Conservative Activists Are Taking All the Supreme Court’s Hints

Ed Blum has made a career of turning Black people’s civic participation into a constitutional problem. The retired stockbroker-turned-serial litigant famously spearheaded successful challenges to both the Voting Rights Act and affirmative action in higher education. He has other lawsuits in the works that aim to put a stop to corporate initiatives to diversify their workforces and halt the work of a foundation that invests in Black women-owned businesses. And like a stray cat that the Supreme Court fed, one of Blum’s pet projects has again turned up at the Court’s doorstep begging for more. 

When the Court barred the use of affirmative action in college admissions last summer, Chief Justice John Roberts’s opinion included a notable exception: The military academies, he wrote, could continue to consider the race of their applicants, since these schools present “potentially distinct interests.” Barely six months removed from this landmark victory, Blum’s group, which calls itself Students for Fair Admissions without any sense of irony, now wants the Court to get rid of this carve-out and eliminate race as a factor in military academy admissions as well. 

In September, SFFA sued the U.S. Military Academy at West Point in federal district court, and concurrently filed for a preliminary injunction barring West Point from considering race in the meantime. Preliminary injunctions are normally used to maintain a status quo while a trial is pending. Not so here: SFFA wants a court order forcing a change to West Point’s policies right now, even as West Point’s January 31 application deadline rapidly approaches. The district court denied SFFA’s request; so did the U.S. Court of Appeals for the Second Circuit, which turned SFFA away on January 29. SFFA still has a pending request before the U.S. Supreme Court, which should say no as well, but the country must wait and see.

The petitioners in the affirmative action cases, SFFA v. Harvard and SFFA v. UNC, basically got everything they wanted. Yet it apparently was not enough. In his opinion, Roberts justified the exemption for military academies by pointing out that “none of the courts below addressed the propriety of race-based admissions systems in that context.” (The justices have long paid special attention to the importance of diversity in the U.S. military; a brief authored by military leaders was especially influential in Grutter v. Bollinger, the 2003 case in which the Supreme Court narrowly upheld affirmative action in higher education.)

Robert’s not-even-a-year-old observation in SFFA v. Harvard is still true: Literally nothing has changed, and no court has adjudicated race-conscious admissions at military academies on the merits. SFFA wants to win its case on the shadow docket, before any trial, any fact-finding, any anything. Audacious though this may be, organizations like SFFA have every reason to view a Supreme Court controlled by a conservative supermajority as the policymaking arm of the conservative legal movement. As long as they can return to the Court and turn their petty grievances into constitutional law, they will never be satisfied.

SFFA’s case against West Point is indeed petty, which might explain why they are in such a hurry. The U.S. Army gets roughly 20 percent of its officers from West Point, and nonwhite people make up at most forty percent of a West Point class. Do a little mental math: Fewer than 1 in 10 Army officers could have possibly benefited from the consideration of race in their college applications. Yet SFFA’s position is that this is a crisis too serious to wait for a trial. “Should these young Americans bear the burden of West Point’s unchecked racial discrimination?” they wrote in a brief. “Or should West Point bear the burden of temporarily complying with the Constitution’s command of racial equality?” If a white guy doesn’t become an officer, it is extremely unlikely that it is because a Black guy took his spot; the spot was simply never ‘his’ to begin with. 

SFFA’s lawsuit against West Point is not the first time conservative activists have determined that laws don’t apply to them. Last summer, when the Court ordered Republican lawmakers in Alabama to redraw their racially gerrymandered congressional redistricting map, the state turned right back around and created a discriminatory map all over again. Here, too, they got an inch and are taking the mile: Even in cases like SFFA where conservatives don’t get 100 percent of their ask, the Republicans on the bench write opinions that leave a door open to their allies. It’s no surprise when those allies return and stroll through it.