It’s for the 70%.

PERHAPS SCOTUS TEASED the decisions announced Friday on Thursday when it ruled, correctly, that affirmative action violated the Equal Protection Clause—a return to the wisdom contained in our Constitution by the Court. Friday held two widely anticipated rulings, one of which concerned the obviously unlawful scheme of the Biden regime to ‘cancel’ student loans of some 40 million borrowers who voluntarily undertook the financial obligation to pay them back in exchange for their higher educations. It was the climax of the Court’s term. 

The case was Biden v. Nebraska, and the majority, 6-3, opinion was penned by Chief Justice John Roberts. It reversed and remanded a case arising from the Eighth Circuit.It held that the Secretary of Education does not have authority under the Higher Education Relief Opportunities for Students Act of 2003 to create a student loan cancellation program, which, in this case, would eliminate about $430 billion in debt principal, and affect almost all borrowers. Justice Amy Coney Barrett concurred and Justice Elena Kagan dissented, joined by Justices Sotomayor and Jackson. The opinion is here; the Writ of Certiaori, here.

The Education Secretary was Betsy DeVos under the Trump administration when the federally-guaranteed student loan payments were originally suspended at the start of the Covid-19 pandemic. She relied on the HEROES Act, passed immediately after 9/11, which allowed the secretary to “waive or modify any statutory or regulatory provision” so borrowers would not be penalized financially because of the emergency. When the Biden regime took over, it was decided to permanently ‘cancel’ up to $20,000 in loans to fulfill a campaign promise he made. Federal courts in Missouri and Texas decided to do some cancelling themselves and placed the program on hold in 2022, but the regime took the matter to the Supreme Court. Ultimately six states challenged the regime arguing the scheme violated the terms of the HEROES Act and other federal laws. 

Naturally, as a matter of jurisprudence, the Court had to determine if the states and two representative borrower class members had standing, or a legal right to sue at all. Standing is perhaps the best safeguard the government has in litigation today. Standing makes many an otherwise good case fall flat on its metaphoric face. The individuals were found to not have standing (and that would be correct, IMO), but a state did, according to the Eight Circuit Court of Appeals (also correct). Essentially, the costs to the states were significant and would limit its ability to continue its higher-education programs. SCOTUS upheld that ruling, and on the merits, ruled the scheme did not comply with federal law. 

Roberts analogized the “modification” of the scheme under Biden to the French Revolution, which, he said, “‘modified’ the status of the French nobility—it has abolished them and supplanted them with a new regime entirely.” Roberts also emphasized the question was not whether something should be done, but who had the legal authority to do it. He looked to the so-called “Major Questions Doctrine,” which is the notion that if Congress wants to delegate decisions of consequential economic or political significance to an administrative agency, it must expressly state so in the statute, which, here, it did not. (He also took a subtle jab at the Biden  regime by observing the tendency to say the Court exceeds it authority when one simply disagrees with the decisions, but I digress…)

Barrett concurred, saying the Major Questions Doctrine only reinforced, but was not necessary to reach the decision which vastly exceeded what “Congress could reasonably be understood to have granted in the HEROES Act.” 

Kagan’s dissent rested on standing, which she did not think existed, meaning the Court should not have ruled on it at all. Instead, she said, the state higher education authority had standing and should have sued instead. (As a practical matter, it should have joined the State to ensure the argument would not be the basis of the decision of the Court’s majority. Still, it’s hard to see how this wasn’t an outcome-based decision on her part, because it would have been so easy to remedy.) 

Regardless, she claimed the text of the Act authorized the scheme, otherwise, the Act was rendered inconsequential. As for the Major Questions Doctrine, she said Congress delegated frequently, and the Court shouldn’t second-guess it because it is a “major problem not just for governance, but for democracy too” because when the Court intervenes, it “becomes the arbiter — indeed, the maker — of national policy.” (That’s right Elana, the Court is an arbiter because it is one of our democratic republic’s three co-equal branches of government—it is its job. Oh, and BTW, at no time did Congress step in and amend the statute here.)

