As SCOTUS wrapped in leadup to its annual summer recess, three controversial rulings, all with a 6-3 vote, created quite the stir: Biden v. Nebraska, Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, and 303 Creative LLC v. Elenis.
So what sort of impact will these rulings have on society? In this episode, host Craig Williams is joined by guest Professor Steven D. Schwinn from the University of Illinois Chicago School of Law, as they spotlight the recent SCOTUS rulings regarding loan relief, affirmative action, & the website designer/first amendment ruling. Craig and Steve discuss SCOTUS, these rulings, and long-term impact of these decisions.
Special thanks to our
Steven D. Schwinn: The logic of the ruling seems to suggest that she would be protected. So this is a ruling that could have sweeping impacts, probably far beyond what many have expected, maybe, even what the court expected.
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J. Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I’m Craig Williams coming to you from Southern California. I have two books out titled ‘How to Get Sued’ and ‘The Sled’.
Well as SCOTUS wrapped up in lead up to its annual summer recess, it issued three controversial rulings all with a 6-3 vote and created quite a stir.
First SCOTUS ruled in Biden v. Nebraska, that the Biden Administration is not allowed to forgive federal student loans based upon the HERO statute, ruling that the Federal Government overreached with its Student Loan Forgiveness Program.
Second in Students for Fair Admissions v. President & Fellows of Harvard College, SCOTUS rejected affirmative action in University admissions ruling that race conscious decisions are unconstitutional.
If you’re thinking about this one, take a moment and revisit last year’s episode with the Dean of Admissions from Harvard and the Dean of Admissions from Yale in our series of Life of a Lawyer.
Well third, one of the Supreme Court decisions that came out today are in this last term was the and 303 Creative v. Elenis. SCOTUS ruled with a Colorado-based Christian website designer Lorie Smith who declared that the First Amendment entitles her to refuse same-sex wedding work.
So what sort of impact will these rulings have on society? Today on Lawyer 2 Lawyer, we will spotlight the recent SCOTUS rulings regarding loan relief, affirmative action and the website designer First Amendment ruling. We will discuss SCOTUS and long-term impact of these decisions.
And to help us better understand this issue, we are joined today by Professor Steven D. Schwinn from the University of Illinois Chicago School of Law. Steve is a frequent commenter on issues related to constitutional law and human rights. He is co-founder and co-editor of the Constitutional Law Prof Blog and an occasional contributor to other blogs and publications. Professor Schwinn is the Editor of the American Constitution Society Supreme Court Review, an annual publication reviewing cases and issues at the Supreme Court. He regularly writes for the ABA Preview of the United States Supreme Court Cases.
Welcome to the show, Steve.
Steven D. Schwinn: Thanks so much for having me, Craig. Well Steve, I see that you practice full time in the Office of the General Counsel at the Peace Corps. Give us a little bit about your background and how you became interested in Constitutional Law and SCOTUS.
Steven D. Schwinn: Yeah Craig, so I did start my a career in the General Counsel’s Office at Peace Corps in Washington and moved slowly into teaching and found that I just had a love for Constitutional Law. Moved in the direction of Constitutional Law, Comparative Constitutional Law and human rights, and that’s basically what I do today.
J. Craig Williams: Well today we’re going to be talking about some significant Constitutional Law cases that have come out of the Supreme Court in this last term. Let’s start with a one on loan relief, which is in sharp focus because as we record this podcast, president Biden has just forgiven some billions of dollars of student loans again.
Steven D. Schwinn: Indeed, yeah, this is a fast-moving story. After the case came down the Biden Administration said that they would look to different authority to effectively the same result that they were seeking to affect in the Loan Forgiveness Program in round one that the Supreme Court struck. And so now we’re seeing the Biden Administration take different kinds of action to look for other available ways to grant loan forgiveness.
J. Craig Williams: Let’s talk a little bit about what came out of this opinion, what is this business about major questions?
Steven D. Schwinn: So Craig this is a doctrine that the Supreme Court has kind of some would say invented others would say sort of evolved and came to a head last summer when the Supreme Court ruled on a Clean Air Act case, West Virginia v. EPA, and what the court said basically is that if Congress is going to delegate authority to an administrative agency over a significant political or economic question that Congress has to do so with clarity and specificity.
And what that means is that Congress can’t delegate to, for example, the Environmental Protection Agency general authority to, you know for example, make the air clean. It’s got to delegate with more particular authority than that if the EPA is going to use that authority to implement rules and regulations that amount to a significant or political economic issue.
