For the progressive left, the last week in June was a tough one. Officially approved racism was thrown overboard; religious freedom and free speech were protected, and the separation of powers, inherent in the U.S, Constitutional structure, was reaffirmed. These results stem from three Supreme Court decisions that were announced last week.
Notably in Students for Fair Admission v. Harvard and Students for Fair Admission v. The University of North Carolina, the Court ruled that the use of racial discrimination in college admission decisions violated the equal protection clause of the 14th amendment. In 303 Creative LLC Et Al. v. Elenis Et Al. the Court held that a web designer could not be forced by the state to design a website that violated her religious beliefs.
Finally, in Biden, President of the United States, Et Al. v. Nebraska Et Al. the Court ruled that President Biden overstepped his authority when he decreed that the HEROES Act authorized him to cancel federal student loans up to $20,000. Doing so would require explicit authorization by Congressional action, the Court held.
None of these rulings were particularly surprising; the likely outcomes had been telegraphed for months. Nor should they have been all that controversial. It is, or should be, crystal clear that the U.S. Constitution forbids racial discrimination by the state. And no one disputes the contention that Asians are intentionally held to a much higher standard for admission to elite colleges for the express purpose of reducing the number of Asians at those institutions.
No matter, a meltdown of the media-academic complex commenced almost immediately. Apparently the progressive left, along with the KKK, has decided that there is “good” racial discrimination and “bad” racial discrimination. The determinative factor, they claim, is purity of motive, namely the desire to achieve diversity.
That rationale is simply nonsense, even if it were true. The real goal, however, is to achieve conformity, not diversity, in what really matters, which is to say philosophical outlook. Hence the progressive thought police have taken to requiring academic job applicants to make DEI statements (Diversity, Equity and Inclusion) when they apply for tenure track positions. Not to mention shouting down speakers who say things they don’t want to hear. Or the ongoing efforts to silence critics by cancellation.
Which leads to the 303 Creative LLC Web Design case in which the Court held that the state of Colorado could not use its anti-discrimination laws to require an individual to promote a cause in which she did not believe. That would amount to forced speech, the Court held, which is a clear violation of the First amendment. The Court also held that such a law would violate the religious freedom that is guaranteed by the First amendment.
Note that in each of these cases state institutions, or institutions financed by the state, used their powers to violate individual rights. In the affirmative action case, Asian Americans were denied equal protection of the laws; in the Web Site design case, the state of Colorado violated the plaintiff’s right to free speech and the right to freely practice her religion. Colorado did so by viewpoint discrimination.
In both of these cases, the progressive left favored discrimination, either by race or viewpoint, to enforce conformity with the latest academic fads.
In the case of student debt, the Supreme Court held that the Biden Administration had stepped over the line and violated the separation of powers by attempting to cancel student debt to the tune of some $400 odd billion. This clearly would have constituted spending which could only be authorized by Congress.
In his attempt to cancel student debt, the President arrogated unto himself the power to spend freely without the assent of Congress. The power of the purse, critical to the working of the system, would have been nullified. All for the purpose of assuaging the desires of important Democratic constituencies, namely students and teachers unions.
These decisions and the reaction to them are telling. First, these decisions (along with other recent rulings) reel in state power in a way that hasn’t happened in a very long time. All to the good.
Second, based on polling, the results are generally in line with what large majorities of the population prefer. By overwhelming margins the populace is opposed to the use of racial criteria for college admissions. That holds for Democrats, Republicans and Independents; it also holds across virtually all racial groups. Similarly, a recent (June 14) poll conducted by the PEW Research Center found that about 60% of Americans believe that businesses should not have to provide services if doing so suggested support for beliefs that they actually oppose.
Finally, poll results about the student debt cancellation plan are a bit more nuanced. But not a lot. Some polls that oversampled students with outstanding debt found that opinion was about evenly split (in the mid 40 percents) on the merits of the plan. That is to be expected since something like 80% of students with outstanding debt were in favor of cancellation. On the other hand, the CATO Institute published a poll in September of 2022 that claimed majorities opposed canceling student debt if doing so “…raise[d] their taxes, primarily benefit[ed] the wealthy, increase[d] college prices, or cause[d] more employers to require degrees.”
What is so fascinating about all this is that notwithstanding the predictable and inevitable doomsaying, the Supreme Court just went ahead and ruled on the legal merits. That is what it is supposed to do. After all the Court is not a majoritarian institution; on the contrary, it is a brake on mob rule.
That said, the public seems to favor the policies and values implied by the decisions. (The caveats have to do with how the questions are phrased—a not inconsiderable factor among many.) But it seems clear that progressives are on the wrong side of the policy debate, both with respect to the legal merits and how the politics will play out.
All of which suggests that progressive interest groups have captured the Democratic Party and hold the whip hand—in the party—but not the electorate as a whole. Already the progressive bureaucracies of the universities, the government, and public sector labor unions are gearing up to resist the Court’s rulings.
When he is not blathering on about democracy and the rule of law, President Biden, one of the more lawless Presidents we have had (let’s not leave out President Trump here) has already signaled that he intends to defy the Court. Why else would he attack the Court’s legitimacy by saying that this is “not a normal Court” while readying alternative (and equally lawless ways) of achieving progressive goals.
Strap in. It isn’t over. This is not “the beginning of the end”, as Churchill put it. It is “the end of the beginning.”
JFB
