John Popp: From The Heritage Foundation, this is Heritage Explains.
Mark Guiney: Welcome back to another episode of Heritage Explains. Yesterday was the 4th of July, the 247th anniversary of the founding of our nation. And in honor of that, we’re starting this episode off a little differently. In response to listener feedback, we are changing up our model here at Heritage Explains. We want to make sure that this podcast is giving you the brass tacks on the issues of the day that you’re looking for. And that means responding to not only the big overarching topics that define conservative thought, but also to what goes on in the news day to day. And so we are going to start adding back in some of the one-off episodes that our listeners have enjoyed so much.
We’ll still do series on topics that require more of a background, but we’re going to keep those a little shorter so that our episodes stay varied. Thanks to our listeners for all of their feedback. Let us know yours at [email protected]. But the question remains then, what are we talking about this week? Well, that’s an excellent question. If you were watching the news last week, you might have noticed that there was a lot said about the Supreme Court of the United States, and oh man, is there a lot to get into. I sat down with GianCarlo Canaparo, who is senior legal fellow in The Heritage Foundation’s. Edwin Meese III Center for Legal and Judicial Studies. Okay, GianCarlo Canaparo, this past week you were described by a major news outlet as a constitutional guru.
Canaparo: I guess so.
Guiney: How do you respond to that? Are you a constitutional guru?
Canaparo: No, that makes me very uncomfortable. I’m a big fan of the Constitution. I know one or two things about it, but I will not call myself a constitutional guru.
Guiney: So yesterday our nation turned 247 years old. And you, in addition to being a senior legal fellow here at The Heritage Foundation, you are also the host of one of our podcasts. Could you tell us about that?
Canaparo: That’s correct. It’s SCOTUS 101, and while the court’s in session we have an episode every week that unpacks everything that goes on at the court. We summarize the opinions, the oral arguments, any Supreme Court drama. We have guests from advocates, judges, and law professors, and we do Supreme Court trivia.
Guiney: It’s funny that you should mention the trivia. Because I knew you were coming on the podcast, so I just so happen to have a little piece to throw at you. And this is something I just learned, which I found very, very interesting, and we’ll see.
Guiney: So there is a gentleman, an American, he actually is a rather famous American for an odd reason. We’ll see if you can guess why he might be a famous American. It’s a gentleman named Mr. Button Gwinnett, is his name, Button Gwinnett.
Canaparo: Doesn’t ring a bell to me.
Guiney: But why he’s famous is because he is a member of an exclusive club of 56 who would be pertinent to yesterday’s celebration of the 247th birth of our nation. In fact, you could say he was around at that time. So do you have a guess as to maybe what club he belonged to of 56 men?
Canaparo: A club of 56 men who were around the time of the ... Was he one of the signers of the Declaration?
Guiney: He was one of the signers.
Guiney: And what’s interesting about Button Gwinnett is the story of his life. So he was a relatively young man, and he was a representative and early signer of the Declaration. But then what happened to him was, within a year he got in a fight with this other gentleman and the other gentleman called him a lying scoundrel. And as a result, the two of them entered into a duel. And in the duel, Button Gwinnett was killed. So he only lived for about a year, and he was a relatively young man, after the signing of the Declaration. So there are very, very few Button Gwinnett signatures out there. As a result, for collectors who want to collect all signatures of the signers, his is the hardest one to get.
Guiney: So there’s a lot of collectors out there with only 55 signatures because there’s only about 10 Button Gwinnett signatures that are in private hands.
Canaparo: Wow, the things people collect.
Guiney: So they’re very, very rare. And you know what also is rare, that we are fortunate enough to live in a nation where we believe so strongly in the rule of law. And this week has been a big week for the rule of law. And so we’ve brought you onto Heritage Explains to talk about four of the Supreme Court cases that have dropped this term, that dropped last week, Thursday and Friday, just to get the quick bird’s-eye view on what these are and what they potentially mean for us.
Guiney: So first and foremost, why are we having these Supreme Court decisions coming out now? Why is it all in a rush? Is the Supreme Court always Supreme Courting? Is there just a specific window within which they’re working? Why did this all play out in such a short amount of time?
