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July 6, 2023

SCOTUS Rulings — Why Not 9-0?

Regardless of their political preferences, Supreme Court justices ought to be able to agree on constitutional fundamentals.

The U.S. Supreme Court finished its term last week with a trifecta of landmark rulings: one disallowing race-based admissions to universities, another confirming an individual’s First Amendment right to follow her conscience in producing artistic work, and a third rejecting the president’s executive order on student debt forgiveness.

Each ruling was decided by a 6-3 vote, along conservative/progressive lines. Each was expected, and each was profoundly important in its own way.

As usual, the Court’s actions were politically controversial. The “progressive” Left, anticipating the outcomes, was primed and ready with prepackaged outrage about right-wing extremism, racism, callousness, etc. On the other side, conservatives were fully supportive of what they considered to be sound and sensible rulings.

But why 6-3 votes? Why not 9-0? Politics aside, the three matters at issue seem constitutionally simple and straightforward. Should we not expect preeminent jurists sitting on the highest court of the land to set aside their political preferences and evaluate each case solely on its legal merits?

Of course, that’s a loaded question. We know the answer: Our U.S. Supreme Court, contrary to the clear intentions of our Founders, has become thoroughly politicized. The current Court’s three leftist members were selected by Democrat presidents based on their “progressive” bona fides and are seen as representatives of that segment of the American populace. And frankly, the same partisan alignment is true of the six conservative members.

But it’s a question worth asking, for several reasons. The Court has not always been this partisan. The primary reason for lifetime appointments to the Supreme Court is to free the justices from political pressures. Over the years, we’ve seen justices refine their thinking, often supporting positions they once would have rejected out of hand. Their job is to rise above the political fray of the moment and reach objective, apolitical conclusions, every time.

Consider each of last week’s decisions:

The Court’s ruling on race-based university admissions is nothing less than a reinforcement of our Constitution’s guarantee, to every citizen, of equal protection under the law.

America was founded on that principle, asserted in the Declaration of Independence (celebrated this week), implemented in the Constitution, and reiterated unambiguously in the Equal Protection Clause of the 14th Amendment.

Delivering on the promise of true equality has not been easy. Over the past 60 years, affirmative action policies and practices have arguably contributed to remarkable advancement for minorities; but it’s no surprise that mechanisms intended to level the playing field by tilting it down in one direction result in an uphill tilt in the other.

It is clear now that perhaps well-intended university admissions practices to prevent discrimination against blacks have had the unintended consequence of discriminating against Americans of Asian descent. That’s unconstitutional. And as Chief Justice John Roberts keeps reminding us, the best way to prevent discrimination is to stop discriminating.

It’s an easy call — a perfect candidate for 9-0.

In the case of the artist unwilling to produce a design (a same-sex wedding website) at odds with her religious convictions, the Court confirmed that the First Amendment guarantees her that right. The sexual orientation of those who asked her to do so is irrelevant. Another good candidate for a 9-0 vote.

And regarding student loan forgiveness, the constitutionally prescribed separation of powers is about as clear as it can be. The president (and perhaps three Supreme Court justices) may support the concept of loan forgiveness, but only Congress can decide that taxpayers should foot the nearly half-trillion-dollar bill. This one is a third slam dunk — a sure-fire 9-0 candidate.

An independent, apolitical judiciary is central to the health and stability of our government. But right now, public confidence in our Supreme Court is at an all-time low. That’s not an accident; it’s a political calculus — and it’s bad for the country.

What started as a fierce (and at times violent) reaction by the Left to the Court’s 2022 decision to overturn Roe v. Wade has ballooned into a concerted attack on the Court itself. It’s working. Convincing Americans that their Supreme Court justices and the Court’s rulings can’t be trusted has proven to be an effective political tactic; it was a major factor in the 2022 midterm elections, and Democrats surely plan to fan those flames again in 2024.

Our Supreme Court justices cannot fix political hyperpartisanship, but they can refuse to be drawn into it. Like all American citizens, they have every right to hold and express whatever views they choose. But they simultaneously have a responsibility to render apolitical judicial decisions.

And a few 9-0 votes on contentious but obvious issues would speak volumes about national unity.

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