Final Day of Court Term Open Thread (But Not the Weekend Open Thread)
[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
Good night everyone. Looking forward to a robust discussion tomorrow.
JVW (1ad43e) — 6/29/2023 @ 9:25 pmJVW,
What a great overview of the Court’s business you’ve provided. Thank you.
Dana (560c99) — 6/29/2023 @ 9:30 pmAs A democrat all I can say is thanks republicans on the supreme court. We got a twofur! Blacks and latinx who were drifting away on the edges from democrat party thinking republicans aren’t so bad will now be back for “OUR” mutual protection. Also biden clinton wing of party is discredited once again with no answer to the question what are you going to do about it? Leaving AOC and the left to take over the democrat party as they know how to deal with the supreme court problem.
asset (e8efc7) — 6/29/2023 @ 9:38 pmSure, asset. Just keep believing that. Maybe THIS year will be when the revolution comes!
Kevin M (2d6744) — 6/29/2023 @ 10:15 pmThere we are with the “Latinx” nonsense again, asset. That’s a code word pretty much inviting every sane person to ignore your opinions.
JVW (1ad43e) — 6/29/2023 @ 10:19 pm@4 we are taking over the democrat party like the tea party/trumpsters from the donor class have taken over the republican party. If you wish to call it revolution ok by me. The dog keeps catching the car. Last year supreme court ruling on abortion infuriates women smashing the red wave in 2022. Now blacks and latinx are infuriated and ready to vote along with angry women in 2024. What the gun nuts did to democrats will be child’s play to what enraged democrats and former democrat independents will do to republicans in 2024.
asset (e8efc7) — 6/29/2023 @ 11:13 pmI’m not looking forward to the avocado wars. Toast or guacamole, lime juice will flow on the streets.
nk (e737f1) — 6/30/2023 @ 5:04 amThe inherent racism of the leftist party for all to see.
NJRob (eb56c3) — 6/30/2023 @ 6:11 amAll of these Supreme Court victories are entirely dependent upon recent election results. Contrary to what some say, for example, there is no “broad consensus” in favor of religious liberty on the Court. If the 2016 election had gone differently, these cases, too, would have come out differently.
Mike P. (b8fb76) — 6/30/2023 @ 7:28 amThese cases would not have been decided the same with other nominees. We see that with how Biden’s and Obama’s nominees voted.
NJRob (98da76) — 6/30/2023 @ 8:21 amI’m disappointed to see that Justice Kagan joined the minority in the Nebraska case. I thought that she might see the virtue in blocking the President from such an obnoxious power grab, and I thought she might strategically believe it was in her long-term interest to play the moderate this one time. I wonder if the decision in Dobbs and other recent cases has hardened her progressivism and driven her into the Sotomayor camp. What a pity.
JVW (1ad43e) — 6/30/2023 @ 8:55 amAbsolute banger of the two cases.
You can’t be forced to support causes you oppose.
and…
The President does not have the power of the purse.
whembly (5f7596) — 6/30/2023 @ 9:21 amI would forgive the student and take the money out of any future federal funds going to his school. Seeing as it was the school which got the money in the first place.
nk (e737f1) — 6/30/2023 @ 9:26 amFINALLY, the Supreme Court has done its job and upheld the 1st Amendment. I hope Masterpiece and others can sue for damages due to the harm inflicted upon them by malicious private and government individuals.
NJRob (98da76) — 6/30/2023 @ 8:20 am
Reposted where I thought I had it.
NJRob (98da76) — 6/30/2023 @ 9:32 amJVW,
You give Kagan too much credit. She’s a leftist first and foremost.
NJRob (98da76) — 6/30/2023 @ 9:33 amCongress needs to pass a law to repermit discharging student loans through bankruptcy. The law guaranteeing unlimited loans through no chance of discharge started this obscene cost spiral for “higher education.”
NJRob (98da76) — 6/30/2023 @ 9:35 amI would forgive the student and take the money out of any future federal funds going to his school. Seeing as it was the school which got the money in the first place.
I’d be all for a revision to BK law that allowed discharge of student loans, with half for the discharged debt recoverable from the institution.
But that would take new law, or a terribly activist court.
Kevin M (2d6744) — 6/30/2023 @ 9:36 amA snippet from SCOTUSblog’s liveblog on the Colorado case:
But that is exactly what the Left wants.
