Giving makebelieve the force of law is what SCOTUS does best
Kavanaugh faced an allegation that he assaulted a woman when they were teenagers. (AFP/File / SAUL LOEB)
July 11, 2023
In a case decided late last month, the rightwing supermajority of the United States Supreme Court sided with a Christian web designer who said that her right to free speech permitted her to deny services to same-sex couples. Turns out it was another case in history of cases in which the court gave the force of law to makebelieve. And when I say “makebelieve,” I mean literally made up.
The New Republicbroke the news. The magazine found that the person who had allegedly requested services from the Christian web designer had never made any such request. He didn’t need her services either. He’s a web designer himself. He’s also not gay. He’s been married to the same woman for 15 years.
The Christian web developer, Lorie Smith, wanted to put a notice on her company’s website, saying that it would not create wedding websites for same-sex couples. She argued that Colorado’s anti-discrimination law would have infringed on her free speech rights. The Supreme Court didn’t require her to have received “a real request,” according to Post reporter Robert Barnes.
Citing “Stewart,” who did not want his full name used for fear of harassment, Barnes wrote that “the court filing in Stewart’s name has left many baffled, including Stewart himself, who said he was concerned that the case had proceeded without anyone verifying if the request was authentic.”
We should all be concerned, but let’s be honest. This is what the court’s conservatives have been doing. In this recent case, it found yet another way of turning makebelieve into law, thus turning fiction into a legal reality that we all must live with. This is not an exception to the rule, however. It is the rule.
To be sure, as Harry Litman said, this is a “bonafide scandal.”
“On the legal level,” wrote the legal affairs columnist for the Los Angeles Times, “it means the court decided a case that wasn't a real case or controversy. … On the political level, it means that conservative forces in the country have effected a huge change in the law, and inroad on long-established anti-discrimination principles, based on a contrived story that exploited the judicial system and simply did an end-around the requirement of actual facts.”
READ MORE: A crime against America’s future
Yayup. That’s what the court does. “Conservative forces” in America are always, to some degree, working toward undoing major liberal advancements, and whenever they succeed, it’s often due to a “contrived story that exploited the judicial system and simply did an end-around the requirement of actual facts.”
There are, of course, serious differences between this case and past cases. The difference is a matter of degree, though, not kind. This court’s supermajority has regularly made law out of thin air. Usually, though, it isn’t obvious about it.
For instance, the court decided recently to overrule the president’s program for student debt relief. It ruled based in part on something called the “major questions” doctrine. You can read more about it here, but trust me, the “doctrine” is makebelieve. (It’s a condition simply made up over time.) It’s so swaddled in the verbiage of courts, however, that it doesn’t look that way.
The court’s supermajority also recently decided to strike down affirmative action, ruling that the consideration of race in college admissions is discriminatory. It ruled based in part on the doctrine of colorblindness. It’s a made-up doctrine. Americans have never been colorblind. But Americans want to believe in it so much that the court’s makebelieve doesn’t look made-up.
However, in the case of the Christian web designer alleging the infringement of her speech rights, the court’s corruption is more visible than at any time in my lifetime. The man whom she cited in her case didn’t know he was involved, didn’t request her services, didn’t need her services and, by the way, isn’t gay.
You don’t need to be a columnist for the LA Times to see the truth of it – that giving makebelieve the force of law is what this court does best. You don’t need to be an expert, on anything, to see that this is what corruption looks like.
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