The Court Is Wrong; Color-Blindness Serving White Supremacy

Sam talks with attorney and writer Madiba Dennie about the SCOTUS ruling from this June which eliminated race conscious education admissions. Follow her work at madibadennie.com and @AudreLawdAMercy.

The Court Is Wrong; Color-Blindness Serving White Supremacy

Episode 167 with Madiba Dennie

Sun, Aug 13, 2023 1:20PM • 40:08

Madiba Dennie 00:00

It’s not so much colorblindness, as being blindfolded. It’s ignoring the racism that already exists. This whole idea of neutrality and colorblindness is in fact a purposeful choice to uphold the oppression. These are all part and parcel of an ongoing conservative legal mission to defang all of the Constitution’s equitable tools, so we should be demanding the fulfillment of the Reconstruction amendments. We need to get way more comfortable saying the court is wrong and acting accordingly.

Sam Goldman 00:50

Welcome to Episode 167 of the Refuse Fascism podcast, a podcast brought to you by volunteers with Refuse Fascism. I’m Sam Goldman, one of those volunteers and host of the show. Refuse Fascism exposes, analyzes and stands against the very real danger and threat of fascism coming to power in the United States. In today’s episode, we’re sharing an interview with attorney and writer Madiba Dennie, discussing the US Supreme Court’s historic and devastating termination of race conscious admissions programs at colleges and universities nationwide.

Before we go further, I want to take a moment to send love to our listeners in Maui, and everyone in Maui suffering from the deadliest U.S. wildfires in the last century.

Thanks to everyone who is bringing this show to others. Whether you’re sending an episode to friends or fam, sharing on the socials, whatever you’re doing, it makes a difference. A special thank you to everyone who rates and reviews the show on Apple podcasts or your listening platform of choice. It really is the best way to support the show. So after listening to today’s episode, please go write a review. Give us all the stars on Apple podcasts or wherever you listen to reach others who want to refuse fascism In the name of humanity.

I promised I’d have more to say about the indictments, the indictments of Trump that is, and I do. First, I want to underscore that this indictment turns the DEFCON way up and highlights that threats like Kari Lake’s, “If you want to get to President Trump, you’re going to have to go through me and you’re going to have to go through 75 million Americans just like me, and I’m going to tell you most of us are card carrying members of the NRA,” must be taken seriously. And let’s be clear, it’s not just Kari Lake. Just listen to what rep Matt Gaetz said Saturday at Trump side at the Iowa State Fair:

Matt Gaetz 02:58

“Mr. President, I cannot stand all these people that are destroying our country, that are opening our borders, that are weaponizing federal law enforcement against patriotic Americans who love this nation, as we should. We are having a great time at the fair. We love standing with you. But we know that only through force, do we make any change in a corrupt town like Washington, D.C. To all my friends here in Iowa, when you see them come for this man, know they are coming for our movement, and they are coming for all of us. And as hard as you see him work, I need to you work ten times harder a hundred times harder, and we’re gonna win Iowa, we’re gonna launch our nomination, and we’re going to [unintelligible]?

Sam Goldman 03:44

Trump and the Republi-fascists aren’t throwing in the towel and preparing for defeat. They’re fighting for a permanent win. One that eliminates, for good, all of their political enemies and all of the people who they think have destroyed, “their country”. This is what the Fascists are promising when they say, “We know that only through force can we make any change in a corrupt town like Washington D.C.” I’ve gotta ask, are we going to take them seriously or stick our heads in the sand? If they are able to re-seize power, take the White House, we are talking about a blatant dictatorship in which the unchallenged domination of these fascists will be enforced at every level, and by every means at their disposal.

We’re talking about a slow civil war quickly escalating into a one sided slaughter and, reality check, the fascists are on the offensive now; they’re not waiting patiently. From banning gender affirming care, to whipping up mobs who terrorize teachers and librarians, to banning abortion, this violence is afoot now. Also consider that more than half of Republicans, including 77% of folks who identify as MAGA Republicans, said the indictments and investigation against Trump were an attack on people like them — this is according to a CBS News/YouGov poll that was taken shortly after the most recent indictment. Trump and the Republ-ifascists seize on each completely legitimate indictment as an opportunity to set norms ablaze and delegitimize institutions that have held this country together for over a century.

