Tag Archives: Supreme Court

A Dishonest Court. A Dishonest Case.

I’ll begin with a warning: This will be a bit longer than my usual post, because I’m livid.

I began to write about 303 Creative v. Elenis, the case brought by a website designer who wants an exemption from Colorado’s civil rights/public accommodation law. She claims her “sincere religious beliefs” prevent her from “endorsing” same-sex marriages, and wants the Supreme Court to exempt her from the law’s non-discrimination requirement. She is asserting that the First Amendment–which among other things  prohibits government from compelling speech–protects “artists” and those engaged in “expressive” work from endorsing behaviors they consider sinful, and  further asserts that the act of providing a wedding website would constitute such endorsement.

Initially, I just intended to argue that framing this conflict as a Free Speech issue is dishonest.

.As David Cole pointed out in the New York Times, 

The right question is whether someone who chooses to open a business to the public should have the right to turn away gay customers simply because the service she would provide them is “expressive” or “artistic.” Should an architecture firm that believes Black families don’t deserve fancy homes be permitted to turn away Black clients because its work is “expressive”? Can a florist shop whose owner objects to Christianity refuse to serve Christians?

Cole points out that artists don’t have to open businesses in the first place.

Most writers, painters and other artists never do; they pick their subjects and leave it at that. The photographer Annie Leibovitz, for example, does not offer to take photographs of anyone who offers to pay her fee but chooses her subjects. She is perfectly free to photograph only white people or only Buddhists.

Cole also reminds us that  businesses open to the public are free to define the content of what they sell. “A Christmas store can sell only Christmas items without running afoul of public accommodations laws. It need not stock Hanukkah candles or Kwanzaa cards. But it cannot put a sign on its doors saying, “We don’t serve Jews” or “No Blacks allowed.””

The lawsuit frames a website designer as an “artist” who should be exempt from public accommodation laws because her product includes an “expressive” element. As Cole points out, multiple businesses are expressive: interior decorators, landscape architects, tattoo parlors, sign painters and beauty salons, among others.

I intended to argue that, on the ground of dishonest framing alone, the plaintiff should lose. But then I did some further research, and what I found appalled me.

I already understood that this case had been intentionally  constructed–manufactured– to appeal to our newly theocratic Supreme Court majority. The plaintiff has the same lawyer who brought the bakery case a few years ago raising the same arguments. The Court essentially “punted” on that one, returning it to Colorado without reaching the merits, and this case has clearly been manufactured to try again.

But that isn’t the half of it. Robert Hubbell provides the ugly underside.

It turns out that this case does not involve an actual “case or controversy”—as required by the Constitution.( In the United States, courts are not allowed to issue advisory opinions, only to decide actual, existing conflicts.)

In general, the jurisdiction of federal courts is limited to real disputes in which the plaintiff can show actual injury. (That is a gross oversimplification of a complicated judicial doctrine, but stick with me for a moment!)

 The 303 Creative “controversy” was manufactured by a religious advocacy organization (ADF). The plaintiff is a web design company that might—in the future—offer such services for weddings. But the plaintiff does not yet offer that service, may never do so, and (therefore) has not yet been asked to provide those services to a same-sex couple. Nonetheless, the plaintiff asks the Court for an advisory ruling about its obligations under a Colorado statute prohibiting discrimination on the basis of sexual orientation.

No same-sex couple has ever asked Smith to make them a wedding website; in fact, she has never made a wedding website for anyone. Her work to date focuses on local politicians, dog breeders, contractors, and houses of worship—not celebrations of life events.

Smith one day might be asked to make a same-sex couple’s website, ADF asserted. And when that day comes, she wants the right to say no.

The first question any lawyer–or any law student– would ask is: in the obvious absence of an actual case or controversy, why did the Court agree to hear this case? I’m afraid the answer to that is chilling: because this is a Court with a rogue, theocratic majority intent upon imposing  religious beliefs held by a minority of Americans on the rest of us–intent upon making the U.S. a “Christian nation.”

There’s more. It turns out that the Colorado statute already has language that would allow Smith to refuse to make a custom website for same-sex couples.  Only  if the business offers “off the shelf” website designs for sale to the general public would she be required to sell them to anyone who wants one. This so-called “artist” wants the Court to say that she can refuse to sell a standardized product to same-sex couples.

