Their goal is clear: to convince voters that the court is dangerous, and the only solution is to elect a president and senators who will seat liberal justices.

It’s working. Just one month after the Dobbs ruling, public approval of the court had fallen to 38 percent — compared with 60 percent a year prior. A few months later, a Marquette Law School poll found that at least half the country was open to expanding the Supreme Court.

The offensive has come from all corners, leaving the court’s defenders little time to adjust to one attack — such as ProPublica’s investigations into leading conservative justices — before a new attack arises — Rep. Alexandria Ocasio-Cortez (D-N.Y.) calling the court “authoritarian,” Sen. Dick Durbin (D-Ill.) and Sen. Chuck Schumer ­(D-N.Y.) trying to create new oversight and Biden calling the court a “MAGA crowd.”

With the 2024 elections just 16 months away, the Supreme Court’s beleaguered defenders have limited time to rebalance the public opinion scales. Constitutional and originalist arguments look great in a white paper, but they don’t sell to voters whose emotions drive them more than history and the Constitution do. On the other extreme, it’s easy to “own the libs” with counterpunching, but that won’t win undecided voters who are being told by virtually every major American media outlet that the high court is a danger to the nation.

The court’s defenders need to go back to public relations basics, and fast, before the critics’ narrative drives panicked voters to the 2024 polls.

First, remember the target audience. Knocking AOC down a peg might feel good, but what does it do to sway undecided voters? This is the narrow segment of voters that matters most, and these people aren’t really paying attention to the Twitter-verse of political punching and counterpunching. In fact, they’re exhausted by it … but they’re also not educated on why originalism matters, or whether the conflict-of-interest claims against Justices Thomas and Alito amount to anything.

Second, know what sells with that target audience. The grocery store Aldi claims to have the lowest prices — and the company has national studies to prove it. Barack Obama beat Hillary Clinton in 2008 in part because Ted Kennedy’s endorsement was the gold standard for older, white, conservative Democrats — and Kennedy broke for Obama. Supreme Court defenders can go on offense with the same strategy, citing key data points that rely on facts instead of opinions and sources voters will trust:

• An annual report shows that the court’s median justice is in line with the ideological norm going back three decades, and that the average conservative justice is about as conservative as the average liberal justice is liberal.
• Last term’s liberal-friendly decisions from the court, such as a redistricting decision that will likely favor Democratic voter constituencies and rejecting challenges to Biden administration immigration rules and Native American adoption priorities, and ruling that Alabama’s redistricting may violate the Voting Rights Act. These are hardly “MAGA crowd” decisions that a “racist” court would make.
• The justices sticking together, like with the 9-0 win in favor of the Christian who wanted Sundays off from work and the April letter all nine justices signed to defend the court from Senate oversight. This shows that while the “conservative/liberal” split is real, it is likely not as large as it is portrayed.
• Most Americans support the decisions about student loan forgiveness, affirmative action and business owners’ free speech. Supporting the court’s “controversial” decisions puts moderate voters in good company.

Third, use the principles of “surround-sound” marketing and branding to put the pro-court narrative in front of target audiences as often and in as many ways as possible. Obama did this with data-driven, micro-targeted TV ads that conservatives mocked — and it earned him the White House. Trump did it in 2016 with several simple messages that used Facebook’s algorithms to spread his supporters’ engagement like wildfire. The Supreme Court’s defenders must reach moderate voters where they are: on social media, listening to relevant influencers and campaign ads, and absorbing corporate media like CNN, NPR and the New York Times.

Today’s political culture relies heavily on the crises, opportunities and politics of right now. But the court’s critics didn’t just jump into criticizing after Dobbs; they built alliances and messaging for years that were ready to accelerate at the press of a button. The court’s defenders must take the same long-term campaign approach, or they may find themselves producing beautiful white papers, “owning the libs” … and losing the court.

Dustin Siggins founded the media relations firm Proven Media Solutions. His work has appeared in national outlets such as Newsweek, USA Today and Forbes.

He hardly meant a judge’s rap sheet of sorts. Rather, he meant a collection, even a collage, of all of a judge’s learning, thinking and experience brought to the bench after taking the oath — whether or not that thinking and experience were in the public interest.

Accordingly, Posner, the greatest philosopher of the judicial process since Benjamin Cardozo himself, iterated that judges invariably bring to the table things that, judicial objectivity suggests, they should ideally discard on the up ramp to their special seats of authority. This, notwithstanding the impossibility of doing so. 

Undeniably, a judge’s priors might actually be as disturbingly momentous as Justice Hugo Black’s “prior” membership in the Ku Klux Klan, long before FDR nominated him to the Supreme Court. There, ironically, he became its most liberal justice for a time.

Notably, President Biden and former President Trump before him have both unambiguously used their nominating authority to select judges to fulfill aspects of their political agendas. What used to be viewed as a negative — the abhorrent “litmus test” on how judges will rule on a particular issue — is behind us. 

Actually, there’s no need for it. Judicial candidates today have typically written or spoken sufficiently on such issues for the president to know going into the nominating process what the candidate thinks and how they may decide on core issues of concern. And where the “prior” is based on the candidate’s religion, race, ethnicity or gender identity, the president will typically — albeit not necessarily always — have a great insight into where the confirmed judge or justice will come out. In Trump’s case, since about half of his nominees were members of The Federalist Society, he was largely assured of their “politics,” if you will. The interview process was largely a formality.  

That, though, is not the whole of it. There is of course the question of whether a corporate lawyer, for instance, can later as a judge fairly consider a class action lawsuit brought by a plaintiff against a corporation. Can a career death penalty prosecutor abandon his reflexive view that death sentences are warranted when he comes to sit on such cases? Or can a judge who had been general counsel to an anti-abortion lobby treat an abortion rights litigation with total objectivity?

By the same token, can a judge rule in favor of a gay rights lawsuit even if his background and prior career reveal a strong opposition to gay marriage? Can a progressive Black judge leave behind her “priors” when dealing with cases having to do with racial issues such as discrimination?

A litigant will of course have questions about a judge’s ability, or even willingness, to put to the side what might appear to be his or her predispositions. In truth, however, there exist vital precedents that reveal the predictability of a judge’s judging is not automatic at all. 

We choose examples of Supreme Court nominees as they are better known. President Dwight Eisenhower nominated the Republican governor of California, Earl Warren, (who had strongly favored the Japanese Exclusion from the West Coast during World War II) as chief justice of the Supreme Court. Warren, surprisingly, became a great liberal on the court. Eisenhower later lamented that nominating Warren was “the biggest damn fool mistake I ever made.”

Whether or not Eisenhower’s negative assessment of Warren was accurate, his exemplar presents great proof that a naïve belief in easy predictability of how a judge may rule is deeply flawed. The Supreme Court pathways of Justices John Paul Stevens, Sandra Day O’Connor and David H. Souter provide added proof that, whether or not the judge changes in terms of his or her beliefs or philosophy regarding society, how he or she will choose to judge controversial cases may remain impervious to easy predictability.

It’s worth noting that the manner in which people change (or remain the same) during the continuums of their personal lives cannot meaningfully be compared to how they change (or remain the same) as judges, once they become judges. Given the nature of their obligations to their oaths, judges may simply have to place to the side everything that moved them before the swearing-in experience. Some do it better (or worse) than others. Chief Justice John Roberts and Justice Brett Kavanaugh, for example, have occasionally shown that capacity.

The incomparable Cardozo, though, said it best: “They [judges] do not stand on these chill and distant heights; and we shall not help the cause of truth by acting and speaking as if they do. The great tides and currents which engulf the rest of men, do not turn aside in their course, and pass the judges by.”

Just look at Justices Warren, Black, O’Connor, Souter and Stevens. You can almost see the tides and currents reflecting where society was flowing at the time, pushing at them in the years that followed after they donned their robes. Would even they themselves, as younger men and women, have imagined where they might ultimately turn out on the compelling issues of the day?

That said, can we, or even a nominating president, be confident in our own expectations of the judges being nominated? Choosing members of the judiciary expecting that their judgments are totally predictable is simply a bad mistake. One should never conflate “predictable” with “aspirational.”  

