After Roe, Here Are Seven More Precedents the Post-Trump Supreme Court Should Smash
May 9, 2022 ( ago)

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Justice Samuel Alito’s draft opinion overturning Roe v. Wade is, to quote a certain sitting U.S. president, a “big f****** deal.” It’s not just that the decision is a huge victory for conservatives that cleanses us of one of America’s gravest moral taints. Justice Alito’s decision matters because of the potential it unlocks.

If Alito’s opinion is issued unchanged, it will represent the full reversal of one of the foundational decisions of the Warren and Burger Courts of the 60s and 70s. It is no exaggeration to say that the Supreme Court of those two decades created the modern left-wing hegemony we are currently groaning under. Repeatedly, the justices of the Court invented new constitutional rights where none were even suspected to exist before. They imposed new and ridiculous mandates on cities and states. They created the entire framework of modern civil rights law. If, as some argue, wokeness is just civil rights law, then the 1960s Supreme Court created wokeness itself.

For decades, groups like the Federalist Society have fought to nominate and confirm judges who will roll back the excesses of those decades. And for decades, despite a consistent majority of Republican appointees, the Supreme Court has punted.

Now, bolstered by President Trump’s three appointees to the court, the tide may have finally turned. A five-justice majority is finally willing to say that one of the major rulings from half-century ago was always wrong, should never have been created, and should be sent to the ash heap of history.

But Roe isn’t the only terrible ruling the Court has delivered. There are many more, and they are integral to sustaining the current rotten regime.

If Roe is on its way out, here are seven more rulings that President Trump’s Supreme Court should jettison next.

Regents of the University of California v. Bakke

The first glaring constitutional error that the Court has a chance to fix is this case from 1978.

The 14th Amendment to the Constitution explicitly bars any state from denying a resident the “equal protection of the laws,” while Title VI of the 1964 Civil Rights Act explicitly prohibits racial discrimination for programs and entities receiving federal funds (which includes almost all schools in the country). So, when the University of California rejected former Marine Allan Bakke’s application to medical school, while admitting far-less-qualified minorities under a racial quota system, he sued.

Inexcusably, the Court ignored both the 14th Amendment and the text of the Civil Rights Act. While the Court struck down the University of California’s explicit racial quota system and ordered Bakke admitted, it still upheld affirmative action itself as legal. In essence, as long as white people (and later Asians) were the victims of discrimination, and this discrimination was subtle rather than obvious, it was okay. Not even 15 years after racial discrimination in schools was banned, the Court revived it in the anti-white direction, and we have been stuck with this millstone ever since.

Repeatedly, in Grutter v. Bollinger and Fisher v. University of Texas, the Court has upheld this basic and unjust ruling. But in January, the Court granted certiorari to Students for Fair Admissions v. Harvard, a case challenging Harvard University’s discriminatory admissions.

It’s time the Court righted this 44-year-old wrong. It should strike down Bakke, and remind America that racial discrimination in schools, especially of the anti-white variety, is wrong and unconstitutional.

United Steelworkers v. Weber

What Bakke did for universities, Weber did for the private sector. Title VII of the 1964 Civil Rights Act very explicitly bans discrimination based on race or sex at any employer or labor union with more than fifteen employees. Laboratory assistant Brian Weber sued when he was denied admission to a training program that gave equal slots to whites and blacks, despite whites being far more numerous at the company. Lower courts correctly ruled that this racial discrimination was illegal, but the Supreme Court reversed, and preposterously found that, when the Civil Rights Act banned racial discrimination, it actually allowed it.

The Court justified this naked contradiction on the grounds that affirmative action was “transitional,” but the decades since have proven it is anything but: Racial discrimination in the name of “diversity” and “equity” has become a permanent feature of American life, and it will remain that way unless the Court recovers its courage, and starts enforcing the actual text of America’s laws.

Griggs vs. Duke Power Company

This decision may be the single most important precedent that must be overturned in America. Everything tyrannical about modern wokeness flows from this 1971 ruling and the calamitous legal doctrine it created: Disparate impact.