Kevin M (2d6744) — 6/30/2023 @ 9:39 amnk: I would forgive the student and take the money out of any future federal funds going to his school. Seeing as it was the school which got the money in the first place.
NJRob: Congress needs to pass a law to repermit discharging student loans through bankruptcy. The law guaranteeing unlimited loans through no chance of discharge started this obscene cost spiral for “higher education.”
I agree in part with both ideas. What I would like to see is that the university needs to bear a certain chunk of the loan guarantee, say 50%. Thus, if the student defaults on the loan, the university loses out on that money too. If the taxpayers of the state are stupid enough (and here I’m looking at my fellow Californians) to then replenish the coffers, then that’s on them.
I guarantee you that if universities are on the hook for financial losses for students who don’t find gainful employment, they are going to take a long hard look at allowing students to have a six-year undergraduate experience or letting students pursue meaningless graduate degrees. They might even have to question how many make-work jobs they have added in administration.
JVW (1ad43e) — 6/30/2023 @ 9:44 amIs there a case where it was established that states do not have standing to insist that the Constitution be followed?
Since the Constitution is a contract, where the states surrender sovereignty to a federal union in return for benefits and assurances, why do they lack standing when they allege that agreement is being violated?
I get it that mere citizens don’t have such standing — they are not signatories — but the states should be able to seek redress in court.
Kevin M (2d6744) — 6/30/2023 @ 9:45 amThey might even have to question how many make-work jobs they have added in administration.
Since the administrators will be doing the questioning, that won’t be the first place they look to cut.
Kevin M (2d6744) — 6/30/2023 @ 9:47 amBut that would take new law, or a terribly activist court.
It has to be a new law, duly passed by Congress and signed by the President. Progressives are going to hate the part where the colleges have to make realistic decisions about a student’s ability to finish their studies and apply their degrees, but perhaps — just perhaps — this can be coupled with a very limited debt forgiveness program. Not up to $20,000 per student, but maybe programs using tax incentives to encourage companies to help students dedicate a portion of their paychecks to loan payback by offering matching funds or something.
JVW (1ad43e) — 6/30/2023 @ 9:48 amAnother option is to reclassify student loans as priority debts and allow students to repay their student loans over a 3-5 year period in a Chapter 13 bankruptcy the way they repay federal taxes.
DRJ (fd3827) — 6/30/2023 @ 9:50 amMaking the debt priority would make students have to repay them. But then bankruptcy gives them a way to do it.
DRJ (fd3827) — 6/30/2023 @ 9:51 amI would have dismissed the Colorado case because there was no case or controversy. The pixie was not designing wedding web sites. The state had not moved against her. It was a law school hypothetical on “stipulated” facts. I thought federal courts did not do that.
nk (2be170) — 6/30/2023 @ 9:53 amI would have dismissed the Colorado case because there was no case or controversy. The pixie was not designing wedding web sites. The state had not moved against her. It was a law school hypothetical on “stipulated” facts. I thought federal courts did not do that.
Yeah, I was also surprised to read that Ms. Smith was able to file a “pre-enforcement challenge” to the law. I wonder if that’s a Colorado thing, and since it is Colorado law the federal courts felt obligated to allow it. In some ways I can see the wisdom in this, but I can also imagine the unmitigated mischief that could be done in its name.
JVW (1ad43e) — 6/30/2023 @ 10:12 amAnother option is to reclassify student loans as priority debts and allow students to repay their student loans over a 3-5 year period in a Chapter 13 bankruptcy the way they repay federal taxes.
Oh, that’s an interesting idea. And of course the debtors would have to be reminded that filing for bankruptcy will negatively impact their credit and could prevent them from receiving a mortgage loan or a business loan.
JVW (1ad43e) — 6/30/2023 @ 10:14 amThe NRO piece on the Colorado ruling contrasts Justice Sotomayor’s dissent with the blistering response from Justice Gorsuch:
Sotomayor:
Around the country, there has been a backlash to the movement for liberty and equality for gender and sexual minorities.
New forms of inclusion have been met with reactionary exclusion. This is heartbreaking. Sadly, it is also familiar. When the civil rights and women’s rights movements sought equality in public life, some public establishments refused. Some even claimed, based on sincere religious beliefs, constitutional rights to discriminate. The brave Justices who once sat on this Court decisively rejected those claims.
Gorsuch:
It is difficult to read the dissent and conclude we are looking at the same case. Much of it focuses on the evolution of public accommodations laws, and the strides gay Americans have made towards securing equal justice.
