Opinion | The 2023 SCOTUS Awards

The headlines that emerged from the 2022-2023 term of the Supreme Court conveyed the brutal impact of several big decisions, but they sometimes missed the human elements that made these opinions so startling — how the conservative majority favored one oppressed group but not another, or imposed conflicting rules on who can bring a case. As depressing as the outcomes often were, these tortuous paths of jurisprudence were often absurd. A closer look at the opinions helps illustrate how legal decision-making is often deeply entwined with the justices’ deeply held passions and religious beliefs, their occasionally tense relationships with their colleagues and their personality quirks. Here are a few mostly tin medals for the outstanding lowlights (and a few highlights) of the year.

Most compassionate opinion correcting a historical American injustice:

Justice Neil Gorsuch’s concurring opinion in Haaland v. Brackeen upholding the Indian Child Welfare Act, a federal law intended to prevent the forcible adoption of Native American children by nonnative families.

Justice Gorsuch, by far the most eloquent and knowledgeable member of the court on the subject of Native American rights, describes in horrific detail the racism that brutalized tribal children for decades in the 19th and 20th centuries, and the removal of those children from their families that continued until the 1970s. Only the assertion of federal power through the child welfare act ended most of these abuses.

“Often, Native American Tribes have come to this Court seeking justice only to leave with bowed heads and empty hands,” he wrote. “But that is not because this Court has no justice to offer them. Our Constitution reserves for the Tribes a place — an enduring place — in the structure of American life.” In enacting the Indian Child Welfare Act, he said, “Congress exercised that lawful authority to secure the right of Indian parents to raise their families as they please; the right of Indian children to grow in their culture; and the right of Indian communities to resist fading into the twilight of history.”

Least compassionate opinion furthering a historical American injustice:

Justice Gorsuch’s majority opinion in 303 Creative LLC v. Elenis allowing some businesses to refuse service to L.G.B.T.Q. people if they claim it interferes with their free-speech rights.

Throughout the ruling, Justice Gorsuch adopts the elaborate pantomime that homophobic discrimination is just a misguided belief that is nonetheless protected by the First Amendment, ignoring the practical and emotional effect on those on the receiving end of the bigotry.

“Of course, abiding the Constitution’s commitment to the freedom of speech means all of us will encounter ideas we consider ‘unattractive,’ ‘misguided, or even hurtful,’” he wrote. “But tolerance, not coercion, is our nation’s answer.”

That’s nonsense, as Justice Sonia Sotomayor wrote in a passionate dissent, and no more tolerable than earlier claims for a philosophical or religious reason to discriminate against women or African Americans. The act of discrimination is very different from anyone’s personal belief, and has no free-speech protection. “That is wrong. Profoundly wrong,” she wrote. “Our Constitution contains no right to refuse service to a disfavored group.”

Biggest disappointment in a case that should never have been a case:

The process by which the court took the 303 Creative case, purportedly about a business that provides wedding-related services but didn’t want to build websites for same-sex weddings.

The court really contorted its precedents and protocols to reach this 6-to-3 ruling. The business had never rejected a gay couple’s request for a website and so had never suffered any damage from a Colorado anti-discrimination law. It hadn’t even sold a wedding website to anyone. That should have meant that the business didn’t have standing to sue.

But the majority decided that because the business was “worried” that it might be penalized if it ever decided not to sell a site to a gay couple, the court had to step in and protect the business from this theoretical harm.

In the words of Colorado’s attorney general, Phil Weiser, “this is a made-up case,” and the whole thing was concocted and shepherded along by the Alliance Defending Freedom, a right-wing Christian legal group, as a test case.

Second biggest case that shouldn’t have been a case:

The 6-to-3 decision in Biden v. Nebraska, which blocked the administration’s forgiveness of student loans.

Six red states sued the administration, mostly because they disagreed with the policy, but they had a hard time proving they were injured by it, which is required to demonstrate standing to sue. Stretching far to turn this into a case, the court’s six conservatives seized on Missouri’s argument, which claimed that the Missouri Higher Education Loan Authority — a public corporation independent of state government — would lose money from all the canceled loans. Justice Kagan ridiculed this theory in her dissent, pointing out that the authority could have sued, but it didn’t, and that Missouri itself suffered no harm.

“Is there a person in America who thinks Missouri is here because it is worried about MOHELA’s loss of loan-servicing fees?” she wrote. “I would like to meet him.” Missouri sued because it didn’t like what President Biden did, she said, and by allowing that, the court “blows through a constitutional guardrail intended to keep courts acting like courts.” She also noted that the majority relied on its “made-up major questions doctrine,” which she described as a way for the court to substitute its beliefs on big policy issues for those of Congress and the executive branch.

Biggest reprieve on an issue that should never have been an issue:

The 6-to-3 decision in Moore v. Harper that demolished the independent state legislature theory.

This was the deranged theory that gained popularity with Donald Trump die-hards following the 2020 election, asserting that state legislatures are the ultimate authority on federal elections and districting in their states, and cannot be overruled by state courts that cite state constitutional violations. The majority, led by Chief Justice John Roberts, said the doctrine was a fundamentally incorrect reading of the Constitution.

