Knowing that I am retired from a long career as a government lawyer, several people have asked me what I think about the Supreme Court's recent decisions. Said one of them,"The supreme court's systematic dismantling of protections for minority groups is one sucker punch after another." Well, yes. But there's more to say than that.
One thing I am thinking is that people of my age grew up in a golden age of American jurisprudence. The Warren Court of the 1950s and 1960s was a high-water mark for liberal values, judicial responsiveness to social reality, and intellectually honest approaches to constitutional interpretation. Those of us who came of age during that time were misled into thinking of it as the norm. Wrong. It was the kind of approach to enlightened government that occurs at most once in a lifetime. Since then, the Court has regressed to the blinkered conservatism, disregard for the poor and minorities, and casuistry that has traditionally characterized it. What we are witnessing now is an extreme but not unheard-of expression of the Court's role as more-or-less-consciously willing, useful idiot for the racially dominant oligarchy. Think of the Dred Scott decision, holding that slaves have no rights which federal courts need to recognize. Think of the Court's stubborn resistance to FDR's New Deal. We've been here before.
Regarding the Roberts Court's most recent spate of horrid decisions, I tend to think that in the long run they are so poorly reasoned, so unsupported in law and fact, that they will not long outlast the Court's current majority. A couple of retirements or deaths, coupled with a president and Senate whose heads are not entirely up their asses, and the pendulum may well swing. Maybe not in my lifetime, though. In the meantime, we have to suffer through a Court on which Roger Taney himself (author of the Dred Scott decision) would have been comfortable.
It's comforting to take the long view. But I am appalled by a Court that prioritizes religion over all other values and Christianity over all other religions, and that is capable of ignoring the present-day effects of centuries of vicious racial oppression.
I suspect that the Court's decision to put an end to affirmative action in college admissions is likely to have some unintended, positive consequences. Affirmative action was in many ways an unsatisfactory program (think of the stigma that it carried) and ineffective as a remedy for systemic racial bias (it
benefitted only a demographically insignificant number of people). Now that it's gone, something is bound to replace it. Although the Court forbids colleges to use racial categories in the admissions process, it explicitly allows them to factor in such things as adversity the applicant has overcome on
the way to college, including socioeconomic and racial adversity. This is likely to produce a flood of college application essays describing the racism and class barriers, systemic and personal, that applicants have encountered. Year after year, young people hoping to go to college from disadvantaged backgrounds are going to be encouraged to think about precisely those topics as
they complete their time in high school and prepare to move on to higher education, and to express their thoughts as compellingly as they can. Maybe it's too much to hope that this will breed generation after generation of woke Marxists (fuck you, DeSantis), but it could be an engine for consciousness raising and radicalization.
Possibly more important, from the standpoint of recognizing the Court's complete abandonment of its role as, well, a court, is its destruction of "standing" as a meaningful concept. This is also the aspect most likely to escape the attention of non-lawyers. Their eyes will glaze over at the mention of something so seemingly boring and technical. But it's not boring and technical. Straighten up in your seats and listen!
Standing is a basic part of what makes a court a court. Without getting too technical about it, which would indeed be boring, under our constitution federal courts have judicial authority to settle "cases" or "controversies" brought before them by persons or entities who have suffered or are likely to
suffer actual harm from the actions or omissions of another. I cannot bring suit in federal court against Donald Trump for being a lying asshole, because I personally haven't suffered any legally definable injury from his lies, but E. Jean Carroll could, and did, and won $5,000,000. E. Jean Carroll had standing; I don't. Simple as that.
In the gay wedding and student loan cases, the Court basically dispensed with the standing requirement altogether. The gay wedding case was brought by a woman who wanted to start a business designing web sites for weddings. At the time, she did not have such a business. She sued the State of Colorado because its anti-discrimination laws would have required her to design wedding sites for gay couples, which she claimed would be religiously objectionable to her, if she were to start such a business and if a gay couple were to ask her to design a wedding site for them; also, she claimed, the state would have forbid her to post on her web site a warning that she wouldn't design wedding sites for gay couples, if she ever were to be in the busines of doing so. At the time she filed her suit, no gay couple had requested her to perform such a service. Lest this all sound perhaps a bit too speculative, she claims to have received, the day after she filed her suit, a request from a gay man for a wedding web site, but investigation by the press revealed that the man in question is not gay, has been married to a woman for over a decade, and says he never has been in communication with Lorrie Smith, the aspiring web site designer. He is himself a web designer and could design his own wedding site if he were in need of one, which he isn't. In short, Lorrie Smith had less standing to sue the State of Colorado than I have to sue Donald Trump for being a lying asshole. I'm not speculating about that. Instead of dismissing her case outright on those grounds, however, the Supreme Court said she has a religious exemption from Colorado's antidiscrimination laws that allows her not to design wedding
web sites, if ever she might be in the business of doing so, for gay couples, if ever any should want to hire her to do so. (Presumably, however, she would design a wedding web site for the man whose supposed request for one she claimed to have found religiously offensive, if he needed her to do so.)
