(Final) Opinion Day: 303 Creative v. Elenis and Student Loan Forgiveness

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Matt Katz: It's The Brian Lehrer Show in WNYC. Welcome back, everybody. I'm Matt Katz, reporter in the WNYC newsroom. I'm filling in for Brian today. The justices on the Supreme Court issued opinions in the last cases from their term, and their July travel plans will now not be interrupted. As you've heard, the court ruled that creating a website for a same-sex wedding would violate the business owners free speech rights, and the court struck down President Biden's student loan debt forgiveness program. Justices Sotomayor, Kagan and Jackson dissented from both. Now we're joined one more time by our June court watcher, Elie Mystal, the justice correspondent for The Nation and host of their podcast Contempt of Court with Elie Mystal and the author of Allow Me to Retort: A Black Guy's Guide to the Constitution, now in paperback. Hi, Elie. Welcome back.

Elie Mystal: Hi, Matt. How are you?

Matt Katz: I'm hanging in. I'm curious to hear about this. I've been on the air, so I'm not caught up. Listeners, if you have questions or want to react to these final Supreme Court opinions, we can take a call or two at 212-433-WNYC. That's 212-433-9692. If you can't get through on the phone, you can always text us at that number as well. All right, Elie, the first opinion this morning was in 303 Creative vs Elenis. This is a case where a woman sued because she wanted to start building websites for weddings, but she said her religious beliefs prevented her from doing so because she didn't want to be forced to do business with same-sex couples because that would violate her free speech rights. The Court sided with her, yes?

Elie Mystal: Yes. Neil Gorsuch and the six conservatives on the Supreme Court are basically trying to make Plessy v. Ferguson great again. The decision in the 303 Creative case flies in the face of public accommodation laws that civil rights activists and leaders, and people in this country have fought, bled, and died for. Neil Gorsuch basically throws out those public accommodation laws, so long as the person refusing to make a public accommodation can say that they are practicing their free speech, and practicing a deeply held religious belief. If you can say that you have a deeply held religious belief that Black people shouldn't be served at your lunch counter, that's what this decision ultimately leads to.

In the instant case, it's about this woman, as you pointed out, who wants to make a website. She doesn't actually have a website, so there's a whole different legal technicality issue that the court shouldn't have heard this case at all because nothing has happened yet. This is a woman who prospectively is asking permission to discriminate against the LGBTQ community, but Gorsuch as he's done, actually, in the past, makes up a case that would be possible for the Supreme Court to hear and then rules in favor of the bigot. That's what happened.

Matt Katz: You brought up Plessy v. Ferguson, which involve racial segregation. Does this put LGBT people on a different plane than Black people as protective class in America, or does it potentially threaten the protected class of Black people in America? What is the connection there?

Elie Mystal: It's more the latter. Look, you got to remember. The segregationists always said that they had some deeply held belief, some deep reason for why they didn't have to serve non-white folks. They always have an argument there. Post the 1960s the courts have rejected those arguments, but here in the LGBTQ case, the argument is that because this woman doesn't want to serve same-sex couples, she is allowed to close off her public business.

I want to make the distinction really clear here. I am not saying there is no argument to say that a person who does not believe in gay rights has to use their free speech to support gay rights. If you're a columnist for The National Review, nobody's going to force you to write, "Hey, I actually think gay people are cool," because you obviously don't think that. Nobody's going to force you to do that. This is a person who has a public-facing business.

This is a person who is taking in apocryphal again, because she doesn't actually have it. She thinks about having it. This is a person who wants to be able to take in people who come in off the street. Well, that's a public business. What she's arguing-- think about it this way. If you want to have this woman's services, and you pay her money, she can just look at your money and say, "No, your gay money isn't good here," which is unconstitutional, which flies in the face of the 14th amendment.

I just want to make the point that you got to also think about this case in the context of yesterday's case, overturning affirmative action. What the Supreme Court is saying, with a straight face, is that the 14th Amendment's Equal Protection Clause does not allow universities to take into consideration race in college admissions, but it does allow bigoted website designers to-

Matt Katz: Take into account sexuality.

Elie Mystal: - discriminate. It does allow bigoted website designers to discriminate against LGBTQ people who come into their store. That is the law according to the conservatives on the Supreme Court. They're just wrong, and they're motivated by wrong reasons.

Matt Katz: Can you help reconcile this decision with the Masterpiece Cake case from a couple of years ago that seemed to come to a different opinion? How is this website design situation different from the wedding cake design situation?

