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The Supreme Court’s decision to end the use of race in college admissions was not unexpected. Yet President Joe Biden expressed outrage, even claiming that the Court violated the constitutional guarantee that “all men and women are created equal.”
In stating that this Court was not “normal,” Biden further stressed that these admissions decisions and the Dobbs abortion decision reversed the gains that “we fought a war in 1860” to secure.
In an interview on MSNBC’s “Deadline: White House,” President Biden accused the court of ignoring what “the Constitution says: We take these truths for granted, all men and women are created equal, endowed by their creator.” That’s actually a reference to the Declaration of Independence, but it was the substance of the point that was so baffling.
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By prohibiting the use of race in confessions, the court believed it protected that very “obvious” guarantee. It removed what the court in its cases considered a blatant anomaly in its treatment of racial discrimination in education as opposed to employment.
President Biden accused the Supreme Court of ignoring what “the Constitution says.” (Getty Images)
It was the capstone of Chief Justice John Roberts’ opinion delivered in 2017 stated, “The way to stop discrimination based on race is to stop discrimination based on race.” In 2006, Roberts also said, “It’s a dirty business. This divides us by race.”
The court thought it was doing the work that began (but was not fulfilled) with the statement that all men and women are created equal in both education and employment.
The president is not alone in exaggerating. Figures like ABC’s Whoopi Goldberg actually questioned whether the decision “will soon lead to no more women in colleges? Who knows.”
We actually do know. An opinion that rejects the use of racial classification to determine who attends college cannot be construed by anyone as endorsing the exclusion of other groups.
The truly baffling statement was Biden’s claims about the Civil War. By leaving issues like abortion to the states, Biden claims the court reversed what was won in that war. The criticism came in response to an opinion stating that there is no place for racial discrimination in higher education. That hardly seems like an argument that would be embraced by the Confederacy.
Biden has long taken liberties with our constitutional history. Many of us have repeatedly objected to claims he has made in areas such as the Second Amendment. One of his most repeated lines is that the Second Amendment was passed on the understanding that certain guns would be banned, adding, “You couldn’t buy a gun when the Second Amendment was in fact passed.”
That turns out to be completely untrue. But even after the Washington Post declared Biden’s understanding of the Second Amendment wrong, he continued to make the same false claim over and over again.
Now Biden has moved on from the Civil War and his revisionism is about as subtle as Sherman’s scorched “March to the Sea.”
ABC’s Whoopi Goldberg ridiculously asked if the court’s decision will lead to “no more women in colleges soon?” (ABC/”The View”/Screenshot)
The Civil War did not end federalism or states’ rights. It denied the states’ right to secede and ultimately fulfilled the promise of equality first made in the Declaration of Independence.
One can disagree in good faith about the use of racial criteria in admission. However, Biden belittles our previous struggle for equality with these sweeping and erroneous claims.
In his interview the president also insisted that one should “look at how it’s being decided on a number of issues that have sometimes been precedent for 50-60 years. And that’s what I meant by not normal.”
In reality, the court’s decisions on affirmative action in education have been confusing and contradictory for decades. In 1977, in Regents of the University of California v. Bakke, the court banned affirmative action in higher education. However, it allowed for some consideration of race as part of a holistic admissions process.
In the decades that followed, the court remained sharply divided. In 2003, in Grutter v. Bollinger, then-Judge Sandra Day O’Connor provided the fifth vote to uphold the University of Michigan’s use of race.
Still, O’Connor wrote that the court “expects that in 25 years the use of racial preferences will no longer be necessary to advance the interests approved today.” That was about 20 years ago.
It is also ironic to hear the president complain about the reversal of precedent, since the greatest advancement in racial equality was the reversal of Plessy v. Ferguson and the doctrine of “separate but equal.” That was the prevailing precedent from 1894 to 1954, but few sued the Supreme Court for reversing that precedent to eliminate separate or differential treatment based on race.
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The president also asserted that “the vast majority of the American people disagree with many of the decisions made by this court.” The majority clearly opposed the Dobbs ruling, but that is not the case with the affirmative action ruling.
One can disagree in good faith about the use of racial criteria in admission. However, Biden belittles our previous struggle for equality with these sweeping and erroneous claims.
Polls have consistently shown (including this week) that the majority of the public does not support the use of race in college admissions. In fact, even in the most liberal states like California, voters have repeatedly rejected affirmative action in admissions.
We should have a vigorous and passionate debate on these issues. Yet a president should try to facilitate that dialogue rather than distort and weaponize our shared history. It is a continuation of his earlier statements that members of Congress who oppose his electoral reforms to block state laws are voting with “Jefferson Davis” and the Confederacy.
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Despite the laws being upheld as constitutional in states like Georgia, Biden stated that they were returning to the “Jim Crow” South based on distorted accounts of those laws. The claim was again historically and legally preposterous, even in opposition to these state laws.
We must not allow the President’s constitutional and historical distortions, to use his description of the Court, to become “normal.” We have fought hard to tackle the scourge of slavery and racism in our country. That struggle continues, but we cannot address those problems in the future by distorting our past.
CLICK HERE TO READ MORE JONATHAN TURLEY
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a practicing criminal defense attorney. He is a Fox News contributor.
