The U.S. Supreme Court had another momentous term. From affirmative action in college admissions to critical administrative law and First Amendment cases, the court again handed down a string of decisions that will resonate for generations.
In this episode, veteran court analyst Joan Biskupic returns to break down the term with Berkeley Law Dean Erwin Chemerinsky. Biskupic has covered the court for decades and is now CNN Senior Supreme Court Analyst. Her most recent book, Nine Black Robes: Inside the Supreme Court’s Drive to the Right and Its Historic Consequences, was published in April.
“More Just” from Berkeley Law is a podcast about how law schools can and must play a role in solving society’s most difficult problems.
The rule of law — and the role of the law — has never been more important. In these difficult times, law schools can, and must, play an active role in finding solutions. But how? Each episode of More Just starts with a problem, then explores potential solutions, featuring Dean Erwin Chemerinsky as well as other deans, professors, students, and advocates, about how they’re making law schools matter.
Have a question about teaching or studying law, or a topic you’d like Dean Chemerinsky to explore? Email us at email@example.com and tell us what’s on your mind.
ERWIN CHEMERINSKY: Hello, listeners. I’m Erwin Chemerinsky, Dean of Berkeley Law. And this is More Just, a podcast about how law schools can play a role in solving society’s most difficult problems. On June 30, the Supreme Court concluded another momentous term. It ended affirmative action by college universities, it struck down President Biden’s loan forgiveness program, it recognized the first right for people to violate state anti-discrimination laws when they engaged in expressive activity.
But it also enforced the Voting Rights Act and rejected the independent state legislature theory. Once more, it was a term that will affect so many people in this country in a profound way. To discuss this term, I’m delighted to be joined by Joan Biskupic. She’s covered the Supreme Court for many years and is now senior Supreme Court Analyst at CNN. She’s also the author of many wonderful books on the court and its justices. Her newest book is terrific and it was published in April, Nine Black robes; Inside the Supreme Court’s Drive to the Right and Its Historic Consequences. Welcome back, Joan. And thanks so much for being here.
JOAN BISKUPIC: Thank you. Erwin. Great to be with you and with our audience.
ERWIN CHEMERINSKY: What was your overall take on the term? What themes did you see in it?
JOAN BISKUPIC: I have a couple of things I will point out. In part, it’s a continuation of where the supermajority was last session. But this time around, Chief Justice John Roberts demonstrated that he truly has his grip back after losing out on the speed of the Dobbs decision last session that reversed Roe v. Wade.
As you remember, he did not want the court to move as far and as fast. And that was a huge loss for him even though he had won in so many other areas last session. This session he really cleaned up. He achieved his long held goal of eliminating campus affirmative action, but he hedged on other agenda items that I’m sure we’ll discuss the whole field there on racial issues.
The other thing is that he even though the court didn’t fulfill the really muscular potential that it has right now with the conservative supermajority, it took steps in a direction that likely will be followed through over the years. I do think these justices are aware that they’re appointed for life. A couple of them have a sense of urgency, notably Clarence Thomas and Samuel Alito.
But I think the other justices, including the Chief, are trying to move more incrementally but still to the right. Obviously continuing the pattern on race, religion, and the contraction of regulatory power. Finally, I just want to address the new drama that I was able to see. They’re back in the courtroom not just for oral arguments, but to read their portions of their opinion from the bench. And that includes portions of dissents.
And I was fortunate enough to witness all the drama that played out between the left and right side as we had these dueling opinions voice from the bench with not many people in the courtroom because folks can now get the rulings immediately online. But I felt that what I was able to witness really show the divisions between justices and the dueling views for America.
And then finally, I actually do have one last thing that we will elaborate more on when we get to the student loan case. But I was surprised about the Chief Justice’s statement about criticism of the court. I thought that was awkwardly phrased. Strangely awkwardly phrased for a man who is such a stylist. But he obviously was stung by Justice Kagan statement in dissent that in every respect the court was exceeding its proper limited role in our nation’s governance.
