There is a common thread in both of the Court's last two decisions: an appeal to illusory racial progress.
In Fisher v. University of Texas Kennedy argues that it may be time to replace race-based affirmative action with another system, "Strict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice." While I would certainly prefer class-based affirmative action to nothing, I will below outline why race-based affirmative action is still necessary.
Yesterday's decision about the Voting Rights Act (Shelby County v. Holder), aside from proving that Conservatives are perfectly willing to "legislate from the bench," also appeals to imaginary progress. Roberts writes, "[Since 1965], largely because of the Voting Rights Act, voting tests were abolished, disparities in voter registration and turnout due to race were erased, and African-Americans attained political office in record numbers."
So has America progressed enough that we can throw off Affirmative Action and Section 4 of the Voting Rights Act (which will, if Thomas is to be believed, lead to Section 5 being struck down as well)? Or are we, as Ginsburg argues, "throwing away your umbrella in a rainstorm because you are not getting wet."
Let's look at the evidence. The wealth gap between whites and blacks has grown, in fact, it has tripled. The study by Thomas Shapiro, Tatjana Meshede and Sam Orso find that a college education is a huge driver of that gap. A study by Martha J. Bailey finds that the college entry gap between the rich and poor has widened drastically over the past 40 years, driven largely by inequality.
African Americans still deal with the legacy of racism and oppression. Many blacks alive today can remember redlining, and lack of a home is still a major driver of black poverty. Just two weeks ago, the HUD discovered a subtle racial bias in housing opportunity. There's a disparity in arrests for benign drugs and another in sentencing, especially for the death penalty.
The average inheritance of a black baby boomer is $8,000 while the average inheritance of a white baby boomer is $65,000. Elementary and high schools are still highly segregated and schools with high minority populations are underfunded. In these circumstances, affirmative action is not an unfair boost, it is rather an equalizer.
What about all the African-Americans in public office? The truth is, African-Americans aren't flourishing in public office. There are only two African-American senators (and there has only ever been one black senator in the south, and he was appointed, not elected). There is currently only one black governor and there have been few in the last 100 years. Much of President Obama's cabinet is conspicuously white and male. The truth is that blacks are drastically underrepresented in the political sphere. There have only been 13 black CEOs of a Fortune 500 company. Ever. Another study finds that a mere 14 percent of college presidents are minority.
Further, the very voting restrictions the VRA aims to prevent still exist. In a particularly audacious move following the decision, Texas moved forward with a new voter identification law which had already been blocked and announced that its redistricting maps would no longer need federal approval. That would be a disaster, because Texas was one of many Southern states that used redistricting to keep Republican seats, even in times of waning influence. Other Southern states are already moving forward various methods (no Sunday voting, no early voting and voter ID laws) to keep poor people and minorities away from the polls.