Bronze aged stupidity on full display in court...

Supreme Court limits LGBTQ protections with ruling in favor of Christian web designer

By Ariane de Vogue and Devan Cole

The Supreme Court Friday ruled in favor of a Christian web designer in Colorado who refuses to create websites to celebrate same-sex weddings out of religious objections.

The 6-3 decision was penned by Justice Neil Gorsuch and joined by Chief Justice John Roberts and Justices Samuel Alito, Amy Coney Barrett, Brett Kavanaugh and Clarence Thomas. Justice Sonia Sotomayor penned a dissent joined by her liberal colleagues Justices Elena Kagan and Ketanji Brown Jackson.

The court’s decision represents a devastating blow to LGBTQ protections, which have in recent years been bolstered by landmark decisions at the nation’s highest court, including one authored three years ago by Gorsuch in which the majority expanded protections for LGBTQ workers, and the 2015 case legalizing same-sex marriage nationwide.

Lorie Smith, who runs a company called 303 Creative, sought to expand her business into the area of weddings and wrote a webpage explaining why she won’t create websites for same-sex couple. But under a Colorado public accommodations law, she said she cannot post the statement because the state considers it illegal.

The ruling – rooted in free speech grounds – will pierce state public accommodation laws for those businesses who sell so-called “expressive” goods. It is the latest victory for religious conservatives at the high court and will alarm critics who fear the current court is setting its sights on overturning the 2015 marriage case.

Gorsuch wrote that “the First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands.” He said Colorado sought to “deny that promise.”

“All manner of speech – from ‘pictures, films, paintings, drawings, and engravings,’ to ‘oral utterance and the printed word’ – qualify for the First Amendment’s protections; no less can hold true when it comes to speech like Ms. Smith’s conveyed over the Internet,” Gorsuch said.

In dissent, Sotomayor said the decision will undermine the government’s compelling interest in ensuring that all Americans have equal access to the public marketplace.

“Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class,” she wrote.

“Specifically, the Court holds that the First Amendment exempts a website design company from a state law that prohibits the company from denying wedding websites to same-sex couples if the company chooses to sell those websites to the public,” she wrote.

Sotomayor called this a “sad day in American constitutional law and the lives of LGBT people.”

“By issuing this new license to discriminate in a case brought by a company that seeks to deny same-sex couples the full and equal enjoyment of its services, the immediate, symbolic effect of the decision is to mark gays and lesbians for second-class status,” she wrote in dissent.

She said the “decision itself inflicts a kind of stigmatic harm, on top of any harm caused by denials of service.”

“The opinion of the Court is, quite literally, a notice that reads: ‘Some services may be denied to same-sex couples.’”

She suggested that decision would be more far-reaching. “The decision’s logic cannot be limited to discrimination on the basis of sexual orientation or gender identity.”

“The decision threatens to balkanize the market and to allow the exclusion of other groups from many services,” she said, adding that “a website designer could equally refuse to create a wedding website for an interracial couple, for example.”

But in a footnote, Gorsuch pushed back. “Our decision today does not concern – much less endorse – anything like the ‘straight couples only’ notices the dissent conjures out of thin air.”

Smith’s lawyer, Kristen Waggoner, said in a statement Friday, “The U.S. Supreme Court rightly reaffirmed that the government can’t force Americans to say things they don’t believe. The court reiterated that it’s unconstitutional for the state to eliminate from the public square ideas it dislikes, including the belief that marriage is the union of husband and wife.”

Kagan’s dissent and Gorsuch’s switch

The court’s decision came on the final day of Pride Month, an annual celebration of the LGBTQ community and its movement for equality that takes place throughout June.

In her dissent, Sotomayor laid out key moments in that decades-long movement as she explained how states came to pass the kinds of laws at issue in the case and why they’re necessary for members of the community. “Who could forget the brutal murder of Matthew Shepard?” she wrote, adding later: “Or the Pulse nightclub massacre, the second-deadliest mass shooting in U. S. history?”

“One significant change has been the addition of sexual orientation and gender identity to public accommodations laws,” Sotomayor wrote. “LGBT people do not seek any special treatment. All they seek is to exist in public. To inhabit public spaces on the same terms and conditions as everyone else.”

Gorsuch’s opinion delivering a massive loss to the LGBTQ community likely came as a surprise to members of the LGBTQ community after he delivered them a key win in 2020.

In that case, Bostock v. Clayton County, the conservative justice wrote for the majority that Title VII of the Civil Rights Act, which bars discrimination “because of sex,” also covers claims based on sexual orientation and gender identity.

The decision extended protections to millions of workers nationwide and was a defeat for the Trump administration, which argued that the sex discrimination bar in Title VII did not extend to claims of gender identity and sexual orientation.

A ‘power to discriminate’

LGBTQ advocates quickly condemned the ruling, echoing Sotomayor’s argument that it gives some businesses a federal right to discriminate against members of the community.

“This decision by the Supreme Court is a dangerous step backward, giving some businesses the power to discriminate against people simply because of who we are,” Human Rights Campaign President Kelley Robinson said in a statement.

“People deserve to have commercial spaces that are safe and welcoming. This decision continues to affirm how radical and out-of-touch this Court is, especially when 80 percent of Americans support robust and LGBTQ+ inclusive nondiscrimination laws,” she said.

The American Civil Liberties Union similarly criticized the ruling, saying in a tweet that it means “certain businesses have a right to discriminate when selling customized, expressive services. This is the first time the Court has permitted a business open to the public to turn away customers in defiance of a nondiscrimination law.”

And Democratic Rep. Ritchie Torres, an openly gay member of the House, said on Twitter that the court’s majority “invokes religious liberty to license discrimination against LGBTQ people.”

“The LGBTQ community might be the first victim of the Supreme Court’s decision but it won’t be the last. ‘Injustice anywhere is a threat to justice everywhere,’” Torres wrote in a tweet.

Oral arguments highlight potential impact

Waggoner, Smith’s lawyer, came under intense attack during oral arguments in the case from liberals on the bench who launched a slew of hypotheticals meant to explore the potential sweeping consequences of the case if Smith were to prevail. They suggested that other businesses could discriminate based on race or physical disability.

Five years ago, the court considered a similar case involving a Colorado baker who refused to make a cake for a same-sex wedding, citing religious objections. 

That 7-2 ruling favoring the baker, however, was tied to specific circumstances in that case and did not apply broadly to similar disputes nationwide. Under the law, a business may not refuse to serve individuals because of their sexual orientation.

Smith – who has yet to expand her business into wedding websites – said that she is willing to work with all people, regardless of their sexual orientation, but she refuses to create websites that celebrate same-sex marriage.

“The state of Colorado is forcing me to create custom, unique artwork communicating and celebrating a different view of marriage, a view of marriage that goes against my deeply held beliefs,” Smith told CNN in an interview.

When the Supreme Court agreed to hear the case in February 2022, the justices sidestepped whether the law violated Smith’s free exercise of religion. Instead, the court said it would look at the dispute through the lens of free speech and decide whether applying the public accommodations law “to compel an artist to speak or stay silent” violates the Free Speech Clause of the Constitution’s First Amendment.

In court, Waggoner said that the law works to compel speech in violation of the First Amendment. 

She said her client believes “opposite sex marriage honors scripture and that same-sex marriage contradicts it.” She said the state could interpret its law to allow speakers who serve all people to decline specific projects based on their message. Such a move, she contended, would stop status discrimination without coercing or suppressing speech. “Art is different,” Waggoner said. 

Twenty states had weighed in in favor of Smith in friend-of-the-court briefs. They said that they have public accommodation laws on the books, but their laws exempt those businesspeople who make their living creating custom art.

Smith has written a webpage explaining that her decision is based on her belief that marriage should be between one man and one woman. But she has not yet published the statement out of fear of violating the “publication clause” of the law that bars a company from publishing any communication that indicates that a public accommodation service will be refused based on sexual orientation, Waggoner claims in court papers.

Smith lost her case in lower courts. The 10th US Circuit Court of Appeals held that while a diversity of faiths and religious exercises “enriches our society,” the state has a compelling interest in “protecting its citizens from the harms of discrimination.”

Colorado Solicitor General Eric Olson argued that the law does not regulate or compel speech. Instead, he said, it regulates commercial conduct to ensure all customers have the ability to participate in everyday commercial exchanges regardless of their religion, race, disability or other characteristics. He said the Colorado law targets “commercial conduct of discriminatory sales” and that its effect on expression is “at most incidental.”

“Granting such a license to discriminate would empower all businesses that offer what they believe to be expressive services, from architects, to photographers, to consultants, to refuse service to customers because of their disability, sexual orientation, religion or race,” he said.

He added that the law does not aim to suppress any message that Smith may want to express. Instead, 303 Creative is free to decide what design services to offer and whether to communicate its vision of marriage through biblical quotes on its wedding websites. But critically, the law requires the company to sell whatever product or service it offers to all.

Student loan forgiveness program dead....

