reading SCOTUS

30 June 2023 #

Some facts:

Very few Americans even know what the Supreme Court does; fewer still care.
Not all those who care know.
Among those who care, 99% — including every single journalist in America — have one simple criterion for evaluating SCOTUS decisions: If they like the outcome, it’s a good decision; if they dislike the outcome, it’s a bad decision.
It’s utterly impossible to make such people understand that the Supreme Court always should be and often is bound to issue decisions based on the Constitution and existing law (when such law is itself consistent with the Constitution); sometimes justices issue or endorse judgments they’d rather not issue.

I’m here for the tiny fraction of 1% of Americans who can grasp that the interpretation of law, including the Constitution itself, is very difficult, especially when you have more than 200 years of precedent to reckon with. Often precedents are inconsistent with one another; previous Supreme Court decisions can be unclear, some of them right from the beginning and others in light of social and political developments that came after they were issued; very few cases make it to the Supreme Court if there are not defensible claims on both sides — if they were easy, they’d have been settled in lower courts, and SCOTUS wouldn’t have agreed to hear them at all.

Students for Fair Admissions, Inc. v. President and Fellows of Harvard College is a fascinating case, and the opinions, concurrences, and dissents — all 237 pages of them — provide an extraordinary education in the social as well as the legal consequences of hundreds of years of American racism, and in the enormous complications introduced into our system by the arrival in America of large numbers of people who are neither white nor black.

(I’m setting aside, for the moment, Native Americans, who have been a dramatically special case from the beginning — as can be seen in SCOTUS cases from this very term, most notably Haaland v. Brackeen. See this NYT piece on Justice Gorsuch’s passionate commitment to Native American rights.)

I don’t know how you could read the Harvard/UNC case and think that these matters are easily resolved. Those who can’t be bothered to read the details of the case may well find it easy, but then, most issues on most subjects are easy to the uninformed. This is one of those cases in which every argument (opinion, concurrence, dissent) seems convincing — when read in isolation from the others.

I’m working my way through the whole thing, and already have a thousand thoughts. I may report later. But in the meantime, I would just encourage those of you who haven’t read the case, and especially those of you who won’t read the case, to give up the luxury of having an opinion about it.