From Dobbs to Biden v. Nebraska: A Look at the 2022-2023 SCOTUS terms
MoFo Perspectives Podcast
From Dobbs to Biden v. Nebraska: A Look at the 2022-2023 SCOTUS terms
MoFo Perspectives Podcast
In this episode of MoFo Perspectives, Los Angeles Litigation Partner and co-chair of the Women’s Strategy Committee, Tritia Murata, and managing partner of MoFo’s New York office, Jamie Levitt, discuss the legal implications of recent Supreme Court decisions with NYU Law professors and legal scholars, Professors Melissa Murray and Kenji Yoshino, and author and legal correspondent at Slate, Dahlia Lithwick.
Natalie: Welcome to the Diversity in Practice podcast, a part of MoFo perspectives. My name is Natalie Kernisant, and I am the Chief Diversity and Inclusion Officer for Morrison Foerster. This podcast series is designed to provide a space to discuss a wide variety of issues related to diversity in the law and to introduce you to some of our talented, diverse attorneys, their areas of legal expertise, and the work that they and their MoFo allies do in furtherance of diversity, equity, and inclusion. It’s also our hope that by sharing D&I best practices that wherever possible we can help make the legal industry a more inclusive place for those who are, in the words of our MoFo former chair, Bob Raven, just a little bit different.
Jamie: So, I want to welcome the almost four hundred of you who have joined today. I wanted to note for our unbelievable panel that, though there are few in the room as these things happen with Zoom, we have an audience from all around the country—our entire firm and clients. So we’re about 400 strong and really looking forward to today. Thank you all so much for coming, most importantly our panelists.
And I am so delighted to welcome you all to what we’ve called “From Dobbs to Biden v. Nebraska,” a look at the 2022-2023 SCOTUS terms, as well as what’s coming. And that’s sponsored by our diversity and inclusion groups and the MoFo Allies Network. My name is Jamie Levitt. For those who don’t know, I am the managing partner of the New York office. And I’m a proud member of the firm’s Allies Network. By way of just a little bit of background before we get into the meat of today’s discussion—what is our Allies Network? It’s a global network led by Tony Carbone, a partner here in New York, and Joe Palmore in D.C. And the network is almost 150 of us at MoFo who are committed to supporting diversity and inclusion at the firm. And we do that through several things—inclusivity training; we do it through mentoring and sponsoring of diverse and women associates; we actively participate in inclusive recruiting and retention efforts; and we encourage others who have not historically been involved with diversity and inclusion to engage. These are really important issues in an important time; 2016 saw a big change to diversity and inclusion and the Supreme Court recent decision. So, we really need to redouble our efforts.
To that end, today we have the extreme privilege of discussing with some of the nation’s leading Supreme Court and constitutional scholars the landmark decisions of the newly conservative majority Supreme Court that affect many of these issues important to diversity and inclusion. The discussion will be moderated by Tritia Murata, a partner who came all the way from Los Angeles to New York to do this with us. She co-chairs our Labor and Employment group, as well as our Women’s Strategy Committee. And at the end, we hope to have time for questions from all of you. I don’t really want to take much more time away from this discussion, so I will do a really brief introduction of our all-star panelists. I know they don’t want me to go on and on about them, but going in alphabetical order, I’m going to start by introducing and welcoming back Dahlia Lithwick.
Dahlia spoke at MoFo—I went back and looked—a few years back in our International Women’s Day, right at the height of the #metoo movement. And that’s what, Dahlia, you and I talked about. Dahlia is a senior correspondent at Slate, a frequent guest analyst on MSNBC, and host of Amicus, Slate’s award-winning podcast about the law and the Supreme Court justices who interpret or try to interpret it for us. Dahlia has appeared in way too many newspapers and magazines for me to mention—she’d be mad at me if I tried—but they include The Times, Harper’s, The New Yorker, The Washington Post, and more. She’s also the author of Lady Justice: Women, the Law and the Battle to Save America. It’s a gripping portrayal—I’ve read it; I hope many of you have as well—of several brave and brilliant women lawyers who’ve been fighting injustice, particularly since 2016, and what has been really a fraught and chaotic few years. Lady Justice comes out in paperback, I want to say, this fall—is that right?
Dahlia: A week from today.
Jamie: A week from today. Be sure to pick it up and read it. And I think it’s going to be the subject of the upcoming Amicus podcast.
Jamie: Okay, super. I got that right. Next, I’d like to introduce Professor Melissa Murray also back to MoFo. Melissa is a professor of law at New York University. She leads the Birnbaum Women’s—not Michael Birnbaum, I’ll say—but the Birnbaum Women’s Leadership Center. She is a leading expert on constitutional law, family law, feminist legal theory, reproductive rights, and justice—things just a little important in today’s Supreme Court rundown. She’s authored books and numerous articles on these topics. And if you watch MSNBC late at night, like I do, you are going to see Melissa—as well as Dahlia—as a frequent legal analyst. So, thank you both for that.
Melissa clerked for, who was at that time a Second Circuit judge, Sonia Sotomayor, and she joined us in last year’s celebration of Black and Women’s History Months to discuss the appointment of MoFo alumna Justice Ketanji Brown Jackson to the United States Supreme Court. I will note that Melissa also has the distinct honor of being one of the very few lawyers short-listed for the U.S. Supreme Court as well. Melissa is a co-host of a podcast called Strict Scrutiny about the Supreme Court and the legal culture that surrounds it. She and her co‑host analyze the cases, the stories, the people, and the impact. And yesterday’s episode was about Ketanji Jackson Brown’s rookie year, so it’s exciting and interesting. Please listen to it. Most importantly—and Josh made me say this—Melissa is married to Josh Hill, a former MoFo Litigation partner.
And finally, of course, I’d like to also welcome back another NYU Law professor. As a Columbia person, this is a little hard for me. NYU Law professor Kenji Yoshino. Professor Yoshino is a constitutional law expert and the director of NYU Center for Diversity, Inclusion, and Belonging. Luckily for us, he’s no stranger to MoFo or our Allies Network. He first partnered with us in actually 2013 for a diversity summit in San Francisco, where he led a full-day discussion on his book Covering: The Hidden Assault on Our Civil Rights. Since then, he’s returned several times—most recently during Pride Month, where he discussed his new book on allyship, Say the Right Thing: How to Talk about Identity, Diversity and Justice—something we all need to learn. Professor Yoshino has published again articles in countless of the most prestigious academic and legal journals, in top news outlets, The L.A. Times, The New York Times, The Washington Post, you all get the idea. And he, too, makes regular appearances on radio and television programs—NPR, CNN, MSNBC—and has won numerous awards for all of that. Suffice it to say—I tried to do this quickly—we are in excellent company for today’s important discussion. I wish I was back in law school. And I’m going to turn it over to you, Tritia, to start us off.
Tritia: Thank you, Jamie. Hello, everyone. As Jamie mentioned, my name is Tritia Murata. I am an L.A. litigation partner who co-chairs the Employment and Labor group and also the Women’s Strategy Committee. As Jamie alluded to, the Supreme Court recently ended its term with the six-justice conservative supermajority making big and bold changes to law and to society. They ended race-conscious college admissions, shelved President Biden’s student loan forgiveness program, and sided with an evangelical Christian website designer who opposed having to create websites for same-sex marriages under the First Amendment. All of this came on the heels of the controversial decision in Dobbs, overturning Roe v. Wade. That said, I could not be more honored to welcome these three esteemed panelists and long-term friends of the firm to help us walk through and digest what all of this means. Welcome Melissa, Kenji, and Dahlia.
Let’s begin with a look back at how the court concluded the term before last with the landmark decision in Dobbs v. Jackson Women’s Health. Dahlia, let’s start with you. At MoFo, we’ve held a number of programs over the last year about the implications of the Dobbs decision. But for the benefit of our audience today, would you provide us with a high-level overview of Dobbs and how it overturned Roe v. Wade?
Dahlia: Of course, and I want to start by thanking both of you and the firm and just saying what a treat it is. I still feel like I’m in COVID in my head a lot of the time. And so I just want to touch my co-panelists, which is wildly inappropriate. But it’s really nice to be here. And to all the folks who are watching, thank you for tuning in. I almost feel like I don’t have to say too, too much about Dobbs, because at this point I think we all kind of know the story. But I think the one thing I might say about Dobbs—which is a little bit maybe useful framing—is that Dobbs of course happened long before Dobbs happened. It happened when SB 8 was decided on the shadow docket. With a couple of paragraphs of inscrutable, unknowable legal reasoning. And it happened again when the Dobbs leak happened.