In this case, the Biden case, the student loan case, what happened is the Biden Administration relied on authority in what’s called the HEROES Act. Now, the HEROES Act is an act that Congress passed in the wake of 9/11 that gives certain emergency authority to the President and the administration to take certain actions in response to an emergency or national disaster or something like 9/11.
One of the authorities in the HEROES Act was for the President to waive or modify and here I’m using the language of the Act waive or modify student loans, federal student loans if there’s a kind of emergency or natural disaster.
The Trump Administration and the Biden Administration had both used to this authority to grant temporary relief for federal student loan borrowers because of COVID. The Biden Administration went one step further and granted categorical forgiveness up to $10,000 for certain borrowers and $20,000 for other borrowers under this authority to waive or modify federal student loans under the HEROES Act.
Now the argument against that was that this violates the Majors Questions Doctrine that waive or modify is not specific authority for the Biden Administration to take this kind of aggressive action that has a significant political or economic impact and basically the Supreme Court accepted that argument and struck the Biden Administration’s attempt to grant this kind of forgiveness.
J. Craig Williams: Well where do we find major questions in the Constitution?
Steven D. Schwinn: That’s a really good question, I’ve been searching up and down for it since the Supreme Court has started to talk about it. It’s actually not in the Constitution. What the Supreme Court has said is that this is a function of our Separation of Powers System. The idea here is that Congress is the institution, among the three branches of government Congress is the one that makes law.
The Executive Branch implements law or executes law. If the administrative agencies, part of the Executive Branch, if they start wielding too much authority that has too much political or economic significance, then they are effectively making law in violation of the separation of powers. And what I mean by that is that the administrative agency is effectively doing Congress’s job for it by making law. It’s kind of a weird way to think about separation of powers, because what really the idea here is that the Court through the Major Questions Doctrine is protecting Congress’s prerogative to make the law, but Congress did make the law, it just granted the administrative agencies a lot of authority to take major action in disaster situation.
And so, in my view, the Major Questions Doctrine is not only impossible to find in the text of the Constitution, but very, very hard to find even in its structure, but that’s where the court is, and that’s what the Court ruled in the case.
J. Craig Williams: As the court justified attention that Congress’s power has with the aspect of the Constitution that dictates that the branches are co-equal, why can’t the Executive Branch wield the same level of power that Congress is wielding, as it seems like the Supreme Court’s willing to do it?
Steven D. Schwinn: What, yeah that’s a really good point Craig, I’ve been thinking a lot about this since the decision came down. One of the funny things about our Separation of Powers is that the Supreme Court gets to make rules on the Separation of Powers and decide cases on the Separation of Powers, but when it does so it seems almost intentionally unconscious of the fact that it is part of our separation of powers.
And so some argue that by inventing this Major Questions Doctrine and applying it to a case like the student loan case or environmental cases last term and this term, that what the court really is doing is taking that power for itself, and that, that itself is a violation of the separation of powers, because between the three branches, if any branch shouldn’t be in the business of making law, it’s the Judiciary, and yet that’s what the Major Questions Doctrine allows the courts to do.
J. Craig Williams: Can Congress fix that?
Steven D. Schwinn: Congress could in theory fix it. What Congress could do is legislate with more specificity in areas where there are significant political or economic impacts. The problem with that is that as a practical matter Congress isn’t going to be able to get the votes together to do that, and moreover, Congress doesn’t really have the institutional expertise to do that.
If you think about something like, well, you can think about the Student Loan Program, right? When Congress enacted the HEROES Act, it had no idea that we’d be facing a pandemic that might justify student loan relief and that’s by design. So what Congress did in the HEROES Act was to delegate very broad authority for the administration to act in areas of natural disasters or national emergencies, not really knowing what those emergencies might be in the future.
We can’t expect Congress to legislate with specificity every time we have a National Emergency. In the environmental context, we can’t expect Congress to legislate every time with the kind of specificity that the Environmental Protection Agency regulates in areas of clean air or clean water. Congress just doesn’t have the institutional expertise to do that and it’s a very slow-moving branch. It’s just not institutionally well-suited to do that.
J. Craig Williams: And that’s why have agencies, right?
Steven D. Schwinn: Well in my view, that’s exactly why we have agencies, that’s right. But agencies more and more these days Craig are coming under fire as themselves a violation of the separation of powers, and we’re seeing that manifest in doctrines like the Major Questions Doctrine, but other challenges to administrative agencies’ authorities as well.
