The Supreme Court Gets it Wrong, Again

This isn’t a popular opinion, but the Supreme Court made a grave mistake in the recent decision striking down affirmative action at Harvard and the University of North Carolina.

I told a colleague the Court was just trimming around the edges. He disagreed. Let me explain.

The Court used 14th Amendment incorporation to invalidate affirmative action admissions policies for Harvard and UNC.

While many conservatives have cheered, the longstanding implications are dangerous, as this piece at Mises.org points out.

By relying on the 14th Amendment, the Court nationalized the entire education industry. Of course, it could be argued that the federal Department of Education has already accomplished this fact, but this decision is another step in federal overreach.

Incorporation is a cancer.

The Court could have simply invalidated the admissions practices based on the 1964 Civil Rights Act (a law that is also dubious constitutionally, but that is another issue).

But the Court “conservatives” are just as in love with incorporation as the progressives on the bench.

When you play their game on their field, you are going to lose more than you win.

With the exception of the Dobbs decision, the Court has relied on a generally progressive understanding of federal power to strike down previous bad decisions. They could go further, as Justice Thomas explained in his concurring opinion in Dobbs.

This is why I said they are trimming around the edges.

I am not sure the Roberts court has the backbone to tear down incorporation. That would be significant, and while this has been an entertaining Court with the most substantial record in decades, it could do more.

I discuss the Court and the affirmative action decision on Episode 849 of The Brion McClanahan Show.