And so by the time Dobbs happened, none of us should have been surprised—that was clearly in the cards. I think maybe the one thing I want to say before I just briefly give the history of Dobbs is that the most shocking thing to me was that, after the leak happened, there was an opportunity that no Justice has ever had in history, which is to correct his errors in real time. Because he was being fact-checked in real time by historians and by medical people and by economists, all of whose work he had either ignored or gotten wrong, and nothing changed. And to me, maybe the most interesting thing about Dobbs is, given the opportunity to get it right, which no Justice has ever had in history, the choice was to leave the opinion largely intact, except for a couple of swipes at the dissenters and the concurrence. So very, very quickly—in 2018, the state of Mississippi passed demonstrably unlawful 15-week abortion ban. The Center for Reproductive Rights filed on behalf of the Jackson Women’s Health Clinic—it was the only remaining clinic in the state. A federal court blocked it, saying it clearly and deliberately violated Roe and Casey and their progeny. The Fifth Circuit affirmed that, saying it deliberately violated Casey and Roe and their progeny. The Supreme Court granted cert on this question of all previability bans. And suddenly we had—Roe was in the crosshairs. And as I said, it had functionally been done on a shadow docket in September.
Ultimately, we got a 5–4 or 6–3, depending how you want to count Chief Justice Roberts’ ruling. Penned by Justice Alito, where the Court found that the U.S. Constitution does not protect the right to abortion. Chief Justice Roberts would have upheld the 15-week ban and not gone after Roe at that precise moment. But the Court in effect set aside 49 years of precedent and everything we thought we knew about stare decisis, with a stroke of a pen, 79-page majority opinion, Justice Alito said that some rights under the bucket of substantive due process are protected, but they have to be “deeply rooted in our nation’s history.” We’re going to wait and see what other substantive due process rights are deeply rooted.
And I think the only other thing I want to say is that it was a really interesting case because it set the tone in the joint dissent by Justices Breyer, Sotomayor, and Kagan for what has become—and I know we’re going to talk about this at the end—the use of dissents and opinions to talk about this meta question of the legitimacy of the courts. And you know, whether it’s Justice Sotomayor talking about the “stench” of the courts or the joint dissenters essentially saying, in Casey we came together to protect this institution, what are we doing? And I think that to me flags, sort of, the beginning of a very, very complicated question—that I know we’re going to get to—about the intersection between these legitimacy issues and how the Court decides things and the way the Justices themselves are talking about legitimacy.
Tritia: Thank you. And what are some of the effects, Dahlia, that you’re seeing across jurisdictions in the post-Dobbs era? And specifically, can you discuss how advocates for reproductive freedom are leveraging options like Plan C and direct democracy to protect reproductive rights as well as other rights? And where do the recent medication abortion cases fall into all of this?
Dahlia: This, I mean, again, I don’t want to belabor this because anybody who reads the news knows what the knock-on effects immediately following Dobbs—you are getting stories of, you know, young women who are having to be transported across state lines, victims of rape and incest to terminate pregnancies in other states. Cases in Texas just filed and just prevailed, including being spearheaded by Jamie and a team of folks here and at the Center for Reproductive Rights—a bunch of women in Texas who filed suit because they had been denied critical care for pregnancy complications that were harrowing and just ended up with a big victory. And just, newsflash, a similar suit was just filed by Morrison Foerster in Tennessee, similar suits filed today again by the Center and other teams of lawyers in Idaho. And what’s the third place?
Dahlia: So this suit is going to be replicated on down the line. We’re also seeing just a raft of new creative ways to block pregnant people from getting the care they need. Lawsuit filed by a husband who went after a woman who took medication abortion and swept in the friend that she was texting with as she was trying to figure out how to escape an abusive relationship and terminate her pregnancy. The Alabama Attorney General has just announced that he’s going to prosecute anybody who is assisting a pregnant person to cross state lines in search of an abortion. We’ve got counties in Texas—this is a pretty horrifying new tactic, where roads in jurisdictions in Texas are going to be conscripted as part of a sort of SBA bounty-style civil suits for anybody using roads in certain jurisdictions in Texas to transport people. The language of “abortion traffickers” is what’s being used to describe, not just folks who are helping somebody, including abortion funds, by the way, and family members, but also the pregnant person themselves, is an abortion trafficker who is pitted against the interests of the fetus. And the point of all these things—I don’t need to belabor this either—is to isolate and terrify people who desperately need help and don’t have the resources to get it, and to make sure that everyone around them is chilled from offering assistance.
The other thing—and I know you just asked about this, of course—is the very big swing lawsuit it filed to try to get rid of the FDA approval of Mifepristone, one of two drugs in the medication abortion two-drug cocktail that’s headed to the Supreme Court. And I guess I want to say, of all these things, is that the chaos is the point. The uncertainty is the point. The through-line here is providers who don’t know—in the cases of patients who have complications—don’t know what constitutes an emergency, don’t know what constitutes a correct medical course of treatment. It is to chill anybody who is seeking to help somebody in their most vulnerable moments. And I know that the question was “what are the good things that are happening around that?” So I think I just want to say this—look, we’re seeing amazing action taken in terms of mailing out abortion pills, amazing action taken in terms of support for abortion funds, which has been lacking for years and years, to transport folks. But I think that the most important thing that we’re seeing is also a worry because it’s efforts to put abortion on state ballots as a either a ballot initiative or a referendum. And we’ve seen that in every single state, including Ruby Red Kentucky, where it is put on the ballot. It overwhelmingly wins, which is why we are now seeing efforts to stop that. And whether it’s Ohio changing the threshold for how many, what percentage of support you have to get or changing the language on the initiative itself, so that the language is misleading—what you’re going to see is the effort to do this by way of direct democracy, and states’ rights is going to be stymied by the sort of levers of power that want to make sure it doesn’t get on state ballots.
And maybe the last thing I want to say because it’s of a piece with this very dispiriting, you know, kind of who owns politics and they win democracy. And I think the dispiriting last iteration of this is an effort to unseat a Wisconsin Supreme Court Justice who won by a landslide explicitly on the issue of reproductive rights, who they’re trying to impeach right now. So, I just think we have to sort of—I posit at least that in this foot race between direct democracy and the suppression of direct democracy, we have to be just very, very mindful that for every action there just seems to be a lawless, equal and opposite reaction. So maybe I’m going to stop there. I know that wasn’t the feel-good like news you can use, but I think that’s sort of the state of play.
Tritia: So pivoting to Kenji—in an interview that aired on PBS back in June of 2022 after Dobbs, you said that one of the most shocking things about the Dobbs decision was the Court’s declaration that the Ninth Amendment’s unenumerated rights will only be respected if they are deeply rooted in this nation’s history and traditions. And this is something that Dahlia had alluded to earlier. Why did you find the Court’s language in that respect so alarming? And how might this implicate other rights we’ve come to see as fundamental rights, like the right to same-sex marriage, the right to sexual intimacy and contraception?
Kenji: Yeah. So first of all, I want to redouble sort of Dahlia’s thank you for your hospitality, and every contact with MoFo has been a pleasure. And today is obviously no exception. And thank you for flying all the way across the country to moderate this conversation with them.
Tritia: It’s my pleasure and my honor. I feel like I’m in the presence of rock stars!
Kenji: I certainly feel the same way with my co-panelists here. So yes, I think where we need to begin is something that many of you already know. But I feel I nonetheless have to say it, which is that oftentimes in the popular domain, there’s this idea that the only things that are constitutional rights are things that are textually enumerated within the Constitution. But much of constitutional jurisprudence is unenumerated, so the right to travel, or the right to marry, or the right to vote are nowhere found as such in the Constitution, but have been determined to have the same constitutional stature as textually enumerated rights. And they’re not considered to be sort of second‑class rights. In part because of the Ninth Amendment that Tritia just mentioned, which essentially says that the right to enumerate in the Constitution shall not be construed to deny or disparage others held by the people. And that suggests that there was a textual warrant for thinking of that existence of textually unenumerated rights in the Constitution. So the text says non-textually enumerated rights will also be protected.