Supreme Court blocks Biden’s student loan forgiveness program

By Ariane de Vogue and Tierney Sneed

In a stinging defeat for President Joe Biden, the Supreme Court blocked the administration’s student loan forgiveness plan Friday, rejecting a program aimed at delivering up to $20,000 of relief to millions of borrowers struggling with outstanding debt.

The decision was 6-3 with Chief Justice John Roberts writing for the conservative supermajority.

It will immediately become a potent issue in the 2024 presidential race, as Biden can try to galvanize liberals by claiming the conservative court prevented him from delivering debt relief to voters. Republicans, meanwhile, are celebrating the ruling as a defeat for a “bailout” plan.

Republican-led states and conservatives challenging the program say it amounts to an unlawful attempt to erase an estimated $430 billion of federal student loan debt under the guise of the pandemic.

Roberts said the Biden administration and Secretary of Education rewrote the law.

“The Secretary’s comprehensive debt cancellation plan cannot fairly be called a waiver – it not only nullifies existing provisions, but augments and expands them dramatically,” Roberts wrote. “However broad the meaning of ‘waive or modify,’ that language cannot authorize the kind of exhaustive rewriting of the statute that has taken place here.”

The White House sought to use the HEROES Act authority to waive the debt.

Roberts said the government needed direct authorization from Congress.

“The question here is not whether something should be done; it is who has the authority to do it.”

The liberal dissenters said the majority is basically making political decisions.

“The Court acts as though it is an arbiter of political and policy disputes, rather than of cases and controversies,” Justice Elena Kagan wrote.

She accused the court of “once again” substituting “itself for Congress and the Executive Branch – and the hundreds of millions of people they represent – in making this Nation’s most important, as well as most contested, policy decisions.”

The court’s decision means that borrowers targeted by Biden’s plan will receive no relief. Monthly payment obligations that were paused during the Covid-19 pandemic will be due starting in October.

The White House has said that it received 26 million applications to the program before a lower court in Texas issued a nationwide injunction in November, and that 16 million of those applications had been approved for relief.

The plan would have assisted borrowers who make less than $125,000 a year ($250,000 for households) in 2020 or 2021. He argued the relief program was necessary in order to avoid a surge in defaults or delinquencies for those impacted by Covid who have outstanding loans.

‘Major questions doctrine’ and executive power

The ruling is “another expansion of the so-called ‘major questions doctrine,’ which allows federal judges to strike down any federal policy of ‘economic or political significance’ because Congress wasn’t sufficiently clear in authorizing the policy,” said Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law.

Roberts wrote: “The economic and political significance of the Secretary’s action is staggering by any measure.”

Roberts said it amounted to the executive “seizing the power of the Legislature.”

“Among Congress’s most important authorities is its control of the purse,” he added.

Kagan, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson, raged against the court’s ruling and the broader trend of decisions from the conservative majority that limited executive branch discretion under a legal doctrine known as the “major questions doctrine.”

Kagan called the legal theory – which says Congress must speak specifically when giving executive branch agencies the authority to take aggressive actions of major economic of political consequence – “judicially manufactured” and “made-up” doctrine.

Her dissent raised the possibility the doctrine is on track to be wielded against landmark government programs like Medicare.

“Today’s decision thus moves the goalposts for triggering the major-questions doctrine,” she wrote. “Who knows – by next year, the Secretary of Health and Human Services may be found unable to implement the Medicare program under a broad delegation because of his actions’ (enormous) ‘economic impact.”

Political fallout

The political fallout was immediate as Republicans celebrated the ruling against Biden.

Former Vice President Mike Pence on Friday argued the debt relief program is a “bailout” that would have subsidized the “education of elites” on “hardworking Americans.”

“Joe Biden’s massive trillion-dollar student loan bailout subsidizes the education of elites on the backs of hardworking Americans, and it was an egregious violation of the Constitution for him to attempt to do so unilaterally with the stroke of the executive pen,” Pence said, before saying the plan would benefit “bankers and lawyers” in liberal cities.

House Republicans had included an end to student loan forgiveness in their debt ceiling plan earlier this year but the deal that ultimately passed Congress required Biden to end a pandemic-era pause on student loan payments by the end of this summer.

“President Biden’s student loan giveaway is ruled UNLAWFUL. The 87% of Americans without student loans are no longer forced to pay for the 13% who do,” House Speaker Kevin McCarthy, a California Republican tweeted.

McCarthy also sent another tweet taking a jab at former Speaker Nancy Pelosi, a California Democrat, who previously suggested Biden does not have the authority to forgive student loans.

“The Court called out Pelosi in its decision,” McCarthy tweeted. “I agree with her for once!”

Democrats are pressing Biden to take new administrative actions to provide relief for student borrowers.

“The Biden administration has remaining legal routes to provide broad-based student debt cancellation,” said Senate Majority Leader Chuck Schumer. “With the pause on student loan payments set to expire in weeks, I call upon the administration to do everything in its power to deliver for millions of working- and middle-class Americans struggling with student loan debt.”

Sen. Elizabeth Warren, a progressive Democrat, added: “This fight is not over. The President has more tools to cancel student debt — and he must use them. More than 40 million hard working Americans are waiting for the help that President Biden promised them, and they expect this administration to throw everything they’ve got into the fight until they make good on this commitment.”

The crimes...

Here are the 20 specific Fox broadcasts and tweets Dominion says were defamatory

By Eric Levenson and Marshall Cohen

For all the interest in big-name witnesses and eye-opening private text messages, at the core of the defamation lawsuit filed by Dominion Voting Systems against Fox News are 20 specific broadcasts and tweets in which the voting company says Fox knowingly promoted lies, destroying its reputation.

According to the lawsuit, all 20 statements took place between November 8, 2020, and January 26, 2021, and came in the form of on-air comments from Fox hosts Jeanine Pirro, Lou Dobbs and Maria Bartiromo; interviews with prominent pro-Trump election deniers Sidney Powell, Rudy Giuliani and Mike Lindell; and several of Dobbs’ tweets.

The wild allegations in the statements fell into four broad categories: that Dominion conducted election fraud, that it used algorithms to flip votes, that it had ties to Venezuela and that politicians received kickbacks to use the company.

The judge overseeing the defamation trial has already ruled that these allegations were false, saying it is “CRYSTAL clear that none of the Statements relating to Dominion about the 2020 election are true.”

At trial, it will be a jury’s job to determine if the statements were made with “actual malice” – a high bar based on knowing falseness or having a reckless disregard for the truth – and potentially award damages. Dominion has asked for $1.6 billion in damages and additional punitive damages, a number Fox says is wildly overblown.

Fox has denied wrongdoing and said the case is a meritless assault on press freedoms. Lawyers for Fox have argued that Dominion hasn’t come close to clearing the high bar to prove defamation.

Here’s a closer look at those 20 specific broadcasts and tweets of alleged defamation.

Broadcast 1: Bartiromo interviews Powell

The broadcast: “Sunday Morning Futures” on November 8, 2020.

What they alleged: Election fraud and algorithm flips.

Key false quote: “Sidney, we talked about the Dominion software. I know that there were voting irregularities. Tell me about that,” Bartiromo said.

“That’s to put it mildly. The computer glitches could not and should not have happened at all,” Powell said. “That is where the fraud took place where they were flipping votes in the computer system or adding votes that did not exist.”

Broadcast 2: Dobbs interviews Giuliani

The broadcast: “Lou Dobbs Tonight” on November 12, 2020.

What they alleged: Election fraud and Venezuela ties.

Key false quote: “So, we’re using a foreign company that is owned by Venezuelans who are close to – were close to (Hugo) Chávez, are now close to (Nicolás) Maduro, have a history. They were founded as a company to fix elections, they have a terrible record, and they are extremely hackable,” Giuliani said.

Broadcast 3: Dobbs interviews Powell

The broadcast: “Lou Dobbs Tonight” on November 13, 2020.

What they alleged: Election fraud, algorithm flips, Venezuela ties, kickbacks.

Key false quote: “Let’s start with Dominion, a straight out disavowal of any claim of fraud against the company, its software or machines. Your reaction,” Dobbs asked.

“Well, I can hardly wait to put forth all the evidence we have collected on Dominion, starting with the fact it was created to produce altered voting results in Venezuela for Hugo Chavez and then shipped internationally to manipulate votes for purchase in other countries, including this one,” Powell said.

“We also need to look at and we’re beginning to collect evidence on the financial interests of some of the governors and Secretaries of State who actually bought into the Dominion Systems … to line their own pockets by getting a voting machine in that would either make sure their election was successful or they got money for their family from it,” she added.

“Well, that’s straightforward,” Dobbs said. “You’re going to have to be quick to go through and to produce that investigation and the results of it.”

Broadcast 4: Tweet from Dobbs

The broadcast: Quote-tweet by Dobbs of Giuliani tweet on November 14, 2020.

What they alleged: Election fraud, algorithm flips, Venezuela ties.

Key false quote: “Did you know a foreign company, DOMINION, was counting our vote in Michigan, Arizona and Georgia and other states,” Giuliani wrote.

