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It’s frustrating to be alive in America sometimes, but it is especially so in June when the Supreme Court hands down the remainder (and often the most scandalous) of its decisions to close out its term. The humidity has crept in, your tan is not quite where you want it to be, and nine random-ass people are contemplating your life, liberty, and pursuit of happiness and are often not ruling in your favor.
I feel it’s fair to say most of us are still reeling from some of the decisions America’s weirdest group chat made just over a week ago, which is why I had to invite back one of my future-lawyers-on-retainer, Skylar Corby, to talk all of you through what the hell just happened the way she did for me in some really demoralizing play-by-plays.
This week, we talked about some of the major SCOTUS decisions from this term, what potential implications they may have, and what our thoughts are on the Court in general (spoiler alert: we don’t like them 🫶).1
Skylar Corby (she/her) is a law student based in Brooklyn. When she’s not being ardently studious, she can be found seeing every movie that comes out in theaters, outfit repeating, and scrolling through interior design videos on TikTok.
Sidebar: We will be looking more in-depth at the history behind the Indian Child Welfare Act (ICWA) later this year but I still asked Skylar to briefly explain the Court’s recent decision in Haaland v. Brackeen, in which the Court considered the constitutionality of ICWA.
Skylar: ICWA encourages Native American children who are removed from their homes in neglect or abuse situations to be placed with Native American foster and adoptive parents, and the Court voted 7-2 that the ICWA is, in fact, constitutional, rejecting the challenge. This was another win that many people weren’t necessarily expecting, but we’ll take it.
Keep Your Lawyer Friends Close…
I wanted to start today’s piece with an image that perfectly encapsulates how Skylar and I have respectively responded to each of the decisions this term, with her sending me updates in the same tone as the first tweet from Chris Geidner and most of my replies to her sounding something like the second tweet:
Source: @The_Law_Boy on Twitter.
It’s fine—I’m not the one in law school.
To get us all up to speed and on the same page, I asked Skylar:
Emily: What were some of the major cases SCOTUS decided on this term?
Skylar: Every term, there are anywhere between 60 and 150 cases heard and decided by the Supreme Court. For the 2022-2023 term that just completed, the Court decided 60 cases, the majority of which the general public will never hear about because many of them involve niche legal issues that don’t pertain to most people’s day-to-day lives.
I mostly say all of this because to a law student like me, there were cases that will pretty substantially change the way I continue to learn the law and eventually practice it, but for most people outside of that context, the issues simply aren’t as prescient.2 However, there were a few cases I want to highlight that will have more immediate, broad and far-reaching consequences for the general public.
The first is Moore v. Harper, in which the Court considered the application of the so-called “independent legislature theory,” which argues that only a state legislature has the power to regulate federal elections, notwithstanding state courts or constitutional constraints.
The second is actually two cases, Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina. These cases both took up the question of whether race may be considered as a factor during the application and admissions process.
The third is Biden v, Nebraska, in which the Court decided the whether the Biden administration could use the HEROES Act to cancel around $430 billion in student loan debt.
The fourth is Arizona v. Navajo Nation, a case which concerned the question of whether or not the United States is required to account for Navajo Nation water rights in the Colorado River, as per an 1868 treaty between the US and the tribe.
The fifth and final I want to touch on is 303 Creative LLC v. Elenis, in which the Court deliberated on whether or not a wedding website designer, who would be subject to an anti-discrimination law which would compel her to serve LGBTQ+ couples, would be violative of her First Amendment rights.
I have nothing really to say here. This is just a quick checkpoint because the next section is incredibly informative but is, as Skylar warned me, “probably the longest ever on E4P.”
Emily: How were these cases decided, and what implications do they have?
Skylar: We’ll start with the good news. Moore v. Harper was dealing with the “independent state legislature theory,” which for all intents and purposes would allow states to make their own federal election laws without ever being subject to review by the courts in their state or their state constitutions.
This would be devastating for our democracy because it essentially means that states would have totally unfettered power in how they want to run elections, and wouldn’t have to answer to their courts about it. If you think you’ve heard enough about rigged elections, this would have made that issue approximately a thousand times worse.
Luckily, SCOTUS here voted 6-3 to reject the theory, holding that the Federal Elections Clause does not vest exclusive and independent authority in state legislatures to set the rules regarding federal elections.3 That means, at least for now, we’re safe from this fringe, constitutionally baseless theory interfering in how we run elections. As a reminder, though, SCOTUS re-hears questions pretty frequently (see: Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade), so this may not be the last we hear of it.