So then the million-dollar question becomes how to discern those rights because the usual constraint and guide of text isn’t there. And so I admit that that is a thorny and a complicated question. But the Court has historically done this by engaging in a basic common law kind of understanding of what rights are fundamental to a free people. So, one formulation that’s been used is if a right is implicit in the concept of order liberty, then it will be protected. Justice Harlan really wrote a canonical dissent in a case called Poe v. Ullman where he said it’s really important not just to think about tradition, but also to think about the traditions from which this country broke and thinking about the metes and bounds of those unenumerated rights.
In 1997, the Court decided a case called Washington v. Glucksberg, which is about physician-assisted suicide. And in denying the right to physician‑assisted suicide, the Court so tightened the leash on what would count as an unenumerated right by articulating a standard that said that, in order to be cognized as an unenumerated right, a right had to be deeply rooted in this nation’s history and tradition. So a very backward-looking understanding of what unenumerated rights could be. So how far back the Court didn’t specify. But it could be the English common law. Or it could be the founding of this nation or what have you. So, since Washington v. Glucksberg, repeatedly the Court has sort of honored Washington v. Glucksberg more in the breach than in the observance. So if you think about all of the cases that have been decided since Washington v. Glucksberg that was decided. Just for starters, sticking only with the gay rights context, we can think about the Lawrence case in 2003, which recognized a right to same-sex, consensual intimacy—obviously not so deeply rooted in this nation’s history and traditions as a right that would be cognized given that all 50 states at one point criminalized same-sexual activity.
And then the same-sex marriage case Obergefell in 2015 that recognized the right to same-sex marriage and said this is not deeply rooted in the nation’s history and traditions, but it doesn’t matter. And so, if we look at those cases, we might think that Washington v. Glucksberg had been de facto overruled. And Chief Justice Roberts in his Obergefell dissent said as much, saying the Court is de facto consigning Washington v. Glucksberg standard to the ashbin of history.
One of the most consequential things about the Dobbs case—and it’s hard to know when to talk about this, because when Dobbs came down, I really felt like the time was not for me to sound the alarm about LGBTQ+ rights, right at the moment that was so devastating for abortion rights and gender. I've sort of been thinking about, is it too soon? Is it too soon? It still feels a little too soon, frankly, but the challenges are coming down the pipe. I think that we need to be prepared, so I am going to talk about it. One of the things that was a kind of marquee move by Justice Alito and the majority in Dobbs was to say unenumerated rights will only be recognized as Washington v. Glucksberg said, if they are deeply rooted in this nation’s history and traditions. That is kind of a shot across the bow, saying that he wants to breathe new life into Washington v. Glucksberg, and he kept protesting that there was a lot of catastrophizing going on in the dissent by saying this only relates to abortion. Because the set of interests of the state and the potentiality of human life and the fetus distinguishes this context from any other context, to which I would say that’s—with all due respect to Justice Alito, that’s not how law works.
If you articulate a test in a particular case, that test then becomes precedent for future cases. So, if you say, "I’m going to reignite the fires of Washington v. Glucksberg and breathe new life into this deeply rooted in the nation’s history and tradition standard," that is going to apply to future cases. And sort of saying the quiet part out loud, Justice Thomas in his concurrence said yes, exactly right. Rights have to be deeply rooted in nation's history and traditions. And that means that there are three cases that are ripe for reconsideration. He mentioned Obergefell, the same-sex marriage case; Lawrence, the same-sex sexual intimacy case; and also Griswold v. Connecticut in the 1965 contraception case as being things that all protected rights that were not deeply rooted in the nation’s history and tradition.
So, Tritia, you see why I’m beginning to get nervous about the standard, because essentially, it embodies what I’m calling a kind of normative nostalgia on the part of the court. Which is to say, the court is seemingly wanting to bomb us back into a state of play that is kind of a 1950s America. And it’s using this "deeply rooted within the nation’s history traditions" to say the unenumerated rights which, in this common law way, we’re trying to keep up and adjust the Constitution for 21st Century society, should all be washed away. And the normative piece of it is, even in the political domain, if I sort of wax nostalgic about the good old days, like I’m not able to effectuate that unless I actually pull the levers of democracy and make that the law.
The Supreme Court can just have five unelected officials say, "You know, we like the 1950s better," and adopt a standard that effectively makes that nostalgia normative for all of us. I find this extremely alarming. I’d be much less alarmed by this—because I actually am not sort of averse to textualism or originalism, except for in the absence of a proper amendment procedure. So, the real obstacle in this entire conversation, which I think really bears more attention than it’s been given, is Article Five of the Constitution, which makes amendment virtually impossible. We’ve had 27 amendments in the entire history of the country, 10 of them came as one installment in 1791 in our Bill of Rights, and so only 17 amendments since then. And so, the fact that amendment is so hard makes it very, very difficult for us to update our Constitution, to fight what I’m calling the normative nostalgia of the court.
And that means that, when the court embraces the standard that is so backward-looking, that it has deep consequences for us as a country. And there’s to going to be a slippage. And I’m not just thinking about [inaudible]. I spent an entire life arguing for LGBTQ+ rights, but here I want to speak more deeply as like a citizen and as a constitutionalist to say that there’s going to be a tectonic slide between where the country is going and where the Constitution is. The constitution is frozen in 1789 or in 1868 version of what the Constitution and the 14th Amendment say. If the if that slide continues to occur where the people are over here and the Constitution’s over here, then the Constitution—which I Revere and want to have be the law of the land—is going to lose our trust and fealty as a people.
So, as a constitutionalist, I’m alarmed. And then more narrowly, as a person who believes in modernity and LGBTQ+ rights and women’s rights, various other forms of "we the people" rights that are different from the "we the people" that founded this country, in terms of who was recognized as a full person, that concerns me as well.
Tritia: That’s actually a great segue into the 2023 term, where the ideological split of the deeply divided court was nowhere more evident than in the other cases we’ll be discussing next: 303 Creative, the affirmative action cases, and the student loan case.
Let’s take the cases one by one before looking at their collective impact and starting first with Melissa. Can you set the stage for the affirmative action cases by telling us about the plaintiffs in those cases, the injuries complained of and what laws they sought relief under and also how the analysis of these cases involved from the 2003 decision of Grutter v. Bollinger.
Melissa: Thank you for having me. Before I answer that question. Can I just link really quickly some of the thoughts that my fellow panelists, again so excited to be in person should not see you in a box.
Tritia: I see you all the time.
Melissa: One of the things that’s really important to remember about Dobbs is that one of the infirmities that the court identified in Roe was that Roe apparently disrupted some ongoing democratic deliberation on abortion that was apparently taking place in 1973 and substituted for the people’s judgment, its own judgment about what a fundamental right was. And so, in removing the question of abortion, from the judiciary and returning it to the people, Dobbs was doing no more than restoring democracy. I think it’s really important to touch on that because that has, I think, huge consequence for how we think about what democracy is, who participates in democracy, and what stare decisis has to mean for democracy.
Because the court is essentially telling us that one of the reasons why you can limit or mute the stare decisis effect of a decision that’s almost 50 years old is where it has disrupted democratic deliberation. And if the marker of an informed decision that is not owed presidential value is the fact that it somehow disrupted democratic deliberation on an issue of salience to some six people on the Court. Well then that as Kenji puts it, opens the door wide to all of these other decisions that were decided and moments of undeniable churn on particular issues where Obergefell came in 2015, as many states were actively debating whether or not to amend their laws to allow for same-sex marriage.
And if the question is a question of disrupted democratic debate, then there are a lot of different issues that are in the crosshairs, regardless of what the court says. It’s also worth noting that the court’s conception of democracy in Dobbs is very narrowly trained on state legislatures and that is perhaps unsurprising since this court, more than any other in the history of this nation, has actually expanded the power of state legislatures by allowing gerrymandering, partisan gerrymandering to continue virtually unimpeded.
And so this idea that we are going to funnel this question to state representative government and that that will better represent the people than any other institution, I think is deeply, deeply flawed because many state legislatures are so badly distorted in terms of gerrymandering that they aren’t necessarily responsive to their constituencies, and that’s why we’re seeing this pivot to direct democracy, which for many years has actually been a mechanism for conservatives to advance their visions. We’ve seen this in California with proposition 8 and in proposition 209, but now that it’s being used in ways that advance progressive causes just to defend abortion rights, suddenly we’re seeing this immediate retreat from direct democracy.
