Supreme Court exposes U.S. democracy’s inner rot

The Supreme Court’s approval ratings plummeted to historic lows in recent months, as evidence emerged showing Justices Clarence Thomas and Samuel Alito accepted lavish travel and gifts from Republican megadonors. Moreover, neither judge disclosed these gifts nor recused himself from deciding cases involving these same gift-givers. And the allegations of impropriety have begun to multiply. For example, Alito’s wife leased land to a major oil and gas company for drilling—and Alito did not recuse himself but instead voted to further erode the Clean Water Act, which could financially benefit his family.

A June Quinnipiac poll showed only 29 percent approved while 59 percent disapproved of the Court overall. In an NBC News poll, 61 percent of all voters surveyed (and 80 percent of female voters age 18-49) disapprove of the Court’s Dobbs v Jackson decision overturning the Constitutional right to abortion a year ago.

It is no exaggeration to say that the Supreme Court’s legitimacy is teetering toward the edge of a cliff. But the right-wing fanatics currently enjoying a 6-3 supermajority in the Court do not allow such minor considerations (like accountability) to deter them from achieving their main goal: turning back the clock in U.S. society to the 1950s era, when LGBTQ people were forced to stay in the closet; college students were wealthy, Christian, and white; racial segregation still flourished; and, of course, abortion was illegal.

And overturning legal abortion was just the beginning. The Court’s reactionary majority issued several new body blows to justice on June 29th and 30th—overturning a law offering partial-forgiveness of student loans; allowing private businesses to discriminate against LGBTQ people; and banning affirmative action in education.

Each of these cases will have far-reaching ramifications. And it can easily be argued that these three Supreme Court rulings, described below, were decided on at least some questionable legal grounds. David Dayen, executive editor of The American Prospect, recently told Democracy Now, “So, you know, a real similarity of — we talk about the Supreme Court’s corruption in terms of, you know, going on junkets and things like this, but, I mean, maybe a deeper corruption is the fact that they seem to not check the basic facts in these various cases, and they’re ruling on things that aren’t legitimate in some way.”

Student loan forgiveness

On June 30th, the Court struck down the Biden administration’s modest student loan forgiveness plan, which would have allowed more than 40 million people overwhelmed by student debt to cancel between $10,000 and $20,000 in federal loans. In this case, the problem was a stated plaintiff, the Missouri Higher Education Loan Authority, didn’t wish to be a plaintiff.

As Dayen described to Democracy Now!,

Missouri Higher Education Loan Authority had nothing to do with this case — didn’t file it, didn’t solicit it, didn’t know it was happening and didn’t know they were being used as a substitute for standing for the state of Missouri, until they read about it in news reports. And there are internal emails between employees of MOHELA saying, “We were opposed to this move, but we couldn’t do anything about it. The Missouri state attorney general needed to claim that our borrowers were harmed so that they could have standing in the case.”

Anti-LGBTQ discrimination as “free speech”

On the same day, the Court upheld the claim of a Colorado website designer that her free speech rights were violated when an LGBTQ couple asked her to create a wedding website for them—because she objects to same sex marriage. It turns out that this web designer had never actually created a wedding website, which means that any “damage” she claims is strictly hypothetical (i.e., she has no judicial standing to sue). In addition, it turns out that the couple she alleges requested the wedding website is entirely fictional.

This little tidbit was discovered when Melissa Gira Grant, a staff writer at The New Republic, picked up the phone and called the phone number listed as that of “Stewart”, who allegedly requested the wedding website. When he answered the phone, he told Grant he had never heard of the case and was already married with a child. He complained, “But somebody’s using false information in a Supreme Court filing document.”

Apparently, no one else had bothered to fact-check on Stewart before Grant did. Nevertheless, the Supreme Court majority didn’t seem bothered by the whole misunderstanding and decided in favor of the website designer.

The website designer was represented by attorneys from the right-wing legal powerhouse Alliance Defending Freedom (ADF), which happens also to have provided the model for Mississippi’s anti-abortion law that led to the overturning of Roe v Wade a year ago. And Amy Coney Barrett apparently also has ties to the ADF.

Banning Affirmative Action

But the Court’s most resounding blow was inflicted on June 29th, when it struck down “race-conscious” affirmative action programs at Harvard University and the University of North Carolina—roughly 50 years after such programs came into being. Simply put, it is now illegal for university admissions offices to consider race—even as just one of many factors in deciding which students to admit.

