Lone Candle
Champion of Truth
“A federal judge on Friday permanently banned Arizona from enforcing a new law restricting how closely people may film police, finding that the law violates a core First Amendment right to record law enforcement officers.”
“The new law eliminates courts’ power to overturn decisions by Israel’s Cabinet or its ministers that they find to be “extremely unreasonable,” a vague-sounding standard that has a more technical meaning in Israeli law. In the simplest terms, the reasonableness doctrine allows the courts to overturn policies when the government can’t prove that its decisions were made according to some basic standards of fair and just policymaking.
Such a standard for judicial review might seem overbroad in the United States. But it’s actually relatively common internationally, and Israel in particular has a need for it: The country lacks a formal constitution, significant separation of executive and legislative powers, and a federal system. The courts are basically the only check on decisions made by the elected government — and the current government, a far-right coalition led by Prime Minister Benjamin Netanyahu, is trying to weaken the judiciary’s powers and pack it with ideologically friendly jurists.
Eliminating reasonableness review of Cabinet decisions is “only part of a far bigger plan to gut checks on executive power in Israel,” writes Natan Sachs, director of the Brookings Institution’s Center for Middle East Policy. Other components of this plan are currently waiting in the wings, likely next steps for the government in the coming weeks and months. If they too are passed, Sachs writes, Netanyahu’s government would possess “the ability to do almost anything.””
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“Reasonableness is not the only tool Israeli courts have to overturn government policies; its elimination marks an increase in government power, but it is hardly the end of judicial review. By passing this reform alone, rather than packaged with even more radical components of the initial overhaul, Netanyahu lowered the risk of defections from his four-vote majority. (The new law passed 64-0, after opposition lawmakers walked out of the vote in protest.)”
“In the less than three years since President Joe Biden took office, the Supreme Court has effectively seized control over federal housing policy, decided which workers must be vaccinated against Covid-19, stripped the EPA of much of its power to fight climate change, and rewritten a federal law permitting the secretary of education to modify or forgive student loans.
In each of these decisions, the Court relied on something known as the “major questions doctrine,” which allows the Court to effectively veto any action by a federal agency that five justices deem to be too economically significant or too politically controversial.
This major questions doctrine, at least as it is understood by the Court’s current majority, emerged almost from thin air in the past several years. And it has been wielded almost exclusively by Republican-appointed justices to invalidate policies created by a Democratic administration. This doctrine is mentioned nowhere in the Constitution. Nor is it mentioned in any federal statute. It appears to have been completely made up by justices who want to wield outsize control over federal policy.
And the implications of this doctrine are breathtaking. In practice, the major questions doctrine makes the Supreme Court the final word on any policy question that Congress has delegated to an executive branch agency — effectively giving the unelected justices the power to override both elected branches of the federal government.
Consider, for example, the Court’s recent decision in Biden v. Nebraska, which invalidated a Biden administration program that would have forgiven up to $20,000 in debt for millions of student loan borrowers. The Court did so despite a federal law known as the Heroes Act, which permits the secretary of education to “waive or modify any statutory or regulatory provision applicable to the student financial assistance programs … as the Secretary deems necessary in connection with a war or other military operation or national emergency.”
So Congress explicitly granted the executive branch the power to alter or forgive student loan obligations during a national crisis like the Covid-19 pandemic. But six justices, the ones appointed by Republican presidents, decided that they knew better than both Congress and the executive.
The premise of the major questions doctrine is that courts should cast an unusually skeptical eye on federal agencies that push out ambitious new policies. As the Court said in a 2014 opinion, “we expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’”
In practice, however, this doctrine functions more as a freewheeling judicial veto than as a principled check on agencies. The Heroes Act, after all, is crystal clear in giving Education Secretary Miguel Cardona — and not the Supreme Court — final say over which loans are forgiven during a national emergency.”
“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.”
“The D.C. Circuit Court of Appeals ruled..that language in the 2018 Fight Online Sex Trafficking Act — better known as FOSTA — is not unconstitutionally vague and doesn’t violate free-speech rights.
However, the court said it would interpret the threat of criminal punishment for the use of computer services in a manner “facilitating” or “assisting” prostitution to apply as longer-standing statutes traditionally do, to people “aiding and abetting” such crimes.
“We therefore hold that [FOSTA’s] mental state requirement does not reach the intent to engage in general advocacy about prostitution, or to give advice to sex workers generally to protect them from abuse,” Judge Patricia Millett wrote, joined by Judges Harry Edwards and Justin Walker. “Nor would it cover the intent to preserve for historical purposes webpages that discuss prostitution. Instead, it reaches a person’s intent to aid or abet the prostitution of another person.”
Millett conceded that the language could be seen as encompassing all sorts of conduct that arguably promotes or encourages prostitution. But she said the more limited reading was justified in this instance.”
“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.”