“The government may not compel someone to “create speech she does not believe,” the Supreme Court ruled this morning. In a 6–3 opinion authored by Justice Neil Gorsuch, the Court sided with a graphic designer, Lorie Smith, who wanted to expand into the wedding-website business without being forced by Colorado law to create products celebrating same-sex marriages.
Back in 2021, the U.S. Court of Appeals for the 10th Circuit found that the planned websites would each constitute “an original, customized creation,” designed by Smith “using text, graphics, and in some cases videos” with a goal of celebrating the couple’s “unique love story.” As such, it said they “qualify as ‘pure speech’ protected by the First Amendment.” The lower court admitted that Smith was willing to provide her services to anyone, regardless of race, religion, or sexual orientation, so long as the substance of the project did not contradict her values. It also recognized that “Colorado’s ‘very purpose’ in seeking to apply its law to Ms. Smith” was to stamp out dissenting ideas about marriage. Despite all of that, incredibly, the 10th Circuit held that the state government was within its authority to compel her to create such websites against her will.”
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“The ruling in 303 Creative LLC v. Elenis is neither as narrow nor as broad as it (theoretically) could have been. The Court didn’t do away with public accommodations, or businesses prohibited from discriminating against customers on the basis of characteristics such as skin color or national origin. It did note that “no public accommodations law is immune from the demands of the Constitution” and that “public accommodations statutes can sweep too broadly when deployed to compel speech.” (The Colorado law was guilty in this instance.)
The high court also didn’t establish a right for any and every business owner to decline to provide services for same-sex weddings—only those whose services involve expressive activity. Whether a particular service (say, cake baking) is expressive will have to be litigated case by case.
But the majority did decide Smith’s case by appealing to free-expression precedents rather than religious-liberty ones. In other words, the justices didn’t say that the faith-based nature of Smith’s beliefs about marriage entitled her to an exemption. Presumably, a secular person with moral or factual objections to expressing a particular message would receive all the same protections as a Christian or Muslim objecting on religious grounds. As it should be.”
“by sitting on this case, a Supreme Court dominated by conservative Republican appointees effectively let Tipton control ICE for more than a year.”
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“Texas’s lawsuit was rooted in a federal statute which states that the United States “shall take into custody any alien” who commits certain immigration offenses. In effect, they argued that the word “shall” is a mandatory command that forces ICE to make mass arrests.
But this argument runs afoul of 150 years of well-settled law. As far back as Railroad Company v. Hecht (1877), the Supreme Court held that “as against the government, the word ‘shall,’ when used in statutes, is to be construed as ‘may,’ unless a contrary intention is manifest.”
One reason for this strong presumption that federal laws do not impose arrest or prosecution mandates on law enforcement is that it is often literally impossible for a law enforcement agency to arrest every single person who violates a law — imagine the massive police state that would be required, for example, to pull over every single driver who violates a traffic law.
As the Justice Department explained in a 2014 memo, “there are approximately 11.3 million undocumented aliens in the country,” but Congress has only appropriated enough resources to “remove fewer than 400,000 such aliens each year.” That means that leaders of immigration agencies like ICE necessarily must set priorities, and make choices about which deportable immigrants will be targeted and which ones will effectively be tolerated within US borders.
Indeed, as Kavanaugh writes in his Texas opinion, this ability to set priorities and to decide when not to enforce the law has been a regular feature of federal immigration law across many administrations. “For the last 27 years since” the immigration statutes at issue in Texas “were enacted in their current form,” Kavanaugh writes, “all five Presidential administrations have determined that resource constraints necessitated prioritization in making immigration arrests.””
“Chief Justice John Roberts’s opinion for the Court’s six Republican appointees faults the two universities for having affirmative action programs that “lack sufficiently focused and measurable objectives warranting the use of race.” But there’s an obvious reason why they do not. The Court’s previous decisions permitted some limited forms of affirmative action, but they explicitly ban racial quotas and other mathematical formulas that could allow universities to determine whether they are achieving “focused and measurable objectives warranting the use of race.”
The Harvard case, in other words, is rooted in a Catch-22. Universities may neither have mathematically precise programs that violate the Court’s earlier decisions, nor may they have the more vaguely defined programs that the Court prohibits in its newest decision.
I wish that the Court had shown more humility instead.
That’s because the military leaders’ views are shared by an equally long list of America’s largest employers — a list that includes companies as diverse as Apple, Levi Strauss, Northrop Grumman, Starbucks, and United Airlines — all of whom warn that American business will be less dominant because of the Supreme Court’s decision in Students for Fair Admissions.
To appeal to diverse markets, the business brief argues, major employers need “university admissions programs that lead to graduates educated in racially and ethnically diverse environments.” “Only in this way,” their brief emphasizes, “can America produce a pipeline of highly qualified future workers and business leaders prepared to meet the needs of the modern economy and workforce.”