Simultaneously, they’re readying their base, their fascist, rabid base, to fight for their fully fascist future. Yes, white supremacist future. Yes, theocratic future. Yes, American chauvinist to its core. There was one quote from a New York Times article after the Iowa State Fair yesterday that I thought encapsulated so much, so I’m going to share it with y’all. This is representative Brian Mast of Florida, who came to Iowa to campaign for Trump: “I want my president to be the biggest American chest thumper out there. If you cross him, he will slit your throat. And I get that out of President Trump.”

The fascists view these indictments as an attack against them by the Democrats, who to them, are entirely illegitimate. How we respond to this matters tremendously. So I want to urge you all to not put your hopes into the center holding, that it’ll all work out, or to cheerlead for the norms to be restored as so many are right now. Why? Well, just how likely do you think it is that Trump is found guilty and sentenced with decades in jail? And how likely do you think it is that this would go down without a tremendous bloody fight from his supporters who see him as their retribution? Remember when Trump lost by millions of votes, and they stormed the Capitol hunting to hang Mike Pence? Do you think they’re just going to throw the towel in?

But also, let’s not discount that regardless of this trial, Trump could still gain office legally. Yes, with gerrymandering, voter intimidation, or the help of his good friend from 2016, the Electoral College. Consider how much the voting suppression apparatus has been strengthened since then, where the fascist voting base counts, but the votes of Black folks don’t. Okay, now speaking just as Sam for a minute, this increasingly volatile situation where there are fascists fighting amongst themselves, or Democrats and Republi-fascists going at it isn’t waiting for 2024. Think about how the trials might unfold, the verdicts being read, etc. If we sit back, pop the popcorn and cheer, letting it stay a fight between the fascists and the Democrats — who have at best served as a stopgap against the fascist takeover — if we let this stay on the terms of this system, we will be all but handing the future to these fascists.

But not only that, we will be watching as the world burns when we the people in our millions have the rare opportunity, in part through this struggle, if we seize it, of actually getting rid of this whole monstrous system and forging a new course for humanity. And regardless of whether you agree with what I just said or not, this is a time for truth, not delusion, for struggle, not complacency. With that, here is my interview with Madiba.

On June 29, the fascist-dominated US Supreme Court effectively overturned affirmative action. Not only does this decision reinforce white supremacy, it greatly accelerates the fascist trajectory. As today’s guest Madiba Dennie wrote shortly after the decision, “In a six-three decision he’s dreamt of writing for decades, Chief Justice John Roberts led the super majority in checking off another item on the conservative legal movement’s to do list, striking down affirmative action writ large, using as a vehicle, the race conscious admissions programs at Harvard and the University of North Carolina.”

Today, we’re gonna get a better understanding of this decision, its impact and most essentially, in my opinion, the colorblind fallacy that’s at the heart of it, and how it fits into the larger effort to erase racism from the collective consciousness. To do that, I am so glad to be chatting with Madiba Dennie. Madiba is an attorney and columnist. Her legal and political commentary has been featured in a bunch of places you regularly go to; The Atlantic, The Washington Post, Balls and Strikes, The Nation and many more. She has taught at Western Washington University and NYU School of Law. As a counsel at the Brennan Center for Justice, she provided legal and policy analysis regarding a range of democracy issues, including the census, the courts, and attempts to disempower communities of color. Welcome Madiba!

Madiba Dennie 10:04

Hello! So excited to be here.

Sam Goldman 10:06

We’re so glad to have you. One thing that I was talking about with some folks is that before we get into the case, we actually have to talk about what affirmative action is and what it isn’t. [MD: chuckle] Because I think that there’s a lot of confusion about what’s going on at universities. I was hoping that you could briefly just walk our listeners through what is affirmative action? And how did it come about?

Madiba Dennie 10:31

You mentioned a really good point about sort of not understanding how affirmative action works, because reading through the Supreme Court’s opinion on the sort of comically named, Students for Fair Admissions case, it becomes very clear that the conservative justices on the court have no idea how affirmative action works. The opinion reflects a fundamental misunderstanding. In their telling of it, schools are just handing out racial preferences to Black students, Latino students, Native American students. They are sort of like rigidly categorizing students checking off a box and saying: Okay, if you are this color on our Lowe’s or Home Depot, like color palette, from the paints, then you get admitted, if not, we show you the door.

