The U.S. Supreme Court’s conservative supermajority has again wielded its power to single-handedly upend American politics, issuing late-term decisions to end affirmative action (Students for Fair Admissions v. Harvard), cancel President Biden’s massive student-loan forgiveness program (Biden v. Nebraska), and allow creative businesses to deny service to same-sex couples (303 Creative LLC v. Elenis). The three 6-3 rulings come a year after the same Court rescinded the constitutional right to an abortion. Below are updates on the unfolding fallout as it happens.
The First Amendment as “wrecking ball”
At Slate, Joseph Pace points out that the 303 Creative decision is but the latest example of the Court’s conservatives weaponizing the freedom of speech:
The First Amendment was once an indispensable tool for protecting the rights of the marginalized. Throughout the 1950s and 60s, subversive artists and anti-war dissidents invoked it to neutralize state efforts to muzzle their voices. Civil rights groups and unions used it to invalidate laws enacted to criminalize protest and intimidate activists. It’s no exaggeration to say that, without the shield the First Amendment provided, many progressive legislative endeavors would have been strangled in the cradle. The Roberts Court, however, has turned that shield into a wrecking ball, using the First Amendment to take aim at the very laws that were enacted to protect the vulnerable. …
303 Creative is the logical continuation of this trend. It ignores the context—the tragic history and continuing discrimination—that necessitated Colorado’s law in the first place. And it adopts an absolutist, almost fetishistic view of First Amendment that turns “free speech” into a trump card, real-world consequences be damned.
Kagan v. Roberts
The liberal justice’s dissent in the student debt decision has made some waves, even earning a rebuke from Chief Justice John Roberts:
New York Times columnist Jamelle Bouie notes that Kagan appears to be signaling she’s had enough:
It’s a remarkable statement. To say that the Supreme Court can violate the Constitution is to reject the idea that the court is somehow outside the constitutional system. It is to remind the public that the court is as bound by the Constitution as the other branches, which is to say that it is subject to the same “checks and balances” as the legislature and the executive. Kagan’s dissent, in other words, is a call for accountability. For Congress, especially, to exercise its authority to discipline the court when it oversteps its bounds.
Democrats may or may not get this particular message. But John Roberts heard it loud and clear. “It has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary,” he wrote in his opinion. “It is important that the public not be misled either. Any such misperception would be harmful to this institution and our country.”
For Roberts, the problem isn’t that the Supreme Court is overstepping its bounds, it’s that one of its justices has decided that she’s had enough.
More legal battles over wedding services are likely
The New York Times’ Charlie Savage explains how the 303 Creative decision may prompt more legal battles over other providing “expressive” services for same-sex couples:
The ruling leaves unanswered what other services related to marriages — like printing invitations, photographing a ceremony, providing flower arrangements, catering food, bartending or renting out space — qualify as expressive enough to allow their providers to refuse to serve L.G.B.T.Q. couples under the First Amendment. That ambiguity suggests that the decision may pave the way for more court fights, rather than being the last word on disputes over the scope and limits of when business owners may discriminate against same-sex couples based on their personal beliefs.
The bullshit at the heart of 303 Creative v. Elenis
Vox’s Ian Millhiser writes that the case should have never even been considered by the Court:
The frustrating thing about this case is that it involves an entirely fabricated legal dispute. Again, Lorie Smith has never actually made a wedding website for a paying customer. Nor has Colorado ever attempted to enforce its civil rights law against Ms. Smith. Indeed, in its brief to the Supreme Court, Colorado expressed doubt that its anti-discrimination law would even apply to Smith. Yet Gorsuch’s majority opinion repeatedly paints Smith as a hapless victim, oppressed by wicked state officials who insist that she must proclaim a dogma that she denies. …
These facts matter because federal courts, including the Supreme Court, do not have jurisdiction to decide hypothetical cases. As a unanimous Supreme Court held in Texas v. United States (1998), “a claim is not ripe for adjudication if it rests upon ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.’“ So the Court should have told Smith to go away and come back when she had a real dispute with the state of Colorado.
At the New Republic, Melissa Gira Grant reported Thursday that the actual legal dispute the case is based on seems to have been make-believe, as well:
Long before the Supreme Court took up … the 303 Creative v. Elenis case, concerning a Colorado web designer named Lorie Smith who refuses to make websites for same-sex weddings and seeks an exemption from anti-discrimination laws — there was a couple named Stewart and Mike. According to court filings from the plaintiff, Stewart contacted Smith in September 2016 about his wedding to Mike “early next year.” He wrote that they “would love some design work done for our invites, placenames etc. We might also stretch to a website.” Stewart included his phone number, email address, and the URL of his own website — he was a designer too, the site showed.
