Yesterday the U.S. Supreme Court’s term came to an end, and like survivors of an earthquake, we are left to sift through the ruins to see what’s left standing. None of this year’s decisions are likely to be as individually cataclysmic as last year’s Dobbs vs. Jackson’s Women’s Health, which overturned half a century’s precedent on abortion rights in the United States but taken together the outcome of this year’s cases demonstrate court’s conservative supermajority’s continued dedication to reshaping American life to fit their desires, regardless of precedent, public opinion, or ethical considerations.
United States Supreme Court Building By Carol M. Highsmith – Library of CongressCatalog: http://lccn.loc.gov/2011631106 Image download: https://cdn.loc.gov/master/pnp/highsm/12900/12912a.tifOriginal URL: http://hdl.loc.gov/loc.pnp/highsm.12912, Public Domain, https://commons.wikimedia.org/w/index.php?curid=91285025
There were a few bright spots. The court rejected the nonsensical “independent legislature theory” that would have allowed state legislatures, many of which are wholly captured through gerrymandering by one of the two major political parties, to ignore the will of their constituents and install their own presidential electors. The court upheld the 1978 Indian Child Welfare Act, preserving Indigenous families and the sovereignty of tribal governance. And in a shocker for a court that twice has decided to gut the Voting Rights Act of 1965 in the last decade, the court held that Alabama’s current congressional maps are racially discriminatory and must be redrawn.
But those cases shine all the brighter against the darkness of the rest of the docket. The court eliminated affirmative action in higher education admissions, in the process neatly jettisoning any sense of “originalism” as regards the 14th Amendment. (The 13th, 14th, and 15th amendments, it must be remembered, were explicitly created to allow the government to take steps to improve the lives of Black Americans – but the court seems to believe it instead restricts the government from taking any actions that consider race at all.)
In Biden vs. Nebraska, it overruled the plain text of the HEROES Act and killed President Biden’s student loan relief plan under the guise of the newly-formed “major questions doctrine,” a decision Justice Kagan said “violates the Constitution” by overstepping judicial restraint.
The court made it harder again for the Environmental Protection Agency to regulate water pollution in Sackett vs. EPA, continuing a theme from last year’s West Virginia v. EPA – on which more in a moment. For environmentalist Pagans, this trend by the conservative supermajority has to be considered disastrous – the court clearly wants to pare the EPA’s authority to the bone. And in a case announced yesterday, businesses are again free to discriminate against LGBTQ+ people as much as they want, as long as their owners can claim their business offers “expressive” goods and services – a category that seems to me porous at best.
At least as concerning as the decisions themselves are the methods by which those questions came before the court. Take the LGBTQ+ discrimination case, 303 Creative v. Elenis. Lorie Smith, a Christian business owner, wanted to start offering wedding announcement websites but did not want to offer services to queer couples, but that discrimination would have violated Colorado state law.
The same law was contested in 2018’s Masterpiece Cakeshop decision. However, where Masterpiece Cakeshop involved an actual set of facts – a gay couple really did try to buy a wedding cake from the business and the business owner really did refuse them on the basis of his Christian religious beliefs – there was absolutely no set of similar facts for 303 Creative. Smith did not actually offer wedding announcement websites and no queer couple had ever attempted to hire her. The case was entirely hypothetical. And yet the court not only heard the case but made an expansive ruling on it that will affect the civil rights of every queer American.
Similarly, Biden vs. Nebraska hinged entirely on the state of Missouri asserting that a loan servicer would be hurt by the student loan forgiveness program, which could theoretically hurt the loan servicer’s ability to pay money to the state. But the loan servicer itself never claimed harm, and in fact, independent analysis suggests that other provisions in the Biden plan would have actually benefited the servicer – and thus there would have been no injury to Missouri, either.
Both of these cases remind me of last year’s West Virginia decision, in which the court issued a ruling on another entirely hypothetical regulation, one that was never put into effect and indeed withdrawn by the Trump administration. But the court still took the case as an opportunity to not only issue a verdict but one that monumentally restricted the ability of the executive branch of the government to engage in any meaningful regulation without Congress’s narrowly-defined approval. (And as Biden vs. Nebraska shows, sometimes not even that, if the court arbitrarily decides an agency’s decision trips over the invisible “major questions” wire.)
In theory, the “major questions” doctrine is supposed to give power to the legislature. In practice, however, it gives the Supreme Court ultimately the power to legislate – another power grab in line with the Roberts “imperial Supreme Court.”
A cornerstone of American jurisprudence is the idea that a plaintiff must actually be able to demonstrate harm in order to sue – or, in other words, that something has to have actually happened before a court can rule on it. This principle of standing is supposed to be one of the fundamental differences between the legislative and judicial branches. In the current era of the court, however, the conservative justices are only too happy to accept cases with no standing at all if it gives them an opportunity to rewrite the laws to suit their worldviews.
As cases like 303 Creative and Sackett show, that worldview is hostile to common Pagan values like queer solidarity and environmentalism. It’s bad enough that the 6-3 majority can essentially decide whatever it wants in the cases that come before it; it’s even worse when the court can conjure opportunities to rule on their pet causes out of thin air.
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