That’s just not at all how things work in practice. Neither the Court, nor the group challenging the admissions programs went into any instance, of someone’s admitted solely because of their race, because there are no such instances. How affirmative action actually worked — I think it’s a little more accurate to call it reparative action, because we’re looking here are policies of exclusion that existed for a very long time at these schools, where they would deny admission to applicants solely on the basis of their race. So now, they have opted to use race as one of many factors for inclusion to try create diverse student bodies instead, as a result of like civil rights movement and pressure and government moving along and saying: Okay, we need to do something about this, we need to like remedy this practice that’s disturbing our students, disturbing our schools, disturbing the country.

To present the clearest picture, the rationale used to uphold race-conscious admissions in the past was to foster the sort of diverse student bodies, the Court did, expressly and sort of absurdly, reject the rationale of remedying historical discrimination. The majority of the Court, not all the justices, but the majority of the Court was like: That’s too big and too amorphous, we can’t just have schools out here trying to fix society, that doesn’t make any sense. But they did understand a rationale of diverse student bodies are good. There are compelling educational reasons why it’s valuable.

They said: Okay, so if you want to use race in some like narrowly tailored way as like one component among many to basically engage in a holistic admissions process and look at the whole student, the whole person who’s applying, they said that makes sense to us, that you can do, have at it. But the court, about a month ago, I guess at this point, said: Not so fast, and even though they didn’t use the magic ‘o’, overrule word, it was very clear what they’re describing as unlawful and how they’re trying to limit future actions, that they basically are overruling a whole host of Supreme Court decisions that have upheld the constitutionality of race conscious admissions in the past.

Sam Goldman 13:27

Thank you so much for that breakdown. When I was doing some research when the decision first came out and trying to understand the full gravity of what this means. I was struck by how little the media was reporting about why we had affirmative action to begin with, that missing from the stories were any real mention of the legacy of the fact that even just taking one of these schools, UNC right, that for so long, Black people weren’t even considered for admissions. It was a slave state when the U.S. was founded. UNC was founded in something like 1789, and it was part of slavery defending Confederacy during the Civil War. And despite the fact that it is one of the country’s largest populations of Black people, the first Black student was not admitted into UNC until 1955, and that’s only after a federal court said y’all gotta desegregate. I think that there’s a need to re-ground people in, like, where this fucking came from to begin with.

Madiba Dennie 14:32

1955, you said right? [SG: Yeah] That’s so absurdly recent. The way I’d like to sort of present this to people is Betty White’s lifespan. This is less than one Betty White ago. That’s how recently we’re talking.

Sam Goldman 14:44

Exactly. [mocking voice] It’s all so long ago. This was all in our nation’s past.

Madiba Dennie 14:49

It’s very much in our nation’s present.

Sam Goldman 14:52

Exactly. Okay, the case. What does the case say? And in what ways is it kind of putting, I guess, colorblindness or race neutrality at the center of this decision?

Madiba Dennie 15:07

The conservative supermajority really emphasizes this myth of racial neutrality and color blindness in the Constitution. This is connected to a previous John Roberts opinion where he halted the integration of schools in the 90s. He had a famous line and this decision that was like, “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” It’s completely tautological. [SG: I’m sorry, that’s just too much.] [chuckles] I

t’s silly if you think about it for like more than approximately two seconds, but he presents it as this really reasoned and logical thing. He’s really trying to pull a fast one on the audience, because you would think that, you know, the first instance is talking about discrimination as insubordination, but in the second instance of discrimination he’s really just talking about making distinctions. Just because the schools in that case — it’s called, like Parents Involved [in Community Schools] versus Seattle School [District No. 1], I think might be the name of the case. It was when a lot of local governments were busing students to integrate schools because of the way housing segregation is set up, even if you just tried to use folks who live near each other, it will still produce all segregated schools.

