The Supreme Court Has Kicked the Door Wide Open to Jim Crow–

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The Supreme Court Has Kicked the Door Wide Open to Jim Crow–Style Bigotry: The court’s conservatives used a case literally based on a homophobe’s fantasies to blow a huge hole in our antidiscrimination laws and revive the spirit of Plessy v. Ferguson.
by Elie Mystal
The Nation
7/3/23

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A protester outside the Supreme Court Building on Monday, December 5, 2022. (Kent Nishimura / Los Angeles Times via Getty Images)

The conservative cultural movement is based on lies, misinformation, and fantasies. That’s what makes these people so odious when they crawl out from under their rocks and present themselves in the public square: They make stuff up and then demand that their delusions be given pride of place in our objective reality. (There simply is no woke, trans, race-critical monster hiding under their beds who comes out at night and jabs their children with a vaccine that makes them gay. I refuse to pretend otherwise.)

The problem, of course, is that this fictional conservative universe has very real purchase in the political sphere, where a loud and vocal minority of voters insist on imposing their fever dreams on the rest of us. And, most consequentially of all, it now dominates our legal sphere, where we are saddled by six conservative justices on the Supreme Court who are more motivated by what they saw on Fox News last night than by the laws, the facts, or the Constitution.

I’d argue that lying and accepting lies is more dangerous when it comes from the Supreme Court. Voters can reject politicians like Ron DeSantis who are obsessed with the genitalia of high school students. But there is very little the people can do about justices who are appointed for life and give themselves veto power over the rest of government.

The latest example of the danger of a conservative court untethered from facts came on Friday, the last day of the Supreme Court’s current term, in a case called 303 Creative v. Elenis. I’d like to tell you about the “facts” of this case, but there basically are none. Instead, 303 Creative is predicated on a fairy tale.

Once upon a time, a woman named Lorie Smith had a wonderful idea: Maybe, someday, she should start a graphic design business that would make wedding websites for couples announcing their nuptials. But Smith’s blissful dreams were torn asunder when she remembered a chilling truth: Gay people both exist and sometimes fall in love and want to get married. What would happen, Smith wondered, if one of those gay people offered to pay for her wedding website services as if they had the same rights as a straight couple? Would she have to accept their gay money and render the services she was thinking of offering to the general public? Smith asked her imaginary friend, whom she called “Jesus,” for advice. Smith’s Jesus told her that she should not serve gay couples, because only those sufficiently motivated by hate and bigotry are allowed to hang out with him after they choke to death on their own bile.

Emboldened by her imaginary conversation, Smith asked the state of Colorado if she could one day start a business that explicitly discriminated against members of the LGBTQ community. But state officials referred her to the Colorado Anti-Discrimination Act (CADA) and told her that denying services to people based on their sexual orientation was illegal. Smith was confused. How could the imagined directives of her made-up friend be “illegal”? Smith simply wanted to be bigoted and hateful in accordance with her deeply held beliefs. How could the basic laws of a pluralistic society stop her from doing that?

All seemed lost. But then, a miracle occurred. The Alliance Defending Freedom, a secretive order of hobgoblins whose members vow to destroy the world of secular law so bigots can be free to discriminate to their malformed hearts’ content, found out about Smith’s plight. And the ADF told her that the hypothetical threat to her homophobia that she had invented in her own mind was so important that she should take legal action.

So Smith and the ADF sued the state of Colorado, asking the courts to issue an advisory opinion about whether Smith was allowed to discriminate in a business she didn’t have, toward customers who didn’t ask her to do anything, because they didn’t exist. And the suit made it all the way to the Supreme Court.

The Supreme Court is not supposed to issue advisory opinions. It is not supposed to rule on fairy tales. The court, according to the Constitution, is supposed to limit itself to ruling only on “cases or controversies.” That means it is supposed to address only real issues in the real world, where real litigants suffered real harm. But none of the issues in 303 Creative are connected to real-world events. Smith’s business is theoretical; her customers do not exist; and the bigotry she longs to visit upon some of them hasn’t actually happened yet. In the legal jargon, Smith’s case should have been dismissed for lack of “ripeness,” meaning that whatever issues Smith thinks she’s talking about are not yet ready for judicial review.

