The ink is barely dry on the Supreme Court’s decisions on religious freedom and affirmative action. That hasn’t hampered instapundits from offering their own decisions. “An extremist minority” has “displayed a willful ignorance of our reality.” I haven’t found polemics denouncing “activist courts,” but that’s probably because I can’t stomach searching for such unhinged screeds. But is every decision of the Court from activists? Are they legislating from the bench, to recall another favorite line from the party of the recently gored ox? Of course, it’s a bit rich to call the Supremes “extremists,” when even Justice Jackson joined a unanimous Court in upholding the free practice of religion.

This brings us back to what an “activist” court looks like. I must first admit that, as a conservative, I thought that decisions to avoid decisions in favor of the freedom to practice religion (Masterpiece Cake Shop) smelled funny. The pendulum swung when the Dobbs decision gored the Left’s ox. But were either of those cases actually legislating from the bench, to use the worn-out pejorative? As I’ve become an active consumer of SCOTUS legalese, I believe that there is a useful distinction between someone who legislates from the bench and one who does not. The opinions of Justices Thomas and Jackson provide us with the decoder ring.

The Supreme Court is to “extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States…” (Art III, Sec 2). Notice the construction. All cases decided by the Courts are based in “law.” In Marbury v. Madison, the Court made it clear that “A Law repugnant to the Constitution is void.” For those who have ignored their government classes, this means that the US Constitution is the highest law of the land, and any law contrary to it is unconstitutional. Finally, in Bruen, the Court made it explicitly clear that the Constitution must be understood by the lights of the people who wrote it. And in the case of the Thirteenth and Fourteenth Amendments, those people lived in the 1860s and wrote extensively about what they meant.

Image: Justices Clarence Thomas and Ketanji Brown Jackson (public domain images)

One other item lost on those who think civics are just Japanese cars is the fact that the Founders built our government in the most unwieldy way they could. This was to keep it from rapidly becoming a monarchy ruling over the people. In doing so, they gave Congress the right to create domestic policy by statute, the President to make foreign policy by diktat (except for war, which was to be declared by Congress), and the Courts the power to rule on legal disputes. This structure made it difficult for any one group to force its way on any other.

Justice Thomas’ concurrence in Students for Fair Admissions is a classic study in legal analysis. He walks step by step through the colorblind nature of the Constitution. He notes that the Fourteenth Amendment “ensures racial equality with no textual reference to race whatsoever.” (Emphasis in the original.) He walks through the broad and long-standing legal identity between citizenship and equality. The arguments both for and against various wordings are fully exposed. Then he dissects the “antisubordination” view “that the Amendment forbids only laws that hurt, but not help, blacks.” This is radically opposite to the colorblind origins and intentions of the Reconstruction Amendments. This view is a policy preference but cannot be supported as law.

Justice Thomas then addresses the arguments of the universities and his leftist opponents on the Court. Remedies at law require compelling reasons to discriminate based on race. But despite many years of developing the argument that “diversity” has educational benefits, Harvard and UNC are still unable to show this. Instead, they present magical thinking. But even if the universities could show benefits, the law requires that they show that those benefits clearly outweigh the harms to others created by this discrimination. And this they cannot show. Finally, the individual students who benefitted from racist admission policies are not the victims of identifiable discrimination that can be legally remedied by being admitted. Thus, there is no lawful basis presented to discriminate based on race. In short, “courts have an independent duty to interpret and uphold the Constitution.” Indeed, this is the sine qua non of the law. “Purchased at the price of immeasurable human suffering, the Fourteenth Amendment recognizes that classifications based on race lead to ruinous consequences for individuals and the Nation.”

By way of contrast, Justice Jackson’s dissent focuses on “the historical subjugation of black Americans, invoking statistical racial gaps to argue in favor of defining and categorizing individuals by their race.” Somehow, we are trapped in a fundamentally racist society. She effectively denies Justice Roberts’ comment in 2006 that “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Her solution appears to be “to unquestioningly accede to the view of elite experts and reallocate society’s riches by racial means as necessary to ‘level the playing field,’ all as judged by racial metrics.”

In her (Is she female? She can’t define the term…) dissent, Justice Jackson demonstrates most vividly the contrast between legal analysis and activist rhetoric. Jackson’s dissent is based not on law but on policy. And this runs right into the Scylla and Charybdis of the Constitution. On one side, the highest law in the land, the Constitution, stands directly athwart her aspirations. On the other, the Constitution forbids the Courts to enter the realm of policy. That remains exclusively the purview of Congress.

For the moment, Donald Trump shines brightly over America. He has given us a Supreme Court that actually settles cases in law.

Ted Noel MD is a retired Anesthesiologist/Intensivist who podcasts and posts on social media (even restored on Twitter!) as DoctorTed and @vidzette. His Doctor Ted’s Prescription podcasts are available on many podcast channels.