[guest post by JVW]

Since the final decisions from this closing Supreme Court term will likely come down early on Friday morning while many of us Pacific Coasters are still tucked snugly in bed, I thought I should start an open thread so we can separate our legal discussions from the items that Dana will be serving up for us to mull over the weekend. Here is what to look for from 1 First Street, Washington, DC 20543 tomorrow morning:

Biden v. Nebraska and Department of Education v. Brown
These are the two big cases to determine whether the Biden Administration invoking the 2003 HEROES Act in the context of the pandemic can unilaterally cancel up to $20,000 in student loan debt for qualified borrowers, in essence committing somewhere between $400 billion and $1 trillion in taxpayer dollars without so much as the assent of Congress. We’ve been following this case a bit here, and although it did seem during oral arguments that a majority of Justices were skeptical that the President had such authority, there was also some concern as to whether the plaintiffs in this case had legal standing to pursue these matters. Since then we have discovered that far from helping students dig out of financial strife, the COVID-related pauses in student loan repayments have only encouraged borrowers to accumulate more debt, a fact that might have made its way into the attention of even Sonia Sotomayor.

I hope that tomorrow morning the Court decides that allowing the President the latitude to appropriate that level of targeted funding on his own volition is simply a Constitutional abomination. That will not be the end of the story: as with a Federal court’s earlier admonishment to curtail the COVID-era rent payment pause which was then cynically ignored until the Supreme Court stepped in and told them to knock it off, Team Biden will likely concoct some other justification for granting relief to student loan payers through some sort of Executive act, if only to keep the charade alive until the 2024 election. This is all the more reason why tomorrow’s ruling needs to be pointed, direct, and unambiguous in slapping down this abuse of power.

303 Creative v. Elenis
Five years ago the Court took on the case Masterpiece Cakeshop v. Colorado Civil Rights Commission which considered whether the defendant (CCRC) could require the plaintiff, Jack Phillips, the proprietor of Masterpiece Cakeshop, to create and decorate a customized wedding cake for a gay wedding. Dana provided coverage of the story. In that case, the Court declined to rule on whether a state regulation such as Colorado has which requires a business owner, Mr. Phillips, to provide a service in support of an event which violates his conscience thus infringes upon his freedom of speech, religion, and association. Instead, the Court engineered a narrowly-tailored 7-2 win for Mr. Phillips by finding that the CCRC failed to show neutrality in their decision to order Mr. Phillips to comply, with the CCRC having a record of statements and actions showing contempt and hostility to his religious beliefs. Justices Gorsuch, Alito, and Thomas signed on to a concurring opinion expressing regret that the Court failed to rule on the First Amendment implications of Mr. Phillips’ position.

So when the Court punted on the central issue of how to weigh First Amendment issues versus a client’s request for services, it was only a matter of time before they would be reviewing a similar case. This came with 303 Creative v. Elenis, in which another Colorado business owner, this time a graphic artist by the name of Lorie Smith, wishes to opt-out of participating in LGBTQ weddings (her business creates websites for organizing weddings) and has thus filed a preemptory challenge to the Colorado Anti-Discrimination Act (CADA). She has lost at both the district and circuit levels. The Supreme Court will rule only on her free speech claims — her free exercise of religion claim is not being reviewed by the Court — after a divided Tenth Circuit ruled that Ms. Smith’s services are so unique that her decision to deny them to LGBTQ clients leaves them without anywhere else to turn, a contention which the dissenting judge said would open the door to allowing government to compel messages from artists everywhere. Maybe the Chief Justice can find another way to split the baby, but it seems more likely that the Court is actually going to have to decide just how far government can go to force commercial artists to create speech with which they fundamentally disagree.

Have at it in the comments, you East Coasters and other assorted early risers. I’ll look forward to reading what you have to say tomorrow morning.

– JVW

[guest post by JVW]

In a decision that had generally been expected, but certainly was not a sure thing, the Supreme Court ruled that efforts by both Harvard and the University of North Carolina to use race as a determining factor in granting admissions were prohibited by the Equal Protections Clause of the Fourteenth Amendment. The decision split along the traditional ideological lines with the six Republican nominees in the majority and the three Democrat nominees in the minority. Associate Justice Ketanji Brown Jackson did not take part in the Harvard decision, recusing herself since she had previously served on the Harvard Board of Overseers.

One interesting aspect of this case is that it provided the public with a chance to peek under the hood of the Harvard admissions process. In the majority ruling, Chief Justice John Roberts described it as so:

At Harvard, each application for admission is initially screened by a “first reader,” who assigns a numerical score in each of six categories: academic, extracurricular, athletic, school support, personal, and overall. For the “overall” category — a composite of the five other ratings — a first reader can and does consider the applicant’s race. Harvard’s admissions subcommittees then review all applications from a particular geographic area. These regional subcommittees make recommendations to the full admissions committee, and they take an applicant’s race into account. When the 40-member full admissions committee begins its deliberations, it discusses the relative breakdown of applicants by race. The goal of the process, according to Harvard’s director of admissions, is ensuring there is no “dramatic drop-off” in minority admissions from the prior class. An applicant receiving a majority of the full committee’s votes is tentatively accepted for admission. At the end of this process, the racial composition of the tentative applicant pool is disclosed to the committee. The last stage of Harvard’s admissions process, called the “lop,” winnows the list of tentatively admitted students to arrive at the final class. Applicants that Harvard considers cutting at this stage are placed on the “lop list,” which contains only four pieces of information: legacy status, recruited athlete status, financial aid eligibility, and race. In the Harvard admissions process, “race is a determinative tip for” a significant percentage “of all admitted African American and Hispanic applicants.”

UNC has a similar screening process, with the applicant’s race being one of the earliest factors in the initial evaluation rather than as a secondary benefit used to supplement an otherwise qualified applicant’s case for admission.

The Chief Justice then outlines the long history of racial discrimination in the Reconstruction era and beyond, especially as to how it pertained to education. His narrative tells the story about ongoing attempts to end racial discrimination, and concludes strongly, echoing his famous dictum that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race”:

Eliminating racial discrimination means eliminating all of it. Accordingly, the Court has held that the Equal Protection Clause applies “without regard to any differences of race, of color, or of nationality” — it is “universal in [its] application.” For “[t]he guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color.”

I removed the citations in the above paragraph, but the last quote is from the majority decision in the 1978 Supreme Court case Regents of University of California v. Bakke in which hard quotas for minority student admissions were outlawed. And the Chief Justice’s final conclusion gets straight to the heart of the matter in a clear and understandable way:

Because Harvard’s and UNC’s admissions programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points, those admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause. At the same time, nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university. Many universities have for too long wrongly concluded that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned, but the color of their skin. This Nation’s constitutional history does not tolerate that choice.

I don’t really have the time or inclination this morning to slog through the dissents from the left-wing justices, so if anyone wants to take on that task it would be a great addition to the comments section.

– JVW