But, as I said, the goal of the conservative movement is to make their dreams our nightmares. The Supreme Court did hear Smith’s case, and since there were no real factual issues at play, 303 Creative was turned into a canvas for Neil Gorsuch and the five conservatives who joined his majority opinion to simply make up a set of facts so they could get the outcome they desired.

What did the conservatives desire? Well, Gorsuch and the conservatives wanted to pierce a hole in the antidiscrimination “public accommodation” laws and rulings that were erected in the 1960s and ’70s to dismantle Jim Crow segregation. Public accommodation laws are why people who look like me can go to a restaurant or rent a hotel room regardless of whether the proprietor “takes kindly” to my kind there. We’ve tried living without these laws, and what we got was an American apartheid system, so they’re kind of important.

But conservatives don’t like public accommodation laws, or antidiscrimination laws generally, because they prevent white folks from doing whatever the hell they want. In particular, the court saw the Smith case as a chance to weaken these laws to make things easier for bigots who claim their discrimination is motivated by God instead of genetics. So that’s exactly what they did. The 303 Creative ruling gives every segregationist who never gave up hope, every bigot who keeps hate close to their heart, and every neo-Nazi who pines for a whites-only nation a brand new tool to fight for the legally protected discrimination that they yearn for so deeply.

That tool can be found in Gorsuch’s use of a gaping pro-discrimination loophole. He decided that Smith’s wedding website—which, lest we forget, is not real—was a (hypothetically) “creative” or “expressive” business, and that because of that, she was not obliged to serve LGBTQ people.

So now, bigoted business owners need only say that their business is “creative” and their bigotry is motivated by religion, and the Supreme Court will entertain their case. (Well, the bigotry better be motivated by a “Christian” religion, to prevail in front of this court. I highly doubt that the justices will countenance bigotry allegedly motivated by the tenets of a non-Christian religion.)

As Gorsuch no doubt hoped, most of the white cisgender male debate revolves around the first prong of the court’s new test: what counts as a “creative” business. There’s no great answer, because the court decided this case based on wishes instead of facts. Is a marriage announcement design business truly creative? Nobody knows: Smith, I repeat once again, does not have such a business, so she can establish no factual record about what she actually does, and no gay couples asked for her services, so they can’t tell you what she refused to do. Actually, scratch that: According to a story Smith randomly started telling in the middle of her case’s legal proceeding, a gay guy named Stewart did ask for her wedding website services one time. The only problem with that is that The New Republic called Stewart up and found out that he is not gay, has been married to a woman for years, never contacted Smith, and has no idea how he wound up involved in this. So technically, no gay people have tried to contact Smith apart from the not-actually-gay person whom she miraculously remembered partway through the case.

Fortunately for Smith, none of this troubled Gorsuch and company at all. He was happy to just make it all up alongside her. Extrapolating about what he might make up next is folly. If Gorsuch pounds the sand in Africa. will it cause a hurricane in the mid-Atlantic? Maybe. Who knows?

Of course, the confusion is the point, and part of the victory the court handed out to the bigots. Because now they can presumptively deny services to members of the LGBTQ community knowing that most people, most of the time, won’t even attempt to make an actual Supreme Court case out of the denial of basic services. Most people will suffer an assault on their human dignity in silence, instead of calling in the lawyers and pausing their whole lives to address the insult.

There are already a host of bigoted photographers who will not take pictures of a gay wedding, bigoted bands who will not play at a gay wedding, and bigoted florists who will argue that putting a centerpiece on a table violates their religion if the flowers make a gay couple happy. Tomorrow, thanks to this ruling, they’ll be joined by bigoted jewelers who claim fitting a rock into a band is a “creative” enterprise, DJs who say their creative mix of playing “Unchained Melody” followed by the macarena should only be appreciated by straight couples, and caterers who say placing crab atop a cracker is “art.”

If that’s not bad enough (and it really should be bad enough), you’d be a fool to think that these indignities will be limited to the LGBTQ community and their wedding celebrations. Gorsuch took pains to say that he still believes in public accommodation laws when free speech is not implicated, but Gorsuch’s whites-only version of history has either blinded him to—or made him willfully ignorant of—the creativity used by whites to support all kinds of injustice.

Every bigot, from a car mechanic to a “sandwich artist” at Subway, will now have an opportunity to claim that their business is either “creative” or a “speech act” that cannot be subjected to normal antidiscrimination laws. Who will tell them they’re wrong? Who will stop a chef from arguing that their culinary concoctions can only be enjoyed by white people? Who will stop the carpenter who claims that woodworking is an artistic speech act and only white people deserve doors?