And then there’s the medical profession’s brief. This brief, filed on behalf of a wide range of medical organizations including the American Medical Association itself, argues that “an overwhelming body of scientific research compiled over decades confirms” that “diversity literally saves lives by ensuring that the Nation’s increasingly diverse population will be served by healthcare professionals competent to meet its needs.””
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“six lawyers with little specialized expertise in business, education administration, national defense, or medicine, declared that they have found the answer to America’s longstanding questions about race and diversity — and that they know more than individuals and institutions with far greater expertise than someone who spends their days reading documents in a marble palace could ever have.”
“The immediate question in the two lawsuits before the Supreme Court — Students for Fair Admissions v. President & Fellows of Harvard College and Students For Fair Admissions v. University of North Carolina — was whether the Supreme Court should overrule Grutter v. Bollinger, the 2003 case that held that race may play a limited role in college admissions. In practice, race often functions as a tiebreaker when universities are deciding among many well-qualified students.
According to Vox’s Ian Millhiser, the decision does not explicitly overrule the Court’s previous decisions permitting affirmative action, but it will almost certainly have the same effect as a total ban.
The overarching stakes in these cases, however, are much broader. The plaintiffs advocated a “colorblind” theory of the Constitution that would prohibit the government from considering race in virtually any context, including efforts to voluntarily integrate racially segregated grade schools and other institutions. Decisions such as Grutter have given the government limited authority to foster racial diversity. The Harvard and UNC decision is likely to eliminate that authority altogether.”
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“Affirmative action has been used for more than half a century by colleges and universities, initially to encourage the participation of historically marginalized groups and mitigate the effects of decades of segregation by university systems. Since the landmark Regents of the University of California v. Bakke case in 1978, the Supreme Court has repeatedly held that such programs can be used as a tool to foster diversity among a university’s student body, and that an applicant’s race or ethnic background could be deemed a plus when deciding between applicants who are similarly qualified. The Court determined that students from underrepresented racial backgrounds could “promote beneficial educational pluralism” that benefits all students — a goal compelling enough to the justices that they have continued its use. Since Bakke, the Court has upheld affirmative action in admissions despite multiple challenges, including Fisher v. University of Texas, decided as recently as 2016, in which Abigail N. Fisher, a white woman, claimed that she was rejected from the University of Texas at Austin because of preferences given to applicants of color.
Although decades of research support the conclusion that more diverse campuses benefit all students, the premise of the “colorblindness” theory is that race-conscious policies are so inherently misguided that they cannot be sustained regardless of their benefits. This theory has been around for a very long time — President Andrew Johnson, the white supremacist who spent much of his time in office frustrating Reconstruction, vetoed laws seeking to lift up enslaved people who had been freed because he claimed they would “establish for the security of the colored race safeguards which go infinitely beyond any that the General Government has ever provided for the white race.” More recently, conservatives including President Ronald Reagan have made similar attacks on affirmative action — often describing such programs as “reverse discrimination.”
Now, this kind of rhetoric is being echoed by Blum (who was, notably, also involved in the Fisher case). “In a multi-racial, multi-ethnic nation like ours, the college admissions bar cannot be raised for some races and ethnic groups but lowered for others,” Blum said in a statement in January. “Our nation cannot remedy past discrimination and racial preferences with new discrimination and different racial preferences.””
“it is a unanimous opinion, joined in full by the Court’s Democratic appointees, that does little more than repudiate a single line in a 1977 Supreme Court decision that virtually everyone thinks was a mistake.”
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“the decision in Groff v. DeJoy announces a new rule that will govern employees who seek an accommodation for their religious beliefs from their employer. Because requests for such accommodations are fairly common, that means that Groff will likely lead to a rush of lawsuits, at least in the short term, as courts try to figure out how to apply Groff’s new rule to individual cases.
Groff’s new rule states that religious accommodation requests should be granted unless they impose a “hardship” on the employer that “would be substantial in the context of an employer’s business.” This highly flexible new rule might potentially be used by far-right judges to give religious conservatives an unfair upper hand in disputes with their employer’s human resources department. Such is the price of vague legal rules.
That said, the actual holding of Groff — that most requests for religious accommodations should be granted, and that an employer cannot dodge this obligation because it might impose minimal costs on the employer — is largely benign. Indeed, it is likely to benefit many employees who make reasonable requests for accommodations that might have been denied under an earlier, less employee-friendly rule.
It will be up to the Supreme Court, in other words, to ensure that Groff does not allow rogue judges to disrupt the workplace. But the actual legal rule announced by Groff is a sensible one that should be applied fairly by most judges.”
“Roberts’s attempts to make the Heroes Act mean something other than what it says are at times confusing and difficult to parse. But it basically boils down to this: In order to provide for the particular mix of student loan relief prescribed by the Biden administration’s policy, the secretary had to both “waive” some student loan obligations and “modify” others. That is, the policy only works if the secretary has the power to outright eliminate some obligations, while merely making changes to others.