“Read all about Dominion and Smartmatic voting companies and you’ll soon understand how pervasive this Democrat electoral fraud is, and why there’s no way in the world the 2020 Presidential election was either free or fair. #MAGA @realDonaldTrump #AmericaFirst #Dobbs,” Dobbs wrote.

Broadcast 5: Jeanine Pirro interviews Powell

The broadcast: “Justice with Judge Jeanine” on November 14, 2020.

What they alleged: Election fraud, algorithm flips, Venezuela ties.

Key false quote: “It was created for the express purpose of being able to alter votes and secure the reelection of Hugo Chavez and then Maduro. They’ve used it in Argentina,” Powell said. “There is an American citizen who has exported it to other countries and it is one huge, huge criminal conspiracy that should be investigated by military intelligence for its national security implications.”

“Yes. And hopefully the Department of Justice, but who knows anymore,” Pirro said.

Broadcast 6: Bartiromo previews interview with Powell and Giuliani

The broadcast: “Fox & Friends Sunday” on November 15, 2020.

What they alleged: Election fraud, algorithm flips, Venezuela ties, kickbacks.

Key false quote: “Sidney Powell is also talking about potential kickbacks that government officials, who were asked to use Dominion, actually also enjoyed benefits to their families,” Bartiromo said. “We’re going to talk about that coming up as well.”

Broadcast 7: Bartiromo interviews Giuliani and Powell

The broadcast: “Sunday Morning Futures” on November 15, 2020.

What they alleged: Election fraud, algorithm flips, Venezuela ties, kickbacks.

Key false quote: “We have sworn witness testimony of why the software was designed. It was designed to rig elections … We have so much evidence, I feel like it’s coming in through a fire hose,” Powell said.

“Wow,” Bartiromo said.

Broadcast 8: Dobbs interviews Powell

The broadcast: “Lou Dobbs Tonight” on November 16, 2020.

What they alleged: Election fraud, algorithm flips, Venezuela ties.

Key false quote: “I’ve just gotten some stunning evidence from a firsthand witness, a high-ranking military officer, who was present when Smartmatic was designed in a way that – and I’m going to just read to you some of these statements, if you don’t mind, so I get them exactly right,” Powell said.

“Sure,” Dobbs said.

Powell continued, “From the affidavit, (Smartmatic was) ‘designed in a way that the system could change the vote of each voter without being detected.’”

Powell also incorrectly claimed that Smartmatic owns Dominion.

Broadcast 9: Dobbs interviews Giuliani

The broadcast: “Lou Dobbs Tonight” on November 18, 2020.

What they alleged: Election fraud, algorithm flips, Venezuela ties.

Key false quote: “But I mean just the mere fact that we have a foreign country, we had this in a foreign country, done by friends of an enemy of the United States, Maduro, is outrageous and has to stop immediately,” Giuliani said.

“It’s outrageous,” Dobbs said.

Broadcast 10: Dobbs interviews Powell

The broadcast: “Lou Dobbs Tonight” on November 19, 2020.

What they alleged: Election fraud, algorithm flips, Venezuela ties.

Key false quote: “Let me put it this way, there are thousands of people in federal prisons on far less evidence of criminal conduct than we have already against the Smartmatic and Dominion Systems companies,” Powell said.

Broadcast 11: Pirro monologue

The broadcast: “Justice with Judge Jeanine” on November 21, 2020.

What they alleged: Election fraud, algorithm flips, Venezuela ties.

Key false quote: “The President’s lawyers alleging a company called Dominion, which they say started in Venezuela with Cuban money, and with the assistance of Smartmatic software, a backdoor is capable of flipping votes,” Pirro said.

Broadcast 12: Dobbs interviews Powell

The broadcast: “Lou Dobbs Tonight” on November 24, 2020.

What they alleged: Election fraud, algorithm flips, Venezuela ties.

Key false quote: “We are just continuing to be inundated by evidence of all the frauds here and every manner and means of fraud you could possibly think of,” Powell said.

“I think many Americans have given no thought to electoral fraud that would be perpetrated through electronic voting; that is, these machines, these electronic voting companies, including Dominion, prominently Dominion, at least in the suspicions of a lot of Americans,” Dobbs said.

Broadcast 13: Dobbs interview with Powell

The broadcast: “Lou Dobbs Tonight” on November 30, 2020.

What they alleged: Election fraud, algorithm flips, kickbacks.

Key false quote: “Different states shaved different amounts of votes, or the system was set up to shave and flip different votes in different states,” Powell said. “Some people were targeted as individual candidates. It’s really the most massive and historical egregious fraud the world has ever seen.”

Broadcast 14: Sean Hannity interviews Powell

The broadcast: “Hannity” on November 30, 2020.

What they alleged: Election fraud and algorithm flips.

Key false quote: “The machine ran an algorithm that shaved votes from Trump and awarded them to Biden,” Powell said. “They used the machines to trash large batches of votes that should have been awarded to President Trump. And they used a machine to inject and add massive quantities of votes for Mr. Biden.”

Broadcast 15: Dobbs interviews Phil Waldron

The broadcast: “Lou Dobbs Tonight” on December 4, 2020.

What they alleged: Election fraud and algorithm flips.

Key false quote: “Dominion Voting Systems, you have described it with algorithms which were designed to be inaccurate rather than to be a secure system,” Dobbs said.

“Give us your sense of who is driving all of this,” Dobbs asked Phil Waldron, a Trump supporter who worked with Powell and others to spread conspiracy theories about the 2020 election.

Broadcast 16: Tweet from Dobbs

The broadcast: Dobbs tweet with embedded document on December 10, 2020.

What they alleged: Election fraud and algorithm flips.

Key false quote: “The 2020 Election is a cyber Pearl Harbor,” Dobbs wrote, embedding a document.

“We have technical presentations that prove there is an embedded controller in every Dominion machine, that allows an election supervisor to move votes from one candidate to another,” the document stated.

Broadcast 17: Dobbs interviews Powell

The broadcast: “Lou Dobbs Tonight” on December 10, 2020.

What they alleged: Election fraud, algorithm flips, Venezuela ties.

Key false quote: “Let me make you an offer, very straightforwardly,” Dobbs said. “We will gladly put forward your evidence that supports your claim that this was a Cyber Pearl Harbor. We have tremendous evidence already … of fraud in this election, but I will be glad to put forward on this broadcast whatever evidence you have, and we’ll be glad to do it immediately.”

Broadcast 18: Tweet from Dobbs

The broadcast: Dobbs tweet with embedded video of Powell interview on December 10, 2020.

What they alleged: Election fraud.

Key false quote: “Cyber Pearl Harbor: @SidneyPowell1 reveals groundbreaking new evidence indicating our Presidential election came under massive cyber-attack orchestrated with the help of Dominion, Smartmatic, and foreign adversaries. #MAGA #AmericaFirst #Dobbs,” Dobbs wrote.

Broadcast 19: Fox interviews Giuliani

The broadcast: “Fox & Friends” with hosts Will Cain, Pete Hegseth and Rachel Campos-Duffy on December 12, 2020.

What they alleged: Election fraud.

Key false quote: “We have a machine, the Dominion machine, that’s as filled with holes as Swiss cheese and was developed to steal elections, and being used in the states that are involved,” Giuliani said.

Broadcast 20: Tucker Carlson interviews Mike Lindell

The broadcast: “Tucker Carlson Tonight” on January 26, 2021.

What they alleged: Election fraud.

Key false quote: “Every outlet in the country, they go, ‘Mike Lindell, there’s no evidence, and he’s making fraudulent statements.’ No. I have the evidence. I dare people to put it on. I dare Dominion to sue me because then it will get out faster. So, this is – you know, they don’t – they don’t want to talk about it,” Lindell said.

“No, they don’t,” Carlson said.

Massive consequences.....

The US economy could depend on McCarthy corralling his extremist Republican troops

Analysis by Stephen Collinson

Millions of Americans could face massive consequences unless Speaker Kevin McCarthy can navigate out of a debt trap he has set for President Joe Biden that is instead threatening to capture his House Republicans.

The California Republican traveled to Wall Street on Monday to deliver a fresh warning that the House GOP majority will refuse to lift a cap on government borrowing unless Biden agrees to spending cuts that would effectively neutralize his domestic agenda and neuter his White House legacy.

McCarthy also assured traders, however, that he would never let the US government default on its obligations – a potential disaster that could halt Social Security payments, trigger a recession and unleash job cuts by the fall in the event that the debt ceiling is not raised.

This is where the risk to Americans comes in. It’s hard to see how a rookie speaker, with a tiny majority and a conference containing plenty of extremists, can engineer either of these outcomes.

Most countries don’t require the legislature to raise the government’s borrowing threshold. But the quirky situation in the US has made a once routine duty an opportunity for political mischief in a polarized age. Since the government spends more than it makes in revenue, it must borrow money to service its debt and pay for spending that Congress has already authorized. It has no problem getting more credit since the US pays its bills and has always had a stellar credit rating, despite one previous downgrade from the threat of default.

At least, that’s the way it has worked until now.

