Jennifer Braceras of Independent Women’s Law Center joins High Noon podcast to discuss the blockbuster Supreme Court term and how the headlines are getting a lot of the cases wrong. Inez and Jennifer talk through the legal and political issues involved in the court striking down racial preferences in admissions, upholding freedom of speech for small businesses, and enforcing separation of powers in Biden’s student loan forgiveness program. They close by confronting multiple attacks on the legitimacy of the court from the Left, now that conservatives hold a majority, from court packing to fake “corruption” narratives.
TRANSCRIPT
Inez Stepman:
Welcome to High Noon, where we talk about controversial subjects with interesting people. Before we started, I want to give an apology. The show has been a bit uneven of late in terms of release dates. This particular episode’s going to be released a little bit late, because of the 4th of July holiday, but we are getting back on track. I swear to you, there will be episodes every week on Wednesday going forward. That being said, I’m super excited to be here today with my colleague Jennifer Braceras.
Jennifer runs IW’s Legal Shop, the Independent Women’s Law Center, where she’s done all kinds of great work. She has a huge legal background in employment law and discrimination, which may become super relevant as we start peeling back some of the sort of not Civil Rights Act language itself, but some of those constructs around at some point. But we are here actually to do a SCOTUS rundown for you. We’re going to talk to Jennifer about some of the biggest cases that came out of the Supreme Court term and about the Supreme Court more generally, legitimacy of the judicial branch and some of these other important topics. Much of our politics is now decided in the court. With all of that, welcome Jennifer to High Noon.
Jennifer Braceras:
Hey Inez, thanks for having me.
Inez Stepman:
Let’s kick it off with the case about student loan forgiveness. We have the Biden administration granting a debt jubilee, the oldest trick in the demagogue’s book, general debt jubilee, right? But his administration grants this unilaterally, without getting Congress involved, without actually going through the procedure to actually forgive this debt, even though it’s coming out of the treasury. What were the legal issues in this case? Because this case isn’t really about student loan forgiveness, it’s about the separation of powers and then also the language of an emergency statute. Could you give us kind of a layout of this? What were the actual issues in this case?
Jennifer Braceras:
Yeah, I mean, I think on the merits, I don’t think anybody ever really thought that the Biden administration was going to win this case. But what the left hoped was that it would be dismissed on standing grounds, that the court would hold that the people who brought the cases weren’t the proper parties and didn’t properly bring the case before the court. There were actually two cases. One was brought by private individuals, and the other was brought by the state of Missouri. In the first case brought by the private individuals, the court did say that they did not have standing to bring the case.
The second case brought by the state of Missouri, there was a lot of back and forth and oral argument about whether this sort of independent government organization called Mohela, Mohala, I’m not sure how you pronounce it, the Missouri Higher Education Loan Authority could, whether the state of Missouri could sue on behalf of this independent government agency. The court ruled that it could. Once it ruled that, the merits of the case were fairly straightforward, that was the much more complex legal issue. The merits of the case were basically not, the way the newspapers have played this is, “Should something be done about student loan debt and is it a good thing for the president to erase student loan debt or not?”
We can have those discussions, but that’s not really what the case was about. The question before the court was who has the authority to cancel student loan debt? Is it the Secretary of Education? No, the court said, “It is not the Secretary of Education who has that authority. Congress is the only body that has that authority.” As you said, this was not really a case about student loans, but a case about the separation of powers and about government power generally, who holds it in what situations? In this case, the administration claimed the authority to cancel student loan debt under an act called the Heroes Act, which had been passed to allow the waiver or modification of debt for people.
Basically, those who went off to war after 9/11. It had nothing to do with the current economic situation. It had nothing to do with COVID. In fact, not only President Biden, but Speaker Pelosi and others had long acknowledged that the Heroes Act wasn’t applicable to this situation. But nevertheless, Biden decided, and his Secretary of Education decided that they were going to do this anyway by administrative fiat and then just justify it after the fact, claim it was legal to do under the Heroes Act, which the court said, “Not so fast. It’s not.”
Inez Stepman:
Yeah, this does seem to me to seem a bit of a case that shows the limitations of what can be done in the courtroom, because of course, the Biden administration got everything they wanted out of student loan forgiveness. They got a boost in young voters going to the polls, and then by the time this was overturned by the court, those votes hadn’t been taken back. Actually, I strongly suspect, We’re going to see the resumption of student loan payments allegedly in a couple of weeks, or a couple of months rather.
But I strongly suspect, and we can come back a couple of months and see if I’m right, I think the Biden administration will advance a different legal rationale, equally strained and tenuous, but hope that basically that rationale will carry them through the election, after which they either can blame the payment resumption on those evil Republicans, or alternatively, they’ll be the last election that Biden has to stand for. He won’t be as worried about ticking off his younger base. They got everything politically that they needed out of this.
Jennifer Braceras:
Yeah. No, they absolutely did. The media is complicit in this, whether it’s because they are lazy and don’t actually read the opinions, or because they don’t understand the opinions that they do read, or because they’re just complicit in wanting to play this a certain way, maybe all three. That can be debated. But all of the headlines say things like, “Court rolls back student loan forgiveness, and the court is preventing the Biden administration from doing this great thing for young people who have student loan debt.” Really, that’s not what it’s about at all.
It’s very similar to the case last term that you and I, Inez, have talked about before, the West Virginia versus the EPA case, which was a case that had to do with environmental regulations. There, the court very clearly said, “The EPA cannot make legislation. They can enforce the legislation that passed by Congress, but they can’t use it to go above and beyond what Congress has said.” That same principle was at play here. It doesn’t matter what law you want to apply it to, the court is setting very clear boundaries and policing our constitution. That’s a good thing. That’s what the court is supposed to do. The court is supposed to keep each of the three branches of government in their lane, and that is what it did here.