Canaparo: Yeah. Well, typically the Supreme Court releases its biggest cases on the last day of the term, but usually it spreads out all the other ones pretty evenly over the course of the term. That didn’t happen this year. They held an enormous number of their cases to the last possible month. And nobody really knows why. I have a suspicion that it probably has something to do with the Dobbs leak from last year, and they have probably tightened down the way that they circulate opinions in house, which may have led to a slowdown of their process. It may also be that perhaps the newest Justice, Justice Ketanji Brown Jackson, she may be slow and is slowing down the process. That’s a possibility too. She was fairly slow as a lower court judge, but ultimately hard to say.
Guiney: So we’re going to talk today about four cases that have been much discussed just to give us the rundown of what happened with these and why they’re important. The first one had to do with a postal worker who was asked by the postal service to work on Sunday, and he found that objectionable. Can you talk about that case?
Canaparo: Yes. So this is Groff versus Dejoy. Mr. Groff is a Christian, and he had been working for the postal service for a long time and had never had to work on Sundays. And he obeys the Sabbath, so he doesn’t want to work on Sundays. When the postal service entered into an agreement with Amazon where it would start delivering Amazon’s packages on Sunday, it asked Mr. Groff to increase his work hours, required him to, and required him to work on Sundays. He didn’t want to, but what he did was he arranged with his coworkers that they would cover his Sunday shifts and he would cover shifts of theirs on another day. But the postal service was not happy about this and they punished him for it. Eventually he moves to another place in another postal office so that he can work not on Sundays, and still the postal service says, “No, you can’t do this.”
And under some old case law, the way it worked is an employer could deny you a religious accommodation like his request to trade Sunday schedules for other schedules as long as the cost imposed on the employer, the inconvenience on the employer, was de minimus, which is a Latin phrase meaning infinitesimally tiny. So in effect, the business didn’t have to give you a religious accommodation. Now, this sat really uncomfortably with other legal regimes. So you consider, for instance, if you’re disabled, your employer must give you an accommodation under the Americans with Disabilities Act unless it imposes an undue hardship on the employer.
So a huge disparity. If you’re disabled, the employer must make accommodations. If you’re religious, they don’t have to. Now, disability is not protected in the Constitution, but religion is. So you had a major problem here. So the Supreme Court said, “Yes, we agree that’s not the right way to interpret our old case law. Now we’re going to move to something like the undue burden standard for religion too.” Now, incidentally, after this decision there is still more protections for disability than for religion, but this is at least an improvement. And this was a unanimous decision, by the way. There were no dissents.
Guiney: The second case we want to talk about is a case that involved a lady named Lori Smith. And if you haven’t heard of Lori Smith, you can check out our documentary on her that we did in Colorado with the Daily Signal. We’ll link it in the show notes, but can you tell us, who is Lori Smith? And the name of her case is 303 Creative, which is an interesting name for a legal case.
Guiney: So can you tell us what’s going on with Lori?
Canaparo: Yeah. So Lori is a website designer and she has a business, 303 Creative. It’s really just her, and she makes custom websites for all sorts of things. And among other things, she’ll make custom websites for marriages. But Lori Smith is also a Christian and she will not create websites where she has to type messages or celebrate things that she doesn’t believe in. So she will not make a wedding website to celebrate a same-sex marriage, nor will she make a wedding website to celebrate a marriage that, for instance, began in adultery. She will, though, to be clear, serve LGBTQ clients and she does, but what she objects to is having to endorse a particular message. So although her objection stems from her religious beliefs, this is not actually a religious case. It’s a free speech case, particularly what’s called compelled speech.
So the government has a statute in place here that says nobody may refuse to serve LGBTQ people. And she says, “I’m not refusing to serve LGBTQ people. I’m refusing to be compelled to endorse a particular message.” The Supreme Court in this case said, “She’s right. She wins, because what’s at issue here is compelled speech.” Now, the dissents, the three liberal justices dissented and said, “No, what’s really at stake is discrimination.” But that’s not correct, because ultimately her product is not the sort of product you get at a supermarket. She doesn’t just produce cookie-cutter things for anybody. If she did, she would have to serve people and provide services for a same-sex wedding. For instance, if she made, let’s say plates, where she sold silverware or rented silverware and that kind of event catering process, she would have to rent catering to an LGBTQ wedding. But because what she creates is creative and expressive, she cannot be compelled to speak in a way which she disagrees with.
