One of the big things that seems to be here is people seem to want to take 'constitutional' and 'legal' to mean good. They aren't synonyms. Things you can like and policy positions you support can be illegal and unconstitutional just as the inverse can be true.
More importantly, the path of how you get to those things is hugely important and just because there's an outcome you like doesn't mean you can use the path that was taken to get there.
This. It drives me crazy when progressives can’t distinguish the legal versus the policy question. AOC in Josh’s example is a great case in point. It just shows she’s not thinking, and for progressive public officials to repeatedly err like this is just irresponsible and at times embarrassing. I’m sorry the Court isn’t supposed to legislate from the bench to give you your preferred policy outcomes. But part of being a good politician is framing the fallout in a way that is good for the rule of law and thus for the country. It’s certainly not always easy to deal with the fallout, but if you want politics to be easy, you’re in the wrong profession.
A friend of mine is a Hebrew - English translator, and some years ago a Christian group wanted him to translate their pamphlets into Hebrew in order to convert Israelis to Christianity. He refused the commission, not wanting to create such material, and I can't imagine anyone would accuse him of illegal discrimination. It seems like there are many situations where you can obviously refuse a job because it would compel you to engage in expression you disagree with (such as above), many situations where you obviously can't (any non-expression transaction), and a very few where reasonable minds can disagree (custom wedding cake, custom flower arrangement for event, putting writing on a store-bought cake with frosting etc.). Exactly where we draw the boundary on the last category is pretty low stakes.
Given the current anti-gay backlash, I can understand why people would get upset about this case and feel like it is another attack, but I don't think it should be viewed in that light.
Excellent comment. No anti-discrimination ordinance is 100%, they all have exceptions and defining those through cases like Josh discusses makes the law better and stronger.
I tend to agree but think the generally closer nature of the questions in this area of law is another reason the Court had no business taking this case. It’s a hypothetical, non-specific dispute involving a somewhat hypothetical business. It wasn’t ripe.
I don't have a strong enough understanding of the constitutional/legal basis of standing to understand if this was the right decision (I think you are probably right that it wasn't), but I will say that if I were to design a system from scratch, I would be more generous on standing than the current system.
For a long time gay sex was a felony in a bunch of states, and gays were scared to live in these states, but nobody was ever arrested so no one had standing to sue to overturn them. Eventually a false police report led to the arrest of Lawrence and Garner for sodomy and they became the test case and the laws got overturned. "If you think a law is unconstitutional, go violate it and get arrested" seems unfair. What if you want to obey the law but also want to do the thing that's illegal? Shouldn't you be allowed to challenge the constitutionality of the law without breaking it?
It also bugs me, to cite two recent examples, that a state can pass a ballot initiative and courts can decide that no one in the state has standing to uphold the initiative, or the idea that a President can basically spend $400 billion by executive order and as long as he spreads the money around strategically so that no one loses money directly, no one has standing to challenge him. This all seems like a design flaw in the law.
I don't agree with Gosuch every time, but he's not a hack. The man thinks for himself and when ideology doesn't match the outcome he wants, he lets the chips fall where they may.
At this point, I think he Kagen are the only instituionally honest justices on the court - with the verdict still out on Brown Jackson and Coney Barrett. Alito is the hackiest, with Thomas and Sotomayor close behind. Roberts and (probably) Kavanaugh are the rare "institutionalist hacks."
I'm a lawyer who clerked for a United States District Judge.
On the SCOTUS student debt case, you say you think Biden did not have legal authority to forgive the student debt, but you do not provide YOUR legal reason.
The Act in question allows the president to take extraordinary action in a national emergency. Trump declared Covid-19 a national emergency. Covid-19 put a lot of people out of work, including students who had taken out student loans.
I think the historical kink is student loans were really popular, then Congress passed an Act that prevented students bankrupting student loans. I know his, because I represented an optometry student in his bankruptcy, and he won before the Bankruptcy Judge, but he lost before the U.S. District Judge.
The other part of the SCOTUS decision that makes no sense to me, as you point out, is how did Nebraska have legal standing to bring the lawsuit?
It looks to me that this SCOTUS decision opens the door to states filing federal lawsuits about any and every thing that hurts their feelings.
I think the 6 Justices who opened that door should be tarred and feathered, then keel-hauled, and put on Elon Musk's next rocket.