Elie Mystal: Well, remember, legally Masterpiece Cakeshop was a punt. This is the case where the bigoted baker didn't want to bake a cake for a gay couple. The actual ruling in that was a punt. They didn't say that-- this is also happening in Colorado. Both Masterpiece Cakeshop and 303 Creative both out of the State of Colorado. In Masterpiece Cake, the Colorado anti-discrimination board said you are discriminating against LGBTQ people. The ruling in Masterpiece Cake was, "Well, we're not sure if the Colorado Board used the right standard when it was deciding what real discrimination is." That's a lot of legal jargony words to say punt, to say we're kicking this case back down to the Colorado Board.

In 303 Creative they said, "Oh, the Colorado Board isn't allowed to apply anti-discrimination laws, to apply normal, secular, anti-discrimination law to this bigot." That's the difference between Masterpiece Cake and 303 Creative. The court is preventing Colorado secular anti-discrimination law from applying because this woman says, "Oh, I really don't like gay people because Jesus told me not to."

Matt Katz: Let's check out the phone lines, Elie. Ora in Brooklyn. Hi, there. Thanks for calling in.

Ora: Hi. I'm calling merely to say, as we-- I am a Black woman who is retiring. I'm calling to say that there are three branches of government. When we get this bigoted decision from the Supreme Court, those of us who believe in justice, and equality, and rightness ought to be prepared to go to our Congress and the executive branch to change it. That is what checks and balances mean.

Matt Katz: Thank you, Ora.

Elie Mystal: I agree with that in theory, I agree with that on paper, but let's go to the next case to see what this court does when the executive branch and Congress acts. Even when we have laws on the books that protect our rights or protect policies that we agree with, the six conservatives on the court strike those policies down. Really what I would argue is that if you want to go to your congressmen and senators, and you by all means should, the question is not pass new legislation because this Supreme Court doesn't care about legislation. The question is expand the court. That's what we have to get the Congress people and the senators to get their heads behind because if you don't expand the court, there is no liberal policy that this court will allow to exist for the rest of my natural life.

Matt Katz: The second case you're talking about, of course, is the student loan forgiveness. Court unanimously decided the individuals didn't have standing or couldn't show they were harmed, so they sided with the states, I guess, at least Missouri, and essentially throwing out a legislative policy.

Elie Mystal: No. That's two different cases.

Matt Katz: No. Okay, thank you.

Elie Mystal: Matt, I got this wrong on Twitter actually at first too. It's completely insane.

Matt Katz: Okay, got it. I've been on the air. I don't know what's going on. Go ahead.

Elie Mystal: There were two state challenges to Biden's debt forgiveness relief plan. The first state challenge was kicked on what's called standing basically saying the states didn't have the right to sue. But the second case Biden v. Nebraska which goes to whether or not Biden was authorized to do it under the Heroes Act, the court ruled that the state of Missouri did have standing in a very convoluted and illogical ruling. They ruled that Missouri did have standing. Once they got to the "merits" of the case, the meat of it, they said that Biden exceeded his authority under the Heroes Act to grant debt forgiveness.

They said that basically, Biden exceeded the emergency powers inherent to the act. What I've been trying to point out is the hypocrisy of this decision, given what the court ruled previously in Trump v. Hawaii. That was the Muslim ban case for those playing along at home. If you remember the Muslim ban case, Trump's argument was, "I'm the president, I'm declaring a national emergency." A fake national emergency, but he declares the fake national emergency and then he uses the fake national emergency to ban people based on their religion from entry into the country.

The court said that was okay. The court said that was okay, that was a fine use of Trump's emergency powers. Biden, under the Heroes Act is saying because of a real national emergency, the COVID-19 pandemic, I'm using the authority granted to me by the Heroes Act to forgive, I think it was something like $400 billion worth of student debts. The court said, "No, no, no, that's an excess use of presidential authority." As long as the court is being bigoted and discriminatory against people, apparently, presidential authority holds no bounds. But the minute the court tries to help people, no, then the president has gone too far. Again, that is the ruling from the Roberts Court.

Matt Katz: Is that it then? No loan forgiveness and public health emergency is over, so payments resume?

Elie Mystal: Pretty much. The Republican Supreme Court just took $10,000 away from everybody.

Matt Katz: Joan in Manhattan has a question. Hi, Joan. Thanks for calling in.

Joan: Yes. Oh, hi. Yes, I just tuned in. The answer is that the president cannot do this alone. How can it be done? Was it 6-3 or how did it come down?

Elie Mystal: It was 6-3, straight down partisan lines. Chief Justice Roberts wrote the majority opinion again in direct hypocritical contravention of his opinion in Trump v. Hawaii. There's even a line where Roberts refers to Biden's the pandemic is over statement and he says, "Well, this shows that there's no real emergency powers," which is ludicrous because again, in Trump v. Hawaii when people were throwing Trump's tweets about his desire to ban Muslims back in Roberts's face, Roberts says, "Oh, the President's statements on a campaign stop can't be taken literally."

