A Radical Court on the Move

by Stan Hastey

Analysis

In one of the most consequential terms in the 233-year history of the U.S. Supreme Court, an aggressive and radicalized supermajority of justices has begun a comprehensive reshaping of the legal landscape of the country with consequences we can only begin to imagine. Among the most far-reaching of the just-concluded 2021-2022 term were decisions on abortion, church and state, guns and the environment.

Abortion

Far and away the most anticipated ruling of the high court was the 5-4 decision in Dobbs v. Jackson Women’s Health Organization overturning Roe v. Wade, the 1973 decision that legalized first-trimester abortions while reserving to states the authority to regulate the procedure during the second and third trimesters of pregnancy. That decision, Justice Samuel A. Alito wrote for the narrow majority, was “egregiously wrong and on a collision course with the Constitution from the day it was decided.” 

Also overturned was Planned Parenthood v. Casey, the 1992 ruling that modified Roe by establishing fetal viability, then considered at about 24 weeks of pregnancy, as the time when states could regulate and even prohibit abortions. Neither Roe nor Casey was deserving to be considered an established precedent of the court, Alito held. Dobbs thus returns authority to regulate abortion to the states, many of which already had enacted new laws prohibiting the practice in anticipation of Roe’s reversal.

At issue in the case was a Mississippi law forbidding abortions beyond 15 weeks of pregnancy. While Chief Justice John G. Roberts Jr. joined the majority in upholding the Mississippi statute, he wrote separately that he would not have overruled Roe and Casey at the same time.

Several weeks before the ruling came down, a draft of Alito’s opinion was leaked, presumably from a yet-to-be-identified source within the court. The leaked document set off alarm bells both within and beyond the world of abortion providers, as it included Justice Clarence Thomas’s concurring opinion urging his colleagues to review and reverse other prior decisions upholding birth control, same-sex relationships, and same-sex marriage. Between the May 4 leak and the June 24 release of the final opinion, Justice Alito added language “that this decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

That wording, however, is at best questionable and more likely misleading. Dobbs self-evidently deals only with the facts before the court in the Mississippi abortion case. Nothing in Alito’s statement precludes the court from taking up challenges to those other cases in the future. Indeed, the reasoning in Dobbs could be applied in any of the other cases Thomas has urged the court to review and reverse.
The Dobbs decision marks a decisive victory for the anti-abortion movement which, for the nearly 50 years Roe was in place, zealously pressured the court to review that landmark 7-2 ruling. Its reversal also signals the power of misinformation and sheer propaganda, as Roe had been framed as “abortion on demand,” a plainly false description.

Separation of Church and State

In two high-profile cases, the high court lowered Thomas Jefferson’s “wall of separation” between church and state. In the first, the court ruled that the state of Maine must provide tuition assistance to parents who choose to send their children to private, sectarian schools (Carson v. Makin). Writing for a 6-3 majority that included all three of President Donald J. Trump’s nominees, Chief Justice Roberts wrote that the Maine restriction “promotes stricter separation of church and state than the Free Exercise Clause requires.” (The first 16 words of the First Amendment to the Constitution read, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”)

In dissenting for himself and Justices Sonia Sotomayor and Elena Kagan, retiring Justice Stephen G. Breyer wrote, “The Court today pays almost no attention to the words in the first Clause while giving almost exclusive attention to the words in the second.” The contrasting emphases in the majority and dissenting opinions paint a vivid picture of a seismic shift in the weight assigned these competing yet complementary clauses in recent years as the high court more and more has been eager to come down on the side of free exercise claims by individuals as over against provisions in state statutes and constitutions forbidding public assistance to churches and church-run schools.

In the second, the same 6-3 majority ruled that an assistant football coach named Joseph Kennedy was entitled under the Free Exercise Clause to kneel in prayer at the 50-yard-line at the conclusion of games (Kennedy v. Bremerton School District). Located in Washington state, the local school district forbade the coach from continuing his post-game devotions when they became public spectacles that included fans rushing from the stadium stands to join him, in the process running over band members and cheerleaders. After he repeatedly defied the district policy, Kennedy was fired. 

In siding with the coach, the 6-3 majority chose to eviscerate a three-part test used since 1971 to determine the proper boundaries between church and state in such cases pitting free exercise claims against state efforts to preserve the separation of church and state. Writing for the majority, Justice Neil M. Gorsuch declared, “Here, a government entity sought to punish an individual for engaging in a personal religious observance, based on a mistaken view that it has a duty to suppress such religious observances….”

On the losing side, Justice Sonia Sotomayor cited a string of high court decisions dating to 1962 that school officials may not lead public prayers on school property. “The Court now charts a different path,” she wrote, “yet again paying almost exclusive attention to the Free Exercise Clause’s protection for individual religious exercise while giving short shrift to the Establishment Clause’s prohibition on state establishment of religion.”

Gun Rights

Building on a groundbreaking decision from 2008 (District of Columbia v. Heller) that for the first time denied local and state jurisdictions the right to deny to individuals the possession of handguns in the home for self-defense, a 6-3 majority struck down a 1911 New York statute requiring “proper cause” to have and carry a concealed handgun absent “a special need for self-protection distinguished from that of the general community.” Two upstate New York men challenged the law, arguing it deprived them of their Second Amendment guarantee to “keep and bear arms.” (New York State Rifle and Pistol Association v. Bruen)

Justice Thomas, writing for the now customary 6-3 majority, wrote: “The exercise of other constitutional rights does not require individuals to demonstrate to government officers some special need. The Second Amendment right to carry arms in public for self-defense is no different. New York’s proper-cause requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms in public.”