John Roberts said that was a no-go. We’re seeing something very similar in this case, where he says eliminating racial discrimination leads to eliminating all of it. And once again, we’re not actually talking about discrimination and what, I think, we would describe as real discrimination, like oppression, subordination, like entrenching like social, economic and racial hierarchies. But that’s not what John Roberts is talking about at all. He’s just talking about noticing that some people are of different races, and as a result have different experiences. That he’s deeming acceptable. Eliminating racial discrimination is eliminating all of it, because recognizing race, even if you’re considering race in order to address racism, for him, those are the same thing.

And that’s the case for the conservative legal movement broadly, and also, like the other justices. Clarence Thomas has a concurring opinion in that case, and he has a line that was like “two wrongs don’t make a right,” the cure to racialism is not more racialism. It’s just absurd if you really think about it, because the argument kind of boils down to: Good things and bad things are the same, actually. Which doesn’t make any sense. And the dissenting justices are trying so hard to make that clear. You have Justice Jackson saying: Okay, look, when we’ve repeatedly historically passed laws and built institutions that deliberately funnel benefits to white people, just not doing that anymore isn’t enough, because you’re not going to actually put those people on equal footing.

The so called colorblind or race-blind policies still inflict race based harms, because they’re building on top of this already uneven, already racially discriminatory foundation. Unless you address that foundation, you’re not going to be able to stop the problem. You cannot actually work to fulfill the Constitution’s demand of equality if you ignore all the ways in which things are unequal. So that’s really what colorblindness means, when invoked by the conservatives on the court and the conservative legal movement more generally; it’s not so much colorblindness as being blindfolded. It’s ignoring the racism that already exists, doing a sort of dodo bird like sticking your head in the sand: If I can’t see racism, racism can’t see me. Meanwhile, racism exists all around you all the same.

Sam Goldman 18:34

In my opinion, part of that is more sinister, in that it is a cover that they can conveniently use or a justification, as they seek to, in their minds, put people back in their place in the hierarchy, those days that they long for.

Madiba Dennie 18:53

That’s absolutely right. It gives like a convenient cover of neutrality; acting like you’re doing something that’s so simple and equally applicable and noble, when it’s actually the exact opposite. It’s inverting the whole purpose of like the Equal Protection Clause and of the reconstruction era. Then there’s something that I found deeply disturbing was that the opinion repeatedly compares itself to Brown v Board, as did the groups challenging the admissions process. They keep invoking Brown v Board, they say like: If Brown is right, that means that Grutter and Bakke and all the other cases upholding race affirmative action — but if Brown is right, then these must be wrong. And it reflects a purposeful, calculated, really unseemly mischaracterization.

Instead of taking a lesson from Brown to integrate schools, don’t racially subordinate, their takeaway instead was don’t think about race at all. That is, misstate the lesson. If you don’t think about race at all, that means that you don’t have to do anything about the racism all around you. And, in fact, not just do you not have to do anything, it makes doing anything constitutionally suspect. It sets up remedial efforts of any sort of law and policy work to foster a more equitable society, it sets that up for failure by making it seem legally suspect because like: Oh, you’re taking into account that these people are oppressed, you’re not supposed to do that, you should just continue to let them be oppressed. This whole idea of neutrality and colorblindness is, in fact, a purposeful choice to uphold oppression.

Sam Goldman 20:31

What do we need to understand in terms of the impacts? What are gonna be the immediate impacts that prospective students will face? What are the broader impacts that you see coming down the pike from this decision?

Madiba Dennie 20:45

So, I think an immediate impacts will definitely be fewer people of color at some of these schools. And if there aren’t fewer people of color at some of these schools, I think you’ll see some more lawsuits. There’s not really clear guidelines within the opinions about what ways race might still be considered. John Roberts tries to throw people a bone towards the end when he’s like: If an applicant has a personal story of like, race-based hardship — again, just misunderstanding the way racism works, ignoring the sort of systemic aspects, but thinking about [SG: It can only be an individual.] Yeah, like an individual, just like a dude on the street being harassed and saying like, this was a formative experience for me — and, like putting the onus on some, like 17 year old kids of color to just talk about… yeah, this like individual personalized experience, instead of recognizing the way that race permeates through everything in this country.

