Welp, the Supreme Court said “fuck it” this week.
This time of year SCOTUS usually hands out decisions on its’ biggest cases and this week was no exception. Released on Thursday, the decision that had the most people talking this week was the court’s 6-3 ruling in Students for Fair Admissions v. Harvard University and Students for Fair Admissions v. University of North Carolina to end affirmative action—something the court, and specifically Justice Thomas, has been trying to do for years. All six of the justices in the majority opinion were appointed by Republican Presidents.
On Friday the court also released its opinion on 303 Creative v. Elenis and Biden’s attempt to relieve student debt. 303 Creative v. Elenis was based on the hypothetical request for a wedding website design for a same-sex couple. Colorado designer Lorie Smith, who has never designed a wedding website, sought and received an advisory exemption to anti-discrimination laws. The unsurprising 6-3 conservative majority ruled that yes, it would be in violation of Smith’s first amendment right should she be forced to design the website, meaning that businesses offering goods and services in the public marketplace can openly discriminate against people—and the opinion did not really have limitations. The entire case rested on hypotheticals and should not have even been heard by the court, as explained by Strict Scrutiny. Later Friday morning, the Court also ruled that President Joe Biden’s initial plan to forgive federal student loans was unconstitutional.
And all of that doesn’t even cover opinions from Monday through Wednesday. WHAT A WEEK!
Today, all of my picks discuss this past week’s SCOTUS rulings, and feature many of my go-to voices in legal journalism. As someone who does not have any legal training, but understands the importance of listening to people with expertise, I have little additional commentary to many of these articles. What has been clear for a long time—and is becoming unbearable at present—is the SCOTUS functioning without any checks or balances, and acting as a partisan legislative body.
Many of the articles and podcasts listed here also provide additional sources that I highly recommend. Apart from the podcasts and journalists in this week’s picks, I also love Boom! Lawyered, Olayemi Olurin, and Amicus.
Hosted by constitutional law professors Leah Litman, Kate Shaw, and Melissa Murray, Strict Scrutiny is one of my favorite legal podcasts, and always offers great coverage and explanation of what’s happening with the Supreme Court. This episode discusses the “opinion in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, declaring admissions programs that consider race to be in violation of the 14th Amendment,” providing a thorough analysis of the case and its opinion. “Melissa, Kate, and Leah break down the Chief Justice’s opinion, Justice Thomas’s galling concurrence, and the brilliant dissents by Justice Jackson and Justice Sotomayor.”
Both Justice Sonia Sotomayor and Ketanji Brown Jackson wrote brilliant and beautiful dissents of Thursday’s decision. Jackson joined Sotomayor’s “opinion without qualification,” and here writes to “expound upon the universal benefits of considering race in this context, in response to a suggestion that has permeated this legal action from the start” addressing “the lengthy history of state-sponsored race-based preferences in America.”
In his column, The Nation’s justice correspondent Elie Mystal reacts to Thursday’s opinion, observing how “the conservative majority is ending affirmative action because college admissions are maybe the only place in American life where being white isn’t an automatic benefit to the possessor of precious white skin.” Mystal discusses the history of affirmative action, looking at the not-colorblind reconstructionist 14th amendment, how the right instrumentalized people of Asian descent, white women beneficial history with affirmative action, and that “to have anything, anything at all, where white people aren’t perceived as the primary beneficiaries of a policy or program is anathema to this country.
Sherrilyn Ifill, the former President and Director-Counsel of the NAACP Legal Defense Fund, shared her thoughts on the opinions for Students for Fair Admissions v. Harvard University and Students for Fair Admissions v. University of North Carolina. Conservatives love touting originalism, and as with Jackson and Mystal, Ifill demonstrates how that is a fallacy with this majority’s opinion “shattering destruction, its cruelty even, [laying] in its cynical ahistoricism, the weakness of its analysis, its manipulation of precedent, all in service of the completion of a project undertaken by conservatives—and begun on this court decades ago—to dismantle the legal framework that supports even the most modest efforts to level the playing field for those who have been most marginalized in our country.”
This piece by Kerry Howley is the one thing I included this week that doesn’t explicitly address any of the court’s recent rulings—but it still has everything to do with them. For decades Clarence Thomas has been trying (and just succeeded) in dismantling affirmative action, which he “considers himself a victim of,” as Mystal wrote in the aforementioned piece. But how did he get to that point? And what about his insurrectionist wife Ginni? How did they meet and what is the story behind all of their fuckshit? Howley skillfully asks, and answers these questions in her love story on how Ginni and Clarence “saved one another, raged against their enemies, and brought the American experiment to the brink.”
Again, Strict Scrutiny always has comprehensive coverage and discussions of SCOTUS cases. This episode, however, is a reaction episode, recorded just hours after Friday’s releases. Melissa, Kate, and Leah are all well versed on both cases, and here they process their reactions and fresh feelings on the opinions.
When I first heard about all of the hypotheticals in 303 Creative v. Elenis, it was hard for me to keep track of all of them! Melissa Gira Grant contacted Stewart, who “according to court filings from the plaintiff, [he] contacted Smith in September 2016 about his wedding to Mike ‘early next year.’” While his contact information was in the filing, Stewart said Grant was the first person to contact him, and explained that “if somebody’s pulled my information, as some kind of supporting information or documentation, somebody’s falsified that.” It was also revealed that Stewart is straight and married.
After the court struck down Biden’s plan to using the 2003 HEROES Act “to cancel up to $20,000 of student debt per person owed to the federal government,” he gave a speech saying he is “not going to stop fighting to deliver borrowers what they need, particularly those at the bottom end of the economic scale.”
He plans to pivot using the Higher Education Act to waive loans. This 6-3 decision comes as Biden’s administration “faces a looming deadline this fall when student loan payments, which have been suspended since the beginning of the pandemic in March 2020, are set to resume.”
I did not know about this case until I went down a rabbit hole of reading SCOTUS cases on Friday. It is common knowledge that corporations often have, and exploit legal privileges. On Tuesday, the court’s “5–4 ruling in Mallory v. Norfolk Southern threatens to revoke corporations’ shield against lawsuits in states where they’re more likely to lose. This sleeper case has emerged as one of the most important decisions of the term.”
The decision makes it harder for corporations “to ensure that they are sued only in states whose courts are favorable to their interests.” It is unfair that “humans can be sucked into a state’s judiciary as soon as they cross the border; meanwhile, corporations get to collect millions in profits from operations in a state, then insist they can’t be sued there.” With this decision, there will be a little more fairness, at least for now—who knows what the court might do next term.
On Monday, the Supreme Court upheld a decision “that allows more than 230 men to sue Ohio State University over decades-old sexual abuse by a university doctor, the late Richard Strauss.” The initial decision was made by the Sixth U.S. Circuit Court of Appeals. Strauss, who died by suicide at 67 in 2005, worked at the university from 1978 to 1998, and the plaintiffs “say university officials failed to stop him despite complaints raised as early as the late 1970s.”
I grew up on Michigan State’s campus, where Larry Nassar abused many young athletes, and reading this decision I couldn’t help but wonder how many other schools out there are hiding abuse scandals. Sadly, I think it is a lot.