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Never Forget


Millhiser notes the way to keep attention on the bullshit Supreme Court, no matter what happens going forward, is to remain angry about it forever. After all, a big part of what is happening now is the culmination of life long hatred from conservatives of the Warren Court.

Chief Justice John Roberts ended his final opinion of the Supreme Court’s just-completed term by scolding his liberal colleagues. “It has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary,” Roberts wrote in response to a dissenting opinion by Justice Elena Kagan — which laid out in detail how Roberts and his fellow Republican appointees had just gone far beyond the proper role of the judiciary.

Nor was Roberts the only justice this year who intimated that the justices’ rulings are beyond criticism. In an interview published by the Wall Street Journal in April, Justice Samuel Alito complained that the justices “are being hammered daily” by critics, falsely claiming that this level of disparagement is “new during my lifetime.” He also claimed that lawyers, the very people who are most educated about the courts and most capable of explaining their shortcomings, have a special obligation to defend his Court against criticism.

One year after the Court’s GOP-appointed majority overruled Roe v. Wade, the same justices behind that decision remain emboldened, apparently eager to settle old scores, and openly disdainful of those who dare to question the wisdom of their rulings. At least two of them have accepted lavish gifts from billionaires, and are contemptuous of anyone who tells them it is wrong for powerful public servants to do so.

It’s disturbing that two of the nine justices, who collectively have the final word on how to read the First Amendment, would even suggest that they should not be criticized. But it is not particularly surprising. Federal judges, who are not elected, must draw their legitimacy from the public perception that they are obedient to a legal text. Criticisms like the Kagan dissent Roberts responded so sharply to can refute that perception, and feed the rapidly growing disapproval of the Court.


And yet, despite the fact that the Court had time and time again rejected efforts by racial conservatives like Edward Blum — the white activist behind many lawsuits challenging affirmative action — Blum and similarly minded advocates continued to hold a grudge. They were joined in holding onto that grudge by many of the justices themselves, and by powerful groups like the Federalist Society, which played an outsize role in selecting former President Donald Trump’s judicial nominees.

The briefs in Students for Fair Admissions v. President and Fellows of Harvard College, the case that the Court’s GOP-appointed majority used to end affirmative action at nearly all universities last month, raised few, if any, new legal arguments that weren’t heard before by the Court in Bakke.

Nor has there been some triumphant victory over racism in the United States that eradicates the case for affirmative action. Though incomes and college graduation rates have risen for all racial groups within the United States since Bakke, the median Black household still earns at least $33,000 less in annual income than the median white household.

No, the Supreme Court did not strike down affirmative action because of any change in the law. It struck it down because racial conservatives organized. They recruited powerful institutions like the Republican Party and the Federalist Society to their cause. And then they made a deal with the devil, as Trump-skeptical legal conservatives agreed to back his bid for the presidency in return for a small army of Federalist Society judges.

Men like Ed Blum held a grudge. And they held onto it for decades. Until they won.

This is, of course, the same story that played out in the last Supreme Court term, when the Court eliminated the constitutional right to abortion, and when it drastically expanded the rights of gun owners. Again, there were no important new insights in any of the briefs filed in Dobbs v. Jackson Women’s Health Organization (2022) or in New York State Rifle & Pistol Association v. Bruen (2022).

Those cases were decided the way they were because abortion foes and gun rights advocates organized, took over the Republican Party, and held onto their grudges. They have nothing whatsoever to do with “the law.”

Being pissed at American elite institutions….will rarely steer you wrong.

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