McCarthy beseeched his conference in a closed-door meeting on Tuesday to line up behind a bill that would raise the debt limit for a year but require a flurry of spending concessions from Biden. He styled the measure as an initial way of forcing the president to the negotiating table. But the bill is purely tactical since it’s got no chance of passing the Democratic-led Senate.

But in a sign of how difficult it will be for the speaker to even pull this gambit off, there were signs of internal disagreement on what should be in the package among GOP members.

Rep. Scott Perry, the chairman of the hardline House Freedom Caucus, was frustrated about a lack of specificity in the plan and wanted steeper cuts.

“I don’t know what’s in the package completely. That’s the issue,” Perry told reporters. Some members seem reluctant to commit so far. Conservative Rep. Tim Burchett told CNN’s Manu Raju, “I’m open to it but I’m still a ‘no’ vote.”

It is not unusual for various factions in a congressional majority to haggle over details before a final package is agreed. And House Financial Services Chair Patrick McHenry, a McCarthy ally, was confident the plan would pass the House. “The question is, what does the White House then do once we pass this package? We’ve clearly stated there is no clean debt ceiling that will pass the House,” he added. “So we’ll have the first opening offer here. And we’ll see if the president’s willing to come to the table and negotiate like previous presidents have.”

McHenry’s comment, however, reflected a big flaw in the GOP strategy since it relies on McCarthy’s belief that Biden will have no choice but to come to the table. The White House has insisted the House should do its job and pass a simple bill that only raises the borrowing limit

In effect, McCarthy has already set up a severe test of his leadership since there’s no guarantee that he can pass the measure in a House where he can only lose four votes and in which there are few signs the fractious GOP can agree on what programs to cut and by how much. And even if the measure does squeeze through the House in the coming weeks, it will likely be an idealized Republican product on which Biden and the Democratic Senate will never bite. Any subsequent package that emerged would almost certainly feature concessions that could splinter its GOP support.

Still, the speaker was typically bullish when he predicted Monday he’d have the votes to pass his initial bill.

“I think we got 218 to raise the debt ceiling,” McCarthy told CNN. “We’ve got a lot of consensus within the conference. We’ll get together and work through it.”

His assurances may not be very reassuring, however, because his similarly blithe predictions that he had the votes to win the speakership in January degenerated into a farcical process that saw him make huge concessions to his party’s most radical members and required 15 ballots before he finally won the job of his dreams.

But with the debt ceiling, it will be Americans’ livelihoods and the global economy, rather than McCarthy’s immediate political ambitions, that are on the line.

Republicans are yet to agree on their own demands

So far, Republicans seem to be having trouble negotiating with themselves, let alone Biden. Republican Rep. Dusty Johnson of South Dakota, who is helping to fashion the GOP’s position, said that while the party hopes to pass the initial bill next week, challenges remain.

“I think the hardest part is just that there are an unlimited number of conservative policy victories that, of course, we all want to see worked in,” Johnson told CNN’s Manu Raju. “The reality is that in a negotiation, you never get everything you want. And so I think our biggest issue right now is how do we squeeze these thousands of desires down to a manageable and credible number of asks?”

Another complication is that some members of the Republican conference have said they will never vote to raise the debt ceiling on principle – no matter what. In a powerful Republican majority such holdouts could be ignored. In McCarthy’s narrow majority – secured after a 2022 midterm election that fell short of GOP expectations – they have real leverage. And Democrats have little incentive to help McCarthy out in the event of GOP defections since they’d presumably have to vote for huge cuts that Biden has opposed in any final GOP bill. And the speaker probably couldn’t risk using Democratic votes anyway after agreeing to a rule, as he battled to win his job, that lets any single member call a vote on his ouster.

The coming showdown over the debt ceiling is potentially the defining moment in the two-year period of uneasy cohabitation between the Democratic president and Republican speaker. Neither Biden nor McCarthy can afford to lose, and the outcome will shape both their legacies.

Republicans may have less leverage than they think

There is nothing wrong with Republicans seeking to use the leverage they won in a democratic election to try to further their political goals of cutting public spending. There are some GOP lawmakers who sincerely worry about debt and deficits – even when their party runs government. Plenty of economists worry about the always ballooning national debt, which has crashed through $31 trillion. And Biden’s big spending on Covid relief packages, infrastructure, climate mitigation measures and health care programs triggered a debate on whether he worsened the inflation crisis.

But are Republicans choosing the right hill for this battle when jobs, market-linked pension plans and the economic well-being of millions are at risk? The absolutist nature of McCarthy’s position pays little heed to a delicate balance of power. Democrats control the White House and the Senate, so in handing Republicans the House, albeit barely, voters might have been seeking compromise rather than confrontation.

Republicans are also facing claims of hypocrisy, since they had little problem raising the debt limit when Donald Trump, who rarely worried about making a big spending splash, was president. The 45th commander in chief is also on videotape dating to his White House days saying he couldn’t believe anyone would use the debt ceiling as a “negotiating wedge.” Republicans notoriously turn into fiscal hawks when Democrats are in office but often look the other way when there is one of their own in the Oval Office.

McCarthy needs to reverse the blame equation

In order to prevail in this fight, McCarthy has to somehow change the political dynamic by saddling Biden with the blame for any default and the economic tensions that could begin to unfold even before the country plunges over a fiscal cliff.

He tried to do so on Monday by insisting that the biggest threat to the US economy wasn’t a default but rising national debt.

“Without exaggeration American debt is a ticking time bomb that will detonate unless we take serious responsible action. Yet, how has President Biden reacted to this issue? He has done nothing. So in my view, and I think the rest of America, it’s irresponsible,” he said.

Previous fiscal showdowns between GOP-controlled Congresses and Democratic presidents have often rebounded poorly on Republicans. Presidents Bill Clinton and Barack Obama, for example, branded their foes in the House as economic arsonists and thereby gained political traction.

McCarthy needs to reverse the equation, which is why he’s trying to portray Biden as stubborn in refusing to negotiate concessions for raising the debt ceiling. The two men haven’t met for the last 75 days and the White House is sticking to its position that the place for talks is over a budget – which House Republicans are yet to produce – and not with the full faith and credit of the US government on the line and with America’s reputation as a financial haven at stake.

McCarthy is, therefore, in a bind. Congress, not the president, has the power to raise the government’s borrowing limit. Yet the speaker is demanding Biden give away his store over a duty that only McCarthy and his lawmakers can fulfill. No one would benefit from a default – especially not a president likely heading into a reelection race. But it’s hard to see how McCarthy can emerge from this conundrum as the winner if he triggers an economic meltdown.

The White House twisted that particular knife on Monday.

“There is one responsible solution to the debt limit: addressing it promptly, without brinksmanship or hostage taking – as Republicans did three times in the last administration and as Presidents Trump and Reagan argued for in office,” spokesman Andrew Bates said.

Republicans in the Senate have so far tried to avoid the mess. But Senate Republican leader Mitch McConnell did at least give his colleague in the House some moral support on Monday when he returned to the Capitol after convalescing after a fall.

“President Biden does not get to stick his fingers in his ears and refuse to listen, talk or negotiate. And the American people know that. The White House needs to stop wasting time and start negotiating with the Speaker of the House,” McConnell said, though notably didn’t volunteer to get involved.

McCarthy’s speech on Monday only furthered the impression that a damaging political crisis over the debt ceiling is, after months of simmering, moving toward a boil.

As Senate Democratic Majority Leader Chuck Schumer of New York put it on Monday: “He went all the way to Wall Street and gave us no more details, no more facts, no new information, and I’ll be blunt: If Speaker McCarthy continues in this direction we are headed to default.”

Defamation case

Here's the ruling about Fox's on-air lies it acknowledged after settling defamation case

From CNN's Marshall Cohen

In a statement made Tuesday after Fox News settled the defamation case brought by Dominion Voting Systems, Fox said:

“We acknowledge the Court’s rulings finding certain claims about Dominion to be false.”

So, what did those rulings say?

This is about the topic of falsity. To win a defamation case, you need to prove a few things. Most importantly, you need to prove the statements were false and that they were made with actual malice, otherwise known as a reckless disregard for the truth.

In a major pretrial ruling on March 31, Delaware Superior Court Judge Eric Davis ruled Dominion had successfully proven that all 20 statements mentioned in its lawsuit against Fox were false. 

“Through its extensive proof, Dominion has met its burden of showing there is no genuine issue of material fact as to falsity… The evidence developed in this civil proceeding demonstrates that is CRYSTAL clear that none of the Statements relating to Dominion about the 2020 election are true,” Davis wrote.

Please help the poor white college applicants..........

Affirmative action for white college applicants is still here

Legacy admits, athletic recruits, and the children of donors, faculty members, and VIPs still have a leg up under the Supreme Court’s new ruling.

By Fabiola Cineas

The Supreme Court’s decision to effectively ban the consideration of race in college admissions reversed more than 40 years of precedent. It also left other kinds of admission preferences in place — ones that often benefit white students.