I've thought more about this. The Federal Bankruptcy Act was passed to save people from going crazy, killing themselves, turning to crime, losing their homes, because they could not repay their debts. Before US District Judge Clarence Allgood, for whom I clerked, was appointed to the Federal Bench, he pioneered the Federal Debtors Court in Birmingham, and then he wrote the legislation that Congress passed, which established the Federal Debtor's Court nationally.
That Court was where where debtors could seek relief from debt payments they could not afford, which the Debtors Court Judge adjusted to make the. payments affordable and save their credit and/or save them from filing straight bankruptcy and be freed from their debts and ruin their credit. For that work, Judge Allgood was appointed to the Federal Bench, even though his law degree was from the unaccredited Birmingham Night School of Law, which was taught by Birmingham lawyers, and even though he had never practiced law.
When student loans started being made, it was possible to go bankrupt and be freed of those loans. When that was stopped by Congress, a lot of people owing student loans they could not repay, nor bankrupt, were put under great stress, while people who incurred other kinds of debt could go to Debtors Court or to the Federal Bankruptcy Court.
Covid-19 was out of the blue, nobody was prepared for it, including President Trump. Many people with student loans were put under unprecedented, unfathomable stress. The olden days of the debtor's courts and prisons were upon them, except they could not be put into physical prisons. Only someone without a heart, without any compassion, who never heard of Jesus, could wish that on someone else, But, the Republicans and their 6 Justices on the US Supreme Court wished it on those people described above, without any concern for what would happen to those people, or what they might do because of so much stress.
Judge Allgood didn't attend church, he swore and he used to drink moonshine, until his stomach gave out on him. He lost two legs above the knees as a teen, when he hopped off a freight train he was riding and fell onto the tracks. He was the most Godly man I have known in my lifetime. I flew from Colorado to Birmingham for his funeral at Elmwood Cemetery, attended by more people than I had ever seen at a funeral, nor later would see at a funeral.
Clarence W. Allgood was was God's Judge, and I hope the 6 Supreme Court Justices and the Republicans who laude those Justice's decision to revoke President Biden's executive order, reducing student loan debt, stand before Judge Allgood when their roll is called up yonder.
One of my favored legal reforms would be an administrative law court (or just make it so all administrative law cases have to go through DC circuit) and then automatically grant all members of congress standing to sue over APA and other such administrative issues.
Forcing the process to follow accepted procedures is good.
As for your actual question, the Heroes Act was clearly not thought of with this sort of situation in mind as pretty much everything contemporary says. It's a stretch of a theory and I'm fine with that interpretation of Major Questions Doctrine where you can't unilaterally retcon big decisions where they clearly were not taken.
1. The current system is clearly broken as advocates basically judge shop to look for friendly circuits than can then issue nationwide injunctions and you get situations with dueling injunctions (see the abortion drug case) that just leave things incredibly unclear.
2. Makes a court with a specific expertise so those judges will have a much better understanding of precedent and procedures and the specific laws involved, particularly the APA.
3. Forces an outside review of governing procedure which is incredibly important. Giving the automatic standing to legislators basically guarantees you can't sneak through tricks based on playing with standing. While not federal, take a look at the Texas abortion bounty law from a few years ago for the right using similar tricks to achieve something they couldn't otherwise.
I'm totally with you on #1. On #2, I'm about 80% of the way there. Perhaps mandatory jurisdiction in the DC Circuit for a broader set of APA challenges + three judge panels for district court challenges elsewhere. Both have their problems, but I'd be on board for something on the lines you suggest.
But EVEN MORE standing for APA challenges? If anything, I think this would overwhelm and outweigh the other two improvements you suggest! The courts are already adjudicating many essentially political questions. Expanding standing to all 535 members of the legislative branch is moving wildly in the wrong direction. Don't those members have other ways of influencing the laws? Like using their own legislative powers? Seems crazy to me that you'd loan the judicial power to individual legislators in adversarial legal proceedings as a positive step!
I'd much rather see the "originalist" view of the APA on interpreting "set aside" in 5 USC § 706(2). This was the SG's position in this term's US v. Texas case and I tend to agree.
Furthermore, from a policy standpoint, I don't find such aggressive judicial review to be a good idea. I'd endorse the views of Nick Bagley in his article on proceduralism and agree with him that more accountability at the ballot box and less judicial review (at the margin!) is the way to go.
I think the standing issue is the most problematic since it opens the door to other cases being brought for things that aren’t really happening.
