After last summer’s ruling on abortion, attacks on the Supreme Court were inevitable. The majority decision in Dobbs v. Jackson Women’s Health––that there is no constitutional right to abortion––broke with a long-standing precedent that a majority of the public supported while taking away a right that tens of millions valued, factors that stoked a backlash as significant as any the Court had seen in decades.
What’s striking and harder to understand is the similarly furious backlash to the Supreme Court’s most recent term, which began in October 2022 and culminated in rulings announced this summer. That term encompasses 60 cases in total. The nonpartisan National Constitution Center flagged 13 of those cases as significant. Taken together, they show a Court that is broadly in step with public opinion and whose justices form shifting coalitions across ideological lines.
But left-of-center critics have advanced a wildly different interpretation of this term. They have treated center-right rulings as confirmation of the Supreme Court’s awfulness, if not its illegitimacy.
“This is not a normal court,” President Joe Biden said after the Supreme Court ruled that colleges and universities cannot implement affirmative-action policies in admissions that discriminate against candidates on the basis of race. “It’s done more to unravel basic rights and basic decisions than any Court in recent history.”
House Minority Leader Hakeem Jeffries declared, “Extremists on the Supreme Court are once again more interested in jamming their right-wing ideology down the throats of the American people.”
The Representative Ro Khanna, a progressive Democrat, told The Guardian, “When you look at how out of touch this court is with women’s rights, with racial equality, with voting rights, with the environment, with the challenges young people face, with LGBTQ+ rights, then you know they’re just out of touch. Many of these people couldn’t win elections for dogcatcher.”
“The Supreme Court is out of control,” The New Republic’s editor, Michael Tomasky, asserted in a fundraising pitch for the magazine’s coverage of the Court.
A professor emeritus at Harvard Law School, Mark Tushnet, even went so far as to send Biden an open letter urging him to disobey Supreme Court rulings at his own discretion in order “to restrain MAGA justices.” This argument shows no more regard for the rule of law and avoiding a constitutional crisis than did Donald Trump’s lawyer John Eastman before the January 6 riots.
The Supreme Court is not beyond criticism. I disagree often with all of its members and many of its majorities. I believe its justices are ethically bound to report significant gifts and free travel. I’d prefer fixed terms to appointees hanging on to their seat until death. But commentary on the Court’s 2023 rulings is so histrionic as to mislead the public about what happened.
[Linda Greenhouse: What in the world happened to the Supreme Court?]
Though accused of naked partisanship, the Court handed down multiple significant rulings where justices appointed by presidents of different parties were in the majority and minority together. Multiple majority decisions featured GOP-appointed justices ruling against the actions of GOP legislators. The Court generally ruled in ways that were consistent with the popular will, not at odds with it. (Polls aggregated by The New York Times suggest that just one ruling strayed significantly from public opinion––a case that recognized the Environmental Protection Agency’s statutory jurisdiction over permanent bodies of water while ruling that the Clean Water Act does not give it jurisdiction over wetlands.)
As for ideology, the Court’s judicial reasoning and outcomes alike suggest majorities that are more informed by small-l liberal values than the “right wing” or “extremist” values some antagonists allege. The justices safeguarded election integrity and voting rights in decisions that many Democrats cheered. And in two of the decisions that progressives complained about most, the Court stopped two powerful institutions from flagrantly discriminating against a racial-minority group and reined in a president who willfully exceeded his lawful authority by forgiving debt in a way that transferred wealth, overall, from poorer Americans to richer Americans.
Taken together, the majority decisions of 2023 reflected the justices reasoning their way to legally defensible and practically workable conclusions, whether or not you happen to agree with them. Nothing about those rulings provides any basis at all for calling the legitimacy of the Court into question, and those doing so are being as misleading as they are shortsighted and imprudent.
The Voting-Rights CasesIn two cases this term, Allen v. Milligan and Moore v. Harper, the Supreme Court considered controversies pitting Republican-controlled state legislatures––one in Alabama, the other in North Carolina––against litigants alleging that their actions were undermining the fairness of elections.
