John O. McGinnis joins host John G. Grove to analyze the major cases from the Supreme Court’s recently concluded term, which has taken place in the midst of a concerted effort to undermine the institution’s legitimacy. 

Brian Smith:

Welcome to Liberty Law Talk. This podcast is a production of the online journal, Law & Liberty, and hosted by our staff. Please visit us at lawliberty.org, and thank you for listening.

John Grove:

Welcome to Liberty Law Talk. I’m John Grove, the managing editor of Law & Liberty, and I’m your host for this episode. Last year, the overturning of Roe v. Wade seemed to symbolically declare a new era at the Supreme Court. To its critics, it marked a sharp right turn as Republican appointees exerted greater influence. The court itself and its defenders argued on the contrary that it was exhibiting a renewed reliance on written law, enforcing the constitution and statutes rather than this or that moral theory or preferred policy.

This year the court continued to take on highly controversial cases, most importantly rejecting affirmative action programs and college admissions as a violation of the Equal Protection Clause and finding that state non-discrimination laws cannot coerce expressive speech from public-facing businesses. Left-wing critics continued to present these developments in terms of partisanship and ideology rather than law, and they’ve increasingly begun to build a narrative of illegitimacy, perhaps in preparation for renewed court packing push. Joining me to talk about this year’s monumental term and the political narrative swirling around the Court is John McGinnis. John O. McGinnis is the George C. Dix professor in constitutional law at Northwestern University, and he’s a contributing editor at Law & Liberty and, of course, one of the country’s most renowned experts on originalism. John, thanks for joining us.

John O. McGinnis:

Delighted to be here.

John Grove:

Well, it seems to me that for those of us who don’t buy the idea that the Court is simply a partisan actor, this term further solidified several of the tendencies that you and I talked about last year on the podcast, originalist, textualist, and non-deferential when it comes to administrative actions without clear statutory authority. What were your thoughts on the term?

John O. McGinnis:

Well, I think it was a very important term. In some ways, I think it may have been a more important term than the term in which Dobbs came out. If you look at stepping back from the reasoning of the court, which I’ll discuss in a moment, if you look at the cases it decided, they really go to the heart, I think, of the fault lines of the modern society. Nothing I think is more important than the question of whether we’re going to address people as individuals without regard to their race or treat people as with different rights or different preferences with respect to the racial group they’re in or some other form of group like that. And the court was very emphatic and in the most important area that we’re going to have a colorblind society when it comes to education. Secondly, the importance of descent is extremely important in a republic, and that, I think, is central to the creative case, the web designer case, where the center, who really did not have the power of someone connected to the media, was able to follow their own ideas. And so that’s also very important. And then finally, I think you have to understand the student loan case, Biden v. Nebraska, was an important separation of powers case. 

This goes to the heart of the changes, I think, that have been happening in our structure of governance, where the president has more and more authority generally in administrative law, where administrative state, and where he operates without Congress through regulation. This was an attempt to operate without Congress through spending, essentially spending $400 billion dollars without congressional blessing. And that changes the whole structure of the government. So another way of thinking about this is that it may be a term in which the Court protects what William Graham Sumner called the forgotten man, the person who’s really not a part of some organized group. Of course, that’s true with respect to student loans.

Who’s that going to hurt? It’s going to hurt taxpayers, it’s going to help a very specific group, and political scientists understand that our modern democracy often helps concentrated interest groups versus diffuse groups. It also, I think, is very similar to with respect to the affirmative action case or the racial preference case. Actually, the very organized groups who are arguing for preferences and the people who lose out from them are quite unorganized. In fact, it’s very unclear who exactly they are who doesn’t get that slot at Harvard or UNC. And the third issue I think is also true is I’m reminded all the time we now have a structure where… and maybe understandably, certain rights are proclaimed all the time. We have my daughter’s classes—even though she’s only in first grade, there’s a Pride Day. On the other hand, there may be some people who don’t agree with that.

And how are they going to dissent from things like same-sex marriage? How is that going to be a space for them to do that? So that’s one way I would think of this Court more in this term, more in political science terms than legal terms, that it raises this question of the Court as, in some sense, a defender of the unorganized versus the organized. And you might think that’s an important role in a political science sense for the Court because, after all, organized groups do very well in the political process and maybe even in the administrative process. They can succeed so long as people cannot get a vote on it by the public—they can concede with legislatures to get things for what they want. So that’s what I see the most—I see it as a very momentous term in that sense.

I think it was less important as a term for originalism, the affirmative action case, the web designer case, the student loan case. These were really rather doctrinal cases, at least as they were presented. There were some concurrences that were originalist in nature, and we certainly can talk about that in terms when we get to the affirmative action case. But I don’t see this as primarily a case about originalism. Moore v. Harper had some discussion of originalism. I think there’s some importance there, particularly in understanding the legal backdrop to words in the Constitution. So I think that’s significant for that. But I do not see this as breaking a huge amount of ground for originalism as much as going back to certain structures and certain long-term precedents—at least the Court is relying on long-term precedence for defending this idea, I think, of a liberal order where Congress has to act, where people are treated as individual, where their rights are dissented.

These are very long traditions in the United States, and not surprisingly, they’re represented by a whole variety of judicial precedents. That’s not to say that I don’t think some of them are consistent with the original meaning. It’s just not that the Court, I think, made the decisions on the basis of original meaning.

John Grove:

Right. Yeah. That’s a really interesting way that you described the term in terms of the unorganized or the harms or potential harms to people who are not part of a powerful political group. So who’s left out of admissions? And I had not thought of the student loan case in that way, but that’s a really interesting way of putting that, too, in that you have a very clear political class or political unit of people, student loan holders who are going to be very animated in the political process. But then in relieving those loans, you kind of distribute the burden to that across a wide group of people who are not going to be very organized and active in the political process. So that’s an interesting way of putting that. So let’s dive into these cases specifically. So let’s talk, of course, about the biggest one of the year first.

That’s the affirmative action case, Students for Fair Admissions v. Harvard and UNC. So this one, you’re right, the people who are left out of admissions in some way unorganized, the emphasis here, the people who brought the case, a group representing Asian-American students because statistically speaking, you can identify that a lot of the people that are left out because of affirmative action programs were Asian-Americans. They challenged the affirmative action programs of Harvard and the University of North Carolina. And what’s the legal background of this challenge? So what had the Court said before about what consideration of race was permissible, and why did the Court change its mind?

John O. McGinnis:

Well, the Court had a torturous set of decisions, tortured in the sense that moved back and forth. But the essence of it was that, in general, race, the Court said was disfavored, but it could be taken in account to promote what was called diversity given a plus factor or a tip as it were, so long as it didn’t lead to quotas. Now exactly, the line between quotas and a plus factor was not entirely clear. And as the Harvard case demonstrated, there seemed to be a surprising uniformity of year after year of the percentages. So it did seem to be engaged in sort of racial balancing or quotas, but that’s actually not the… so that was really the law at the time. The other important point was that the law noticed that there were two cases here, one against the state institution, one against a private institution, did not actually depend directly on the Constitution because private actors