CHAUTAUQUA — Let’s pick up where we left off last week.

The U.S. Supreme Court’s opinion taking race-based college and university admissions off the table is a ringing reaffirmation of–to borrow a phrase from the Fourteenth Amendment–“the equal protection of the laws.”

This opinion is in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, and Students for Fair Admissions, Inc. v. University of North Carolina.

Writing for himself plus Justices Clarence Thomas, Samuel Alito, Neal Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, Chief Justice John Roberts characteristically constructs a clear, easy-to-read opinion that carefully and masterfully draws on history and Supreme Court precedent and, based on them, reaches a conclusion.

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The court holds that race-based college and university admissions violate the Constitution’s Equal Protection Clause.

A speaker–a self-described liberal–at Chautauqua Institution this summer disagrees.

It’s probably safe to say that many–including many agreeing with the court’s conclusion–in the audience would have appreciated hearing a careful and masterful explanation of why the speaker disagrees.

How–audience members may have asked–does Roberts misunderstand the Equal Protection Clause? What’s wrong with this opinion?

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The audience did hear some things. For example, the audience heard:

¯ Roberts relies on Brown v. Board of Education, the 1954 opinion holding racially segregated public schools violate the Equal Protection Clause.

You, faithful reader of this column, know that. You read it here last week.

¯ The speaker faults Roberts for not distinguishing Brown from Students for Fair Admissions.

Racially segregated public schools–the argument goes–keep people apart, while race-based college and university admissions bring people together.

The former is true. In some, perhaps many, quarters, the latter is also true. Let’s assume it’s universally true. Why does that mean race-based college and university admissions survive an Equal Protection Clause challenge? The audience didn’t hear that.

¯ Not all race-based criteria are unconstitutional.

That’s also true.

Suppose that the United States needed to send undercover intelligence agents to Africa, Asia, and Europe. Suppose that the United States wanted to hire this columnist for one of those positions. Suppose further that each targeted region executed spies on the spot. Assuming you wouldn’t want that to happen–insert laugh track here–where should the United States send this columnist?

The speaker offered a parallel example of sending law-enforcement officer Sven Johanson to infiltrate an organization in which he would stand out.

These examples illustrate that in narrow circumstances, race-based criteria should survive an Equal Protection Clause challenge.

Roberts himself acknowledges as much.

It doesn’t follow, however, that race-based college and university admissions should also survive such a challenge.

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The speaker also explained why, in the speaker’s view, race-based college and university admissions are good policy.

That, however, doesn’t make them constitutional.

Just as the Constitution doesn’t prohibit all bad ideas, it neither permits nor mandates all good ones.

Here’s the hard truth: For the sake of constraining government, the Constitution should, can, and does prohibit some ideas, including some good ones. “Good” and “constitutional” differ.

That’s how it needs to work in a country, such as this one, where government has only those limited and enumerated powers that We the People surrendered to government in the first place, and where other constitutional provisions–including the Equal Protection Clause–further constrain government.

In short, constitutional law isn’t a vehicle for reaching one’s policy goals.

Nevertheless, judicial activists tend in effect to disagree.

This includes such activists on both sides of the political spectrum and both sides of the legal spectrum.

They often try–sometimes successfully, sometimes not–to get a court, including the Supreme Court, to implement, as constitutional law, what they believe are good ideas.

Do honorable people disagree over constitutional boundaries? Yes, indeed, they do.

However, substituting one’s ideas for the Constitution is–to understate the point–mistaken.

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Further addressing race-based college and university admissions, the speaker says Roberts, Thomas, Alito, Gorsuch, Kavanaugh, and Barrett “are inflexible on these issues.”

But if people are right, being inflexible can also be right. To pick an obvious example: If law-enforcement officers quickly slapped the cuffs on drivers who have consumed way too much alcohol and done 100 miles per hour in school zones, would we say the officers “are inflexible on these issues”? If we said that, would it be a compliment?

To put it another way: It’s one thing to say Roberts, Thomas, Alito, Gorsuch, Kavanaugh, and Barrett are inflexible. It’s another thing to say they’re wrong.

So why are they wrong?

Are dissenting Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson also “inflexible on these issues”?

If so, why not use “inflexible” for them too?

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Chautauqua Institution was the venue for the speaker. Chautauqua didn’t select the speaker. The speaker was selected by an organization that is legally separate from Chautauqua and whose principal location isn’t in Chautauqua.

Next week’s column by Dr. Randy Elf addresses the first question that the speaker received from the audience and the speaker’s answer.

ç 2023 BY RANDY ELF