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      What was affirmative action designed to do – and what has it achieved?

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      The US supreme court banned the use of affirmative action policies in college admissions on Thursday. The court ruled that race-conscious admissions violate the equal-protection clause under the US constitution.Envisioned as a tool to help remedy historical discrimination and create more diverse student bodies, affirmative action policies have permitted hundreds of colleges and universities to factor in students’ racial backgrounds during the admissions process. That consideration is supplementary, and taken in tandem with other factors such as applicants’ test scores, grades and extracurricular activities.Even with race-conscious admissions, however, many selective public and private colleges and universities struggle to enroll diverse student populations that accurately reflect society. At the University of North Carolina, for example, in a state where 21% of people are Black, just 8% of the school’s undergraduates are Black.Opponents of affirmative action, such as the advocacy group Students for Fair Admissions, argue that considering race as a factor in the admissions process amounts to racial discrimination – particularly against Asian Americans. SFA has brought cases against Harvard University, the nation’s oldest private university, and UNC, the nation’s first public university, to challenge their affirmative action policies, which the group contends favors Black and Latino students. Ultimately, it hopes that race considerations will be nixed from the admissions process entirely, and replaced by race-neutral or “color-blind” policies.What was affirmative action designed to do?The concept of affirmative action originated in 1961 when President John F Kennedy issued an executive order directing government agencies to ensure that all Americans get an equal opportunity in employment. President Lyndon Johnson took it one step further in 1965, barring public and private organizations that had a federal contract from discriminating based on race, color, religion and national origin. The prohibition was added to the Civil Rights Act of 1964.In 1969, President Richard Nixon’s assistant labor secretary, Arthur Fletcher, who would eventually be known as the “father of affirmative action”, pushed for requiring employers to set “goals and timetables” to hire more Black workers. That effort, known as the Revised Philadelphia Plan, would later influence how many schools approached their own race-conscious admissions programs.The practice was challenged when Allan Bakke, a white man who was twice denied entry to the medical school at the University of California at Davis, sued the university, arguing that its policies, which included allocating seats for “qualified” students of color, discriminated against him. In 1978, the supreme court narrowly rejected the use of “racial quotas”, but noted that colleges and universities could use race as a factor in the admissions process. Justice Lewis Powell noted that achieving diversity represented a “compelling government interest”.What has affirmative action in college admissions actually achieved?After generations of near total exclusion of Black students and other students of color, colleges and universities began admitting more diverse groups in the 1960s and 70s, and soon thereafter incorporated race-consciousness into their admissions policies.Data shows that the rise of affirmative action policies in higher education has bolstered diversity on college campuses. In 1965, Black students accounted for roughly 5% of all undergraduates. And between 1965 and 2001, the percentage of Black undergraduates doubled. The number of Latino undergraduates also rose during that time. Still, the practice of factoring race into the admissions process faced repeated attacks. In 1998, during an era of conservatism, California voters approved Proposition 209, which outlawed affirmative action in any state or government agency, including its university system. Since then, eight more states have eliminated such race-conscious policies.What could happen next?The end of affirmative action at those state levels shows just how impactful the consideration of race in admissions has been: a UC Berkeley study found that after the ban in California, the number of applicants of color in the UC system “sharply shifted away from UC’s most selective Berkeley and UCLA campuses, causing a cascade of students to enroll at lower-quality public institutions and some private universities”. Specifically, the number of Black freshmen admitted to UC Berkeley dropped to 3.6% between 2006 and 2010 – almost half of its population before the ban.In an amicus brief in the Harvard case, attorneys for the University of Michigan, which had to stop considering race in admissions in 2006, argued that despite “persistent, vigorous and varied efforts” to achieve diversity, it has struggled to do so without race-consciousness. The number of Black and Native American students has “dramatically” dropped since the end of affirmative action in the state.Though students of color remain underrepresented at selective colleges and universities today, institutions argue that their presence helps shape students’ on-campus experiences. The removal of race consideration from college admissions could set a precedent for a less diverse school system, which stands in stark contrast to an increasingly diverse world. More

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      What is affirmative action designed to do – and what has it achieved?

