The last two weeks of June usually see a flurry of activity at the U.S. Supreme Court, and this year has been no exception. Indeed, the court has reinstated some traditions that had gone away since the Great Pandemic pushed their oral arguments -- and everything else -- online, back in 2020. They revived the tradition of the justices reading excerpts of their majority opinions aloud in the Supreme Court's marble
courtroom, at the same time that the opinions are released online. For the past three years, the opinions would still be distributed in the press room (as discussed here last week), and posted online on the court's website as PDFs, but that was it.
But last Thursday, on the day that the court effectively ended affirmative action in college admissions, the court also saw the revival of something else that had gone away with the pandemic: dissents read from the bench, too.
To back up for just a minute: The past two weeks saw two surprise rulings from Chief Justice John Roberts. Both were voting rights cases involving heavily gerrymandered maps that sought to exclude black voters, one from Alabama and one from North Carolina. The Alabama decision was a narrow 5-4 win, with Roberts joined by his favorite . . . hanger-on? . . . Brett Kavanaugh. The margin in the North Carolina case was 6-3, as they also picked up the vote of Amy Barrett.
The North Carolina decision, Moore v. Harper, rejected the notion that in matter involving voting, state legislatures have absolute power because of a brief passage in the Constitution about how they control the "time, place, and manner" of elections. By rejecting this claim, the court was briefly showered with praise for having "saved democracy," because a contrary ruling would have empowered state
legislature, especially in red states, to ignore the votes cast in an election, and instead to do things like substituting its own slate of electors in a presidential election.
The good will didn't last too long. On Thursday, June 29, the court issued its affirmative action decision, striking down both the (very moderate) consideration of race as one factor in admissions at the university of North Carolina and at Harvard. The total page count was one of the longest in court history - - Roberts' own opinion was about 40 pages, then Clarence Thomas (who clearly had wanted his to be the
opinion of the court) added a 58-page concurrence. There were two other concurrences, and then a long dissent from Sonia Sotomayor (69 pp.), and finally one from Ketanji Brown-Jackson ("only" 29 pp.)
In particular, the sniping from one justice to another was remarkable for its nastiness. Thomas spent much of his opinion attacking Justice Jackson -- saying that "Rather than focusing on individuals as individuals, her dissent focuses on the historical subjugation of black Americans . . . . As she sees things, we are all inexorably trapped in a fundamentally racist society, with the original sin of slavery and the historical subjugation of black Americans still determining our lives today. . . . The panacea, she counsels, is to unquestioningly accede to the view of elite experts and reallocate society's riches by racial means . . . to "level the playing field."
For her part, Jackson responded in a footnote: "JUSTICE THOMAS's prolonged attack . . . responds to a dissent I did not write in order to assail an admissions program that is not the one [North Carolina] has crafted." Even Roberts got into it a bit, attacking Sotomayor's opinion: "[D]espite the dissent's assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today. (A dissenting opinion is generally not the best source of legal advice on how to comply with the majority opinion.)"
Whew! To say that this is "pointed" would be the understatement of the year.
Still, in his last opinion of the year (striking down the Biden Administration's efforts to forgive student loans), Roberts tried to pour a little oil on these troubled waters -- or the court's troubled reputation. In his conclusion to that opinion, Roberts says "It has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary." He adds that, although judges may have differing opinions, "We do not mistake this plainly heartfelt disagreement for disparagement. It is important that the public not be misled either. Any such misperception would be harmful to this institution and our country."
In other words, "Nothing to see here, folks. Just a group of judges judging." It would be nice to believe that. But the tone of a lot of the final opinions says something else.
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