Our Founders would be proud of the Court’s recent decisions

July 4, 2023

The U.S Supreme Court did its job quite well last week. In three notable cases, the Court did exactly what it was designed to do: it ruled according to the language and the principles of the U.S. Constitution.

In the case ending affirmative action in higher education, it ruled that affirmative action, the measure which for decades was used to end discrimination, was itself discriminatory, and therefore unconstitutional.

In the 303 Creative LLC v. Elenis a graphic designer refused to design a wedding website for a same-sex couple, due to her religious beliefs. However, her refusal was in breach of Colorado’s discrimination law. But the Court upheld the designer’s free speech rights and religious beliefs as guaranteed by the First Amendment to the Constitution.

And in the case where President Joe Biden tried to make the taxpayers bailout people with outstanding student loan debt through an Executive Order, thereby bypassing Congress, the Court again properly ruled that the president of the United States does not have the Constitutional authority to do that. 

Interestingly, some years ago, before he was President, Biden publicly said that the action he later took was not Constitutional. That sentiment was also expressed by Nancy Pelosi, when she was the Speaker of the House of Representatives in 2021.

And, predictably, the liberal’s reaction to these rulings is both strong and off the mark. Some of them probably do understand why the Court, doing the right thing, ruled as it did. Others are going to complain, despite that reality.

Contrary to the idea that many people have, the Supreme Court’s job is not to make Biden or Trump, Democrats or Republicans, liberals or conservatives, or any group happy with its rulings. 

Its job is not to make decisions that are politically based, or to reinterpret the Constitution or laws to make a ruling that is more likeable or pleasing to anyone. Its job is to correctly interpret the Constitution and the laws of the country.

And that is what the justices who are judicial conservatives did. And the liberal justices opposed them with their votes, which also opposed the meaning of the Constitution.

While Biden’s attempt on the student loan bailout would have made thousands of people very happy, allowing that to happen would be allowing the President to exercise powers that are reserved for the Congress. Fortunately, the proper understanding of the Constitution’s tripartite federal government held by the judicial conservatives on the Court, led to the correct ruling in the case.

A very timely and effective look at the difference between judicial conservatism and judicial liberalism occurred in the opposing positions on the affirmative action ruling. And the two sides are represented by black/African-American Justices Clarence Thomas and Ketanji Brown Jackson.

Jackson is the newest member of the Court, taking her seat this year. When asked during her confirmation hearing by Sen. Marsha Blackburn, R-TN, to define the word "woman," she replied, “I can’t.” Shortly after that, she added, “not in this context. I’m not a biologist.”

And her dissent on the affirmative action ruling said this: “With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat,” she wrote. “But deeming race irrelevant in law does not make it so in life. 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 [the University of North Carolina] and other institutions of higher learning are doing to solve America’s real-world problems.

“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,” she continued.

Thomas, on the other hand, took a vastly different view in his concurring opinion. “The solution to our Nation’s racial problems thus cannot come from policies grounded in affirmative action or some other conception of equity,” he wrote. “Racialism simply cannot be undone by different or more racialism. Instead, the solution announced in the second founding is incorporated in our Constitution: that we are all equal, and should be treated equally before the law without regard to our race. Only that promise can allow us to look past our differing skin colors.”

Jackson’s argument focuses not on the constitutionality of the discrimination favoring one race over others, which was the question before the Court. Her argument focuses on her concept of racism and whether or not it is important.

This is a common mis-focus of the liberal justices: social justice, not justice by law. They argue for social justice, even if in doing so the principles of the Constitution are ignored or trampled on.

Our founders created a brilliant Constitution, and made a special point of guaranteeing certain rights, without which rights a free nation cannot exist. We must always honor those guarantees, even if doing that is inconvenient for some of us.

Democrats are upset by recent decisions from the U.S. Supreme Court

“Conservative” justices are not political conservatives. They are Constitutional conservatives, originalists. The conservative view of the Constitution is that it means today and forever what it meant to the Framers when they wrote the Constitution.

Liberal/activist justices do not view the Constitution the same way as the originalists. They see the Constitution as a “living” document, the meaning of which changes with time and our culture.

This essentially means that we don’t really have a Constitution if its meaning can be determined differently at any time, depending upon the views of nine unelected justices.

The late and brilliant Supreme Court Associate Justice Antonin Scalia had it right: “The Constitution is not a living organism. It’s a legal document, and it says what it says and doesn’t say what it doesn’t say.”

If the principles of the Constitution should ever turn out to be wrong, or hurtful, it can be changed through a process of amending it. But it should not — must not — be ignored or changed with the fickle winds of social “needs” or “wants.” The faithful allegiance of the conservatives/originalists is the great obstacle the left cannot conquer.

What so many do not understand, or prefer to ignore, is that what the Supreme Court did regarding Roe v. Wade was merely to undo a previous wrong action by the Court. It did not deny women a Constitutional right. There is no Constitutional right to abortion. Freedom of speech, religion, and the press, and the right to due process are among those specifically mentioned in the first 10 amendments to the Constitution. But the word “abortion” does not appear in the document, and stretching the meaning of privacy to include abortion was a gross error 49 years ago.

The Court’s action simply returned the decision about if there can be legal abortions and what the rules are regarding abortion to the states, where it belongs.

The concept of federalism, upon which the United States of America is based, holds that the states have certain authority over how they do things, and are not always at the mercy of the federal government. Laws on abortion, if there are such laws, belong in the states, not the federal government.

The radicals among the Democrats and liberals are ready to totally rebuild the United States so that their un-American ideas can become the norm.

They want to do crazy things to shove their ideas down the throats of every American. Such things as:

* Packing the Supreme Court with activist/liberal justices so that they can push their ideas through the legal system 

* Getting rid of the Senate filibuster that protects the rights of the minority so that their majority can easily have its way 

* Making the District of Columbia and/or Puerto Rico a state, so that they will have additional electoral power; 

* And even trashing the Electoral College, which protects the smaller and less populated states against the tyranny of a few states with large populations

These are some of their radical solutions to their inability to convince a majority of Americans to support those ideas.

Two recent decisions by the Court last Thursday provided fodder for more Court criticizing, one on the “Remain in Mexico” policy, and the other on the EPA’s actions.

The latter focuses on the fundamental structure of our government as established in the Constitution. That structure established three branches of government: the legislative, executive and judicial branches. Each one has its specific function, and the Constitution imposes a separation of powers, meaning that each branch must not stray into the given area of another branch.

The legislative branch makes the nation’s laws. The executive branch has the power to enforce or carry out those laws. The judicial branch has the power to apply and interpret the laws.

In recent decades the departments of the executive branch have taken on power, making rules with the power of law. But laws are to be made by the legislative branch, not the executive branch. The EPA ruling puts the brakes on the executive branch’s straying into the legislative branch’s area.

Justice Elena Kagan, in a dissent from the majority opinion, paints a picture of environmental catastrophe if the EPA is not allowed to continue its growing control of things that produce pollution.

Accusing the conservative/originalist justices of making themselves the "decision maker on climate policy," she wrote, "Whatever else this Court may know about, it does not have a clue about how to address climate change."

Well of course not. The justices are not supposed to know about climate change, or any other such topic. They are supposed to know about and rule on laws and the Constitution.

How wonderful and helpful it would be if people would understand that our government is never going to do only those things that everyone agrees on, because there is little or nothing that everyone agrees on. The government is charged to do things that benefit the people as a whole, not any specific segment.

How nice it would be if we all understood what a wonderful, if imperfect, place America is, and how fortunate we all are to be able to live here.