And, no doubt, there is much to applaud here. But none of this answers the question we face today: Can a State force someone who provides her own expressive services to abandon her conscience and speak its preferred message instead?
When the dissent finally gets around to that question— more than halfway into its opinion—it reimagines the facts of this case from top to bottom.
I know who I think has the better argument, grounded in legal theory rather than empty emotionalism.
JVW (1ad43e) — 6/30/2023 @ 10:22 amThat wouldn’t be a bad thing for people to realize, since any big debt can negatively impact credit.
But in some jurisdictions, there are special credit opportunities for debtors that have successfully completed a Chapter 13 bankruptcy. They have to repay a substantial portion of the debt to get a discharge and that opportunity, but large creditors realize that repaying debt in Chapter 13 is better for creditors than liquidating it in Chapter 7.
DRJ (fd3827) — 6/30/2023 @ 10:26 amCurrent CNN headline recapping today’s Court events:
Court rejects student loan forgiveness, limits LGBTQ rights [bolded emphasis added]
Current Fox News headline recapping today’s Court events:
Supreme Court rules in favor of Colorado graphic designer who refused to create same-sex wedding websites
I have my problems with Fox News, but honestly, which headline is a more accurate and neutral presentation of the ruling? CNN is just garbage these days, and with Chris Licht gone it seems they are scurrying back towards the whole MSNBC orbit. What a wretched organization.
JVW (1ad43e) — 6/30/2023 @ 10:29 am“Supreme Court rules in favor of Colorado graphic designer who refused to create same-sex wedding websites”
Nobody asked the graphic designer to create same-sex wedding sites. The Fox headline is a complete lie.
Davethulhu (499600) — 6/30/2023 @ 10:33 amThis is good news:
Many persons, convicted of nonviolent felonies (like fraud, bribery, political corruption, etc.) also should have their Second Amendment rights restored.
Rip Murdock (102247) — 6/30/2023 @ 10:40 amNobody asked the graphic designer to create same-sex wedding sites. The Fox headline is a complete lie.
That’s ridiculous. She designed websites for weddings. The state of Colorado had a law saying that she would have to design a website for a same-sex wedding if she were asked to do so. She sued preemptively, even though she hadn’t yet had a LGBTQ client.
Guess what, Davethulhu? By any known understanding of the English language, Lorie Smith “refused to create same-sex wedding websites.” The Fox News headline is accurate, no matter how much you try to parse every single word to claim otherwise.
JVW (1ad43e) — 6/30/2023 @ 10:47 am“She designed websites for weddings.”
She has never created a wedding website.
Davethulhu (499600) — 6/30/2023 @ 10:55 amSo you’re moving from “nobody asked her to create a same-sex wedding website” to “she hadn’t yet created any sort of wedding website,” even though she had declared that she intended to move her business in that direction and was concerned about the state regulations she would have to adhere to. Honestly, Davethulhu, I think you’re grasping at straws here, and I see no need to continue in this absolutely pointless back-and-forth.
JVW (1ad43e) — 6/30/2023 @ 11:06 am“So you’re moving from “nobody asked her to create a same-sex wedding website” to “she hadn’t yet created any sort of wedding website,” even though she had declared that she intended to move her business in that direction and was concerned about the state regulations she would have to adhere to.”
I’m not moving anywhere. The first statement is a refutation of Fox’s headline. The second statement is a refutation of your claim.
She has suffered zero harm and is lying about the circumstances.
Davethulhu (499600) — 6/30/2023 @ 11:16 amLet’s cut to the chase here: if she were sued, should be required by law to make the website, or not? There is no shortage of litigious activists in Colorado, as everyone knows who has followed these cases. The standing issue is a sideshow, the liberal lower courts (which ruled against her) found standing.
Mike P. (b8fb76) — 6/30/2023 @ 2:39 pm@8 don’t like real politick?
asset (adff68) — 6/30/2023 @ 3:09 pmDon’t kill anybody for a few days. See what it feels like.
nk (f36d54) — 6/30/2023 @ 3:52 pmJVW (1ad43e) — 6/30/2023 10:47 am
This is comparable to someone declining or refusing to ghostwrite a book, wit=h the only difference being the number of clients, advertising to the public in general, and the amount of individual attention each job takes
Sammy Finkelman (f4cd04) — 6/30/2023 @ 3:55 pmShe is discriminating against ideas, not people.