Not Neil Gorsuch—he’s making this stuff up as he goes along. Not the Supreme Court—the conservatives want to make the world safe for bigots, not fair for everybody else.

I’d like to think that 303 Creative will one day be reviled in the same manner as the decision that is its spiritual predecessor, Plessy v. Ferguson. Unlike Gorsuch, I do not think bigotry gets better if Jesus orders you to do it.

But what 303 Creative shows is that the forces that believe in the Plessy majority’s denial of services never really went away. They were never really defeated. They just waited, and patiently reconstructed the Supreme Court until it would once again protect the rights of bigoted business owners determined to deny services to people they hate.

Maybe the dream of a pluralistic society based on equality and fairness was the real fairy tale all along.

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Justice Kagan shares our crisis of faith in SCOTUS
by Lawrence O'Donnell
MSNBC
Jul 5, 2023 #msnbc #supremecourt #justicekagan

MSNBC’s Lawrence O’Donnell shares his own crisis of faith in the Supreme Court that he revered before the Roberts Court corrupted legal scholarship to the point where he believes the Republican justices are “just making it up” and, as Justice Elena Kagan expressed in her dissent, are violating the Constitution.



Transcript

WELL IT WAS IN A CLASSROOM AT A
CATHOLIC HIGH SCHOOL IN BOSTON
WHERE I FIRST HEARD THE PHRASE
CRISIS OF FAITH.
IT WAS DURING RELIGION CLASS
THAT A PRIEST TOLD US ABOUT A
CRISIS OF FAITH THAT HE HAD HAD
SOME YEARS EARLIER.
FOR PRIESTS, THE CRISIS OF
FAITH IS LOSING THE BELIEF IN
GOD.
IT IS SO COMMON FOR PRIESTS TO
HAVE A CRISIS OF FAITH, THAT
THEY HAVE A TERM FOR IT.
AND WE HAVE A PROCESS TO DEAL
WITH IT.
PRIESTS LEAVE THEIR PRIESTLY
DUTIES TEMPORARILY, UNTIL THE
CRISIS OF FAITH PASSES.
OR PERMANENTLY IF IT DOESN'T.
I'VE BEEN EXPERIENCING A CRISIS
OF FAITH FOR THE LAST YEAR OR
SO, AND HAVE NOT KNOWN QUITE
WHAT TO SAY ABOUT IT OR WHO TO
TALK TO ABOUT IT.
HERE ARE PRIESTS WHO SPECIALIST
IN COUNSELING CATHOLIC PRIESTS
WHO ARE COUNT EXPERIENCING A
CRISIS OF FAITH.
BUT I'M NOT SURE WHO TO TURN TO
FOR MY CRISIS OF FAITH.
IT IS A CRISIS OF FAITH IN WHAT
HAS BEEN A GOD-LIKE PRESENCE IN
MY LIFE.
WHEN I WAS BAPTIZED INTO THE
CATHOLIC FAITH AT BIRTH, MY
FATHER WAS A BOSTON POLICE
OFFICER.
BY THE TIME I WAS IN HIGH
SCHOOL, LEARNING ABOUT A
CATHOLIC PRIEST HAVING A CRISIS
OF FAITH, MY FATHER WAS A
LAWYER.
HE HAD ALREADY ARGUED AND WON A
CASE IN THE UNITED STATES
SUPREME COURT.
