For some time now I’ve been watching a set of cases on the docket for the Supreme Court. The list was basically brought to my attention by Heritage Action, although many others have been watching these as well. All but one of these has been ruled on—most of them just last week, which is the SCOTUS version of the end-of-June finale.
Here’s the list we’ll be
going through:
|
Case |
About |
Date |
Ruling |
|
|
Freedom from coercion
for creative services |
June 30 |
No coercion allowed |
|
Affirmative action in
college admissions |
June 29 |
No racism by
affirmative action in college admissions |
|
|
Biden’s student loan forgiveness
order |
June 30 June 30 |
Not legal except
through legislation |
|
|
Redistricting |
June 8 |
|
|
|
Redistricting |
June 27 |
|
|
|
Reconsider Chevron
deference, regulatory powers |
NA |
Not yet ruled |
Synopsis:
Lorie Smith wants to expand her graphic design business, 303
Creative LLC, to include services for couples seeking wedding websites. But Ms.
Smith worries that Colorado will use the Colorado Anti-Discrimination Act to
compel her—in violation of the First Amendment—to create websites celebrating
marriages she does not endorse. To clarify her rights, Ms. Smith filed a
lawsuit seeking an injunction to prevent the State from forcing her to create
websites celebrating marriages that defy her belief that marriage should be
reserved to unions between one man and one woman.
The ruling: The First Amendment prohibits Colorado
from forcing a website designer to create expressive designs speaking messages
with which the designer disagrees.
Response:
As you might expect, the opposition to freedom is very put
out that they don’t get to coerce behavior and force submission to their
agenda. Transportation Secretary Pete Buttigieg was particularly offended. Although his Transportation position gives him no
special knowledge about online businesses or First Amendment free speech
rights, he’s homosexual, so he thinks that should give him a right to complain
about the ruling. His complaint was that this was all a setup; the woman wasn’t
harmed by the law but just filed suit to get a ruling. Yes, I think that’s what
the synopsis says. It has taken seven years to get through the judicial
process, and we can thank her for asking the question and pushing it through to
a final answer: creative service providers cannot be coerced into producing
messages that violate their personal beliefs.
During those seven years of waiting for a decision, she was
not able to go ahead with the wedding website business in question. I was glad to
note it was only an expansion of the design business she was already doing, so
she wasn’t deprived of a living in the interim. Now she can go ahead with the
expansion if she so chooses. And so can other creative service providers.
We might note that such services also could choose not to
provide pro-Nazi messages, or pro-Moloch worshipping. Or even something the
opposition might loathe, such as a pro-MAGA message. Coercion is taken off the
table. Thank you, Supreme Court.
There’s a fair amount of similarity here between this case
and the Masterpiece Bakeshop case in 2018, including the state it’s coming from. In that one, however, the
question wasn’t finally decided; the baker won because the state of Colorado
was illegally targeting based on religion. That meant, if the state could find
a way to discriminate against him without making it look religious-based, they
still might force him to produce artistic services against his beliefs—which a
series of cases against him have continued to attempt. This case settles the
question more broadly: creative service providers cannot be coerced.
No one loses here. There are plenty of other such service providers—which was true in the Masterpiece Cakeshop case as well, and the Barronelle Stutzman case out of Washington State, and multiple others. It has never been about certain people getting the products they wanted; it has been about coercing other people, against their will, to provide those products for them. Because, tolerance and stuff.
Synopsis:
Harvard College and the University of North Carolina (UNC)
are two of the oldest institutions of higher learning in the United States.
Every year, tens of thousands of students apply to each school; many fewer are
admitted. Both Harvard and UNC employ a highly selective admissions process to
make their decisions. Admission to each school can depend on a student’s
grades, recommendation letters, or extracurricular involvement. It can also
depend on their race. The question presented is whether the admissions systems
used by Harvard College and UNC are lawful under the Equal Protection Clause of
the Fourteenth Amendment.
The Ruling: Harvard’s and UNC’s admissions programs
violate the Equal Protection Clause of the Fourteenth Amendment.