For decades, the Court held that schools could consider race as one of many factors in the holistic review of an applicant, a consideration that could help foster diversity on campus.

The majority opinion laid out how it worked. Harvard’s final stage of deciding to admit or reject students is a step called the “lop,” in which four factors are evaluated: whether an applicant is a legacy, meaning an immediate family member went to Harvard; whether they were recruited as an athlete; whether they are eligible for financial aid; and their race.

Race is now unconstitutional to consider, but other preferences remain.

One study found that these preferences give an edge to white applicants. Among white students admitted to Harvard, 43 percent received a preference for athletics, legacy status, being on the dean’s interest list, or for being the child of a faculty or staff member, and without those advantages, three-quarters would have been rejected.

Many colleges don’t have selective admissions at all. But at those that do, the Supreme Court, in other words, left plenty of discretion for college officials to fill their student bodies with the children of donors or employees, or with lacrosse, tennis, or football players, or with the children of alumni. Only the effort to create a racially diverse student body is now all but banned.

While the Supreme Court left these preferences untouched, the Court’s decision is already renewing the debate over them. “Well before the decision came down there have been conversations about what to do about the legacy boost, for example,” said Adam Nguyen, the founder of Ivy Link, an organization that advises families, who pay at least $150,000 beginning when their child is in middle school, on college admissions. “People have long questioned why legacy even exists. In a democratic society, it seems intrinsically unfair that the children of alumni, generation after generation and by virtue of birth, get that privilege. These conversations are still sensitive but they shouldn’t be happening behind closed doors anymore.”

Legacy status gives students a significant leg up

Legacy students receive a boost during the admissions process because they are a family member of someone who attended the college — in some cases just parents; in others, grandparents, cousins, and even aunts and uncles count, too.

Some schools draw a distinction between primary legacies, whose parents attended as undergraduates, and secondary legacies, a lesser preference for those whose parents attended as graduate students, Nguyen told Vox.

Colleges say they use legacy admissions for a few reasons. One is to bolster their yield rates — the percentage of accepted students who choose to enroll, and a crucial number that admissions offices watch closely. Applying as a legacy student suggests that you’re more likely to attend if you get in.

A bigger reason, though, is alumni engagement and funding. According to schools that consider legacy as a factor during holistic reviews, legacy students are more likely to stay connected to the college over generations and then are hence more likely to donate to the institution later on. (One study suggests the benefits to colleges might be overstated: Looking at data from 1998 to 2008, of the nation’s top 100 schools, “there is no statistically significant evidence of a causal relationship between legacy preference policies and total alumni giving among top universities.”)

Schools that offer legacy preference say it is only one factor in an applicant’s profile. That means that legacy can boost an otherwise strong application, but doesn’t typically have the power to sway admissions officers to move a student from the “no” to “yes” pile on its own.

Still, the difference between admission rates for legacy students and everyone else is striking. The Harvard v. Students for Fair Admissions case brought attention to the fact that between 2010 and 2015, the admission rate for legacy applicants at Harvard was higher than 33 percent, compared to 6 percent for non-legacies. More than 20 percent of white students admitted to Harvard during that period had legacy status.

Of the nation’s top 100 universities in the U.S. News and World Report, about three-quarters use legacy preferences; virtually all of the nation’s top 100 liberal arts colleges do. Georgetown University’s 2024 class of 3,309 admitted applications is 9 percent legacy; Princeton’s 2025 class has 150 legacy students, 10 percent of the class; at Yale, it’s 14 percent. Stanford admitted just 4 percent of applicants to the class of 2023, but 16 percent of those admitted had a legacy background.

Legacy admissions developed in the 1920s to discriminate against Jewish and Catholic applicants and favor Anglo-Protestant dominance. A century later, it still reinforces privilege: Underrepresented students of color make up 12.5 percent of applicants at selective colleges but only 6.7 percent of the legacy applicant pool. One study found that in Harvard’s class of 2019, 70 percent of legacy students were white and 41 percent of legacy admits had parents who earned more than $500,000 per year. At Princeton, 73 percent of legacy students in the class of 2023 are white.

Criticism of legacy admissions is nothing new. But whether the Court, or anyone else, will step in and ban universities from considering legacy status remains to be seen. A number of elite private schools, including Amherst, Johns Hopkins, and Pomona, and public institutions, including the University of Texas and the University of California, have ended legacy admissions preferences in the past few years; some, including MIT, have never used it.

But others have recommitted to legacy preferences. A spokesperson for Princeton told the Wall Street Journal in 2020, in the wake of the college admissions scandal, that “as our student body diversifies, our alumni body diversifies, and, in turn, the children of alumni diversify.”

“Some schools are slicing the data to examine which alumni actually donated and how much they donated, and in some cases choosing not to give boosts to alumni who don’t participate or give back to the school,” Nguyen said.

Legacy admissions have also divided students, including legacies themselves: In 2019, one legacy student at the University of Pennsylvania wrote that she was proud to embrace “her Penn heritage” since “we need legacy admissions” for “potential philanthropy,” brand building, school spirit, and community. Legacy allows families to “gain wealth and prestige,” the student wrote; in response, a legacy student at Princeton — the seventh in her family to attend the institution — argued that “Princeton does not need legacies to maintain its standing” nor should legacy preferences at the institution “increase an applicant’s chances of admission nearly fourfold, from 7 to 30 percent.”

Being an athlete is the strongest admissions preference of all

The recruitment process for athletes at Harvard is well-documented. Student-athletes admitted to Harvard receive “likely letters,” advance notice from team coaches that they likely have a place in the incoming freshman class. Some are recruited as early as sophomore year in high school. Prospective athletes are usually invited to campus during junior year, the fall before they apply to Harvard, to meet with current student-athletes and attend classes and practice. Coaches also write special recommendations for recruits, which the admissions office takes into consideration during the holistic review process, and give advice.

This is typical at selective colleges, and it tends to benefit white students. Excluding football, basketball, and track and field, college athletes are “disproportionately white, wealthy, and suburban.” In 2018, the Atlantic reported that 65 percent of Ivy League athletes and 79 percent of Division III New England Small Collegiate Athletic Conference athletes are white, and that nearly half of Harvard athletes in the class of 2022 come from households with annual incomes above $250,000. Research shows that great access to athletic facilities, recreation centers, and parks increases the likelihood that a student will become a student-athlete.

Critics say that the admissions process benefits students who are already privileged. Recruited athletes tend to have had opportunities that allowed them to hone their skills, like the chance to attend expensive training summer camps or receive private coaching.

Plus, there’s some evidence that recruits are allowed to meet lower standards. In 1985, the Council of Ivy League Presidents made the Academic Index (AI) to compare the academic qualifications of recruited athletes against that of the general student body, taking into consideration class rank, SAT scores, and SAT subject tests. Historically recruited athletes needed only an AI of 171 to be accepted, on a scale of 170 to 240. (It’s now 176.) Although colleges don’t release their academic index for all students, at Harvard, Yale, and Princeton, the most commonly cited number is “around 220,” meaning athletes meet a much lower bar.

The early 2000s book Reclaiming the Game: College Sports and Educational Values found that athletes with below-average standardized test scores were twice as likely to be admitted and four times more likely to be admitted as applicants from underrepresented groups. A study from researchers at Princeton found that the advantage athletes are given is similar to scoring a 1400 versus a 1200 on the SAT.

The most famous athletic admissions scandal of recent years was the Operation Varsity Blues scandal, in which parents bribed coaches to recruit their children as athletes. In some cases, the children did not have a record of ever playing the sport. At Yale, one student’s parents paid a college advisor $1.2 million to get her into the school. The school’s head women’s soccer coach recruited the student for $400,000.

Duke University economist Peter Arcidiacono, who conducted research for the plaintiffs in Students for Fair Admissions, concluded that athletic admissions were more troubling than legacy admissions. “If you eliminate athletic preferences at Harvard, white admission rates go down, Black admission rates stay the same, and Hispanic and Asian rates go up,” he said. “Over 16 percent of white admits are athletes at Harvard, which is significantly higher than for Black students.”

Critics also argue that colleges merely place such an emphasis on athletic recruiting due to the revenue athletics bring in. In 2019, the Ivy League made $30.1 million in football alone. For small schools, research has found that they rely on sports programs to maintain enrollment and avoid being shuttered. At some of these schools, athletes make up more than half the student body.

Supporters say athletic recruitment should not be lumped in with legacy admissions since recruited athletes have earned their place. Supporters argue that the talent, work ethic, and skill of athletes diversify campuses. But critics don’t ignore the reality that there are disparities in access to elite training that make certain sports less diverse when it comes to race or socioeconomic status. “Majority-nonwhite and lower-income communities have fewer recreational centers and sports offerings than white, affluent neighborhoods that apply their greater tax dollars and private funding to offer them. So it’s no surprise that children from wealthier communities play sports more frequently,” researchers wrote. Plus, niche sports, sometimes colloquially called “country club sports” such as fencing, lacrosse, crew, sailing, ice hockey, water polo, and squash cost thousands for any child to play in a given year.