As for Biden, he wasted no time doing exactly what Roberts noticed—he called the Court’s decision “wrong” and vowed to continue to fight for it and take further steps, whatever that means. I bet he will. Apparently, over 70% of young voters were motivated to vote for him due to his ‘fight’ for ‘free money’ in ‘cancelling’ student debt. It was, in true Biden fashion, a bribe and corrupt to the core.

Affirmative Action Is Affirmatively Discriminatory (But Sometimes Okay)

ON THURSDAY, THE U.S. SUPREME COURT issued its opinion in two cases, Students for Fair Admissions, Inc. v. University of North Carolina (from the Federal District Court for the Middle District of N.C.), and Students for Fair Admissions Inc. v. President & Fellows of Harvard College (from the Court of Appeals for the First Circuit), holding, in both cases, that the admissions departments at both schools violate the Equal Protection Clause of the 14th Amendment because of its affirmative action programs. A link to the U.N.C. decision is here and writ of cert here; Harvard, here and here. The cases were consolidated for judicial economy but argued separately. Justice Jackson participated only in the UNC case due to a conflict from having been on Harvard’s board of overseers.

By a vote of 6-3, the Court found the Equal Protection Clause was violated in these schools’ use of affirmative action programs in their admissions decisions that denied highly qualified Asian students while accepting lesser qualified black or other minority students. 

Writing for the majority, Chief Justice John Roberts effectively, but not explicitly overruled a 2003 decision in Grutter v. Bollinger (read here), clarifying that admissions departments can consider race only as to permit an applicant to explain how race may have affected their character in a fashion that would have a concrete effect on the school, but “a student “must be treated based on his or her experiences as an individual — not on the basis of race.” Roberts notably emphasized the important fact that admissions are zero-sum propositions, and affirmative action could use race in a “negative” manner. “[D]oing away with all governmentally imposed discrimination based on race,” he wrote, reflects the Clause’s “core purpose.” Grutter had held race could be considered “as one factor among many, in an effort to assemble a student body that is diverse in ways broader than race.” 

Justice Clarence Thomas wrote a concurrence, emphasizing that the 14th Amendment imposes “a blanket ban on race-conscious policies.”  He added that by placing less qualified students in more competitive programs, it can have an undesired effect of making those students less likely to succeed. And finally, he observed that they may be harmed by the stigma that they obtained their degree because of race rather than merit, something he said he experienced in his memoir. Justice Brett Kavanaugh also wrote a concurrence where he stressed the role of federal and state civil rights laws going forward. 

Justice Sonia Sotomayor dissented, joined by Justices Elena Kagan and Ketanji Brown Jackson. Sotomayor, a graduate of Princeton and Yale Law School, had once described herself as “the perfect affirmative action baby.”

Immediately after the decision was announced, so-called progressives were fit to be tied. Race-baiting is, for many of them, their stock and trade. A state of perpetual victimhood is good for business for some, too. (Try being a straight, white male in 2023 and you’ll see why there is, at this late date, sympathy fatigue.

In fact, today’s decision is hardly radical. Roberts expressly stated race could be considered on a case-by-case basis (as when an applicant discussed ‘how race affected his or her life, be it through discrimination, inspiration, or otherwise’.” , and in any event, there will surely be covert preferences by some admissions departments because they are governed by a hierarchy which likely reached its levels through affirmative action themselves. 

Furthermore, the colleges and universities will be watched closely and their admission decisions scrutinized to ensure there is no bias against minority students. If there is, or perceived to be discrimination, bet your life it will be litigated (and judged under the rather un-elucidating standard enunciated on Thursday. There were nearly 100 amici filing briefs in these cases.

Indeed, is is quite possible, especially in our ‘woke’ world, that, in an ongoing effort to outdo one another, the opposite will happen. The schools will be wanting to signal their virtue to be ‘celebrated’ for their commitment to ‘diversity, equity, and inclusion.’   (See, e.g., here.) In fact, schools now offer degrees in the soft pseudo-science of socialist-inspired DEI, where students applying will surely be able to thrust race into the forefront of their applications under Roberts’ latest edict.

Of note, the decisions only apply to higher level educational institutions, not to workplaces. Nor does the decision affect service academies such as West Point or the U.S. Naval Academy.