The chief’s primary attack on the Heroes Act’s statutory language is that he reads the word “modify” too narrowly to permit these changes. As he writes, the word “modify” “carries ‘a connotation of increment or limitation,’ and must be read to mean ‘to change moderately or in minor fashion.’” And then he faults the Biden administration for doing too much, attempting to “transform” student loan obligations instead of merely making “modest adjustments.””
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““In the HEROES Act,” Kagan notes, “the dominant piece of context is that ‘modify’ does not stand alone. It is one part of a couplet: ‘waive or modify.’” The word “waive” moreover means “eliminate,” so Congress explicitly gave the secretary the power to simply wipe away student loan obligations altogether.”
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“Perhaps recognizing that his attempts to parse the text of the Heroes Act may not be entirely persuasive, Roberts’s opinion also offers an alternative reason to strike down Biden’s student loan forgiveness program — something known as the “major questions doctrine.”
Briefly, the major questions doctrine states that the Court expects “Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’” And, as Roberts writes, there’s little question that this student loans policy, which could forgive hundreds of billions of dollars in student loans, involves matters of great significance.
But the most important thing to understand about the major questions doctrine is that it is completely made up. It appears nowhere in the Constitution, and nowhere in any statute, and was invented largely by Republican appointees to the Supreme Court. It is true that the Supreme Court has invoked this made-up doctrine several times in the recent past — mostly in opinions joined entirely by Republican-appointed justices who wished to strike down policies pushed by Democratic presidents — but, in relying on this fabricated legal doctrine one more time, Roberts effectively cites past power grabs by the justices to justify a new power grab.
And even if you accept the major questions doctrine as legitimate, it’s not clear why Biden’s student loans program still should not be upheld. The doctrine merely states that Congress must “speak clearly” if it wishes to delegate significant authority to a federal agency. And, for the reasons explained in the previous section, Congress spoke quite clearly when it wrote the Heroes Act.”
“In a ruling on two related cases on Thursday written by Chief Justice John Roberts, the Supreme Court just ended affirmative action in higher education as we know it.
The two cases — Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina — both argued that the use of race in college admissions should end, but for slightly different reasons. In the Harvard case, the plaintiffs claimed that the admissions practices of Harvard discriminated against Asian American applicants by placing a cap on the number admitted. In the North Carolina case, the plaintiffs asked the court to rule that universities can’t use race as a factor in college admissions and must use a race-neutral approach, which they argued can achieve student-body diversity.
The court — with the six Republican-appointed justices on one side and the three Democratic-appointed justices on the other — agreed that Harvard’s practices resulted in fewer Asian American applicants being admitted. And they found that the practices of both colleges violated the equal protection clause of the 14th Amendment. Roberts echoed earlier rulings where he and other conservative justices stressed that the Constitution requires a colorblind reading, making any consideration of race wrong. “Eliminating racial discrimination means eliminating all of it,” he wrote.
The justices in the minority did not accept that interpretation — to put it mildly. In her dissent, Justice Ketanji Brown Jackson excoriated the court for failing to address the “gulf-sized race-based gaps” in American life, and criticized the idea that using race as a factor in holistic admissions is unfair. “This contention blinks both history and reality in ways too numerous to count.” she wrote. “But the response is simple: Our country has never been colorblind.”
And although it’s a quiet — not explicit, but functional — reversal of more than 50 years of precedent, this decision might actually be popular. A poll designed to capture public opinion on major Supreme Court decisions this term found that strong majorities of Americans agree that public (74 percent) and private (69 percent) colleges and universities should not be able to use race as a factor in college admissions. Questions that remind respondents of the goal of affirmative action — to increase the numbers of Black, Hispanic and other underrepresented students on elite campuses — tend to generate more support. But people also don’t think minority groups should be given “special preferences.””
“Forensic firearms identification includes well-established uses such as determining caliber and other general characteristics, but examiners are also frequently called on to testify whether a particular bullet was fired from a particular gun. A gun’s firing pin and the grooves on the inside of a gun barrel leave marks on cartridge casings when a bullet is fired, so a firearm examiner compares crime scene bullets to samples fired from the suspect gun and looks for matching patterns under a microscope.
According to the Association of Firearm and Tool Mark Examiners (AFTE), which sets standards for the field, a positive identification can occur when there is “sufficient agreement” between two or more sets of marks or patterns. The AFTE argues—as one of its members did as a witness for the state of Maryland in Abruquah’s appeal—that its methods are scientifically sound, widely accepted, and have low error rates in testing.
However, over the past decade many forensic methods, especially “pattern-matching” disciplines like bite mark and tool mark analysis, have been challenged by critics who argue that they rely on subjective interpretations that are nonetheless presented as scientific conclusions in courtrooms.”