A series of controversial decisions handed down last week during the final days of this year’s Supreme Court term demonstrated how Donald Trump’s appointment of three reliably conservative justices, Neil Gorsuch, Brent Kavanaugh, and Amy Coney Barrett, has fundamentally altered the high court’s ideological balance, and changed its approach to the most controversial government and social policy issues of our day.
The three most politically controversial 6-3 conservative court decisions announced last week were Students for Fair Admissions v. University of North Carolina and Harvard, which rejected the affirmative action, race-based admission standards at two of this country’s leading universities, 303 Creative v. Elenis, which gave priority to protecting freedom of speech in support of the religious values held by Lorie Smith, an evangelical Christian web designer, despite a Colorado state anti-discrimination law, and Biden v. Nebraska which struck down President Biden’s student loan forgiveness plan.
In addition to last year’s Dobbs v. Jackson decision striking down the controversial 1973 Roe v. Wade precedent, the new rulings by the Supreme Court’s conservative supermajority, led by Chief Justice John Roberts, have created so much political controversy that many liberals are now openly challenging the court’s legitimacy and constitutional authority.
In answer to a reporter’s question following the announcement of the ruling striking down affirmative action, President Joe Biden also declared, “It’s not a normal court,” which could be interpreted as implying that he does not feel bound by the Constitution to obey its decisions.
VICTORIES FOR SHOMER SHABBOS WORKERS AND FREEDOM OF RELIGION
All nine of the Supreme Court also unanimously ruled last week that employers must make significant efforts to accommodate the religious beliefs of their employees, which amounted to an important victory for all shomer Shabbos workers.
Another 6-3 conservative decision enabled service providers and business owners to refuse jobs from customers that would violate their religious beliefs, even if that meant violating local or state anti-discrimination laws.
The court also ruled, by a 6-3 vote, that President Biden had overstepped his executive powers by announcing the cancellation of $430 billion worth of college student loan debts. It ruled that only Congress has the constitutional authority to forgive up to $20,000 of federal student loan debt each for 43 million Americans. Without such congressional authorization, the court said that the former students are both legally and morally required to resume making regular payments to the government to repay the loans they took out from the taxpayers to finance their college educations.
Conservative rejoiced over the three rulings which strengthened an individual’s freedom of speech in support of their religious beliefs, enforced constitutional checks on the executive powers of the presidency, and condemned as illegal the use of affirmative action-based college admission standards because it discriminates against otherwise qualified students who are not members of the racially preferred minority groups.
Liberal Democrats and President Biden have condemned each of the three 6-3 decisions handed down by the court’s conservative majority last week, especially the two which overturned previous Supreme Court rulings, as legally incorrect.
A SUPREME COURT CALL FOR THE END OF AFFIRMATIVE ACTION
They argue that ending affirmative action college admission standards would deny the easy access to a college education that many black and other favored minority group students have enjoyed since the Supreme Court’s 5-4 decision in the 1978 Regents v. Bakke case, which approved the consideration of race in college admission decisions, but outlawed the use of racial or religious admission quotas.
While many black students, including conservative Supreme Court Justice Clarence Thomas, were able to get a first-class education at institutions such as the Yale Law School because of their affirmative action standards, their admission, based primarily upon their race, often came at the expense of more qualified white applicants as well students from other ethnic backgrounds groups not favored by affirmative action standards. This is especially true today for the many over-achieving Asian-American students, who have been openly discriminated against both by colleges and by public high school systems around the country. Their plight was one of the main arguments behind last week’s 6-3 decision by the conservative Supreme Court justices, including Justice Thomas, to do away with affirmative action standards.
The original purpose of affirmative action programs may have been well-intended. It was supposed to broaden the opportunities available to members of groups who had been excluded or discriminated against on the basis of their race, and give them a fair chance of being hired or admitted on the basis of their own merits. But in recent years, affirmative action programs have fundamentally changed in character. The number of protected minority groups has been selectively expanded, while the goal of achieving equality of opportunity has been replaced by a demand for equality of outcome, regardless of the individual’s merit, ability, or effort.
Affirmative action now means the blatant favoring of one race or liberal-defined “protected” identity group over another. The inevitable outcome of such a selection process means that the gains made by the members of the preferred groups must necessarily come at the expense of the others. For example, the lawsuit challenging the affirmative active admissions standards at Harvard University originated in 2014, when a group of Asian-American students with the best possible academic qualifications had their applications rejected, while much less qualified black students were accepted.
Harvard, of course, denied the accusations that it had imposed a quota on the number of Asian-American students it would accept, so that it would have room to accept more black students, but its discrimination against Asian-American students based solely upon their ethnic origins was so obvious from its admission statistics that the school’s denials simply became unbelievable. As a result, the Supreme Court has now declared such programs to be unconstitutional because they violate both the original spirit and the letter of the 14th Amendment’s equal protection clause.
CHIEF JUSTICE ROBERTS’S FORMULA FOR ENDING RACIAL DISCRIMINATION
Chief Justice Roberts’s decision last week, striking down the affirmative action admissions programs at Harvard and the University of North Carolina, is consistent with his 2007 opinion in a case involving public school districts in Seattle and Louisville, in which he declared simply that “the way to stop discrimination on the basis of race is to stop discrimination on the basis of race.”