The fact that they had to make up a case for the non-discrimination case kinda makes me think there aren’t really any instances of this thing actually happening, since I feel like if they were even occurring occasionally they could’ve found a better case to use. Even before this ruling id bet most LGBT people, including myself, would probably do research into the baker or web designer to see if they’re lgbt friendly and if it wasn’t clear they are then you’d move on to another without ever contacting them.
So I think the case feels monumental in theory but in practice it’s probably inconsequential, unless it ends Ip being a stepping stone that leads to further erosion of non-discrimination law which is kind of Robert’s MO when he feels strongly about an issue (see voting rights, abortion, affirmative action, etc).
I completely agree. I am also a gay man, and I would never consider giving my business to someone that didn't want it. I'm not a "let the free market sort it out" kinda guy (I believe in regulations, in other words), but this is a case where I think the market can work its magic. Most people that aren't dogmatic idiots are going to understand that excluding a whole group of people for a service isn't going to be great for business or for their reputation, so even if they "disagree" or whatever, most of them will take the business anyway. I think it is an extraordinarily small sample size of people that would feel strongly enough to go this far with a refusal. I would never even consider suing in a situation like this. I would sure as hell tell every person I possibly could what a bigot the business owner is, but I wouldn't sue, unless some sort of damage was done to me (i.e., a paramedic refused to treat me). Otherwise I would just move on.
I thought the same thing. I checked the date just to be sure. “Is this June 2020, when people might legitimately be afraid of Covid?” I thought. Nope--June 2023. For some people the pandemic is never going to end.
The masks could be due to the recent plumes of wildfire smoke from Canada that affected the northeast this week, not COVID. I recently have started wearing one as well due to the bad air quality.
Also, some people have compromised immune systems that put them at greater risk. It seems it would behoove all of us to stop being so judgy about other people's choices and just let them live their lives. I haven't worn a mask in 2 years but I don't give a shit if other people do because I mind my own business as long as they're not hurting anybody.
Yeah. I'm not immunocompromised, etc., but I continued wearing masks for a very long time and just stopped wearing them at work this past week. I had my reasons for wearing them so long. My reasons were some combination of good and mediocre. But it was my decision, and I'm not inclined to judge others for making their decisions.
I think the justiciability issue on the 303 Creative website case is a big deal. Courts in our system of separation of powers are supposed to decide live disputes and their decisions are supposed to be grounded in the facts. There was no case to decide and the court should not have taken the case. I listened to Judge Vaughn Walker who was the federal trial court judge in the Prop 8 federal case brought by Boies and Olson and he was lamenting the fact that when the case got to the Supreme Court they just ignored the factual basis that he had established in the trial court because he had taken pains to allow the defendants to make their case that there was a rational basis for limiting marriage to opposite sex couples and they just had nothing to offer of any substance. Facts should matter when courts are deciding cases.
Just a process point that the Supreme Court isn't supposed to decide facts. That is done by lower courts and so basically the Supreme Court has to assume all the facts presented to them are the facts of they case. They are there to decide matters of law.
I agree that the whole idea of the facts not being real is weird, but that's honestly not the Supreme Court's problem (unless they want to moot it out and vacate the whole thing).
Right I wasn’t suggesting that the Supreme Court engage in fact finding but that they should not ignore the fact finding done by the trial court. That was Walker’s critique. And without a real dispute at the trial court you can’t develop a sufficient factual record.
I’m in no position to argue SCOTUS precedent, etc., but I’m often curious about people’s rather selective “sincerely-held religious beliefs.” Like a web designer that objects to same-sex marriage (which is not mentioned in the Christian Bible) but not the myriad direct admonitions against people/behaviors that have been clearly and unequivocally condemned by the same faith: I mean have you *read* what the Bible says about divorce, particularly women who have sought divorce? (I suspect 303 would have made Kimberly Guilfoyle’s wedding website without complaint).
Further, she said she’d be happy to make a website for a gay client for something besides marriage (though homosexuality is condemned pretty clearly in Leviticus).
So at what point is it a “religious belief” if you can’t actually point to the doctrine that you are following, and when is it just, well, prejudice and discrimination?
And since SCOTUS is now inviting hypothetical controversies into its marbled halls, what happens now when a “sincerely held religious belief” accommodation case knocks up against a “top-tier” protected class? Like those in my southern family who “sincerely” believe that interracial or interfaith marriages are ALSO a sin?