Let’s get real. If a business owner really, sincerely doesn’t want to work with particular customers,  it is supremely easy to evade nondiscrimination laws. The proprietor can always say something like, “Gee, Mrs. Smith, I am so backed up with orders that I can’t meet your timeline,” or “I’m so sorry, Mr. Jones, but I’m short-handed right now”…there are lots of ways these pious bigots can refrain from “participating in sin” without trumpeting their disdain or trying to change the law to encourage others to discriminate.

I will also note that the use of such all-purpose excuses would allow Smith to deny service to other “sinners”–surely her “sincere” religious beliefs would prohibit sales to adulterers or women who’ve had abortions, or atheists…interesting how these “godly” folks are laser-focused on just one sin…

It’s depressing enough to realize how many “Christian soldiers” are fixated on making life miserable for us “others.” It is absolutely terrifying to realize that the Supreme Court of the United States is controlled by theocrats intent upon eviscerating the wall of separation erected by the First Amendment’s religion clauses in order to enforce their version of “morality” on all  Americans.

Iran has morality police. How’s that working out for them?

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Speaking Of Power…

The New Republic has a new podcast, titled “How to Save a Country” devoted to ideas about a “new political vision and a new economic vision for the United States.”

A recent introduction began “It’s that time of year, a chill is in the air. Halloween candies hit all the grocery store aisles, and perhaps scariest of all …the Supreme Court is back in session.”

As Michael Tomasky noted,

We could see the last vestiges of affirmative action overturned. We could see a decision that gives state legislatures the power to essentially overturn federal election results. And we might see a more definitive conclusion of the right of business owners to refuse to serve gay customers. You know, the wedding cake question.

The interviewee on this particular episode was Amy Kapczynski, who co-directs both Yale’s Global Health Justice Partnership and its Law and Political Economy Project. She also clerked for both Sandra Day O’Connor and Stephen Breyer–experience that prompted one of the first questions: what was it like to work at the Supreme Court?

Gosh, there’s lots to say about what it’s like at the Supreme Court. It’s the kind of building that when school kids come into it, they often ask whether it’s a church. It’s a very intimidating place. It’s a very intense place to work. It’s a very small and intimate place. I can think of no government agency that has anything like the amount of power that it has with so few people working for it, and it’s a place about which I would say there’s a lot of secrecy. So some of that has been drawn back a little bit recently as we started to see both the leaks of the Supreme Court and also, I think, with more public attention, people realizing how much power the court has and how a concerted majority that’s really not afraid of public reaction can use that power.

I think one of the things that I was fascinated by as a young person going to law school and then working at the Supreme Court, is how people in power think about the power that they hold. And clearly, I think one thing that we’re seeing about the Supreme Court now is that you have a slim majority that’s very, very conservative and that’s very eager to use the power that they have to advance a vision of America that doesn’t look a whole lot like America today. It’s part of the reason they talk so much about 1789.

Kapczynski says we should be prepared for a lot of bad 6–3 decisions (several of which the podcast participants discussed) and that progressives need to think carefully about what we can do and how we can react. She points out that the Supreme Court is not the only body that can interpret the Constitution, and that the view that all Constitutional interpretation must occur there is a relatively modern phenomenon.

There’s a long history that we can look back to where there have been fights about the court, where the court has overreached, and where there have been ways that the public and our political branches have responded that have curbed the court’s power.

And sometimes it happens because the amount of public outcry actually causes those individual people sitting there and reading their newspapers to think, “Well, gosh, maybe we are overstepping, and maybe we’re really going to face the loss of our legitimacy or changing of our composition if we don’t pull back.”

Given the breathtaking arrogance and intellectual dishonesty of Justice Alito and the equally arrogant indifference to ethics displayed by Thomas, I’m dubious that the worst actors on today’s Court will recognize  and dial back their outsized contributions to the Court’s diminished legitimacy…although one can hope.

Kapczynski shares more concrete suggestions for curtailing our rogue Court, and those suggestions bring us back to the issue of power–how it is exercised, and by whom. It also brings us back to the importance of civic education/literacy.

