Trump and the Fourteenth Amendment

For quite some time now, many have been expressing the opinion that Donald Trump should be disqualified from running for president by virtue of a clause in the Fourteenth Amendment. In recent weeks, a court in Colorado and the secretary of state of Maine have acted accordingly in their respective states.  Now the case is being heard by the Supreme Court, with arguments having been heard on Thursday, February 8.  The majority of justices–and not just the conservatives–showed some skepticism about these states’ right to do that and about the Fourteenth Amendment argument.  I, personally, am not surprised, as I never thought the Fourteenth Amendment argument was very strong.

The Fourteenth Amendment, it should be remembered, was one of the Reconstruction amendments in the aftermath of the Civil War.  In addition to the better-known due process and equal protection clauses, it included the following words in Section 3:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

The argument is that Trump’s actions on January 6, 2021, put him in this category.

Let’s consider what Trump did on that day.  He held a “Stop the Steal” rally where he and others made speeches stating that the election was fraudulent, that Trump was the rightful winner, and that Congress should not certify the electoral vote for Joe Biden.  Moreover, he directly asked his supporters at the rally to march to the Capitol and make their feelings to this effect known.  His audience, as he surely knew, included delegations from several white nationalist extremist groups.  He told this crowd, “You’ll never take back our country with weakness. You have to show strength and you have to be strong.”

Shortly after the insurrection began, Trump sent out a tweet asking his supporters to keep it peaceful.  However, he also spent several hours watching the whole thing unfold without showing any distress about the attack on the Capitol.  When he finally spoke, his words were, “This was a fraudulent election, but we can’t play into the hands of these people. We have to have peace. So go home. We love you; you’re very special.”  (The next day, he put out a video where he changed his tune, assuring everybody that the attackers of the Capitol would be brought to justice–the only time I’ve ever perceived Trump as acting under outside pressure.  It was also in that January 7 video that he assured listeners that there would be a peaceful transition of power.)

I’d like to suggest that the legal question is not one of whether Trump is morally responsible for the attack on the Capitol.  To me, it’s obvious that yes he is.  Everything involving his claim that the election was fraudulent and that his supporters should try to deter Congress from certifying the election results makes him, in my view, grossly unfit to be trusted with the responsibilities of the presidency, and it appalls me that millions of people are still willing to have him in that position.  (Feel free to criticize me for saying this to my students.  When I was in college I was always giving my professors a hard time, “You’re got to be objective, you’re not supposed to be biased,” and I lived by that rule myself until Trump came on the scene.  But I have my limits.  I would feel intellectually dishonest if I kept this to myself, and I think I owe my students honesty.)  But that’s not the legal question that the Supreme Court has to consider.

It seems to me that in order to disqualify Trump from the presidency, it would have to be an open-and-shut fact that Trump himself took part in an insurrection.  And that’s where I think the argument falters.  I consider it significant that special counsel Jack Smith did not include a charge of inciting the insurrection in the indictment he got against Trump for trying to overturn the election results.  I just think there are a few dots that aren’t entirely connected, to be able to say that Trump was so directly involved in the insurrection that the Fourteenth Amendment disqualifies him from being on the ballot.

Again, though, while I don’t think Trump’s actions on January 6 necessarily disqualify him on Fourteenth Amendment grounds from running, I’ll say again that I think it’s sad and scary that those actions aren’t disqualifying him from getting the votes of any significant number of Americans.

Article in TheHill.com, February 8, 2024

NPR report, February 8, 2024

UPDATE:  The Supreme Court overruled the states of Colorado and Maine, but not on the basis of what I wrote about in this post.  Rather, the decision was that state government’s can’t pass judgment on eligibility for any federal office.  That much was unanimous, but the Court also ruled 5-4 that it would take an act of Congress to invoke that clause of the Fourteenth Amendment.

Why Trump Gets Compared to Nazi and Fascist Leaders

In a recent speech, Donald Trump said, “We pledge to you that we will root out the communists, Marxists, fascists and the radical left thugs that live like vermin within the confines of our country.”

In case anybody misses the point, the people Trump is calling “radical left thugs” include the entire Democratic Party.  He undoubtedly agrees completely with Arkansas governor Sarah Huckabee Sanders, who in her Republican rebuttal to President Biden’s state-of-the-union address earlier this year declared that Biden had surrendered the country to “the woke mob.”  So when Trump uses the term “vermin,” he is openly encouraging his supporters to think of the people who don’t share their political vision as being less than human.  It should also be remembered that Trump has regularly called journalists “enemies of the people.”