In last week’s decision, he also declared that the “racial classifications [at the heart of any affirmative action program] are simply too pernicious” to be allowed to stand.
“The student must be treated based on his or her experiences as an individual — not on the basis of race. Many universities have for too long done just the opposite. And in doing so, they have concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned, but the color of their skin. Our Constitutional history does not tolerate that choice.”
Roberts also wrote that even though the Supreme Court had approved in 2003 a race-conscious admissions policy at the University of Michigan Law School, in a case known as Grutter v. Bollinger, that ruling also recognized that such racial classifications were inherently wrong and should be phased out as quickly as possible. He then quoted the decision written for the majority in 2003 by Justice Sandra Day O’Connor, in which she expressed the high court’s hope and expectation that such racial preferences would no longer be needed 25 years later [just five years from now].
GOOD INTENTIONS ARE NOT ENOUGH
Roberts conceded that both Harvard and the University of North Carolina had commendable goals for initiating their affirmative action programs, but in practice, those race-based admissions standards treated the minority students they were intended to help like crude stereotypes, demeaning their human dignity and worth.
However, in the conclusion of his affirmative action decision, Roberts noted there was a legitimate way for schools to take an applicant’s racial background into account in the admissions process, but only if that student could describe how they reacted to racial prejudice and how that experience shaped their personal development.
In a statement issued by the Brandeis Center for Human Rights Under Law, its director, Kenneth Marcus called the Supreme Court’s finding that affirmative action is unconstitutional “commendable for its moral clarity.” It also cited a portion of the legal brief that the same group had previously submitted to the Supreme Court which read, “Just as Harvard used methods in the 1920s and 1930s to identify applicants of sufficient ‘character and fitness’ as a pretext to discriminate against Jews, Harvard’s current use of the ‘personal rating’ to pursue student-body diversity is a pretext to discriminate against Asian Americans.”
In criticizing the ruling striking down affirmative action, a New York Times editorial cited statistics for colleges in states where racial preferences for admissions had already been banned which showed that the percentage of black students accepted had declined significantly. For example, black enrollment at the University of Michigan was 4% in 2021, down from 7% in 2006, when Michigan voters decided to eliminate race as a factor in state college admissions.
But there is another way to interpret the same statistics. They show that when students from all backgrounds are permitted to compete with one another on a level playing field for admission to a good school, the students who are not as well-qualified, and therefore are more likely to fail, are weeded out from the beginning, resulting in a higher quality of college education for those who do make the grade, and are admitted on the basis of their merits.
AFFIRMATIVE ACTION’S ROOTS IN ANTI-JEWISH COLLEGE QUOTAS
Students for Fair Admissions, the conservative advocacy group, which sponsored the Supreme Court case challenging the constitutionality of affirmative action programs at Harvard and the University of North Carolina, claimed that they were both rooted in the notorious quota system that Harvard adopted during the 1920s “to discriminate against Jewish applicants.”
In 1922, Harvard’s president, Abbott Lawrence Lowell, who spoke about the sharp increase in the number of Jewish students attending the school, proposed setting an admission quota of accepting no more than 15% of Jewish applicants. Other leading American and Canadian universities were quick to follow Harvard’s example, which made it much more difficult for even the most promising Jewish students to receive a first-class higher education during the decades that followed.
In his separate concurring opinion, Justice Thomas also quoted a statement by Harvard President Lowell defending quotas based on the belief that “excluding Jews from Harvard would help maintain admissions opportunities for Gentiles and perpetuate the purity of the Brahmin race.”
Thomas called affirmative action school admission policies “rudderless, race-based preferences” that “fly in the face of our colorblind Constitution,” and declared that all discrimination based on race, including affirmative action, is pernicious.
JUSTICE THOMAS’S BITTER AFFIRMATIVE ACTION EXPERIENCE
Recalling his bitter personal experiences after graduating from the prestigious Yale Law School, Thomas concluded that the stigma of having been admitted due to an affirmative action program made it much more difficult for him to find a decent job as a lawyer.
In his memoir, My Grandfather’s Son, Thomas wrote, “I learned the hard way that a law degree from Yale meant one thing for white graduates and another for blacks, no matter how much anyone denied it.”
By contrast, he noted that “even in the segregated South where I grew up, individuals were not the sum of their skin color.
“While I am painfully aware of the social and economic ravages which have befallen my race and all who suffer discrimination,” the staunchly conservative black justice added, “I hold out enduring hope that this country will live up to its principles so clearly enunciated in the Declaration of Independence and the Constitution of the United States: that all men are created equal, are equal citizens, and must be treated equally before the law.”
In a Wall Street Journal op-ed entitled “Are We There Yet?” Ward Connerly enthusiastically seconded Justice Thomas’ endorsement of this country’s founding principles of equality. Connerly wrote that “As one who was born in Jim Crow as a ‘colored’ person and who has lived through all 62 years of affirmative action. . . I strongly believe that the future of our country demands that we reject our endless pursuit of diversity and equity and claw our way back to our values and the vision embraced by [Presidents] Lincoln and JFK. Ending race-based affirmative action is an important first step in that mission.”
BLACK JUSTICES THOMAS AND JACKSON CLASH OVER AFFIRMATIVE ACTION
In his concurring opinion, Thomas also responded directly to a bitter critique of his position written by liberal Justice Ketanji Brown Jackson, which asserted the need for colleges and other businesses and institutions to continue with their affirmative action policies.
