Before I dive into my forthcoming Supreme Court, I want to welcome my 100th subscriber and thank all 100 of you who subscribe. I appreciate that anyone wants to read my words. I love writing regardless of the number of people who read me but to know that there are 100 people who actually want to be here really makes me happy. Thanks.
Okay, here we go. Every lawyer I know and/or read is hair-on-fire angry about the past two terms of the Supreme Court, and I am not sure I have that many new or original thoughts on the issue. At the end of this post, I will provide links to other writers who have more coherent or more outraged thoughts about this week’s decisions. In the meantime, here are my thoughts.
First of all, President Biden is correct: this is not a normal court. As a lawyer, I was trained to believe that the SCt is a little-c conservative institution. It derives its authority from the Constitution and its constitutional role is to curb the excesses of Congress and the Executive Branch. As a progressive, I’ve always been frustrated by how slowly the Court moved to enforce our rights and how quickly they act to limit Congressional action, but at least there was the certainty that their reasoning was based on what had come before - precedent, stare decisis. Traditionally, they only ruled on real disputes brought by actually injured parties.
That is not the case anymore. In decisions this week, the right-wing justices relied on fake plaintiffs with invented facts that had no actual dispute that needed to be resolved in order to reach the political outcomes that they personally wanted. Seriously, the 303 Creative plaintiff claimed to have her 1st Amendment right abrogated by the possibility that she might have to design a wedding website for a couple that is not one woman and one man. Mind you, she has never made a wedding website and has never been asked by a gay couple to make one. She claims a man once asked her to make a wedding website for a gay couple, but reporters have learned that the man who she claims asked is straight, married to a woman, and denies ever asking her for such a website. The woman is not injured but now people and companies will be permitted to refuse service on the basis of whom someone loves. It puts LGBTQ+ individuals into a second-tier status regarding what they are entitled to under the law. All because Fakey McFakerson got four justices to jump at the chance to re-create discrimination against (for now) gays and lesbians. (For now, because this is definitely just the first step toward permitting segregation).
The student loan debt decision similarly includes fake facts - aka lies - as the basis for taking the case. In that case, the state of Missouri claimed to be running a student loan servicing organization (which they do not, in fact, run) and claimed that the student debt relief would injure them because the organization (which the state does not own and does not run) might lose fees that they would otherwise collect. Mind you, that organization was not a party to the suit, learned about it after it had been filed, and maintains that it will actually make more money servicing the debt relief than it otherwise would have. No matter. Right-wing justices wanted to test out their “major questions doctrine,” a wholly new legal theory that allows them to contradict the will of Congress and the explicit text of the law whenever they choose to.
This is not normal. This is rank intellectual dishonesty and an obscene power grab by an unelected body that is bought and paid for by billionaires. Justice Kagan noted in her dissent to the student loan debt case that the majority opinion itself violates the Constitution. Roberts addressed her concern with a dismissive “stay in your place and shut your mouth” admonition. Not only is the Supreme Court untethered in their decision-making but they do not want to be criticized by even their peers, much less us peons.
303 Creative and the Missouri student debt relief cases weren’t the only unacceptable decisions of the week. The Court also ended affirmative action in higher education (except the military academies. Judge Jackson noted that in the majority’s formulation, Black and Brown bodies are acceptable for the bunker, but not the Board room). Brook was reading parts of the Thomas concurrence to me and remarking how shocking these decisions are. Part of me agrees that Thomas is an angry unhinged ideologue, but another part of me feels like we should expect this kind of decision-making from the Court, just not in a way that pretends that these are normal decisions. Dobbs made it clear that they have no compunction about taking away people’s rights no matter how long they’ve been guaranteed. Implementing their tortured reading of the 14th Amendment has been their life’s work. Equality under the law only applies to the white ruling class and whichever Supreme Court justices they can buy off.
Going back to the affirmative action case, I want to note a few things about the underlying issues in the case. The majority opinion and the concurrences are racist and naive. But it’s important to note that nothing about this decision requires elite institutions to stop considering the “other” race card, i.e. legacy admissions. More than 40% of white students at Harvard are the children of alumni or staff and the monetary value of their alumni contributions is a factor. That’s how Power Genius Jared Kushner got in: his dad paid for a building. The perpetuation of privilege is the entire point of Harvard, not education. The reason we want a more diverse student body is in hopes that someday, the elite students of color will lead us to a more racially equitable future. I’m skeptical but whatever. Ketanji Brown Jackson went there, so maybe there’s something to it. But if Harvard really wants a diverse student body, there are plenty of ways to achieve that. It just means they have to stop favoring white people all the time.
For example, Harvard is free to ask the following mandatory essay question: “What role has your race and/or ethnicity played in your life?” This will allow them to learn about how applicants identify themselves and will also help them learn which white students are insufferable assholes who are utterly uncritical of their privilege. The “color blind” and the “it doesn’t impact me” folks can go somewhere else if Harvard so cherishes the inclusion of historically underrepresented students (which I doubt since see the persistent legacy admissions policy screed above). Harvard could theoretically admit an incoming class composed of 100% of students who were adversely affected by their race in our society.
Today, the New York Times suggests that schools could admit students based on the amount of adversity they’ve faced. This requires applicants to participate in some kind of trauma Olympics. The whole practice of requiring students to overcome adversity in order to get an education undermines what should be a basic human right. Why should students have to provide their trauma scores to get a good education?
This brings me to another point: We wouldn’t have this insane competition for limited resources (here, a seat in a Harvard classroom) if we funded education from pre-K through high school at a level that truly demonstrated that we are committed to the educational success of every student. What we have now is the fucking Hunger Games for learning.
Finally, companies are wringing their hands about what effect this will have on their “diversity hiring” programs but it’s entirely within their control where they recruit from. They could request that applicants not include the name of the educational institutions they attended so that a Harvard degree would have no more salience than one from UMass Boston. Applicants might be judged, for example, on their ability to perform the job instead of which elite institutions they attended. For that matter, how many jobs that require a college degree actually require a college degree? I have a degree in Religion. RELIGION. But because it’s from the University of Chicago, people are very ga-ga about me. Fuck that. I am aware that I am also smart and talented and worthy on my own merit but those UC degrees turn heads the way they would if I showed up at an interview in a bikini.
Alright, I’m out of breath. I have more to say but for now, I want to amplify (thus the megaphone) a few other thinkers on this topic. For starters, you should be listening to the Strict Scrutiny podcast, if you don’t already. It can be a little law-wonky at times, but for sheer intellectual power mixed with righteous hilarity, it cannot be beaten. I also recommend the following two Substacks. Heather Cox Richardson (see below) is absolutely brilliant at providing historical context and insights about the Court’s decisions (and a lot of other things). Finally, go enjoy the Fourth of July, and remember, this is our country, and it is patriotic to insist on equality under the law for all of us, not just the billionaire friends of the Supreme Court.