By Alex Swoyer and Stephen Dinan - The Washington Times
The conservative majority on the Supreme Court flexed its muscle this term, delivering a blockbuster series of rulings that bend decades of jurisprudence to the right on everything from God and guns to abortion and climate change.
As they wiped away Roe v. Wade, lent new muscle to the Second Amendment and bolstered the First Amendment’s “Free Exercise” of religion guarantee, the justices said they were restoring the Constitution’s original intent by trimming precedents that had calcified on the delicate limbs of the founding document.
And they did it amid unprecedented circumstances, with an unheard-of leak of a draft opinion — on the abortion case, no less — and after a man was charged with making an assassination attempt against one of the GOP-appointed members.
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The majority’s fearlessness was thrilling to those on the right.
“These victories were not watered down,” said Curt Levey, president of the Committee for Justice. “In some cases, they gave us more than we hoped for.”
“The majority has been more aggressive,” said Elliot Mincberg, senior fellow at People for the American Way. “The far-right-wing justices are coming into their own in a negative and troubling way.”
After several terms with more run-of-the-mill cases, the court over the last nine months heard cases touching on the biggest hot-button issues in American politics.
The next term, which begins in October, will keep up the pace, with cases on voting rights and college affirmative action policies already on the docket.
“The conservative majority as long as it sticks together is something that can’t be stopped,” said Adam Feldman, a law professor and author of Empirical SCOTUS blog.
He said President Biden’s new appointee, Justice Ketanji Brown Jackson, likely won’t alter the situation, since she’s replacing Justice Stephen G. Breyer, another Democratic appointee.
That’s different from the last new member, Justice Amy Coney Barrett, whom President Trump tapped to replace the late liberal icon Justice Ruth Bader Ginsburg. Justice Barrett cemented the conservative bloc, often rendering irrelevant the vote of Chief Justice John G. Roberts Jr., who used to be seen as the swing justice.
Nowhere was that more apparent than the abortion ruling, Dobbs v. Jackson Women’s Health Organization. Chief Justice Roberts joined his GOP-appointed colleagues in upholding Mississippi’s 15-week abortion ban, but he wasn’t on board as his colleagues then proceeded to erase Roe altogether.
Justice Samuel A. Alito Jr. said nearly a half-century of trying to make Roe work has proved futile, with Americans still sharply divided on the abortion issue. Failing in both legal scholarship and its goal of settling passions, he said it’s time to cast the decision aside.
“Roe was egregiously wrong from the start,” he wrote. “Its reasoning was exceptionally weak, and the decision has had damaging consequences.”
Chief Justice Roberts called the ruling “a serious jolt to the legal system.”
The ruling does not outlaw abortion, but rather returns the issue to politicians at the states and in Congress. A number of states have strict bans in place already, though others have said they will remain abortion “sanctuaries.”
Justice Alito looked to history to strike down Roe.
Justice Clarence Thomas also turned to history to strengthen the Second Amendment, ruling that states that impose strict tests on people seeking permits to carry concealed firearms run afoul of the personal right to bear arms.
Chief Justice Roberts joined his colleagues in that 6-3 ruling in New York State Rifle & Pistol Association v. Bruen.
It was the justices’ first major gun ruling in years, and the ruling came amid a revived debate over access to weapons, fueled by high-profile mass shootings in Uvalde, Texas, and Buffalo, New York.
Justice Thomas said the right to bear arms for personal protection cannot be left to vagaries of state legislatures’ decision-making and the Second Amendment that enshrines that right deserves “unqualified deference” from judges.
That doesn’t mean no restrictions are allowed, he said, but any that would have seemed bizarre to the generation that ratified the Bill of Rights cannot be made constitutional by the passage of time or changing beliefs about firearm ownership.
Roe wasn’t the only major precedent from the 1970s to tumble.
The conservative majority also appears to have put the nail in Lemon, a 1971 case that was the high-water mark for those who argue for a strict approach to weeding out any entanglements between government and religion.
Justice Neil M. Gorsuch said Joseph Kennedy, who coached football at a school in Bremerton, Washington, proved his postgame prayer was private and no students were compelled to join him — indeed, on the three occasions that led to his firing, none did.
“The Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike,” he wrote for the majority.
The court found unanimity on one religion case, with a 9-0 decision spanking Boston for refusing to fly a flag of a Christian group, even though it had welcomed other private groups’ flags outside city hall.
That unanimity disappeared, though, when the justices were asked about Maine’s program to pay for private schooling for students in some areas where there weren’t enough public high schools. The only catch was that Maine refused to pay for religious private schools.
The conservative majority said that was discrimination.
The court added new checks on executive branch decision-making, ruling against an Obama-era climate change policy that claimed expansive powers for the Environmental Protection Agency.
The justices enshrined what’s become known as the “major questions doctrine” saying that when agencies try to enact wide-reaching regulations the courts must give them extra scrutiny to make sure they comply with what Congress intended.
But Chief Justice Roberts also led a ruling that gave the Biden administration more leeway in handling the chaos at the U.S.-Mexico border.
In a 5-4 decision, with Justice Brett M. Kavanaugh also joining the three Democratic appointees, the high court said Homeland Security can revoke “Remain in Mexico,” a Trump-era policy that had pushed some illegal immigrants back across the border into Mexico to await their immigration court dates.
Those same five justices delivered another win to the Biden administration earlier this year, ruling that it had the authority to require medical workers to get the COVID vaccine.
But the court balked at a vaccine-or-testing mandate the Biden administration had tried to force on the country’s large employers. A 6-3 majority said the law didn’t allow that.
The series of high-profile decisions were not without consequence.
The high court’s approval ratings tumbled as Democrats complained of runaway rulings, and President Biden formed a commission to recommend changes to the court. The panel suggested term limits, which would probably require a constitutional amendment, but shied away from a firm recommendation on packing the court with new justices, which would not require amending the founding document.
The draft abortion opinion’s leak, meanwhile, promises to dog the court in the coming months.
Chief Justice Roberts has ordered an investigation that has reportedly involved asking clerks to turn over their phone records.
• Stephen Dinan can be reached at [email protected].
• Alex Swoyer can be reached at [email protected].
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