PBS NewsHour | Brooks and Capehart on Supreme Court's landmark decisions | Season 2023

GEOFF BENNETT: To discuss the implications of the Supreme Court's major decisions this week, we turn to the analysis of Brooks and Capehart.

That's New York Times columnist David Brooks, and Jonathan Capehart, associate editor for The Washington Post.

With a welcome to you both, the Supreme Court has given us much to discuss on this Friday.

Let's start with the Supreme Court siding with a Web designer in Colorado who said that she had a First Amendment right to refuse to provide services to same-sex couples, despite a law in Colorado that forbids discrimination against gay people.

David, there are those on the right, there are religious conservatives who are hailing this as a victory for religious liberty.

And there are others who say this ruling created a constitutional right to discriminate.

How do you see it?

DAVID BROOKS: Yes, I don't have a qualified -- I'm not qualified to give it a legal opinion.

I'm not a lawyer, so I look at it, is it good or bad for society?

And so, in this case, you had the right for artistic expression against nondiscrimination, and it was a contest between those two.

And the court chose free expression.

That strikes me, just as someone who lives in American society, as doing great harm to American society.

It seems to me the idea that we do not discriminate in our businesses is just -- that's much more a serious thing to break that than to restrict someone who's really running a business, not just painting a painting, but is running a business.

And if that person who's running a business is allowed to discriminate, it seems to me it's just a poison in our society.

GEOFF BENNETT: Jonathan, using David's frame, the impact on society, what's your assessment of this ruling?

JONATHAN CAPEHART: I have to tell you, Geoff, this ruling and a bunch of other rulings from this court pains me.

And it pains me personally.

And I think David framed it perfectly.

I'm not a lawyer, also, but I will say that this decision is wrong.

It is absolutely wrong.

And it's also wrong because this Web designer, no one asked her to do what she says she feels she will be forced to do.

And so the Supreme Court just made it possible for private businesses to discriminate against people like me simply because they fear that they might have to do something that no one asked them to do?

David is absolutely right.

This decision is definitely a poison on society, also because, it's so broad, who's to say that it doesn't stop at Web designers or private businesses, that it doesn't lead to more erosion of rights for protected classes?

GEOFF BENNETT: On the matter of the Supreme Court striking down the use of affirmative action in college admissions policies, colleges certainly have a game plan.

We just heard that segment about how some colleges are emphasizing the use of college essays.

And President Biden suggested a new standard consistent with the law whereby schools could take into account out the kinds of adversity that students have overcome.

What do you make of that?

DAVID BROOKS: Yes, I think there are three things to be said about this.

One, we need to have diverse colleges and universities.

We need to have diverse -- all our institutions.

Two, I do think there was massive discrimination against Asian Americans.

And, three, the college admissions game at the elite level is rigged toward the rich.

There are so many of these schools have more families, more kids from families in the top 1 percent than the bottom 60 percent.

And so, to me, the way out, which I hope colleges will do, will say, OK, you're not allowing us to do racial preferences, but we're going to do class preferences.

And if you come from a family with less wealth, we're going to give you a preference.

And if you do that, because of the historic disparities, say, between Blacks and whites, you can increase the number of Blacks students, increase the number of Hispanic students, and you basically take down what has become a caste society, where rich parents send their rich kids to elite schools, who then marry each other and have educated kids who go to elite schools.

And that has just created this horrific class divide in our society.

So I think there is a way to do this right and get everything we want, but the universities have to be willing to not bias their whole system, these elite universities, toward the rich.

GEOFF BENNETT: I want to read some notable reaction to this Supreme Court decision.

Nikki Haley had to say this.

She says: "Picking winners and losers based on race is fundamentally wrong.

The decision will help every student, no matter their background, have a better opportunity to achieve the American dream."

And from the former first lady Michelle Obama, she had this to say.

She says: "So often, we just accept that money, power and privilege are perfectly justifiable forms of affirmative action, while kids growing up like I did are expected to compete when the ground is anything but level."

Jonathan, how do you see this?

JONATHAN CAPEHART: This is another Supreme Court decision that hits me personally.

Were it not for affirmative action, Geoff, I wouldn't be sitting in this seat.

I wouldn't be with David Brooks.

I would not have gotten the great education I got at Carleton College.

And the thing that I find most offensive about this decision is the foundation of this so-called colorblind Constitution, that affirmative action flew in the face of the framers' colorblind Constitution, which is a fallacy, which I think Justice Ketanji Brown Jackson did a superb job of showing, not just to the justices, who I'm sure know very well the history, but to the American people, outlining to them, in a great synopsis of our tortured American history when it comes to race, why something as modest as affirmative action was necessary.