And so you have to keep your eye on all of these balls. Like, this isn’t just about a single issue or a single set of issues or substantive due process or unenumerated rights. It’s about who gets to call the shot and what ostensibly is a democracy. And so that leads to your point about, nice segue, excellent segue. So the affirmative action cases are really interested in fact, because we’ve heard about them for years. Like the question of affirmative action has been percolating since affirmative action measures were introduced in the Kennedy administration. At the federal level for contracting, it was expanded in the Johnson administration, really came under fire in the 1970s, not surprisingly, as part of the backlash to the civil rights movement, and they immediately tagged as reversed racism.
We’ve seen challenges to affirmative action for years, beginning with Marco Defunis’s case, which never really made it through the court because of a jurisdictional question on to Bakke in 1978, Grutter in 2003 and then the Fisher cases in the 2016. Many of those cases Grutter, Gratz, Fisher were brought in, sort of engineered by an opponent of affirmative action at Blum. He’s also the mastermind behind this new set of challenges, which we’ll talk about today. So Ed Blum essentially failed at trying to advance this project where he claimed that white people had been disadvantaged or injured through race conscious admissions policies and higher education. When that didn’t work in 2016, when a majority of the court in 2016 determined that affirmative action policies, if used holistically and were race was not a determinative factor but one of many factors were permissible, Blum decided to pivot. Instead of focusing on white claimants, he decided to focus on Asian American claimants, and his argument was that the University of North Carolina, a public university, and Harvard, a private university, were discriminating against Asian American applicants because in some aspect of their admissions protocol, where there are various opportunities to weigh various sort of—subjective qualities of Asian American candidates, they would grade these candidates lower, and that would impact their opportunities for admission.
And to be very clear. It seems very clear that Harvard and UNC were engaging in this whether they understood it as intentional discrimination or simply inadvertently, they were definitely doing this. Correcting that infirmity did not require the court to dismantle race conscious admissions policies entirely. So again, this is sort of going a step further then was needed. But the challenge that was raised in the two cases, one was a constitutional challenge. The University of North Carolina is a public school and the challenge there was that the discrimination against Asian American applicants and the consideration of race by itself violated the Equal Protection clause of the 14th Amendment. In the Harvard case, the issue was whether the use of race in the admissions protocol and the discrimination ostensibly against Asian American candidates violated title six of the Civil Rights Act, which prohibits those in receipt of federal funds from engaging in racial discrimination. And the court in both cases, they were consolidated for review, although oral arguments on each case were heard separately because Justice Jackson had to recuse herself from the Harvard case because she previously sat on the board of overseers.
But the oral arguments sort of proceeded despite there being separated in a similar vein. The decisions were consolidated and essentially the Court determined that it violated the Equal Protection Clause to consider race by itself. So that is a question, and they sort of don’t really focus on the question of Title VI and whether or not it’s violation of the statute to consider race, but largely because it is a violation of the Equal protection clause to consider race, it stands to reason that this is also seemingly impermissible, and there’s an interesting concurrence from Justice Gorsuch that really focuses on the statutory questions and kind of eliminates what some might argue, sort of a firebreak between Title VII and other anti-discrimination statutes like title or Title VI and other anti-discrimination statutes like Title VII, suggesting that finding a violation and Title VI could easily then be translated to find a violation in the context of Title VII.
So this is a decision that I think raises more questions than it actually answers. The court is very clear that it opposes the use of race, that the use of race in the admissions policy is an unconstitutional injury. But then there’s this very tantalizing nugget at the end. Where Chief Justice Roberts, who wrote the majority opinion, says that an applicant an individual applicant can talk about his or her racial background if doing so sheds light on sort of their individual development as a person, but it can’t be sort of a thumb on the scale in a sort of broad way for all applicants. It must be individual and holistic, which I guess I wonder is what is so different about that? What preceded it, right? Like that’s essentially what Grutter said should be the case, like race could not be across the board thumb on the scale, but rather had to be part of a holistic inquiry into the individual contributions and qualifications of each individual applicant.
So, again, it’s kind of an opaque opinion. I think it opens up more questions. I think Dahila’s point about the chaos being the point is true here as well. This will show conduct because universities and colleges are going to be very risk averse about being sued, which may mean that they will be more cautious than ever about how they use race if they use race at all, and they will close things down rather than push the envelope, and that’s exactly what the court and I think Ed Blum is counting on.
We’ve already seen some repercussions where Ed Blum and his band of warriors are already taking aim at other policies in the private sector, in businesses and corporations, but also in education. Thomas Jefferson High School in Arlington, Virginia, is a selective high school that uses a particular test. A few years ago, they changed their admissions protocol, did a lot of things that are ostensibly race neutral, like they decided to call some portion of their applicant pool from zip codes that historically had been underrepresent. In their student pool, they decided to do outreach to some middle schools that they previously had not taken students from, and the goal was to have a more diverse student population. But the means are entirely race neutral. There’s now a challenge as to whether or not those race neutral means, if they are in service of a race conscious end, are actually impermissible, and so the ultimate goal is to make diversity in any kind of consideration of race or any kind of interest in achieving racial balance verboten throughout the United States throughout education, and I think throughout the private sector as well.
Tritia: So we’re running a little bit behind, so I’m going to deviate from the plan. I wanted to ask, actually, Melissa and Dahlia both because on both of your podcasts, Strict Scrutiny and Amicus, you played an excerpt from the Oral Argument where Justice Ketanji Brown Jackson posed the hypothetical about the two UNC students, and I was wondering whether any of thought that that nugget at the end of the decision was in part inspired by that or what that speaks to from your perspective?
Melissa: For sure, Chief Justice Roberts in his office. It’s like ah Ketanji.
Tritia: Right, like, right, right.
Dahlia: No, no, I mean and essentially I think everybody knows that the nugget, but it’s Justice Jackson who’s essentially saying. So you’re saying that a student who’s a fifth generation legacy can say, you know, my great, great, grand pappy, right. And he can put that in his. But the student who you know was denied, and whose family was denied, can’t put in their application I’m an African American student and I couldn’t—my family doesn’t get to go here. I’m not a legacy. She said it more artfully. It brought gasps in the room because it’s so perfectly crystallized. Who gets to talk about race and who doesn’t. And for sure, I think that the Chief Justice put that bizarro, you can talk about race if you do it through mime and smoke signals and, like, interpretive dance, but you can’t talk about it.
Melissa: Because she’s essentially saying that that by itself is an equal protection problem or a First Amendment problem.
Dahlia: Yes. And the other thing just for what it’s worth is you know also he sort of threw that bizarre at the end like ‘this doesn’t apply to military academies. But don’t ask me why.’ I think that there was an immense amount of sort of like, his, his little feet going under the water trying to figure out how to undig himself from an opinion that I think, you know, Melissa correctly says raised vastly more questions.
Melissa: And an opinion like that is the only way to get hardliners like Thomas and Alito on board, but you would lose, perhaps some other people And so I think that’s why there’s so many weird footnotes. Why it’s a little incoherent in places to keep the majority intact—to keep a super majority intact.
Tritia: Thank you. Moving to 303 Creative, which was decided just one day after the affirmative action cases. Kenji , can you give us a high-level overview of 303 Creative, including the question of whether the plaintiff even had standing to sue and how does this case differ from the striking with similar Masterpiece Shop case?
Kenji: Yeah, absolutely. So the 303 Creative case concerned Christian web designer named Lorie Smith. And Lorie Smith said that she was interested and hypothetically expanding her business into the wedding website but was concerned that if she engaged in that expansion, she would run afoul of Colorado’s Anti-Discrimination Act because that law prohibits discrimination on the basis of sexual orientation. And she refused to create websites for same sex couples, so the standing issue is an interesting one because she hadn’t yet expanded the business into weddings at all, same sex or otherwise.
And so it was really apparently speculative harm. The injury in fact was hard to decern. There was an interesting eddy in this case where at one point her lawyers saw lines defending a freedom said, ‘Well, she actually had to turn down individual who wanted a same sex wedding website,’ but then a very enterprising reporter actually tracked down the individual who had made that request, and he said I’m actually already married and I’m straight and I have a child and I have no interest in getting married to anyone else, you know, much less somebody of the same sex. So I don’t really know what’s going on here.
But the Masterpiece Cake Shop case is very pertinent because many of you may have thought this is kind of deja vu all over again because Masterpiece Cake Shop was about a wedding cake baker who refused to make wedding cakes for same sex couples and then was sued under the Colorado Anti-Discrimination Act, and then his case went all the way up to the Supreme Court and then Justice Kennedy decided in his favor but on very, very narrow grounds. Suggesting that the Colorado Civil Rights Commission that had made a determination the case that he had discriminated, itself had discriminated on the basis of religion and saying appropriate things about religion and its proceedings. And so it was a technicality that was very fact dependent about the religious animus that the Civil Rights Commission had demonstrated.