ERWIN CHEMERINSKY: And I think his exact words were disagreement is not disparagement. But I’m not sure that anyone was disparaging the court. So I had your sense it was an unusual way of phrasing that. To what extent at all do you think the context surrounding the court its low approval ratings? The ethical controversies played a role in that or anything with regard to the term?
JOAN BISKUPIC: I think that the Justice’s ethics issues have really overcome a lot of the public coverage of the court. You know, it’s been I think a kid that it’s easier for some readers to understand issues of travel on private jets rather than the intricacies of the Administrative Procedures Act which is the kind of thing that I might be more focused on, and the consequential impact on America from these rulings themselves.
But I think we can’t dismiss the fact that there’s been a drumbeat of investigative stories about the justices off bench behavior stories that have gotten the attention of members of Congress who have been holding hearings about the justices lack of a formal ethics code. And that is something that certainly has gotten to individual justices if not all of them.
And then part 2 to this when you ask about the atmosphere that the court is ruling in, we also had a very inconclusive conclusion in January to the justices leak investigation. Last year what had shrouded the end of the term was the leak of the Dobbs abortion ruling overturning Roe v. Wade.
And the justices hired people and engaged in a months long investigation and came up empty handed. But at the same time that they came up empty handed, the report by Marshall Gail Curley showed just how lax the justices have been in various security protocols. And they’re obviously trying to change things, but certainly it showed a certain amount of sloppiness on the part of justices who are already just so security and secrecy minded, but actually not able to follow through as they needed to for that.
ERWIN CHEMERINSKY: It’s a great point. There were more unanimous cases this term than last. 47% of the cases were unanimous compared to 28% a year ago. The 47% seems high though after the whole last decade it’s averaged about 43% being unanimous a year. So last year was more the outlier. But still, it’s notable that almost half the cases were unanimous. Last year there were 18 6-3 decisions, this term only 11 6-3 decisions. Should we make much of those statistics?
JOAN BISKUPIC: You know, Erwin, I personally am not impressed by such statistics. I think it’s good to have them to show– to let our audience know that most of what we focus on are the divided cases of the cases that seem to have more tensions between both sides and are likelier to affect Americans.
But they do agree as you pointed out agree entirely in many of the cases. But those are the cases that might be easier in some regards and less impactful. And the one thing I always stress to people is that all cases are not created equal. We’ll even use Dobbs from last year that 5-4 decision that where the chief was squeezed out. That case has no equal right now in terms of what it did. And then let’s just take this term.
You can easily point to a dozen cases where there wasn’t the kind of friction we saw in the Harvard and University of North Carolina affirmative action cases. But which ones will really change life as it’s been for decades? So that would be my only caution although I do think it’s good to mention those statistics because the justices themselves like to play them up to say watch what you all focus on.
ERWIN CHEMERINSKY: You’ve alluded to a couple of times the affirmative action cases. And you mentioned just a moment ago the decisions that will really affect people’s lives. I think there’s no doubt that the ruling in students for fair admission versus the President Fellows of Harvard College is going to affect who gets in and who doesn’t get in to many schools.
It’s estimated that a significant percentage of selective college universities in the country were engaging in some form of affirmative action. In your prior wonderful book, The Chief, you talked about Chief Justice Roberts having an agenda with regard to ending affirmative action. Everyone remembers his famous decision in 2007 in parents involved with community schools.
We said the way to stop discriminating based on race is stop discrimination based on race. One interesting thing about the case is never does Chief Justice Roberts explicitly say that the earlier decisions, regions of California versus Bakke, Grutter versus Bollinger, Fisher versus Texas at Austin are explicitly overruled, why not?
JOAN BISKUPIC: Oh, man. I’m glad you asked about that because I’ll tell you what happened to me in the courtroom. You know, I’m listening to him. He’s reading these very robust excerpts from his opinion which essentially eviscerated campus affirmative action. There’s no going back. I was so aware of that.
And part of my job here was after I heard these readings from the bench, I had to quickly run outside the court building, hop in a waiting car, and be driven back to the CNN Bureau where I had to immediately go on air and say what I had observed in the courtroom. Which was a lot of fun. I probably should have caught my breath a little sooner before I went on air, but you know, I unspooled what the chief had said, what Justice Thomas had said in his concurring opinion, and then what Justice Sotomayor had said in dissent.
