In a headline in yesterday's front page of the Denver Post, one beheld:
With the named NY Times writers (Adam Liptak and Alicia Parlapiano) trying to claim Chief Justice John Roberts is trying to steer the court -namely his 5 conservo comrades- into being well, more judicious. This as opposed to the "take no prisoners" approach of Clarence Thomas -perhaps the least qualified justice in American history. (See Jill Abramson and Jane Maher's book, 'Strange Justice' on how Thomas and his shameless defenders got to turn the truth on its head and character assassinate Anita Hill. Knowing all this now, Ms. Hill was correct in her testimony and the turd never should have been an SC Justice. )
303 Creative vs. Elenis:
In 303 Creative vs. Elenis, the Trumper conservative supermajority on the Supreme Court ruled, 6-3, that a web design company could deny its hypothetical website services to any hypothetical same-sex couple. For the first time in our history, the Supreme Court granted a hypothetical business open to the public a constitutional right to discriminate against hypothetical customers. Coming down on the side of a bigoted kook (Lorie Smith) who hadn't demonstrated a scintilla of "injury" or "harm" to qualify as a viable party.
The web design company, 303 Creative LLC, had never provided wedding websites, but its owner, Lorie Smith, wanted to do so. In other words a hypothetical web site. She also insisted she wanted not to have to provide it for any hypothetical gay couple that might want it. This is as simple a way to sum this bunkum case up as feasible.
Let's try to grasp this in more depth. Judges, whether on the Supreme Court or any other venue, are there to resolve disputes between two sides each of whom claims to be harmed. The Supreme Court on its own website testifies to this standard, i.e.
"The Court does not given advisory opinions. It is limited to deciding specific cases."
Thus, to get before the Supreme Court (and most cases do not) the parties must demonstrate an actual injury which needs to be resolved. The absence of such injury is pronounced not only in this case, but in the one I will examine next to do with the Student Loan decision.
To fix ideas, in Brown vs. Board Of Education, Oliver Brown brought his case as the injured party because his school age daughter was being forced to bus 9 miles away to school instead of going to the one nearest her home. The Supreme Court then rightly found:
The segregation of public education based on race instilled a sense of inferiority that had a hugely detrimental effect on the education and personal growth of African American children.
But in the 303 Creative case no such injury or harm was displayed by Lorie Smith. The Supreme Court was not actually resolving a dispute between 2 parties. Instead the Trumper super majority functioned as a legislative body, pushing right wing policy outcomes over the facts at hand.
Again, Lorie Smith hadn't actually designed a single, solitary website. It was purely an idea in her mind. She just didn't want to have to design one for any hypothetical gays if they ever asked to do so. As Chris Hayes bluntly put it in his ALL In episode on Friday:
"This is a frankly ridiculous case. This woman who might want to start a web design company some day wants the right to refuse the service to a hypothetical gay couple- should they ever ask for one."
Hayes is correct. No one asked the woman to make a web site. It was as if this bogus hypothetical case was moved up onto the docket just so the extremists could rule on it to undermine Colorado's Anti-Discrimination law. Thereby permitting all the state's religious wackos and bigots to run wild in their denials of service.
In Biden v. Nebraska Et al : Two lawsuits were filed challenging Biden's Student loan forgiveness effort. Under the Biden plan, borrowers holding federal student-loan debt would have been eligible for up to $10,000 forgiven, and those who received federal Pell grants would have been eligible for up to $20,000. In total, the plan would have canceled an estimated $430 billion in student debt and eliminated the entire balances of as many as 20 million people.
One of the lawsuits filed against the plan was brought by two individuals who did not qualify for relief under the Biden program. The Supreme Court unanimously found that they lacked standing to sue because striking down the Biden program would not benefit them. The court was correct here. The other lawsuit was brought by Missouri and five other conservative states, with Missouri the primary litigant - and a loan agency located there (Mohela).
But again, despite the Court ruling out one lawsuit for not having standing, the case was still bogus given there was no one injured. Mohela, the loan agency, wanted no part of it and indeed, did not file or solicit - and had nothing to do with the case at all. It was all propelled by the state of Missouri. And even Amy Coney Barrett pressed the state solicitor general on why no one from Mohela appeared in court. I.e.
Coney Barrett: Why is Mohela not here in court?
Solicitor: Mohela isn't here because it's not necessary. The state is asserting its interest because the state has authority to speak for Mohela.
Coney Barrett: Then why didn't the state just make them come? If Mohela is an arm of the state.
Solicitor: That's a question of state politics.
The exchange prompting ALL In host Chris Hayes to erupt:
"Wh-...Whoa! State politics? That's because there is no actual dispute or harm or injury so you conservative states just invoke nonsense because you don't like the plan! You want the Trump super majority on the court to nix it."
Basically true, given no one is actually harmed. And since Mohela backed out of the case there was no one left of standing. So Missouri and the other conservo states ought to have been given the heave-ho too. But wait! No one harmed? What about U.S. taxpayers left on the hook? As Hayes aptly observed:
"You cannot just sue the government because you don't like how it's spending your money. This is a basic principle of standing, otherwise literally every cent the government spends would spawn an avalanche of lawsuits."
Here's the real kicker, one analysis reported in The American Prospect found that Mohela could actually claim injury if the Biden plan wasn't enacted. They would have made money on it.
WSJ editors crowed (p. A12, Saturday. Biden Loses Again at the High
Court ):
"The latest rebuke arrived Friday when a 6-3 majority cancelled his unilateral decision to cancel $430 billion in student debt in Biden v. Nebraska. It’s hard to understate the importance of the case for the Constitution’s separation of powers."