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      The US supreme court could be poised to ban the use of affirmative action policies in college admissions as soon as Thursday. The court, which is expected to deliver its ruling either this week or next, will determine whether race-conscious admissions violate the equal-protection clause under the US constitution.Envisioned as a tool to help remedy historical discrimination and create more diverse student bodies, affirmative action policies have permitted hundreds of colleges and universities to factor in students’ racial backgrounds during the admissions process. That consideration is supplementary, and taken in tandem with other factors such as applicants’ test scores, grades and extracurricular activities.Even with race-conscious admissions, however, many selective public and private colleges and universities struggle to enroll diverse student populations that accurately reflect society. At the University of North Carolina, for example, in a state where 21% of people are Black, just 8% of the school’s undergraduates are Black.Opponents of affirmative action, such as the advocacy group Students for Fair Admissions, argue that considering race as a factor in the admissions process amounts to racial discrimination – particularly against Asian Americans. SFA has brought cases against Harvard University, the nation’s oldest private university, and UNC, the nation’s first public university, to challenge their affirmative action policies, which the group contends favors Black and Latino students. Ultimately, it hopes that race considerations will be nixed from the admissions process entirely, and replaced by race-neutral or “color-blind” policies.What is affirmative action designed to do?The concept of affirmative action originated in 1961 when President John F Kennedy issued an executive order directing government agencies to ensure that all Americans get an equal opportunity in employment. President Lyndon Johnson took it one step further in 1965, barring public and private organizations that had a federal contract from discriminating based on race, color, religion and national origin. The prohibition was added to the Civil Rights Act of 1964.In 1969, President Richard Nixon’s assistant labor secretary, Arthur Fletcher, who would eventually be known as the “father of affirmative action”, pushed for requiring employers to set “goals and timetables” to hire more Black workers. That effort, known as the Revised Philadelphia Plan, would later influence how many schools approached their own race-conscious admissions programs.The practice was challenged when Allan Bakke, a white man who was twice denied entry to the medical school at the University of California at Davis, sued the university, arguing that its policies, which included allocating seats for “qualified” students of color, discriminated against him. In 1978, the supreme court narrowly rejected the use of “racial quotas”, but noted that colleges and universities could use race as a factor in the admissions process. Justice Lewis Powell noted that achieving diversity represented a “compelling government interest”.What has affirmative action in college admissions actually achieved?After generations of near total exclusion of Black students and other students of color, colleges and universities began admitting more diverse groups in the 1960s and 70s, and soon thereafter incorporated race-consciousness into their admissions policies.Data shows that the rise of affirmative action policies in higher education has bolstered diversity on college campuses. In 1965, Black students accounted for roughly 5% of all undergraduates. And between 1965 and 2001, the percentage of Black undergraduates doubled. The number of Latino undergraduates also rose during that time. Still, the practice of factoring race into the admissions process faced repeated attacks. In 1998, during an era of conservatism, California voters approved Proposition 209, which outlawed affirmative action in any state or government agency, including its university system. Since then, eight more states have eliminated such race-conscious policies.What could happen next?The end of affirmative action at those state levels shows just how impactful the consideration of race in admissions has been: a UC Berkeley study found that after the ban in California, the number of applicants of color in the UC system “sharply shifted away from UC’s most selective Berkeley and UCLA campuses, causing a cascade of students to enroll at lower-quality public institutions and some private universities”. Specifically, the number of Black freshmen admitted to UC Berkeley dropped to 3.6% between 2006 and 2010 – almost half of its population before the ban.In an amicus brief in the Harvard case, attorneys for the University of Michigan, which had to stop considering race in admissions in 2006, argued that despite “persistent, vigorous and varied efforts” to achieve diversity, it has struggled to do so without race-consciousness. The number of Black and Native American students has “dramatically” dropped since the end of affirmative action in the state.Though students of color remain underrepresented at selective colleges and universities today, institutions argue that their presence helps shape students’ on-campus experiences. The possible removal of race consideration from college admissions would set a precedent for a less diverse school system, which stands in stark contrast to an increasingly diverse world. More

