Addressing the mental health impact of the recent Supreme Court decisions
A collective gut punch; an individual's rights
photo by Lara Jameson on Pexels
Hey there everyone—
Last summer I wrote a piece arguing that the repeal of Roe v. Wade was an act of psychological warfare, a way of not only blocking access to abortion, but also of demonstrating the ultimate power of patriarchy to shape the relative autonomy of an entire population. Even if you personally didn’t need an abortion, or love someone who needed an abortion, you were still being targeted as a person whose body was under the jurisdiction of the Court.
Last week the Court released three decisions: one struck down affirmative action; one blocked the Biden administration’s plans to cancel up to $20,000 in student loan debt for qualified individuals; the third supported an individual’s right to post on her forthcoming public business website that she would not design wedding websites for LGBTQIA people.
Because these decisions just came down, and because I’m not a lawyer, I’m not going to parse the details of the decisions from the perspective of legal theory. (I am including a roundup of articles for your review at the bottom of this post, however, for those of you who want to know more.) What I’m going to do here is to consider two things: first, the difficulty of addressing structural violence and oppression through the Law, and second, the mental health impact of these decisions on the collective, particularly those whose lives are most directly subject to these decisions.
One thing that struck me about these decisions, as a triad, is that they are linked by their efforts to shore up the rights of the individual over the collective. Many articles on the affirmative action decision, for example, note that John G. Roberts Jr.’s decision did not forbid discussions of race, racism, or discrimination in the college application process. Roberts, in fact, emphasized that any applicant could write about the ways they felt their personal experience of race had influenced their life, and might influence the way they participate in a college community. Here’s his quote:
Nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration or otherwise.
Seizing on the ways this sentence might serve as a loophole, Shannon Gundy, the director of undergraduate admissions at the University of Maryland, who I am sure is following an approach that many others will pursue, recommended that universities begin to craft essay questions for students that ask them to discuss race explicitly in their application essays. Commenting on current student essays, Gundy said: “Right now, students write about their soccer practice; they write about their grandmother dying. They don’t write about their trials and tribulations. They don’t write about the challenges they’ve had to experience.”
Though I’m sympathetic to Gundy’s frustration and desire to combat the decision, her response raises a number of problems. The problem with giving students the opportunity to discuss racial “trials and tribulations” in their college essays is that the work-around follows the same logic as Roberts’ decision—that is, it focuses on the individual as both the source and the remedy for a problem that is structural in its origin and thus requires a structural response to enact change.
Second, it asks students to sing for their supper in a grotesque and exploitative fashion. Asking a person who has experienced systemic racism and structural violence to put out their emotional pain as an implicit requirement to even be considered as a potential member of a community should not become a mechanism to compensate for the fact that affirmative action is now illegal. My sense is that the anger that people are feeling about the decision, and their desire to stop it as quickly as possible, is blinding them to the psychological violence of asking some students to reveal the ways they have been targeted as a member of a group, and the emotional and economic impacts of that targeting, whereas other students, who have already lived lives free of structural, institutional, and individual acts of racism, can feel free to write about soccer.
If that’s what you have to do to even be considered for an elite college, what’s the message about how that community will receive you and your history? That you are valuable because of it? That you will be asked to explain how racism works to those who haven’t had your experiences? That “diversity” is about thickening the experience of white students by giving them access to people who might not be there if they hadn’t used their pain to signal, as individuals, that their lives have been shaped by systems and structures and laws that for generations enslaved and oppressed their ancestors and that may help lock up their relatives today? It is these arguments, of course, that conservatives use to say that affirmative action is racist. And that is why any approach to address systemic and institutional racism that depends on the actions of an individual, operating as an individual actor, won’t work.
The Court’s three decisions are united by their refusal to recognize structural violence and oppression, systemic inequality, and by extension, any legal measures that might work to create nationwide institutional or systemic change. It appears that these decisions are based on the conservative premise that the subject before the Law is operating as an individual who is a rational actor, with full agency, intent, and self determination. This individual stands before the Law as an equal to all other individuals who stand before it. The individual has the same opportunities for personal advancement and redress as any other. It sounds good. It sounds like the kind of America that Americans want to believe in on the 4th of July.
I keep thinking of the solemn pronouncements I kept hearing from TV pundits when Trump was indicted: “No one is above the Law.” The subtext: even someone as powerful as Trump, who has used his money and influence to protect himself, will stand before the bench as humble as the next guy. In this context, it sounds like “justice”—people who use their power and privilege for corrupt ends will finally get their comeuppance, even if they think they’re a king.
If we take at face value the idea that everyone stands before the Law as an equal, it is worth asking what happens when the person leaves the Court and goes back to the historical context, the larger systems and structures that work both for and against his individual power and agency. What must be erased from the legal conceptual field in order for the individual to be taken as if he were equal to everyone else? Conversely, is there any way to use the Law to account for, and create redress for, structural and historical violence and oppression? We can’t have “girl law” and “boy law”; we can’t have “gay law” and “straight law.” But we have patriarchy, which shapes the relative power and autonomy of women and men, trans and gender non conforming folks, gay and straight people. If we want to account for the impact of structural power differentials between these groups, is the Law the appropriate vector for these kinds of change? E. Jean Carroll won a defamation suit, but patriarchy is still going strong.