The next two cases, Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina, were essentially deciding if the policy of affirmative action during college admissions was constitutional under the Equal Protection Clause of the 14th Amendment. They were deliberating the same issue, and thus were taken up and heard together. The Court voted 6-2 (Jackson recused herself because she was a student at Harvard) and 6-3 respectively, holding that race-based admissions are unconstitutional, thus overturning Grutter v. Ballinger.
This decision was completely expected and yet still pretty devastating. The Court’s majority reasoned that the Equal Protection Clause is designed to get rid of ALL race-based discrimination, not just some of it, and by forcing universities to consider race during admissions, it unfairly denies some other people (read: white and Asian) from the same opportunities. We, of course, know affirmative action is just a tool to try to level a playing field which has historically discriminated against primarily Black and Latinx people, who are still grossly underrepresented at both of the universities in question in the case.
Source: @myeshachou on Twitter.
The Court added a caveat that schools may still take into account how certain factors, like race, have affected an applicant’s life and experiences, which is what we’ll see both Harvard, UNC, and most other universities do as a workaround. Still, it is difficult to overstate how completely ridiculous the majority’s analysis feels, in trying to say that by considering race, the minuscule amount of Black and Latinx students that are already on many of these campuses are there just because of diversity points and not on merit, which we know absolutely isn’t true.
This section from Justice Jackson’s dissent could not have been said better, and I want to end with it here:
With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces “colorblindness for all” by legal fiat. But deeming race irrelevant in law does not make it so in life. And having so detached itself from this country’s actual past and present experiences, the Court has now been lured into interfering with the crucial work that UNC and other institutions of higher learning are doing to solve America’s real-world problems.
We have much work to do.
Biden v. Nebraska was the case which decided that President Biden’s student loan forgiveness plan was not permissible under the HEROES Act. The legal arguments here are a little bit complicated, but the HEROES Act (or Higher Education Relief Opportunities for Students Act of 2003) essentially said that in the wake of national emergencies or wartime, the federal government could make changes to student financial assistance programs so they would not be financially worse off due to those circumstances.
The law is pretty straightforward, and the Biden administration had reignited it in light of COVID to try to cancel around $430 billion in student loan debt. Although Congress explicitly granted the President the ability to do this in the statute, SCOTUS overruled the use of it here 6-3, holding that the HEROES Act permitted the President only to “modify” student loan obligations, not waive them entirely.
This is unfortunate, but the good news is that the Biden administration has other avenues of getting the loan forgiveness plan done, likely via the use of the Higher Education Act. So, all hope is not lost, but there also is not a guarantee that this revised plan will definitely work, either.
In Arizona v. Navajo Nation, Kavanaugh wrote for the 5-4 majority, narrowly ruling that the treaty did not, in fact, require the US to secure water rights for the Navajo Nation.4 Because of the location of the Navajo Nation, their lack of guaranteed water rights amid rising droughts due to climate change is a cause for concern. We can hope the federal government decides to help anyway, but it isn’t looking likely.
303 Creative LLC v. Elenis is likely the one you’ll have seen a lot of in the news in the last couple of weeks, and for good reason. This case revolved around a Colorado woman, who for legal purposes here is an “artist,” looking to get into designing wedding websites (note that she hadn’t actually started the business or designed a website yet).
There is a Colorado law (the same one at issue in the Masterpiece Cakeshop case a few years back) that says that businesses cannot discriminate against protected classes, including LGBTQ+ couples. And although a gay couple never even approached her about designing a website like she says they did, she brought the case anyway, looking for preemptive relief to say that she would not have to make websites for LGBTQ+ couples due to her personal religious belief.
Skylar (cont.): Predictably, even though the aforementioned situation hasn’t even happened yet, SCOTUS took the case anyway, and voted 6-3 that the First Amendment prohibits Colorado from forcing a website designer to create expressive designs that convey messages with which the designer disagrees. I want to highlight the fact that there have been copious amounts of headlines along the lines of “SCOTUS just legalized discrimination against queer people,” which isn’t really what happened, and I caution everyone to be careful with these sorts of generalizations.
All of that withstanding, this is a very concerning decision, because even though it only applies to artists being made to “speak or stay silent” pursuant to the First Amendment, there’s potential for some fairly devastating consequences if states try to take this decision and really run with it, as places like Texas and Missouri are inclined to do.