I WAS THERE IN THE SUPREME
COURT THAT DAY WHEN MY FATHER
MADE HIS CASE TO THE JUSTICES.
I WAS 11 YEARS OLD.
I HAD BEEN IN MANY CHURCHES AND
CATHEDRALS BY THE TIME I WAS 11
AND HAD SEEN ON SENIORS AND
CARDINALS ONLY ALTER, BUT NEVER
EXPERIENCED FOR MAJESTY IN A
ROOM.
THEN, SITTING THERE, LOOKING UP
AT THE WARREN COURT.
THERE WAS THE REPUBLICAN
APPOINTED CHIEF JUSTICE EARL
WARREN, FLANKED BY LEGENDS ON
BOTH SIDES OF HIM.
INCLUDING THE MOST LIBERAL
MEMBER OF THE COURT WILLIAM O
DOUGLAS, APPOINTED BY PRESIDENT
FRANKLIN ELEANOR ROOSEVELT.
THIS WAS THE COURT THAT ORDERED
THE DESEGREGATION OF PUBLIC
SCHOOLS IN AMERICAN IN 1954.
THIS WAS THE COURT THAT FOUND
STATE LAWS BANNING INTERRACIAL
MARRIAGE TO BE
UNCONSTITUTIONAL.
EARL WARREN HAD BEEN THE CHIEF
JUSTICE OF THE UNITED STATES
EVERY DAY OF MY LIFE.
FOR GOOD MARSHAL WOULD JOIN THE
WARREN COURT IN ITS LAST YEARS
AND PERSONALLY REPRESENT AS THE
FIRST AFRICAN AMERICAN MEMBER
OF THE SUPREME COURT THE STEADY
MARCH OF SOCIAL PROGRESS THAT
THE WAR IN COURT GUIDED THIS
COUNTRY THROUGH USING, WE'VE
DONE THAT, SOMETHING AS SACRED
AS THE TEN COMMANDMENTS.
THE CONSTITUTION OF THE UNITED
STATES.
WE DID NOT THINK THAT CHIEF
JUSTICE EARL WARREN, THAT
JUSTICE DOUGLAS, AND JUSTICE
BRENNAN, AND JUST AS MARSHALL,
AND OTHER LEGENDS OF THE WARREN
COURT WERE DELIVERING THIS
PROGRESS, WE THOUGHT THE
CONSTITUTION WAS DELIVERING
THAT PROCESS.
WE THOUGHT THAT THE WARREN
COURT WAS EMPLOYING THE MOST
REFINED LEVEL OF LEGAL
SCHOLARSHIP POSSIBLE TO REACH
ITS CONSTITUTIONAL
PRONOUNCEMENTS.
AND NO OTHER RESULT WAS
POSSIBLE.
MY FATHER LIVED IN ALL OF THE
SUPREME COURT AND SO DID HIS
CHILDREN.
IT WAS RELIGIOUS LIKE AWE.
WE NEVER TALKED ABOUT WHO
APPOINTED THE JUSTICES AFTER
THEY WERE APPOINTED BECAUSE IT
DIDN'T SEEM PARTICULARLY
RELEVANT.
WE THOUGHT RICHARD NIXON WAS A
TRULY TERRIBLE AND INDEED
CRIMINAL PRESIDENT, BUT HIS
APPOINTMENTS TO THE SUPREME
COURT OR NOT BAD.
THE COURT SURVIVED THE NIXON
YEARS WITHOUT ANY QUESTIONS
ABOUT ITS LEGITIMACY.
THE COURT LED BY A CHIEF
JUSTICE, APPOINTED BY RICHARD
NIXON, IN A UNANIMOUS OPINION
ORDERED RICHARD NATION TO HAND
OVER AUDIOTAPES THAT DESTROYED
THE NIXON PRESIDENCY AND FORCED
RICHARD NIXON TO RESIGN THE
PRESIDENCY.
IN 1973, A REPUBLICAN DOMINATED
SUPREME COURT DELIVERED THE
OPINION IN ROE V. WADE THAT
ALLOWED EVERY PREGNANT WOMAN IN
AMERICA TO DECIDE WHETHER TO
CARRY THAT PREGNANCY.
AND SO MY FAITH IN THE SUPREME
COURT REMAINED STRONG NO MATTER
WHO WAS PRESIDENT.
AND THEN CAME SENATOR MITCH
MCCONNELL AND DONALD TRUMP WHO
DELEGITIMIZED THE SUPREME COURT
IN A WAY THAT HAD BEEN