This kind of rhetoric, this dynamic between a demagogue and his base, can be termed authoritarian populism, and if you carry it to its uttermost conclusions, it amounts to grassroots fascism.  That’s right, you heard me.  I normally avoid using such extreme terms about American political figures, but we’re not living in normal times, and I totally regard the terminology I’m using as being applicable.  Moreover, I would consider myself to be intellectually dishonest if, in the name of being “objective,” I failed to let students know that this is how I view the situation.

Let me quickly outline the elements of authoritarian populism that I see going on, and again, I’m talking about a mindset that is shared by Trump and the people who want him back in the White House.  Those elements are:

–the perception that the country is under siege by sinister, conspiratorial forces, including both foreign enemies and portions of the country’s own population;

–the feeling that the very identity of the nation depends on having a strong leader who will fight those forces and protect the true Americans from being victimized by them;

–belief in wild conspiracy theories about political opponents, including, in the present instance, those which link the Democratic Party with child-trafficking rackets and with the desire to bring in as many unauthorized migrants as possible to “replace” the true patriotic Americans;

–a willingness, even a sense of necessity, to undercut the normal checks and balances and civil liberties protections in order to allow the strong leader to fight that fight unhindered; and

–the opinion that sometimes it’s necessary to resort to violence and to relaxing the rule of law in the face of the perceived threats to the nation’s existence (i.e., existential threats) that must be fought against.

In the NPR report that I link below, Trump is heard defending himself against comparisons to Nazis by insisting on what a friend he is to the Jewish people.  I’d like to suggest that this misses the point completely.  It’s beside the point whether Trump is anti-Semitic, or even how racist he is.  I actually think that the main kind of bigotry he panders to is not so much racial as cultural and political.  That is, the people he calls “vermin” are those people, whether Black or white, Jewish or gentile, who do not share his conservative nationalistic vision of the nation, but rather, believe in so-called “woke” ideologies.  He’s encouraging his followers to regard themselves as the true Americans, the ones who truly love their country, and to think of liberals as their enemies, as “vermin.”  (And I would add that, while Trump’s base includes many who do not espouse racist/anti-Semitic views, they don’t seem to mind being part of the same coalition as groups like the Proud Boys that are all about that.  I would also add that, where immigration and the border are concerned, racism is exactly what his rhetoric is about.)

In a democracy, you can expect the pendulum to swing back and forth between liberal and conservative outcomes in the elections.  In a democracy, all people have to be willing to share the space and the national identity with people whose political opinions and policy preferences are very different from their own.  In a democracy, no party wins or loses all the time.  Political extremism is commonly defined as a rejection of those principles; an insistence that one party, one ideology, must be in power.  And that is the mindset that Trump panders to.

This post was inspired by this NPR report which ran Friday morning, November 17, 2023.  I urge you to give a listen, even though the voices you’ll be hearing are clearly those of people whom Trump calls “enemies of the people.”

Shutdown Averted but More Trouble Ahead

On Tuesday, November 14, 2023, the House of Representatives passed Continuing Resolution (CR) to keep the government funded into the New Year.  The Senate passed it the next day, and President Biden signed it.  Part of the government is funded through January 19, and the rest until February 2.  The one part of government expense that’s taken care of for the entire fiscal year is the farm bill; everything else requires further action in early 2024.

The CR was very much a bipartisan action.  In the House, it passed 336-95, with 90 Republicans and 2 Democrats voting against it; in the Senate, it was 87-11, with 10 Republicans and 1 Democrat voting no.

In making this happen, newly installed House Speaker Mike Johnson did pretty much the same thing that his predecessor Kevin McCarthy had done a few weeks earlier–which led to McCarthy’s swift ouster.  And while the hardline conservatives in his party don’t seem to be itching to remove Johnson as Speaker at the moment, they are also letting him know that he can’t keep on doing this if he wants to keep their support.