Inez Stepman:
Yeah. Actually, I want to ask, do you think the court is moving towards, I mean we have, in this case the separation of powers. We have the, what is it the, I’m going to totally butcher the term of art here, but the basically large questions doctrine, right? What’s-
Jennifer Braceras:
Major questions.
Inez Stepman:
Yeah, sorry, major questions doctrine. We have generally seemed moving towards skepticism or narrowing of Chevron deference to agencies. All of these things, for my non-legal listeners, are about what powers agencies have, either vis-a-vis Congress or these are executive agencies, either executive agencies vis-a-vis Congress or via the courts themselves. What’s the role of judicial review when an agency puts out a regulation or a guidance letter or something of that sort? Do you think the court is moving towards a definable, holistic sort of vision of what their role is in policing these boundaries in sort of a world where we very clearly have administrative state that operates not just as a fourth branch of government, but as the government most of the time.
Jennifer Braceras:
I mean, yes, but I think to put it that way suggests that the court is adopting this theory out of thin air, which of course, it is not doing. Right? This is how our constitution was written. Most people, to the extent they know anything about our constitution, non-lawyers mostly just know about the Bill of Rights. They’re not intimately familiar with the original document, which basically just set up our government and explained what powers the federal government has vis-a-vis the states and what power the three branches of government have vis-a-vis each other. In the modern era, basically since the New Deal, the court has not been enforcing those boundaries as clearly as it should be.
Now, I think that the court is starting to right the ship. This isn’t something that they’re pulling out of thin air. Some people say, “Oh, the major questions doctrine, that’s just made up law.” Well, it’s not really, it’s a very simple notion that any major issue that one would expect Congress to weigh in on, that has a major political or economic impact on the country, is something that these agencies can’t just decide for people. They’re not elected, these bureaucrats. If Congress has legislated, for example, on the Clean Air Act or on student loans and other cases, these agencies can’t just say, “Well, Congress passed a law about this topic, therefore we can do whatever we want on this topic.”
No, no. That’s not how it works. It’s something that liberals and conservatives alike should be concerned about, because you can switch, take out the Clean Air Act, take out the Heroes Act, plug in some other statute, and plug in a conservative department of education. There are big government conservatives who would gladly use the powers of the administrative state to enact policy that liberals wouldn’t want them to be able to do. They should have to go through Congress as well. What’s good for the goose is good for the gander. These are procedural rulings. They’re not liberal rulings. They’re not conservative rulings. They protect everybody.
Inez Stepman:
Yeah, I mean, I agree sort of in abstract, but in practice, I mean, that’s not how, not about the rulings, but about whether the administrative state sort of swings for the goose and the gander. We know that it doesn’t. We know that the-
Jennifer Braceras:
Overall-
Inez Stepman:
… people who staff it are overwhelmingly of a particular political perspective. I would call that perspective sort of center neoliberalism.
Jennifer Braceras:
Yeah.
Inez Stepman:
I suspect it wouldn’t be-
Jennifer Braceras:
Look, I mean think you and I both know that George W. Bush, for example, whom I’m a big fan of, but not in this respect, he wanted to use the Department of Education to enact policy in conservative ways, but in ways that small C conservatives, who really believe in small government and enforcing our structural constitution, weren’t too happy about. It does happen on both sides. I’m just simply cautioning liberals who read the paper and think, “Oh my God, the sky is falling. The court just ruled that the Department of Education can’t do this thing,” should actually take a step back and ask themselves someday if Donald Trump is president again or somebody else is president whom they don’t like, would we want them to be able to use the power of the administrative state in this way? If they understand it that way, then maybe they won’t be so hysterical about it.
Inez Stepman:
I think that’s definitely not going to happen in terms that would require the type of thinking that is, I think, derided on the left today as enshrining the notions of 200 white dead slave owners.
Jennifer Braceras:
You know what? That may be true in terms of people who are committed leftists, but frankly, most people, I think of my nieces and nephews who are in their early 30s and have student loan debt, and they’re not particularly political people. They read the headlines and at first they’re angry and then somebody explains it to them and they go, “Oh, okay. Yeah, court’s not that radical. This makes sense, right? 8th Grade Civics, I get it now.” I sort of feel like it’s our job to remind the great mass of normal, apolitical people who are just going about their day. It’s our job, as people in the media and lawyers and spokespeople, to remind people what the court is doing and to explain to them that it’s not the way it’s being portrayed in the media.
Inez Stepman:
We’ll move on, because I just think we’re so far beyond that. But this is just a discussion for another day, because I wanted to ask you about the next, I think the biggest case in terms of politics involved here, which is the affirmative action case involving Harvard and UNC. First, they were two separate cases and they were the same case, and they were separate again, because Justice Jackson would have to recuse herself. She was on the admissions board or something like that. But after all of this is said and done, we have a ruling on the constitutionality of affirmative action. What does the ruling actually say?
Jennifer Braceras:
Again, I want to emphasize that the media has been completely duplicitous on this, because the ruling here is not a reversal of precedent. It is completely consistent with everything the court has said about race since Brown versus Board of Education, which is that you cannot classify people on the basis of race. In the series of affirmative action cases leading up to this one, the court basically said the same thing. I mean, in the 1970s in the Bakke case, which some people may be familiar with, the court struck down a program of racial quotas. It was very clear that this sort of racial bean counting was offensive to our colorblind constitution.