Prior to Griggs, legislation barring racial and other types of discrimination was presumed to cover deliberate discrimination. If a company refused to hire black applicants, that was racial discrimination, but if it simply required a high school diploma, or a college degree, or passing a job skills test, that was not.

Griggs threw all that out the window. Duke Power Company in North Carolina limited certain jobs at the company to those with a high school diploma, or those who could perform sufficiently well on one of two tests. Even though these requirements had no racial component at all, the Court held that they were illegal, because blacks were less likely to hold a high school diploma and were less likely to perform well on the tests. In other words, even without a discriminatory intent, the requirements had a “disparate impact” on one racial group, and were therefore illegal.

As University of San Diego law professor Gail Heriot argued in a recent paper, disparate impact “makes almost everything presumptively illegal,” because everything has a disparate impact. This in effect gives near-absolute power to government bureaucrats and federal judges, who decide more or less arbitrarily which types of disparate impact are legal and which are to be tolerated. Earlier this year, a federal court held that not having a mask mandate in a school violated civil rights law, because of the “disparate impact” against disabled students. Doesn’t imposing a mask mandate also have a disparate impact (for instance, on students with sensory issues)? Of course! That’s the beauty of disparate impact. Thanks to Griggs, bureaucrats and federal judges have almost unlimited power to police and control every domain of American life for the purpose of fighting racism, sexism, and other -isms.

Disparate impact was never intended by the drafters of 1960s civil rights laws, and more importantly, the principle itself is incoherent and indefensible. The Supreme Court should destroy it, permanently, at the next opportunity.

Kelo vs. City of New London

America’s government, at all levels, has always had the power to appropriate private property for its own ends. The Fifth Amendment, though, restrains this eminent domain power by requiring that all seizures be compensated (no Zimbabwe stunts allowed), and requiring that any seized land be for “public use.” Not “public interest,” but rather “public use.”

But 2005, the Supreme Court’s liberal faction gutted this protection. The city of New London, Connecticut decided to seize the homes of Susette Kelo and her neighbors, not to build roads or schools or a dam, but simply to transfer the land to a private developer. Redevelopment, the city claimed, would benefit the public by providing increased tax revenue.

Inexcusably, Justice Anthony Kennedy joined with the Court’s four liberal justices to uphold New London’s land seizure as a valid instance of “public use.” In a poetic twist, the planned redevelopment never materialized and Pfizer, the intended beneficiary, instead closed its campus in the city as soon as generous tax breaks expired. The land once occupied by Susette Kelo’s home is now a vacant lot, a fitting testament to progressive social engineering visions.

It’s time the Court undid this blunder, and gave back to property owners the rights the Founding Fathers intended for them.

Wickard v. Filburn

The Constitution grants Congress the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” In 1942, the Supreme Court held that this clause allowed Congress to bar a farmer from growing wheat, on his own property, purely for his own personal use (feeding it to the animals on his farm), because such such a ban would in the aggregate have an effect on interstate commerce.

Ever since Wickard, this absurdly expansive use of the Commerce Clause has become the blanket justification for a massive expansion in federal power. Under 2005’s Gonzalez v. Raich, the Court ruled that the Interstate Commerce Clause is what allows the federal government to prohibit Americans from growing marijuana, at home, for their own use. In 2017, the Court declined to review a case where the Commerce Clause justified federal protections of the Utah prairie dog, an animal of no commercial value that lives exclusively within Utah. Right now, with Roe v. Wade possibly being overturned, Democrats are promising to pass the Women’s Health Protection Act, which would mandate legal abortion nationwide regardless of state laws. How? With the Commerce Clause!

(25) Congress has the authority to enact this Act to protect abortion services pursuant to—

(A) its powers under the commerce clause of section 8 of article I of the Constitution of the United States

[Congress.Gov]

For the sake of restoring a limited federal government that doesn’t micromanage every part of Americans’ lives, Wickard must be reversed.

United States v. Wong Kim Ark

Wong Kim Ark is the precedent that makes the great replacement scheme work. This ruling from 1898 is the root of absolute birthright citizenship in the United States. Thanks to Wong Kim Ark, if a pregnant illegal alien walks five feet over the border and then gives birth, that child is a U.S. citizen for life. If a Chinese tourist flies to Saipan and has a baby there, again, U.S. citizen for life.