Realize, it’s just a tiny handful of Republicans in the House who would rather shut down the government than compromise with the Democrats, or even the less hardline Republicans, on the budget.  But with the narrow majority that the Republicans hold in that chamber, there are enough of them to block any bill that doesn’t have any Democratic support.  And they are insistent that the bill the House passes must be a bill that the Republicans all agree on, not a bill that Republicans and Democrats together form a majority on.  And this is in spite of the fact that any bill that passes the House is going to have to be reconciled with a bill passed by the Senate, where the Democrats are in the majority, before it can be sent to the president for his signature.

What the hardliners in the House apparently want is for their party, rather than compromise with the Democrats, to stand its ground for an ultraconservative budget that would include some policy-related measures that the Democrats call “poison pills,” including provisions unfriendly to immigration, abortion rights, and LGBTQ+ interests.  They apparently want to shut down the government until the Democrats cave in completely to their demands.  And because no such cave-in is likely, what we can expect to see in January is either of two things: either another bipartisan budget renewal, which could be followed by a vote to remove Mike Johnson from the Speakership, or a government shutdown.

Yahoo News story, November 19, 2023

 

 

Update: The House Has No Speaker

It needs to be noted that most Democrats in the House never favored the new rule that allows just one member of the House to call for a vote to vacate the Speakership.  Having that rule was a concession that Kevin McCarthy had to agree to in order to get the post last January.  So when Representative Matt Gaetz, hardline conservative from Florida, made that motion and the vote was taken, one might have expected at least some of the Democrats to vote No on removing McCarthy from the post.  But no, they didn’t.  In spite of the fact that McCarthy averted a government shutdown by bringing a bill up for a vote that Democrats could support, Democrats in the House regard McCarthy as someone they can’t trust to keep his word.  Thus, even if McCarthy had offered them some concessions to solicit their support–which he didn’t–they would not have trusted him.

The plan now is to hold a vote for Speaker on Tuesday, October 10.  The question is whether the Republicans can all agree on someone.  The hardliners, of course, want one of their own to be Speaker, someone like Jim Jordan, but since most Republicans supported McCarthy, it’s questionable how easily the hardliners will get their way.  If the hardliners and the majority of the party can’t agree on a Speaker, then Republicans might make the very out-of-the-ordinary move of working out an agreement with the Democrats.  Given that the Speaker has to be a Republican when the Republicans have a majority in the House, Democrats might be persuaded to help install someone who’s not as extreme as Jim Jordan, someone they can work with.  But given that there’s an impeachment inquiry over Biden right now, bipartisan agreement on leadership isn’t very likely.

Article in Politico, October 4, 2023

Edward Blum Strikes Again

Last spring (2023), conservative lobbyist Edward Blum successfully persuaded the Supreme Court to forbid the consideration of race as a factor in admissions to ensure diversity on the campuses of elite, competitive colleges and universities.  (He’s the same activist who, a few years ago, tried unsuccessfully to achieve that with the Abigail Fisher case in Texas.)  Now, he’s going after a venture capital firm that is trying to increase the number of successful private businesses that are run by Black women.

Racial conservatism, it needs to be remembered, is the ideology that accepts Supreme Court rulings like Brown v. Board of Education and federal laws like the Civil Rights Act of 1964, but argues that the problem of racial inequality has been solved and further corrective measures are not necessary and proper.  Moreover, to racial conservatives, any special effort to help African Americans and other legally protected groups get ahead constitutes discrimination against whites and against other population groups that aren’t in the protected categories.  (In the college admissions case, it was Asians as well as whites.)

So Edward Blum, with his group the American Alliance for Equal Rights, filed suit against the Fearless Fund for launching its Strivers Grant Contest, which was to award grants of $20,000 to selected firms that had at least one woman of color in their top leadership.  And, pending the outcome of a trial, a three-judge panel on the Eleventh U.S. Circuit Court of Appeals has voted 2-1 to order the program paused.

Story on NPR, October 3, 2023

Shutdown Avoided (or Postponed); McCarthy Faces Likely Ouster

It looked as if there was going to be a government shutdown, but at the last minute it was avoided.

In the days leading up to Saturday, September 30, House Speaker Kevin McCarthy was trying to get the Republicans in the House to pass either a Republican budget for the year or a Republican continuing resolution (CR) that would keep the government open while further haggling took place.  Although it was a Republican bill, one that had no support from any Democrats, it still wasn’t conservative enough for the hardliners of the party, and so it didn’t pass.  And it has to be remembered that even if such a bill had passed, it still would have had to be reconciled with the Senate, where the Democrats have the majority, which means that the Republicans would have had to come to terms with the Democrats eventually anyway.