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      Harvard to rename school after top Republican donor following $300m gift

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      Harvard University will rename its graduate school of arts and sciences after billionaire hedge fund executive and Republican megadonor Kenneth Griffin, the institution announced on Tuesday, after a new $300m contribution brought Griffin’s total support of his alma mater to more than half a billion dollars.Griffin, 54, is the founder and chief executive of Citadel, a $59bn hedge fund, and Citadel Securities, which trades securities. He is the 35th richest person in the world, with a net worth of $34.9bn, according to the Bloomberg billionaires index.Griffin will be just the fourth individual to have a school at Harvard named after him in exchange for a donation, according to the Harvard Crimson student newspaper. His name will carry controversy thanks to Griffin’s stature as a major political donor to rightwing politicians and his company’s investments in firearm and ammunition manufacturers.Griffin’s companies held investments in gun and ammunition manufacturers worth more than $139m as of March 2022, according to Chicago NPR affiliate WBEZ. These included shares in US gun manufacturers Smith & Wesson and Sturm Ruger, as well as US ammunition makers Olin Corp, Vista Outdoor, and Ammo Inc.The investments became a matter of public debate in 2022 when Griffin poured millions into a Republican candidate for the governorship of Illinois. Griffin accused sitting Democrat governor JB Pritzker of failing to combat crime in Chicago, where Griffin’s companies were based. He subsequently moved his companies’ headquarters to Miami.A WBEZ analysis of firearms recovered by Chicago police from violent crime incidents over five years found that nearly one in four were produced by companies in which Citadel invests.At the time, Citadel disputed the importance of the investments, telling WBEZ that they made up “less than .01% of our portfolio” and arguing that a connection to gun violence was “quite a stretch”.Griffin rejected a call by the Chicago Sun-Times newspaper for his companies to divest from gun and ammunition makers, writing in a letter to the editor that “40% of American households own a gun” and that “the violence destroying our city is not the result of … legal gun purchases, but rather a failure to prosecute criminals, a lack of support for police, and progressive left legislation that prioritizes criminals ahead of law-abiding citizens”.He added: “I will not embrace today’s cancel culture nor engage in amateurish virtue-signaling based on blind ideology.”Griffin is also a major political donor and one of the most prominent backers of Florida governor Ron DeSantis, whom he has urged to run for president in 2024. A one-time fundraiser for Barack Obama, Griffin gave nearly $60m to Republican candidates for federal positions in 2022, according to Politico.Griffin’s close association with DeSantis is another potential reputational issue for Harvard. The Florida governor has staked out extreme positions on education and LGBTQ rights, including by signing the so-called “don’t say gay” bill that restricts Florida teachers from discussing topics related to sexuality and gender identity and banning the state’s public high schools from teaching a new advanced placement course in African American studies.This year, DeSantis unveiled a legislative proposal to remake Florida’s public colleges and universities that included banning critical race theory – an academic theory developed by Black scholars at Harvard Law School – and diversity and inclusion programs and drastically reducing the protections afforded by academic tenure.Asked to comment about Griffin’s association with DeSantis and his policies, a spokesperson for Citadel said: “Ken respects and employs people of all backgrounds.”Griffin’s gift to Harvard was unrestricted, the school said, and will go to the faculty of arts and sciences, which includes the undergraduate college and PhD programs. In 2014, Griffin made a $150m donation to the elite private university, primarily to fund financial aid. At the time, it was the largest single donation in the institution’s history.“Ken’s exceptional generosity and steadfast devotion enable excellence and opportunity at Harvard,” said Harvard president Larry Bacow in a statement. “I am deeply and personally appreciative of the confidence he has placed in us – and in our mission – to do good in the world.”Harvard did not immediately respond to a request for comment.Got a tip on this story? Email Stephanie.Kirchgaessner@theguardian.com More