It did leave a loophole in that it said, “Look, you can’t have a quota system like you have here in this particular case. But schools that are doing a holistic analysis of individuals can look for diversity in their student body,” meaning diversity in the true sense, right? Ideological diversity, geographic diversity, different backgrounds, someone from the Middle East, someone from Ireland, someone from here or there. That’s true diversity. That diversity, the court said, all other things being equal between applicants is something that it’s okay for a school to consider as one factor among many. Well, the left took that loophole in Bakke and rammed a truck through it for the next couple of decades.
That’s really where you get… The term diversity was not a common phrase in our lexicon, until the left latched on to this loophole in Bakke and grabbed on to diversity as a justification for what previously was only referred to as affirmative action or racial preferences. All of a sudden, we’re talking about diversity, because the schools think, “Well, the court said we can do diversity, so we’re going to call it diversity.” There were several other cases leading up to the current two cases, the Harvard case and the UNC cases, where again, the court reiterated, “Look, you can’t add points to somebody’s application just because they’re Black or Latino or a woman. You can’t just add points because of that. Again, it has to be a holistic enterprise.”
Once again, the schools just found ways around it, which is exactly what’s going to happen here. In these particular cases, the Harvard case in particular, the facts were incredibly bad for Harvard. The facts of this case showed that what the university was doing is giving each applicant a rating in different categories, including academic and otherwise. But one of their categories was a personality rating. Repeatedly, time and time again, Asians got these terrible personality ratings that when you looked at the discovery material, the emails and the evidence before the court, they were all based in racial stereotypes. This person’s too boring. They play the violin and they’re really good at math.
Like this is just a stereotypical hard-working Asian, we don’t want this person. I mean, it was really kind of awful stuff. The facts were not good for Harvard, it was clear that the personality category was a pretext for discrimination against Asians. I’m shocked that Harvard won in the district court to begin with, because the facts were so bad for them. Overall, conservatives are cheering this decision, and it is a victory, a legal victory for our colorblind constitution. But the reality is it’s not going to stop elite schools from trying to socially engineer the right racial mix of students. They’re going to find other ways to do it. I have four kids who I’ve just all gotten through the college admissions process, and I’m pretty sure I know some of the ways they’re going to do it.
My son, for example, he just applied, he’s going to college in the fall. He applied to 17 schools, and I can tell you that at least five of those schools asked for diversity statements and asked for photographs. There’s a reason they were asking for photographs, because they want to assess the pigmentation of people’s skin. Now, it was optional, sending in a photograph, and the diversity statements, you just find something to write about either how oppressed you’ve been or how you care about diversity, whether it’s intellectual diversity or whatever. But they’re asking for these statements, so they’re going to find a way around it. It’ll have a bigger impact on schools like UNC and other state schools where it’s really impossible with the number of applicants to do an individualized holistic examination of each person who applies, because there’s just too many.
Whereas before, things like standardized test scores and grades served as cutoffs, so that schools with huge numbers of applicants, they could winnow out the clearly unqualified and then only look at a few, they’re not going to be able to do that anymore, because they’re not going to be using those metrics. It’ll be interesting to see what those schools do. My suspicion is that many of them will adopt 10% plans, like they have in Florida and other schools where they just take the top 10% of students from every public high school in the state. There are lots of things they can do. That will have a positive impact on geographic diversity within the states, socioeconomic diversity, and probably by default, racial and ethnic diversity. But the bottom line is schools are going to, all schools, particularly the elite schools, are going to find a way to do this.
Inez Stepman:
Yeah. There’s that loophole you can already see in the case where the opinion says, “Well, of course, you can take into account overcoming adversity if somebody writes about it in their essay.” That’s exactly what you’re referring to. I think even back when I was applying, I think that there was a diversity prompt, and I think I wrote about intellectual diversity. I’m sure that’s received well by various admissions committees.
Jennifer Braceras:
But in some places that will be received well, in other places it won’t. I think the problem is what they’re really doing is asking every student who applies to be a victim and to explain to them how they’ve been a victim in their life. It doesn’t necessarily have to be racial, but victimhood is the coin of the realm, and they’ve made it coin of the realm. That has problems that permeate society for the next couple of generations, as you know, but I think it’s very unfortunate. Then what you see at the same time of these schools are going to be remaining test optional, putting less emphasis on grades.
Maybe they’ll still look at grades, but they won’t look at weighted averages, like whether you take honors classes and stuff like that. They’ll do all sorts of things to get rid of indices of merit. Then, they’ll be asking you for your victim statement. But then on top of it, a lot of them, like Amherst College last year, got rid of legacy admissions, because they decided that that had a negative impact on minorities. Well, actually, I think it’s kind of ironic that these schools are getting rid of legacy admissions now in the first generation where minorities have an opportunity to take advantage of them.
Now, you have a whole cohort of black and Hispanic and Asian people who went to Harvard and Yale and Princeton and their kids are applying. There’s an opportunity for their kids to get a boost without considering race, which is the only factor that’s illegal to consider. They’re saying, “Okay, well, we’re not going to do legacy admissions anymore.” So now, we’re not going to get the black and Hispanic kids whose parents were well-educated at Ivy League schools and who themselves are probably well-educated and prepared to do the work at these schools. No, we’re going to get the ones who are first generation low-income, and that’s fine if they have indices of merit on test scores and grades, but we’re not looking at that anymore. We’re going to be basically bringing up people who are the biggest victims and the most unprepared to do the work.
Inez Stepman:
Yeah, that’s pretty dark. I’ve wondered if actually, so the example of California, for example. California banned racial preferences in admissions in this public universities well over a decade ago, couple decades ago at this point through Prop 209, which was recently reaffirmed by another referendum, even in deep blue California.
