In This Episode
The Supreme Court ended its term today with a double whammy, issuing opinions in the 303 Creative case and the student debt relief cases. In the former, the majority creates “a constitutional right to refuse to serve members of a protected class.” And in the latter, the majority invalidates the Biden administration’s student debt relief program because, well, they had feelings about it.
- Listen to our episode recapping the 303 Creative arguments: “How the 303 Creative case threatens to roll back the 21st century“
- Listen to our episode recapping the arguments in the student debt relief cases: “Ascertaining the Majorness of Student Debt Relief“
- Follow @CrookedMedia on Instagram and Twitter for more original content, host takeovers and other community events.
Show Intro Mister Chief Justice, may it please the court. It’s an old joke, but when an argued man argues against two beautiful ladies like this, they’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.
Melissa Murray Hello and welcome back to Strict Scrutiny, your podcast about that very normal, very moderate, very institutionalist, very restrained Supreme Court we’ve all been hearing about and the legal culture that surrounds it.
Leah Litman Sike. The court is back on its bullshit, per usual. And as expected, issuing decisions that in Justice Sotomayor’s words, quote, For the first time in history, grant a business open to the public, a constitutional right to refuse to serve members of a protected class, creating a constitutional right to refuse service to a disfavored group.
Kate Shaw But it didn’t stop there. The court also invalidated the president’s student debt relief program, basically because the justices have a lot of feelings about it. It essentially came down to that. So those are the decisions we will be recapping today. And stay tuned. We will have a full term recap episode to follow on Monday. Meantime, we’re your hosts. I’m Kate Shaw.
Melissa Murray I’m Melissa Murray.
Leah Litman And I’m Leah Litman. And the reason why I might sound unhinged today, which is different than the reason I may have sounded unhinged yesterday, is that Neil Gorsuch took a big fucking dump all over pride as I’m sitting here in my Rainbow argumentative, antithetical dreamgirl tank with rainbow nails waiting to hear Taylor Swift perform. It’s different as a surprise down here in Cincinnati tonight, which I have been begging her to do for weeks and stressing about whether inclement weather, like the giant clouds of smoke from the Canada fires or thunderstorms, will interfere with my ability to hear that. If the Supreme Court’s contribution to climate problems interfere with any of this, there is going to be hell to pay. And you bitches haven’t seen anything yet. Other caveat is we are literally recording this episode less than an hour after we’ve received all of the opinions, so we are still processing them and working them out, much like Clarence Thomas is processing all of his issues in the pages of the US reports. So you will hear us working it out in real time.
Kate Shaw Unlike Justice Thomas, I don’t think the fact that we are still working through these issues should disqualify us from service as your podcast hosts.
Melissa Murray Because we’re actually doing a service to the country.
Kate Shaw And we’re doing the work we are doing, We are working. We are.
Melissa Murray We are doing the work.
Kate Shaw Thank you for joining us as we do. Today’s decisions were brutal, both in really important and different ways. So this is going to be pretty raw probably, and we’re just going to dive right in discussing the two opinions in the order. The court released them on Friday morning, which is when we’re recording. So we’re going to start with three or three creative versus Alanis. Leah already gave you a little sneak preview of Justice Sotomayor’s distillation in her incredibly powerful dissent, which we will talk about. But as a reminder, that’s the hypothetical case about whether a hypothetical wedding website designer might hypothetically be asked to design a hypothetical wedding website for a hypothetical same sex wedding. And hypothetically, would that violate her First Amendment rights if, hypothetically, Colorado told her she couldn’t refuse to design that hypothetical website for a hypothetical wedding? And in a63 Happy last day of Pride opinion by Justice Gorsuch, the court said yes, that not at all hypothetical situation would definitely violate her First Amendment rights. The court wrote that the First Amendment bars Colorado from, quote, forcing a website designer to create expressive designs, speaking messages with which the designer disagrees.
Leah Litman So we will break down the opinion in a second. But really to understand what the case is about, you just kind of need to go directly to Justice Sotomayor’s exceptionally moving and powerful dissent, which I already kind of read from at the outset. So in that dissent, she said the court had, for the first time in history, recognized a constitutional right to refuse to serve a protected group. And I think the opening to her dissent is also worth highlighting. And it’s a little long, so bear with me. But she writes that five years ago this court recognized the general rule that religious and philosophical objections to gay marriage do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law. What a difference five years makes. That’s a literal direct quote. And she continues, not just at the court. So she writes here as well as later in the opinion about the backlash to the movement for liberty and equality for gender and sexual minorities and how heartbreaking it is, but also how familiar it is. Because whenever civil rights have advance principles of equality and liberty in public life, there has always been backlash. And in the past, she says, the brave justices who once sat on this court decisively rejected those claims. Alas, not so brave anymore. I guess.
