This post includes several recent articles and editorials from Liberation News on recent Supreme Court decisions.
Affirmative action ruling an effort to preserve the status of a tiny elite
by Liberation Staff; originally published on June 29.
The Supreme Court today struck a devastating blow against one of the most important tools available to combat the intense segregation felt in nearly every area of society: affirmative action. Today’s ruling in lawsuits brought against Harvard and the University of North Carolina effectively ends this practice in higher education based on the deeply ironic rationale that it violates the Equal Protection Clause of the 14th Amendment. The majority opinion’s assurance that “nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life” – meaning that it is not banning an applicant from, for instance, mentioning the fact that they are Black in a personal essay – is meaningless in the face of the historic attack on racial equality that the rest of the ruling constitutes.
In an outrageous distortion of history, the six right-wing justices who voted for this ruling presented it as part of a long legacy of decisions that removed racial discrimination from the law, like Brown v. Board of Education and Loving v. Virginia. The policies adopted by educational institutions, or any other powerful institution, cannot be understood outside of their social and historical context.
Decisions like Brown and Loving helped overturn the explicitly white supremacist political system that had been in place since the foundation of the country. In those cases, of course the demand was to strike down the explicit references to race in the law. But formal legal equality does not on its own translate into social equality. Black, Latino and other oppressed communities remain overrepresented in the lowest-paying jobs, the most neglected neighborhoods and the most underfunded schools. It was to address this reality that affirmative action programs began to be implemented in the 1960s and 70s, aiming to guarantee representation especially at educational institutions.
Opponents of affirmative action pretend to be standing up for poor and middle class white students who these right wingers claim are victims of “reverse racism.” But the six millionaire judges who ruled on this case don’t give a damn about working class students of any race – and neither do the ultra-wealthy donors who bankroll the falsely-named “Students for Fair Admissions” organization that is the plaintiff in the case. What this ruling is really about is retaining the privileges of a tiny elite.
The court did not say anything about Harvard’s practice of “legacy admissions,” for example. Between 2014 and 2019, the overall acceptance rate for Harvard was six percent. But for legacy applicants whose family members also attended Harvard, the acceptance rate was 33 percent. To the tiny handful of overwhelmingly white, ultra-rich families that have ruled this country for centuries, prestigious institutions of higher education are only for them. Their children get every advantage in the world from the moment they’re born. The admission of Black and Latino students as well as the admission of poor white students is an affront to the unequal social order that they view as natural and god-given. They are also horrified at proposals to make higher education free and forgive student debt.
How affirmative action was won – and came under attack
Jim Crow apartheid in the United States came to an end because of the heroic struggle of the Black liberation movement in the 1950s and 60s that shook the ruling class to the core and forced them to adopt a more democratic form of government. Oftentimes, it was the struggle of existing students that forced universities to adopt affirmative action policies. For instance, the Third World Student Strikes at UC Berkeley and San Francisco State University in 1968 and 1969 — led by an organization of revolutionary students called the Third World Liberation Front — led to some of the first affirmative action programs in the country and the creation of the first Ethnic Studies programs.
As legal segregation was uprooted with the passage of the Civil Rights Act of 1964 and the Voting Rights Act of 1965, the Black liberation struggle began to focus on demands for even more sweeping social transformation. Latino, Native, Asian and progressive white people came into the struggle in huge numbers as well, and threatened the capitalist system itself. Many institutions felt compelled to accept demands that they institute affirmative action policies.
But what happened next illustrates a fundamental truth about concessions secured under the existing system: Any progressive gain that is won can be taken away. In 1978, the Supreme Court issued the Bakke decision, which weakened affirmative action by banning the use of quotas. The inclusion of race as one factor of many in admissions processes was upheld in subsequent decisions, but on an increasingly narrow basis. The 2003 Grutter decision arbitrarily suggested that in 25 years affirmative action programs will no longer be necessary, and the 2016 Fisher ruling imposed the legal standard of “strict scrutiny” to existing programs.
What is needed in this moment is in fact a massive expansion of affirmative action, not its de-facto prohibition. A comprehensive, national program of affirmative action truly capable of uprooting racial inequality would ensure that Black, Latino and Native students who are subjected to the worst poverty under this system are the principal beneficiaries, as opposed to class strata that are subjected to less extreme material deprivation. And it should be applied not just in education, but in housing, the job market and other key areas of society as well.
Supreme Court buries 43 million people in debt
by Liberation Staff; originally published on June 30.
Today, the Supreme Court proved yet again its vicious anti-worker character by ruling against the student debt relief program and ordering tens of millions of borrowers to pay hundreds of billions of dollars that would otherwise have been forgiven. This is a huge attack that piles on even more economic pain amid inflation and a possible recession.
Forty-three million people in the United States are burdened by debt from student loans — totaling $1.75 trillion. This outrageous state of affairs stems from the fact that under capitalism education is treated as a commodity to be bought and sold. Universities are run like businesses, with the goal of squeezing as many tuition dollars as possible out of their students. Over the last 30 years, inflation-adjusted tuition for public colleges doubled and now stands at $10,740 a year. The increase was even more dramatic at private colleges, ballooning by nearly 150% to $38,070.
