Scott Gurvey's Public Offerings

---

As is their habit, the reporters who cover the Supreme Court of the United States wrote summarizing the court’s decisions for the term that ended in of June. Some surprised me in concluding that this term was less traumatic than the last. Those of that view concluded that the Court was mindful of the decline in public respect for the institution that followed the 2022 decision, Dobbs v. Jackson Women’s Health, overturning the fifty-year-old precedent holding that women had the right to control matters of their own reproductive health.

It is true, the decisions of the term just ended avoided the use of the term “overruled” the conservative supermajority applied with such glee in Dobbs. But I see little to cheer in their recent work. They have continued to erode at rights Americans have taken for granted. And they do with without regard for precedent, without deference to the elected branches, and without consideration for the principle that their jurisprudence be as limited as possible. Instead, they have set themselves up as the most powerful branch of government, the final arbiters of the most fundamental elements of our social intercourse. We have entered the age of SCOTUS uber alles.

Public Accommodation

In the wake of 303 Creative LLC v. Elenis civil rights organizations such as GLAD and the ACLU emphasized the narrowness of the court’s ruling, which for the first time authorizes discrimination against a protected class in contravention of state public accommodation laws. In 303 Creative, the court allowed a website designer to refuse to create same-sex wedding websites because doing so would be inconsistent with her opposition to same-sex marriage.

These organizations point to the Court’s focus on the “customized” nature of the services provided by the website designer and her intent to express her own personal views regarding marriage through the websites that she creates for couples. The Court advises that the expression element makes this a freedom of speech issue, and it conspicuously avoids the religious issue.

But the expression of personal beliefs is in no way confined to providing customized services. State nondiscrimination laws typically cover not only public accommodations like the website design business in 303 Creative but also employment and housing too. Housing accommodations are a consequential and ready example of a cookie-cutter service that might implicate not only constitutionally protected freedom of expression, which formed the basis for the decision in 303 Creative, but also freedom of association and freedom of religion that are likewise protected by the First Amendment. The Court now appears to have opened the door to sanctioning this very sort of discrimination, threatening to wipe out a large swath of hard-won state nondiscrimination protections for the LGBTQ community and decades of apparent gains.

For instance, a landlord might assert that they have no problem renting to a single person who happened to be a member of the LGBTQ community. They might even go as far as to state that they would rent to someone in a relationship so long as the couple maintained separate residences — even though such a condition would inflict both dignitary and financial harm on the same-sex couple while redounding to the landlord’s obvious financial, not to mention legal, benefit.

And there is no reason to believe that discrimination would be limited to permanent forms of housing such as rentals or home sales. Similar claims could be made by innkeepers, Airbnb hosts and others operating more temporary forms of lodging. What’s more, the LGBTQ community is not the only segment of the population potentially affected by this decision, as unmarried different-sex couples, interracial couples and others could find themselves the targets of discriminatory treatment as well.

One would think the LGBTQ community would be outraged over this. At the very least, the Court has guaranteed a plethora of cases trying to expand on 303 Creative will be filed in the years ahead. And the Court will have to revisit the matter and repeatedly sit in judgment.

Congressional Maps

How about Moore v. Harper you ask?

In Moore, the Court rejected a crazy legal theory that would have radically reshaped how federal elections are conducted by giving state legislatures largely unchecked power to set rules and to draw congressional maps warped by partisan gerrymandering. The vote was 6 to 3. All three liberal justices, Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson as well as conservatives Brett M. Kavanaugh and Amy Coney Barrett joined Chief Justice John G. Roberts’s majority opinion. The Constitution, Roberts wrote, “does not exempt state legislatures from the ordinary constraints imposed by state law.” Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch dissented.

It seems like a clear victory for the liberals. But look closer. The case concerned the “independent state legislature” theory. It is based on a reading of the Constitution’s Elections Clause, which says, “The times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof.”

Proponents of the strongest form of the theory say this means that no other organs of state government — not courts, not governors, not election administrators, not independent commissions — can alter a legislature’s actions on federal elections. Chief Justice Roberts rejected that position. “The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review,” he wrote.

The ruling soundly dismissed the theory, one that an unusually diverse array of lawyers, judges and scholars across the ideological spectrum viewed as extreme and dangerous. Adopting the theory, they warned, could have profound consequences for nearly every aspect of federal elections, including by erasing safeguards against partisan gerrymandering and curtailing the ability to challenge voting restrictions in state courts.

Significantly, it would also have curtailed the reach of the federal courts. Including the Supreme Court itself. So, this decision increased the power of federal courts in the process, allowing them to second-guess at least some rulings of state courts based on state law. “This gives the U.S. Supreme Court the ultimate say over the meaning of state law during an election dispute,” Richard L. Hasen, a law professor at the University of California, Los Angeles, wrote in a blog post.

Even the Liberals

The pattern is repeated in other cases this term where the court’s three liberal members were in the majority, including cases on the Voting Rights Act and immigration.

In Allen v. Milligan the Court upheld Section 2 of the Voting Rights Act. This 5-4 decision shocked most observers. Chief Justice Roberts, who has been eviscerating much of that law ever since he was appointed to the Court, wrote the majority opinion. He was joined by Sotomayor, Kagan, Jackson, and Kavanaugh.

This strange coalition sent Alabama’s 2022 congressional district map back for revisions, upholding a power court finding that the map probably violated the act’s prohibition against racial discrimination. In his writing, Robert made it clear that for whatever remains of the Voting Rights Act, it will be reviewed on a case-by-case basis by the federal courts.

In United States v. Texas a majority reversed lower courts and held that the Executive Branch has the power to promulgate guidelines setting immigration policy and that Texas (joined by Louisiana) could not sue. This was a complicated legal argument over the issue of standing, which is generally read, by plain spoken people like me, as saying you can’t sue on speculation, you must have skin in the game.

Justice Alito wrote a bitter dissent. Justice Kavanaugh wrote the opinion of the Court. But there were several complicated qualifications with the language from the other justices. The net result is that nothing has been solved and, once they can demonstrate some actual damage caused by the guidelines, Texas and Louisiana will be back in court.

Through the term we have repeatedly seen the Court solidifying its position as the most powerful branch of government. How it has reacted to criticism considering the ethics of its members is additional evidence of this trend, which I will address in a future post. We truly live in an era of SCOTUS uber alles, the Supreme Court of the United States above all.

#####