I agree with the comments about people on the left as well as mainstream media looking very silly right now, conflating interpretation under the law with policy decisions. I heard a supposed "legal expert" on CNN this morning lamenting the wedding cake decision. She didn't make a single legal point, her "analysis" consisted of being against it from a policy point of view. I'm far from being someone on the right, but I've been an attorney for 40 years, and can think of many other factual scenarios where the left would be celebrating this decision if those facts were different. I suppose we're at a point where it's impossible for any politician or commentator to be intellectually honest.
I feel more strongly than you do about the standing issue, Josh. I think the majority signaled that they don't particularly care about standing if they agree with the plaintiff on the merits. I think we'll see a lot of cases where there either isn't a harm to the plaintiff or the case is extremely unripe in the next couple of years, which is going to result in the Court making policy
I think it's more likely that there will be an actual reform for how to deal with cases of administrative law. The whole thing of district shopping (e.g. go to the 5th if you want GOP favored injunction or the 9th if you want a Dem favored one) and any district court judge being able to issue nationwide injunctions based on administrative law interpretations is out of hand.
It's been used by both sides and it's a technical issue that's hard to stir up passions over so seems like the sort of thing Congress can actually get done.
When a business refuses to allow provide services to interracial couples for planning their weddings, are we prepared to accept the same result? If not, why not?
Somebody once made the argument that eliminating legacy admissions would be bad for underprivileged students because possibly the biggest benefit of attending an elite university is the opportunity to network with legacy families. Not sure if I bought that argument, but it amused me.
Again, I'm a lawyer, who clerked for a United States District Judge.
On the SCOTUS decision that ends Affirmative Action, I was born and raised in Birmingham, Alabama, and like Alabama Governor George Wallace before me, I graduated from the University of Alabama School of Law. I was attending Vanderbilt University in Nashville, Tennessee, when Governor Wallace proclaimed, "Segregation now, segregation forever!" And, when Wallace stood blocking black students from going to class at the University of Alabama, until he was moved aside by Alabama National Guardsmen federalized by President Kennedy.
My father was rich from his business and investing. He paid for my Vanderbilt tuition. He paid for my Alabama law school tuition. He financially supported me through college and law school. I was privileged. His company management were white. His office staff were white. His route salesmen were white. His production and warehouse workers were black. His company was Golden Flake Snack Foods. It competed head-in against much larger Frito-Lay in the southeastern states.
White guy me knows for a fact that Affirmation Action was the right thing back in those days and later. But is it the right thing today? I think that's what the real issue is, and I also think the red spectrum says it's not the right thing today and the blue spectrum says it is the right thing today. I'm not left or right, but am in the middle, or, I try to be where what makes sense seems to be.
There is no way I can look at the American right and its very predominately white skin color and think it is not a white supremacy outfit. When I hear the American right even now claim the 2020 election was stolen, I hear them not saying, stolen by Blacks. When I see photos of Trump rallies, the January 6 insurrection, the Charlottesville Confederate monuments removal protest, I see oceans of white faces. in the law is the doctrine of res ipsa loquitur, the thing speaks for itself.
I see red spectrum efforts in states to gerrymander voting districts so that white people end up having the most voting power. I saw SCOTUS recently rule against such gerrymandering.
I think colleges and businesses and local and the federal government, for example, should accept the best qualified students and employee applicants. But I know just how deep racial prejudice runs, and I don't for a heartbeat think white supremacy will not win out in the end, if the American right gets their way.
So, think what you like or wish. Pretend what you like or wish. Regardless of what the American right says, it above all thinks it speaks for God in America, and God is white and Jesus was white and had blue eyes and blond hair, as, res ipsa loquitur- their art about him plainly shows. You have 5 white right Christian justices on the US Supreme Court, and one Uncle Tom, who enjoys perk$ provided by his right white friends.
One of the big things that seems to be here is people seem to want to take 'constitutional' and 'legal' to mean good. They aren't synonyms. Things you can like and policy positions you support can be illegal and unconstitutional just as the inverse can be true.
More importantly, the path of how you get to those things is hugely important and just because there's an outcome you like doesn't mean you can use the path that was taken to get there.
