somebody’s using false information in a Supreme Court filing document
July 4, 2023 9:21 AM Subscribe
The recent SCOTUS decision 303 CREATIVE LLC ET AL. v. ELENIS ET AL. [PDF link, decision] was decided on the basis that Laurie Smith might be asked to make a gay wedding website. In the original court filings was included a possible inquiry about such a website that included a name and phone number and other identifying information. The New Republic called that phone number, and reports that is false information. Maybe SCOTUS will reexamine it, Salon summarizes thinking about that. NYT's The Daily discusses the case and context for a half hour.
Meanwhile, the National Catholic Reporter has a thoughtful and very nice opinion column, 303 Creative v. Elenis: A Catholic's guide to weighing Supreme Court decisions
Meanwhile, the National Catholic Reporter has a thoughtful and very nice opinion column, 303 Creative v. Elenis: A Catholic's guide to weighing Supreme Court decisions
Is TNR trying to suggest that somebody who claims to object to homosexuality on religious grounds might be bearing false witness? Surely that wouldn't happen.
posted by flabdablet at 9:44 AM on July 4, 2023 [28 favorites]
posted by flabdablet at 9:44 AM on July 4, 2023 [28 favorites]
I'd like to know if Lorie Smith can be held accountable form knowingly falsifying information in front of a court, as well as her lawyers. Can the "Stewart" party bring her to face justice for harassment or libel?
posted by They sucked his brains out! at 9:48 AM on July 4, 2023 [22 favorites]
posted by They sucked his brains out! at 9:48 AM on July 4, 2023 [22 favorites]
Also known in the law profession as "iuris clusterfuck."
posted by ZenMasterThis at 9:57 AM on July 4, 2023 [2 favorites]
posted by ZenMasterThis at 9:57 AM on July 4, 2023 [2 favorites]
Probably the best that could be hoped for in terms of consequences is that it was a career-ending move for whoever filed the documents. But I'm not holding my breath for even that.
posted by Aardvark Cheeselog at 10:01 AM on July 4, 2023 [6 favorites]
posted by Aardvark Cheeselog at 10:01 AM on July 4, 2023 [6 favorites]
I still don't understand how a case manages to reach the Supreme Court without anyone, like, verifying that the thing the case is about happened or not. I know it doesn't matter--this court wishes to legislate and shape the nation to the whims of its gift-giving billionaire pals, so any case would've done--but just, technically, how does this case manage to survive in any court without someone saying, "So this guy who asked you for a website, where's he at, can we talk to him?"
Also, I'm officially tired of any criticism of the case that says "this will make people question the legitimacy of the court." Power legitimizes itself. No one's questions matter, to that power; it looks for things it wants to do, it finds ways to do those things, and rejoices in its antidemocratic, antifreedom, antihuman actions.
I suppose the only thing to do is wait and see what the next extension of this power will be.
posted by mittens at 10:05 AM on July 4, 2023 [60 favorites]
Also, I'm officially tired of any criticism of the case that says "this will make people question the legitimacy of the court." Power legitimizes itself. No one's questions matter, to that power; it looks for things it wants to do, it finds ways to do those things, and rejoices in its antidemocratic, antifreedom, antihuman actions.
I suppose the only thing to do is wait and see what the next extension of this power will be.
posted by mittens at 10:05 AM on July 4, 2023 [60 favorites]
Probably the best that could be hoped for in terms of consequences is that it was a career-ending move for whoever filed the documents. But I'm not holding my breath for even that.
Whoever filed the documents is Federalist Society contributor Erin Hawley, wife of sitting US senator/insurrectionist Josh Hawley.
posted by cushie at 10:10 AM on July 4, 2023 [70 favorites]
Whoever filed the documents is Federalist Society contributor Erin Hawley, wife of sitting US senator/insurrectionist Josh Hawley.
posted by cushie at 10:10 AM on July 4, 2023 [70 favorites]
I really appreciated the analysis over at The Weekly Sift of all the things that are a little off about the recent slate of cases before the court.
posted by clockwork at 10:45 AM on July 4, 2023 [7 favorites]
posted by clockwork at 10:45 AM on July 4, 2023 [7 favorites]
Few Republicans seem to realize that what fair and representative government does is give people a mechanism to empower and protect themselves THAT DOESN’T REQUIRE VIOLENCE. People will fight for their rights, and it would be much preferable that they did do via voting and civic participation. But if it’s clear those avenues cannot bear fruit, they will begin to take other approaches.
(Don’t misinterpret: I’m not advocating violence, I’m just observing that the GOP seems giddy about the fact that they can bend rules to aggregate power and become essentially locked into leadership regardless of the will of the people. This will bite them in the ass. It’ll bite all of us in the ass because I don’t want to live in a country where governmental change happens via violence.)
posted by chasing at 10:50 AM on July 4, 2023 [14 favorites]
(Don’t misinterpret: I’m not advocating violence, I’m just observing that the GOP seems giddy about the fact that they can bend rules to aggregate power and become essentially locked into leadership regardless of the will of the people. This will bite them in the ass. It’ll bite all of us in the ass because I don’t want to live in a country where governmental change happens via violence.)
posted by chasing at 10:50 AM on July 4, 2023 [14 favorites]
Delegitimize SCOTUS [speedrun, any%](part 2 of 4)
posted by ZaphodB at 10:50 AM on July 4, 2023 [3 favorites]
posted by ZaphodB at 10:50 AM on July 4, 2023 [3 favorites]
My impression on reading this is lawyers on both sides knew the specific facts of the case were hinky but didn't care because they wanted to test the hypothetical situation. I wish someone would just say that directly, "sometimes there are hypothetical test cases". Because sometimes there aren't, challenging standing and the basic facts is a common technique for disrupting civil rights cases.
As for standing, the NYT says
It still smells like bullshit. It's just so very Christian conservative to make up a hypothetical harm and then stage a national case like they're being thrown to the lions. (See also: transgender rights.)
For more context, It’s a Fact: Supreme Court Errors Aren’t Hard to Find. To anotherpanacea's comment above Lawrence v Texas it's true that the actual gay relationship that was supposedly the center of the case is a little unclear. But Lawrence and Geddes really were arrested by the Houston cops and really were charged with violating a state law for what the cops said was a sexual act. The arrest and harm were very real.
posted by Nelson at 10:58 AM on July 4, 2023 [36 favorites]
As for standing, the NYT says
Justice Neil M. Gorsuch, writing for the majority on Friday, summarized approvingly an appeals court ruling that said Ms. Smith and her company had established standing to sue because they faced a credible fear of punishment under a Colorado anti-discrimination law if they offered wedding-related services but turned away people seeking to celebrate same-sex unions.Some more reporting: NYT: What to Know About a Seemingly Fake Document in a Gay Rights Case and WashPo: Man cited in Supreme Court LGBTQ rights case says he was never involved.
In dissent, Justice Sonia Sotomayor did not discuss the request or the standing question.
It still smells like bullshit. It's just so very Christian conservative to make up a hypothetical harm and then stage a national case like they're being thrown to the lions. (See also: transgender rights.)
For more context, It’s a Fact: Supreme Court Errors Aren’t Hard to Find. To anotherpanacea's comment above Lawrence v Texas it's true that the actual gay relationship that was supposedly the center of the case is a little unclear. But Lawrence and Geddes really were arrested by the Houston cops and really were charged with violating a state law for what the cops said was a sexual act. The arrest and harm were very real.
posted by Nelson at 10:58 AM on July 4, 2023 [36 favorites]
this is nuts. It seems super weird to me that this only came out after the decision was handed down. I mean whoever knew this must've know it before the SC pronouncement.
posted by bluesky43 at 11:00 AM on July 4, 2023 [3 favorites]
posted by bluesky43 at 11:00 AM on July 4, 2023 [3 favorites]
I still don't understand how a case manages to reach the Supreme Court without anyone, like, verifying that the thing the case is about happened or not.
Because it's irrelevant. The case hinged on whether the plaintiff had a legitimate fear that she might be asked to do a same sex wedding site. Does it sound unlikely that she would eventually be asked that, whether an inquiry cited didn't actually happen or not?
posted by Galvanic at 11:09 AM on July 4, 2023 [4 favorites]
Because it's irrelevant. The case hinged on whether the plaintiff had a legitimate fear that she might be asked to do a same sex wedding site. Does it sound unlikely that she would eventually be asked that, whether an inquiry cited didn't actually happen or not?
posted by Galvanic at 11:09 AM on July 4, 2023 [4 favorites]
Does it sound unlikely that she would eventually be asked that, whether an inquiry cited didn't actually happen or not?
Kind of? I honestly don't know what the standard of proof is in these situations, but it seems far from certain that a gay couple would try to hire a homophobic web site designer. The fact that they failed to find one is suggestive.
posted by justkevin at 11:17 AM on July 4, 2023 [22 favorites]
Kind of? I honestly don't know what the standard of proof is in these situations, but it seems far from certain that a gay couple would try to hire a homophobic web site designer. The fact that they failed to find one is suggestive.
posted by justkevin at 11:17 AM on July 4, 2023 [22 favorites]
I'd like to know if Lorie Smith can be held accountable form knowingly falsifying information in front of a court, as well as her lawyers. Can the "Stewart" party bring her to face justice for harassment or libel?
I believe the facts in question were stipulated by both sides in earlier rounds of the court case so they have to be treated as true by the court even if they’re not.
posted by jmauro at 11:22 AM on July 4, 2023 [4 favorites]
I believe the facts in question were stipulated by both sides in earlier rounds of the court case so they have to be treated as true by the court even if they’re not.
posted by jmauro at 11:22 AM on July 4, 2023 [4 favorites]
It seems super weird to me that this only came out after the decision was handed down.
It absolutely didn't. I read the New Republic article about this the day before the decision. It's just that either SCOTUS doesn't care, there's no mechanism in place to stop a decision when the opinion is written but not-yet-public, or both.
posted by mcstayinskool at 11:24 AM on July 4, 2023 [9 favorites]
It absolutely didn't. I read the New Republic article about this the day before the decision. It's just that either SCOTUS doesn't care, there's no mechanism in place to stop a decision when the opinion is written but not-yet-public, or both.
posted by mcstayinskool at 11:24 AM on July 4, 2023 [9 favorites]
i've got a legitimate fear that more than 2/9ths of the supreme court has been bought off by billionaires. can i get on the docket?
posted by kaibutsu at 11:27 AM on July 4, 2023 [22 favorites]
posted by kaibutsu at 11:27 AM on July 4, 2023 [22 favorites]
citizens united, kaibutsu - they weren't bought off, they were spoken to
posted by pyramid termite at 11:40 AM on July 4, 2023 [5 favorites]
posted by pyramid termite at 11:40 AM on July 4, 2023 [5 favorites]
Because it's irrelevant. The case hinged on whether the plaintiff had a legitimate fear that she might be asked to do a same sex wedding site.
