A Crisis of Authority: Marxist Elites Defy SCOTUS’ Ban on Racial Preferences

As Martin Gurri shows, Americans have fallen prey to a cockpit of grievances. We live in an age of ideological exhaustion where jagged bits and pieces of Marxism, nationalism, populism, and liberalism clutter a landscape strewn with the ruling orthodoxy of the day: human identity. 

Identifiers, some immutable and others self-chosen, scuffle for preeminence in a world wherein any piece of America’s jagged puzzle, such as racial justice, might make some sense. The whole enterprise comes crashing down because the West's highest ideal, equity, is little more than a weasel word. 

Drawing strength from this word and provoked by claims of historical victimhood, elite commentators demand that civil society and the state pursue the impossible: the expiation of American racial shame designed to give whites and American institutions a sheen of racial virtue. Rather than emphasizing a more modest objective—equality under the law—aiming for expiation allows the government to permeate civil society, so much so that the two are mostly indistinguishable. 

Against this backdrop, R. R. Reno shows that Americans are awash in material wealth and surrounded by unprecedented technological powers. But once the veneer of well-being has been unmasked, a profound calamity surfaces: the crisis of authority in the late-modern West. This crisis occurs against a backdrop that includes a contemporary epidemic of suicide and the collapse of what Albert Camus calls the West’s value consensus, a process that began decades ago. 

---

Want some new merch while supporting free speech? Check out our store!

Wrong Speak T-Shirt

---

In the United States, the decline of authority is unveiled in the nation’s cultural elites’ defiant response to the Supreme Court’s June 29, 2023, decision in two Students for Fair Admissions cases. Previously, university affirmative action programs were sheltered from the principle of color blindness embedded in the 14^th Amendment of the Constitution by their pursuit of skin color diversity. 

Skin color diversity, beyond threatening the inherent equal dignity of all persons, can be seen as a tool for elite class reproduction that clothes economic inequality in the guise of group-based egalitarianism. 

Despite John O. McGinnis’ claim that it will be difficult for schools to evade the colorblindness mandated by the Students for Fair Admissions decisions, President Biden observed that “[t]his isn’t a normal court.”  Following the president’s lead, Professors Mark Tushnet and Aaron Belkin contend that the president should disregard the Supreme Court when it issues a contested decision. 

Speaking for the few and demanding that the people submit to their analysis the way snakes are drawn irresistibly to open fire, the professors support tyranny. Echoing segregationist George Wallace’s 60-year-old contention that he would resist any “illegal federal court order,” Tushnet and Belkin maintain that the Biden Administration should do likewise. 

Although “the Elect” often exhibited the same righteous fury that justified the anger of civil rights advocates during the 1960s and the abolitionists during the 1850s, they now refuse to recognize that racial circumstances have changed dramatically for the better in the United States. Instead, Tushnet and Belkin demand that the president  “restrain MAGA justices … when [… the Court] issue[s] rulings that are based on gravely mistaken interpretations of the Constitution.” 

This proposal demands that the Administration be guided by interpretations tied to a constitutional doctrine called “Popular Constitutionalism,” a theory that hardly improves John Rawls’ threadbare idea that the Constitution should be interpreted according to “reflective equilibrium.” While elites see “Popular Constitutionalism” as an unassailable dogma unleashing the few to reign in the name of the people, this approach is so contestable it demands we pretend that performance art is a substitute for sound constitutional analysis. 

Although racial preferences often backfire against beneficiaries,  enhance demeaning stereotypes, and discriminate against members of disfavored minority groups, President Biden now supports using “adversity scores” to achieve racial and skin color quotas. Well before the Students for Fair Admissions cases were heard by the Supreme Court, the University of California at Davis (UCD) medical school was motivated to close the gap between the percentage of Black and Hispanic doctors on the one hand and the ethnic makeup of the populace as a whole on the other. 

Driven by the intuition that the absence of “equity” translates into poor healthcare outcomes for disadvantaged groups, UCD relies on “adversity” scores. Hence, each medical school applicant is rated on a scale measuring one’s socioeconomic disadvantage. This approach gives way to the prediction that admissions officers at selective academic institutions will deploy a DNA test to establish the oppression levels experienced by an applicant’s ancestors as a substitute for standardized test scores. 

To the extent that the views of the few become entrenched, such an outcome will lead to democracy’s end, totalitarianism’s beginning, and the politicization of everything. This state of affairs verifies the rise of illiberal liberalism’s contribution to our crises of authority, thus providing fertile ground for regime change and a post-liberal future. 

Harry G. Hutchison serves as Senior Counsel and Director of Policy at the American Center for Law & Justice, Washington D.C., and as a Senior Lecturing Fellow at Regent University School of Law. His latest book is Requiem for Reality: Critical Race Theocrats and Social Justice Dystopia. On Twitter, he is harryhutchiso23