By Genoa Barrow
She’s been a United States Court of Appeals judge, vice chair of the United States Sentencing Commission, an assistant federal public defender, and a law clerk for three federal judges.
Ketanji Brown Jackson’s résumé speaks for itself, but there are those who would indeed opine that she couldn’t have gotten where she is, where few other African Americans are, if not for some form of affirmative action. It’s the America we live in.
In February, President Joe Biden nominated Judge Brown Jackson — keeping his promise that his first nominee to the U.S. Supreme Court would be a Black woman. Ironically, Biden blocked another Black woman, Sacramento’s Judge Janice Rogers Brown, from being then-President George W. Bush’s nominee in 2003, stating that a selection should not be made solely on race.
What a difference eight years serving as vice president to the nation’s first Black president and then choosing a Black female vice president makes.
National lawmakers begin debating Judge Brown Jackson’s merits on March 21, as she seeks confirmation to become the first Black woman to sit on the U.S. Supreme Court. In attempting to claim a spot in the highest court in the land, she will be questioned about her qualifications and opinions.
An ‘Equal Justice’ Under The Law?
Affirmative action will have a seat at the table, with Republicans poised to question Judge Brown Jackson’s position on the issue of race-based programs. They’ll surely ask whether or not she would recuse herself later this year when the Supreme Court will hear a challenge to race-based admissions policies at Harvard University and the University of North Carolina. Brown Jackson is an alumna of Harvard University and Harvard Law School and has sat on its Board of Overseers, which counsels the Ivy League school’s leaders on priorities, plans, and strategic initiatives, since 2016.
California recently revisited its own two-decades-old ban on race-based decision-making. Proposition 209, passed by voters in 1996, banned the consideration of race, ethnicity, and gender in public education, state employment, and state contracting.
In 2019, then Assemblymember Dr. Shirely N. Weber announced a repeal effort to be among the California Black Legislative Caucus’ top priorities. This was prior to protests surrounding the deaths of African Americans like George Floyd, Ahmaud Arbery, and Breonna Taylor. The campaign kicked in as calls for social justice reform — and a decidedly divisive presidential race — kicked up. The fervor aided the message from Prop. 16 supporters that race remained a factor in most aspects of American life.
Dr. Weber, who is now California’s first African American Secretary of State, led the charge to bring down Prop. 209, first with Assembly Constitutional Amendment 5 (ACA 5) and then its successor, Prop. 16 that actually advanced to the ballot in 2020.
Prop. 16, Dr. Weber said, “would have been a game-changer.”
“(Prop. 209) has taken away our ability to address the critical issues that we face, directly. Everything we do now is kind of circular; it goes around it…it never addresses the inequities that exist in this society,” she said.
The repeal was shot down by 57% of California voters.
UC President Dr. Michael V. Drake — the system’s first African American to ever hold the position — called its failure a “setback.”
“Proposition 16 would have helped reverse the detrimental and far-reaching initiative that banned the consideration of race, ethnicity and gender in admissions across public higher education, and other arenas, almost a quarter-century ago,” said Dr. Drake in a statement the day after the Nov. 3, 2020 election.
“The UC Board of Regents supported the passage of ACA 5, which became Proposition 16, a move that acknowledged the serious need to address systemic inequities in public higher education. The rejection of this ballot measure is an unfortunate continuation of the status quo,” Dr. Drake wrote.
Prop. 16 authors pointed to University of California admission rates for Black and Latino students dropping 26 percentage points since the ban went into effect. They also stated that while Latinos make up 54% of public school 12th graders in California, they represent just 25% of UC undergraduates. Asian American and Pacific Islander admission rates have also declined.
“The University of California’s efforts to address racial inequities were greatly hindered by Proposition 209,” said UC Regents Chair John A. Pérez. “The failure of Proposition 16 means barriers will remain in place to the detriment of many students, families, and California at large.”
California’s ban on affirmative action also banned the collection of data by the state which would demonstrate the need for the very programs it outlawed. In 2020, the nonprofit organization EdSource analyzed CSU and UC student enrollment data from 1996 to 2018 to reveal the impact of Prop. 209. The numbers showed that Black student enrollment in CSU and UC was lower than their share of high school graduates in California.
“The gap is greater at CSU where they were 8% of the freshman class in 1997 but have fallen almost in half to 4%. At the same time, the number of Black high school graduates has increased from about 21,000 in 1997 to 25,000 in 2018,” EdSources’ found.
According to the UC Office of the President, on every campus, the percentage of new California-resident, underrepresented freshmen decreased post-Prop 209. The percentage of students from underrepresented groups enrolled in UC’s outreach programs also dropped from 90% to 75%.
While much focus is given to the impacts on higher education, Prop. 209 also dealt Black businesses a devastating blow.
In 2015, the Equal Justice Society examined the “Impact of Proposition 209 on California MWBEs (Minority and Women Business Enterprises).” It found that ending the state’s race-conscious contracting programs resulted in the loss of $1 billion to $1.1 billion annually for MWBEs, including a loss of $820 million annually in contracts with the State of California.
