By David K. Shipler
With
radical regressives on the Supreme Court trying to drag the country back to the
1700s, the case is being made for ignoring, defying, or deftly evading rulings
that clash with the values of modern society. These include abortion, guns,
government regulation, voting rights, religion, and affirmative action.
Both legal and illegal approaches
are on the horizon. Already, to parry the extremist justices, New York has
taken advantage of loopholes in Justice Clarence Thomas’s sloppily written gun-rights opinion.
The Democratic governor and legislative majority enacted into law restrictions on concealed-carry licenses that the
Court’s majority surely hadn’t imagined, and a list of “sensitive places” where
guns would still be prohibited—a much longer list than the Court presumably
envisioned.
Similar efforts are underway in
progressively-dominated state legislatures to enshrine abortion rights in
statutes or amendments to state constitutions following the Supreme Court’s
ruling (Dobbs v.
Jackson Women’s Health Organization) that overturned Roe v. Wade
and magically erased the right to abortion that the Court had earlier found existed
implicitly in the United States Constitution.
The game now is going to be to
outwit the justices, legally or otherwise. Some methods likely to be tried are in
plain view, some under the radar.
In the blatant category, nearly ninety elected
district attorneys across the country announced in a
joint statement that they would not prosecute violations of anti-abortion
laws in their states. More unspoken refusals can be expected from prosecutors
whose offices are already overworked with street crime and don’t want the cruel
optics of jailing women and their doctors.
Civil disobedience by clinics
willing to risk penalties to oppose the Court might be attempted if brave souls
exist. And in some other areas of the law, surreptitious defiance or passive
resistance is probable.
For example, after the Supreme
Court strikes down race-based affirmative action, as it is certain to do next
term in a case involving Harvard University, admissions officers will have
little trouble continuing to give preference to minorities in the cloistered
discussions that occur when picking the next freshman classes.
Those choices are pretty subjective
right now. Grades and test scores have never been the whole story, especially
at elite schools, which also look for the unquantifiable attributes of social
commitment, community leadership, perceptive self-awareness, and personal
success in rising above hardship, among other characteristics. A former Ivy
League admissions director once told me that his department valued students who
had worked for change, albeit just in their limited circles of school and
neighborhood. Absent such qualities, even some class valedictorians with
sparkling SAT scores were being rejected.
Since colleges are moving away from requiring or considering SATs, they’ll be able to disguise their racial preferences more easily, if they wish, to create the diverse classes many schools now see as benefitting not only students of color but also whites, who are exposed to the variegated features of the real world they will enter after graduation. University lawyers won’t approve, noted a friend in the legal profession, since they don’t want their clients to get sued. But that risk might not deter the entire generation of admissions officers who have worked hard to recruit bright kids from poor and minority backgrounds. (The Court could leave economic affirmative action intact, allowing colleges to give preference to low-income applicants without considering race.)