So there are lots of options. All of them require lots of power, right? You need really strong majorities and committed majorities in Washington, so not just the presidency but a stronger majority than we have in Congress and the Senate and so forth to really take those kinds of things forward. And you do need a party and a base that’s more educated about why this is important, that understands the structural power at stake and cares about that.

If those considerable hurdles can be surmounted, Congress can look into the pros and cons of adding justices, imposing term limits and/or restricting areas of jurisdiction.

If Republicans control Congress after the Midterms, of course, none of that will happen.

VOTE BLUE NO MATTER WHO.

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Justice Roberts Knows Better

Survey research has shown a sharp increase in the number of Americans who have very negative opinions of the Supreme Court. In response to that research, Chief Justice Roberts recently delivered an admonition: “simply because people disagree with an opinion is not a basis for criticizing the legitimacy of the court.”

Really, Justice Roberts? Were you able to deliver that pearl of wisdom with a straight face?

As a number of pundits have noted–and as Roberts certainly knows– the dramatic drop in approval isn’t a consequence of unpopular results. It’s a consequence of the shocking dishonesty of the reasoning used to achieve those unpopular results, and the blatant illegitimacy of the processes that seated political/religious ideologues on the Supreme Court bench.

One of the most incisive responses to the Chief Justice’s weak defense was written by (formerly Republican) Jennifer Rubin, in the Washington Post.

Rubin correctly characterized Roberts’ remarks as unprofessional “whining,” noting that “no court was more heavily criticized than the Warren court.”

Yet you did not hear a constant drumbeat of complaints from the justices themselves. They let their opinions and history do the talking — an approach the current court, which is widely and correctly seen as partisan and peevish, would do well to follow.

After noting that Roberts “really doesn’t get it,” and marveling about the degree to which the current court is “utterly and completely tone-deaf to its role in the destruction of its own integrity,”  Rubin  issued a withering critique that pinpointed the reasons this Court is so widely–and correctly– viewed as illegitimate:

Roberts would rather not address the root of the court’s credibility crisis: its conservative members’ blatant disregard of nearly 50 years of precedent, their misuse and abuse of facts and history, their penchant for delivering public screeds in political settings, their misleading answers in confirmation hearings, their improper use of the shadow docket, their prior placement on the shortlist of potential justices by right-wing dark-money groups attempting to transform the judiciary, their opposition to adhering to a mandatory code of judicial ethics — and a refusal by Thomas to recuse himself from cases related to the Jan. 6, 2021, attack on the Capitol, despite the anti-democracy activism of his wife, Ginni.

And let’s not forget: The court got its 6-3 supermajority largely through GOP hypocrisy and Congress’s refusal to take up the nomination of Merrick Garland in the last year of Barack Obama’s presidency.

Rubin’s column quotes a number of highly respected legal scholars who have been appalled by highly politicized decisions issued by this court.

It is true, as Rubin acknowledges, that Roberts didn’t author the most egregious opinions, but he has joined them. Rubin identifies the abortion ruling in Dobbs, the prayer-in-schools ruling in Bremerton, and the Brnovich decision on voting rights, written (again!) by Alito–a decision that Norman Ornstein accurately criticized as blatantly ignoring the plain language of the law and rewriting it to fit his “partisan and ideological views.”  She also quotes Ornstein’s observation that Roberts has “ignored Clarence Thomas’s blatant conflicts of interest and continues to oppose applying the judicial code of ethics to the Supreme Court, even as its credibility plummets.”

Rubin quotes Stephen I. Vladeck, a law professor at the University of Texas saying  “If the court’s legitimacy doesn’t come from public acceptance of the principled nature of its decision-making, where does it come from?” The operative word in that quote is “principled.” Americans respond very differently to Supreme Court decisions with which they disagree when they can see that those decisions were principled exercises in legal analysis rather than obvious distortions of facts and precedents employed to reach a preferred result.

Americans will also respond differently to decisions that expand American liberties rather than  reverse them. This Court is the first in U.S. history to constrict, rather than enlarge, individual liberty. When it removed a constitutional right that Americans had relied upon for  fifty years through a historically dishonest and legally-tortured decision, the Court focused  a glaring spotlight on its own illegitimacy.

