An overview of four SCOTUS decisions from its last week in session reveals grounds for concern about judicial politics in the US. Understanding what these cases actually addressed and concluded is key to seeking change.
Another term for the US Supreme Court (SCOTUS) has closed after a week of controversial rulings, and with the promise of a contentious Second-Amendment issue on the next session’s docket. In a bit of grim humor earlier this week, a social media meme proclaimed that, having mastered submarine engineering, keyboard warriors were currently getting their overnight degrees in military strategy, around Russia’s recent coup attempt. Now, social media is filled with insta-legal experts, and misinformation abounds.
But the reason for so much misinformation, and panic, is important. The United States finds itself at a challenging crossroads for confidence in its highest judicial office, as the last few years of SCOTUS appointments and decisions have significantly transformed what were once decades of settled law in favor of right wing social and political positions. Three lifetime appointees under a past president who faces dozens of felony counts leaves SCOTUS tarnished on both sides of the political spectrum: among those who confidently believe the court is “theirs”, and among those who agree, with full and horrified confidence that, yes, an ostensible check-and-balance on Congress is now owned by a political faction and its priorities.
That trend of demoralized democracy continued this week, with a decision on Thursday and another two on Friday decided 6-3 “along party lines”. This means that liberal Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson dissented from decisions advanced by a right wing cohort riddled with tax, property, and gift scandals for Justices Samuel Alito Jr, Neil Gorsuch, and Clarence Thomas. The divisions were stark, and in the case of one verdict, involved opinions that reflected heated ongoing debate between sitting justices.
Differences also emerged in the level of rigor brought to the matter of standing in distinct SCOTUS cases. “Standing” is what determines if an issue warrants judicial consideration, based on whether the petitioner can provide evidence of injury under a current or an impending state of affairs. In one case, the justification for standing was hypothetical and possibly faked. In another, two would-be petitioners were denied standing while a questionable third was found to carry the case forward.
Then there was a verdict that didn’t seem favorable to Republican petitioners on the surface, but has deeper consequences. One case that might have vastly transformed election law was dismissed on Tuesday, in a 6-3 verdict that found Thomas writing for the dissent. That case is still troubling, though, because along with “standing” there is another crucial issue for SCOTUS: the matter of whether it can actually “reach” a given question to rule on it at all. In this case, the Biden administration had been asking it not to reach that question. Republican representatives wanted that question reached, and a concurring opinion in the decision suggests why.
Taken together, then, the decisions on Moore v. Harper, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, Biden v. Nebraska, and 303 Creative LLC v. Elenis attest to a fraught landscape for the legitimacy of the US courts.
And that landscape deserves to be understood properly, so citizens can decide if the choices made by this SCOTUS adequately reflect their society as a whole.
Moore v. Harper: States v. federal electoral rights
The first major case this week addressed the issue of federal versus states rights in a matter of elections jurisdiction in North Carolina. But not in a clean-cut way.
The North Carolina Supreme Court had set aside an elections map passed by state legislature that amounted to gerrymandering: drawing districts such that a fairly evenly divided state would see 10 of 14 seats go Republican. In Rucho v. Common Cause (2019), SCOTUS had ruled that federal courts could not weigh in on issues of state gerrymandering. State Republicans wanted SCOTUS to rule that its local court had overstepped when putting aside the gerrymandered map.
The Republicans’ argument relied on the notion of “independent state legislature” theory, a way of interpreting the Elections Clause of the Federal Constitution as vesting full and unrestricted rights to state legislatures with respect to how they would carry out federal elections. This case gave SCOTUS an opportunity to strengthen states’ rights against local courts. This would give state legislatures more unchecked power, including over how federal elections are implemented.
Republicans have attempted to press this question before, especially in Pennsylvania around the 2020 presidential election. In North Carolina, 2022 midterm elections also flipped its state court, to a current Republican 5-2 majority. This new court has already decided that it is not within its purview to challenge state legislature on gerrymandering, but it also did not vacate the earlier ruling against a specific map.
This flip in state court verdict created a quandary for SCOTUS. An issue has standing when there is an injury of ongoing relevance. In Thomas’s dissent, he argued that SCOTUS should never have weighed in because the issue was now moot: dead in the water, with a new court expressly committed to not intervening with further maps.
Chief Justice John Roberts, however, noted the tension between a court that hadn’t vacated its earlier interference, while also vowing not to interfere going forward. This contradiction created room for grievance, and just petition to SCOTUS for relief. On Tuesday, the justices therefore weighed in on whether a state court (and through it, the federal judicial system) retained authority in affairs pertaining to federal elections.
This is a key decision for voting rights as the US gears up for another bitter presidential election. But just as Thomas didn’t see anything SCOTUS had to say as relevant in an issue that the Republican-run state court had already decided, so too did the Biden administration not want SCOTUS to rule on this decision at all.