“As she sees things, we are all inexorably trapped in a fundamentally racist society, with the original sin of slavery and the historical subjugation of black Americans still determining our lives today,” Thomas wrote.
“Worse still, Justice Jackson uses her broad observations about statistical relationships between race and select measures of health, wealth, and well-being to label all blacks as victims,” Thomas wrote at another point in his concurrence. “Her desire to do so is unfathomable to me.”
New York Post commentator Douglas Murray was even more harsh in criticizing Justice Jackson’s arguments defending affirmative action. He wrote that it needs to be said that “There is a reason why Justice Jackson might be opposed to the idea of color-blind attitudes in America. Because the fact is she is where she is today because of her [gender] and the color of her skin.
“When President Biden had the opportunity to appoint a new Supreme Court Justice, he announced straight away that he wanted to appoint a black woman to the court.
“He did not say that he wanted to appoint the best possible justice — be they white, black, Asian, male, female or anything else. He specifically said that he wanted a black woman. And that is how Ketanji Brown Jackson got where she is.”
CONTRASTING PERCEPTIONS OF RACIAL DISCRIMINATION IN AMERICA
But perhaps the most persuasive argument in support of the Supreme Court decision to strike down affirmative action programs was written by veteran conservative journalist Jonathan Tobin, who is the editor-in-chief of JNS (Jewish News Service). He rejects the notion promoted by the Democrats and their ethnic/religious auxiliary groups which depict America as “not merely a nation with a tragic history of racial discrimination and bigotry. It is, in their eyes, one that remains irredeemably racist. And that’s why they supported the affirmative action admissions policies.”
Tobin writes, “Their angry denunciations of the court and posturing about the plight of minorities should be seen for what it is: a mendacious effort to enshrine racial discrimination as a permanent feature of American life. The real problem is their support for a system that is not only discriminatory but fundamentally antithetical to the notion of individual rights, and of a country where race is the primary and determining factor that shapes one’s life, not the vestige of a long-disappeared past. Though they allege that systemic racism requires us to continue discriminating on the basis of race to correct for past injustices, the policies they are defending are the real systemic racism.”
The main liberal dissenting opinion in support of the affirmative action case was written by Justice Sonia Sotomayor, on behalf of Justices Elena Kagan and Ketanji Brown Jackson. Sotomayor argued that “the court’s decision today [striking down affirmative action] is profoundly wrong” and urged it to respond “in the face of an America whose cries for equality resound.”
She also declared that the Supreme Court has long recognized that the only practical way to implement the guarantee of racial equality enshrined in the 14th Amendment’s equal protection clause was to set up “a race-conscious means” to enforce it “in an [American] society that is not, and has never been, colorblind.” She also cites as an example the Supreme Court’s landmark 1954 Brown v. Board of Education decision which outlawed segregation in all public schools.
Sotomayor also accused Chief Justice Roberts of ignoring “uncomfortable truths,” and said that the Supreme Court could not simply wish away the fact that more than 150 years after the end of the Civil War, racial discrimination against black people and other minorities is still prevalent both in the nation’s education system and society at large. She also warned that the court’s decision to order the elimination of affirmative action admission policies would have a devastating impact on today’s minority students.
Progressive Democrats have also bitterly complained that granting any exceptions to state anti-discrimination laws, even those based on the constitutional guarantees of freedom of speech and freedom of religion, violates their “woke” principles and would encourage the spread of racial bigotry and discrimination.
BIDEN DETERMINED TO CANCEL STUDENT DEBT DESPITE COURT RULING POWER
Liberals also warn that the scheduled resumption in October of monthly repayments of federal student loans will create a financial hardship for many former college students who had been excused from making such payments for the past three years, because of the national Covid health emergency, which has only recently been declared over by the Biden administration.
In response to the court’s decision to strike down the president’s student loan forgiveness plan, Biden announced his intention to find another legal argument to get around the court’s ruling that would permit the plan to go forward.
But Biden’s critics say that he should have listened to some of his own legal experts, as well as then-House Speaker Nancy Pelosi, who had warned the president before he issued his executive order last August to forgive those student loans that he lacked the authority, and that without a supporting congressional authorization, such a move was likely to be overturned by the federal courts.
Biden’s order would have canceled up to $10,000 in student loan debts for all borrowers with incomes below $125,000, or $250,000 for married couples. Those lower-income students who qualified for federal Pell grants would have up to $20,000 of their debts forgiven.
Biden claimed that he had the authority to cancel those debts due to a provision of the HEROES Act, which was passed by Congress in response to the 9/11 terrorist attack, and gave the secretary of education the ability to “modify” his department’s student financial-aid programs “in connection with a war or other military operation or national emergency.”
But as Chief Justice Roberts wrote in his decision on behalf of the conservative majority on the court, the authority to modify existing regulations implies the power to make only modest changes, “not transform them.” It is also hard to argue that the loan forgiveness is still justified by “a national emergency” now that the Covid pandemic is clearly over.
The original critics of Biden’s student loan forgiveness program suggested that it was actually an attempt Biden to “buy” the votes of young college graduates ahead of last year’s midterm election. The critics also pointed out that the lion’s share of its financial benefits would go to one of the wealthiest segments of American society, while only 12% of its benefits would go to those Americans who are in the bottom fifth by income.