J. Craig Williams: You know we have to take a look back at history and we’ve seen pre FDR Republicans and now Republicans kind of acting in the same I’m way in the sense of trying to dismantle government. Is this process going to really dismantle the government?
Steven D. Schwinn: I’m not sure that it will ultimately dismantle the government, but I think it will require us fundamentally to rethink administrative agencies’ place in our Separation of Powers System. We are seeing these attacks on administrative agencies in a number of different ways. The Major Questions Doctrine is one way.
There are other attacks on the authority of the President, for example, to appoint certain officials to agencies in certain ways pursuant to statute under the President’s appointment power and removal power, and we’re seeing attacks on administrative agencies’ power to interpret the law and interpret their own regulations. And between those different kind of attacks on the administrative state, that this court seems perfectly willing to accept. I do think that in coming years, in decades, we’re going to see a sharp curtailment on administrative agencies’ authorities.
J. Craig Williams: Unless we see some significant changes in the voting.
Steven D. Schwinn: Well, I think that’s true. It’s a good point, but I got to tell you, you know, we had a window here where Democrats who tend to favor agency power in today’s politics, the Democrats had had power in both the House and Senate and the White House and they were either unable or unwilling to roll back some of these moves to curtail agencies’ powers.
And so I’m not tremendously hopeful. I think the Supreme Court these days has a lot of power over administrative agencies.
J. Craig Williams: All right Steve, we’re going to take a quick break to hear a word from our sponsors, we will be right back.
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J. Craig Williams: And welcome back to Lawyer 2 Lawyer. I’m joined by Professor Steven Schwinn from the University of Illinois Chicago School of Law. We’ve been discussing one of the cases in the last Supreme Court term, but Steve, let’s turn to the affirmative action ruling with Harvard, seems like there’s some more dismantling going on?
Steven D. Schwinn: There is, yeah, yes, I think that’s exactly right. The Affirmative Action decision struck the affirmative action programs, the race-based affirmative action programs at Harvard and University of North Carolina under Title VI of the Civil Rights Act and the Equal Protection Clause respectively.
What the courts here doing Craig is moving toward a kind of colorblind Constitution. What it’s saying is that the Equal Protection Clause and in turn Title VI of the Civil Rights Act require the government to be colorblind in the way that it behaves, and that’s going to mean a lot of different things in a lot of different areas, but one thing that it means for race-based affirmative action is that the government can’t use race as a factor in admissions to increase the ideological diversity of the student body on campus, or at least its power to do so is going to be severely restricted in the future.
J. Craig Williams: How is that going to spill over into businesses? I mean we’ll get to the d 303 Creative case in a second, but how is this affirmative ruling going to spill over?
Steven D. Schwinn: It could, in my view it could spill over in two ways. I think the more likely spillover or the maybe the more immediate spillover is kind of an indirect spillover. What I mean by that is we’ve seen with schools in states that have prohibited race-based affirmative action. We’ve seen the racial minority population drop precipitously. What that means then is that fewer and fewer college graduates from those states are going to be students of color and that’s going to spill over into the workforce. We will see fewer and fewer people of color getting hired for jobs that require college educations, and I suspect that, that sort of indirect way of affecting the market, and the workforce, we will see in coming years and decades.
The other way that it could affect is a more direct way and that is the Court’s ruling on Title VI and the Equal Protection Clause demanding a kind of colorblind constitution and a color blind approach to Title VI in the Civil Rights Act could have some spill over to other civil rights laws where the Supreme Court has been — how to describe this, a little more accommodating of the government using race for example, to remedy its own prior discrimination in hiring or contracting.
And I suspect that this decision is going to be a kind of step in the direction of a colorblind constitution in those other areas as well.
J. Craig Williams: Is the Equal Protection Clause that we’re talking about here limited to race, or does it extend into other categories like wealth?
Steven D. Schwinn: Yeah, well here’s the funny thing, it just talks about equal protection. Now it was enacted in the wake of the Civil War. It’s one of the Reconstruction amendments and so that everybody understands that its principal purpose was to eradicate slavery and the badges and incidents of slavery and to eradicate what we had called The Black Codes, which were system of state laws that kept freed black people in a system of de facto slavery.
But the Supreme Court has interpreted the Equal Protection Clause to provide protection, for example, to women and prohibits sex-based discrimination and by its plain terms, it expands to equal protection to treat everybody the same.