Melissa Murray We’re going to try and figure out what exactly Justice Gorsuch is, opinion for the majority held and what exactly it means both for this case as well as for other civil rights statutes, for other groups that are protected from discrimination by public accommodations, statutes like the one at issue in three or three creative and more. So first, it’s important to recognize that Justice Gorsuch understands the decision to only be creating a First Amendment exception where a goods or service provider is engaged in, quote unquote. Your speech and would be required to do something that constitutes pure speech. And he says this is such a case because the parties basically stipulate to that writing that Smith would be asked to create websites that, quote, celebrate and promote the couple’s wedding and unique love story and to celebrate and promote certain marriages, and that the resulting websites doing this would be Smith’s speech. Right? So that’s really important. So this turns on the question of whether the business activity is speech, right? But who gets to decide what speeches? It seems that that’s one Neil Gorsuch, who has decided that websites are speech and in the future it’s the 6 to 3 court that will decide what else is speech. And I just want to take a moment here to really rebuke all of you. Neil Gorsuch stands from the Bostock days. I haven’t forgotten you. I remember when you were like that. Neil Gorsuch. He seems really.
Leah Litman Let’s make him the leader of the Pride parade.
Melissa Murray Yes, like people said that. People people said that. And I was like, I don’t know about that. Like, I mean, this is textualist. Bostock was textualist. And more importantly, Neil Gorsuch dropped some major fucking breadcrumbs at the back where he was like, Religious liberty might trump all of this. And also RFRA is a super statute, and he told us who he was. And so all the folks were like, you know, Neil Gorsuch wrote Bostock, I just don’t know. And I’m just like, I do know and I’ve known for a long time, so I just want to say you’re welcome. Like I said this.
Kate Shaw Can I just say something about the pure speech issue? Sorry. I think it’s definitely right that in the opinion there’s a mention of the fact that the lower court held that this website would be pure speech, but I actually don’t read anything in the opinion to say this is an exclusive like get out of public accommodation laws, free card only for businesses that are engaging in what we might characterize as pure speech. You just as that’s one of the many stipulations I think that was made here, including also the fact that this was an expressive product as opposed to like, you know, a pre-made sandwich or something, which I don’t know, maybe we’ll be litigating whether those are expressive to at least like custom sandwiches.
Melissa Murray I think that’s exactly right.
Kate Shaw I think that’s really hard to figure out. Like what exactly the limiting principle or.
Melissa Murray because there is no limiting principle. No, there is no limit.
Leah Litman I mean, the limiting principle is, as you said, Melissa, like what things this six three court will recognize as speech. And I am personally very much looking forward to the next 30 years of civil rights and public accommodations, litigation about what goods and services are, pure speech, something that I’m sure this court will resolve in very principled and sensible ways. Once again, reminding everyone of what you’ve been saying. Melissa, It’s not like this court resolves issues. It just creates new ones that give it more power to set the rules we all have to live by. So just for example, like what if the wedding website’s here just said, here’s the date of the wedding? Like, would that be pure speech? I don’t know. Or how about, you know, some words on a cake or what about a counselor’s words? Or what about some custom made shirts from Etsy where you can pick the phrase? I mean, we don’t even know what kind of websites Smith might make since she hasn’t ever been asked to make one.
Melissa Murray I was just transfixed Leah that was.
Leah Litman I allowed myself a little bit too much caffeine this morning already, both for the concert and for the hand down. As someone who never drinks caffeine, I should have stopped myself at like the half caf caramel macchiato. Instead, I had the full caf and I am on like 200% full and already basically shaking from caffeine and rage.
Melissa Murray She ready?
Kate Shaw So I like this, but I wonder whether we should put a little like moscato in your mug for the second. For the second episode, we’re going to record today, maybe a little downer.
Leah Litman Drunk term recap.
Melissa Murray To go with their drunk history. But I like this Leah. I like that you’re ready. Okay. So to Leah’s point, Justice Sotomayor also raised this In her dissent. She noted that Colorado does not require the company to speak the state’s preferred message. The company could, for example, offer only wedding websites with biblical quotations, describing marriage as between one man and one woman. The company could also refuse to include the words Love is love if it would not provide those words to any customer. Basically, her point is the state doesn’t regulate the kind of business that you are. It just says when you decide what kind of business you’re going to have and you go into the public space and public sphere, you have to serve all comers in accordance with the Colorado anti-discrimination law. So that’s her point. It’s also worth noting here that we have no fucking idea what kind of website business Lorie Smith is running because Lorie Smith’s entire dispute is completely hypothetical and should not have been heard. And I will literally die on that hill.
Leah Litman Yeah, and here we should just re note the reporting done by Melissa Garrett Grant at the New Republic that we discussed on yesterday’s episode, pointing out how right this website submission that the website designers lawyer pointed to from a guy named Stuart allegedly requesting a same sex wedding is falling apart. On even the quickest inspections because Stewart Wright is a straight man, married to a woman and maintains he never requested such a wedding website from Laurie Smith. But I guess standing like yes or whatever, you can accomplish it via iffy website submissions now. So that’s cool.
