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'Very big cases': U law professor on the Supreme Court's latest rulings

U.S. Supreme Court building during the day
The Supreme Court in Washington is seen on April 21. Justices made significant decisions this term connected to affirmative action, student loan debt and the rights of LGBTQ+ people.
Alex Brandon | AP

Major decisions last week from the Supreme Court tied to affirmative action, student loan debt and the rights of LGBTQ+ people showed again the deep divides among the justices and the country.

The majority ruled a Christian graphic artist can refuse to work with same sex couples, rejected the Biden administration’s power to slash massive amounts of student loan debt and effectively ended affirmative action in college admissions.

“Some people call this the ‘you only live once’ court — the idea being that the six-justice majority has the votes and are really not shy about using that power while they have it,” University of Minnesota law professor Jill Hasday told MPR News Monday.

Hasday shared her perspective on the Supreme Court term and its potential effects.

The following is an edited transcript of the interview, listen to the full interview with the audio player above.

Any common themes in last week’s 3 big decisions?

First, obviously, its ideological tilt in a way that's generally consistent with right wing agenda.

I think another theme is some people call this the “you only live once” court — the idea being that the six justice majority has the votes and are really not shy about using that power while they have it.

I also think you can see reverberations of the overturning of Roe last year in many of these cases.

How significant are the rulings?

Oh, these are very big cases. I teach constitutional law, and this changes the constitutional law curriculum. And I think they also many of these cases also have further reverberations.

For instance, when the court struck down the loan forgiveness program, that’s part of a more general judicial move rolling back the administrative state.

So the court’s basic theory in that case is that even though the statute said the secretary of education had the power to modify or waive existing requirements, the loan forgiveness was just too big to fall within that.

This fits in with a more general idea the court has, where if it’s something of sort of vast significance, it's not content to refer to … how the agency interprets the statute. It wants something more.

As the dissent points out, that just gives the court in general just enormous power to second guess what agencies do, which isn’t only about student loan forgiveness, no matter how impactful it is, it's just more generally about the power of agencies to regulate.

Will the rulings bring more legislation or litigation?

Let’s take the affirmative action case. So the Supreme Court said in that case, that race can no longer be used as a plus.

But on the other hand, it specifically said that applicants in their essays can talk about their particular experiences of challenges and obstacles and how they overcame them, including dealing with race discrimination. So it’s pretty clear to me that at least for selective universities, they're going to probably uniformly have that kind of essay question.

And I would anticipate future litigation. In fact, the people behind this suit have basically said they're going to keep suing. I think there's going to be litigation over … are these essays being used as a way of reinstituting affirmative action in another way.

Suppose a school adopts new admissions criteria in the hope that it will promote race diversity? I suspect there’s going to be litigation over should that rule that’s facially neutral, actually be understood as essentially affirmative action because it was adopted with racial outcomes in mind.

What did you see in the justices’ words, specifically the liberal members of the court?

The rhetoric seems a little raw. Even when justices dissent, they’re ultimately all in the common project of venerating the Supreme Court, and it’s all like in the language of “I respectfully dissent.”

And here the dissents, I think, are much more frank about the idea that the majority has a partisan agenda and will to [use] power, and is sort of untrammeled.

I think you saw that in the Dobbs dissents, and you continue to see that here. It’s just much more not only dissenting from the particular case, but from the more general project of the six-justice majority.

Why is that?

My instinct is that it’s really a reflection of how extreme the six-justice conservative majority has been, and how much they've done so fast, including in situations where they seem to be quite distant from the median voter.

I think it’s … sort of the desperation of the three liberals, as they see the court really running very fast. And maybe that's accelerated by social media.

But there’s clearly something happening outside the court that I think one way or another, all the justices are aware of. When [polling firms] do polls — Do you have high levels or somewhat high levels of competence in the court? — those figures have dropped about 20 percentage points in the last two years.

And even though [justices] like to say that they’re above mere politics or popularity, they’re highly aware of it, and you really can see it.

The following is an edited transcript of the interview, listen to the full interview with the audio player above.

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