Sammy Finkelman (f4cd04) — 6/30/2023 @ 3:57 pmThere was no blushing bride, who was devastated, crushed, and also dismayed, that she and her partner will now have to live in sin, without benefit of wedlock, because they could not have the wedding website they wanted, either.
nk (f36d54) — 6/30/2023 @ 4:27 pmLet’s quickly dispense with a new talking point being bandied around left-wing sites regarding the Colorado case: that Lorie Smith made up the alleged request of a gay couple to create a website for their wedding. This is apparently breaking news over at The New Republic (another formerly respected news outlet that is now a steaming pile of garbage). Here is what Caroline Downey reports over at NRO [as usual, bolded emphasis added by me]:
Is this the basis of your claim that nobody had asked Ms. Smith to create a website, Davethulhu?
JVW (1ad43e) — 6/30/2023 @ 6:03 pm“Is this the basis of your claim that nobody had asked Ms. Smith to create a website, Davethulhu?”
Yes.
“Smith and ADF were prevented from running a background check on Stewart to verify the authenticity of his request because it could have put them in conflict with the existing law, he added.”
What law? The lawyer is lying.
Davethulhu (499600) — 6/30/2023 @ 7:19 pmThe case was decided on the stipulated facts.
nk (f07539) — 6/30/2023 @ 7:33 pmMeanwhile, President Demagogue (second of his name) is comparing the student debt relief with the Paycheck Protection Program, in which “debts” were forgiven. Those damn rich people with their businesses and employment!
How did that happen? Because the law said upfront that, given certain conditions, the debts would be forgiven. They didn’t have to do that, of course, they could have laid everyone off and let them get UI.
I’m going to give Biden the benefit of the doubt here and say he’s just too senile to know what nonsense he spews.
Kevin M (2d6744) — 6/30/2023 @ 11:45 pmThe case was decided on the stipulated facts.
Which means that the Colorado Speech Enforcement Board was party to the case.
Kevin M (2d6744) — 6/30/2023 @ 11:47 pm@46 biden and the clinton wing of the party are in a tough spot. AOC and the left are calling them out! The donor class tells biden and the DNC we fund you to whine not act! Your job is to protect us from AOC and the left taking over the democrat party. Not what the conservatives on the supreme court does and keep pushing gun control for the black community. We don’t want an armed black community shooting back at racism!
asset (c2eed7) — 7/1/2023 @ 12:50 amJVW — both are true.
In this case, the right of a craftsperson to not be compelled to use their craftwork to endorse messages they do not support conflicted with the right of a gay person to participate in the marketplace on equal terms to a straight person. The court weighed these two rights against each other in light of the constitution, and found that the first amendment requires the court to protect the right of the craftsperson — but that *still* has the effect of reducing the ability of LGBT people to participate fully in the marketplace.
Which way you focus depends on who your audience is and what you care more about.
aphrael (b82c35) — 7/1/2023 @ 8:30 amWhat law? The lawyer is lying.‘
It’s rather Trumpian of you to dismiss everyone who makes assertions contrary to your preferred narrative as being liars.
JVW (22fdb2) — 7/1/2023 @ 8:34 am> even though she had declared that she intended to move her business in that direction and was concerned about the state regulations she would have to adhere to.
She had not yet moved her business in that direction, and had not yet been subject to any sort of state action. The entire case was *speculative*. Under traditional standing rules there was no actual case or controversy.
I have super mixed feelings about the decision in the case — as a writer, I totally get it and agree with the outcome; as a supporter of the first amendment i think it’s the right decision even though i viscerally dislike it, as a gay man i feel like it cements the fact that i *am* a second-class citizen and always will be.
But as a *lawyer* i’m absolutely appalled — not at the *outcome* but at the fact that the court gave an advisory opinion on a speculative hypothetical. That’s something the American court system is *not* supposed to do, and it really reinforces that this is the most activist court of my lifetime, reaching out to decide non-cases in order to push their vision of the law rather than waiting for *actual* cases to bring the question to them.
aphrael (b82c35) — 7/1/2023 @ 8:35 amThey had no problems with a rigged deck while they were raking in the chips at the District Court and the Tenth Circuit. Only when Gorsuch reshuffled the cards.
