The Year of "To be Continued" at the Supreme Court

There is much to say and criticize about the Supreme Court's 2022-23 term. The justices decided to micromanage the admissions policies of many colleges and universities nationwide without any justification in text or history, striking a major blow against diversity on our campuses. The justices invalidated President Biden's plan to deal with student loans after the Covid-19 emergency. The plan was authorized by a federal statute giving the president discretion to modify or waive student loans in time of war or emergency. And the justices reached out unnecessarily to privilege expressive rights under the first amendment over Colorado's efforts to fight LGBTQ discrimination. These cases, and several others, represent major changes to constitutional law, with harmful effects on the ground to follow. There is no shortage of commentary on how the Roberts Court is moving constitutional law far to the right.

One important aspect of the Court's cases this term that so far has gone mostly unnoticed, however, is how much uncertainty these opinions have created and how much discretion lower court judges will have in the future to decide important cases based on the judges' values and politics--not text, history, or precedent. That result is especially unnerving given that just last term the Court said in Bruen that text and history, not concerns for consequences, are the lodestar of constitutional interpretation. Well, this term the lodestars of text and history gave way to a dark black hole of unclear precedent based on the justices' policy preferences.

At the end of the affirmative action cases in which the six conservatives declared the admissions policies at Harvard and UNC illegal, Chief Justice Roberts said the following:

Nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise. But ... universities may not simply establish through application essays or other means the regime we hold unlawful today.... W]hat cannot be done directly cannot be done indirectly.... A benefit to a student who overcame racial discrimination, for example, must be tied to that student’s courage and determination. Or a benefit to a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal must be tied to that student’s unique ability to contribute to the university. In other words, the student must be treated based on his or her experiences as an individual—not on the basis of race. 

So university admissions committees may look at and consider how race affected a specific person's life but are not allowed to take race into account generally. Leaving aside that nothing in the text or history of the 14th Amendment could possibly suggest such a bizarre dichotomy, there will undoubtedly be endless litigation over what the above-quoted paragraph means. 

Additionally, the Court's reference to universities not being allowed to do indirectly what they are prohibited from doing directly suggests that facially race-neutral policies designed to increase diversity, such as Top-10% programs, may now be unconstitutional. In short, the debates over affirmative action in the courts are far from over, and much more work needs to be done to actually implement the Court's anti-historical, non-textual embrace of color-blindness as a strong constitutional principle.

The dark-money-backed lawsuit brought on behalf of the Colorado wedding site web designer who didn't want to sell her services to same-sex couples leaves many important issues unanswered. The Court ruled for the designer, saying that states violate the first amendment when they compel expression, even if they are doing so to fight discrimination against traditionally marginalized groups. 

However, as Mike noted on Fridaywhen the decision came down, the conservatives relied mostly on the stipulations in the case to determine that expression was actually at issue, leaving open what will count as expression in the future. How about caterers for weddings or just caterers generally? Or, as Justice Sotomayor said in dissent, under the Court's rationale, it is possible that "a stationer could refuse to sell a birth an­nouncement for a disabled couple because she opposes their having a child. A large retail store could reserve its family portrait services for 'traditional' families. And so on." We just don't know how these kinds of issues will be decided in the future because the Court gave little guidance on what counts as expression and what does not.

What makes all of the above even more problematic is that the Court didn't even have to weigh in on this difficult case at all. The plaintiff has not yet started her wedding-website business, and it appears no same-sex couple has ever asked her to design such a site. Although I think the Court technically had jurisdiction over the case, there was no compelling reason to decide it. And given how much the Court left open, it appears the conservatives mostly wanted to just score culture war points rather than set forth meaningful rules or standards for lower court judges to apply in future cases.

Many commentators, including Mike, thought the country escaped a major blow in Moore v. Harper when the Court rejected the strong version of the independent state legislature doctrine. In a 6-3 opinion written by the Chief, the Court rejected the idea that state courts have no role to play in election disputes involving partisan redistricting, voter-ID laws, and other election-related issues. But, as Professor Rick Hasen, a nationally prominent election law scholar, observed in a piece devoted to the "time bomb" planted in Moore, the Court also said that federal courts would have jurisdiction to decide whether state election disputes decided by state courts under state law may still violate the federal Constitution because the decisions might "exceed the bounds of ordinary judicial review." I do not think anyone has any idea what that phrase means. 

The Court also said that it did not

adopt ... any ... test by which we can measure state court interpretations of state law in cases implicating the Elections Clause. The questions presented in this area are complex and context specific. We hold only that state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.

As Justice Thomas said in dissent:

What are ‘the bounds of ordinary judicial review’? What methods of constitutional interpretation do they allow? Do those methods vary from State to State? And what about stare decisis—are federal courts to review state courts’ treatment of their own precedents for some sort of abuse of discretion? The majority’s framework would seem to require answers to all of these questions and more.

Reasonable people can disagree over how much uncertainty lies ahead (I think a lot; Mike is more optimistic). But two things are clear: 1) the Court's explicit approval of Bush v. Gore represents the first time that ghastly case has been used by the Court for important purposes; and 2) the opinion itself is open to many different interpretations, as the disagreements among progressive scholars indicate. My best guess is that future judges will also disagree on what the case really means.

That uncertainty is unnecessary and unfortunate because, again, there was no good reason for the Court to even decide this case. As I wrote recently, the North Carolina Supreme Court's latest decision in this litigation rested exclusively on state law by holding that the political question doctrine barred partisan gerrymandering claims, and there is no possible argument that that decision violates federal law. Therefore, the Court should have dismissed the case under the adequate and independent state law doctrine. Instead, it unleashed a decision without meaningful guidance for lower courts to apply in the future (other than the rejection of the strongest version of the ISL theory).

On the last day of the Court's term, the conservative justices struck down President Biden's student loan forgiveness program that he implemented to help with the Covid-19 emergency. Biden took this step pursuant to the following statutory language:

The Secretary ... may waive or modify any statutory or regulatory provision applicable to the student financial assistance programs under title IV of the [Education Act] as the Secretary deems necessary in connection with a war or other military operation or national emergency.

The justices once again employed the made-up "major questions doctrine" to limit the President's discretion. That doctrine appears to require Congress to act with great specificity when delegating its power over "major questions" to the President. But nowhere does the Court attempt to define the contours of the doctrine, define what a major question is, or how much specificity is required. The doctrine seems especially out of place in this case, given that it is impossible to know what kinds of emergencies will happen in advance nor what must be done to deal with them. There is simply nothing in the Constitution to suggest that Congress cannot delegate emergency powers to the President. He is the only political actor on duty twenty-four hours a day, seven days a week, and the last thing we want is Congress endlessly debating what to do in the face of an emergency when time may well be of the essence.

In any event, the decision clearly allows the lower courts to impose their political views on the wisdom of the administrative state with little or no guidance from the Supreme Court. I have little doubt that Trump judges will jump on this opportunity at a rapid rate until or unless the Supreme Court provides substantially more guidance. 

The justices, as virtually everyone predicted, ruled against Blacks, the LGBTQ community, and the President. The rulings, in contrast to last term's Dobbs opinion, also took away substantial power from the states by declaring illegal important tools states have used to achieve a more diverse and tolerant society. But the biggest take-away from the term is that the justices gave lower court judges all kinds of indeterminate and fuzzy rhetorical devices to usurp the power of both state and federal elected officials in ways that will likely cause grave harm to our country. How much harm will those judges actually inflict? Well, that's a blog post "to be continued."