In the race area, we went through a period in our history where the court seemed to acknowledge that the way to address race-based problems in society, like systemic racism for example, is for the government to use race-based means which kind of makes sense, right. If you want to overcome a system of racism, doing it through race kind of makes sense and the court seemed to sanction that for a good period of our history.
But more recently in the last decade or two, the Supreme Court has been moving toward this colorblind view of the Constitution that says government can’t use race for any purpose. The government has to treat everybody the same irrespective of race, and if that leads to racially disparate outcomes in for example, higher education or government hiring or government contracting, well, those are problems that the court says that Equal Protection Clause is not designed to address, that, that what the Equal Protection Clause does is to provide a kind of colorblind or race neutral approach to race-based problems.
Chief Justice Roberts summarized this approach in a case called Parents Involved. This was dealing with school desegregation many years ago. When he wrote the way to stop discrimination by race is to stop discriminating by race.
And what he meant by that is that if we can simply stop using race in government decision-making, that racism will go away. A hotly controversial claim, but that’s the direction that the court is moving.
J. Craig Williams: And what’s their thought process behind that? I mean is that something that really is going to work and has the Affirmative Action System that we’ve been using so far in education worked to the benefit of balancing things.
Steven D. Schwinn: I will address the latter question first. In terms of affirmative action, race-based affirmative action programs do seem to increase racial diversity on campus and allow people of color to attend college in numbers that they might not otherwise get to attend if there were no race-based affirmative action.
And I say that based on the experiences of these states that have prohibited race-based affirmative action where we really have seen a sharp decline in racial minority enrollment in the colleges and universities, and I expect that we’ll see that Nationwide in the wake of this ruling.
Now whether that’s the most effective way to achieve the government’s objective, well, you know, I can’t really say, there may be better ways for the government to address systemic or institutionalized racism, and to allow opportunities for racial minorities in society than a particular race-based affirmative action program, but the idea of using race to address a systemic racial problem strikes me as quite sensible and indeed there’s good historical evidence and Justice Jackson talks a lot about this in her dissent in the case. Good historical evidence that that’s exactly what the framers of the Fourteenth Amendment were trying to do, empower the government to use race to address a racial problem.
J. Craig Williams: All right, we’ll see, it’s time for another quick break to hear a word from our sponsors, we will be right back.
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J. Craig Williams: And welcome back to Lawyer 2 Lawyer, I’m back with Steven Schwinn, professor at the University of Illinois Chicago School of Law. We’ve been talking about the Harvard decision recently out of the Supreme Court. Steve, what’s going to happen, are we going to see another Allan Bakke style case out of this or is any lawsuit based on race to get into school just no longer is dead at the door.
Steven D. Schwinn: It’s a great question and it’s a little uncertain at this point. If we game this out, I think what’s probably going to happen after this decision, is that schools will look to other ways to increase racial diversity on campus, so programs to increase outreach for example, scholarship programs, and the like, and using other admission criteria that they see as a proxy for racial minorities. And so here we might be looking at geography for example. In a city where I live, like Chicago, ZIP codes are really good proxy for race for example, socioeconomic status, overcoming hardships in the past and things like that that aren’t on their face race-based, but nevertheless good proxies for race in our society.
And I suspect it when states start doing that in an effort to retain the racial diversity that they’ve achieved under race-based affirmative action, I do expect that we probably will see another round of lawsuits challenging those efforts as attempts to increase racial diversity but do it in a race-neutral way.
Now what the Supreme Court will say about those things is anybody’s guess at this point, although you know, my own money is on the court looking very, very carefully at programs like that and really trying to assess whether States and schools are using a kind of racial motivation or racial intent, even if they’re not saying so and then striking those programs.
I guess what I’m saying here is I’m not holding out a lot of hope for the Supreme Court upholding State attempts and private schools attempts to achieve racial diversity and other ways.
J. Craig Williams: Right. Well, now it’s time to switch the topics and kind of transition from equal protection into the First Amendment and maybe even talk about the interplay of the two of those with the 303 Creative case.
Steven D. Schwinn: Indeed. This was a striking case. This involved a website designer who wanted to move into the business of designing websites for weddings. And she wanted to do this in a way that would serve opposite-sex couples, but not serve same-sex couples and other couples that she said violates her religious beliefs.
