Three things from our pod this week with Jonathan Turley:
Far from being “out of step” with the American people, June’s big decision on affirmative action very much reflected the views of super-majorities of every single race in the U.S.
The government has become so politicized that Congress’ Democratic leaders no longer believe their Article I obligation to control the purse is meaningful.
Far from there being a conservative bloc on the court, there is a leftist bloc that always — ALWAYS — votes together. The same is not true of the right.
So much outrage… The President, the press, other members of the liberal elite — they were all very, very, very upset with the Supreme Court. No, no, not the decision that upheld Joe Biden’s deportation policy. No, not the decision that upheld the federal government against the states on election law. No, not the many, many other decisions where conservative justices sided with the court’s liberals. Nope. Just the three decisions about the first amendment, the Biden student loan hand-out, and affirmative action in college admissions.
On those decisions — and only those (at least this year) — the Court was derided as “abnormal,” racist, illegitimate, unrepresentative of the American people, and, well, you get the idea. The Court is only just when it upholds the views of the nation’s liberal authoritarians.
Yes, all this is a bit boring because it’s like everything else these days — people behaving exactly as you expect them to behave, because everyone has his role down pat. Nonetheless, try a little exercise. Ask yourself if conservatives derided the Court as illegitimate over Roe v Wade. Or was it just “wrong”? Ask yourself if, when the Court opened a small window to racial preferences two decades ago, whether conservatives derided the Court as “abnormal.” Perhaps they did, but we just don’t read those newspapers. Let us know.
Ask yourself a question: When conservatives vote together, why are they tyrants, “unrestrained by public opinion”? But when liberals vote together (which they have done this entire term), they are simply following the law?
And another question: Per the NYT, the Tenth Circuit, et al, an observant Christian web designer should be legally barred from saying no to making a same-sex wedding site. Can a Jewish designer say no to making a Neo-Nazi site? How about a Black designer saying no to a KKK site?
In fact, Chief Justice John Roberts is better known for upholding years of judicial precedent than for wrenching the Court in a conservative direction, as so many media outlets argue. The affirmative action case relied on upholding the “strict scrutiny” standard; the 303 Creative case used West Virginia Board of Education v. Barnette, Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, and Boy Scouts of America v. Dale, to name a few. The student loan case in part was struck down via the “major questions doctrine”: the doctrine that requires clear congressional authority for major power grabs by the executive branch.
What we saw last week, in fact, was the Supreme Court doing its job.
HIGHLIGHTS
Tell us about the Supreme Court term?
JT: The term actually is far more nuanced than the coverage would indicate, particularly at the close. Most of the cases this term ended as they do in other terms. Most of the cases were unanimous or nearly unanimous, or when they divided, they did not break along the ideological lines. That's one of the disconnects that you see in the coverage, is that people focus on often a handful of cases that involve these core issues of speech or religion, where you do have that natural breaking point along a jurisprudential line.
Biden vs Nebraska — the Court gave a big NO to Biden’s student loan handout…
JT: The really glaring moment came when President Biden not only called this not a normal court, but called them hypocrites because of their ruling on student loans. This is the man who said during the campaign that he didn't have authority to this, just as Nancy Pelosi did, and the reason that this was obvious is that they were relying on a five page law that was clearly intended just to help people who are serving as military personnel in conflicts abroad. It was the sole purpose. It was the only purpose discussed. It was to help out these individuals. That's why the law was so short. It was a virtual unanimous vote of Congress for that reason. And the Department of Justice looked at this very claim that the President would make and reject it and said, "No, you can't use The HEROES Act for this purpose. It would be hijacking the Act."
But what's really astonishing here is not just the Justices that ignored all of this, but the fact that so many Democratic members are applauding their own functional obsolescence in our constitutional system. You know, we had Chuck Schumer saying that this was cruel, what the court did. The court just supported his authority. The court just said, "You can't usurp Congress." And you had Schumer and AOC and others saying, "This is outrageous." They're going so far beyond their authority.
303 Creative vs Elenis, the “you must make my gay wedding site” case?
JT: I've been actually following the case in columns before the opinion was issued by the Tenth Circuit. And ironically, after the Tenth Circuit ruled, I was speaking to the Tenth Circuit at their judicial conference and I told the judges how thankful I was that they got 303 so unbelievably wrong, because it would finally guarantee that the Supreme Court could not avoid this issue any longer. And you could hear the gnashing of teeth in the audience, but the Tenth Circuit opinion was absolutely terrifying. They literally said in that opinion that the purpose of this law, which is called CADA, that would require people to do things like same sex marriage website, that the purpose of the law is to get rid of bad ideas. That's almost a direct quote of the Tenth Circuit.
