Equal Division
In two recent decisions and an executive order review, SCOTUS shows its hand in currying social division. It’s become a religion.
Not equal protection. Equal division.
Thursday, June 29 could be celebrated as “Democracy Abandonment Day,” fireworks and all. Another government holiday.
Oblige me of trafficking pragmatism as I am curious as to why SCOTUS has abandoned the Constitution in two recent case decisions, and in a third, a dismissal of an executive branch order, released Friday, June 30. (1)
The first decision handed down by the Supreme Court, in Students for Fair Admission, Inc., v. President and Fellows of Harvard College effectively removes past discrimination as a factor in college and university admissions, moving the burden of redressing discrimination from the admissions policy of a college — private or public — to the applicant.
Unlike some legal formalists (2) in my opinion, I think it is right for the Court to intervene in college admissions to uphold the Constitution, if by doing so it means that the marginalized have equal access to the benefits and privileges of equality they have been denied.
Is it bad to right a wrong, to put in place norms and guidelines for providing equal access?
I am a party to an ‘injustice,’ therefore, it stands that someone will get hurt, so the argument goes.
This year Asian American. Next year… who knows? Jews? POC?
This is not intervention, this is interdiction.
The anti-pragmatic gesturing of the SCOTUS decision is astounding. But then we are a nation of religions, not a nation of people.
A friend shares with me his view that SCOTUS is behaving like a Taliban Court. I argue that white supremacy historically resides in the US Constitution, not just religion.
But aren’t we experiencing both, he replies. Aren’t we using the Constitution as political cover to turn the dial on justice back a generation? To undo social progress in the name of — drum roll here — freedom?
The second case decision, 303 Creative LLC et. al. v. Elenis et. al, equally divisive engendering, took freedom of repression a step further: uphold the right to refuse access to services provided in a public marketplace because my religion forbids it.
Really?
Where has your religion, as you profess, been hurt? You haven’t even opened your business. (3)
The anti-pragmatic gesturing of the SCOTUS decision is astounding. But then we are a nation of two genders, thank you, not one bathroom.
Consider:
First: these are narrow decisions:
“We have to fight back so they don’t get expanded.” -Sarah Kate Ellis, President GLADD, Andrea Mitchell Reports, MSNBC, June 30. (4)
Second: Where are the damages? Where is the harm?
Third: These cases reset precedent by turning over previous decisions. These cases have been fast tracked: their hearing now is because a ‘conservative majority’ sits on the Court (5)
Fourth: These are polity case — not ‘what’ but ‘who.’ Their currency is that ‘I am here to defend your beliefs, your freedom, as opposed to the will and desires of the people, their interest, their aspirations.’
In other words, SCOTUS — a cadre of six justices — is “here,” not to reckon legality but polity.
It's not equal protection. Its equal division.
And that’s acting unconstitutional. (6)
July 2
Notes
1-Bouie
2-”Legal formalism,” definition. Cite Posner
3-Bouie, update NPR scoop
4-Sarah Kate Ellis bio
5- Comment, letter to NYTimes, June 30
6-Kagan, cited by Bouie
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