The Supreme Court is under considerable attack today, given its currently polarized state. It’s up to the justices themselves to consider each case on the merits, putting aside to the extent possible their individual priors, basing their thinking and decision-making on the applicable law itself – each of them.

Hard to do indeed, but certainly something that will ultimately pay great dividends for the body politic as a whole.

Joel Cohen, who practices law at Stroock & Stroock & Lavan in New York, is a former member of the New York State Judicial Conduct Commission. He is the author of “ Blindfolds Off: Judges On How They Decide” (2014) and teaches about judging at both Fordham and Cardozo Law Schools.

In a startling decision released with apparently symbolic timing on July 4, Doughty imposed a sweeping preliminary injunction barring the federal government from communicating with social media companies about reducing disinformation about public health priorities, attempts to undermine elections and other topics of civic importance.  

The plaintiffs — a pair of red state attorneys general and a collection of anti-vaccination activists and conspiracy theorists — shopped for a judge they had every reason to believe would endorse the existence of a “censorship enterprise” consisting of liberal political operatives, deep state bureaucrats, ivory tower leftists and executives at Facebook and Twitter. 

In earlier cases, Doughty has blocked the White House from curbing oil and gas leasing on federal lands, requiring that health care workers get vaccinated and mandating that Head Start teachers also receive COVID-19 protection. Still, even in their most optimistic dreams, the Republican attorneys general of Louisiana and Missouri couldn’t have envisioned an order quite as comprehensive as Doughty’s July 4 injunction barring federal agencies ranging from the Federal Bureau of Investigation to the Office of the Surgeon General from communicating with social media platforms. 

Doughty’s dubious notion that there is a First Amendment right to spread socially harmful disinformation could well become constitutional law. He is overseen by the right-wing-dominated U.S. Court of Appeals for the Fifth Circuit, which, in turn, answers to a Supreme Court now featuring a six-member conservative supermajority, including three Trump appointees. 

But Doughty is wrong on both the law and the facts. And his muddled ruling obscures the need for a more structured, transparent mechanism for the government to communicate with the social media industry about harmful content. 

Bungled law: Government efforts to regulate or otherwise influence speech carried by private outlets have produced a substantial body of judicial precedent, which Doughty thoroughly mangles. Just one example: He asserts that “it is the purpose of the Free Speech Clause of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of the market, whether it be by government itself or private licensee.”

As authority for the point, he cites a 1969 Supreme Court precedent, which actually undercuts Doughty’s reasoning. The high court ruled that in some circumstances, the government may regulate and even compel speech on private platforms.  

Throughout his 155-page opinion, Doughty fails in the basic judicial task of balancing competing interests — in this case, the legitimate government interest in interacting with privately owned speech outlets to promote the public good versus the danger of unconstitutional censorship.  

False “facts”: In his lengthy opinion, Doughty restates the plaintiffs’ factual assertion — an article of faith in conservative circles — that social media companies systematically silence right-leaning speakers. But as I argued in a report published in February 2021 by the NYU Stern Center for Business and Human Rights, there is no reliable research supporting the accusation of bias. On the contrary, the research there is shows that social media algorithms tend to amplify conservative political content. 

Republican-led House hearings in February, which were designed to dramatize the unfounded assertion of anti-conservative bias, in fact, did the opposite. The hearings produced credible testimony that before Elon Musk’s takeover in 2022, Twitter had bent and broken its rules to favor followers of former President Donald Trump and Trump himself, largely out of fear of right-wing backlash. 

Bipartisan scrambling, not conspiring: Since the Obama administration, government officials have communicated extensively with social media companies to try to reduce the spread of terrorist incitement, depictions of child sexual abuse and, more recently, disinformation about the pandemic and elections. Seeking to pin blame exclusively on the Biden administration, Doughty casually dismisses as irrelevant that under the Trump administration, officials with the FBI, the Cybersecurity & Infrastructure Security Agency, and other parts of the government routinely suggested that platforms consider removing harmful content. As president, Trump himself used social media posts, an executive order, and proposed legislative amendments to threaten the platforms with adverse regulatory action or even a potential shut-down if they did not bend to his will. 

The impression a fair reader of the historical record comes to is that Biden administration officials were scrambling in a chaotic environment to keep up with a virtually limitless flow of misleading and sometimes dangerous information. On the company side, line employees and their bosses sometimes welcomed government input, but also sometimes slow-walked or outright rejected advice from Washington. 

The missed opportunity: The blatant partisanship of Doughty’s ruling obscures the real issues lurking in this case. The Biden administration, and the Trump administration before it, have interacted with social media companies in an ad hoc way that, in some instances, may have constituted improper government pressure on private speech outlets. If a scrupulous judge made careful factual distinctions and accurately brought to bear relevant legal precedent, the result might have pointed to what is clearly needed: an explicit and transparent set of rules for both government and industry that could channel communication between the two. These rules could establish procedures and limitations for such interaction, encouraging regular exchanges about societal threats while forbidding anything approaching coercion.  

Sadly, the Doughty injunction seems calculated to further inflame conspiracy-minded conservatives rather than shed light on difficult questions concerning free speech on the internet and how to protect our democracy from corrosive falsehoods.      

Paul M. Barrett is the deputy director of the Center for Business and Human Rights at New York University’s Stern School of Business. 

As everybody still following the Supreme Court knows, the court recently ruled 6-3 in the case of 303 Creative v. Elenis that a website designer with religious beliefs against same-sex marriage had the First Amendment right to turn down same-sex couples if they asked the designer to make wedding websites for them.

But should anybody take the opinions in 303 Creative seriously?

It turns out that no same-sex couple filed a complaint against a wedding website designer, and no actual same-sex couple were parties to the case.

A Colorado website designer instead initiated the legal action. And the designer went to court even though she has never been in the business of making wedding websites. She requested a declaratory judgement that guaranteed her First Amendment right of refusal against any claim of same-sex discrimination under state law ifshe ever were to expand her business to include such websites.

The designer claimed that her company was actively thinking about doing so. And after she filed, her lawyers in court filings added that she had received a call of interest from the member of a same-sex couple planning to marry. But that claim seems to have been fictional, and Justice Neil Gorsuch’s majority opinion stayed away from citing it.

The designer also made sure to claim that she would want to write her own expressive stories about couples and not just take down their thoughts. In other words, the unmistakable smell of a case ideologically manufactured for First Amendment expression from the designer was clearly in the air.

While a good deal of commentary in the media has rightly focused on the very debatable nature of this case, I haven’t seen any that focuses on the following statement about the First Amendment rights of the designer’s company: “The company could, for example, offer only websites with biblical quotations describing marriage as between one man and one woman.” 

This lack of coverage seems like quite an oversight, because it appeared in Justice Sonia Sotomayor’s opinion for the three dissenting justices. 

Sotomayor’s dissenting opinion has been described in the media as “impassioned” (The New York Times) and demonstrating “the depth of her disagreement” (The Washington Post) against the majority’s view. That’s because the dissent rails for quite a while against the majority’s position that if she ever starts doing wedding websites — again, just if — the designer can flatly reject any same-sex couple’s request to do theirs.

But then on page 27 of her dissent, Justice Sotomayor inserted the above quiet kicker. According to the dissent, if ever required to do a same-sex wedding website, the designer would still be free under the First Amendment to express her religious beliefs. She indeed could choose to emblazon all her websites with “biblical quotations describing marriage as between one man and one woman.”

It therefore seems fair to say that members of the public can readily ask: What in the heck was going on in this supposed case before the Supreme Court?

Would anyone with a modicum of legal experience see this hypothetical and highly stylized affair as something that the United States Supreme Court should be busying itself with?

By the same token, would anyone see any real dissent since all nine justices seem to agree that any designer working for a same-sex couple is free to put biblical quotations on a wedding website saying their marriage is invalid?

And finally: What same-sex couple in their right minds would ever hire a website designer who would so rebuke their marriage? 

I have been to law school. I understand there are theoretical arguments in favor of the designer. And I can grasp the theoretical First Amendment distinction that Sotomayor draws between saying designers cannot turn down same-sex couples but affirming they can state their opposing biblical views on all their websites.

But with all due respect to our current nine justices, such points seem worthy only of law professor hypotheticals and law review debates. In terms of practical law, it seems hard to avoid the conclusion that the opinions in 303 Creative represent a historical low point for the Supreme Court.