UNTHINKABLE UNTIL 2016 WHEN
MITCH MCCONNELL REFUSED TO
ALLOW EVEN A CONFIRMATION
HEARING FOR PRESIDENT OBAMA'S
LAST APPOINTEE TO THE SUPREME
COURT, MERRICK GARLAND.
BY FORCING THAT SUPREME COURT
SEAT TO REMAIN OPEN FOR A YEAR,
DONALD TRUMP WAS ABLE TO NAME
NEIL GORSUCH TO THE SUPREME
COURT.
SO WHENEVER YOU SAY THE NAME
GORSUCH ON A SUPREME COURT
DECISION, YOU SHOULD BE SEEING
THE NAME GARLAND.
THE WORD GORSUCH IS AN
ILLEGITIMATE PRESIDENTS IN THE
SUPREME COURT DECISIONS.
AND TAKES ITS PLACE IN THOSE
OPINIONS ONLY THROUGH THE
CORRUPTION OF THE SUPREME COURT
CONFIRMATION PROCESS BROUGHT BY
REPUBLICAN SENATOR MITCH
MCCONNELL.
AND COMPLETED BY THE MOST
CORRUPT PRESIDENT IN HISTORY,
DONALD TRUMP.
NEIL GORSUCH DOES NOT EVIDENCE
A WHIFF OF EMBARRASSMENT ABOUT
HIS ILLEGITIMATE PLACEMENT ON
THE SUPREME COURT.
THE, PARDON THE EXPRESSION,
AFFIRMATIVE ACTION IT TOOK BY
MITCH MCCONNELL AND DONALD
TRUMP TO GET HIM ON THE SUPREME
COURT.
THIS LAST YEAR'S THE YEAR IN
WHICH THE UNITED STATES SUPREME
COURT HAS ENTERED THE MOST
PUBLICLY CORRUPT PHASE OF ITS
ENTIRE HISTORY.
IT IS ENTIRELY POSSIBLE THAT
200 YEARS AGO THERE WERE FORMS
OF CORRUPTION INVOLVING SUPREME
COURT JUSTICES THAT NEVER
BECAME PUBLIC, AND HISTORIANS
NEVER FOUND.
THAT IS POSSIBLE.
MUCH BASED EXCLUSIVELY ON THE
PUBLIC RECORD, IT IS UNDENIABLE
THAT THE CURRENT COURT, THIS
REPUBLICAN DOMINATED ROBERTS
COURT IS THE MOST CORRUPT IN
HISTORY.
AND THEY ARE CORRUPT ON TWO
FRONTS.
ONE, EXTREME FINANCIAL
IMPROPRIETIES AND OBVIOUS
FINANCIAL CONFLICTS OF
INTERESTS WITH BILLIONAIRE
LITIGANTS.
IN WHICH CASES APPEAR BEFORE
THE SUPREME COURT.
MUCH BRAVER CORRUPTION IN THE
SUPREME COURT, THE CORRUPTION
THAT AFFECTS THE DAILY LIVES OF
ALL OF US IS THE CORRUPTION OF
SUPREME COURT SCHOLARSHIP.
IS LEGAL SCHOLARSHIP
SCHOLARSHIP IF YOU CAN JUST
MAKE UP STUFF?
THAT IS THE QUESTION THAT I
HAVE BEEN PRIVATELY ASKING
MYSELF FOR OVER A YEAR NOW.
AND THAT IS THE ESSENCE OF MY
CRISIS OF FAITH.
FOR IOWANS FAITHFULLY BELIEVED
THAT THE WAR IN COURT FOLLOWED
BY THE BURNER COURT WHERE USING
THE MOST REFINED TECHNIQUES OF
LEGAL SCHOLARSHIP TO DELIVER TO
US THE TRUE MEANING OF THE
CONSTITUTION, I NOW BELIEVE THE
REPUBLICAN JUSTICES ON THE
SUPREME COURT ARE JUST MAKING
IT UP.
AND THEY ARE DOING THAT IN A
WAY THAT SCHOLARS CANNOT
POSSIBLY DO.
IN OTHER AREAS OF SCHOLARSHIP,
LIKE MATHEMATICS OR BIOLOGY.
WE HAVE A SUPREME COURT WHOSE
FINAL DECISION OF THE YEAR WAS
BASED ON A PERSON WHO WAS MADE
UP.
A PERSON WHO DOES NOT EXIST.
THE REPUBLICANS IN THE SUPREME
COURT DECIDED, AS JUSTICE SONIA
SOLEIMANI OR SAYS IN HER