Justice Sotomayor’s dissent is both scathing and incredibly honest, and this part in particular sums up the issue nicely:
Today is a sad day in American constitutional law and in the lives of LGBT people. The Supreme Court of the United States declares that a particular kind of business, though open to the public, has a constitutional right to refuse to serve members of a protected class. The Court does so for the first time in its history. By issuing this new license to discriminate in a case brought by a company that seeks to deny same-sex couples the full and equal enjoyment of its services, the immediate, symbolic effect of the decision is to mark gays and lesbians for second-class status. In this way, the decision itself inflicts a kind of stigmatic harm, on top of any harm caused by denials of service. The opinion of the Court is, quite literally, a notice that reads: ‘Some services may be denied to same-sex couples.’
Still with us? Ok, good.
Even though I know the answer to this next question, not everyone has a Skylar who sent them real-time updates of the decisions as well as preliminary thoughts about the significance and expected outcomes of each case (jealous?). So on all of your behalves,5 I asked:
Emily: What was the most surprising decision?
Skylar: Honestly, I was probably the most surprised by the decision in Biden v. Nebraska, mostly because there were some pretty major legal standing issues that many people expected to render the case null and void.
What’s not surprising is that this Court took up a case that the majority disagreed with and ruled on it anyway, mostly just because they wanted to. If there’s one thing the current SCOTUS has taught us, it’s that they have no problem ignoring things like standing if they have a point they want to make, despite how legally incorrect that is.
Emily: Which decision do you think is going to have the greatest ramifications?
Skylar: It’s difficult to tell right now, honestly. I can absolutely see a world where all of these decisions spell out unfortunate consequences for years to come, but I think realistically there are some solutions and workarounds that will help. For example, as I mentioned previously, many people who took out loans for college have relied on the prospect of some of those loans being canceled, in some cases as much as twenty thousand dollars. If a person was financially planning to stop paying on their student loans because they effectively just went away, then that may have some pretty immediate ramifications for that person and others like them.
Source: @ArionneNettles on Twitter.
The end of affirmative action programs will realistically make it more difficult for people of color, and specifically Black and Latinx students, to go to college, especially as it comes to extremely exclusive schools like those in the Ivy League and Stanford. As I’ve said, many universities have already come forward and said they intend to implement new programs which will allow them to still consider race in a way.
Even with that, campuses like the University of Missouri have already done away with their diversity scholarship initiatives in light of the decision which will undoubtedly have a vast effect on the populations of students who can attend university in general. Time will tell the point to which this will affect admissions, but it is unlikely to be good.
303 Creative v. Elenis is the least predictable when it comes to possible consequences, mostly because the application of a holding as broad as “artists can say no if it makes them compromise their own personal beliefs” makes it difficult to ascertain how broadly it can be applied. What we can expect is for businesses who consider themselves “artists” to get pretty bold in who they want to deny service, and under this ruling, it’d be difficult to say that’s not allowed. It’s also likely for states with similar anti-discrimination laws to Colorado, like Vermont, to see an uptick in challenges to those laws, and with this decision it’d be very difficult to overcome those.
For right now, though, all we need to worry about is an untalented, hobby graphic designer having to stay away from queer people. Good riddance.
In case anyone forgot, Skylar is E4P’s most famous lesbian—just check my homepage’s Most Popular section. Knowing her as well as I do, I wanted to give her space specifically to share her thoughts on the 303 Creative v. Elenis decision which you don’t have to be a member of the LGBTQIA+ community to know is utter horseshit and feel angered by:
Emily: What are your personal thoughts on the recent decision in 303 Creative LLC v. Elenis?
Skylar: As a queer person, I find it incredibly upsetting. I worry about what it means for my future, my ability to travel to certain states with my partner, and what it means for my community as a whole. It’s disconcering to think that if I wanted to get married in my hometown, there is a distinct possibility that a bakery or event planner can say no to me purely for who I want to marry. But also, I think many of us in the LGBTQ+ community and allies think that if a person is homophobic or transphobic, none of us would want to work with that person anyway.
It would have been very easy to rule the other way using real legal precedent, so it’s very frustrating that it came out this way. At the same time, states (and Congress, for that matter) have the opportunity to build in protection for queer people in other ways, which I have to hope could materialize as time goes on. Fingers crossed.
