Is freedom our normal state?
Last week, the US Supreme Court issued three rulings that prompted President Biden to go to the White House podium and announce, “This is not a normal court.” After thinking about if for a few moments, I realized, he’s right, the Court’s decisions this week were not normal and thank goodness for that.
The decisions involved affirmative action used in admissions to public colleges, the free speech rights of a website designer, and repayment of federally guaranteed student loans. The legal issues concerned the Equal Protection Clause of the 14th Amendment, the Free Speech Clause of the 1st Amendment, and the scope of the President’s Constitutional power. The majority in each case applied and enforced the plain language of the Constitution and that is why President Biden was moved to declare this is not a normal court.
It’s not normal because prior courts were inclined to fudge the Constitution’s language in order to advance a progressive left’s social policy.
The affirmative action case involved the admissions policies of Harvard College and the University of North Carolina. While many criteria were applied at both schools, an applicant’s race was used to make the decision whether to admit them. In essence, the argument was that our country continues to be systemically racist, and the structural defect can be overcome only if we grant preference to one racial minority: those of African descent.
In some states, like Washington and California, affirmative action in college admissions was barred by voter initiatives. In a prior case involving the Seattle School District in 2007, its use of race – there Black and White – to place students was declared unconstitutional under the 14th Amendment which says, no State may “deny to any person within its jurisdiction the equal protection of the laws.” In his majority opinion, Justice Roberts famously wrote, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
But as in the Sonny and Cher song, the beat goes on, and many states, schools and governments still used race to allocate benefits in spite of the 14th Amendment’s promise of equal protection. This is the fifth time since 1978 the Court has been asked to rule on racial admissions preferences. Often, the Court went out of its way to excuse or justify exceptions to the plain language of the 14th Amendment, and it would have been normal to do so again. But no longer. Justice Roberts emphasized the point of the most recent decision when he said, “eliminating racial discrimination means eliminating all of it” as if he had to repeat himself to be heard.
In the Free Speech case, a Colorado web site designer who promised to provide web designs to all persons, including gay people, sought a ruling she could not be forced to design a web site that celebrated gay marriage. She would do anything else – regardless of sexual orientation – but she would not be compelled to say something nice about gay marriage. In her suit, she and the State of Colorado stipulated that the issue was speech; it was agreed all design services were “expressive”. The district court and 10th Circuit Court of Appeals, who agreed the issue was “pure speech”, framed the issue as discrimination and ruled that she was not allowed to discriminate. Justice Gorsuch, writing for the majority, framed the issue as one of free speech. He said:
“Colorado does not just seek to ensure the sale of goods or services on equal terms. It seeks to use its law to compel an individual to create speech she does not believe.”
He declared, “the freedom to think and speak is among our inalienable rights.”
Is this what Biden meant when he claimed the Court was not normal? In view of our recent experience with the US government using Twitter, Facebook and legacy media to suppress speech about Covid and the Hunter Biden laptop, one need not be a cynic to believe that is precisely what Biden meant. Consider how far down the totalitarian path we must have traveled to have to be reminded of the centrality of the right to think and speak what we wish.
The Court ruled the state did not have the power compel the web site designer to say something she did not believe. In times past, the Court went out its way to frame issues involving gay rights by avoiding the free speech issue and it would have been normal to do so again. But no longer.
In the student loan case, President Biden issued an order canceling the debt of $400 billion of student loans under a statute called the HEROES Act, which allowed the President to modify the terms of repayment of student loans. But the Constitution grants “all legislative power” to Congress and not the President, and the Court declared the President had no power to simply write off the debt, reasoning the statute he relied on did not expressly grant him that power.
While another recent decision also limited the President’s power to rule by decree absent explicit authority, it would have been normal to let the President do what he wanted. No longer. I for one say, thank goodness.
The progressive left shrieks in response to these decisions and there will be more to come as the Court appears to be seized with a return to basic principles. Equal protection means equal rights for all. Free speech means freedom to think and speak for all. And under our Constitution the power of the three branches of government is granted specifically and exclusively and the limits of each should be guarded jealously.
I am not the first to wonder why many of our countrymen are so willing to give up all these rights. Roger Scruton once noticed, "Václav Havel understood that tyranny is not only imposed from the top down, it is widely embraced by the majority of people who crave to conform and to signal their ideological bona fides." Before that, Erich Fromm and Eric Hofer also noticed the tendency to go along to get along, without much thought of the consequences.
Hopefully we’ve reached a time when the plain language of the Constitution controls the use of government power over us.