It’s actually important because fear isn’t enough for a case. There needs to be actual harm in Common Law. It’s why Rosa Parks had to get arrested on the bus to start the legal process to challenge bus segregation. Someone had to had to be actually harmed, else they had no standing to sue.
posted by jmauro at 11:49 AM on July 4, 2023 [44 favorites]
It’s actually important because fear isn’t enough for a case. There needs to be actual harm in Common Law. It’s why Rosa Parks had to get arrested on the bus to start the legal process to challenge bus segregation. Someone had to had to be actually harmed, else they had no standing to sue.
posted by jmauro at 11:49 AM on July 4, 2023 [44 favorites]
Somebody could look back into the court records for the first phase of this case to see if anyone at any point testified under oath that this actually is true, but Colorado has a 3 year statute of limitations on perjury charges.
posted by hippybear at 11:49 AM on July 4, 2023
posted by hippybear at 11:49 AM on July 4, 2023
I haven't listened yet, but my favorite Supreme Court podcast, 5-4, has a new episode up about the case.
posted by Jeanne at 11:51 AM on July 4, 2023 [2 favorites]
posted by Jeanne at 11:51 AM on July 4, 2023 [2 favorites]
It’s certainly odd that this is coming out now, and I don’t think it will have any effect on the decision. I remember reading reporting when the court was hearing arguments that there had been no actual request made. I can’t find any prior articles that discuss the specifics beyond a note that Smith claimed she had received the request in question.
posted by kyleg at 12:04 PM on July 4, 2023 [1 favorite]
posted by kyleg at 12:04 PM on July 4, 2023 [1 favorite]
The Washington Post article notes that the first Stewart heard that he'd been named in this case was when the New Republic called him last week. So the fact he was falsely named as a source of a complaint was new to him, at least. But it also appears that other lawyers and judges involved in the case knew the details of the supposed harm were squirrely and just didn't care. I sure wish I understood why.
What we need is someone with expertise in actual federal law to talk about how common it is to have a completely hypothetical case with made up facts be the basis of a major civil rights decision. My impression is the falsehood of the case didn't matter because the courts all decided they were more interested in the hypothetical. Sure is a shame it was all reported as if the facts presented to the court were true.
posted by Nelson at 12:08 PM on July 4, 2023 [6 favorites]
What we need is someone with expertise in actual federal law to talk about how common it is to have a completely hypothetical case with made up facts be the basis of a major civil rights decision. My impression is the falsehood of the case didn't matter because the courts all decided they were more interested in the hypothetical. Sure is a shame it was all reported as if the facts presented to the court were true.
posted by Nelson at 12:08 PM on July 4, 2023 [6 favorites]
What's troubling to me is that this decision overrules an established Colorado state law about non-discrimination. This means that there is no state in the US that has a non-discrimination law that hasn't had any and all custom having to do with "artistic expression" now placed outside that non-discrimination against protected classes bubble. And exactly what kind of job is "artistic expression" and is not is a subject of law still to be entirely defined.
So a tire shop can't turn me away, but maybe a really fancy restaurant with a big ego chef could. Maybe the local veterinarian couldn't turn me away, but could I find a landscape architect to hire?
So, hooray July 4th. I hadn't expected to be declared a second-class citizen according to decided law right at the end of Pride Month, but this is the timeline I live in.
posted by hippybear at 12:13 PM on July 4, 2023 [25 favorites]
So a tire shop can't turn me away, but maybe a really fancy restaurant with a big ego chef could. Maybe the local veterinarian couldn't turn me away, but could I find a landscape architect to hire?
So, hooray July 4th. I hadn't expected to be declared a second-class citizen according to decided law right at the end of Pride Month, but this is the timeline I live in.
posted by hippybear at 12:13 PM on July 4, 2023 [25 favorites]
It baffles and infuriates me that the rulings are apparently going to be allowed to stand even after finding this out. I spoke with a lawyer friend who said that really the only check on the Supreme Court would be to impeach one of the justices - but even if we did impeach a justice, all the rulings they made during their tenure would still stand.
I cannot understand how, in the face of evidence that such a ruling was based on non-factual information, the ruling still stands. Why doesn't that negate the case or call for a mistrial or something? Can we sue someone for perjury over this?
Someone make this make sense for me.
posted by EmpressCallipygos at 12:24 PM on July 4, 2023 [12 favorites]
I cannot understand how, in the face of evidence that such a ruling was based on non-factual information, the ruling still stands. Why doesn't that negate the case or call for a mistrial or something? Can we sue someone for perjury over this?
Someone make this make sense for me.
posted by EmpressCallipygos at 12:24 PM on July 4, 2023 [12 favorites]
but didn't care because they wanted to test the hypothetical situation
Pretty likely, a "it's an inevitable case, might as well get it over with" strategy. If the opponent doesn't challenge standing, then aren't they waiving the issue? I'm pretty sure "didn't think of that" is not possible in a long expensive Supreme Court case.
posted by ctmf at 12:30 PM on July 4, 2023
Pretty likely, a "it's an inevitable case, might as well get it over with" strategy. If the opponent doesn't challenge standing, then aren't they waiving the issue? I'm pretty sure "didn't think of that" is not possible in a long expensive Supreme Court case.
posted by ctmf at 12:30 PM on July 4, 2023
If the court could be consistent about standing, that would be great. Who here remembers when someone tried to have the emoluments clause of the constitution enforced against Trump just to be denied because they weren't considered to be harmed? Here's our courts previous interpretations of standing in a US court.
Frankly the whole standing thing has always seemed a bit odd and ripe for reform. But the way this court acts you know any alternative interpretations will only be used to give them more power.
posted by ockmockbock at 12:31 PM on July 4, 2023 [14 favorites]
Frankly the whole standing thing has always seemed a bit odd and ripe for reform. But the way this court acts you know any alternative interpretations will only be used to give them more power.
posted by ockmockbock at 12:31 PM on July 4, 2023 [14 favorites]
Maybe Colorado thought this was about the most favorable set of facts they were ever going to get.
posted by ctmf at 12:34 PM on July 4, 2023 [2 favorites]
posted by ctmf at 12:34 PM on July 4, 2023 [2 favorites]
Colorado didn't bring the suit. This Smith woman sued the state because she didn't want to open a business where she might have to serve everyone who came to her as a customer.
posted by hippybear at 12:41 PM on July 4, 2023 [2 favorites]
posted by hippybear at 12:41 PM on July 4, 2023 [2 favorites]
Let's be clear: 303 Creative was not an active business when this suit was first filed seven years ago. It's since been open for quite a while. Smith never had anyone request of her business, that didn't exist, that she make a same-sex wedding website. Smith brought this lawsuit in order to open a business in which she could openly discriminate.
posted by hippybear at 12:46 PM on July 4, 2023 [32 favorites]
posted by hippybear at 12:46 PM on July 4, 2023 [32 favorites]
I will not abuse the edit window to correct myself: 303 Creative was not an active wedding website design business....
posted by hippybear at 12:51 PM on July 4, 2023 [4 favorites]
posted by hippybear at 12:51 PM on July 4, 2023 [4 favorites]
hire a homophobic web site designer. The fact that they failed to find one is suggestive.
(whispers) Wait until you find out that she wasn't actually doing web design before bringing the case.
It’s actually important because fear isn’t enough for a case
Actually, it absolutely is. Google "pre-enforcement challenge."
Someone make this make sense for me.
As I pointed out, because it's irrelevant to the case. The plaintiff *didn't* have a web design business, didn't have any LGBTQ+ customers, but was afraid that if she started (or added to her current graphic design business) a web design aspect, someone would come along and ask her to do a SSM site. The (fake) inquiry was used as evidence that this was possible, but even given that falseness, do we think that it's unlikely that someone would inquire of a web designer in Colorado whether they could do such a site? That's all SCOTUS needed, and why Sotomayor didn't bring it up.
posted by Galvanic at 1:04 PM on July 4, 2023 [5 favorites]
(whispers) Wait until you find out that she wasn't actually doing web design before bringing the case.
It’s actually important because fear isn’t enough for a case
Actually, it absolutely is. Google "pre-enforcement challenge."
Someone make this make sense for me.
As I pointed out, because it's irrelevant to the case. The plaintiff *didn't* have a web design business, didn't have any LGBTQ+ customers, but was afraid that if she started (or added to her current graphic design business) a web design aspect, someone would come along and ask her to do a SSM site. The (fake) inquiry was used as evidence that this was possible, but even given that falseness, do we think that it's unlikely that someone would inquire of a web designer in Colorado whether they could do such a site? That's all SCOTUS needed, and why Sotomayor didn't bring it up.
posted by Galvanic at 1:04 PM on July 4, 2023 [5 favorites]
Well hippybear, as far as I know that's undisputed. The question is why didn't Colorado press that issue? As I said before, I think "oops, didn't think of that" is unlikely.
posted by ctmf at 1:04 PM on July 4, 2023
posted by ctmf at 1:04 PM on July 4, 2023
my favorite Supreme Court podcast, 5-4
What a quaint name. I remember fondly the days of 5-4 decisions.
posted by Dip Flash at 1:04 PM on July 4, 2023 [9 favorites]
What a quaint name. I remember fondly the days of 5-4 decisions.
posted by Dip Flash at 1:04 PM on July 4, 2023 [9 favorites]
Isn't some version of "Fruit of the Poisonous Tree" doctrine applicable here?, especially since this particular fruit was the centrepiece?
posted by lalochezia at 1:37 PM on July 4, 2023 [1 favorite]
posted by lalochezia at 1:37 PM on July 4, 2023 [1 favorite]
I think one problem with allowing hypotheticals is that the system is designed to be adversarial. Both sides are supposed to make their best arguments, rally the best evidence and expert testimony to reach a decision.
If you start litigating hypotheticals, then probably you have one side that really cares about a specific outcome and another side with no stakes. Like there's no actual person harmed by 303, so there's no one to serve as an organizing point for advocacy here, no one to vigorously contend for their own rights. Like if there were actually a plaintiff, then it becomes clear that they are fighting for their own civil rights, fair and equal accommodation and access to public goods and services, of which businesses "open to the public" are one.
Instead we get one side that has an obvious agenda, arguing against a disinterested state bureaucracy, to strip rights from millions. But none of those millions have a voice in the discussion.
posted by rustcrumb at 1:40 PM on July 4, 2023 [18 favorites]
If you start litigating hypotheticals, then probably you have one side that really cares about a specific outcome and another side with no stakes. Like there's no actual person harmed by 303, so there's no one to serve as an organizing point for advocacy here, no one to vigorously contend for their own rights. Like if there were actually a plaintiff, then it becomes clear that they are fighting for their own civil rights, fair and equal accommodation and access to public goods and services, of which businesses "open to the public" are one.
Instead we get one side that has an obvious agenda, arguing against a disinterested state bureaucracy, to strip rights from millions. But none of those millions have a voice in the discussion.
posted by rustcrumb at 1:40 PM on July 4, 2023 [18 favorites]
Isn't some version of "Fruit of the Poisonous Tree" doctrine applicable here?
That rule is based on the Fourth Amendment and only applies in criminal cases.
posted by jedicus at 1:43 PM on July 4, 2023 [6 favorites]
That rule is based on the Fourth Amendment and only applies in criminal cases.
posted by jedicus at 1:43 PM on July 4, 2023 [6 favorites]
Most of the major pro-gay-rights decisions have been characterized by a low level of adversarial process. California did not defend Proposition 8 when it was struck down, and the Obama Administration did not defend federal law when gay marriage was nationalized in Obergefell.
posted by MattD at 2:14 PM on July 4, 2023 [4 favorites]
posted by MattD at 2:14 PM on July 4, 2023 [4 favorites]
If you start litigating hypotheticals
Tell me you’ve never seen a Supreme Court argument without telling me.
