Kalish: Kavenaugh Consequences

Sep 13, 2018

Brett Kavanaugh’s confirmation process has been notable, if only for the number of times the word “unprecedented” has been used to describe it.

Two hundred twenty seven protesters were arrested over the four days of testimony, the majority of whom were women. The Handmaids Tale costumes explained why: Kavanaugh’s appointment to the Court signals an end to Roe v. Wade.

However, that reality – whether through an outright overruling or its functional equivalent – was set the moment Justice Kennedy announced his retirement. All of President Trump’s potential nominees (and Pence’s, too) are jurists carefully chosen to advance conservative objectives that include Roe’s demise. It will be up to states now to protect abortion rights.

But another change to the legal landscape will be one states cannot rectify for themselves. Justice Kennedy has also been the vote keeping race-conscious affirmative action from being found unconstitutional.

The argument, at core, is that the 14th Amendment’s promise of “equal protection under the law” is one of color blindness. But the Supreme Court has had a different understanding, one that recognizes the context of the 14th Amendment and its goals of addressing the ongoing, pernicious effects of slavery. The Court has acknowledged that there’s a difference “between policies of exclusion and inclusion.”

In Grutter v. Bollinger, the 2003 case setting the parameters for the constitutional use of affirmative action, Justice O’Connor wrote of her belief “that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

Sadly, fifteen years later, we’ve seen a staggering rise in the mainstreaming of white supremacy throughout the nation. We have two white nationalist groups active here, in Vermont, and Kiah Morris – Vermont’s only African-American female legislator – recently decided not to run again due to racist harassment and threats. That is unacceptable.

In the years ahead, we will no longer be able to rely on the federal courts to do the work. As Gandhi taught us, it’s going to be up to us – all of us – to “be the change we wish to see.”