The Court Plays ‘Let’s Pretend’

This rogue Supreme Court no longer shocks me; at this point, I’m numb with disbelief.

The day after overturning affirmative action for Black students (while leaving preferences benefitting Whites intact), the Court didn’t simply ignore decades of  precedent, it went even further afield, ignoring a constitutional rule against issuing “advisory opinions” in order to privilege a “sincere” religious belief.

Robert Hubbell addressed the constitutional principle:

Friday, the Court’s reactionary majority issued opinions in two cases that did not include a constitutional prerequisite to the Court’s jurisdiction—that the issue to be decided presents an actual “case or controversy.” That requirement is set forth plainly and simply in the Constitution. You can look it up.

Instead, the reactionary majority ignored the absence of jurisdiction and proceeded to issue decisions in fake controversies because they can. Looking for deeper meaning is pointless. The reactionary majority has reduced the rule of law to brute force in the service of religious nationalism.

In the days before the Court issued its opinion in 303 Creative, multiple media outlets had confirmed that the entire “case” was bogus. As Heather Cox Richardson explained, not only was the  online business non-existent, the “complaint” had been manufactured.

Smith claims she wants to start the business because “God is calling her ‘to explain His true story about marriage.’” She alleges that in 2016, a gay man approached her to make a website for his upcoming wedding, but yesterday, Melissa Gira Grant of The New Republic reported that, while the man allegedly behind the email does exist, he is an established designer himself (so why would he hire someone who was not?), is not gay, and married his wife 15 years ago. He says he never wrote to Smith, and the stamp on court filings shows she received it the day after she filed the suit.

The Guardian quoted him:

“I can confirm I did not contact 303 Creative about a website,” he said. “It’s fraudulent insomuch as someone is pretending to be me and looking to marry someone called Mike. That’s not me.

“What’s most concerning to me is that this is kind of like the one main piece of evidence that’s been part of this case for the last six-plus years and it’s false,” he added. “Nobody’s checked it. Anybody can pick up the phone, write an email, send a text, to verify whether that was correct information.”

So here we have a case that is entirely prospective, with a fact situation that is falsified–yet radical Justices were so eager to undermine government’s ability to protect marginalized populations from discrimination that they were willing to ignore a basic constitutional principle. As Hubbell correctly notes, the “decision authorizes American business owners to discriminate against LGBTQ people. Period. It is a first step, taken in bad faith and wrapped in lies.”

Richardson reminds us that segregation used to be defended as a deeply-held religious belief.

The widely criticized Court withheld issuance of its most indefensible decisions to the last, and the shameful and dishonest holding in 303 Creative was only one. The Court also ignored a clear lack of jurisdiction in the student loan forgiveness case. The actual party in interest—the corporation that serviced the student loan debt—had refused to file suit. Roberts ruled that the state of Missouri could assert the interests of a party not before the Court –a party that claimed no injury. 

The lack of jurisdiction wasn’t the only problem with that case: constitutional analyst Ian Millhiser wrote that the “decision in Biden v. Nebraska

is complete and utter nonsense. It rewrites a federal law which explicitly authorizes the loan forgiveness program, and it relies on a fake legal doctrine known as ‘major questions’ which has no basis in any law or any provision of the Constitution.”

The majority’s repeated dishonesty is simply stunning. Norman Ornstein said it best:

It is not just the rulings the Roberts Court is making,” he tweeted. “They created out of [w]hole cloth a bogus, major questions doctrine. They made a mockery of standing. They rewrite laws to fit their radical ideological preferences. They have unilaterally blown up the legitimacy of the Court.

The arrogance is breathtaking.

Many Americans will undoubtedly cheer these wildly improper decisions because the results accord with their own policy preferences. That is very short-sighted; the Supreme Court was not created to be a super-legislature, and– as a colleague from my ACLU days used to warn– poison gas is a great weapon until the wind shifts.

Robert Hubbell is right: “The time for hand wringing and half-steps has passed. Real people have lost real liberties—starting with Dobbs and ending 303 Creative. If we do not stand up to protect them with every ounce of our will, we deserve what’s coming.”


  1. At confirmation hearings, how many times haven’t we heard that it would not be appropriate to give opinions about theoretical cases? McConnell will be so proud.