They spend all their time asking about hypotheticals.
posted by Galvanic at 2:17 PM on July 4, 2023 [3 favorites]
Tell me you’ve never seen a Supreme Court argument without telling me.
They spend all their time asking about hypotheticals.
posted by Galvanic at 2:17 PM on July 4, 2023 [3 favorites]
The reason standing wasn’t challenged here is that liberals like this kind of case.
Example: if Trump had ordered the Army to stop BLM riots with shoot-to-kill orders, instead of sort of just hinting that he wished he might do that, they would have wanted to be able to seek an injunction against those orders before troops were on the streets safeties off, to say the least of before a rioter got shot.
posted by MattD at 2:19 PM on July 4, 2023
Example: if Trump had ordered the Army to stop BLM riots with shoot-to-kill orders, instead of sort of just hinting that he wished he might do that, they would have wanted to be able to seek an injunction against those orders before troops were on the streets safeties off, to say the least of before a rioter got shot.
posted by MattD at 2:19 PM on July 4, 2023
*sigh*
I mean, largely ignoring the Posse Comitatus Act which doesn't let the military be used for domestic control, there is a giant difference between the granting of a shadow docket injunction and actually granting certiorari to a case to be heard before it formally.
posted by hippybear at 2:25 PM on July 4, 2023 [5 favorites]
I mean, largely ignoring the Posse Comitatus Act which doesn't let the military be used for domestic control, there is a giant difference between the granting of a shadow docket injunction and actually granting certiorari to a case to be heard before it formally.
posted by hippybear at 2:25 PM on July 4, 2023 [5 favorites]
Most of the major pro-gay-rights decisions have been characterized by a low level of adversarial process.
The respondent declining to defend doesn't mean the process magically wasn't adversarial.
posted by hoyland at 3:29 PM on July 4, 2023 [1 favorite]
The respondent declining to defend doesn't mean the process magically wasn't adversarial.
posted by hoyland at 3:29 PM on July 4, 2023 [1 favorite]
Frankly the whole standing thing has always seemed a bit odd and ripe for reform
The requirement for standing is a large part of what keeps courts in their lane. Absent the need for standing, courts would constantly be asked to weigh in on policy decisions by every tom, dick, and harry that got a bug up their ass about anything the government did and would basically be an unelected legislative branch.
Yes, the Federalist Society has gotten enough judges on various courts to already cause this kind of problem, but the answer isn't to make it worse, it's for the other two branches to reign in the courts. It shouldn't be done willy nilly over mere disagreement, but when the courts are ignoring the very rules that make them courts of law, yeah, Congress and the Executive should act as if the ruling in question never happened. It's not legitimate, and treating it as such is what keeps them from usurping the power of the other branches of government.
Best of all, if the public thinks the elected branches were wrong in any given instance, the public has a means to put a stop to it by tossing the bums out and electing different people.
None of this is to say that impeachment shouldn't be on the table, too. Not for disagreement about the outcome of any given case, but for the pattern of corrupt behavior that several justices have shown in their acceptance of gifts from those with business before the Court.
posted by wierdo at 3:54 PM on July 4, 2023 [6 favorites]
The requirement for standing is a large part of what keeps courts in their lane. Absent the need for standing, courts would constantly be asked to weigh in on policy decisions by every tom, dick, and harry that got a bug up their ass about anything the government did and would basically be an unelected legislative branch.
Yes, the Federalist Society has gotten enough judges on various courts to already cause this kind of problem, but the answer isn't to make it worse, it's for the other two branches to reign in the courts. It shouldn't be done willy nilly over mere disagreement, but when the courts are ignoring the very rules that make them courts of law, yeah, Congress and the Executive should act as if the ruling in question never happened. It's not legitimate, and treating it as such is what keeps them from usurping the power of the other branches of government.
Best of all, if the public thinks the elected branches were wrong in any given instance, the public has a means to put a stop to it by tossing the bums out and electing different people.
None of this is to say that impeachment shouldn't be on the table, too. Not for disagreement about the outcome of any given case, but for the pattern of corrupt behavior that several justices have shown in their acceptance of gifts from those with business before the Court.
posted by wierdo at 3:54 PM on July 4, 2023 [6 favorites]
The whole idea is ridiculous. If a graphic designer decides not to design your website that's the end of it. Their reasons for turning down the work might be that they are a sack of crap with bigoted, sexist, homophobic, transphobic, or other abhorrent views. If they were forced to make it; they won't do a good job. You can't be made to do creative work and for something as personal as a wedding website you should not hire someone who has some deep rooted hate for your identity. I don't even know how the court would have been able to enforce this if they ruled that the web site designer couldn't refuse.
posted by interogative mood at 4:10 PM on July 4, 2023 [3 favorites]
posted by interogative mood at 4:10 PM on July 4, 2023 [3 favorites]
I think the point of a public accommodation law is that, if you have such an abiding hate for a group of people you couldn't possibly give them custom at your place of business, you don't hang a public shingle saying you're in business.
posted by hippybear at 4:12 PM on July 4, 2023 [29 favorites]
posted by hippybear at 4:12 PM on July 4, 2023 [29 favorites]
There needs to be actual harm in Common Law.
The majority of the court are tentacled scumbag fuckwits, but danger of harm is sometimes enough for standing. The easiest example is Bowers v Hardwick --
A cop serving a warrant caught Hardwick and another dude goin' at it and arrested them both for sodomy.
This got to the DA, and the DA dropped charges (and IIRC but can't think of why I would know this so likely one of them there false memory things reamed out the cop because even in 1980s Atlanta sodomy charges weren't for adult dudes consensually fucking; they were for stacking on top of assault/rape charges, for pleading down to, and for using to avoid putting a rape victim on the stand).
So, there are no charges. The court takes the case anyhoo, accepting Hardwick's claim that, having established that he likes to fuck dudes, the state might decide to catch him in the act again at some point and actually prosecute him that time.
posted by GCU Sweet and Full of Grace at 4:50 PM on July 4, 2023 [2 favorites]
The majority of the court are tentacled scumbag fuckwits, but danger of harm is sometimes enough for standing. The easiest example is Bowers v Hardwick --
A cop serving a warrant caught Hardwick and another dude goin' at it and arrested them both for sodomy.
This got to the DA, and the DA dropped charges (and IIRC but can't think of why I would know this so likely one of them there false memory things reamed out the cop because even in 1980s Atlanta sodomy charges weren't for adult dudes consensually fucking; they were for stacking on top of assault/rape charges, for pleading down to, and for using to avoid putting a rape victim on the stand).
So, there are no charges. The court takes the case anyhoo, accepting Hardwick's claim that, having established that he likes to fuck dudes, the state might decide to catch him in the act again at some point and actually prosecute him that time.
posted by GCU Sweet and Full of Grace at 4:50 PM on July 4, 2023 [2 favorites]
Yeah, just to reinforce that “standing” is not your magical escape hatch.
posted by Galvanic at 4:54 PM on July 4, 2023
posted by Galvanic at 4:54 PM on July 4, 2023
Interrogative mood, in theory that sounds fine but it actually isn’t when wide swaths of businesses consider your kind undesirable clientele and you can’t access services without hiding, which adds to your marginalization in society. Allies are usually shit with fighting with their dollars and there are people who will enthusiastically do business with a discriminatory company added to a customer base of people who don’t give a shit.
posted by Selena777 at 4:55 PM on July 4, 2023 [6 favorites]
posted by Selena777 at 4:55 PM on July 4, 2023 [6 favorites]
I think this boils down to "evil can do whatever it likes because it follows no rules, while good can't even figure out how to get its boots on to attempt to stop it, by following rules that evil don't follow."
posted by jenfullmoon at 4:56 PM on July 4, 2023 [9 favorites]
posted by jenfullmoon at 4:56 PM on July 4, 2023 [9 favorites]
I think Sonia Sotomayor's argument about the right place to draw the line between "you can't be forced to make expressive content that's against your religious beliefs" and "you can't discriminate if you put your shingle out as a businessperson" is a persuasive one - you can say you wouldn't write "love is love!" on a website, as long as you say that you wouldn't write "love is love!" on anyone's web site, no matter their orientation. But if you would write "Michael and Kylie are getting married, this is the date, this is the location, this is the wedding registry, this is where you RSVP" on a web site, then you have to provide that service equally even when it's Michael and Kyle who are getting married.
posted by Jeanne at 4:57 PM on July 4, 2023 [2 favorites]
posted by Jeanne at 4:57 PM on July 4, 2023 [2 favorites]
this boils down
It boils down to “you can’t make people better than they are.” And no, I don’t agree with that, but I’m also aware that “better” is sometimes defined by people like Ron DeSantis.
posted by Galvanic at 6:17 PM on July 4, 2023
It boils down to “you can’t make people better than they are.” And no, I don’t agree with that, but I’m also aware that “better” is sometimes defined by people like Ron DeSantis.
posted by Galvanic at 6:17 PM on July 4, 2023
I think this case was decided on free speech grounds wasn’t it? I don’t think it applies to the vast majority of businesses. Maybe I’m wrong.
posted by interogative mood at 6:22 PM on July 4, 2023
posted by interogative mood at 6:22 PM on July 4, 2023
MetaFilter: the story of a booze-soaked quarrel.
posted by kirkaracha at 7:03 PM on July 4, 2023 [3 favorites]
posted by kirkaracha at 7:03 PM on July 4, 2023 [3 favorites]
I think this case was decided on free speech grounds wasn’t it? I don’t think it applies to the vast majority of businesses. Maybe I’m wrong.
There's a big-picture aspect of this, where it's increasingly obvious this court will care about precedent exactly as often as it helps them get to their desired outcomes.
And with a finer-grained look, the episode of 5-4 linked above notes a number of civil rights era cases, in which businesses claimed that their refusal to serve non-whites represented a first-amendment-protected expression of their political beliefs. The courts at the time disagreed, but you can easily draw a line between those segregationists' arguments and this 303 decision.
The episode also talks about how that specific ambiguity creates practical problems for lower courts. Even if you accepted this ruling on its logic (which I don't think we should), the decision doesn't establish a clear test of which business activities are or are not "expressive" in nature. And since judges can usually read the political terrain, they know they're a lot safer erring on the side of any conservative who claims that their discrimination was done in an expressive capacity.
In other words, this is not a clean, reasonable "Free Speech" argument for us to interpret in a vacuum. The logic is so clearly bent to the will of the majority of the court, and their policy message is clear. Once we recognize it for what it is, the only question is what we do next.
posted by Riki tiki at 7:08 PM on July 4, 2023 [8 favorites]
There's a big-picture aspect of this, where it's increasingly obvious this court will care about precedent exactly as often as it helps them get to their desired outcomes.
And with a finer-grained look, the episode of 5-4 linked above notes a number of civil rights era cases, in which businesses claimed that their refusal to serve non-whites represented a first-amendment-protected expression of their political beliefs. The courts at the time disagreed, but you can easily draw a line between those segregationists' arguments and this 303 decision.
The episode also talks about how that specific ambiguity creates practical problems for lower courts. Even if you accepted this ruling on its logic (which I don't think we should), the decision doesn't establish a clear test of which business activities are or are not "expressive" in nature. And since judges can usually read the political terrain, they know they're a lot safer erring on the side of any conservative who claims that their discrimination was done in an expressive capacity.