So when the Republicans in the House couldn’t agree on a budget bill, McCarthy proceeded to do what the hardline Republicans consider unforgivable:  he worked out a bipartisan continuing resolution with the Democrats and passed it, late Saturday afternoon.  The Democratic-majority Senate proceeded to pass it, and President Biden signed it.  It keeps the government running for 45 days, though mid-November.  Alongside the regular spending, there’s $16 billion for domestic disaster relief.  There’s no additional aid to Ukraine in this resolution, but the Democrats are hoping to get a separate bill authorizing that.

One of the most hardline of the hardline Republicans is Representative Matt Gaetz of Florida.  He intends to get Kevin McCarthy ousted from his position as Speaker.

When things are normal, at the start of each new session of Congress, each party holds a caucus to hold nominations for leadership, and then each party votes together on the House floor.  The top nominee for the majority party gets voted as Speaker, and the top nominee for the minority party becomes House Minority Leader.  But at the start of this year, hardline Republicans (not all of them, but enough to make a difference) withheld their votes from McCarthy until the 15th round.  Among the concessions they demanded was that throughout the session, any one of them can make a motion to vacate the Speakership and demand a new vote.  That’s what Matt Gaetz plans to do this week.

When the vote is taken, McCarthy will need the votes of the majority of the whole House, which means he’ll need just about every Republican vote.  If he doesn’t get it, the position will be vacant until a majority can agree on a successor.  Presumably, the hardliners will want a hardliner in the position.  But will the other Republicans go along with it?

And by the way, it isn’t even as if McCarthy were a liberal Republican.  He’s not.  In fact, for the most part he’s been fairly loyal to the party’s new patron saint, Donald Trump.  It’s McCarthy who called for an impeachment inquiry into Joe Biden, and it’s McCarthy who called for the investigative hearings accusing the Justice Department of being weaponized for the Democratic Party against Trump.  When the FBI raided Mar-a-Lago last year, McCarthy immediately accused the FBI of political motivation.

But working with the Democrats, even under those circumstances, is a step too far.

The question has been raised of whether some Democrats will vote with the Republicans to keep him in the Speakership.  That’s not looking likely.  McCarthy has stated that he doesn’t intend to offer them any concessions, and although he worked with them for this continuing resolution, they’re not very happy with him in the bigger picture.

Unless a majority of House members can agree on a Speaker, there may well be a leadership crisis for a while–and this is during the time when they need to be getting busy on a budget to fund the government after mid-November.

It should be mentioned that the national debt is over $33 trillion and growing.  The Republicans are more concerned about it than the Democrats, but there are certain things the Republicans won’t hear of cutting, mainly defense spending.  The Democrats, meanwhile, still want various social welfare programs to stay operational.

Series of articles on avoided shutdown in Politico, September 30, 2023

Article on McCarthy’s situation in Politico, October 3, 2023

Not-So-Fun Times in the House

Two of the goings-on in the House of Representatives in this week now ending serve to show how far removed things are from any kind of bipartisan cooperation and respect.  There have always been times when differences between Republicans and Democrats got personal and nasty, but it comes in ebbs and flows, and it’s at a high point now: a high point of nastiness.

On Wednesday, September 20, Attorney General Merrick Garland appeared before the House Judiciary Committee.  With the Republicans in the majority in the House, every House committee has a Republican majority and Republican chair, and that committee’s Republican chair is Rep. Jim Jordan from Ohio.  Jim Jordan was one of the lawmakers who voted on January 6 to reject the electoral vote for Joe Biden, and he was one of the Republicans whom House Republican leader Kevin McCarthy wanted to appoint to the committee investigating the January 6 attack, whom Nancy Pelosi (Speaker of the House at the time) refused to allow.  Jim Jordan is very pro-Trump and is an attack dog on Trump’s behalf, against Biden and against the Democrats.  That’s whose committee Merrick Garland had to face on Tuesday.