Although full of sound and fury, Creative 303 signifies nothing about a real legal case and very little about real distinctions among the justices. In this non-case, rhetorical culture-war jousting triumphed over good judicial sense.

Mac McCorkle graduated from Duke University Law School and clerked on the United States Court of Appeals for the Sixth Circuit. He is now a professor of the practice at Duke’s Sanford School of Public Policy.

Through the end of August of his third year, Trump had 146 confirmed judges. Biden is currently at 138 (as of this writing). More daunting, Trump had 187 judges confirmed by the end of his third year. If the Senate were to confirm all of Biden's announced judicial nominations, it would only bring his total to 167.

This White House and Senate have prided themselves on being ahead of the previous administration on judicial confirmations. Exceeding 146 confirmations by the end of this summer and 187 by the end of the year is still doable, but only if they pick up the pace of both nominations and confirmations.

To have a chance of even tying the previous administration’s pace of confirmations at the end of the third year, the Biden administration must announce at least 20 more judicial nominees this year. To give the Senate enough time to confirm these nominees, the White House realistically needs to announce them by the end of October at the latest.

For its part, the Senate should expedite the confirmation of every pending nominee to make way for these 20 additional nominees. This Senate has confirmed as many as 12 judges in a week and on two separate occasions eight judges in a week. So we know what is possible when the Senate prioritizes confirmations.

The Senate majority has the advantage of controlling the calendar. Majority Leader Chuck Schumer (R-N.Y.) decides when the chamber is in session and for how long, when cloture is filed on nominees, and when confirmation votes are held. The Senate is currently scheduled to have only 16 more work weeks before the end of 2023. With that existing calendar, the body would need to confirm, on average, more than three nominees per work week. This is doable for a determined Senate, particularly if Schumer expands the calendar.

He should start by scrapping the Senate’s August recess. That would create four more weeks to hold confirmation hearings and votes. Scrapping this August recess is also much easier than scrapping it next year, when many Senators will need to be in their home states campaigning for reelection. This is not without precedent, as Sen. Mitch McConnell (R-Ky.) canceled the August recess in 2018 in order to (you guessed it) confirm judges.

The Senate majority can also give itself more time during the week. The typical Senate work week is Tuesday through Thursday, but it is routine to expand the calendar for priorities or urgent matters. Judicial confirmations qualify as both.

Two more ways to manifest time are for the Senate to reduce post-cloture debate time for circuit court nominees from 30 hours to 2 hours, akin to that of district court nominees, and to enable multiple nominees to be considered simultaneously. These procedural reforms will expedite confirmations and enable more to be accomplished in less time.

The other obstacle in the way is obstruction and the threat of obstruction, including by senators refusing to return “blue slips” on district court nominees for their state. The Senate needs to scrap what remains of this tradition after the previous GOP majority did away with the practice for circuit court nominees. If the Senate insists on clinging to this tradition (which a future GOP majority would readily end if it served its interests), the White House needs to take the risk that Republican senators will withhold blue slips, and nominate candidates for all federal vacancies.

The longer we go without nominees for southern and midwestern vacancies, the more Republicans win without even trying. The administration should dare the GOP to withhold blue slips on dozens of diverse, qualified candidates. And if they do, Senate Judiciary Chairman Dick Durbin (D-Ill.) will have a slam dunk case for eliminating blue slips altogether — or he and the majority will have to explain to voters why they are prioritizing the remnants of a tradition over the confirmation of diverse, qualified judges.

The White House and Senate are sending the message that judicial confirmations are a “nice-to-have” and not a “need-to-have.” In a country increasingly being shaped by the courts, this is not the right attitude to take. The Biden administration and the Senate need to treat judicial confirmations like the necessity they are.

Russ Feingold is president of the American Constitution Society and previously served 18 years as a U.S. senator from Wisconsin.

If there is one thread running through the recent opinions of the Supreme Court’s conservative supermajority, it is mistrust of the federal government in favor of the states. In decisions ranging from abortion rights to wetland protection, the court has invalidated federal precedents and regulations, leaving enforcement, if any, to state legislatures and courts. In the few cases where some conservatives have joined liberals to uphold a federal statute, ultra-right holdouts have reflexively dissented — not always rationally — in the name of states’ rights. 

In Haaland v. Brackeen, for example, the court rejected a constitutional challenge to the Indian Child Welfare Act of 1978 (ICWA), which applies when Native American children are being placed in foster or adoptive homes. Writing for a 7-2 majority, Justice Amy Coney Barrett explained that the law requires a state court “to place an Indian child with an Indian caretaker, if one is available,” even if the court believes that placement with a non-Indian family would better serve the child’s “best interest.” This preference was necessary, she continued, because “an alarmingly high percentage of Indian families [had been] broken up by the removal, often unwarranted, of their children” by nontribal public agencies. 

In an eloquent concurring opinion, Justice Neil Gorsuch provided an extensive history of the “mass removal of Indian children from their families during the 1950s, 1960s and 1970s by state officials,” which was another “iteration of a much older policy of removing Indian children from their families” for over 150 years. 

Justice Samuel Alito’s angry dissent, joined only by Justice Clarence Thomas, fulminated that the decision subordinates what state “family-court judges . . . determine to be in the best interest of a child to what Congress believed is in the best interest of a tribe.”  

Alito’s reliance on state courts to determine a child’s best interest is unflinching but unjustified. He declares that ICWA “sacrifices” and “disserves” the best interests of “vulnerable children,” with no evidence beyond his own convictions. Put aside Alito’s insulting insinuation that tribal placements inevitably disserve and perhaps sacrifice children. Any attorney who has spent time in state family courts, as I once did, would know that even the most conscientious judges lack the time and resources to accurately predict how to benefit children in the future.

To put it bluntly, a best-interest determination is often a crapshoot, as judges make educated guesses based on their own experiences, preferences and biases. In the cases of Native American children, removal from their tribal homes had historically been little more than legalized kidnapping, which ICWA was enacted to remedy. 

It may be easier to recognize judicial kidnappings — carried out for purported best interests, while discounting cultural and historical ties — in a non-U.S. context, undistracted by our partiality toward familiar institutions. 

In 1858, a six-year-old child named Edgardo Mortara was living peacefully with his Jewish family in the ghetto of Bologna, then part of the Papal States under the direct rule of Pope Pius IX. Unbeknownst to his parents, Salomone and Marianna, Edgardo had been surreptitiously baptized as a baby by a Catholic nursemaid who feared that he was dying. After Edgardo recovered, the maid kept his baptism secret from Salomone and Marianna, but she mentioned it to friends. The story eventually reached Bologna’s Inquisitor, who feared the spiritual danger of allowing an officially Christian child to be raised by Jews. 

The child was taken into custody by the Papal police and ultimately transferred to the adoptive custody of the Pope himself. Edgardo was raised in the Vatican, taught to renounce Judaism and would eventually become a priest. 

Although the story seems astonishingly cruel today, the events were regarded as profoundly lawful, and indeed benevolent, by the relevant authorities of the time. 

Salomone and Marianna were afforded extensive procedural rights, including representation by a canon lawyer. Edgardo’s presumed well-being, however, took precedence at every stage of the proceeding, from the removal from his home to his adoption by the pope. Although the term “best interest” had not yet been coined, the Papal authorities were certain that their judgments protected the child’s safety and security. 

As one observer put it, Edgardo’s “eternal life” would be endangered if, as a baptized Christian, he was returned to the household of Jews. Regarding Edgardo’s ancestral culture, heritage, and religion, a Vatican newspaper explained there was “great benefit for him of being Christian, the singular grace that he had received through Baptism and, by contrast, the immense misfortune for his parents of being and wanting to remain Jews.” 

We are more enlightened in modern times, and would never consider denigrating children’s religion to determine their best interests. But enlightenment must be accompanied by humility. Contemporary family court judges are no better able to free themselves from certain predispositions, or otherwise determine best interests, than in the 19th century.  

In one well-known case, a South Carolina judge awarded Susan Smith custody of her two toddler sons, having found that the children’s best interest was to stay with their mother. The court was badly wrong. Exactly two weeks later, Smith strapped the boys into car seats and drowned them in a nearby lake. 