The court has failed to regulate itself and instead has abused its power. None of the six right-wing justices acknowledge, nor do they signal they want to halt, the conduct that has lost the public’s confidence.

So it’s up to Congress and the president to shore up the court’s credibility. Allocating more seats to correct the damage done by Sen. Mitch McConnell’s court-packing, imposing term limits on all justices and enacting a mandatory code of ethics would be good places to start.

Good proposals, but they will only be possible if large majorities of Americans vote Blue in November.

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Religious Chutzpah

Regular readers of this blog will have noticed that–ever since the Supreme Court’s decision in Dobbs—I’ve been harping on the evisceration of a doctrine called “Substantive Due Process,” also known as the right to privacy. Without going back through the jurisprudence that established that doctrine, let me just paraphrase it: government must respect citizens’ right to make our own decisions about how to live our lives, so long as  those decisions aren’t harming others.

Decisions about procreation are hardly the only areas protected from government overreach by the Bill of Rights. Your choice of religious conviction and my choice not to be a believer are both protected–mostly by the religion clauses of the First Amendment, but also by a right to privacy that keeps government from dictating so personal a choice. Religious liberty is based upon that same respect for the integrity of the individual conscience.

However, the current Court seems intent upon elevating the rights of believers over the rights of the rest of us.

Just this last term, the Justices permitted a theatrically pious coach to pray on his school’s fifty yard line, and ruled in favor of a Christian group wanting to raise its flag at Boston’s City Hall.

The Hill has reported on a pending lawsuit  encouraged by earlier Roberts Court cases that weakened the wall between church and state.

A Texas lawsuit that hopes to eliminate mandated health insurance coverage of birth control, HIV medication, sexually transmitted disease (STD) testing and more has quietly been pushing forward through the court system and could eventually end up in front of the U.S. Supreme Court.

In the case of Kelley v. Becerra, two plaintiffs from Texas argue that the current structure of the Affordable Care Act (ACA) mandates health insurance providers to cover certain preventative care they argue they do not need and that conflict with their religious beliefs — specifically, contraceptive coverage, STD testing and HIV medications Truvada or PrEP.

One of the lawsuit’s arguments leans on the Religious Freedom Restoration Act, which states governments should not substantially burden religious exercise without a compelling justification. Plaintiffs argue this right has been violated as both are Christian and unwilling to buy health insurance that subsidizes, “abortifacient contraception or PrEP drugs that encourage homosexual behavior and intravenous drug use.”

The lawsuit also takes issue with how the ACA defines preventative care, a decision-making process that has been assigned to various groups, including the Advisory Committee on Immunization Practices, the Preventative Services Task Force and the Health Resources and Services Administration.

If these religious zealots prevail–and they probably will at the District Court level, since they’ve filed the case in the courtroom of the radical Texas judge who previously ruled that the ACA was unconstitutional–health insurers would no longer be required to cover preventive care with no copay. They could either opt out of offering those services altogether, or begin charging for them.

Currently,most health insurance plans include coverage of preventative care like birth control and HIV medicines. Plaintiffs complain that their options for plans without those elements are few and far between, denying them freedom to exercise their religious beliefs.

Health care providers have raised alarm bells over Kelley v. Becerra, like the American Medical Association (AMA), alongside 20 other medical trade groups, which stressed how popular the preventative care measure of the ACA has been — with an estimated 151.6 million people receiving free preventative care in 2020 alone.

An adverse ruling would mean millions of Americans would lose access to “vital preventive health care services, such as screening for breast cancer, colorectal cancer, cervical cancer, heart disease, obesity, diabetes, preeclampsia, and hearing, as well as well child visits and access to immunizations critical to maintaining a healthy population,” wrote the AMA.

A coalition of 20 attorneys general has also filed an amicus brief in Kelley v. Becerra arguing–among other things– that public health outcomes have significantly improved since the ACA’s preventative services provision was implemented.

Let’s give the plaintiffs the benefit of the doubt, and accept that these provisions–provisions that have improved the health of millions of Americans– are contrary to their “sincerely held” religious beliefs. Do they not have options other than denying critical health care to Americans who are currently benefitting from access to preventative care? Couldn’t they establish a “faith-based” insurance company that would cater to their needs? (Such a company would have a strong argument for being exempted from the federal requirements they insist are inconsistent with their religious doctrines.) Or they could opt to self-insure.