I suspect that if you don’t see a drop off in enrollment of students of color, especially Black and Latino students, then I think you’re gonna see more challenges like the challenges in the Harvard case and the UNC cases, because schools will be like: You’re trying to integrate by another means and that’s still not allowed. The opinion does say something like: Oh, you can’t just try to accomplish this unconstitutional goal in like another way as a proxy. Some of these are really concerning. One of the liberal justices asked during the oral arguments of the Students for Fair Admissions folks, said: Okay, well, what if, instead of looking at race, generally, if they looked at descendants of enslaved people specifically? That’s an individualized thing that happened — framing it that way.

The guy hemmed and hawed. He was like: Ehh, well, like, if that’s just a proxy for race, I don’t know. [chuckle] It’s just like, okay, hey, like wait a second. I’m really not certain there’s any level of students of color enrollment that these people won’t find legally suspect. That’s the sort of most immediate consequence, would be either some combination of a drop off in students of color enrollment, or lawsuits to challenge that students of color are still enrolled.

Now, the second thing I think we need to be concerned about goes beyond higher education, but about how/whether race-related laws and policies, or just any sort of pro equity/anti-oppression policy gets treated in the courts, because again, it sort of like sets them up for failure. As if the mere consideration of this axis of oppression is the same as oppression. So I think you’re gonna need to be on the lookout for that. Something that I’m concerned with is the Voting Rights Act, because reading the opinion — the opinion in the affirmative action cases came down, I think maybe a couple of days after, or like a day after the Voting Rights Act decision — it’s hard to reconcile the two because in the Voting Rights Act decision, John Roberts is in the majority again, but writing with the liberal justices this time, and he says correctly, that the Voting Rights Act does allow for the consideration of race.

Just the fact that race is considered does not mean it was unconstitutionally considered. Reading it, then it’s hard to square the two, cause it’s like, I mean, you’re right, but that’s not what you said here. So now we have a conflict within these two areas of law. And sure enough, some conservatives have already started a renewed push against the Voting Rights Act saying: Well, you said in the affirmative action cases, you’re not supposed to think about race, so shouldn’t we not think about race here as well? These are all very much connected.

There’s another connection here between the two that I want to highlight. The same forces, the same funders, the same masterminds are behind all of these same cases. The Students for Fair Admissions cases at Harvard and UNC were spearheaded by the same guy, Edward Blum, who spearheaded Shelby County versus Holder, where they struck down the key portions of the Voting Rights Act. These are all part and parcel of an ongoing conservative legal mission to defang all of the Constitution’s equitable tools and look like hegemony in the Constitution instead.

Just like in Shelby as well, we had an insistence among the conservative justices during oral arguments, and in some of the opinion as well, about the need for an endpoint. They kept saying: Are you still trying to have affirmative action policies 10 years from now, 20 years from now? This has to end, like where’s the logical endpoint? That was very similar to a line of argument that was accepted in Shelby, and that Justice Kavanaugh’s concurrence in the present Voting Rights Act case was sort of hinting for people to use in the future.

It really gets at what Justice Ruth Bader Ginsburg was saying in her dissent in Shelby, when she says: Ending this, when it’s been working, is basically like throwing out your umbrella in a rainstorm, because you’re not getting wet. That’s what we’re seeing here once again. This has been the case or as long as the country has tried to do the right thing. There have been people saying: Still? Like, we’re not done yet? There’s a line that should not be funny — it’s kind of funny in how ridiculous it is — in a series of cases from the 1880s, and the court was already complaining that they had been doing too much for formerly enslaved people who had been freed. Here’s a direct quote: “There must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws.” That was in the 1880s.

So, literally as soon as the country started taking any steps to remediate this history of injustices against Black people, specifically, and like other marginalized people more generally, as soon as it did, the court was like: Are we really still doing this? This again? Like, haven’t we done enough for you people? That’s the exact same kind of thing you see happening in the Voting Rights Act cases and that’s the exact same thing you see happening in the affirmative action cases when the Conservatives are just: Why are we still doing this? Aren’t we past this already? Like, come on! Well, maybe instead of being focused on when you end any consideration of race, how about we pay more attention to ending racism? How about that?