Unfortunately, all of this sounds like SCOTUS is making good on Cl*rence Th*mas’ threat suggestion from last year and are starting to unpeel basic human rights previously gifted by the Court like the most fucked up onion.
You, like me, may be wondering how we got to the point where the Court could be driven more by personal politics than ethics and genuine interpretations of the Constitution (which is, by the way, a very weird, vague, and kind of dumb text that I implore you all to read it since the National Archives estimates it will only take you about a half hour).
I would argue, may it please the Court, that we’ve actually always been here.
Justice May Be Blind, But Mama That Doesn’t Mean She Doesn’t Take Bribes in the Form of Lavish Fishing Trips From Conservative Billionaires
Growing up, I was taught that the Supreme Court decided and protected the will of the people as they were the law of the land. Looking back through the Court’s history and living through some more of it now, it’s hard not to ask if that statement has ever been true. What land are we to constantly be juggling human rights, promising them only to take them away when the political makeup of the Court changes a few decades later?
I’m not an independent state legislature theory wingnut advocating against the need for a system of checks and balances—quite the opposite. I don’t think there are nearly enough checks or balances on these people. I think that perhaps that grandeur, that belief I and so many others once had about the SCOTUS (see: my mom’s opinions from last May), has, in fact, blinded us to the fact that these people are no better than the rest of us. Just because they sit on the highest court doesn’t mean they’re the highest and mightiest—they’re just racist Sam from the golf course or Amy from church who’s always going on about the sin of abortion and whatnot.
They are harbingers of our times—of the 1890s that decided segregation was constitutional in Plessy v. Ferguson, of the 1950s that started to decide it actually wasn’t with Brown v. Board of Education, and of the 2000s when they got really cool with getting involved in elections with Bush v. Gore and the iconic Citizens United v. FEC.6
One can say that claiming the Court is only politicized when it votes against the protection of certain rights is in of itself a political opinion. And perhaps, in some cases—legal and figurative—you would be right. But I argue, may it please the Court, that human and civil rights are inherently constitutional, especially if you’re a “textualist.” That, regardless of your politics, we are all deserving of our existence and amendments should only serve to clarify the ways that we are still protected—not to grant rights only to Uno reverse them, not to strip people of rights that should be inalienable, not to cave and instead protect the arguments of those who seek to others’ humanity away.
Maybe that’s a paradoxical belief—I don’t know!!! You go read enough SCOTUS decisions and see how many times they’ve flip-flopped on what counts as constitutional and what doesn’t. I’m starting to think no one really knows and the SCOTUS is just one big long con (please no one take that conspiracy theory seriously).
What I can say for certain is that it definitely feels wrong for the justices’ personal beliefs and dramas to so regularly and blatantly bleed into their decisions—like, I’m thinking about how Clarence Thomas was the only justice to rule in favor of blocking “the turnover of documents to the January 6 House Select Committee, after the U.S. Court of Appeals for the D.C. Circuit said the documents were vital to investigators,” likely because his wife is a loud and proud insurrectionist (roll red wave!!!).
With all this in mind, I wanted to ask:
Emily: Can you explain the politicization of the SCOTUS and how that has impacted the way cases are now decided?
Skylar: I do not in any way mean to minimize the vast damage the current SCOTUS has done in the past couple of years, but the Supreme Court has always been a political entity. From the beginning of its inception, the Justices have been appointed by the President, who have always belonged to a political party, and are very specific about who they nominate to be confirmed.
You can convincingly argue that politics have ALWAYS impacted decisions, and even often times been the motivation for the way they come out.
The thing that’s changed the most is that the politicization in the last 15 or so years now comes at the expense of things like proper legal standing, which is the bedrock of our entire legal system. At the same time, this country is historically very racist, sexist, xenophobic, homophobic and everything else, and the Court exists in that same problematic framework.
We’re seeing an abandonment of a lot of key legal principles that we consider foundational and vital to the Court’s proper function, but I think it’s also it’s just kind of mask-off compared to how it used to be.
Emily: Do you think the recent SCOTUS decisions are based in legitimate legal precedent, or more about political motivations?
Skylar: I don’t feel like I necessarily have the license to answer that question because I’m not in their heads. With that, all cases are based on legal precedent but certainly it is possible—if not likely—that some Justices reach legal conclusions based on their own personal politics and then try to find precedent to support it.