An amicus brief submitted by more than 30 liberal arts colleges concluded, “Research has shown that the elimination of race-conscious admissions policies at highly selective institutions would have a drastic resegregating impact. Black enrollment would likely decline between 50% and 70%; the probability of Black applicants receiving offers of admission would drop to half that of white students; and the percentage of Black students matriculating would drop from roughly 7.1 percent of the student body to 2.1 percent.”

And there is a very strong likelihood that this ruling will quickly spill over in affirmative action in hiring and other affirmative action programs far beyond higher education, reaching a level of racial segregation not seen since Jim Crow.

Janelle Wong, director of Asian American Studies at the University of Maryland, pointed out the hypocrisy of the Students for Fair Admissions case against Harvard, which links white and Asian students as equal victims of racial discrimination because of race conscious admissions policies.

[T]he group suing Harvard intentionally went to Asian Americans to provide cover for its white supremacist agenda. And there’s evidence that the person who brought this case, Edward Blum, actually went to an open dinner and said, “I need to find an Asian American plaintiff.” And many Asian Americans — certainly not all, but way too many — fell for the trap.

Civil rights lawyer Mark Rosenbaum gets it right: Race blind is blind to systemic racism. And the truth is that the lower courts found no evidence of racial discrimination against Asian Americans. Not one single Asian American student testified to racial discrimination. Not one single Asian American came forward because they were rejected due to affirmative action.

Edward Blum has been battling affirmative action and the Voting Rights Act for many years and was behind the lawsuits against Harvard and University of North Carolina (UNC). He heads a one-man right-wing organization organization known as Project on Fair Representation, which is based in Washington, D.C His legal fees are covered through the support of the conservative nonprofit DonorsTrust. He likens his role as a legal activist to that of a “matchmaker”, saying, “I find the plaintiff, I find the lawyer, and I put them together, and then I worry about it for four years.” Blum founded Students for Fair Admissions, which filed the lawsuits against Harvard and UNC in 2014.

In his ruling, Chief Justice Roberts betrayed his own ignorance when he misused the equal protection clause of the 14th Amendment, “No State shall… deny to any person within its jurisdiction the equal protection of the laws,” to strike down affirmative action. His ruling asserted, “Eliminating racial discrimination means eliminating all of it,” perhaps unaware that the equal protection clause was specifically intended to remedy discrimination against Black people. Nevertheless, the Court voted 6-2 and 6-3 that Harvard and UNC had violated the 14th Amendment’s equal protection clause—presumably because they discriminated against white people.

Yet the Court left untouched the constitutionality of so-called “legacy” admissions, which favor the children of wealthy alumni and generous donors in the admissions process. As Vox reported, “The Harvard v. Students for Fair Admissions case brought attention to the fact that between 2010 and 2015, the admission rate for legacy applicants at Harvard was higher than 33 percent, compared to 6 percent for non-legacies. More than 20 percent of white students admitted to Harvard during that period had legacy status.”

The invention of “reverse racism”

It is not a big surprise that just one year after overturning legal abortion, the Supreme Court set its sights on banning affirmative action, the biggest victory of the civil rights movement of the 1950s and ’60s.

Affirmative action was a product of the decades-long civil rights struggle, which forced the U.S. government not only to acknowledge racial inequality but also to make at least a minimum effort to address it. President John F. Kennedy created a Committee on Equal Employment Opportunity in 1961 and used the term “affirmative action” to refer to “affirmative” government action against discrimination in employment. In 1965, President Lyndon Johnson barred employment discrimination based on race, color, religion, and national origin by all those receiving federal contracts and subcontracts. Other programs in the public and private sectors, along with institutions of higher education, came in the following years.

In 1978, the U.S. Supreme Court made its landmark Bakke decision, which set in motion decades of attacks on affirmative action programs. The Court ruled that Allan Bakke, a white male, had been denied a place at the University of California at Davis medical school due to “reverse discrimination” policies which victimized whites. The medical school’s policy of setting aside only 16 of its 100 annual openings for non-white students was found to be discriminatory against “better qualified” whites. But several important facts about the Bakke case never surfaced in the mass media. The first is that the medical school at Davis also set aside a certain number of places each year for the sons and daughters of wealthy (white) alumni. Secondly, 36 of the 84 white students admitted the year Bakke applied had lower test scores than Bakke. Bakke, moreover, had been turned down by ten other medical schools.