In other words, this is not a clean, reasonable "Free Speech" argument for us to interpret in a vacuum. The logic is so clearly bent to the will of the majority of the court, and their policy message is clear. Once we recognize it for what it is, the only question is what we do next.
posted by Riki tiki at 7:08 PM on July 4, 2023 [8 favorites]
And MAGAists are screaming "whether the client or website is real or fake is IRRELEVANT!"
posted by kschang at 7:16 PM on July 4, 2023
posted by kschang at 7:16 PM on July 4, 2023
And MAGAists are screaming "whether the client or website is real or fake is IRRELEVANT!"
Whatever gives you comfort in the night.
posted by Galvanic at 7:21 PM on July 4, 2023
Whatever gives you comfort in the night.
posted by Galvanic at 7:21 PM on July 4, 2023
exactly what kind of job is "artistic expression" and is not is a subject of law still to be entirely defined
Subway calls its employees "sandwich artists"
posted by cheshyre at 7:27 PM on July 4, 2023 [6 favorites]
Subway calls its employees "sandwich artists"
posted by cheshyre at 7:27 PM on July 4, 2023 [6 favorites]
As once a website-building generalist, I know that most wedding websites would be cookie-cutter affairs, with a pretty well-defined set of central and optional features. For package A, choose x features from column A, select colour & theme from these pulldowns, compose your wedding poem or choose from this list. Turn handle, done.
In fact, I'm certain that any savvy small-time retail provider of this and similar web services would probably just find a prepackaged wedding website builder and resell that. Oh, look.
So... the excreting of a garden-variety wedding website is "expressive content"? Or genuinely a design exercise? Bullshit.
posted by Artful Codger at 7:53 PM on July 4, 2023 [7 favorites]
In fact, I'm certain that any savvy small-time retail provider of this and similar web services would probably just find a prepackaged wedding website builder and resell that. Oh, look.
So... the excreting of a garden-variety wedding website is "expressive content"? Or genuinely a design exercise? Bullshit.
posted by Artful Codger at 7:53 PM on July 4, 2023 [7 favorites]
The Court had a ruling in search of a case, and the wife of an insurrectionist was happy to provide it for them.
Why we bother paying giving any respect to this institution is a mystery to me.
posted by fifteen schnitzengruben is my limit at 8:09 PM on July 4, 2023 [15 favorites]
Why we bother paying giving any respect to this institution is a mystery to me.
posted by fifteen schnitzengruben is my limit at 8:09 PM on July 4, 2023 [15 favorites]
I know that most wedding websites would be cookie-cutter affairs
The oral argument went over a lot of that. I guess she claims to not do that, but to personalize it individually for each customer. But there's a bit of back and forth about, well say a heterosexual couple gets a wedding site made, would she sell that exact same site, unmodified to a homosexual couple? Yes, they say, but even a simple modification like changing a photo to a same-sex couple or even changing the names would be expressive conduct and she couldn't be forced to do it.
Also there's this kind of funny exchange:
Like could someone who makes fantastic websites for events, and makes one for the DNC, would they have to then make a non-shit one for the RNC if they asked? Or could they refuse because Republicans are repugnant? (that one wasn't explicitly discussed, but briefly hinted at)
posted by ctmf at 8:33 PM on July 4, 2023 [1 favorite]
The oral argument went over a lot of that. I guess she claims to not do that, but to personalize it individually for each customer. But there's a bit of back and forth about, well say a heterosexual couple gets a wedding site made, would she sell that exact same site, unmodified to a homosexual couple? Yes, they say, but even a simple modification like changing a photo to a same-sex couple or even changing the names would be expressive conduct and she couldn't be forced to do it.
Also there's this kind of funny exchange:
JUSTICE ALITO: Okay. An unmarried Jewish person asks a Jewish photographer to take a photograph for his Jdate dating profile. It's a dating service, I gather, for Jewish people.Which is to say there's a lot of not-quite-exact analogy making in there.
JUSTICE KAGAN: It is. (Laughter.)
JUSTICE ALITO: All right. Maybe
Justice Kagan will also be familiar with the next website I'm going to mention.
So, next, a Jewish person asks a Jewish photographer to take a photograph for his ashleymadison.com dating profile.
(Laughter.)
JUSTICE ALITO: I'm not suggesting that. I mean, she knows a lot of things. I'm not suggesting -- okay. Does he have to do it?
Like could someone who makes fantastic websites for events, and makes one for the DNC, would they have to then make a non-shit one for the RNC if they asked? Or could they refuse because Republicans are repugnant? (that one wasn't explicitly discussed, but briefly hinted at)
posted by ctmf at 8:33 PM on July 4, 2023 [1 favorite]
Well, sexual orientation is a protected class, and political party isn't.
But aside from that, if you follow the reasoning in Sotomayor's dissent, there's a difference where it comes to the exact content that you're expressing. If you do wedding photography, for example, when you photograph a couple, you're not saying "Hooray for these particular people getting married," you're not saying "I approve of this marriage in particular." You're not endorsing any particular viewpoint.
If you got hired to make a web page for the RNC, and their project manager said "OK, the mock-up looks great, please put in some content about how great Republicans are, and how Joe Biden is corrupt and incompetent, and how we're going to destroy wokeness and make America great again," you would have room to say, "Well, no, I don't believe that and I'm not going to write it." But if you got hired to make a web site for a couple getting married, and the couple said, "OK, please put in some content about how great marriage equality is, and how happy we are to be able to get married legally when we couldn't before, and put in a lot of rainbow flags," equally, you'd have room to say, "Well, no, I don't believe that and I'm not going to write it." But to say "no same-sex couples!" is to discriminate based on the person rather than the message and (Sotomayor thinks) there's an important distinction there.
posted by Jeanne at 8:53 PM on July 4, 2023 [15 favorites]
But aside from that, if you follow the reasoning in Sotomayor's dissent, there's a difference where it comes to the exact content that you're expressing. If you do wedding photography, for example, when you photograph a couple, you're not saying "Hooray for these particular people getting married," you're not saying "I approve of this marriage in particular." You're not endorsing any particular viewpoint.
If you got hired to make a web page for the RNC, and their project manager said "OK, the mock-up looks great, please put in some content about how great Republicans are, and how Joe Biden is corrupt and incompetent, and how we're going to destroy wokeness and make America great again," you would have room to say, "Well, no, I don't believe that and I'm not going to write it." But if you got hired to make a web site for a couple getting married, and the couple said, "OK, please put in some content about how great marriage equality is, and how happy we are to be able to get married legally when we couldn't before, and put in a lot of rainbow flags," equally, you'd have room to say, "Well, no, I don't believe that and I'm not going to write it." But to say "no same-sex couples!" is to discriminate based on the person rather than the message and (Sotomayor thinks) there's an important distinction there.
posted by Jeanne at 8:53 PM on July 4, 2023 [15 favorites]
I remember fondly the days of 5-4 decisions.
Not hard to remember, because there are still plenty of them. And the numbers often break down in interesting ways. From this past term, for example:
Abitron Austria GmbH v. Hetronic International Inc. ("Alito, J., delivered the opinion of the Court, in which Thomas, Gorsuch, Kavanaugh, and Jackson, JJ., joined. Jackson, J., filed a concurring opinion. Sotomayor, J., filed an opinion concurring in the judgment, in which Roberts, C. J., and Kagan and Barrett, JJ., joined.")
Mallory v. Norfolk Southern Railway Co. ("Gorsuch, J., announced the judgment of the Court, delivered the opinion of the Court with respect to Parts I and III–B, in which Thomas, Alito, Sotomayor, and Jackson, JJ., joined, and an opinion with respect to Parts II, III–A, and IV, in which Thomas, Sotomayor, and Jackson, JJ., joined. Jackson, J., filed a concurring opinion. Alito, J., filed an opinion concurring in part and concurring in the judgment. Barrett, J., filed a dissenting opinion, in which Roberts, C. J., and Kagan and Kavanaugh, JJ., joined.")
Coinbase Inc. v. Bielski ("Kavanaugh, J., delivered the opinion of the Court, in which Roberts, C. J., and Alito, Gorsuch, and Barrett, JJ., joined. Jackson, J., filed a dissenting opinion, in which Sotomayor and Kagan, JJ., joined in full, and in which Thomas, J., joined as to Parts II, III and IV.")
There are also still unanimous opinions. For example:
Groff v. DeJoy ("Alito, J., delivered the opinion for a unanimous Court. Sotomayor, J., filed a concurring opinion, in which Jackson, J., joined.")
I only looked thru a fraction of this term's cases to find the above. You can peruse them all here.
posted by Artifice_Eternity at 8:57 PM on July 4, 2023 [1 favorite]
Not hard to remember, because there are still plenty of them. And the numbers often break down in interesting ways. From this past term, for example:
Abitron Austria GmbH v. Hetronic International Inc. ("Alito, J., delivered the opinion of the Court, in which Thomas, Gorsuch, Kavanaugh, and Jackson, JJ., joined. Jackson, J., filed a concurring opinion. Sotomayor, J., filed an opinion concurring in the judgment, in which Roberts, C. J., and Kagan and Barrett, JJ., joined.")
Mallory v. Norfolk Southern Railway Co. ("Gorsuch, J., announced the judgment of the Court, delivered the opinion of the Court with respect to Parts I and III–B, in which Thomas, Alito, Sotomayor, and Jackson, JJ., joined, and an opinion with respect to Parts II, III–A, and IV, in which Thomas, Sotomayor, and Jackson, JJ., joined. Jackson, J., filed a concurring opinion. Alito, J., filed an opinion concurring in part and concurring in the judgment. Barrett, J., filed a dissenting opinion, in which Roberts, C. J., and Kagan and Kavanaugh, JJ., joined.")
Coinbase Inc. v. Bielski ("Kavanaugh, J., delivered the opinion of the Court, in which Roberts, C. J., and Alito, Gorsuch, and Barrett, JJ., joined. Jackson, J., filed a dissenting opinion, in which Sotomayor and Kagan, JJ., joined in full, and in which Thomas, J., joined as to Parts II, III and IV.")
There are also still unanimous opinions. For example:
Groff v. DeJoy ("Alito, J., delivered the opinion for a unanimous Court. Sotomayor, J., filed a concurring opinion, in which Jackson, J., joined.")
I only looked thru a fraction of this term's cases to find the above. You can peruse them all here.
posted by Artifice_Eternity at 8:57 PM on July 4, 2023 [1 favorite]
I put a lot of thought into this about ten years ago after reading about a suit brought against a Muslim barbershop who'd refused service to a woman. I determined that I don't want tattoo artists to be legally obligated to draw hate symbols just because they have a business license. I don't want to be sued for religious discrimination because I can't bring myself to build a website for a Christian gay/autistic conversion camp. I don't want to be religious myself, but I do want this barber's right to practice his religion to be protected, even if he is employed.
I hate this. I hate the hate that went into this suit, and the hate that drives so much of what people choose to do with their short lives. I don't see a more fair world if the outcome had gone another way, though. Maybe the right for gay couples to force an unwilling person to make them the most soulless wedding website imaginable would be protected. Small prize. The effects would ripple out in many other ways to professional creatives, removing an important element of consent.
