The Supreme Court's Obsession with Whitewashed History: Rightwing originalist doctrine will plunge us back decades.

• Author: Miller, Rann

In late October, the U.S. Supreme Court heard an affirmative action case that could decide the fate of this critical policy initiative that spans more than fifty years, as did Roe v. Wade. The court appears ready to rule that the race-conscious admissions at Harvard and the University of North Carolina are unlawful, based on more than five hours of vigorous and sometimes testy arguments, a move that would overrule decades of precedents.

Upending affirmative action, a legacy of the civil rights movement, has serious implications for African Americans--the impetus group behind the policy's creation. The likelihood that Black people, already underrepresented in particular occupations, universities, and neighborhoods, would become even more underrepresented is high.

But is that a Constitutional concern?

The basis for affirmative action isn't actually found in the Constitution. It wasn't mentioned anywhere in the text, directly or indirectly, by the founders--and why would it be? The founders were concerned with only one group of people: white, Protestant, male landowners.

That matters because, of the nine Justices on the Supreme Court, six of them--Samuel Alito, Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh, John Roberts, and Clarence Thomas--are all influenced by originalism.

Originalism, a method of Constitutional interpretation, demands that Justices be bound by the exact words of the Constitution, and the meaning of those words should be determined solely based on how they were understood when they were added to the Constitution. With six originalist Justices on the Supreme Court, it is not unreasonable to expect that affirmative action will be ruled unconstitutional, in the same way that it wasn't unreasonable to expect the overturning of Roe v. Wade, prior to that actual ruling.

In a lecture dedicated to the memory of President William H. Taft, who was later also Chief Justice of the Supreme Court, archconservative Justice Antonin Scalia said that originalism was the lesser evil compared to nonoriginalism, which he scorned, writing, "Nonoriginalist opinions have almost always had the decency to lie, or at least to dissemble, about what they were doing--either ignoring strong evidence of original intent that contradicted the minimal recited evidence of an original intent congenial to the court's desires, or else not discussing original intent at all, speaking in terms of broad Constitutional generalities with no pretense of historical...