They said, "This law is all about eliminating bad ideas." And so for free speech advocates, it was a bloody nightmare. You had a Tenth Circuit decision that said, "We're all about removing ideas from the marketplace." And so what you had was a website designer who was not only being forced to speak, but was also being censored. So she put up a statement on her website that says, "Look, this is why I don't do websites for same sex marriage. This is my religious beliefs, and this is why I'm going to be consistent with those beliefs." The commission said, "Not only do you have to take down that from your website, but you also have to in fact perform these duties." And when she said, "Look, there's tons of people that do websites. Half the teenagers in America do websites," the Tenth Circuit got around that by saying that you have a monopoly on you. This is almost again, a direct quote. They said that she was monopolizing her own talents. They didn't want someone else to do the website if people wanted her to do the website. And so they portrayed her like Andrew Carnegie, that she was a monopoly, denying others herself. And it just, it was so Orwellian.
How was this a 6-3 vote in the Court?
JT: It was particularly unnerving to see the three justices in the dissent because obviously the same protection would apply to an LGBT web designer who was asked to do something that she disagreed with. It also protects a Jewish baker from being asked to do a Mein Kampf cake, or an African-American baker from doing a KKK cake. And for all of them, I hope they would tell the person, "Frankly, get the heck out of my shop. I don't want to do this. You're asking me to participate in a message I find deeply offensive." So this idea that this was an anti-LGBTQ type of decision is just outrageous. And it just shows how, again, disconnected the coverage is from the actual cases. And one of the problems with the dissent is they had no limiting principle. They didn't even try to come up with any limiting principle for the government going forward and getting rid of other bad ideas.
But how was it that three justices saw it the other way…?
JT: Well, they just have this very broad view of anti-discrimination laws that they're both constitutionally and statutorily mandated. And they believe that this is outside of protected speech because you are engaging in a discriminatory act. So they see no difference at all between telling a couple they can't sit at a lunch counter and telling a couple, "I won't do your wedding cake." But of course there is a big difference. All of these individuals, including Masterpiece Cakeshop that came before the Supreme Court, all of them said, "We serve anyone." Any things that are pre-made like cakes and flowers, they all agreed, "Of course we don't discriminate against anyone." It's only expressive and creative products that are issued here. And that the dissent simply doesn't acknowledge it. They just say it's all discrimination.
I've supported same sex marriage for over three decades when it was incredibly unpopular to do so. And really it's the greatest form... I see this in academia a lot. I also supported bringing onto faculty people who were crits and feminists who were fairly extreme. Because I felt, "We should have different perspectives on the faculty." But we reached a point of critical mass where those same individuals who were in the minority then virtually purged faculty of conservatives, libertarians. And we're seeing the same thing happen here. And it's really amazing because the people that were the subject of this type of discrimination are now the leading voices for censorship and intolerance.
And then there’s affirmative action in college admissions…
JT: This is another amazing thing about the coverage, because you had President Biden stating, and he was uncontradicted in the media, that this breaks 50 years of precedent, which is so absurd that it's almost comical. In the seventies, the court got rid of affirmative action admissions in the Bakke case. I was a young student standing outside the court when that decision came down.
That case involved the guy that was applying to medical school, and they had a quota and he was the wrong race. He was white. And the court said, "You can't do that. You can't do it in employment. You can't do it in admission." But what happened is that Powell on the court granted what he considered a narrow exception. Ironically they called it the Harvard approach. And the Harvard approach was to use race as one of a number of criteria to preserve diversity. And the court thought that that could be a limited, very small type of accommodation to achieve greater diversity. Well, of course, the universities then went and got rid of quotas, and they went to these robust diversity systems and had the same percentage where they were bringing in based on race. And what these cases did is they put it in a rather different context because cases were brought by Asian Americans who had tremendous scores and were denied.
And they were denied through a fairly cynical system by Harvard where they included a ranking for personality. And it just turned out that all Asians were given low scores, or most of them were given low scores, to the point that Chief Justice Roberts mocked the council for Harvard and said, "Do you think that Asians just aren't patriotic and are just not interesting people because that's what it seems like. They always come out with this low score." And council sort of struggled with it, but it was very clear to everyone that this was a race criteria system. But over that 50 years, it was a series of 5-4 decisions and plurality. This opinion was supposed to be issued back in 2003 and the Grutter case.
So to sum up the decisions….?
JT: But in the end, what this court is most distinct about in the last two years is they're bringing clarity to these areas in a way that many on the left don't like. And so, they brought clarity with regard to Roe v. Wade in Dobbs. That was another area of divided 5-4 rulings. And they finally adopted a fairly bright line sending it back to the state.
