Brownstein: Color-blind' conservatism has some holes in its logic

"The Supreme Court and President Donald Trump's administration are mounting parallel crusades to virtually eliminate the use of race in government decision-making. With one conspicuous exception. Between them, the court's Republican-appointed majority and the Trump administration have severely limited, and in some cases outright banned, the consideration of race to remedy prior discrimination or to promote greater racial and ethnic diversity in virtually any setting, including college admissions, public and private sector employment, and government contracting."

"But simultaneously, the Trump administration has declared that race is a legitimate factor for federal immigration officials to consider when deciding who to target. And in a landmark emergency docket ruling earlier this month, the six GOP-appointed justices, over the fierce dissent of their Democratic-appointed colleagues, agreed. That contrast illuminates how the Trump administration and the Supreme Court majority are building a split-level legal paradigm when it comes to race."

"Democratic Senator Cory Booker of New Jersey anticipated this dynamic during his intense questioning of Supreme Court Justice Brett Kavanaugh during his 2018 confirmation hearings. Booker noted how Kavanaugh, in his writings and rulings, had opposed affirmative action programs, particularly in higher education, but had supported racial targeting in counter-terrorism efforts and policing. Booker bound those threads into a provocative and it appears prescient prediction about how Kavanaugh would approach race-related issues on the Court."

The Supreme Court's Republican-appointed majority and the Trump administration have severely limited or banned consideration of race to remedy discrimination or promote diversity in college admissions, employment, and government contracting. Simultaneously, the Trump administration authorized racial consideration for federal immigration targeting, and six GOP-appointed justices endorsed that stance in an emergency ruling despite dissent. The resulting legal framework permits race to be used as a tool against minorities while denying race-based protections for remediation. Legal scholars and critics warn that the split-level paradigm will be durable and difficult to reverse as demographic shifts progress and White Americans move toward minority status.

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