The Wisconsin Supreme Court struck down a state-funded scholarship program that awarded financial aid based on the race of college students. The Democrat-controlled court followed the precedent laid out by the United States Supreme Court in finding that Gov. Tony Evers and the state were violating the Equal Protection Clause of the United States Constitution. Two of the most liberal justices, however, wrote a concurrence denouncing the bar on the use of race for such scholarships. If Democrats are able to pack the Supreme Court as demanded by many party leaders, this concurrence is an example of the likely changes that a packed court will bring in reversing anti-discrimination and other rulings.

The Wisconsin Institute for Law and Liberty represented the taxpayers in this successful challenge of the Wisconsin Minority Undergraduate Retention Grant Program. That program administered taxpayer-funded grants of up to $2,500 per academic year to eligible students of Black American, American Indian, Hispanic, or certain Southeast Asian backgrounds.

The state paid out roughly half a million dollars in scholarships, now found to be racially discriminatory.

Citing the 2023 U.S. Supreme Court decision Students for Fair Admissions v. Harvard, the Court reaffirmed that “The Constitution requires that every person ‘must be treated based on his or her experiences as an individual — not on the basis of race.’”

While many have heralded the new bright line against racial discrimination in higher education, two of the most liberal justices, Chief Justice Jill Karofsky and Susan Crawford, lamented the loss of racially discriminatory programs.

In her concurrence, Chief Justice Karofsky captured the sweeping, open-ended rationales used for such programs:

“Why have we not learned from our past? Why are we not willing to recognize the harms this country has caused to those who are marginalized, disempowered, or disenfranchised? Why, instead of wielding the Equal Protection Clause as a sword against racism, do we employ it to shield against the promise of equality for all? The answer appears to be because we have failed to fully recognize how societal and governmental practices have long continued to enforce a preference for White Americans and to burden Black Americans and those of other disadvantaged races or backgrounds.”

These justices would continue race-based programs indefinitely under the claim that there is a “preference for White Americans” in programs that focus purely on academic achievement or specific non-racial criteria.

The two justices quote from the dissent of Justice Ketanji Brown Jackson that requiring race-neutral rules is just more “let-them-eat-cake obliviousness” by a white privileged society. She added, “I fully recognize and acknowledge that I am bound by the precedent set forth in SFFA and other cases decided by the U.S. Supreme Court…However, I also choose to write separately. I do so because I find it impossible to ignore the truths that Justice Jackson identifies.”

Notably, those “truths” from the Jackson dissent have been challenged as containing glaring false claims.

I have previously discussed my disagreements with Jackson and her jurisprudence, including her dissent in the SFFA case. However, this concurrence vividly shows the jurists whom the Democrats could call upon to pack the Supreme Court to reverse decisions like the one in SFFA.

With various Democratic leaders now openly pledging to pack the Court to reverse such decisions, the 2028 election is becoming a referendum on the future of an institution that has proven key to maintaining this Republic for 250 years.

Democratic politicians and pundits have made clear that they need the immediate control of the Supreme Court to carry out an agenda that would be struck down as unconstitutional. That includes reversing core constitutional rulings. The Karofsky concurrence offers a glimpse into our future if we allow the Court to be the object of a political hostile takeover.