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June 30, 2023

The Supreme Court’s three decisions honor the Constitution

By Andrea Widburg

It’s been a busy two days as the Supreme Court ended its 2022-2023 term. The three most noteworthy opinions ended affirmative action (although with a dangerous caveat), limited executive authority to erase debt, and struck a blow for free speech. Because all three are completely normal in analysis and effect, they’re rather uninteresting. What’s more interesting are the dissents, which predict what a leftist-controlled future will look like.

The first case of note was Students for Fair Admissions, Inc. v. President and Fellows of Harvard College. The Court held that race-based college admissions violate the letter and spirit of the Constitution, especially the Fourteenth Amendment. If Chief Justice Roberts, who wrote the opinion, had stopped there, that would have been great. Race as a consideration in college admissions (and, indeed, one could argue, hiring for any job) would be dead in the water.

Sadly, because this is Roberts, and he’s a squish, he added squish language to the decision:  

At the same time, as all parties agree, nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.

Image: United States Supreme Court justices.

We know how that works. In California, affirmative action has, technically, been dead for a while, thanks to the fact that voters hate it. What colleges and universities do, instead, is make those “lived experiences” central. That is a substitute for race, as Erwin Chermerinsky, the hard-left dean of Boalt Hall, the law school at UC Berkeley, explains about faculty hires:

Predictably, the three hard-left female justices (two of whom are affirmative action hires) reacted badly to the ostensible end of affirmative action. Justice Jackson, as already noted, relied on a flawed study to bolster her position. If you want a look at how faulty this reasoning is, just read Justice Thomas’s concurrence.

JUSTICE SOTOMAYOR apparently believes that race-conscious admission programs can somehow increase the chances that members of certain races (blacks and Hispanics) are admitted without decreasing the chances of admission for members of other races (Asians). See post, at 58–59. This simply defies mathematics.

[snip]

As [Jackson] sees things, we are all inexorably trapped in a fundamentally racist society, with the original sin of slavery and the historical subjugation of black Americans still determining our lives today. Post, at 1–26 (dissenting opinion). The panacea, she counsels, is 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. Post, at 26. I strongly disagree.

[snip]

Yet, JUSTICE JACKSON would replace the second Founders’ vision with an organizing principle based on race. In fact, on her view, almost all of life’s outcomes may be unhesitatingly ascribed to race. Post, at 24–26. This is so, she writes, because of statistical disparities among different racial groups.

[snip]

Put simply, “the fate of abstract categories of wealth statistics is not the same as the fate of a given set of flesh-and-blood human beings.” [snip] Worse still, JUSTICE JACKSON uses her broad observations about statistical relationships between race and select measures of health, wealth, and well-being to label all blacks as victims. Her desire to do so is unfathomable to me.

There’s more, and it’s all brilliant. Put simply, Thomas, who grew up in abysmal poverty under Jim Crow, is a humanist and a realist. Jackson, the cosseted daughter of an upper-middle-class household, is a racist and a fantasist. That’s all you need to know.

In Biden v. Nebraska, Chief Justice Roberts wrote an unexceptional opinion arguing the obvious: The Constitution does not give the executive, via the Secretary of Education, the unilateral ability to rewrite legislation to diminish or cancel tens of millions of student loans, costing taxpayers around $500 billion.

Again, it was Kagan’s dissent that was illuminating. First, she says that, just because states are affected by the Secretary’s actions doesn’t mean they get to complain. Roberts did not agree with Kagan’s “logic”:

Substantively, Kagan argues that the ability to waive or modify legislation under specific and limited circumstances was a license for the executive to rewrite the statute. This is how leftists view the administrative state. Once given a mandate, it can do anything. Kagan argues that the statute applies to all individuals affected by a national emergency and, darn it, everyone was affected, so there you have it, carte blanche to change the law. Of course, everyone was affected by COVID, including the taxpayers who would be burdened with this regulatory overreach. But really, who cares when you’ve got the votes of student deadbeats?

Perhaps the most interesting decision is 303 Creative LLC v. Elenis, which reaffirms Americans’ right to be free of coerced speech. The complainant, a devout Christian in Colorado, wanted to make personalized wedding web pages. However, she was afraid that, just as it did to Jack Phillips of Masterpiece Cakes, the state would sanction her and force her into a reeducation camp for refusing to make websites for same-sex weddings. Gorsuch, writing for the Supreme Court, agreed with her.

This is not a situation in which a store is refusing to sell widgets to gay people. It is, instead, a situation in which an individual would be forced to use her skills to express ideas with which she strongly disagrees. That is the essence of state-coerced speech, and it violates the First Amendment. The decision is about three times longer than it needs to be, but it makes the point.

Sotomayor’s dissent abandons rationality. As far as she’s concerned, not forcing people to engage in expressive acts that constitute speech pretty much means LGBTQ++ people will die (and I exaggerate only slightly):

Around the country, there has been a backlash to the movement for liberty and equality for gender and sexual minorities. New forms of inclusion have been met with reactionary exclusion. This is heartbreaking.

Nothing more clearly reflects Sotomayor’s mindset than this sentence, complete with scare quotes:

A business open to the public seeks to deny gay and lesbian customers the full and equal enjoyment of its services based on the owner’s religious belief that same-sex marriages are “false.”

The disdain for traditional Christian belief drips from Sotomayor’s keyboard. And her disdain for the Constitution is there, too:

As I will explain, the law in question targets conduct, not speech, for regulation, and the act of discrimination has never constituted protected expression under the First Amendment.

The conduct, in this case, is speech, because it’s expressive. It’s not like a sign in a general store saying, “LGBTQ+ people may not buy our goods,” which is purely discriminatory conduct. And again, the government doesn’t get to control speech, no matter how it’s expressed.

Sotomayor struggles. Gorsuch slapped her back nicely:

The majority on the Supreme Court got all three cases right, although Roberts may have undercut Students for Fair Admissions so badly that it swiftly becomes irrelevant. And while it’s amusing to read the emotion-laden, irrational dissents, I’d like to remind all of you that the left spells out its positions and never abandons them. If conservatives are not vigilant (which means getting their act together by 2024), the leftist justices’ vision will soon be the law of the land.

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