The Court Certainly Was in the Headlines Recently – Now We Live with the Results
Happy Fourth of July, America
Before today’s posting, a moment to wish everyone a good day celebrating our country’s birthday. For all the huge problems and threats we face (See the discussion below, for example), this still is a remarkable place to live and a grand experiment in the human species. There is much to celebrate and much to face up to honestly. May we be mature enough and brave enough to both celebrate and face up – both are called for.
Now, go read all this stuff and then go get a beer and a hot dog (real meat or not, as you choose. It’s America! We are all about choice, aren’t we?)
Good News on the Supreme Court?
Yes, there is good news: They have adjourned for the Summer. No more damage until the Fall! Actually, as bad as this court has become, there was mixed news in this most recent flurry of decisions. Let’s take a look at the mix. There are more we could include today, but let’s stick to four of them.
Yea!
As bad as much of this Court session was, there was one decision of unimaginably high importance that they got right.
This was the case brought by the Republican-led NC legislature, seeking to enshrine the odd theory that state legislators can do anything they wish with any election, including federal elections, with no restrictions in law and no checking of that power by the courts. It is not an overstatement to say that had this decision gone the other way democracy as we know it would be on its death march. Legal scholars and others of all sorts loudly declared that such a concept was wrong in every sense of the word.
That the Court decided this 6-3 is a reassuring indicator that the subject is unlikely to come up again anytime soon. What is worrisome is that as flawed as the argument for the unlimited power approach is, 3 justices decided that sounded OK to them. Two of them were not surprising: Thomas and Alito are the permanent temper tantrum, a far out duo on the Court. One might have thought Gorsuch knew better, but his roots in the Federalist Society were showing on this one.
While 6-3 sounds solid, the loss of just one Justice on the decision would have made it a razor thin 5-4 win, one likely to appear on the docket again. Sometimes democracy is like walking on a tightrope. Pay attention or pay the price, on the entire journey.
Boo!
Boo 1: No shortage of bad decisions on this round. Let’s start with the consideration of race in college admissions. We knew this was likely to go this way, given the conservative makeup of this Court and the fact that this has been life-long thing with Roberts. It is a decision that ignores facts and history, serves the country and the people poorly, and was written in a way sure to cause confusion and problems for the years ahead.
Let’s be clear. Making admission decisions (or any other decision, I would think) based solely on race is a bad idea. It appears that a lot of people think that this is what the issue is all about- admitting unqualified people, based on race. That is absolutely not the case.
The Harvard process is fairly typical of how such decisions are made. Admissions officers initially evaluat students on several categories: academic, extracurricular, athletic, school support, personal, and overall. Once an initial pool of applicants is identified who are all qualified for admission, they select a final list of those offered admittance from that initial list.
Those who were to be selected or rejected are evaluated on four more criteria: legacy status (double boo on this one), recruited athlete, financial aid eligibility, and race. It is a balanced approach that works.
How do I know it works? We used basically the same process in promoting Army officers during my term of service. I sat on a national promotion board using basically this model. It ensured quality and diversity, both qualities deemed essential by the armed forces. Interestingly, the Court got that point – the miliary academies were specifically exempted from this ruling.
Failing to consider race and all its implications does real damage to three groups:
One is universities and their student bodies. Higher education is the time and place one should engage with the larger world different from what you know coming in. This prepares you for real life. Steps that dilute diversity hinders that growth.
The second group is would-be minority students. Unless educational institutions find good work arounds, this population will shrink, hurting their communities and furthering the existence of permanent under class Americans.
Third, American business will pay a price. Several business-related entities have made it clear that the most successful American companies, especially in international business, are those that have diversity among its leadership. Such companies are equipped to work with others who are different. Those that are not do not compete well.
This was a short-sighted decision made by people who live in a bubble of privilege who cannot imagine why we can’t all just be racially blind.
Boo 2: The decision that said a woman who does not even have a business but is thinking about it (!) does not have to serve gay customers, even though she would have a business licensed to serve the public.
I get how people think someone owning a business should be able to operate it as they please, but if one thinks about this for a moment, it is not difficult to see how evil this could be for the country.
Not all that long ago, if someone did not want to serve Black people, they could so refuse. That other places might serve them is not good enough. An enterprise serving the public serves us all, or we are less than a full society. Who else would we like to leave out, based on our own “moral principles?”
Maybe we don’t serve Jews or Muslims. How about Republicans being shut out? Transgender? Hey, handicapped people can create challenges, how about exempting them, too? On it goes. If you don’t want to value such people in your private life, that is your loss. You should not be able to enforce that on the rest of us, creating a society wherein some people are shut out by others, just because they can.
