The Supreme Court has gone rogue.
Yet again, the court’s conservative justices flexed their power to impose a hard-right agenda on the country and on California.
Start with its decision Friday that says a for-profit business has a constitutional right to ignore a Colorado anti-discrimination law and discriminate against gays and lesbians. (In the interest of disclosure, I was one of the authors of the American Civil Liberties Union’s brief supporting Colorado, but I write here as a private citizen).
For the first time in its history, and in defiance of decades of case law, the Supreme Court read into the Constitution a right to refuse service to a protected group.
California, like more than 20 other states, has a law similar to Colorado’s. And many cities in California — including San Francisco — have additional anti-discrimination laws of this variety. The court’s decision undermines vigorous enforcement of these laws. Thanks to the Supreme Court, LGBTQ Californians no longer have the certainty of equal access to the full services of businesses open to the public. Businesses in this progressive state can turn them away and post signs on their windows proclaiming, “We do not serve gay people.”
The court’s decision sends an unmistakable message that gays and lesbians are undeserving of equal citizenship.
Service denials sting, but the stigmatic and dignitary harms to LGBTQ people of having the Constitution weaponized against them can be equally painful and pernicious. And while the court declared gay and lesbians to be second-class citizens on Friday, its legal logic destabilizes civil rights protections for other marginalized groups, including racial minorities.
The previous day, the Supreme Court’s conservatives torched a half-century of precedent to ban race-conscious admissions programs in higher education. Its decision all but guarantees private universities like Stanford will have fewer Black and Latino students and more white ones in coming years.
As the president of the University of California and the chancellors of its campuses explained in an amicus brief to the Supreme Court, California’s 1996 ban on affirmative action in public education caused a precipitous drop in the number of students from underrepresented groups across the system’s 10 campuses. And race-neutral alternatives to affirmative action haven’t made up the difference, especially at its most selective campuses.
The University of California brief noted that “despite its extensive efforts, UC struggles to enroll a student body that is sufficiently racially diverse to attain the educational benefits of diversity” without affirmative action.
The court also took aim at the pillars of the post-New Deal welfare state by infusing new energy into the “major questions doctrine.” The Republican-appointed justices made up this inchoate rule — which has no basis in the Constitution’s text or the court’s case law — to give themselves a roving veto of policies they don’t like.
This year, conservative justices used their unholy creation to strike down President Biden’s student loan cancellation program. With a stroke of a pen, six Republican-appointed justices saddled more than 40 million people with $430 billion in debt. Among them are over 3.5 million Californians.
The Supreme Court also gutted the Clean Water Act this term. Overturning a decision from the federal appellate court that covers California, the high court dismantled key parts of this 50-year-old statute, opening millions of acres of America’s wetlands to pollution. The decision could very well accelerate the degradation of wetlands in California, 90% of which have already been lost. While California has robust state law protections for wetlands — most notably the Porter-Cologne Water Quality Control Act — our state depends on the cooperative management of shared water resources to preserve our water ecosystems. Pollution outside of California flows into our state.
Amid this succession of reactionary rulings, the Supreme Court declined to embrace some of the most off-the-wall ideas of the legal right. It rejected sweeping legal theories that would have radically remade how federal elections are conducted and how the internet operates as well as efforts to eviscerate important federal laws protecting voting rights and the rights of Native Americans. And it upheld California’s Proposition 12, which requires farmers to provide certain animals with a minimum level of space in confinement.
These are small consolations. The court deserves no gold stars for sparing democracy, the internet and longstanding laws from complete obliteration.
Praising the court for not plunging off every possible cliff would fall for what philosophers call the “fallacy of relative privation,” a logical error where one downplays destructive actions because an even worse action could have been taken. After this term — and last year’s, in which the court eliminated the constitutional right to abortion, expanded gun rights and unveiled its “major questions” hogwash — we’re already deep in the abyss.
This abyss is grim.
The Supreme Court is creating a California where businesses can deny service to gay people and steal from their low-wage workers; where colleges must ignore the poisonous racism embedded in American life; where polluted wetlands abut abortion clinics swamped with women fleeing red states; where children get shot in school because judges value their lives less than a fanatical reading of the Second Amendment; where exploited Central Valley farm workers are blocked from joining the unions that make their jobs less brutal.
When will we say enough is enough?
Duncan Hosie, a Bay Area native, is an appellate lawyer, writer and legal scholar who studies constitutional interpretation. Twitter: @duncanhosie
