Despite having no apparent understanding of Supreme Court precedent, Fox News host Bill O'Reilly still managed to accuse Supreme Court Justice Sonia Sotomayor of being wrong about civil rights law.
On April 22, the conservative justices of the Supreme Court effectively overruled an important strand of equal protection jurisprudence in Schuette v. BAMN, upholding a voter-approved state constitutional amendment that banned the consideration of race in admissions at Michigan's public universities. Right-wing media were enthusiastically supportive of the decision as they simultaneously insulted the intelligence of Sotomayor, and O'Reilly was no exception.
On the April 24 edition of The O'Reilly Factor, O'Reilly dedicated his “Talking Points Memo” segment to praising the Court's decision in Schuette. O'Reilly's misunderstanding of that decision, as well the Court's prior case law, became immediately apparent when he erroneously claimed affirmative action policies violate the equal protection clause of the 14th Amendment because “if an individual American gets a preference, then he or she is not being treated equally with everyone else.”
O'Reilly went on to argue that Sotomayor, who wrote a powerful dissent in Schuette, “is clearly wrong, constitutionally speaking”:
But O'Reilly is simply wrong that race-conscious admissions violate the 14th Amendment.
The Supreme Court has repeatedly held, in a line of cases dating back to 1978, that such policies are consistent with the equal protection clause. In Regents of the University of California v. Bakke, the Court struck down the use of racial quotas, but also ruled that the use of race in admissions in the pursuit of a diverse student body is constitutional under the 14th Amendment:
This kind of program treats each applicant as an individual in the admissions process. The applicant who loses out on the last available seat to another candidate receiving a “plus” on the basis of ethnic background will not have been foreclosed from all consideration for that seat simply because he was not the right color or had the wrong surname. It would mean only that his combined qualifications, which may have included similar nonobjective factors, did not outweigh those of the other applicant. His qualifications would have been weighed fairly and competitively, and he would have no basis to complain of unequal treatment under the Fourteenth Amendment.
The Supreme Court has repeatedly upheld this diversity principle allowing the use of race as one non-determinative factor among many in an individualized, holistic, and race-conscious admissions policy. The Court has reaffirmed such policies in all of its subsequent affirmative action cases, such as Grutter v. Bollinger, last year's Fisher v. University of Texas, and even Schuette itself.
O'Reilly wasn't the only one who was badly confused about civil rights law. In a April 24 segment on Fox's On the Record, conservative columnist Charles Krauthammer argued that Michigan's ban on affirmative action merely “restated what's in the Civil Rights Act -- you may not discriminate on the basis of race, etcetera”:
Krauthammer is also off base. The Michigan amendment goes much farther than “restating” the Civil Rights Act of 1964 - it explicitly bans race-conscious admissions policies, something the Civil Rights Act does not do. In fact, the text of the amendment makes the distinction Krauthammer ignores, by both repeating the language of the Civil Rights Act as well as banning “preferences.”
Krauthammer made the same mistake O'Reilly did. If Krauthammer went back and looked at the case law, he could read a detailed explanation of why the Supreme Court has confirmed that the Civil Rights Act was not “color-blind,” but instead race-conscious legislation that allows affirmative action in higher education. As former Justice Lewis Powell explained in his opinion in Bakke, Congress' intent in passing Title VI of the Civil Rights Act was to specifically address entrenched “discrimination against Negro citizens.”
From Powell's controlling opinion that explained how affirmative action pursuant to the diversity principle did not violate Title VI of the Civil Rights Act:
Examination of the voluminous legislative history of Title VI reveals a congressional intent to halt federal funding of entities that violate a prohibition of racial discrimination similar to that of the Constitution. Although isolated statements of various legislators, taken out of context, can be marshaled in support of the proposition that § 601 enacted a purely color-blind scheme, without regard to the reach of the Equal Protection Clause, these comments must be read against the background of both the problem that Congress was addressing and the broader view of the statute that emerges from a full examination of the legislative debates.
The problem confronting Congress was discrimination against Negro citizens at the hands of recipients of federal moneys. Indeed, the color blindness pronouncements cited  generally occur in the midst of extended remarks dealing with the evils of segregation in federally funded programs. Over and over again, proponents of the bill detailed the plight of Negroes seeking equal treatment in such programs. There simply was no reason for Congress to consider the validity of hypothetical preferences that might be accorded minority citizens; the legislators were dealing with the real and pressing problem of how to guarantee those citizens equal treatment.
For example, Senator Humphrey noted the relevance of the Constitution:
“As I have said, the bill has a simple purpose. That purpose is to give fellow citizens -- Negroes -- the same rights and opportunities that white people take for granted. This is no more than what was preached by the prophets, and by Christ Himself. It is no more than what our Constitution guarantees.”
In view of the clear legislative intent, Title VI must be held to proscribe only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment.
Curiously, the National Review Online -- a frequent publisher of Krauthammer -- appears to understand this Supreme Court precedent, even if it wants to roll back Bakke and half a century of civil rights law.
NRO Senior Editor Ramesh Ponnuru, while disagreeing with the holding of Bakke, admitted that since “the court decided that racial preferences for disadvantaged minorities are compatible with equal protection, then, they would have to be compatible with the statute, too.” Even Roger Clegg and Hans Von Spakovsky, frequent NRO contributors and long-time opponents of race-conscious laws like the Civil Rights Act and the Voting Rights Act of 1965, appear to now admit that their color-blind interpretation of the Civil Rights Act, while perhaps deeply held, is the opposite of decades of Supreme Court decisions and federal implementation interpreting the law.
At least Ponnuru, Clegg, and von Spakovsky admit they want to overturn modern civil rights law and replace it with their own view of the 14th Amendment and the Civil Rights Act. O'Reilly and Krauthammer could take a lesson.
It's hard to take radical legal arguments seriously from pundits who don't realize how radical they are.