And after I was finished speaking, another commentator said, yeah, but the Chief didn’t overturn Grutter and Bakke. You know, which I hadn’t read the opinion yet so I hadn’t seen that he had done that. And I said, that’s amazing that if he wants to protest that he hasn’t overturned those, it’s news to his fellow justices because both Clarence Thomas and Sonia Sotomayor said from the bench he’s overturned these.
And the tone in the courtroom from the chief himself was, they are so history. And I think I don’t know why he does that. I find it a bit disingenuous because there’s no way that those two precedents stand given what he said. Now, there’s sometimes he will say, well, we were never really following them.
And there’s a way that he minimized those precedents. He also frankly diminished the stature of Brown v. Board of Education in his written opinion and also from the bench. So I think maybe he feels it’s important to preserve the notion that the court isn’t reversing a precedent from 1978, but come on, no lower court can abide by Grutter anymore.
ERWIN CHEMERINSKY: Yeah, I agree with you. A word of disingenuous. Not only do all of the other justices see it as overruling Bakke, and Grutter, and Fisher, but it clearly does. Those cases said that diversity is a compelling interest. Now, the court says it’s not. Those cases said there should be deference to college and university administrators, now the court said there shouldn’t.
Those cases said race could be used as a factor in admissions decisions to benefit minorities. And the holding of this case is they can’t. And yet he never adds the sentence, and we are overruling those decisions. I wonder if he wanted to avoid giving the media that soundbite it had a year ago in Dobbs.
JOAN BISKUPIC: Perhaps. But he can put whatever gloss he wants on it. I think we just have to cut through that and say, what’s left of the 1978 case, Bakke. And then I’m glad you even mentioned Fisher which just what were we back in 2016 with Anthony Kennedy affirming both Grutter and Bakke.
So those are out the window. And the proof is in not just the reaction from his fellow justices who had a little bit of get real approach. [CHUCKLES] both sides those further to his right like Clarence Thomas and those to his left like Sonia Sotomayor certainly said they believe those precedents are gone.
But look at what we’ve already heard from college administrators and from activist groups. Look at what has happened since in terms of schools already changing their plans. And one potential upside for people who are so invested in what the look of college campuses will be going forward there’s now new scrutiny over legacy admissions that is certainly important.
And I think that we have to see what’s going to happen in the workplace because some businesses are taking this ruling with a certain sort of message for what they can do. Certainly, civil rights groups don’t want businesses to change diversity programs. But this thing is going to reverberate for many years.
ERWIN CHEMERINSKY: 17 attorney generals from Conservative States sent letters to Fortune 500 companies, and Senator Cotton from Oklahoma sent letters to companies into major law firms saying that this changes the law with regard to employment discrimination under Title VII. And it was stunning to me because this opinion says nothing about that. It may portend to change in the future, but it hasn’t yet changed that law. One of the things that college universities are focusing a lot on is something that Chief Justice Roberts said at the end of the opinion. Let me quote it for you.
“Nothing in this opinion should be construed as prohibiting universities from considering applicants’ discussion for race affected his or her life, be it through discrimination, inspiration, or otherwise. But universities may not simply establish through application essays or other means the regime we hold unlawful today.” I mean, it seems he’s trying to say, yes, race can be considered in a particular way but not in another way. And I’m wondering how college universities are going to go about implementing that let alone how a court’s reviewing their decisions going to be able to apply that.
JOAN BISKUPIC: Yes. It’s a tricky proposition for all involved. And I believe he was responding in part to questions that had come up during oral arguments about what can students put in their essays? There are plenty of students of all color who feel that their individual identity, their racial and ethnic identity has shaped them in some ways that might be important to reflect in an essay.
And it seems like that option is still available. But the chief also said in his opinion and from the bench that schools shouldn’t try to do indirectly what they’ve been now forbidden to do directly. One of the things I want to mention, and this just goes to the day of the ruling and the kinds of conflicting responses that were immediate. A civil rights lawyer who has been active in this case who I don’t want to name but who has a stake in a lot of the litigation that’s continuing as well as the UNC and Harvard cases as they were playing out called me.
