On Saturday, when Twitter experienced its latest disruption, hundreds of additional people subscribed to receive this regular email from me. Thank you. Some of you even paid for subscriptions, which is humbling; and I expect to offer some benefits to paid subscribers soon!
If you like what you read here, will you do a favor? Forward this note to a friend and invite them to subscribe here. Most posts will remain free to all.
Today’s post came about as many do: it grows out of the news I cover daily. In the past week I’ve taken part in NPR’s coverage of several Supreme Court rulings. I now give some thoughts on what I learned.
It’s tempting to boil down some big cases to three yes/no questions.
Can Republican legislatures make extreme power grabs?
No
Can conservatives count on the Court’s sympathy in the culture wars?
Yes
Can President Biden make expansive use of executive power?
No
This yes-no formula misses many nuances, of course. Each case is different, is supported by different reasoning and, in some cases, backed by different majorities of justices. Still the three questions help me in thinking about some of the cases. Let’s take them in order.
Can Republican legislatures make extreme power grabs?
Both liberal and conservative justices repeatedly turned back Republican state legislatures seeking creative ways to wield power. North Carolina lawmakers may not invoke the “independent state legislature theory” to make partisan election maps while ignoring the objections of the state supreme court. Alabama may not draw election districts that seem to dilute the power of Black voters, despite federal law to the contrary. Texas and Louisiana may not dictate federal immigration policy to the Biden administration.
Rick Pildes, a constitutional law professor at New York University, came on Morning Edition to analyze this. He said this term has proven it’s “too simplistic” to assume that the Court would always limit voting rights or always support Republican lawmakers. (Sometimes in the past, it has done both.) “There was a basis for believing” that the court might embrace the independent state legislature theory, Pildes said, “because several justices in separate statements in the last few years had indicated some support for the doctrine. But… when the court actually confronted the huge range of implications that would follow from embracing this doctrine, I think the court backed away and reaffirmed what has been the practice throughout our history.”
In each of the three cases, state officials proposed to alter, or override, the checks and balances of our complicated republic. The Court declined to cooperate. The checks and balances themselves blocked these efforts: the Court checked the states.
Can conservatives count on the Court’s sympathy in the culture wars?
Asked to choose between a prospective Colorado business owner and the state public accommodations law, the Court chose the business owner. The state law requires public-facing businesses to provide equal service to everyone. The business owner said she wanted her web design company to design pages for weddings, but feared that she might someday be asked to design a page for a same-sex wedding. She also wanted to post a sign saying that she would refuse service to same-sex couples. (Or rather, that she would serve them, if only they weren’t asking for same-sex wedding services.) The Court embraced her argument that she was not providing a service so much as exercising her right of free speech.
In his opinion, Justice Neil Gorsuch urged “tolerance, not coercion” in response to the web designer’s viewpoint; hers is a much less popular opinion than it used to be. In other words, he did not cast her as a member of a powerful majority, but as a minority who needed protection—the role that a same-sex couple might have thought they were playing.
Gorsuch relied on precedents, such as a case in which the Court found that West Virginia could not force schoolchildren to salute the flag. It wasn’t a baseless opinion. But in a dissent, Justice Sonia Sotomayor asserted that the services that the business owner wanted to deny to same-sex couples hardly amounted to “meaningful speech.”
The ruling was in line with the stated personal opinions of at least one member of the majority. In 2020 Justice Samuel Alito told an influential conservative legal group, the Federalist Society, that he felt religious freedom was under threat. He specifically complained that it was under threat from same-sex marriage advocates. He even talked about an earlier case involving services for a gay wedding in Colorado. He went on to say, “One of the great challenges for the Supreme Court going forward will be to protect freedom of speech.” Soon a case arrived that seemed to be in line with his preference. The Court chose to take this case—it does not hear all cases that come before it—and the ruling matched Alito’s preference too.
I should pause here to acknowledge that everyone has opinions, and I don’t think a personal opinion alone is proof of bias. Judges can have personal opinions and still fulfill their roles. So can politicians, police officers, prosecutors, defense lawyers, members of a jury. Even journalists! It’s corrosive to assume everyone who has an opinion is acting in bad faith; nor is it necessary to assume anything. A Supreme Court ruling is a public document that anybody can read, which either is well reasoned or is not. But it is useful in this case to know Alito’s view, and see its resemblance to Gorsuch’s ruling. Both statements are alive to the idea that religious conservatives are under threat.
