The media insist the Supreme Court’s credibility is crumbling.
President Biden says it is not a “normal court.”
Two Democratic lawmakers are pushing 18-year term limits for justices, while the Hill’s Progressive Caucus and two of the largest pro-choice groups are backing an expansion of the court – a way to alter its political balance.
But hold on. Left-wingers who say the court’s 6-3 supermajority is out of control had no problem with the sweeping liberal rulings of a half century ago. There was Roe v. Wade in 1973, establishing a constitutional right to abortion, and the Bakke case in 1978, when a white former Marine was denied admission by the University of California and Justice Lewis Powell wrote that race was one factor that could be considered because diversity was a compelling state interest.
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While conservatives ripped both rulings, there was no national groundswell to pack the court, as FDR had unsuccessfully tried to do. The reason? Most of the Democrats and the media viewed Roe and Bakke as forward-looking steps toward a fairer society.
In the past year, the John Roberts court has overturned both of those decisions. The sudden end to national abortion rights and college affirmative action has advocates on the left up in arms and demanding action. Just yesterday, the Washington Post’s lead online story was “”Biden Faces Renewed Pressure to Embrace Supreme Court Overhaul.”
The president is wisely resisting that pressure, even as he denounces the court’s latest rulings, including that a graphics designer has the right to refuse to create websites for same-sex marriages. Weirdly, the man who supposedly sought the services of the designer is straight, married and a gay rights supporter who knew nothing about the case – “apparent falsehoods,” the New York Times said in quoting critics, that “undermined the court’s decision.”
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Such anomalies aside – and SCOTUS did produce a few rulings liked by liberals, on a voting rights case in Alabama and in upholding Biden’s immigration policy – some on the left are going through a meltdown. AOC says impeachment is not off the table. Rep. Ted Lieu says he supports expanding the court because of its “radical extreme supermajority.” Neither option is going to pass a Republican House, but it suggests the depth of the Democrats’ anger.
The end-of-term rulings come after a pair of exposes by ProPublica, about two members of that majority, Clarence Thomas and Sam Alito, not disclosing sizable payments or fringe benefits from Republican billionaire pals. Both jurists deny any wrongdoing, but the stories have fueled Democratic calls for ethics reform at the court – another path to trying to discredit the institution.
For some, the rulings are personal. MSNBC host Joy Reid said “I got into Harvard only because of affirmative action. I went to a school no one had ever heard of in Denver, Colorado, in a small suburb. I didn’t go to Exeter or Andover. I didn’t have college test prep. I just happened to be really nerdy and smart… But someone came to Denver, Colorado, to look for me.”
Good for her and anyone else who made it to an Ivy League school. But for all the sound and fury, the New York Times candidly acknowledged after the ruling that relatively few students are involved.
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Most colleges admit most of their applicants. “Fewer than 200 selective universities are thought to practice race-conscious admissions, conferring degrees on about 10,000 to 15,000 students each year who might not otherwise have been accepted,” according to a Stanford study. These are among the elite; many other high school graduates don’t immediately go to college because they have to work.
Whatever affirmative action has accomplished, it has long contained internal contradictions. Asian-Americans are a minority who have always felt penalized by affirmative action aimed at Blacks and Hispanics.
The Atlantic’s Jemele Hill tweeted that Asian-Americans “carried the water for white supremacy and stabbed the folks in the back whose people fought diligently for Asian-American rights in America.” Actually, they just wanted to be admitted to college on their own merits.
And African-Americans have told me that whatever their achievements, affirmative action made them feel viewed like second-class citizens.
What about other kinds of discrimination that don’t get talked about? Lawyers for Civil Rights just filed suit against legacy admissions, saying 70% of Harvard applicants who are related to past graduates or donors are white, and those related to donors are seven times more likely to be admitted. Some 28% accepted by Harvard’s class of 2019 were legacies. How can that be fair when they simply won the genetic lottery?
The other SCOTUS ruling – knocking down Biden’s student-loan forgiveness program – was hardly unexpected because the president himself had hesitated out of concern it would be deemed unconstitutional. How can a president, with no action by Congress, unilaterally forgive more than $400 billion in debt? And despite the election-year ploy, didn’t students take out these loans in the expectation that they would have to repay them?
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The strongest argument against the abortion and affirmative action rulings is that they wipe away decades of precedent, while the court usually chips away at disfavored policies incrementally.
Critics are perfectly entitled to denounce rulings they abhor, just as conservatives did during the court’s liberal heyday – both sides, by the way, willing to tolerate judicial activism when it plays in their favor.
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But to talk about adding justices, impeachment and the like suggests that the left’s goal is nothing more than tilting the court back in their political direction.
