John Jay was the first Chief Justice of the United States, but here, thanks to an excellent column by the Boston Globe‘s Jeff Jacoby, I’m referring to his grandson, this John Jay.
Jacoby’s column is the first of two on “diversity,” this one urging the Supreme Court to take the opportunity Fisher v. Texas provides “to reiterate what Chief Justice John Roberts memorably wrote in a more recent opinion: ‘The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.’’’
Read the whole thing, for here I’d like only to emphasize two quotes Jacoby included in his argument. The first is an excerpt from this paragraph in Justice Sandra Day O’Connor’s majority opinion in Grutter:
We are mindful, however, that “[a] core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race.” Palmore v. Sidoti, 466 U. S. 429, 432 (1984) . Accordingly, race-conscious admissions policies must be limited in time. This requirement reflects that racial classifications, however compelling their goals, are potentially so dangerous that they may be employed no more broadly than the interest demands. Enshrining a permanent justification for racial preferences would offend this fundamental equal protection principle. We see no reason to exempt race-conscious admissions programs from the requirement that all governmental use of race must have a logical end point. The Law School, too, concedes that all “race-conscious programs must have reasonable durational limits.” Brief for Respondents Bollinger et al. 32.
A majority of the Supreme Court, in short, acknowledged that eliminating “all governmentally imposed discrimination based on race” is a “fundamental equal protection principle” that is “[a] core purpose of the Fourteenth Amendment, but it is nevertheless OK for state and other governments to continue violating that core purpose and principle for a “reasonable” amount of time — maybe 25 years, maybe not, so long as there’s “a logical end point” — because another “interest,” “diversity,” requires it.
With defenders like this, fundamental principles really need no other enemies.
Now compare the moral sloth of O’Connor’s cavalier dismissal of the Fourteenth Amendment’s “fundamental principle” of racial equality when the “interest” of “diversity” requires it to the much more appealing vision of the Thirteenth Amendment, which was even less explicit than the Fourteenth on the requirement of equal protection, offered by a contemporary of those Amendments, John Jay, in a January 5, 1867, letter to Salmon P. Chase, then Chief Justice of the United States:
The decision which I most wish to see pronounced by your Court is that the adoption of the [Thirteenth] Amendment abolishing slavery has destroyed the only exception recognized by the Constitution to the great principle of the Declaration of Independence and that from the date of the adoption of the Amendment all persons black & white stand upon an equal footing — & that all state legislation establishing or recognizing distinction of race or colour are void. This is a proposition easy to be understood, & I think capable of easy demonstration. It would give us a broad National policy on which to re-construct the Union. & I think it would be cordially welcomed by all truly loyal citizens as one demanded by our situation & necessities & one which will clear our path of various troublesome questions that make our progress difficult. [Emphasis added]
Unfortunately, that clear and compelling proposition, “easy to be understood” as it was to John Jay in 1867, was not understood by O’Connor and her colleagues in the Grutter majority, nor by nearly all elected Democrats today, whose arguments in favor of allowing racial discrimination they think reasonable uncomfortably (or so one would think) echo the arguments made by those who rejected colorblindness in the 19th century and beyond.
