by | ARTICLES, SCOTUS
Gorsuch does a good job pointing out some of the logical flaws in Justice Sotomayor’s dissent in the Colorado website cake. The WSJ’s Notable and Quotable gives a fine excerpt, which I have included below, plus a link to the full opinion.
“From Justice Neil Gorsuch’s majority opinion in 303 Creative v. Elenis, decided June 30:
It is difficult to read the dissent [by Justice Sonia Sotomayor] and conclude we are looking at the same case. . . . The dissent claims that Colorado wishes to regulate Ms. Smith’s “conduct,” not her speech. Forget Colorado’s stipulation that Ms. Smith’s activities are “expressive,” and the Tenth Circuit’s conclusion that the State seeks to compel “pure speech.” The dissent chides us for deciding a pre-enforcement challenge. But it ignores the Tenth Circuit’s finding that Ms. Smith faces a credible threat of sanctions unless she conforms her views to the State’s. The dissent suggests (over and over again) that any burden on speech here is “incidental.” All despite the Tenth Circuit’s finding that Colorado intends to force Ms. Smith to convey a message she does not believe with the “very purpose” of “[e]liminating . . . ideas.” . . .
In some places, the dissent gets so turned around about the facts that it opens fire on its own position. For instance: While stressing that a Colorado company cannot refuse “the full and equal enjoyment of [its] services” based on a customer’s protected status, the dissent assures us that a company selling creative services “to the public” does have a right “to decide what messages to include or not to include.” But if that is true, what are we even debating?”
by | ARTICLES, SCOTUS
The Wall Street Journal published their “Notable & Quotable: “Thomas vs. Jackson” on July 1, 2023. Clarence Thomas takes apart fellow Justice Ketanji Brown Jackson, observing that her “contrary, myopic world view based on individuals’ skin color to the total exclusion of their personal choices is nothing short of racial determinism.” It’s brilliant. You can read it in full below:
“From Justice Clarence Thomas’s concurring opinion in Students for Fair Admissions v. Harvard, decided June 29 (citations omitted):
Justice [Ketanji Brown] Jackson uses her broad observations about statistical relationships between race and select measures of health, wealth, and well-being to label all blacks as victims. Her desire to do so is unfathomable to me. I cannot deny the great accomplishments of black Americans, including those who succeeded despite long odds.
Nor do Justice Jackson’s statistics . . . prove anything. Of course, none of those statistics are capable of drawing a direct causal link between race—rather than socioeconomic status or any other factor—and individual outcomes. So Justice Jackson supplies the link herself: the legacy of slavery and the nature of inherited wealth. This, she claims, locks blacks into a seemingly perpetual inferior caste. Such a view is irrational; it is an insult to individual achievement and cancerous to young minds seeking to push through barriers, rather than consign themselves to permanent victimhood. . . .
Individuals are the sum of their unique experiences, challenges, and accomplishments. What matters is not the barriers they face, but how they choose to confront them. And their race is not to blame for everything—good or bad—that happens in their lives. A contrary, myopic world view based on individuals’ skin color to the total exclusion of their personal choices is nothing short of racial determinism.
Justice Jackson then builds from her faulty premise to call for action, arguing that courts should defer to “experts” and allow institutions to discriminate on the basis of race. Make no mistake: Her dissent is not a vanguard of the innocent and helpless. It is instead a call to empower privileged elites, who will “tell us [what] is required to level the playing field” among castes and classifications that they alone can divine. Then, after siloing us all into racial castes and pitting those castes against each other, the dissent somehow believes that we will be able—at some undefined point—to “march forward together” into some utopian vision. Social movements that invoke these sorts of rallying cries, historically, have ended disastrously.
