The Corner

SCOTUS’s Fisher Ruling a Blow to the Constitution

The Supreme Court’s Fisher v. University of Texas holding lands a devastating blow to the cause of a color-blind Constitution. It maintains the laughable exception for universities to the Constitution’s demand that the government never classify its citizens by race (the government may only resort to race to remedy past discrimination or in wartime). And it gives college administrators an undue deference to engage in social engineering to indulge their latest utopian fantasies for a just world. It all comes at the expense of the right to fair treatment of students on their merits, instead of their skin color, as demanded by the constitutional amendments enacted at the end of the Civil War.

It also shows the future at stake for the Supreme Court in this November’s election. Despite his rock-solid constitutional conservatism, Ronald Reagan made his longest-lasting mistake as president in appointing Justice Anthony Kennedy to the Supreme Court. Kennedy has now served as the critical vote to write into the Constitution the two great goals of the progressive elite — gay marriage and affirmative action. His appointment shows again the perils of appointing lower-court judges with no paper record and no public position but with a wink-and-a-nod assumption that they will follow conservative jurisprudence. Kennedy might have been a conservative in his political views, but once on the Court he fell sway to the siren song of the academy and the media, which will praise him to the ends of the earth for Fisher, as it has for Obergefell. Without nominees of proven conservative constitutional principles, conservatives cannot be sure that judges will maintain their fidelity to the original understanding of the Constitution — and choose to play god instead.

No doubt a President Hillary Clinton would appoint justices who not only would applaud Fisher, but seek to extend it beyond universities to K–12 schools, welfare programs, employment, voting districts, government contracts, and so on. If Clinton win this November, her appointments will wipe away the last 45 years of conservative efforts to restrain the courts and send us back to the days of the Warren Court. But Fisher also shows the narrow room for error on the part of Republicans supporting Donald Trump only on the ground that he would appoint conservatives to the Court, a claim he reiterated in his speech yesterday’s to religious leaders. Trump has earlier proposed a list of rock-ribbed judicial nominees who are virtually defined by being the anti-Kennedys. But if Trump were to stray off that list to cut a deal, as did Reagan with Kennedy in 1987–88, we can now see the harm to the Constitution that he might wreak. Unfortunately, I cannot see any way to Trump to persuade conservatives of his commitment, given his changes on policies from the minimum wage to taxes to gun control.

John Yoo is the Emanuel S. Heller Professor of Law at the University of California at Berkeley, a visiting scholar at the American Enterprise Institute, and a visiting fellow at the Hoover Institution at Stanford University. He is the author of Defender-in-Chief: Donald Trump’s Fight for Presidential Power.

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