“If it were not for injustice, man would not know justice.”
－ Heraclitus, Ancient Greek philosopher
Hello Downriver,
Convergence is a cool word.
Our world is filled with moments of convergence, when otherwise disparate moments meet because of a commonality; that some aspect of their separate existences bring them together.
Such was the case last week when the U.S. Supreme Court did the expected — since it’s now completely out of touch with American society — and rejected precedence and established new law.
Sound familiar?
It should: The high court did the same thing last year when it rejected 50 years of precedent and overturned the core ruling in Roe v. Wade.
This time, the court overturned — by 6-3 and 6-2 votes — generations of precedence concerning affirmative action.
Of course, the surface arguments to rid our nation of this offensive practice is that it penalizes white people; that to give people of color an additional reason to admit them to college put them at an unfair “advantage.”
Now, over the years, the idea of quotas was rejected and in many states — including Michigan — voters said they didn’t want race to be a factor at all in university admissions.
Like I said, though, that’s the surface argument.
But the nuances run deep, and deserve their time in the sun.
Which is where convergence rears its head: This ruling comes in the midst of culture battles over something called “Critical Race Theory (CRT).”
What’s that?
Essentially, CRT asserts that our social institutions — such as our criminal justice system, education system, labor market, housing market and health care system, etc. — are racist in practice because the laws, regulations, rules and procedures that govern their operations lead to different outcomes.
Based on race.
Which brings us back to the Supreme Court’s ruling last week concerning affirmative action — a policy specifically designed to offset 200-plus years of systemic racism.
“Racial classifications are simply too pernicious,” Chief Justice John Roberts said at the beginning of 50 minutes’ worth of his reading of his ruling.
In his opinion, he also referred to the famous Brown v. Board of Education ruling of 1954 — with his own interpretation: “The conclusion reached by the Brown Court was thus unmistakably clear: ‘The right to a public education ‘must be made available to all on equal terms.’”
Of course, Roberts and his conservative cronies made no mention of “legacy” students, who get a leg up in admissions because their old man or mom attended some hallowed hall.
Rather, Roberts, et al, ignored reality and instead used a fatuous argument of wanting to level the playing field as an excuse to retip the playing field.
In short, he wanted — by design of his own voice — to say discrimination doesn’t exist if we just say it doesn’t.
Systemic racism be damned.
Indeed, taking his argument one step further (too far?), Roberts insisted that his vote was supported by the Constitution’s 14th Amendment “equal protection” guarantee; that, in his opinion, it forbids the use of race as a factor in deciding educational opportunities.
The problem with that interpretation, of course, is that the amendments derive both from the specific intentions of the Declaration of Independence plus the core purpose of the Constitution — which can be found in its preamble.
In that passage, our founders wrote about wanting to “form a more perfect Union, establish Justice,” etc., etc.
And they wanted this done not just in the here and now, but for “our Posterity … .”
But what kind of “justice?”
Well, the Declaration says it best — in words we’re all familiar with: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
Of course, the problem is that our nation from the beginning failed to live up to that promise, it failed to provide a true measure of justice.
Not only did our nation engage in the slave trade, but women were second-class citizens from the start, who to this day struggle to be treated equally with men in the working world.
(Not to mention control of their own bodies.)
In my lifetime, both systemic racism and systemic misogynism have required acts to help recoup (or at least mitigate) the losses felt by these segments of our society.
Hence civil rights legislation, Title IX and the original Roe decision.
Which is what the uber-conservative majority of the Supreme Court fails to comprehend in this most recent ruling — and what they fail to understand about their role in our society.
For in our Declaration of Independence — and delineated in our Constitution — our government is “instituted among Men, deriving their just powers from the consent of the governed.”
Us.
And our needs, hopes and dreams can be found in those same documents: equity, equality (two different things) — and justice.
Not just a perversion of “equal justice” that ignores reality, but justice that makes things “right.”
Indeed, the high court has a fundamental obligation to take into account our consent of its rulings; that if they become too far afield from the core principles of the Declaration or Constitution — as living, breathing documents filled with universal truths — then the court’s very legitimacy comes into question.
(Is it any wonder that popular perception of the high court is at an all-time low?)
Ironically, the Supreme Court recognized that need for justice when, in a separate 5-4 ruling last week, it said that Alabama’s Republican-drawn congressional map violated Black voters’ rights, which are protected by the Voting Rights Act.
In short, the court said race matters when it comes to representation in our Congress and legislatures — but not when it comes to our colleges and universities.
Which brings me to a third point of convergence: The high court’s ruling that rejects President Biden’s forgiveness of up to $20,000 in student debt for about 43 million Americans.
Now, I completely understand the opposition to such a deal: Those of us who paid back our student loans don’t get any back-dated help, so why should current debtors get a bailout?
But such a view — as is the case with the affirmative action ruling — ignores the fact that times change; that today’s student loans aren’t the same as in times past.
It ignores news reports that have consistently shown predatory lending coupled with for-profit college and universities and training schools that offered bogus degrees and no hope for post-graduate employment.
Should such loans be considered in the same vein as those of my generation, taken out to complete traditional coursework at major colleges and universities?
Of course not; different times, different situations.
But the court didn’t see any difference, and rather than address the nuance of social change, the majority took the easy way out and simply said the president didn’t have the authority to invoke the HEROES (Higher Education Relief Opportunities for Students) Act unilaterally.
The majority said Biden couldn’t do it because the step hadn’t been explicitly approved by Congress.
Well, of course not; Congress never works quickly to correct inequities in our system: the Brown v. Board of Education ruling came 10 years before Congress passed the Civil Rights Act.
In short, the courts are always ahead of the social curve.
When they’re not.
Such as when this conservative Supreme Court deliberately decides to regress — rather than progress toward that more perfect union; when it decides to ignore precedent (stare decisis) in favor of ideology — not justice.
Those of us who watched the confirmation hearings for Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, knew this was coming: They were pushed onto the court to carry water for the most extreme wing of the right.
And that Federalist Society wing is getting what they paid for: An ultra-right political agenda on the high court that simply rejects its need to consider the “consent of the governed.”
The solution?
It would be easy to ask for an increase in the size of the court (the Constitution is silent on this), but that would be perceived as another “court packing” attempt tried by FDR when he wanted to increase the size of the court by appointing an additional justice for everyone not retired by age 70.
(This would have allowed him to quickly nominate as many as six new justices for the bench.)
But if not a mandatory retirement age, then why not staggered term limits?
And then pass a Senate rule that mandates the confirmation hearing of a judicial nomination at any time during a president’s term?
(That would have prevented Mitch McConnell from denying Merrick Garland a hearing — because it was “too close” to a presidential election in 2016 — yet jamming through Barrett one month before the November 2020 election.)
Of course, that’s not going to happen until Democrats retain the White House and Senate and retake the House — which gives 2024 even more meaning for court watchers.
But I don’t want change on the high court because I object to these specific rulings (I do), but because I object to the high court’s rejection of precedent, dismissal of social change and its refusal to provide that the last line of defense for justice in our society.
Craig Farrand is a former managing editor of The News-Herald Newspapers. He can be reached at cfarrandudm@yahoo.com.