The justification for this is the 14th Amendment’s Citizenship Clause: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”

A detailed look at the 14th Amendment’s legislative history and the debates over similar laws at the time, though, makes it obvious that the authors of the law never intended it to cover the children of foreign nationals illegally in the United States:

The [1866] Civil Rights Act provided the first definition of citizenship after the ratification of the 13th Amendment, specifying “[t]hat all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” Thus an overwhelming majority of Congress on the eve of the debate over the meaning of the citizenship clause of section 1 of the 14th Amendment were committed to the view that foreigners — and presumably aliens — were not subject to birthright citizenship. Most of those who voted in favor of the act were still serving in Congress when the 14th Amendment was under consideration. In fact, Senator Lyman Trumbull, the author of the Civil Rights Act and chairman of the powerful Senate Judiciary Committee, was an ardent supporter of Howard’s version of the citizenship clause. “The provision is, that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means ‘subject to the complete jurisdiction thereof.’ . . . What do we mean by ‘subject to the jurisdiction of the United States?’ Not owing allegiance to anybody else.” Not owing allegiance to anybody else, subject to the complete jurisdiction of the United States, and not subject to a foreign power.[5] During debate over the Civil Rights Act, Senator Trumbull remarked that purpose of its citizenship clause was “[t]o make citizens of everybody born in the United States who owe allegiance to the United States.”

[National Review]

Today, the unspoken purpose of illegal immigration is to transform the country, inexorably, by allowing millions of illegal immigrants to enter the U.S. and have children who are instantly United States citizens. A future Republican administration should directly challenge this travesty of the law, and the Supreme Court should correct it.

Green v. County School Board of New Kent County

One of the most radical Supreme Court decisions ever handed down, 1968’s Green was a sequel to the Brown v. Board of Education ruling abolishing racial segregation in public schools. In Virginia’s rural New Kent County, which had only two schools (one white and one black), officials responded to the desegregation order by simply allowing students to choose which of the two schools to attend. Under this free-choice system, though, most blacks continued to choose to attend the historically-black school, and all whites chose to keep attending the historically-white school.

The Warren Court responded by decreeing that simply not segregating schools was insufficient: The government actually was actually constitutionally required to attempt social engineering and force schools to become as racially integrated as possible. Whereas Brown had abolished an illegal government practice, Green mandated an effort to reverse vague “harms” and create utopia.

Green’s results were immediate, unpopular, and destructive. Across the country, judges imposed mandatory busing schemes, whereby children were bused miles away from home for the sole purpose of creating more integrated schools. Judges also unilaterally redrew district boundaries and restricted student transfer policies, with a singleminded focus on achieving maximum integration.

Green has been curtailed but never overturned. In 2018, an article in The Atlantic approvingly called Green “the closest thing to reparations that the American judicial system has ever endorsed,” and pointed to it as a potential model for further judicial activism.

With so much conflict sprouting from Green, it’s not hard to see why modern narratives of school desegregation focus on the unambiguous heroics of Brown v. Board instead. Green’s legacy is painful. Many of its most visible consequences, like busing, remain politically controversial, and suggest that even in modern America schools can’t be integrated without conflict. Meanwhile, Green’s skepticism of “freedom of choice” is uncomfortable in an era where school choice is posed as the solution to many educational problems. It’s a reminder that choice can be used to preserve, as well as erode, existing patterns of discrimination.

But for civil-rights advocates, the Green decision is also cause for hope. It represents the way in which long-stalled battles can suddenly be won.

In an era of conservative federal courts, civil-rights advocates sometimes argue that the judiciary is a weak vehicle for change, and that all real progress must pass through the court of public opinion. But 50 years ago, the Supreme Court was not afraid to lead the fight for reparative racial justice, nor afraid to say that the Constitution itself required school integration. The results were incomplete, it’s true—but Green is also still the law.

[The Atlantic]

A long as Green remains, it provides a precedent for court-ordered social engineering under the guise of constitutionalism. Today’s Court should give it the explicit quietus that it deserves.

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