Sandra Day O’Connor Dies at 93.

IN WHAT IS A SPATE of deaths of really old people, we can add Sandra Day O’Connor, who died last week at age 93. She reportedly suffered from dementia.

O’Connor was the first female Supreme Court Justice who was appointed by President Ronald Reagan in 1981, serving until 2006. She was then replaced by Justice Samuel Alito. (Alito was controversial: revered and condemned by many for in 2022 writing the majority opinion overturning the federal right to abortion established by Roe v. Wade and Planned Parenthood v. Casey. The decision returned abortion to the states, being a political question, not a legal one.) 

Her career spanned many legal issues. She tended to skew a little libertarian early in her career, but hers were never knee-jerk opinions. Hers weren’t extremist even if critics didn’t like them.

She, for instance, supported affirmative action and even wrote the majority opinion in a 5-4 court in Grutter v. Bollinger in 2003, which upheld race-based admissions at the University of Michigan Law School. She did have a limiting principle, however. Affirmative action couldn’t continue ad infinitum. It had to have an expiration date, according to O’Connor, who thought that 25 years from then, it would no longer be necessary. (That Opinion is here.)

It wasn’t until early this year racial preferences in college admissions were finally overturned by the Court in Students for Fair Admissions v. Harvard, here. 

Interestingly enough, early in her career, the Stanford grad was a member of the AZ state senate, becoming majority leader. She then served as a judge of the Maricopa County Superior Court. One can’t help but wonder if she was mentally able to understand what unfolded in her state in 2020 with President Trump and in 2022 with Kari Lake, and, if so, what she thought about it all. (Not so hard to figure.)

O’Connor’s husband John died with Alzheimer’s three years after she retired. She is survived by three sons, six grandchildren, and a brother. She authored five books as well as having created iCivics, a nonprofit civics education platform that helps American students understand government better.

Four women have been appointed since O’Connor: Sonia Sotomayor (token Latina), Elena Kagan (new token Jew), Amy Coney Barrett (token religious zealot), and Ketanji Brown Jackson (token idiot). (As proof of the last characterization, Jackson said she refused to say what the definition of a ‘woman’ is at her confirmation hearing, though those who confirmed her are equally ‘token idiots’ in advice and consent.)

“Disagreement Isn’t Discrimination.”

FRIDAY WAS A BIG DAY for the U.S. Supreme Court. Aside from its highly watched student loan decision, it decided a gay website case. It was a set up, of course. It wasn’t about serving a gay person (or couple) a meal at a restaurant or allowing them to stay in a hotel room. It wasn’t even about decorating a generic wedding cake for a couple of this protected class. It was about speech.

Lorie Smith, a Christian graphic designer of websites, believes marriage should be between a man and a woman. Colorado’s anti-discrimination laws required her to do her designs, including creating art and writing for same-sex weddings, if she wanted to work in her field at all. The Alliance Defending Freedom represented her in a case before the Court which asked, “Can the government compel an artist to create custom artwork or speech that goes against the core of who that artist is?”SCOTUS said no, 6-3, and ruled that Colorado could not force Smith to create art that offended her religious beliefs. 

“The First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees,” wrote Justice Neil Gorsuch, holding for the majority. The usual suspects dissented: Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson.

ADF C.E.O. Kristen Waggoner said in a statement:

“Disagreement isn’t discrimination, and the government can’t mislabel speech as discrimination to censor it. Lorie works with everyone, including clients who identify as LGBT. As the court highlighted, her decisions to create speech always turn on what message is requested, never on who requests it. The ruling makes clear that nondiscrimination laws remain firmly in place, and that the government has never needed to compel speech to ensure access to goods and services.”

Many in the liberal press or MSM didn’t quite grok the decision, of course, claiming it somehow discriminated against LGBTQ persons rather than celebrated the First Amendment right of free speech, we all, LGBTQ and ‘cis-gen,’ enjoy.  The decision in the case, 303 Creative LLC v. Elenis, is here.

Why would any LGBTQ person seriously hire someone like Smith, anyway? Wouldn’t you rather have someone in simpatico design your website? It was a set-up for litigation. No one was actually harmed. They were just making a point in a far-reaching agenda.

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.

Free Speech ≠ Free Migration

ON FRIDAY, The U.S. Supreme Court denied, 7-2, a challenge to a long-standing immigration law that prohibits the encouragement or inducement of an illegal alien to enter or reside in the country. The case is U.S. v. Hansen. The challenge before the Court was that the word “encouraged” in the statute was overly broad and could be unconstitutionally be applied in situations where, for example, a family member “encouraged” an illegal relative to come, or an advocate wrote in favor of illegal migration. Predictably, Justices Ketanji Brown Jackson and Sonia Sotomayor dissented.

To be sure, the facts in the case were extreme and cases like that can result in legal extremes. Here, a man located in Sacramento, Helaman Hansen, charged almost 500 illegal aliens, with no documentation, up to $10,000 to help them become citizens—something he couldn’t possibly do legally. All told, he took in almost $2 million from his scheme. He was charged with 15 counts of fraud and two counts of encouraging and inducing unlawful immigration “for private financial gain,” and was ultimately sentenced to 20 years in prison.

The Court didn’t buy it. Writing for the Court, Justice Amy Coney Barrett said there was no evidence the law was being used in the manner complained of, and the “string of hypotheticals…failed to identify a single prosecution for ostensibly protected expression in the 70 years since Congress enacted [that specific] clause.” Instead, she said it was being used narrowly to prohibit “criminal solicitation” of illegal immigration who make promises to get illegals into the country for a fee. 

Statutes, of course, can be nullified when, for example, they are overly broad, and there is good reason for that. Here, however, Barrett seems to suggest the law is simply for illegal aliens’ own protection, rather than to protect the country and its taxpayers from illegal entry of unauthorized persons and those that encourage them. I haven’t read the opinion yet as it isn’t available, but if this is accurate, while I’d agree with the outcome, I don’t agree with the rationale for the holding.

A better ruling would be to interpret the statute as a proscription against aiding and abetting a federal crime (period), clarifying it is not a proscription against lawful protected First Amendment speech or free press. The law may protect illegals, but it should, in the first instance, protect Americans from the effects of the underlying illegal act.