This. It drives me crazy when progressives can’t distinguish the legal versus the policy question. AOC in Josh’s example is a great case in point. It just shows she’s not thinking, and for progressive public officials to repeatedly err like this is just irresponsible and at times embarrassing. I’m sorry the Court isn’t supposed to legislate from the bench to give you your preferred policy outcomes. But part of being a good politician is framing the fallout in a way that is good for the rule of law and thus for the country. It’s certainly not always easy to deal with the fallout, but if you want politics to be easy, you’re in the wrong profession.
AOC’s comments were something else! I read that and was like ah does she know what this case is about?!
I know. Guess she’s gotta perform for that base. 🙄
A friend of mine is a Hebrew - English translator, and some years ago a Christian group wanted him to translate their pamphlets into Hebrew in order to convert Israelis to Christianity. He refused the commission, not wanting to create such material, and I can't imagine anyone would accuse him of illegal discrimination. It seems like there are many situations where you can obviously refuse a job because it would compel you to engage in expression you disagree with (such as above), many situations where you obviously can't (any non-expression transaction), and a very few where reasonable minds can disagree (custom wedding cake, custom flower arrangement for event, putting writing on a store-bought cake with frosting etc.). Exactly where we draw the boundary on the last category is pretty low stakes.
Given the current anti-gay backlash, I can understand why people would get upset about this case and feel like it is another attack, but I don't think it should be viewed in that light.
Excellent comment. No anti-discrimination ordinance is 100%, they all have exceptions and defining those through cases like Josh discusses makes the law better and stronger.
I tend to agree but think the generally closer nature of the questions in this area of law is another reason the Court had no business taking this case. It’s a hypothetical, non-specific dispute involving a somewhat hypothetical business. It wasn’t ripe.
I don't have a strong enough understanding of the constitutional/legal basis of standing to understand if this was the right decision (I think you are probably right that it wasn't), but I will say that if I were to design a system from scratch, I would be more generous on standing than the current system.
For a long time gay sex was a felony in a bunch of states, and gays were scared to live in these states, but nobody was ever arrested so no one had standing to sue to overturn them. Eventually a false police report led to the arrest of Lawrence and Garner for sodomy and they became the test case and the laws got overturned. "If you think a law is unconstitutional, go violate it and get arrested" seems unfair. What if you want to obey the law but also want to do the thing that's illegal? Shouldn't you be allowed to challenge the constitutionality of the law without breaking it?
It also bugs me, to cite two recent examples, that a state can pass a ballot initiative and courts can decide that no one in the state has standing to uphold the initiative, or the idea that a President can basically spend $400 billion by executive order and as long as he spreads the money around strategically so that no one loses money directly, no one has standing to challenge him. This all seems like a design flaw in the law.
Bless the hearts of the fools that think the ruling on racial preference in admissions will result in merit being the primary factor in decisions.
I don't agree with Gosuch every time, but he's not a hack. The man thinks for himself and when ideology doesn't match the outcome he wants, he lets the chips fall where they may.
At this point, I think he Kagen are the only instituionally honest justices on the court - with the verdict still out on Brown Jackson and Coney Barrett. Alito is the hackiest, with Thomas and Sotomayor close behind. Roberts and (probably) Kavanaugh are the rare "institutionalist hacks."
I'm a lawyer who clerked for a United States District Judge.
On the SCOTUS student debt case, you say you think Biden did not have legal authority to forgive the student debt, but you do not provide YOUR legal reason.
The Act in question allows the president to take extraordinary action in a national emergency. Trump declared Covid-19 a national emergency. Covid-19 put a lot of people out of work, including students who had taken out student loans.
I think the historical kink is student loans were really popular, then Congress passed an Act that prevented students bankrupting student loans. I know his, because I represented an optometry student in his bankruptcy, and he won before the Bankruptcy Judge, but he lost before the U.S. District Judge.
The other part of the SCOTUS decision that makes no sense to me, as you point out, is how did Nebraska have legal standing to bring the lawsuit?
It looks to me that this SCOTUS decision opens the door to states filing federal lawsuits about any and every thing that hurts their feelings.
I think the 6 Justices who opened that door should be tarred and feathered, then keel-hauled, and put on Elon Musk's next rocket.
I've thought more about this. The Federal Bankruptcy Act was passed to save people from going crazy, killing themselves, turning to crime, losing their homes, because they could not repay their debts. Before US District Judge Clarence Allgood, for whom I clerked, was appointed to the Federal Bench, he pioneered the Federal Debtors Court in Birmingham, and then he wrote the legislation that Congress passed, which established the Federal Debtor's Court nationally.