That’s the critical thing about the–so I should say that the way in which the court found standing in the case and an injury in fact was to say that the fact that there had been this case interpreting the exact same statute, the Colorado Anti-Discrimination Act in this way was a basis for Lorie Smith to credibly believe that she would get sued if she expanded her website design service into wedding websites and then denied service to a same-sex couple.
The critical difference between this case and Masterpiece Cake Shop and the thing that I think should be extremely troubling to anyone who is concerned about public accommodations or civil rights laws generally, is that the case was accepted by the Supreme Court on one ground and one ground only. So suit was filed on both the free exercise and free speech grounds after the 10th Circuit decided the case against Lorie Smith.
But the Supreme Court reserved that [inaudible] grant to the free speech claim only and then decided the case in Lorie Smith’s favor by saying this is essentially compelled speech, so it put it within the constellation of cases that are like West Virginia v. Barnette or Wooley v. Maynard where the government is like writing out a script and putting words into your mouth, the so-called compelled affirmation jurisprudence. Note that that’s a fairly far cry right as Justice Sotomayor says in her dissent from this case, where the government isn’t writing out the script, it’s just saying don’t discriminate with regard to your conduct and the services that you offer to various individuals. But you know the court made that leap per a 6/3 majority opinion by Justice Gorsuch.
So why is it that I’m sort of harping on this distinction between the free speech and free exercise clauses? Well, it’s because in the free exercise context, we have certain decisions on the books, not just Masterpiece Cake Shop. But three years later, in 2021, the Fulton case where the city of Philadelphia sort of denied a contract to Catholic social services because Catholic social services refused to place children in foster care with married same sex couples, and the court again, per Chief Justice Roberts, who did it, but did it on a technicality.
And so those two cases were decided in favor of the religious objectors. But as Justice Gorsuch pointed out with some acerbity in the Fulton case, it seems like you know there’s a peaceful anonymity on the part of the Conservatives to overruling the landmark case of Employment Division v. Smith, so Employment Division v. Smith is a 1990 case that says per Justice Scalia, if there’s a law of general applicability at that places a substantial burden on free exercise of religion, you can’t challenge that in the absence of animus. The mere fact that it burdens you is not enough. So overruled prior precedents or limited them like Sherbert v. Verner, and in doing that. And this has had a giant sort of set of crosshairs painted on it from justices like Alito and Gorsuch and Thomas who’ve been lobbying for years to get this overturned, and so there’s an enormous amount of frustration when Chief Justice Roberts, and prior to him, Justice Kennedy kind of blinked at the last moment and said, ‘yes, we will give the win to the religious objective, but we will not disturb Smith.’
So by the time we get to Fulton, Justice Alito’s, all but rending his garment, like his concurrence it’s like multiple times the length of Chief Justice Roberts’s majority opinion, and lays out the full case for overruling Smith. But they’re really savvy thing that they do when they get to 303 Creative is that they say we’re going to take all this pent welter of anger that we have on the basis of the fact that you’ve denied religious objectors, a full sweep of religious exemptions. And we’re going to shunt over in a kind of squeezing the balloon thing of the air doesn’t get pushed out, it gets pushed over from the free exercise clause to the free speech clause. And the reason that the free speech exemptions are so much more dangerous is because of two factors: it can be asserted against anyone, and they can be asserted by anyone.
In the religion context there are well established cases with which many of you are familiar, like the Bob Jones case. Earlier than that the Piggie Park case where the court has said, ‘no, you cannot use your religion to discriminate on the basis of race.’ Period, full stop. Notice what happens when you go to the free speech context, though. In the free speech context, we have a very different ethos where the ethos is the glory of the First Amendment is that we protect the speech that we hate. So that’s why the Nazis get to March in Skokie. That’s why an [inaudible] case a person gets to burn a cross on somebody else’s yard. This is very ecumenical. Any kind of attempt to cabin this to sexual orientation is going to be limited. So that if Lorie Smith wants to say I want to deny an interracial couple a website because I don’t believe in interracial marriage, that should be completely okay after this decision because the First Amendment does not allow for these distinctions on the basis of what classification is being targeted in the way that the religion jurisprudence does.
And then the other piece of this is that anyone can assert this. To assert a free exercise claim you have to be exercising religion. I understand that the court has been loath to sort of probe that the sincerity of somebody’s religious belief, but at least in theory, that limitation is there. And I actually don’t know that many cases where people have faked their religion and some journalists have come out afterwards and said, ‘you just put this on for the sake of breaking pursuit.’ So, it is performing. I think some kind of limiting factor. But here anyone can bring a First Amendment speech claim. So, I could be a run-of-the-mill bigot running a bread and breakfast or running a photography service and say, ‘I don’t want to photograph same sex couples. I don’t want to photograph nontraditional families. I don’t want to photograph people with disabilities,’ and be completely entitled to do that under this opinion, right.
The one saving grace of this, and all and here, is that of course in order to protect it under speech, unlike with religion, is that the conduct has to be speech, it has to be expressive. So, I could easily see someone who was disagreeing with my catastrophizing about this opinion saying, ‘Well, in the religion context, yes, it has to be religion, but it doesn’t have to be expressive. You could have like a land use ordinance burning. That’s not particularly expressive in nature, right. But it’s religious and it’s still protected. But in this case the limitation is not religion, but it is expression.
I think there we get into like the parade of horribles that Justice Sotomayor established and Justice Jackson established in their in the oral argument where they pushed on things like what is expressive? Sotomayor would say, ‘if, a chef makes like a poem on a plate then is that expression? If a jeweler were sort of make sort of artistic jewelry is that art?’ You’ve already said in Masterpiece Cake Shop, Justice Thomas in your concurrence that the cake was artistry. And the kind of evidence that he adduced, this is the [inaudible] count from Sotomayor. But just saying this is going to be like a nightmare set of inquiries because the Supreme Court is eminently not competent to engage in this kind of very fact dependent assessment of who’s an artist and who’s not an artist.
If you go back to Justice Thomas’s concurrence where he tries to do this for, Jack Phillips, a Baker. He says things like, ‘the logo of Masterpiece Cake Shop is like a paintbrush, a cross with like a ladle.’ And so therefore this is the art. And I was like you’ve got to be kidding. That can’t be what the Supreme Court is opening itself up to do. But that is, in fact, what the Supreme Court is opening itself up to do. So the Subway artist is now meaning the Subway sandwich store. They literally—if you go to the website they call themselves the Subway artists. It is literally going to be a question soon or late that someone is going to stand up and say, ‘I’m a Subway artist and you have to tell me that I’m not. And then there are all these kind of highbrow, lowbrow concerns of yes, the Cordon Bleu chef is an artist, but you’re not an artist. And then that goes back to Justice Scalia saying, ‘lawyers belong to the professional class. We side with the Knights rather than with the villains. And we need to be really careful about these SES based snobbery distinctions.’ I think that the Supreme Court is not fully understood the kind of semiotic quagmire that it’s wandered into with this case.
Jamie: I don’t mean to interrupt the flow, but you made me think about withstanding, and I know we’re getting a little bit back to standing in Biden v. Nebraska, but the upcoming case in the Supreme Court on medication abortion, the case before [inaudible] has some serious standing issues. The cases brought by doctors who say they fear they might one day have to treat a patient who took medication abortion. That is very much a hypothetical. Do you think this case, or Biden v Nebraska, are giving you any foreshadowing of where the court goes, sort of outcome determinative, on standing?
Kenji: Yeah, I mean, this court has made it very difficult for me to teach constitutional law, frankly. Because I say, first of all, if you’re a progressive, you’re planting the hedgerows. The supreme court that we have now, with 30 years in the making, I’m going to be long retired by the time we have a different court. So I’m planting the hedgerows with you 30 years from now. You can change the future. And then, I say, “If you don’t like that,” then my second line defense is to say, “I’m teaching politics, may you live in interesting times. It’s a fascinating political conversation that the court is having with the country.” And then I say, “If you don’t like that, like I’m teaching you French, I’m a language teacher, like you can’t stand up in court and just say, ‘because of my politics,’ you have to dress it up in the [inaudible]of the law.” But make no mistake that they’re going to respond, also in the [inaudible] of law, but like undergirding that is their politics because it’s very, very hard. I don’t know if any of us feel differently about this, please let me know, and give me some hope here.