I mean, maybe he suspected I was on the– going on the air. But his message to me immediately was, don’t make it sound like all doors are closed because we’re going to still try to argue that schools can do certain things that will be able to account for race in some dimension. And that people, academics, and administrators, and students, and families shouldn’t be led to believe that it’s totally– race and ethnicity cannot be considered at all. And I said fine. I could tell that everybody was trying to get their spin on it immediately. But it’s frankly, things are all in the hands of these college administrators and the people who might try to challenge them down the road.
ERWIN CHEMERINSKY: I think that’s right. One of the things we’re leaving this case, there’s a great deal of discussion as you alluded to about what lessons to draw from history. The majority and especially Justice Thomas want to say the lesson to be drawn, and just Thomas puts it right, is the Constitution requires that the government be colorblind.
Justices Sotomayor and Jackson draw very different lessons from history. And I thought especially the exchange between Justice Thomas and Justice Jackson was quite pointed keeping in mind they’re the second and third Black justices to ever serve on the Supreme Court. What did you make of all of that discussion?
JOAN BISKUPIC: I totally agree. And I think it’s worth anyone going back to read those two opinions which were not the main opinions. Thomas’ was obviously a concurrence and Justice Jackson was the second dissent. Just as an aside, justice Sotomayor as she was reading portions of her dissent on behalf of the three liberals from the bench then segued into Justice Jackson’s and said that she wanted to let the spectators in the courtroom know what Justice Jackson was saying.
But what was interesting to me is exactly what you say you had these two African-American jurists, Justices Thomas and Jackson kind of going at it and in very personal ways. I can’t remember ever when frankly anyone read parts of his concurrence from the bench let alone Justice Thomas who usually doesn’t even read a dissent from the bench in heated cases.
And it was an incredibly personal statement he was making. He referred to himself– he referred to his youth in the Jim Crow South. He really wanted to point up Justice Jackson’s notion of the race consciousness of society. And that spurred her. So I thought it was interesting that Justice Jackson, our first African-American woman justice what she wrote so provoked him. And as I say, I think it’s worth a read and both of them putting down markers that I think will continue for probably a decade at least as long as Justice Thomas serves.
ERWIN CHEMERINSKY: I agree. Unlike last term where I can’t identify any major case where the liberal position won, it did in two election cases this year. I’m interested what you thought of each of them. One was Allen versus Milligan. Came from Alabama. Alabama is a state where the population is 27% Black individuals.
The Alabama legislature engaged in districting where there’s only one district that was majority Black. So only one of the seven congressional seats was likely to be a Black representative. The Supreme Court 5-4 found this violated the Voting Rights Act. It was Robert’s writing joined by Sotomayor, Kagan, Kavanaugh and Jackson. Thomas and Alito both wrote very strong dissents which would have dramatically changed the scope of the Voting Rights Act. Were you surprised at the result? What do you make of it?
JOAN BISKUPIC: I was surprised. I have obviously traced the Chief’s views of Section 2 of the Voting Rights Act dating back to his time in the Ronald Reagan administration when he wanted to diminish the scope of Section 2. And then of course, we know what he did in 2013 in Shelby County versus Holder where when he eviscerated Section 5. The preclearance provision for states and localities that had had a history of race discrimination at the polls.
So I was anticipating that he would continue where he had been on Section 2. Plus we should remind people what they did just two years ago in a Section 2 case from Arizona where they made it very hard to bring these race discrimination cases in voting practices. So I think when I step back and figure out why I was wrong and suspecting that the Chief was going to be consistent on his criticism of Section 2, I would say I think two things and they both relate to Alabama. Alabama pushed way too hard on this. Alabama on the ground has a lot of problems with race as you mentioned, Erwin. 27% of its population is Black yet it only has one of seven congressional districts that are majority Black districts.
The lower court panel that had said that the state lawmakers had likely violated Section 2 was made up of two Trump judges, and then a third judge who all unanimously said that the state was out of line here. That the state had engaged in race discrimination. So and Alabama was not hedging at all. It was pushing very hard on that.
