The Supreme Court wrapped up this term with a pair of completely arbitrary and capricious rulings, based on lies and controversies manufactured by far-right political actors, restricting LGBTQ protections and striking down President Joe Biden’s student loan forgiveness program. Both cases were deeply flawed procedurally, but that wasn’t going to stop the six far-right extremists on the court from imposing their will. This illegitimate court has once again wreaked untold future damage on this country. It has to be stopped.
In 303 Creative LLC v. Elenis, the court took on a case conjured up by the far-right Christian group Alliance Defending Freedom based on a lie, and then, in the words of Justice Sonia Sotomayor in her dissent, used that case to “for the first time in its history, [grant] a business open to the public a constitutional right to refuse to serve members of a protected class.” That opens the door for public businesses to decide they don’t want to serve LGBTQ couples, or interracial couples, or disabled couples, or members of churches they don’t like.
The plaintiff, Lorie Smith, insists that she wants nothing more than to create a business making customized wedding websites for straight couples, but the state of Colorado’s anti-discrimination laws are preventing her from doing that. She’s supposedly been making these plans for years, having filed the case in 2016, but never created the business. She was never sanctioned by the state for turning away an LGBTQ couple because her business did not exist. The case was bolstered initially with a supposed inquiry from a gay man, conveniently submitted just a day after the case was filed, which turned out to be a complete fake.
Justice Neil Gorsuch, writing for the majority, acknowledged, "While Ms. Smith has laid the groundwork for her new venture, she has yet to carry out her plans." The case shouldn’t exist! There’s nothing to litigate because she was never harmed, but this illegitimate court majority took the case anyway and used it to once again erode civil rights and set back equality gains.
The majority then announced, with an opinion from Chief Justice John Roberts, that it was overthrowing the student loan forgiveness program, granting a request from six Republican state attorneys general on behalf of a loan servicer, the Missouri Higher Education Loan Authority, that did not want to be used as a plaintiff. Without MOHELA, the states did not have standing to bring the suit—they are not directly harmed.
Roberts and the majority weren’t going to be bothered by the fact that their plaintiff was an unwilling participant in this highly partisan scheme. "By law and function, MOHELA is an instrumentality of Missouri ... The [debt forgiveness] plan will cut MOHELA's revenues, impairing its efforts to aid Missouri college students,” Roberts wrote. “This acknowledged harm to MOHELA in the performance of its public function is necessarily a direct injury to Missouri itself."
Never mind that in oral arguments the state admitted that MOHELA wasn’t aiding Missouri college students because it hadn’t paid into that fund in 15 years, and “said in its own financial documents that it doesn’t plan to make any payments in the future.” This too was all made up.
Justice Elana Kagan was having none of that in her dissent. The court's "first overreach is deciding it at all" she wrote, saying that the states did not have a right to sue. "The plaintiffs in this case are six States that have no personal stake in the Secretary' loan forgiveness plan. They are classic ideological plaintiffs: They think the plan a very bad idea, but they are no worse off because the Secretary differs."
And off she goes:
The statute provides the Secretary with broad authority to give emergency relief to student-loan borrowers, including by altering usual discharge rules. What the Secretary did fits comfortably within that delegation. But the Court forbids him to proceed. As in other cases, the rules of the game change when Congress enacts broad delegations allowing agencies to take substantial regulatory measures.
This, she says, is "no proper role for a court. And it is a danger to a democratic order." That brought a pearl-clutching rebuke from Roberts, who answered her dissent by declaring it "harmful to this institution and our country."
The harm to the institution is entirely self-inflicted by Roberts and his ethically challenged majority. The court continues to take on flawed cases that have no business being heard, and making arbitrary rulings based on their political whims, dressed up in originalist fantasies. It has to be stopped
That could include enforcing a code of ethics, legislation the Senate Judiciary Committee is going to take up after the July recess, and measures recommended by the Brennan Center, such as limiting justices’ terms to 18 years and ensuring that each president gets two appointments to the court per presidential term. It would create a revolving core of justices, giving those whose terms were up the chance to take senior status and still participate as needed either on the Supreme Court or on a lower court.
All of that would be great, but what the country urgently requires is an expansion of the court to block this six-member wrecking ball.