Weighing in on recent U.S. Supreme Court cases

This interview originally aired on In the Moment on SDPB Radio.

David Wiltse, Ph.D., and Lisa Hager, Ph.D., are associate professors of political science at South Dakota State University. They dove into recent Supreme Court rulings in a conversation with In the Moment’s Lori Walsh.

First, they look at the 303 Creative LLC v. Elenis case. The Supreme Court said their ruling protected First Amendment freedoms by deciding a website designer couldn’t be forced by anti-discrimination laws to serve same-sex couples.

The case was based on a hypothetical.

Our Junkies next took a look at the cases that overturned affirmative action in college admissions while also still allowing redistricting to take race into account.
Lori Walsh:
You’re listening to In the Moment on South Dakota Public Broadcasting. I’m Lori Walsh.

Well, before the break, you heard a legal take on a recent US Supreme Court decision from my ongoing conversation with Professor Mike Thompson from the University of Sioux Falls. We’ll have more with him tomorrow, but now let’s get a political take on recent cases and their possible impacts during our Dakota Political Junkie segment.

David Wiltse and Lisa Hager are both associate professors of political science at South Dakota State University in Brookings. And they’re with me from SDPB’s Jeanine Basinger studio at SDSU.

Lori Walsh:
Do you want to start with a little bit more on this 303 Creative versus Elenis case? This is the web designer who does not want to have her right to free expression infringed by being forced by the state, according to her, to create content for a gay wedding.

Is that a good place to start, Lisa?

Lisa Hager:
Yeah, we can definitely start with that. I’m not sure I can top a Legally Blonde quote from the last segment, though. That is pretty good. But yeah, I don’t think I have anything that will top that, but we shall see. We’ll let the listeners decide.

Lori Walsh:
We’ll let the listeners decide.

Because I do feel like we need to dig into more about this case. And since we’re talking politics, it didn’t matter so much in the legal decision, but reporting revealed later on that the man’s phone number that was listed in the case was a man who’d been married to a woman, didn’t want anything to do with this case whatsoever, and yet his name is forever chiseled in stone for the US Supreme Court hearing.

What’s going on and how does that reveal doubts about legitimacy of the court when a case can somehow not really be from somebody who had an actual problem?

Lisa Hager:
So that’s one of the first things that came up when everyone started talking about this decision, which relates to this idea of standing to sue.

We require something bad essentially to have happened to somebody in order for them to bring their suit. And so we have to have these parties who are actually going against each other so there’s really some adverseness occurring.

Here, essentially what we have the website designer who just wants to post a notice on her website that would refer same-sex couples to other web designers because she doesn’t want to do a wedding website for a same-sex couple.

No same-sex couple approached her and actually asked her to design a website. So this is different than a case that was decided a few years ago relating to the same Colorado law Masterpiece Cakeshop.

We actually have a same-sex couple in that situation going into Masterpiece Cakeshop, asking for a wedding cake for their same-sex marriage ceremony. So there we actually have something happening. We have the bakery owner not wanting to actually produce that particular baked good.

Here, we don’t have a similar type of situation, but there are instances where we have the Supreme Court having somewhat lax standards in certain time periods relating to issues like standing.

For instance, it would be very difficult to ever hear a case regarding abortion from someone who was pregnant and was trying to challenge an abortion law because our justice system does take more than nine months, for instance, to process these kinds of cases.

Lori Walsh:
Sure. Dave, what do you want to add to that?

David Wiltse:
Well, what’s striking here is the court has often used standing as a way to kind of chicken out of a lot of decisions.

The one that comes to mind is the Michael Newdow case versus Elk Grove, where they avoided making a ruling on the constitutionality of the phrase ‘Under God’ in the Pledge of Allegiance. So they’ve used that as a nice way to weasel out of a decision they might think is unpopular, but here they go out of their way, ignore the whole standing thing ostensibly, just to enter into what is a real hot-button cultural issue that’s really beginning to define the lines between left and right.

So in a lot of ways, this just makes the court look a lot more political than they like, and they’re really, at least from my perspective, they’re really trying to, or they’re really avoiding some of the standard operating procedures that have always guided them just so they can enter into the political fray.

And in some ways just this seems like an old game of Calvin Ball, if you remember Calvin and Hobbs, where the rules just seem to change in any given circumstance in any given case. What it looks like is the court has their prior preference and then they reason backwards to in whatever way they can. With the legitimacy of the court really being called into question now, this is not a place where they need to be.

Lori Walsh:
Let’s dive further into that by holding up two cases that are interesting accordingly. And that’s the Harvard affirmative action race-based college admissions case versus this case that talks about redistricting and using race information to redistrict something because the court seems to be saying two separate things.

Are they saving two separate things? Are they not? Dave, help us understand what’s happening into these two cases and how they are in conversation with each other.

David Wiltse:
Well, I’ve never really thought of how they’re kind of interplaying with each other before. But I mean with this Harvard case, we’ve seen the court since the case stemming from UC Davis versus Bakke, or Bakke versus Davis.

The court has been gradually trimming back affirmative action since the 1970s. And affirmative action really began in earnest, late 60s, early 70s. This is just a continuation of this pattern.

In each of these cases, and they’ve popped up in several places over the past 30, 40 years where the court has been whittling down the amount that race can be used in these decisions. So in many respects, this is not a huge surprise when it comes to their eventual ruling on this.

