David Boies Reflects on Freedoms and Disappointments of Supreme Court

The Fourth of July is a day when we pause to reflect on the exceptional country in which we are privileged to live, and to celebrate its ideals and accomplishments.

Our Founders did not begin to live up to the ideals they articulated – and neither do we. No sentient being could be blind to their, and our own, faults and failures, or to the extent that they, and we, have too often made a mockery of those ideals. But they conceived, articulated and set our nation on the path to achieving, a society more diverse, more equal, more free and more democratic than any the world had ever seen – a nation that for all its faults and failures has been a beacon to that world and its peoples. Many want to come, few really want to leave. America is the dream of people abroad not because it is perfect, or even always good, but because it is better – and striving to be better still.

Today some would have us believe and teach only America’s goodness and greatness, airbrushing from history its racism, destruction of indigenous cultures, and subjugation of women and minorities. Others would have us believe and teach only America’s shame and sanctimony, ignoring its progress and the role it has played in making the world a better, fairer place. Neither befits the great country of which we are a part.

Indeed, part of America’s exceptionalism has been our ability to recognize not only what was wrong in the past, but what is wrong in the present – and, despite all of the forces that entrench the status quo, to work to make a better future a reality.

For decades Congress and state legislature passed laws, courts issued rulings, and the Executive Branch and private institutions adopted and implemented policies and practices designed to reduce present discrimination and remedy the effects of past discrimination. We have a long way to go, but there has been remarkable progress just during my lifetime towards fulfilling the promise of our nation’s founding.

It is that promise, and our progress toward it, both of which we celebrate on July Fourth, that makes the Supreme Court’s decisions last Thursday and Friday so troubling. In case after case over the last several years, the Court’s conservative majority has not only reversed its own earlier rulings protecting minority rights, but also limited the ability of Congress, state legislatures, the Executive Branch and private institutions to protect historically persecuted minorities from past and present discrimination. Last week’s decisions continued that sad pattern.

Racial discrimination is not about favoring Black Americans. It's always been about depriving them of the most basic rights and protections.

In the first case the Court ordered Harvard and other Universities to stop considering race as one factor in an effort to promote the diversity of their student bodies. In an alternative universe, the majority’s argument that the best way to stop racial discrimination is to stop discriminating based on race would not be without force.

The problem is that the Justices ignore as judges that which they surely know as men and women in the actual universe in which we live. Racial discrimination is not, and has never been about favoring Black Americans; racial discrimination has always been about depriving them of the most basic rights and protections.

This nation’s dark history of racism has deprived generations of Black families of the resources and opportunities that European American families take for granted. The effects of centuries of slavery, a century more of state sponsored, and state condoned, terrorism, and decades more of discrimination in employment, education, health and housing, cannot be, and have not been, quickly eradicated. And racial discrimination was not, of course, a problem of the South alone. In every state in the Union racial restrictive covenants (routinely enforced when I was young, and legal until I was a lawyer), together with the practices of brokers and banks and community pressure, largely confined African American families to neighborhoods with the least services and worst schools – neighborhoods in which many African American families still live. In every state of the Union, African Americans were discriminated against in employment, education and social services. Moreover, despite what we may wish and the Court may pretend, racism is not yet a thing of the past, as every parent of a Black child can attest. The thought that an average African American student today has the same opportunity to succeed as an average white student in the absence of some consideration of race is simply unreal.

All nine justices desire a society in which every child has an equal opportunity and race is irrelevant. The difference is that the dissents recognize that today that is an aspiration, not a reality. Treating all university applicants the same when we know that their earlier opportunities and resources have been very different is not equality; it is the perpetuation of discrimination. And where their earlier opportunities and resources are materially race based, it is the perpetuation, not the prohibition, of racial discrimination.

Harvard’s admissions procedures merely recognized that the metrics used to evaluate white applicants did not fairly evaluate African American applicants, and that the University as a whole was benefited from having a more diverse student body. The majority seems not to see the irony in accepting Harvard’s use of “legacy” metrics while prohibiting any metrics which favor Black applicants and counterbalance the centuries long exclusion of Black families from the opportunity to achieve a Harvard “legacy.” Nor does the majority appear to recognize the conflict between their general devotion to “original intent” and their interpretation of the 1964 Civil Rights Act to disadvantage, rather than protect, African American citizens.

The suggestion that prohibiting any consideration of race may actually help Black people by removing the supposed “stigma” of affirmative action is absurd, as any parent whose child is applying to an elite university knows. Is there a “stigma” to being a “legacy,” or to hiring a tutor to prepare for tests or help edit a personal statement? Students applying to Harvard want and need whatever help they can get. Argue, if you wish, that affirmative action is illegal; but don’t paternalistically and unrealistically suggest barring it is really for the victim’s benefit. Maybe Harvard should have argued that consideration of race was really designed to benefit white applicants by removing the “stigma” of presumed “white privilege.”

There is a troubling sense that the majority only believes in states' rights when they agree with what the state may decide.

In the second case, the same majority struck down a Colorado statute that prohibited businesses from discriminating (in this case against LGBTQ+ citizens) in the commercial services they offered. In dissent, Justice Sotomayor wrote: “The Constitution contains no right to refuse service to a disfavored group.” For more than half a century, that was the law of the land. It is sad to have to read it in a dissent.

The majority’s justification for its decision is that the commercial conduct in question (the construction of a website for a same sex marriage) was “expressive,” and thus somehow protected speech. The Court offers no guidance as to when conduct becomes sufficiently “expressive” to constitute protective speech. We know that the Court believes spending money is protected speech from its Citizens United decision. We presume that the Court does not believe a women’s choice to have an abortion is protected speech, although to many it will seem far more “expressive” than spending money or constructing a website.

The majority sees no inconsistency between holding that the Constitution requires states to be able to decide whether a woman can have an abortion and holding that the Constitution prohibits states from being able to decide whether businesses can discriminate in their provision of commercial services. There is a troubling sense that the majority only believes in states' rights when they agree with what the state may decide.

Nor is it easy to accept the majority’s suggestion that they are preventing the “demise” of the First Amendment. Never before has the Court held that the First Amendment includes a business’s right to refuse commercial services to a disfavored group. The First Amendment has survived perfectly well without becoming an obstacle to discriminated classes being able to enjoy the same public accommodations as other
citizens.

In neither case last week, nor in the similar cases that preceded them, does the majority seem to appreciate the conflict between the antipathy to “judicial activism” that they elsewhere profess and their repeated willingness to substitute their judgment for the policy judgments of Congress, state legislatures, the Executive Branch and private institutions.

These are issues about which passions run high, as the language of the majority and dissents (and perhaps my own) illustrate. We are unlikely to persuade the majority to change their mind. They have thought about these issues a lot, and they are as genuinely convinced that their position is right, as many of us are convinced it is wrong; and they were picked by the Presidents who appointed them precisely because they were viewed as sure votes on certain issues who would not change their mind as so many before them had done.

These are issues that will therefore ultimately be decided at the polls. Those who support the conservative majority’s judicial philosophy have recognized this for a long time, and acted accordingly. We may yearn for a time when the Court was less politicalized, but that time is gone, at least for now.

For now, while we may regret that minority rights are dependent on electoral politics, we can celebrate that those rights today command majority support and that the democratic institutions of our Republic enable us to make America good again if we have the will to do so.

Happy Fourth of July.

God bless America. And God bless the America we can still become.