In reality, there is no single best environment for every child, compared to which all others are inferior or victimizing, which a judge can determine with razor-sharp acuity. Despite Alito’s unwarranted confidence, it is nonsense to believe that tribal placements “sacrifice the best interests of vulnerable children.” On the contrary, there is no assurance that state family courts can unfailingly assess children’s best interests, much less weigh their own assumptions against the importance of maintaining a child’s cultural and tribal connections. 

Steven Lubet is Williams Memorial Professor Emeritus at the Northwestern University Pritzker School of Law. He is the author of "The 'Colored Hero' of Harpers Ferry: John Anthony Copeland and the War against Slavery," and many other books. 

Most people recognize that racism remains a barrier to equal opportunity, but many see the college admissions process as a zero-sum game and want to be sure any remedy does not affect their own or their children’s prospects.

Wherever you fall, the decision of the six Republican-appointed justices last week to eliminate affirmative action in Students for Fair Admissions, Inc. v. Harvard should be troubling. Once again, a mere change in the composition of the court has completely flipped the judicial view of the Constitution and the law.

To promote diversity, Harvard considers “plus factors,” including race, that can tip “a significant percentage of all admitted African Americans and Hispanic applicants” into the class. The University of North Carolina offers some applicants a “‘plus’ based on their race which may be significant in an individual case.”

In University of California Regents v. Bakke 45 years ago, and then again 20 years ago in Grutter v. Bollinger and seven years ago in Fisher v. University of Texas, the Supreme Court permitted universities to do exactly that. The court repeatedly ruled that universities that want their students to obtain “the educational benefits that flow from a racially diverse student body” can consider race as a factor in deciding which applicants to admit, as long as the universities do so in a manner “flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant.” The Supreme Court found that the universities have a “compelling” interest in doing so that is allowed by the equal protection clause of the 14th Amendment, which applies to public universities, and Title VI of the Civil Rights Act, which applies to private universities that receive government funding.

The current Supreme Court majority does not like those rulings, but its arguments against them are not persuasive. According to Chief Justice John Roberts’s opinion for the court, “the interests they [Harvard and UNC] view as compelling” — such as training future leaders, preparing graduates for an increasingly pluralistic society, better educating students through diversity and producing new knowledge from diverse outlooks — “cannot be subject to meaningful judicial review” and are “not sufficiently coherent.” You might well ask how that happened. Forty-five years ago, and then again 20 years ago, the court not only agreed those interests were “compelling” and sufficiently coherent, but it expressly cited “the Harvard admissions program” as an example of what is acceptable.

Roberts writes that considering race for these purposes amounts to “impermissible racial stereotyp[ing]” that “members of the same racial group...think alike.” But nothing that Harvard or UNC is doing is based on any such assumption, just as affirmative action was not stereotyping 45, 20 and seven years ago when the court found it was permissible.

Roberts says considering race as a factor means applicants are not being considered based on their merit and other qualities. That also does not follow now, any more than it did before.

Roberts faults the Harvard and UNC affirmative action programs for not having a logical endpoint, but that was also true of the programs the court previously upheld. It is due to a larger failure in this country to arrive at a colorblind society in which opportunities are more equal.

It is frustrating, but not surprising, that more time is needed for the transition. From its founding, this country allowed the enslavement of African Americans. As Roberts recognizes, even after the enactment of the 13th and 14th amendments, the Supreme Court and this country “quickly failed to live up to the [Equal Protection] Clause’s core commitments.…The Court played its own role in that ignoble history.”

Justice Clarence Thomas’s concurrence asserts that Harvard’s admissions program likely discriminates against Asian Americans, Jews “and those who are not part of the white elite.” Of course, any such discrimination should not be tolerated. But undoing impermissible discriminatory quotas for these groups does not require the elimination of affirmative action.

The court’s decision also ignores the important principle of stare decisis — literally, “to stand by things decided.” While this court’s willingness to reject its own precedents is by now familiar, that does not make it any less disturbing or undemocratic. Only a month ago, in Allen v. Milligan, Justice Brett Kavanaugh explained that the stare decisis standard for the court to overrule a statutory precedent, such as Title VI, “is comparatively strict.”

Thomas concedes the court’s decision in the Harvard and UNC cases overrules Grutter “for all intents and purposes.” But Roberts appears to try to avoid that obvious conclusion by arguing that Grutter set a 25-year time limit on its decision, and that time limit is about to run out. That too is incorrect. What Grutter actually said is: “The court takes the law school at its word that it would like nothing better than to find a race-neutral admissions formula and will terminate its use of racial preferences as soon as practicable. The court expects that 25 years from now the racial preferences will no longer be necessary to further the interests approved today.”

That “expect[ation]” is very different from a time limit. And it is beyond dispute that the expectation has proved to be overly optimistic. As Kavanaugh acknowledges in his concurrence, “although progress has been made since Bakke and Grutter, racial discrimination still occurs and the effects of past racial discrimination still persist.”

University admission, including at our most elite institutions, makes an enormous difference to opportunity in this society. It is important that African Americans and Hispanics are included. Just look at the composition of the Supreme Court itself — all but one of the Justices attended law school at Harvard or Yale, and the ninth attended Notre Dame.

As the Supreme Court explained in the 1880 decision Ex Parte Virginia, “One great purpose of the Thirteenth and Fourteenth Amendments was to raise the colored race from the condition of inferiority and servitude in which most of them had previously stood into perfect equality of civil rights with all other persons.”

The 14th Amendment should not now be interpreted to do the opposite, by preventing African Americans from achieving equality in education.

Michael J. Dell is a New York lawyer who writes and litigates about constitutional issues.

The court’s willful failure to distinguish discriminatory conduct from speech is not just a blow to LGBTQ rights and dignity; it also threatens to run roughshod over our modern legal system and undo decades of progress in combating invidious discrimination against historically marginalized Americans.  

Coming the day after the same majority struck down affirmative action, and the same day that it invalidated the Biden administration’s effort to provide student debt relief to 45 million Americans, the Colorado case fits squarely into the Roberts Court’s broader agenda: prioritizing the interests of the powerful, wealthy, white, male, Christian, heterosexual groups to which the majority of the court (today as always) belong over the interests of everyone else. To that end, the court’s decision makes free speech a potential license for businesses and individuals to disregard legal protections for disadvantaged groups — and virtually any other state or federal law that advances a value with which they disagree.

The decision was based on a website designer’s supposed fear of appearing to endorse gay weddings if not permitted to discriminate against them, but it certainly isn’t limited to website designers. Most people providing wedding services — officiants, musicians, photographers, florists, caterers and bartenders — are providing an “expressive” service, so presumably all of them are now entitled to refuse to provide their otherwise publicly available services for a wedding that violates their sincere beliefs.

And there is no reason — certainly none offered in the majority decision — that this license to discriminate is limited to gay couples. Rather, the court’s reasoning (which relied on free speech rights rather than religious freedom) is readily applicable to interracial marriages, interfaith marriages, marriages involving one or more persons of no religious faith, marriages between persons of different nationalities, and so on. It is possible that, in the wake of this decision, in some parts of the country couples from disfavored groups will find it difficult to host a wedding. 

At the same time, nothing in the court’s reasoning limits its impact to weddings. Under Gorsuch’s logic, any public accommodation that includes an “expressive” component — that is, “images, words, symbols, and other modes of expression” — has the right to refuse to serve groups in a manner that violates their sincerely held beliefs. While the court insisted that there are “no doubt innumerable goods and services that no one could argue implicate the First Amendment,” it didn’t bother to identify any.

In fact, there are few human endeavors that don’t rely on “modes of expression,” and there is certainly nothing more inherently “expressive” about website design than the arts, education, technology, law, science or hospitality (including hotels, restaurants and entertainment facilities). In other words, the opinion opens the door for almost any business to argue that the First Amendment entitles them to refuse to serve gays, Blacks, Jews, women, immigrants or any other group, where doing so serves their sincerely held beliefs.

Just as the court’s logic provides no basis to limit its scope to discrimination against gay couples, it likewise provides no basis to limit it to the provision of services. If requiring a business to serve certain groups can violate the business’s free speech rights, there is no reason employers could not make the same argument about laws prohibiting them from discriminating in their hiring and firing decisions.