But perhaps most importantly, as late as 1948, 26 of the 27 medical schools in the U.S. openly practiced racial segregation. In the year that Bakke applied to medical school, Blacks made up about 12 percent of the US population, but just over 2 percent were doctors and under 3 percent were medical students. Racial quotas were needed because segregation was alive and well.

Nevertheless, the Bakke case firmly established “reverse racism” as the rationale for undermining affirmative action programs, enabling a crucial ideological transformation—from affirmative action addressing long-standing racial inequality to allowing “racial privileges” for those who are historically racially oppressed. Although Kennedy and Johnson used the term to refer to the government’s responsibility to take affirmative steps to right the wrong of racial discrimination, the term today denotes giving unfair advantages to Blacks and other racial minorities on what is now widely considered a “level playing field” where discrimination is long gone.

Granted, it took decades to defang affirmative action, just as it took decades to erode abortion rights. But like state abortion bans, nine states had already banned affirmative action, paving the way for the recent Supreme Court decision.

The rules don’t apply to the Supreme Court’s exclusive club

In 2009, Chief Justice John Roberts assured a C-Span interviewer that the public should trust the Supreme Court precisely because its members are not elected but rather are appointed for life: “The most important thing for the public to understand is that we are not a political branch of government,” he said. “They don’t elect us. If they don’t like what we’re doing, it’s more or less just too bad.”

Roberts has often returned to this theme since he was confirmed as the Court’s top justice in 2005, reiterating the same points emphasized by the nation’s “Founding Fathers” in the Constitution. Article III of the Constitution allows life tenure for justices while also stressing that they “shall hold their Offices during good Behaviour.” Like many of the other vaguely worded concepts in the Constitution, this one is open to broad interpretation. But the interpretation taught to students in school classrooms is that the Supreme Court plays a key role in the U.S. government’s fine system of “checks and balances” between the three branches of government: Executive (the president); Legislative (lawmakers); and Judicial (the federal courts, with the Supreme Court above the rest).

The Judicial branch is ostensibly in place to keep the president and other elected lawmakers from straying outside the bounds of the Constitution. In theory, appointing Supreme Court justices for life allows them to stand above the fray of the rest of society because they have no need to bend to popular pressures, thereby allowing them to impartially interpret the constitutionality of laws. Of course, there is another—more realistic—consequence to appointing the nine Court members for life without any requirement for oversight or accountability: corruption. And this particular Court has all kinds of it.

The Supreme Court operates within a shroud of secrecy. The justices choose and refuse to hear cases brought before them at their own discretion, without a required explanation. They alone decide when they each want to retire from the bench. The Court’s justices report to no one. No one forces them to disclose their income from outside sources. They adhere to no ethics code. This issue has recently become a source of controversy, since some of them appear to regard their position on the court as entitling them to collect large amounts of cash from a variety of sources, again without disclosure.

Yet they act as if their rights have been infringed upon when their financial exploits reach the public. Roberts was outright indignant when asked to testify before Congress this spring when the scandals about Thomas were breaking. Roberts responding in writing, “testimony before the Senate Judiciary Committee by the Chief Justice of the United States is exceedingly rare, as one might expect in light of separation of powers concerns and the importance of preserving judicial independence.” End of discussion.

When Democrats then demanded that Roberts himself investigate the corruption scandals, he sent it to a judicial policymaking committee, whose Republican majority then passed it on to a panel of secret judges to conduct the “investigation”.

The issue is not new. Back in 2011, when Democratic legislators also asked Roberts to install a code of conduct, he replied with a veiled threat: “As in the case of financial reporting and gift requirements, the limits of Congress’s power to require recusal have never been tested”—implying that these Congressional demands might be unconstitutional.

To those who believe that the current Supreme Court has merely gone astray, it is worth remembering that U.S. presidents are elected by the undemocratic Electoral College—which between 2000 and 2016 elected two presidents who lost the popular vote. The Supreme Court, which has the power to rule on the most fundamental issues affecting the U.S. population, is appointed for life. Rather than an aberration, perhaps this was part of the plan.