Melissa Murray And remember, the oral arguments in this case were absolutely unhinged with Justice Alito having a very normal one, just with bonkers hypotheticals about black Santa, suggesting that his colleague, Justice Kagan, might be frequenting an adultery website. I mean, it was like truly, truly, truly off the wall. And it was pretty much off the wall because there were no actual facts here to ground this case and the oral argument. But leaving that to the side, this court decided to wade in and pretend as though this were a settled case with a settled claim and a settled injury. And picking up on these truly deranged hypotheticals from the oral argument in this very hypothetical case, Justice Gorsuch, in this opinion, says that if Loriee Smith did not prevail here, then, quote, the government could force all manner of artists, speechwriters and others whose services involve speech to speak what they do not believe. On pain of penalty. The government could require an unwilling Muslim movie director to make a film with a Zionist message or an atheist muralist to accept a commission celebrating evangelical zeal. Equally, the government could force a male website designer married to another man to design websites for an organization that advocates against same sex marriage. This was in the brief for the petitioners. So again, all of this sort of underscores Neil Gorsuch as libertarian streak. It also raises earlier in the term, I forget which case it was in, but at oral argument, he talked about Maoist camps like this one.
Leah Litman He referred to Colorado’s antidiscrimination statutes and, you know, and the Jack Phillips case as subjecting the baker to, yeah, Colorado said couldn’t refuse to make a cake for a same sex wedding as subjecting the baker to, quote, a reeducation camp.
Melissa Murray All very much in the worldview of Neil Gorsuch. I think this is what passes for libertarianism about like definitely anti status, definitely in favor of the individual and basically allowing each individual to prosecute his or her personal views on all of the rest of us.
Leah Litman Well only, some individuals right. Since of course the gay couple can’t actually go into a good or service provider and ask.
Melissa Murray Well they’re not people. Leah, they’re not individuals.
Leah Litman You know I this was from.
Melissa Murray Why do you keep forgetting that part.
Leah Litman My b. But also all of the hypotheticals that Gorsuch trots out here about the film director and whatnot are completely wrong and insane because that’s not how public accommodations law works. Like directors don’t hold themselves out as directing every movie that comes before them. Like a Steven Spielberg is not a public accommodation. I can’t go to him and say, I would like.
Kate Shaw Demand a leading role.
Melissa Murray Film my wedding. Film my wedding.
Leah Litman Right, ike you hold yourself out as like,.
Kate Shaw Cast me in your movie.
Leah Litman Like, yeah, here’s my movie about how I’m beefs with Ketanji Brown Jackson and we go to all the Taylor Swift concerts together, make that movie bitch. And like, it’s not going to happen.
Melissa Murray Crossroads 2: Ketanji and Leah.
Kate Shaw Okay, Spielberg should make this. But the point is like public accommodation laws are about individuals who provide broadly available goods and services in the commercial marketplace and serve all comers. And that does not encompass every commercial transaction, every professional interaction. And many of the hypotheticals seem quite deliberately obtuse about the actual definition of a public accommodation. And I think it’s really clear that the more likely implications from this decision are what will follow from the court. Having recognized for the first time a constitutional right to refuse service in the context of ordinary public accommodations. And Justice Sotomayor, dissent says really clearly that, you know, we were talking before about limiting principles. There’s nothing in the majority opinion that says there is only a First Amendment right to refuse service to gay people or LGBTQ people or same sex weddings. There will be lots of questions about what other services can be refused to, what other members of protected groups. I mean, she says very explicitly in her dissent that the decision’s logic cannot be limited to discrimination on the basis of sexual orientation or gender identity. The decision threatens to Balkanize the market to allow the exclusion of other groups from many services. And she says really clearly a website designer could equally refuse to create a wedding website for an interracial couple, for example. And she references historical objection to interracial marriage, specifically on the grounds of religion. So she is, I think. Right. And there’s not really any attempt. On the part of the Gorsuch majority to suggest that there is such a limitation, I don’t think, nor could there be. There’s also, I think, this very big problem in the Gorsuch opinion, which is like there’s this tonal quality to the opinion, which is like the real problem here is people asking for this civil rights when everybody just wants to be left alone in this like libertarian vision of, I don’t know, like our collective existence that Gorsuch has. And he basically says, look, the reason we even have a problem here is because states are trying to expand public accommodation. And he discusses many states, including Colorado, having expanded the reach of nondiscrimination rules in recent years to cover. He says, virtually every place have been this engaged in any sale to the public and also to include other forms of discrimination, including discrimination on the basis of sexual orientation and gender identity. I will say I actually, even though there’s this incredibly kind of grudging quality to this overall narrative, I do think he seems to be suggesting that as a general matter, expansion of nondiscrimination provisions to include sexual orientation are constitutionally sound. So that atleast is something.
Leah Litman Well sure its just that like it can’t get forced against anyone who objects to them, because why? I mean, because the problem is like a gay people actually asking to be able to participate in public life. He’s like, stay in the closet gays, right. Like, you.
Kate Shaw And the protections on the books are totally fine. We are happy for them to exist.
Leah Litman But like, you just can’t enforce them.
Melissa Murray This is basically an Ann Rand fever dream, like it’s what it is.
Leah Litman And because, you know, there’s almost nothing more that the Republican appointed justices love to do than to deny doing what it is in fact, they are doing here. Justice Gorsuch insists that this case, three or three creative, is not actually about status discrimination, that it’s not actually about discriminating against people because of who they are and who they love, rather than say, the message of a particular wedding, which of course is horseshit, because we all know how many gay couples go to wedding website designers asking for wedding websites for straight couples, and how many straight couples go to wedding website designers asking for wedding websites for gay couples?