Indeed, an employer’s argument that “by requiring me to hire women, you are forcing me to endorse the view that women belong in the workplace, contrary to my sincerely held beliefs,” is more plausible than the argument adopted by the court that the Colorado antidiscrimination law “forced” the website designer to “endorse” gay marriage.

For much the same reasons, the court’s analysis invites renewed claims that private clubs have a right to discriminate against any group whom they believe should not be socializing at the same place as their preferred members. Likewise, private schools, which certainly engage in “expressive” activity, have a new opening to argue that they have a right to exclude any group that they believe should not be educated in the same facility as their preferred students, bringing back segregated education. The decision provides no straight line for resegregating public schools, but the continued march of the court’s new “free speech” jurisprudence just might take public schools, and other services funded by taxpayers, out of the picture.

The Supreme Court has rejected arguments that religious freedom exempts persons from paying taxes based on religious objections, but this is yet another argument that could now be resurrected under the guise of free speech. If requiring a business to provide a service to gay persons on the same terms as it provides it to everyone else is the equivalent to requiring the business to endorse gay marriage, requiring taxpayers to support vaccine research (or any other government activity) to which they are morally opposed raises similar “forced endorsement” issues, particularly given the court’s penchant for equating money with speech. 

It's no coincidence that this alignment of the Supreme Court supermajority with the priorities of the GOP’s extreme right flank comes with the backdrop of financial scandals involving at least two of the justices and the longtime leader of the conservative Federalist Society, Leonard Leo. As an advisor to President Trump, Leo handpicked three of these justices for the very purpose of carrying out this rightwing agenda; he also played a personal role in supporting and funding the cases to strike down affirmative action, narrow legal protection for gays, and invalidate student debt cancellation. Leaving nothing to doubt, he has also orchestrated the provision of gifts and other things of value worth hundreds of thousands of dollars from his dark money funds and two of his billionaire associates to Justice Alito and Justice Thomas, as well as to multiple members of Thomas’s family. 

As President Biden observed last week, “this is not a normal court.”  But it is not enough to identify the problem — the president and Congress need to take immediate action to address the problem. We urgently need federal legislation imposing ethics rules on the nine justices at least as strict as those that already apply to every other federal judge in the country. And to address the immediate emergency of a renegade court dominated by six nakedly partisan justices determined to roll back civil rights and other progress, Congress must enact federal legislation to expand the court.

Ben Clements is the chairman and senior legal advisor of Free Speech For People, a former federal prosecutor and former chief legal counsel to the governor of Massachusetts. 

"Sanity" has returned to the internet.

That is the message of not only Meta's Mark Zuckerberg, but also a host of gleeful pundits heralding the arrival of  the "Twitter killing" text-based app Thread — the Twitter knock-off meant to destroy Elon Musk's platform.

This is not just a cage fight between the two billionaires. Many are more interested in whether Zuckerberg can choke out free speech than in whether he can beat Musk.

Many critics opposed Musk's dismantling of Twitter's massive censorship system. Zuckerberg now promises a “sane” alternative that will place consumers under the watchful eye of Meta censors.

On the first day of the rollout, millions signed up, thanks in large part to Zuckerberg linking the new platform to Instagram. The censors also got to work right away. When people tried to follow Donald Trump Jr., they were met with a warning label: “Are you sure you want to follow donaldjtrumpjr? This account has repeatedly posted false information that was reviewed by independent fact-checkers or went against our Community Guidelines.”

Later, the company backed down after an outcry. But it was a telling moment. Andy Stone, who heads communications for Meta, wrote: “This was an error and shouldn’t have happened. It’s been fixed.”

But this was clearly a pre-established warning system, to be used to flag accounts disfavored by the company. It was "an error" that would likely not have been "fixed," if not for the objections voiced on the first day of the rollout.

The controversy itself was a warning that the company has activated its signature censorship system to influence or regulate viewpoints.

Facebook has long been accused of targeting conservatives and dissenting viewpoints. Indeed, Zuckerberg's pitch for "sane" management seemed like an appeal to those on the left who objected to the more tolerant free speech policies on Twitter after Musk's purchase.

While there have been controversies at Musk's Twitter over critics being banned or posts being removed, it is a fraction of the level of censorship that has long characterized Facebook and other competitors. Indeed, most of Musk's critics attack him for reducing the "content moderation" on Twitter.

Threads's rollout coincides with a court ruling that the government's interventions to censor people on social media represented “the most massive attack against free speech in United States history.” Now, Facebook is offering an alternative to Twitter, with the assurance that users will be protected against any thoughts that Meta's staff finds problematic. While free speech on Twitter is portrayed as harmful, the company has promised to "prioritize kindness." 

That sounds eerily familiar to some of us as a way to deprioritize free speech. Recently, former Twitter executive Anika Collier Navaroli testified on how she and her staff would remove anything they considered “dog whistles” and “coded” messaging. Rather than using "kindness," Twitter used undefined standards of "safety" to cancel free speech. Navaroli declared that they were unwilling to allow the safety of others “to go to the winds so that people can speak freely.”

Facebook has long tried to get the public to embrace its role as some kind of speech overlord. Years ago, Facebook rolled out an Orwellian commercial campaign to get the public to embrace censorship. The commercials showed young people heralding how they grew up on the internet and how the world was changing, creating a need for censorship under the guise of "content moderation." Facebook, they promised, was offering the “blending of the real world and the internet world.”

Facebook is not alone in trying to get people to accept censorship. Recently, after the court ruling, various figures assured the public that they are better off letting corporate and government censors protect them from harmful thoughts. On CNN, Chief White House Correspondent Phil Mattingly went so far as to state that it simply “makes sense” for tech companies to go along with government censorship demands.

After this week's decision, the New York Times immediately issued a panicky tweet that the resulting outbreak of free speech could “curtail efforts to combat disinformation.”

For his part, Zuckerberg prefers to just offer "kindness" and "sanity" with few details. Of course, there is a very simple way for Zuckerberg to show that he is committed to free speech: He can release the Facebook Files.

One of the reasons many of us in the free-speech community still support Musk is that he transformed the debate over government censorship by releasing the Twitter Files. For years, politicians and pundits dismissed objections from some of us to government-corporate coordination of censorship as unproven. In Congress, Democratic members attacked witnesses for supposedly lacking proof of censorship, even as they fought to block any investigation that might uncover that evidence.

Musk changed all that by showing the public an extensive network of government interventions to support censorship and blacklisting of private citizens. Much of what we know today is derived from the Twitter Files, but surely there is more to learn.

When I testified in Congress on the censorship operations, I noted that, as massive as this effort has been, Twitter is only the 14th largest social media company, according to some estimates. That means that this is only a fraction of the evidence that might be out there. 

Facebook is the largest platform in the world, but so far it has steadfastly refused to offer the transparency of Twitter. If Zuckerberg is truly proud of his "sane" approach to social media, he should not fear the release of information on the past coordination with federal and congressional offices.

We assume that Facebook had the same backchannels that were established at Twitter, but the company has left the public entirely in the blind. That approach has made Meta one of the least transparent companies in the world on the scope and standards of censorship. 

House committees will hopefully force Facebook to disclose some of these details. However, as Zuckerberg sells a promise of the "saneness' and "kindness" of his platforms, he should be willing to show precisely what that means for consumers — and at what a cost. After all, he has appealed to many of those consumers with the promise of a censored platform.

If Zuckerberg is so proud of his "content moderation," he should take a victory lap and release the Facebook Files.

Jonathan Turley is the J.B. & Maurice C. Shapiro Professor of Public Interest Law George Washington University Law School.

He should follow the example of what Roosevelt did during his first reelection campaign and do everything he can to make the radicalism of the Supreme Court’s ultra-conservative justices into a voting issue next year.

A quick history lesson:

After the court had rejected a number of New Deal initiatives, according to an article in The Nation, “Democrats charg[ed] that a court made up of nine old men appointed by presidents ‘now dead or repudiated’ had made itself […] ‘the sovereign power of the United States.’”

