Prof. Jonathan Turley Op-ed: Biden’s unhinged ideas of Supreme Court and our Constitution

President distorts history to attack Supreme Court as ‘not normal’

 By Jonathan Turley | Fox News | Published July 3, 2023 4:00am EDT

Read more at https://www.foxnews.com/opinion/bidens-unhinged-ideas-supreme-court-constitution

The decision of the Supreme Court to end the use of race in college admissions was not unexpected. Yet, President Joe Biden expressed outrage and actually claimed that the court gutted the constitutional guarantee that “all men and women are created equal.”  

In declaring that this court was not “normal,” Biden further insisted that these admissions decisions and the Dobbs abortion decision reversed the gains that “we fought a war over in 1860” to secure. In an interview on MSNBC’s “Deadline: White House,” President Biden accused the court of ignoring what “the Constitution says: We hold these truths to be self-evident, all men and women are created equal, endowed by their creator.” That is actually a reference to the Declaration of Independence, but it was the substance of the point that was so baffling. 

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In barring the use of race in admissions, the court believed that it was protecting that very “self-evident” guarantee. It erased what the court viewed as a glaring anomaly in its cases in the treatment of racial discrimination in education as opposed to employment.  

It was the capstone opinion for Chief Justice John Roberts, who, in 2017, declared: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” In 2006, Roberts also said: “It is a sordid business, this divvying us up by race.” 

The court thought it was doing the work started (but not fulfilled) with the Declaration in treating that all men and women are created equal in both education and employment. 

The president is not alone in such hyperbole. Figures like ABC’s Whoopi Goldberg actually asked whether the decision will be “leading to no women in colleges soon? Who knows.” 

We actually do know. An opinion rejecting the use of racial classification to determine who goes to college could not be read by anyone as endorsing the exclusion of other groups. 

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The truly baffling statement was Biden’s claims over the Civil War. By leaving questions like abortion to the states, Biden claims that the court was reversing what was gained in that war. The criticism came in response to an opinion insisting that there is no place for racial discrimination in higher education. That would hardly seem an argument that would be embraced by the Confederacy. 

Biden has long taken liberties with our constitutional history. Many of us have repeatedly objected to claims that he has made in areas like the Second Amendment. One of his most repeated lines is that the Second Amendment was passed with the understanding that certain guns would be banned and adding, “You couldn’t buy a cannon when, in fact, the Second Amendment passed.” 

That happens to be utterly false. Yet, even after the Washington Post declared Biden’s understanding of the Second Amendment to be false, he has continued to make the same false assertion over and over again. 

Now Biden has moved on to the Civil War and his revisionism is about as subtle as Sherman’s scorched “March to the Sea.” 

The Civil War did not end federalism or states rights. It denied the right of the states to secede and ultimately fulfilled the pledge to equality first made in the Declaration of Independence. 

One can have good-faith disagreements on whether to use racial criteria in admissions. However, Biden is belittling our prior struggles for equality with these sweeping and erroneous claims. 

In his interview, the president also insisted that one has to “look at how it’s ruled on a number of issues that are — have been precedent for 50-60 years sometimes. And that’s what I meant by not normal.” 

In reality, the court’s decisions on affirmative action in education have been muddled and conflicted for decades. In 1977, in Regents of the University of California v. Bakke, the court barred affirmative action in higher education. However, it allowed some consideration of race as part of a holistic admissions process. 

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In the decades that followed, the court remained sharply divided. By 2003, in Grutter v. Bollinger, Justice Sandra Day O’Connor supplied the fifth vote to uphold the use of race by the University of Michigan.  

Yet, O’Connor wrote that the court “expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” That was roughly 20 years ago. 

It is also ironic to hear the president bewailing the reversal of precedent since the greatest advance in racial equality was the reversal of Plessy v. Ferguson and the doctrine of “separate but equal.” That was the governing precedent from 1894 to 1954, but few denounced the Supreme Court for reversing that precedent to eliminate separate or different treatment on the basis for race. 

The president also asserted that “the vast majority of the American people don’t agree with a lot of the decisions this court is making.” The majority clearly opposed the Dobbs ruling, but that is not the case on the affirmative action ruling. 

One can have good-faith disagreements on whether the use of racial criteria in admission. However, Biden is belittling our prior struggles for equality with these sweeping and erroneous claims. 

Polls have consistently shown (including this week) that the majority of the public does not support the use of race in college admissions. Indeed, even in the most liberal states like California, voters have repeatedly rejected affirmative action in admissions. 

We should have a robust and passionate debate over these issues. Yet, a president should be seeking to facilitate that dialogue rather than distorting and weaponizing our shared history. It is a continuation of his prior declarations that members of Congress opposing his election reforms to block state laws are voting with “Jefferson Davis” and the Confederacy.  

Despite the laws in states like Georgia being upheld as constitutional, Biden declared them a return to the “Jim Crow” South based on distorted accounts of those laws. The claim was again historically and legally ridiculous even if one opposed these state laws. 

We should not allow the president’s constitutional and historical distortions to become, to use his description of the court, “normal.” We have fought hard to address the scourge of slavery and racism in our country. That struggle is continuing, but we cannot address those problems in the future by distorting our past. 

CLICK HERE TO READ MORE JONATHAN TURLEY

Jonathan Turley is the Shapiro professor of public interest law at George Washington University and a practicing criminal defense attorney. He is a Fox News contributor.