Instead, they argue that their religious “rights” trump the health of millions of Americans  who currently have free access to cancer screenings, birth control and childhood vaccinations. (Google chutzpah.)

If they prevail, thank the current “Christians” on the Supreme Court.

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Lawyers Are Grieving

A letter to the editor (Josh Marshall) of Talking Points Memo struck a nerve with me. A major nerve.

As Marshall noted in an introductory paragraph, this term’s string of decisions from the Supreme Court prompted a number of letters from lawyers; he began by quoting one correspondent:

I don’t believe laypeople really understand what a a heavy, heavy emotional lift it is for the vast majority of attorneys generally, and law professors in particular. The belief that we are serving the rule of law and that that while decisions will always be shaped by human weakness, judges can and will render rulings contrary to their ideological predilections if the law requires it is central to our identity. it is what makes us more than the lawyer jokes say we are. It is the essence of the constitutional principle of due process, equal protection, Magna Carta law of the land. All that stuff. It’s hard to accept that it’s dead and courts are just political actors, even as right wing billionaires have plowed fortunes into making state and federal courts exactly that.

I have had this conversation with many attorneys who are not political maniacs like I am. I find few who are not struggling with acceptance because, make no mistake, acceptance is to accept existential crisis, accept the need, at best, to completely redefine who we are and how we do it. In a real sense, most of us are grieving for due process and rule of law like people grieving a death where no body has been found. We know it emotionally, but don’t accept it intellectually or accept it intellectually, but not emotionally.

This particular writer has eloquently conveyed what I–and the multiple lawyers in my immediate and extended family–have been feeling. The ground has shifted beneath our feet, and we are disoriented. I no longer know what country I inhabit. As another letter-writer put it, we’ve been forced to recognize that defending America’s democratic institutions and defending the legitimacy of the Supreme Court are no longer compatible. “You can’t be on the side of the virus and the cure at the same time.”

No kidding.

For most of my professional life, I’ve been very patriotic (perhaps overly so, I’ve reluctantly concluded)–and that patriotism has been rooted in my reverence for what I understood to be the original underlying premises of the Constitution and Bill of Rights. I have always understood America’s government to be constructed on the libertarian premise that we humans have the right to autonomy, to  self-determination, until and unless our actions are harming the person or property of another, and so long as we are willing to accord an equal liberty to others.

True, that genuinely original principle wasn’t shared broadly enough, wasn’t extended to those wrongly viewed as lesser, but at the time, its mere articulation represented a huge advance in conceptions of legitimate governance.

I spent twenty-one years sharing that conviction with university students. I’ve made hundreds of speeches, written literally thousands of columns, academic papers and blog posts based firmly on the understanding that in my country, religious folks didn’t get to legislate obedience to their doctrines, government didn’t get to dictate my private beliefs and/or behaviors–and that those and other limits on government infringements of my personal liberties are at the very heart of what does make America great.

Our job as citizens, I taught, is to ensure that the respect for human rights at the heart of our original founding philosophy is extended to people who have previously been marginalized or oppressed.

That founding philosophy–that genuine originalism– is being purposely upended by an illegitimate and profoundly dishonest Court majority. As Marshall noted, in response to several of the letters he shared,

A whole ideology of judicial independence and the very idea that the law is an independent force with a logic of its own, a constraint on the vicissitudes of power and politics, does seem under threat from the realities of the moment…

We’ve learned a common pattern in which a constitutional challenge once viewed as unprecedented bordering on absurd emerges as new constitutional law two or three years later. This is all the definition of an out of control Court operating beyond its authority. The process by which it arrived at this point is one of a deep and profound corruption.

That corruption can only be addressed by the political process. As Marshall says, both of the other branches must act in concert, limiting jurisdiction and adding judges;  these are  “legitimate remedies, responses to the perversions of the rule of law and judicial independence rather than attacks on it.”

Of course, if there isn’t a blue wave in November, this won’t happen. Like most lawyers, I’m in mourning.

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