Final SCOTUS (Supreme Court of the United States) Wrap Up – Part 3 July 2, 2023
The Roberts Court has been known for going out of its way to back litigants who argue that their Free Exercise of Religion Clause under the Constitution’s First Amendment has been hampered. IMHO, the Roberts SCOTUS has, in these opinions, weakened the separation of church and state. It has bent over backwards to give any personal or institutional plaintiff who claims his/her religious rights have been trampled the “benefit of the doubt” and then some. However, this was not the case in the unanimous opinion issued on June 29, 2023 that involved mail carrier Gerald Groff. Groff, an evangelical Christian, argued that his request not to work on Sundays, which was denied by the Postal Service, was a First Amendment violation of his right to freely exercise his religion. A lower court ruled against Groff. It stated that his request not to work on his Sunday Sabbath would cause an “undue hardship on the Postal Service and lead to low morale at the workplace when other employees had to pick up his shifts (cnn.com, de Vogue & Sneed, 6/29/23).” The SCOTUS opinion, authored by Justice Samuel Alito, clarified previous precedent for religious accommodations. It will likely make it harder for an employer to refuse to accommodate the religious beliefs of an employee under Title VII of the 1964 Civil Rights law. Alito wrote, “An employer who fails to provide an accommodation has a defense only if the hardship is ‘undue,’ and a hardship that is attributable to employee animosity to a particular religion, to religion in general, or to the very notion of accommodating religious practice cannot be considered ‘undue.’” Alito added, “Title VII requires that an employer reasonably accommodate an employee’s practice of religion, not merely that it assesses the reasonableness of a particular possible accommodation or accommodations.” Alito stated that, “Faced with an accommodation request like Groff’s, it would not be enough for an employer to conclude that forcing other employees to work overtime would constitute an undue hardship. Consideration of other options, such as voluntary shift swapping would also be necessary (cnn.com, de Vogue & Sneed).” The Roberts Court has been often accused of only aiding Christians in religious cases. The “Groff” opinion will help any group of believers who observes the Sabbath not only on Sundays, but on other days. This case will aid Orthodox Jews as well as many traditional Conservative Jews who must refrain from working on their Sabbath, which occurs on Saturdays. The “Groff” opinion will not allow employers to just ignore anyone who raises the issue of observing the Sabbath either strictly on Sunday or on any other day. According to Alito’s opinion, the “Groff” case will also aid Muslim women and Orthodox Jewish men who wear religious attire. Muslim women wearing religiously mandated attire, Alito noted, “have under previous decisions, lost employment opportunities and have been excluded from critical public institutions such as public schools and law enforcement agencies.” Alito stated that the “Groff” case will not leave Orthodox Jews who wear religious attire “at the mercy of their employers’ good graces (jta.org, 6/29/23, Kampeas).” IMHO, employers, will not be able to point blank refuse accommodation of someone’s religious beliefs because they claim that their postal or other business establishments are “small” institutions, another argument that has sometimes been raised.
June 29, 2023 was also the day that Roberts’ SCOTUS came down with a major case dealing with the issue of affirmative action in colleges and universities. In a 6-3 decision, written by Chief Justice (CJ) Roberts, the High Court ruled that race-conscious admission programs at private Harvard University and at the public University of North Carolina are unconstitutional. Writing for the 6-3 SCOTUS majority, CJ Roberts stated that these two programs “unavoidably employ race in a negative manner” and “involve racial stereotyping” in a manner that violates the Constitution. Roberts, however, did say that universities can consider how race has affected an applicant’s life, but he emphasized that students “must be treated based on his or her experiences as an individual –not on the basis of race.” In her dissent, which she read from the bench to give it emphasis, Justice Sonia Sotomayor called this decision a “devastating impact that cannot be overstated.” She said that the court was “further entrenching racial inequality in education, the very foundation of our democratic government and pluralistic society (nytimes.com, Liptak, 6/29/23).”
