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The Supreme Court’s Conservatives Change the Rules of the Game

Just calling “balls and strikes”? Not so much anymore. Photo: Erin Schaff-Pool/Getty Images

Lawyers ostensibly deal in rules — their identification, their development, their application — but as the conservative majority on the Supreme Court demonstrated on Friday, the process can easily be manipulated to reach your desired outcome if you create new rules out of whole cloth, or if you contrive an exception so large that the rule is practically meaningless.

In different ways, that is what happened in two major decisions released by the Court on Friday — one in which it threw out President Joe Biden’s $400 billion student-loan debt-relief program (Biden v. Nebraska), and another in which it concluded that a woman who claims to want to design websites for weddings is free to discriminate against same-sex couples because of her supposed religious convictions (303 Creative LLC v. Elenis). Both cases were decided 6-3, with the liberal justices in dissent.

The purported legal analysis in these cases offered by the conservative justices is straightforward.

In Biden v. Nebraska, the question was whether Biden’s student-loan debt-relief plan fell within the terms of a statute that allows the secretary of Education to “waive or modify” student-debt laws in a “national emergency” — as Donald Trump declared the COVID-19 pandemic to be in 2020. Under Biden, the agency announced that it would reduce and eliminate certain tranches of student debt pursuant to that statutory power.

Writing for the conservative majority, Chief Justice John Roberts concludes that the federal government has that power to “waive or modify” relevant provisions but “not to rewrite that statute from the ground up.” In his telling, the power allows for “modest adjustments and additions” — whereas the Biden administration functionally replaced the old rules with “radically new text.”

Let’s take a step back here, because it used to be the case that conservative judges broadly held firm to a series of legal doctrines that would ordinarily have made this a pretty easy win for the administration.

First, the Court’s conservatives have claimed to be committed textualists — focused first and foremost on what the statutory text says, rather than substituting their own policy judgments.

Second, they had supposedly made their peace with the so-called Chevron doctrine, which has historically required courts to defer to federal agencies’ legal interpretations of their own statutory authority provided that those interpretations are at least reasonable.

And third, they have claimed to exercise judicial restraint by recognizing the unique power afforded to the two representative branches of the federal government — the executive and legislative branches — and by narrowly interpreting rules on who has standing to sue so that politically disgruntled actors cannot go to court to litigate policy disagreements with the government under the guise of a legal dispute.

All of this was essentially tossed aside in the student-debt decision. Instead, Roberts’s decision relies on a legal doctrine that did not exist until he made it up last year. Under this new so-called “major questions doctrine,” the Court is now free to disregard what used to be the ordinary rules of statutory interpretation that govern executive-agency action if enough justices believe that the “economic and political significance” of the asserted authority passes some undefined threshold, in which case the agency must act “pursuant to a clear delegation” from Congress. In other words, if the conservative justices believe that the federal government has overreached as a policy matter, then they apply a narrower and less forgiving standard of review.

The conceptual framework is a recipe for what Roberts and the five other conservative justices did in Biden v. Nebraska — throwing out government programs if they want to.

The second major ruling from the Court on Friday was written by Justice Neil Gorsuch, joined again by the five other conservatives. 303 Creative LLC v. Elenis involved a website designer who said that she plans to make websites for couples who are getting married. She has yet to actually do this, but as Gorsuch writes, “She worries that, if she enters the wedding website business, the State [of Colorado] will force her to convey messages inconsistent with her belief that marriage should be reserved to unions between one man and one woman.”

What this really means is that the state might actually enforce an anti-discrimination statute that prohibits businesses from denying “the full and equal enjoyment” of their goods and services to customers based, among other things, on their race or sexual orientation. In other words, the state might force the designer to comply with its civil-rights laws by creating websites for same-sex couples as well as heterosexual couples.

That would, of course, fall well within a long line of jurisprudence since the Civil Rights Era that holds that people who run businesses cannot pick and choose their clients based on their personal prejudices, whether it is because they do not like Black people or, as in this case, because they are supposedly adhering to their religious views in discriminating against gay people.
Gorsuch’s analysis, however, goes something like this: The designer’s beliefs are “a sincerely held religious conviction.” The creation of a wedding website is a form of speech — a unique creative process that also reflects the personal expression of the designer (insert eye roll here, particularly if you have ever actually seen a wedding website in your life). Thus, forcing the designer to comply with Colorado’s civil-rights law would violate her First Amendment rights because a state cannot “force someone who provides her own expressive services to abandon her conscience and speak its preferred message instead.”

You might be tempted to view this as a neutral and principled extension of the Constitution’s accommodation for religious preferences, but some actual facts are useful here. As Xiao Wang, a legal analyst from Northwestern Law School, recently explained, the conservative justices have made it much easier in recent years for litigants to invoke their religious beliefs as “a ready path to disobey laws without consequence.”

In fact, these sorts of claims “have proliferated in recent years, and plaintiffs have often won.” Meanwhile, “the burden of proof for the government — that it is not unduly interfering in religious practice — has become much harder to prove.” In other words, the scales have tilted in favor of religious objectors — and, in particular, conservative Christian objectors.

The result is something like a civil-rights cheat code: You can evidently refuse to comply with all sorts of laws if you can devise some religious claim to justify your position.

In 2005, Supreme Court Justice John Roberts used a metaphor at his confirmation hearing that has often been praised and repurposed since, but that was misleading even then. His role as a judge, he said, “is to call balls and strikes and not to pitch or bat.” More recently, the phrase has come in for some very well-deserved mockery as the Court has continued its sharp rightward turn following Trump’s appointments to the bench.

On Friday, the conservative majority, Roberts included, demonstrated just how hollow his proclamation was back then — by tossing out one of Biden’s signature domestic-policy initiatives on the basis of a legal doctrine that they made up about half an hour ago, and by blowing a gigantic and easily gamed hole in our country’s civil-rights laws. Meanwhile, Biden himself seems to have belatedly discovered just how radical this Court actually is, notwithstanding his administration’s decision to take a pass on any meaningful effort at Court reform.

Now that they have thrown out a central pillar of his domestic policy agenda, perhaps he will rethink matters. Happy Fourth of July.

Supreme Court’s Conservatives Change the Rules of the Game