Has Precedent Been Displaced?

According to the Merriam-Webster Dictionary, precedent is defined as:

 1. an earlier occurrence of something similar,

2. something done or said that may serve as an example or rule to authorize or justify a subsequent act of the same or an analogous kind

Ex. a verdict that had no precedent

3. the convention established by such a precedent or by long practice”

This week saw the Supreme Court of the United States (SCOTUS)rule on several cases in the last week of the 22-23 term. In true dramatic fashion, the court frequently saves the most controversial decision for the last week. This year was no different. Not expected was that several of the justices ruled against what we had thought to be settled law-or precedent. Many justices, at their Senate confirmation hearings, said they would uphold this idea of keeping and not overruling decisions from previous courts. Did they just outright lie? The whole Conservative group of them? However, with the Dobbs decision last year, they went against this practice. Many hoped that this was a one-time instance of straying from the unwritten rule.

 

Decisions this week in the cases against affirmative action at Harvard University and North Carolina University defied earlier court decisions to allow universities to create a workaround.

As the justices now claimed that the Constitution is color blind, it is clear that they do not believe their own words. But the majority decided that a preference for any one group is a denial of opportunity to other groups. So, even if a university wanted a diverse student body and decided that it would admit 10% of the African American applicants, 10% of Asian Americans, and 10% of Latino Americans, for example, that would be discriminatory especially if there were proportionately more of any one other group that wished to apply. Members of other groups could claim that they were not being given a fair chance since there was a quota. The Court wished for all applicants to be on the same footing. Roberts allowed that if a student had overcome adversity that had to do with minority status, he/she could mention that in the application and a college could consider it. Since these racial categories are primarily important only in elite colleges, which receive far more applications than they can accept, the schools tried to create fair criteria. The schools also had set-asides for legacy admissions, which went to children and grandchildren of Alumni.

But in claiming the concept of neutral race decisions, the freedoms mentioned for African Americans in the Constitution are overlooked. The court ignores the reality that for many, many years, African Americans were denied free and fair education in their towns and cities. Once Brown was decided, there were years of resistance to integrated schools. After cities were integrated, white flight began in many areas and private academies sprang up. Eventually, city schools were back to being segregated and again offered schools with fewer opportunities compared to those in the suburbs surrounding them. Affirmative action admissions tried to right some of these wrongs and give a hand up to talented students from both rural and urban schools.

The 13^th, 14^th and 15^th Amendments were voted on by the Congress in 1865 and later ratified by the states. They gave specific rights to African Americans as full citizens. But these rights, sometimes, are still not fully realized.

 

According to the Smithsonian-National Museum of African American History & Culture:

“The tumult and grassroots uprising that eventually spawned such famous legislation as the Civil Rights Act of 1964 is a subject all its own. Today, however, let us remember the tremendous stride that America took 145 years ago with the ratification of the 13th Amendment. Together with the 14th Amendment that afforded African Americans citizenship, due process, and equal rights under the law and the 15th Amendment that gave African Americans the right to vote, a constitutional backbone was provided for what would become one of America’s greatest revolutions — the Civil Rights Movement.”

In a discussion of this decision in the New York Times”

“The decision addressed cases involving Harvard and the University of North Carolina. Both schools say they consider race in admissions to diversify their student bodies, particularly by boosting Black and Latino applicants who may be disadvantaged by racism. But critics say that Black and Latino students are helped to the detriment of students of races or ethnicities that are already more represented on campuses, particularly Asian Americans.

Writing the majority opinion, Chief Justice John Roberts sided with the policy’s critics. He stated that affirmative action is racially discriminatory and unconstitutional. “Eliminating racial discrimination means eliminating all of it,” he wrote.”

The discussion also quotes Justice Sotomayor, who read her dissent from the bench. (Sotomayer received affirmative action consideration in her admissions to Princeton and Yale. Justice Thomas did as well, but has stated that acceptance diminished his degree and personal accomplishments.)