Then I do have to say that it’s hard not to think about what the Chief was also doing in students for fair admissions. That it was– he was going so far on race consciousness in campus policies that maybe there was some interest on his part to not just beat back very extreme view of the Alabama lawyers, but also to make sure that in some voting issues that there is– that they’re going to be able to guarantee some racial fairness.
ERWIN CHEMERINSKY: I hadn’t thought about the interrelationship of the two cases in that way. It’s interesting in thinking about Allen versus Milligan to know that since the case came down, the Alabama legislature has engaged in new districting that still keeps only one majority Black district. I always reluctant to ask for predictions. But I wonder if this will lead to a Cooper versus Aaron moment in the Supreme Court where the justices all say lower courts, state legislatures, you have to follow Supreme Court decisions.
JOAN BISKUPIC: Well, I think there’s a possibility there because there’s a chance that they will see this as some defiance. And what the challengers to Alabama are asking for is not [LAUGHS] huge. It’s just saying better representation, avoid race discrimination, and it’s a state that has had so many problems in this regard.
Obviously, the Shelby County case came from Alabama. Alabama has been the scene of the crime, so to speak. And no matter which side of the ideological divide the justices fall on, they’ve got to be aware of resistance in Alabama. And that is not to belittle Alabama lawmakers belief that what they are doing is 100% fair.
And as the initial filings that have come in from the Department of Justice, they’ve sort of pointed up what the Supreme Court said and noted, of course, the Supreme Court didn’t say you have, to have, to have to create that second district, but you have to take into consideration all these factors that are on this go round.
It appears the Alabama legislature has yet again bypassed. So I don’t think there’s going to be a shift in the Supreme Court’s view that Alabama has to change things. But it does raise the question of whether Brett Kavanaugh who was– looked like a little bit of shaky fifth vote here if he would stick with it.
ERWIN CHEMERINSKY: Well, he wrote a concurring opinion that raises real questions about Section 2 of the Voting Rights Act going forward. He said times and things have changed, so maybe we should reconsider Section 2. Which was, of course, what Chief Justice Roberts said in the Shelby County opinion that you pointed to. So that does give the sense that Kavanaugh was a shaky fifth vote in this case.
JOAN BISKUPIC: Yeah. He was the fifth. And I think that they’ve laid down a strong enough marker in the case that came out in June that it will be hard to backtrack. And I don’t think they’d want to backtrack.
ERWIN CHEMERINSKY: Let me talk about the other election case, Moore versus Harper. I have to say it was the decision I was most worried about had the Supreme Court embraced the independent state legislature theory. It says that the legislature of the state gets not only the final word, but the only word with regard to drawing congressional districts, and maybe even with regard to allocating electors the electoral college. Chief Justice Roberts majority opinion in an emphatic rejection of the independent state legislature theory.
There were a couple of things, though, that were surprising to me. One is that the court decided the case at all. The North Carolina Supreme Court’s ideological composition had changed and went from a 4-3 Democratic court to a 5-2 Republican court. And the new version of the court overruled the decision of the earlier North Carolina Supreme Court. And I’m still puzzling over why didn’t that make this case moot?
JOAN BISKUPIC: [LAUGHS] It probably did. [LAUGHS] It probably did make it moot. But clearly, a majority had an incentive to decide this case outside of a presidential election year. I thought there was a lot of fancy footwork in deciding to hear this case because the Solicitor General said, you know, look, you don’t have a final ruling before you– I think there were strong arguments from both sides. But of course, there were arguments from both sides to resolve it also.
And I think that the justices who came together– and as you know, it was an ideological cross-section. They all had their incentive to get it done. And the reason you feared this case is because it was a very radical position that North Carolina was pushing. This was a view that had been inspired by some of the Trump lawyers during the 2020 election cycle.
It was a view that tracing back to Bush v. Gore and the statement by three of the justices led by Chief Justice William Rehnquist that had no traction for two decades until the Trump-Biden election dispute. So it was– and it was also one that I think could have such an impact on state powers to be able to say that State court judges could not put a check on state legislatures based on their state Constitution. Was really a radical notion.