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      Harvard Kennedy School condemned for denying fellowship to Israel critic

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      Harvard Kennedy School condemned for denying fellowship to Israel criticACLU and Pen America back former Human Rights Watch chief Kenneth Roth and say decision ‘raises serious questions’ Leading civil rights organisations have condemned Harvard Kennedy School’s denial of a position to the former head of Human Rights Watch over the organisation’s criticism of Israel.Harvard blocks role for former Human Rights Watch head over Israel criticismRead moreThe American Civil Liberties Union called the refusal of a fellowship to Kenneth Roth “profoundly troubling”. PEN America, which advocates for freedom of expression, said the move “raises serous questions” about one of the US’s leading schools of government. Roth also received backing from other human rights activists.But the Kennedy School found support from organisations that have been highly critical of Roth and HRW, particularly over the group’s report two years ago that accused Israel of practising a form of race-based apartheid in the Palestinian occupied territories.The Harvard Kennedy School’s Carr Center for Human Rights Policy offered Roth a position as a senior fellow shortly after he retired as director of HRW in April after 29 years. But the school’s dean, Douglas Elmendorf, allegedly vetoed the move.A professor of human rights policy at the Kennedy School, Kathryn Sikkink, told the Nation that Elmendorf said to her that Roth would not be permitted to take up the position because HRW has an “anti-Israel bias” and its former director had written tweets critical of Israel.Roth told the Guardian that Harvard’s move was a reflection of “how utterly afraid the Kennedy School has become of any criticism of Israel” under pressure from donors and influential supporters within the school of Israel’s rightwing government.The director of the ACLU, Anthony Romero, urged the Kennedy School “to reverse its decision”.“If Harvard’s decision was based on HRW’s advocacy under Ken’s leadership, this is profoundly troubling – from both a human rights and an academic freedom standpoint, he said. “Scholars and fellows have to be judged on their merits, not whether they please powerful political interests.”PEN America also backed Roth.“It is the role of a human rights defender to call out governments harshly, to take positions that are unpopular in certain quarters and to antagonize those who hold power and authority,” the group said. “There is no suggestion that Roth’s criticisms of Israel are in any way based on racial or religious animus.“Withholding Roth’s participation in a human rights program due to his own staunch critiques of human rights abuses by governments worldwide raises serious questions about the credibility of the Harvard program itself.”The Foundation for Individual Rights and Expression, which promotes free speech on college campuses, wrote to Elmendorf saying that the Kennedy School “undermines its laudable commitment to intellectual diversity and free inquiry when it rescinds a fellowship offer based on the candidate’s viewpoint or speech”.But Harvard found support from organisations that have been highly critical of Roth and HRW over the group’s reports on Israel.NGO Monitor, a Jerusalem-based organisation that campaigns against humanitarian groups critical of Israeli government policies, accused HRW under Ross’s leadership of seeking to “delegitimize Israel”.“The dean at Harvard was not fooled by the moral facade granted to Roth and HRW. He recognized Roth’s central contributions to legitimizing antisemitism,” NGO Monitor’s president, Gerald Steinberg, said.UN Watch, a pro-Israel lobby group, described the Kennedy School’s move as “good news”.“Ken Roth had a pathological obsession with singling out Israel for differential and discriminatory treatment, disproportionately to shocking degrees, with the apparent aim to portray the Jewish state in a manner that would evoke repulsion and disgust,” it said.Roth has long been the target of a personalised campaign of abuse, including charges of antisemitism, even though his father was a Jewish refugee from Nazi Germany. He said HRW faced similar attacks on its motives when it released its report titled A Threshold Crossed: Israeli Authorities and the Crimes of Apartheid and Persecution, even though leading Israeli politicians have also “warned that the occupation has become a form apartheid”.“The irony is that when we issued the report, the Israeli government was at a loss to find anything wrong with it. They fell back on the usual arguments of, ‘you must be antisemitic’. I take that as a … victory because if all they can do is name call, they have nothing substantive to say,” he said.The Kennedy School did not respond to requests for comment.TopicsUS newsUS politicsHarvard UniversityHigher educationUS universitiesIsraelPalestinian territoriesnewsReuse this content More

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      Trump’s worst toadies hold degrees from Harvard and Yale. Did they learn anything? | Robert Reich