The issue of affirmative action has, from the beginning, been a strongly divisive one and reasonable people can differ on this issue. JFK initiated the policy of affirmative action in the federal government so that institution could push hiring minorities. Many private companies as well as colleges and universities followed the federal government’s lead in this area. The goal of affirmative action, to increase minority enrollment in higher education and in employment, is laudable. However, when one hires a minority, even if he/she has the same qualities as that of a white job applicant, because of affirmative action policies, the white applicant is being penalized for his/her mere accident of birth-- having the wrong skin color. In addition, many affirmative action programs, encouraged by the government, had what were called “goals.” “Goals” stood for hiring a certain number of people from minority groups, 10%, 15%, etc. Such numerical hiring looked very similar to quotas. Yes, this hiring of minorities was to help groups of people who were previously denied jobs in the marketplace and was done for a positive reason. However, these numbers seemed to put a quota on whites who could be hired. Many of the whites denied jobs had not discriminated against minorities. Many of these whites came to the U.S. after the Civil War and had no ancestral connections to Southerners and Northerners who had initially upheld slavery. Quotas also have a very bad origin. They were put into place in major colleges, universities, and professional schools in the early 20th Century to limit the admission of Jews and Catholics because bigoted alumni didn’t want their sons and daughters to face academic competition or associate with members of groups many of them then disliked (See Oren, D. “Joining the Club,”1985). These religious/ethnic quotas were abolished in the years following WWII. The Supreme Ct., in the 1978 “Bakke” case and several subsequent opinions, struck down quotas in university admissions but still allowed consideration of racial background to promote diversity. However, the line between quotas and admitting minorities for diversity remains quite blurry. Today, many Asian-Americans believe they are the “new Jews.” Asian-Americans have seen numerical analysis showing that Harvard and other Ivy League colleges have year after year admitted the same percentage of their group with little or no change, looking suspiciously like quotas. Many Asian-Americans welcomed the Roberts’ decision basically abolishing affirmative action (cnn.com, 6/29/23). Asian-Americans were even more upset about the Harvard affirmative action plan. Unlike the NC plan also struck down by SCOTUS, Harvard used a subjective standard to gauge certain traits. These traits included “likability, courage, and kindness (nytimes.com, Liptak, 6/29/23).” “Likability, courage, and, kindness” sound very similar to the subjective “character” trait Ivy League admission officers used to previously exclude Jews, because they allegedly lacked the strong “character” that wealthy WASPS (White Anglo Saxon Protestants) all supposedly had (See Oren, “Joining the Club”).
Affirmative action is not supported by most Americans in many polls. In a Feb., 2023 Reuters/Ipsos Poll and in a 2022 Pew Poll, sizeable majorities across racial and ethnic groups said race should “not be a factor” in college admissions decisions. A more recent 5/2023 Pew Poll found 50% of Americans disapproved of colleges and universities taking race and ethnicity into account in admissions to increase diversity with only 33% approving this practice (nytimes.com, Igielnik, R., 6/29/23, cnn.com, Enten, 7/02/23). Nine states, including California, already ban the use of race-conscious college admissions in their public universities. Affirmative action has created a wedge issue GOPers have often used to campaign against Democrats. In 1996, California voted to ban affirmative action. In 2020, Proposition 16, an attempt to overturn the 1996 ban on affirmative action, was crushed by an even more multi-ethnic group of CA voters than those who had voted in 1996. In 2020, Biden clobbered Trump in CA by 29 points while Prop. 16 went down with 57% of California voters voting against it (nytimes.com, Powell & Marcus, 6/11/23). Hispanics in CA, a group affirmative action was meant to help, voted against Prop. 16 by a 78%-55% margin. Whites voted against CA’s Proposition 16 by a 69%-47% margin (latimes.com, Powell & Marcus, 6/11/23). Again, reasonable people can differ on this issue, but the Roberts Court will not lack public support for this ruling.
