It is very easy to hate on gunners. We encourage it even — check out some of our Law Revue entries. Know why? There are several reasons, but the most grating is when they go out of their way to ask questions about the case that have nothing to do with the matter at hand.
It’s pretty clear that some Supreme Court justices are also treating the fact patterns before them like Mad Libs to satisfy ulterior motives. They aren’t even sure they still need a Case or Controversy Clause to do so. There’s certainly nothing about 303 Creative v. Elenis, the case of the aggrieved website designer who didn’t want to make a wedding page for a same-sex couple, that amounts to a “case” or “controversy” since the plaintiff has never been asked to design anything for any same-sex couple.
As Mark Joseph Stern breaks down the case at Slate:
[W]hat’s the genius of [303 Creative v. Elenis]? Well, Lorie Smith has never been asked to make a website, so there is no real victim. Instead, she gets to play the victim. She is the aggrieved party. She is the person who goes into court and cries crocodile tears and testifies that her feelings will be so, so, so hurt if a gay couple asks her to sell them a website and she has to do it. That has worked in the media. I don’t know how else to say it. That worked. Go online. Google Lori’s website, and you will see dozens of pieces in the New York Times, in the Washington Post, and in CNN. They sent their photographers out there to take pictures of her in the softest lighting, in her little studio with “Live, Laugh, Love” quotes on the wall. It was like: This poor, poor woman is having her rights trampled upon.
It turns out it’s pretty easy to trick the press if you just manufacture the case and you have total control over the players.
Remember when the oral argument in this case went off on Black mall Santas not taking requests from kids in Klan uniforms and Justice Kagan JDating? Turns out those hypotheticals had as much grounding in reality as this case.
Stern is right to point out that this is basically an advisory opinion — something the Court does not have any constitutional authority to hand down — this is just the latest in a series of liberties the Court has taking with the facts in cases before it. It’s one thing for the Court to interpret the Constitution as they see fit, but now they’re interpreting the facts however they want to, too.
Look at Kennedy v. Bremerton School District. When the Court warped the facts in Bremerton — treating some coach pressuring kids to pray at the 50 yard line as David being unjustly harassed by the Establishment Clause Goliath, that should have been the first sign that this Court made the transition from calling balls and strikes to throwing the damn thing themselves. Sotomayor’s dissent drew attention to the record reflecting that several students reported that they felt social pressure to join in the prayer… Neil Gorsuch defined the prayer as “quiet” and “private.” How in the hell the majority opinion managed to frame the issue of the case as an individual expression of his religiosity is not only beyond me, it is yards past the case that was in front of the court.
And while we’re on the subject, was Sackett v. EPA really that much better? With that one, the Court gutted clear congressional intent and years of precedent so hard that even Kavanaugh had to throw blows at Alito for not keeping up the textualism kayfabe. Alito just straight up redefined a congressional definition in such a way that what remains of the Clear Water Act can barely protect the remaining waters that are covered by the contiguous carveout.
The previous understanding of the Clear Water Act was able to protect nexus points. For example, say you have a lake somewhere. If some business 50 yards away was dumping chemicals in a rainwater pool that found its way back to the river, the EPA would be able to stop that dumping. Understandably so, while the business wasn’t directly dumping the chemicals into the lake, common sense tells you that it is as if they were if the dumping site eventually tracks back to the main body. Now, not so much. To rewrite the CWA and act as if this is what Congress intended, they must have been looking at another document entirely.
This is just the start. A ruling in favor of the web designer will add normalcy to the Court having Factual Review™. No case or controversy? No biggie. No standing? Who cares! Maybe next time some billionaire who has a penchant for lining judicial pockets can backdoor some money into some group that wants to be able to refuse Blacks rooms in hotels because it goes against their truly held religious conviction that they’d be helping the children of Ham. They might just skip the foreplay altogether and just start issuing advisory opinions without the pretense of finding a crisis actor plaintiff.
Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s. He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at email@example.com and by tweet at @WritesForRent.