I don't believe that a pharmacist is a professional creative. It's a delicate thing to determine where to draw the line in law, and I don't know exactly where that is ideally. Creativity is, often as not, an intimate process, and I am in favor of letting people say no when their product has to go through their imagination to become realized. The websites I've built have been an incredible deep dive into the personality and intention of my clients. I also think massage therapists should be able to choose their clients. It's not so easy to put a heavy foot down perfectly on this issue. The problem is hateful people acting hatefully. Figuring out how to apply brakes to manifestations of their hatefulness without limiting other rights to consent or express is a hard thing, even if the answer to the question, 'Should this particular plaintiff be told, "no, fuck you, go home" ', is yes in many ways.
posted by droomoord at 9:20 PM on July 4, 2023 [17 favorites]
I hate this. I hate the hate that went into this suit, and the hate that drives so much of what people choose to do with their short lives. I don't see a more fair world if the outcome had gone another way, though. Maybe the right for gay couples to force an unwilling person to make them the most soulless wedding website imaginable would be protected. Small prize. The effects would ripple out in many other ways to professional creatives, removing an important element of consent.
I don't believe that a pharmacist is a professional creative. It's a delicate thing to determine where to draw the line in law, and I don't know exactly where that is ideally. Creativity is, often as not, an intimate process, and I am in favor of letting people say no when their product has to go through their imagination to become realized. The websites I've built have been an incredible deep dive into the personality and intention of my clients. I also think massage therapists should be able to choose their clients. It's not so easy to put a heavy foot down perfectly on this issue. The problem is hateful people acting hatefully. Figuring out how to apply brakes to manifestations of their hatefulness without limiting other rights to consent or express is a hard thing, even if the answer to the question, 'Should this particular plaintiff be told, "no, fuck you, go home" ', is yes in many ways.
posted by droomoord at 9:20 PM on July 4, 2023 [17 favorites]
Why we bother paying giving any respect to this institution is a mystery to me.
Because the alternative to a functioning court system is people settling their disputes by murdering each other in the streets.
As has happened before, certain individuals have coopted the institution for their own political ends. We need to fix that, not throw the whole thing out.
posted by wierdo at 9:26 PM on July 4, 2023 [3 favorites]
Because the alternative to a functioning court system is people settling their disputes by murdering each other in the streets.
As has happened before, certain individuals have coopted the institution for their own political ends. We need to fix that, not throw the whole thing out.
posted by wierdo at 9:26 PM on July 4, 2023 [3 favorites]
Because the alternative to a functioning court system is people settling their disputes by murdering each other in the streets.
no it isn't
posted by Gymnopedist at 9:35 PM on July 4, 2023 [5 favorites]
no it isn't
posted by Gymnopedist at 9:35 PM on July 4, 2023 [5 favorites]
As has happened before, certain individuals have coopted the institution for their own political ends. We need to fix that, not throw the whole thing out.
yeah that's by design it's called capitalism
posted by Gymnopedist at 9:35 PM on July 4, 2023 [3 favorites]
yeah that's by design it's called capitalism
posted by Gymnopedist at 9:35 PM on July 4, 2023 [3 favorites]
But if you got hired to make a web site for a couple getting married, and the couple said, "OK, please put in some content about how great marriage equality is, and how happy we are to be able to get married legally when we couldn't before, and put in a lot of rainbow flags," equally, you'd have room to say, "Well, no, I don't believe that and I'm not going to write it."
Okay, hang on a second - if you are the web page designer, don't you get all the copy from your client anyway? Wouldn't the CUSTOMER be the one to write that content?
posted by EmpressCallipygos at 12:06 AM on July 5, 2023 [3 favorites]
Okay, hang on a second - if you are the web page designer, don't you get all the copy from your client anyway? Wouldn't the CUSTOMER be the one to write that content?
posted by EmpressCallipygos at 12:06 AM on July 5, 2023 [3 favorites]
don't you get all the copy from your client anyway?
I think that was important to this case, actually. She says no (hypothetically, remember she hadn't actually started yet.) Her idea was to get to know the couple, then help them write great personalized content collaboratively, maybe ending up with some of her words, some of theirs. Which, I don't know, in practice might not be a big distinction for a wedding site. On the other hand, having instant paralyzing writer's block every time I pick up a pen to do a simple greeting card, I can see how that might be helpful to some people.
posted by ctmf at 12:22 AM on July 5, 2023
I think that was important to this case, actually. She says no (hypothetically, remember she hadn't actually started yet.) Her idea was to get to know the couple, then help them write great personalized content collaboratively, maybe ending up with some of her words, some of theirs. Which, I don't know, in practice might not be a big distinction for a wedding site. On the other hand, having instant paralyzing writer's block every time I pick up a pen to do a simple greeting card, I can see how that might be helpful to some people.
posted by ctmf at 12:22 AM on July 5, 2023
Also I don't necessarily believe her (lawyers') story, it's just as likely she just wanted an excuse to legally discriminate against same-sex couples and that was the story that best justified it retroactively. But that's the story.
posted by ctmf at 12:26 AM on July 5, 2023 [5 favorites]
posted by ctmf at 12:26 AM on July 5, 2023 [5 favorites]
If I suspect my student loan servicer is gay, can I refuse to do business with them?
posted by DreamerFi at 1:31 AM on July 5, 2023 [6 favorites]
posted by DreamerFi at 1:31 AM on July 5, 2023 [6 favorites]
Because the alternative to a functioning court system is people settling their disputes by murdering each other in the streets.
that's what makes this country great - we have BOTH
posted by pyramid termite at 2:33 AM on July 5, 2023 [13 favorites]
that's what makes this country great - we have BOTH
posted by pyramid termite at 2:33 AM on July 5, 2023 [13 favorites]
If I suspect my student loan servicer is gay, can I refuse to do business with them?
jinx!
posted by mittens at 4:50 AM on July 5, 2023 [2 favorites]
jinx!
posted by mittens at 4:50 AM on July 5, 2023 [2 favorites]
she just wanted an excuse to legally discriminate
We know about Lorie Smith's motives from Sotomayor's dissent
posted by Nelson at 6:44 AM on July 5, 2023 [11 favorites]
We know about Lorie Smith's motives from Sotomayor's dissent
303 Creative has never sold wedding websites. Smith now believes, however, that “God is calling her ‘to explain His true story about marriage.’” For that reason, she says, she wants her for-profit company to enter the wedding website business. There is only one thing: Smith would like her company to sell wedding websites “to the public,” but not to same-sex couples.So yeah, she wanted to discriminate. Because "God is calling her" to discriminate.
posted by Nelson at 6:44 AM on July 5, 2023 [11 favorites]
How rude would it be to start calling certain swathes of evangelicals 'devil worshipers'?
posted by nobody at 6:57 AM on July 5, 2023 [2 favorites]
posted by nobody at 6:57 AM on July 5, 2023 [2 favorites]
I determined that I don't want tattoo artists to be legally obligated to draw hate symbols just because they have a business license.
In the framing of Sotomayor's dissent, this analogy is not accurate: the tattoo artists would have to be rejecting drawing any tattoo at all on a person, because of an unalterable aspect of that person's identity (i.e., protected classes, like age, sex, sexual orientation, etc.). So the analogous question in this hypothetical situation would be: given that it's OK for any tattoo artist to refuse to create any specific work that they find offensive or problematic, is it OK for that artist to say, "sorry, I don't do tattoos for Black or Jewish people" or "I don't tattoo women" or even "I don't tattoo veterans"? Everyone is entitled to think whatever they want, but a business is a public-facing, transactional enterprise that should be subject to the shared standards and practices of our society as we decide them.
posted by LooseFilter at 9:28 AM on July 5, 2023 [5 favorites]
In the framing of Sotomayor's dissent, this analogy is not accurate: the tattoo artists would have to be rejecting drawing any tattoo at all on a person, because of an unalterable aspect of that person's identity (i.e., protected classes, like age, sex, sexual orientation, etc.). So the analogous question in this hypothetical situation would be: given that it's OK for any tattoo artist to refuse to create any specific work that they find offensive or problematic, is it OK for that artist to say, "sorry, I don't do tattoos for Black or Jewish people" or "I don't tattoo women" or even "I don't tattoo veterans"? Everyone is entitled to think whatever they want, but a business is a public-facing, transactional enterprise that should be subject to the shared standards and practices of our society as we decide them.
posted by LooseFilter at 9:28 AM on July 5, 2023 [5 favorites]
I"m a little baffled at all the "well who cares if it happened hypothetical test cases are a thing" response.
I'm petty sure I've been told several times that the Supreme Court can't just pick an issue and make a ruling based on hypotheticals but that the rules (always binding on the weak, never on the strong) strictly require that an actual case exist.
That's why it was Loving v Virginia not NAACP and ACLU Talking Hypotheticals v Virginia, right?
As for this specific case and the specific lying liars who committed perjury by submitting fabricated documents to the Supreme Court (and all the lower courts involved), we all know that nothing at all will happen to them. Consiquences don't exist for the far right.
If it wasn't veering straight into conspiracy theory territory I'd almost think that Roberts et al maliciously picked a fake case just as a fuck you to everyone who thinks rule of law exists or should exist.
posted by sotonohito at 11:29 AM on July 5, 2023 [2 favorites]
I'm petty sure I've been told several times that the Supreme Court can't just pick an issue and make a ruling based on hypotheticals but that the rules (always binding on the weak, never on the strong) strictly require that an actual case exist.
That's why it was Loving v Virginia not NAACP and ACLU Talking Hypotheticals v Virginia, right?
As for this specific case and the specific lying liars who committed perjury by submitting fabricated documents to the Supreme Court (and all the lower courts involved), we all know that nothing at all will happen to them. Consiquences don't exist for the far right.
If it wasn't veering straight into conspiracy theory territory I'd almost think that Roberts et al maliciously picked a fake case just as a fuck you to everyone who thinks rule of law exists or should exist.
posted by sotonohito at 11:29 AM on July 5, 2023 [2 favorites]
I think more likely they just don’t care, but the result is just the same. It’s about power not law, and the extent to which they can be exercise power and get away with it. Everything else is dress up and pretend.
posted by Artw at 11:44 AM on July 5, 2023 [2 favorites]
posted by Artw at 11:44 AM on July 5, 2023 [2 favorites]
Katie Couric talks to Neal Katyal about these recent SCOTUS decision. [30m]
posted by hippybear at 11:54 AM on July 5, 2023
posted by hippybear at 11:54 AM on July 5, 2023
I'm petty sure I've been told several times that the Supreme Court can't just pick an issue and make a ruling based on hypotheticals but that the rules (always binding on the weak, never on the strong) strictly require that an actual case exist.