June 30, 2023—the last day of the Supreme Ct.’s 2022-2023 term. Conservatives went out winning the final two major decisions in the 2022-2023 SCOTUS term. Both of these cases were decided by the Trump-solidified 6-3 supermajority. The results are not surprising in this conservative-dominated Roberts High Court. In a case authored by CJ Roberts, SCOTUS blocked the Biden administration’s plan to deliver relief to millions of borrowers struggling with debt involving higher education. Had Biden succeeded, his administration would have erased an estimated $430 million of federal student loan debt. Roberts stated that the Biden administration and his Sec. of Education rewrote the law (cnn.com, de Vogue & Sneed, 6/30/23). Roberts wrote that the government needed direct authorization from Congress to waive this debt. Roberts declared that the executive was “seizing the power of the Legislature,” in effect, cancelling Congress’ power of the purse which is among Congress’ “most important authorities.” In dissent, Justice Kagan, joined by Justices Sotomayor and Jackson, strongly attacked the majority’s ruling. They stated that the Court’s conservatives were limiting executive branch discretion under a “judicially manufactured” and “made-up” doctrine known as the “major questions doctrine.” This doctrine, that the SCOTUS conservatives have recently invoked, says that Congress must speak specifically when giving executive branch agencies authority to take aggressive actions of major economic or political consequences. And with the GOP House majority and McConnell in the Senate ready to use the “F”/Filibuster Word, Biden’s attempt to help middle and lower middle-class students get an education without crushing debt will be hard to overcome. The GOP and their allies, including former VP Mike Pence, called such debt forgiveness a “bailout” that would have subsidized the “education of elites” on “hardworking Americans (cnn.com de Vogue & Sneed, 6/30/23).” No, former VP Pence. Biden’s attempt to cancel crushing student debt is a win for the wealthy elite to continue their college education, at the expense of hardworking American families who want their children to move up economically via higher education.
And finally, the Roberts SCOTUS hit the conservative trifecta. It voted against LGBTQ people, joined the side of businesspeople in a legal dispute, and backed litigants who object to doing business when they say it interferes with their religious beliefs. In a decision written by Coloradan Justice Gorsuch, he upheld on free speech grounds the right of a website design company to deny wedding websites to same-sex couples, even though a Colorado law prohibits companies from denying wedding websites to gay couples if that company chooses to sell those websites to the public (cnn.com, de Vogue & Cole, 6/30/23). This ruling will pierce state public accommodation laws for businesses who sell “expressive” goods. Critics of this decision fear SCOTUS will be aiming to overturn the 2015 gay marriage case (cnn.com, de Vogue & Cole). In her dissent, Justice Sotomayor called this a “sad day in American constitutional law and the lives of LGBTQ people.” She stated that this decision symbolically marks gays and lesbians as having second-class status. She added, “The opinion of the Court, quite literally, reads, ‘Some services may be denied to same-sex couples (de Vogue & Cole, cnn.com).’” This SCOTUS decision came on the final day of Pride Month that celebrates the LGBTQ community and its advance toward equal rights. This SCOTUS decision is a strong setback to LGBTQ protections, which have won some key cases in recent years. Those included the 2015 decision legalizing same-sex marriage and a decision Gorsuch himself authored three years ago in which the protection of the 1964 Civil Rights law was expanded to LGBTQ workers (cnn.com, de Vogue & Cole, 6/30/23).
The 2022-2023 SCOTUS term is now history. What can we say about it? Yes, liberals and democracy surprisingly won some big cases including drawing additional districts for Black voters in AL and LA to counter blatant state GOP gerrymandering. Even more importantly, the Roberts SCOTUS rejected the extremist Trump GOP theory of an independent state legislature that would have barred state courts from reviewing extremist laws. A religious case that strongly protects the rights of Sabbath observers won plaudits from people on all sides of the political aisle. The Biden administration won a big victory upholding its ability to decide which unauthorized immigrants should be arrested and detained. Native Americans won a major adoption rights case. However, criminal defendants’ ability to appeal post-conviction issues was narrowed, a conservative obsession since Nixon’s time. And of course, although reasonable people may differ on this issue, the Supreme Ct. effectively ended the ability of colleges and universities to implement affirmative action to admit minority students. Ending affirmative action has also been on top of the conservative wish list for years. Conservatives were also thrilled that Biden’s student debt forgiveness program for college was thrown out. They were delighted that SCOTUS used the “major questions doctrine” which will allow a GOP House and filibuster-using Senate to decide this matter, not a Democratic President. And conservatives were certainly delighted that religious objections and the rights of businesspeople prevailed over LGBTQ’s attempts to advertise same-sex weddings. IMHO, the 2022-2023 Roberts SCOTUS gave liberals some great wins, but conservatives remain and will continue to remain in charge for the foreseeable future because of Trump’s cemented supermajority. Again, presidential elections count. They determine the composition of the U.S. Supreme Ct. as well as lower federal courts.
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