The Supreme Court’s lack of candor

At the very least, we should expect that the Supreme Court will be candid about what it is deciding. If it is overruling a prior decision, it should say so. Yet, in the term that ended on June 30, the Court clearly overruled precedents without saying so. The only explanation seems to be that the justices did not want to give the media a sound bite which could be easily quoted that it had again overruled long-standing prior decisions. But this is hardly an adequate justification for its lack of candor.

This lack of candor was evident in two of the most important decisions of the term, one involving the Constitution and the other a federal statute. In Students for Fair Admission v. President and Fellows of Harvard College, the Court effectively overruled 45 years of precedents and ended affirmative action by colleges and universities.

The Court first considered the issue of affirmative action in Regents of the University of California v. Bakke in 1978. Justice Powell, in a pivotal opinion, said that colleges and universities have a compelling interest in having a diverse student body and may use race as one factor among many in admissions decisions. The Supreme Court returned to the issue of affirmative action in higher education a quarter century later. In Grutter v. Bollinger (2003), with Justice Sandra Day O’Connor writing for the majority, the Court upheld the University of Michigan Law School’s affirmative action program. The Court echoed Justice Powell: colleges and universities have a compelling interest in creating a diverse student body and that they may use race as one factor, among many, to benefit minorities and enhance diversity. The Court said that the “benefits [of diversity] are substantial” and diversity “promotes cross-racial understanding, helps to break down racial stereotypes, and enables students to better understand persons of different races.” In Fisher v. University of Texas at Austin, in 2016, the Court reaffirmed these holdings.

There is no doubt in anyone’s mind that the Court, in its decision on June 29, 2023, overruled these decisions. The Court did not dispute that the affirmative action programs of Harvard College and the University of North Carolina were consistent with what the justices had approved in Bakke, Grutter, and Fisher. Nonetheless, the Court declared that their programs must “be invalidated under the Equal Protection Clause of the Fourteenth Amendment.” The prior cases held that diversity in higher education is a compelling interest; Chief Justice Roberts’ majority opinion in the Harvard College case came to the opposite conclusion. The prior decisions stressed the need for judicial deference to the judgment of college and university administrators; Chief Justice Roberts’ majority opinion rejected such deference.

All of the concurring and dissenting opinions treated the Court’s decision as overruling Bakke, Grutter, and Fisher. But nowhere in Chief Justice Roberts’ opinion does he say that. At best, this is disingenuous as to the law and as to what the Court was doing.

The same lack of candor was evident in a case involving an important federal statute: Title VII of the Civil Rights Act of 1964. Title VII of the 1964 Civil Rights Act prohibits employment discrimination based on race, sex, or religion. With regard to religion, it creates liability for employers “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges [of] employment, because of such individual’s ... religion.” The Equal Employment Opportunity Commission interpreted this to mean that employers must make “reasonable accommodations to the religious needs of employees” so long as doing so does not create an “undue hardship on the conduct of the employer’s business. The crucial questions then are what constitutes “reasonable accommodations” and what is an “undue hardship.”

In Trans World Airlines, Inc. v. Hardison, in 1977, the Supreme Court articulated the standard for determining this. It said that employers do not have to bear more than a “de minimis cost” to accommodate employees’ religious practices. In other words, if it is more than a minimal cost to the employer, its failure to provide an accommodation does not violate Title VII.

In Groff v. DeJoy, also decided on June 29, 2023, the Court rejected this standard and adopted a new one, which is much more protective of employees’ religious freedom. Gerald Groff works for the United States Postal Service. He is an Evangelical Christian who says that his religion requires that he use his Sunday Sabbath for worship and rest. After USPS entered into an agreement with Amazon to do Sunday deliveries, a work schedule was developed for workers. Groff was among those who was told that he would need to work on Sundays on a rotating basis.

USPS found others to work on Sundays instead of Groff, but “Groff continued to receive “progressive discipline” for failing to work on Sundays.” In January 2019, he resigned and then sued USPS under Title VII. The lower courts ruled against Groff, using the standard from TWA v. Hardison and concluded that accommodating Groff’s religious beliefs would impose more than a minimal burden on USPS.

The Supreme Court in a unanimous decision reversed the lower courts. Justice Alito wrote for the Court. The Court clearly rejected the standard that had been followed since 1977: “We hold that showing ‘more than a de minimis cost,’ as that phrase is used in common parlance, does not suffice to establish ‘undue hardship’ under Title VII.”

The Court then adopted a new legal standard. The Court declared: “We think it is enough to say that an employer must show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business. … [C]ourts must apply the test in a manner that takes into account all relevant factors in the case at hand, including the particular accommodations at issue and their practical impact in light of the nature, ‘size and operating cost of [an] employer.’”

The Court unquestionably overruled a 46 year old precedent and adopted a new standard, but the Court never said that this is what it was doing and implied that its ruling was consistent with the prior decision. Perhaps this is because the Court frequently has said that stare decisis deserves great weight in statutory matters because if Congress does not like the Court’s interpretation of a law, then Congress can change the statute. Congress has had almost a half century to revise Title VII to overrule the Court’s holding in TWA v. Hardison. In fact, in 1991, Congress passed a civil rights statute to override several Court decisions interpreting Title VII, but it left TWA v. Hardison unchanged.

The point is a simple one: if the Court is going to overrule a precedent, it should say so. Its failure to do this causes confusion and seems to be about a desire to hide what it is doing. The intense criticism a year ago of the Court explicitly saying that it was overruling Roe v. Wade may be why this year it overruled precedents without saying so. But that is intellectually dishonest and indefensible.