Going forward, the pushback may force schools to recruit for fewer teams. “I don’t think the major sports are going to get impacted. It’s really the niche sports since they give preference to children whose families have resources,” Nguyen said. “A lot of these niche sports may just become club sports.”

The future of admissions for children of donors, celebrities, public figures, and college faculty

Other admissions boosts have come under scrutiny in recent years: bumps for the children of donors, celebrities, and the institution’s employees.

Children of faculty, once called “Fac brats,” at public and private institutions have historically gotten boosts during admissions and even free tuition. Harvard’s then-director of admissions told the New York Times in 2005 that “If all else were equal in terms of excellence, we would certainly tip, we would certainly give the advantage to the faculty child. It’s like what we do with alumni. It might even be a bigger tip.”

A report from the Chronicle of Higher Education that same year found that more than two-thirds of the country’s top colleges and universities surveyed gave “extra admissions consideration” and tuition discounts or waivers for children of employees. Colleges have defended this practice by saying it allows them to recruit high-quality faculty and improve employee retention.

In a 2003 Wall Street Journal article Daniel Golden, now a ProPublica editor, noted that in addition to giving preference to the children of alumni, colleges were starting to bend admissions standards “to make space for children from rich or influential families that lack longstanding ties to the institutions.” According to the articles, schools, through referrals or by word of mouth, would identify students from well-to-do families and solicit their families for donations once the student was enrolled.

At the time, the director of development at Duke told the Wall Street Journal that they don’t trade admissions for a donation. But the Journal found that Duke relaxed its admissions standards in those years to admit about 100 to 125 students each year who had been waitlisted or tentatively rejected but came from wealthy families.

While many of these investigations are now decades old, the practice appears to have continued: In 2022, Duke was sued along with 15 other elite private institutions for “maintaining admissions systems that favor the children of wealthy past or potential future donors.”

Jared Kushner, the former senior advisor to former President Trump, is a famous case. The 2006 book The Price of Admission (written by Golden) revealed that he won admission to Harvard in 1999 after his real estate developer father Charles Kushner pledged $2.5 million to the institution in 1998. Kushner’s parents were subsequently named to the school’s Committee on University Resources, its biggest panel of donors.

In 2018, amid the first iteration of the Harvard affirmative-action case, a dean of admissions’ emails with school fundraisers were made public. In the emails, the dean suggested that the fundraiser give special consideration to offspring of big donors or those who had “already committed to a building” or have “an art collection which could conceivably come our way.”

Schools have defended development preferences by saying that development cases bring in money that supports all other students. One analysis of donor giving found that some donations were given with the hope that their child would be admitted.

The affirmative action case also shed light on Harvard’s “dean’s interest list” — students whose parents or relatives have donated to Harvard. Another email that came out of the trial showed the dean of the Kennedy School celebrating the admissions dean for admitting applicants whose families committed funding for buildings and fellowships before their child was even admitted. The trial also revealed a case in which an applicant’s rating on the dean’s list was low because the development office didn’t see a “significant opportunity for further major gifts.”

Also at play are admissions boosts for the children of VIPs. “VIPs, you’re talking maybe the president of China or prime minister XYZ. Their children actually get preferences, believe it or not. Maybe it’s believable but they do and people don’t talk about it,” said Nguyen. “And often, when they get to campus, they attend under pseudonyms or use aliases so you don’t know who they are.” The college admissions scandal revealed that USC officials tagged certain students as “VIP” or “special interest” based on donations and family connections.

But in the end, these admissions preferences remain perfectly legal. It’s only considering race in admissions that is all but banned.

Monstrous arrogance

The monstrous arrogance of the Supreme Court’s affirmative action decision

What America will lose, now that affirmative action is effectively gone.

By Ian Millhiser

The Supreme Court’s much-anticipated affirmative action decision Thursday does not explicitly overrule the Court’s previous decisions permitting race-conscious university admissions, but it will almost certainly have the same effect as a total ban.

And that will “impair the military’s ability to maintain diverse leadership, and thereby seriously undermine its institutional legitimacy and operational effectiveness.”

Those are not my words. That’s the view that a long list of former generals, admirals, and other senior national security officials laid out in a brief they filed when the case, Students for Fair Admissions v. President and Fellows of Harvard College, was being considered. That brief urged the justices not to end affirmative action in university admissions. And they are hardly the only ones to offer such a warning.

Despite those warnings, six justices decided Thursday to effectively end race-conscious university admissions in a pair of cases considering Harvard and the University of North Carolina’s affirmative action programs.

The Court’s decision is somewhat confusing, because it purports to simply apply past decisions that permitted some affirmative action programs, rather than explicitly overruling them. But the practical effect of the Harvard decision is that it bans the very kind of affirmative action that the Court has endorsed in the past.

Chief Justice John Roberts’s opinion for the Court’s six Republican appointees faults the two universities for having affirmative action programs that “lack sufficiently focused and measurable objectives warranting the use of race.” But there’s an obvious reason why they do not. The Court’s previous decisions permitted some limited forms of affirmative action, but they explicitly ban racial quotas and other mathematical formulas that could allow universities to determine whether they are achieving “focused and measurable objectives warranting the use of race.”

The Harvard case, in other words, is rooted in a Catch-22. Universities may neither have mathematically precise programs that violate the Court’s earlier decisions, nor may they have the more vaguely defined programs that the Court prohibits in its newest decision.

I wish that the Court had shown more humility instead.

That’s because the military leaders’ views are shared by an equally long list of America’s largest employers — a list that includes companies as diverse as Apple, Levi Strauss, Northrop Grumman, Starbucks, and United Airlines — all of whom warn that American business will be less dominant because of the Supreme Court’s decision in Students for Fair Admissions.

To appeal to diverse markets, the business brief argues, major employers need “university admissions programs that lead to graduates educated in racially and ethnically diverse environments.” “Only in this way,” their brief emphasizes, “can America produce a pipeline of highly qualified future workers and business leaders prepared to meet the needs of the modern economy and workforce.”

And then there’s the medical profession’s brief. This brief, filed on behalf of a wide range of medical organizations including the American Medical Association itself, argues that “an overwhelming body of scientific research compiled over decades confirms” that “diversity literally saves lives by ensuring that the Nation’s increasingly diverse population will be served by healthcare professionals competent to meet its needs.”

Because of the Supreme Court’s decision in Harvard, the medical profession warned the justices, more people will die who otherwise would have lived.

The Supreme Court, or rather the six justices appointed by Republican presidents, decided on Thursday to ignore the combined wisdom of many of the military’s seniormost former leaders, the shared wisdom of dozens of America’s greatest businesses, and the combined insights of the medical profession — not to mention the views of two of America’s greatest universities, both of which believed that students who are educated on more diverse campuses receive an inherently superior education that better prepares them for careers in business, medicine, the military, or elsewhere.

Policymakers of all kinds have struggled since the Civil War with how to implement the 14th Amendment’s promise that no one shall be denied “the equal protection of the laws.” And, while it is certainly the job of the Supreme Court to interpret the Constitution, past justices have historically tempered their personal views about how to read constitutional safeguards against race discrimination with the expertise of senior military leaders, business titans, university officials, and others who’ve studied the benefits of racial diversity far more closely than a judge ever could.

And yet today, six lawyers with little specialized expertise in business, education administration, national defense, or medicine, declared that they have found the answer to America’s longstanding questions about race and diversity — and that they know more than individuals and institutions with far greater expertise than someone who spends their days reading documents in a marble palace could ever have.

The Court’s decision is rooted in a Catch-22

To understand why the Harvard decision is likely to eviscerate affirmative action in universities across the country, it’s helpful to understand how the Court treated affirmative action in the past.

Early affirmative action programs, such as the one the Court invalidated in Regents of the University of California v. Bakke (1978), often used explicit racial quotas to increase the number of nonwhite students on campus. Bakke, for example, struck down a medical school admissions program that set aside 16 of the 100 seats in the incoming class for racially “disadvantaged” students.

But the Court believed that these sorts of quotas are unlawful, with Justice Lewis Powell faulting such a quota system because “white applicants could compete only for 84 seats in the entering class, rather than the 100 open to minority applicants.” While Bakke permits race to be a vague “plus” factor that can give an applicant of color an edge over a similarly qualified white applicant, Bakke ruled that every seat at a school must, at least in theory, be open to a white person.

The Court expanded on this holding in Gratz v. Bollinger (2003), which struck down an admissions program that awarded applicants “in an underrepresented racial or ethnic minority group” 20 points on a 150-point scale that the University of Michigan used to select its incoming freshman class. The Court forbade this kind of mathematically precise method of lifting up applicants of color, ruling that affirmative action programs must involve a vaguer process that provides more “individualized consideration” of whether each applicant to a university should be admitted.

On the same day that the Court decided Gratz, however, it also handed down a decision in Grutter v. Bollinger (2003), which upheld the affirmative action program at the University of Michigan’s law school. Unlike the points system invalidated in Gratz, the law school engaged in “a highly individualized, holistic review of each applicant’s file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment.”

