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Blum and the conservative "colorblindness" crusade

June 12, 2013

Edward Blum is the subject of yet another profile this week. This latest is from NBC News: “Meet the Supreme Court matchmaker: Edward Blum.”

Blum, the one-man operation behind two of the biggest cases heard by the Supreme Court this Term, seems to be a source of fascination for the media. His work recruiting the ideal poster-child plaintiffs for Supreme Court challenges makes for a good Washington process story.

Point of order, though: haven’t his plaintiffs actually been astonishingly weak?

Shelby County, Alabama, the plaintiff Blum groomed to show why the South doesn't need the Voting Rights Act, turned out to be Exhibit A as to why it still does. The county's spotty record on voting rights gave the liberal Justices some of their fiercest lines during the oral argument. “Why would we vote in favor of a county whose record is the epitome of what caused the passage of this law to start with?” asked Justice Sotomayor, who went on to point out that the Voting Rights Act prevented 240 problematic laws in Alabama during the last reauthorization period.

Abigail Fisher, the affirmative action plaintiff, has been something of a media darling, but her case is chock full of holes.  While she claims that she was denied admission to the Univeristy of Texas at Austin because of her race, the facts suggest that Fisher was denied admission to UT because of her academic record, and not because she is white.  Indeed, according to University records, even if Fisher had received perfect marks on her personal achievement score – the part of the admissions process in which race is considered – she still would not have been admitted.  That led Justice Ginsburg to ask if “this person would have not have been accepted, then how is the injury caused by the affirmative action program?”   

But these weaknesses mask the graver problem with these cases, captured in NBC’s final quote from Blum: "The goal in all of this is to restore the original colorblind principles to our nation's civil rights laws.”

The "colorblind Constitution" is a catchphrase that's become dogma for conservatives in the civil rights arena. However, it's based on a fundamentally flawed reading of constitutional history and the Reconstruction Amendments, as CAC has written many times. The Framers of those  Amendments were the originators of affirmative action. Even as they were drafting the amendments that would give equal protection of the laws to all persons, the Framers repeatedly approved race-conscious assistance to African Americans, passing laws that provided educational assistance to newly free slaves as well as to African American soldiers, helped to ensure that African American soldiers received bounties for their service in the Union army, and provided benefits to poor, destitute African Americans.  The Framers recognized a basic constitutional difference between oppression and assistance.

The popular conservative history conveniently forgets these episodes. Perhaps it’s not surprising that Blum's crusade is based on incorrect constitutional history and analysis. (And a crusade it is—see the strange Lepak case, not mentioned in the NBC profile.) Blum’s background is the world of finance, not constitutional scholarship. The Justices, however, are held to a higher standard, and obliged to look first to the Constitution’s actual text and history. As Doug Kendall and David Gans write:

”The conservative Justices have no answer to the basic, incontrovertible fact that the Framers of the Fourteenth Amendment wrote the Equal Protection Clause as a broad guarantee of equality for all persons and not as a flat ban on the use of race by the government.  Indeed, as the Court’s conservatives have refused to recognize, the Framers of the Fourteenth Amendment enacted the nation’s very first affirmative action programs.  The universal equality of all persons under the law, not colorblindness, is what drives the Fourteenth Amendment.”

Ultimately, the Constitution’s text and history point towards a clear conclusion in both of these cases.

The Court should announce its decisions in both cases in the next two weeks, with rulings as early as Thursday. The test will be whether the conservative Justices wrestle with Constitution’s actual history, or are content to sing from the conservative hymnal about it. 

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