Like other Republicans, Jim Jordan regards the indictments of Trump as being politically motivated and thinks the Justice Department has been persecuting Trump while protecting President Biden and his son Hunter.   The phrase “two-tiered system of justice” keeps being invoked.  The fact that Hunter Biden had just been indicted for lying about his drug use on an application for a firearms permit did not impress Jordan and his comrades any.  Jordan grilled Garland on certain procedural points in the investigation of Hunter Biden, accusing Garland of handling matters in a way assured to be as soft on the president’s son as possible.  He also, at one point, made the false statement that Trump had voluntarily returned all the classified documents he had at Mar-a-Lago and had cooperated with everything the government had asked him to do in its investigation.

Garland wasn’t about to comment on specific prosecutorial decisions, and it should be noted that in the case of both Hunter Biden and Donald Trump he appointed special counsels and let them use their own discretion in their respective matters.  He did insist that he was not the president’s personal lawyer, then added that he was not Congress’s prosecutor either.

While all this is happening, the inability of Congress to pass a budget or even a continuing resolution by the end of September makes an October 1 government shutdown seem increasingly likely.  The only way there won’t be a government shutdown is if the Republican-majority House and the Democratic-majority Senate can agree on a set of measures that President Biden is willing to sign.  But at the moment, the House Republicans can’t even agree amongst themselves on a budget bill worthy of even being brought to the floor for debate.  A small handful of hardline conservative Republicans–essentially the same ones who tried to block the election of Kevin McCarthy as Speaker–are blocking even the procedural votes to bring such budget bills up for debate on the House floor.  The bills that McCarthy wants the House to pass are not conservative enough for the hardliners of the party, while at the same time being much too conservative for the Democrats to entertain.  So there are two seemingly impossible hurdles:  First the Republicans in the House have to agree among themselves on funding levels for various programs; then the Republicans  and the Democrats have to come to some agreement.  And McCarthy knows that if he concedes even a quarter of an inch to the Democrats, his days as Speaker are likely to be numbered.

Article in TheHill.com on Garland’s testimony, September 20, 2023

Complete C-SPAN video of Merrick Garland before the House Judiciary Committee, September 20, 2023

Article in TheHill.com on shutdown prospects, September 22, 2023

 

First Republican Debate, August 23

Much about the current political scene is bizarre, including the fact that when the Republican candidates for president have their first primary debate next Wednesday, August 23, starting at 9 p.m. eastern time on FOX, the frontrunner most likely won’t be taking part.  What’s more–and this is really unprecedented–the debate is taking place two days before the deadline said frontrunner  to turn himself in down in Georgia for a racketeering indictment.

To be in the debate, a candidate has to have scored at least 1% support in three approved national polls or in two national polls plus two polls from Iowa, New Hampshire, Nevada, or South Carolina, the states with the first four primary elections this coming year.  The candidate also has to have gotten contributions from at least 40,000 different donors, including 200 donors in each of 20 different states.  As things stand now, eight candidates have met the criteria:   Trump, Florida governor Ron DeSantis, former VP Mike Pence, South Carolina senator Tim Scott (who is African American), former South Carolina governor Nikki Haley (the only woman), biotech entrepreneur Vivek Ramaswamy, former New Jersey governor (and former Trump ally) Chris Christie, and Doug Burgum (I’ve never heard of him before, but he’s the governor of North Dakota and a wealthy software entrepreneur).

One thing that needs to be noted is that several of these candidates are encouraging their supporters to feel under siege by a sinister force called “wokeness.”  DeSantis boasts that Florida is where wokeness dies, and to drive that point home he and the legislature have started exerting enormous control on the public schools and, to some degree, the state colleges and universities, making sure that gender and sexuality aren’t discussed in the public schools and that transgender youth are addressed by their pronouns of birth, not of current orientation or choice.  Nikki Haley has called “wokeness” the worst pandemic, and Ramaswamy is the author of a book titled Woke, Inc.: Inside Corporate America’s Social Justice Scam.  It would seem that whoever gets the nomination, culture wars will be a big part of the campaign next year.

And then there’s Mike Pence.  Trump’s supporters consider him a traitor for not trying to stop the electoral vote count on January 6, 2021 (even though he had no constitutional power to do any such thing), and although he speaks proudly of the Trump administration’s policy accomplishments, he has also adopted the phrase “too honest” as a slogan, ever since it was disclosed that Trump had accused him of being too honest in the days between the election and the electoral vote count.