Kate Shaw Although actually we should say that Melissa Garrett Grant’s reporting suggests that this this case may involve the sole instance that we know of in which this individual who seems to be a straight man, maybe was, at least according to the filings earlier in this case, did ask for a same sex wedding website that but sorry.
Leah Litman This hypothetical about we don’t actually know whether Laurie Smith would make this website if it was actually a straight man marriage to a woman asking for it. Because recall the exchange between, you know, her lawyer and Justice Barrett from the oral argument, when Justice Barrett is like, well, of course, she also wouldn’t make a wedding website for a straight couple wanting to celebrate gay marriage. And Laura was like, Oh, no, she makes that, Your Honor. And then Justice Barrett came back around was like an email.
Kate Shaw It was like she slipped her a note. It was like, No, no. You meant to say.
Melissa Murray Kristen stop reading Ann Rand and just focus girl. Focus.
Kate Shaw Get with the program.
Leah Litman And Justice Sotomayor, of course, calls out the majority’s distinction between status and message as, quote, embarrassing, which it is. And then Justice Gorsuch, you know, responds to her dissent and Justice Sotomayor responds back in kind, saying that petitioners contrivance that a prohibition on status based discrimination can be avoided by asserting that a group can always buy services on behalf of others, or else that the group can access a separate but equal subset of the services made available to everyone is what’s embarrassing.
Melissa Murray Well, also, I will just say this morning on MSNBC, Carrie Severino, who is the head of the Judicial Crisis Network, one of the many organizations in the Leonard Leo Universe Multiverse as well, basically made the same argument, like trying to explain to people, you know, ain’t no thing here. You can just get your straight friends to buy this website for you, buy a cake for you, or you can just go somewhere else. And it’s 1954 all over again.
Kate Shaw And the fact that anyone would think that like the stigmatic harm and just being like, you have to go searching for someone who will serve you or you need to contrive some kind of intermediary to get you a good or service that your friends can get without thinking twice a literally in the constitutional jurisprudence of like middle man website acquisition is just like, it’s so deranged. I cannot believe anyone takes that position with a straight face. And, you know,.
Leah Litman And justice Sotomayor really called this out. So maybe we can turn a little bit more to her dissent.
Melissa Murray So she writes, The legal duty of a business open to the public is to serve the public without unjust discrimination and is deeply rooted in our history. And so Justice Gorsuch chastises Justice Sotomayor’s use of history in her dissent. And again, there’s this history of public accommodations law that she canvasses. And it’s relevant here because. She talks about the history of sex and gender discrimination and how the introduction of public accommodations law changed a lot of that, making the public sphere essentially available to women and minorities who previously had been foreclosed. And she says. Yet for as long as public accommodations laws have been around, businesses have sought exemptions from them. And this goes back to this whole idea like one step forward, there’s always two steps back because of this backlash and reaction. The civil rights and women’s liberation eras are prominent examples of this backlashes to race and sex equality gave rise to legal claims of rights to discriminate, including claims based on First Amendment freedoms of expression and association. So this isn’t new. It’s just the first time this court has actually given a quarter to these arguments. Like basically people have been trying to limit the scope of anti-discrimination law for years by resort to the First Amendment, either through religious freedom or through speech, and they’ve always been rejected. C, Peggy Park, C, Bob Jones, whatever. But now. The court’s like, Nope, we’re open for business. Let’s, let’s do it.
Leah Litman Speaking of being open for business. Justice Sotomayor, you know, really dug into the points that you and Kate were talking about, which is, you know, there is a real dignitary harm of refusals to service, even if hypothetically, you could obtain the service from another provider or ask a friend to help you obtain the service or good from a particular provider. So Justice Sotomayor is dissent has long extended passages writing about how LGBT people, no less than anyone else, deserve dignity and freedom, and explaining how state sponsored discrimination is compounded by discrimination in public accommodations and how that combines to create an environment in which LGBT people are unsafe. The closing of her dissent, like the final section I think is really remarkable. So she says, Today is a sad day in American constitutional law and in the lives of LGBT people. Talking about the message that recognizing a constitutional right to refuse and allowing businesses to hold up signs saying, you know, no service for same sex weddings sends and she ties this reasoning to the current moment. We are in writing that LGBT rights have made historic strides and that she is proud of the role this court has recently played, but that the court is taking a step backward at a time when a slew of anti LGBT laws have been passed throughout the country, raising the specter of a bare desire to harm a politically unpopular group.
Kate Shaw And she not only suggest that the court is blessing businesses literally putting up signs that say things like, you know, we’re not going to provide services that are attached to same sex weddings. She actually says the opinion of the court is itself a notice that reads something like some services may be denied to same sex couples. Like, that’s what the court has penned in this opinion. And she strikes this note at the end that I thought was really important. That underscores that the court does not have a monopoly on the meaning of the Constitution. And so she writes us really explicitly. She says, I fear that the symbolic damage of the court’s opinion is done. But that does not mean that we are powerless in the face of the decision. The meaning of our Constitution is not found in any law volume, but in the spirit of the people who live under it. 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. So it is this kind of clarion call. We don’t have to be constrained by what this group of six super conservative justices decide the Constitution means we get to decide for ourselves. And as much as they seem determined to kind of tear us apart from each other, like the values of inclusivity and pluralism are ones that, like we can decide the Constitution contains and live under them again. It would be better if the Constitution, as interpreted by the Supreme Court, commanded it as it has until today. But I think it’s important that she strikes this tone that we are not powerless.
