The Supreme Court has spoken. I, for one, am torn.
In the final month of the 2023 session, the justices issued two rulings which will result in federal elections that are fair. Fairer, at least, than Republican legislators, who came up with all kinds of restrictions that would make it particularly harder for minorities to have a voice, want them to be.
One ruling says that while race should not be “the predominant factor” in drawing maps for congressional districts, it must be considered when the borders of those districts are decided. This was in a case from Alabama where the statewide population is a quarter black, but where the map drawn by the Republican legislature created only one district out of seven where blacks are in the majority. Now they’ll have to redraw it, and the Court’s decision will be cited by voting rights advocates in lawsuits against states from coast to coast that have stacked the deck against minorities.
The other ruling was in a case brought against North Carolina where the GOP-led legislature claimed that it has total power to tailor election laws. What the U.S. Supreme Court said was that the state’s supreme court has the right to review those laws and, if it sees fit, to strike them down. Writing for the majority, where three conservative justices joined the Court’s three liberals, Chief Justice John Roberts said that “state courts do not have free rein” to actually rewrite election laws themselves, but that it’s each one’s responsibility to ensure that the laws passed by a legislature are consistent with the constitution of that state.
For me, where the long-term import of equitable election laws transcends the import of verdicts about policy, these rulings were the best thing to come out of the Court. It is only with free and fair elections that policies favored by the majority, any majority, can be guaranteed.
But then, in the final days of the Court’s final week, came the rest.
The Court issued rulings about affirmative action, about student loan debt, and about religious versus gay rights.
I think I can see both sides to almost every issue in America. That doesn’t mean I agree with the other side but I usually see where they’re coming from and respect the perspective they bring. That is the case in all three of these final court decisions.
In the affirmative action case, the Court took the position that affirmative action policies discriminate against non-black applicants to colleges and universities. It ruled that they violate the Constitution’s Equal Protection Clause and that therefore, schools cannot continue to take race into account. Minority applicants can explain how their background shaped them, perhaps even how it might have put them at a disadvantage, but as Chief Justice Roberts wrote for the majority, “the student must be treated based on his or her experiences as an individual— not on the basis of race.”
In her dissent, the Court’s newest justice Ketanji Brown Jackson, one of the two blacks on the high bench, wrote that “deeming race irrelevant in law does not make it so in life.” She said that although we still don’t have a colorblind society, the majority’s ruling declared “colorblindness for all by legal fiat.” That brought a retort from the other black justice and the longest-serving member of the Court, Clarence Thomas. “As she sees things,” he wrote of Jackson’s arguments, “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.”
I think the truth is somewhere in-between. We still are not a colorblind society and although the civil rights movement made great strides for black Americans, many are still stuck with the legacy of the economic, educational, and geographical ghettos to which they were long consigned. However, that’s also true for people of any race, any ethnicity. Some come from families who motivate them, families who teach them, families who fund them, and some don’t. While I’m not oblivious to the continuing disadvantages that weigh down many black Americans, we do have a black minority leader in the House of Representatives, we have a black vice president of the United States, and we’ve had a black president. Twenty-five Fortune 500 CEOs are black. Lester Holt, the anchorman of NBC News, is black. Oprah Winfrey, a powerful force on television, is black. And of course, two Supreme Court justices. Although the numbers don’t necessarily match up to the numbers of blacks in the nation’s population, they do suggest that opportunities for advancement and achievement are out there for at least some who seek them.
The student loan debt decision, in my opinion, has two well-reasoned sides to it too. With the truthful rationale that tuitions have mushroomed and the crippling debt to pay them off impedes college graduates from reaping the fruits of their labor, President Biden made an executive decision last August to cancel as much as $400 billion in student loan debt. It would forgive up to $10,000 per debtor, with designated limits on the income a beneficiary could be earning. The Court struck that down. It called Biden’s decision “overreach,” ruling that such a consequential action requires the approval of Congress.
In the debate over Biden’s plan, the question came down to this: is it a remedy or a giveaway? The answer is, both. Supporters argue that if debt is partially forgiven, graduates can more easily move on to upgrade a car, purchase a home, start a family, all of it good for the economy. Opponents argue that it isn’t fair to Americans who’ve already sacrificed and struggled for years to pay off their student loans. They also argue that it would be unfair to focus taxpayer dollars on college-educated higher-income Americans, at the expense of those who never had the chance to reach that level in life.
The final decision: religious rights versus gay rights. The Court ruled that the state of Colorado cannot prohibit Lorie Smith, a website designer with a particular set of religious beliefs, from posting a statement online that her business won’t create websites for same-sex couples. My default reaction when I read that was, it was unfair to gay Americans, it perpetuates the pain of discrimination. In the early days of the battles for gay rights, many Americans argued that same-sex preferences were abnormal, sacrilegious, even “a choice,” and that therefore citizens who are gay should not be granted the same rights as everyone else. Now, most agree that those objectors were wrong. People who identify as LGBT deserve the same rights, are entitled to the same rights, and that includes the right not to be discriminated against on the basis of their sexual preferences and sexual identity.
But shouldn’t that go for religious rights too? If it violates the web designer’s religious beliefs, no matter how odious some of us might think they are, is it fair to prohibit her from saying she’ll turn down jobs that she considers odious? That was at the heart of the Court’s ruling. Justice Neil Gorsuch wrote the decision and argued, “The First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands.” Although Justice Sonia Sotomayor wrote in dissent that the Court’s decision “grants a business open to the public a constitutional right to refuse to serve members of a protected class,” Gorsuch maintained that “all manner of speech… qualify for the First Amendment’s protections; no less can hold true when it comes to speech like Ms. Smith’s conveyed over the Internet.”
I am torn on these rulings. The Court’s earlier decisions this month are a clear victory for fair elections and a blow against those who would manipulate election law to favor their own party’s candidates. Its later decisions are not as easy to reconcile but also, at least for me, not easy to irrefutably condemn. They didn’t go the way I would choose and from where I stand, they do more harm than good, but they are not entirely unsound.
Over more than five decades Greg Dobbs has been a correspondent for two television networks including ABC News, a political columnist for The Denver Post and syndicated columnist for Scripps newspapers, a moderator on Rocky Mountain PBS, and author of two books, including one about the life of a foreign correspondent called “Life in the Wrong Lane.” He has covered presidencies, politics, and the U.S. space program at home, and wars, natural disasters, and other crises around the globe, from Afghanistan to South Africa, from Iran to Egypt, from the Soviet Union to Saudi Arabia, from Nicaragua to Namibia, from Vietnam to Venezuela, from Libya to Liberia, from Panama to Poland. Dobbs has won three Emmys, the Distinguished Service Award from the Society of Professional Journalists, and as a 37-year resident of Colorado, a place in the Denver Press Club Hall of Fame.
Well presented Greg. Thanks. I found myself upset about the affirmative action ruling and the web designer. AA has gone a long way to address grievous harm to blacks and others and the UC experience shows how hard it is to continue that redress without acknowledging historic racism. The web designer, i’m convinced, was an unharmed shil for right wing forces but the conserv majority wanted such a strawman. Loan forgiveness was a Sanders/progressive left demand of Biden... i never strongly favored it despite the burdens those loans pose. But Scotus are not umps at a baseball game and the ideological divide is sharp and evident.
Still at least they did expunge independent legislature theory to the dustbin.
Well said, thank you.