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      Trump’s worst toadies hold degrees from Harvard and Yale. Did they learn anything?Robert ReichPoliticians educated at some of the US’s most elite universities are spreading conspiracy theories that they surely know are untrue. What happened to ‘service and stewardship’? The original justification for elite higher education in the United States was to train the future leaders of American democracy. As Charles W Eliot, who became president of Harvard in 1869, noted, Harvard existed to inculcate the ideals of “service and stewardship”.Since then, Harvard has produced eight US presidents; Yale, five. (Stanford can boast Herbert Hoover, if it feels compelled to do so.)Elite universities have also produced a disproportionate number of senators and representatives from both parties. In fact, Republicans elected to the Senate over the last decade are more likely than their Democratic counterparts to have attended Harvard, Yale, Princeton or Stanford.So how to explain Elise Stefanik, Harvard class of 2006, now the third-ranking House Republican, who recently called the January 6 hearings a “partisan witch-hunt”, voted to invalidate the 2020 election, and has repeated Trump’s big lie of election fraud?Or Josh Hawley, Stanford class of 2002 and Yale law class of 2006, now senator from Missouri, who in December 2020 became the first US senator to announce plans to object to the certification of Joe Biden’s victory, then led Senate efforts to overturn the electoral college vote count, and fist-bumped the rioters on January 6?Or Ted Cruz, Princeton class of 1992 and Harvard law class of 1995, now senator from Texas, who in late 2020 joined in John Eastman’s and Trump’s plot to object to the election results in six swing states and delay accepting the electoral college results on January 6, potentially enabling Republican state legislatures to overturn them?And how to explain a new crop of Republican Senate candidates?JD Vance, Yale Law class of 2013, now Republican candidate for the Senate from Ohio, has claimed that there “were certainly people voting illegally on a large-scale basis” in the 2020 election. When asked earlier this year if he thought the 2020 election was “stolen”, he said, “Yeah, I do.”Blake Masters, Stanford class of 2008 and Stanford law class of 2012, now the Republican candidate for the Senate from Arizona, has declared in campaign ads that “Trump won”. He promotes rightwing “replacement theory” – that Democrats favor illegal immigration “so that someday they can ‘amnesty’ these people and make them voters who they expect to vote Democrat”.These alumni of America’s finest institutions of higher education haven’t adhered to their alma maters’ ideals of service and stewardship of American democracy. In fact, they’re actively wrecking American democracy.Nor can these elite graduates claim they don’t know any better. Most third-graders can distinguish a lie from the truth.No, these scions of the most prestigious halls of American academe are knowingly and intentionally abetting the most dangerous attack on American democracy since the civil war.Whatever did they learn from their rarefied education? Obviously, zilch.The core of a good liberal arts education is ethics. The central question is the meaning of a good society. This has been the case since the 18th century, when most of America’s prestigious institutions of higher education were founded.Adam Smith, the progenitor of modern economics, didn’t call his field economics. He called it “moral philosophy”, and thought his book The Theory of Moral Sentiments more important than his The Wealth of Nations.Edmund Burke – Irish statesman and philosopher, and godfather of modern conservatism – didn’t advise that people in public life seek power above all else. He argued that they owe the public their “judgment and conscience”.There is no single answer to the meaning of a good society, of course. It is the pursuit of it that draws on one’s judgment and conscience. This is why higher education has advanced the role of reason in human affairs and stood for the Enlightenment values of democracy and the rule of law.But this new crop of Republican pretenders hasn’t learned anything of the kind. They are practitioners of a much earlier and more cynical set of ideas: that might makes right, that the purpose of human endeavor is to gain power, and that ambition and treachery trump (excuse the verb) all other values.I can’t help wondering: what do they see when they look in the mirror each morning? And what do they tell themselves after a day of deceit?Any of them who tries to justify the despicable means they are employing by telling themselves they can do more good by gaining or keeping power is under a dangerous illusion. As the great civil rights leader Bayard Rustin once said, “If we desire a society that is democratic, then democracy must become a means as well as an end.”These products of the best education America has to offer are betraying the core values of America.They deserve only shame.
