The Supreme Court’s conservative supermajority hung together and flexed its muscle to give the right a series of big political wins, but the story of this term is not quite as partisan as its final week would indicate. Photo by Jimmy Woo/Unsplash

SUPREME COURT

Gay Rights, Federal Elections, and the Rest of the Supreme Court’s Historic Term

Rulings on affirmative action and student loans got the most attention, but two others had insights into a transformative, society-rattling court term, say BU LAW’s Robert Tsai and Linda McClain

The Supreme Court ended its 2023 term with a series of 6-3 decisions that felled like dominoes critical tenets of affirmative action, gay rights, and student-loan debt forgiveness. But while the court’s conservative supermajority flexed its muscle to give Republicans a series of big political wins, the story of this term is not quite as partisan as its final week would indicate. 

More than once, the court’s three liberal justices found themselves in the majority. In Moore v. Harper, the court voted 6-3 to reject the most extreme reading of a legal theory that would’ve given state legislatures almost unchecked power to regulate federal elections. A 5-4 decision in Allen v. Milligan reaffirmed the landmark Voting Rights Act, finding that Alabama lawmakers had diluted the power of Black voters in the state by drawing an illegal, racially gerrymandered congressional map. And in a 7-2 decision in Haaland v. Brackeen, the court upheld the Indian Child Welfare Act of 1978. 

According to some legal analysts, these milder opinions—all of them coming before the court’s blockbuster final week—might be read as something of an olive branch from Chief Justice John Roberts, who is concerned that his court be perceived as impartial, and as one with integrity. 

But he cannot, and he does not, always serve as a source of moderation on the court, says Boston University School of Law Professor Robert Tsai. 

“Whenever the other five conservative justices can hang together, Roberts becomes a bit superfluous,” says Tsai, who teaches courses on constitutional law. In those instances, he explains, Roberts can wrest back some power by staying with the majority and thereby assuring that he, as the most senior member of the majority group, gets to assign who writes the prevailing opinion. 

Justices Clarence Thomas and Samuel Alito “are willing to be the most strident on social issues,” Tsai says. Roberts can maintain some modicum of judicial restraint by keeping the majority opinions out of their hands. 

And unlike the stunning Dobbs decision in 2022 (one that Alito wrote)—which overturned half a century of abortion rights established by Roe v. Wade—the decisions this term might be characterized by their steady chipping away at long-established civil liberties, rather than outright upheaval, Tsai says. 

“The decisions this term probably have not been as hugely important to the major movements pushing issues on either side,” he says. 

BU Today previously covered two of this term’s biggest decisions, concerning affirmative action in college admissions and the state of student-loan debt forgiveness. Here, Tsai and BU LAW Professor Linda McClain explain two more society-shifting decisions. 

Gay rights

In a blow to the rights of LGBTQ+ people in the United States, the Supreme Court sided with a website designer who said she had a First Amendment right to refuse to create wedding websites for same-sex couples. 

The 6-3 ruling (split along ideological lines) in 303 Creative LLC vs. Elenis was one of the last decisions handed down by the high court this term, and it doesn’t give state legislatures “any clear guidance on how broad this is—on what is permitted creative expression and what is not,” says McClain, the Robert Kent Professor of Law at the School of Law. 

The case involved Colorado web designer Lorie Smith, who said she wants to expand her business to include wedding websites. While she has created websites for LGBTQ clients, Smith opposes same-sex marriage on religious grounds, so she wants to create wedding websites for only opposite-sex weddings—and she wants to add a note to her website explaining as much. Smith sued before she started making wedding websites for fear that she would run afoul of the Colorado Anti-Discrimination Act, or CADA, that prohibits businesses that are open to the public from discriminating on the basis of numerous characteristics, including sexual orientation.

Framing it as an issue of free speech, Justice Neil Gorsuch wrote in the majority opinion that Colorado cannot “force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance.” 

In a searing dissent joined by the court’s liberal justices, Justice Sonia Sotomayor called the decision “a sad day in American constitutional law and in the lives of LGBTQ people.”

Gorsuch relied heavily on a famous 1943 case called West Virginia State Board of Education v. Barnette for his reasoning. In that case, the high court held that public schools couldn’t compel students to salute the flag when they have a deeply held religious belief that runs counter to it. Lawyers for Lorie Smith compared her situation to that of public school children who were Jehovah’s Witnesses. 

And Gorsuch, in echoing that comparison for the court, takes a striking stance, McClain says. “The court has squarely embraced an analogy that other state and federal courts had rejected: that is, to compare a business owner involved in a business open to the public to school children being forced to recite a pledge to the flag.” 

It’s a troubling comparison, McClain says. “With repeated references to Colorado forcing Lorie Smith to speak its message, to convey its views, to eliminate her speech, suddenly offering a service in the marketplace has been turned into a speech act that’s somehow being compelled.” 

Federal elections

In another major case, the Supreme Court ruled that although the Constitution gives state legislatures power to regulate federal elections, state courts can step in to ensure such regulation doesn’t violate existing fair-election laws. 

The 6-3 ruling—which saw three of the Supreme Court’s conservative justices joining their more liberal colleagues—rejected the most extreme interpretation of a legal theory known as the “independent state legislature theory.” ISLT, as it’s commonly called, asserts that state lawmakers, and only state lawmakers, make the rules for how to carry out federal elections in their states. 

The most broadly constructed application of the theory would have given state legislatures almost unchecked power to set rules for elections and to draw wildly gerrymandered congressional maps.

“When the Supreme Court took this case, the worry was that it would validate that extreme theory,” says Tsai. “In the end, the justices didn’t accept the most extreme version of the ISLT and they retained what is otherwise a straightforward principle: that the federal constitution is superior to state constitutions.” 

Still, the ruling leaves open other, slightly less extreme, interpretations of the legal theory, Tsai says, and “punts down the road” other questions about election laws and partisan gerrymandering that will undoubtedly play out in the courts in years to come.