A completely hypothetical complaint; a case without standing to complain

I spent yesterday’s post decrying the Supreme Court gutting affirmative action in college admissions. Alas, this post is to decry a couple more decisions as the Court finished their term and left for the summer. The first decision is that businesses may indeed discriminate against gay people. Joan McCarter of Daily Kos reported yup, it was decided 6-3. They hold that discrimination is protected by the First Amendment. A bit from Justice Sonia Sotomayor dissent (which I believe she read when the decision was announced), “Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class.” McCarter posted her article before the decision was announced, the decision included in an update. And the case is – weird. So weird it should never have gone to trial and the Supremes should never have accepted it. But they jumped at the chance to stick it to the gays. The current case follows a 2018 case that decided a Colorado cake baker didn’t have to make wedding cakes for LGBTQ couples, but the Court didn’t extend the decision to include general religious beliefs or free speech rights. The weirdness of this case was uncovered by Melissa Gira Grant, writing for The New Republic: The case is about Lorie Smith who says Colorado’s Anti-Discrimination Act prevented her from a dream of creating wedding websites because she didn’t want to work with LGBTQ people. First problem: This was only a dream. She hadn’t actually been harmed yet. That’s the basis for “standing,” one of the requirement to bring such a case. Second problem: The suit was brought to the US District Court in Colorado on Sept. 20, 2016. The incident that prompted the case allegedly happened on Sept. 21, the day after. Third problem: That first request for a same-sex wedding website came from “Stewart” marrying “Mike.” Stewart’s contact information is listed. Amazingly nobody called Stewart for seven years, until Grant did. Stewart says Grant contacting him was the first he heard that his name was attached to a Supreme Court case. He denies he filed the complaint the case is based on. He’s married to a woman and has a child. He lives in San Francisco (they’re all gay, right?), so it is doubtful he would use a Colorado web service. He does not agree with the Court’s decision. The whole case is based on lies. Colorado AG Philip Weiser, in a brief to the court noted, “The record contains no evidence.” Yet, the ruling will have profound and dangerous consequences. How dangerous? As Sotomayor and Jackson noted in oral arguments, what if the website maker doesn’t believe in interracial marriage? What if a Santa refused black kids? Ruling on a case with such profound and dangerous implications, which has no evidence, and is based on lies is an example of how much this corrupt Court intends to rule by decree. A famous saying is the Supreme Court has no army, so relies on the respect for the Court and for Democracy to convince the rest of the government and citizens to abide by its decisions. I’ve concluded this Court does have an army – all those MAGA people the court has made sure are well armed. They’ll be delighted to enforce the bigotry of this Court. The other big case, as reported by the Associated Press in an article posted on Kos, is the Supreme Court decided that the Biden administration had overstepped its authority in offering to cancel or reduce student loans for millions of Americans. They held that the executive branch needed the endorsement of Congress before implementing so costly a program. Biden had based his argument on the 2003 HEROES Act. The Court’s decision says that act does not authorize what Biden wants to do. 43 million people are eligible for relief. 26 million have already applied. The projected cost over 30 years is $400 billion (as in $13 billion a year? In a multi-trillion budget? Sheesh). Joan McCarter of Kos wrote about the dissents Kagan and Sotomayor wrote on these two cases. From Kagan on the loan forgiveness decision:

The Court’s first overreach in this case is deciding it at all. Under Article III of the Constitution, a plaintiff must have standing to challenge a government action. And that requires a personal stake—an injury in fact. We do not allow plaintiffs to bring suit just because they oppose a policy. Neither do we allow plaintiffs to rely on injuries suffered by others. Those rules may sound technical, but they enforce “fundamental limits on federal judicial power.”

The second overreach Kagan says is the HEROES Act does indeed authorize what Biden proposed to do. At the end of that explanation she wrote, “But this Court today decides that some 40 million Americans will not receive the benefits the plan provides, because (so says the Court) that assistance is too “significant.” Significant? If it was a smaller amount – $40 billion? $4 billion? – the conservative justices would be OK with it? I have my doubts. Or is this not about the money, but that 40 million people will be less oppressed? Back to the LGBTQ discrimination case and Sotomayor’s dissent. McCarter sets some of this in a quote box, but it isn’t clear who is being quoted.

“This ostracism, this otherness, is among the most distressing feelings that can be felt by our social species,” she writes. The fundamental point of centuries of civil rights legislation has been to prevent that harm from being felt by whole classes of people—women, people of color, disabled people, LGBTQ people. Sotomayor cites case after case in which business owners came to the Supreme Court to argue that they had a particular right to discriminate in response to every new civil rights law enacted on behalf of each of these protected classes, and in which the court disagreed. “Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class,” Sotomayor declared. “Time and again, businesses and other commercial entities have claimed constitutional rights to discriminate. And time and again, this Court has courageously stood up to those claims—until today. Today, the Court shrinks.”

McCarter wrote:

This is a court acting well beyond its scope. Neither of these cases should have been heard by the Supreme Court, just on procedural grounds. One was based on a completely hypothetical complaint; the other was brought by plaintiffs who didn’t have standing to complain. This court majority is intent on doubling down on its illegitimacy with every session, and it has to be stopped.

While Biden recognizes this is not a normal court, he doesn’t want to do anything about it for fear “we're going to politicize it maybe forever in a way that is not healthy.” To which McCarter responded:

This court couldn’t be more politicized and it couldn’t be more unhealthy. There are three justices who have laid out all the evidence, all the justification.

A fundraising email from March for Our Lives begins:

Today, the Supreme Court once again decided to steal our futures. * They ruled against our right to identify how we want to without discrimination. * They ruled against our right to be free of crippling debt. * They ruled against a decades-long program to make sure that people of color have the same right to a college education that white students do.

In a pundit roundup by Greg Dworkin of Kos quoted Ron Brownstein of The Atlantic that discusses the generation gap the MFOL email implies:

In the broadest sense, the Republican-appointed justices have moved to buttress the affluence and status that allow white people to wield the most influence in society, and to diminish the possibility that accelerating demographic change will force a renegotiation of that balance of power. In that way, the ruling is a judicial extension of the proliferating red-state laws meant to constrain the potential influence of younger generations through measures making it more difficult to vote, banning books, and censoring how teachers talk about race and gender inequities. All of these conflicts reflect the mounting tension between what I’ve called the brown and the gray: the racially and culturally diverse younger generations who are becoming the cornerstone of the Democratic political coalition, and the mostly white older generations who provide the foundation of Republican electoral strength.

I’ve heard the young generations in the Democratic party are annoyed the guy at the top of the ticket is 80. His likely opponent, at 77, is no better. Isn’t there someone who could lead this country and is only 50? Commenter exlrrp included a meme by Tristan Snell for Occupy Democrats:

Let me get this straight: forgiving PPP loans is capitalism – but forgiving student loans is socialism?

Kerry Eleveld of Kos reported Biden is already working out a different way to extend relief to those who have student debt. If he can’t use the HEROES Act, he’ll use the Higher Education Act. He had used the HEROES Act because it was faster. The other has a much longer rule making process, though that process has started.

Beyond announcing the particulars of his Plan B for helping borrowers, Biden slammed Republicans for opposing his $400 billion student debt relief program while backing the $760 billion Paycheck Protection Program for small businesses, where the average amount forgiven was about $70,000. Some congressional members borrowed hundreds of thousands of dollars themselves, Biden noted, with several borrowing north of $1 million. “All those loans were forgiven,” Biden said. “My program’s too expensive? … The hypocrisy is stunning,” he added.