This gets even more serious when dealing with pharmacists who do not want to dispense birth control or doctors who do not wish to perform abortions, even if lifesaving and no other hospital is close by.
Some of us are too full of ourselves and too unaccepting of those who are different from us. Grow up and think like an American.
Eh, Both Bad and Good
I have to admit that I find the decision on Biden’s program to reduce student loan costs a mixed bag. On the one hand, student debt is out of control, crippling generations with early and extended debt, which can put them behind economically for the rest of their lives. The costs are way beyond what those of us in older generations ever saw.
Relieving or eliminating such debt clearly pays off for the country. This is basically what the GI Bill did after WWII, a result that largely created the American middle class. And money that would have gone to lenders goes instead to buying goods and services, boosting the economy more broadly.
But this was a huge step to take by executive action rather than legislation. The Court had a point that such a program requires legislation. I hope a way to get this done is accomplished. I have not generally favored free higher education for everyone. Some payback based on means seems fair and just. Surely between everyone pays 100% and no one pays anything we can find a proper balance.
See you next week.
Bill Clontz
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Re: Boo 2: I haven’t read this ruling in depth, but my understanding is that the Court doesn’t allow her not to serve gay customers. Rather, it allows her to decline to express a sentiment in her work that goes against her beliefs.
So, a gay couple could come in to by a stock, pre-made, cake. She would have to serve them.
For the record, I hate the ruling.
Could well be; I need to relook it myself. In any case, certainly seems to reopen the old door of discrimination. And the fact it was a ruling based on a case that actually did not exist makes it even worse. What a burden this court is likely to be for years to come.
It is tragic that we, as a nation, have not realized that the uniqueness of our very diverse ethnicities is our potential strength– rather than our weakness. Having grown up in a very segregated, white supremacist southern town, I became aware, in my early teens, of the inequality and lack educational opportunity in our Black neighborhood. Opportunity that was mine by–what I call– “my white birthright”. It was an “epiphanal” experience for me that significantly influenced by life and career.
Since President Lyndon Johnson signed the Civil Rights Act in l964, legally ending segregation that had been perpetuated in Jim Crow laws, there have been Black doctors, lawyers, business men and women, military personnel coming from my home town. Mine was a lost Black generation which could have contributed to our unique nation. Sad.
On this special July 4th Independence Day it may be worth rereading Fredrick Douglass’s famous July 5,1852 speech– “What To The Slave Is the 4th of July”. In his very long address the answer is –it meant nothing.
Our personal, and our national, commitment must be –not to take any steps backward. “We the People”–means everyone!
Talk about timing – just this morning, I posted a fine article about the Douglass speech, including the speech itself. Powerful stuff. As I often note, we have much to be proud of and so much to do.
https://getpocket.com/explore/item/the-best-fourth-of-july-speech-in-american-history?utm_medium=email&utm_source=pocket_hits&utm_campaign=POCKET_HITS-EN-DAILY-RECS-2023_07_04&sponsored=0&position=1&category=fascinating_stories&scheduled_corpus_item_id=b7ce3a78-c50f-4a75-9695-e792f1392547&url=https://getpocket.com/explore/item/the-best-fourth-of-july-speech-in-american-history
In my observations of the court, the decisions are good or bad depending whose ox is getting gored, not necessarily on the legal merits of the decisions. As a medical doctor, I don’t go to lawyers for medical opinions. I have a hard time deciding the merits decisions on the basis of my very limits knowledge of the law. We must always keep in mind that the job of the court is to interpret the law, not to please one segment of the population versus the other. My father was a lawyer, and he often reminded me that we are a nation of laws, not preferences. He said that if we ever forget that, we are in big trouble.
That is indeed often the case – I remember well how many protested decisions of the Warren and Burger courts.
But I think one can make a good case – and many legal scholars and practitioners have already done so – that this court is astray on several counts that do not make stand the test legally or in other terms. Saying that gun laws must be anchored in specifics cited by the founders, long before modern weapons were even envisioned, makes little sense. I imagine the founders themselves would be appalled at this version of originalism. And the case they just decided about the web site development was a fictional case – the person making the complaint had no such business and no injury and the person she cited never approached her about any such development.
This was a decision made out of whole cloth based on a desire to enforce personal preferences of the justices so voting. Popular opinion has its limits but the fact that this court stands the lowest in the history of polling on the court, bases on its decisions and personal conduct, speaks volumes.