Jennifer Braceras:
Right.
Inez Stepman:
There was a crazy imbalance between the amount of money the two sides spent. Of course, every major paper in the state endorsed this proposition to basically repeal Prop 209 and reintroduce racial preferences, the legality of racial preferences in the state. It failed. Even Californians, I mean, this is a very politically unpopular position of taking into account race, because most people understand that when you say that racial preferences are bad, it’s all racial preferences regardless of whose ox is getting gored. But I mean, that being said, the UC system has aggressively practiced racial preferences for the last two decades through “holistic review process.” I mean, yes, it’s a little difficult for a big school, I take your point, if you’re getting 30,000, 50,000 applicants. But yeah, I honestly don’t even know if-
Jennifer Braceras:
You’re getting more than that. You’re getting 35,000 at 40,000 applicants at Harvard and Yale. You’re getting-
Inez Stepman:
Well, per school.
Jennifer Braceras:
And at big state schools.
Inez Stepman:
Well, per school, I guess I have no idea actually. But yes, they used to do it back in the day, because I used to work in this test process, test prep and admissions process. Back in the day, yes, they would use your SAT score as a cutoff. They would just winnow the pool way, way down based on a cutoff. Then within the people who made the cutoff, they would take into account other things up to and including your essay, no interview process. Even in that process, there was enormous room for preferences. You could see it because you could see as each school in the UC system adopted holistic review, Berkeley and UCLA went first, and then at that time, UC San Diego, where I went for undergrad, was number three.
They started to shoot up in the rankings because they just started admitting all the Asians that were getting bounced from UCLA. But eventually, they fell too. They fell to the holistic review process and to worries about, they particularly were worried about actually not reflecting, not having enough Hispanics at the school because it’s San Diego, so that the diversity makeup of the school was radically different than the other schools in the area, because they were essentially admitting all of the rejected Asian students from UCLA and Berkeley who were qualified to go to UCLA and Berkeley. I mean, a lot of this was, until now, to some extent, speculation. But now we have these numbers, these very bad actual facts that you referred to in the Harvard case where you can look at the behind the scene’s data, what your chances of admission are for any given sort of metrics, right? SAT and GPA, what the average across different racial groups has been.
It’s very clear what is going on in the facts of the case. To look at this for the upside for a moment. Yes, if we assume that it’ll be the start of a long battle trying to get university admissions to disregard racial preferences. What, in this case, if anything, is applicable beyond the university context, both in and out of the courtroom. Because it seems to me that something that we all kind of know and refuse to say out loud is that there are racial preferences in almost every aspect of American life. In fact, you might even call it systemic racism, but they run the other way. That every major American corporation is desperate to hire and promote underrepresented minorities to the extent of probably putting their thumb on the scale when it comes to promotions and so forth. We certainly have blatantly racist-
Jennifer Braceras:
Again. Thumb on the scale has never been the problem because the reality is what they’re doing is much, much more than a thumb on the scale. Harvard was not looking at a black applicant and an Asian applicant and saying, “Well, you know what? They’re equally qualified, but this black applicant might have suffered discrimination in a way that this other applicant didn’t, so we’re going to put the thumb on the scale.” That is not what was happening. The data made that clear. The reason we know that is because the percentage of minorities at Harvard remained essentially the same every year.
If you were really doing a holistic, a review of individuals, that number would fluctuate. Maybe one year you’d have 15%, one year you’d have seven, one year you’d have 20, because it would depend on the individuals and you wouldn’t be bean counting. But what the data showed is that whatever admissions decisions were happening, they were, in the final analysis, making everything even, so that they didn’t have fewer than the year before. That’s a quota. That is not a thumb on the scale, that is a quota.
Inez Stepman:
That’s happening in the university context. I would still, and maybe people can write it and say that it’s gone way beyond that, even in the private context. I think because at the end of the day, a lot of private companies have a bottom line to maintain, until… Let me revise that. There are fields, and Elon made that very clear at Twitter by firing 70% of the staff, that there’s an enormous number of people who don’t actually contribute to the bottom line in a lot of companies and nevertheless are making very nice salaries, many of them connected to this sort of diversity industry. But let’s be optimistic and call it the thumb on the scale, but even so, this is happening in private American companies as well. It’s not just happening in the university context.
Jennifer Braceras:
Right. To answer your question about the impact of this case for other sectors of society, I would say it’s both very great and very small. It’s very great in the legal sense, because the principles that were applied in these cases apply of course to government contracting.
Inez Stepman:
That was my next question.
Jennifer Braceras:
Right. To government contracting, to employers covered by Title VII, all of this stuff, the principles are the same. In fact, for a long time, the left has argued that education was special. Education was different than government contracting, different than regular employment, because the role of the university is to create a class that will learn from each other. You’re creating a student body, and that’s, they even said that they have a First Amendment to kind of constitute themselves how they see fit. If Harvard wants to say, “We are only going to take kids from the inner city whose parents worked in a factory,” they can say that, if they want to. They have a right to say that, because they’re creating who they are.
They have long argued that because of this special role of creating a class, that they’re different from a government contract, which should just be done based on bids. So that even if the equal protection clause forbids racial preferences in government contracting, “Oh, that doesn’t apply to us. We’re special, we’re education.” In fact, it does apply to them. If applies to them, it certainly applies to the other industries which nobody’s ever claimed that they have this special right to do this. I guess you could say in some industries, in government contracting, there’s the argument that there was specific discrimination against blacks or some other group and that the preferences are being used to remedy specific discrimination.