“The court’s three liberals dissented. Justice Sonia Sotomayor summarized her dissent from the bench, a rare move that signals deep disagreement. “Today, this Court stands in the way and rolls back decades of precedent and momentous progress,” she wrote.

She added that the ruling “cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter.”

Whether a justice views affirmative action as positive or negative appears to hinge on whether he or she primarily sees it as holding down or pulling up prospective students. The majority and concurring opinions focused on affirmative action’s downsides for white and Asian students, while the dissents focused on the benefits to Black and Latino students. The disagreement comes down to which effect someone believes matters more.”

Justice Jackson, who recused herself from the Harvard decision because she used to sit on its Board) issued a strong dissent on her colleagues and their majority opinion:

“In a scorching, 29-page dissent, Supreme Court Justice Ketanji Brown Jackson sharply criticized her conservative colleagues’ decision Thursday to reject affirmative action in college admissions decisions, overturning more than four decades of precedent.”

“With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat. But deeming race irrelevant in law does not make it so in life,” Jackson wrote in her dissenting opinion in Students for Fair Admissions v. University of North Carolina, one of two cases decided Thursday that centered on affirmative action.”

Justice Jackson continued, as quoted in the Washington Post:

“Jackson opened her dissent by noting the “gulf-sized race-based gaps” that continue to exist in American society — ones created “in the distant past” but passed down through generations. By restricting the use of race in admissions decisions, she said, the Supreme Court was detaching itself from the country’s actual past and present experiences.

She compared the majority members of the court to ostriches sticking their necks in the sand, a reference to a common myth about what the long-necked birds do when scared.

“No one benefits from ignorance. Although formal race-linked legal barriers are gone, race still matters to the lived experiences of all Americans in innumerable ways, and today’s ruling makes things worse, not better,” Jackson wrote. “The best that can be said of the majority’s perspective is that it proceeds (ostrich-like) from the hope that preventing consideration of race will end racism. But if that is its motivation, the majority proceeds in vain.”

So, where do we go from here? We seem to have a court that is throwing out precedents right and left. Justice Thomas has already made threatening statements against Griswold (use of contraception), Brown (school integration), Loving (inter-racial marriages) and Obergefell (same-sex marriages). Many considered each of these to be landmark decisions in their day and monumental steps toward a better and more equal society.

These seemingly out-of-control conservatives want to undo half a century of progressive decisions. They apparently want to undo legislation regarding the Clean Water Act and allow industries free rein. Perhaps that is why they are being wined and dined sometimes and given plane rides to Alaska and the South Seas. What do you think? Americans have a right to expect decisions to stand when the laws underpinning them have been upheld by previous courts. Only in rare cases, such as the Dred Scott decision, which was known to be erroneous at the time it was decided, should major decisions be overridden. (That ruling that declared slaves had no rights and were not citizens, was negated a few years later by the 14^th Amendment.) Americans cannot view the court as a tennis match where decisions volley back and forth like a tennis ball.

It is not my choice to have conservative justices. However, they took an oath to rule fairly according to the constitution and are not doing that. They are ignoring phrases that would negate their opinions.

So, what’s a voter to do? VOTE!

Granted, voting alone would not have undone the unprecedented actions of Mitch McConnell when he denied President Obama an appointment to the Court, and also rushed through Justice Barrett’s appointment. However, had he not been the Majority leader, he could not have done that.

They took the other decision on the student loans issue despite there not being an adequate person (the Missouri Loan entity is not a person, but could lose interest payments if the loans were paid early) of standing on the loans; they took the case about not designing a website for gay people when there had been no injury to the designer, as she was not yet in business.    This was done apparently, because they decided the earlier cake design case on a weaker Constitutional clause. In both cases, the court took on matters that were contrary to their stated goals. More discussion next week on this and President Biden’s response. So, the court is no longer following stated law and is going against the principles it established! This is a rogue court! I am now advocating for term limits for justices. How many years do you think is appropriate?

“Til next week-Peace!