This story originally appeared in Salon July 3, 2023
https://www.salon.com/2023/07/03/fraud-justice-anti-lgbtq-decision-based-on-a-fake-case-showcases-the-illegitimacy/?utm_source=pocket_saves

COMMENTARY

Fraud "justice": Anti-LGBTQ decision based on a fake case showcases the Supreme Court's illegitimacy

Far-right lawyers created a phony "victim" in made-up case — and the justice with the stolen seat wrote the opinion

Amanda Marcotte
Senior Writer    July 3, 2023 5:59AM (EDT)

For a brief moment this summer, after the Supreme Court declined to overthrow democracy and invite Donald Trump to steal the 2024 election, there was a surge of hope that the six justices appointed by Republican presidents were starting to dial back their radicalism in the face of the massive public backlash. For years, the Supreme Court has enjoyed a measure of undeserved goodwill from the public, mostly because people don't pay close attention and assume the court is still in the business of upholding human rights instead of decimating them.

After the Supreme Court overturned Roe v. Wade last year, however, voters started to wake up to the fact that a well-funded right-wing movement, led by the Federalist Society, had stacked the court with a bunch of hacks who care little for law or precedent. Added to the pile were well-publicized stories highlighting the corruption of justices like Clarence Thomas and Samuel Alito, who shamelessly enjoy free vacations funded by right-wing billionaires. The result is that only 31% of voters approve of the Supreme Court, according to an NBC News poll, which is down from 44% in January 2021. 

Well, any hope that the court has moderated itself was dashed late last week, with a series of decisions that weren't just awful but involved the conservative justices thumbing their noses at any law, precedent, or even facts that got between them and their preferred far-right policies.

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On Thursday, the court overruled 50 years of precedent to decide that affirmative action in college admissions is illegal. 

“The Court’s recharacterization of Brown is nothing but revisionist history and an affront to the legendary life of Justice Marshall, a great jurist who was a champion of true equal opportunity-not rhetorical flourishes about color blindness.”
- Justice Sotomayor No truer words. pic.twitter.com/E2Ggtc2VY6

— Janai Nelson (@JNelsonLDF) June 30, 2023

On Friday, the court doubled down its attacks on equal education by ruling against President Joe Biden's student loan forgiveness program. As Justice Elena Kagan wrote in her dissent, "the court today exceeds its proper, limited role in our nation's governance," by simply ignoring a law passed by Congress because conservatives don't like it. 

But for the case that most exquisitely illustrates the illegitimacy of the current iteration of the Supreme Court, we should turn to 303 Creative LLC v. Elenis. This case is a straight-up fraud from every angle and had no business even being before the Supreme Court. To begin with, it's a redux of a 2018 case, Masterpiece Cakeshop vs. Colorado, which addressed a baker who violated Colorado's ban on anti-LGBTQ discrimination by refusing to bake a cake for a same-sex wedding. The case was brought by the Alliance Defending Freedom (ADF), a right-wing group demanding that Christians have the privilege to opt out of anti-discrimination laws. ADF lost its case. 

That should have been the end of it, but ADF wanted another bite at the apple. Not because any facts or laws had changed, but because the make-up of the court had, due to Donald Trump getting two more nominees, Brett Kavanaugh and Amy Coney Barrett, on the bench. 

But what makes this clown show even worse is that the complaint at the heart of 303 Creative v. Elenis is completely made up. In Masterpiece, there really was a baker who really did discriminate against a gay couple, creating both standing and a fact pattern to discuss in court. With 303 Creative, however, the "facts" justifying the case are all make-believe. The plaintiff, Lorie Smith, sued on the grounds that she doesn't want to make wedding websites for same-sex couples. But no one had actually requested that she do so, for one simple reason: She didn't make wedding websites. Her lawsuit was purely hypothetical. Legally, she shouldn't have had a right to sue at all. 

To get around the fact that their client had no right to sue, ADF claimed she had received an inquiry from a man named "Stewart" who had some vague questions about maybe hiring 303 Creative in the future for a wedding to "Mike." But it appears that the entire story may be fabricated. Melissa Gira Grant of the New Republic contacted Stewart, using the email and phone number included in the lawsuit. He denies having sent that request, pointing out that he is already married, to a woman. 