  2. I guess a precedent is a precedent until the Supreme Court decides it isn’t anymore!

  3. I thought righties hated activist judges? They have completely lost their reverence. So be it.

  4. This posting should be a front-page article in every major newspaper (are there any left?) in the USA.

  5. Justice Kagan said it well in the dissent in this Colorado case:

    “Battling discrimination is like “battling the Hydra.’ Whenever you defeat ‘one form of…discrimination,’ another ‘spr[ings] up in its place.’ Time and again, businesses and other commercial entities have claimed constitutional rights to discriminate. And time and again, this Court has courageously stood up to those claims-until today. today the Court shrinks. […]

    “Today is a sad day in American constitutional law and in the lives of LGBT people. The Supreme Court of the United States declares that a particular kind of business, though open to the public, has a constitutional right to refuse to serve members of a protected class. The Court does so for the first time in its history. By issuing this new license to discriminate in a case brought by company that seeks to deny same-sex couples the full and equal enjoyment of its services, the immediate, symbolic effect of the decision is to mark gays and lesbians for second-class status. In this way, the decision itself inflicts a kind of stigmatic harm, on top of any harm caused by denials of service. The opinion of the Court is, quite literally, a notice that reads: ‘Some services may be denied to same-sex couples.’”

    Robert Hubbell also exhorted: “We cannot let this decision stand. We must rally to support LGBTQ people and their families during a time of anxiety and fear that their hard-won gains of the last half-century are evaporating.”

    Make no mistake about it, the United States Supreme Court has destroyed its legitimacy and is acting as a lurking legislature, reducing the rule of law to its own fiat in the service of religious nationalism.

  6. I wonder if Clarence Thomas realizes that his wife’s far right activities could end up making sure he goes back to a second-class place in society?

  7. Martial law!

    Sometimes you do need a sledgehammer rather than a fly swatter. Suspend SCOTUS suspend Congress, then fix it!

    How can anything be fixed when the fixer suffers from paralytic nincompoopery?

    Sometimes you just got’ta Do it instead of asking permission, then you can ask for forgiveness later. Or not!

    Fix the tax code, institutionalize equality, require teaching honest history, completely separate the church from the state, free access to all levels of education, free access to vocational training, free access to medical care, increase production of green energy, get rid of Fossil fuels which drive up the cost of everything!

    Since they discovered more water below the surface of the Earth, than there is in all of the lakes and oceans, and supposedly it’s fresh water, figure out how to get it and eliminate the water crises. No more drought worries!

    The point is, you need something bigger than a fly swatter to make a dent in the stupidity that is called American exceptionalism.

  8. > At confirmation hearings, how many times haven’t we heard that it would not be appropriate to give opinions about theoretical cases? McConnell will be so proud.

    However giving legally binding opinions about theoretical cases is totally OK?

    I am gobsmacked, flabbergasted, speechless with the willingness of courts (and legislatures) to simply assert as “facts” things that are easily verifiable as NOT TRUE and to legislate or decide on that basis. Next thing you know, engineers will be going to jail for using a value of pi (3) that is easy to remember but wrong.

  9. Earlier this week I wrote here about the urgent need to reform the Supreme Court or doom the republic. Now, after these Robert’s court decisions and the lies that were used to make them, I frighteningly wonder if we have not already lost our country but do not yet see it.
    I am scared, as we all should be, and sad…. very sad.

  10. Theresa – so true. Today’s blog is about what is in front of our eyes. There is SO much going on “behind the curtains”…

  11. The current radical right wing court members are completely shameless as they shove their faux christian BS beliefs in everyone’s faces and Gov Desantis recently stated that Alito and Thomas are the gold standard for justices and he would nominate more like them.

  12. Sheila, can you please answer a question for those of us who aren’t lawyers? If the court chose to rule on a case/issue that doesn’t actually exist and went against the Constitution in another case – must citizens and/or corporations be obligated to comply with those orders? Common sense tells me the answer is No, but common sense doesn’t seem to exist at all anymore.

  13. Nancy–Unfortunately, all citizens must obey laws in effect at a given time, unless you want to engage in civil disobedience and take the punishment meted out. More to the point, however, the phony website case allows hateful people to discriminate–but it doesn’t require the rest of us to do so. It also doesn’t prevent those of us who disapprove of discrimination from refusing to patronize businesses that do. (In downtown Indianapolis a few years ago, a bakery that refused to bake a cake for a gay couple ended up going out of business when the couple’s neighbors spread the word and customers in the area stayed away in droves. (Why these bigots chose to open in a heavily gay neighborhood just confirmed my belief that bigots are generally stupid people….)

