Faux diversity, real grift
**Non-Opinion Opinion Watch **
The Supreme Court released its opinion in a highly anticipated case about whether a group could become the nation’s first religious charter school. Unfortunately, the case ended with a whimper, not a bang: Justice Barrett recused herself, leaving an equally divided 4-4 court to affirm the decision below and keeping the school out of business. Nothing says jurisprudence like “meh.”
Concurrence Watch
The Kousisis opinion came out. This was the case involving…paint. And bridges. And a fraud scheme that will make critics of government inefficiency want to pull their hair out. The outcome was as expected—the government won—but the real fireworks came from Justice Thomas’s concurrence, which took aim at the racial preferences built into federal contracting programs.
In short, the Pennsylvania Department of Transportation (PennDOT) hired a company to paint a few Philadelphia bridges as part of a bridge restoration project. Because federal funds were involved, the contract required the company to utilize a “disadvantaged business enterprise,” or DBE, for part of the work. Instead of actually using a DBE, the company had its paint supplier simply funnel invoices through a pass-through DBE, which did nothing and yet tacked on an additional fee. Faux diversity, real grift. Your tax dollars at work.
Later, the government charged the company and its owner (Kousisis) with federal wire fraud. But Kousisis argued that the fraud statute doesn’t cover situations where the victim didn’t lose money. That is, the government got its painted bridge, so it didn’t suffer any financial loss.
Oral argument was fascinating. The justices asked a series of hypotheticals about how much a fraudster could wrong a person without being liable for fraud.
Justice Barrett asked about a person who contracts for a portrait of their uncle but gets a more valuable painting of Grover Cleveland. No financial injury, so no fraud?
Justice Thomas asked about a contractor who gets hired to build a patio after lying about donating a patio each month to veterans—but then builds a perfectly adequate patio.
Justice Kagan asked about a person who contracts for gold but gets a huge pile of (more valuable) coal instead.
Chief Justice Roberts asked about a contract that requires everything to be printed on 8.5″ x 11″ paper. If a party prints just three of the pages on different-sized paper, is that fraud?
And Justice Gorsuch asked about wanting a very specific horse named Charley, even though there are a dozen other horses in the corral that are just as good. (Charley even made it into the opinion. A star is born.)
The Court unanimously sided with the government, holding that you don’t need to show actual financial loss, just a scheme to obtain property or money. But it added a limiter: The misrepresentation must be material.
Enter Justice Thomas, who wrote separately to say that while Kousisis hadn’t challenged the materiality of the DBE requirement, maybe he should have. After noting that Kousisis was sentenced to six years in prison for flouting a diversity requirement, he observed that the contract was about bridges, not diversity metrics, and the racial composition of the company’s suppliers had nothing to do with the company’s ability to paint the bridge. He suggested there is rampant fraud in these programs and questioned whether race-conscious DBE mandates are constitutional, calling them a “pure numbers game” that prioritizes equal outcomes over equal treatment. His best line:
“It is implausible to think that a ‘reasonable person’ would ‘attach importance’ to contract provisions that mandate constitutional violations.”
Justice Gorsuch concurred, saying he thought the majority went too far by suggesting that parties can claim fraud_ regardless of whether they get everything they ask for_. Here, PennDOT did not get everything it asked for, because it asked for a DBE requirement. Thus, the government didn’t need to show financial loss. But Justice Gorsuch would’ve reserved the question of whether a fraudster is liable for fraud if he or she completely fulfills the terms of the contract.
Dissent Watch
Some juicy dissents lately.
Kagan dissents.
In an emergency ruling, the Court allowed the Trump administration (for now) to remove two members of federal boards for any old reason, despite a statute saying they could only be fired “for cause.” The fired members sued, and the administration argued that the removal statute was unconstitutional because it violated Article II’s Vesting Clause, which vests all executive power with the president. The case is still pending in the lower courts, but the board members wanted back on the board while the lawsuit is pending. The Supreme Court declined to grant their request.
Justice Kagan, joined by Justices Sotomayor and Jackson, dissented. She argued that removal protections serve important purposes: They help ensure independent, bipartisan administration of laws. And even if you think the statute’s unconstitutional, she said, it’s dangerous for the Court to gut precedent on the emergency docket.
Justice Kagan asserted that the Trump administration’s actions of unilaterally flouting the removal statutes were unprecedented, although some have observed that Biden did something similar when he ousted Social Security Commissioner Andrew Saul. She also said the Court misapprehends the competing harms: The harm is not to the fired officers but to Congress and the public. And President Trump, she said, suffers little harm from being forced to tolerate bipartisan boards (as many other presidents have done).
Her warning: “Today’s order favors the President over our precedent.”
FWIW, I don’t think the Court was gutting precedent on the emergency docket. It said the government had a likelihood of success, not a certainty of it. And perhaps the Court was considering an unstated harm: the harm that would come from the judiciary forcing the executive to tolerate fired officers in the executive branch.
Gorsuch dissents.
In Apache Stronghold v. United States_, the Court declined to hear a challenge to the federal government’s plan to mine Oak Flat, a sacred site for Western Apaches. Though the Apache have used the property for worship for years, as Justice Gorsuch put it,
Tell us how you really feel. The statement was a little anti-corporate and anti-mining for my liking. But I always appreciate his rhetorical flourish.
The Apache sued under the Religious Freedom Restoration Act (RFRA), which requires generally applicable laws that have a substantial burden on religious exercise to be the least restrictive means of furthering a compelling government interest. The Ninth Circuit said the plan didn’t impose a “substantial burden” on their religious exercise because it was just a transfer of public land.
Justice Gorsuch, joined by Justice Thomas, called that a “grave mistake,” likening the government’s actions to demolishing a historic cathedral. He concluded:
Thomas and Alito dissent.
In _L.M. v. Middleborough_, a 7th grader wore a shirt saying “There Are Only Two Genders.” He got kicked out of class. He returned with a shirt saying “There Are CENSORED Genders.” The school banned that one, too.
The student then brought a First Amendment claim under Tinker v. Des Moines, a case establishing the test for when schools can censor students’ speech. The First Circuit rejected his claim, and the Supreme Court refused to take up his appeal. Justice Thomas wrote to say Tinker is wrong, but you have to apply it equally.
Justice Alito also dissented, putting it bluntly: “This case calls out for our review.”
He said the issue was “of great importance for our nation’s youth: whether public schools may suppress student speech either because it expresses a viewpoint that the school disfavors or because of vague concerns about the likely effect of the speech on the school atmosphere or on students who find the speech offensive.” He observed that the school seemed to support speech on the other side of the gender debate, even posting a photo on social media of a student wearing a shirt that said “HE SHE THEY IT’S ALL OKAY.”
Justice Alito said the Court should’ve taken up the case to affirm that schools may not engage in viewpoint discrimination, and to consider whether the First Circuit’s standard (allowing censorship of speech that is “demeaning and reasonably forecasted to poison the educational atmosphere due to serious negative psychologic effects”) waters down the meaningful limits established in Tinker.
That’s all for now. Except…
**In which I prove my value to my employer **
I had the joy of speaking on a practitioner panel at a week-long Originalism seminar for students, held at Georgetown Law. (Practitioner representation matters! I think all panels should have more spots for lawyering lawyers, in addition to judges and professors.)
Here are some pics of me gallivanting around DC (including the Supreme Court) and explaining to students why enforcing the Constitution is the most rewarding job in the world.
P.S. A very happy birthday to my hard-working, kind, and supportive stepfather.
