ON MONDAY, the US Supreme Court ruled against the National Collegiate Athletic Association in the Alston vs. NCAA case about limitations on compensation for student-athletes.
In an opinion written by Justice Neil Gorsuch, the Supreme Court unanimously upheld a lower court’s ruling, saying the NCAA can no longer ban colleges from providing student-athletes with education-related benefits.
“By permitting colleges and universities to offer enhanced education-related benefits, its decision may encourage scholastic achievement and allow student-athletes a measure of compensation more consistent with the value they bring to their schools,” the decision read. “The national debate about amateurism in college sports is important. But our task as appellate judges is not to resolve it. Nor could we. Our task is simply to review the district court judgment through the appropriate lens of antitrust law.”
The benefits include computers, paid internships, tutoring, study abroad programs, musical instruments, etc.
The case was led by former West Virginia University football player Shawne Alston and former University of California women’s basketball player Justine Hartman.
The court found the limits violated “anti-trust principles,” with Justice Brett Kavanaugh writing in a concurring opinion that the NCAA’s business model would be “flatly illegal in almost any other industry in America.”
The case was brought by former Division I men’s and women’s college athletes, who had accused the NCAA of violating anti-trust laws through its eligibility rules regarding compensation for student-athletes.
The NCAA previously had a $5,000 cap on what schools could provide above and beyond free tuition, room, and board, but now all schools can and likely offer more educational resources to their athletes.
One of the most significant education-related benefits that lawmakers and activists, including senator Cory Booker and ESPN college sports analyst Rod Gilmore, have been pushing for is unlimited tuition money for student-athletes that extends past their athletic eligibility.
Previous NCAA policy forbade universities from offering further scholarships to college athletes once their eligibility to play a sport ended, which resulted in lower graduation rates among athletes than the average student body at most universities.
The Supreme Court’s decision now opens the door for other anti-trust lawsuits that former and current athletes may choose to file against the NCAA for capping their education-related benefits. That would also include paying student-athletes.
Black college football players, in particular, could have the makings for a class-action lawsuit, as graduation rates among that group have steadily declined to record-low numbers over the past three years, according to the Institute for Diversity and Ethics in Sports.
The US Supreme Court unanimously ruled on Thursday in favor of a Catholic child welfare organization, saying the charity has a right to decline to place foster children with same-sex couples.
Catholic Social Services sued the City of Philadelphia after it informed private agencies that provided foster care services that it would not refer children to the agencies unless they agreed to nondiscrimination requirements.
Catholic Social Services argued that it had the right to opt-out of the nondiscrimination requirement, citing the First Amendment.
The Supreme Court ruled 9-0 that Philadelphia cannot force the charity to work with same-sex couples, saying the rule violated their First Amendment rights.
The case marks a major win for religious groups in a case that pitted religious freedom against the rights of LGBTQ citizens.
This is a developing story. Please check back for updates.
Progressives have mounted a pressure campaign to get Supreme Court Justice Stephen Breyer off the bench while the Senate is still under Democratic control, which would clear the way for President Joe Biden to appoint his successor.
Eighteen legal academics endorsed an ad set to run in the New York Times on Friday, urging the 82-year-old Breyer to step down to avoid a possible scenario in which Republicans win the Senate in 2022 and block future judicial nominees put forth by Biden.
“It is time for Supreme Court Justice Stephen Breyer to announce his intent to retire,” reads the letter, signed by scholars at Harvard Law School, Yale Law School, the University of California-Berkeley School of Law, among others. “Breyer is a remarkable jurist, but with future control of a closely divided Senate uncertain, it is best for the country that President Biden have the opportunity to nominate a successor without delay.”
The news site Politico ran a full-page ad signed by more than a dozen major advocacy groups on Wednesday, which likewise called on Breyer to retire. Demand Justice, Women’s March, Black Lives Matter, Working Families Party and Sunrise Movement were among the 13 progressive organizations that signed on to the statement, first reported by The Huffington Post.
“If Breyer were replaced by an additional ultra-conservative justice, an even further-right Supreme Court would leave our democracy and the rights of marginalized communities at even greater risk,” the groups said in the ad.
“For the good of the country, now is the time to step aside,” the ad concludes.
Renewed calls for Breyer’s retirement come in response to Senate Minority Leader Mitch McConnell shutting down hopes for Biden to fill a potential Supreme Court vacancy if Republicans regain the Senate next year. In an interview with conservative radio host Hugh Hewitt on Monday, the GOP leader said it is “highly unlikely” that he would allow Biden to confirm a justice should a court seat open up under his Senate majority leadership.