As commentator George F. Will pointed out in a Washington Post op-ed column, the large-scale cancellation of student debt was effectively “a regressive transfer of wealth to a privileged minority, college graduates who have average lifetime earnings of $1 million more than people without bachelor’s degrees. The critics also argued that it was unfair to make the majority of Americans who did not attend college pay for those who did. Those college students had also agreed, when they first took out their student loans, to repay them in full.
Will also pointed out that if Congress was willing to cancel college student debt due to the Covid pandemic it would have done so in its pandemic relief bills. But instead, Congress only agreed to suspend the repayment requirements for those loans during the pandemic rather than forgive them.
Biden’s reaction to the Supreme Court ruling striking down his student loan forgiveness program was defiant. He promised to waive any penalties for those borrowers who fail to resume making monthly payments on their student loans when the congressionally approved moratorium ends on October 1, and to find another legal excuse to cancel those debts without seeking the congressional authority to do so.
LIBERAL ATTACKS ON THE LEGITIMACY OF A CONSERVATIVE SUPREME COURT
Meanwhile, liberal-funded political advocacy groups such as ProPublica, have recently launched a series of public attacks on the reputations of two of the most consistent of the court’s six conservative-voting justices, Clarence Thomas and Samuel Alito. They have been unfairly accused of corruption for having accepted, in years past, expensive favors from wealthy friends without reporting them, even though such reporting was not required by the Supreme Court’s internal ethical standards at that time, and both Thomas and Alito insist that they were unaware of any interest that their wealthy friends may have had in any of the Supreme Court cases that they were then adjudicating.
The ProPublica articles have claimed that both Thomas and Alito should have recused themselves from any case which had even the remotest connections with their wealthy friends, while failing to make similar demands of the Supreme Court’s liberal justices.
A Wall Street Journal editorial condemned ProPublica’s highly selective muck-raking journalism as “the latest angle in the progressive campaign to cripple the Court’s new majority.
“That’s the larger story to keep in mind as the campaign against the Court accelerates. This isn’t about ethics. This is about the left’s fury at having lost control of the Court, which they had counted on for decades as a second legislature to impose their priorities when they couldn’t persuade Congress. They can’t accept that loss, and they will destroy the Court if they must to get that control back,” the editorial concluded.
The Wall Street Journal’s editors also defended their own decision to publish Justice Alito’s response to ProPublica’s questions of him the evening before ProPublica released their story challenging the ethics of Alito’s conduct. The editors wrote, “We are defending the Court because someone has to. Someone has to stand up for judicial independence and an institution that is part of the bedrock of our constitutional order.”
Justice Thomas has also been unfairly criticized by liberal Democrats for the political activism of his wife, Ginni, in support of Donald Trump, as well as her presence at the January 6, 2021, Trump rally at the White House, prior to the riot by Trump supporters at the Capitol in which Mrs. Thomas did not take part.
WHY ANGRY DEMOCRATS SEEK TO UNDERMINE THE SUPREME COURT
Until recent years, liberal Democrats had used their decades-long de facto control over the Supreme Court to get around the public’s resistance to some of their more extreme policy proposals, such as the 1973 Roe v. Wade decision, as well as their inability to get their liberal social policy proposals passed by Congress.
But all that changed when conservative Republicans recognized the need for more conservative justices on the Supreme Court bench. That process started at the end of the Obama presidency, when the February 2016 death of Justice Antonin Scalia, who had been the court’s leading conservative at the time, gave Obama the opportunity to nominate a liberal replacement which would further skew the court’s ideological balance in favor of the liberals. Obama nominated Judge Merrick Garland, who is now President Biden’s attorney general, to fill Scalia’s seat, but then-Senate Majority Leader Mitch McConnell blocked a confirmation vote on Garland’s nomination by refusing to hold confirmation hearings. McConnell argued that based upon similar precedents, Scalia’s open seat should be filled by the winner of that November’s presidential election.
At the time, almost everyone assumed that the new president would be Hillary Clinton, but Donald Trump’s surprise victory upended those expectations, and enabled him to nominate Neil Gorsuch, a highly respected and reliably conservative jurist, as Scalia’s replacement, leaving the court’s then-closely divided ideological balance effectively unchanged.
But that situation did not last for long. When centrist Justice Arthur Kennedy retired from the Supreme Court in 2018, President Trump was quick to nominate the much more conservative Brett Kavanaugh to fill his seat.
HOW MITCH MCCONNELL ENGINEERED A CONSERVATIVE COURT
Democrats tried desperately to block Kavanaugh’s Senate confirmation because it would create a solid 5-4 majority of conservative justices. The Democrats promoted scandalous but highly dubious allegations of improper conduct by Kavanaugh 35 years ago when he was a high school student and then attended Yale University as a young undergraduate. In the end, despite an FBI investigation, all of the accusations against Kavanaugh remained unproven, and he was able to convince virtually all of the Republican senators that he was the innocent victim of a politically motivated Democrat campaign to ruin his personal reputation.
Because of the highly partisan controversy over Kavanaugh’s nomination, Senate Majority Leader McConnell, following a precedent set by the previous Democrat Senate majority leader, Harry Reid, did away with the traditional three-fifths Senate supermajority (60 votes) that had been required for Supreme Court judicial confirmations. As a result, Kavanaugh won his confirmation to the Supreme Court bench in a largely party-line vote by the razor-thin majority of 50-48.
