Just before this Fourth of July weekend, the United States Supreme Court struck three ringing blows for American liberty. It upheld freedom of speech; it affirmed that the power of the purse belongs to Congress, not the president; and it forbade racial discrimination by the government. Americans should applaud these decisions and a constitutional order that produced them.
Progressives, of course, are aghast at these decisions. President Joe Biden, Senator Schumer, Representative Ocasio Cortez and their allies in Congress, the mainstream media, and academia have made it plain that they favor the opposite. They want government to compel Americans to express opinions that are contrary to their deeply-held beliefs, to usurp the authority of Congress to make the nation’s basic domestic policy choices, and to permit elite universities to practice unapologetic racial discrimination against talented, highly qualified candidates, most notably Asian-Americans.
The six Justices in the majorities of SFFA v. Harvard (racial preferences), 303 Creative v. Elenis (free speech), and Biden v. Nebraska (student debt) could foresee that an avalanche of vicious but uninformed abuse would follow. They experienced the same a year ago for their brave decision to restore the question of abortion to the people of the states, rather than continuing to arrogate it for unelected federal judges.
They have endured illegal protests outside their homes (from which the Biden administration refused to protect them), an assassination attempt, and a vitriolic campaign, funded by leftist dark money, assailing their personal ethics. Despite the likelihood that their three decisions would trigger the same or even worse reactions, the six Justices stood their ground. America owes them a debt, not only for their fidelity to the Constitution, but for their personal courage.
Let’s look at the three decisions.
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In the 1940s, national unity was of transcendent importance – and nothing expressed that unity more powerfully than the Pledge of Allegiance that America’s school children recited daily. But the children of a small religion, the Jehovah’s Witnesses, refused to take the Pledge. After first denying their claims, the Supreme Court corrected course. The Court observed that this country has no public orthodoxy: it was fighting against Nazi Germany and Imperial Japan precisely for the individual right of conscience, however unpopular a belief might be.
Justice Neil Gorsuch’s opinion for the Court in 303 Creative affirmed the bedrock principle articulated in the Jehovah’s Witnesses case. A Colorado website designer operated a business as a designer of customized websites to all customers – including LGBTQ persons.
But she stated that she would not design websites that celebrated matters contrary to her Christian convictions – including (but not limited to) same-sex marriage. Gorsuch ruled that her creative activities constituted "pure speech" protected by the First Amendment. Colorado could not compel her, as a condition of practicing her business, to express beliefs and attitudes deeply antagonistic to her own. While acknowledging that the state could demand non-discriminatory access to the marketplace for gays and lesbians, Gorsuch concluded that the state could not go so far as to compel Americans to espouse opinions contrary to their own.
Biden v. Nebraska is Biden’s fourth defeat in a row for bypassing Congress over issues of major domestic policy. Chief Justice Roberts ruled that Congress, not the President, alone has the authority to discharge $420 billion in debt owed to the United States. Every single penny of that debt was the property of the United States, and the Constitution gives Congress alone the power to decide whether to collect or forgive it. The Court even reminded Biden that former Speaker Nancy Pelosi had conceded exactly that.
As the Chief Justice said, "The question here is not whether something should be done; it is who has the authority to do it." Despite that, Democrats denounced the Court as if it had pronounced on the wisdom of debt forgiveness. In their extreme constitutional confusion, these leading Democrats could not understand that the Court held that the power over debt forgiveness was for their institution, not the President. If Democrats want debt relief, they must persuade their colleagues – not beg the President to take matters into his own hands or blame the Court for their own failures.
Progressives obsess about voting rights, yet they bend every muscle to transfer policy-making power from elected representatives to unelected judges and bureaucrats. The irony seems utterly lost on them.
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In the notorious Plessy v. Ferguson case (1896), the Supreme Court ushered in the Jim Crow era, in which the states and federal government enacted laws enforcing racial segregation and upholding white supremacy. Only Justice John Harlan of Kentucky, a former slaveowner who fought for the Union dissented. With the Civil War and the Reconstruction vividly in mind, Harlan boldly declared that the country had undergone a radical constitutional transformation. "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens," Harlan wrote in Plessy (as also quoted in Harvard).
Until last week, the Court had never unequivocally embraced Harlan’s color-blindness vision – though Brown v. Board of Education (1954) had overturned Jim Crow and forbidden racial segregation in the nation’s public schools. In Harvard, the Court took that final step. Having prohibited the government from using racial preferences in any other sector, it closed the only exception remaining – higher education. Even Harvard is no longer above the law.
Although Chief Justice Roberts wrote the Court’s strong opinion, Justice Clarence Thomas’s magnificent concurring opinion deserves special mention. Thomas grew up as a black child living in harsh circumstances in the segregated South. His opinion poignantly alludes to that fact. Yet for decades Thomas has been the most powerful voice on the Court against racial preferences and in favor of color-blindness. Harvard is his vindication.
It is a singularly American triumph that Justice Harlan’s Plessy dissent comes to its historic fruition at the hands of this great American judge.
Robert Delahunty, co-author of The Politically Incorrect Guide to the Supreme Court, is a Washington Fellow of the Claremont Center for the American Way of Life.
