Fox News contributor and law professor Jonathan Turley swooned over the Supreme Court granting a Colorado web designer the ability to discriminate against gay marriages.
It’s one thing to approve of yesterday’s ruling and quite another to gush over it the way hack pundit Jonathan Turley did.
Media Matters has the transcript, which I have lightly edited:
TURLEY: This will go down as one of the greatest free speech opinions in history. It clarified areas that have long been uncertain and muddled to the detriment of free speech.
I've been following this case since it was before the 10th Circuit. In the 10th Circuit opinion, where Gorsuch served, he is a native of Colorado, the 10th Circuit said that CADA, which is the underlying commission in the law, said that the whole purpose here is the elimination of ideas. Then the court ruled for the commission in doing that. And what Gorsuch said is, well, the First Amendment has a different purpose. It is meant to guarantee citizens that they can speak about their own values and to prevent them from being, of having to speak when coerced to do so by the government.
It’s an enormously important decision. It is beautifully written by Gorsuch. In fact, I don't think anyone could have written this opinion as well as Gorsuch. And what it says is that, yes, you are still required under public accommodation laws not to discriminate. But when it comes to products that are creative or expressive, the First Amendment does protect you. It protects everyone. All the members of every community, including those cited by the dissent. It is a roaring defense of free speech and for those of us in the free speech community, it is everything we hoped it would be.
It’s one thing to agree with the ruling and quite another, much worse thing to slobber over it, as Turley did. Once I closed my dropped jaw, not just because of what Turley said but the fact that this guy is a law professor, I found a more grounded view about the real-world application of this ruling.
But before I get to that, let me point out that the Supreme Court ruled on this case based on what looks like a fraud by the plaintiff or someone close to her. Website designer Lorie Smith, doing business as 303 Creative, has never actually designed websites but is so horrified by the thought of having to design one for a same-sex couple that she took her case all the way to the Supreme Court. As evidence of her supposed predicament, she cited a request for a gay wedding she claimed to have received as a justification for her case. She wrote about it in a sworn statement, according to The New Republic, but the couple and the marriage do not exist. If there’s a lawyer reading this, please let me know if Smith is a good candidate to be investigated for perjury and by whom.
In any event, civil rights attorney Joseph Pace wrote for Slate what seems like a sense of the ruling for those with a heart and who care about civil rights. Unlike Turley’s glee at the right to discriminate (and yes, let’s be clear that that is what it is because at no time was Smith ever unable to state her views about gay marriage), Pace says that our current Supreme Court has turned the First Amendment into what he calls “a wrecking ball” and used it against a vulnerable population.
To be clear, the argument that anti-discrimination laws impermissibly compel speech is not new. Private schools resisted desegregation mandates on the grounds that such commands forced them to “promote the belief that racial segregation is desirable.” The Supreme Court rejected those arguments. Companies in the 1970s challenged laws requiring the equal admission and treatment of women on the grounds they altered the organization’s character and message. The Supreme Court rejected those arguments as well. To paraphrase Justice Oliver Wendell Holmes’ famous utterance, just as my right to swing my fist ends where your nose beings [sic], a bigot’s right to express their views used to end when it bumped up against the rights of minorities to enjoy equal access to education, employment, and the marketplace. That principle has now been upended.
…
The court dresses these rulings in lofty admonitions about the evils of “viewpoint discrimination” and the “sinful and tyrannical” nature of compelled speech. But what the court is really doing is constitutionalizing its own, hyper-conservative viewpoint—one which sympathizes with the rich who “robustly exercise” their First Amendment right to speak through their wallets, even if—or perhaps because—such untrammeled expression effectively silences those with lesser means. It is a First Amendment jurisprudence which shows exquisite sensitivity to the psychic distress of the pro-life activists forced to inform vulnerable women about their reproductive options and the Christian website designer made to serve gay clientele, but a total disregard for the injuries suffered by women deprived of medical care or the stigma and humiliations felt by those who are refused service based on their sexual orientation. [My emphases added]
Just as disturbing as Turley’s adoration of the court’s ruling is his apparent inability to understand and/or complete failure to care about those points.
You can watch Turley’s very disturbing delight below, from the June 30, 2023 The Faulkner Focus, via Media Matters.
In addition to worrying about non-voters in 2024, I am even more worried about Cornel West’s candidacy. I have always liked West but I couldn’t be more disturbed about his candidacy, especially since he hired Russia fave Jill Stein to run his campaign. I’m just praying Bernie Sanders can persuade West to drop out before the actual election and throw support to Biden. But I’m not counting on that.
As for the Supreme Court, both Thomas and Alito are in their 70s. If Biden is re-elected, Alito will be 75 in 2025 and Thomas 77. But even if there should be an opening from the right-wing side of the bench, a lot also depends on who controls the Senate. The Senate math is terrible for Democrats in 2024.
So not a lot to be optimistic about at the moment.
The rulings we’re seeing are absolutely predictable. They are what happens when angry Right Wing groups like The Federalist Society and Heritage Action dictate who the SC picks are. This is about the numbers game on the courts and particularly the SC. The hatred and the bigotry are the point. This goes back over 70 years.
