While the most attention went to the rulings that the U.S. Supreme Court handed down last week, the method of arriving at the rulings may have longer and deeper consequences.
Not only did the court rule that businesses can discriminate against a “protected class,” which may threaten much of the Civil Rights Act of 1964, but it has redefined the ages-old legal definition of “standing.”
Standing means, as my best buddy from college, a retired corporate and government lawyer, told me, that a person must show that she could be materially hurt by a government action against her. “That’s Lesson One, first day of law school,” my buddy said.
Lorie Smith, the plaintiff in the case of 303 Creative LLC v. Elenis, was considering setting up web design as part of her business. She sued Colorado’s secretary of state because Colorado law says she can’t refuse to design a website for a gay couple marrying.
But Smith had no standing. No one asked her to design a wedding website. As told Tuesday in the Sun Journal, the man, named Stewart, asked about prices, etc. He denies placing an order.
In fact, The New Republic called Stewart — he asked to keep his last name private — as the contact listed in Smith’s court filing. Stewart replied, “I have been happily married (to a woman) for the last 15 years. I have never contacted Lorie Smith about making a website.”
She would have had standing the minute she refused a customer’s order, if there had been one. At worst, the whole case was a fraud. At best, the court simply failed to do its due diligence,
If the ruling in the Elenis case leads to more discrimination, undermining the 1964 civil rights act, the court will also have retreated even farther from the American doctrine of stare decisis, which holds that courts and judges should stand by precedent almost all the time.
Stare decisis was cited as a reason that future courts didn’t overrule the Dred Scott decision, which held that Blacks, free and enslaved, weren’t citizens and so had no right to freedom. A future chief justice, Charles Evans Hughes, called it the Court’s “greatest self-inflicted wound.”
Of course, the court does overturn precedent when conditions change or public sentiment changes. It did so in 1954, when it overturned Plessy v. Ferguson, which in 1896 had held that “separate but equal” public services were an acceptable way to keep the races apart.
In Brown v. Board of Education, the court held that segregated schools were clearly unequal and integration was the remedy. It later called for “all deliberate speed.” We’re still waiting.
But generally, stare decisis holds. Recall that court nominee Brett Kavanaugh told Sen. Susan Collins, R-Maine, that the abortion ruling of 1973 was “settled law.” Collins bought it hook, line and sinker. Kavanaugh later voted to overturn that “settled law.” The egg remains on her face.
Stare decisis doesn’t mean precedent must govern all things for all time. But it does mean that, to use my own words, “You’d better have a damn good reason to overturn precedent.” Horribly unequal schools were a damn good reason. Allowing discrimination against gay people isn’t.
The about-face from more-or-less independent justices to politically activist justices — this isn’t the first time, as conservatives argue, pointing to the Earl Warren court of the 1950s and ‘60s, and they may not be wrong — has come quickly. It may be the most significant result of our great national nightmare, aka the Trump reign of error. Maybe the only significant result.
Is it any wonder the court’s approval is tanking? Only 30% of Americans judge the court favorably, about half the proportion of a decade or so ago. More than half believe the justices vote their political preferences, not on the points of law.
At least two justices are doing their best to further sink the court’s reputation. Investigations by Politico have shown that Justices Clarence Thomas and Samuel Alito have accepted and not reported huge gifts of travel, real estate and other goodies. The gifts came from wealthy Republican donors, at least one of whom had cases pending before the court.
Both have said they did nothing wrong and that, in essence, it’s none of our business. Alas, their “first among equals” boss, Chief Justice John Roberts agrees. He refused to speak with the Senate Judiciary Committee about writing a code of ethics for the court and he has shown no evidence that anyone on the court is concerned enough about ethics to be writing a code.
Supreme Court Justices are basically the only high federal employees with no code of ethics.
As Jennifer Rubin, a formerly Republican columnist, wrote on Monday in the Washington Post, “When judges cease to eliminate conflicts of interest or the appearance thereof, they appear indistinguishable from politicians wined and dined in rarefied settings by lobbyists.”
For democracy to survive, “Each election must be a referendum on the court’s legitimacy.”
The wedding notices Marilyn and Bob Neal sent out in 1965 said he would attend law school. He never did. News is more interesting than courts. But he loves it when courts make the news.
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