I'm just about finished with my commentary about the Supreme Court term. Yet, I still have some difficulty reconciling the Chief Justice's opinions in Allen v. Milligan and in Students for Fair Admissions v. Harvard. In the Voting Rights Act case, he deferred extensively to Congress's findings concerning racial discrimination, and he stood by precedent from the Burger Court. In SFFA, he didn't even consider what Congress had to say about racial discrimination, and effectively overruled precedent from the Burger Court. (Indeed, SFFA and Dobbs bear some similarities–the Chief pretended to follow precedent, when he fact he rewrote them.) I felt like I was reading from two different Justices.
How do we explain Milligan and SFFA? Perhaps one explanation might be some sort of balance. The Chief Justice cast one vote that supports progressives on race, and one vote that opposed progressives on race. According to this view, the Supreme Court is like a bank of legitimacy. Make a deposit in Milligan, make a withdrawal in SFFA, and end up with a balanced register. The Chief Justice gets to serve as the creditor and the debtor. This analogy brings to mind Justice Scalia's observation from Adarand Constructors v. Pena (1995):
Individuals who have been wronged by unlawful racial discrimination should be made whole; but under our Constitution there can be no such thing as either a creditor or a debtor race. That concept is alien to the Constitution's focus upon the individual, and its rejection of dispositions based on race, or based on blood. To pursue the concept of racial entitlement-even for the most admirable and benign of purposes-is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are just one race here. It is American.
