Justice Denied: A Tyrannical Court Highlights Necessity For Fundamental Reform

There was no single dominant decision like Dobbs, overturning Roe v. Wade, but for the second year in a row, the Supreme Court’s rightwing majority ended the year in a fit of lawless rulings, declaring themselves superior to and exempt from any other power in the land. This came amidst a flurry of stories about their own corruption as their public approval dropped below 30% — lower even than Donald Trump. They even ruled that a wrongfully convicted person could be kept in prison with no recourse.

But the majority’s endorsement of a so-called “free speech” “right to discriminate” by a website designer was so offensive that Justice Sonya Sotomayor’s dissent explicitly challenged their legitimacy. “The meaning of our Constitution is found not in any law volume, but in the spirit of the people who live under it,” Sotomayor wrote. “Every business owner in America has a choice whether to live out the values in the Constitution. Make no mistake: Invidious discrimination is not one of them.”

For more than 40 years, the conservative legal movement has falsely portrayed itself as uniquely committed to an ethos of judicial restraint keeping it faithful to the original meaning of laws, as opposed to “legislating from the bench.” It was never true, but now that they have a 6-3 SCOTUS majority their actions repeatedly show the exact opposite — a willingness to remake the law arbitrarily ignoring decades — even centuries — of precedent while denying the power of any other political actors who stand in their way.

The rightwing majority didn’t simply overturn long-standing precedent while pretending not to — eviscerating decades of precedent upholding affirmative action and centuries upholding non-discrimination in public accommodations — they made a mockery of the medieval writ of habeas corpus and ignored the most basic principle on the limits of their own powers — the constitutional requirement to only hear actual cases and controversies, not hypothetical ones. In not one, but two cases, they decided in favor of plaintiffs who lacked standing to even bring suit in the first place.

“At the behest of a party that has suffered no injury, the majority decides a contested public policy issue properly belonging to the politically accountable branches and the people they represent,” Justice Elena Kagan wrote in dissent in one of those cases, Biden vs. Nebraska, where the rightwing 6-3 majority overturned the Biden Administration’s loan forgiveness program that would have benefited nearly 37 million Americans. “In every respect, the Court today exceeds its proper, limited role in our Nation’s governance,” she wrote. “And that means the Court, by deciding this case, exercises authority it does not have. It violates the Constitution. And that is a major problem not just for governance, but for democracy too.”

In the second case, 303 Creative LLC v. Elenis, which claimed an unprecedented “right to discriminate” against a protected class, was a Keystone Cops comic disaster, in which even the dissenters failed to realize that the defendant lacked standing because there was no actual case. It wasn’t until the day before the ruling was announced that New Republic reporter Melissa Gira Grant reported that the alleged request for a gay wedding website cited in the case was bogus. It purportedly came from a married straight man who was himself a web designer. But there was so much wrong with the 303 Creative decision that the lack of standing simply did not register.

The designer in question had never created a single wedding website, but claimed that Colorado’s non-discrimination law violated her First Amendment speech rights. But as Justice Sotomayor noted in her dissent, “[T]he law in question targets conduct, not speech, for regulation, and the act of discrimination has never constituted protected expression under the First Amendment. Our Constitution contains no right to refuse service to a disfavored group.”

Sotomayor went on to cite the 1701 ruling in Lane v. Cotton, “’[t]he leading English case’ on the subject ‘cited over and over again in the nineteenth century in the United States,’” quoting from Joseph W. Singer’s No Right to Exclude: Public Accommodations and Private Property.

But the 1701 precedent of Lane v. Cotton was hardly the oldest legal principle SCOTUS discarded in its closing fit of lawlessness. Contrary to popular lore, the writ of habeas corpus — providing recourse against unlawful detention or imprisonment — dates back to before the Magna Carta, to the Assize of Clarendon of 1166. There is a long history of legislation and court rulings regulating how the writ functions in practice, but this term SCOTUS ruled that actual innocence was insufficient for a prisoner to be released. As the American Civil Liberties Union explained on June 22, “Today, in Jones v. Hendrix, the Supreme Court’s conservative majority ruled that federally incarcerated people who are actually innocent – because a prior decision of the Supreme Court declared the conduct for which they were convicted was not criminalized by Congress – can be held in prison with no opportunity to petition the courts to be released.”