Response:
There’s some interesting debate going on in the footnotes,
thanks mainly to Justice Clarence Thomas, who has some life experience on this
subject. In his autobiography, he tells us the harm affirmative action did to
him. He went to Yale for law school, on his merits. But he couldn’t get hired
afterward, because the assumption was that he was an affirmative action recipient,
so potential employers didn’t think he was really qualified. He did grow up poor and
underprivileged. But he got where he has by sheer grit and hard work, and a mind he
uses to good effect. He put a nickel yard sale sticker on his framed diploma,
because that’s what it was worth to him—because of affirmative action’s
unintended consequences. Here’s his first footnote, referencing Justice Ketanji
Brown Jackson’s dissent from the Court’s opinion:
Footnote 1, “According to SFFA’s expert, over 80% of all
black applicants in the top academic decile were admitted to UNC, while under
70% of white and Asian applicants in that decile were admitted. 3 App. in No.
21–707, at 1078–1083. In the second highest academic decile, the disparity is
even starker: 83% of black applicants were admitted, while 58% of white
applicants and 47% of Asian applicants were admitted. Ibid. And in the third
highest decile, 77% of black applicants were admitted, compared to 48% of white
applicants and 34% of Asian applicants.”
In chart form it looks like this:
|
Race |
Decile
of applicants accepted at UNC |
||
|
Top decile |
2nd
decile |
3rd
decile |
|
|
Black |
>80% |
83% |
77% |
|
White |
<70% |
58% |
48% |
|
Asian |
<70% |
47% |
34% |
The same is true at Harvard. See Brief for Petitioner 24
(“[A]n African American [student] in [the fourth lowest academic] decile has a
higher chance of admission (12.8%) than an Asian American in the top decile
(12.7%).” (emphasis added)); see also 4 App. in No. 20–1199, p. 1793 (black
applicants in the top four academic deciles are between four and ten times more
likely to be admitted to Harvard than Asian applicants in those deciles).
An interesting detail I heard (on a podcast, haven’t verified) was that, of blacks accepted to Harvard, the vast majority come from other than hardship—from mainly upper middle class. They aren’t giving opportunity to underprivileged blacks, as they claim is their intended goal. One might also wonder how many of the privileged blacks are taking the slots of underprivileged whites (including Hispanics) and Asians, who may have the aptitude but not the “right” skin color.
 |
| Justice Clarence Thomas photo by Erin Schaff/The New York Times via AP, Pool; found here |
Justice Thomas wrote a scathing rebuttal of Justice Brown’s
dissent in his concurrence. Justice Brown, it might be noted, was put on the
Court because Biden promised to appoint a black woman, which she is, rather
than a qualified justice, as ought to be the goal. Thomas said,
JUSTICE JACKSON’s race-infused world view falls flat at each
step. Individuals are the sum of their unique experiences, challenges, and
accomplishments. What matters is not the barriers they face, but how they
choose to confront them. And their race is not to blame for everything—good or
bad—that happens in their lives. A contrary, myopic world view based on
individuals’ skin color to the total exclusion of their personal choices is
nothing short of racial determinism.
There’s more:
JUSTICE JACKSON then builds from her faulty premise to call
for action, arguing that courts should defer to “experts” and allow
institutions to discriminate on the basis of race. Make no mistake: Her dissent
is not a vanguard of the innocent and helpless. It is instead a call to empower
privileged elites, who will “tell us [what] is required to level the playing
field” among castes and classifications that they alone can divine.
For a collection of some of these fireworks, see this Townhall piece.
This case and Department
of Education v. Brown, below, both address the Biden
administration’s student loan bailout.
Synopsis:
All this leads the Court to conclude that “[t]he basic and consequential
tradeoffs” inherent in a mass debt cancellation program “are ones that Congress
would likely have intended for itself.” West Virginia, 597 U. S., at ___. In
such circumstances, the Court has required the Secretary to “point to ‘clear
congressional authorization’ ” to justify the challenged program. Id., at ___,
___ (quoting Utility Air Regulatory Group v. EPA, 573 U. S. 302, 324). And as
explained, the HEROES Act provides no authorization for the Secretary’s plan
when examined using the ordinary tools of statutory interpretation—let alone
“clear congressional authorization” for such a program. Pp. 19–25.
