SCOTUS has been very busy

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The Supreme Court issued a divided ruling on a pair of challenges to affirmative action policies at Harvard and the University of North Carolina, with potential implications across higher education and beyond.

The court ruled against the programs — saying in the majority opinion written by Chief Justice John Roberts that the systems in place "lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points, those admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause."

But the court did not rule out race entirely in admission programs, adding, "nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life, so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university."

Court has 'gone out of its way' to unravel basic rights, Biden says
In an interview on MSNBC, Biden elaborated on earlier remarks suggesting that the Supreme Court was "not a normal court," telling MSNBC's Nicolle Wallace that it was unmoored in its efforts to "unravel basic rights and basic decisions."

The court has "gone out of its way" in ruling against a number of issues that had precedent for decades, Biden said.

The Supreme Court’s landmark decision on Thursday to gut affirmative action has made it unlawful for colleges to take race into consideration as a specific factor in admissions.

The ruling means that admissions programs like those at the two universities at the center of the case, Harvard University and the University of North Carolina, are no longer permitted.

Here are some other key effects of the ruling.

Majority says race can still be a part of admissions applications, minority unconvinced
While the decision will impact admissions policies that have historically benefited Black and Latino students, the ruling still allows colleges and universities to consider an applicant’s discussion of how race has affected their life as long as it is “concretely tied” to a “quality of character or unique ability” that the applicant can bring to the school.

Chief Justice John Roberts, in the majority opinion, noted that applicants could share in essays also how their heritage or culture motivated them to take on a leadership role, for instance.

In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race,” the opinion stated.

Dissenting Democratic-appointed justices objected, insisting that the ruling would make it practically impossible for colleges and universities to take race into account in admissions.

Justice Sonia Sotomayor wrote that the court was “merely” imposing its “preferred college application format” on the country by “taking on the role of college administrators to decide what is better for society.”

“Because the Court cannot escape the inevitable truth that race matters in students’ lives, it announces a false promise to save face and appear attuned to reality,” she wrote. “No one is fooled.”

What the ruling has not changed
While colleges and universities will no longer be able to consider race as the sole factor, Sotomayor noted in her dissent that the ruling still allows colleges and universities to consider other factors to increase diversity on campus.

Colleges can consider students who speak multiple languages or could be the first in their family to attend college, Sotomayor wrote.

The Biden administration also announced several plans Thursday to help colleges continue their efforts to recruit diverse student bodies in light of the decision. Those steps include releasing a report on strategies for increasing diversity and educational opportunity and providing schools with guidance on what is and isn’t allowed, among other things.

The impact will vary state-by-state, school-by-school
Not all higher education institutions will be affected by the ruling. The decision allows US military service academies to continue to take race into consideration as a factor in admissions.

Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law, said that the impact could also vary depending on where schools are located.

In states that continue to permit colleges and universities to take race into account, “we’ll surely see efforts to encourage the kinds of uses the majority does not expressly disavow — whether in diversity statements or elsewhere,” he said.

The Supreme Court on Friday ruled in favor of an evangelical Christian web designer from Colorado who refuses to work on same-sex weddings, dealing a setback to LGBTQ rights.

The justices, divided 6-3 on ideological lines, said that Lorie Smith, as a creative professional, has a free speech right under the Constitution’s First Amendment to refuse to endorse messages she disagrees with. As a result, she cannot be punished under Colorado’s antidiscrimination law for refusing to design websites for gay couples, the court said.

The ruling could allow other owners of similar creative businesses to evade punishment under laws in 29 states that protect LGBTQ rights in public accommodations in some form. The remaining 21 states do not have laws explicitly protecting LGBTQ rights in public accommodations, although some local municipalities do

"The First Amendment envisions the United States as a rich and complex place, where all persons are free to think and speak as they wish, not as the government demands," Justice Neil Gorsuch wrote for the court.

Gorsuch, who wrote a 2020 ruling that expanded LGBTQ rights in an employment context, said that public accommodation laws play a vital role in protecting individual civil rights.

"At the same time, this court has also recognized that no public accommodation law is immune from the demands of the Constitution. In particular, this court has held, public accommodations statutes can sweep too broadly when deployed to compel speech," he added.

Smith, who opposes same-sex marriage on religious grounds and runs a business designing websites, sued the state in 2016 because she said she would like to accept customers planning opposite-sex weddings but reject requests made by same-sex couples wanting the same service. She was never penalized for rejecting a same-sex couple — and it's unclear if she ever did — but sued on hypothetical grounds.

Justice Sonia Sotomayor, writing the dissent, said the court's ruling was part of "a backlash to the movement for liberty and equality for gender and sexual minorities" and a type of "reactionary exclusion," calling it "heartbreaking."

In a stern voice, she read a summary of her dissent from the bench, saying in court that the decision allowing Smith to sell her product only to opposite-sex couples "makes a mockery of the law."

