Dred Scott Déjà Vu

By Thomas Coffin

In the 1857 Dred Scott case, the Supreme Court Chief Justice at the time, Robert B. Taney, infamously pontificated that “Blacks had no right which the white man was bound to respect.”

I am reminded of these hateful words by the recent decision of the super-majority conservative bloc of the Supreme Court in striking down affirmative action as unconstitutional in higher education admission policies.

The thrust of Justice Roberts’ majority opinion (p 9) is that removing affirmative action is mandated by the equal protection clause of the 14th Amendment, which was actually adopted to confer equal status to the freed Black slaves. The white race didn’t want or need it because they were already baptized in the pool of white supremacy. Rather than attempt to summarize Justice Roberts’ lengthy justification for taking the sledgehammer to affirmative action (RIP to remedies for centuries of discrimination), the reader is welcome to read it in totality. And if anyone can decipher Roberts’ flimsy pinch hitter for affirmative action—that a person of color can still be admitted based on race if he or she can articulate a life experience associated with their race that is of worth in the eyes of the admission evaluators — please explain the scales to be used in weighing that factor.

After the reader is tutored by Roberts, I recommend reading Justice Jackson’s dissent (p 209). She has lived the life, walked the walk, and been there, done that. You might also want to read Justice Thomas’ concurring opinion (p 49) joining Roberts. I myself eschew that as a waste of time given the exposure of his receipt of unreported seven-figure gifts from billionaires having business interests impacted by court decisions. Frankly, he should retire and restore some needed credibility in the Supreme Court.

After that reading assignment, here are my meager offerings:

We live in a culturally rich and diverse population which itself is a priceless educational asset that constantly enhances our knowledge and experience, which in turn benefits the community and entire nation. While the founding of the United States did not ensure diversity, a century later the Statue of Liberty proclaimed, “Give me your tired, your poor, your huddled masses yearning to breathe free, the wretched refuse of your teeming shore.” This call for diversity has been our strength for over 150 years in our democracy.

One cannot gauge educational contributions solely by SAT or similar testing. Such measurements are linear, and much learning emanates outside that cramped box of the artificial checks contained within the exams. As a student I scored well enough on standard testing to be admitted to Harvard Law School, but my whole career was actually impacted more strongly by the diversity itself I experienced in my formation as a person than just in my studies and book learning. At the college I attended, I roomed with an African-American for a period of time, and we became close friends. Jim and I were both from St Louis, and we travelled together from college back and forth to our homes on breaks. He introduced me to life in his world, and it opened my eyes like nothing else I had experienced. I witnessed his reaction when he was denied service at a roadside pub in Missouri, and we talked about how we would both be murdered if we dared travel together to the Deep South where civil rights marches were happening during the 1960’s.

My bonding with Jim shaped my views in many ways during my career, and I will leave it there for now. I ended up with a career that lasted 51 years in our nation’s system of justice. What I wish to emphasize presently is simply this—diversity itself in education admissions policies is a treasure worth supporting as it shapes the mindset of students in their lives going forward in a myriad of ways that books and tests simply cannot duplicate. I know because I experienced it, and I was the better for it, and so was society.

Affirmative action is not a denial of equal protection. It is rather a key ingredient of equality in its long-term impact on the fabric that brings us together. That is true equality.

We have made progress since the era of Justice Taney. Affirmative action helped us to do so. But now is not the time to stop. When we look around at the racism, from overt to covert, that still exists, we know this is hardly the moment to declare victory and slip back to the ordeals of those victimized by racism for centuries.

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Thomas Coffin was the keynote speaker at the Blackberry Pie Society’s Political Party in February, 2020 and at Politics and Pie in October, 2022. He is a retired federal magistrate judge for the U.S. District Court for the District of Oregon and a former professor at the UO Law School. Thomas retired in 2016 after 24 years on the bench, prior to which he had a career as a federal prosecutor spanning 21 years. He is married with 7 children.

The Blackberry Pie Society is pleased to include a collection of his essays on our website. We will post them as they become available.

posted 7.13.2023