The
Ruling: Reversed and remanded.
1. At
least Missouri has standing to challenge the Education Secretary’s program.
2. The
HEROES Act [Higher Education Relief Opportunities for Students Act of 2003]
allows the Secretary to “waive or modify” existing statutory or regulatory
provisions applicable to financial assistance programs under the Education Act,
but does not allow the Secretary to rewrite that statute to the extent of
canceling $430 billion of student loan principal.
Response:
The executive branch
overreach is curtailed, at least for now. The scheme to forgive debts—and
placing that debt burden instead on taxpayers—is not allowed by executive
order. It must go through a legislative process to be done—but then it can be
done, according to this ruling. I hope it isn’t It doesn’t seem right for
people who paid off their school debts, or who didn’t get higher education
because they didn’t feel like they could take on the debt, are conscripted into
paying the debts of privileged students.
There’s another question
altogether, not handled here, of course, about the value of the education for
the price. There ought to be more transparency in borrowing about whether the
particular education will yield some value to the person taking on that debt,
as to whether the education will lead to income enough to pay off the debt—or
at least the information showing that it will not.
Heritage did an analysis
of the oral arguments, ahead of the ruling, here.
Biden may already be scheming
on a work-around, or possibly do as directed by the Court and let the
legislature to do it. We’ll see how determined they are to buy votes with
taxpayer money.
DEPARTMENT OF EDUCATION v. BROWN
Synopsis:
The “complaint alleges that the Secretary was required to follow
notice-and-comment and negotiated-rulemaking procedures in promulgating the
Plan, which all agree he did not do. Brown and Taylor argue that the HEROES
Act’s procedural exemptions apply only when the rule promulgated is
substantively authorized by the Act, and because the HEROES Act does not
authorize the Plan (they argue), the Secretary was required to follow
negotiated rulemaking and notice and comment.
The
Ruling: Because respondents fail to establish that any injury they suffer
from not having their loans forgiven is fairly traceable to the Plan, they lack
Article III standing, so the Court has no jurisdiction to address their
procedural claim.
Response:
Synopsis:
The court decides that the state of
Alabama’s 2021 congressional redistricting plan violated Section 2 of the
Voting Rights Act, which prohibits practices or procedures that discriminate on
the basis of race.
The Ruling: The Court affirms the District Court’s determination that plaintiffs demonstrated a reasonable likelihood of success on their claim that HB1 violates §2.
The
Court did not rule in a way to change the Gingles 3-part test for
discrimination in voting redistricting that has been used for 40 years.
The
Court’s opinion does not diminish or disregard the concern that §2 may
impermissibly elevate race in the allocation of political power within the
States. Instead, the Court simply holds that a faithful application of
precedent and a fair reading of the record do not bear those concerns out here.
Response:
While
it doesn’t look like a victory for “colorblind” methods of redistricting, which
ought to be an ideal goal, it also isn’t disastrous. In Alabama, the “Black Belt”
voting bloc tends to vote Democrat in a state that votes typically Republican.
Because this minority votes differently from the majority, the question comes
up about their ability to be represented. The possible silver lining is that
minorities of other types might also benefit from this ruling in future
situations. States cannot set up their districts in such a way that shows their
intention to discriminate against any particular minority, which may include
religious or non-woke minorities. So, while it doesn’t look like an immediate
win, we’ll watch and see.
Synopsis:
This case concerns the claim that the Clause [Art. I, §4, cl. 1 of the US
Constitution] vests state legislatures with authority to set rules governing
federal elections free from restrictions imposed under state law. Following the
2020 decennial census, North Carolina’s General Assembly drafted a new federal
congressional map, which several groups of plaintiffs challenged as an
impermissible partisan gerrymander in violation of the North Carolina Constitution.