Imagine it this way. So a gay website designer is asked to make a website for, let’s say an organization that wants to advocate for traditional marriage and marriage only, and says, “Please make us a website that says, ‘Homosexual marriage is sinful.’“ He would have a right to say no. And the reason is because he’s being asked to speak a message that he doesn’t agree with. It’s not because he’s discriminating against Christians, because he would presumably serve Christians if they wanted a website to, I don’t know, celebrate a soccer team or something. But it’s the message that makes it a compelled speech issue and not a discrimination issue.
Guiney: Many people will have heard of the case of Jack Phillips, which is often brought up in relation to this case. Are they related?
Canaparo: They are similar. It was a similar type of claim. So he was a custom cake baker and said that his cakes are essentially works of art and they are expressive. His claim sounded actually in religious discrimination. He said, “I have a free exercise right not to make cakes to celebrate weddings that I disagree with.” It was not a free speech case. So ultimately the legal issue is different.
Guiney: So next up we have the student loan forgiveness case. Can you tell a little bit about what’s going on there?
Canaparo: Yes. So as you may recall, President Biden announced a plan where he would cancel up to $430 billion worth of federal student loans. And he said, “I have the power to do this because there is an emergency statute called the Heroes Act. And when there’s a national emergency like COVID-19, it gives me the power to waive and modify certain provisions of law related to federal student loans.” Now, the Heroes Act was enacted after 9/11, and it was intended to give temporary reprieve to soldiers deployed overseas after they had been, say, pulled out of reserves, for instance. But Biden said, “No, this can mean complete cancellation for all the student loans that I want.” So a number of people sued, several individual borrowers sued. They did not get loan forgiveness and they had a somewhat convoluted legal argument that said because Biden did this through the Heroes Act, which is unlawful, and didn’t do it through some other act which might be lawful, we should get to sue, because if the other act might be lawful, we might get a chance to sue.
The Supreme Court said, rightly in my opinion, that they don’t have standing to sue. The standing, by the way, is this requirement in the law that before you can sue, you have to have suffered an actual concrete harm from the particular person you’re suing that a court has the power to fix. So there were also, though, several states that sued. The strongest plaintiff in this case was Missouri, and Missouri operates a state agency called MOHELA that services student loans, all the back end paperwork regarding student loans, and the federal government pays it on a per loan basis. So when Biden cancels student loans, MOHELA suffers a huge financial hit. Because MOHELA is a state agency, all that money is the state’s money. And sure enough, the state uses that money to fund educational programs and things. So the Supreme Court said, “When Biden cancels student loans, this actually harms the state of Missouri through MOHELA. So Missouri has standing to sue.”
The question, though, is, so somebody can sue, is the program lawful? And this wasn’t a surprise. The Supreme Court said that Biden abused his emergency powers under the act, the Heroes Act, to do this. When the Heroes Act says waive and modify, what it means is temporary, minor tweaks, not wholesale wiping out of student loans on such a grand scale that it actually has a fiscal impact. These are the sorts of things that, Congress might have the power to give the President that sort of authority. But we can’t presume that that’s so. If Congress is going to give the executive that kind of earth-shattering power, it needs to do so very clearly, and you can’t find that clear authorization in this statute. So Biden can’t cancel $430 billion of student loans by fiat.
Guiney: And finally, we have the racial discrimination case, which had to do with admissions at major universities.
Canaparo: Yes, so there is a long history here. I’ll start 100 years ago. Universities started using race in the context of their admissions. And it started actually with Harvard. And Harvard would do certain things to its racial admissions process to keep Jews out. They thought, “We have too many Jews, we want less.” About 50 years ago universities were permitted by the Supreme Court to use race in certain contexts. The Supreme Court over a course of several decisions arrived at the rule that universities have an interest in fostering what one justice called genuine diversity on college campus. And genuine diversity meant diversity of thought and experience and ideology and background, epistemic philosophical diversity. But, he said, the court said, racial diversity is an important component of that. And so universities may consider race as part of their admissions process.
