So, the simple answer to Glenn's question about why Jackson, in her dissent, did not focus on the 14th amendment and the constitutional questions is addressed in paragraph 2 of her dissent:
"JUSTICE SOTOMAYOR has persuasively established that nothing in the Constitution or Title VI prohibits institutions from taking race into account to ensure the racial di- versity of admits in higher education. I join her opinion without qualification. I write separately to expound upon the universal benefits of considering race in this context, in response to a suggestion that has permeated this legal action from the start. "
Anything any justice writes is fair game for criticism. But if one is going to criticize I don't think it is fair to ignore the justice's own explanation.
At oral argument in this very case, Jackson did make the originalist case for a 14th Amendment that is not color blind. Agree or disagree with her points, it is a simple fact that she made them.
Justice Thomas, by the way, did his own argument a great disservice by choosing to make the point that, during Reconstruction, the term "freedman" was a race-neutral description of status, ignoring the contemporaneous evidence that the term was used interchangably with racial classifications, that it was used to describe Black Americans from the north who had not themselves been enslaved, and that there is precious little if any historical evidence that the term was ever applied to White people. He didn't need to go there to make the same argument, and by doing so he undercut his own credibility.
So, the simple answer to Glenn's question about why Jackson, in her dissent, did not focus on the 14th amendment and the constitutional questions is addressed in paragraph 2 of her dissent:
"JUSTICE SOTOMAYOR has persuasively established that nothing in the Constitution or Title VI prohibits institutions from taking race into account to ensure the racial di- versity of admits in higher education. I join her opinion without qualification. I write separately to expound upon the universal benefits of considering race in this context, in response to a suggestion that has permeated this legal action from the start. "
Anything any justice writes is fair game for criticism. But if one is going to criticize I don't think it is fair to ignore the justice's own explanation.
At oral argument in this very case, Jackson did make the originalist case for a 14th Amendment that is not color blind. Agree or disagree with her points, it is a simple fact that she made them.
Justice Thomas, by the way, did his own argument a great disservice by choosing to make the point that, during Reconstruction, the term "freedman" was a race-neutral description of status, ignoring the contemporaneous evidence that the term was used interchangably with racial classifications, that it was used to describe Black Americans from the north who had not themselves been enslaved, and that there is precious little if any historical evidence that the term was ever applied to White people. He didn't need to go there to make the same argument, and by doing so he undercut his own credibility.