Clarice Feldman – The Supreme Court handed down three major decisions this week, limiting an executive order that fabricated presidential authorization to forgive billions of dollars in school loans; denying governmental authority to compel people to create works that violate their free speech and freedom of religion; and prohibiting schools from considering the race of applicants in admissions in public and private institutions.
There are two very good summaries of these three cases, here on AT by Andrea Widberg and in Real Clear Politics by Professor Charles Lipson. Dissents by justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson, were so badly written and reasoned that some wag said he was inspired to tweet, ”Having read the dissents, I’m even more against affirmative action in judicial selection.”*
For most of us these were welcome outcomes, and while Senators Charles Grassley and Mitch McConnell played an important role in keeping Merrick Garland off the court and allowing President Trump to get three justices confirmed, the main honor goes to him.
As Mike David reminds us:
Trump’s flawless Gorsuch nomination and confirmation united weak and wobbly Senate Republicans to run over the Democrats’ filibuster and lower the vote threshold from 60 to 51.
This comforted Kennedy enough to retire, so Trump could replace Kennedy with his protégé — and still keep weak and wobbly Senate Republicans onboard.
(There’s no chance another Alito or Thomas could have been confirmed in 2018, with Collins, Murkowski, Flake, and others being so weak and wobbly.)
If Kavanaugh’s nomination failed, Republicans would’ve lost the Senate in 2018 and the Court after 2020.
Trump never blinked, even when almost every Senate Republican did.
Instead, we pulled the rabbit out of the hat.
And knocked out 4 Senate Democrat incumbents and picked up 2 seats (when Republicans lost the House).
This paved the way for Trump’s replacement of Ginsburg with Barrett.
First constitutionalist Supreme Court majority in 90 years.
I can think of no other Republican — besides Trump — who had the political skills, force of personality, and backbone to pull this off.
When anyone claims any other Republican president could do this or do this better, they clearly do not understand how the process actually works. And they would have clearly failed.
No rational person could find fault with the Court’s ruling on loan forgiveness. As the Court noted, even Speaker Nancy Pelosi said the president lacked authority to do this. It seems quite obvious that Biden chose to do so anyway for political advantage, inducing those looking for a way out of their obligations to vote for his party, knowing that it would be some time before the matter could wind its way through the courts and be undone.
Speaking of the Heroes legislation which was the purported authority for Biden’s action, Chief Justice John Roberts wrote, “The Secretary’s plan has ‘modified’ the cited provisions only in the same sense that ‘the French Revolution ‘modified’ the status of the French nobility’ — it has abolished them and supplanted them with a new regime entirely.”
The Babylon Bee had fun at the expense of the Administration’s failed sleight of hand. The very notion that people who did not go to college or did go and paid off their loans should pay higher taxes to forgive loans even of couples earning up to $250,000 a year rankles almost everyone.
Nor, outside of Colorado and the Tenth Circuit, could you find many people who think you can, consistent with the Constitution, compel someone to produce a work which promoted something which violated their beliefs. It would be hard to imagine anyone suing or prosecuting Moslem bakers or website developers, for example, who refused to bake a cake or produce a website attacking Mohammed. We’ve had it with persecuting Christians and Jews for their beliefs.
The decisions which drew the most heat were in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, and Students for Fair Admissions, Inc. v. University of North Carolina, which banned race-based academic admissions. Justice Sotomayor was so moved as to directly urge colleges to use race in admissions in whichever way they can: “We shall overcome,” she said in her dissent.
The University of North Carolina pledged to follow the Court ruling; Harvard was moderately defiant. Picking up on the means to continue to weigh race that Roberts left them, indicating they’d find a way to consider race, stating: “The court ruled that colleges and universities may consider in admissions decisions ‘an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.’ We will certainly comply with the court’s decision.”
As Professor Lipson (cited above) describes the history of affirmative action and the court, this decision was long in the making and more than warranted not only by the Constitution but as well by changing circumstances. It wasn’t until the mid-1960s that legal discrimination was outlawed and universities wanted to help African American students get a leg up even when they did not meet the normal admission standards.
They began with admission quotas, which were ruled illegal, and then moved to affirmative-action policies. He contends the court permitted this as a pragmatic step, believing that it was necessary to help overcome these student’s “historical burdens.” But the courts wanted to permit only “modest advantages” and many judges and Americans expected these advantages — which clearly were unconstitutional — would fade in time.
He imagines that the universities will do whatever they can to evade the new ruling. As others also have noted, many of them have eliminated standardized admission tests — because when they use them, the extent of the discrimination is more easily apparent; indeed, “they provide damning statistical evidence the schools’ admission policies still discriminate illegally.”
Countermeasures to maintain statistical evidence of compliance are available, of course; governments (most easily state legislatures in red states) could predicate receipt of state funds on standardized test scores by applicants. Schools can still choose how much weight to give them, but there will at least by an objective way to monitor admissions decisions.
Melissa Korn at the Wall Street Journal has thoroughly researched efforts to maintain racially diverse campuses in schools banned from considering race, and the history of such efforts indicates no reason to be optimistic about any alternatives succeeding in maintaining the level of minority applicants affirmative action policies did.
When California banned race-based admissions at the University of California, despite “a bevy of recruiting and admissions initiatives” the share of Black and Hispanic students dropped substantially. And, no, race and socioeconomic status are not co-extensive, so looking at household income won’t achieve that goal. “There are more low-income white households than there are low-income Black and Hispanic households combined.”
”Socioeconomic status turns out to be a weak proxy for race. In the U.S. the median income for non-Hispanic white households — $78,000 — was about one-third higher than it was for Hispanic households in 2021, and the gap was even larger in Black families. Yet there were more than three times as many white households earning under $50,000 in 2021 as there were black or Hispanic households with similar earnings, census data show.”
Some states have tried to simply admit the top graduates from every high school, but that isn’t sure fire either. It works only “if the schools are dominated” by Black or Hispanic students, “diverse high schools don’t move the needle much.”
And then there are financial constraints. Only richer schools can afford extensive financial-aid budgets, and, then there’s school size. The most highly sought schools tend to be small.
Can schools get around all this and increase minority enrollment by favoring “first-generation college students who grew up speaking Spanish in one-parent households or setting different income thresholds for certain groups of students.” Probably not, according to law professor Gail Heriot, a member of the U.S. Commission on Civil Rights.
Despite having spent hundreds of millions expanding the “pipeline of minority students” the University of California has not been able to increase Black and Hispanic Admissions. ”Black students were 5% of the 2021 high school graduating class, 2% of the first year students at Berkeley and 2.4% of the first year students systemwide [throughout the University’s 10 campuses].”
Florida, too, eliminated race-based affirmative action, guaranteeing admission to its university system to the top 20% of public high school graduates, but has only been moderately successful in boosting minority enrollment, In 2022 the flagship University of Florida only 5.5% of its students were Black, “far below the share” of the state’s Black high school graduates. Texas and Michigan which also banned race-based admissions have had similar results.
Maybe it’s time to give up the notion that universities exist to refashion society, and consider that all the money and effort that goes into maintaining schools of higher education is better spent on educating those people with the aptitude and interest in mastering higher-level education whatever their race or ethnicity. Just a thought.
Correction: An earlier version of this piece incorrectly identified Ilya Somin as the author of the tweet.