This meant that, when trying to decide between two well-qualified applicants, Michigan’s law school would sometimes use race as a kind of tie-breaker if one of the applicants would add greater racial diversity to the campus. But the law school also gave such a boost to students who “have lived or traveled widely abroad, are fluent in several languages, have overcome personal adversity and family hardship, have exceptional records of extensive community service, and have had successful careers in other fields.”

One thing that should be clear from decisions like Bakke and Grutter is that the only kind of affirmative action programs that are allowed are ones that operate somewhat ambiguously, and that often have vaguely defined goals. Precisely defined advantages for applicants of color, the kind that would allow universities to mathematically measure their progress towards a preset diversity goal, are forbidden.

But Roberts writes in Harvard that Harvard and UNC’s admissions programs, which are modeled after the kind of ambiguous programs endorsed by Grutter and Bakke, “lack sufficiently focused and measurable objectives warranting the use of race.” He also faults the schools for saying that their affirmative action programs will achieve goals such as “training future leaders in the public and private sectors” or “enhancing appreciation, respect, and empathy, cross-racial understanding, and breaking down stereotypes.”

These sorts of goals, he writes, cannot justify an affirmative action program because “it is unclear how courts are supposed to measure any of these goals.” How, for example, “is a court to know whether leaders have been adequately ‘train[ed]?’”

Of course, it’s entirely possible to design affirmative action programs that do have clear and measurable goals. Harvard could have determined, for example, that its goal is to ensure that 15 percent of every graduating class is Black.

But such a clearly measurable goal — the kind that Roberts demands in his Harvard opinion — would violate Bakke.

What this decision means for universities moving forward

The Court’s decision doesn’t simply prohibit the one kind of affirmative action program that the justices have historically allowed; it also raises a cloud of uncertainty over how, exactly, universities are supposed to run their admissions programs without being sued.

Roberts writes, for example, that a university may consider “an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise,” when deciding whom to admit. But, in the very next line of his opinion, he writes that “universities may not simply establish through application essays or other means the regime we hold unlawful today.”

This appears to be an attempt to cut off a scenario where a university admits Black or Latino students in order to increase diversity on campus, then justifies those admissions decisions by pointing to applicant essays where the student wrote beautifully about their experience growing up as a person of color.

But, as Justice Amy Coney Barrett warned at oral argument in the Harvard case, it is “slicing the salami very finely” to say that a university cannot give a slight preference to a student who checks a box on their application identifying themselves as Latino, but that the university can give a preference to the same student if they write an essay expressing pride in their Mexican American culture.

Roberts’s opinion potentially subjects universities to lawsuits they cannot realistically defend against. How is a university that does admit a Mexican American student on the strength of such an essay supposed to prove in court that it did so because of the student’s eloquence, and not because of their race?

Similarly, conservative litigants are already challenging programs such as former Texas Gov. George W. Bush’s “top 10 percent” plan, which seeks to integrate universities by admitting the top graduates of racially segregated public schools. It is unclear whether this Court will uphold such programs, which historically have been celebrated by Republicans.

The bottom line, in other words, is that many universities will have to change their admissions programs to remove their current race-conscious policies. And even when they do, there will likely be many more lawsuits challenging university admissions programs in this very conservative Court.

Affirmative action survived as long as it did because of conservatives who understood the value of humility

The best way to understand the Harvard decision is as the product of a Court that is extremely confident in its own policy judgments, certain about the righteousness of conservative values, and increasingly willing to impose its views on the nation.

But it wasn’t always this way. Past justices, even some who held very conservative views on race, understood that institutions other than the Supreme Court may have greater insight into how to answer the difficult questions presented by affirmative action programs, such as: When it is acceptable to draw racial distinctions if doing so will benefit society as whole?

Take Lewis Powell: He was a preeminent lawyer in Richmond, Virginia — the onetime capital of the Confederacy — before he joined the Supreme Court in 1972. He was also one of the central figures in Richmond’s response to the Court’s school desegregation decision in Brown v. Board of Education (1954), as he chaired the city’s school board when that decision was handed down.

Powell’s response to Brown was relatively moderate — for a wealthy white Southern man living in the Confederate capital in the 1950s. He said he “disagreed completely with the massive resistance policy” because he “thought it would destroy the public schools.” But he also pushed for a kind of token integrationism that seemed designed more to prevent federal court intervention than to actually achieve integration.

As law professor Anders Walker described Powell’s response to Brown, by the time the future justice stepped down as school board chair in 1960, “he had helped steer Richmond away from massive resistance, rewritten local policy to comply with the Supreme Court, and preserved segregation virtually intact: only 2 of 23,000 black children in Richmond attending school with whites.”

So, when the Supreme Court took up its first challenge to affirmative action in Bakke, Powell might have seemed like an unlikely ally of universities hoping to diversify their campuses. Yet, while Powell’s opinion in Bakke did place strict limits on such universities, he hesitated before striking down affirmative action altogether.

“It is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation,” Powell wrote in Bakke, quoting from a 1957 opinion. And his opinion ultimately concluded that universities “must be accorded the right to select those students who will contribute the most to the ‘robust exchange of ideas.’”

Powell, in other words, recognized that institutions that are specifically in the business of building student bodies where every student can learn from each others’ experiences, and where this kind of diversity would foster a more “robust exchange of ideas,” probably have greater expertise on how to achieve this goal than a panel of nine lawyers in black robes. And so he chose humility over his personal, very conservative views on race.

The courts, Powell concluded, must allow a university some amount of leeway “to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.’”

This deference to expert institutions was more explicit in Justice Sandra Day O’Connor’s opinion in Grutter, which reaffirmed Powell’s conclusion that universities may take some limited account of race when deciding who to admit. The Court’s decision in Grutter, O’Connor wrote, “is in keeping with our tradition of giving a degree of deference to a university’s academic decisions, within constitutionally prescribed limits.”

Like Powell, O’Connor was an unlikely champion for even a limited form of affirmative action. A Reagan appointee to the Supreme Court, O’Connor was a longtime Republican who served as state Senate majority leader in Barry Goldwater’s Arizona.

But her opinion in Grutter, even more than Powell’s opinion in Bakke, emphasized that judges should be very cautious about second-guessing institutions with considerably more expertise than a lawyer with a fancy job.

But Roberts compares this kind of judicial humility to “abandonment or abdication of judicial review.” And his biggest break with O’Connor is that he deems all racial classifications of any kind to be equally harmful. “Eliminating racial discrimination means eliminating all of it,” he writes at one point in his opinion — after writing several pages where he analogizes affirmative action to the kind of public school segregation that was struck down in Brown. Indeed, Roberts roots his opinion in Brown’s foundational moral conclusion: “Separate cannot be equal.”

But affirmative action is the opposite of segregation. The entire point of Harvard and UNC’s admissions programs is that they want white students to attend class alongside students of all races, and that they believed that some degree of affirmative action was necessary to achieve this goal.

Meanwhile, a long list of American leaders shared their view that more diverse campuses benefit society as a whole in a way that racial segregation never can. Generals and admirals warned that less diverse campuses mean a less secure nation. Medical experts warned that the conclusion Roberts reached in Harvard will lead to unnecessary deaths.

Perhaps it will turn out that the six Republican lawyers behind this Harvard decision are correct.

But the Supreme Court is taking one hell of a gamble by assuming that it knows better than leaders and institutions with considerably more knowledge and expertise than any of the justices themselves. I wish the six justices in the Harvard majority had at least considered the possibility that they might be wrong, and that justices like Powell and O’Connor were wise to listen to people who knew more than they did.

Decades-long conservative crusade to upend affirmative action

SCOTUS OKs Affirmative Action—if It Helps Black Americans Get in “the Bunker, Not the Boardroom”

Justice Ketanji Brown Jackson’s dissent says it all.

NIA T. EVANS

On Thursday morning, the decades-long conservative crusade to upend affirmative action proved successful. In a 6-3 decision, the Supreme Court ruled against the use of race-conscious admissions, finding such programs at the University of North Carolina and Harvard University to be in violation of 14th Amendment’s equal protection clause.

In the majority opinion, Chief Justice Roberts railed against UNC and Harvard for conducting programs that “unavoidably employ race in a negative manner” and “involve racial stereotyping.” But he carved out a notable exception: military schools. In the case of military academies, Roberts seemed convinced by an amicus brief submitted by prominent military officials in August 2022 that viewed race-based admissions as furthering “compelling interests at our Nation’s military academies.” Roberts granted their request in a footnote, writing, “This opinion does not address the issue, in light of the potentially distinct interests that military academies may present.”

Associate Justice Ketanji Brown Jackson had some thoughts on this rationalization. Joined in a dissent by Justices Elena Kagan and Sonia Sotomayor, she writes:

The Court has come to rest on the bottom-line conclusion that racial diversity in higher education is only worth potentially preserving insofar as it might be needed to prepare Black Americans and other underrepresented minorities for success in the bunker, not the boardroom (a particularly awkward place to land, in light of the history the majority opts to ignore).