Melissa Murray She also, again, as she did in the earlier affirmative action case, made clear that her dissent was offered as a dissent without any respectfully attached to it. So she’s not playing the game here. Our Constitution contains no right to refuse service to a disfavored group. I dissent. So Sotomayor out. I think it’s worth coming back to Obergefell here, like we’ve been talking about. You know what the fallout from jobs would mean for groups like the LGBTQ community. And lots of people have pointed to Justice Thomas’s concurrence, in which he identified Obergefell as one of the decisions that he was eager to reconsider and possibly overrule, as the court had done with Roe and Casey. We haven’t seen any opening salvos against Obergefell, like no frontal efforts to roll back Obergefell. But I think you could understand this case as perhaps the beginning of that. Project were the seeds of that project. And I say it in this way, like this is not about whether the government should recognize same sex marriages or not. It’s not about that at all. But it is a case about whether we can normalize the prospect that certain groups can expect discriminatory treatment when they are interacting with the public. And once you begin the project of normalizing discrimination, I don’t think you’re that far down the road from then making the leap to invalidating same sex marriages or refusing to recognize same sex marriage. Again, it may be a very long road, but, you know, so was Roe, and it began with chipping away at access to abortion. This is the beginning of the chipping away. Like, once you start deciding that same sex weddings just don’t have the expectation of the same treatment as straight weddings, then, you know, we’re already down that road. So, again, constant vigilance.
Leah Litman And just to echo what you were saying about this, paving the way to future rollbacks of civil rights, I wanted to highlight some research done on social psychology and experimental jurisprudence by Sarah Emily Bourke and my colleague Rosanna Sommer is in the Chicago Law Review. It’s a piece on reducing prejudice through law, evidence from experimental psychology, and they ran experiments. And what they found is when people learn that certain kinds of discrimination is prohibited by law, it leads some people to report less prejudicial attitudes and greater feelings of interpersonal warmth toward members of the group who the law prohibits you from discriminating against. And conversely, they also find that when people learn that the law permits discrimination against a group, it facilitates and enables more prejudicial attitudes. So that’s one thing I just wanted to highlight by way of implications. And then the other is another study, this one more empirical by Stephen Choi Gulati and Eric Posner, a paper on Trump’s lower court judges and religion. And what they did is they studied First Amendment free exercise claims as they were ruled upon by Court of appeals judges, and found that President Trump’s appointments to the circuit court more frequently vote in favor of Christian plaintiffs and less frequently vote in favor of Muslim plaintiffs in free exercise cases as compared to other appointees by other Republican presidents, as well as by Democratic presidents.
Leah Litman [AD]
Kate Shaw Because everything is fakakta. We also got the same morning the student debt relief opinions. And let’s start with the bottom lines in those opinions. Justice Alito first wrote a unanimous opinion finding that private borrowers who were just mad they didn’t get more debt relief don’t have standing. So like a glimmer of sanity from this truly deranged court. But don’t worry. In the other case, the chief justice wrote for the six Republican appointees to conclude that the states whose standing claim to my mind was basically as weak as the standing claim of the individual plaintiffs. But never mind. Those states, according to the majority, did have standing. And when the court reached the merits, it struck down the administration’s program of student debt relief that would have benefited 43 million Americans. That’s these justices like they did that they took away the debt relief for 43 million people. There then was a really powerful Justice Kagan dissent, really powerful, but with one really kind of conspicuous shortcoming, which is that it should have cited some award winning recent scholarship for criticizing the major questions doctrine by one of the co-hosts of an award winning podcast, Justice Kagan cite Leah’s major Questions Doctrine article Challenge.
Leah Litman This is why Steven Spielberg is making the movie about me and Justice Jackson right now so.
Melissa Murray Elena Kagan is not allowed in a convertible after this slight. So let’s start with standing. So I think it’s obvious not only is sorry decisis for suckers, it seems like standing is also for suckers. But as Kate noted in the case involving the two student borrowers, the court found that there wasn’t standing. But I just want to emphasize like that was like the captain obvious of standing cases. Like if they hadn’t found that there was no standing, we might as well take the Constitution and like light it on fire, because it would have been just so egregious. Like it was like the most obvious case that there was no standing there. And so, yes, they came out the right way on that one. But for the other case involving the states, I think standing was a much tougher question. And the court found this really narrow sliver of an opening by determining that Missouri, which operates this nonprofit, MOHELA, which has some business and the administration of student loans, like the fact that MOHELA existed, gave Missouri sufficient ties to an injury to allow it to have standing. And I think that is just a more tenuous claim.
Kate Shaw Oh, let me just say it. Missouri doesn’t operate MOHELA. MOHELA exists independently. Full stop. MOHELA existed.