The trial court found partisan gerrymandering claims nonjusticiable under the
State Constitution, but the North Carolina Supreme Court reversed. While
acknowledging that partisan gerrymandering claims are outside the reach of
federal courts, the State Supreme Court held that such questions were not
beyond the reach of North Carolina courts. The court also rejected the argument
that the Federal Elections Clause vests exclusive and independent authority in
state legislatures to draw federal congressional maps. The court enjoined the
use of the maps and remanded the case to the trial court for remedial
proceedings. The legislative defendants then filed an emergency application in
this Court, citing the Elections Clause and requesting a stay of the North
Carolina Supreme Court’s decision. This Court declined to issue a stay, but
later granted certiorari….
The court ultimately withdrew the opinion in Harper II concerning the remedial
maps and overruled Harper I, repudiating its holding that partisan
gerrymandering claims are justiciable under the North Carolina Constitution.
The court dismissed plaintiffs’ claims but did not reinstate the 2021
congressional plans struck down in Harper I under the State Constitution. This
Court has entertained two rounds of supplemental briefing on jurisdictional
questions in light of the state court’s rehearing proceedings.
The
Ruling:
1. The
North Carolina Supreme Court’s decision to withdraw Harper II and overrule Harper
I does not moot this case. Prior to the appeal and rehearing proceedings in
Harper II, the court had already entered the judgment and issued the mandate in
Harper I, and the legislative defendants acknowledged that they would remain
bound by Harper I’s decision enjoining the use of the 2021 plans.
2. The
Elections Clause does not vest exclusive and independent authority in state
legislatures to set the rules regarding federal elections.
3. Although
the Elections Clause does not exempt state legislatures from the ordinary
constraints imposed by state law, federal courts must not abandon their duty to
exercise judicial review. This Court has an obligation to ensure that state
court interpretations of state law do not evade federal law.
The
Court need not decide whether the North Carolina Supreme Court strayed beyond
the limits derived from the Elections Clause, as petitioners did not
meaningfully present the issue in this Court.
Response:
Roberts wrote the opinion, and was joined by the Democrat side of the Court as
well as Kavanaugh. Again, this is also mixed, a similar case to Milligan.
For more background, you can read Heritage legal scholar Hans von Spakovsky on the impact of the new
North Carolina Supreme Court ruling and his earlier
background on the case.
LOPER BRIGHT ENTERPRISES v. RAIMONDO:
Summary: This case considers the
question of whether the Court should overturn (or clarify) the Chevron
doctrine, which says that when a statute is ambiguous, courts should defer to
the federal agency’s interpretation of the statute so long as that
interpretation is reasonable (even if a court believes that the interpretation
is wrong). The Court has been pushing back on Chevron deference for years. Justice
Gorsuch has appeared to be particularly willing to reconsider Chevron
deference.
The Ruling: This one hasn’t been
decided yet. Deadline for filing the joint appendix and petitioners' brief on
the merits is extended through July 10, 2023. The time to file respondents'
brief on the merits is extended through August 30, 2023.
SCOTUSblog shows the various movements in the case, including the most major motion granted on June 5 to extend the time to file the briefs.
Response:
Technically this is still in this
year’s (the 2022) session, but it’s unclear to me whether a ruling will come
out before the beginning of the next term. We think of June 30 as a deadline,
but that is traditional only. However, I don’t see that oral arguments have
been heard, and they may not be until after the briefs are all filed. Somebody
who knows procedure better than I do might be able to say whether this will
push the case into the 2023 session, which ends next June, but a ruling could
come out whenever the Court is ready.
This could return the power to
interpret law to the courts and will help rein in the power of executive branch
agencies. It may also prompt Congress to write more precise laws. Read more
from Heritage legal scholars on Chevron
deference.
As I was reading the Declaration of Independence on July 4th,
one of the grievances stood out to me. Replace King George with The Federal
Government, and it says:
[The
Federal Government] has erected a Multitude of new Offices, and sent hither
Swarms of Officers to harass our People, and eat out their Substance.
That’s the regulatory state in a nutshell. We didn’t consent
as a people to these executive branch agencies taking over the duties of the
legislature and judiciary and regulating us out of our freedoms. So I hope this
case goes well.
Overall, it was a pretty good SCOTUS season for our Constitution.
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