Why? Because weighing in on the question creates opportunities for much more rigid standards that can be leveraged in future federal versus states rights issues.
And that’s exactly what happened. Roberts avoided outlining a specific test for federal courts to use when deciding to intervene in state legislative decisions around the fair delivery of federal elections. But Kavanaugh, in a concurring opinion, did offer such a “straightforward” test, based on the standards of Rehnquist in Bush v. Gore. Where this refined sense of acceptable intervention will go is a matter not only for next year’s main cases, but also any emergency injunctions that might arise (on the “shadow” docket) around issues in an election year.
Students v. Harvard: Affirmation action ended
On Thursday, SCOTUS decided on Students v. Harvard. The question before the court was whether admissions standards at Harvard University and the University of North Carolina (UNC), which consider race among other factors, were lawful under Equal Protection Clause of the Fourteenth Amendment. The court ruled 6-3 they were not.
This decision overruled an early case, Grutter v. Bollinger (2003), which had upheld the lawfulness of affirmative action policy: the explicit legal empowerment of institutions to counteract a well-documented US history of affirmative action favoring white people (especially in access to housing, credit and other banking services, schools, jobs, firearms, and equivalent redress and sentencing under the law) through racialized uplift in higher education and other government programs.
Prior to the affirmative action era, there had been a quota system in place, expressly meant to cap the number of people from non-white demographics who could ever hope to access common pathways to wealth construction in the US. From the start, affirmative action has also been a strongly labor-driven issue, to protect people cut off from equality under the law due to class standing and their desire to unionize. From Roosevelt on, the push for workers’ protections developed the US government’s central role in establishing anti-discrimination practices in many fields.
Online chatter around the case keeps getting distracted by the fact that sitting justices, including Thomas and Sotomayor, benefited from affirmative action. This is irrelevant, on account of the legal issues expressly explored by SCOTUS.
At question even in Grutter v. Bollinger, and again here, is the matter of sunsetting. Are race-based considerations meant to continue indefinitely, or should such legal fixes only be enforced with an expectation of a time when they will no longer be useful to the greater cause of achieving full diversity and equality? Justice Sandra Day O’Connor, writing for that early case, had suggested a 25-year sunset clause.
Five years out from that proposed sunset, Roberts ruled that, while a university is welcome to consider a student’s race if they choose to discuss its role in overcoming adversity in an essay, the raw fact of race is an unlawful consideration. He argued that Harvard and UNC’s policies, for want of a sunset clause and other precise parameters, are insufficient to counteract the risk of race counting against someone else. Thomas and Kavanaugh both wrote concurring opinions, arguing that other platforms for the redress of inequality are better suited to the task.
Those more precise parameters will allow race to continue as a factor in military schools, as an extension of a prior, tough fight to desegregate the US Armed Forces.
Sotomayor’s dissent outlines the recent and ongoing histories of racial discrimination that attest to the unacceptability of considering this moment appropriate for sunsetting essentially all affirmative action programs in US universities. Neither side openly claims that “racism is over”, but the 6-3 vote nevertheless asserts that it is over enough for the six conservative judges to rule in favor of the conservative action group that brought this case forward, within a culture where many white students still believe that their “rightful” place in elite university systems has been usurped by an affirmative-action interloper.
There is reasonable concern that this ruling to end affirmative action around race will have a significant impact on affirmative action for women, too.
Biden v. Nebraska: Student debt relief blocked
In another issue pertaining to the question of legal limits, SCOTUS ruled on Friday against President Joe Biden’s student debt relief plan, which had been on hold for legal review since its announcement last fall. The plan would have fulfilled an election promise, by cancelling up to $400 billion in student debt at up to $20,000 per person: effectively eliminating all education debt for around half of all borrowers.
This plan built on prior Education Secretary Betsy DeVos’s use of the HEROES Act (2003) to halt debt repayment during pandemic, under the license this law gave her office to “waive or modify any statutory or regulatory provision” to prevent borrowers from becoming worse off in a national emergency. But when Biden announced his legally endorsed version in August 2022, federal courts in Missouri and Texas put the program on hold. This created grounds for appeal to SCOTUS.
Here, the issue of standing was of vital importance. In a related decision, SCOTUS found that two proposed plaintiffs (individual borrowers) did not have sufficient cause to contest government policy through the courts. But a third one did. Because Missouri was expressly in control of the Missouri Higher Education Loan Authority (MOHELA), it claimed a direct stake and risk of injury from a federal decision that would compel it to take a loss that would affect its ability to support future borrowers. This, Missouri argued, made Biden’s program directly injurious to the state.
That does not resolve the case, though. It only establishes legitimacy to be heard.