Melissa Murray The court says that Missouri operates MOHELA whether in fact MOHELA is operated by Missouri is apparently an open question.
Leah Litman Part of the challenge of teaching constitutional law and trying to teach opinions because it turns out you can’t actually teach the facts as they are recited in the court’s opinion because they might be wrong.
Melissa Murray All right. So again, that’s the sliver like by reframing MOHELA as an entity operated by the state of Missouri, which it is not, the court finds that Missouri at least has standing, and that apparently opens the door for this case to actually be reviewed. Right. So if you think about this case in tandem with three or three creative, who the fuck cares about standing like, I mean, you’ll either ignore it entirely or make up facts that give you standing so that you can get to it. If you want to get to this merits question, you’re the YOLO Court, you’re going to do it. And apparently, what do you have sex? They let you do what you want. And I think some people thought that a different ruling on standing might have been possible in light of the court’s decisions in Holland versus Brackeen the equal case or United States versus Texas. But now YOLO Court’s going to YOLO.
Leah Litman I would like to take this moment to accept the apologies from all of the people who were telling me it was time to retire The phrase YOLO Court because of the rulings over the last few weeks.
Melissa Murray Who said that?
Leah Litman I’m not going to name names this is a subtweet.
Melissa Murray Put it in the chat, put it on the Oooooh. I wanna know
Leah Litman It’s going in the chat. Sorry listeners.
Melissa Murray Okay. Ohhhhh.
Kate Shaw What? Whaaat??? Oh yeah, yeah, you’re right. Oh, this is where you’re restrained and not dunking on those individuals.
Leah Litman Its hard. It’s so fucking hard! This is a struggle. That is my life. The struggle is screaming and then literally screaming in the shot like people think I am unfiltered on this podcast. The things I don’t say you have no idea.
Kate Shaw You occasionally say them and then Melody takes them out.
Melissa Murray Like Leah, if you ever get nominated and someone is like, she has no restraint, I’m going to be like there was this one episode.
Leah Litman Oh contrare. Let me tell you about some of the shit she also said.
Kate Shaw The most judicial temperament.
Melissa Murray I mean, there’s such restraint here. If I had moscato, everyone would know who this person. Ooh! All right, all right.
Kate Shaw Back, back. Back, back to the program, ladies. Okay, so let’s returning to MOHELA. So what the majority reasons is that essentially under the Secretary of Education’s plan, roughly half of all federal borrowers would have their loans completely discharged. And MOHELA, this loan servicing entity could no longer service closed accounts, and that would cost it, by Missouri’s estimate, some $44 million a year in fees that it would otherwise have earned. Okay. That’s what Missouri says. MOHELA would like a word because it says that’s actually not true at all. The American Prospect had some great reporting suggesting that MOHELA basically did not get into this litigation, was not even aware of the lawsuit until it was filed and very explicitly didn’t want anything to do with it. So there was some public records request for documents inside MOHELA. And those records revealed employees like reacting to news about the litigation and basically saying, you know, internally, I think that’s like. One of them saying to the other, I think MOHELA was opposed to this move, meeting the lawsuit but couldn’t do anything about it. The and then says the Missouri attorney general needed to claim that our borrowers were harmed for standing. So they’re making us look bad filing this not only with Missouri on it, but especially bad because they filed it in Missouri. So basically, like MOHELA knows that they’re a pawn in Missouri’s effort just to gin up a standing case. And there’s also indication that MOHELA is actually going to make more money as opposed to less as a result of this federal plan. But, of course, none of that seems to stop a court determined to get to the merits, because YOLO.
Leah Litman I feel like this is Missouri’s take on Dr. Seuss like. I am The Lorax. I speak for the trees because the trees have no autonomy.
Melissa Murray Speak for MOHELA
Leah Litman MOHELA has no autonomy and turns out they do. And they want them to get their fucking name out of your mouth.
Kate Shaw Missouri is the Lorax. Yeah.
Melissa Murray So having dispensed with Standing and MOHELA as an independent entity, the court proceeds to the merits of this case because of course, so this case turns on a question about the Heroes Act. So the Heroes Act is a statute that was passed in the wake of 911, and it authorizes the Secretary of Education to waive or modify any statutory or regulatory provision applicable to the student financial assistance programs under Title four of the Education Act, authorizing waivers or modification as the Secretary deems necessary in connection with a war or other military operation or national emergency. So as the Chief Justice framed this, the question here is not whether something should have been done, but rather who had the authority to do this. And this is where he drops his big tell. Our recent decision in West Virginia versus EPA involves similar concerns over the exercise of administrative power. So, one, we hate the administrative state, too. We love the major questions doctrine. And three, anytime we say West Virginia versus EPA, we’re about to go ham on the made up major questions doctrine and.
Kate Shaw Everyone has to drink when.
Melissa Murray Everyone drink.
Leah Litman This is like the spirit fingers of judicial interpretation. You say it and it’s magic and things happen.
Kate Shaw I mean, so when Roberts says the question is who has the authority, the next thing he’s going to say is, it’s not the agency. The next thing he’s going to say is it’s Congress. But what he really means is it’s us. Like we have the authority. Like we get to decide what we do.