That Court was where where debtors could seek relief from debt payments they could not afford, which the Debtors Court Judge adjusted to make the. payments affordable and save their credit and/or save them from filing straight bankruptcy and be freed from their debts and ruin their credit. For that work, Judge Allgood was appointed to the Federal Bench, even though his law degree was from the unaccredited Birmingham Night School of Law, which was taught by Birmingham lawyers, and even though he had never practiced law.
When student loans started being made, it was possible to go bankrupt and be freed of those loans. When that was stopped by Congress, a lot of people owing student loans they could not repay, nor bankrupt, were put under great stress, while people who incurred other kinds of debt could go to Debtors Court or to the Federal Bankruptcy Court.
Covid-19 was out of the blue, nobody was prepared for it, including President Trump. Many people with student loans were put under unprecedented, unfathomable stress. The olden days of the debtor's courts and prisons were upon them, except they could not be put into physical prisons. Only someone without a heart, without any compassion, who never heard of Jesus, could wish that on someone else, But, the Republicans and their 6 Justices on the US Supreme Court wished it on those people described above, without any concern for what would happen to those people, or what they might do because of so much stress.
Judge Allgood didn't attend church, he swore and he used to drink moonshine, until his stomach gave out on him. He lost two legs above the knees as a teen, when he hopped off a freight train he was riding and fell onto the tracks. He was the most Godly man I have known in my lifetime. I flew from Colorado to Birmingham for his funeral at Elmwood Cemetery, attended by more people than I had ever seen at a funeral, nor later would see at a funeral.
Clarence W. Allgood was was God's Judge, and I hope the 6 Supreme Court Justices and the Republicans who laude those Justice's decision to revoke President Biden's executive order, reducing student loan debt, stand before Judge Allgood when their roll is called up yonder.
One of my favored legal reforms would be an administrative law court (or just make it so all administrative law cases have to go through DC circuit) and then automatically grant all members of congress standing to sue over APA and other such administrative issues.
Forcing the process to follow accepted procedures is good.
As for your actual question, the Heroes Act was clearly not thought of with this sort of situation in mind as pretty much everything contemporary says. It's a stretch of a theory and I'm fine with that interpretation of Major Questions Doctrine where you can't unilaterally retcon big decisions where they clearly were not taken.
Why would this be a good idea??? Seems crazy to me!
My thoughts are.
1. The current system is clearly broken as advocates basically judge shop to look for friendly circuits than can then issue nationwide injunctions and you get situations with dueling injunctions (see the abortion drug case) that just leave things incredibly unclear.
2. Makes a court with a specific expertise so those judges will have a much better understanding of precedent and procedures and the specific laws involved, particularly the APA.
3. Forces an outside review of governing procedure which is incredibly important. Giving the automatic standing to legislators basically guarantees you can't sneak through tricks based on playing with standing. While not federal, take a look at the Texas abortion bounty law from a few years ago for the right using similar tricks to achieve something they couldn't otherwise.
I'm totally with you on #1. On #2, I'm about 80% of the way there. Perhaps mandatory jurisdiction in the DC Circuit for a broader set of APA challenges + three judge panels for district court challenges elsewhere. Both have their problems, but I'd be on board for something on the lines you suggest.
But EVEN MORE standing for APA challenges? If anything, I think this would overwhelm and outweigh the other two improvements you suggest! The courts are already adjudicating many essentially political questions. Expanding standing to all 535 members of the legislative branch is moving wildly in the wrong direction. Don't those members have other ways of influencing the laws? Like using their own legislative powers? Seems crazy to me that you'd loan the judicial power to individual legislators in adversarial legal proceedings as a positive step!
I'd much rather see the "originalist" view of the APA on interpreting "set aside" in 5 USC § 706(2). This was the SG's position in this term's US v. Texas case and I tend to agree.
Furthermore, from a policy standpoint, I don't find such aggressive judicial review to be a good idea. I'd endorse the views of Nick Bagley in his article on proceduralism and agree with him that more accountability at the ballot box and less judicial review (at the margin!) is the way to go.
I think the standing issue is the most problematic since it opens the door to other cases being brought for things that aren’t really happening.