Roosevelt genuinely believed, as his biographer H.W. Brands observes, “that in compelling the Supreme Court to pay attention to modern conditions he was doing the work of democracy.” And so he put forward a plan — ultimately unsuccessful — that would have enabled him to “name a new justice for every sitting member of the court who did not resign six months after reaching the age of 70.”

In response, Republicans defended the court, claiming that it was protecting “the individual citizen in his constitutional rights” against the threats posed by New Deal collectivism. They promised in their 1936 platform that year “to resist all attempts to impair the authority of the Supreme Court of the United States, the final protector of the rights of our citizens against the arbitrary encroachments of the legislative and executive branches of government. There can be no individual liberty without an independent judiciary.”

As with FDR, “compelling the Supreme Court to pay attention to modern conditions” should be reason enough for Biden to take on the high court in the coming presidential campaign.

To date, Biden has seemed ambivalent about how to respond to the court and what it has been doing in the years since his predecessor managed to produce a six-justice conservative supermajority. In the past two years, Biden has been more explicit in criticizing specific Supreme Court decisions and increasingly outspoken about the court’s overall direction. Yet he has not gotten on board with calls to add justices or imposing term limits.

In 2024, he doesn’t have to go full-bore on court reform to rally his base and remind voters of what the Supreme Court has been doing to roll back rights and favor dark money groups with which it seems to be aligned.

In his 2020 campaign, Biden tried to walk a fine line when he talked about the Supreme Court. He agreed that the court was even then “getting out of whack,” but he did not endorse proposals for reform that many activists were advancing.

Biden warned Democrats against responding to every bad court decision.

In an interview on “60 Minutes” in October 2020, Biden explained, “The last thing we need to do is turn the Supreme Court into just a political football [and] whoever has the most votes gets whatever they want. Presidents come and go. Supreme Court justices stay for generations.”

His 2020 campaign promise to appoint a commission to study the court and to examine reform proposals satisfied few, as did the work of the commission itself.

Things began to change for Biden in 2022, however, when the Supreme Court refused to block Texas’s infamous SB8, legislation authorizing private enforcement of the state’s anti-abortion laws. In a written statement, the White House denounced “The Supreme Court’s ruling […] (as) an unprecedented assault on a woman’s constitutional rights. […] Rather than use its supreme authority to ensure justice could be fairly sought, the highest Court of our land will allow millions of women in Texas in need of critical reproductive care to suffer while courts sift through procedural complexities.”

When, last year, the Court overturned Roe v. Wade, the president spoke out himself. He labelled the Dobbs decision the “realization of an extreme ideology and a tragic error.” Biden warned, “This is an extreme and dangerous path the court is now taking us on.”

And, in a preview of what he should do in 2024, he urged voters to think about the court when they cast their ballots in the 2022 congressional election. “Roe,” Biden said, “is on the ballot. Personal freedoms are on the ballot — the right to privacy, liberty, equality. […] With your vote, you can act.”

His strategy bore fruit as voters rallied to the defense of abortion rights.

Responding to last week’s decisions on affirmative action, gay rights and student loan forgiveness, Biden escalated his criticism of the court.

In an interview on MSNBC the night after the court handed down its affirmative action decision, Biden alleged, “This court has done more to unravel basic rights than any other in recent history — it’s not normal. … Take a look at overruling Roe v. Wade. Take a look at what it did today. Take a look at how it’s ruled on a number of issues that have been precedent for 50, 60 years sometimes, and that’s what I meant by not normal.”

The president also accused the court of ignoring what “the Constitution says: 'We hold these truths to be self-evident, all men and women are created equal, endowed by their creator.’” That the phrase is in the declaration, not the Constitution, should not distract us from his larger point that what the current court is doing is un-American.

Biden concluded, “The vast majority of the American people don’t agree with a lot of the decisions this court is making.” Initial polls suggest the president is wrong at least with respect to the affirmative action decision, but whether that will be true for the gay rights and student loan forgiveness decisions remains to be seen.

We do know that today only 31 percent of respondents in an NBC News poll released this week held a positive view of the court — a record low since the poll first asked about the court in 1992.

And, like the Republicans in 1936, former President Trump has rushed to the defense of the court. He called the Supreme Court’s rejection of affirmative action “a great day for America,” and explained that “people with extraordinary ability and everything else necessary for success, including future greatness for our Country, are finally being rewarded.”

So the contest over the Supreme Court is teed up. Like FDR, Biden should remind Americans what is at stake when the court sets itself up against the “modern conditions” of democracy and rolls back racial progress, protects those who are hostile to gay rights and blocks much-needed financial relief for millions of young Americans.

Austin Sarat (@ljstprof) is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. He is author of numerous books on America’s death penalty, including “Gruesome Spectacles: Botched Executions and America’s Death Penalty” and “Lethal Injection and the False Promise of Humane Execution.” The views expressed here do not represent Amherst College.

Although the decision focuses on education, its myopic and twisted views on race and racism also pose major risks of worsening inequities across all societal sectors, including health.  

The ruling strikes down affirmative action programs at Harvard University and the University of North Carolina, which until the 1950s did not admit Black students. Both universities consider applicants’ race among many characteristics to build a diverse class. In principle, the justices’ embrace of race-neutrality is desirable. But it is one thing to set aside race in a society with genuinely equal opportunity, and quite another in a society with stark disparities in opportunities and outcomes, fueled by centuries of systemic racism that persist to the present day.  

The ruling makes a travesty of the lived experiences of people of color in America — a lived experience that is not subjective, but that shows up in the heartbreaking chasms between Black and white in wealth, health, education, opportunity and political power. 

Civil rights legislation was enacted in the 1960s to acknowledge and address rampant and deeply rooted discrimination and racism, particularly (but not exclusively) affecting Black people. It was a response to a society in crisis, in which the oppressed demanded equality, and a critical mass of the dominant group felt they could no longer be complicit in structures that conveyed benefits to them at the continued expense of people who had been pushed to the margins of society for 350 years.

Tragically, the court’s myopic approach could make all those disparities worse.  

Consider the legacy of redlining. Starting in the 1930s, the federal government created color-coded maps that marked neighborhoods with large populations of Black residents in red, meaning they did not qualify for federally backed mortgages. It was not until the Fair Housing Act of 1968 that this corrosive practice was outlawed, and yet discrimination in lending continues to this day. 

Generations after those maps were first drawn, redlining still has enormous impacts on the lives of people of color.  

Most obviously, Black families segregated into less-desirable neighborhoods have not been able to rely on rising property values to accumulate wealth, leading to huge disparities in financial status. But the impact is far deeper. The lower property values in predominantly Black neighborhoods lead to persistent underfunding of K-12 schools. This, in turn, perpetuates the centuries-old legacy of unequal access to quality education.  

Likewise, study after study has shown that redlined neighborhoods are more polluted and have fewer amenities than predominantly white neighborhoods — and that as a result, residents are far more likely to face serious health challenges ranging from asthma to premature birth to heart disease to early mortality. 

All this is the legacy of just one discriminatory government policy to restrict mortgage lending on the basis of race. Over the decades, of course, there have been many such policies. That is what we mean by structural racism — a codified program of segregation and subjugation that suppressed and continues to suppress, minority achievement. 

And that explains why colleges that want to build a diverse class have found it important to take affirmative action to identify meritorious students from disadvantaged groups.  

We all would like to live in a future society where everyone has equal opportunity to live up to their full potential — a truly race-neutral society. But we are not there yet. To get there, we must adopt laws, policies and practices that explicitly address and redress the harms of systemic racism in education, health care and beyond.  

The court’s ruling could pose major challenges to achieving social justice and could actively worsen health disparities in the process.

Here’s one way that could play out: A recent study found that Black people living in counties with more Black primary care physicians have lower mortality rates. It follows that increasing the number of Black physicians could help address the tragic health disparities in the U.S. But medical schools that might want to consider race as one factor in their admissions will now be barred from doing so.

Without an affirmative push to admit more students of color, it’s hard to see how we will ever significantly raise the number of Black physicians, who currently account for only about only 5 percent of the medical workforce. And that failure will have an ongoing and devastating impact on Black health.  

The Supreme Court’s ruling gives the nation virtually no chance to end the harmful legacy of the notorious Flexner Report of 1910, which forced the closure of all but two Black medical schools and set us on this path of inadequate numbers of Black physicians and inadequately protected Black health. 