In Allen v. Milligan, the Supreme Court ruled in favor of those arguing that the redistricting plan of Alabama Republicans likely violated the Voting Rights Act. And in Moore v. Harper, the Supreme Court rejected the right-wing “independent legislature theory,” which posits that the Constitution gives state legislatures exclusive, unreviewable power to regulate federal elections. In an opinion written by Chief Justice John Roberts, a 6–3 majority ruled that North Carolina’s legislature does not have exclusive, independent authority over its own redistricting map: “When state legislatures prescribe the rules concerning federal elections, they remain subject to the ordinary exercise of state judicial review.”
Both cases––indeed, the whole areas of law they pertain to––are sufficiently daunting in their complexity that, much as I like the outcomes, I hesitate to opine on their legal merits. They are relevant here because if the Court were in fact a right-wing institution where the GOP appointees use their majority to advance partisan outcomes without any regard for the law or long-standing precedent, the GOP-controlled legislatures would have prevailed in both cases.
Instead, populist-right GOP plans lost in both cases. (Similarly, in United States v. Texas, an 8–1 majority ruled that Texas and Louisiana, two other states controlled by Republicans, lack standing under Article III of the Constitution to challenge Biden’s immigration-enforcement policy.) And some observers regard Moore v. Harper as vital to defending American democracy against populist-right efforts to steal elections like those in 2020.
“The Supreme Court’s decision strips away the foundation of G.O.P. arguments that the [2020] election was legally problematic because of state court interventions,” the lawyer and commentator David French argued. “Such interventions did not inherently violate the federal Constitution, and the state legislatures did not have extraordinary constitutional autonomy to independently set election rules. In regard to 2024 and beyond, the Supreme Court’s decision eliminates the ability of a rogue legislature to set new electoral rules immune from judicial review … In other words, the conventional checks and balances of American law will still apply.”
Affirmative ActionWhat if I told you that one of the oldest, most powerful corporations in America was engaged in institutionalized racial discrimination against a historically marginalized group; that young people who wanted to join the institution were assigned “personal ratings” by its officials; and that when those ratings were analyzed, members of the minority group were systematically rated as relatively deficient in traits such as “integrity, helpfulness, courage, kindness, fortitude, empathy, self-confidence, leadership ability, maturity, or grit” when compared with white people?
That is just part of the ugly reality of the admissions system that Harvard covertly implemented over the many years in which it was racially discriminating against Asian applicants. In different ways, the University of North Carolina discriminated against the same cohort. How absurd that far-flung American teenagers from the diaspora of the gargantuan, wildly diverse continent of Asia were––on the basis of retrograde racial pseudoscience––treated as a coherent group and forced to compete among one another for spots.
[Read: The end of affirmative action. For real this time.]
The majority opinion in the combined cases of Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina struck down colleges’ ability to engage in racial discrimination in the name of affirmative action. Reasonable observers can differ as to whether the scope of the majority decision was appropriate or whether the racist policies should have been struck down more narrowly. But the majority got the most important question right: Neither the equal-protection clause of the Fourteenth Amendment nor the Civil Rights Act permits flagrant racial discrimination on the basis of Asian ancestry.
And moral clarity on that question was not just ethically important; it was politically important too. When progressives defend old-age entitlements such as Social Security, they grasp that the universality of such programs is inseparable from their long-term popularity. The same is true for our civil-rights infrastructure. Insofar as that infrastructure protects everyone in our multiethnic nation from the indignity of racial discrimination, everyone will have a stake in conserving it. In contrast, if civil-rights law protects Black people from elites who would assign them inferior “personal ratings” but does not protect Asian people––if it may or may not protect Latinos and definitely won’t protect white people––many will have an interest in its collapse.
Free Speech and NondiscriminationThe case 303 Creative LLC v. Elenis concerns two different aspects of law that most Americans value highly: First Amendment protections that prevent the state from compelling speech, especially speech at odds with a person’s political or religious beliefs or their conscience, and civil-rights protections that prevent businesses from discriminating against would-be customers on the basis of race or sex, gender, sexual orientation, or other protected characteristics. What happens when free speech and nondiscrimination protections are in tension?
A law at issue, the Colorado Anti-Discrimination Act, prohibits a public accommodation from denying “the full and equal enjoyment” of goods or services to any customer based on disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.
Lorie Smith runs a small business that sells graphic design, website design, and marketing. She wanted to start creating bespoke wedding websites that include her original art and prose celebrating the marriages of clients. In keeping with her religious tradition, which teaches that marriage is the union of one man and one woman, she does not believe that same-sex weddings in fact result in marriages. Smith feared that if she began creating wedding websites at all, the Colorado Civil Rights Commission would compel her to offer her services to couples planning same-sex weddings.
