We Have Witnessed a Year Plus Now of Rapid-Fire, Outwardly Ideological, and Precedent-Ignoring Decisions That Only Invite More
Clearly, the last day of the Supreme Court annual season ended in a bang-bang of twin majority opinions – and more eloquent dissents – that are bound to keep turning up a sense of rebelliousness on all sides and fuel the stuff of partisan political campaigns.
As you likely know by now, both were settled by the same 6-3 majority of right-leaning justices whose membership was swelled by three appointees of Donald Trump. Both tended to squash some rights over others. Both spelled trouble for Joe Biden and his administration’s overall strategies that recognize race and identity issues as part of civil rights rather than as a continuing push to force culture changes on an unwilling society.
The Supreme Court decisions to overturn Biden’s promises for student loan forgiveness worth $400 billion to help an estimated 43 million younger Americans and one to favor religious free speech rights over state-enacted protections for specific groups of people, this one involving LBGTQ folks, mark the moves of just the kind of legislative “activism” that these particular justices eschewed in their various confirmation proceedings.
Further, both are based on interpretations that stretch interpretations well beyond the written statutes or legal points that they cite, making more than a bit of mockery for their insistence on hewing to “literal” readings of law.
Along with the previous day’s decisions asserting in as un-legal-like a way as possible that we have now achieved a legally ‘colorblind’ society in which affirmative action policies have no need as well as no place, we have witnessed a year plus now of rapid-fire, outwardly ideological, and precedent-ignoring decisions that only invite more.
As noted previously, there are more questions than ever about the practical implementation of this anti-some-rights thinking. We know for sure that the principles expressed will be spread through further court challenges to everyday diversity efforts in business and boardrooms and to presidential powers of all sorts.
Student Loans: A Power Play
For a variety of easy political reasons, the student loan decision may be the more important to some. For my money, the continuing drain on our rights, perceived and promised or practical, will have the longer, wider impact.
The Supreme Court loan case – actually two cases – has the pop of current Washington political conflict, pitting Republican-led states, and their vocal House representatives against the Biden administration over a spending issue – a big spending issue, but a money policymaking decision with a question of who can approve it, not whether it is constitutional to do so. At heart, the majority opinion by Chief Justice John G. Roberts Jr. is pretty simple: The plan to forgive up to $20,000 in student debt through a Department of Education policy change is too big a presidential move to take without getting congressional approval.
So, too, was the dissent by Justice Elena Kagan, one of the court’s three liberals, who simply said the court itself was overstepping its limited role in policymaking, essentially substituting its judgment for Biden and team. She noted Missouri had no standing to bring the case since it had lost any money and that the government legally has latitude in an emergency.
A second Supreme Court case filed by two students was dismissed for lack of standing.
As a practical matter, the administration was already promising to look for alternatives and Republicans were already prepping to kill them. In any event, the deals between Biden and House Speaker Kevin McCarthy to cap spending may already make these promises wishful dreams rather than torn-up IOUs.
As The New York Times noted, the amount of student debt in America has spiraled in the last decades, concentrated more in younger, minority households, and growing substantially faster than the increase most other household expenses. More than 45 million people collectively owe $1.6 trillion — a sum roughly equal to the size of the economy of Brazil or Australia.
Still, this is essentially a partisan political fight that follows other moves by this court to clip the presidential powers for Biden that was not true for Trump, who offered an earlier loan forgiveness plan in the same manner as a response to Covid.
Gay Rights: A Slide Downhill
By contrast, the majority opinion by Justice Neil M. Gorsuch in a Colorado case pitting the rights of a would-be wedding web developer who opposes same-sex marriage against state-enacted protections for LBGTQ residents is one that promises to live on in lots of new challenges.
The case is peculiar. For openers, the plaintiff here had not yet begun her wedding website business, so no one, including her, was hurt, the usual standard for standing. The bigger question is what’s the point of a state law protecting gays or racial groups or the disabled or any identified class if this ruling means that some rights can’t be protected for some people if some other people object. Hey, textualists, isn’t that the point of a law that forbids discrimination against gay people?
Of course, we have a balancing act going on here between rights derived from Freedom of Religion and those of a specific protective law. The reason the law was needed was exactly aligned with the instances identified in this case; the web developer doesn’t believe in same-sex marriage and now will not be forced to provide that service to same-sex couples who might approach her.
We have been here before with bakers and other service providers, but Gorsuch’s opinion nails the principle more firmly. He identified the central problem here about the right “to think and speak as they wish, not as the government demands.”
Supreme Court Justice Sonia Sotomayor’s dissent was more persuasive to me, arguing that the Colorado anti-discrimination law “targets conduct, not speech, for regulation, and the act of discrimination has never constituted protected expression under the First Amendment. Our Constitution contains no right to refuse service to a disfavored group.”
Of course, the web designer could have simply not built wedding websites. Instead, she now will post a note that her company’s policy is a product of her religious convictions.
Should other businesses post a note about whom they hate under religious doctrine on the front door? Would the outcome here be the same if the doctrine were Muslim or atheist? This court majority has ruled consistently for religion over the interests of a nation that argues it maintains a church-state separation and particularly in the case of Christian church challenges.
The season closers don’t make me feel better to know that these guys are in charge.