember that judicial restraint is an approach that maintains the momentum of former judicial activism rather than accelerating it.  The true conservative doctrine is that of originalism, which adjudicates as closely as possible to the vision of the framers.  I would also caution against trusting in Roberts’ specious remarks on respecting the democratic process.  It is as much the right of the American people to ratify constitutional amendments as to elect senators, representatives, and the president.  Roberts’ notion of democracy seems to have outsourced its inspiration from Hugo Chavez, the man who after winning one genuine election in Venezuela, did away with them altogether.  In modern times, obvious tyranny is a rare thing.  Despotism has evolved over the centuries to unctuously proclaim the people’s best interest before rendering their self-determination superfluous.

Chief Justice Roberts is unequivocally the most horrendous justice on the court.  Liberal and moderate justices are distinguished from the conservatives by their fealty to their politics.  That is quite corrupt, but it is far more understandable to presume that legal minds can be slaves to political passion than it is to excuse Roberts, who votes out of narcissism and the vanity of popularity.  Foolishly, however, he has won the praise of liberals who are accustomed to eviscerating originalist arguments as political while applauding progressive constitutional revision as nonpartisan.  In short, Roberts subjugated the Constitution to the Linda Greenhouse approbation of liberal hypocrisy.  Whereas great thinkers are principled and logically valiant, Roberts was self-serving and self-contradictory in his arguments.  The constitutional variables regarding the potential watershed Fisher v. University of Texas case on affirmative action deserve to be discussed, even if they are unlikely to sway Roberts.  He could very well rule in favor of the majority belief of the American people that affirmative action is unfair.  Alternatively, he could succumb to more liberal pressure from Attorney General Eric Holder to expand affirmative action programs on an unprecedented scale.

The Constitution is a color-blind document.  Despite noble intentions, affirmative action violates the 14th amendment’s equal protection clause.  It is a worthy goal to want to help individuals emerge out of the shadow of historical oppression, and the campaign for greater minority representation should not be abandoned altogether.  However, the struggle for upward mobility will never be unique to minority ethnic groups, it is the American dream itself that people will improve their lives with hard work.  Even liberals do not live in a bubble where race is the plenipotentiary cause of human struggle. Poverty, physical deformity, personal tragedy, speech pathology, and disability are not represented by affirmative action but they are palpable manifestations of adversity.  Nor does every minority individual necessarily bear the burden for which they are compensated.  We live in a time where the American people have reversed the thoughtless prejudice behind slavery to elect an African-American President.   Racism is a dying creed.  Much of its vitality currently is in the paranoid attempt to combat it, the sort of mentality that led the media to convict George Zimmerman of murdering Trayvon Martin without a hearing (Atarah Golden is brilliant).

Rather than affirmative action, a college admissions system should request that interested applicants describe their personal diversity narratives, so that universities can sensitively gauge cases where lenient standards are warranted.   Proportionally, more minorities would be able to benefit from such a program compared to Caucasians, but it would not let skin color be the determining factor of an admissions boost.  Adversity weaves itself into the lives of people of all stripes, and its evaluation cannot be substituted with a box checking approach that eliminates human consideration.  It’s all done so conveniently for the sake of social justice, but it resorts to an institutionalized form of racial profiling that cannot be reconciled with equality.

I think if one looks deeper, the profiling aspect of affirmative action is not coincidental in the slightest.  The foremost bastions of affirmative action are of course the Ivy League universities and their misconduct stretches far back.  Yale, Harvard, and Princeton all imposed quotas on Jews dating back to the 1920s that lasted for decades.  Not because Jews aren’t Caucasian, but because they weren’t WASP, or traced descent from Eastern Europe rather than the Mayflower.  When the quotas were removed, extra-curricular criteria were introduced whereby elite Ivy League activities like rowing and fencing were judged more favorably than whatever poorer people did to bring bread to the family table or whatever rich Jews did that elites deemed unsavory and ethnically unfamiliar.  Today, Asians are subject to similar admissions double standards on the allegation that their lives are not compelling enough to admit them at the rate that their scholastic achievements would merit.  I once heard a college counselor insult a type of essay she had read too often about being taken piggy-back to flee from the tumult in Vietnam through the jungles and swamps and onto a boat destined for the shores of America where the tenacity to escape could be channeled to an enriched life.  I felt that the story was captivating, and to hear it derided came across as intolerably narrow.