The Court ruling against elite university admissions policies is considerably more complex. This article by Jay Caspian Kang gets at some of the complexities.
In Kang’s telling, affirmative action in the 1960’s and 1970’s was designed to lift up Black Americans who had been held down by law. Businesses and institutions across society had admitted few or no Black people, and simply had to start. Among other things, universities welcomed more Black students than in the past. But in 1978, responding to a lawsuit by a white student who said he’d been denied admission to medical school at the University of California, the Court found it unconstitutional to focus on groups—to admit some students and reject others because of their group identities.
Ever since then, elite universities have responded with elaborate admissions systems designed to achieve the same basic goal while professing to focus instead on the more general concept of diversity. The whole process relied on ambiguity. In Kang’s view, elite schools also pretended to care about social justice while continuing to cater to and service elites. Their systems also failed to take account of an ever-more-diverse country. Finally, Kang says, the Court ended the charade.
Can President Biden make expansive use of executive power?
The Court rejected Biden’s student loan forgiveness plan, asserting that the president could not erase hundreds of billions of dollars in debts without the approval of Congress. The Biden administration said Congress already had approved, by setting up the student loan program and giving the president broad authority to “waive or modify” the terms of repayment.
Chief Justice John Roberts ruled that “waive or modify” meant that Biden could tweak the terms, but Biden instead rewrote them entirely by forgiving millions of loans, at a cost of “between $469 billion and $519 billion.”
Roberts’ opinion went on to add an exposition of the “major questions doctrine.” This is a recent innovation of conservative legal scholars, proposing that Congress can’t delegate certain big decisions about the economy to the president and his administration.
Depending on your point of view, the Court is either correcting the system of checks and balances, which had leaned too far toward the president—or else they are changing the system of checks and balances to restrain presidents. Its critics note that the Court has twice used the doctrine to restrain a Democratic president from enacting big policies that Republicans didn’t like—first a climate policy, now student loans.
This is unsurprising, since the doctrine embodies conservative concerns about the “administrative state,” which is to say the power. of federal regulators and experts.
In a concurring opinion, Justice Amy Coney Barrett insisted that the doctrine was merely a new name for the Court’s old role of carefully interpreting the statutes that Congress passes. In her dissent, Justice Elena Kagan declared that the majority exceeded its authority “in every respect” by applying its “made-up major questions doctrine” to achieve the partisan outcome it preferred.
Congress may have wanted the Secretary [of Education] to have wide discretion during emergencies to offer relief to student-loan borrowers. Congress in fact drafted a statute saying as much. And the Secretary acted under that statute… But none of that is enough. This Court objects to Congress’s permitting the Secretary (and other agency officials) to answer so-called major questions. Or at least it objects when the answers given are not to the Court’s satisfaction.
Chief Justice Roberts didn’t like this. He would rather have the Court known for judicial modesty—and in many cases has managed to steer its majorities toward a limited rather than sweeping outcome. (He even incurred years of conservative rage by voting to uphold a priority of a Democratic president, Obamacare.) In this case, however, Roberts himself wrote the majority opinion. And having seen a draft of Kagan’s criticism, he added a paragraph to his opinion.
It has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary. Today, we have concluded that… the words “waive or modify” do not mean “completely rewrite”; and that our precedent— old and new—requires that Congress speak clearly before a Department Secretary can unilaterally alter large sections of the American economy… Reasonable minds may disagree with our analysis—in fact, at least three do… We do not mistake this plainly heartfelt disagreement for disparagement. It is important that the public not be misled either. Any such misperception would be harmful to this institution and our country.
In his roundabout way, Roberts is insisting that Kagan’s fierce dissent should not be used to discredit the Court he leads.
Thanks for reading Differ We Must. It’s a companion to Differ We Must, my forthcoming book which tells Lincoln’s life story through his meetings with people who disagreed with him. It’s out October 3, and you can preorder here.
The 1st question’s phrasing sounds strange to me.
“Can Republican legislatures make extreme power grabs?”
The idea that only one party (and not the other) would want to “power grab” is very bizarre.