But the court has never said ever that we can use racial preferences to remedy societal discrimination. They’ve never said that these other industries have a right just to rely on diversity for its own sake. Legally, I think the case has some very important implications for other sectors, but the reality is our legal system is just the parties that come before the court. The ruling technically doesn’t apply to say government contracting or diversity initiatives at a company, and the left is going to resist change with every fiber of its being. Just as it took decades to enforce Brown versus Board of Education, it’s going to take decades of lawsuits in these other sectors to apply this ruling and to enforce this ruling.
Inez Stepman:
I guess the hopeful point there would be just that even though they’ve sort of gone very far culturally left in recent years, I think some of the last couple of months especially have shown that they are afraid of sort of a backlash in the other direction. Indeed, with the changes to the Civil Rights Act in the 1990s, they reacted in a very CYA, as better than anyone having done this employment, large corporations reacted in a very CYA sort of way. That’s where a lot of this kind of clamping down on the office environment. Nobody say anything remotely offensive. We have to bend over backwards for everybody’s sort of sensitivities came from, because it suddenly became much easier to get a large award suing on the basis of employment discrimination. I am hopeful that maybe we can realign some of those incentives. In other words, we can use that CYA impulse to our own ends. It may get a result before, yeah.
Jennifer Braceras:
It’s an army of conservative litigators, like Ed Blum, who’s the brains behind the Students for Fair Admissions case. It’s going to take an army of lawyers to be vigilant and to enforce this, because like I said, it is entrenched, it is systemic, and they will fight. One of the first things that happened in the aftermath of the case is all of these schools and companies and institutions immediately put out statements saying, “Of course, we’ll comply with the decision, but this doesn’t change our core values, and we’re still going to be doing everything we can to support diversity, equity, and inclusion.” Read, “We’re going to drive a hole through the loophole.” They have no intention of complying. They never did. It’s up to us in the conservative movement to enforce the law.
Inez Stepman:
Let’s talk about-
Jennifer Braceras:
Sorry to be so negative about it, but-
Inez Stepman:
No, no, it’s very much the experience of California, that it’s been impossible to enforce. Admissions is such, especially in smaller schools, is so much of a sort of delicate process. But as you say, I mean, I think actually just getting the numbers out there, I’m wondering how you could get the numbers out there for a place like Google, for example. It’s a little harder, because there’s no GPA and SAT, but what if we get to a discovery level with some lawsuit with Google, and we find out that on the basis of performance reviews, for example, black employees are way more likely to be promoted on the same performance reviews than white male straight employees or something like that.
Jennifer Braceras:
Well, I always said this Harvard case was always about the discovery material. It wasn’t really about what happened in the district court, and it was about getting to the Supreme Court, but to some extent it was about transparency and exposing what these people are really doing. It’s worth it to bring cases sometimes just to find out what’s happening behind the curtain. The ironic thing though, about what you’re saying, about getting the numbers, is that this case will now make it harder to prove discrimination in the future. Because like I said, the scores are going to continue to be test optional.
They’re going to continue to reduce indices of merit. When you don’t have that information, you’re not going to be able to run the statistical analysis to say, like if every decision is completely holistic and subjective, “Well, we interviewed candidate A and we interviewed candidate B and we just liked candidate B better.” You can’t prove if it’s a subjective thing, oh, they had a better personality. It’s going to be very hard to prove that it was racism, especially all of these schools have learned a lesson from Harvard and that is to put nothing in writing.
You’ll be able to prove it if their numbers consistently show the same exact proportion of minorities, the same racial balance year after year after year, that will show that they’re probably using a quota system. But it will be harder to show racial animus, which they were able to show in this case towards Asians, because they were able to prove that some of these Asian applicants were so incredibly well-qualified and they documented their negative racial comments about them. That’s not going to happen anymore, so it’s going to be tough.
Inez Stepman:
All right. Well, let’s move to another case that conservatives are claiming victory over. That’s the 303 case, which is also coming out of Colorado, once again, or is it…
Jennifer Braceras:
Yeah, Colorado.
Inez Stepman:
Yeah. Colorado is doing a lot of the worst discrimination against, well, initially against religious people, but now, there’s basically a First Amendment case, another part of the First Amendment case, a free speech case coming out of Colorado. We have a wedding website designer who says that she wants to design websites. She’s happy to design all kinds of websites for all kinds of customers, including for gay customers, but doesn’t want to design a wedding website for her gay customers. One, what are the holdings in this case? Then two, how does this differ from Masterpiece CakeShop? Because for a lot of people it seemed like a rerun, but you explained to me well off-air that it actually isn’t.
Jennifer Braceras:
Yeah. First of all, again, the headlines about this case say things like, “Supreme Court says website designers can discriminate against gay people, or website designers don’t have to serve gay people.” That is not true. That is not what the court said. What the court said, and you alluded to this in your introduction, is that the state cannot force people to speak, to create a message through their art or through their craft that they disagree with. This woman will, if a gay couple wants her to design a website for their flower shop or whatever, she’s happy to do that. But what she doesn’t want to do is create websites for gay weddings, because she doesn’t approve of gay weddings.
One thing that the way the court described this in its opinion, I thought was really important, they basically said, “Look, take the gay part out of it. Okay, let’s say you had a Muslim website designer and a Jewish person came to them and said, ‘We would like you to design a Zionist website, a pro-Israel website for us.” The Muslim person didn’t want to do that because they don’t agree with that person. The Muslim person would not have to create that website.” Okay? This isn’t just about gay or straight, this isn’t just about religion, this is about anything. The court also, they gave another example.