Most of these candidates have no realistic chance of getting the nomination.  Moreover, as things stand now,  Trump is on track to get it if he stays in the race.  What remains to be seen is whether and how much the fact that he has been indicted for multiple felonies in four different places will complicate things.  There’s also been some speculation on whether Trump will find a way to steal Republican attention away from the Wednesday night debate, possibly by doing a Tucker Carlson interview on Twitter (X) the same night or by making Wednesday the day he makes his appearance in Georgia.

If the moderators are really doing their job, their questions will focus on real policy issues and will to some degree probe the candidates’ knowledge of what they’re talking about.  However, I also think it’s inevitable that we’ll be hearing questions designed to give the debate entertainment value, which will include culture wars issues and attitudes about Trump’s indictments.  It will definitely be bizarre: bizarre if Trump is absent, and also bizarre if he makes an appearance.

Article from a Milwaukee news outlet, August 16, 2023

Article on the fivethirtyeight website, August 17, 2023

 

 

 

Supreme Court Update: The End-Term Rulings

For the most part, we really do have a conservative Supreme Court.  The six conservative (i.e., Republican-appointed) justices aren’t all equally hardline or equally consistent in their conservatism, but when they do issue a ruling that gives conservatives exactly what they want, it’s no surprise.  Even so, as noted before, ideology isn’t always the guiding force.  Let’s consider the last batch of rulings that they’ve given us as they wrapped up the 2022-23 session.

Moore v. Harper, on independent state legislature theory

In Moore v. Harper, the Court ruled that where the Constitution says that the state legislatures will determine the rules for election of representatives to the House, that doesn’t mean that the state legislatures have exclusive and absolute control over it, but rather, that the enactments of a state legislature can be subject to judicial review by the state’s courts.  Thus, it was fully permissible for North Carolina’s state supreme court to rule that the congressional maps drawn by the state legislature violated the state’s constitution because of the extreme partisan gerrymandering.  It was a 6-3 decision written by Chief Justice John Roberts.

Two things need to be noted about this case.  First, it was a surprise to some that the Court ruled in this case at all, because the case had already been rendered moot.  A newly reconstituted state supreme court in North Carolina had reversed the decision that was being appealed.  Justice Clarence Thomas made a big point of this in his dissent.

Second, Chief Justice Roberts left the door open to future cases in federal court challenging state court rulings on state legislative enactments on elections.  While state courts do have power of judicial review over such enactments, “state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.”  He declined to make the rule any more specific than that, but that sentence in the decision could be seen as foreshadowing future cases where a federal court has to decide whether a state court has transgressed those bounds and arrogated to itself that power.

Even so, it’s significant that a majority of justice on the Court are not supporters of independent state legislature theory.  It should be remembered that this was one of the key tools used by members of Congress who challenged the electoral vote in the 2020 elections.

Article on SCOTUSblog, June 27, 2023

Full text of the decision

303 Creative LLC v. Elenis:  Refusing custom service to gay couples

It should be remembered that in the 2018 Colorado baker case (Masterpiece Cake Shop v. Colorado), the Court ruled in favor of the baker who refused to provide a custom wedding cake to a gay couple, but did so without dealing directly with the merits of the case.  Now, the Court has officially ruled that private entrepreneurs who sell their creative talents to couples getting married can deny their services to same-sex pairs.  This ruling has all six Republican appointees on one side and all three Democratic appointees on the other.  The ruling is in favor of Lorie Smith, a Christian website designer who wants to expand her business to start making websites for couples getting married, but only man-woman couples.  Colorado’s law would require her, if she makes wedding websites, to include gay couples; she sued, claiming that this constraint on her earning potential violated her religious freedom.   Six justice agreed.

SCOTUSblog article, June 20, 2023

Full text of the decision

The Affirmative Action Cases

The Court ruled that colleges cannot take race into account in college admissions.  (Up until now, the Court had said that race could be considered as long as there were not numerical quotas, and as long as a system that took race into account could withstand “strict scrutiny.”)  This would appear, at first glance, to spell the end of affirmative action, but there’s still a loophole:  Justice Roberts noted in his decision that a college can still consider an applicant’s essay discussing how he or she has been affected by his or her racial background.  It needs to be remembered that diversity of background and experience is of interest to college admissions departments, with or without actual racial categories.  Even so, opponents of affirmative action are celebrating it as a win, and those who favor it are taking it as a brutal defeat.  Critics of the decision believe that, even with that loophole, the number of African American students at elite, competitive colleges, enjoying the job benefits that come from getting diplomas at those institutes, will be reduced.  It should be noted that these two cases (one involving Harvard, using the Civil Rights Act of 1964, the other involving the University of North Carolina, using the 14th Amendment) were funded by the conservative activist Edward Blum, the same one who just a few years earlier was bankrolling Abigail Fisher’s challenge to affirmative action at the University of Texas.  All six Republican appointees agreed on the ruling.

