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A fabulous week for conservatives (and the rule of law)
This Court is on fire!
It has been a busy week at the Supreme Court. In fact, I can’t think of another week in which so many momentous cases were handed, much less so many conservative victories.
One of the most notable rulings of the week was in the Harvard case. There the Court held that race-based admissions policies were unconstitutional. While many were upset at the ruling, which heralds the end of affirmative action as we have known it since the 1960s, the ruling upholds the Equal Protection Clause of Constitution and the 14th Amendment.
This ruling is being decried as racist in many quarters, but in reality, it is a step towards implementing a colorblind society. There are other, more constitutional ways, for schools to ensure a diverse student body that could pass judicial muster, but the policies of Harvard and the University of North Carolina, a separate case which was lumped together with Harvard’s for the ruling, blatantly and intentionally favored one race while penalizing another. That is racist by definition.
On the same day that Harvard was handed down, the Court also delivered a victory for religious freedom in Groff v. DeJoy. This wasn’t a giveaway to religious believers, rather it established more fairness when it comes to religious accommodations for workers.
Previously, the standard for whether an accommodation was an “undue hardship” for employers was a de minimis test. Essentially, any burden for the employer was an “undue hardship.” The Court revised that test to say that the burden must be “substantial in the overall context of an employer’s business.” This decision strikes a fair balance between protecting an employee’s freedoms of religious and conscience and understanding that accommodations will not always be practical.
Groff didn’t win his case outright, but he does get a new trial under the new standard. He may still end up losing on the merits because, as I discussed back in April, the Postal Service has already gone to great lengths to accommodate his desire not to work on Sunday, but Groff did win an extension of religious freedom for Americans of all faiths.
I want to point out that Groff was decided unanimously. Knowing that and given the long list of recent victories for religious litigants, it is becoming more and more difficult to seriously claim that religious freedom is threatened in the United States.
The following day, religious freedom got another boost along with freedom of speech in 303 Creative v. Elenis. This case is similar to other recent cases in which governments sought to compel businesses to create products, such as wedding cakes and photos, that the worker deemed objectionable.
While some coverage paints this ruling as a carte blanc to refuse service based on sexual orientation, that is not accurate. The decision notes that Lorie Smith, the graphic artist who owns 303 Creative, is “‘willing to work with all people regardless of classifications such as race, creed, sexual orientation, and gender’ and ‘will gladly create custom graphics and websites’ for clients of any sexual orientation.”
The real issue was whether Colorado could deem virtually all businesses to be “public accommodations” that would be required to offer “equal access” to the “unique services” of an individual. To the State of Colorado, that meant that it could compel Smith to offer products, such as websites celebrating same-sex weddings, that violate her conscience.
Justice Gorsuch, writing the majority opinion notes, “Colorado seeks to compel just the sort of speech that it tacitly concedes lies beyond the reach of its powers.”
Again, the Court decided the issue based not on public opinion about Smith’s religious views but on the letter of the law. Colorado’s position was plainly a violation of the First Amendment right to free speech. Government can neither limit nor require individual speech.
303 Creative was not about denying service to gay customers. It was about whether government can force artists to create unique products that they don’t want to make. In those terms, the right decision should be blindingly obvious.
The second case handed down on Friday was similar in that it turned on the wording of the law rather than public opinion. Again, this is appropriate.
In Biden v. Nebraska, the Court held that the language of the HEROES Act of 2003 does not allow the government to cancel large amounts of student loan debt in 2023. Under the law, the government can “waive or modify… student financial assistance programs… in connection with a war or other military operation or national emergency.”
Chief Justice Roberts led a 6-3 majority in an opinion which held that the student loan forgiveness was neither a waiver nor a modification and went far beyond the scope of the authority that Congress had intended to grant the executive branch.
“The question here is not whether something should be done, but who has the authority to do it,” Roberts wrote.
Ultimately, Congress failed to act on student loan forgiveness, but Congress’s failure to act does not confer additional authority to the president. The assumption that it does bedevils presidents of both parties.
Hopefully, the Court’s newfound ability to hold presidents to the letter of the law rather than allowing them to twist and expand the understanding of current law will help to rein in the growth of executive power. Ideally, this will will inspire Congress to overcome its disfunction and pass well-crafted, specific, and timely laws that do not delegate excessive authority to executive branch bureaucrats.
Nevertheless, Roll Call reported that President Biden has unveiled another plan to provide debt relief for student loan borrowers, this time under the Higher Education Act of 1965, which he says allows the Department of Education to “compromise, waive or release loans under certain circumstances” and does not require a national emergency. It isn’t clear why the Higher Education Act was not the basis for debt relief in the first place if it provides a more clear authority than the HEROES Act, but we can expect a follow up case before long.
But wait, there’s more! Not all of this week’s conservative victories benefited Republican priorities. One of the most over arching decisions came early in the week in Moore v. Harper, a case that, as David French put it, “nuked [a popular Republican legal theory] from orbit.”
In this case, the Court obliterated Republican claims that state legislatures could escape judicial review on the subject of election laws. This idea was so pernicious that the Court obviously felt the need to go out of its way to quash it before the 2024 elections.
So there are reasons for both parties to be upset with the Supreme Court this week, but plenty of reasons for conservatives to be happy. As one Twitter user put it, it was a “pretty bad week for the ‘what has conservatism ever conserved’ folks.”
A lot of the credit goes to Justices Barrett, Kavanaugh, and Gorsuch, along with Chief Justice Roberts. While I’m no fan of Donald Trump, his pick of Supreme Court justices was easily the best thing about his presidency. The Trump trio plus Roberts make up a centrist faction on the Court that can swing either way and anger both sides.
More than a victorious week for conservatives, this was a victorious week for the rule of law. The Court’s conservatives showed again that they can follow the law, even when it goes against the wishes of the president and party that appointed and confirmed them. Even when it goes against public opinion.
That’s entirely appropriate. Justices should rule on the law and the facts of the case, not a desired outcome or opinion polling. For much of my life, I’ve watched the government expand its power through dubious interpretation of words and laws. The current Court seems determined to buck that trend, no matter which party seeks push the bounds of government.
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