They said, “Let’s flip this around. Let’s say the website designer was gay and was a man married to another man. Let’s say somebody came to that gay web designer and said, ‘I’d like you to make a website that says, any man who marries another man is going to burn in hell, or I support prop whatever to get rid of gay marriage.’ Would the gay website designer have to put that out there? Absolutely not.” Absolutely not. This was a case that was about free speech, and your right and my right and everybody else’s right, not to be compelled to say things that the state wants them to say that they don’t agree with.
The Masterpiece CakeShop case was a little different. It was a baker who didn’t want to bake the gay wedding cake. It sort of started off as a similar type of case, but when it got to the Supreme Court, the posture was such that the court said, the Baker had gone through the state administrative process with his claim, and the administrators who were reviewing his case said things that were very discriminatory towards religious people. The baker was religious. He didn’t want to bake the gay wedding cake for religious reasons.
I think the same type of thing. He’d be happy to bake a cake for a gay family, but he just didn’t want to put the two grooms on the top. But in the course of hearing that, there was so much discriminatory language used about religious folks that the court said, “No, no, no, the Colorado agency have discriminated against the baker.” It actually turned into a religious liberty, a religious discrimination case. Justice Thomas did write in his concurring opinion that he viewed this as not so much as a religious liberty issue, but as a freedom of expression issue. That rationale was what sort of carried the day here in the website case.
Inez Stepman:
Yeah. I think that is important, not only because there are two different streams of sort of legal precedent, but also, I think the mentality, though I would call it the RFRA mentality on the right sometimes, is to build a little island around religious liberty. The reality is, of course, that a lot of these dictates from the left, they of course conflict with Christianity or Judaism or Islam, but they also conflict with secular principles of long held beliefs, or sometimes they conflict with reality that anyone can see, like in the case of the trans issue. I think it’s probably a mistake to only consider it religious liberty –
Jennifer Braceras:
Right. It’s not just that religious people don’t have to create these messages. Nobody has to create a message with which they disagree. If someone comes in and wants a cake that says, “Donald Trump for president,” and the baker is a raging Democrat and hates Donald Trump, the Baker doesn’t have to bake that cake. They can bake them a cake and say, “Here, you put the frosting on yourself.” They don’t have to create that message if it’s offensive to them. It really has very little to do with religious liberty. It has very little to do with gay rights. It has nothing to do with gay marriage in reality. It has to do with our right as citizens, not to be forced to speak things that we don’t agree with. That’s something everybody should agree with, once again. But the way the media spins it, “Court rules against gay rights,” well, that’s not actually what it is.
Inez Stepman:
I have two boundaries questions for you. In one direction, there’s a boundary here between messages and speech and accommodation. There’s a boundary between the speech and then the action of transacting with a customer based on some characteristic. This is distinguished. That’s why in both of these cases, the plaintiffs are very, anyway, the people who are being sued here for discrimination, they are really clear. They’re like, “Oh, I serve all customers. I don’t want to do this particular expression.” They’re distinguishing those two things.
What is the boundary in terms of between the freedom of speech here and against being compelled to say something with what you don’t agree and being compelled to associate as a matter of a customer transaction with let’s say, people with whom you disagree. Let’s say that the guy in your example wants to exclude everyone who voted for Donald Trump as a customer. Well, that would be on one basis, but of course we do have a public accommodations law that says he can’t do that about your people on the basis of race, for example.
Jennifer Braceras:
Right. So that would be the distinction, right? What’s interesting about this case is that that question was not even before the court. The parties stipulated in the first instance, they stipulated, “This is speech, this isn’t conduct, this is pure expression of a creator, an artist designing a website.” Both sides agreed to that. What they were asking the court was to determine, assuming for the sake of argument that this is speech, does the right to free expression trump public accommodation laws that prohibit discrimination on the basis of race, sex, sexual orientation, whatever. It’s actually a pretty simple case, and frankly, I think it should have been nine-nothing, for that reason.
But the dissent somehow went off on this whole tangent about how this isn’t speech, this is conduct, this is discriminatory conduct. The majority opinion rightly called out the descent and said, “You are writing an opinion for a case that wasn’t before us. That wasn’t a question. The question wasn’t whether this constitutes speech. The question was whether assuming it’s speech, what right prevails, the constitutional right to free expression or the statutory public accommodations law?” It should have been an easy case. The harder case, as you suggest, will be the case where the line isn’t so clear, and they’re not saying, “We’ll serve everyone.”
They’re saying, “You know what? I don’t want to serve anybody who comes into my store with a Black Lives Matter shirt, but it just so happens that the only people who come into the store with those T-shirts are black people.” So they’re only serving white customers. They’re in reality not serving any black customers, because every single black customer that walks in there happens to have on a BLM t-shirt if they’re black. Let’s just say. That’s not going to happen. But that case would be a hard case. It would be a more difficult case to determine whether it’s discriminatory conduct or whether it’s just based on, they don’t want that message in their store. But again, that case wasn’t before the court.
Inez Stepman:
Yeah. I have another sort of hypothetical extension or question of boundaries here. The other question here to me is at what point is expression or speech coming from a person or attenuated by the corporate form? Here, there’s no problem, and in fact, one of the most ridiculous aspects of this case was that the lower courts, one of the basis for their decision, was that this woman was a monopoly of one, because only she designed these particular wedding websites. There’s an aesthetic, she has an aesthetic monopoly on her product, basically, which may be true, but is not at all the definition of monopoly. But I could imagine a situation in which you have very, very large companies, they say, let’s use a real one.