But the way I used to teach standing doctrine was that the Roberts Court was tightening and becoming way more stringent about the standing requirements, both constitutional and prudential. Is there an in jure in fact? Is there addressability? Is there a causal nexus in between the activity and the basis of the lawsuit, as well as the prudential factors about the party standing. I saw a lot of tightening, and say, “We’re really going to limit this case for controversy.” So where is that in your abortion case? Where is that in 303 Creative? It’s completely mystifying. And the only thing that makes it consistent is not any kind of trans-substantive rule about your position on standing, but rather like the political priors that you have and the outcomes of these particular cases. That’s the greatest predictor of whether they’ll find standing or not.
Melissa: The court doesn’t care about just disability if it gets in the way of an issue, it is deeply interested in deciding, and that’s just the bottom line. In the affirmative action case, I think there was a real question about whether or not there was an injury, because no one could actually say that anyone had been admitted to a college solely because of race. You could not actually disaggregate all of those various factors to say, “That person got in because of race.” The court doesn’t care and blows past that question. Justice Jackson raised it in oral argument. Justice Hagan also reiterated it at oral argument, and the court presents it as though every black and brown student who has been admitted to an elite college is there because race was determinative. And it doesn’t matter. Why let law get in the way of a good time?
Dahlia: And the coda to that as attorneys, and this is important, and Sherrilyn Ifill says this all the time, if you are an attorney, your job is to build a record. Your job is to go to the trial court and have hundreds and hundreds of exhibits and days of trial, and you construct a record, and that is the foundation of what you do. And now, you have cases where, I mean, her point in the affirmative action case was it, didn’t matter. Nobody cared what was in the trial record. There was an extensive trial record, extensive findings of fact; did not matter. And more so you get cases like 303 Creative, where in addition to the fact that the injury seems to be the “I’m Scared doctrine,” you don’t have anyone on the other side. In Masterpiece Cake Shop, you at least had two folks who walked into a bakery and wanted to be served. Who was on the other side of Lori Smith.
Melissa: This is why oral argument in that case was just bonkers. With Justice Alito talking about Ashley Madison and Black Santa because there weren’t actual facts to dig into. Everything was conjecture because they didn’t have a record below.
Dahlia: And, and then we’ll turn it back to you because it’s turning into the roller derby, but I will say, the other case from 2022, which was the praying coach.
Melissa: Coach Kennedy.
Dahlia: Coach Kennedy, who it seems never wanted to go back and teach at his school in Washington State. And it was clear, already, while the case was pending that (a) it was moot, that he didn’t want the relief he sought; and (b) that don’t even get me started on what happened to the record in that case where it kept being posited that he was privately praying with his students in a quiet moment of reflection, and Justice Sotomayor had to append to her dissent, “Here’s a photo of them quietly praying with helmets in the air while the cameras are—” It’s so distortive of the trial record and the factual record. And then you get, last week we find out that, “Oh, turns out he went back. He coached one game, and he is not there.” I think that as lawyers, and this is how Sherrilyn Ifill keeps putting it, and it’s so important. If this is how we do law now, like let me know and we’ll do it this way. But I was trained to do law by amassing a trial record, by bringing in evidence, by having a case in controversy, and if we’re just going to go to the court and talk about our feelings, and that’s adjudicated, that’s not a thing your students can ever learn to do, because I don’t even know what that practice is.
Melissa: That’s the difference between the rule of five versus the rule of four. Like when the court was balanced with a five to four bear conservative majority, when they were deciding what cases to grant review on, they had to be really careful because they couldn’t always count on Justice Kennedy. He could wobble. He could go the other way. And so they were really choosy about where they took their cases. Now, they are not restrained in the same way. They only need four votes to grant certs and they only need five votes for majority, and they have six. And so it means we are getting more cases where the record below isn’t perfected, where the issues are not as crystallized as ordinarily as they would be, because it doesn’t matter if they want to get to the substantive question, they’re just going to blow through it.
Kenji: Can I say, just really two quick tags, I hope. I mean, want to thank you so much for saying that because I answered Tricia’s question very narrowly about here’s why they shouldn’t have had standing, but Dahlia’s sort of making the broader stake of this more evident, where in the Masterpiece Cake cupcake there was that gay couple, like Charlie Craig, Charlie Mullins.
Dahlia: David Mullins.
Kenji: David Mullins, I always get the names. And they had a mom too, who came in and complained. And here, the harms on the other side were completely invisible. And I actually view a parallelism or see a parallelism in between Justice [inaudible] or like recuperating the record in the Praying Coach case by saying, “Here’s a picture,” and her dissent in the 303 Creative case, where she tells a lot of stories using first names of people in order to sort of surface the humanity of the LGBTQ+ community and the kinds of harm this kind of discrimination and effects on them. And the other thing that I would say about her standing because you’re too modest to point it out, Melissa, so Melissa submitted this incredible brief about the equal protection arguments in the Dobbs case along with, Reva Siegel and Serena Mayeri. And the Stare Decisis analysis is like incredibly offensive because what Justice Alito is saying is Roe does not deserve Stare Decisis weight, because it was like egregiously wrongly decided. But the reason that Melissa’s argument is foreclosed is because there is a precedent that we have to respect because of Aldi v. Aiello. And then if you look at Aldi v. Aiello and Geduldig v. Aiello. And Geduldig v. Aiello says, “Pregnancy discrimination is not sex discrimination because even though only women get pregnant,” this is way before the trans movement, I think gets on the court’s radar, “Even though only women get pregnant, the category of non-pregnant persons comprises both men and women,” So I was like, “and that’s not egregiously wrong,” It’s sort of like, what are we talking about here, those two precedents are sort of one year apart. And so, it’s really hard to argue that the court is engaging in any kind of trans‑substantive analysis with Stare Decisis or withstanding, or any number of other collateral areas of doctrine.
Tritia: Well, in sticking with standing, and moving to Biden v. Nebraska, Dahlia, can you speak to the issues of standing presented in Biden v. Nebraska? Tell us about the major questions doctrine and how it’s relevant to the court’s opinion.
Dahlia: Yeah, I mean, the wheels are coming off here, but essentially this was a question about the Heroes Act, which is enacted after 9/11 to ensure that student borrowers who were impacted by some unforeseen emergency were not placed in a profoundly financially disadvantaged position, and the statute on its face provides that it can be waived or modified. And so, we have two things that Chief Justice Roberts does, and one of them hilariously is the Major Questions doctrine. What is the Major Questions Doctrine?
Melissa: Fan fiction.
Dahlia: It’s fan fiction. It has no constitutional, statutory, doctrinal roots. It literally was invented, not literally, it could have been invented by tiny elves sewing in a workshop late at night, just making up a doctrine that you could use to set aside agency power and agency authority. And as a formal matter the Major Questions Doctrine says that if Congress wishes to assign a decision to an agency, a matter of vast economic and political significance, then they have to expressly do that. They actually did sort of expressly do that in this particular statute, but also it essentially is a way of just knee capping the federal government. Because it’s been in, and I think the reason you all do it on strict scrutiny too, but we just keep putting the word doctrine in air quotes, because you can’t call a thing a doctrine.
Same thing with the Independent State Legislature Doctrine, which also has no actual authority behind it. That if you kind of give it the amperemeter of, “This is a doctrine so I must have missed that day in Con Law.” No, they didn’t teach it in Con Law because it’s not a thing, and it becomes a thing and it’s used to set it aside, and just not very, very quickly on the standing issue they needed to find a party withstanding. They had all of these states that had no standing. The state of Missouri claimed that it was harmed because there was a massive loss of servicing revenue from student loans that were going to be forgiven and the loss went to [inaudible], which is the loan servicer created by the state of Missouri. A totally independent entity, not the state of Missouri.
A totally independent entity, not the state of Missouri. One of the fun things at argument was everyone saying ‘where is Mohela? Why are they not in this case? Why are they not in the room? Someone call them and find out how they feel about this.’ Mohela is nowhere to be seen, but Missouri claims they got standing because this agency, totally separate, was going to be harmed. In another Kenji like footnote, it sort of emerges as the case is pending that actually Mohela is going to do just fine. They are probably going to make money as a consequence of this. But that again don’t let facts get in the way of a good grievance, so that is the very compressed version of how they found standing for Mohela, an agency that did not want to be in this case.