That 5-4 conservative majority was further strengthened when the Supreme Court’s leading liberal jurist, the legendary Ruth Bader Ginsburg, died on September 18, 2020, following a long battle against pancreatic cancer. Even though the 2020 presidential election was less than two months away, Senate Majority Leader McConnell managed to complete the rapid confirmation of President Trump’s nominee to fill Ginsburg’s seat, conservative jurist Amy Comey Barrett.
Democrats were furious. They believe that McConnell and Trump had stolen control of the Supreme Court by using underhanded tactics to create an illegitimate 6-justice supermajority block of conservative justices. That supermajority has now begun to dismantle fifty years’ worth of liberal Supreme Court precedents, beginning with the overturning of the Roe v. Wade decision last year, and continuing with the three 6-3 decisions announced last week.
Liberal legal advocates have gone so far as to publicly urge President Biden to use unconventional means to pack the Supreme Court with additional liberal justices to neutralize the dominating influence of the 6 conservatives now on the bench. But Biden has wisely resisted those calls so far, probably because he realizes that the next Republican to be elected president would likely use the same tactic to restore the court’s conservative majority.
Instead, Biden has said that he will try to find ways to get around the recent conservative Supreme Court rulings by testing the legal limits of his presidential authority to issue executive orders, and without seeking formal approval from the two closely divided houses of Congress.
But while Democrats have tried to portray the 6-justice conservative judicial block as another Trump and Republican-engineered threat to American democracy, in fact, most of the Supreme Court’s other decisions during this past year were the result of a conscious effort by Chief Justice Roberts to build a judicial consensus on decisions which could be supported by the court’s three liberal justices and at least two of the six conservative justices, including himself.
STRENGTHENING WORKPLACE RIGHTS FOR THE SHOMER SHABBOS
In one of those cases, known as Groff v. Dejoy, a unanimous 9-0 Supreme Court majority expanded the right of all religious individuals in the workplace, including Orthodox Jews, to demand suitable accommodations from their employers for their personal religious practices and beliefs.
The ruling clarifies the meaning of Title VII of the 1964 Civil Rights Act, which prohibits discrimination on the basis of religion. In 1972, Congress amended the statute to make clear that an employer must reasonably accommodate workers’ religious practices, unless the employer can show that an employee’s request for religious accommodations would create an undue hardship. More specifically, last week’s ruling redefines the meaning of the term, “undue hardship” in the 1972 amendment.
The Groff case involved an evangelical Christian former postal worker, Gerald Groff, who claimed that he was discriminated against by the U.S. Postal Service for refusing to deliver mail on Sundays, which most religious Christians observe as the Sabbath. Goff went to work in 2012 delivering mail six days a week in rural parts of Lancaster, Pennsylvania. However, starting in 2013, the Postal Service began delivering packages for Amazon on Sundays, prompting Groff to ask for a transfer to a small post office that was not doing Sunday deliveries at that time. However, when that small post office also began doing Sunday deliveries for Amazon in March 2017, Groff was eventually forced to resign after he informed his supervisors that he could not do such deliveries because they would violate his Sabbath observance, and those supervisors then told him that they could not find other postal workers willing to make a swap to take over his Sunday delivery shift.
In last week’s unanimous ruling, the Supreme Court said that the U.S. Postal Service should have made a greater effort to accommodate Groff’s religious beliefs, overturning the Supreme Court’s decision in a similar 1977 case known as Trans World Airlines v. Hardison, which ruled that employers were not required to provide such accommodations if they required anything more than a “de minimus,” meaning a minimal cost. [Larry Hardison was a religious employee of the now defunct airline who had sued TWA because he had been fired for refusing to work on his Christian Sabbath.]
The unanimous court ruling, written by Justice Alito, reinterprets the conflicting language of the 1977 decision by requiring that any employer refusing the worker’s request “must show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.”
Alito wrote that “in describing an employer’s ‘undue hardship’ defense, [the Hardison ruling] referred repeatedly to ‘substantial’ burdens, and that formulation better explains the decision.” Alito also noted that the Hardison ruling stated “three times that an accommodation is not required when it entails ‘substantial cost or expenditures,’” clearly implying that otherwise such an accommodation is required by the federal Civil Rights law.
PUTTING THE ONUS ON THE EMPLOYER
The significance of the Groff ruling to Orthodox Jewish employees who otherwise might be expected by their employers to work on Shabbos is obvious. Mitchel Aeder, the president of the Orthodox Union, predicted that the decision will have far-reaching consequences, by expanding the job opportunities available to shomer Shabbos workers. “Members of our community require accommodations for Sabbath and holiday observance, times to pray, the ability to keep kosher, and the like. Such accommodations enable us to be not only faithful Jews but productive workers and members of American society. That is why the Orthodox Union advocated to the Court in support of Mr. Groff and why we welcome this landmark ruling,” Aeder said in a statement.
In his decision, Justice Alito quoted one of the points cited in the Orthodox Union’s amicus brief, which said that the previous interpretation of the 1977 Hardison ruling meant that “Orthodox Jews once again [had been] left at the mercy of their employers’ good graces.”
