Okay...but Why Is SCOTUS Like This?

Much like a soupy subway platform in the summmertime, the United States Supreme Court is a hot mess at the moment. On top of the (pretty much) permanent problem of those stolen seats, every week brings new reports of serious conflicts of interest for the conservative justices, from Justice Clarence Thomas palling around on the private jet of one GOP megadonor billionaire to Justice Samuel Alito taking a luxury fishing vacation with another who had actual business before the Court. Oh, almost forgot to mention the recent revelation of shady Venmo transactions allegedly flowing from lawyers involved in SCOTUS cases to one of Justice Thomas’s former clerks. Yep, that’s our highest court in the land, folks!

Ethical infractions aside, in late June, the Court issued major decisions that effectively ended race-conscious admissions programs at universities across the country, invalidated President Biden’s student loan cancellation plan, and essentially sanctioned LGBTQ+ discrimination by deciding in favor of a Colorado web designer who refuses to work with same-sex couples (although note that zero gay couples had ever asked to work with her).

So you’re probably wondering...now that we’re here in this muck, what can we actually do? Cosmopolitan sat down with Melissa Murray, Leah Litman, and Kate Shaw, the savvy legal scholars behind Strict Scrutiny, a Crooked Media podcast that dissects SCOTUS machinations with just as much fervor as they unpack Scandoval. In our conversation, we talked about how bad this SCOTUS term actually was, which Real Housewife resembles Justice Thomas the most, and what we can actually do about the Court’s relentless assault on our rights and protections.

For people who haven’t been closely following the term, how bad was it and how did it stack up against your expectations?

Murray: It was a pretty bad term. You have to understand that last term was a really big blockbuster because the Court overruled Roe v. Wade in Dobbs and ruled on a bunch of other hot-button issues, like gun control, for example, or religion. Typically, when you have a big term like that, it’s usually followed by something a little more muted as the justices recalibrate, take the temperature of the country, kind of slow their roll a little. I don’t think we saw that. Instead, what we saw was yet another blockbuster term and a conservative supermajority that seemed intent on prosecuting their agenda and moving the Court to the right.

Litman: A bunch of things it did this term are really long-held goals of the conservative legal movement and the Republican Party. The Court nuked the president’s student debt cancellation program. It also dismantled affirmative action but chose to do so in a way that differed from how it ended Roe vs. Wade. Last term, in Dobbs, the Court just outright overruled Roe and ended the constitutional protections for abortion. This term, in the affirmative action case, they were like, “Oh, we’re not overruling any of our prior cases. We’re just going to twist them in a way that makes affirmative action basically impossible to use.”

Shaw: We also saw the Court elevate religion and protections for religious practice. It basically granted an exemption from public accommodation law, the current versions of which begin with the Civil Rights Act. For the first time, the Court completely changed course and said that this would-be website designer in Colorado could not constitutionally be forced to provide wedding website services to a same-sex couple. If you take Justice Sotomayor’s dissent seriously, which I do, the ruling imperils all of these longstanding public accommodations laws. This is just another example, as Leah was saying happened in the affirmative action case, where the Court did not technically overrule any cases but nevertheless inaugurated an enormous change in the law.

So it sounds like the decisions were bad, but the conservatives on the Court tried to make their reasoning sound a little less unhinged? Do I have that right?

Shaw: They may have taken some cues from the backlash to Dobbs and understood that they should try to do the things they wanna do without saying or writing the words, “This case is overruled.” For that reason, people may have taken the mistaken impression that it was a less dramatic term than the last one.

If we were to look at this term like a reality show season, who do you think are the major characters and what are their storylines?

Murray: I think you’re gonna have to tell us which reality TV show you’re thinking of.

Can we do Vanderpump Rules?

Murray: Yeah, we can play that game. Kate, you’re gonna sit this one out, right? Kate doesn’t really watch reality television.

Shaw: It’s a personal failing. I’m working on it.

Murray: So, Leah, where to start?

Litman: We call Sam Alito “Scandal-ito” in part because of the scandals that he embroiled himself into—namely, accepting a personal jet trip and free luxury vacation from someone with business before the Supreme Court, declining to recuse himself in such a case, and then when asked about it, throwing a temper tantrum about how this is everyone’s fault but his. That is Tom Sandoval behavior. Hence Scandal-ito.

Murray: Who’s the Ariana Madix in this though? Who’s getting screwed over?

Litman: Um, America?

Murray: Yeah, that seems right. Democracy.

Litman: The Raquel Leviss is definitely the Federalist Society and right-wing dark money. Those billionaire benefactors who are just willing to hand out whatever it is the Supreme Court justices are looking for.

But why Sam Alito and not Clarence Thomas? Doesn’t he also love a private jet ride funded by a billionaire?

Murray: Well, because most reality TV shows don’t have Black people. But if we were doing Real Housewives of Atlanta, ugh, I mean, this would be hard. Oooh, you know what? Shereé Whitfield...“Who gon check me, boo?” In spirit, we do love Shereé, but that whole vibe is very Clarence Thomas right now.

Leah: Oh, yeah, that’s a good one. Perfect.

