The far-right majority on the Supreme Court is increasingly taking up cases where the plaintiffs aren't even dealing in basic fact, wrote Moira Donegan for The Guardian — in some cases, even engaging in "outright deceptions."
One of the most prominent recent examples, she noted, is United States v. Moore, the case where the court just decided 7-2 against a pair of investors who were trying to get a tax on overseas investments thrown out.
"The Moores’ case relies on the notion that the tax they faced is unconstitutional because they were minority shareholders without a major role in the operation of the company, who had not yet profited from their investment. Such are the facts as alleged by their lawyers. But these are not the facts in reality," wrote Donegan. "In truth, the Moores invested much more money in the company than they initially claimed; Charles Moore, the husband, served as the director of its board for years. He traveled repeatedly to India to oversee it, and was reimbursed for that travel; he lent the company almost a quarter-million dollars and earned back interest. He seems to have worked closely with the founder of the company, a friend of his, to lower his stake in the company, so as to avoid the 2017 tax liability – and, perhaps, so as to make himself a more plausible plaintiff for a conservative movement legal vehicle."
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While the Supreme Court did not rule for the false claims in this case, Donegan wrote, it's part of a disturbing trend of cases being taken up on false pretexts.
Another such recent case is 303 Creative v. Elenis, where the court rebuked a Colorado civil rights law for supposedly forcing a website designer to work for same-sex couples, when in fact that had not even happened: the designer "cited a request for such a website she had received from a man named Stewart, who was planning to marry his partner, Mike. Only Stewart never asked for a wedding website: when the New Republic’s Melissa Gira Grant contacted him, she discovered that the 'Stewart' whose supposed request was at the center of the case was a straight man living in San Francisco, who had long been married to a woman." The court also ruled for a football coach who coercively led his team in prayer against longstanding First Amendment precedent, then falsely claimed he was praying privately and silently.
Notably, Donegan wrote, two cases based on misrepresented facts which lost this term had Justice Brett Kavanaugh writing the decision, and it might not be an accident — he is, she argued, a "deeply insecure man ... aware of the stench of malfeasance and scandal" since he was accused of attempted sexual assault by multiple women at his hearing.
"Perhaps this is why, though he doubtless shares the conservative legal movement’s policy agenda, he has been less willing to cooperate with their most transparent lies," she concluded. "He possesses, at least in some small degree, the only force that seems able to check the conservative justices’ impulses: shame."