You've been told wrong.
posted by Galvanic at 12:11 PM on July 5, 2023 [2 favorites]
You've been told wrong.
posted by Galvanic at 12:11 PM on July 5, 2023 [2 favorites]
Is there something clear we can read about hypotheticals and Supreme Court cases? In general, or specifically about this case. I'm confused about it too.
posted by Nelson at 12:44 PM on July 5, 2023
posted by Nelson at 12:44 PM on July 5, 2023
There's a good article about hypotheticals here:
https://www.usatoday.com/story/news/politics/2013/10/23/supreme-court-hypothetical-questions/3108881/
Pre-enforcement challenges come from Ex parte Young, 209 U.S. 123 (1908), which concluded that the court must allow challenges to laws in cases where the consequences of breaking the laws are so bad that no one will risk it (to use a hypothetical: an unjust law that's penalty was the immediate loss of a leg; no one would risk the maiming and thus no one would be able to bring a court case because they wouldn't have standing (Wow. I promise that I did not start out with that pun in mind. Sorry!)
posted by Galvanic at 12:58 PM on July 5, 2023 [4 favorites]
https://www.usatoday.com/story/news/politics/2013/10/23/supreme-court-hypothetical-questions/3108881/
Pre-enforcement challenges come from Ex parte Young, 209 U.S. 123 (1908), which concluded that the court must allow challenges to laws in cases where the consequences of breaking the laws are so bad that no one will risk it (to use a hypothetical: an unjust law that's penalty was the immediate loss of a leg; no one would risk the maiming and thus no one would be able to bring a court case because they wouldn't have standing (Wow. I promise that I did not start out with that pun in mind. Sorry!)
posted by Galvanic at 12:58 PM on July 5, 2023 [4 favorites]
Pre-enforcement challenges exist and are somewhat common. This happened in Whole Women's Health vs Texas, for example, where an abortion provider sued to challenge the law before they were charged under it.
You can't come to the Court with a completely made-up hypothetical with no bearing on likely reality.
You can come to the Court with a hypothetical that is almost certain to occur. For example, if you offer abortion services, it's extremely likely that at some point someone will come to you and get an abortion. Rather than waiting for the state to press criminal charges against you, you can do a pre-enforcement challenge.
You and the defending party can agree to say "Let's pretend you just did an abortion at N weeks. We think we'd charge you under this new law", and the Court can say "OK, that is / is not constitutional", and the plaintiff can then go forward under a clear precedent that they won't be charged, or stop prior to committing a crime or civil violation.
The Court absolutely fucked up the decision here, but taking up the case of a person seeking a clear ruling prior to entering an obvious eventuality of running their prospective business is not why they fucked up.
Consider this situation: You want to open up an abortion clinic in Spokane. It's extremely likely that clients from Idaho will cross the border for your services. You really, really, really don't want to risk going to jail for murder, but Idaho passes a law saying that abortion is murder now. So you go to court and say "Let's say I did an abortion for an Idaho resident, are you going to try to charge me even though the abortion occurred in Washington State?". You, Idaho, and the court can agree that this is an eventuality that you have the right to get clarity on ahead of time. This is good for literally everyone involved - you don't risk going to jail, Idaho gets to settle this outside the context of an expensive criminal proceeding, and once you hopefully win, Spokane residents get a new abortion clinic. Without the ability to do a pre-enforcement challenge under stipulated facts, you'd never open in the clinic in the first place since the risk of being jailed for life under the Idaho law is just too high.
posted by 0xFCAF at 1:02 PM on July 5, 2023 [3 favorites]
You can't come to the Court with a completely made-up hypothetical with no bearing on likely reality.
You can come to the Court with a hypothetical that is almost certain to occur. For example, if you offer abortion services, it's extremely likely that at some point someone will come to you and get an abortion. Rather than waiting for the state to press criminal charges against you, you can do a pre-enforcement challenge.
You and the defending party can agree to say "Let's pretend you just did an abortion at N weeks. We think we'd charge you under this new law", and the Court can say "OK, that is / is not constitutional", and the plaintiff can then go forward under a clear precedent that they won't be charged, or stop prior to committing a crime or civil violation.
The Court absolutely fucked up the decision here, but taking up the case of a person seeking a clear ruling prior to entering an obvious eventuality of running their prospective business is not why they fucked up.
Consider this situation: You want to open up an abortion clinic in Spokane. It's extremely likely that clients from Idaho will cross the border for your services. You really, really, really don't want to risk going to jail for murder, but Idaho passes a law saying that abortion is murder now. So you go to court and say "Let's say I did an abortion for an Idaho resident, are you going to try to charge me even though the abortion occurred in Washington State?". You, Idaho, and the court can agree that this is an eventuality that you have the right to get clarity on ahead of time. This is good for literally everyone involved - you don't risk going to jail, Idaho gets to settle this outside the context of an expensive criminal proceeding, and once you hopefully win, Spokane residents get a new abortion clinic. Without the ability to do a pre-enforcement challenge under stipulated facts, you'd never open in the clinic in the first place since the risk of being jailed for life under the Idaho law is just too high.
posted by 0xFCAF at 1:02 PM on July 5, 2023 [3 favorites]
Can you be jailed in WA for a law in ID? Wouldn't you need to be in ID for that to be effective?
If you live in ID you can buy and smoke pot in WA but you can't carry pot back into ID.
So how can you not get an abortion in WA as long as you don't somehow carry that abortion back into ID? Maybe you get a hotel room until the drugs have done their work?
Like, I used to go into Mexico and buy alcohol and never had to pay tax on it when I brought it back into the US even though I would have if I'd bought it in the US.
I guess I need more schooling on interstate law and how it works. I guess the murder thing carries across state lines? But then we end up at another court case about the beginning of life, and that's just bullshit because nobody agrees on that.
posted by hippybear at 1:18 PM on July 5, 2023
If you live in ID you can buy and smoke pot in WA but you can't carry pot back into ID.
So how can you not get an abortion in WA as long as you don't somehow carry that abortion back into ID? Maybe you get a hotel room until the drugs have done their work?
Like, I used to go into Mexico and buy alcohol and never had to pay tax on it when I brought it back into the US even though I would have if I'd bought it in the US.
I guess I need more schooling on interstate law and how it works. I guess the murder thing carries across state lines? But then we end up at another court case about the beginning of life, and that's just bullshit because nobody agrees on that.
posted by hippybear at 1:18 PM on July 5, 2023
I live in Spokane, which was mentioned directly, so that's why I'm extra curious about this statement.
posted by hippybear at 1:18 PM on July 5, 2023
posted by hippybear at 1:18 PM on July 5, 2023
It's a hypothetical example. Imagine the law said that any provider outside the state could be charged as long as the patient was an Idaho resident. It's clearly unconstitutional, but you shouldn't have to risk life in prison in order to get it struck down.
posted by 0xFCAF at 1:20 PM on July 5, 2023 [1 favorite]
posted by 0xFCAF at 1:20 PM on July 5, 2023 [1 favorite]
Thank you for the explanation 0xFCAF. By this logic I understand why a hypothetical case would be brought about a gay wedding website. And it explains why Sotomayor would be unperturbed that 303 Creative did not actually make wedding websites.
It still doesn't explain this part of the fabrication (from TNR's reporting)
The exact details about the fabricated inquiry are confusing, with a gap between the supposed event and when it was added to the court filing. And according to TNR's reporting they may not matter to the ultimate decision
posted by Nelson at 2:12 PM on July 5, 2023 [3 favorites]
It still doesn't explain this part of the fabrication (from TNR's reporting)
Smith further claimed, in past sworn statements and in filings submitted to the Supreme Court, that she received an inquiry from a same-sex couple named Stewart and Mike to build them a wedding website.I haven't read the court documents but my understanding from the reporting isn't that Smith was talking about a hypothetical situation. That she said there was a real gay couple who really made an inquiry. Based on further reporting that seems like a straight-out lie to the court.
The exact details about the fabricated inquiry are confusing, with a gap between the supposed event and when it was added to the court filing. And according to TNR's reporting they may not matter to the ultimate decision
Despite the district court raising doubts about it representing a genuine inquiry from two men getting married—and the court didn’t even raise the real doubt that the couple does not exist—it is now part of the case history, a bit of fan fiction joining the other phantom gays the case invokes. ADF made no mention of Stewart and Mike specifically in their arguments before the Supreme Court this sessionThere's deeper reasons why the Supreme Court's decision feels like injustice. But for it to be based on a case where the plaintiff lied to the court is pretty galling.
posted by Nelson at 2:12 PM on July 5, 2023 [3 favorites]
What Nelson said - if I hypothetically said I was going to start providing abortions without a medical license or any kind of existing or possible business case, that would be bullshit. Which is what we have here. Zero evidence beyond the ease of website building that supports the notion she planned a business and had skills, training, or experience in that field.
posted by Lesser Shrew at 2:15 PM on July 5, 2023
posted by Lesser Shrew at 2:15 PM on July 5, 2023
I still think there is more going on in this case. She was never going to do a gay wedding site. If Tom and Bob asked her to do a wedding site, she would do what every creative in history has done when they didn't want to deal with a particular client. She would price it outrageously or be too busy for their project.
posted by COD at 2:18 PM on July 5, 2023 [2 favorites]
posted by COD at 2:18 PM on July 5, 2023 [2 favorites]
> Can you be jailed in WA for a law in ID?
Not for abortion, because of our brand new shield laws.
posted by The corpse in the library at 2:24 PM on July 5, 2023
Not for abortion, because of our brand new shield laws.
posted by The corpse in the library at 2:24 PM on July 5, 2023
that's what makes this country great - we have BOTH
Yes, there are many business disputes that devolve into murdering people in the street because the parties involved don't have recourse to the courts. It's one of the worst effects of our moronic war on drugs. (And that's not getting into the rest of the petty shit that people would handle through legal process if it wasn't byzantine and expensive)
Obviously, it's not the only reason people murder each other in the streets, but it's a pretty large fraction in some places.
posted by wierdo at 2:36 PM on July 5, 2023
Yes, there are many business disputes that devolve into murdering people in the street because the parties involved don't have recourse to the courts. It's one of the worst effects of our moronic war on drugs. (And that's not getting into the rest of the petty shit that people would handle through legal process if it wasn't byzantine and expensive)
Obviously, it's not the only reason people murder each other in the streets, but it's a pretty large fraction in some places.
posted by wierdo at 2:36 PM on July 5, 2023
How rude would it be to start calling certain swathes of evangelicals 'devil worshipers'?
I was recently imagining a political cartoon that did essentially that after the decision that requires states to give money to religious schools if they provide funding for any public school alternatives.
Sadly, my drawing skills are essentially non-existent, so you won't get to see a cartoon of the devil wearing a cross on a gold chain holding up a school building like a piggy bank and eating all the coins falling out the door while surrounded by a horde of cheering evangelicals as Jesus and a small group of people look on from the other side of the page in sadness and horror.
posted by wierdo at 2:43 PM on July 5, 2023
I was recently imagining a political cartoon that did essentially that after the decision that requires states to give money to religious schools if they provide funding for any public school alternatives.
Sadly, my drawing skills are essentially non-existent, so you won't get to see a cartoon of the devil wearing a cross on a gold chain holding up a school building like a piggy bank and eating all the coins falling out the door while surrounded by a horde of cheering evangelicals as Jesus and a small group of people look on from the other side of the page in sadness and horror.
posted by wierdo at 2:43 PM on July 5, 2023
"sorry, I don't do tattoos for Black or Jewish people"
Well that's not the facts they argued in oral argument. What she's saying is, it doesn't matter if they're gay, straight, or otherwise, she'll happily sell them one of her other products or even the kind of wedding site she does make. She just doesn't happen to make same-sex wedding sites for anybody, not even hetero couples. Just doesn't make them. Not on the menu. Which the state's lawyer does a bad job in my opinion of pointing out, is the same thing as discriminating against same-sex couples.