Nathan Diament, the OU’s executive director for public policy who co-authored its amicus brief, was quoted by the Jewish News Service (JNS) as saying that, “For decades, ever since the Supreme Court issued its terrible ruling in the Hardison case, the Orthodox Union advocated for that ruling to be reversed or revised.
“Forcing American Jews, or Americans of any faith, to choose between their career and their conscience is fundamentally at odds with the principle of religious freedom that is the foundation of the United States and our Constitution. We regret that it has taken so long, but we are grateful that the Supreme Court has finally righted the wrong of Hardison and has reinstated the full right of religious accommodation in the workplace,” Diament concluded.
Rabbi Yoel Schonfeld, president of the Orthodox, Baltimore-based Coalition for Jewish Values, stated that the Groff decision is “a powerful victory for religious liberty.” Previously, he said, “Orthodox Jews were denied accommodations when work schedules could easily have been rearranged.”
Mark Rienzi, the president and CEO of the Becket Fund for Religious Liberty, stated that the ruling “corrects decades of rulings against religious Americans.”
“Big corporations got away with firing employees for their religious practices for decades, thanks to a fundamental misreading of civil rights law,” Rienzi added. “That mistake by the court long pushed faith out of daily life by giving employers free rein to give religious workers the boot for observing holy days and taking time to pray.”
UNUSUAL SUPPORT FROM SECULAR JEWISH GROUPS
Groff’s legal complaint against the U.S. Postal Service received support from an unusually broad array of Jewish groups, including a few, such as the Anti-Defamation League and the American Jewish Committee (AJC) which have argued in the past against laws requiring religious accommodations in the workplace as a violation of the secular principle of strict separation of church and state. But with regard to the Groff case, Marc Stern, the AJC’s chief legal officer, called for an exception, because religious workers should “not have to abandon [their] most deeply held beliefs as a condition for having a job. . .
“There are those who insist that every aspect of public life must be governed only by secular rules and that people should leave their religious beliefs and practices at home,” Stern noted. “[But] that is not the American tradition, and it is not the position embodied in Title VII [of the federal Civil Rights law].”
However, despite the Supreme Court decision in Groff’s favor, his battle for reinstatement to his post office job without requiring him to work on his Sabbath is not yet over. A Postal Service spokeswoman said that its existing policy for accommodating the religious beliefs and practices will ultimately be vindicated when the case is retried in a lower court, because meeting Groff’s request “would impose a substantial burden on the Postal Service.”
THE LEGAL BATTLE CONTINUES
Groff’s call for a religious accommodation was also opposed in court by a secular group called Americans United for Separation of Church and State. A statement from the group’s president, Rachel Laser, defended its policies by claiming that it does not object to those “religious accommodations that don’t burden or harm others, like wearing a hijab [Muslim head covering] or having a beard, or praying privately, [which] are exactly what the law was designed to permit. In this case, however,” she noted, “Groff was hired as a part-time, flexible carrier at a four-person post office, and he refused to show up for 24 Sundays of work.”
Laser also said that she was relieved because in last week’s Supreme Court decision it “refused to decide the specifics of Groff’s case and is leaving that to the lower courts, which got this case right the first time around [by ruling against him].” Therefore, Laser said, “We live to fight another day.”
Nevertheless, a Wall Street Journal editorial hailed the court’s decision as “a resounding 9-0 blow for the rights of religiously observant workers.”
HOW CHIEF JUSTICE ROBERTS PROTECTS HIS COURT
Despite the furor over the three controversial 6-3 decisions that the Supreme Court announced last week, the justices avoided controversy over most of the other cases that came before them over this past year by deliberately disposing of them on technical legal grounds or issuing rulings that deliberately avoided passing judgment on their politically sensitive underlying issues.
Many of those agreements were made possible by the willingness of Chief Justice Roberts, Justice Neil Gorsuch, Justice Brett Kavanaugh, and Justice Amy Coney Barrett to strike a compromise with the three liberal justices. Those four conservatives have now assumed the same swing voting role which had been played for many years by Justice Sandra Day O’Connor, and then by Justice Arthur Kennedy, who sometimes crossed over to create a temporary 5-4 majority with the liberal judges on selected legal issues of common concern. But while Roberts, Gorsuch, Kavanaugh, and Barrett are somewhat more moderate than Justices Thomas and Alito, they are still ideologically to the right of center, and can be relied upon to provide a solid 6-3 supermajority in those cases involving the most important conservative legal issues.
Because of their flexibility, Gregory Garre, who often appeared before the Supreme Court when he served as solicitor general under President George W. Bush, said, “I really do feel like [this Supreme Court term] was a tale of two courts — one that remains boldly conservative and willing to revamp its precedent to achieve long-standing conservative objectives, and another that is seeking to find common ground where possible and seemingly sensitive to the sustained attack on its legitimacy. But on the most important questions to this court, it is the muscular conservative court [judicial block] that prevails.”
Adam Unikowsky, a Washington lawyer who clerked for the late conservative Justice Antonin Scalia agreed that this past year was a term marked by “mixed messages.”
“In big social cases, I think lineups will stay stable” Unikowsky said. “In religion cases, [gender] rights cases, the outcome is predictable, in my opinion. And that’s been true for a few years, and that will continue to be true.”
