The Supreme Court has hung up the ol’ Gone Fishin’ sign — probably on a private jet bound for a luxury resort in Alaska — for the summer, but the spin about the end of the Term hasn’t slowed any. That’s not surprising. This is the week Court commentators customarily publish Term recaps. But the difference this year seems to be how bad the Court apologists are at this task. They’re not even trying anymore! The best response they could muster to Sam Alito’s billionaire boys’ club was to compare private luxury travel to running an Easter egg hunt and the defense of the actual decisions hasn’t gotten much better.
That said, mainstream publications have afforded a broad platform to some of the most flimsy arguments floating out there. Let’s break down a few of the dumbest lies out there:
3. The Supreme Court is more balanced now
Here’s ABC News allowing an ASS Law mouthpiece to convince the audience not to trust their remarkably non-lying eyes and trust that actually the Supreme Court is a model of moderation these days.
Lies, damn lies, and statistics as they say.
It’s true that Thomas and Alito found themselves on the outside looking in more than anyone else this Term, but that doesn’t really say much. It’s a lot more important to note when the justices are in and out of the majority. Thomas and Alito grumbled when Chief Justice Roberts kicked the independent state legislature theory to the curb in favor of his still problematic “Independent John Roberts Theory” of election law, but by and large when the significant assaults on long-established constitutional precedent hit the fan, polarization was as strong as ever.
It’s the companion lie to the less openly disingenuous but still wrong “Chief justice takes back the reins at the Supreme Court this term” take one might hear from Nina Totenberg, the veteran Supreme Court reporter who got thoroughly and repeatedly scooped by ProPublica this year. The implication is that Roberts is “moderate” simply because there are justices to his right and he occasionally disagrees with them. It’s pablum.
That the Supreme Court could come together to allow New Jersey to bring back mob activity on the docks doesn’t make the Court any less fractured on cases that matter. When it came to those cases, this was the most conservative Court of our lifetimes.
2. It doesn’t matter that the plaintiff’s filings made up fake facts in 303 Creative
The Court tossed centuries of public accommodation law to allow a web designer to deny services to a same-sex couple on free speech grounds. … even though no same-sex couple even asked. And while that’s its own problem that we’ll touch on in a second, the New Republic revealed that the plaintiffs appear to have concocted a fake fact pattern in a bid to skirt standing requirements.
This is true! This is also irrelevant.
As I noted in my coverage of the opinion, the plaintiffs ultimately trusted the Court to ignore the fact that they had no actual case rather than go forward with a fraud on the court. But… it would still be fraud. That the attorneys didn’t ultimately rely on the phony record may be a defense, but doesn’t change that it’s in the early filings and no one appears to have informed the courts that this fact was NOT true.
If the attorneys participated in the effort to dummy up a controversy, or even if they knew about it and did not disclose it to the Court, that’s misconduct under the Colorado Rules. Maybe they never learned that these facts were false, and if that’s the case they can offer that defense.
This is absolutely a big deal.
But McArdle is right that THIS revelation is not the reason to believe this case is based on a lie. It’s based on a lie because it’s absolutely based on a lie.
1. The Supreme Court hears cases without standing all the time!
Against all odds, the news about the phony facts has somewhat insulated the plaintiffs’ attorneys from there not being any facts at all. Despite the talking points McArdle’s using, Colorado very much did not agree that the plaintiffs could assert a hypothetical in place of a case or controversy. Indeed, the state pointed out that 303 Creative “has not entered the market, has no customers, has not created a product, and has not shown a credible threat of enforcement….”
Zillow aficionado Ed Whelan sought to dispel all the complaints about standing by pointing out that the Supreme Court does this all the time:
His grammar is as stellar as his legal reasoning.
The opinion in Roe thoughtfully grapples with this issue, noting that there wasn’t ever going to be a scenario where a pregnant woman seeking an abortion would be able to litigate all the way to the Supreme Court before she couldn’t get an abortion any more. But, crucially, the Court recognized that Jane Roe was pregnant and seeking an abortion which she couldn’t get because of the law in Texas.
Meanwhile, 303 Creative is a company with no clients with an owner worried that she might someday have a client that might inspire her to violate basic anti-discrimination laws. See how those are different?
Because Ed doesn’t.
We’ve not even touched on the claim that Harvard’s legacy admissions destroyed its own case or that “textualism” supports assuming Congress cannot have intended the HEROES Act to cover student loans just because the plain language of the statute it actually passed would cover it.
So many mendacious claims, so little time!
Earlier: The Supreme Court Is Lying To You About This Web Designer Opinion
Supreme Court Cares Less About The Facts Of A Case Than Hungover 1Ls
Sam Alito Laments It’s Getting So You Can’t Take All-Expense Paid Luxury Vacations Funded By Billionaires Anymore
Sam Alito Defenders Explain How Private Air Travel & $1000 Wine Are JUST LIKE Free Cookies And Plastic Easter Eggs
Shorter John Roberts: ‘State Legislatures Don’t Control Elections… John Roberts Controls Elections’
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.