Melissa Murray Hi. I’m the problem. It’s me.
Kate Shaw Yes. Thank you, Melissa. He just thinks this was the vibe from the oral argument and the vibe of the opinion that this is just too big and too much. This is essentially too much justice redux. Different context, different doctrines, basically same thrust, like we don’t like too much justice. And so we’re going to invalidate what the administration has done. And as Kagan shows in the dissent has done pursuant to a statute that very clearly gives authority to take action in the face of national emergencies, which covered 100%, was. And all this greatly falls within, I think, the authority of the secretary of education. But that’s really not giving the majority much pause. They just decide to throw it out.
Melissa Murray So, again, just to reiterate the major questions doctrine, the court has said in West Virginia versus EPA that in cases involving a major question, Congress has to be very specific about what the executive through the administrative state, may do. Now, what constitutes a major question? Well, if you are confused, don’t be. What constitutes a major question is whatever this court says is a major question. And as they’ve defined it, it’s a matter of major political salience. So that’s not really helpful either. They basically get to decide. And in determining that the major questions doctrine limits the scope of congressional authority and the administrative states ability to act on these statutes. The person in the driver’s seat is really The Court And so. I mean, this is just a continued theme from this term and from last term to some degree. I mean, it’s discussion of democracy and sadly, at issues that were removed from the people and decided by judicial fiat. And Dobbs is basically saying, like, we get to decide what cases go to the people and what cases. Stay with us and we decide what’s of political salience. And they’re just doing that again here.
Leah Litman [AD]
Leah Litman Did they, wait so Leah you’re a big expert on the major questions doctorine. Can I ask do they add an additional element? So previously the court has said issues of political and economic significance like will presumptively or often raise major questions here. The court uses this formulation like questions that are personal and emotionally charged. Is that the new fucking test?
Melissa Murray Feeling! Feelings!
Leah Litman Exactly. Right. Like they have a lot of big feelings about this case. So the personal an emotionally charged quote comes from a secondary source that they are quoting to describe the state of the debate about student debt relief. But I take it that they think that that’s some evidence that the program is politically controversial. And lest you think we’re kind of making this up, you know, recall back to the oral argument where both John Roberts and Sam Alito were basically like, this program triggers me because I think it’s unfair and therefore it’s a major question and presumptively illegal. So let’s play those clips here.
Clip I think it appropriate to consider some of the fairness arguments. You know, you have two situations. Both two kids come out of high school. They can’t afford college. One takes a loan. The other says, well, I’m going to, you know, try my hand at setting up a lawn care service. And he takes out a bank loan for that at the end of four years. We know statistically that the person with the college degree is going to do significantly financially better over the course of life than the person without. And then along comes the government and tells that person, you don’t have to pay your loan. Nobody’s telling the person who was trying to set up the lawn service business that he doesn’t have to pay his loan. He still does, even though his tax dollars are going to support the forgiveness of the loan for the college graduate who’s not going to make a lot more than him over the course of his lifetime. Now, it seems to me you may have views on fairness of that, and they don’t count. I may have views on the fairness of that, and mine don’t count. And therefore, I think it’s a fair question to say, what is your client’s view about the fairness question that some people have posed? And that was reiterated for you by the Chief justice. The view of the department is that. This why is it fair? Granted, why is it fair?
Leah Litman Again, as Kate was alluding to, like the statute in this case, pretty clearly authorizes this. As Justice Kagan noted her dissent, the statute allows the secretary to waive or modify a requirement, which means to lessen its effect or eliminate it altogether. And so instead, the majority just invokes the major question doctrine. You know, after doing this kind of, you know, interpretation of the statute and then it says the major questions doctrine also supports this result, leading Justice Kagan to say, like usually when a court is confident in its interpretation of a statute’s text, it spells out its reading and hits the send button. But that’s not what the court did. It resorted to, as is becoming the norm, the so-called major questions doctrine. And she writes, You know that the court is once again reviewing this doctrine for what it is a way for the courts to negate Congress’s choices.
Kate Shaw So the budding friendship that we had identified in earlier opinions this term between the Chief Justice and Justice Kagan, I’m not sure it’s in great shape based on the exchange in this opinion. So the chief kind of like does this tone policing thing with Justice Kagan’s dissent in which and she does say respectfully, which I’m not sure she had to do. And obviously, as we’ve pointed out, not every dissent in this.
Melissa Murray The women of color on the court are no longer doing this respectfully and I’m there for them.
Kate Shaw Kagan’s hanging onto yeah that’s totally Kagan here does append the respectfully that is a you know a forceful dissent and the majority says 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. But. KAGAN Of course.
Leah Litman I mean, like. You know, what’s disturbing is judicial opinions going beyond the proper role of the judiciary, right? Like you’re so close to getting it, John. I mean, this opinion, again, the court ends a program that would have provided relief for something like 43 million student borrowers. And the people who are benefited from this program are disproportionately like lower income. The program disproportionately benefited women communities of color. And of course, just like, no, I’ve got some feelings, so we’re going to work it out in the US reports and we’re going to work it out by withdrawing student debt relief, right? That’s going to make my VPs feel better.