UC Santa Cruz economics professor Robert Fairlie published a paper in 2012 examining how business ownership rates of minorities and women changed in the wake of the elimination of affirmative action programs in California and Washington State. His findings are credited with helping to inform state legislative efforts to support minority businesses.
Sacramento Black Chamber of Commerce President and CEO Azizza Davis Goines says eliminating data collection and the knowledge of who and what businesses were being denied the ability to successfully bid on procurement opportunities left “others” in a better position to win them.
You Must Be Color Blind
Prop. 209 progenitor Ward Connerly came out of retirement to help defeat Prop. 16. Many African Americans, then and now, consider Connerly to be a “tool” who was used by white people and other conservatives to dismantle decades of progress. Connerly argues that in a post-209 world, Black people have the chance to prove that upward mobility can be achieved without white intervention.
“People who are Black, and women, should not be in a position that we’ve earned because ‘someone of sufficient generosity’ placed us there,” he told The OBSERVER in 2020.
The former UC Regent maintains that he, and Prop. 209, have been largely misunderstood.
“209 really does not say that you can never be cognizant of race. It says you can’t discriminate, and you can’t give preferential treatment. It does not say you can’t be cognizant, and that was a deliberate decision on our part because we weren’t trying to close the doors of access to people, and I was a champion of comprehensive review.”
Davis Goines doesn’t seem confused at all.
“It remains one of the most spiteful, racist false narratives that obviously Sacramento and California at large continues to support,” she says.
“Ward Connelly basically said that affirmative action didn’t help him, and it should not be afforded and weighted for other minorities when decisions were made with regard to their education or workforce opportunities,” she continues. Prop. 209 “was the scapegoat used by those embedded in the institutional racism that was then — and is still now, California.”
Davis Goines credits the Sacramento Municipal Utilities District (SMUD) as one of the few local entities to stand up and challenge the anti-affirmative action narrative.
“They saw the inconsistencies and injustice and fought all the way up to the California Supreme Court to have it overturned, to no avail,” she shares. “But that didn’t stop them from finding innovative ways with the help of the communities most affected by Prop. 209 to support the efforts and desires of the disenfranchised workforce to support the leveling of the playing field and offer ways in which procurement was not out of reach and the data could be collected to prove so.”
Her Opinion Matters
Before her confirmation to the U.S. District Court for the District of Columbia in 2013, Republican Senator Ted Cruz — who was Brown Jackson’s law school classmate — asked her about her view of past Supreme Court affirmative action rulings, including one in 2003 that said the use of racial preferences would soon be unnecessary. Jackson responded by stating that she’d follow court precedent.
“I have no particular insight into the future need for, or ramifications of, the continued use of race in admissions,” she said.
There is plenty of speculation on just what kind of Supreme Court justice Brown Jackson will be. Since Biden’s nomination, there has also been much debate about the conversation America has been having about Brown Jackson and affirmative action. An opinion piece published on the Diverse Issues In Education website called her an “example of how affirmative action really works.” Another in the Los Angeles Times called the backlash, “unsubtle racism.”
“Some have weaponized the issue to question her qualifications to serve on the high court and others are using it to limit her participation once she is confirmed, by suggesting she should recuse herself from the Harvard admissions policy case the Supreme Court will review later this year,” says Sacramento attorney Alana Mathews.
“While Black women often face an additional level of scrutiny, especially in our justice system, I believe Justice Brown is well prepared to answer all of the questions about her background and affiliations,” continues Mathews, who is running for Sacramento County District Attorney and would be the first African American to hold the position.
“I also believe her answers will prove the very premise affirmative action is rooted in — setting bias and barriers aside to allow qualified underrepresented individuals the opportunity to participate and create a more informed and beneficial outcome.”
‘Prop Me Up’
Upon confirmation, Brown Jackson would be the 116th Supreme Court Justice and only the third Black justice in the Supreme Court’s 233-year history.
The legendary NAACP attorney Thurgood Marshall, who experienced racial discrimination throughout his life and career, served from 1967 to 1991. Fearing being replaced by a conservative justice with differing views on civil rights and the law, Judge Marshall often “joked” that if he should die with a Republican president in office, his clerks should “prop me up and keep voting.”
Justice Clarence Thomas has served since 1991 and staunchly opposes affirmative action programs, even though he benefited from them, particularly in the 1970s, when he gained admission to Yale University, which had a policy in place to guarantee that 10% of incoming first-year students be students of color.
Civil rights icon Rosa Parks once called Thomas a hypocrite, as have others, but he remains undaunted, calling affirmative action programs a “continuation of White supremacy” that “gives African Americans a false sense of security.”
Should Brown Jackson join Thomas, the longest-serving current justice, it would be the first time in history that two African Americans served on the Supreme Court at the same time.