Again, the hypocrisy is just rife. The upshot is that Biden cannot do this under the authorization of Congress from the Heroes Act of 2003. Arguably, Congress could pass a different law that explicitly gives the President the power to forgive student loans. But you know who's in charge of Congress right now. That is not likely to happen so basically, the court just took money out of people's pockets.

Matt Katz: What are the implications here for future presidents, future executive orders, does this limit them? What kind of precedent?

Elie Mystal: Well, again, the precedent here is that Republican presidents can do whatever they want and Democratic presidents can't. There is no logical throughline. I know people want there to be, there's not. The court is saying that when a Republican president does it, it's not illegal. When a Democratic president does it, it is illegal. That's the upshot here and there's no artifice around that. I can legalese it up the way that Roberts tries to, but the practical reality here is that when you ask me what's going to happen to the next president, Matt, I have to say, "What's the party of the next president?"

If the next president is Ron DeSantis, I'm sure the court will believe that Ron DeSantis has extreme executive emergency powers. If the next president is Kamala Harris, I'm sure the court is going to say that they can't. It's as simple as that. You have to tell me the party affiliation of the president before I can tell you how this court is going to rule, which it's not how it's supposed to be but spoiler alert, it's how it has been for at least the past 25 years.

Matt Katz: Robert in Brooklyn, you're on the air. Hi, Robert. Thanks for calling in.

Robert: Hi, Matt. Thank you for taking my call. Elie, I love you. I'm just so angry right now for the past few days. I don't know what else-- I listened to Biden yesterday, his speech. The way I've heard him say that was he was not going to expand the court. He's thinking that he can wrangle the conservatives, if you want to call them that, to change their mind. What are we going to do with this? This whole thing is going to go out the window.

Elie Mystal: Man, last year this time, the Supreme Court, 6-3 along straight partisan lines, revoked reproductive rights for half the country. Biden said, "I'm not going to expand the court." If you're not going to expand the court, if you're not going to reform the court, if you're not going to do something to bring these six unelected law wizards to heel, when 50% of the population has had their rights stripped from them, untimely [inaudible 00:16:10] if you're not going to do anything then, you're certainly not going to do anything to help kids struggling under debt, Black people struggling to get into school or gay people trying to get married. It's as simple as that.

Matt Katz: Before you go Elie there's one other case. I know Brian didn't get into it yesterday, Groff v. DeJoy. The question was how much accommodation to a worker's religious beliefs an employer had to make. This was a unanimous opinion. The answer was some. Can you sum that up for us?

Elie Mystal: Right. The case was a postal worker. He said he had a deeply-held Christian religious belief that he shouldn't have to work on Sundays. I don't know why you sign up to work with a post office then, but there you go. He did. The question was whether or not he could get a reasonable accommodation to not work on Sundays. The court said, "Kind of." Basically what the court did in the unanimous way, is changed the standard around what a reasonable accommodation is. Before yesterday, all the employer had to do was say that there was a de minimis harm to their normal secular business, and then you couldn't get the accommodation. Now under Alito's ruling, that was again unanimous.

For Alito, given what Alito is capable of doing, it was a fairly reasonable version of Alito, still not one that I agree with but it wasn't bonkers. Says that the business has to show more than a de minimis, has to show some kind of significant economic harm that would befall them if they gave out this religious accommodation. The case could have been much worse, especially when you understand that in front of this theocratic court, the Christian claiming a religious exemption was always going to win. They were always going to make him win. They made him win in a more reasonable way. Certainly, then they made the bigot win and the 303 Creative case.

Matt Katz: We got a few seconds left, Elie. All told your take on this term, the Supreme Court term?

Elie Mystal: Well, I think the people who spent last week saying like, "Oh, the Supreme Court is actually much more moderate. Oh, Roberts, he's responding to public pressure." I think they have the clown themselves. I think that as we see again, in the important cases, in the big cases, it's 6-3, 6-3, 6-3, white guys win, Christians win, conservatives win all the time. That's what we see at the end of this term. That's most likely what we're going to see next year too. I haven't fully looked at the docket yet. We're going to get an abortion pill case next year, that's going to be 6-3.

Matt Katz: Thank you.

Elie Mystal: It's how these people are.

Matt Katz: Elie Mystal, court watcher, extraordinaire, justice correspondent for The Nation. Thank you so much, Elie. Appreciate this.

Elie Mystal: Thanks a lot, Matt.

Matt Katz: I'm Matt Katz, I've been filling in for Brian Lehrer. Thanks for tuning in today, everybody. I hope you have a restful 4th of July weekend.

 

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