Friday, June 30, marked the end of a roller coaster of a Supreme Court term. The same day, legal experts and commentators gathered for the 13th Annual Supreme Court Review at the University of California, Irvine (UCI), co-sponsored by Ms. magazine.
The panel discussed the high Court’s bombshell rulings from the last several months, which put an end to affirmative action, protected businesses’ “constitutional” rights to discriminate against LGBTQ people under the guise of free speech, halted President Joe Biden’s authority to forgive federal student loans, and more. These monumental decisions will have ripple effects in the years and decades to come.
The event gathered Michele Goodwin, executive director of Ms. Studios and chancellor’s professor of law, in conversation with: Moira Donegan, U.S. columnist for The Guardian; Mario Barnes, professor of law at UCI Law; Mark Joseph Stern, senior writer for Slate; Jessica Clarke, professor of law at Vanderbilt Law School; and Jamelle Bouie, columnist at The New York Times.
Watch the hour-long program here, or read on for some of our favorite takes, lightly edited for clarity.
On the ability of businesses to discriminate against LGBTQ Americans:
“A woman, a religious conservative, believes that same-sex marriages are—to use her phrasing—’false.’ And so she does not want to be compelled, as Colorado civil rights law would compel her to do, to treat same-sex couples seeking a wedding website the same way she would for other couples seeking that service. In fact, she wants to be able to put a sign on the homepage of her web design business, saying that she will not provide that service to people whose marriages she believes to be false. …
“She says, ‘Me making this website is a cry of my soul and the Colorado civil rights law requires me to either speak in a way that I find false or to remain silent.’ And they found that she has a right to discriminate. …
“It establishes this precedent that people who are using and engaging in the public market, that the state helps maintain, don’t have to follow the state’s rules that are designed to help create a pluralistic society.”
—Moira Donegan
“This was a test case that was devised by a group called Alliance Defending Freedom that has been trying to get the Supreme Court to do exactly what it did this morning for many years.”
—Mark Joseph Stern
“Under 303 Creative LLC v. Elenis, is it viable for the owner of a fine dining restaurant to put, ‘I won’t serve Blacks,’ because I don’t want to express the opinion essentially that Blacks are able to appreciate the things that I’m doing? Once you start to take it very seriously, you recognize … anything goes.”
—Jamelle Bouie
“Justice Sotomayor, in her excellent dissent, also pointed out: Why can’t a website creator refuse to make a website for an interracial marriage, on the grounds that she doesn’t think that races should intermingle? How does the Supreme Court majority distinguish that context from a same-sex marriage?”
—Jessica Clarke
On the rulings on affirmative action and student loans:
“The Supreme Court said racism is over. And the other branches have no choice but to nod along.”
—Mark Joseph Stern
“The chief justice says, ‘Well, Harvard and UNC can’t do what they’re doing but of course, you can consider an applicant’s race if the applicant themself brings it up.’ … How is this different than what Harvard and UNC were doing before? That’s the point Justice Sotomayor makes.”
—Jessica Clarke
“Justice Jackson’s dissent very beautifully made the argument that racism is systemic. … There is deep disagreement on the Court about what race means, and what racism means.”
—Jessica Clarke
“Clarence Thomas has grown accustomed to representing and reinventing Black history. Ketanji Brown Jackson is now saying, ‘You are misrepresenting history.'”
—Jamelle Bouie
“This is a Supreme Court that has said it’s invested in history and originalism, and I think what Justice Brown Jackson is saying is, ‘How you read history and how I read history is completely different.'”
—Michele Goodwin
“What Justice Brown Jackson does is build into our contemporary moment of how race matters. She looks at every sort of meaningful condition of life, health, wealth and education, and traces racial gaps and then traces them back. And yet Thomas says that that is meaningless and she’s hooked on victimhood.”
—Mario Barnes
“The majority opinion, and to a degree Thomas’ concurrence, tries to take the story of racial progress, that they begin with Plessy v. Ferguson and end with Brown v. Board of Education. They try to take the moral authority of the Black struggle but divest it of any kind of moral content.
“Thomas does this all the time—a story of removing racial considerations from our law towards this ideal of what Roberts calls a ‘colorblind Constitution.’ And that’s completely ahistorical—which is one of the reasons I’m really glad to have Jackson on the Court.”
—Moira Donegan
On the upholding of the Indian Child Welfare Act (ICWA):
“The Indian Child Welfare Act was a statute passed by Congress in 1978 to address a horrible situation: the widespread removal of Indian children from their families to non-Indian families.”
—Jessica Clarke
“The Court said that the Constitution gives Congress the power to regulate Indian affairs in this way. … One interesting thing about this is that the majority found that power not in any specific textual provision—which is unlike Dobbs v. Jackson, where they said, ‘Well, we don’t find this right to abortion in any specific textual provision.’ But here, not having a specific textual hook doesn’t matter.”
—Jessica Clarke
“This is a Court that is opportunistic in some of its rulings.”
–Michele Goodwin
Read more on why the upholding of ICWA matters.
On ethics and the Court:
“There’s strong evidence to suggest that the Court is incredibly corrupt.”
—Jamelle Bouie
“As a government attorney, you have the Office of Government Ethics’ Standards of Conduct, which limit the gifts you can take. The amounts are highly regulated, and you can be prosecuted if you violate it. Federal judges, lower than the Supreme Court, have ethical standards.
“The fact that the Court itself sort of is without any sort of standards is a problem. I don’t know that there necessarily is any sort of quid pro quo, but what you’re regulating is the appearance of impropriety. Because what happens is it undermines the legitimacy of the Court with the public.”
—Mario Barnes
“Law students are held to a higher standard.”
—Michele Goodwin
“They can take all the private jet trips they want, they can go on all the fishing trips they want, they can travel around the world. All they have to do is disclose it. That’s all. But they refuse to disclose it, and when when called on this—and we saw this from Justice Alito—they act so aggrieved. ‘How dare you question my conduct?'”
—Mark Joseph Stern
“The Court is taking advantage of the gridlock in Congress and the impotence of the legislative branch to check it.”
—Moira Donegan
On cases tackling voting rights and gerrymandering:
“These cases have racial implications. Race matters. We can’t pretend that it doesn’t in a state like North Carolina.”
—Michele Goodwin
Read more about Moore v. Harper and the debunked “independent state legislature” theory.
Up next:
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