President Joe Biden is certainly correct that today’s U.S. Supreme Court “is not a normal Court.”
A six-justice majority shares some deep philosophical and jurisprudential commitments. The court has little interest in preserving precedent. Nor does the court always allow technical doctrines like mootness and standing to prevent it from reaching decisions.
But it is not an unprecedented court. In fact, in some ways the current court is a mirror image of one of the most important periods in Supreme Court history—the years 1953-1969, when Earl Warren was chief justice.
It should be comforting to progressives today that although the Warren Court brought unprecedented and controversial changes to American life, much of that legacy was gradually modified.
This last term should also remind us that, like the Warren Court, today’s justices are not ideological clones. Outside their core commitments, the justices go their own way. This became clear in a flurry of decisions in June.
Contrary to public perception, the court does not rule uniformly against the Biden sdministration. On June 23, by an 8-1 vote, the court rejected a challenge to the administration’s deportation policy, holding that the states challenging the policy lacked standing to bring suit.
Nor is the court uniformly hostile to marginalized groups.
On June 15, the Court upheld, by a 7-2 vote, the Indian Child Welfare Act, which keeps Native American adoptees with their tribes and traditions. The decision was noteworthy because of a strong defense of tribal sovereignty in a concurrence by Justice Neil Gorsuch.
And on June 8, the court held, 5-4, that Alabama had illegally diluted black voting rights in its congressional districting.
Nor does this court simply endorse traditional Republican Party preferences. On June 27, the court upheld, by a 5-4 vote, a Pennsylvania law that requires corporations doing business in the commonwealth to consent to being sued in Pennsylvania courts. This decision treats corporations like people in that physical presence in a state subjects people to the jurisdiction of state courts irrespective of where harms occurred.
The majority in that case was certainly not ideologically uniform. Justice Gorsuch wrote the majority opinion, joined by Justices Clarence Thomas, Samuel Alito, Sonia Sotomayor and Ketanji Brown Jackson.
And the Justices also showed their ideological flexibility in another case, one of the most important cases decided this term. On June 27, by a 6-3 vote, the justices rejected the Independent State Legislature Doctrine, which would have barred state courts from enforcing state constitutional limits on state legislatures in matters pertaining to federal elections.
This case was important because federal courts are already prohibited from deciding partisan gerrymandering cases. If the case had gone the other way, only Congress would have been able to address extreme partisan gerrymandering in drawing congressional districts.
It was significant that Chief Justice John Roberts wrote the majority opinion, joined not only by liberal Justices Sotomayor, Jackson and Elena Kagan, but by conservative Justices Brett Kavanaugh and Amy Coney Barrett.
The court did not relinquish all federal court oversight in this field but decisions by state courts striking down extreme versions of congressional district maps are probably safe.
That is not to say that the conservative justices have relaxed their core commitments.
In June, by identical 6-3 votes, the Court protected a religious web designer’s right to free speech, struck down Biden’s student debt relief effort and, in the case that elicited Biden’s description of the justices, ended affirmative action in college admissions.
But, as controversial as these cases may be, they are in no sense radical departures from existing law.
The free speech ruling was no surprise. The web designer does not sell a simple product, but writes in her own words the story of the couples with whom she works. The majority held that she could refuse to do that for same-sex couples. But the ruling would also protect a left-leaning web designer from being forced to describe how the 2020 election was stolen or that the Jan. 6 protesters were just tourists.
The conservative majority could have dismissed the student loan case for lack of standing, but decided it anyway.
But on the merits, there was always a serious question about the constitutionality of student debt relief through Presidential, rather than Congressional, action. In fact, Roberts’ majority opinion pointed out these doubts out by quoting a 2021 press conference statement by then-U.S. House Speaker Nancy Pelosi:
“People think that the President of the United States has the power for debt forgiveness. He does not. He can postpone. He can delay. But he does not have that power. That has to be an act of Congress,” Pelosi, D-Calif., said.
In terms of affirmative action, consideration of race in college admissions was always a narrow exception to the general prohibition against formal consideration of race that the Court had adopted years ago.
And that exception was itself very narrow. Since 2003, the court has held that race may only be considered a plus factor in an otherwise individualized admissions process. It was by no means clear that colleges were really doing that, as opposed to using disguised racial quota systems.
But in any event, nothing much is likely to change in terms of efforts by colleges to serve deserving students from marginalized communities. Businesses, which were already prohibited from using race as a formal consideration in hiring, have been able to diversify their work force in recent years through recruiting efforts and holistic hiring practices.
Roberts’ majority opinion specifically invited colleges to do the same by urging admissions officials to recognize “challenges bested,” by applicants rather than race as such.
This means that colleges are absolutely permitted to consider an applicant’s attendance at an under-performing inner-city school, the poverty that prevented the applicant from access to SAT preparation classes, the prevalence of violence in the applicant’s neighborhood and the absence of a stable family in the applicant’s life.
The college may even consider race insofar as race has affected the life of that particular applicant—for example arrests for minor crimes that might have been overlooked by the police in a different type of neighborhood.
In any words, there is plenty that colleges can still do. And I’m pretty sure that colleges devoted to diversity and inclusion will adopt just such admissions standards.
It’s not a normal court. But it is certainly one we can live with.
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