AMAC Exclusive – By Andrew Abbott
The Biden administration is doubling down once again in its assault on the legitimacy and integrity of the Supreme Court.
Last Monday, the Biden Department of Education issued new “guidance” for colleges and universities that is effectively advice for how schools can ignore the Court’s recent ruling against racial preferences in admissions practices.
The document specifically tells admissions offices that while they can’t consider an applicant’s race in choosing whether or not to accept them, they can consider how an applicant’s race has affected their life. According to the examples provided in the guidance, universities could use “an applicant’s explanation about what it means to him to be the first Black violinist in his city’s youth orchestra or an applicant’s account of overcoming prejudice when she transferred to a rural high school where she was the only student of South Asian descent” as a factor in admitting them over another candidate.
In other words, the administration is giving schools the green light to continue pursuing the same discriminatory admissions schemes the Court just outlawed. Instead of schools using an applicant’s race to determine whether or not they are admitted, the guidance says, schools should use an applicant’s experience being that race. It is a distinction without a difference.
Although this case is one of the most obvious examples of the Biden administration telling the public to ignore a legitimate Court decision, it is hardly the only one.
In June, the Court struck down Biden’s student loan forgiveness scheme, which legal scholars on both sides of the aisle had admitted was likely unconstitutional. Yet immediately after the ruling, Biden announced another plan to circumvent it, continuing to defy the Court. While making no attempt to defend his plan on the merits, Biden accused the Court’s originalist justices of being in league with “Republican elected officials and special interests.”
Additionally, after the Court struck down Roe v. Wade last year, Biden’s Department of Health and Human Services issued guidance advising doctors to defy state abortion laws, promising legal cover for doing so.
Along with encouraging people to ignore Supreme Court decisions that Biden and his lieutenants don’t like, the administration has also attempted to use the Court as a scapegoat for not being able to implement a slate of far-left policies, undermining the legitimacy of the Court in the process.
In June 2021, for instance, the Court allowed the CDC’s pandemic eviction moratorium to remain in place, but said that any further extensions would require an explicit act of Congress. When the Democrat-controlled Congress failed to act, Biden signed an executive order extending the moratorium anyway.
When questioned, Biden admitted the executive order was likely illegal, saying that “the bulk of the constitutional scholarship says that it’s not likely to pass constitutional muster.” Yet when the Court overturned Biden’s executive order just a few months later, then-White House Press Secretary Jen Psaki accused the Court of endangering families through greater risk of exposure to COVID-19.
Put another way, Biden, under pressure from his progressive base to keep the illegal eviction moratorium in place, shifted blame for it ending from himself to the Supreme Court by signing an executive order that he knew the Court would strike down.
Biden’s Supreme Court blame game is having a disastrous effect on the public’s perception of the Court as the justices are dragged into political battles. Just 40 percent of Americans now approve of the job the Supreme Court is doing, a record low. Just 25 percent of Americans say they have “a great deal” of confidence in the Court as an institution.
Tellingly, these negative views of the Supreme Court are particularly pronounced among Democrats. A poll from the Heartland Institute published last year found that a majority of self-identified Democrats are in favor of scrapping the Court entirely. 56 percent of Democrats also agreed with the statement that the Court is “a fundamentally racist institution,” while 67 percent said it was a “fundamentally sexist institution that favors men over women.”
Clearly, Biden’s efforts to de-legitimize the Court are having their intended effect. The question now is what Republican lawmakers are willing to do about it – and if they’ll be able to convince voters of the severity of the crisis. Ultimately, the most effective way to save the Court as an institution will be democratically removing Biden and other officials who are trying to undermine it.
Andrew Abbott is the pen name of a writer and public affairs consultant with over a decade of experience in DC at the intersection of politics and culture.