This was another such case where they said, "We've been wrong to try to find ways to allow discrimination." And this was the capstone for Chief Justice Roberts. It may be the case he's most remembered for, because for years, the chief has said, "The way to end racial discrimination is to stop discriminating on the basis of race." And he finally secured that opinion, and I expect this will be probably the capstone of his time on the court.
So are racial preferences gone from college admissions? Or will they find a way around the Court?
JT: Robert's already gave [them] that approach. He said, "You can still in an essay talk about how you individually overcame racial discrimination." So what all the schools are going to do is they're going to prompt applicants and say, "Have you encountered racial or other discrimination?" And so, the kids will self-identify. They won't have a box. Instead, they'll have some other category that says a motive or personal triumph story. And they will continue to do it. Harvard pledged that they're not going to give up. They're still going do this. All of the universities I know have issued statements denouncing this opinion.
I wonder what my Asian American students felt like, because all of these universities were saying, "This is outrageous!" And if you're an Asian American, it's like “Well, I don't think it's that outrageous because I was told to hide the fact that I was Asian in order to apply.” But the most interesting thing that came out after the opinion, I wrote a column about this on my blog, is that since Bakke the universities, including in this last argument before the court have assured the court that the race criteria is one of many and is not that heavily weighted. And they repeated that as they had to in front of the court. The minute the court ruled against use of race, every university came out and said, "Our numbers of African-American and Hispanic students will now plummet." And all of these commentators said it's going to be an all-white class. And it's like, wait, wait for 50 years you've said that this was not a heavily weighted factor, and now you're saying that it'll decimate admissions. And so it's a rather interesting shift.
Isn’t so much of the problem about underperforming primary education in America?
JT: Instead of trying to just check off a box and satisfy your diversity goals, why not do the hard work and actually improve these schools, particularly in urban areas. Public education is a scandal. I mean, they have been writing off generations of African-American kids.
But the very people that are objecting to this are destroying the public education system. Parents are leaving in droves because they want their kids to learn to read and write and add and subtract, and instead they get nothing but this type of agenda training in schools where they should be trying desperately to deal with these basic skills. And that's the saddest point of all of this, is that the people being hurt here are these students. And there's no division on that by the way. The American people have always opposed affirmative action in education. Even in California, the most liberal state in the country, they have repeatedly rejected affirmative action in education despite multimillion dollar campaign.
What's so funny about what the President said is he said, "The people are very upset with this." And you read that, what universe are you living in? I mean, it's, the polls show that exactly that because it's in our DNA. Citizens don't like people being treated differently due to their race.
Full transcript here.
SHOWNOTES
Biden’s “Normal”: The President’s Constitutional Takes are Becoming More Unhinged from History (Jonathan Turley, jonathanturley.org)
Turley: Affirmative Action A “Capstone Case” for John Roberts, He Is Saying You Can’t Just Check A Box (Real Clear Politics, June 30 2023)
The Affirmative Aftermath: Schools Now Insist that Race had a Major Impact in Admissions (jonathanturley.org, July 2 2023)
“The Hypocrisy is Stunning”: Biden Displays Stunning Denial Psychosis Over Student Loans (jonathanturley.org, July 1 2023)
Supreme Court strikes down affirmative action at colleges (Erin Doherty and April Rubin, Axios, June 29 2023)
The Supreme Court Corrects a Grievous Error (National Review, June 30 2023)
The Supreme Court rules against affirmative action in college admissions---what students should know (Jennifer Liu, CNBC, June 29 2023)
Supreme Court allows military academies to continue rae-based admissions, citing ‘potentially distinct interests’ (Bryan Metzger, Biz Insider, June 29 2023)
Can Colleges Be Racially Diverse Without Affirmative Action? Experience Suggests No (Wall Street Journal, June 29, 2023)
The end of affirmative action won’t change much for them, some Asian American say (Jeong Park and Milla Surjadi, LA Times, June 29 2023)
Military Academies Exempt From Supreme Court’s Affirmative Action Ruling (Wall Street Journal, June 29, 2023)
Some Schools See Opening in Affirmative-Action Ruling (Wall Street Journal, June 30, 2023)
The Court Wraps Up the Term on a High Note (National Review, July 1 2023)
There Oughta Be a Law (The Dispatch, June 30, 2023)
Biden to Try Again to Cancel Student Loan Debt (The Wall Street Journal, June 30 2023)
The Court Wraps Up the Term on a High Note (National Review, July 1 2023)
303 Creative v. Elenis is a victory for free speech and pluralism (Wall Street Journal, June 30 2023)
The Supreme Court falls to Earth (Axios, July 2 2023)
The Court is Conservative – But Not MAGA (The Atlantic, June 28, 2023)
Biden’s Base Wants Supreme Court Reform. He Doesn’t. (Wall Street Journal, July 1 2023)