  14. Assuming that the Federalist Society is behind these cases may be a very reasonable assumption. I don’t believe for one second that the woman with the nonexistent website created her case on her own. I think far right orgs are recruiting people to do their dirty work in the public eye and are probably offering to pay them quite well under the table. Eventually they will be exposed by investigative journalists.

  15. So lots of words, but not many ideas on actions the members of the General Public can take against SCOTUS anti-Constitutional legal opinions.
    What can we do?

    How about businesses putting PRIDE symbols in their storefront windows and those of us who believe in Freedom only spend our dollars there?

    And perhaps the person who was the named false potential buyer can sue that CO Woman.

  16. Does the Constitution have a provision that allows the Federal Judiciary to assume the Legislative Branch’s responsibility if they do not approve of that co-equal branch’s output? Does that mean that the concept of checks and balances is really a competition among the branches for power? Is the Murdoch Court winning that competition at the moment?

  17. When I first read that the court’s decision was not based on facts four things occurred to me, and in succession: (1) Standing? (2) Case or controversy? (3) Whatever happened to the doctrine of stare decisis? (4) Will the court honor a motion for rehearing to correct the record upon which it based its holding, a holding based on factural fraud?

    This case should never have been considered by the Supreme Court, and now that we know the court did not verify the facts or did, but decided in the majority’s lust for a particular outcome to hear the case anyway, query as to whether we should be bound by the majority’s vote since it was based on factual fraud and runs counter to some of my legal notes, supra. Perhaps Roe is not the only area ripe for codification from this legislating court.

  18. Mitch McConnell, the federalist society, and TFG need to be exiled to another galaxy. While they may not have set out to destroy the legitimacy of SCOTUS, this is what they’ve done. And, they are working assiduously to have another 4 years in which to spread their poison. Give them the opportunity and kiss Franklin’s republic goodbye.
    On a somewhat related note, allow me to show one example of how all the misinformation and “Alternative facts” that spewed from TFG can impact someone on a personal level, right there in the mid-west:

  19. How to respond? Buy a case of Bud Lite even if you don’t drink beer. Fly a Pride flag even if you aren’t gay. Go to a drag show even if you don’t particularly enjoy them. Congratulate any business owner who displays a Pride flag or merchandise and buy something from them, etc. Make up your own positive response. Think about what works for you and then do it. You’ll feel good and one small action leads to others.

  20. Heather Cox Richardson has been ending her podcasts with the exhortation that we make our positions known to the communities within our reach because we do have the power to make change. Maybe not so much with the hard core MAGA crowd, but we do have clout with the independents and the people on the fence, and especially with those who may be like thinkers but believe that they are in the minority because of the noisy decibels from the MAGAphones. She reminds us that we went through this before in the late 19th century, under very similar circumstances, and the voices for democracy prevailed because people used their connections to help others understand what they were losing.

    To start, on the 4th we can all reclaim our flag from the Trump crowd by flying it at our homes and businesses and then leaving them up. Pairing it with a Pride flag would make the message clear.

  21. We are back to civic literacy.

    Ever since the Brown decision in 1954 (9-0, by the way), the Right realized that the courts matter and made it their business to change the courts’ make-up (also realizing that the desire for unity that led to the insistence that Brown be 9-0 didn’t apply to them – they would be happy with 5-4 rulings upending everything).

    People didn’t understand this due to poor civic literacy. The usually inept Democrats realized that they would gain few votes emphasizing the courts, and pro-choice advocates naively thought that the fight was over. Only the Right focused on the “evil court as legislature”. That, of course, is another case of psychological projection.

    Maybe now the rest of the country will wake up.

  22. JPS: Did you miss the report that human extraction of water from below the surface of the earth has already started to change the tilt of the earths axis?

    Nancy: Did you miss the earlier blog about how the news media is getting rid of the investigative journalists?

    We are already in deep doo-doo as a society.

  23. CGH

    Good point! Except more than likely, all of that junk we are sending up into orbit is probably having a much more profound effect on the gravity pull of the moon, the loss of mass on Earth, amongst other issues. So far, we are not offloading water into the cosmos. In other words, the water that’s on this planet has been here for billions and billions of years. Water pump from the depths will eventually be replenished because the water is not being exported somewhere else besides this planet.

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