Well, that’s not exactly how it worked out. Race became a major component of the admissions process and the only sort of diversity that came to matter. Now, there have been several times where people have tried to get the court to back off of this rule, under the theory that everybody else in the country is forbidden from discriminating. You can’t discriminate in employment, you can’t discriminate in scholarships, you can’t discriminate in refusing to provide goods and services to people, but universities are allowed to discriminate. And so today the Supreme Court said, or rather last week the Supreme Court said, “Enough of that,” for a couple of reasons. Number one, it said, “When we said that universities can discriminate, we did not intend for this to be a negative. You could only do this in a positive way.” What the Supreme Court forgot or didn’t realize back then is that admissions are a zero sum game.
So any time that you give somebody a spot because of his race, you deny somebody else a spot because of theirs. And the Supreme Court said, “You can’t do that any more.” The Supreme Court also said that racial discrimination of this type must actually be really tailored to a particular and legitimate government end. And they didn’t say that diversity is no longer a legitimate end, but they did say that the way that universities use these very arbitrary categories of race is completely divorced from diversity. So consider, for instance, when colleges say Asians, that includes 60% of the world’s population, everyone from Pakistan to Japan and in between. Why is somebody who is Indian the same, as far as diversity on college campuses goes, as somebody who is Japanese or Chinese or Indonesian? As far as the university is concerned these are all identical people, but of course that’s not true.
And with respect to people who are Black, why is somebody who is a longtime descendant of American slaves the same as a recent Black immigrant from Africa? Why is somebody who grew up rich in the Hamptons the same as somebody who grew up poor in Harlem? The universities are using an enormously broad brush which is based on stereotypes, and that’s not permissible.
Finally, the court said the whole purpose of permitting racial discrimination in universities was to get to the point where this sort of thing is not necessary any more. Universities had to have an end goal that was measurable and they had to have an end point, which they would reach. The universities don’t. They’re just discriminating because ultimately they don’t really want true diversity. They’re discriminating because they think it’s good, because they think that balancing racial groups is the way you arrive at racial justice.
And true enough, when you got all the various opinions in this case, and I would recommend Justice Thomas’s opinion in particular, it was magisterial. It was his magnum opus. He’s been waiting his whole career to write this thing, and he did not disappoint. But when you read all the opinions in this case, although the diversity rationale is the whole reason that universities have been permitted to discriminate, the diversity rationale is nowhere. The dissenters don’t defend racial discrimination on the basis that it advances diversity on college campuses. They defend it on the idea that it’s necessary to cure societal discrimination, that racial discrimination today in a positive way, what we consider to be a positive way now, is the way you cure discrimination which we now consider was bad in the past. The problem with that approach, Justice Thomas lays out masterfully, is that nobody has ever thought that they’re discriminating to do bad things.
Even people, even the Supreme Court in Plessy versus Ferguson, where it said separate but equal, thought it was doing right. And the defenders of segregation back during the Jim Crow era thought that they were doing right. And the people who announced urban renewal projects which demolished Black neighborhoods in favor of housing projects thought that they were doing right. They were not doing right, and we know that now. Why on earth would we think that we’re doing right today by discriminating against Asians? All we’re doing is picking and choosing different races today. It’s not right, it’s not constitutional. It has never done any good that the universities have thought that it has done. And so today it’s over.
Guiney: GianCarlo Canaparo, thank you very much.
Canaparo: My pleasure. Thanks for having me.
Guiney: Thank you to GianCarlo Canaparo for coming onto the show today. You can find SCOTUS 101 wherever you get your podcasts. I can highly recommend it. It’s a great show for getting the low down on what’s happening at the Supreme Court. And thank you to you for listening to our show. If you have any questions or feedback for us, let us know at [email protected]. We hope you had a great 4th of July and we’ll see you for Heritage Explains next week.