      Robert Reich, a former US secretary of labor, is professor of public policy at the University of California at Berkeley and the author of Saving Capitalism: For the Many, Not the Few and The Common Good. His new book, The System: Who Rigged It, How We Fix It, is out now. He is a Guardian US columnist. His newsletter is at robertreich.substack.com
      TopicsUS politicsOpinionRepublicansDonald TrumpHarvard UniversityYale UniversitycommentReuse this content More

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      Justice Thomas Ruled on Election Cases. Should His Wife’s Texts Have Stopped Him?

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      The nature of the text messages was enough to require recusal, legal experts said. But the Supreme Court has traditionally left such decisions to the discretion of the justice in question.WASHINGTON — The disclosure that Virginia Thomas, the wife of Justice Clarence Thomas, had sent a barrage of text messages to the Trump White House urging efforts to overturn the 2020 election brought into sharp focus the conflict of interest her political activism has created — and the lack of a clear-cut remedy.It is one thing, experts in legal ethics said on Friday, for the spouse of a Supreme Court justice to express political views, even ones shot through with wild conspiracy theories. That may not by itself require the justice’s recusal from cases touching on those views.But the text messages from Ms. Thomas, a longtime conservative activist who goes by Ginni, revealed something quite different and deeply troubling, experts said.The messages from Ms. Thomas to Mark Meadows, President Donald J. Trump’s chief of staff, sent during and just after the fraught weeks between the 2020 presidential election and the Jan. 6 attack on the Capitol, demonstrated that she was an active participant in shaping the legal effort to overturn the election.“I’m not sure how I would have come out if we just had a lot of texts from her saying that ‘this is terrible,’ said Amanda Frost, a law professor at American University in Washington.“But she wasn’t doing just that,” Professor Frost said. “She was strategizing. She was promoting. She was haranguing.”The texts were among about 9,000 pages of documents that Mr. Meadows turned over to the congressional committee investigating the Capitol attack. Democrats immediately seized on the disclosure to draw attention to the conflicts they said were presented by Ms. Thomas’s political activities and to press Justice Thomas to recuse himself from cases concerning the election and its aftermath. Senator Ron Wyden, Democrat of Oregon, said that Justice Thomas’s “conduct on the Supreme Court looks increasingly corrupt” and that he had been “the lone dissent in a case that could have denied the Jan. 6 committee records pertaining to the same plot his wife supported.”Justice Thomas, Mr. Wyden said, “needs to recuse himself from any case related to the Jan. 6 investigation, and should Donald Trump run again, any case related to the 2024 election.”But Justice Thomas, who was released from the hospital on Friday after being treated for the last week for flulike symptoms, has long been a pillar of the conservative establishment. Republicans, even those who have distanced themselves from Mr. Trump and the more extreme wing of their party, showed no interest in pressuring him to recuse himself.Ms. Thomas’s text messages were heated and forceful, urging Mr. Meadows to pursue baseless legal challenges. “Biden and the Left is attempting the greatest Heist of our History,” one said.Ms. Thomas’s activities should have prompted Justice Thomas to disqualify himself from cases related to them, said Stephen Gillers, a law professor at New York University.“He had an obligation not to sit in any case related to the election, the Jan. 6 committee or the Capitol invasion,” he said.Professor Frost agreed that the situation was “an easy case.”“When your spouse is conversing with people who have some control over litigation to challenge an election,” she said, “you shouldn’t be sitting on the Supreme Court deciding that election or any aspect of it.”But Justice Thomas did participate in a ruling in January on an emergency application from Mr. Trump asking the court to block release of White House records concerning the attack on the Capitol. The court rejected the request, in a sharp rebuke to the former president.Only Justice Thomas noted a dissent, giving no reasons.He also participated in the court’s consideration of whether to hear a related appeal, one in which Mr. Meadows filed a friend-of-the-court brief saying that “the outcome of this case will bear directly” on his own efforts to shield records from the House committee investigating the attacks beyond those he had provided.The Supreme Court last month refused to hear the case, without noted dissent. There was no indication that Justice Thomas had recused himself.In December 2020, around the time of the text messages, Justice Thomas participated in a ruling on an audacious lawsuit by Texas asking the court to throw out the election results in four battleground states. The court rejected the request, with