I’ve been to Colorado. Well, okay, Aspen. The first thing you see getting off the plane is ads for escort services. It’s never been anti-discrimination. It’s always been a tourist attraction.
nk (4c700b) — 7/1/2023 @ 8:36 amMeanwhile, President Demagogue (second of his name) is comparing the student debt relief with the Paycheck Protection Program, in which “debts” were forgiven. Those damn rich people with their businesses and employment!
That’s been their strategy from the get-go. Here’s what I wrote three weeks ago:
They are absolutely shameless in their demagoguery.
JVW (44b83d) — 7/1/2023 @ 8:37 amWe cross-posted, aphrael. And I more than agree with you on the jurisdictional issue. Case and controversy is a Constitutional requirement, and they taught us in law school that the parties cannot agree to grant the federal courts subject matter jurisdiction.
nk (4c700b) — 7/1/2023 @ 8:41 amI’ve been to Colorado. Well, okay, Aspen.
I would argue then that you have not been to Colorado. It’s like saying that you’ve stayed at the The Greenbrier Hotel, therefore you’ve been to West Virginia. Technically true, but not at all accurate.
JVW (21a22b) — 7/1/2023 @ 8:48 amAspen is what you get when you teach San Francisco and Dallas how to ski. Yet it is infinitely better than Vail.
JVW (9f9237) — 7/1/2023 @ 8:49 amDo you have the same issue with the Scopes Monkey Trial?
NJRob (b4dfd1) — 7/1/2023 @ 8:53 amNJRob — it’s been more than a decade since i’ve read anything about the scopes monkey trial, i’ve *never* analyzed it as a lawyer, and my memory isn’t good enough for me to analyze the question of standing in that case without spending the morning doing significant research that I simply do not have the time or inclination to do. So my answer to your question is that I don’t know.
But I’ll remind you that when the supreme court overturned proposition 8 in california part of my response was to be furious at them for the way they changed california’s ballot proposition system, ignoring the state court’s interpretation of how it should work, in a way that weakened it. I’m quite able to seperaet my legal opinions from my political ones, and consider the ability to do that to be a basic requirement for a lawyer.
aphrael (4c4719) — 7/1/2023 @ 9:22 amI’ll gladly vouch for aphrael being a highly-principled liberal.
JVW (7d55ed) — 7/1/2023 @ 9:24 amI’m wondering if the college affirmative action cases can be used to reconsider the various anti-discrimination laws.
Rip Murdock (102247) — 7/1/2023 @ 9:30 amBoth Gorsuch and Sotomayor spent more than a little time talking about the modern breadth of “public accommodation”, expanded from the common law “inns, carriers, and smiths”. I think we might see a case like that, and it might involve the traditionally consensual relationships such as doctor or lawyer
nk (4e46e0) — 7/1/2023 @ 9:51 amI think you are right about people who identify as Latinx and/or the people who use the word “Latinx”. The others just think ay que pocho when they hear someone say Latinx
steveg (f4a1e2) — 7/1/2023 @ 12:32 pmI’ve been to Colorado. Well, okay, Aspen. The first thing you see getting off the plane is ads for escort services.
Here in ABQ, it’s personal-injury lawyers.
Kevin M (2d6744) — 7/2/2023 @ 1:18 pmHere in ABQ, it’s personal-injury lawyers.
Kevin M (2d6744) — 7/2/2023 @ 1:18 pm
I’ve noticed that Reno, Las Vegas, and Los Angeles are all full of these ads. There’s something distasteful about it.
norcal (8b5267) — 7/2/2023 @ 1:22 pmWhich way you focus depends on who your audience is and what you care more about.
I think you’re being bit unfair here. Would you demand that Peggy Noonan write speeches for AOC? Or Michael Moore direct movies attacking “welfare queens.” This is what happens when you start forcing people to speak as you think they should. Judging by a quick review of internet sites, there is no shortage of web designers willing to post anything.
I agree this was a contrived case, but so was Masterpiece Bakeshop as those demanding a cake picked the shop because they already knew of the owner’s attitude. Both were “test cases”, which are as old as the Republic and often contrived.
Kevin M (2d6744) — 7/2/2023 @ 1:26 pmNote also that the Court did not use religious preference as an argument. They didn’t need to reach that to rule (9-0).
Kevin M (2d6744) — 7/2/2023 @ 1:28 pmThere’s something distasteful about it.
Coincidentally, there is a severe doctor shortage in ABQ. It may have to do with the plaintiff’s bar owning the legislature.
Kevin M (2d6744) — 7/2/2023 @ 1:29 pm