But this crowing is off base, and as misplaced as the 303 Creative atrocity by the same conservo nuts. As Hayes pointed out Friday night, a federal statute, the Higher Education Relief Opportunities for Students Act of 2003 (HEROES Act), explicitly authorizes the Secretary of Education to “waive or modify” student loan obligations". That is exactly what President Biden did in his loan forgiveness program, but the court, ruling 6-3, decided that he lacked authority under the law to take this step, which would have helped more than 40 million people.
Again, as Hayes pointed out, the Extreme court interjected itself without an iota of basis (or "grieved" party standing) to adopt a legislative and advisory position and force their own policy into law. If anything, these scoundrels torched any separation of powers by arrogating to themselves not only executive authority but congressional as well. One unnerved student, quoted in The Washington Post (see first link at bottom) exclaimed about Republicans:
“They seem to care more about the culture war than everyday people,”
But this is exactly why voting for Dems is so critical. As one WaPo commenter put it:
"Just a reminder, kids, this is why it's so important to vote - and by that I mean for Democrats! Don't get caught up in debates over Biden's age, that he hasn't done enough or there's a better third party candidate. Be smart! We don't want a repeat of 2016."
The Affirmative Action Rollback:
Hayes also, on Monday, featured Frederick I. and Grace Stokes Professor of Law at NYU Melissa Murray who was aghast at the rejection of Affirmative Action decision. The decision Thursday blocking higher educational institutions from using affirmative action policies when considering student applications will have catastrophic effects at a time when the nation is still grappling with generations of racism. As Prof. Murray informed Chris Hayes, this Court feels it can simply snap its fingers and call a halt to racism. "Okay, we've seen and heard enough, it's time to move on!" But that ignores the endemic problems.
Earlier Court rulings had preserved the right of colleges and universities to consider race and ethnicity as part of a comprehensive, individualized assessment in deciding whom to admit. Those decisions rightly recognized that colleges and universities benefit from a diverse student body having more vibrant classroom discussions and learning skills that will help them thrive in a multiracial society.
In this case, the Court instantly has rolled back what was deemed at least a judicious access to college, if not a right. It now expects universities to adopt proxy means for gaining what the affirmative action race -based decisions once provided. But this will be well night impossible to duplicate.
One alternative is to use to socioeconomic status as an alternative to race, given the significant overlap between racial minorities and low-income students. But it’s a flawed proxy. The reason is there are more low-income white households than there are low-income Black and Hispanic households combined. So whites will still prevail in the end.
Another
approach guarantees admission to top graduates from every high
school. That may yield more Black or Hispanic admissions only if the
schools are dominated by such students. But they aren't so diverse high schools don’t move the
needle much.
In the end, as Prof. Murray noted, the Court hurled us back into a racist, discrimination- based past by 6-3 decree. Was there injury that was redressed? No, not at all. The injured party, millions of African-American HS students, remain injured - in harm's way in terms of climbing the ladder to societal and income advancement. The twisted decision overturned decades of legal precedent that boosted efforts by higher education institutions to diversify their student bodies.
In the words of new Justice Ketanji Brown - Jackson:
"With let-them-eat-cake obliviousness the majority pulls the ripcord and announces 'Color blindness for all by legal fiat!' But deeming race irrelevant in law does not make it so in life."
See Also:
‘I have no hope’: Student borrowers devastated by Supreme Court ruling
While the extremist six in the majority on the Supreme Court once again asserted their will upon the majority of the populace Friday, we can at least take solace that the minority three have the power to shine a light on the overreach.
Excerpt:
For a brief moment this summer, after the Supreme Court declined to overthrow democracy and invite Donald Trump to steal the 2024 election, there was a surge of hope that the six justices appointed by Republican presidents were starting to dial back their radicalism in the face of the massive public backlash. For years, the Supreme Court has enjoyed a measure of undeserved goodwill from the public, mostly because people don't pay close attention and assume the court is still in the business of upholding human rights instead of decimating them.
After the Supreme Court overturned Roe v. Wade last year, however, voters started to wake up to the fact that a well-funded right-wing movement, led by the Federalist Society, had stacked the court with a bunch of hacks who care little for law or precedent. Added to the pile were well-publicized stories highlighting the corruption of justices like Clarence Thomas and Samuel Alito, who shamelessly enjoy free vacations funded by right-wing billionaires. The result is that only 31% of voters approve of the Supreme Court, according to an NBC News poll, which is down from 44% in January 2021.
Excerpt:
Anyone notice what the Supremes have been up to lately? The Republican super majority on the court voted to overturn Roe v. Wade more than a year ago, though all those "honorable" men plus one deeply religious woman who voted to do so had testified during their confirmation hearings that they believed a woman's right to choose was "settled law." Those lies notwithstanding, they unsettled it. They're unsettling lots of things, including the majority of Americans, including me. I'm mad as hell, quite sad. Very upset.
Really, can you believe this shit? I can. Along with a voting majority of Americans, I saw it coming from a long way off.
Excerpt:
The Supreme Court wrapped up this term with a pair of completely arbitrary and capricious rulings, based on lies and controversies manufactured by far-right political actors, restricting LGBTQ protections and striking down President Joe Biden’s student loan forgiveness program. Both cases were deeply flawed procedurally, but that wasn’t going to stop the six far-right extremists on the court from imposing their will. This illegitimate court has once again wreaked untold future damage on this country. It has to be stopped.
In 303 Creative LLC v. Elenis, the court took on a case conjured up by the far-right Christian group Alliance Defending Freedom based on a lie, and then, in the words of Justice Sonia Sotomayor in her dissent, used that case to “for the first time in its history, [grant] a business open to the public a constitutional right to refuse to serve members of a protected class.” That opens the door for public businesses to decide they don’t want to serve LGBTQ couples, or interracial couples, or disabled couples, or members of churches they don’t like.
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