For the entire term of the Earl Warren Supreme Court, angry Right Wingers were fuming that the SC had lost its way. Starting with Brown v Board, angry Right Wingers were vowing to disobey those rulings and to work to erase them. When Nixon got elected in 1968 as Warren was retiring, he appointed 4 Republican justices to try to reset the Court. And he mostly succeeded (one of them was noted bigot Bill Rehnquist). But the Burger Court also delivered Roe v Wade, which sent the Right Wing spiralling. After their humiliation in Watergate, they waited for the next GOP president, which turned out to be Reagan. With Reagan, they instituted the litmus test where they’d pre-screen any judges or justices to make sure they’d vote the Right way on whatever was required. When Reagan’s handlers told him to appoint Sandra Day O’Connor, he personally interviewed her to confirm that she found reproductive choice to be an awful thing. What he didn’t realize was that she wouldn’t outlaw it for everyone else.
When the Right realized that even the litmus test wasn’t foolproof, they outsourced their screening to Far Right extremist idealogues like Leonard Leo at the Federalist Society and hacks at the Heritage Foundation. Which is why nearly all GOP judge picks from the Cheney/W White House forward have been extremist gargoyles. It’s not all of them, and a tiny handful have had changes of heart – Michael Luttig being a notable exception to the rule.
So the 303 Creative Ruling is one we could see a mile out. The entire point of the ruling is that it doesn’t matter if there was a real cause of action. It doesn’t matter that this is a discussion that was settled many decisions ago in terms of fairness to everyone and free speech rights. All that matters is that angry Right Wingers now hold a 6 vote supermajority on the SC. In reality, there have been multiple bigoted cases brought on nearly every major civil rights and political matter over the past 50 years. And the Supreme Court with different membership regularly would bat these cases away as having been asked and answered. Roe v Wade was itself upheld no less than FOUR times, with even the Pence appointees like Kavanaugh admitting it was now not only a precedent but a “super-precedent”. But angry Right Wingers were extremely patient. They just kept bringing those doomed cases up, hoping that at some point they’d get the right number of idealogues on the SC bench at the same time. (One has to give the Right Wing points for patience – they’ve been playing the same long game to destroy Social Security for everyone currently under 65 for over 20 years, and their gambit may pay off soon…)
The actual people responsible for the 303 Creative debacle are the same people responsible for Dobbs – and that’s the 2-3 million active mainstream Dem voters across the swing states who stayed home in 2016 because they figured their votes didn’t make a difference. And hey, angry Left Wing commentators like Alexander Cockburn had told them for years that it didn’t matter who was on the Supreme Court because the GOP would never overturn Roe anyway… Because those 2-3 million active mainstream Dem voters stayed home that year, Trump was able to run the table on those swing states and install Pence as the acting president in the White House. And with that, over 200 bench appointments in the judiciary could now be handed over to Mitch McConnell and Leonard Leo and Heritage Action. Which is how we got Gorsuch, Kavanaugh and Barrett on the SC, when none of them should have ever been anywhere near the SC, let alone on any bench anywhere.
The point of the current SC rulings is that they are systematically rewriting SC precedents to a new hateful normal. You believe that women should have reproductive choice? NO. You believe that discrimination should not be normalized? NO. You believe that the COVID relief for people with loans should apply to students? NO. Notice how these rulings line up precisely with how angry Right Wingers have been fuming for years. Particularly the language in Alito’s rancid Dobbs decision, where he opines that “Roe was egregiously wrong from the start.” This has nothing to do with any precedents, since the current SC doesn’t believe in them. It’s all about the game of “we have the majority and now WE’LL tell YOU what.”
The 303 Creative ruling, which is clearly based on a completely false premise, is a direct statement that Obergefell is soon to fall. And it won’t be the last one to go. Angry Right Wing local legislators in Wisconsin are already railing against contraception as immoral – it’s only a matter of time before Griswold is tossed. And angry Right Wingers have hated Brown v Board from the beginning, regardless of what they currently say to sound less bigoted in public. It’s only a matter of time before a case is brought up that allows Alito to opine that Brown was “egregiously wrong from the start” and say what angry Right Wingers wanted in the original ruling – that Mr. Brown should stop whining if he doesn’t like how the Board of Education functions and just vote them out. (Except for the part where Mr. Brown is gerrymandered to make sure his vote is routed to the only non-white district in the area and thus inconsequential.) We can also look forward to SC decisions that allow states to criminalize reproductive choice if they wish under “states’ rights”. And we can look forward to this SC absolutely upholding a nationwide reproductive choice ban, should that come their way.
One could and should ask what the solution is. I’d argue that the options are limited. It’s unlikely that any White House or Congress will agree to expand the seats on the SC. It’s also sadly unlikely that Alito or Thomas will be impeached or resign in disgrace. Even though we’ve seen enough to have a good idea which of the two of them leaked the Dobbs decision and then blamed it on the clerks. (Alito’s comment of having “a pretty good idea” of who leaked Dobbs is particularly brazen.) So we simply have to wait until another justice steps down. And from what we’ve seen, that’s unlikely to happen for another 20 years, or until another GOP president is in the White House and the GOP controls the Senate. That’s not going to sound optimistic, and it isn’t. But it’s what happens when people don’t show up to vote. And this lesson really needs to be learned, or we’ll get another version of the Pence White House. And this time instead of Trump as the childish spokesman, we’d get a troll like DeSantis, who would go much farther.