DISSENT, THAT, QUOTE, A
PARTICULAR KIND OF BUSINESS,
THE OPEN TO THE PUBLIC, HAS A
CONSTITUTIONAL RIGHT TO REFUSE
TO SERVE MEMBERS OF A PROTECTED
CLASS.
THE COURT DOES SO FOR THE FIRST
TIME IN ITS HISTORY, BY ISSUING
THIS NEW LICENSE TO
DISCRIMINATE IN A CASE BROUGHT
BY A COMPANY THAT SEEKS TO DENY
SAME-SEX COUPLES THE FULL AND
EQUAL ENJOYMENT OF ITS SERVICES,
THE IMMEDIATE, SYMBOLIC EFFECT
OF THE DECISION IS TO MARK GAYS
AND LESBIANS FOR SECOND CLASS
STATUS.
IN THIS, WAY THE DECISION
ITSELF INFLICTS A KIND OF STICK
MY ARM, ON TOP OF ANY HARM
CAUSED BY DENIALS OF SERVICE.
THE OPINION OF THE COURT IS,
QUITE LITERALLY, I NOTICED THAT
READS, SOME SERVICES MAY BE
DENIED TO SAME-SEX COUPLES.
IT WAS JUST THE DAY BEFORE THE
SUPREME COURT ISSUED THAT
DECISION, THANKS TO MELISSA
GRANT, REPORTING IN THE
REPUBLIC, THAT THE SAME-SEX
COUPLE NAMED IN THE LAWSUIT
THAT REACHED THE UNITED STATES
SUPREME COURT WAS PROVEN NOT TO
EXIST.
THAT SAME-SEX COUPLES DID NOT
EVEN EXIST.
THE LAWSUIT FALSELY CLAIMED
THAT A SAME-SEX COUPLE NAMED
STEWART AND MIKE WANTED TO HAVE
A WEBSITE MADE FOR THEIR
UPCOMING WEDDING, THE LAWSUIT
INCLUDED A PHONE NUMBER FOR THE
COUPLE WHICH MELISSA GRANT
CALLED TO DISCOVER THAT STEWART
HAS BEEN MARRIED TO A WOMAN FOR
MANY YEARS AND HAS A DAUGHTER
AND HAD NO IDEA THAT HIS FIRST
NAME AND PHONE NUMBER APPEARED
IN A CASE BEFORE THE UNITED
STATES SUPREME COURT.
AND WAS USED TO DENY OTHER
PEOPLE THEIR RIGHTS.
BUT BECAUSE THE OPINION HAD
ALREADY BEEN SENT TO THE
PRINTER, THERE WAS NOTHING THAT
THE ROBERTS COURT WAS GOING TO
DO ABOUT THE FRAUD PERPETRATED
ON THE SUPREME COURT.
AND IF THE COURT IS JUST MAKING
STUFF UP, THEY OBVIOUSLY DON'T
CARE ABOUT DETAILS LIKE THE
PEOPLE WHO ARE ACTIVATING THE
CASE IN FRONT OF THEM ACTUALLY
EXISTING.
THAT SAME SUPREME COURT RULED
AGAINST WHAT IT INCORRECTLY
BELIEVES IS HARVARD COLLEGE
EMISSION POLICY.
REPUBLICANS ON THE SUPREME
COURT CHILDREN UNRELENTING
IGNORANCE ABOUT THE 387-YEAR
HISTORY OF HARVARD ADMISSIONS
POLICIES BY INSISTING THAT
HARVARD MUST STOP THE PRACTICE
OF ADMITTING ANY STUDENT SOLELY
BECAUSE OF THE COLOR FOR
STUDENTS SKIN.
HARVARD HAS NEVER ADMITTED
ANYONE SOLELY FOR THAT REASON.
AND SO THE REPUBLICAN
CONTROLLED SUPREME COURT WAS
MAKING A BRUTALLY RULING BASED
ON A MYTH.
THAT WILL HAVE NEXT TO NO
EFFECT ON HARVARD'S ACTUAL
ADMISSIONS POLICY.
MANY WISE OBSERVERS OF THE
COURTS HAVE BEEN PUBLICLY
SHARING IN MY CRISIS OF FAITH
WITHOUT USING THAT PHRASE --
WAS FOR MOST OF THE DECADES OF
HIS EXEMPLARY PROFESSIONAL WORK
IN WASHINGTON AS A
CONGRESSIONAL SCHOLAR KNOWN AND
