Equality and DEI

Equality and DEI

To understand equality, affirmative action, and DEI, we need to go back to how affirmative action came to be.

The Supreme Court recognized that American society was radically skewed against certain groups. At the same time, the Court understood that the Constitution forbids any treatment that discriminates on the basis of race — a principle historically used to strike down laws that unfairly targeted minority groups. Critically, the Court also recognized that this same prohibition applied to discrimination against white Americans. Faced with this tension, the Court crafted a narrow constitutional exception permitting limited race-based remedies to help minorities.

This exception was never intended to be permanent. In 1978, Justice Sandra Day O'Connor — the first woman to serve on the Supreme Court — wrote an opinion upholding affirmative action while explicitly noting that it was designed to be temporary, anticipating it would sunset within roughly 20 years. It survived approximately 28 years beyond that point.

The Court has since struck down other race-based policies as well. One such law permitted politicians to draw legislative districts with high concentrations of specific racial groups — a form of gerrymandering intended to increase minority representation. The Court ruled this unconstitutional on two grounds: first, the Constitution prohibits racial discrimination against any group, including white Americans; and second, it is the Court'sauthority and role to say what the Constitution means.

The more liberal Courts of the 1960s and 70s carved out exceptions to constitutional principles that conservatives found deeply troubling. They argued, with some legal merit, that the Constitution does not bend to exceptions — if you want to change it, you amend it, as the country did when it repealed Prohibition. Conservatives disagreed with those rulings but worked within the system. They couldn't change the precedents overnight, so they did the next best thing: they won Presidential elections and appointed justices likely to rule in their favor. That is the legal, democratic path the Constitution provides — and they followed it.

Now that the Court's rulings are going the other way, some on the left are calling for court-packing or other structural workarounds. This is worth noting, given that their loudest objection to President Trump was his alleged disregard for democratic norms. It's a familiar pattern: when the other side does it, it's tyranny; when we do it, it's justice.

The deeper problem for Democrats is a strategic one. The party's base is drawn to far-left candidates precisely because they adhere most purely to progressive values — but ideological purity is not a winning general election strategy in a country as diverse in its views as the United States. The last two Democrats to win two-term presidencies did so by running on meaningfully moderate platforms. Their electoral success is what gave them the opportunity to appoint liberal justices.

Bycontrast, nominating candidates from the party's far left may energize the base and feel morally satisfying, but it has repeatedly cost Democrats the general election — and with it, the White House, Senate confirmations, and the ideological direction of the Court. Until Democrats internalize this dynamic, they will continue losing ground both at the ballot box and on the bench.