Here is where we see the importance of standing, and of the Court's evasion of that issue. Real courts don't decide cases in a vacuum. There are facts at the basis of them, actual occurrences that give rise to actual harms. In their absence, we are left with imaginary situations. So, imagine the following: Ms. Smith goes into the wedding web site design business. A gay couple, unaware that she is a bigoted religious fanatic, hires her. She designs a beautiful web site, which they love except for the prominent banner on the home page that states, "Homosexual marriages are an abomination unto the Lord." She refuses to remove the banner. Like any purchaser of art who finds the completed work unacceptable, they refuse to pay her for it. Please note that this whole scenario plays out without any involvement by the State of Colorado, its antidiscrimination statute, or the First Amendment. It's a purely commercial dispute. Who sues whom? How does it sugar out? That's the kind of thing that facts can do. They can be such pesky impediments, for example, if they face you with a dispute between a recalcitrant content creator and a dissatisfied customer, when what you really want to do is announce the primacy of religion over antidiscrimination. Better do without them altogether.
Sadly, the Roberts Court is not operating as a real court. In his opinion for the majority, Gorsuch (he, like Roberts, Alito, Barrett, Kavanaugh, and Thomas, is unworthy of the honorific title "Justice") acknowledges that standing was at issue in the federal District Court where the case was initiated and in the Tenth Circuit Court of Appeals; and then, having acknowledged the issue's existence, he completely ignores it. That's not hyperbole on my part. It's not that he pays standing short shrift, or offers an unconvincing, false, or dishonest argument about it. He simply doesn't talk about it at all. Don't just take my word. You can read the whole sorry thing, if you have the stomach for it, here.
In the student loan case, the Court accepted a theory presented by the State of Missouri that Biden had exceeded his constitutional authority when he excused repayment of federal student loans. The Court's reasoning on the merits is disastrously flawed, but I won't go into it here. I encourage you to read Justice Elena Kagan's dissent, or the summary of it here. It's just another example of the well-established right wing judicial tendency to deal with inconvenient legislative and constitutional language by ignoring it, what one commentator has called the "get out of text free doctrine." My point is that the State of Missouri had no standing to sue in the first place. There is no way that the State of Missouri could claim that it was harmed by having thousands of its residents absolved of student debt. Missouri and the Court got around this by claiming to act on behalf of a Missouri corporation that administers student loans. The argument holds no water, because the corporation, which indeed might have had standing in its own right, is completely legally and financially independent of the State of Missouri and - more to the point - it declined to participate in the litigation. That's right: the entity that might have claimed it was harmed by student loan forgiveness didn't want anything to do with the lawsuit. So maybe I could have standing to sue Donald Trump for being a lying asshole if I say I am doing so on behalf of somebody whom he might have harmed with his lies, let's say Barack Obama or Hilary Clinton, but who chose not to sue him themselves?
As that last question implies, the Roberts Court's demolition of standing as a foundational requirement for jurisdiction could open the floodgates for an almost limitless variety of litigation. A friend recently emailed me, "How much intellectual dishonesty can they pack into one opinion with how much open sophistry?" We'll find out the answer to my friend's question pretty soon when parties start citing the student loan and gay wedding decisions on the issue of standing and the Supremes realize they're going to have to find a way to distinguish them. As I warned my friend, "You ain't seen nothing yet."
One sucker punch after another? Yes; but there's also some grim amusement in noting how many of these sucker punches Roberts, Kavanaugh, Barrett, Alito, Gorsuch, and Thomas land on their own faces.
UPDATE, July 6, 2023: I realize that I indulged in something like hyperbole with regard to Gorsuch's treatment of standing in the Christian bigot case, contrary to my statement that I wasn't doing so. I was correct in observing that he does not discuss the issue. What he does is express general agreement with most aspects of the Tenth Circuit Court of Appeals' handling of the case, except the result. The Tenth Circuit decided against Lorrie Smith on the basis of established law that a business owner who provides services to the general public can't discriminate against members of protected classes by denying them the services she offers to the public at large. Contrary to the trial court, the Tenth Circuit appeals court held that Lorrie Smith had standing to bring her lawsuit against the State of Colorado because she credibly believed that she would be the victim of an enforcement action if she were to violate the State's antidiscrimination services by denying her prospective wedding web site design services to a gay couple. There is indeed an exception to the general rule that a plaintiff need have suffered actual harm in order to have standing to bring suit in federal court. This is when there is a credible threat of imminent harm. In those circumstances, you don't have to wait for the injury to occur in order to seek an injunction against it. But "imminent harm" doesn't mean something speculative or in the indefinite future. As Alito put it in a 2013 decision he wrote for the Court on standing, "[T]hreatened injury must be certainly impending... [Plaintiffs] cannot manufacture standing by choosing to make expenditures based on hypothetical future harm that is not certainly impending." Clapper v. Amnesty International USA, 568 US 398 (2013). But that was a lawsuit brought by civil liberties groups complaining about, among other things, the financial burden of protecting the confidentiality of their communications in the face of government surveillance. Apparently the "certainly impending" standard doesn't apply to bigoted Christian prospective wedding web site designers who might some day be asked to serve a gay couple, if they ever indeed enter the wedding web site business. Or maybe words don't mean much to Slippery Sam Alito; it's the results that matter; some parties he likes, some he doesn't. I report, you decide.