She was generally willing to serve gay, lesbian, bisexual, and trans customers as clients for projects unrelated to weddings, and was generally unwilling to do creative work for anyone of any sexual orientation if the work violated her beliefs––for example, by encouraging violence, demeaning someone, or promoting atheism.
Like most Americans, I don’t much like Smith’s beliefs about same-sex marriage. But is her refusal to perform creative work that affirms gay unions as marriage functionally the same or legally distinct from discriminating on the basis of sexual orientation? And under the Constitution, if Smith began designing wedding websites, could the state compel her to create such a website, featuring her original artwork and prose, celebrating a same-sex marriage?
Under a cartoonishly maximalist approach to First Amendment concerns and an imprudently minimalist approach to public-accommodation concerns, the law could treat the act of selling any good or service as an expressive activity. A gas-station owner could decline to sell fuel to a lesbian couple; an innkeeper could refuse to rent them a room; a bartender could refuse to shake their cocktails. Under a cartoonishly maximalist approach to nondiscrimination law, the state could coerce and compel most any creative professional (an artist, a speechwriter, a journalist) to create things they abhor. To cite Judge Timothy Tymkovich’s dissent in the district-court ruling, an unwilling Muslim movie director could be compelled to make a film with a Zionist message; an atheist muralist could be made to accept a commission celebrating evangelical zeal.
To avoid such extremes, it helps to distinguish among cases.
For example: Is the good or service being offered truly expressive, like supplying an event with a comedian emcee or a keynote speech, or nonexpressive, like supplying an event with electricity or folding chairs? Will refusal to provide a service impose a heavy burden on the would-be customer, like the only gas station in town refusing to sell fuel to a gay couple? Or will the burden be tiny or nonexistent, as would be the case if one trans-owned craft store didn’t want to sell candles to a Catholic parish in a city with an IKEA, a Costco, and Amazon Prime delivery?
What’s unusual about 303 Creative LLC v. Elenis is that both sides in the case agreed on a lot of such distinctions. The majority opinion, by Justice Neil Gorsuch, summarizes those undisputed matters: Smith will “gladly create” graphics and websites for clients of any sexual orientation. She will not create content that “contradicts biblical truth” for clients of any sexual orientation. Her belief that marriage is the union of one man and one woman is “a sincerely held religious conviction.” The websites Smith plans “will be expressive in nature,” and will express her beliefs while celebrating her view of what marriage is under her own name, with attribution. And if Smith refuses a customer, numerous other companies “offer custom website design services.”
[David French: The most consequential First Amendment case this term]
Because Colorado stipulated all of that, it was, in effect, taking a relatively maximalist position: Smith must make websites for gay marriages, if she makes wedding websites at all, even if the work is original creative expression that sets forth her views and values under her own name; even if her representations are earnest, such that she is generally willing to make websites for gay clients and generally unwilling to make websites at odds with her faith in ways that have nothing to do with gay people; and even if gay couples will have no trouble finding other custom-website designers.
Gorsuch– (who also wrote the majority opinion in the 2020 case that found that “the 1964 Civil Rights Act protects gay, lesbian, and transgender employees from discrimination”) wrote in his majority opinion that under Colorado’s logic, “the government may compel anyone who speaks for pay on a given topic to accept all commissions on that same topic—no matter the underlying message—if the topic somehow implicates a customer’s statutorily protected trait. Taken seriously, that principle would allow the government to force all manner of artists, speechwriters, and others whose services involve speech to speak what they do not believe on pain of penalty.”
Gorsuch also takes care to clarify that “we do not question the vital role public accommodations laws play in realizing the civil rights of all Americans,” noting the Court’s ongoing recognition of “a ‘compelling interest’ in eliminating discrimination in places of public accommodation,” and specifying that state governments can protect the access of gay people specifically to “innumerable goods and services that no one could argue implicate the First Amendment.”