ERWIN CHEMERINSKY: I hadn’t thought about the reason why the Supreme Court might want to decide the case. Is the issue would come up and resolve it outside of a presidential election, and outside of a context that could decide the presidential election. The other thing that was puzzling to me was at the very end of Chief Justice Roberts’ opinion, I read the opinion as an emphatic rejection of the independent state legislature theory and wrote an op ed saying this.
But then I read op ed said people I really respect saying, yeah, but look at the end of the opinion. I’ll read the language. It says, “state courts retain the authority to apply state constitutional restraints when legislatures act on the power conferred upon them by the elections clause. But federal courts must not abandon their own duty to exercise judicial review. In interpreting state law in this area, state courts may not so exceed the bounds of ordinary judicial review as to unconstitutionally intrude on the role. Specifically reserved state legislatures by Article 1 Section 4 of the Constitution.” Should we be concerned about that language?
JOAN BISKUPIC: I think it will depend on how the Supreme Court itself interprets it down the road. Chief Justice John Roberts– you know, that whole opinion kind of rang with his notion of federal judicial authority opening with Marbury versus Madison. You know, that ending part that you refer to. I think that that could be a ticket for federal judges and the Supreme Court to ensure it has the last say on these issues.
But I think that overall the opinion should provide mostly confidence for folks in the election law area given what it mostly did in terms of rejecting the radical independent state legislator theory. Maybe that statement at the end was the price of compromise between the left and the right or the chief and all others because it was a very chief-like thing to write. But I think it’s hard to know how it will play out until we see just whether some state judges might go rogue. Which was kind of something that came up during oral arguments.
ERWIN CHEMERINSKY: The narrower way of reading it is if a state court is violating the Constitution, of course, federal courts can step in. And that’s how I’d like to read it. Other commentators say it’s much broader than that in terms of what does it mean that state courts may not so exceed the bounds of ordinary judicial review? But I agree with you. We have to wait and see.
I want to talk about the two cases from the last day of the term. They were both dramatic conservative victories. I think both are going to have huge implications for the future. Let me start with the student loan case, Biden versus Nebraska. This, of course, involves a federal statute, the HEROES Act, that says that the Secretary of Education can quote, waive or modify student loan obligations in an emergency.
President Trump used this authority early in the pandemic to suspend the need to repay certain student loans. President Biden continued it and they made it permanent. Affects about 43 million people. They were getting up to $20,000 in student loan relief. And the Supreme Court in a 6-3 decision said that the president lacked the authority because this is a major question of economic and political significance, and Congress hadn’t given sufficient guidance. What do you make of the case?
JOAN BISKUPIC: Well, I would start with the threshold question about legal standing which fortunately the kinds of people who listen to your podcast are what– will know what we’re talking about even though that’s not the sexiest, most exciting part of this decision. But it is the threshold question that the justices must address. Did these state attorneys general did they have grounds to even bring these cases?
And there was a pretty good argument that there was no real injury here. And it seemed like during oral arguments in this case and then when we saw the opinion that this six justice majority definitely wanted to get to the core question and brushed aside concerns about whether there was legal standing here.
And I thought that once they did that there was no turning back. And that this opinion had a lot of the same themes as the West Virginia versus EPA opinion of last year where the justices wanted to restrict the executive branch federal regulators in an area that in the past would have been left to people who are experts in the field. Who know some things and who in the past Congress has allowed to have some breathing room with statutes.
That it goes to just how specific is Congress going to be in these areas? And if you know the legislative process, which one of the people who knew the legislative process best is now gone and that’s Stephen Breyer. But for justices who understand the legislative process, they realize that Congress is never going to be able to be super specific in legislation.
ERWIN CHEMERINSKY: Here, that was the point of Justice Kagan’s I think scathing dissent. She says one of those basic principles of interpretation is when statutory language is clear it has to be followed. The statute says the Secretary of Education can quote, waive student loan obligations. Kagan says, how much more specific can Congress be than that? Yet Chief Justice Roberts says waive has never been taken to be as broad as President Biden and the Secretary of Education have interpreted it.