Dissenting, Justice Breyer wrote: “The question before us concerns the extent to which the Second Amendment prevents democratically elected officials from enacting laws to address the serious problem of gun violence. And yet the Court today purports to answer that question without discussing the nature or severity of that problem.” He noted further that the six states, plus the District of Columbia, that have statutes limiting the open carrying of handguns in public are among the most densely populated jurisdictions in the nation.

The Environment/Federal Regulatory Power

In a decision handed down on the last day of the term, the court ruled 6-3 that the Environmental Protection Agency (EPA) exceeded its statutory authority in enforcing the Clean Air Act of 1970 during the administration of former President Barack Obama and was likely to do so again during the tenure of President Joe Biden. Writing for the majority, Chief Justice Roberts noted that from its passage until 2015, EPA had properly enforced the act but had exceeded what Congress authorized it to do from 2015 to 2019 during the Obama administration by requiring coal-fired power plants “to reduce their production or subsidize increased generation by natural gas, wind, or solar sources.”

During the administration of former president Trump, EPA scrapped its new rule, but is currently reviewing the matter anew. The chief justice stated that in spite of that fact, it was clear to the majority that the agency intended to exceed its authority in regulations yet to be announced. The case was originally brought to the high court by several coal mining companies and the state of West Virginia. The challenge to EPA’s authority was supported by the attorneys general of 20 states with Republican governors.

In his opinion for the majority, Chief Justice Roberts concluded: “Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible ‘solution to the crisis of the day.’ But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme…. A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.”

Significantly, in a concurring opinion joined by Justice Alito, Justice Gorsuch decried “the explosive growth of the administrative state since 1970.” Increasingly in recent years, the court’s majority has made it clear it intends to curb what it considers the abuse of authority by executive branch agencies. This raises the ominous specter of future decisions in a host of cases that Federalist Society jurists are champing at the bit to take on in order to dismantle what they derisively label the “administrative state.”

For the now customary three-member minority, Justice Kagan cited dire predictions by climatologists for continued dramatic increases in heat-related deaths, coastal inundation and erosion, more frequent and intense hurricanes, floods and other extreme weather events, as well as the destruction of ecosystems and disruption of food production.

“A key reason Congress makes broad delegations,” she wrote, “is so an agency can respond, appropriately and commensurately, to new and big problems. Congress knows what it doesn’t and can’t know when it drafts a statute; and Congress therefore gives an expert agency the power to address issues—even significant ones—as and when they arise.” She concluded: “The majority today overrides that legislative choice. In so doing, it deprives EPA of the power needed—and the power granted—to curb the emission of greenhouse gases.”

Takeaways

1. To label the current high court majority “aggressive and radicalized” may sound harsh to some. Yet here’s why I believe it to be an accurate description. The nation’s highest tribunal historically has shown caution and restraint in tackling the hardest of cases and deciding them narrowly rather than sweepingly. This past term the court received some 7,000 appeals from losing litigants in prior proceedings. Of this number, only 66 were accepted for review and decision. That a newly constituted majority, in a single term, would take on cases such as those summarized above, is certainly aggressive. And the results, from my perspective, are radical.
   
2. This new supermajority is wrongly described as “conservative.” It is not conservative or even ultraconservative. The major cases decided in the just-concluded term were decided inconsistently at best with respect to history and precedent. A frequently cited example was the striking down of Roe v. Wade when a narrower result was available, as Chief Justice Roberts argued in his concurrence. In that case, now forever shorthanded as Dobbs, the court upheld a state statute. In the New York gun case, it struck down a law on the books for more than a century. Other examples abound, both in this and other recent terms.
   
3. “Originalism” as a legal doctrine is as nonsensical in the legal realm as “inerrancy” is in the world of religion. Originalism, like inerrancy, is a recently coined word and concept. All Supreme Court justices, whether labeled “conservative” or “liberal,” always begin their judgments of cases before them from the text of the Constitution. In the recently concluded term, moreover, it was the so-called conservatives who engaged in historical sophistry rather than textualism, as in the majority opinion in the New York gun case. 
   
4. Women lost, big-time. It’s easy to forget that historically speaking, women’s rights were only recently granted, and often only grudgingly and partially—by men. Every July 4^th we are reminded of the nation’s founders’ grand vision in the Declaration that “all men are created equal.” That wasn’t true then; it is still untrue today. Dobbs sets women back immeasurably. That infamous ruling is based on a series of lies about Roe. Someday it too will be reversed, but between now and then women will die and infant mortality, already a disgrace in our country, can only increase. When I was a young journalist in the 1970s covering annual sessions of the Southern Baptist Convention, I remember debates on resolutions of support for Roe. During one such debate, an angry father rose to declare without shame that he had taken his daughter, raped and impregnated, for her abortion. Another year it was a pastor who went to a microphone to describe in passionate terms his support of Roe because his wife had been raped and impregnated. Those resolutions were actually adopted—by the Southern Baptist Convention.
   
5. Rising in the wake of Dobbs is the likelihood, if not probability, that in future terms the new majority may overturn decisions protecting contraception, same-sex relationships, and same-sex marriage. As noted above, Justice Alito’s declaration that the Dobbs decision applied only to Dobbs is ingeniously worded. Nothing in Dobbs can prevent a future court from taking on the other cases having to do with sexuality that seem to vex so many. It’s instructive to remember that only four of the nine justices are required to accept a case for review that once accepted must be decided.
   
6. Separation of church and state, as understood by the nation’s founders, is under full-scale attack. As Justices Breyer and Sotomayor noted in their dissents in this term’s major church-state cases, the new court supermajority is focused almost exclusively on the free exercise clause at the expense of the no-establishment clause. Knowingly or unknowingly, this imbalance plays into the hands of Christian nationalists whose end objective is to carve out of the Constitution our historic commitment to religious liberty for all.