[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.