Sam Goldman 27:15

In thinking about the consequences of this decision, and the broadness that they could have in both teeing up for the further — I mean, it’s already gutted [MD: Kicking it when it’s down.] voting rights are — but also for broadly, any efforts to identify, let alone take any step to remediate, white supremacy. It’s really stunning. I was looking at a piece by Professor Dominique Baker that was early last month — was published by Scientific American, which I thought was interesting, that it was published there — one of the points that she was making that I wanted to get your thoughts on, was that she was talking about these cases not happening in a vacuum, that at the same time, that the highest court in the land is ripping away affirmative action, we see legislation across the country that is seeking to muzzle any conversations of this country’s past, and how these two things actually work together.

The fact that you have that “Stop Woke Act” happening in tandem with: Okay, and now we’re not going to have Black folks at universities. You mentioned earlier, efforts to ban any DEI efforts that are happening both at the university level and even within corporations that want to have discussions about equity, or, let’s be clear, this is not radical stuff. [MD: chuckles] This is not radical stuff. Okay.

Madiba Dennie 27:42

It’s the baseline kind of stuff.

Sam Goldman 28:50

Exactly. This is, I think she puts it as a part of a larger effort to pretend racism doesn’t exist. What do you see as the connection between a case like the one that we’re discussing and this broader legislation, and what connections should we be making in this moment? where it definitely is clear that there is an effort to erase racism from the cultural consciousness and I can’t help but think that it has something to do with the fact that a couple years back now, there was the biggest uprising from the people trying to put white supremacy in this country in the public consciousness, you know?

Madiba Dennie 29:35

Right, yeah. So now, across all kinds of law, whether at the local level or federal level, or what have you, now there’s like a more dedicated renewed effort to say: White supremacy, what white supremacy? What are you talking about? No white supremacy to see here! I do think that’s a correct observation that the affirmative action case and some of these other legal efforts more generally are connected to the kinds of “Stop Woke Act”, or the book bans we see, in that they’re doing a couple of things. They’re trying to deny what the actual experience of being Black is; saying that the experience of being an oppressed person in America doesn’t matter.

Going further, that the experience of being an oppressed person might not even exist; there might not be oppressed people. If you try to say otherwise, then they’ll stop you with these, like, speech bans, or they’ll stop you or by removing your presence from the schools at these institutions in the first place. It’s sort of like a broader effort to remove marginalized people from public life altogether. So it’s very dark, very concerning stuff.

Sam Goldman 30:46

I wanted to explore how people have reacted to this decision and a troubling trend that shouldn’t surprise me, but it does anyway, [MD: chuckles] in a similar way to you know, you had made connections in your piece for Balls and Strikes to the Dobbs decision and kind of these trapdoors, right. I’m also seeing similarities in the way that people react or jump. [MD: mmhmm] In the quickness that people have to somehow feel like: Well, the best and only thing we can do is kind of find a way that we’re going to work within this new “normal.”

It was like headlines the day after about ways that we can still sneak in our identity, and that there’s a loophole here with: Don’t forget about those essays. Which all put the, as you put it, all put this responsibility on 17 year olds; putting on kids, the need to prove the resiliency as oppressed people. And in every instance, it has to be a victorious outcome, obviously. There couldn’t be like a story or an essay on how being a young black man never felt easy and there was no happy ending. It just sucked and was scary. That’s not what Roberts is talking about.

Madiba Dennie 32:11

Yeah, he wants the, like: I heroically overcame something. This has earned me a spot.

Sam Goldman 32:17

Exactly. And I think that despite this big middle finger that the Supreme Court gave to young Black people and and other people of color, in the wake of the decision, people are coached to see this as maybe it’s not that big of a deal, or there’s a loophole, we can get around it. I was really surprised — again, I shouldn’t be I shouldn’t grow up — that there was no uproar [MD: mmhmm] besides some columns, which were very good and right — I’m not dismissing people who spoke out against it, right on — but the streets should have been filled with people in the same way that this was won in the first place. I just struck by like how quick we are as a people to be like: Okay, we’re gonna find the work around. And what are your thoughts on that?

Madiba Dennie 33:04

I think there are a couple of things that are relevant there. One is about affirmative action, specifically, and the other is about people’s understanding of the role of the courts more generally. Via affirmative action, specifically, I do think that the right wing has had a very successful propaganda game. People might not have felt the need to be as up in arms or mobilize because some of that incorrect framing about racial preferences, or people getting spots they didn’t deserve and stuff like: Oh, they’re taking away something from you, because this is a zero sum game. I think some of that could have permeated the culture, and so people didn’t see the broader harms, or weren’t as aware of them as they otherwise might have been because of the strength of the propaganda. So that’s the first part.