I also think this focus on the major questions doctrine is so crucial going forward. I doubt most law professors or federal judges even heard of the major questions doctrine until a few years ago. And now as you point out, there was West Virginia versus EPA a year ago, and now Biden versus Nebraska. Do you see this as part of a larger theme of the Supreme Court and its relationship to the administrative state?
JOAN BISKUPIC: Oh, absolutely. Absolutely. First of all, the three appointees of Donald Trump were chosen in part because of their views on the so-called administrative state. White House counsel, Don McGahn, made that very clear. We tend to rightly focus on a lot of the social policy questions like abortion and religious liberties. But this is the area that’s very important to business and obviously important to regulators at all levels. Is just how much authority the federal bureaucracy can have in American life.
And you point out that Justice Kagan dissented in both the environmental case of last year and the student loan case of this year. And there were a couple of lines that she used that I thought reinforced the notion that this major questions doctrine is in some ways contrived in these times. And this heightened requirement for specificity is something that had not been required before.
And she said– last year she wrote, “the court appointed itself instead of Congress or the expert agency the decision-maker on climate policy. I cannot think of many things more frightening.” And I don’t have it in front of me, but there was a similar line in the student loan case of– what’s the court doing delving into something that the Department of Education is trying to solve here?
ERWIN CHEMERINSKY: I had the chance this spring to speak at a conference of individuals who are going to be clerking for federal courts all over the country. And I said to them three of the most important words you need to know are major questions doctrine. Because the Supreme Court still hasn’t told us, what’s a major question of economic or political significance? The court hasn’t told us what sufficient congressional guidance to meet the major questions doctrine. So it’s just opened the door to challenges to every kind of administrative regulation.
And though we’re focusing on last term, the court’s taken for cert for next term case Loper Bright Enterprises versus Raimondo of whether to overrule the Chevron doctrine. The Chevron doctrine is the idea that when a federal agency is interpreting a statute that governs it there should be deference to it. This all seems to me to be exactly what you’re talking about a court that really wants to change the very nature of the administrative state.
JOAN BISKUPIC: Oh, I think we’ve seen it repeatedly. And we saw it during some of the COVID measures too. Various requirements, there were a lot of disputes over masks, and vaccinations, and all sorts of requirements on whether they protected public safety or we were meddling too much with affairs usually left to the state. Those played out in religion cases, but they also played out very much so on the power of Federal Regulations.
ERWIN CHEMERINSKY: It’s a great point. The other case that came down, June 30 was 303 Creative versus Elenis. I think everybody’s familiar with it. Colorado has a law that prohibits business establishments from discriminating based on race, sex, religion, sex orientation. Lorie Smith has business designing websites. She wants to expand it to design websites for weddings but says she doesn’t want to design websites for same sex weddings because of religious beliefs.
The Supreme Court reversing the lower court’s rules in favor of Lorie Smith does so on free speech grounds not focusing on the religion question which it didn’t take. And Justice Gorsuch writes for the court and says, it would be impermissible compelled speech to force or design websites that she doesn’t want to do. How far does this case reach?
There’s a narrow way of reading it to say, well, the court really focused on all the stipulations that Colorado had made. But then there’s a broader way of reading it that says, anyone’s engaged in expressive activity doesn’t have to provide service when they don’t want to because it’ll be compelled speech. How do you read it?
JOAN BISKUPIC: Well, two things. First of all, we know what kind of path the justices have been on regarding challenges by religious conservatives to government policies and in a range of areas. This case took further the Masterpiece Cake case back in 2018 also from Colorado for a more definitive ruling. But it’s also part of a piece. And you add to last year’s two rulings, one favoring the coach who wanted to pray on the 50 yard line after a public high school football game.
And the Religious Funding case from Maine that said that if Maine was going to give certain funding to public high schools also had to go to religious schools too. The public financing cases, the prayer in public form cases that division between protecting certain classifications based on race, sex, sexual orientation, versus religious liberties. And I know you’re rightly saying it’s free speech but it was brought by a woman who said that it was her Christian views that would stop her from wanting to create a website for same sex couples.