Alarmed by that possibility, progressives are demanding that Breyer, the oldest Supreme Court justice, leave the bench.
“Anyone who still doubted that Stephen Breyer not retiring could end in disaster should pay attention to Mitch McConnell’s recent comments,” Demand Justice Executive Director Brian Fallon said in a statement. “If Republicans regain control of the Senate before Breyer’s replacement is confirmed, the Court’s legitimacy and our democracy will be at even greater risk.”
McConnell’s blocking of Garland: ‘The single most consequential thing I’ve done’
After Justice Antonin Scalia died in February 2016, McConnell famously blocked then-President Barack Obama’s pick to replace him, Merrick Garland.
The top Republican denied Garland a hearing or vote for his confirmation, leaving the seat empty until President Donald Trump won the 2016 election and took office. As Senate majority leader, McConnell advanced Trump’s nominee, Neil Gorsuch, to the Supreme Court in April 2017 – more than a year after the vacancy opened up.
The move sparked outrage among Democrats, yet McConnell has lauded the effort as “the single most consequential thing I’ve done in my time as majority leader of the Senate.”
Under Trump, McConnell ushered in two more Supreme Court justices, Brett Kavanaugh and Amy Coney Barrett, cementing a 6-3 conservative majority on the bench. The newly appointed justices replaced retired Justice Anthony Kennedy and the late Justice Ruth Bader Ginsburg, respectively.
McConnell is now signaling that if the GOP takes back the Senate next year and he once again becomes majority leader in 2023, he would rely on the same tactic to prevent a Biden nominee for the Supreme Court from moving forward.
“McConnell isn’t just saying the quiet part out loud – he’s shouting it in the face of Justice Breyer and Congressional Democrats and daring them to do something about it,” Aaron Belkin, director of Take Back the Court, another progressive group that endorsed the ad, said in a statement to Insider.
“At this point Democrats only have two choices: expand the Court or accept that Republicans will get to make the rules in perpetuity no matter how unpopular they are,” he added.
Breyer isn’t commenting publicly
Since Biden was sworn in and Democrats won the Senate in January, progressives have called for Breyer’s retirement to ensure that a new liberal justice will sit on the bench for decades to come.
Appointed by President Bill Clinton in 1994, Breyer has served for 27 years on the nation’s highest court. The current Supreme Court term ends in just a few weeks but Breyer has not yet publicly weighed in on his retirement.
Recently, he stressed the importance of having an independent judiciary, potentially suggesting that he won’t make a decision based on politics.
“My experience of more than 30 years as a judge … has shown me that once men and women take the judicial oath – they take that oath to heart,” Breyer said during a virtual lecture in April at Harvard Law School. “They are loyal to the rule of law, not to the political party that helped to secure their appointment.”
“It is wrong to think of the court as just another political institution and it is doubly wrong to think of its members as junior league politicians,” he continued.
Some left-leaning congressional Democrats have also expressed their support for Breyer’s retirement in recent days. Rep. Alexandria Ocasio-Cortez of New York on Sunday told CNN that she agreed with fellow New York Rep. Mondaire Jones, who said Breyer should leave at the end of the court’s term.
“It is good to see even more progressive leaders step forward to say that Breyer needs to step down now to protect his legacy,” Fallon, the executive director of Demand Justice, said in a statement.
Biden also faces pressure to fill a Supreme Court seat of his choice, previously promising on the campaign trail to put the first Black woman on the bench during his tenure. Yet White house press secretary Jen Psaki told reporters in April that the president would not push Breyer to announce his retirement.
“He believes that’s a decision Justice Breyer will make when he decides it’s time to no longer serve on the Supreme Court,” she said.
Progressives argue that another conservative justice on the court would tilt its ideological balance even further to the right and bring decades of jurisprudence that may threaten their priorities, which include universal health care, voting rights, LGTBQ+ protections, and other issues.
“Leaving this Supreme Court seat up to Democrats’ chances in 2022 is dangerous and would threaten the lives of women, immigrants, a stable climate and the future of our generation,” Sunrise Movement said in a statement to Insider.
The current right wing majority reviewing the case was appointed by presidents who came to power without the popular vote. John Roberts and Samuel Alito were appointed in George W. Bush’s second term, but of course he won his first term in a disputed electoral squeaker while losing the national popular vote. Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett were appointed by Donald Trump, a significantly bigger loser when it comes to the national vote.
