Saturday, December 9, 2023

The Legal Labyrinth

America celebrates 247 years of Independence against a backdrop of a nation at war with itself over what democracy means. The conservative-dominated Supreme Court has become the major player in changing the regulatory power of the federal and state governments. There are two reasons—because they can and because the US Congress is gridlocked by performative politicians, accomplishing very little

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By Kenneth Tiven

Americans are witnessing the culmination of a steady 40-year effort to place a 6-3 majority of solidly conservative justices on the nine-member Court. The Federalist Society wields outsized influence on appointments to judgeships. It exists to eradicate the liberal democracy measures that blossomed with the election of Democrat Franklin D Roosevelt as a four-term president in 1932. At the end of a yearly session that followed removing abortion rights last year, the six Republicans—appointed, not elected—decided to end affirmative action for college entrance policies, refuse student debt relief, despite government help for business during the pandemic, and limit anti-discrimination regulations at state and federal levels. Precedent, process and proper fact-checking were all victims of the rush to judgment. Dissents from three liberal justices were scathing, unusual within the Court’s sense of decorum. Transformative conservative decisions were issued last June on abortion, guns, religion, and climate change. However, this term included some key decisions where the Court’s three Democratic appointees joined the majority, including supporting the Voting Rights Act, saying no to state legislatures making mischief in federal elections and the one sorting out native American adoption rights.

No matter what history writes about former President Donald Trump overall, his appointment of three partisan lawyers to fill court vacancies will be his greatest achievement. Realistically, the nation will feel the impact long after Trump. From a Conservative perspective, this will protect the affluence and status that gives white people the most social influence. No surprise that Republican politicians applauded these decisions. This tug of war in American politics is not unlike what plays out in the background of Indian politics between the states, the central government and the courts on multiple issues.

Demographic change is accelerating, which worries older, white Republican voters. In red states, the proliferating laws meant to constrain the potential influence of younger generations are obvious. Why else make it more difficult to vote, ban books, or censor how teachers talk about race and gender inequities? Populous states, or big, diverse cities, are on the other side of this divide. An energized effort by younger voters, women and people who feel marginalized by these decisions can make a difference in 2024, if they vote. Older Americans vote more regularly than younger ones, but they, too, are worried. For example, will social security and Medicare benefits keep up with inflation? Or worse, get cut, which, with some irony, lockstep Republicans favour curtailing. If Democrats capture the national government in 2024, the first thank you will go to the Supreme Court, followed by a legislative decision to enlarge its membership to 13. Diluting the current majority is one appeal. The other is to finally mirror the number of federal appeals districts in the USA.

In several cases, the Court’s majority ignored flashing caution lights about judicial practice and precedent to find a decision desired by Republican politicians and organizations that enthusiastically had backed their appointment to these lifetime positions. The justices ignored decades of precedent in a pair of opinions that will make using race-based affirmative decisions nearly impossible in college admissions. The lawsuits against Harvard and the University of North Carolina, the two oldest colleges in the USA, were brought by a group calling itself the Students For Fair Admissions (SFFA). Its lawyers argued that such provisions discriminate against Asian American students by unfairly boosting opportunities for Black and Latino students to gain acceptance at elite universities.

Chief Justice John Roberts, in effect, wrote there is no real difference between the centuries of racial discrimination against Black people and targeted race-conscious efforts to help Black people. Both are equally bad, in his view. This thinking gives him back some control over his five conservative amigos. So, the Court, by ignoring decades of precedents, accepted the argument that affirmative action leads to discrimination.

Recent polling suggests that nearly 70% of Asian Americans support affirmative action when described as helping Black Americans and other minorities. Other polling indicates that most racial and ethnic groups say this should not affect their ability to get into college.

Justice Ketanji Brown Jackson wrote a searing rebuke of the decisions involving the University of North Carolina. She had recused herself from the Harvard case. “With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colour blindness for all’ by legal fiat. But deeming race irrelevant in law does not make it so in life,” she observed. The newest Supreme Court justice continued in a dissent both heartfelt and legalistic: “And having so detached itself from this country’s actual past and present experiences, the Court has now been lured into interfering with the crucial work that UNC and other institutions of higher learning are doing to solve America’s real-world problems. No one benefits from ignorance.”

In a narrative that traced systemic racism from slavery to sharecropping, through vagrancy laws to Jim Crow, the Great Migration northward, disparate tax-system treatment, the deliberate placement of toxic-waste facilities and highways in Black communities, gaps in healthcare and access to quality education, Jackson flipped the script on the majority’s opinion, pointing out all how America’s government continues to operate with a preference for its white citizens.

