Supreme Court reactions: Too much heat, too little light

Gordon L. Weil

More has been said about what’s wrong with recent Supreme Court decisions than about what the decisions said.  Snap analyses have amounted to spreading half-true and often biased explanations to people who don’t read the opinions.

On one side are liberals, including justices, who give the clear impression that the Court is political, acting like a legislature, and under the control of conservative zealots.  On the other side are conservatives, who like the decisions and claim victory.

Beyond question, the Court’s majority on some major issues is composed of conservative justices. They show that there is no objective law, but rather that the Constitution and laws are subject to their mindset.  Recent controversial cases reveal how justices look at the same facts, but reach conflicting conclusions. That’s normal, and the criticism may go too far.

In one case, a cake maker who designs special sweets for customers sought to refuse any client who wanted a cake decorated for a same-sex wedding.  The designer’s religious beliefs oppose such marriages, and they wanted to conform to these teachings.  But Colorado state law bans discriminating among customers.

The Court ruled that requiring the designer to prepare such a custom cake violated their freedom of speech because the government would make them express themselves over their objection. The decision only affected design work, and did not overrule the Colorado law requiring the designer to sell any standard cake to any customer no matter its ultimate use.

The criticism of this decision was that it allowed a person’s religious belief to displace the Fourteenth Amendment requirement for equal protection of the law. The Court majority effectively decided that a First Amendment free speech right should be given more weight than that Fourteenth Amendment right.

While about a religious objection, the decision was not about religion. Suppose the designer was the descendant of a Holocaust victim and refused to place a swastika on a cake for a fascist customer.  Would opponents of the cake case decision feel the same?

In another controversial decision, the majority ruled against affirmative action in college admissions. Race by itself could not be used simply to increase the diversity of the student body.

The conservative majority noted that the universities in the case had offered no evidence that diversity produced superior academic results.  The advocates of affirmative action may believe that diversity in itself has an obvious educational value. 

The Court ruled that the relevance of a person’s race to their own life could be taken into account, but that admitting people to achieve racial balance should not be allowed.  That could amount to illegal discrimination negatively affecting applicants denied admission.  Colleges could neither deny nor offer admission based on race

After this decision, colleges could still end up with similar diversity through their individual admissions selections.  And the Court’s decision will affect only a handful of the nation’s thousands of colleges.

Another case focused on President Biden’s attempt to wipe out $430 billion in student loans using a law passed after 9/11, giving the president extra emergency powers. He had suspended loan payments during the Covid pandemic and proposed to use the terrorism law to make the suspension permanent.

The Court majority said the president could not undertake such massive spending, even for a worthy purpose, without express congressional approval.  The minority claimed that the majority had invented a new rule to reach this conclusion. That’s a legal question open to debate.

What would have been the reaction if President Trump had chosen to use his emergency authority under this law to build the wall along the Mexican border?  Wouldn’t there have been objections that he lacked such authority and could not use the 9/11 law to cover his favored spending?

In all these cases, it’s worth remembering there may be a difference between what you see as right and what is legal. 

The Court’s conservatism seems increasingly political, especially given Justice Samuel Alito’s public speeches.   In recent years, justices on both sides have become highly and rudely critical of one another.  That increases the appearance of partisanship and not judicial neutrality.

Chief Justice John Roberts, a conservative, is making some effort to close the gap.  He is putting space between himself and the extreme conservatives. But he resists a code of ethics for the Court and tolerates the political activism of some justices.

The Court’s controversial opinions reveal the false assurances by judicial nominees who tell Congress they will stick to the law. What’s the law?  Elect a conservative president and their appointees will probably produce conservative interpretations of the law.

When people are polled about major issues, they often cite the economy or immigration in determining who they support for president.  If they fail to focus on the Court, they may get decisions they don’t like.