So that Kate can get back into the conversation, I was hoping to talk a little bit more about the affirmative action case. It’s pretty scary that the Supreme Court seems to be commanding institutions to behave as if racism doesn’t exist. What’s coming next here?

Murray: We’re definitely seeing some momentum around reading the decision as broadly as possible to apply not just to higher education admissions but also perhaps even further to hiring decisions in higher education and to employment more generally. I don’t know that the opinion can be read that broadly.

In the pipeline to the Court is a case involving Thomas Jefferson High School, which is a selective high school in Arlington, Virginia. A few years ago, alarmed at the lack of diversity in its student body, it changed its admissions protocol to create new opportunities for a wider range of students to be admitted, using race-neutral criteria. They looked at socioeconomic status and adopted some of the techniques that other colleges have done, like a top 10 percent plan—all in the service of promoting a more diverse class. They were sued not because they were using race in their admissions criteria but because the outcome they sought was to have this racially diverse class. That’s the next frontier.

That is so alarming. Do you think this decision could have implications in others parts of life and other areas of the law?

Shaw: We don’t know yet, but it’s entirely in the realm of the possible that there’s this expansive vision of race blindness as a constitutional command that has to be honored in every facet of our public lives. The simplest way to distill it: I’m not sure there are a lot of spaces that are totally safe from the potential force of these rulings. The one thing I want to emphasize though is these opinions do not emerge into the world with their meaning established. They come to take shape and meaning through the collective act of interpretation and application. To the extent that our institutions resist the broadest possible reading of the reasoning in these cases, I think that really matters.

And how concerned should we be about the direction of LGBTQ+ rights given the decision about the Colorado web designer?

Litman: It’s incredibly concerning and heartbreaking. I don’t think they are going to be overruling Obergefell v. Hodges, the decision recognizing the right to marriage equality, in the next five years. Instead, what the Court could do is create a series of exceptions that allow for discrimination against same-sex families, against same-sex marriages in ways that normalize treating LGBTQ+ people differently and threaten their ability to participate equally in civic life because they constantly have their dignity and equality questioned. They will always have to wonder, Will I be able to be served? Am I going to be discriminated against? Can I obtain health care? Can I be hired here? The list goes on. This Supreme Court is launching bodies of jurisprudence that are being manipulated and in some cases tailor-made to enable discrimination against the LGBTQ+ community. Frankly, that is likely to continue so long as this Court is left to its own devices.

It does seem like the Court is very aware of its own problems with legitimacy. Can progressives leverage that to somehow spark change?

Litman: It’s a really complicated question and problem because there is no direct mechanism by which public opinion affects the Supreme Court. But there is considerable evidence that it does matter, right? [Editor’s note: Like Justice Alito whining to the Wall Street Journal about negative press or Chief Justice Roberts asking Justice Elena Kagan to be nicer in dissents.] They are behaving as if they understand that public opinion does matter because there will be a point at which the Court’s public approval is so low that its opinions do not command the respect that they’re accustomed to, and maybe a point at which the elected branches—Congress, the president, maybe also states—start to push back against the Supreme Court. But it’s really difficult to say when that might be or how to actually constrain the Court using public opinion, and that’s part of what makes it difficult.

Murray: It’s important for the public to be engaged in the work of the Court and not to think about it as an afterthought. Democrats really kept their eye off the ball for a long time. Republicans did not—they really tended to it, both the Supreme Court and the lower federal courts. They figured out a way to harness this majoritarian institution to prosecute their agenda, an agenda that they did not have public support for and could not accomplish in majoritarian politics.

For an average person like me, is “paying attention” to the Court enough? It doesn’t really feel like an action item. Are there any concrete things we can do?

Murray: One action item that everyone can do that’s relatively painless and might even be pleasurable is to tune in every week to Strict Scrutiny wherever you get your podcasts.

Litman: The only long-term sustainable check on the Supreme Court is going to be laws that change how the Supreme Court operates. But in order to get those laws passed, we need overwhelming public support and mobilization. Our elected representatives, particularly at the federal level—they’re not super responsive to just bare majority preferences. You need to talk to your friends about the Supreme Court. You need to be ready for the next moment where Democrats control both houses of Congress and the presidency to be able to make the case—and quickly—for people to do something about an institution that is an existential threat to American democracy, such as we know it.

In an effort to end this conversation on a positive note...let’s talk about Justice Ketanji Brown Jackson’s first term, where she made a bold, confident debut. What impact is she already having on the Court?

Murray: She was the rookie of the year. She came to slay and she made clear from the jump that she wasn’t afraid to use the conservatives’ logic against them. Throughout the term, she routinely invoked history and tradition—which the conservatives have heralded as key to interpreting the Constitution—but she made clear that history and tradition do not mean that the Constitution is color-blind or regressive. As she explained repeatedly, the Reconstruction Amendments, passed in the wake of the Civil War, fundamentally altered the constitutional landscape and provided tools to ensure a thriving multiracial, inclusive democracy. And the Court has to take those Amendments at their word and in the spirit in which they were ratified.

This interview has been edited for length and clarity.

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