Justice Sonia Sotomayor called the affirmative case an “unjustified exercise of power” that shows the Court’s “impotence”. Sotomayor said the Court “belies reality” in backing a colour-blind reading of the Constitution. Justices Sotomayor, Jackson and Kagan pointed to the profound racial discrimination that continued after the Civil War and insisted that the law had the power to address that discrimination to achieve the equality promised by the Fourteenth Amendment. “The Equal Protection Clause of the Fourteenth Amendment enshrines a guarantee of racial equality,” Justice Sotomayor observed. She further observed that the Court long ago concluded that this guarantee can be enforced through race-conscious means in a society that is not, and has never been, colour-blind. The majority opinion ignored the extensive trial records accumulated in both the Harvard and UNC cases, leaving the misinformation that has dogged this case in place. Lower court records and decisions found that Harvard and UNC admissions practices do not discriminate against Asian American students.

In various briefs filed in this case, experts have argued that eliminating affirmative action in higher education will lead to drastic reductions in Black and Latino students admitted to selective institutions. The gap between a more diverse America and less diverse elite colleges will only grow. In its haste to reach conclusions that fit its ideology, if not the law, the majority makes a mockery of stare decisis once again, ignoring a succession of cases—the most recent in 2016—that have upheld affirmative action in university admissions. We have an unspoken admission: Time’s up, this Court implies, simply because we have new judges and because we can.

“A more dire reality undergirds the court’s decision,” writes Eddie R Cole, an education and history professor at UCLA, explaining this decision fits into a century-old resistance to making American universities more equitable, calling it, “a decade-long drive to return higher education to white, elite control.”

In two cases—the sexual preference discrimination case and the debt relief case—the Court ignored the “standing” problem of the litigant, an issue it frequently uses to refuse instances it does not wish to decide. In the student debt case, the plaintiff was the state of Missouri, which could not establish any injury to itself, but sued on behalf of a state-created debt servicing company that had refused to sue.

President Biden pursued debt relief for students because of enabling legislation that said it was possible and payment falling under the HEROES Act authorizing the president to seek large-scale debt relief in a crisis such as the pandemic. The Trump administration used the HEROES Act to freeze student loan repayment during the pandemic.

Chief Justice John Roberts rejected the administration’s argument and the text of the laws. Instead, the majority applied the “major questions doctrine,” developed in recent years by this Court. This thinking allows the Court to overrule executive agencies if it believes their actions suggest a need for clear Congressional direction. This doctrine’s claimed intent is to restore authority to Congress, but concurrently, it hands immense discretionary power to unelected judges.

Because Roberts’ decision in the Missouri debt case, ignored the “standing” problem, Justice Elena Kagan, one of the three liberals, wrote a scathing dissent: “From the first page to the last, today’s opinion departs from the demands of judicial restraint,” she wrote. “At the behest of a party that has suffered no injury, the majority decides a contested public policy issue properly belonging to the politically accountable branches and the people they represent.” She skewered the idea that Missouri and the state’s debt agency are interchangeable, citing the Missouri Supreme Court’s declaration that they are not. And she eviscerated the majority for “wielding the major-questions sword” to overrule “legislative judgments” that belong to the political branches.

Chief Justice Roberts called her writing a “disturbing personal affront.” 

In its haste, the majority mocks precedent, the concept of stare decisis, ignoring a succession of its previous cases—the most recent in 2016—that have upheld affirmative action in university admissions.

A discrimination case is the best example of a legal issue with multiple obvious defects in standing and evidence. In a 6-3 ruling, the Court slashed to the ground anti-discrimination protections to allow a Christian web designer to turn away same-sex couples.

This case was instigated by the Alliance Defending Freedom, a right wing Christian group that has been classed as an extremist group by the Southern Poverty Law Center. Its legal arguments focused on Lorrie Smith, a graphic designer, who never did any actual work for a same-sex couple she never met. She was afraid that a Colorado state law would punish her.

Justice Sotomayor’s frustration with this decision showed in her dissent, including reading it in open court. The integrity of a key document in this major LGBTQ+ rights case has come under question, raising the possibility that important evidence cited in it might be wrong or even falsified. She ridiculed the majority decision, written by Justice Neil Gorsuch and joined by the five other conservatives, which finds the First Amendment condones businesses openly discriminating against protected groups, and mocks his “repeated invocation of this Orwellian thought policing.”

She wrote, “Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class.” 

—The writer has worked in senior positions at The Washington Post, NBC, ABC and CNN and also consults for several Indian channels

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