It’s hard to give credit to the court for a ruling so obvious that the case should never have been heard, but it was useful to get it on paper in a definitive way. And with this court, you never know. Justice Gorsuch and Justice Clarence Thomas, in a dissent, supported a version of the theory.

Decision that will have the biggest impact on the next election:

The surprise ruling in Allen v. Milligan upholding a key portion of the Voting Rights Act that prohibits congressional district maps that dilute minority voting strength.

The 5-to-4 decision allowing race to play a part in redistricting, written by Chief Justice Roberts, was unexpected because the chief justice of the United States has been so adamant that racial preferences of all kinds be eliminated. (See his ruling in the affirmative action case this year, and his landmark dismantling of another section of the Voting Rights Act a decade ago.) But in this case, he and the majority said Alabama had gone too far in eliminating a district that had been dominated by Black voters, and agreed with a lower court finding that “Alabama’s extensive history of repugnant racial and voting-related discrimination is undeniable.”

The ruling means there’s a good chance that five mostly white Republican districts in the South will have to be redrawn to become mostly Black Democratic districts, and that could affect the balance of power in the House.

Most sputtering cry of disillusionment:

Justice Thomas’s dissent in the voting rights case.

He clearly thought he was on the verge of converting the court’s majority to his long-held view that the Constitution and federal law should be seen as colorblind, and that race should play no part in decisions like redistricting. And when he failed to do so in this single case, he expressed outrage, saying the decision was “radically inconsistent” with the Constitution and repeatedly citing his earlier writings on the subject as proof. He even castigated Justice Brett Kavanaugh by name for voting to “sustain a system of institutionalized racial discrimination in districting.”

But Justice Thomas knows the racial districting issue isn’t over, and with persistence he might yet win over Chief Justice Roberts or Justice Kavanaugh to his side.

Greatest lack of self-awareness:

Chief Justice Roberts’s defense of the court’s integrity in the student loans case.

“It has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary,” Justice Roberts wrote, referring to strong dissents by the liberal minority on the court. “We do not mistake this plainly heartfelt disagreement for disparagement. It is important that the public not be misled either. Any such misperception would be harmful to this institution and our country.”

In fact, those dissents were unquestionably disparaging what the court has become since Mr. Trump cemented its hard-right majority in place. As the court’s three liberals have repeatedly noted, it is a court that upends precedents like abortion rights and affirmative action simply because it has the votes to do so; that guarantees religious rights primarily for evangelical Christians; that creates fake doctrines to justify its crackdown on actions by the federal government with which it disagrees. Chief Justice Roberts may not like it when his liberal colleagues on the court call out the majority for these excesses, but the smiley-face sticker he placed on that decision can’t cover up the true nature of the new Roberts court.

Most snarly dissent:

Justice Samuel Alito’s refusal to concur with the court’s entirely routine decision to temporarily block a lower-court ruling that would pull mifepristone, an abortion pill, off the market.

Unlike the chief justice, who tries to pretend there is no worrisome gulf growing among the court’s members, Justice Alito did his best in this short comment to widen that gulf. He noted, with elaborate detail, the various times when his liberal colleagues, and even the conservative Justice Amy Coney Barrett, had “lambasted” court rulings that occurred without oral arguments, sometimes known as the “shadow docket.”

“I did not agree with these criticisms at the time,” Justice Alito wrote, “but if they were warranted in the cases in which they were made, they are emphatically true here.” He wrote as if he had triumphantly discovered hypocrisy going on among his colleagues, though he might as well have been describing his own.

It was an entirely unnecessary and contemptuous rhetorical flourish, designed to belittle his colleagues’ concerns and demonstrating how much comity has eroded in recent years. The majority’s stay was unsurprising given the unreasonable nature of the lower court’s ruling, and Justice Alito enhanced his reputation as a hothead with an additional line suggesting that the Food and Drug Administration could not be trusted to obey a court order with which it disagreed.

Most revisionist historical reference:

Justice Roberts’s description of the Civil War during oral arguments in Students for Fair Admissions v. Harvard, which ended racial consideration in affirmative action admissions policies for colleges and universities.

After a lawyer for Harvard said that students were sometimes admitted for racial reasons and sometimes for other aspects of their background, such as whether they could play the oboe, Justice Roberts came up with an odd retort. “We did not fight a Civil War about oboe players,” he said. “We did fight a Civil War to eliminate racial discrimination, and that’s why it’s a matter of considerable concern.”

The chief was right if he were suggesting that musical talent wasn’t at the same level as a racial history of discrimination, but his characterization of the war’s purpose was jarringly wrong. African Americans weren’t merely “discriminated against” before the 13th Amendment; they were largely enslaved, and eliminating that bondage was at the heart of the war. After the war, national leaders who tried to repair the country were explicit in granting special privileges to former slaves. If Chief Justice Roberts believes the war was fought to eliminate any racial distinctions or preferences, he has done very little reading of the period’s history.

Scariest upcoming case:

The court has agreed to hear a case that would gut the power of federal agencies to regulate business, a long-running project of the right-wing movement that helped place so many current justices on the court. A favorable ruling would make it easier for businesses to challenge regulations on clean air and water, food and automobile safety, and consumer protections. But that’s only one fairly predictable outcome. As this court has repeatedly shown, there’s no limit to its ability to astonish the nation by going beyond our ordinary fears.