The lack of rights granted an innocent prisoner stand in sharp contrast to the open floodgates of rights to discriminate opened in Creative 303, in the wake of which a flurry of follow-up discriminatory actions have been reported. And, as Justice Sotomayor warned in her dissent, “Although the consequences of today’s decision might be most pressing for the LGBT community, the decision’s logic cannot be limited,” Sotomayor wrote. “A website designer could equally refuse to create a wedding website for an interracial couple, for example.”

Relatedly, the rightwing decision striking down affirmative action to promote racial diversity immediately highlighted the much greater role of affirmative action for rich white legacy students, which it completely ignored.

“If SCOTUS was serious about their ludicrous ‘colorblindness’ claims, they would have abolished legacy admissions, aka affirmative action for the privileged,” Rep. Alexandria Ocasio-Cortez tweeted in response to the ruling. And within a week, three Black and Latino groups filed a racial discrimination lawsuit against Harvard alleging that it systematically violates the Civil Rights Act of 1964 by privileging the children of donors and wealthy alumni in its student selection process. It cited data that between 2014 and 2019, such students were respectively nearly seven and six times more likely to be accepted than other students — an overwhelming preferential advantage.

“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,” Justice Katenji Brown Jackson wrote in her dissent. “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.”

Both Jackson and Sotomayor’s dissents made clear that “colorblind” interpretation of the 14th Amendment the majority used was contrary to history as well as past precedents. For example, Sotomayor noted, “Congress also debated and passed the Civil Rights Act of 1866 contemporaneously with the Fourteenth Amendment. The goal of that Act was to eradicate the Black Codes enacted by Southern States … In other words, the Act was not colorblind. By using white citizens as a benchmark, the law classified by race and took account of the privileges enjoyed only by white people.” Not only was the 14th Amendment passed in part to provide clear constitutional support for the Civil Rights Act, both were opposed — most notably by President Andrew Johnson — for supposedly “providing Black citizens with special treatment,” the same false argument the rightwing majority relied on in striking down affirmative action.

While the majority opinion pretended not to overturn precedent, they obviously did, since affirmative action programs have been upheld repeatedly since the 1970s. “There is no better evidence that the Court is overruling the Court’s precedents than those precedents themselves,” Sotomayor wrote in dissent, going on to quote Thurgood Marshall in a similar situation in 1991, “Every one of the arguments made by the majority can be found in the dissenting opinions filed in [the] cases’ the majority now overrules.”

In 2022, the Dobbs decision overturning Roe V. Wade served as a focal point, far more sweeping in its authoritarian roll-back of basic rights than anything else the rightwing SCOTUS majority did. There was a visceral response from the American people, but political leadership failed to channel it properly. State level measures registered clear pro-choice victories from deep red Kansas, Kentucky and Montana to purple Michigan and bright blue California and Vermont. But Democrats failed to build on that sentiment to craft an effective political response — which would have required passing national pro-choice legislation at the very least, and expanding the Supreme Court as a logical, necessary follow-up.

This year, the harms are more diverse, but the threat goes even deeper, as many more avenues of potential harm have been given the false seal of constitutional authorization. No national legislation can undue these harms, except on a temporary, piecemeal basis, except for radical court reform, which too many Democrats — including President Biden — remain opposed to in the name of “institutionalism.” But when an institution isn’t working properly, the true institutionalist’s priority is to fix it. Refusing to fix a broken institution is the exact opposite of institutionalism. So is just tinkering around the edges, allowing the brokenness to deepen and spread.

At least three things need to be done to fix the court: 1) It must have a binding ethics code — just like every other federal court does. 2) Justices must be subject to term limits, with regularly-scheduled new appointments, so that all presidents have equal opportunity to appoint them. 3) The court must be expanded — at a minimum to counter Republican’s manipulations of the appointment process that stole two seats from Democratic presidents, but at a maximum to make it less political and less arbitrary, as the Nation’s Elie Mystal has argued, by expanding it dramatically and reorganizing it to work like circuit courts do, with the vast majority of cases decided by panels of justices in ways that favor narrowly-tailored, case-focused decision-making that favors realistic — not phony — judicial restraint.

Making these fixes will not be easy. But without them, American democracy will not meaningfully survive. It will slowly — or not-so-slowly — be strangled to death by an unelected, unaccountable gang of corrupt tyrants. The damage done these past two years is only the beginning.