Our 'Extreme' Supreme Court

This article was first published in the Detroit Legal News on July 13, 2023.

A. Vince Colella
Moss & Colella P.C.

As the 2022-23 U.S. Supreme Court term wound down before the July 4th holiday, there was no shortage of fireworks from the high bench. Despite only granting oral argument to 59 cases during the session, the Court dealt devastating blows to college students, the Biden administration and the LGBTQ community. In the wake of last year’s Dobbs decision — overturning half a century of precedent — ending the federal right to an abortion, the Court sought to strike down the president’s student loan forgiveness plan, affirmative action in college admissions, and effectively authorize discrimination against LGBTQ Americans.  

As the Court issued its last decision of the term, it became clear that the six-member conservative majority would continue its quest to legislate from the bench, quash civil rights and undermine public confidence in the institution. On Friday, June 30, the courtroom’s public gallery was full of concerned citizens, press and special interest groups eager to hear the justices summarize the latest decisions. Court watchers described the session as cantankerous, edgy, and divisive — exposing the rifts and deep feelings the conservative majority has for its liberal minority counterpart.

One day prior to the last session, the dominoes began to fall. In a historic decision, the Supreme Court severely limited, if not effectively ended, the use of affirmative action in college admissions. By a 6-3 vote, the Court ruled admissions programs used by the University of North Carolina and Harvard violate the Constitution’s equal protection clause, which bars racial discrimination by government entities. Writing for the majority, Chief Justice Roberts explained that college admissions programs may consider race only to allow an applicant to explain how it influenced their character in a way that was congruent with the principles of the respective university. However, a student “must be treated based upon his or her experiences as an individual — not on the basis of race.” Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, et. al. The opinion effectively overruled Grutter v Bollinger, where the University of Michigan Law School’s race-based admission policy was upheld “in an effort to assemble a student body that is diverse in ways broader than race.” Although this decision was solely related to college admission programs, legal scholars believe that it has opened the door for courts to consider whether the Constitution bars other efforts to increase diversity, i.e., government employment.

While the chief justice was careful not to blatantly embrace racism in his affirmative action analysis, Justice Gorsuch showed far less concern for offending the LGBTQ community in his support for a self-proclaimed Christian website designer’s refusal to create a same-sex marriage site.

Writing for the majority in Creative LLC v Elenis, et. al., Justice Gorsuch sided with the designer who opposed same-sex marriage based upon her religion (First Amendment) and agreed that Colorado could not enforce a state anti-discrimination law against the designer. The case comes on the heels of a prior ruling, Phillips v Colorado, where the Court narrowly held in favor of a Colorado baker who refused to create a cake for a same-sex couple because he believed that doing so would violate his religious beliefs.

However, in the 5 years since the Phillips decision, the composition of the Court has changed dramatically, with the death of Ruth Bader-Ginsburg and retirement of Anthony Kennedy paving the way for Trump to appoint Brett Kavanaugh and Amy Coney-Barrett. In his opinion, Gorsuch pulled no punches, offering a faulty “slippery slope” argument in defense of blatant anti-gay sentiment. Gorsuch lamented about the “dangerous consequences” offering the hypothetical possibility of governments “forcing an unwilling Muslim movie director to make a film with a Zionist message,” among other religiously controversial metaphors; to which, Justices Kagan and Jackson dissented with “profound sadness.”  

Chief Justice Roberts then announced the decision in Biden v Nebraska. The decision put 43 million Americans on notice that the Biden administration overstepped its authority when it promised to cancel up to 400 million dollars in student loan debt. One would think that Justices Kavanaugh and Coney-Barret would have been in favor of the program given that it was initiated by Betsy DeVos, who served as the Secretary of Education under the former president’s administration two years before Biden’s announcement. DeVos suspended both repayment and accrual of interest on student loans based upon the HEROES act, a law passed following the Sept. 11 attacks that gives power to the Secretary to respond to a national emergency by waiving or modifying any statutory or regulatory provision governing student loan programs.  However, in this (again) 6-3 decision, the Court determined that states have a right to challenge the debt-relief program and that it did not comply with federal law. Writing for the majority, the chief justice conceded that the president could make “modest adjustments and additions to existing provisions” within the Act but determined that the abolishment of student loan debt was fundamentally different from modifying it.

The impact of these decisions – and Dobbs – has placed judicial “reform” (e.g, expansion of the Supreme Court) at the forefront of political agendas. Public trust in the Supreme Court is at a historic low and has fueled arguments for reform. However, the hope for change butts against the reality of a divided Washington, making Supreme Court ethical oversight politically unrealistic.

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A. Vince Colella is a co-founder of personal injury and civil rights law firm Moss & Colella.