It’s also worth noting that the beneficiaries of affirmative action may also pay a steep price for the unacknowledged condescension of the policy.  Clarence Thomas and Thomas Sowell, both African American, have inspired me with their candor on how affirmative action has failed in its goal to elevate the African American community.  For those of you unfamiliar with Clarence Thomas’ biography, he is a descendent of slaves who spoke Gullah at home and not English and raised in a household without plumbing or paved streets.  Clarence Thomas was accepted into Yale Law School under the auspices of affirmative action.  He graduated in the middle of his class, which in terms of the trajectory of improvement alone is a testament to uncanny brilliance.  However, when he applied for employment, he was subjected to accusations that his grades were bestowed upon him in a spirit of sympathy for a black man and not deserved.  Consequently, he placed a cigar sticker on his law diploma to remind himself of its true value.  Yale Law, the most prestigious institution in the country, could not propel him forward to a prosperous life in the legal world because affirmative action menacingly hovered over his achievements.  I can imagine a slightly different scenario, whereby he was admitted to Yale Law because of what he had overcome as a human being.

It could also be argued that affirmative action is a closeted government dependency program that deters hard work by dis-incentivizing it.  I’ve watched enough MSNBC programming to know that the socialist tendencies in America are most pronounced regarding black people, who as a group are disproportionately employed in the public sector and suffer jobless rates analogous to European stagnancy.  Regarding affirmative action, Thomas Sowell recognized that minority students mismatched at top tier schools are still students with great potential, but that it will flesh out better at schools of lower rank where they can approach the top of their class in ranking.  In my mind, Sowell makes excellent sense.  African Americans disproportionately originate from disadvantaged circumstances where the educational resources offer little guidance for success in a top tier university, which far from representing the pinnacle of instruction more typically derives its prestige from research.  To rally his point, he referred to the University of California school system after dropping affirmative action, causing Berkeley to decrease its African American population and slightly less prestigious UC schools to gain in numbers.  Law Professor Abigail Heriot provided an amicus curiae brief on the scientific studies that have empirically corroborated Sowell’s philosophical insights.  While the studies reflect that the traditional wisdom on the efficacy of affirmative action is disputable, I am wary of letting moral questions be decided through our limited scientific inquiry.  The Warrren court’s correct ruling on Brown v. Board of Education mistakenly used the Clarks doll experiment to outlaw educational segregation, despite the self-evident unconstitutionality of it.ot out of being profiled as a black man.  I imagine that more people would savor his riveting legal analysis and he would be looked upon as the true torchbearer of Conservative judicial philosophy.

Where Fisher v. U Texas intersects with the Obama Care ruling is that the Conservative arguments presented to the Supreme Court will be sallied forth in a way that begins with Constitutional originalism and then attempts to calibrate in the fog of judicial precedent, manifested in Roberts’ misguided judicial philosophy.  The reason that this ruling is potentially a watershed case is that it may serve to overturn or clarify the 2003 Grutter v. Bollinger case, where quotas were outlawed, but public universities could create a “critical mass” to fulfill the requirements for diversity.  It also must be said that to extol Roberts for his judicial finesse is illicit, when all he did was imitate Sandra Day O’Connor, also celebrated for her nonpartisanship, which in cases like Grutter caused her to impose Constitutional tests far removed from the framers’ intentions.  In the same way that Sandra Day O’Conor declared that Affirmative Action could Constitutionally violate the equal protection clause because it would not need to exist in 25 years, Justice Roberts has ruled that the individual mandate is not a tax legislatively but a tax Constitutionally.  Previously, words like taxes could not “serve two masters” (to quote Keith Fierro’s great article), but now this confusion is the binding law of the land.The thing that makes the case about University of Texas fascinating is that the affirmative action of years past achieved fewer minority enrollments than in the current day, due to a law that was passed granting the top ten percent of each high school graduating class in the lone star state automatic admission into the University of Texas.  Those outside of that ten percent faced a very formidable pool of qualified students.  Rather than reveling in greater minority enrollment, the University of Texas applied more affirmative action so its student body would resemble distribution of race in the state of Texas at large.What a lopsided take on diversity!  Americans are greater than the sum of their melanin counts.  As institutions of higher learning, universities should promote scholastic diversity wherein there is a broad canvas of ideological perspectives and academic interests, not just geographical distribution.

Aaron Lasker | University of Pennsylvania