Friday Round Up! 6/30/23

The longest week ever...thanks to SCOTUS.

The big news this week was SCOTUS, which eclipsed the earlier big Trump news, which was a release of the audio tape of Trump discussing classified war plans for Iran with some reporters in Bedminster. This week Renato and I discussed how Special Counsel Jack Smith can utilize the tape in making the case against Trump, plus some thoughts on the Prigozhin/Putin showcase showdown and why Putin may be experiencing PTSD from his experience during the fall of the Berlin Wall in 1989:

OK, on to SCOTUS. The decisions this week got off to a promising start, with a 6-3 decision (Justice Roberts writing for the majority) jettisoning the so-called Independent State Legislature theory which, if accepted, would basically allow state legislatures to violate their own state constitutional election requirements without any oversight or review. (For those enrolled in the Substack course, my discussion with

David Pepper

on Wednesday went through the parade of horrors that might have resulted had the Court gone down that path.)

But things took a turn on Thursday, when the long-awaited affirmative action case was handed down (6-3, Justice Roberts writing), holding that race-conscious admissions practices — at least in the manner that it was practiced by Harvard and UNC — violated the 14th Amendment’s Equal Protection Clause. On this front, I tweeted my view of the decision, which is that it’s bad, but in many ways not AS bad as many legal pundits were suggesting. In short, in order for schools to consider race as an element of diversity in creating their incoming class, the onus shifts to applicants to more explicitly articulate in their applications how their race has shaped their experiences and worldview — and it will take more time and individualized review by admissions committees during the admissions process. The bigger issue is that schools will not be able to consider or monitor the overall racial composition of the class as they proceed through the admissions process. You can read the whole tweet thread here.

The case with greater equal protection implications was the LGBTQ case decided yesterday, involving a wedding web designer who claimed that a Colorado public accommodations law which would require her to design a website for a same-sex couple violated her First Amendment rights by forcing her to express a message that violated her religious beliefs. In another 6-3 decision written by Justice Gorsuch, the Court agreed — opening the door for any person engaged in some sort of “creative” or “expressive” enterprise to refuse to serve individuals if they disagree with the message they are being asked to make (imagine, for example, a cake designer who disagrees with interracial marriage, saying that she can’t make a cake that celebrates/promotes one). The decision is a huge departure from how public accommodations laws have been approached in the past, which has looked at the intent of the government’s action; as Justice Sotomayor points out in her dissent, in this case Colorado was seeking to address discriminatory conduct (businesses must serve everyone), not speech. In such cases, “incidental” burdens on speech are typically permissible as long as the government is trying to fulfill a substantial government interest.

Finally, the Court also struck down (6-3, Justice Roberts writing) President Biden’s loan forgiveness plan, finding that it exceeded the authority delegated to him by Congress under the HEROES (the Health and Economic Recovery Omnibus Emergency Solutions) Act, which permits the Secretary of Education to “waive or modify” existing regulations for federal financial assistance programs (including loans) during a national emergency. The law was passed after 9/11 to allow the executive branch to address the financial obligations of borrowers who might be affected by emergencies like wars or natural disasters. The Court found that the $430 billion price tag on the program went far beyond “waiving” or “modifying” and essentially created a fundamentally different program — basically saying that this was in effect a whole new law, therefore overstepping Congress’ legislative and appropriations authority. Biden yesterday announced that he will try to accomplish a similar goal under a different law called the Higher Education Act, which, similar to the HEROES Act, delegates authority to the Secretary of Education to “compromise, waive, or release” federal student loans. The details are unclear, but it sounds like Biden plans to implement an income-based repayment program that can be forgiven after a period of time. It remains to be seen how quickly this program can go into effect, and whether it will face the same legal challenge as the initial attempt.

Clips on all cases below (including my ABC News legal colleague

Kim Wehle

).

Noteworthy clips from this week:

That’s it for this week — please note that I won’t have a round up next week as I am on vacation and traveling, but they will resume the week after. I’ll also be scheduling and updating our guest speaker events, so stay tuned. Finally, in honor of Independence Day, please enjoy my favorite Schoolhouse Rock video — happy Fourth of July!