Tritia: Pivoting now to the Supreme Court and public opinion. Last year after the Dobbs decision, Gallagher recorded significant declines in public confidence with the presidency, and the Supreme Court suffering the most out of all of the institutions it tracks. With the approval ratings at record lows and that opinion tends to persist today. The latest survey was conducted in June of 2023 before the decisions that we discussed today, any or all of which could have altered the courts image as well as that of the president that spoke out about the rulings. Dahlia, can you tell us what do you think of these concerns and the decisions and how they will affect the courts approval ratings?
Dahlia: The most important thing that can be said about this, and I say it in rooms full of attorneys is that none of us want to live in a world where the court has no credibility. The notion that critics of the court, whether if it’s critics of the decisions as we have been probably too fulsomely doing today or critics of ethical lapses, which is becoming a real issue. That we are just doing it because we want to delegitimize the court. If you are a lawyer, you know that plan B if you don’t have a functional court is like street fighting. It is not good for people who have become lawyers. We’re not going to do super well if we are battling out democracy on the streets. —Well, you will—I am not in any way worried about Melissa—but I think the idea, and this is important, and it goes back to where I started I said that the Dobbs decent was a [inaudible] to legitimacy and why the courts legitimacy matters. And it quickly got framed and Justice Kagan made remarks to this effect that any attack on the Dobbs leak itself was an attack on the legitimacy of the court. That, in fact, whoever leaked it wanted justices to be killed. That was the rhetoric that we were getting.
The Chief Justice in his state of the judiciary made a sort of impassioned plea that we can’t say bad things about judges because their lives are in danger. And this sort of coupling of criticism of the court with the courts kind of reflective posture that you just want to delegitimize is so pernicious, and every one of us who has skin in the game in terms of we believe we need rule of law in a justice system really needs to push back against the notion that anything anyone says, including by the way Justice Kagan decent on the last day of the term, is an effort to delegitimize the court. That we just want to live in a crazed jungle of force and brutality, and so I always am at pains to say particularly to lawyers that this is our fight like for our generation. If we can’t do the hedge rows what we can do is decouple the idea that criticism of the court means we are interested in illegitimacy of the court. That is just the first thing.
The second thing is and then I will stop, but I think the second really essential thing is this is an unforced error on the part of the court. What is every one of the statistics that we are seeing about a plummeting confidence in the branch of government that has no purse, no sword, no power other than public legitimacy is that a set of decisions that the court has made to do things on the shadow docket, to control its own docket in ways that are, as Melissa suggested, unbelievably unnecessarily controversial, to take it out on one another, to make comments about one another in public that are—in my lifetime I have never seen, and I have been covering the court for twenty five years, the level of vitriol. And Chief Justice decision to not show up and testify was one of the most important things that everyone missed last year. Everyone one of these unforced errors, every attempt to say critiques of the court, efforts to impose a code of ethics on the Supreme Court that is adhered to by every others article [inaudible] in the land, that is because you hate the court. The only authors of this suffering in my view are the Justices themselves who chose day after day in the face of a genuine crisis to double down and double down again.
Jamie: If I can jump in on that. What about the recent news about Alito not recusing from a case that the lawyer arguing the case wrote—who interviewed him for the article about his failure to disclose gifts and travel? How does that in your view effect legitimacy issues?
Melissa: It’s terrible. This is the thing. It doesn’t have to be the case that there is any impropriety going on. When Clarence Thomas is on a private jet somewhere, it doesn’t have to be because he is in the bag for Harlin Crow and Harlin Crow has business before the court. It’s merely the appearance that he is on somebody side when the court is supposed to be impartial. Their reputation is all they have, and they are playing fast and loose with it. The one thing I will say about what they are doing is they believe to understand themselves to be very righteous, and I think you can’t understand this court without interrogating what they’re doing and why.
I think this is a court that understands itself to be part of a group of people who are beleaguered and under siege from what they view as a majoritarian culture that has left them behind. I think you have to understand that. If you think about judicial role in democracy and distrust and John Hart Ely as intervening in limited ways to protect discreet and insular minorities who otherwise cannot protect themselves in majoritarian politics. Then that helps you understand what the court is doing. They understand people like Lorie Smith to be part of a discreet and insular minority that is at the mercy of an increasingly secular culture that demands diversity, that demands acceptance of gay people and trans people, that demands acceptance of feminism, that demands acceptance of wokeness, and they’re not on board with it. They are a minority group now. And if you think about them in that way, it makes sense what they are doing in affirmative action, it makes sense what they are doing on abortion, it makes sense why they are completely unapologetic and unrepentant about the ties they are making with other like-minded members of that minority who happen to be billionaires.
Tritia: Looking ahead, the court will be back in session the first Monday in October, which is unbelievably less than a month away from now. With pivotal cases such as United States v. Rahimi and Muldrow v. Saint Louis on the docket, how do you see the court ruling, and are there any areas where you anticipate seeing the justices come together in consensus? Maybe, Kenji, we can start with you on Muldrow.
Kenji: Yeah, so Muldrow is—I haven’t heard or seen that much about it, but I think it’s a really important case. It’s about a police sergeant in Missouri, in Saint Louis, who was transferred against her will, and then she asked for another transfer and was declined in that transfer. She brought suit saying that this was discrimination under Title VII on the basis of her gender. The Eighth Circuit said being transferred is not a significant or material enough disadvantage to rise to the level of an adverse employment action, which is a requirement you have to meet in order to show a violation of Title VII, and the Supreme Court granted on that and said that we’re going to look at this to figure out whether or not this significant material disadvantage standard, which is nowhere in the statute Title VII is proper proxy for understanding what an adverse employment action is. The words, actually, adverse employment action is also not in that wording of Title VII, but they’re seen as a shorthand for you can’t engage in discrimination on the basis of compensation terms, [inaudible], so think about adverse employment conditions as being a shorthand for that broader statutory language.
What’s at issue in this case is how high or low the standard will be, and particularly in the wake of SFFA when we’re all thinking about how this is going to play out in terms of knock-on effects for other areas of the discrimination law. If the standard is really low, then we’re in James Ho land. James Ho and Ms. Hamilton—there was a case called Hamilton, also under Title VII, and this circuit en banc says you don’t need to have an ultimate employment decision to have an adverse employment action. That wasn’t particularly revolutionary. That actually brought the circuit more in line rather than less in line with the other circuits, but then James Ho ran a concurrence that really veered off to one side. He said this could be a situation where if a man is not invited to a CLE lunch because he is a man, he should clearly have a Title VII case. I’m looking at that thinking wow. If the supreme court lowers the bar of what constitutes an adverse employment action, if you mash that up with the SFFA case, then that really means that really de minimus actions of I had a person of color retreat, or I had this affinity group that excluded people on the basis of race or gender would be actionable under Title VII, but I also want to point out that what’s sauce for the goose is sauce for the gander. Muldrow is a traditional discrimination case. This woman is a woman who’s saying I was discriminated against because I was a woman. If you lower the adverse employment action standard for men, you’re also lowering it for women.
That means that if we want to hem the liberal or progressive equivalent with James Ho, that should mean that a woman who says you repeatedly interrupted me as a man in this meeting, and then you appropriated my idea, we’ll have a Title VII claim, so that’s what of interest. I know, right? Can you imagine how many lawsuits would be filed? Those are the stakes of the Muldrow. Whether or not we see the Justices come together on this one— It’s fascinating because I kind of think that Gorsuch, because he keeps flashing his textualist colors and trying to show that he is not a partisan hack, to Justice Barrett’s words—she wasn’t directing it at him, right? We’re not partisan hacks. We have to prove that we’re not partisan hacks. Justice Gorsuch I think has been trying to prove that he’s an uber textualist in the same commitments that drove him to SFFA for Title VI, but also for motivating him to decide Bostock, which was a case that included gender identity and sexual orientation under Title VII’s prohibition on sex discrimination in 2020. I might actually say I’m a textualist, and therefore I’m for this, and the liberal justice might be like, ‘Alright, if this is what you want, then we’re going to invite a flood of lawsuits from the left on these issues.’
Jamie: This isn’t a question because I know we’re running out of time, but your good for the goose, good for the gander is something I thought about with SPA that we might see a little more of that on the other side, which I know we’re going to talk about gun regulation, so may be one thing we’ll see in the future.
Tritia: Well then, moving to gun regulation, Melissa did you want to talk about Rahimi?