What Roberts and five other party-line justices concluded comes back to the wording in the HEROES Act: the power of the government to “waive and modify any statutory or regulatory provision”. Roberts claimed that Biden’s program “modified” law only in the way that the French Revolution “modified” the status of French nobility, and that the word “waive” had only been used in the past in very selective, individual contexts. The six conservative justices therefore ruled that Biden’s administration did not have the authority to “waive and modify” the loan system in this way.
Kagan, writing for the dissent, argued that the case should never have been considered to have had standing, because Missouri filed—and not the actual, directly injured party, MOHELA. She also expressed deep concern about SCOTUS overreach, by reading the HEROES Act so selectively, and through that selective reading deciding when Congress does or does not have the right to delegate matters to specific agencies. The precedent set here, according to Kagan, is dangerous for democracy because it amounts to deep intervention in congressional affairs.
303 Creative LLC v. Elenis: Religion and business
But in a week of contentious rulings, it’s possibly 303 Creative LLC v. Elenis that will prove the most incendiary. This is in part because the backstory is so unusual as to suggest that it was engineered as a wedge case for further legal challenges.
On its surface, SCOTUS was asked to decide if Colorado could enforce an anti-discrimination law against a Christian web designer who did not want to design websites for same-sex couples.
Justice Gorsuch, writing in the affirmative for the 6-3 decision in favor of the service provider, argued that this was a matter of free speech, not public business law. Just as one cannot be compelled to speak in ways that defy one’s conscience “about a matter of great significance”, so too can one not be compelled to produce a product that is viewed as a form of speech.
This verdict relied on case precedent like the 7-2 vote for Jack Phillips in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (2018). In that case, the baker was granted a narrow victory based on the level of hostility Phillips received from Colorado state administration when refusing to produce a cake for a same-sex couple. The case did not set clear parameters for when a service provider’s sincerely held beliefs would have to yield to a public-accommodations law that compels any public operator not to discriminate on the basis of sex, race, religion, and sexuality.
However, the conflation made here by Gorsuch, of certain products put on sale on the open market with forms of protected individual speech, leans much more strongly on a body of case law extending from Citizens United v. FEC (2010), which ruled in favor of seeing corporate donations as a form of “speech” extending from corporate personhood. A ban on corporate “speech” in this way was viewed as having a chilling effect on free speech in general, and had to be corrected.
No, Gorsuch’s verdict does not mean that every bigot can now hang up a sign that says “No gays allowed”. But as Sotomayor highlighted in the dissent, the SCOTUS decision in this unusual case does declare “that a particular kind of business, though open to the public, has a constitutional right to refuse to serve members of a protected class.” It’s a picked thread that can now unravel further.
The reason this case is so unusual, though, was highlighted just a day before the decision. The web designer in question, Loris Smith, raised this concern about compelled labor as a hypothetical. She was just starting out in her wedding web design business when she partnered with Alliance Defending Freedom, a Christian right wing group, to bring this case forward in 2016. She wanted a preemptive ruling in her favor, against ever having to make a website for a same-sex couple.
Responsibly, the courts weighed the question of standing. When the case was first filed, she had received no such inquiries for a same-sex wedding website, and as of yet had suffered no injury. In 2016, a motion for dismissal was filed on this basis.
That’s when something bizarre happened, according to Melissa Gira Grant of The New Republic: a request for a same-sex wedding website conveniently showed up, for a couple named Stewart and Mike. The case went forward. Only, according to Stewart, when Grant followed up on the original claim this year, this was the first he’d ever heard of it. He’s been married to a woman for a decade.
This claimed inquiry by a same-sex couple, conveniently emerging in late 2016 after the motion to dismiss but only properly filed with the case the next year, kept the issue alive long enough to come to SCOTUS, where matters of standing did not seem to matter as much because Smith’s legal team argued that she was being injured out the gate by her inability to present specialized web designs on her site, or to state that her services were for heterosexual couples only.
This is where the choice of product also becomes important, because a web design service allows for a lot of wiggle room between “creative output” and boilerplate template. One can be seen as expressive activity under the law. The other, ostensibly, is simply labor in a public (and thus regulated) market.
Was the plaintiff sincere? Or was this case designed by ADF to create more wiggle room for service providers to deny products to queer people on religious grounds?
The optics of this whole closing week for the SCOTUS are not good. Average citizens tend not to understand the role of “major questions” and procedural escalation from one site of analysis to the next, but they do understand the symbolic value of a decision that tells them the judicial branch of their government is unpacking decisions initially made to pursue greater equality and provide relief to those struggling.
In their next docket, SCOTUS has also promised to rule on if Second Amendment protections should extend to people with domestic assault restraining orders.
Irrespective of how SCOTUS ultimately handles that case, the mere promise of addressing such an issue, under the court’s recent track record of scaling back government protections for disfavored classes, means that great swaths of the US now get to live under a cloud of even lower confidence in their justice systems, and the executive powers that appointed them, throughout the summer break.
What will the US do with that information, going into its next electoral cycle?