So I would say that this case has to be seen in that larger pattern. That said, Justice Gorsuch from the bench that day just stressed all the stipulations that Colorado had made, and maybe it will be narrow going forward. But this court has been on a certain path. And one thing I was very struck by as the justices read their dueling opinions, Justice Gorsuch from the majority seeing the entire case through the eyes of someone who as he portrayed it would be forced to– was not even be forced yet.
She was worried. Remember, this was a pre-enforcement challenge to this law. We’re not even sure what Lorie Smith of 303 Creative really was going to do or exactly what the state was going to enforce, but she said she was worried about any kind of liability under the state public accommodations law.
So he saw the case entirely through her position as a Christian who wanted to be able to protect her creative expression. Justice Sotomayor saw it as part of a line of cases that we know from the ’60s where public accommodations laws were flouted to her Blacks and other racial minorities by business people who just didn’t want to serve them.
And she said this is the first time that a public accommodations law can’t be enforced based on a protected class. So this is definitely in that category of to be continued, and there is a chance that maybe this case will not end up being a strong precedent for related ones. But I think that already we’ve seen challenges out in the States based on this. And we know that this court majority does think that religious conservatives are under siege and need more protections.
ERWIN CHEMERINSKY: Though it would seem it’s not just limited to religious beliefs because of the court’s focus on somebody, can’t be forced to engage in speech they don’t want to, and it’s not just limited to sexual orientation. What if Lorie Smith said I believe interracial marriage is wrong and therefore I don’t want to serve an interracial couple? I don’t know how the court’s going to cabin this based on the stipulations given the breadth of the language in Justice Gorsuch opinion.
JOAN BISKUPIC: Yeah, absolutely. Even though he stressed all the stipulations, it’s still a very broadly written opinion.
ERWIN CHEMERINSKY: One other case comes to mind that fits with the pattern that you point to with the Supreme Court, religion, and there was a case that didn’t get much media attention because it came down on June 29. The same day as the affirmative action cases. But it sure supports the theme you were looking at. This case called Groff versus DeJoy about when do employers have to provide accommodations for employees’ religious beliefs and practices?
In 1977, the Supreme Court said employers don’t have to do more than would be a minimal burden. I mean, more than a minimal burden the employer doesn’t have to do it. And now Justice Alito for a unanimous court says employers have to provide the accommodation unless it would be a substantial cost to them. That’s a huge change in the law.
JOAN BISKUPIC: Yeah. And as you said, it was unanimous. So there’s a chance that maybe the more liberal members are hoping that it’s not taken as far as it could be, or they might have just thought, look, we’re not at least the court was an outright reversing precedent. But it’s hard to know what kinds of concessions are won behind the scenes when we see a final product that’s unanimous like that.
ERWIN CHEMERINSKY: It’s a great way to end the conversation. You have the advantage that you’re there in the courtroom. Do you have any observations about the relationships among the justices being there or the internal dynamics of the court that comes through just from being in the courtroom?
JOAN BISKUPIC: Oh, yes. You get to see how they respond to each other. You can see people rolling their eyes, people [LAUGHS] listening intently. I have to say speaking more broadly about all nine of them, they are desperately trying to get along. They are trying to– they close ranks against outsiders like academic critics or journalists, but they have a lot of internal tensions. And I think that they’re borne out in the cases we highlighted today.
And also, they’re borne out in their struggles over how they’re going to respond to these ethics controversies which are foremost in the minds of members of Congress. And I would say of course it’s Democrats who are leading the charge, but we live in a polarized world and that’s just the way it’s going to be for now.
But also there are members of the public who in poll after poll are voicing decreasing public approval of the Supreme Court. And I think that’s something that concerns the Chief and some of the other justices. So if they would like to present a more united front, but they’re using the summer to cool off, I’d say.
ERWIN CHEMERINSKY: Thank you, Joan, so much for this wonderful conversation. I hope you’ve enjoyed this episode of More Just. Be sure to subscribe wherever you get your podcasts. If you have a topic you’d like us to cover, please send an email to morejust– M-O-R-E-J-U-S-T– @berkeley– B-E-R-K-E-L-E-Y– dot edu to tell us your thoughts. Until next time, I’m Berkeley Law Dean, Erwin Chemerinsky.