Dem
51
GOP
49
On Tuesday, we had an item where we listed the five major questions left for this Supreme Court term:
We guessed that the answer to each would be "No," which would have meant that conservatives got what they wanted in three cases (the first three) and not in the other two. In fact, it was "no" three times, "yes" one time, and "maybe" one time, with the result that conservatives got wins in three, and possibly four, cases.
The one conservative loss, which was easy to predict, was #5, the case involving the Independent State Legislature Theory. It was rather unlikely the Supreme Court was going to issue a ruling that, among other things, would have taken away a lot of power from the Supreme Court. Our writeup of that one is here.
Meanwhile, the easiest conservative win to predict was #1, the affirmative action cases. Chief Justice John Roberts, in particular, has made it his mission to create a post-racial legal world, regardless of the facts on the ground. He's so devoted to that cause, one wonders if he's coping with some sort of deep-seated anxiety, like maybe that someone he knows very, very well owes at least part of their success to having been born with a favorable racial and economic profile. Anyhow, our writeup of those two decisions is here.
The case where our guess was off, meanwhile, was #4 on the list above. In that one, a USPS employee named Gerald Groff said that he should not be forced to work on Sundays because he is a Christian. Before Thursday, the standard set by the Supreme Court was that if accommodating a person's religious needs imposes anything more than a de minimis burden on an employer, then the employer could tell that employee to... well, go to hell, in a manner of speaking.
As of Thursday, the standard is that the employer can only reject the request for accommodations if the burden is "substantial in the context of an employer's business." SCOTUS then remanded the case back to the lower courts, where Groff says he is confident he will prevail and the USPS says it is confident that IT will prevail. So, at the moment, the answer to the question of "Does the USPS have to give Christian employees the day off on Sundays?" is... maybe. The vote was 9-0, so it would seem that the old standard looked to be unreasonable from all vantage points.
The guess we were least certain about, but where we ultimately proved correct, was #2, the student loans case. The six conservatives on the court aren't big fans of "helping hands," particularly for anyone who completed their education after the year 1990 or so. On the other hand, there were two problems with the case brought by the plaintiffs. The first was that their argument for standing was dubious; it's really hard to find a person or entity that is damaged when the government forgives some loan debt. The second was that Congress pretty clearly included broad discretionary powers in the law Joe Biden used to justify forgiveness (the COVID-inspired HEROES Act). Since Congress has the power of the purse, there's a pretty strong argument that the loan forgiveness is a political question and is not justiciable.
Ultimately, by a vote of—wait for it—6 to 3, the Supremes waved off these rather significant issues, and decreed that the student loan cancellation was, well, canceled. Chief Justice John Roberts, writing for the majority, decided that because Missouri services its own student loans, and would lose some money as a result of the forgiveness, that is standing enough. "With Article III satisfied," he concludes in that portion, "the Court need not consider the States' other standing arguments." That's good for them, since the other states' case for standing was even weaker than Missouri's. As to the other problem with the case, Roberts and his five friends decided that when Congress said that the Secretary of Education could "waive or modify" student loans under the terms of the HEROES Act, that wasn't specific enough.
As with so many other recent SCOTUS decisions, this is not the end, not by a long shot. The Biden administration foresaw yesterday's result, and has already been planning for student loan forgiveness by other means. Specifically, the Higher Education Act of 1965 contains verbiage that should allow for some amount of forgiveness, although the process is long and complex and requires things like public hearings and fact-finding sessions. As chance would have it, that means that the process would extend into next year, and that whether or not the forgiveness actually happens would depend on whether or not a Democrat holds the White House in next year's elections. That fact might be pointed out once or twice to students and recent graduates during next year's campaign.
And finally, there is #3, the Christian website designer who doesn't want to design websites for LGBTQ couples. It should be noted, at the outset, that regardless of one's views about the underlying issues, the actual suit was a mockery of the legal process. By all indications, the designer, Lorie Smith, wasn't actually asked to create a website for an LGBTQ couple, and so she didn't actually have standing to sue. There are vague references in the filing to a man named "Stewart," but when he was tracked down by reporters, he said he never asked Smith for a site. He also observed—and this just might be relevant—that he is not gay, and that he's been married to a woman for the last 15 years.
On top of that, Smith did not actually instigate the suit. It was brought by the Alliance Defending Freedom, a right-wing activist group that recruits plaintiffs for its various legal efforts. Kristen Waggoner, who basically is the Alliance Defending Freedom, insists that the request for the site was legitimate, though she cannot prove it because it was submitted online. She also admits it might have been a troll. Strangely, that troll knew the exact right address and phone number for "Stewart," who, once again, is straight and, as someone who just celebrated his 15th anniversary, has no need for a wedding website.
The upshot is that the Supremes should have kicked the case until it was clear there was a real issue before them. But they did not, and so, by a vote of—you guessed it—6 to 3, they found for Smith. The Alliance Defending Freedom, which again is basically a one-woman operation, is hailing this as a "Landmark Victory for Free Speech," and has helpfully provided a big link on its site where you can donate to their efforts in advance of a "critical June 30 deadline." Exactly why that deadline is critical is not explained.
Of the five big decisions this week, our sense is that this one is the least consequential. Obviously, we do not approve of people who feel the need to discriminate, regardless of their justification. However, if a person really and truly doesn't want to make your cake or your website, you probably don't want them doing the job anyhow. Especially Lorie Smith, whose sites just scream: "I finally finished reading Web Design for Dummies last week!" Further, while the six conservatives on the Supreme Court don't care all that much about LGBTQ equality, they didn't want to open the doors to legalizing other forms of discrimination. So, they made a point in their ruling that Smith is only allowed to discriminate because her work product is "expressive." It's certainly possible that unpleasant people could seize on that and run with it—after all, burning a cross is also "expressive." But our guess is that the practical impact of the decision will be fairly limited. That said, see here, here, here and here for pieces from folks who disagree.
And that brings an end to the current term of the Supreme Court. It is fortunate that the justices did not give their blessing to the utterly undemocratic Independent State Legislature Theory, and it's nice that they decided that Black people should be represented fairly in the House delegations of Alabama and Louisiana. However, it's still a Court dominated by conservatives, and conservatives who are willing to put their desired ends first, with calling balls and strikes a fairly distant second. Reasonable people can disagree on the Affirmative Action case, and on the USPS case, but there was simply no excuse for allowing the student loan case or the Christian website case to proceed. Both made a mockery, in different ways, of the notion of "standing," and therefore of the Court itself. (Z)