She compared Smith's situation to historic cases of racial discrimination in which restaurants would refuse to serve Black people inside but would allow them to collect pick-up orders from a side counter, effectively treating them like second-class citizens.

The Supreme Court’s ruling Friday in favor of a Christian website designer who doesn’t want to make wedding websites for same-sex couples has raised a long list of legal questions. Among them: Are businesses now allowed to refuse to serve same-sex couples or LGBTQ people, generally?

Legal experts have mixed opinions, but most of them say that the answer, at least for the majority of businesses, is no — at least for now.

Justice Neil Gorsuch, who wrote the majority opinion, noted repeatedly that the case, 303 Creative LLC v. Elenis, centered on a very specific type of speech. The website designer’s business provided “expressive,” individualized services and involved “pure speech,” meaning literal written words. However, many businesses provide expressive services, legal experts said.

And, even though Friday’s decision was narrow, some experts said it could be expanded in coming years to slowly chip away at nondiscrimination laws that prevent businesses from discriminating against people based on race, religion, sexual orientation, gender identity, age and other protected classes.

“A hairstylist is expressive, an architect provides an expressive service, a college application essay assistance service is expressive, a photography studio provides expressive services,” said David Cole, legal director of the American Civil Liberties Union, who argued a case before the Supreme Court involving a Christian baker in Colorado who refused to make a wedding cake for a same-sex couple.

“So does this mean that a corporate photography studio could refuse to take portraits of women because of the belief that women should not work outside the home? The majority, said Cole, “does not take on that core question, which is, what is the limit of their decision?”

Mary Bonauto, who argued on behalf of same-sex couples in Obergefell v. Hodges, the Supreme Court case that granted same-sex couples the right to marriage, called the court’s ruling “a mixed bag.”

Bonauto, who now serves as the civil rights project director at GLBTQ Legal Advocates & Defenders, or GLAD, said she interpreted the court ruling to protect only businesses that offer services as unique and specific as Smith’s.

“The overwhelming majority of businesses out there do nothing like this, nothing like vetting and unique customization per person, per couple and creating unique artwork and designs and texts for each. The fact that this was all in writing was extremely influential to the court,” Bonauto added, referring to Smith’s website designs. “I want to be clear, however, that this does open the door to businesses that want to claim they provide customized services and therefore use that claim to discriminate against people they would prefer to exclude.”

Bonauto acknowledged that the way the public might interpret “expressive” services could differ from the court’s interpretation in its Friday ruling.

Anthony Michael Kreis, assistant professor of law at Georgia State University, said “90%, 95% of the kind of ordinary public accommodations, commercial transactions that people have, will remain untouched.” He used as examples sandwich shops, mechanics and hotels, where he said “there’s no expressive content.”

Kreis added, however, that certain creative businesses fall into a “danger zone.” These businesses include florists, cake decorators and DJs, because they do create tailored, expressive content for customers — though they don’t use speech in the same way Smith does.

Erin Hawley, an attorney for the Alliance Defending Freedom, the conservative Christian legal group representing Smith, agreed with other legal experts that the court’s ruling would protect businesses only in cases where “speech is being created.”

If you’re talking about goods that are so-called off-the shelf, if you had a premade T-shirt, then nondiscrimination laws apply as they usually do, and a shop owner has to sell that T-shirt to anyone,” Hawley said. “On the other hand, if a T-shirt owner, or shop owner, is creating a message, then that’s where the First Amendment applies and says that the government cannot force someone to say a speech-specific message that they disagree with.”

Katherine Franke, the director of the Center for Gender and Sexuality Law at Columbia Law School, doesn’t agree and said the decision could be used by a variety of businesses that don’t want to provide services to certain people.

“There’s a lot of craft that goes into making a good sandwich,” Franke said. “You go into those delis, and they’ve named them after fun things and they put some creativity into it and that’s their signature sandwich. Is that creative activity that’s protected by the First Amendment? Well, kind of after 303 Creative.”

She added that the court’s “sweeping” decision uses the First Amendment to “override what is a democratically determined set of rights for LGBT people, but for a larger class than that as well.”

“We’ve never seen anything like this before, where one’s free speech rights or beliefs expressed through some creative or form of speech in opposition to equality basically gut those equality rights that we’ve enacted through a proper democratic process,” Franke said.

Smith won her case by asserting that Colorado’s nondiscrimination law would violate her freedom of expression, but the First Amendment also includes the freedom of association, which means the right to freely interact with or associate with groups.

Georgetown University law professor Paul Smith — who argued the landmark Supreme Court case Lawrence v. Texas, which found sodomy laws unconstitutional in 2003 — predicted that freedom of association claims are where future lawsuits on this issue will arise.