Which in the tattoo analogy is more like saying I don't do rainbow tattoos, not even for straight people. I only do swastikas, you're welcome to get that if you want.
posted by ctmf at 4:49 PM on July 5, 2023
Well that's not the facts they argued in oral argument. What she's saying is, it doesn't matter if they're gay, straight, or otherwise, she'll happily sell them one of her other products or even the kind of wedding site she does make. She just doesn't happen to make same-sex wedding sites for anybody, not even hetero couples. Just doesn't make them. Not on the menu. Which the state's lawyer does a bad job in my opinion of pointing out, is the same thing as discriminating against same-sex couples.
Which in the tattoo analogy is more like saying I don't do rainbow tattoos, not even for straight people. I only do swastikas, you're welcome to get that if you want.
posted by ctmf at 4:49 PM on July 5, 2023
I can't help but think that if she advertised her business as being Christian and put pictures of crosses, Jesus, blah de blah, all over the webpage, this might get across her STRAIGHT BUSINESS ONLY message without even needing the Supreme Court...
posted by jenfullmoon at 5:00 PM on July 5, 2023
posted by jenfullmoon at 5:00 PM on July 5, 2023
Some people play the lottery and sit around dreaming about all the things they will do when they win.
In much the same way, Far-Right radical think tanks and strategists sat around and dreamed about what they would do when they had a 6 to 3 majority on SCOTUS, and this is part of that dream.
posted by ambulocetus at 6:14 PM on July 5, 2023 [3 favorites]
In much the same way, Far-Right radical think tanks and strategists sat around and dreamed about what they would do when they had a 6 to 3 majority on SCOTUS, and this is part of that dream.
posted by ambulocetus at 6:14 PM on July 5, 2023 [3 favorites]
Two things, first while this technically deals with creative industries its a nationwide discrimination twist on "You can beat the rap but you can't beat the ride". What are you gonna do in the moment? Beg the cops? No, you'll have to sue, if you have money and willpower and time.
Second, "No Rules, Just Right, Outback" is not what you want people practicing in their day to day. The "ethics officer" who complained about Khan's suit against Meta while holding Meta stock is a great example. What happens when critical safety corners are cut in industries that are largely invisible to you until a boil-water or evac advisory comes down?
The rot has been setting in
posted by Slackermagee at 9:22 PM on July 5, 2023
Second, "No Rules, Just Right, Outback" is not what you want people practicing in their day to day. The "ethics officer" who complained about Khan's suit against Meta while holding Meta stock is a great example. What happens when critical safety corners are cut in industries that are largely invisible to you until a boil-water or evac advisory comes down?
The rot has been setting in
posted by Slackermagee at 9:22 PM on July 5, 2023
Hate group insists they didn’t make up the fake gay couple in their Supreme Court case.
posted by Nelson at 8:02 AM on July 6, 2023 [2 favorites]
ADF also now says that anyone could have fabricated Stewart’s request for a website, saying “the more likely scenario” is that “‘Stewart’ or another activist did in fact submit the request.” While it’s possible that someone else sent in the request – or that Stewart made up an elaborate lie about being a straight web designer in California for no discernable reason – it’s unclear why ADF didn’t call Stewart up and confirm his identity when the trial judge suggested that either he or Mike could be a woman.(The journalist here is being polite. The simplest explanation is the ADF didn't try to confirm the information they were submitting to the court because they fabricated it.)
posted by Nelson at 8:02 AM on July 6, 2023 [2 favorites]
As for creatives and all that I think people here are making the error of seeing this as a law that is part of a system of justice based on equal application of law.
This is just a naked declaration of privilege. Right wing Christian bigots get to discriminate, that right is not extended to anyone else. If a gay designer put out a no Christians allowed sign they'd be found in violation of any number of anti-discrimination laws and none of the six Republican Justices would reverse it.
This is the Trump Supreme Court in action and this is for it will be for the next 20+ years unless the Democrats expand the Court.
posted by sotonohito at 8:41 AM on July 6, 2023 [3 favorites]
This is just a naked declaration of privilege. Right wing Christian bigots get to discriminate, that right is not extended to anyone else. If a gay designer put out a no Christians allowed sign they'd be found in violation of any number of anti-discrimination laws and none of the six Republican Justices would reverse it.
This is the Trump Supreme Court in action and this is for it will be for the next 20+ years unless the Democrats expand the Court.
posted by sotonohito at 8:41 AM on July 6, 2023 [3 favorites]
If a gay designer put out a no Christians allowed sign they'd be found in violation of any number of anti-discrimination laws and none of the six Republican Justices would reverse it.
Oh, I'd like to see them try. Because the Supreme Court has to base things on prior legal precedent....and now prior legal precedent includes the 303 ruling.
posted by EmpressCallipygos at 8:43 AM on July 6, 2023
Oh, I'd like to see them try. Because the Supreme Court has to base things on prior legal precedent....and now prior legal precedent includes the 303 ruling.
posted by EmpressCallipygos at 8:43 AM on July 6, 2023
Oh, I'd like to see them try. Because the Supreme Court has to base things on prior legal precedent....and now prior legal precedent includes the 303 ruling.
Lol.
posted by orange ball at 8:49 AM on July 6, 2023
Lol.
posted by orange ball at 8:49 AM on July 6, 2023
Don't just "lol". Explain where I am misunderstanding everything I've ever learned about the functioning of the Supreme Court, and please use actual facts instead of doomcasting.
posted by EmpressCallipygos at 8:51 AM on July 6, 2023 [1 favorite]
posted by EmpressCallipygos at 8:51 AM on July 6, 2023 [1 favorite]
The Supreme Court doesn't "have" to do anything with regard to precedent. It's just a thing they say to create the appearance of neutrality or legitimacy.
posted by 0xFCAF at 9:01 AM on July 6, 2023 [2 favorites]
posted by 0xFCAF at 9:01 AM on July 6, 2023 [2 favorites]
Apologies—it was a snort directed at the court, not at you. I should’ve made that clear.
I’m not a lawyer and I’m fully prepared for someone smarter than me to respond and explain why I’m completely wrong, but…
Forget everything you’ve learned about the rules of the court. These 6 will rule however they feel. Roe was precedent. Gone. They’ll make shit up to cover up the hypocrisy and when that doesn’t work, they’ll simply smirk.
The ends justify the means.
posted by orange ball at 9:01 AM on July 6, 2023 [2 favorites]
I’m not a lawyer and I’m fully prepared for someone smarter than me to respond and explain why I’m completely wrong, but…
Forget everything you’ve learned about the rules of the court. These 6 will rule however they feel. Roe was precedent. Gone. They’ll make shit up to cover up the hypocrisy and when that doesn’t work, they’ll simply smirk.
The ends justify the means.
posted by orange ball at 9:01 AM on July 6, 2023 [2 favorites]
Forget everything you’ve learned about the rules of the court. These 6 will rule however they feel. Roe was precedent. Gone. They’ll make shit up to cover up the hypocrisy and when that doesn’t work, they’ll simply smirk.
I think that's certainly true of Alito and Thomas (though Thomas has actually been pretty consistent in his legal analyses; it's just that his analyses are completely whack doodle).
Roberts is interested in the perceived legitimacy of the Court and so, no, I don't think he would do whatever he wanted and smirk. The voting rights case this year is an example of him moderating what the extreme right wingers would have done, and that case may well have tipped the House to the Democrats in 2024. He's done that before -- the Obamacare case is a classic one, where Roberts essentially made sh** up to get to the ruling upholding Obamacare.* He voted the same way as Kagan this term substantially more often than he voted with Thomas (in non-unanimous decisions).
You can see the pattern in Dobbs. Dobbs was 6-3 to uphold the Miss. law banning abortion after 15 weeks, with Roberts as part of the majority. But he did *not* vote to overturn Roe v. Wade, writing a concurring opinion instead of joining the majority opinion of Thomas (so the overturn vote was 5-4). He wanted to limit the right substantially but not end it. The interesting additional thing is that Barrett and Kavanaugh joined the overturn vote, but have been substantially more restrained this term -- I wonder if the blowback over Dobbs made them think Roberts had a point.
*He figured out a way to call the individual mandate in Obamacare a tax, rather than a penalty, which allowed him to [insert Constitutional warble-garble here] and uphold the ACA
posted by Galvanic at 9:55 AM on July 6, 2023
I think that's certainly true of Alito and Thomas (though Thomas has actually been pretty consistent in his legal analyses; it's just that his analyses are completely whack doodle).
Roberts is interested in the perceived legitimacy of the Court and so, no, I don't think he would do whatever he wanted and smirk. The voting rights case this year is an example of him moderating what the extreme right wingers would have done, and that case may well have tipped the House to the Democrats in 2024. He's done that before -- the Obamacare case is a classic one, where Roberts essentially made sh** up to get to the ruling upholding Obamacare.* He voted the same way as Kagan this term substantially more often than he voted with Thomas (in non-unanimous decisions).
You can see the pattern in Dobbs. Dobbs was 6-3 to uphold the Miss. law banning abortion after 15 weeks, with Roberts as part of the majority. But he did *not* vote to overturn Roe v. Wade, writing a concurring opinion instead of joining the majority opinion of Thomas (so the overturn vote was 5-4). He wanted to limit the right substantially but not end it. The interesting additional thing is that Barrett and Kavanaugh joined the overturn vote, but have been substantially more restrained this term -- I wonder if the blowback over Dobbs made them think Roberts had a point.
*He figured out a way to call the individual mandate in Obamacare a tax, rather than a penalty, which allowed him to [insert Constitutional warble-garble here] and uphold the ACA
posted by Galvanic at 9:55 AM on July 6, 2023
It's not just about overturning precedent, and it is not just about smirking, but also ruling on cases that justices would otherwise be expected to step down from, because they take direct bribes — monetary or cash value equivalent — from parties involved in those cases. I get the desire for legal minds to analyze these decisions and find some way to justify the actions of this or that justice, but it is rationalization of a process that is plainly rigged and seemingly un-rationalizable to start with.
posted by They sucked his brains out! at 10:39 AM on July 6, 2023 [1 favorite]
posted by They sucked his brains out! at 10:39 AM on July 6, 2023 [1 favorite]
EmpressCallipygos I hope you're right and I'm wrong, and maybe I'm just doomcasting, but the avalanche of Trump Court decisions to say fuck you to anyone who isn't a rich cis het white Protestant man seem to me to be an indicator that the Republican Justices realized that the blowback from Dobbs was nothing but meaningless howls from powerless people they hate and can abuse at will.
If the elected Democrats were going to do anything about unchecked Republican rulings it would have been immediately after Dobbs.
Instead they sang America the Beautiful, Biden scolded leftists for violence that hadn't happened, and Harris smirked and said "do what" when desperate people asked her what the Democrats were doing.
To me that looks like our Sandy Hook moment.
In both cases the Republicans were nervous immediately afterward, they worried that surely this. But in both cases there was no surely this moment and after the immediate worry that they'd finally pushed the Democrats into action passed they came back worse than ever.
And now, reassued that the Democrats remain weak cowards who will never take action no matter how extreme the provocation, they'll scale up the aggression and push the boundaries even further.
They found that they can go so extreme as to overturn Roe without the Democrats doing anything.
Yeah, they didn't actually end democracy, but that was while they were still concerned there might be some real blowback over Dobbs. Now they know there isn't so they killed affirmative action, told college students they were debt peons for life, and ruled that Christians are immune to anti-discrimination laws. I think the supposedly narrow ruling isn't really narrow, it's just the tip of the wedge.