Is it possible to have a frank conversation about the structural disadvantages that are built into U.S. society and ask if the nation would find it a moral and ethical good to increase the freedom of the collective, even if it comes at some expense to the individual? These are hard questions. But I want to know the answers. I want to have that conversation, explicitly, instead of having it run through legal arguments that obfuscate and background their larger intent.
Writing on the affirmative action decision, the New Yorker’s Jelani Cobb notes, “Of the hundred and sixteen people who have served on the Supreme Court, only two—Justices Thurgood Marshall and Clarence Thomas—knew what it felt like to attend a segregated school as a Black person. This perspective inarguably benefits a body dedicated to adjudicating cases that affect the entire society.” If everyone is equal, and already has equal opportunity, as Conservatives maintain, how are we to explain the fact that only two Supremes have had an experience of racial segregation? Is it simply that no other Black judges were competent enough to become Supreme Court justices on their own merit and hard work, because the playing field was always there, always open to them?
Part of the reason the Biden loan forgiveness program failed is because Missouri demonstrated that some students will lose access to education funding because money that could help them would instead be paying for student debt relief. Part of the reason Lori Smith won the right to publicly discriminate against gay people is because she persuaded the Court that her First Amendment rights to free speech were being abridged. These arguments appear to me, a non-lawyer, to be predicated on pitting the rights of one individual against another, and asking the court to rule as if that individual is existing outside of a context in which entire blocks of people have endured political, economic, and psychological marginalization, and some blocks of people have not.
Justice Sotomayer’s dissent in the gay wedding case argued for the rights of gay people as a protected class. The Biden administration’s qualifications for student debt relief are designed to rectify the imbalance between those whose families are rich enough that their children will not have to carry debt in order to be afforded the advantages of a college degree and those who, though through their hard work and discipline, may find that their college degree cannot provide them the same advantages, because the opportunities provided by the degree have to be weighed against jobs that will meet the burden of debt.
The question I’m holding is this: can a Court that sees itself as focused on the rights of individuals ever assent to a law that is designed to create redress at the level of the structure?
One way I think about the mental health impact of these decisions is not only in their restricted arena of impact—their refusal to forgive loans, or allow race-based college admissions, or ensure gay people receive services from all the businesses in their community. I think about the fact that these decisions are being received by people as decisions that target members of a group or a protected class, but are described as if they don’t.
There’s a particular vertigo that happens when an entire group of people has been historically discriminated against and then is told, when that discrimination continues, or is perpetuated, or defended, that no, it’s not about attending to historical discrimination, it’s about defending individual rights. Justice Sotomayer, in her dissent, stated that gay people were being treated as “second class citizens” in the decision. And yet the decision is defended by those justices who ruled in its favor as one that would stop a Muslim director from being forced to “create a movie with a Zionist message.”
The focus on individual freedom that America hails in its story of itself as a nation masks its history of defining only some of its members as full persons, or as able to be free. Within such a framework, it’s not surprising that our psychology, or theories of mental illness and health emanate from and reflect these contradictions. We have a diagnostic category of PTSD that acknowledges the impact of a combat IED on the person of a combat veteran. We have a PTSD that comes from a sexual assault or a crime. But we don’t have a PTSD that accounts for the effects of chronic, unremitting racial violence, because to do so, we’d have to acknowledge structures, rather than individuals, as sources of violence.
We have treatments for anxiety and depression that focus on the “maladaptive thoughts” or “brain chemistry” of individual minds and brains. But we don’t have a way to talk about, let alone heal, the collective feeling states that result from witnessing the mass shooting of schoolchildren, the destruction of ecosystems, the indiscriminate violence against people of color perpetuated by the police. We were told there was a “mental health epidemic” during the pandemic. But the solution was about getting individuals into therapy, rather than seeing the collective response to the pandemic not as an epidemic of mental illness, but rather a mass heightening of our sensitivity to the collective whole. We were still enough to witness and feel in our bodies the collective permeability to threat; the pandemic a light shining on the filigrees that connect us, that are always there, and the ways we live that allow some people to be protected, and others to die. We may live and act as individuals, but we are equally part of a collective self. The suffering of others, and of our environment, if we don’t wall it off, is our own suffering. I want a Supreme Court that minds our collectivity, that uses its discernment not just to adjudicate conflict between individuals, but to raise and perhaps offer answers to existential and philosophical questions about our responsibilities to our history, our present, and our future.
Roundup
With affirmative action struck down, Stanford scholars discuss what to do next
https://news.stanford.edu/2023/06/29/stanford-scholars-react-end-affirmative-action/
The End of Affirmative Action/After Affirmative Action (print edition)
https://www.newyorker.com/magazine/2023/07/10/the-end-of-affirmative-action
The Application Essay Will Be a Place to Talk About Race
https://www.nytimes.com/2023/06/29/us/politics/college-application-essay-race.html
Supreme Court rules website designer can decline to create same-sex wedding websites
New Approaches Needed to Diversify Campuses After Supreme Court Ruling
https://belonging.berkeley.edu/new-approaches-needed-diversify-campuses-after-supreme-court-ruling
Supreme Court Strikes Down Biden Student Loan Forgiveness Program
The Major Supreme Court Decisions in 2023
Supreme Court Rejects Biden’s Student Loan Forgiveness Plan
I’ve also just learned about the Amicus podcast and plan to listen to all the posts about the cases.