Melissa Murray It would be so much cheaper for the American public if we just sent every member of the conservative supermajority a copy of Dr. Becky’s book to work out their big feelings.
Leah Litman That would help. What also might help is if the majority really internalized the words of Taylor Swift’s song. Dear John, in which she writes, And I lived in your chess game, but you changed the rules every day. I think instead of Swifties going after John Mayer, right, they should refocus their attention on John Roberts because he is the problem. Okay. You know, Justice Kagan, as Kate noted, did respond, saying justices throughout history have raised the alarm when the court has overreached, when it has exceeded its proper role. It would have been disturbing and indeed damaging if they had not. The same is true in our own day, indeed.
Kate Shaw Do you think these last two days of opinions are going to, in turn the moderate institutionalist court takes or.
Leah Litman No, people are so committed to it. They will bring it back every term before the end of the term. Whenever the court does something that is sort of completely fucking deranged.
Melissa Murray No, like there’s just a cottage industry to correct the record cottage industry in it. And it’s just like you’re just like, okay, this is not a normal one. And I want to just point out something that Kate’s plus one, Chris Hayes said on Twitter that I thought was.
Leah Litman Mr. Kate Shaw.
Melissa Murray Mr. Kate Shaw. Mr. Kate.
Kate Shaw This morning?
Melissa Murray This morning. He had a really good point on Twitter, and he’s just sort of like you went to bed last night thinking you were $10,000 richer, so to speak, and now you woke up and you’re $10,000 in the hole because the Supreme Court decided that this was a major question about which they have major feelings. And the Heroes Act does not authorize the president to respond to this kind of emergency. And waiving doesn’t mean what you thought it meant. And and here we are. Six people decided that you could just like eke it out and pay your loans.
Leah Litman And maybe that $10,000 is insignificant to a group of people who are coddled by billionaire benefactors and flown around the world on private jets and have their children’s tuition or grandnephews tuition paid for. Right. And their credit card debts paid off right before they actually go through the Supreme Court confirmation process. But it actually is significant for real people.
Melissa Murray There are lots of people who have paid their student loans. I I’m one of them. But I don’t begrudge anybody this relief because those, like student loans are like crushing, like it’s expensive. Like this is a means of social mobility. Again, I think you have to read this case in tandem with yesterday’s decision in the affirmative action cases, with the court essentially foreclosing the doors that were open to minorities, like limiting the opportunities and access to higher education. And now today saying and if you do get through the doors, if you’re able and you’re not like the scion of a family that can buy a building and you get through the doors when you take out the loans to be able to fund your education, you’re on the hook for them, like there’s no government relief. And again, there are so many people who are talking this morning on all of the news shows about, well, you know, you know, the government never forgives loans. That’s a fucking lie. The government funded PPE relief during COVID and many Congress people took advantage of that and those loans were forgiven. And business loans are dischargeable in bankruptcy where a student loans are not like this was sort of a modest intervention to help a particular group of borrowers. And it’s not out of step with other efforts on the part of the government to forgive loans and to accelerate or catalyze economic activity and development.
Leah Litman Well, but Democrats can’t make economic policy. So, you know economic justice that.
Melissa Murray When a Democratic president wins an election by promising student loan debt, you’ve got to basically cut it off at the knees.
Leah Litman Yeah. I mean, and, you know, in the issue of like what happens next, it is, of course, possible that the administration could respond by adopting a different right to student debt relief program. Some people have speculated that maybe instead of announcing a broad policy that says anyone who meet certain criteria could have their debt forgiven, the administration would instead try to do a more individualized application process in which it would eliminate student debt for individuals, you know, on a case by case basis if individuals point to hardship. But that’s more administratively difficult, right? And it’s more difficult to implement because people might not know, like, would I be eligible? How do I apply? And so that program might not end up being as effective. Even if the administration were to attempt to implement it.
Kate Shaw They could also decide to try to revive kind of pauses, which of course, like there were those basically three years of pauses. This was supposed to be the end of the pauses, basically, like wiping away a, you know, small percentage of or for some people, a large percentage per 10,000, and in some cases $20,000 of debt for eligible borrowers. And then kind of the restoration of normal repayment beyond that, but rather they could try to kind of revert to some additional kind of extension or pause. But I. I think, Leo, you’re right. Like the administrative burdens and kind of the magnitude of the impact are going to make any anything else the administration tries to do less effective across the board than this. This was the most effective and straightforward way to provide targeted relief to people who really, really need it. And the Supreme Court is responsible. These six justices decided like, nope, we’re not going to let that stand. And people should really bear in mind who did this and who’s responsible.
Leah Litman So. Yeah, that’s probably it for today’s opinions. We will be back on Monday for a term recap episode that is going to be a banger. We are Strict Scrutiny. A Crooked Media production hosted and executive produced by me, Leah Litman, Melissa Murray and Kate Shaw. Produced and edited by Melody Rowell, Ashley Mizuho is our associate producer. Audio support from Kyle Seglin and Veronica Simonetti. Music by Eddie Cooper. Production Support from Michael Martinez, Leo Duran and Ari Schwartz. And digital support from Amelia Montooth.