Jul 8, 2023 5 min read

The reaction to last week’s U.S. Supreme Court decisions took us right back to 2016 in the wake of President Trump’s election victory. Liberals were distraught and acting like children. For example, Boston University law students were offered therapy after the three decisions were handed down.

What is even more troublesome is that in their reading of the decisions they fail to discern the rudimentary difference between policy, what they wish for, and law, what the Constitution mandates, whether they like it or not.

In Students for Fair Admission, the Supreme Court held that race based admissions violate both the letter and spirit of the Constitution. Specifically, they violate the Fourteenth Amendment.

To understand the two sides of the argument regarding affirmative action, one should really read the opinions of Justices Clarence Thomas and Kentanji Brown Jackson. Thomas presents an eloquent case based upon remedies at law. Jackson presents an emotional case focusing on the “historical subjugation of black Americans and categorizing individuals by their race.” She denies Chief Justice John Roberts’ 2006 comment that, “The way to stop discriminating on the basis of race is to stop discriminating on the basis of race.”

Jackson advocates discriminatory practices to cure what she sees as discrimination. Remedies at law require compelling reasons to discriminate based on race. For as long as they have tried, universities are still unable to show the educational benefits of diversity. Even if they could show benefits, the law requires that they must show that those benefits clearly outweigh the harm done to others created by the discrimination. They cannot show this. And lastly, the individual students who benefited from the racist admission policies are not the victims of identifiable discrimination that can be remedied by admission. There is, therefore, no lawful basis to justify the illegal and unconstitutional admissions.

Jackson advocates reallocating society’s riches by racial means as necessary to level the playing field, all judged by racial metrics.

We see in comparing Jackson’s dissent and Thomas’s concurrence a huge contrast between legal analysis and activist rhetoric, a contrast between law and policy. The Constitution forbids courts from entering into policy. That is reserved for Congress. Therein is the whole argument in a nutshell. Activist courts, as liberals wish them to be, must invade the forbidden land of policy which is Congress’s alone. When liberals can’t get what they want from Congress, they turn to activist courts. When they can’t get what they want from law focused courts, they turn to liberal Congresses to dismantle the courts.

Perhaps more galling to liberals, certainly to President Biden, is the Supreme Court ruling in Biden vs. Nebraska, wherein the president’s vote-buying plan to forgive $500 billion in student loans was found to be unconstitutional. This ruling should have surprised nobody. There is no place in the Constitution that gives the executive, by way of the secretary of education, the unilateral ability to rewrite legislation to change or cancel millions of student loans and force the burden of those loans upon taxpayers.

Justice Elena Kagan wrote a dissent that makes one wonder how she graduated from law school. She argues that just because states are affected by the secretary’s actions, that doesn’t mean that they have a right to complain. She further argues that if the ability exists to waive or modify the statute under specific and limited circumstances, license exists for the executive to rewrite the statute. Leftists like Kagan view the administrative state as all powerful. Once they have a mandate to do anything, they believe they are empowered to do everything, even unilaterally rewrite the law. As Kagan argued, since everyone was affected by COVID-19, even taxpayers with no loans, they too would be burdened by this monumental overreach. No problem. Move along. The assumption was, of course, that the student votes were bought and paid for and the rest didn’t count. Just have to love what passes for thinking in the administrative state.

The backlash from those with loans, predictably, has been that they were promised loan forgiveness and now would not be able to live the lives they want if they had to pay back their loans. In what world does one not have to pay back a loan?

Try that with a car or a house. It is indeed possible that having to pay back a student loan may put a damper on the lifestyle some imagined but that is not a reason to offload the loans to those who did not borrow the money.

President Biden has not heard, or understood, a word of the Supreme Court’s decision. He has been on the news talking about a “Plan B” and a “Plan C” to subvert the decision. This seems to have all the earmarks of a criminal act – conspiracy to defraud the United States.

The battle between the law and policy continues. This is a country of laws. The legislature has the ability to turn policy into law, the president does not. One act of racial discrimination does not correct another act of alleged racial discrimination. This is what the Supreme Court has correctly ruled.

Dave Ball is the former chairman of the Washington County Republican Party.