Now, when I describe it that way, it sounds like the case is about religion, but it turns out it’s not about religion, it was just about free speech. The claim that she made was that the Colorado Anti-Discrimination Law that prohibits discrimination by sexual orientation effectively compelled her to create websites for same sex couples. And again, she had an objection to that based on her religion.
And she said that by creating these websites that’s a form of speech, it has a communicative value, it’s an expressive activity, and it’s unique to her and that by forcing her to create websites for same sex couples the government is effectively forcing her to speak against her beliefs, and that that violates the First Amendment Free Speech Clause, and the Supreme Court agreed.
The Supreme Court said, for these activities that have a kind of expressive value, even if somebody is in the marketplace conducting a business and even if they are otherwise subject to a state’s Anti-Discrimination Laws, the government can’t compel them to speak in violation of their beliefs.
Now I said that this sound like a religion case but it’s not. This is one of the big questions that comes out of the case is we just don’t know how far it will extend. So for example, if the same website designer had an objection to creating wedding websites for couples of different races based on a belief that people of difference races shouldn’t get married, is she protected? Well, the logic of the ruling seems to suggest that she would be protected.
So this is the ruling that could have sweeping impacts probably far beyond what many have expected, maybe even what the court expected.
J. Craig Williams: Aren’t there some pretty bizarre examples that are out there. I mean if you are a member of the Church of the Flying Spaghetti Monster, can you decide that you don’t want to serve Christians?
Steven D. Schwinn: That’s exactly right. And we are seeing this come up now in, as we can imagine there would a spade of lawsuits after 303 Creative came down, and so we’re seeing for example, a hairstylist from Michigan saying that she doesn’t want to serve gays and lesbians because she has a religious objection to them and that her hairstyling is an expressive activity. We’re seeing a claim from a clerk in the Texas Court saying that she doesn’t want to issue marriage licenses to same sex couples because issuing a marriage license is an expressive activity and those licenses —
J. Craig Williams: And we already gone through that one?
Steven D. Schwinn: Well it sure seems like, right. I mean we actually came pretty close in a case a couple of terms ago, the Masterpiece Cakeshop case, which then lead to the clerk and Obergefell of course, leading to a clerk who is saying they had a religion objection to this. But the claim that coming out of 303 is a little bit different, this is a free speech claim not a religion claim, and what the claimants are saying that they are engaged in some kind of expressive activity that’s protected by the Free Speech Clause, and again, that’s how the court ruled and that doesn’t seem to be restricted to or cabined to religious objections only. It seems to apply to any objection that a person might have.
J. Craig Williams: Well Steve, it looks like we just about reached the end of our program today, so I would like to take this opportunity to let you share your final thoughts and provide your contact information so our listeners can reach out to you if they have some questions?
Steven D. Schwinn: Sure, you bet Craig. Thank you. So in terms of final thoughts, we saw a term where we had a number of cases that went heavily conservative, we talked about those.
We saw some other cases this term that did not go as conservative as many expected. My takeaway from the term is that this is a Supreme Court despite the fact that some of its cases didn’t go as conservative as many expected, this is a Supreme Court that is leaning heavily conservative, and is not shying away from taking on very big, hotly contested questions overturning longstanding doctrine and longstanding understandings of our constitution and our society. This court is not hesitating one bit in doing that. It’s using the 6-3 majority to move decidedly in a conservative direction. Some people will praise that, some people will lament it, but I think that the trend here is irrefutable.
For listeners who wanted to contact me, I would love to hear from you. You can get me at [email protected].
J. Craig Williams: Well Steve, this have been wrapped up. Thanks very much for being on our show, it’s been a pleasure.
Steven D. Schwinn: Thanks a ton, Craig. It’s been a lot of fun, thank you.
J. Craig Williams: Well, here are a few of my thoughts about today’s topic. You will use notice that I used the question dismantle the government in several instances, and that’s essentially large part of what’s going in here. Rights that were granted in the 60s under the Civil Rights Movement are slowly being eroded away and unless (00:31:36) step up and elect from administration and Congress people that are going to change this heading, we can expect as Professor Schwinn noted for this to last long, long time and for it to get much worse than it is now.
Well, that’s it for today’s rant on this topic. Let me know what you think. If you like what you’ve heard on the podcast today, please rate us on Apple podcast, or your favorite podcasting app. You can also visit us at legaltalknetwork.com or you can sign up for our newsletter.
I’m Craig Williams, thanks for listening. Please join us next time for another great legal topic. Remember, when you want legal, think Lawyer 2 Lawyer.
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