The Supreme Danger

Image of columns falling at the Supreme Court, Jim Cooke / Los Angeles Times; photo via Getty Images

Given the long weekend and my travel schedule, in lieu of my normal look to the week ahead, I want to take some time to reflect on the Supreme Court and its recent rulings and to place them in context of a larger, disturbing pattern.

There is an understandable tendency to focus on the results of a particular case and the likely consequences of it. For example, the Court’s ruling on Thursday in the Students for Fair Admissions cases against Harvard and the University of North Carolina, striking down race-conscious admissions practices in American universities and colleges, likely will have a direct and negative impact on enrollment by Black and Brown students. And down the road it could impact beyond academia and start to affect diversity, equity and inclusion programs in corporate America. That’s a pretty broad range of bad consequences.

On the other hand, many hope the web designer case out of Colorado, 303 Creative v. Elenis, announced on Friday, will have only limited impact. Many on the left have indignantly proclaimed they don’t want their money going to a service operated by a bigot in any event. And those on the right argue that, after all, this is only about “creative” businesses not wanting to be forced to provide services for LGBTQ+ couples on First Amendment grounds. It isn’t like suddenly the world is ending, they claim.

While I, too, worry about the predictable and bad real world consequences that could flow from these decisions, I am more deeply troubled by the cases’ tortured legal reasonings, which in the service of an apparent political agenda upend decades of established precedent and grant the Court an astonishing amount of power. 

Over the next few days, I want to dig a bit deeper and look at what these cases represent more fundamentally for the law, particularly their effect on the way our legal system and jurisprudence historically have operated. Here are the very nerdy topics I will cover, which i hope will paint a bigger picture for everyone here of what’s really going on.

1. The doctrine of stare decisis, meaning in fancy Latin to “stand by things decided.” This is known commonly as precedent, and this Court has shown a blatant disregard for it, particularly in its overturning of decades of law on abortion rights and affirmative action. How has it managed to do so, to what principles has it turned instead, and what does it mean for the legitimacy of the Court?

2. The principle of standing, meaning the right to appear before a Court because the party has what’s called an “injury in fact” and there is an actual “case or controversy” for the Court to settle. The problem of lack of standing was laid bare recently, after The New Republic reported that the plaintiff in 303 Creative not only hadn’t suffered any injury yet, such as actually being asked to create a same-sex wedding website, but that the request from a client she submitted to the court turned out to be fake: not a gay fiancé at all, but rather the name of a straight web designer who was married with kids and who had never made such a request.

3. The question of judicial restraint, which includes the above mentioned values of stare decisis and standing, but also encompasses values such as the Court not acting as its own lawmaking body, deferring to the language and intent of Congress and to the expertise of executive agencies, and maintaining the trust and confidence of the people through its own carefully-maintained legitimacy. (I admittedly wrote that last bit without a straight face.) There are good reasons that public opinion of the Court has fallen to a new low, not the least of which are unreported billionaire junkets, but that also include the Court vastly overreaching. This loss in public support is concerning because of what it means more broadly for our nation and the rule of law.

To understand these ideas in context, I’ll discuss some of the most high profile and frankly horrifying cases out of this Court—including the following:

• The Dobbs decision striking down 50 years of precedent from Roe v. Wade;

• The Bruen case striking down New York’s gun regulation requiring proof of proper cause exists to issue a license to carry a concealed weapon;

• The Court’s environmental cases, including West Virginia v. EPA around carbon emissions and Sackett v. EPA around endangered wetlands, in which it deployed a novel theory of law to overrule a federal agency;

• Students for Fair Admissions ending decades of race-conscious college admissions through affirmative action;

• The 303 Creative case enshrining the right to discriminate against a class of people based on your own personal beliefs; and

• Biden v. Nebraska, which cut the legs out from under the student debt relief program put in place by the White House.

Fair warning: When we lift up these legal rocks, we’ll have to witness a lot of unpleasant things underneath. But sunlight is a powerful disinfectant, and if we are to understand what needs to be done to counter the Court, we need to understand first what the Court truly has done, not just in terms of the outcomes in these cases, but to the legal underpinnings of the entire system.

I look forward to this discussion! I hope to be writing the first part from a bright cafe somewhere in Central Europe tomorrow when my roommate Blair and I begin our annual summer jaunt. The airline has already warned of possible weather delays, and the flight is so full already it looks like zero chance for an upgrade out of economy— so no guarantees that we will get where we hope to get, or that we’ll be in any shape to enjoy our break.

That uncertainty and prospect for long discomfort actually feels like a good metaphor for where we find ourselves with this Court, so I’ll leave it at that. Have a great long weekend, and I’ll see you here tomorrow to talk about stare decisis. Fancy Latin stuff, yay!

Jay