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It’s not hard to see where this is going. [1]
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Date: 2023-06-30
There is a time and a place, yet yesterday someone took the precious time to tell the rest of us that, hey, Affirmative Action polls really badly, so we need to move on. It’s unpopular. We should drop the fight.
I’d like to have seen someone come in one of the post-Roe diaries the day it was struck down and claim something similar for abortion.
As several people pointed out, we don’t base our values on public opinion polling; and I reflected privately upon the fact that, at least in the early days, abolitionists were an incredibly small group. They were considered by some to be heretical. At the end of the day, it was their moral voice that steadied the will of the North to stay true through the War, and it is that clarion call that we venerate to this day.
We don’t wax nostalgic at the tussles over tariffs. We extol the ethics of those who saw a principle behind their beliefs.
Today, the Supreme Court’s six-person majority affirmed what they found was a principle: the principle to discriminate at will, so long as the reason for it is sincerely, religiously held.
Yesterday, as mentioned, we saw the striking down of affirmative action in college admissions, and I’ll wager that AA in other venues will be struck in short order. But also yesterday you had SCOTUS rule that employers must more than flexibly accommodate the religious beliefs of employees when considering their schedules. While this decision was unanimous, note that it lies along this axis of burnishing religious beliefs.
Today, you had SCOTUS reject President Biden’s plan to forgive certain student loans, many of which would have targeted those borrowers who qualified for Pell Grants (meaning such borrowers were among the poorest of loan recipients).
For all the talk in that other diary about how the Democrats should focus exclusively on class rather than fight along the axis of race and ethnicity, it’s instructive that this focus did not save the program. Republicans complained that it discriminated against the wealthy. Truth is, it would have disproportionately assisted the less well-to-do, and that would not do. The rich cannot be shut out of anything—it is they who enjoy exclusivity and shut others out of their perks and rewards.
That came the same day as this ruling in favor of discrimination against LGBTQ+ persons, as long as that discrimination can be construed as a religious belief.
Now, consider the overall message had the rulings been released in a somewhat different configuration:
Biden’s plan + affirmative action;
employer’s scheduling + turning away customers based on belief.
The pattern becomes a little clearer, yes?
I think one of the underlying messages, especially considering that the LGBTQ+ ruling was delivered despite there being a lack of standing and so based on a hypothetical, is a big neon sign that says, “Open for business.”
This is a huge indicator to those advocacy groups looking to extend religious tendrils into public spaces to continue to petition this court. They will get a sympathetic hearing. In fact, I wager the six-person majority is looking to enshrine this into as many decisions as it can so that it will be that much more difficult to extirpate. They want this concept sown everywhere.
Rulings against racial redress; rulings for the power to affirmatively discriminate under the color of religious belief.
Religious belief simply becomes the modulator, the waystation between the reason for discrimination and the practice itself. If a school wants to discriminate against minority students because that’s the sincerely held religious belief of the administrators, isn’t that permissible now? Bob Jones University would be eligible for federal funds, right?
IANAL, but don’t these rulings reinvigorate Plessy v. Ferguson? If not, why not?
I really want to know, because as I read it, this is a straight line toward fulfilling the fantasies of some GOP lawmakers who want Brown v. Board of Education overturned.
As I mentioned in that aforementioned, mistimed diary, it seems clear that this Court’s mission is to overrule the entire Warren Court. These rulings appear to give new life to discrimination in the public square, despite the legality of the Civil Rights Act of 1964. Protected classes have no protection. As long as religion is involved, discrimination is legal.
What’s stopping that six-person majority from reordering the whole of American society and all 330+ million people in it? Only a relevant case. And now, the Court has established that they’ll even take hypothetical cases! No standing required, no actual harm suffered—this majority will entertain any offer. As long as it suits their ideology.
This SCOTUS has already decided that it does not respect precedent. And as the Court famously reversed Plessy with Brown v. Board, wouldn’t it be a finger in the eye of civil rights advocates to use the 1st and 14th Amendments in favor of discrimination, and thus restore Plessy to full stature, to the power it held at its zenith? To use reversal to upend the original reversal itself?
It’s been said that the civil rights era of the ‘60s found its impetus in the wake of WWII and the Holocaust, that the treatment of such a designated despised minority made people question practices here in our own society and whether such things could happen here. I say this not to overstate things, but I felt the pro-discrimination ruling today recalled those first laws against the Jewish people as a people in Nazi Germany, the Nuremberg laws.
Those laws must have felt as just a small perturbation to those in wider German society in 1935, an aberration or a mistake that would be corrected in due time, not an opening a door to vicious, unspeakable atrocity. Who can look over such a horizon?
We, unlike the Germans of the Nazi era, have the benefit of history, of their history, to guide us.
It is not so hard to see.
It’s clear also that these rulings are meant to demoralize us. I feel completely safe in saying that, because others have noted or have at least openly wondered if the Court is merely another form of legislature, “politicians in robes,” a place with even fewer lanes of oversight in the absence of self-policing. Who watches the watchers? I think we have our answer: no one.
This six-person majority is operating as a law unto themselves. So these are political decisions dressed in juridical language, issued in just the right setting for those words to have the power of enforcement. This gaggle has co-opted the stage of the highest bench and is using it to utter words that then perform ceremonial acts.
J. L. Austin wrote a little bit about this linguistic power. He collected a series of lectures from 1955 into a little book called How to Do Things With Words. After giving the examples of saying “I do” in the case of marrying someone, of naming a ship while smashing a bottle of champagne against a hull, and of stating what one bequeaths in the case of speaking from one’s will, Austin states this about performatives:
These have on the face of them the look—or at least the grammatical make-up—of ‘statements’; but nevertheless they are seen, when more closely inspected, to be, quite plainly, not utterances which could be ‘true’ or ‘false’. … Here we should say that in saying these words we are doing something—namely, marrying, rather than reporting something, namely that we are marrying.
Today and yesterday, the Supreme Court six-person majority used their utterances to create new force of law by way of making public their interpretation.
In that location (the bench), in that ceremony (the reading of a ruling), in a way that would have been void had they spoken the same thing over cocktails at a dinner party, these six people used their official venue to cement their ideology into American law. Now their view penetrates everywhere.
It’s easy for me to say, be not discouraged. I say that because these rulings, ideological as they are in origin, mean to deliver a blow. It’s the same condition as winning and losing sports teams, where the winners get their rush of testosterone and dopamine, while the defeated opponents are awash in cortisol.
I’m not trying to be poetic here. I’m saying there are real, physiological reactions that we’re due to have by virtue of these decisions coming down one right after the other. These are meant to inflict an actual physical change inside of our bodies. Our opponents want us to feel a gut-punch, just as we felt with Roe. (At least some on their side do.)
So that is exactly what we need to avoid. We see the horizon, what they intend to do.
Let’s take this not as a defeat but as a challenge. How do we fix this in the short-term? I would love a groundswell of chatter to crowdsource ideas.
It’s vitally important to realize that these six are using their robes and their venue to effect these changes in the lives of everyday Americans.
This is an abuse of power and an inversion of the rule of law. If religious beliefs can supersede civil law, we haven’t the latter at all.
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