“What you’re going to start to see eventually is people saying, ‘I run my little inn in this little town somewhere, and I don’t want to have same-sex couples sleeping in one of my bedrooms. I don’t want to be associated with that conduct,’” Professor Smith said. “The freedom of association is a separate First Amendment right they might try to utilize to expand this beachhead that they’ve established into the business world of using First Amendment arguments to establish the right to discriminate.”

He said the court’s decision raises the question of not just which businesses can refuse services, but also to whom — can they refuse interracial couples, for example?

“The court is just embarking on what may be a multi-year process of trying to figure out how far this will go and how to limit it,” he said

The Supreme Court on Friday invalidated President Joe Biden’s student loan debt relief plan, meaning the long-delayed proposal intended to implement a campaign trail promise will not go into effect.

The justices, divided 6-3 on ideological lines, ruled in one of two cases that the program was an unlawful exercise of presidential power because it had not been explicitly approved by Congress.

Biden said the ruling was disappointing and vowed to take additional steps to relieve the financial burden on those holding student loan debt.

"I will stop at nothing to find other ways to deliver relief to hard-working middle-class families," he said. "My administration will continue to work to bring the promise of higher education to every American”.

The court rejected the Biden administration’s arguments that the plan was lawful under a 2003 law called the Higher Education Relief Opportunities for Students Act, or HEROES Act. The law says the government can provide relief to recipients of student loans when there is a “national emergency,” allowing it to act to ensure people are not in “a worse position financially” as a result of the emergency.

Chief Justice John Roberts said the HEROES Act language was not specific enough, writing that the court's precedent "requires that Congress speak clearly before a department secretary can unilaterally alter large sections of the American economy."

The plan, which would have allowed eligible borrowers to cancel up to $20,000 in debt and would have cost more than $400 billion, has been blocked since the 8th U.S. Circuit Court of Appeals issued a temporary hold in October.

About 43 million Americans would have been eligible to participate.

The student loan proposal was important politically to Biden, as tackling student loan debt was a key pledge he made on the campaign trail in 2020 to energize younger voters.

The ruling immediately puts pressure on the administration to find an alternative avenue to forgive student debt that could potentially withstand legal challenge.

Biden said Friday that he would invoke the 1965 Higher Education Act, a different law than the one at issue in the Supreme Court cases, which some experts have said gives the Education Department broad authority, although that proposal could take time to implement.

The Supreme Court on Friday agreed to weigh whether people accused of domestic violence have a right to own firearms in a case that will test the scope of recently expanded gun rights.

The justices agreed to hear a Biden administration appeal in defense of a federal law that prohibits people subject to domestic violence restraining orders from possessing guns.

In doing so, the justices will examine how broadly they will interpret their landmark ruling a year ago, powered by the court's conservative majority, that for the first time recognized that the Constitution's Second Amendment includes a right to bear arms outside the home.

The case will be argued in the court's next term, which begins in October and ends next June.

The Supreme Court on Friday rejected a challenge to a constitutional amendment adopted by the state of Mississippi during the racist Jim Crow era aimed at preventing Black people from voting.

The justices left in place a law barring certain felons from voting, which the state says is no longer tainted by the racist intentions of its original authors because it has subsequently been updated on two occasions.

The court's decision not to hear the case prompted a sharp dissenting opinion from liberal Justice Ketanji Brown Jackson, joined by fellow liberal Justice Sonia Sotomayor.

She contrasted the decision on Friday with the court's ruling a day earlier that effectively ended the consideration of race in college admissions.

If the court viewed affirmative action as race discrimination, then the Mississippi measure must be seen similarly, Jackson said.

The measure was first enacted in 1890 at a time when whites in the Deep South were fighting back against post-Civil War efforts to ensure formerly enslaved Black people had equal rights.

The specific aim of the amendment was to disproportionately prevent Black people from voting by removing voting rights from felons convicted of what were thought to be "Black crimes" and declining to do the same for "white crimes."

As such the amendment removed voting rights from people convicted of bribery, burglary, theft, arson, obtaining goods or money under false pretenses, perjury, forgery, embezzlement and bigamy. The list did not include the more serious crimes of murder and rape.

The measure, known as Section 241, was first amended in 1950 by removing burglary from the list and was changed again in 1968 when rape and murder were added. On both occasions, the proposed changes were adopted by the Legislature and ratified by voters.

Roy Harness and Kamal Karriem, two Black men whose voting rights were removed after they were convicted of forgery and embezzlement, respectively, brought the legal challenge in 2017. They say Section 241 violates the Constitution's 14th Amendment, which requires that the law applies equally to everyone, and the 15th Amendment, which prohibits the denial of the right to vote on the basis of race.

The Supreme Court said Tuesday that the North Carolina Supreme Court did not violate the elections clause of the US Constitution when it invalidated the state’s 2022 congressional map, rejecting a broad version of a controversial legal Independent State Legislature theory pushed by supporters of former President Donald Trump.

