Why I Like This Supreme Court

We have a classically liberal Supreme Court. In three and a half major cases this term SCOTUS’ decisions made America better. As a classical liberal, I support the Court’s decisions in three of these cases and I kind of support the fourth (hence the half).

But before I get to that it’s important to note that the Court has moved to the center compared with the previous term. In fact, according to a New York Times analysis, the most liberal justice, Sonia Sotomayor, was in the majority 65% of the time, up from only 40% in 2022. And the center-right Chief Justice John Roberts has reasserted himself while extreme conservative Justice Clarence Thomas has lost some of his influence. Overall, there were more unanimous decisions and more decisions involving a mix of conservative and liberal justices in the majority.

Here are the four cases that I (and most everybody else) thought were most significant.

SCOTUS reasserted the balance of power among the three branches. Let’s start with a decision with which my fellow Democrats agree. In Moore v. Harper the Court snuffed out the “independent state legislatures” theory. This doctrine, pushed by conservatives, would have handed legislative redistricting, and possibly even the awarding of electoral votes, to state legislatures exclusively. Governors and even state supreme courts would have had nothing to say about it. So, in Wisconsin, Gov. Tony Evers was able to carve out one more congressional district that is competitive for Democrats. Republicans challenged it, but the state Supreme Court sided with Evers. If the Moore case had gone the other way, legislative Republicans could have scrapped Evers’ map and recreated their solid seat. But the three liberals on the Court were joined by conservative justices John Roberts, Brett Kavanaugh and Amy Coney Barrett to forcefully reject that idea and, I hope, consign the independent state legislatures doctrine to the ash bin of history.

And, by the way, there are at least two more significant decisions that liberals liked. The Court ruled that Alabama must create a second Black congressional district and it ruled in favor of continuing a practice of giving Native American tribes control over the placement of Indian children.

SCOTUS reinforced the value of personal responsibility and individualism. In a previous post I listed a dozen reasons why it was a bad idea to pay off student debt. But the most fundamental problem was that it was morally corrosive to American society because it undermined the value of personal responsibility and the seriousness of contracts. Moreover, it treated every eligible borrower the same regardless of their personal circumstances. The Court’s 6-3 decision against Pres. Biden’s authority to unilaterally cancel over $400 billion in student loans struck a blow for personal responsibility and for treating people as individuals rather then as cogs in a system or faceless members of a victimized group.

SCOTUS raised equality above “equity.” I used to support affirmative action. When I was mayor of Madison the main thrust of the program was to ensure that every pool for an open city job had a diverse group of applicants. You can’t have a diverse workforce if you don’t have a diverse group of candidates. I was for that. But in recent years affirmative action, which is a broad category that includes all kinds of programs in public and private institutions, has morphed in some places into compensatory discrimination to make up for past discrimination. I cling to the old liberal notion that the enemy is discrimination itself, not white people or men or some other group tarred as “the oppressors.” The idea that we should discriminate in the present to make up for discrimination in the past has two fatal flaws. First, when do we decide that we’ve had enough discrimination to even the score and who gets to make that decision? Chief Justice Roberts made that point explicitly when he wrote in his majority opinion: “It is unclear how courts are supposed to measure any of these goals, or if they could, to know when they have been reached so that racial preferences can end.” And second, we’ve taken a universal good that everyone can support — treat everyone equally — and made it a divisive concept — we’ve going to discriminate against you in the service of some higher good. Why on earth would any group willingly submit to discrimination to make up for the sins of their great grandparents? Affirmative action is deeply unpopular with the American people and for good reason. The 6-3 conservative majority did the right thing by ruling against racial discrimination in college admissions. I hope that will have ripple effects in other affirmative action programs beyond higher education. That may already be happening.

SCOTUS restated the primacy of free speech. The fourth decision is more problematic. The Court sided with a Colorado web designer who wanted to expand her business into working on wedding sites but didn’t want to serve same-sex couples owing to her religious beliefs. The 6-3 Court majority decided that this was about free speech and that people engaged in speech — like artists, photographers and web designers — could not be forced to produce speech with which they disagree. They said that the same principle does not apply to public accommodations, like reception halls and hotels. That could be a slippery slope though. What about caterers who see their fare as self-expression? On the other hand, you could make a case that the free market will make this all work out. For example, I wouldn’t give my own business to a baker who I knew refused to serve same-sex clients. And, of course, there are plenty of web designers out there. If this one doesn’t want to work with same-sex couples they’ve got lots of other options and why would they want to give the bigots their business anyway? So, while I’m not entirely comfortable with this decision, I like the overall thrust of it. In an environment where the hard-left wants to squelch an ever-growing body of speech that it finds offensive, the Court said that free speech takes precedent. I’m troubled by some of the implications of this case, but I like the broad message it sends: free speech is a value that supersedes a lot of other things. The First Amendment is first for a reason.

So in these four cases the Court turned back a fundamental threat to American democracy, reasserted the value of personal responsibility and individualism, bolstered equality over “equity,” and strengthened free speech. That’s a good day’s work.

One final observation. Equality. Individualism. Free speech. Those classical liberal values were once fundamental beliefs for American liberals. Why is it that those values are now defended by conservatives? And who are the real liberals these days anyway?

A complete roundup of the Court’s decisions can be found here.