They say, “We don’t want to serve customers who support the Second Amendment.” There’s a de-banking problem with Second Amendment groups where they’re having difficulty finding any bank of national size to hold their accounts, because all of those large banks are saying, “No, we don’t want to associate with this kind of customer.” Then in between we have the closely held corporations like Hobby Lobby, which was also a matter of, even though that was about religious liberty to some degree, it’s like at what point are these rights attached to people? I guess I’m asking the Mitt Romney question, the, are corporations people too? Does a corporation have a right to free expression?
A very, very large publicly traded corporation where you don’t actually have any individual who’s creating this expression, right? Let’s say it was a mass conglomerate that created wedding websites, and they have thousands of people on staff creating all these websites. Any given one of them doesn’t have to do the gay wedding announcement, but someone in the corporation will. But the corporation says as a whole, “We, as a corporation, with thousands and thousands of people, publicly traded corporations, we don’t want to create invites for gay weddings,” or something like that. Where’s the difference between the corporations and the people here?
Jennifer Braceras:
Well, I mean, this opens up a whole other line of legal cases, but corporations do have First Amendment rights. They don’t necessarily have to serve people with certain viewpoints or put out messages with certain viewpoints. Now they have to serve all races and ethnicities, because these public accommodations laws, they have to do with race, with blacks and Latinos and gay people being able to shop and use the facilities and public accommodations. That is protected. Your opinion on gun rights is protected. You have a right to express your opinion on gun rights, but that doesn’t mean that a private corporation has to choose to do business with you.
Now, if it’s a monopoly, I mean, if we were getting into some of the tech platforms, I mean, that’s a whole nother discussion. But if it’s a local bank or a private baker and they don’t want to serve somebody who’s pro Second Amendment and talks about it publicly, I guess they don’t really have to. But yeah, I think it’s complicated. This particular case was not complicated, and that’s why the left, I think, is so hysterical about something that’s so actually quite simple. When you go down these other avenues, that opens up a whole other line of, you go down the whole path of is this a common carrier? Is this actually a public accommodation? Those are all factual questions that depend on the specific facts of the case.
Inez Stepman:
Yeah. Look, from the 30,000 level foot level here, and these are all restrictions on freedom of association to some degree or another when we’re talking about buying and selling. Then there’s the additional element of if you’re buying or selling something that has an expressive message, then you start to get into freedom of speech as well.
Jennifer Braceras:
I just want to be clear about something, because you asked before about the line between speech and conduct. Let’s just say that the gay couple ordered a cake for a birthday, like a regular cake, and the baker decided that they wanted to put a hostile anti-gay message on the cake, and they just wrote Happy Birthday, you whatever, and use some pejorative slur. That speech would not necessarily be protected, because that is conduct. That’s bullying and that’s harassment. If every time a person went into Starbucks and ordered a latte, their cup came back with a expressive comment, that was actually a racial slur, that would be conduct.
Speech can cross the line into discriminatory conduct when it’s harassing. Again, not the case here. The court is not saying that these proprietors have the right to engage in racially hostile, discriminatory harassing speech, and the court thinks that’s okay, that’s their first Amendment rights. The court did not hold that. But if you’re reading the coverage of it, one might think that they thought all speech was okay.
Inez Stepman:
Yeah. Obviously, I’m asking these hypothetical questions, because especially the one about what level these protections kick in between the individual and a publicly traded multinational potentially corporation. I’m starting to rethink some of the protections. Look, it was central, or not central, but it was an element of the Hobby Lobby holding, the form of the corporation being basically still controlled by one family became relevant. Exactly. Because it was like, well, at what point do these corporations become entities with certain special favors granted by the corporate form?
Corporations can do certain things that individuals can’t, like it allows individuals in the corporate form to protect their personal assets, for example, from the losses of the corporation. Well, if there are certain benefits granted, then maybe there are certain things required of the corporate forum. Maybe one of those things we want to require going forward of these very large corporations is explicitly to sort of borrow them from considering politics, because otherwise we do seem to be going into a sort of privately held social credit system. I mean, I’m just opening some of these questions.
Jennifer Braceras:
That’s a whole other Black Mirror episode to explore.
Inez Stepman:
Right. No, but I think these questions, they’re going to wind up in front of the court sooner rather than later. This question of the line between what’s public accommodation and what is expression. The like between, is it individual or a large corporation? I think these things are going to become important going forward, because it’s a divisions that we have in this –
Jennifer Braceras:
That’s why it’s important to establish the principle with the simple case, right? Because hard cases make bad laws. Unless you have the foundation law built upon itself, it was important that they took this case to establish the foundational principle. Again, that’s one of the reasons I’m so disappointed it wasn’t nine-zero, because I really felt that this case could have been.
Inez Stepman:
Let’s turn to the court in general before we close here, because obviously the left has not taken any of these rulings well. This might be the understatement. There was already lots of chatter about packing the court on the left beforehand. There’s also what I would call a prong of the same thing, these “devastating reports” from ProPublica or whatever, that two Supreme Court justices caught a fish with the same rich guy, and this is apparently corruption. It’s obvious that there’s now an attempt basically… Oh, a third thing I noticed was there was a law professor in the pages of the New York Times who basically argued that basically that the other branches should start ignoring Supreme Court decisions that they should just refuse to enforce, because the Supreme Court is illegitimate.
Obviously, these arguments are sort of bubbling up from at least three different fonts. The packing, the ignore these decisions going forward, have the other branches ignore the court, and then the, oh, this institution is corrupt, right? Because I mean, that was an extremely thin story. It was basically like some Supreme Court justice has a rich friend, and we’re going to put in a bunch of adjectives in between to make it seem like that’s something shady that’s affecting the court.