TRUSTED FOR A COMPLETE ABSENCE
OF PARTISANSHIP.
IN HIS SCHOLARSHIP.
THE TRUMP YEARS HAVE LEFT HIM
STANDING VERY CLEARLY ON ONE
SIDE OF OUR PARTISAN DIVIDE.
BUT STILL AS ALWAYS, SPEAKING
THE TRUTH.
ABOUT WASHINGTON INSTITUTIONS,
INCLUDING THE SUPREME COURT,
NORM BERNSTEIN SAYS, QUOTE, IT
IS NOT JUST THE RULINGS OF THE
ROBERTS COURT IS MAKING.
THEY CREATED OUT OF WHOLE CLOTH
A BOGUS, MAJOR QUESTIONS
DOCTRINE.
THEY MADE A MOCKERY OF
STANDING.
THEY WRITE LAWS TO FIT THEIR
RADICAL IDEOLOGICAL
PREFERENCES.
THEY HAVE UNILATERALLY BLOWN UP
THE LEGITIMACY OF THE COURT.
WENDY ROBERTS COURT RULED LAST
WEEK ON PRESIDENT BIDEN'S
STUDENT DEBT RELIEF PLAN, CHIEF
JUSTICE JOHN ROBERTS LEANED ON
SOMETHING HE CALLED THE MAJOR
QUESTIONS DOCTRINE.
WHICH HAS SUPREME COURT
REPORTER --
POINTS OUT, IT IS NOT REALLY A
DOCTOR AT ALL.
THAT OPINION WRITTEN BY CHIEF
JUSTICE ROBERTS PROVOKED IT
ISN'T BY JUSTICE ILLEGAL CATON,
WHICH SEEMS TO REVEAL A CRISIS
OF FAITH MUCH MORE SEVERE THAN
MINE.
AN ACTUAL MEMBER OF THE SUPREME
COURT NOW SEEMS TO HAVE LOST
FAITH IN THE SUPREME COURT.
IN HER DESIGNED TO THESE
JUSTICES OPINION ON STUDENT
LOAN RELIEF, JUSTICE KAGAN,
WROTE FROM THE FIRST PAGE TO
THE LAST, TODAY'S OPINION
DEPARTS FROM THE DEMANDS OF
TRADITIONAL JUDICIAL
RE-STRENGTH.
AT THE BEHEST OF A PARTY THAT
HAS SUFFERED NO INJURY --
OF CONTESTED PUBLIC POLICY
ISSUE PROPERLY BELONGING TO BE
POLITICALLY ACCOUNTABLE
BRANCHES AND THE PEOPLE THEY
REPRESENT.
THAT IS A MAJOR PROBLEM NOT
JUST FOR GOVERNMENTS, BUT FOR
DEMOCRACY TO.
CONGRESS IS OF COURSE A
DEMOCRATIC CONSTITUTION.
IT RESPONDS EVEN IF IMPERFECTLY
TO THE PREFERENCES OF AMERICAN
VOTERS.
AND AGENCY OFFICIALS THOUGH NOT
THEMSELVES ELECTED SURVEY
PRESIDENTS WITH THE BROADEST OF
ALL POLITICAL CONSTITUENCIES.
BUT THIS COURT IT IS, BY DESIGN
AS DETACHED AS POSSIBLE.
FROM THE BODY POLITIC THAT IS
WHY THE COURT IS SUPPOSED TO
STICK TO ITS BUSINESS.
TO DECIDE ONLY CASES AND
CONTROVERSIES AND TO STAY AWAY
FROM MAKING THIS NATION'S
POLICY ABOUT SUBJECTS LIKE
STUDENT LOAN RELIEF.
AND THAT MEANS THE COURT BY
DECIDING THIS CASE EXERCISES
AUTHORITY.
IT DOES NOT HAVE.
IT VIOLATES THE CONSTITUTION.
JUSTICE KAGAN'S 63 YEARS OLD.
SHE WILL IF THE COUNTRY IS
LUCKY, SERVE ANOTHER 10 TO 20
YEARS FROM ON THE SUPREME
COURT.
SHE WILL DO SO KNOWING SHE IS
NOT SERVING ON THE SUPREME
COURT SHE GREW UP ADMIRING.
ON THE SUPREME COURT YOU NO
DOUBT DREAMED OF SERVING WHEN
SHE WAS A LAW STUDENT.
SHE IS SERVING ON A SUPREME
COURT THAT SHE BELIEVES
VIOLATES THE CONSTITUTION.
THAT IS AS GRAVE A CRISIS SAYS
OF FAITH AS HAS