Melissa: There’s a [inaudible] case pending on the docket. It’s been slated for oral argument in November, called The United States v. Rahimi, and it involves an individual, I believe in Texas in the Fifth Circuit, who has been accused and has a civil proceeding against him for domestic violence, and as a result of that civil proceeding, under a federal law, he’s prohibited from being in possession of a firearm. He was found in possession of a firearm. He opened fire with a gun in public twice and was prosecuted and subsequently convicted. After the Bruen decision in 2022— Bruen was decided the day before Dobbs, and it very much expanded the scope of the second amendment to possibly even permit the public carrying of firearms without any regulation.
After that decision was announced, the Fifth Circuit, which previously had confirmed Rahimi conviction, went back, vacated that judgement, reheard the oral argument in the case, and redecided the case and determined that the federal statute under which he had been convicted was no longer valid in light of Bruen, and they engaged in this very detailed history and tradition analysis, which is interesting since no one on the Fifth Circuit is an actual historian, but they engaged in this analysis and determined that all of the previous analogues, the earlier historical antecedents of the government had put forth as analogues to this law prohibiting someone who has domestic violence restraining orders against them, they weren’t [inaudible]. They aren’t analogous, and therefore there was no history and tradition excluding those who were convicted of or had been delt with civilly for domestic violence from having a firearm.
That case is now before the Supreme Court. The government is appealing that vacation of conviction, and it has real consequence I think for the court because it is an opportunity for the court to maybe dial back some of what it said in Bruen, or to ratchet it up and really open the door wide to eliminating the opportunity for states and localities to regulate guns, and it’s particularly important because while many on the right side of the court who favor gun rights concede that it is appropriate and constitutional to regulate guns in the context of criminal conduct—so felony possession laws are not in danger—there may be some slippage where it comes to civil proceedings that then lead to disarmament of individuals, and so this has true potential to open the door wide to allowing individuals where there is a civil proceeding against them to have their second amendment rights reinstated or made off limits going forward. And I will just note, in Bruen, the case reads very much in a masculinist tone. The court talks about the disarmament of black men in reconstruction, so there’s an interesting racial justice analogue to this, but Justice Alito in his concurrence talks about law-abiding citizens like dishwashers and doormen and orderlies who are at the mercy of thugs in the streets who have illegal guns.
It’s this idea of men standing their ground, and they mention that women, too, might have a gun, but it’s mostly men. I think Rhaimi is where we’re going to find out is this really a jurisprudence of masculinity or is there room in the constitution to protect women who are in truly threatening situations even though the constitution doesn’t specifically say that domestic violence orders or restraints are part of our history and tradition. Again, this goes back to Kenji’s point about whether we are wedded to tax or whether this is a document that might evolve with the country itself.
Tritia: To end this presentation on a positive note, we wanted to go towards Justice Ketanji Brown Jackson. This was her first term. She’s a MoFo alumni and the first black woman justice. What did we learn about her from watching her this term? Melissa, we’ll start with you because you were KBJ’s rookie year came out just yesterday, so we’ll start with you.
Melissa: We call her the rookie of the year because she was absolutely fantastic this year. I’ll be really brief. She was absolutely amazing. This was a historic appointment. She did not seem over-awed or [inaudible] by the fact it was a historic appointment. She came out guns blazing and there’s been lots of statistical analysis done on how much she talks. She is much more forthcoming than I think other justices have been in their first year. I think we’ve seen her make a real difference. She’s come together with some members of the conservative block in surprising ways. As someone who’s very interested in limiting the reach of the state in terms of criminal justice, she’s managed to find common cause with Justice Gorsuch who’s has the libertarian streak that comes out in a lot of ways in criminal law cases. It came together in some ways.
She’s also revealed herself to be a very astute tactician in terms of statutory construction. She has been masterful in some of the statutory construction cases like Talevski, which was a case dealing the Medicaid statute and whether or not certain kinds of payments might be made. That was a case at oral argument that looked like the court was going to do a standard move, which is to say there is a right to exercise this law, but there’s no remedy when the government prevents you from doing so. She actually turned that around with a very brisk and austere opinion that was perfectly on point and managed to get more than just a bare majority to join her. She was absolutely pivotal, I think, in Allen v. Milligan in marshalling those arguments and using the master’s tools to dismantle the master’s house and to make clear of that the 14th Amendment was not intended to be race-mutual or colorblind. It was purposely meant to bring newly-freed slaves into the body of politics, and for that reason, it can’t be understood as colorblind or race mutual and brought the same kind of energy to students for fair admissions, and I think is the reason we have that really usual paragraph at the end of the opinion, so I think a banner rookie-year—I don’t know that we’ve seen anyone make such a forceful entrance to the court, and I’m really looking forward to what she’s going to do in her Sophomore year. There’s no Sophomore slump year.
Tritia: Dahlia, anything you wanted to add?
Dahlia: No, I think the signal story is the absolute flawless grasp of progressive originalism, which we have not seen at the court. Really somebody who’s all in on the idea that if we read the reconstruction amendments as they were meant to be read, we win more than we lose, and I think she’s just been fearsome in terms of making that case, and then I’m just going to make the feeling ballpoint, but I think that she—I often laugh that the EQ at the court is sometimes a little lacking—and I think ‘Oh, I love Justice Breyer beyond all things,’ but the EQ, not always spectacularly in terms of reading the room, and she is just unbelievably good at doing the thing that I think both Chief Justice Roberts and Elena Kagan do phenomenally well, which is read the room, where’s this moving, what might an intervention be here that I could do that could change things, and it really—actually you can see not just that it plays out because it changes how the Chief rates his affirmative action opinion, but you can actually see her doing the thing that is very much a Kagan move of, ‘If I’m not just thinking about what I’m going to say next, but instead listening to where I have an opportunity, I might be able to do a thing,’ and it’s really, my God, so—really fun to watch a person who’s in this iterative stance in terms of I want to be in this fight, and I want to be in this game, and if I do the right thing, I could move things along in a different way, and believe it or not, we just don’t get a ton of that at the Supreme Court.
Tritia: We might have time for one or two questions from our digital audience. I think Ashley might be online to read them if we have any.
Ashlee: Yes, thank you so much. It’s been an awesome panel. We do have questions in the chat, but we’ll do just one, given time. The question is how can we synthesize the court’s notion that all racial discrimination should be eliminated within the academic landscape against the recent social justice movements sparked by the murder of George Floyd or the woeful and persistent dearth of diverse professionals in the legal profession?
Jamie: That may be a rhetorical question.
Kenji: I think that’s an incredibly good question that actually directly engages with Chief Justice Roberts and the conversation that Chief Justice Roberts is having with Justice Sotomayor. Justice Sotomayor says you can say everything that you want about eliminating race discrimination, eliminating all of it, which is what the Chief says, but diversity is now a fundamental American value. It’s housed in so many different institutions in our society than the fight for racial justice will endure. I hear an echo of that in that. Not just like it was the voice of God as a question—But no, I think that that’s a really wonderful place to end.
And the way I think about this is a little bit like that old conundrum about what happens when the irresistible force meets the immovable object because on the one hand what the court says—the highest court in the land is particularly constitutional announcements is there is a civil force. We have to comply with the law. On the other hand, when the court says things that flouts these fundamental convictions that we have, it’s dealing with an immovable object. The diversity is a fundamental value, and no amount of the court’s naysaying is going to change that, so I always understood the answer to that childhood puzzle to be the object changes because that means that the force has not been resisted. It’s been absorbed, and the object has not been moved; it’s been transformed. I think that’s what we’re going to see with diversity, equity, and inclusion. It’s to say it’s not going to go away, it’s just going to morph into a different form that it will endure.
Tritia: Thank you, Kenji. That was a nice note to end on.
Dahlia: So beautiful.
Ashlee: Jamie, we’ll turn over to you to close out the session.
Jamie: We don’t have time for any audience questions; I’m sorry, but the panels might stay a little bit and answer a few if you have them. I really want to thank the three of you. We just scratched the surface of what is an unbelievably fascinating discussion on so many subjects, and more cases as we know to come this term. Thanks to all of you for being here on Zoom and in person, and to the Allies Network and our Diversity and Inclusion group for putting this together. Thank you. It really taught all of us so much. For those—I hate to end on this very procedural note, but you can bill your time to 99912-67, and you’re going to get a survey where you can give feedback on today’s presentation. But, with that, thank you, and we hope that hopefully you have time for a couple questions from the audience.
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