The political payout for this is pretty patent, affirmative action has never been terribly popular in the country, particularly amongst white Americans. So the court really is on pretty safe political ground on this one.

Lori Walsh:
And Lisa, yet they say when it comes to redistricting, you can look at race-based remedies, but you can’t make it the predominant factor in drawing district lines.

Lisa Hager:
Right. So there’s always a bunch of cases relating to redistricting where you can’t just be drawing those district lines basically around neighborhoods that tend to be populated with certain races … what they often refer to as political apartheid, so to speak.

And so instead, you’re supposed to be using a variety of factors that would essentially still create a district that would produce a non-white member of Congress. That’s where we get that idea of majority / minority districts.

They have a majority of African-Americans or Hispanics or really whatever racial or ethnic group you’re paying attention to, but it’s not necessarily always going to produce that particular race or ethnicity in the member of Congress. It just increases the likelihood that it would be.

There are instances where you can do this, but the reason for it is so that you are not diluting their vote or spreading them out amongst different districts so that you could never actually see an African-American being elected to Congress in that area despite having a large population of African-Americans, or same thing with a Hispanic member of Congress.

So that’s what they’re doing here, which is allowed in terms of ensuring that we do not see discriminatory voting practices on the basis of race.

David Wiltse:
In the 1982 amendments to the ’65 Act. I mean, that really cleared the way for these majority / minority districts. It doesn’t go so far as to mandate their creation, but it does set up a set of rules in how we can go about trying to ensure good descriptive representation.

The kind of interesting fault line in this case is you have the Supreme Court on the one hand when it comes to individuals going into university or college or whatever institution we’re talking about with affirmative action saying it’s not constitutional to use race in these individual cases.

But we do have an interest in trying to have good descriptive representation in the larger institutions so that Congress or state legislatures look more like the constituents that they’re representing.

So in that regard, I’m not terribly surprised that the court continued to give their constitutional countenance to majority / minority districts. It can’t be the predominant factor in districting, but it certainly allowed under some fairly well-described circumstances.

Lori Walsh:
So going back to what we were saying about questions about the legitimacy of the court, and really, I mean, I’m thinking about how we report on the court as a political institution instead of as a legal institution, there’s differences in the choices that you would make in reporting, for example.

Do these two cases settle that down a bit because we’re watching them follow rules and precedent that we feel is established that makes sense to us?

Certainly, if they had flipped the decision on the Voting Rights Act, it would’ve been the top story for a long time. What do these cases do to that?

And then, do the justices think about that, or do they make these decisions outside of an awareness that they’re being watched because of recent ethics scandals and other decisions that the scrutiny is high?

Do they think about their own legitimacy,?

Lisa Hager:
Oh, yeah, definitely. So quite a bit of my research looks at this issue of institutional legitimacy and how the court perceives that and uses court curbing legislation as a way to gauge what their current institutional legitimacy is.

When they’re kind of seeing that there are these court curbing bills being introduced, and they’re coming especially from members of Congress who actually tend to agree with them most of the time, that’s really a clear signal that their institutional legitimacy is in decline.

Because we also know that members of Congress are not actually … well, at least previously. I think maybe some of them do actually want to pack the court and do some of these various changes to their composition and even their jurisdiction. But in general, they really don’t want to make those kinds of changes.

They really just want to try and get to the Supreme Court to come back in line with congressional preferences and essentially the preferences of their constituents that are going to be pleased with the fact that their member of Congress introduced a bill that would restrict the Supreme Court’s power in some particular way.

David Wiltse:
And I would just add that in this districting case, politics is not absent here, both parties are cross-pressured on this.

For Democrats, they’re cross-pressured by this fact that typically they’re much more receptive to these kinds of uses of race in whether it be affirmative action or kind of structuring districts in this fashion.

But it also means that they’re going to be packing Democrats into these districts. So it really is kind of a net political loss for Democrats.

Whereas Republicans, these kinds of districts are typically a net gain simply because they’re packing all those Democrats into these fewer districts, and that means Republican votes are amplified outside. So I wouldn’t say that the court is being all magnanimous here and being guided solely by principle. There are some real political factors here that they’re undoubtedly taking into account.

Lisa Hager:
Well, and from a legitimacy standpoint, they’ve been previously striking down provisions of the Voting Rights Act, and so by upholding this one, they can also regain some of their political capital from being criticized for striking down things like the pre-clearance requirement.

Lori Walsh:
Any final thoughts on some of these other decisions that are coming up from the courts that are still being analyzed on an ongoing basis? What stands out to you before we close for the day?

Lisa Hager:
I think one thing is that we’re seeing the court grapple with a lot of issues where there’s real no clear guidance in the Constitution that tells us what to do when there’s a discrimination issue going up against a First Amendment issue.

I think that’s something to keep in mind is that they’re trying to deal with this balancing, but then also that, yes, some may like these decisions, some may not like these decisions, but we just have to see how they actually play out.

We can’t just necessarily assume certain things will happen as a result of these particular decisions. There’s still ways to ensure diversity in universities in light of this decision. There are still ways to ensure that people are not discriminated against in public accommodations for their sexual orientation, gender identity, race, ethnicity, you name it.

David Wiltse:
I’m most concerned about how the court in the last few sessions really has been creating more and more ways for discrimination to take place of a protected class based on another constitutional right.

This is something that for a lot of folks who are concerned about civil rights and civil liberties, this is a warning sign.

And the court is getting more lenient when it comes to these sorts of exceptions to discrimination law.

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