Legal observers also agree that this year’s Supreme Court term was dominated by Chief Justice Roberts, who was part of the majority in every one of the court’s most important cases, and wrote the majority opinions in four of them, including the decisions against affirmative action programs and striking down President Biden’s student loan forgiveness program.
Garre said, “Given the current makeup of the court, this [year was] arguably Chief Justice Roberts’s most remarkable term as chief.”
Roberts’s success in guiding the court this year stands in sharp contrast to his performance last year, when he was unable to persuade his five conservative colleagues not to overturn the Roe v. Wade decision. That ruling, known as Dobbs v. Jackson, handed the Democrats a powerful political issue which they then used effectively to do much better than expected in the 2022 midterm election campaign. It also triggered a sharp drop in public support and approval for the high court.
The court’s key conservative rulings during this term were also closely aligned with Roberts’s record of prior decisions. During his 18 years as Chief Justice, Roberts has never voted in favor of an affirmative action program.
THE FIRST CONSERVATIVE VICTORY AGAINST THE ADMINISTRATIVE STATE
Roberts’s rejection of Biden’s plan to forgive student loan debt is also consistent with his ruling last term that the Environmental Protection Agency (EPA) does not have the authority to make major new rulings on the basis of climate change without the explicit approval of Congress.
Conservatives hailed that decision as the first significant effort by the Supreme Court to check the growing power of deeply entrenched, unelected bureaucrats who make up the so-called “administrative state.” By unilaterally imposing new regulations that have not been specifically authorized by Congress, the bureaucrats who run these semi-independent federal agencies, who are not directly accountable to the voters or to their elected representatives, are intruding into the daily lives of individual citizens, and often violating their constitutional rights and freedoms.
In ruling last year that the EPA had exceeded the specific authority it received from Congress to make new regulations which would have major ramifications, the conservatives established a what is known as the major questions doctrine (MQD), which requires government agencies to receive explicit approval from Congress before issuing new rules which would have a significant financial or political.
The MQD is seen as a significant blow to progressives who have been using their dominating influence over federal agencies under the Biden administration to make up new rules and regulations furthering their progressive goals without waiting for Congress to authorize them. It is therefore not surprising that liberal Justice Elana Kagan, in her dissenting opinion on the decision striking down Biden’s student loan forgiveness program, attacked the major questions doctrine as a “made up” rule that conservatives now plan to use to launch new attacks on the administrative state.
In response, conservative Justice Amy Coney Barrett, in her own concurring opinion, defended the MQD, by arguing that the doctrine flows naturally from the presumption that Congress normally intends to make such major decisions by itself rather than leaving them for agencies in the executive branch of government to invent on their own, without first seeking approval from the people’s elected representatives in the legislative branch.
JUSTICE KAGAN SAYS CONSERVATIVE JUSTICES VIOLATED THE CONSTITUTION
In his ruling striking down Biden’s student loan forgiveness proposal, Roberts vigorously defended the legitimacy of those conservative decisions in the face of harsh criticism from many Democrats, President Biden as well as Justice Elana Kagan. claimed that those decisions went “beyond the proper role of the judiciary.” Kagan argued in her written dissent that “from the first page to the last, today’s opinion [by Chief Justice Roberts] violates the principle of judicial restraint.”
Justice Kagan’s dissent goes even further, accusing the majority of conservative justices of violating the Constitution by “exercising authority it does not have.” She further explains that “at the behest of a party that has suffered no injury, the [conservative] majority decides a contested public policy issue properly belonging to the politically accountable branches and the people they represent.
“That is a major problem not just for governance, but for democracy too. Congress is of course a democratic institution; it responds, even if imperfectly, to the preferences of American voters. And agency officials, though not themselves elected, serve a president with the broadest of all political constituencies. But this Court? It is, by design… supposed to stick to its business — to decide only cases and controversies, and to stay away from making this Nation’s policy about subjects like student-loan relief.”
Kagan then adds, justifying her own harshly critical comments, that, “Justices throughout history have raised the alarm when the Court has overreached. . . . It would have been ‘disturbing,’ and indeed damaging, if they had not.”
In his response to Kagan’s criticism, Roberts wrote that he and his fellow conservative justices had “employed the traditional tools of judicial decision-making” in making their rulings. The chief justice also declared that, “It is important that the public not be misled [by the criticism of the Supreme Court decisions] either [because] any such misperception would be harmful to this institution and our country.”
The 6-3 majority decision, in the 303 Creative v. Elenis case, which ruled that a web page designer had a First Amendment right to withhold her services because the job would require her to betray her deeply held Christian religious beliefs, was written by Justice Gorsuch. But it was also consistent with Roberts’ prior rulings upholding an individual’s right to follow their religious beliefs, even when they are in conflict with state anti-discrimination laws.
JUSTICE ROBERTS’S SURPRISING POLITICAL FLEXIBILITY
There were two other surprise Supreme Court decisions on voting rights cases written by Roberts that were reluctantly praised by liberal Democrats, and greeted with some dismay by conservative Republicans. In one case, Roberts threw out an Alabama congressional redistricting map because it had diluted the voting strength of the state’s black residents by placing almost all of them in one district, rather than creating a second district out of the state’s total of seven, where minority voters would be numerous enough to have a good chance of electing one of their own candidates, who most likely would be a Democrat.
