The final days of the 2022-2023 Term of the United States Supreme Court has largely been satisfying to conservatives with many 6-3 decisions in favor of what the Constitution requires. The big cases that have upset Lefties this year are Students for Fair Admissions v. Harvard, 303 Creative v. Elenis and Biden v. Nebraska.
In Students for Fair Admissions v. Harvard, the Court ruled that the method of admissions used by Harvard and University of North Carolina (UNC) violate the 14th amendment’s equal protection clause. (UNC was sued by the same plaintiffs for the same reason they used Harvard; the only difference is Harvard is a private college, while UNC is a public university. Justice Jackson recused herself from the Harvard case because she was on the board of Harvard, so it was a conflict of interest for her.) Other than those facts, the ruling and reasoning was the exact same: the 14th amendment was violated. The Court ruled on page 22 of the opinion that “University programs must comply with strict scrutiny, they may never use race as a stereotype or negative, and—at some point—they must end. Respondents’ admissions systems—however well intentioned and implemented in good faith—fail each of these criteria.”
The Court did not find the arguments about why race can be used in the admissions decision as open to meaningful judicial scrutiny, so the court doesn’t to know when these goals as provided by the university have been met and the practice ended. In Justice Thomas’ concurrence, he notes that the 2003 case Grutter v. Bollinger was wrongly decided and he questions how racial diversity provides educational benefits. Justice Thomas recognizes that some social goals and benefits may exist when racial diversity is present, but he doesn’t see any educational benefits and the studies and reports that the Defendant institutions aren’t compelling either.
In 303 Creative v. Elenis, the Supreme Court did what Jack Phillips wished they did 5 years ago. In 303 Creative, the Court held The First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees. Jack Phillips is the owner of Masterpiece Cakeshop. After his 2018 win at SCOTUS, a person came into his shop wanting a cake to celebrate a “gender transition”. Phillips refused and was subsequently sued, where he lost at the appeals court. The reason for Phillip’s loss at the appeals court for the transition cake after his SCOTUS win is simple; the Supreme Court in 2018 didn’t decide the question about whether Phillip’s religious liberty or free speech rights were violated. Before Phillips even had his hearing in front of the Colorado civil rights commission, members of the commission had made disparaging comments about Phillips and his viewpoints.
Because of that bias, SCOTUS ruled that the commission was impermissibly biased and thus the ruling of the commission was tossed. In 303 Creative, however, none of those issues existed in part because this case is a pre-enforcement challenge with stipulations about many points including that the messages on these websites are expressive and pure speech, so SCOTUS ruled on the First Amendment issue directly. Because this case involved a pre-enforcement challenge, the plaintiff must show he has standing and an actual case or controversy exists because the federal courts are not permitted to issue advisory opinions. The issue underlying so many of these cases involving the wedding industry and the LGBT crew from Sweet Cakes by Melissa to Arlene’s Flowers involved compelled speech.
Because the Court recognized that no law is free from constitutional requirements, the Court recognized that public accommodations laws can sweep too broadly and when they do, the constitution must prevail. The Constitution protects this business and the expressive messages that they wish to create for its customers and the State can’t compel the business to speak otherwise. The Court recognized The First Amendment’s protections belong to all speakers, not just those messages the government deems correct or desirable. The dissent focused on how this case could lead to an erosion of public accommodations laws. While some arguments exists about whether public accommodations laws violate the First Amendment’s freedom of speech and assembly, the dissent didn’t take into account all of the stipulations the parties made at the outset of this case.
The student loan cases were also a paired set; in Department of Education v. Brown and Biden v. Nebraska one of the big questions was who if anybody has standing to challenge the program that President Biden had Education Secretary Miguel Cardona establish to forgive over $400B+ in student loans. In Brown, the court unanimously agreed that the two students did not have standing to challenge the program because as Justice Alito wrote for the Court on page 10, “They cannot show that their purported injury of not receiving loan relief under the HEA is fairly traceable to the Department’s (allegedly unlawful) decision to grant loan relief under the HEROES Act.” Without standing, no case can proceed; federal courts have standing requirements because Article III only allows the Courts to hear Cases and controversies.
Whether Missouri (and the other 6 states) have standing is a point of division for the majority and dissent in Biden v. Nebraska. The majority agrees that the states have standing because the education agency established by Missouri is an instrumentality of Missouri and they have standing, so the Court proceeds to the merits of the question regarding the HEROES Act. The Biden administration argued that the emergency that allowed for them to cancel student loans was Covid-19; the Trump Administration had reached the opposite conclusion when the payments and interest were initially suspended beginning in March 2020.
Because modification refers to a minor change, this program is in violation of the law because it is a major change. If Congress wanted to allow student loans to be forgiven within the text of this statute, it would have. Former Speaker of the House, Nancy Pelosi also gets a mention on page 23 of the opinion. “People think that the President of the United States has the power for debt forgiveness. He does not. He can postpone. He can delay. But he does not have that power. That has to be an act of Congress.”
The Court is on recess for the summer and will return in October.
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