And so, once again, you have got a Supreme Court, which I think, between the two decisions we're talking about right now and the next one we're going to talk about, in terms of student loan forgiveness, the American people, they're going to start looking at the Supreme Court not as judges sitting on high and being the referee, but as political actors who don't have the interests of a majority of the American people at heart.

GEOFF BENNETT: Well, on that point, the court striking down President Biden's plan to cancel student debt for roughly 40 million people, how might that play politically?

And, to Jonathan's point, how does it affect the legitimacy of the court?

DAVID BROOKS: Yes.

First, I wrote a column more or less endorsing the -- Biden deciding to give people a break on the debt.

But even at that time, I thought, there's no way this is constitutional.

There's just no way that the U.S. Constitution thinks the United States president should sign a piece of paper and be willing to spend $400 million.

I mean, the power to spend is clearly in the House, clearly in the Congress.

GEOFF BENNETT: And Democrats had that concern initially.

DAVID BROOKS: Initially.

And Joe Biden had that concern initially.

GEOFF BENNETT: Yes.

Right.

DAVID BROOKS: And so I think, A, the way it's played out, he can blame the court for not getting the loans, not himself, and he will try to apparently use the Higher Education Act to go around this the other way.

I'm not sure he can do it as ambitiously as he had, but that would be fine by me.

If he wanted to take especially students who had received Pell Grants while in education and focus all the relief on them, that would be fine by me, because the program does skew a little toward people who are going to make a lot of money.

Just one little point on all these three cases.

The tone that these justices are using against each other is -- was introduced by Scalia years ago, and it's a brutalized and often very personalizing tone they're using with each other.

And that, to me, does undermine the credibility of the court.

They really look like cage fighters at this point, and that's -- they can render their decisions, but do it in a way that feels legalistic and prudent.

GEOFF BENNETT: Jonathan, taken together -- you were about to say something.

Go ahead.

JONATHAN CAPEHART: Yes.

(LAUGHTER) JONATHAN CAPEHART: You know what?

The personal tone coming particularly from the liberal justices writing in the dissent, I am here for it 100 percent, because we're not talking about arcane policies and arcane readings of the Constitution as it applies to something that applies to a very narrow set of people.

We're talking about dissents that are thundering against a court that is going against stare decisis, that is stripping rights away from people that they have come to rely on, Roe v. Wade, 50 years, affirmative action, almost 50 years.

And Justice Thomas last year in the Dobbs decision signaled that Griswold, Lawrence, and Obergefell should also be overturned.

So, if Justices Soto -- Sotomayor Sotomayor and Justice Ketanji Brown Jackson and the other liberals on the court want to thunder against the 6-3 -- the six conservative justices, you know what, have at it, because that's the voice of a lot of -- millions of Americans who are right now, tonight, as we're speaking, fearful of what other rights are going to go by the wayside.

DAVID BROOKS: I was actually thinking of Thomas going against Jackson, but... (LAUGHTER) GEOFF BENNETT: Well, in the couple of minutes that remain, David, I want to draw you out on this column that you wrote about what the White House is calling Bidenomics, President Biden's economic vision.

And you asked the question in the column: "Why are Americans feeling so bad about an economy that's so good?

The main problem is national psychology."

Tell us more about that.

DAVID BROOKS: Yes, I mean, the misery index measures how well the economy is doing, and, usually, presidents win if the economy is doing pretty well.

And the economy is doing better now than when Reagan won, than when Obama won, than when Clinton won, when Bush won.

And yet Biden's not getting the prop -- the benefits, and partly because people are still haunted by inflation.

But, partly, we have been through a national psychological demoralization, and we have lost confidence in ourself all because of the Trump years.

And so we have become much more pessimistic.

And whether Biden can overcome that and restore people and look around the country.

A lot is going wrong, but the economy is actually going quite well.

If he can do that -- he really has to do that to win reelection.

GEOFF BENNETT: And, Jonathan, we have about 30 seconds left.

I know you have an impressive Rolodex of White House officials that you -- people you speak to frequently.

Do they think that they can counter this national malaise, this sense of malaise, the national mood?

JONATHAN CAPEHART: They're - - they're going to try.

And the fact that they're trying to do it now, more than a year out from the election, tells me that they're taking it seriously and that they actually stand a chance of breaking through to the American people, so that the good economic data can match up to the good feelings that they hope the American people will have by November of '24.

GEOFF BENNETT: Jonathan Capehart and David Brooks, our deep thanks to you both.

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