In the other surprising ruling, Roberts rejected a novel constitutional law theory supported by some Donald Trump advocates, which would have empowered state legislatures to implement redistricting maps and regulate federal elections without any court oversight. If the court had accepted the theory, it would likely have brought about radical electoral changes in states whose legislatures are dominated by Trump supporters.
Another case, in which four of the court’s conservative justices, led by Roberts and including Gorsuch, Kavanaugh, and Barrett, joined with the three liberal justices against Thomas and Alito to reaffirm a 1970s-era federal statute that prioritizes the adoption of American Indian children by other American Indian families whenever possible.
An evaluation of Roberts’s performance as chief justice by New York Times columnist Ross Douthat in light of the controversy over the 6-3 conservative decisions, notes that he has been largely successful in his efforts to protect the court’s legitimacy in the eyes of the general public by keeping to a minimum the number of conservative decisions in which he breaks with established legal precedents, such as overturning Roe v. Wade, and by taking a judicial minimalist approach, by deciding cases on the narrowest possible legal grounds, in order to avoid having to pass judgment on a controversial public issue that is sure to offend advocates on one side or the other.
This approach has generated criticism of Roberts’s rulings by both conservatives and liberals. Conservatives still fault him for passing on the opportunity to strike down Obamacare’s individual mandate in 2012 as unconstitutional, and ruled improbably that it could be justified as a tax imposed by Congress. Liberals, on the other hand, fault Roberts for being willing to compromise only on those cases which do not decide important partisan issues, while consistently siding with conservative Republicans when deciding cases with important political ramifications, such as the 6-3 decisions he wrote last week striking down affirmative action and the president’s proposal to cancel $430 billion in student loan debts.
ROBERTS MORE INTERESTED IN RESULTS THAN LEGAL LOGIC
Douthat also notes that in some of his most important court decisions, Roberts seems to be more interested in achieving his desired political goals rather than presenting a compelling legal argument. For example, Douthat writes that Roberts’s “decision to uphold Obamacare was the correct one, but his specific justification didn’t make much sense.” The New York Times columnist also notes that his unsuccessful attempt last summer to talk his 5 conservative colleagues on the Supreme Court out of overturning the Roe v. Wade decision was both “legally and philosophically incoherent. But Douthat does give Roberts credit for standing up to oppose then-President Donald Trump’s radical census proposal and Trump’s attack on a federal judge for ruling against his migrant asylum policy.
New York Post columnist Michael Goodwin expanded on Roberts’s defense of the conservative rulings with which the Supreme Court ended this year’s term, by declaring that they “rang out with a consistent clarity that the Constitution favors individual liberty over group rights and government power.”
Goodwin also bemoaned the fact that because of the “hysterical” liberal outcry against those rulings, “furiously denouncing the court as a right-wing instrument of hate and exclusion. . . fewer and fewer Americans understand the founding principles” upon which those decisions were based.
THE LIBERAL WAR ON AMERICAN EXCEPTIONALISM
According to Goodwin, the ultimate goal of those liberal critics, including President Biden, the New York Times, Senator Elizabeth Warren and the New York City’s progressive congresswoman known as AOC, is “to trash American exceptionalism so they can force everybody to think alike. . . They are united in demanding more sweeping government power and fewer rights for individuals who [dare to] dissent from their orthodoxy.”
For decades, progressives had relied upon the Supreme Court to deliver extreme liberal policy rulings, such as Roe v. Wade, which they couldn’t get Congress to pass. But now that “the shoe is on the other foot,” and the majority in the Supreme Court is in the hands of [mostly] reliable conservative justices, the liberals are crying foul. If the decisions approved by the conservative justices stick to the letter and spirit of the law, as defined by the original text of the Constitution, liberals immediately condemn them as a threat to democracy.
But so far, such apparently partisan decisions approved by the unified majority of six conservative Supreme Court justices over liberal objections have been relatively rare. Kristen Waggoner, the lawyer who represented the religious rights case brought by the Christian Colorado web designer, noted that this year, “Even when the court was divided, the fault lines rarely fell along the ideological lines one might expect. . . at least one justice — often more — crossed the so-called ideological divide.”
David Cole, the legal director of the American Civil Liberties Union (ACLU), a leading liberal advocacy group, also agreed that the Supreme Court’s rulings this year were far more balanced ideologically than they had been expected. Last year, the ACLU was on the losing side in 13 of the 18 cases in which it filed a brief with the court, but it was on the winning side of 11 of the 18 cases in which it participated during this year’s term.
The Supreme Court also exercised more caution this year about the kind of cases it chose to take on, delaying its consideration of cases raising controversial issues until all of the lower appeals courts had completed their own reviews.
BATTLING THE NEW SECULAR LEFTIST RELIGION
However, JNS editor Tobin reminds us that, “important as it is, the court’s [recent conservative] decision[s] should not be seen as the end of this fight. Rather, it is the beginning of what promises to be a long battle against the effort to implement diversity, equity, and inclusion (DEI) policies that have taken the already misguided idea of affirmative action and turned it into a woke catechism for a new secular leftist religion of ‘anti-racism’ that is itself racist. The Supreme Court has made it much harder for colleges to engage in overt racism in the name of ending racism. But the ability of leftists to impose DEI on academia, business, and now the government, in the form of the Biden administration’s decision to impose it on every federal agency and department, has created a much larger and more dangerous challenge for those who wish to ensure individual liberty.”