So five of the six conservatives who make up the 6 to 3 majority were appointed by presidents without majority support. And all of Trump’s appointees brought controversy: Gorsuch and Barrett through the twisted logic of the Republican Senate to ensure their appointments, and Kavanaugh under a cloud of sexual misconduct allegations.
So when the Republican Senate smashed all semblance of norms by holding up a Democratic Supreme Court appointee to jam through Gorsuch – and then jammed through Barrett with the opposite narrative, the question became how would Democrats respond. One highly discussed idea was that the party should add seats to the Supreme Court if they came to power in 2021, a concept called court packing. Well now we’re here, and the Democrats have the chance to give America a Supreme Court that represents America.
To pack or not to pack
Chief Justice Roberts has tried in some cases to steer a moderate course for the Supreme Court – despite its heavily conservative lean – in order to keep it out of political and media crosshairs. As a result, there have been some surprises over the past year where one or more conservative Justices joined the liberal wing on a major decision, including an extension of the 1964 Civil Rights Act to protect LGBTQ employees and a decision to uphold DACA.
Roberts knows that history has its eyes on him, but his work will be 20% harder with the Republican majority going from 5 to 4 to 6 to 3. If Barrett turns out to be as reactionary as Thomas and Alito, Roberts’ desire to stay above politics becomes irrelevant.
Combine that with the Republican Senate’s 2016 zig and 2020 zag on filling Supreme Court vacancies during an election year, and the idea of packing the Supreme Court has taken on new urgency.
There are a number of different ideas for reforming the Court beyond packing. One proposal suggests limiting terms to 18 years. Another proposes more regular appointments, with each President appointing a Justice in the first and third year of each term. President Biden has also called for a bipartisan commission to look at these and other possible reforms to the Court.
Substantively, drawing on one or more of these ideas to change how and when Justices are appointed can counter the Republicans’ naked power grab and put the makeup of the Court more in line with the American majority. But politically, making any changes to the court is a tough sell for the Democrats.
From a procedural perspective, adding judges to the Court is well within Congress’ power. The Constitution does not set a number for Supreme Court Justices but gives Congress the power to determine how many sit on the bench.
The current makeup of the Supreme Court with nine Justices only began in 1869. Before then, the number fluctuated, with the original number in 1789 set at six, followed by changes down to five in 1801, up to seven in 1807, nine in 1839, and briefly ten during the Civil War, then back down to seven in 1866 until it landed on nine in 1869. Changing the makeup is surprisingly easy. Legislation to do so would need to pass both the US House of Representatives and Senate with simple majorities and then get the president’s signature.
But the length of the current make up means every American knows only a Supreme Court with nine Justices – with many likely not realizing that change is doable – makes the Democrats’ narrative that much harder. It would be easy for the Republicans to put the Democrats on defense on this issue, and it would distract from the many other agenda items that President Biden wants to accomplish.
So if packing is too high a bar, there are other tactics the Dems can employ. The last two Democratic presidents had Supreme Court picks in their first year in office. If history holds, Justice Stephen Breyer will step down and make way for a new appointee.
As a rule, the Republicans have been much better than the Democrats at appointing younger Justices to the Court, as well as throughout the federal judiciary. The average age of Trump’s appellate judge appointees, for example, was 47 – five years younger than Obama’s – and 76 of the youngest 100 federal appellate judges have been appointed by Republican presidents.
Two of the Republican Justices – Thomas and Barrett – were in their 40’s when they were confirmed. If he gets vacancies, President Biden needs to pick someone in their 40’s who can have a long life of influence on the Court.
In the past 52 years, there have only been four Justices appointed by Democratic Presidents. During that same period, there have been 16 Justices appointed by Republicans. Liberal Court members William Brennan and Thurgood Marshall both retired when George HW Bush was president, changing the balance and sway of the court to this day.
Democrats need to ensure that their Justices retire when they have the power to replace them. If they don’t take control of their fate, the Republicans will control it for them, as we saw with the replacement of Justice Ruth Ginsburg.
Democrats also should not hesitate to condemn the Supreme Court when it makes decisions that are out of step with the mainstream. They should be strong and remind Americans that this Supreme Court did not come to power via majority rule and does not adjudicate the will of the majority. If they start to play the long game that Republicans have played for a half century, the Democrats can begin to ensure that our nation’s highest court reflects our highest values.