Jennifer Braceras:
You know what, judges are allowed to have rich friends just like anybody else. I mean, sorry. They’re also allowed to have poor friends. They can be friends with whomever. They can go to their homes for dinner, they can get in their cars to go places, they can get on their planes to go places. It’s such a non-story. Justice Alito’s response in the Wall Street Journal was terrific. I’m glad that he did that publicly, because so much of what judges do is behind closed doors and they’re not really able to defend themselves. By just answering the questions that were asked of him, but making those answers available to the public, I thought that was a very smart and important way to address the critique.
Inez Stepman:
Well, you’re anticipating, I guess, what my question was going to be, which is how does the court and/or folks in the center and on the right who want to defend the legitimacy of the judicial branch at this point, how do we go about doing that? Because it seems really clear to me that this is just the beginning of the drum beat, which will become the standard right on the left. It’ll become a question the next time the Democratic Party has a primary, right?
It’ll become a question for the candidates. What are you going to do about the Supreme Court? Right? That’s not going to stop. It’s going to keep ramping up every time this particular set of justices makes an originalist ruling that the left doesn’t like, it’s going to restart sort of a fresh round of this de-legitimization campaign. What can be done about it? I guess Alito speaking out is a start, but where do you think this whole situation is going to go?
Jennifer Braceras:
Well, I think we all need to speak out about it, and we need to respond loudly and clearly every time they make these ridiculous allegations about the court. The problem is that people on the left, lawyers and non-lawyers alike, it’s very easy to criticize. They like to criticize the court. It’s an easy throwaway line. “This isn’t a normal court, blah, blah, blah. They’re taking away our rights.” The truth is that most people in the center-right don’t care that much about the courts. Just constitutionally, conservatives, they’re concerned with the getting up every day going to work, raising their families, paying the bills, and they’re not thinking about the court’s day in and day out.
Those of us who, again, work in media and politics, we need to make people understand why the courts matter and why the left is completely unhinged about the courts and why it’s important to have a small C conservative court, meaning a court that’s not activist, a court that’s not trying to impose its will on the people. A court that is doing its best to police the boundaries of our constitution and to put Congress or the executive branch back in its place when they overstep. That, in and of itself is not activism. Activism is the opposite. You’re not a judicial activist just because you strike down a law.
If the law is an unconstitutional law, it should be struck down. A judicial activist is someone who actively decides cases based on his or her political worldview, okay? That’s what a judicial activist is, and that is what is dangerous. That is what’s dangerous to all Americans. We want a court that regardless of who appoints the justices or what their personal political views might be, understands that they need to stay in their lane and that the other branches of government do too.
In that sense, that’s like, again, as we’ve said several times in this conversation, 8th Grade Civics, which isn’t being taught in our schools anymore, frankly. If it’s not being taught in our schools, we need to figure out a way to make sure our kids learn it and that we educate people through the media and all the ways that IWF tries to do, with its little videos and it’s talking points, and we need to get things out there so that average everyday people have the facts in their hands and can rebut this nonsense that somehow all of our rights come from these nine people in black robes. No, they don’t.
Inez Stepman:
Yeah. It’s a tough case in this case of rebuilding institutional trust, right? Because I think that institutional trust has been lost in virtually every institution. But now, conservatives, I think in this case have the difficult job of saying, “No, not this one.” Right?
Jennifer Braceras:
Right. The problem is, even in the heyday of judicial activism in the 70s, when conservatives had lost faith in the rulings of the court, and they were very upset about judicial activism, conservatives never turned on the institution. They never turned on the idea that the institution itself is legitimate. We might have thought it was a rogue court, but we didn’t think that the court, as created by our founders, was inherently undemocratic. Well, I mean, it is undemocratic, technically, but we never thought it was bad for America. This is so foundational, and it really goes back to Civics education and the need to promote it from the cradle to the grave.
Inez Stepman:
Yeah. Our first education expert, one might say, Noah Webster, famously said that the American education system should be such that the first word of a babe in the cradle should be Washington, meaning George Washington. That was his opinion on Civics education. But yeah, we see in the modern context how destabilizing it is to not have an independent judiciary that actually adheres to some constitutional boundaries.
I mean, in Israel, Poland, Hungary, we have these sorts of, it’s really made me appreciate these fights over what the role of the court is. It makes me appreciate actually how America does have the longest running constitutional regime. We are not the oldest country by a long shot, but we have the oldest continuous constitutional regime. A lot of these balance of power questions, what’s the role of the court? We kind of hashed out in the Marbury v Madison days, right?
Jennifer Braceras:
Yeah.
Inez Stepman:
We went through that kind of instability of, “Well, can the court put out rulings? Is the president obligated to obey them?” They see these younger, even though not younger countries, but younger regimes going through, Israel, founded in the late 1940s, Poland and Hungary being post-communist countries in terms of having a new regime after communism, they’re going through those growing pains. It makes me appreciate that America does have a long tradition. We have the relatively easier job, I think, now, of merely defending and continuing that tradition. Although that itself seems sometimes like a challenge that overmatches us.
Jennifer Braceras:
It is a challenge.
Inez Stepman:
On that note, thank you Jennifer Braceras, Independent Women’s Law Center. You can look up her work at the Independent Women’s Law Center. Thanks, Jennifer, for joining High Noon.
Jennifer Braceras:
Thanks for having me, Inez. Talk to you soon.
Inez Stepman:
Thank you to our listeners. High Noon with Inez Stepman is a production of the Independent Women’s Forum. As always, you can send comments and questions to [email protected]. Please help us out by hitting the subscribe button and leaving us a comment or review on Apple Podcast, Acast, Google Play, YouTube, or iwf.org. Be brave and we’ll see you next time on High Noon.