Maybe I'm too pessimistic. I hope I'm wrong and you're right. But I don't see any reason at all to believe this new ruling will be applied evenly.
posted by sotonohito at 1:17 PM on July 6, 2023 [2 favorites]
If the elected Democrats were going to do anything about unchecked Republican rulings it would have been immediately after Dobbs.
Instead they sang America the Beautiful, Biden scolded leftists for violence that hadn't happened, and Harris smirked and said "do what" when desperate people asked her what the Democrats were doing.
To me that looks like our Sandy Hook moment.
In both cases the Republicans were nervous immediately afterward, they worried that surely this. But in both cases there was no surely this moment and after the immediate worry that they'd finally pushed the Democrats into action passed they came back worse than ever.
And now, reassued that the Democrats remain weak cowards who will never take action no matter how extreme the provocation, they'll scale up the aggression and push the boundaries even further.
They found that they can go so extreme as to overturn Roe without the Democrats doing anything.
Yeah, they didn't actually end democracy, but that was while they were still concerned there might be some real blowback over Dobbs. Now they know there isn't so they killed affirmative action, told college students they were debt peons for life, and ruled that Christians are immune to anti-discrimination laws. I think the supposedly narrow ruling isn't really narrow, it's just the tip of the wedge.
Maybe I'm too pessimistic. I hope I'm wrong and you're right. But I don't see any reason at all to believe this new ruling will be applied evenly.
posted by sotonohito at 1:17 PM on July 6, 2023 [2 favorites]
I'm curious exactly what form you want this blowback to take?
When Dobbs was overturned, there wasn't the number of people in the Senate required to take any serious action against anything SCOTUS might be doing.
Are you thinking armed uprisings in the streets? Mobs with pitchforks at justices' houses?
Even before the 2022 elections we weren't in a position where the people who had the power to hold SCOTUS accountable had enough numbers behind them to actually change things even immediately after Dobbs.
There are a lot of tiny fiddly bits lining up right now that make most response from opponents to these rulings difficult to accomplish within anything that resembles decorum and rule of law.
So, you're saying that "the Republican Justices realized that the blowback from Dobbs was nothing but meaningless howls"... I just have no idea what other response you might expect that remains within the bounds of what our elected officials could do. And if you want more than that, what public action would you like to see from the masses to affect the required change?
posted by hippybear at 1:31 PM on July 6, 2023 [1 favorite]
When Dobbs was overturned, there wasn't the number of people in the Senate required to take any serious action against anything SCOTUS might be doing.
Are you thinking armed uprisings in the streets? Mobs with pitchforks at justices' houses?
Even before the 2022 elections we weren't in a position where the people who had the power to hold SCOTUS accountable had enough numbers behind them to actually change things even immediately after Dobbs.
There are a lot of tiny fiddly bits lining up right now that make most response from opponents to these rulings difficult to accomplish within anything that resembles decorum and rule of law.
So, you're saying that "the Republican Justices realized that the blowback from Dobbs was nothing but meaningless howls"... I just have no idea what other response you might expect that remains within the bounds of what our elected officials could do. And if you want more than that, what public action would you like to see from the masses to affect the required change?
posted by hippybear at 1:31 PM on July 6, 2023 [1 favorite]
rationalization of a process that is plainly rigged
My point would be that it's not rigged -- at least not to the degree that you're positing. If it was, Roberts would have voted to overturn Obamacare, the Supreme Court would have taken up Trump's appeal to overturn the election and reinstalled him in the White House, and Louisiana wouldn't be getting another Black-majority Congressional district.
posted by Galvanic at 1:34 PM on July 6, 2023
My point would be that it's not rigged -- at least not to the degree that you're positing. If it was, Roberts would have voted to overturn Obamacare, the Supreme Court would have taken up Trump's appeal to overturn the election and reinstalled him in the White House, and Louisiana wouldn't be getting another Black-majority Congressional district.
posted by Galvanic at 1:34 PM on July 6, 2023
Everything I know about this court leads me to believe that all the things you mention are Roberts trying to keep some small hold on the legitimacy of the Court even while he is helping shepherd its decisions into a reform of US culture through legal change.
He wanted to do baby steps with the Dobbs decision but was overruled. He's struggling desperately to keep people thinking this court can do the right things even while they keep doing the wrong things. The Thomas and Alito and other scandals aren't helping, and KBJ is holding his feet to the public fire. But she's one out of nine, and even she doesn't have the support you always expect.
When I was growing up, people on SCOTUS were people you only heard of during their confirmation. They weren't public figures. I think I remember when Sandra Day O'Connor retired and she started making public speeches, that was a bit of A Thing, because Justices just weren't public figures.
I don't know if this today is better or worse. I do know we're finding out a LOT more about our SCOTUS Justices than we have before. If you haven't listened to the season of Slow Burn, Becoming Justice Thomas [Podcast page link, 4 episodes], it's worth a listen. Something in him changed. He was a Malcom X radical in his past. I didn't know that before listening to this podcast.
posted by hippybear at 1:46 PM on July 6, 2023
He wanted to do baby steps with the Dobbs decision but was overruled. He's struggling desperately to keep people thinking this court can do the right things even while they keep doing the wrong things. The Thomas and Alito and other scandals aren't helping, and KBJ is holding his feet to the public fire. But she's one out of nine, and even she doesn't have the support you always expect.
When I was growing up, people on SCOTUS were people you only heard of during their confirmation. They weren't public figures. I think I remember when Sandra Day O'Connor retired and she started making public speeches, that was a bit of A Thing, because Justices just weren't public figures.
I don't know if this today is better or worse. I do know we're finding out a LOT more about our SCOTUS Justices than we have before. If you haven't listened to the season of Slow Burn, Becoming Justice Thomas [Podcast page link, 4 episodes], it's worth a listen. Something in him changed. He was a Malcom X radical in his past. I didn't know that before listening to this podcast.
posted by hippybear at 1:46 PM on July 6, 2023
It's not always as obvious as Dobbs, where they explicitly said Roe had been incorrectly decided.
For example, as far as I'm aware Chevron deference is still technically precedent, meaning the court would recognize the expertise of Executive agencies to resolve ambiguities in the law. But it clearly didn't matter to them in Sackett v. EPA (scope of the Clean Water Act), Biden v. Nebraska (student loan forgiveness), or NFIB v. Department of Labor (COVID mask mandates for federal workers) West Virginia v. EPA (clean energy sources).
Oklahoma v. Castro-Huerta ignored centuries of precedent about the primacy of the federal government over the states in issues with Native tribes. Vega v. Tekoh ignored precedent to say there's no cause of action (per 42 U. S. C. §1983) if the cops don't read you your Miranda rights.
Unless I'm mistaken none of these decisions explicitly said they were overturning a particular precedent, they would just step over it while the liberal justices could only yell into the wind in their dissents.
Again, it is almost always more useful to understand the conservative justices' opinions if you work backward from their desired conclusions; their reliance on precedent, originalism, textualism, or some new doctrine invented out of whole cloth makes more sense when you realize they choose whichever one is most convenient in the moment.
posted by Riki tiki at 1:53 PM on July 6, 2023 [5 favorites]
For example, as far as I'm aware Chevron deference is still technically precedent, meaning the court would recognize the expertise of Executive agencies to resolve ambiguities in the law. But it clearly didn't matter to them in Sackett v. EPA (scope of the Clean Water Act), Biden v. Nebraska (student loan forgiveness), or NFIB v. Department of Labor (COVID mask mandates for federal workers) West Virginia v. EPA (clean energy sources).
Oklahoma v. Castro-Huerta ignored centuries of precedent about the primacy of the federal government over the states in issues with Native tribes. Vega v. Tekoh ignored precedent to say there's no cause of action (per 42 U. S. C. §1983) if the cops don't read you your Miranda rights.
Unless I'm mistaken none of these decisions explicitly said they were overturning a particular precedent, they would just step over it while the liberal justices could only yell into the wind in their dissents.
Again, it is almost always more useful to understand the conservative justices' opinions if you work backward from their desired conclusions; their reliance on precedent, originalism, textualism, or some new doctrine invented out of whole cloth makes more sense when you realize they choose whichever one is most convenient in the moment.
posted by Riki tiki at 1:53 PM on July 6, 2023 [5 favorites]
The women on the podcast Strict Scrutiny call this the YOLO court, and I think not without reason. They have recognized now is their time to act, and they're going to do All The Things They Can while they have this window open.
posted by hippybear at 1:56 PM on July 6, 2023 [2 favorites]
posted by hippybear at 1:56 PM on July 6, 2023 [2 favorites]
When I was growing up, people on SCOTUS were people you only heard of during their confirmation
There is no time in the past century when this was remotely true*, so either you’re really old or you weren’t paying attention.
*and yes, I will walk through that history for you if you like, year by year.
posted by Galvanic at 8:05 PM on July 6, 2023
There is no time in the past century when this was remotely true*, so either you’re really old or you weren’t paying attention.
*and yes, I will walk through that history for you if you like, year by year.
posted by Galvanic at 8:05 PM on July 6, 2023
Well, I was born well into the century before the one we're living in. I don't know what you mean by "really old'.
posted by hippybear at 5:52 AM on July 7, 2023
posted by hippybear at 5:52 AM on July 7, 2023
When I was growing up, people on SCOTUS were people you only heard of during their confirmation.
That's because you were growing up. Guessing that you're in your 50s like me, they were in the news, but that was back when it was just the news and not an endless news cycle mixed up with ragebait social media.
posted by GCU Sweet and Full of Grace at 6:36 AM on July 7, 2023 [7 favorites]
That's because you were growing up. Guessing that you're in your 50s like me, they were in the news, but that was back when it was just the news and not an endless news cycle mixed up with ragebait social media.
posted by GCU Sweet and Full of Grace at 6:36 AM on July 7, 2023 [7 favorites]
A Real Wedding Website in a Fake Gay Wedding Website Case. Another fabrication in the original court case.
In 2015, a web designer named Lorie Smith featured the wedding website in her portfolio of recent work ... The page detailing her role in the wedding website’s creation was removed some time before she filed a legal challenge—one that claimed she was unable to enter the wedding website business because Colorado’s anti-discrimination law would compel her to create same-sex wedding websites. The wedding website Smith made before she filed her case—and highlighted in a portfolio on her own site—is being reported for the first time in The New Republic.posted by Nelson at 6:36 AM on July 26, 2023 [1 favorite]
What could be the repercussions of that?
posted by The corpse in the library at 10:50 AM on July 26, 2023
posted by The corpse in the library at 10:50 AM on July 26, 2023
There are no repercussions for that.
The Court will not change its ruling, nor will it enforce any sanctions against lawyers who lie to it in support of its approved ideological determinations. It can't, because the justices themselves are lying in some of their decisions.
posted by suelac at 11:58 AM on July 26, 2023 [5 favorites]
The Court will not change its ruling, nor will it enforce any sanctions against lawyers who lie to it in support of its approved ideological determinations. It can't, because the justices themselves are lying in some of their decisions.
posted by suelac at 11:58 AM on July 26, 2023 [5 favorites]
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posted by anotherpanacea at 9:40 AM on July 4, 2023 [7 favorites]