A wide range of policies by the National Institutes of Health and the Centers for Disease Control and Prevention, along with other policies and programs aiming to address racial disparities in health may now also be subject to challenge.   

Likewise, during the height of the COVID-19 pandemic, most states sought to recognize in their vaccine allocation policies that most minority populations experienced a disproportionate burden in infections and deaths. Some prioritized racial groups, with meaningful public support. The majority used disadvantage indices, metrics that recognize the link of health, place and race, and can serve as helpful proxies for addressing racism.

Such approaches have the support of the majority of the public, yet they could also come under fire, whether in future emergencies or routine healthcare.  

One way of testing the safety of water is to use mussels: When water is too polluted, they die. A similar test could involve the recognition that health disparities disproportionately afflict the bodies and minds of people of color. As long as disparities exist, our nation’s fundamental structures are polluted by racism. We will not be ready for the “race-neutral” policies the court holds dear until we truly have equal opportunities and equal outcomes. 

In education, health care and public health, the Supreme Court’s ruling is set to have devastating effects. We must create programs and policies that actively address structural racism and ameliorate cavernous inequities. A conservative supermajority on the court has made all that much harder, but we cannot stop fighting for social justice. The alternative is to watch our society slip further into shameful inequity, which is unconscionable.

Lawrence O. Gostin is a university professor of law at Georgetown University and director of the O’Neill Institute for National and Global Health Law and a World Health Organization Collaborating Center. Michelle A. Williams is the Joan L. and Julius H. Jacobson Professor of Epidemiology and Public Health and former dean of the Harvard T.H. Chan School of Public Health. Harald Schmidt is an assistant professor of medical ethics and health policy at the University of Pennsylvania. 

Feel free to disregard all of the Democrats’ hypocritical warnings about the current threats to democracy. The nine justices of the U.S. Supreme Court operate in about as pure a democracy as one will find, yet for years Democrats have been berating and attacking the court, undermining its very constitutional foundations and several of the justices personally.

If you like democracy, you should love this Supreme Court. All nine justices, appointed by elected presidents and confirmed by elected senators, are equal. This includes the chief justice, whose office only allows for certain limited leadership decisions.

All the justices have one vote regardless of their age, tenure, or expertise in a particular matter before the body.

As in any good democracy, the justices are free to do their best to sway the vote of their colleagues in an effort to create a majority. Sometimes they succeed. Also as in any good democracy, one or more of the justices may concur with one side but for different reasons — just as, for example, some voters in the 2020 presidential election voted for Joe Biden, while others voted against Donald Trump. The result was the same. Biden received the vote, regardless of the voters’ reason for voting for him.

Another important point critical to a well-functioning democracy is that, in the high court, freedom of speech thrives. Each justice has the freedom to express his or her views, either by writing the court’s majority or minority opinion, or a concurring opinion. And justices in their comments can be very critical of the opposing side.

Finally, disregard all of the progressive wailing and gnashing of teeth at the current ideological makeup of the court. It is actually a fairly good representation of the country as a whole.

Consider the SCOTUS ideological chart, which was prepared by Axios using an analysis by political scientists Andrew Martin and Kevin Quinn. Of the court’s three liberals, the Martin/Quinn analysis considers Justice Sonia Sotomayor to be far-left, with Justices Elena Kagan and Ketanji Brown Jackson a bit less so. Of the six other justices, the analysis puts Justices Clarence Thomas and Samuel Alito on the right, but not as far to the right as Sotomayor is far-left. Justices Neil Gorsuch and Amy Coney Barrett are generally conservative. Justice Brett Kavanaugh and Chief Justice John Roberts are pegged as moderate to right-leaning.

Now look at the ideological makeup of the country, which Gallup has tracked for years. According to Gallup's June survey, “When asked to describe their political views overall, without reference to social or economic issues, 40 percent say they have conservative views, 31 percent moderate and 26 percent liberal.”

Thus, a court with three lefties, four conservatives and two who are moderate-to-conservative is a pretty good match for the country as a whole. And yet the left, from President Joe Biden on down, can’t seem to get enough of court bashing. Biden even recently asserted that “this is not a normal court.”

Progressives hope the court’s most recent decisions will persuade the president to support the left’s court-packing scheme to put at least four more liberal justices on the bench, or to impose age limits, which the left wasn’t so eager to do when Justice Ruth Bader Ginsberg was still on the court.

The left’s constant anti-court barrage is intended to undermine public support for the judicial branch so that it will be easier to pack the court or do something else that would drastically alter its current makeup. President Biden has been reluctant to go that far, but he appears to be weakening.

Many Republicans thought, and some still think, that Democrats stole the 2020 presidential election. All the evidence suggests that those suspicions are unfounded. But Democratic efforts to undermine, delegitimize and restructure the Supreme Court, just because they don’t like its recent decisions, only fuel more such suspicions.

After all, if Democrats are willing to undermine the Supreme Court just because they don’t like the justices’ decisions, is it really that unreasonable to think they might undermine elections if they don’t like the voters’ decisions?

Merrill Matthews is a resident scholar with the Institute for Policy Innovation in Dallas, Texas. Follow him on Twitter @MerrillMatthews

Why is this important? Because in life, and basketball, there are more ways to measure a person than by any single metric. And that’s why the Supreme Court’s ruling last week in Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina is so disheartening.  In reversing 40 years of precedent to effectively outlaw the consideration of race in college and other higher education admissions, the court is striking a serious blow against admissions policies that don’t look at just one metric and don’t just benefit individual students of color; they benefit entire institutions. 

For decades now, colleges and universities have recognized the importance of multiple characteristics of prospective students, with the implementation of “holistic” admissions. Schools don’t just admit the applicants with the highest GPAs or scores on their SATs; at Harvard, they say it’s not just undesirable — it’s impossible. The university noted in its filing to the Supreme Court that each year, it gets more than 35,000 applications for a 1,600-seat freshman class. It points out that “to admit every applicant with a perfect GPA, Harvard would need to expand its class fourfold and reject all other applicants, regardless of their other academic credentials, talents, or life experiences and perspectives.” 

Different life experiences and perspectives, of course, are a huge part of what makes a university education enriching. And the ruling isn’t just bad for college affirmative action programs. It also tees up some really serious potential downstream effects inside and outside academia.    

Depending on how lower courts interpret it, this ruling could undermine minority scholarship programs and even diversity, equity and inclusion (DEI) efforts in the corporate world. It could doom the Small Business Administration’s program to aid businesses owned by Black, Latino, Native and Asian American entrepreneurs. This is not a distant possibility; there are already a number of cases coming up through lower courts where we could see ramifications like this. 

Right now, a federal district court in Texas is preparing to hear a case, Nuziard v MBDA, challenging the constitutionality of the federal Minority Business Development Agency, an agency within the Department of Commerce. The MBDA is focused on assisting minority businesses — an effort that dates back to the Nixon administration and could now be at risk.

Another case, Do No Harm v Pfizer, targets the pharmaceutical company’s program offering college fellowships and other opportunities to help more people from Black, Latino and Native American communities rise to leadership positions within the company.  The case is now on appeal to the 2nd Circuit; all eyes are on how that court might take the Supreme Court’s ruling into account. 

And the loss of diversity initiatives in business is every bit as bad as their loss in academia. The management consulting behemoth McKinsey states unequivocally that companies with diverse management teams make more money. Business media laud the effects of diversity on creativity, decisionmaking and recruitment. Researchers have found that diverse institutions are overall more resilient because a greater variety of viewpoints and perspectives leads to better observation of “critical changes and preparations for future events.” And a recent Glassdoor study found 1 in 3 job seekers say they wouldn’t even apply to a company that lacks diversity.   

The question now is what to do in the wake of a Supreme Court ruling that could threaten diversity efforts on campuses and beyond. One answer is to look at lower courts, where current and future affirmative action cases are bubbling up. The Trump administration worked hard to stack these courts with ultraconservative, anti-affirmative action judges, but now the Biden administration has numerous vacancies to fill. Filling them could make the difference between whether the legality of a wide range of diversity programs is upheld, or not; the Senate should waste no opportunity to confirm new President Biden judges while it can.   