Hardly any worker can afford to pay these huge sums out of pocket. Debt has filled the gap, skyrocketing to the point where the amount owed to lenders is now the same size as the entire economy of South Korea.
While Biden is the one who issued — under intense pressure — the executive order on debt relief, it is important to remember how he earlier had helped make the crisis much worse. As a Senator, Biden was a key backer of a landmark 2005 bankruptcy law that greatly strengthened the hand of creditors at the expense of borrowers. One of the key provisions of that law was to make it virtually impossible to have student debt wiped out in a bankruptcy. Thanks to the efforts of Biden and his colleagues in Congress, student loans have a special status that allows them to follow people for the rest of their lives, even if they go completely broke trying to repay it.
Biden now says he will use provisions in the Higher Education Act — instead of the HEROES Act — to pursue a new student debt relief program. He should have done that in the first place. But his goal in August when he announced the original program was to boost the dismal popularity of the Democrats heading into the midterm election — its ability to withstand a legal challenge after the vote in November was of secondary importance.
Supreme Court pushes dangerous legal doctrine
The court’s decision to overturn student debt relief is the latest instance of the “major questions doctrine” being used as a weapon against workers. To the extent that there are any restrictions placed on the right of corporations to exploit the people and the planet for profit, they are often imposed by regulatory agencies that are part of the executive branch of government. These agencies have been empowered to take action to enforce things like clean air or safety standards, and have discretion to issue new rules to keep up with the evolving nature of different industries.
The major questions doctrine in essence says that no such authority can exist under the constitution. On any “major question” affecting society, right-wing lawyers argue, no measure can be carried out that is not explicitly authorized by Congress. This leaves only the most mundane issues that are least likely to impact corporate profit for regulatory agencies to deal with.
The justices cited the major questions doctrine in their ruling overturning student debt relief. It has also been used recently to overturn the nationwide eviction moratorium and eliminate the Environmental Protection Agency’s ability to regulate greenhouse gas emissions that cause climate change.
This legal theory is a massive gift to the ultra-rich. The executives who sit on corporate boards — and sometimes lavish justices with luxury gifts — are who the Supreme Court truly serves. The right of everyone else to get an education, live in a home or breathe clean air is of no importance to the court. It is long past time for this rotten institution to be abolished.
Supreme Court rules anti-LGBTQ discrimination is legal
by Morgan Artyukhina; originally published on July 01.
In a 6-to-3 ruling on Friday, the Supreme Court gave the green light for businesses to discriminate against LGBTQ customers. In cruel twists of logic, Justice Neil Gorsuch claimed that the Colorado Anti-Discrimination Act (CADA) was not protecting civil rights, but “compel[ing] an individual to create speech she does not believe,” and extolled the public to practice “tolerance, not coercion” when confronted with intolerant bigots who would deny equal access to businesses that are open to the public. Under the court’s ruling, all the business owner would have to do is claim that the product they are providing is “expressive” in nature.
The case, 303 Creative LLC v. Elenis, dealt with Lorie Smith, the owner of a company that, at least in theory, makes websites for the weddings of paying customers. Smith claimed it was her right to discriminate against potential LGBTQ patrons and to refuse to make a website for same-sex couples because it would go against her religious views, and she sued the state of Colorado to challenge an anti-discrimination law preventing her from doing so.
It’s important to note that not only has Smith never been asked to make a wedding website by a queer couple, 303 Creative has never made any such website before for any couple at all! The New Republic contacted the man Smith claimed had inquired about making a site for him and his husband, only to find that the man is heterosexual, was married to a woman when he allegedly made the inquiry in 2018, and also had never made such an inquiry at all!
Thus, the entire case was theoretical, crafted so that the far right could present the conservative-majority Supreme Court with an opportunity to rule against LGBTQ rights.
Smith was represented in the case by the Alliance Defending Freedom (ADF), a far-right group that has led the attacks on abortion rights and LGBTQ rights across the country, pushing one bigoted law after another, including Mississippi’s anti-abortion legislation that was at the heart of the Dobbs v. Jackson decision that the court used last year to eliminate the nationwide right to an abortion.
This wasn’t the first time Colorado’s anti-discrimination law was targeted by the far right in a fight that made it to the Supreme Court. In 2018, Masterpiece Cakeshop v. Colorado Civil Rights Commission, which also concerned a bigoted shop owner refusing service to LGBTQ patrons on religious grounds, was argued before the high court. That case was also brought before the court by the ADF. The court ruled in favor of the bigoted shop owner on procedural grounds, but did not strike down the law itself or others like it.
The 303 Creative ruling is the latest example of how the court is emboldened to push its far-right agenda forward. Just this week, that agenda has also included a racist attack on affirmative action and a ruling overturning student debt relief. Only a mass movement to defend LGBTQ rights and the rights of all working-class and oppressed people under siege is capable of turning back the far-right attack against us. In the absence of such a mass movement, we have seen how the Supreme Court will feel emboldened to make increasingly outrageous, reactionary decisions. But public disgust with the court is mounting, and public opinion increasingly sees the court’s authority as illegitimate.