Justices Thomas and Samuel A. Alito Jr. issuing a brief statement suggesting the majority had acted too soon in shutting the case down.In February 2021, Justice Thomas addressed election fraud in a dissent from the Supreme Court’s decision to turn away a challenge to Pennsylvania’s voting procedures.Ms. Thomas’s messages urged Mark Meadows, President Donald J. Trump’s chief of staff, to pursue baseless legal challenges.Oliver Contreras for The New York Times“We are fortunate that many of the cases we have seen alleged only improper rule changes, not fraud,” he wrote. “But that observation provides only small comfort. An election free from strong evidence of systemic fraud is not alone sufficient for election confidence.”Justice Thomas did not respond to a request for comment on Friday.All federal judges, including Supreme Court justices, are subject to a federal law on recusal. The law says that “any justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”Judging by the nature of the text messages and the uproar over them, that provision alone is enough to require Justice Thomas’s recusal, legal experts said.A more specific provision concerning relatives, including spouses, might also apply to his situation. Judges should not participate, the law says, in proceedings in which their spouse has “an interest that could be substantially affected by the outcome of the proceeding.”Professor Gillers said the word “interest” was the key.“By writing to Meadows, who was chief of staff and active in the ‘Stop the Steal’ movement, she joined the team resisting the results of the election,” Professor Gillers said. “She made herself part of the team and so she has an interest in the decisions of the court that could affect Trump’s goal of reversing the results.”The Trump InvestigationsCard 1 of 6Numerous inquiries. More

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      The Supreme Court Fails Black Voters in Alabama

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      You know the Rubicon has been crossed when the Supreme Court issues a conservative voting rights order so at odds with settled precedent and without any sense of the moment that Chief Justice John Roberts feels constrained to dissent.This is the same John Roberts who in 1982, as a young lawyer in the administration of President Ronald Reagan, fought a crucial amendment to the Voting Rights Act of 1965; whose majority opinion in 2013 gutted one-half of the Voting Rights Act and who joined an ahistoric opinion last summer that took aim at the other half; and who famously complained in dissent from a 2006 decision in favor of Latino voters in South Texas that “it is a sordid business, this divvying us up by race.”Yes, that Chief Justice Roberts. What the 5-to-4 majority did was that far out of line.The unsigned order that drew the chief justice’s dissent Monday night blocked the decision by a special three-judge Federal District Court ordering the Alabama Legislature to draw a second congressional district in which Black residents constitute a majority. Alabama’s population is 27 percent Black. The state has seven congressional districts. The lower court held that by packing some Black voters into one district and spreading others out over three other districts, the state diluted the Black vote in violation of the Voting Rights Act.The Supreme Court will hear Alabama’s appeal of the district court order in its next term, so the stay it granted will mean that the 2022 elections will take place with district lines that the lower court unanimously, with two of the three judges appointed by President Donald Trump, found to be illegal.Chief Justice Roberts objected that the ordinary standards under which the Supreme Court grants a stay of a lower court opinion had not been met. “The district court properly applied existing law in an extensive opinion with no apparent errors for our correction,” he wrote. Justice Elena Kagan, joined by Justices Stephen Breyer and Sonia Sotomayor, also dissented in a more extensive opinion that accused the majority of using the court’s emergency “shadow docket” not only to intervene improperly on behalf of the state but also to change voting rights law in the process.This is no mere squabble over procedure. What happened Monday night was a raw power play by a runaway majority that seems to recognize no stopping point. It bears emphasizing that the majority’s agenda of cutting back on the scope of the Voting Rights Act is Chief Justice Roberts’s agenda too. He made that abundantly clear in the past and suggested it in a kind of code on Monday with his bland observation that the court’s Voting Rights Act precedents “have engendered considerable disagreement and uncertainty regarding the nature and contours of a vote dilution claim.” But in his view, that was an argument to be conducted in the next Supreme Court term while permitting the district court’s decision to take effect now.While the majority as a whole said nothing, Justice Brett Kavanaugh took it upon himself to offer a kind of defense. Only Justice Samuel Alito joined him. Perhaps the others — Justices Clarence Thomas, Neil Gorsuch and Amy Coney Barrett — chose not to sign onto his rude reference to Justice Kagan’s “catchy but worn-out rhetoric about the ‘shadow docket.’ ” Or perhaps his “To reiterate: The court’s stay order is not a decision on the merits” rang a little hollow when, as Justice Kagan pointed out, “the district court here did everything right under the law existing today” and “staying its decision forces Black Alabamians to suffer what under that law is clear vote dilution.”In other words, when it comes to the 2022 elections, for Black voters in Alabama the Supreme Court’s procedural intervention is the equivalent of a ruling on the merits.Or maybe the others couldn’t indulge in the hypocrisy of Justice Kavanaugh’s description of the standards for granting a stay. The party asking for a stay, he wrote, “ordinarily must show (i) a reasonable probability that this court would eventually grant review and a fair prospect that the court would reverse, and (ii) that the applicant would likely suffer irreparable harm absent the stay.”But wait a minute. Weren’t those conditions clearly met back in September when abortion providers in Texas came to the court seeking a stay of the Texas vigilante law, S.B. 8, which was about to go into effect? That law, outlawing abortion after six weeks of pregnancy and authorizing anyone anywhere in the country to sue a Texas abortion provider for damages, was flagrantly unconstitutional, and the law was about to destroy the state’s abortion infrastructure. But did Justice Kavanaugh or any of the others in Monday’s majority vote to grant the requested stay? They did not. Chief Justice Roberts did.It’s impossible not to conclude that what we see at work is not some neutral principle guiding the Supreme Court’s intervention but simply whether a majority likes or doesn’t like what a lower court has done. In his opinion, Justice Kavanaugh sought to avoid that conclusion by arguing that when it comes to election cases, the Supreme Court will more readily grant a stay to counteract “late judicial tinkering with election laws.” But there was no late “tinkering” here. The legislature approved the disputed plan in November, after six days of consideration, and the governor signed it. The district court conducted a seven-day trial in early January and on Jan. 24 issued its 225-page opinion. The election is months away — plenty of time for the legislature to comply with the decision.Disturbing as this development is, it is even more alarming in context. Last July, in a case from Arizona, the court took a very narrow view of the Voting Rights Act as a weapon against vote denial measures, policies that have a discriminatory effect on nonwhite voters’ access to the polls. That case, Brnovich v. Democratic National Committee, was brought under the act’s Section 2, which prohibits voting procedures that give members of racial minorities “less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” Justice Alito’s opinion for a 6-to-3 majority set a high bar for showing that any disputed measure is more than just an ordinary burden that comes with turning out to vote.It was an unusual case, in that Section 2 has much more typically been used as it was in Alabama, to challenge district lines as causing vote dilution. Obviously, at the heart of any Section 2 case is the question of how to evaluate the role of race. In its request for a stay, Alabama characterized the district court of having improperly “prioritized” race, as opposed to other districting factors, in ordering a second majority Black district. In response, the American Civil Liberties Union and the NAACP Legal Defense & Educational Fund, representing the Alabama plaintiffs, called this a mischaracterization of what the district court had actually done when it took account of the compactness and cohesion of the Black community and the history of white Alabama voters refusing to support Black candidates.Stripped to its core, Alabama is essentially arguing that a law enacted to protect the interests of Black citizens bars courts from considering race in evaluating a redistricting plan. Justice Kagan’s dissenting opinion contained a warning that granting the stay amounted to a tacit acceptance of that startling proposition. She said the stay reflected “a hastily made and wholly unexplained prejudgment” that the court was “ready to change the law.”The battle over what Section 2 means has been building for years, largely under the radar, and now it is front and center. The current Supreme Court term is all about abortion and guns. The next one will be all about race. Along with the Alabama case, Merrill v. Milligan, the Harvard and University of North Carolina admissions cases are also on the docket — to be heard by a Supreme Court that, presumably, for the first time in history, will have two Black justices, and all in the shadow of the midterm elections. The fire next time.Linda Greenhouse, the winner of a 1998 Pulitzer Prize, reported on the Supreme Court for The Times from 1978 to 2008. She is the author of “Justice on the Brink: The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months That Transformed the Supreme Court.”The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More