Opinion: It is almost exactly a year since I wrote about the US Supreme Court’s ‘perilous lurch to the right’ – and that year has passed mostly without event for the court (outside of the ethical indiscretions of both Justice Samuel Alito and Justice Clarence Thomas). In that time period, the much-feared six-three ideological split generated by former President Donald Trump’s appointments have been far less common than expected. At least that was the case, until the court waited until the last week of its annual term to drop three major bombshell decisions, split down ideological lines and designed to advance a staunchly conservative agenda.

Rubber-stamping anti-LGBTQI+ discrimination

In the case of 303 Creative v. Ennis, the court considered whether a graphic designer could offer her marriage celebration website service only to couples who met her particular religious values. In short, could the designer refuse to create websites for same-sex couples on the basis of her religious opposition to gay marriage. What presents as a fairly straightforward question – especially considering the court’s 2015 decision in Obergefell v. Hodges which legalised gay marriage in all 50 states and a long line of precedents preventing racial discrimination by businesses that offer a good or service to the public market.

The split between the conservative and liberal wings of the court was particularly pronounced in this instance. Reading both sides you might not even be aware that the two were discussing the same case – though the impact of the ruling is no less severe because of that. The majority, in an opinion written by Justice Neil Gorsuch, approached it largely as a freedom of speech issue – could a state ‘compel’ someone to write text (a website) that conflicted with their beliefs. Religion also played an important role – and the judgment goes some way towards legitimising religious opposition to gay marriage and LGBTQI+ rights in general. This represents a dramatic step backwards for equality and LGBTQI+ rights more generally – a form of legalised discrimination at odds with the values that supposedly underpin American society.

The dissenting opinion, written by Justice Sonia Sotomayor and supported by her two liberal colleagues, presents a completely different, and much more compelling case both legally and morally as to why the decision is fundamentally wrong. The minority approach the case through the lens of ‘public accommodation’ laws – a longstanding and well-established body of law that played a major role in creating foundational civil rights law. These laws work on the basis that anybody offering a service to the public, and therefore benefitting from the public aspect of the marketplace, cannot deny that service to people or groups of people for arbitrary reasons. These laws were created and used to prevent Jim Crow-era racial discrimination, and underpin major 1960s and 1970s precedents like the overturning of bans on interracial marriage. The court’s decision last week risks undermining many of those precedents.

“Today is a sad day in American constitutional law and in the lives of LGBT people. The Supreme Court of the United States declares that a particular kind of business, though open to the public, has a constitutional right to refuse to serve members of a protected class. The court does so for the first time in its history.” – Justice Sotomayor, 303 Creative v. Ennis

In effect, business that ‘create’ something expressive now have the right to put a sign up declaring that they will no longer offer that service to people from the LGBTQI+ community. A ‘sad day’ feels like a significant understatement.

As if that damage is not bad enough, the decision opens up many anti-discrimination laws and norms to challenge. If applied in the same manner, what is to stop a web designer, a photographer, or another creative outlet from refusing to work on an interracial marriage (similar religious opposition to the gay marriage issue underpinned the pre-1960s opposition to interracial marriage).

This decision is an absolute travesty to the progress and rights of the LGBTQI+ community and should be a black mark on the current court’s legacy.

Ending affirmative action

In the same week as inflicting grievous damage on LGBTQI+ rights, the court also struck down, and probably ended, affirmative action in university admissions process. Affirmative action, admittedly, has long been a controversial and divisive issue in American politics. But it is worth considering two things here: a major break with precedent for no sound reason; and the infliction of potentially considerable damage on the educational access of African-Americans.

On precedent, the court overturns a strong and established line of precedents that allowed universities to consider race as part of an holistic admissions process. The most recent consideration, in 2003, held that diversity in universities was a compelling state interest worthy of protecting. Since 2003, nothing objective has changed in regard to affirmative action – no shift in public opinion, change to enrolment process, no underlying facts. The only thing to change is the composition of the court. As was the case with abortion and gun control, the court is overturning established precedents without good reason, simply because the justices have an ideological disagreement with the accepted law.

The other issue with the court’s decision is that it relies on an idealised vision of racial equality in America that has absolutely no grounding in reality. The court’s newest Justice, Ketanji Brown-Jackson (the first African American woman to serve on the court) makes a brilliant case for why affirmative action should remain. Let us not forget that we are only 55 years removed from the theoretical end of segregated schooling in America.

As Brown Jackson observes:

“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. 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.”

Removing Biden’s student loan debt forgiveness scheme

The final piece of damage inflicted by the court was the overturning of President Joe Biden’s flagship student loan forgiveness scheme. While less morally reprehensible (and more legally complex) the decision nevertheless does significant damage to a programme designed to target inequality and the cost-of-living crisis, as well as the long-term impact of a major pandemic on American society.

The Supreme Court adopts a reading of the relevant legislation that holds the president does not have the power, without additional legislation, to cancel up to $20,000 of student loan debt for qualifying borrowers. Unquestionably, the decision will force greater financial hardship on parts of society that can ill-afford it.

Interestingly, Justice Elena Kagan in dissent takes the majority to task for “picking apart, and addressing each segment” of the statute “as if it had nothing to do with the others” in doing so making the words of the act both inconsequential and aligned to the policy goals of the majority. It is the same technique conservative justices have used to drastically curtail firearms regulation under the Second Amendment and seems to be becoming a new favourite tactic of the conservative majority.

These three decisions generated little media coverage in New Zealand, particularly contrasted with last year’s abortion decision. Yet they are arguably just as damaging, and just as morally and legally bankrupt.

It is becoming ever clearer to court observers that the current majority is hell-bent on seeing their policy agenda enacted, and are twisting and breaking decades of solid legal precedent to do so. New Zealand should be paying attention. 

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