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Friends,
The Supreme Court recent unanimous ruling in Ames v. Ohio Department of Youth Services hasn’t got nearly the attention it deserves.
On the surface, the ruling seems innocent enough. The Court merely decided that white and straight employees who allege they’ve been discriminated against don't need to meet a higher standard of proof than do Black or LGBTQ+ employees who sue for discrimination under Title VII of the Civil Rights Act.
(Prior to this ruling, some courts had required that white or straight employees demonstrate not only that they were discriminated against but they also worked in a discriminatory environment.)
The Court’s decision in Ames appears a logical extension of the 2023 ruling by its six conservative justices ending race-conscious admission programs at colleges and universities across the country.
But seen against Trump’s bigoted agenda and the widening discrepancies between the political power of Black or LGBTQ+ people relative to the power of white straight people, the Ames case should trouble everyone.
Trump and his lackeys have argued that discrimination against white and straight Americans occurs under the cover of diversity, equity and inclusion. And Trump has gone to great lengths to undo what it calls “illegal D.E.I.” — ousting diversity officials from federal agencies and removing D.E.I. references from government websites.
The Ames ruling could be the death knell for D.E.I. because it makes it easier for white and straight people to argue that a D.E.I. policy at the workplace caused an employer to discriminate against them.
The Supreme Court I got to know in the 1970s when I worked in the Solicitor General’s office understood its responsibility to balance the scales of justice in favor of the powerless — including Black people, women, and gay people.
That Court understood that as majoritarian institutions, Congress and the executive branch could not always be counted on to reflect the needs of people with far less political power than straight white men.
Hence, they assumed that one of the Court’s essential roles in our system of self government — indeed, the core of its moral authority — was to give extra weight to the challenges or aspirations of such minorities.
Even Nixon’s appointees—Harry Blackmun, Lewis Powell, and Warren Burger—seemed to understand this important counter-balancing role. Blackmun wrote the Court’s decision in Roe v. Wade, and Powell and Burger joined him (as did four Democratic appointees to the Court—William O. Douglas, Thurgood Marshall, William Brennan, and Potter Stewart).
Douglas, Marshall, and Blackmun were the intellectual leaders of that Supreme Court. Their opinions gave the Court its moral heft. They drew not only from the Constitution as written but also from their understanding of how the nation had evolved, and of the distribution of power.
Like an earlier Supreme Court that unanimously decided in Brown vs. Board of Education of Topeka that separate schooling for Black and white children was inherently unequal and therefore unconstitutional, the Supreme Court I argued before understood that America must rely on the Court to protect the rights of the voiceless and the powerless.
Today’s Supreme Court majority doesn’t have a clue about the court’s moral authority or its essential role in counter-balancing a distribution of power disadvantaging Black or LGBTQ+ people.
The Republican appointees to today’s Supreme Court are political hacks intent on entrenching the power of the already powerful.
Five were nominated by presidents who lost the popular vote; three were nominated by a president who instigated a coup against the United States and were confirmed because a rogue Republican Party mounted scorched-earth campaigns to put them on the Court.
The current Supreme Court has no interest in counter-balancing the majoritarian tendencies of Congress and the President. To the contrary, as demonstrated by the Ames decision, today’s Court is at best the third majoritarian branch of government.
On Juneteenth — the day we commemorate the end of slavery in the United States — it is well to ponder that there is no longer any branch of government dedicated to protecting the life chances of those with less political power due to their race, ethnicity, gender, sexual preference, or sexual orientation.
This is deeply unfortunate.
So glad you can be here today. Please consider becoming a paid subscriber of this community so we can do even more.
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