We have now entered an era in which race is only a legally permissible college admissions factor within the context of military recruitment. Black people can be considered Black when schools are preparing them for war—just not to study, say, chemistry. 

Defamation Suit

Trump’s New Defamation Suit Against E. Jean Carroll Is a Silencing Tactic

Pulled straight from the playbook of accused abusers.

MADISON PAULY

Advice columnist E. Jean Carroll’s yearslong court battle to hold the man who sexually abused her legally accountable has been extraordinary in many ways. First, because that abuser is former President Donald Trump, who used all the power of his office, from the Secret Service to the Department of Justice, in various attempts to shrug off Carroll’s claim that he attacked her in a department store dressing room in the mid-90s and then defamed her by calling her a liar. Second, it’s unusual because the vast majority of survivors of sexual assault never report the violence they experience, much less trudge for years through a legal process that is famously hostile and marginalizing. And third, because Carroll won a civil case against Trump this May—becoming the only one, out of at least 26 women who have publicly accused him of sexual misconduct, to succeed in holding him liable for it. 

But there’s one way in which Carroll’s case is not extraordinary: Her abuser is suing her for defamation. On Tuesday, Trump filed a counter-claim against Carroll, arguing that she smeared him when she went on TV after winning her sexual assault lawsuit and said that he had raped her. 

Carroll is not alone in facing this kind of legal retaliation. In the years since the MeToo movement’s peak, individuals accused of sexual abuse and harassment have increasingly filed defamation lawsuits against the people who speak out against them. As I reported back in 2020, such lawsuits are seen by the accused as a way to clear their name, but they can also be used to punish survivors for breaking their silence.

The televised megatrial between actors Johnny Depp and Amber Heard last year was a high-profile example, but such cases also involve the non-famous. In my review of these lawsuits, some of the plaintiffs included an acroyoga instructor, an airport maintenance chief, a massage therapist, and a bar owner. One man whom prosecutors charged with sexually assaulting a woman in South Carolina filed a defamation lawsuit against her while his criminal case was still ongoing. The problem is especially acute for student survivors in both high school and college, who are commonly threatened with a defamation lawsuits after reporting sexual assault to school authorities; examples of these cases predate the MeToo era. As Maha Ibrahim, an attorney at Equal Rights Advocates, told me last year, “We represent the ordinary folks, and now they’re the ones getting threatened all the time.”

The consequence, Ibrahim said, is a chilling effect on survivors—even in the post-MeToo era: “It’s going to be so expensive and so traumatic to defend yourself, and it’s going to distract so much…that the tables are going to be completely turned. It’s not illogical for survivors to pause and say, ‘Is it worth it to come forward?’”

In Carroll’s case, Trump’s suit is a clear attempt to stop her from saying the word “rape.” It centers on the particulars of the jury’s verdict in the May case, in which jurors found him liable for sexual abuse, but not for rape. As my colleague Russ Choma, who attended the trial, explained in May: 

While jurors didn’t find Trump liable for raping Carroll, the verdict was largely a vindication of her story. The jury had three options to choose from if they believed Trump committed battery: They could have found that Trump had raped her; that he had sexually abused her; or that he had forcibly touched her. By choosing the second option, the jurors apparently indicated they believed the bulk of Carroll’s story—that Trump pounced on her, threw her against the wall of a dressing room, forcibly kissed her, and shoved his hand up her dress and grabbed her genitals. Carroll said that Trump had also inserted his penis, but the jury evidently did not believe that Carroll’s attorneys had proved that allegation.

Of course, not being held liable for sexual violence isn’t the same as being exonerated of it. And laws drawing lines between different forms of sexual assault—such as what counts as “sexual abuse” as opposed to “rape”—are complicated and anatomically specific, though they all describe serious violations. Peer-reviewed research has found that such labels often don’t match the words survivors use to describe their own experiences. Carroll, for her part, has celebrated the jury’s verdict as a success. And when asked on CNN about what went through her mind when she learned the jury wasn’t holding Trump liable for rape, she answered, “Well, I just immediately say in my own head, ‘Oh yes you did, Oh yes you did.'” 

Trump’s countersuit will play out alongside an older lawsuit Carroll filed against him when he was still president. That case is scheduled to go to trial in January, and it assesses whether the former president defamed Carroll when responding to her rape allegation. 

The verdict against Trump in May was the result of a different case Carroll filed late last year, under a brand new New York state law that gives some survivors a temporary opportunity to sue people who sexually assaulted them. Under this law, Carroll could sue Trump directly for battery, even though the events in question happened decades ago. 

So now Trump is suing Carroll for having the temerity to answer a question about her own experience listening to a verdict in a sexual assault trial that he lost, and for otherwise saying in public that he raped her. In a statement to reporters, Carroll’s lawyer, Rebecca Kaplan, said that Trump’s defamation lawsuit against Carroll “argues, contrary to both logic and fact, that he was exonerated by a jury that found that he sexually abused E. Jean Carroll by forcibly inserting his fingers into her vagina.”

“Trump’s filing is thus nothing more than his latest effort to delay accountability for what a jury has already found to be his defamation of E. Jean Carroll,” Kaplan said. “But whether he likes it or not, that accountability is coming very soon.”

Allows Discrimination

The Supreme Court Allows Discrimination Against LGBTQ People

After 20 years of expanding gay rights, the justices swing back.

PEMA LEVY

The Supreme Court on Friday allowed certain businesses to discriminate against LGBTQ people, creating a large loophole in federal and state civil rights laws that have protected Americans for decades. Justice Neil Gorsuch authored the opinion for the court’s conservative justices, who made up the 6 vote majority. The court’s three Democratic-appointed justices dissented.

The case, 303 Creative v. Elenis, was brought by a web designer who wants to create wedding websites for opposite-sex couples but not for same-sex couples—a form of economic discrimination that harkens back to the era before the civil rights movement. But under Colorado’s public accommodations law, services offered to some people must be offered to all. Today, the Republican-appointed justices rolled back the clock and once again opened the marketplace to discrimination.

For “the first time in its history [the Court finds] a constitutional right to refuse to serve members of a protected class.”

The court ruled that the web designer’s work is a form of artistic expression and that forcing her to create a website for a same-sex wedding is compelling speech in violation of her First Amendment rights. The ruling thus draws a huge loophole in civil rights law for businesses who claim that their product is a form of speech. It creates a new reality for LGBTQ people, who can now face discrimination from businesses that refuse to serve them because of who they are. In some areas of the country, this might make it difficult to procure certain goods and services. But throughout the nation, it creates the impression that LGBTQ people are second-class citizens who do not have the same freedoms as everyone else. The decision green lights signs—either in brick and mortar stores or on websites—that announce businesses will not serve LGBTQ people the same way they once told Black people and Jews not to enter, in what amounts to a form of public shaming.

Moreover, the ruling comes, as Justice Sonia Sotomayor wrote in dissent, at a time when around “the country, there has been a backlash to the movement for liberty and equality for gender and sexual minorities.” This includes bans of drag show and violence directed toward them, another way in which the economic activity of transgender people is being shunned. “Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class,” she added. 

The ruling doesn’t necessarily stop at LGBTQ discrimination. It opens the door for discrimination against people based on their race, religion, sex, national origin, and disability. Drawing a line between free speech for people with anti-LGBTQ views and for those who oppose interracial marriage, interfaith marriage, or simply any activity by people of a disfavored group is likely to be impossible. This came up repeatedly during oral arguments, during which Justice Ketanji Brown Jackson asked whether a photographer offering nostalgic photoshoots with Santa could restrict his service to white children to preserve a vintage vibe the photographer might aim to capture. The lawyer for the web designer, Kristen Waggoner, conceded not only that his discrimination might be allowed, but also that Supreme Court itself would be forced to draw such lines. During the hearing, Justice Sonia Sotomayor similarly wondered whether a web designer with eugenicist views could refuse to make a disabled couple’s a wedding website.

Waggoner is president of the Christian conservative group Alliance Defending Freedom, which is representing the designer and other similar business owners around the country as part of a nationwide litigation strategy to allow anti-LGBTQ discrimination. 

For two decades, the Supreme Court had repeatedly sided with LGBTQ people against laws that persecute them or restrict their freedoms. In 2003, the court struck down a criminal ban on sexual intimacy between people of the same sex in the landmark case Lawrence v. Texas. In 2015, the court established a constitutional right to same-sex marriage. And in 2020, the justices extended the employee protections in the 1964 Civil Rights Act to LGBTQ people. Now, the court’s Trump-stocked conservative bloc enjoys a 6-3 majority, and their decision today represents a stark reversal of that trend.

Some Americans may think of the era of open economic discrimination as a relic of the past. Black people traveling before and during the civil rights movement relied on the so-called Green Book to find accommodations in the Jim Crow south. The era, and that practice, is considered so bygone that Hollywood recently turned it into a feel-good movie.

Only the justices can say how far back they intend to go with today’s decision. But the majority’s opinion has opened the door to a kind of economic discrimination the country hasn’t seen in more than half a century, where people seeking goods and services have no recourse for being turned away because of who they are.