History, Logic and the Court

12:34 PM Posted by Jane Wilde

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Friday, June 30, 2023

THE WEEKLY READ

As expected, the Supreme Court had itself a busy week before breaking for summer recess. In just the last several days, the conservative court handed down decisions on the independent state legislature theory, affirmative action, student loan forgiveness, and the right for a would-be wedding website designer to bar hypothetical LGBTQ couples from her services. There's a lot to unpack, so today we're bringing you not one, but two! Weekly Reads.

In the first, Josh Marshall pulls back to give a big picture look at the logic (or lack thereof) undergirding the Court's decision on affirmative action.

In the second, Kate Riga highlights the unusual degree of aggression shown by the judges, at times calling each other out by name, over their positions in the affirmative action decision.

History, Logic and the Court

by Josh Marshall

Originally Published: June 29, 2023 5:15 p.m.

Let me share a few brief and general thoughts on [yesterday]'s [affirmative action] decision.

First, on its internal logic, the decision can appear compelling. But step back and you see that a specific class of Americans who were enslaved for two centuries and then mostly lived under a system of legal apartheid for another century somehow still remain largely excluded from social and economic preferment. And we're told that the constitution not only bars the government from doing anything about that but also bars private institutions from attempting to do anything about that. Judged from that more holistic perspective it's very hard to see how that can possibly be right whatever the internal logic of "color blindness."

Second, the same people who wrote the amendments that undergird this decision also passed various laws specifically to raise Black social and economic power to the level of white people. So the Court's definition of "color blindness" simply cannot have been the intent of the authors of the amendment. The history is open and shut.

Third, the question of whether the constitution requires or looks favorably on racial diversity is a complex question and it's not entirely clear that it does, at least if we're limiting our analysis tightly to the intent of the people who wrote the relevant amendments. But if originalism or history plays any role in your jurisprudence, African-Americans represent a unique class which the constitution specifically intends to raise to the level of white people. One could argue that that task is done somehow, or that society has changed in some respect that makes the original injunction operate differently or that affirmative and compensatory educational preferment is somehow uniquely damaging and thus a disallowed means of achieving that aim. But again, specifically for African-Americans, the "color blindness" constitutional argument doesn't add up.

Supreme Court Justices Get Unusually Personal In Landmark Affirmative Action Case

by Kate Riga

Originally Published: June 29, 2023 1:51 p.m.

Supreme Court justices often snipe at each other through footnotes and parentheticals, retorts to the "principal dissent" and respectful disagreement with their "colleagues."

But in Thursday's landmark decision, where the right-wing majority struck down two colleges' race-conscious admission programs, the justices infused their opinions with an unusual degree of aggression as they called each other out by name. Every justice except Amy Coney Barrett, Samuel Alito and Elena Kagan wrote independently.

Justice Sonia Sotomayor wrote the primary dissent, taking particular aim at Justice Clarence Thomas.

"He first renews his argument that the use of race in holistic admissions leads to the 'inevitable' 'underperformance' by Black and Latino students at elite universities 'because they are less academically prepared than the white and Asian students with whom they must compete,'" she wrote, citing Thomas' argument in his concurrence. "Justice Thomas speaks only for himself."

It's not the only episode of intra-bench fire. Thomas and Justice Ketanji Brown Jackson also tangle, he from his concurrence, and she from her dissent.

"As she 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," Thomas wrote of Jackson, adding that she seeks to "label all blacks as victims." "Her desire to do so is unfathomable to me," he said.

Dozens of pages away, from a footnote, Jackson struck back.

"Justice Thomas's prolonged attack responds to a dissent I did not write in order to assail an admissions program that is not the one UNC has crafted," she wrote, adding later: "Justice Thomas's opinion also demonstrates an obsession with race consciousness that far outstrips my or UNC's holistic understanding that race can be a factor that affects applicants' unique life experiences."

Other justices got in on the fighting too. Chief Justice John Roberts, in his majority opinion, called Sotomayor's view of the role of the judiciary "remarkably wrong." Gorsuch accused the liberal justices of "denying reality" in what he described as their refusal to acknowledge that race-conscious admissions programs hurt some applicants.

But one criticism may still sting more than the rest, as Sotomayor hammered more than touched a nerve. In addressing the decades of precedent her right-wing colleagues have now overturned, she accused them — the coterie perpetually insisting that they call balls and strikes, that they are nonpartisan and non-political, robe-shrouded robots who rise above the fray — of flexing the power of the conservative bloc to achieve their preferred policy outcomes.

"Lost arguments are not grounds to overrule a case," she wrote. "When proponents of those arguments, greater now in number on the Court, return to fight old battles anew, it betrays an unrestrained disregard for precedent."

She put an even finer point on the argument.

"At bottom, the six unelected members of today's majority upend the status quo based on their policy preferences about what race in America should be like, but is not, and their preferences for a veneer of colorblindness in a society where race has always mattered and continues to matter in fact and in law," she concluded.

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