The Roberts Court Comes of Age
The 2021 Supreme Court term was tumultuous—and historic. The Supreme Court gained a new justice, survived the first leak of a draft opinion, and was forced to retreat behind perimeter fencing due to threats of violence. The term was also a huge one in terms of legal doctrine. The Supreme Court decided hugely important cases involving the right to life, religious liberty, the Second Amendment, and the question of how much power resides in federal agencies.
Many of us will remember what we were doing on June 24, 2022 when the Supreme Court released its opinion in Dobbs v. Jackson Women’s Health Organization. That decision is the culmination of a five decade’s long legal battle, of countless hours of prayer and volunteering at crisis pregnancy centers, and of marching for life. Because of Dobbs, states are finally able to protect life and to empower women. As Justice Alito’s opinion explained, Roe was wrong the day it was decided. Nothing in the Constitution nor our nation’s history supports a right to an abortion. Now we can begin to build a culture that recognizes life is a human right and every woman and child deserves our support and protection.
In Maine, many school districts are too rural to have a secondary school, so Maine provides tuition assistance for parents to send their children to the school of their choice. There’s just one catch: Parents may not choose religious schools that teach the tenets of their faith. In Carson v. Makin, the Supreme Court explained that government violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits. It clarified that discrimination based on the religious use of funds is just as odious to the Constitution as discrimination based on the religious status of a school.
In Kennedy v. Bremerton, the Supreme Court held that the Free Exercise and Free Speech Clauses protected a high school football coach’s post-game 50-yard line prayers. The Court held that the First Amendment protections extend to teachers and students alike, and that neither of them “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Further, Coach Kennedy’s prayers were personal religious observance, not government speech. Otherwise, nearly everything teachers do and say during the workday, such as praying over their lunch or reading the Bible during a class break, would be subject to government control. Because of Coach Kennedy’s case, public school employees may continue to live out their faith in the public sphere.
West Virginia v. EPA struck down the Obama Administration’s Clean Power Plan. That Plan was meant to transition the American energy sector away from coal, which would result in imposing billions of dollars in compliance costs and raising retail energy costs by ten percent. In its decision, the Supreme Court examined whether Congress meant to confer such vast power on the Environmental Protection Agency. Under the major questions doctrine, such significant agency action requires a clear congressional delegation of authority.
As Chief Justice Roberts explained, Congress does not ordinarily grant huge swaths of authority with modest words, it does not hide elephants in mouseholes. Rather, where the agency’s asserted power raises an eyebrow—as did the EPA’s imposing of a nationwide Cap and Trade energy policy surely did—then the Supreme Court expects a clear intention from Congress to give it that power.
The Supreme Court applied the major questions doctrine to limit agency power in two other cases this term, explaining that agencies could not mandate unprecedented responses to the COVID-19 pandemic. In Alabama Association of Realtors v. Department of Health and Human Services, the Supreme Court found that the Centers for Disease Control and Prevention could not, under its authority to prevent the spread of disease, institute a nationwide eviction moratorium. So too with the Occupational Safety and Health Administration’s vaccine-or-test mandate; that requirement imposed on some 84 million Americans could not be justified as a workplace safety rule.
This trio of cases is about who decides major policy questions. The people’s representatives? Or unelected and unaccountable bureaucrats? All three are a win for the rule of law and separation of powers principles.
In New York State Rifle and Pistol Association v. Bruen the Supreme Court struck down New York’s onerous concealed carry permit requirements. The Court held the Second Amendment protects an individual right to carry a weapon outside one’s home for purposes of self-defense. The decision also laid bare a methodology that has broad application to every sort of constitutional claim. Justice Thomas’s opinion explained that Second Amendment claims must be analyzed by looking to history and tradition, highlighting the fact that six justices are committed to originalism.
The year of our Lord 2022 is the year the Roberts’ Court came of age. The Court issued important decisions touching on our most fundamental freedoms—the right to life, the right to freely exercise religion, the right to keep and bear arms, and the right to be governed by our elected representatives—and it did so in the face of threats of violence. The Court made history, and the right kind of history.