The long tendrils of popular vote loser Donald Trump’s presidency continued reaching into and ripping out the guts of the American experiment last week, as his Supreme Court’s radical conservative majority struck down affirmative action in college admissions, crushed President Joe Biden’s student debt relief plan, and poured ice cold water all over LGBTQ rights. (I don’t have the emotional energy right now to get into how they also scaled back federal powers to help allay water pollution…)
The court, which bears 6 conservative and 3 liberal judges, has been hankering to dismantle college affirmative action for years, seeing the increased number of Black, Hispanic, and other minority college admittees as an insult to the systemically advantaged white applicants who’ve had a statistically far greater chance of success since the dawn of the republic. In last week’s ruling, the court ironically evoked the U.S. Constitution’s 14th amendment, which promises equal protection under the law. But Black and brown students will of course, as a result of the 14th amendment being upheld, be and remain less equal than their white counterparts.
On the LGBTQ rights front, at issue was a case involving an evangelical Christian web designer from Colorado who didn’t want to provide services to same-sex couples due to her religious biases — uh, preferences. Colorado state law prohibited such discrimination, but the Supreme Court of the United States ruled to uphold it, citing, of all things, the First Amendment.
Justice Neil Gorsuch wrote, “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…All manner of speech – from ‘pictures, films, paintings, drawings, and engravings,’ to ‘oral utterance and the printed word’ – 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.”
But what about, as when one hires a web designer to help one express oneself, the free speech of the consumer? If speech is free, how then can a given group be subject to silence based on its identity?
By way of a dissent, Justice Sonia Sotomayor wrote, “Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class.”
Regarding student loan debt, President Biden had moved last year to cancel some $430 billion of it, but the Supreme Court’s conservative majority dug up something called the “major questions” doctrine, leveraging their judicial right to intervene in matters of “vast economic and political significance.”
Which is fitting, since the conservative justices on that bench are really and finally just a bunch of politicians.
What haunts me the most, though, is what Justice Clarence Thomas wrote in the course of railroading affirmative action. He took aim at his fellow Justice Ketanji Brown Jackson directly: “Rather than focusing on individuals as individuals, her 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. 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.
“Worse still,” Thomas continued, “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.”
Thomas didn’t write the words “systemic racism,” but that’s exactly what he, by way of Jackson, was referring to. It is, by way of a sane and grounded interpretation, systemic racism which leads to the subjugation, gaps, and statistics of which Thomas wrote. In other words, because of the way America is devised systemically, outcomes for Black, Hispanic, and other minority Americans are continuously held down across income, health, education, homeownership, assets, accrued wealth, racial profiling, incarceration, and more. But Thomas couldn’t write the word “systemic.” Why? Because he is the system.
This goes to a broader blind spot among conservatives, one which The Court now proudly embodies with numbing repetitiveness. Conservatives are simultaneously (1) never in the fight for progress themselves but (2) always the placid and comfortable inheritors of progressive action. For example, I’ll bet that evangelical web designer in Colorado has no problem servicing Black customers. Why? Because to refuse them service would be discriminatory. But she would only feel that way because she is the passive inheritor of the work of countless progressives who marched and fought over the centuries to drive home the idea that racism is bad. As for homophobia, however (in addition to transphobia or any other form of anti-LGBTQ hatred), since that is historically a newer thing for the collective to grapple with, she sleeps easily at night (as do her protectors on The Court) while refusing service to LGBTQ customers. Her grandchildren won’t, though — or will be less likely to — because progressives and liberals will continue to fight for equality.
Alas, by fighting for the individual while he himself is the beneficiary of collective effort, Justice Thomas disgraces himself and his Court while ignoring and/or denying American history.
Meanwhile, in recent weeks, less headline-grabbing cases showed less conservative kool-aid being chugged: the justices ruled in favor of Black Alabama voters in a Congressional redistricting case; they upheld the Indian Child Welfare Act, a law that keeps indigenous children within their own tribes; they also allowed the abortion drug mifepristone to stay on the market despite having brutalized abortion rights a year ago.
These rulings might not stick, however. Future rulings shall decide their ultimate outcomes. In the meantime, know this: America is just an idea. An idea of equality, an idea of justice.
And our Supreme Court’s got other ideas running through its head.