Although the ruling is clear that many public-accommodations laws pass constitutional muster while some “sweep too broadly when deployed to compel speech,” how to decide edge cases is less clear. “Determining what qualifies as expressive activity protected by the First Amendment can sometimes raise difficult questions,” Gorsuch writes. “But this case presents no complication of that kind.” If some future ruling allows a refusal to do business with gay people because of their sexual orientation itself, or starts treating every restaurant owner, innkeeper, plumber, mechanic, and dentist as a creative professional, I’ll worry intensely about the consequences for gay people trying to navigate society equally. But this ruling does not go there.
As for its practical consequences: Are same-sex couples going to have trouble finding vendors for creative wedding work? Thankfully, no. Seventy-one percent of Americans support gay marriage, as do 89 percent of 18-to-29-year-olds. In her dissent, Justice Sonia Sotomayor frets that a graphic designer refusing to make websites for same-sex weddings will stigmatize gay people; I think wedding-industry folks who refuse to work on same-sex weddings are more likely to create a stigma around their own business. And how many engaged gay couples even want to hire a creative professional who strongly opposes gay marriage to collaborate with them on their wedding?
Looking back on this case in 20 years, I suspect we’ll conclude that the Court struck a reasonable, practical balancing of rights that continued to afford substantial protections against discrimination in public accommodations––and that its compelled-speech precedent will be invoked again and again by Americans, including gay people and progressives, to vindicate their rights against state actors being coercive in ways that we haven’t even yet anticipated.
The Student-Debt CasesIn Biden v. Nebraska and Department of Education v. Brown, the Court considered the Biden administration’s attempt to cancel student-loan debt. Was the president lawfully empowered to do such a thing, or was he usurping power that properly belongs to Congress? In a 6–3 decision, the Court ruled that the Biden administration’s secretary of education “asserts that the HEROES Act grants him the authority to cancel $430 billion of student loan principal. It does not.”
Reacting to the decision, Democratic Senator Chuck Schumer declared, “This disappointing and cruel student debt ruling shows the callousness of the MAGA Republican-controlled Supreme Court.” Democratic Senator Elizabeth Warren complained that the Court “refuses to follow the plain language of the law on student loan cancellation,” as if student-loan-debt cancellation was not just lawful but obviously so, such that any contrary finding was bad-faith obstinacy. Love or hate the ruling, those critiques are egregiously misleading.
That Biden exceeded the lawful authority of the executive branch is not a view original or exclusive to MAGA Republicans. In 2021, the Office of the General Counsel at the Department of Education was asked to weigh in on whether the secretary of education had statutory authority to cancel, discharge, or forgive student loans. “We believe the Secretary does not have the statutory authority,” the resulting memorandum stated in a detailed legal analysis.
On July 28, 2021, Representative Nancy Pelosi was asked about different approaches to canceling student-loan debt. “People think that the president of the United States has the power for debt forgiveness,” she said. “He does not. He can postpone. He can delay. But he does not have that power. That has to be an act of Congress … The president can only postpone, delay, but not forgive.”
Charlie Rose, the top lawyer in President Barack Obama’s Education Department from 2009 to 2011, wrote a legal memo dated May 7, 2021, analyzing the Biden administration’s plan for his law firm, according to The Wall Street Journal. “If the issue is litigated,” the memo stated, “the more persuasive analyses tend to support the conclusion that the Executive Branch likely does not have the unilateral authority to engage in mass student debt cancellation.”
Elizabeth Goitein is an expert on presidential powers who was counsel to progressive then-Senator Russ Feingold and a senior director at the Brennan Center for Justice. She addressed the student-loan controversy in a 2022 Washington Post op-ed. “Biden cannot use emergency powers to forgive certain private student loan debts or debts incurred after the covid-19 emergency declaration lapses,” she wrote. “Sidelining Congress through emergency powers means sidelining the checks and balances that safeguard our liberties and democracy.”
One needn’t even agree with the general counsel at the Department of Education, or the point of view that Pelosi expressed in 2021, or Rose, or Goitein, to see the egregious dishonesty of characterizations like those made by Warren: It is simply false that any reasonable person who reads the plain text of the law sides with Biden. And Congress is free to cancel student-loan debt anytime. The only obstacle to its doing so is the inability of those who favor cancellation to pass such a law, because of insufficient support for it among America’s elected representatives. That is not on the Supreme Court.
Unanimous and Near-Unanimous DecisionsThe most interesting and comprehensible of the unanimous decisions is Groff v. DeJoy. This case concerns Gerald Groff, an evangelical Christian who took a job with the United States Postal Service back when that didn’t involve having to work on the Christian sabbath. But times changed: USPS made a deal with Amazon to make deliveries on Sundays.
