Dear Editor,
On Thursday, June 29, the Supreme Court of the United States (SCOTUS) effectively struck down the ability of public and private universities to include affirmative action in admission decisions. These institutions of higher education are no longer to consider an applicant’s race as a means of attaining balance across their student bodies. Even though the schools argued that race is only one of many criteria considered in the admission process, the Court indicated that using race as a factor inevitably involves racial stereotyping and, therein, is a violation of the US Constitution’s equal protection clause.
Last month, a Harvard law professor and a San Francisco State University political scientist co-authored “An Open Letter to the Biden Administration on Popular Constitutionalism”. This document effectively calls for President Biden to defy SCOTUS and decide for himself what is constitutional and what is not and then rule through use of unilateral executive power without seeking Congressional approval. The authors stated that “if and when (justices) issue rulings that are based on gravely mistaken interpretations of the Constitution that undermine our most fundamental commitments, the Administration will be guided by its own constitutional interpretations.”
As the open letter seems to be in direct response to the SCOTUS ruling on college admissions and affirmative action, the broader question that is emerging may be “Are Americans losing faith in the efficacy of SCOTUS?” The letter does imply that SCOTUS is illegitimate because it is out of step with public opinion and that rulings are not being made in good faith.
From where I sit, I see this as an ideological attack on the legitimacy of the Court. I regard the Court’s governmental authority as derived from the separation of powers. Article III, Section 1 of the Constitution states, “judicial power of the United States shall be vested in the Supreme Court”. In 1803, through the court case of Marbury v. Madison, the principle of judicial review was established wherein SCOTUS has the ultimate power to declare acts of Congress or the President unconstitutional. It seems the framers gave some consideration to human nature and foresaw a role of SCOTUS as a necessary counter that protects both individual rights and constitutional norms.
With the administration’s oxygen currently being consumed - by the president’s campaigning on the merits of Bidenomics, his son Hunter’s unraveling plea agreement at a recent court appearance, a Congressional review of reporting by Homeland Security Secretary Mayorkas on the migrant crisis, and a House Oversight committee collecting testimony about UFO’s - the open letter story is not receiving the coverage it otherwise might.
However, of note, last week from some 5,900 miles away, the Israeli parliament passed a law that weakens the power of their Supreme Court. Representing a conservative right-wing position, Prime Minister Netanyahu called it a necessary step to bring balance between branches. Yet, in response, President Biden issued a statement that major changes in democracy must have as a broad a consensus as possible.
Since the Court’s affirmative action case ruling, polls have consistently shown that the majority of the public does not support the use of race in college admissions, and applicants should be evaluated on a basis of individual merit. For me, it seems most ironic that some elite representatives of academia posit the role of defenders of democracy while promoting the use of unilateral executive authority to defy both the court and the majority of citizens.
Peter Wibell Rutledge