The fact that they had to make up a case for the non-discrimination case kinda makes me think there aren’t really any instances of this thing actually happening, since I feel like if they were even occurring occasionally they could’ve found a better case to use. Even before this ruling id bet most LGBT people, including myself, would probably do research into the baker or web designer to see if they’re lgbt friendly and if it wasn’t clear they are then you’d move on to another without ever contacting them.
So I think the case feels monumental in theory but in practice it’s probably inconsequential, unless it ends Ip being a stepping stone that leads to further erosion of non-discrimination law which is kind of Robert’s MO when he feels strongly about an issue (see voting rights, abortion, affirmative action, etc).
I completely agree. I am also a gay man, and I would never consider giving my business to someone that didn't want it. I'm not a "let the free market sort it out" kinda guy (I believe in regulations, in other words), but this is a case where I think the market can work its magic. Most people that aren't dogmatic idiots are going to understand that excluding a whole group of people for a service isn't going to be great for business or for their reputation, so even if they "disagree" or whatever, most of them will take the business anyway. I think it is an extraordinarily small sample size of people that would feel strongly enough to go this far with a refusal. I would never even consider suing in a situation like this. I would sure as hell tell every person I possibly could what a bigot the business owner is, but I wouldn't sue, unless some sort of damage was done to me (i.e., a paramedic refused to treat me). Otherwise I would just move on.
Fascinating to observe the political valence of mask wearing in that protest photo.
I thought the same thing. I checked the date just to be sure. “Is this June 2020, when people might legitimately be afraid of Covid?” I thought. Nope--June 2023. For some people the pandemic is never going to end.
The masks could be due to the recent plumes of wildfire smoke from Canada that affected the northeast this week, not COVID. I recently have started wearing one as well due to the bad air quality.
Also, some people have compromised immune systems that put them at greater risk. It seems it would behoove all of us to stop being so judgy about other people's choices and just let them live their lives. I haven't worn a mask in 2 years but I don't give a shit if other people do because I mind my own business as long as they're not hurting anybody.
Yeah. I'm not immunocompromised, etc., but I continued wearing masks for a very long time and just stopped wearing them at work this past week. I had my reasons for wearing them so long. My reasons were some combination of good and mediocre. But it was my decision, and I'm not inclined to judge others for making their decisions.
I think the justiciability issue on the 303 Creative website case is a big deal. Courts in our system of separation of powers are supposed to decide live disputes and their decisions are supposed to be grounded in the facts. There was no case to decide and the court should not have taken the case. I listened to Judge Vaughn Walker who was the federal trial court judge in the Prop 8 federal case brought by Boies and Olson and he was lamenting the fact that when the case got to the Supreme Court they just ignored the factual basis that he had established in the trial court because he had taken pains to allow the defendants to make their case that there was a rational basis for limiting marriage to opposite sex couples and they just had nothing to offer of any substance. Facts should matter when courts are deciding cases.
Just a process point that the Supreme Court isn't supposed to decide facts. That is done by lower courts and so basically the Supreme Court has to assume all the facts presented to them are the facts of they case. They are there to decide matters of law.
I agree that the whole idea of the facts not being real is weird, but that's honestly not the Supreme Court's problem (unless they want to moot it out and vacate the whole thing).
Right I wasn’t suggesting that the Supreme Court engage in fact finding but that they should not ignore the fact finding done by the trial court. That was Walker’s critique. And without a real dispute at the trial court you can’t develop a sufficient factual record.
I’m in no position to argue SCOTUS precedent, etc., but I’m often curious about people’s rather selective “sincerely-held religious beliefs.” Like a web designer that objects to same-sex marriage (which is not mentioned in the Christian Bible) but not the myriad direct admonitions against people/behaviors that have been clearly and unequivocally condemned by the same faith: I mean have you *read* what the Bible says about divorce, particularly women who have sought divorce? (I suspect 303 would have made Kimberly Guilfoyle’s wedding website without complaint).
Further, she said she’d be happy to make a website for a gay client for something besides marriage (though homosexuality is condemned pretty clearly in Leviticus).
So at what point is it a “religious belief” if you can’t actually point to the doctrine that you are following, and when is it just, well, prejudice and discrimination?
And since SCOTUS is now inviting hypothetical controversies into its marbled halls, what happens now when a “sincerely held religious belief” accommodation case knocks up against a “top-tier” protected class? Like those in my southern family who “sincerely” believe that interracial or interfaith marriages are ALSO a sin?
Would be helpful for you to move on to the New Testament where Jesus moved us from The Law to Love.