To continue observing the sabbath as directed in the Ten Commandments, Groff transferred to escape Amazon’s delivery footprint, ultimately winding up in tiny Holtwood, Pennsylvania, but Amazon, resting for neither man nor God, expanded there too. Groff then started getting written up for refusing to labor on Sundays. So he sued under Title VII of the Civil Rights Act of 1964. In his telling, USPS could accommodate his religious belief “without undue hardship.” For a unanimous Court, Justice Samuel Alito wrote that “undue hardship” is shown “when a burden is substantial in the overall context of an employer’s business,” not when there is any trifling cost (a standard that some lower courts were erroneously adopting due to language in a bygone case). Employers “must show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business,” the Court ruled.
For better or worse, it sided with a worker against the interests of a large employer. It is likely to marginally benefit religious workers of all faiths while marginally burdening corporations and other businesses. How does this square with characterizations of the Court as “right-wing”?
Less important for our purposes than the details of Jack Daniel’s Properties v. VIP Products LLC, a case about a dog toy shaped like a Jack Daniel’s bottle, or the combined Gonzalez v. Google LLC and Twitter, Inc. v. Taamneh, which concern the responsibilities of social-media companies subject to laws that regulate content, is the fact that all nine justices were able to reach consensus.
The Court also handed down a 7–2 decision about what constitutes a true threat under the First Amendment; Justices Amy Coney Barrett and Clarence Thomas dissented. Another 7–2 case, Andy Warhol Foundation for the Visual Arts Inc. v. Goldsmith, concerns the professional photographer Lynn Goldsmith, who took a photo in 1981 of the up-and-coming musician Prince. She later granted Vanity Fair a one-time-only license to use the Prince photo as an “artist reference for an illustration”––which turned out to mean that Vanity Fair hired the famous pop artist Andy Warhol to do an illustration of Prince. Warhol created a bunch of different images based on the photo. Among his creations was a silk-screen portrait, Orange Prince, that Vanity Fair’s parent company reused for a 2016 cover. Was that an infringement of the photographer’s copyright or fair use?
Siding with the photographer, Sotomayor wrote the majority opinion, joined by Thomas, Alito, Gorsuch, and Barrett, as well as Ketanji Brown Jackson and Brett Kavanagh. Dissenting together were Roberts and Elena Kagan. I have no idea who got that one right, but the shifting coalitions of justices undermine the reductionist narrative of partisans siding with their team.
The StakesInaccurate characterizations of major institutions are always worth correcting, but the stakes are especially high when the Supreme Court is attacked inaccurately by those seeking to undermine it.
Insofar as the Court loses its standing and legitimacy, it loses its ability to check and balance future abuses of power by other branches of government and all of its precedents lose their standing.
The right finds it easier to see the value of a legitimate Supreme Court now that it is sometimes winning. Progressives smarting from last term’s abortion decision might think, on first instinct, that it would be good if the Court lost its influence. But that is shortsighted. Because of Dobbs, the question of abortion has been returned to the political branches of government. If the high court lost its power in American life, proponents of abortion rights would be no better off––the matter would still turn on elected officials at the federal and state levels.
Whereas if the Court lost its legitimacy––if the people and the political branches ceased to respect its rulings––Americans would lose rights and protections as varied as the constraints on law enforcement in Miranda, the press protections in New York Times Co. v. Sullivan, and the marriage-rights protections in Obergefell. Absent a strong Supreme Court, I tremble to think how the most retrograde Deep South legislators would draw redistricting maps and constrain voting rights.
So what would I suggest for Democrats and progressives who dislike the current Court majority and wish to reverse its rulings? Harken back to the days of the Warren Court, regarded by many as an especially left-leaning era, and the days of the Rehnquist Court and beyond, when conservatives thought they’d succeeded in electing presidents who appointed a majority they liked, only to see abortion and affirmative action upheld. In those days, when conservatives were losing ground, or failing to win it back despite decades of effort, what would you have seen as legitimate criticism and what would you have regarded as corrosive attacks on the legitimacy of the judiciary? Let that––and truth––be your guides. Meanwhile, practice tolerance, forbearance, and persuasion, and win elections. Another era of the Court always comes.