QUOTE: The ink is barely dry on the Supreme Court's decisions on religious freedom and affirmative action. That hasn't hampered instapundits from offering their own decisions. "An extremist minority" has "displayed a willful ignorance of our reality." I haven't found polemics denouncing "activist courts," but that's probably because I can't stomach searching for such unhinged screeds. But is every decision of the Court from activists? Are they legislating from the bench, to recall another favorite line from the party of the recently gored ox? Of course, it's a bit rich to call the Supremes "extremists," when even Justice Jackson joined a unanimous Court in upholding the free practice of religion.
Justice Thomas' concurrence in Students for Fair Admissions is a classic study in legal analysis. He walks step by step through the colorblind nature of the Constitution. He notes that the Fourteenth Amendment "ensures racial equality with no textual reference to race whatsoever." (Emphasis in the original.) He walks through the broad and long-standing legal identity between citizenship and equality. The arguments both for and against various wordings are fully exposed. Then he dissects the "antisubordination" view "that the Amendment forbids only laws that hurt, but not help, blacks." This is radically opposite to the colorblind origins and intentions of the Reconstruction Amendments. This view is a policy preference but cannot be supported as law.
Justice Thomas then addresses the arguments of the universities and his leftist opponents on the Court. Remedies at law require compelling reasons to discriminate based on race. But despite many years of developing the argument that "diversity" has educational benefits, Harvard and UNC are still unable to show this. Instead, they present magical thinking. But even if the universities could show benefits, the law requires that they show that those benefits clearly outweigh the harms to others created by this discrimination. And this they cannot show. Finally, the individual students who benefitted from racist admission policies are not the victims of identifiable discrimination that can be legally remedied by being admitted. Thus, there is no lawful basis presented to discriminate based on race. In short, "courts have an independent duty to interpret and uphold the Constitution." Indeed, this is the sine qua non of the law. "Purchased at the price of immeasurable human suffering, the Fourteenth Amendment recognizes that classifications based on race lead to ruinous consequences for individuals and the Nation."
By way of contrast, Justice Jackson's 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." Somehow, we are trapped in a fundamentally racist society. She effectively denies Justice Roberts' comment in 2006 that "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." Her solution appears to be "to unquestioningly accede to the view of elite experts and reallocate society's riches by racial means as necessary to 'level the playing field,' all as judged by racial metrics."
Justice Jackson demonstrates most vividly the contrast between legal analysis and activist rhetoric. Jackson's dissent is based not on law but on policy. And this runs right into the Scylla and Charybdis of the Constitution. On one side, the highest law in the land, the Constitution, stands directly athwart her aspirations. On the other, the Constitution forbids the Courts to enter the realm of policy. That remains exclusively the purview of Congress.
For the moment, Donald Trump shines brightly over America. He has given us a Supreme Court that actually settles cases in law.