Particularly in light of investigations into Justice Thomas and Justice Alito’s boy trips—something that could eventually warrant a much larger conversation for another time—there have been renewed calls for expanding or even packing the court—a call to action I’ve actually made here before, but also another much larger conversation for another time (Skylar Corby hat trick episode when?).
Still, I would be remiss not to ask Skylar, in these trying times:
Emily: What are your thoughts on calls for expanding or packing the court?
Skylar: I have very complicated feelings on this. There have been calls to expand and/or pack the court for a long, long time, from both sides of the aisle depending on what political side holds the majority at any given time.
On the one hand, it seems like a good idea, because it would get us out of the immediate issues we’re facing by balancing things out. On the other, if we start a precedent if adding Justices to the Court, there’s nothing stopping a Republican president from adding more conservatives to it when the next one gets elected.
I know we all want solutions and that one seems obvious, but I think it’s far more complex than people think for what it could mean for the Court moving forward.
Source: @benwassertweet on Twitter. If you don’t understand what’s happening in this image, I implore you to ask your local Gen Z about MirandaSings the next time you have 45 minutes on your hands.
I’ve talked a lot about the class I took in college that brought me to Roy, but not very much about what the class itself covered. It was called Race, Sex, and Citizenship in the U.S., and we deep-dove into a different SCOTUS case each week that pertained to, you guessed it, race, sex, or citizenship throughout the history of the country.
What I learned there—and I think Skylar has hammered home perfectly here—is that this Court doesn’t just make decisions for the moment even if they are of the moment. They shape a lot of the cultural, political, and, I suppose, legal history that follows in each case’s wake.
Thinking of that, I wanted to ask Skylar:
Emily: How do you think history will remember this court and its decisions?
Skylar: The current Supreme Court has one of the lowest approval ratings its ever had, with only 41% of people approving of the job they’re doing. That’s abysmally low by previous comparison, and it’s just kind of sad. Approval has always ebbed and flowed with the Court, but to know so few people in this country have any faith in it just shows the degree to which the bold-faced politicization and eagerness to overturn precedent has impacted the trust people hold of the institutions that run this country.
With any luck, history will not be kind to this approach, and it will be enough to change course. Once again, fingers crossed.
To close out today’s piece on a lighter note instead of only fixating on how most of our rights will all be gone in a few years if this court continues to have its way, I wanted to put a spin on everyone’s (read: my) favorite game:
Emily: Codify, debate, veto any of the nine SCOTUS justices, but also explain why because these are legal terms.
Skylar: Codify Jackson. The newest to the villa but shown to be a formidable force, and absolutely SLAYS a dissent. A queen.
Debate Kagan. We don’t always agree but she’s incredibly committed to her style of legal analysis and principles which I have to admire.
Veto both Thomas AND Alito. Unsure which one I dislike more, although Alito may take it just because his opinions have way too much snark and are bad. Bye!
Thank you a billion to Sky for not only explaining this to me but to all of you as well!!! I hope in three years, should anyone need an entertainment lawyer, she’s your first call.
I’ll see you all back here next week for Emily For President’s Big 100th Episode Extravaganza!!!! A shocking milestone for everyone—me especially!!!
Not to be totally desperate, but I’ve made it as easy as possible for you to subscribe for free so you kind of don’t have an excuse now.
I’ve also included links throughout to Chris Geinder’s brilliant Law Dork, which I deeply enjoy reading and cannot recommend enough in our highly litigious (big word alert!!!) modern era.
From Skylar: For me, there were a LOT of “major” decisions, like Smith v. United States which held that a defendant may constitutionally be permitted a retrial if it is found the original trial was held in an improper venue, and Counterman v. Colorado, in which the Court held that in establishing speech made by a person is a “true threat,” and not protected by the First Amendment, that prosecutors must prove the person is subjectively aware that the language they’ve used is considered threatening.
For those who obsessively watched the January 6th Committee Hearings (and I know other people besides me did!!! I heard you on the beach on the day of Cassidy Hutchinson’s testimony and almost went over for a watch party!!!), this is different from the legal theories proposed by the pro-coup lawyer, John Eastman. I guess I’m grateful to know there are so many different laws aimed at protecting election integrity in the country but horrified by how we’ve had to find that out.
This article pulls several landmark cases. They do miss a couple of major ones, in my opinion, but the collection they pull is fascinating to read through.
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