The stakes are as high as they are clear.   

Svante Myrick is the president of People For the American Way.  

The Supreme Court just announced a new, vague category of businesses that have a constitutional right to discriminate against anyone for any reason they like. I’d like to explain to you what the law is now. I can’t do that, because it can’t be done.

303 Creative v. Elenis concerned Lorie Smith, who owns a graphic design firm. She wants to expand her business to include custom-designed wedding websites, but she opposes same-sex marriage on religious grounds. So she won’t design sites for same-sex weddings and wants to say that on her own promotional website.

But the Colorado Anti-Discrimination Act (CADA) bans businesses that are open to the public from discriminating against gay people or announcing their intent to do so. She sued the state, seeking a preemptive ruling that this law couldn’t be applied against her.

Supreme Court Justice Neil Gorsuch, writing for the majority, agreed: First Amendment free speech means that law may not “compel an individual to create speech she does not believe.”

He relied on a 1943 case holding that schoolchildren could not be compelled to say the Pledge of Allegiance, in which the court said that “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” 

The analogy is strained. The children could not possibly avoid the compulsion to say the pledge, but no one is required by law to operate a business that is open to the public. Now, however, some of those businesses can discriminate against potential customers or clients. Which ones? It depends on how expressive they are. How can courts decide that? Where is the line? 

Faced with what he called a “sea of hypotheticals about photographers, sta­tioners, and others,” Gorsuch conceded that “determining what qualifies as expressive activity protected by the First Amendment can sometimes raise difficult ques­tions.”

But, he wrote, no one disputes — indeed, the parties stipulated — that “Ms. Smith seeks to engage in expressive activity.” But everything humans do expresses something. In an earlier case, Masterpiece Cakeshop v. Colorado, Gorsuch joined an opinion by Justice Clarence Thomas saying that food preparation (selling a wedding cake) was sufficiently expressive that the seller had a right to discriminate.

Justice Sonia Sotomayor wrote in her dissent that “A website designer could equally refuse to create a wedding website for an interracial couple. ... A stationer could refuse to sell a birth announcement for a disabled couple because she opposes their having a child. A large retail store could reserve its family portrait services for ‘traditional’ families. And so on.”

Gorsuch doesn’t respond. It will take years of litigation to find out what “expressive” means. The fact that the parties stipulated that one business is expressive does not entail that “expressiveness” is a workable test for courts. What if the parties had stipulated that some websites are blessed by angels? 

Gorsuch’s decision also repeatedly cites a strange, silly statement in the poorly reasoned decision of the Tenth Circuit, which Smith was appealing from. That court, after acknowledging that there is a risk of excising some ideas from the public dialogue, said that “Eliminating such ideas is CADA’s very purpose.” Gorsuch calls this a “finding,” even though courts of appeals are not permitted to find facts (that is the trial court’s job) and this one wasn’t found by the trial court or stipulated by the parties.

He then accuses Sotomayor’s dissent of “approving a government’s effort” to accomplish that purpose. A law is invalid if it seeks to accomplish an impermissible end. His claim implies that all antidiscrimination laws are unconstitutional in all their applications. He doesn’t mean that, of course. More mystery. 

Gorsuch has developed a habit of misattributing purposes to statutes and then complaining that the purposes either were bad ones or were being pursued in a discriminatory way. His own concurrence in Masterpiece presented a convoluted misinterpretation of Colorado’s simple requirement that one treat all customers alike, in order to claim that people whom the law didn’t even mention were thereby treated unfairly.

Now he claims that “Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance.” This is just false. Colorado wasn’t trying to force anyone to do anything. Smith sued the state, aggrieved by what she thought it might do sometime in the future.

On the one hand, the decision might be interpreted narrowly, to apply only to businesses that take specific commissions for unique artwork. On the other hand, the free speech theories floated in Masterpiece, to which Gorsuch was sympathetic, were so broad that they would protect absolutely any discrimination, or for that matter any other conduct, that a court wanted to protect.

Gorsuch’s casual way with inconvenient facts, and vague statements of the law, suggests that we can’t be confident of what just happened. The court, however, is supposed to tell us what the law is, not just hand opaquely reasoned victories to every conservative Christian who walks in the door. 

Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of “Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed” (St. Martin’s Press). Follow him on Twitter @AndrewKoppelman. 

"Disappointing and cruel." Those words from Senate Majority Leader Chuck Schumer (D-N.Y.) after the Supreme Court's rejection of the Biden administration’s loan forgiveness program may say more than the opinion itself.

The court’s "cruelty" was in supporting Congress's core constitutional power of the purse. Schumer's disappointment in having to address and vote on the forgiveness of hundreds of billions of dollars in loans speaks volumes about the collapse of our constitutional values.

The court’s decision on the merits of the case was hardly a surprise. President Biden was using the Higher Education Relief Opportunities for Students (HEROES) Act of 2003 to order the largest loan forgiveness program in U.S. history. The law is only a few pages long and was intended to assist military personnel deployed abroad in combat zones. 

The idea of using that law in order to avoid getting congressional approval for such a massive expenditure was laughable. The Office of Legal Counsel considered the theory and issued a memo stating that it would be unconstitutional. 

In his response to the court, Biden declared that "the hypocrisy is stunning" and that the court had "misinterpreted the Constitution." However, during the last presidential campaign, Biden himself acknowledged that this effort would be unconstitutional. 

Chief Justice John Roberts even cited former Speaker Nancy Pelosi (D-Calif.) in the opinion for stating the obvious: "People think that the president of the United States has the power for debt forgiveness. He does not. He can postpone. He can delay. But he does not have that power. That has to be an act of Congress."

Biden, however, knew that there was no way Congress would approve the loan forgiveness. Many citizens objected that they decided to learn a trade rather than go to college, and no one is suggesting that they should be forgiven their debts. Others paid their student loans back and felt like they were the victims of a bait-and-switch.

While many of us could not see any plausible way that this law could be used for such a clearly unintended purpose, University of California law professor Dalié Jiménez filed an amicus brief declaring that the HEROES Act “is as clear as sunlight” as a basis for forgiving federal student debt for nearly everyone.

The justices failed to see the light. Instead, a 6-3 majority again declared that Biden was violating the Constitution and had to go to Congress. 

The same court that had just ruled overwhelmingly to support Biden’s immigration policies turned around and issued a devastating and detailed opinion as to why no such authority existed in this case.

Biden was undeterred after that ruling and promised, "I will stop at nothing to find other ways to deliver [the] relief." Perhaps, but the Constitution has once again stopped him from becoming a government unto himself.

That brings us back to Schumer. James Madison designed a constitutional system with a frank understanding of the factional and petty impulses of politicians. Yet he believed that he had created a system of checks and balances that could rely on the institutional self-interest of members to jealously protect their powers under Article I. Madison believed that, despite party or ideological affiliations, “ambition must be made to counteract ambition.”

In all of his study of the ancient Greek and Roman states and contemporary politics, Madison never encountered the likes of Schumer and his colleagues. Their ambition runs elsewhere, and they view the support of their authority to be an act of constitutional "cruelty." They are calling on a president to turn them into institutional nonentities — legislators who engage in a type of empty performance art as the president governs alone.

It is a curious position for those who have campaigned on protecting "democracy." These same figures are now calling on a president to avoid presenting this major program to Congress because they know that the majority would oppose it. 

Ever accommodating, Biden is now saying that he will attempt to accomplish the same loan forgiveness by taking a "new path." That path, of course, is not to the co-equal branch just down the street from where his lives. It is rather through a different statute, the Higher Education Act of 1965. The HEA, however, could be used only for a far more limited number of debt holders, and even this would raise new legal questions. The HEA was rejected previously because the HEROES Act was still viewed as a better avenue for the administration.

In comparison to just going to Congress down the street, the "new path" is like going from D.C. to New York by way of Los Angeles.

All of this is meant to avoid the one option left to the president — going to Congress. After all, the last thing you want in the defense of democracy is to have an outbreak of democratic process.

What is left, to paraphrase Schumer, is a cruel joke. But the ultimate joke is on the American people. Half of their representatives in Congress are struggling to make themselves (and those they represent) entirely irrelevant at this key moment. That is a constitutional debt that should not be forgiven.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.