First, Liberal Justices Opposed Ending Gov’t-Based Discrimination. Then, They Argued Free Speech May Be Discriminatory

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  • The Supreme Court’s liberal justices have claimed that the court’s conservative decisions on race-based admissions in higher education and free expression will legalize discrimination in America.
  • In strongly-worded dissenting opinions, Justice Sonia Sotomayor and Ketanji Brown Jackson suggested that the court’s rulings will “entrench segregation” and lead to a “caste system” based on sexuality in America.
  • The liberal justices received a rebuke from the Chief Justice John Roberts for the language in their dissents, which he called “disturbing.”

The Supreme Court’s liberal minority, after claiming the court was promoting “segregation” in its ruling on race-based admissions in higher education, wrote on Friday that the court was legalizing discrimination in public life after another ruling regarding free speech in Colorado.

Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson, each of whom were appointed by Democratic presidents, voted against the court’s six conservative justices in both Students for Fair Admissions v. Harvard, where the court struck down race-based admissions in higher education, known as “affirmative action,” and 303 Creative v. Elenis, where the court ruled that a graphic designer cannot be compelled to produce products in support of gay marriages. In both cases, the minority wrote strongly-worded dissents that predicted dangerous outcomes for the country from the rulings. (RELATED: Here’s How Colleges Could Get Around The Supreme Court’s Affirmative Action Ruling)

In the 303 Creative case, Sotomayor suggested that the court’s ruling would lead to a “social castes” between heterosexual and homosexual Americans should businesses be able to refuse service to the latter citing freedom of conscience under the First Amendment.

“The unattractive lesson of the majority opinion is this: What’s mine is mine, and what’s yours is yours. The lesson of the history of public accommodations laws is altogether different. It is that in a free and democratic society, there can be no social castes,” Sotomayor wrote, adding that “the promise of freedom is an empty one if the Government is powerless to assure that a dollar in the hands of [one person] will purchase the same thing as a dollar in the hands of a[nother].”

Sotomayor further suggested that the Court’s ruling imperiled the individual rights of people who are part of the “LGBTQ” community, in that she claimed “[a] slew of anti-LGBT laws have been passed in some parts of the country, raising the specter of a “bare … desire to harm a politically unpopular group.” Sotomayor castigated the court for missing “an opportunity to reaffirm its commitment to equality on behalf of all members of society, including LGBT people,” saying “it does not do so.”

Justices Jackson and Kagan joined Sotomayor’s opinion and did not file dissents of their own.

Sotomayor’s remarks followed her dissent in the Harvard case on Thursday, where she wrote that the court’s ruling would lead to racial segregation in higher education because it imposes, in her words, a view of “colorblindness” on the admissions process, writing that “the majority’s vision of race neutrality will entrench racial segregation in higher education because racial inequality will persist so long as it is ignored.”

Sotomayor’s dissent also unleashed a personal attack on the court’s conservatives, with her writing that “the six unelected members of today’s majority [are] upend[ing] the status quo based on their policy preferences about what race in America should be like, but is not, and their preferences for a veneer of colorblindness in a society where race has always mattered.”

The liberal justice further suggested that the court’s decision to prohibit race from being directly used as a factor in admissions would further fuel discrimination against minorities, writing that “[t]he result of today’s decision is that a person’s skin color may play a role in assessing individualized suspicion.”

Sotomayor was joined by Justices Kagan and Jackson, with the latter writing in a separate dissent that “the Court’s meddling not only arrests the noble generational project that America’s universities are attempting,” referring to racial equality. She also claimed that overruling affirmative action would “make the colorblind world the majority wistfully touts much more difficult to accomplish,” in that it would “forestall the end of race-based disparities in this country.”

Jackson’s opinion also questioned the Declaration of Independence, writing of “… the ‘self-evident’ truth that all of us are created equal.” Her use of quotation remarks around “self-evident” critiques the Declaration’s preamble, which reads, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights.”

The dissents by Sotomayor and Jackson in both cases do not have the force of law, but were widely relied upon by Democrats and progressives to criticize the court. In remarks on Thursday after the Harvard case, President Joe Biden cited the dissent in opposition to the court, stating “the dissent states that today’s decision rolls back decades of precedent and decades of progress. I agree.”

Sotomayor and Jackson’s writings, with their strong vocabulary and fearful predictions, were criticized by others on the court, such as Chief Justice John Roberts, who wrote the majority opinion in both cases.

In a separate case regarding the Biden administration’s student debt forgiveness program, which was ruled unlawful, Roberts alluded to their remarks by writing “it has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary.”

The Supreme Court’s office of public affairs did not immediately respond to a request for comment.

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