Chief Justice John Roberts wrote the 6-3 opinion.

The case had captured the nation’s attention because Republican lawmakers in North Carolina were asking the justices to adopt a long-dormant legal theory and hold that state courts and other state entities have a limited role in reviewing election rules established by state legislatures when it comes to federal elections.

“State courts retain the authority to apply state constitutional restraints when legislatures act under the power conferred upon them by the Elections Clause,” Roberts wrote

The court allowed that federal courts can have some role supervising state courts in certain circumstances, with Roberts writing that “state courts do not have free rein.”

“Federal courts,” Roberts said, “must not abandon their duty to exercise judicial review.”

“When state legislatures act pursuant to their Elections Clause authority, they engage in lawmaking subject to the typical constraints on the exercise of such power,” he wrote. “In sum, our precedents have long rejected the view that legislative action under the Elections Clause is purely federal in character, governed only by restraints found in the Federal Constitution.”

Roberts was joined by fellow conservative justices Brett Kavanaugh and Amy Coney Barrett and liberal justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson.

Dissent by court’s far-right wing
Justice Clarence Thomas wrote a dissent, joined in full by Justice Neil Gorsuch and in part by Justice Samuel Alito, arguing that the court should have dismissed the case as moot, given how circumstances around the case evolved after the justices heard it.

“In short, this case is over, and petitioners won,” Thomas wrote, referring to how a newly-reconstituted North Carolina Supreme Court reheard the case this year and reversed its decision in favor of the defenders of the Republican-drawn map. “It follows that no live controversy remains before this Court.”

In a section joined only by Gorsuch, Thomas went on to criticize the merits of the majority’s opinion Tuesday.

Thomas accused the majority opinion of opening “a new field for Bush-style controversies over state election law – and a far more uncertain one” – an allusion to the blockbuster election disputes that arose in the 2000 presidential race.

Ruling cheered by voting rights attorneys
The court’s ruling was praised by a large swath of voting rights attorneys, including the lawyers who represented the voters who had challenged the North Carolina redistricting map and who opposed the independent state legislature theory in court.

“This ruling is a complete victory for our democratic system and makes clear that state legislatures cannot ignore or defy state law when regulating federal elections,” said Jessica Ring Amunson and Sam Hirsch, partners at the law firm Jenner & Block who represented one of the voter advocacy groups involved in the case.

Hilary Harris Klein – a senior counsel for voting rights at Southern Coalition for Social Justice, another voting rights group involved in the litigation – said that Tuesday’s “decision will ensure that voters will continue to have the full protection of state constitutions against harmful and anti-democratic voter suppression and election manipulation.”

The Supreme Court on Tuesday wiped away a lower court decision upholding the stalking conviction of a Colorado man who sent hundreds of messages to a woman over Facebook.

The justices said the court had used the wrong standard in convicting the man and sent the case back down with a new test to apply to the case. The justices said it would suffice for prosecutors to show that the speaker was aware that his speech could be viewed as a threat and that the speech was reckless, even if not intentionally threatening.

The court’s move could worry those working to combat stalking in the age of social media where the internet has expanded the number of violent threats, enabling activities that include online harassment and intimidation. They fear the court’s standard could raise the bar for the government when trying to prove that a series of messages amounted to a true threat, unprotected by the First Amendment.

While advocates for abused women have pushed the court to protect less such threatening speech, free speech advocates have expressed concern that the court could act too broadly and chill speech that is misunderstood to be a threat.

The case involves a Colorado man, Billy Raymond Counterman, who was convicted of stalking a songwriter, Coles Whalen, after sending her hundreds of direct messages on Facebook.

Whalen found the messages “creepy” especially because they indicated he was surveilling her. She never responded, but instead, repeatedly tried to block him on Facebook. But he continued to create new accounts in order to send her messages.

The messages –over a two year period– included:

• “was that you in the white Jeep?”

• “seems like I’m being talked about more than I’m being talked to. This isn’t healthy.”

• “You’re not being good for human relations. Die. Don’t need you.”

At one point he asked her for a “hot date at Wal-Mart” and another time expressed anger and frustration at her lack of response.

Whalen was so upset she took preventative measures such as hiring extra security and even canceling some of her performances. Ultimately, she filed suit, and Counterman was found guilty of stalking and sentenced to four and a half years in prison. But his lawyers argued that the conviction violated his free speech rights.

The Supreme Court has defined “true threats” – those that are unprotected by the First Amendment – as statements by which the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence. The speaker need not carry out the act.

But lower courts have been divided over whether the government must demonstrate that the speaker knew the threatening nature of the speech. Some courts have said it’s enough that a “reasonable person” recognized the threat.

Dirtbags. Except for the f**k trumpism thing - that one's cool.