The second part, I think that you’re absolutely right, and that liberals are like other left-leaning people more generally, in particular, are really inclined to accept the court as a legitimate institution and as something that you have to follow. This is kind of unilateral disarmament in a way because conservatives have very famously rejected that. There’s a long history of conservatives being: This rule is bad, and I’m not going to follow it, or: Congrats with what you thought you did, but I’m going to proceed differently anyway. I do recognize that that has some degree of risk. Chiefly, I do think that if Harvard was like: Thank you, next, I’m just gonna proceed, then Ed Blum and them would probably be right back in court anyway. You do have to have “Screw you money,” in a sense, if you wanted to take that on, because you’d probably continue to get sued a lot.

But still in terms of popular resistance and like protests or things, there’s a lot more that people can be doing to say no. Justice Sotomayor has a really important line towards the end of her dissent in the affirmative action case, where she says, I’m going to quote here: “Despite the court’s unjustified exercise of power, the opinion today will serve only to highlight the court’s own impotence in the face of an America whose cries for equality, resound.” So she’s basically acknowledging here, and encouraging, regular people: You don’t actually have to stand for this. We as the court only have as much power as the the people give the court. You can and should reject the court proceeding in this awful, inequality furthering, oppressive way.

That’s absolutely something that I think liberals need to become more comfortable with. I think it can be a little hard because of the way we’re told, like: Rules are there to protect you. And also that we did, for a beautiful fleeting moment, have a really strong court in the 1960s-ish era, the Warren Court, which gave us Brown v. Board and gave us Reynolds v. Sims, which is a big case about equal representation for people in Congress, and gave us the Miranda rights case. A lot of good things happened in that short period of time, and so I think there’s this idea of yes, okay, we have these justices as like their name is, are supposed to further and protect and promote justice. But it’s like: Wait, something is not computing when the justices actually behave unjustly. I think folks struggle with that.

So I think we need to realize that the Supreme Court has mostly had an uninterrupted trend — almost, you know, except for that bit — mostly had an uninterrupted trend for about 150 years or so of undermining the reconstruction amendments. So we should be demanding the fulfillment of the reconstruction amendments instead, and saying, like: I think what you’re saying is bogus, I have just as much right to interpret the Constitution as you do, and I’m saying you got it wrong. I would love to see regular people and like people with some degree of formal power as well, just like straight up, say: You’re wrong! We need to get way more comfortable saying the court is wrong and acting accordingly.

Sam Goldman 37:07

Thank you so much for coming on, and sharing your expertise and perspective and insights with us, and of course, your time. I know that I learned a lot, and I know that everyone listening did too. If folks want to, which I know they will, read or hear more from you, where can they go?

Madiba Dennie 37:29

I frequently do my writing about the law and its real impacts on people at Balls and Strikes. And I’m also currently writing a book about the Constitution and what we should be doing instead. So I guess this time next year, it should be on the shelves so be on the lookout for What We’re due: Reclaiming the Constitution.

Sam Goldman 37:48

Thanks so much Madiba!

Madiba Dennis 37:50

Thank you.

Sam Goldman. 37:52

Thanks for listening to Refuse Fascism. Got thoughts or questions off this episode? We want to hear ’em. Ideas for topics or guests? Yes, please! Send them to us! Have a skill you think could help? We want to know all about it. Reach me at the site previously known as Twitter @SamBGoldman. Drop me a line at [email protected], find us on threads or Mastodon, we’re at Refuse Fascism, or leave a voicemail. See the show notes for the link to do it. You click a button and we can hear your voice and your thoughts. We’d love it.

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We’ll be off next Sunday, but we’ll be back Sunday, August 27, with an interview with Mike Rothschild, discussing his forthcoming book, Jewish Space Lasers, the Rothschilds and 200 years of Conspiracy Theories. You’re gonna want to hear it, you’re not going to want to miss it! So again, follow/subscribe so you get it as soon as we upload it. Until then, in the name of humanity, we refuse to accept a fascist America!