In a 6-3 decision, the six Conservative Justices of the United States Supreme Court (“SCOTUS”) declared that colleges’ use of race as a factor in student admission by Universities (“affirmative action”) is unconstitutional under the Fourteenth Amendment of the U.S. Constitution, which prohibits racial discrimination. To capsulize the fundamental problem with this determination by our highest Court, we would take the liberty of citing a portion of the response by dissenting Justice, Sonia Sotomayor, “… The decision cements a prejudicial rule of colorblindness as a Constitutional principle in an endemically segregated society where race has always mattered and continues to matter.” Stated differently, the decision is erroneous in that it fails to align jurisprudence with reality.
Try as they might, MAGA supporters (judicial and otherwise) would be hard pressed to deny that for centuries, our Nation wrongfully, kidnapped, chained and used black human beings to toil in the cotton and other agricultural fields, as slaves, and be legally assigned the status as mere, chattel property (SCOTUS- Scottsboro case). Their autocratic-style attempts, by literary censorship and opposition to educational instruction regarding the Nation’s sordid history of black enslavement, is analogous to the apocryphal practice of the ostrich, denying empirical reality by hiding his head in the sand.
“Affirmative Action,” (following the Bakke case) was designed and intended to implement the policy to affect the treatment of Black applicants for admission to institutions of higher education, consistent with the fundamental principles espoused in Brown v. Board of Education (1954). A compliant institution of higher learning would, permissibly, consider, in addition to other factors for admission, considerations of race, geography and gender. Traditionally, the most sought-after universities had an established policy of giving preferential consideration for admission, to high-performing, athletes and “legacy” applicants (relatives of prior graduates), but ignored such social and racial factors.
The disapproval of “affirmative action,” (attributable to the votes of the six conservative Justices) was a shocking setback to the historic National effort towards the establishment of racial justice and was hot on the heels of SCOTUS’ scandalous overturn,( similarly, attributable to such hexagonal group of Justices), of the half-century precedential case of Roe v. Wade. The latter ruling, confirming the legality of a woman’s right to an abortion, founded upon her personal right to privacy and self-determination. The unexpected, religious, and conservative influenced, overthrow, was not merely, unconstitutional under the “Establishment Clause,” of the U.S. Constitution and a clear disturbance of the stabilizing, jurisprudential concept of settled legal precedent, but, as well, an autocratic style, invasion of a women’s natural and personal right to choose whether, and when, to give birth.
Regrettably, for quite some time, the once, revered and honorable, highest Court in the land, has, observably, deteriorated, (with the notable exception of the three, eternally outvoted, “liberal-oriented” Justices, Sotomayor, Kagan and Jackson) from a recognized, authoritative and entirely impartial, judicial guardian of the Constitution and of the rights of the American citizen to, a “politicized” entity, unconstitutionally, receptive to the influence of influential third party interests, religious, political and corporate. It is notable that three of the six, (politically, right-wing) Justices were appointed by the deviant and atavistic Trump administration.
Simultaneous with the date of this writing, we were advised that President Biden‘s just and empathic, program of student loan forgiveness, as well, has been declared unconstitutional, by the vote of the larger conservative wing of the high court; despite the fact that this Nation, is precariously, behind other developed Nations, in academic achievement. We would question, regarding the latter determination, what litigant had the required and permissible) standing, as an aggrieved party, to prosecute such a case?
Until recently, we had perceived SCOTUS, with the greatest respect and admiration as the legal watchdog of the Nation and the ultimate protector of the Constitutional rights of American citizens. Its neutral and non-partisan determinations of issues brought before it, assured even-handedness and equitable justice to the Nation, and strictly monitored the Founder’s intention in their establishment of Constitutional architecture, viz., “Separation of Powers,” Executive, Judicial and Legislative Branches.
Thus, in order that any litigant to obtain acceptance of his case for review by SCOTUS, he was procedurally, required to be successful in the preliminary proceeding known as the “Writ of Certiorari,” which, among other mandatory criteria, was to, demonstrate not only, the absence of political issues in the proposed, case for appeal, but the lack of possible legal impact of its determination. The requirement’s foundational purpose was to avoid violation of the Constitutional, “Separation of Powers” provision and had, eternally, been SCOTUS gospel.
Such traditional and salutary policy was strictly followed, until the Bush v. Gore case, (2000) which was concerning the results of a contested election, (procedurally, impermissible, since a “political matter”) was, unprecedentedly, accepted and then determined in favor of the Republican candidate.
Ten years later, the errant, Conservative Majority of the Court, in the Citizens-United case, (2010), irrefutably, demonstrated its blatant violation concerning the High Court’s, historic, prohibition of political issues, and, moreover, did so in a manner which, disastrously affected the fairness and equality of democratic elections. The conservative majority of SCOTUS, stretching law and human logic, and, improperly, yielding to the influence of big business, removed the democratically, equitable, limit on campaign contributions by big business; thus, revealing a new policy of unethical and illegal responsiveness to interest groups. The Conservative-driven ruling, is based upon the bizarre theory, that business corporations, purportedly are “persons” and, accordingly, may not be limited in the amount of political contributions, which would violate their “freedom of speech.” Thus, American elections, by virtue of the removal of the limitation on corporate contributions would thereafter, be, significantly and undemocratically, weighted in their favor.
The Citizens-United case clearly demonstrated three, undemocratic and cynical tendencies of the Conservative Justices, (1) Corporate “personhood” is a commercial fiction, to avoid unlimited liability, of the entrepreneur, not a living, breathing, individual. Every freshman in law school knows this, and one can conclude the cynicism of the Conservative Justices, by such stated, sophomoric reason. (2) The same, clearly, indicates the political intent to favor the influence of one voting population over another, (3) the foregoing are irrefutably, violations of the “Separation of Powers” Clause of the Constitution.
The six controlling, Conservative Justices have, improperly, and unethically, demonstrated irresponsible and unconstitutional favoritism towards lobbied interests, including, religious ( Abortion), political (Citizens United) and the more recent determinations, concerning the destruction of the Nation’s salutary and historically, appropriate policies of Affirmative Action and Student Debt amelioration. (Civil Rights, Economic Equality). From an institutional standpoint, they have effectively, undertaken to ignore precedent and settled law and thereby have improperly and unconstitutionally, arrogated to themselves the authority to legislate policy and new law.
Shockingly, the public media has recently, reported numerous, verified, instances of illegal and immoral, substantial gifts accepted by the members of this hexagonal club of elegant charlatans, from wealthy donors whose financial and business interests have been litigated before SCOTUS. Our astonished, response was mitigated, somewhat, by our recent, empirically, developed, principled disrespect, for our highest court shown by these “August” personalities. Yet, it is mandatorily, important that Congress investigate such public deceit.
Whatever happened to the highly revered, institution and its eminent and philosophically, ethical Justices, such as Cardozo, Holmes, Marshall, Brandeis and Frankfurter?
-p.
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