Two anti-equality decisions show billionaires’ return on Supreme Court investment

A pair of SCOTUS decisions make clear the corruption that conservatives on the court have worked hard to obfuscate

Published June 30, 2023 12:18PM (EDT)

Chief Justice of the United States John Roberts at the Supreme Court on Friday, Oct. 01, 2021 in Washington, DC. (Jabin Botsford/The Washington Post via Getty Images)
Chief Justice of the United States John Roberts at the Supreme Court on Friday, Oct. 01, 2021 in Washington, DC. (Jabin Botsford/The Washington Post via Getty Images)

Just when you thought the Supreme Court, with its Tuesday decision rejecting the dangerous "Independent State Legislature" theory, was stepping back from the brink, the majority showed us that the brink moves back with it at least when the brink is discrimination or sensible efforts to remedy past discrimination.

With Friday's 6-3 extremist majority decision in 303 Creative v. Elenis and Thursday's in Students for Fair Admissions Inc. v. President & Fellows of Harvard College, the Supreme Court has us traveling backwards decades and more in its time machine of law. What's more, there emerges a visible link between a Court majority seeking the straight White hope of yesteryear, and the recent disclosures about justices treated by billionaires to Alaskan fishing trips and private yacht adventures to Indonesia.

Friday's decision, one of the final of the term, blows a hole through six decades of state and local public accommodations laws. Those antidiscrimination statutes and ordinances say that businesses open to the public may not refuse service to customers based on race, gender or sexual orientation. But now, under 303 Creative, there's a loophole for not serving LGBTQ people.

In the case, Lori Smith, a fundamentalist claimed that Colorado's public accommodations law prevented her from going into a business to create wedding websites because it would compel her to use her expressive talents contrary to her religious beliefs. The Court majority bought her claim that the anti-LGBTQ website designer's artistic speech rights under the First Amendment were improperly "chilled."

As Justice Sonia Sotomayor wrote in dissent, "When the civil rights and women's rights movements sought equality in public life, some public establishments refused. Some even claimed, based on sincere religious beliefs, constitutional rights to discriminate. The brave Justices who once sat on this Court decisively rejected those claims."  

And in Thursday's pair of affirmative action decisions case, involving the University of North Carolina and Harvard, the Court tossed in the dustbin "race conscious" college admission programs aiming to rebalance higher education after decades of structural and institutional discrimination that suppressed educational opportunity for Black students. The majority turned its back on its 45-year-old precedent in Regents of the University of California v. Bakke, a decision reaffirmed two decades ago, permitting race as a factor in law school admissions. 

The puppet show is all about a campaign in which former Federalist Society leader Leonard Leo and others seem to have assigned uber-conservative billionaires to cultivate conservative justices to keep them from straying center or leftward.

In doing so, the majority discredited the trial court's finding that the schools, in considering Black students' credentials for admission, did not engage in invidious discrimination against other races. Race was but one admission factor, along with others, including the advantages given to "legacy" applicants – those whose family members attended the school. Those advantages would have gone overwhelmingly to white applicants. 

What reason did the Court give for disallowing race to be among many explicit factors considered? That the advocates of affirmative action offered no "end point," so the Court pronounced that this is it. The implicit assumption was that discriminatory treatment based on race is no longer a big problem. Apparently, more than three in five Americans disagree, and only one in five thinks race is no longer a problem.

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Sotomayor, again, argued in dissent that the Supreme Court "cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter."

Let's be blunt about the obvious outcomes of these two cases. LGBTQ people have less protection today than yesterday. Experience says there will be fewer Black students on selective college campuses, even as educators hope to find other means within the law to promote diversity and inclusion in student bodies. But if this Court had its way, we would have a whiter, straighter America.

Anti-diversity is the watchword of today's conservative retro-culture wars, from Ron DeSantis' Florida to Greg Abbott's Texas. That overarching rightwing worldview is where the dots connect between today's Court decisions and the most influential cultural warrior who is pulling strings behind the scenes. 

The puppet show is all about a campaign in which former Federalist Society leader Leonard Leo and others seem to have assigned uber-conservative billionaires to cultivate conservative justices to keep them from straying center or leftward. Corruption does not have to take the blatant form of exchanging gifts for a vote. It seeps in when justices get hooked and comfortable belonging to an old world that many among the wealthiest would like to return to.

The insightful Jamelle Bouie described on Tuesday how Leo watched with dismay over the years as Republican presidents'  appointees to the Court – from John Paul Stevens to Lewis Powell to David Souter to Anthony Kennedy – sometimes authored non-conservative opinions. To stop that migration to the center or left from recurring, Leohe evidently devised a below-the-radar strategy of gift-giving by and socializing with conservative donors. 

Notably, it was Leo pictured in that telling photographic-style painting published by ProPublica of a cigar-wielding Justice Thomas at Harlan Crow's Adirondack retreat. According to the Washington Post, Leo secretly directed funds to Ginni Thomas, Justice Thomas' wife. It was Leo who reportedly brokered Justice Samuel Alito's 2008 Alaska fishing trip in a free seat on right-wing billionaire activist Paul Singer's private jet.

On the surface, billionaires invited justices to catch salmon. But as Slate's Dahlia Lithwick observed, it was the justice whom the trip was meant to reel in. Law professor Stephen Lubet recently pointed out that "social science research has determined that the receipt of gifts can powerfully sway later decisions, often in ways unrealized by the recipients. . . . [R]eceipt of a single inexpensive meal [provided to physicians] was associated with increased prescriptions of the donor's brand-name medication."

Leo has raised more than $1.6 billion to put into place his vision of an old-time, staunchly conservative America. By report, he was behind funding one of the right-wing groups that filed an amicus brief on the side of Lori Smith in 303 Creative.

Last year, he told the New York Times that his goal is ". . . to roll back liberal dominance in many important sectors of . . . American cultural, policy and political life." He is the point man for what savvy political analyst Michael Podhozer calls a "resurgent revanchist coalition" aggressively pursuing its conviction that "the 20th century was wrongly decided." 

The Times reported that Leo's efforts focused, among other causes, on "restricting abortion rights in the states; ending affirmative action; defending religious groups accused of discriminating against L.G.B.T.Q. people." And there you have it, two of his concerted campaign's goals realized in consecutive days on the court. As Dahlia Lithwick has astutely put it, we should stop framing our crisis with the Court as an "ethics scandal" and see it for what it is: political corruption of the most sophisticated kind. 

The great American president and reformer, Republican Teddy Roosevelt, said that "[t]he first requisite of successful self-government is . . . the cutting out of corruption." It is up to voters to do that, by electing a Congress and president in 2024 that impose accountability on the Court, set term limits for justices and add enough seats to neutralize those who have shown themselves committed more to their own extreme ideology than to the promise of equal protection under the law

By Dennis Aftergut

Dennis Aftergut, a former federal prosecutor, is currently of counsel to Lawyers Defending American Democracy.

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Commentary Federalist Society Leonard Leo Lgbtq Scotus Supreme Court