"The initial lawsuit did not mention the 'Stewart' inquiry, which was submitted to Smith's website on September 21, according to the date-stamp shown in later court filings, indicating that she received it the day after the suit was originally filed," Grant writes. What a remarkable coincidence! How fortunate that this alleged request came in right as ADF needed to shore up their dubious claim that their plaintiff had any business in court at all. 

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So what gives? It's unlikely that ADF was having trouble finding Christian business owners unwilling to discriminate against gay couples in the real world. Assholes are a dime a dozen, after all. But it is worth pointing out that Masterpiece Cakeshop wasn't just a legal loss for ADF, but bad public relations, as well. By adopting a real case, they put human faces on the issue, both in terms of the baker Jack Phillips and the couple he refused service to, Charlie Craig and David Mullins. The public could see that the real victims here were Craig and Mullins, two perfectly nice guys who got a faceful of hate when they were innocently shopping for a wedding cake. Phillips, however, came across as a jerk. 

With 303 Creative, however, the crime is hypothetical. There are no actual victims to feel sorry for. Granted, any video of Smith erases all doubt that the woman is a smug and despicable Karen, unsurprisingly.

“Today's decision affirmed that states like Colorado cannot eliminate beliefs they dislike from the public square.”

— Attorney Kristen Waggoner praises the Supreme Court ruling in favor her client Lorie Smith, a Christian web designer who opposed working on same-sex weddings pic.twitter.com/Rq4HgV7wYs

— The Recount (@therecount) June 30, 2023

Still, without a real gay couple to talk to reporters, it allowed ADF to present an entirely one-sided narrative. Bigotry is less upsetting to people when it's abstract.

But it also should have meant that the court rejected her case out of hand since it's built on a sandcastle of lies. As Vox's legal expert Ian Millhiser wrote, "federal courts, including the Supreme Court, do not have jurisdiction to decide hypothetical cases." That they didn't is yet another sign of how much this isn't just a Republican court, but a MAGA one, only too happy to adopt Donald Trump's tactic of using "alternative facts" to bolster their case when the actual facts won't do it. 

In her dissent, Justice Sonia Sotomayor draws attention to this shadiness, by pointing out the many real world examples of what happens when discrimination against LGBTQ people is legal. It's a reminder this isn't an abstract issue about "religious belief," but a serious threat to the wellbeing of real people. 

Justice Sotomayor, dissenting: "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. ... Our Constitution contains no right to refuse service to a disfavored group." pic.twitter.com/kav5qWcku3

— Mark Joseph Stern (@mjs_DC) June 30, 2023

It's fitting that the author of the shameful opinion is Justice Neil Gorsuch, who is only on the court because Republicans literally stole his seat for him. By all rights, that seat should belong to Merrick Garland, who is currently the attorney general, because he was nominated in 2016 by President Barack Obama. But then-Senate Majority Leader Mitch McConnell, R-Ky., illegally refused his duty to hold hearings for Garland. Instead, he held the seat open, in direct violation of the Constitution, until Donald Trump got into office and placed Gorsuch there instead.

This isn't even the first opinion Gorsuch has written based on made-up "facts." Last term, Gorsuch ruled in favor of a football coach who wanted to lead prayers at a public high school, in direct violation of the First Amendment. To get to the desired outcome, both Gorsuch flat-out lied about the situation. Gorsuch claims the coach merely "offered his prayers quietly while his students were otherwise occupied." That, and this cannot be stated firmly enough, is a lie. As Sotomayor noted in her dissent, the coach actually held showy prayers at the 50-yard line during games. He made such a spectacle that "[m]embers of the public rushed the field to join Kennedy, jumping fences to access the field and knocking over student band members." She even included helpful pictures, which is unusual in a dissent, to illustrate what a lying liar Gorsuch is. 

This would embarrass people capable of shame https://t.co/zwtm10KVKD

— Scott Lemieux (@LemieuxLGM) June 27, 2022

Many of this term's Supreme Court decisions are indefensible when it comes to law and precedent. 303 Creative takes it to the next level, however, being a fake case that was decided by a fraudulent judge. The Supreme Court, in its current iteration, is illegitimate. What that means politically is hard to say, though ideally, it would open the door to court reform that would restore both sanity to the decisions and credibility to the court. But with Republicans controlling the House of Representatives, any such reform is a pipe dream. The current situation, with a court that has no right to do what it is doing, is untenable. They've forsaken their legitimacy, and hopefully, that means soon Americans will get fed up enough to strip them of their power. 

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