Admittedly all christians don't act that way, if we could we would be God.
Old Testament was sort of scorecard keeping. We screwed that up, so Jesus had to come on down and set us straight.
Just trying to figure out which of these opinions would get you yelled at the most on Twitter.
You are legally entitled to a free government-funded gay wedding cake baked by any establishment of your choosing, but not if you're BIPOC.
You know, I was wondering EXACTLY the same thing.
I agree with the comments about people on the left as well as mainstream media looking very silly right now, conflating interpretation under the law with policy decisions. I heard a supposed "legal expert" on CNN this morning lamenting the wedding cake decision. She didn't make a single legal point, her "analysis" consisted of being against it from a policy point of view. I'm far from being someone on the right, but I've been an attorney for 40 years, and can think of many other factual scenarios where the left would be celebrating this decision if those facts were different. I suppose we're at a point where it's impossible for any politician or commentator to be intellectually honest.
Miss the pod
I feel more strongly than you do about the standing issue, Josh. I think the majority signaled that they don't particularly care about standing if they agree with the plaintiff on the merits. I think we'll see a lot of cases where there either isn't a harm to the plaintiff or the case is extremely unripe in the next couple of years, which is going to result in the Court making policy
I think it's more likely that there will be an actual reform for how to deal with cases of administrative law. The whole thing of district shopping (e.g. go to the 5th if you want GOP favored injunction or the 9th if you want a Dem favored one) and any district court judge being able to issue nationwide injunctions based on administrative law interpretations is out of hand.
It's been used by both sides and it's a technical issue that's hard to stir up passions over so seems like the sort of thing Congress can actually get done.
When a business refuses to allow provide services to interracial couples for planning their weddings, are we prepared to accept the same result? If not, why not?
I think we have to be. The Court has decided that this kind of custom service is speech in a way that eg allowing someone to stay at a motel is not.
Somebody once made the argument that eliminating legacy admissions would be bad for underprivileged students because possibly the biggest benefit of attending an elite university is the opportunity to network with legacy families. Not sure if I bought that argument, but it amused me.
Again, I'm a lawyer, who clerked for a United States District Judge.
On the SCOTUS decision that ends Affirmative Action, I was born and raised in Birmingham, Alabama, and like Alabama Governor George Wallace before me, I graduated from the University of Alabama School of Law. I was attending Vanderbilt University in Nashville, Tennessee, when Governor Wallace proclaimed, "Segregation now, segregation forever!" And, when Wallace stood blocking black students from going to class at the University of Alabama, until he was moved aside by Alabama National Guardsmen federalized by President Kennedy.
My father was rich from his business and investing. He paid for my Vanderbilt tuition. He paid for my Alabama law school tuition. He financially supported me through college and law school. I was privileged. His company management were white. His office staff were white. His route salesmen were white. His production and warehouse workers were black. His company was Golden Flake Snack Foods. It competed head-in against much larger Frito-Lay in the southeastern states.
White guy me knows for a fact that Affirmation Action was the right thing back in those days and later. But is it the right thing today? I think that's what the real issue is, and I also think the red spectrum says it's not the right thing today and the blue spectrum says it is the right thing today. I'm not left or right, but am in the middle, or, I try to be where what makes sense seems to be.
There is no way I can look at the American right and its very predominately white skin color and think it is not a white supremacy outfit. When I hear the American right even now claim the 2020 election was stolen, I hear them not saying, stolen by Blacks. When I see photos of Trump rallies, the January 6 insurrection, the Charlottesville Confederate monuments removal protest, I see oceans of white faces. in the law is the doctrine of res ipsa loquitur, the thing speaks for itself.
I see red spectrum efforts in states to gerrymander voting districts so that white people end up having the most voting power. I saw SCOTUS recently rule against such gerrymandering.
I think colleges and businesses and local and the federal government, for example, should accept the best qualified students and employee applicants. But I know just how deep racial prejudice runs, and I don't for a heartbeat think white supremacy will not win out in the end, if the American right gets their way.
So, think what you like or wish. Pretend what you like or wish. Regardless of what the American right says, it above all thinks it speaks for God in America, and God is white and Jesus was white and had blue eyes and blond hair, as, res ipsa loquitur- their art about him plainly shows. You have 5 white right Christian justices on the US Supreme Court, and one Uncle Tom, who enjoys perk$ provided by his right white friends.