This week, I decided to call Stewart and ask him about his inquiry … It took just a few minutes to reach him. I assumed at least some reporters over the years had contacted him about his website inquiry to 303 Creative — his contact information wasn’t redacted in the filing. But my call, he said, was “the very first time I’ve heard of it.”
Yes, that was his name, phone number, email address, and website on the inquiry form. But he never sent this form, he said, and at the time it was sent, he was married to a woman.
Biden’s knocks Court decision, announces new plans for student-loan borrowers
The president said during a Friday afternoon press conference that the Supreme Court made the wrong decision and defended the plan they invalidated. “I think the court misinterpreted the Constitution,” he said, blaming Republicans for the plan’s demise and vowing that he was “not going to stop fighting to deliver borrowers what they need, particularly those at the bottom end of the economic scale.”
Biden also announced new measures to help student-loan borrowers, including:
- An “alternative path” to offering student debt relief via a rulemaking process which would enable the Secretary of Education to “compromise, waive or release loans under certain circumstances” under powers granted by the Higher Education Act. Biden insisted the plan was “legally sound” but would “take longer” to implement. “In my view, it’s the best path that remains to providing as many borrowers as possible with debt relief,” he said.
- When student loan repayments restart on October 1 following the three-year pandemic pause, there will be a temporary 12-month “on-ramp” program for borrowers that protects them from defaulting on their loans or damaging their credit, should they be unable make their scheduled repayments. Per a White House statement: “While payments will be due and interest will accrue during this period, interest will not capitalize at the end of the on-ramp period. Additionally, borrowers will not be reported to credit bureaus, be considered in default, or referred to collection agencies for late, missed, or partial payments during the on-ramp period.”
- For student-loan borrowers enrolled in the income-driven repayment plan, the monthly cap on discretionary income they pay toward their student debt will be reduced to 5 percent from 10 percent. In addition, loan forgiveness will now be offered to those borrowers if their balance is $12,000 or less after they had made payments for 10 years, down from 20 years. They will not be charged with unpaid monthly interest, either, so long as they make their monthly payments.
Next term, SCOTUS will decide whether alleged domestic abusers can own guns
NBC News reports:
The justices agreed to hear a Biden administration appeal in defense of a federal law that prohibits people subject to domestic violence restraining orders from possessing guns. In doing so, the justices will examine how broadly they will interpret their landmark ruling a year ago, powered by the court’s conservative majority, that for the first time recognized that the Constitution’s Second Amendment includes a right to bear arms outside the home.
The Court’s conservatives are making it up as they go along
Intelligencer contributor Ankush Khardori responds to Friday’s decisions:
Lawyers ostensibly deal in rules — their identification, their development, their application — but as the conservative majority on the Supreme Court demonstrated on Friday, the process can easily be manipulated to reach your desired outcome if you create new rules out of whole cloth, or if you contrive an exception so large that the rule is practically meaningless.
Read the rest of Ankush’s column here.
Biden expected to announce new student-debt-relief measures
Progressive lawmakers are already renewing their pressure on Biden to do more for student-loan borrowers:
The Supreme Court only killed one part of the Biden administration’s student-loan-relief plan
Intelligencer’s Kevin T. Dugan explains:
The Supreme Court ruling is not the end of the student-loan relief. When the White House first announced its plan, it essentially had three parts: the onetime debt wipeout, a free community-college tuition program (which was DOA in Congress almost as soon as it was proposed), and a plan to expand access to other relief and grant programs that already existed. It’s that last part that’s been doing much of the work. The Department of Education has erased $66 billion in debt since 2021 for people who work in public service, easing — or totally wiping out — the federal student-loan debts of 2.2 million people. More than a million other people have had their debts from for-profit colleges and scammy vocational schools zeroed out. Measures like these work in smaller, less spectacular amounts, and can seem like mere bureaucratic tinkering at the margins, but the relief they can provide over time will soon add up to far more than a single-shot program.
Read the rest of Kevin’s post here.
Colleges, advisers, and applicants are scrambling to adjust to a world without affirmative action
The Washington Post talked to a number of people impacted by the Supreme Court ruling, noting how “teenagers of all backgrounds are reconsidering their shot at getting into competitive colleges” and that “admissions counselors are rethinking how students should discuss their race in application essays.” Furthermore:
The disappearance of affirmative action from American colleges and universities will probably diminish minority enrollment at top schools across the country, a Washington Post analysis concluded. The Post reviewed 30 years of race and ethnicity data from the eight states that ban race-based admissions policies in higher education and found that selective schools saw dips in Black and Hispanic enrollment, while less selective public universities saw an increase in those student populations.
This post has been updated.