SCOTUSblog article, June 29, 2023

CNN article, June 29, 2023

Full text of the decision

Biden v. Nebraska: Student Loan Forgiveness Program Torpedoed

The Court struck down President Biden’s plan to forgive a large portion of student loans.  This ruling was also 6-3.  The question was whether the HEROES Act, in giving the Department of Education power to modify student loan arrangements, gave the administration the power for the kind of massive loan forgiveness program that Biden had announced.  The conservative majority said that no it didn’t.  Biden has said he will still find ways to reduce student debt.

SCOTUSblog article, June 20, 2023

Full text of the decision

On the Supreme Court, Ideology Isn’t Everything

We routinely talk about the nine justices on the Supreme Court in terms of the conservatives (of whom there are six at present) and the liberals (three). Indeed, there have been plenty of rulings in which the conservatives were all lined up on one side and the liberals all on the other.  (We also tend nowadays to use the terms “liberal” and “appointed by a Democratic president” interchangeably, though that hasn’t always worked.)  There have also been rulings where we spoke of one of the conservatives voting with the liberals:  Anthony Kennedy in the gay marriage case, John Roberts in the first major Obamacare case.

But it would be a mistake to take it as a law of physics that whenever there’s a case that involves an ideological issue, the justices will always vote according to which outcome is most convenient for their ideology. Sometimes a compelling principle of rule of law wins out, and sometimes a lawyer’s arguments are just persuasive enough to win over justices who would not be expected to support their cause.

Consider immigration. One would expect conservatives to favor the toughest immigration policies, and thus the toughest deportation policies. Thus, when President Biden directed Immigration and Customs Enforcement (ICE) to concentrate on certain categories of undocumented immigrants for deportation–dangerous criminals, suspected terrorists, and recent arrivals–and when the states of Texas and Louisiana sued to block this policy–one might expect the conservatives to be on the side of Texas and Louisiana.  However, on Friday, June 23, the Supreme Court ruled 8-1 that Texas and Louisiana had no standing to sue in this matter and that Biden’s executive order could take effect.  (Samuel Alito was the one dissenting justice.)  (NPR report, June 23, 2023; full text of the decision)

A week earlier, the Court ruled that the Indian Child Welfare Act, requiring that Native American children up for adoption should be adopted by Native American, rather than non-Native, parents whenever possible, was constitutional and could stand. This case also involved a challenge from Texas, and it was also decided on the basis of standing to sue. In other words, in both cases, the point was that it was a policy area where the federal government had jurisdiction, and the states could not claim that they had a stake in the matter. This was a 7-2 decision, with Samuel Alito and Clarence Thomas as the dissenters.  (SCOTUS Blog, June 15, 2023; full text of the decision)

Also the previous week, two conservatives joined the liberals in a decision involving interpretation of the Voting Rights Act of 1965, as amended in 1982, that surprised many observers. Contrary to the usual ideology of racial conservatism, those two conservative justices–John Roberts and Brett Kavanaugh–upheld the legitimacy of African Americans’ having a distinct identity and interest, and of drawing congressional district lines in a manner expressive of that interest.

The one thing that makes that Voting Rights Act case not quite so surprising is that there was already substantial case law precedent in its favor, and justices will sometimes (not always) follow the rule of stare decisis, the principle that the Court should follow its own precedents. But the 2020 Bostock decision was quite another story. In that decision, not one but two conservatives joined the liberals in a very novel and unprecedented reading of the Civil Rights Act of 1965 to apply its prohibition of employment discrimination “on the basis of sex” to gay and transgender persons. In that case, the opinion was written by Neil Gorsuch–who is hardly known for being a liberal, and yet it could easily be seen as a very liberal opinion. So although for the most part we have a 6-3 conservative Court, there are some surprises here and there.

This recent article in Politico considers the current Supreme Court in relation to ideology and the absence of perfect ideological consistency.

At this writing, we’re still waiting to see what the Court is going to do with affirmative action in college admissions.