In a historic term, momentum to move the law often came from the five justices to the chief’s right

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Supreme Court surrounded by fencing

The Supreme Court remained surrounded by a security barrier for two months at the end of the 2021-22 term. (Katie Barlow)

If the Supreme Court’s 2021-22 term had a soundtrack, it might be “With or Without You,” the 1987 anthem by the Irish rock group U2. In a year in which the justices issued a series of high-profile rulings moving the law to the right, five of the court’s Republican appointees signaled that although they welcomed the support of Chief Justice John Roberts on hot-button issues like gun rights and religion, they were ready to push ahead, as they did in the landmark ruling eliminating the constitutional right to obtain an abortion, even if Roberts was not fully on board.

An abortion prelude

The new balance of power on the court was on display before the term officially began, when the justices rejected a request to block enforcement of S.B. 8, a Texas law that bans nearly all abortions in the state. Although the law conflicted directly with Roe v. Wade and Planned Parenthood v. Casey, the court’s long-standing decisions holding that the Constitution protects the right to have an abortion before a fetus can survive outside the womb, the court nonetheless allowed the law to go into effect on Sept. 1 without taking any action on the appeal by abortion providers.

On the night of Sept. 1, the justices turned down the providers’ request in a 5-4 vote, officially clearing the way for the state to implement the law. In an unsigned, one-paragraph order, the majority explained that the law has a unique enforcement mechanism that deputizes private individuals to bring lawsuits against anyone who either provides or “aids or abets” an abortion. As a result, the majority reasoned, it was uncertain whether the providers’ lawsuit could go forward against the state officials named as defendants in the complaint.

Chief Justice John Roberts dissented from the denial of the providers’ request. In an opinion joined by two members of the court’s liberal bloc – Justices Stephen Breyer and Elena Kagan – Roberts explained that he would have put the law on hold to preserve the status quo in Texas and to allow the courts to consider “whether a state can avoid responsibility for its laws” using such an enforcement mechanism. (The court’s third liberal, Justice Sonia Sotomayor, also dissented, though she did not join Roberts’ opinion.)

Two and a half months later, after the justices heard oral argument in a fast-tracked dispute over S.B. 8’s private-enforcement mechanism, Roberts once again dissented, this time from the court’s decision that the lawsuit could not continue against state-court judges and clerks. He explained that the law “has had the effect of denying the exercise of what we have held is a right protected under the Federal Constitution.” (Roberts and the court’s liberal justices agreed with four other justices that the providers’ lawsuit could go forward against a group of state medical licensing officials, but the Texas Supreme Court later ruled that those officials also lacked the power to enforce the law, effectively putting an end to the providers’ challenge.)

The fall of Roe

Against this backdrop, there seemed to be little doubt after the Dec. 1 oral argument in Dobbs v. Jackson Women’s Health Organization, a challenge to a Mississippi law that bans almost all abortions after the 15th week of pregnancy, that a majority of the court was ready and willing to roll back abortion rights. The only real question was how far the justices might go. Would they strike down Roe and Casey, as lawyers for Mississippi urged them to do, or would they stop short of formally overruling those cases but still uphold the state’s ban?

Roberts advocated in favor of the latter course, but his position did not seem to gain any traction among his conservative colleagues. And indeed, when the court finally released its opinion in Dobbs on June 24, five members of the court – Justice Samuel Alito, joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett – concluded “that Roe and Casey must be overruled.” “It is time to heed the Constitution,” Alito wrote, “and return the issue of abortion to the people’s elected representatives.”

In a separate opinion, Roberts explained that he agreed with the majority’s decision to uphold the Mississippi law but would have taken “a more measured course.” Stressing that courts should not decide more than they need to, Roberts argued that his conservative colleagues had gone too far. “Surely we should adhere closely to principles of judicial restraint here, where the broader path the Court chooses entails repudiating a constitutional right we have not only previously recognized, but also expressly reaffirmed applying the doctrine of stare decisis” – the principle that courts should normally adhere to their prior cases unless there is a compelling reason not to do so.

Alito pushed back against Roberts’ criticism, countering that Roberts’ “quest for a middle way would only put off the day when we would be forced to confront the question we now decide.” Roberts’ proposed approach, Alito contended, would only extend the “turmoil wrought by Roe and Casey.” “It is far better — for this Court and the country — to face up to the real issue without delay,” Alito concluded.

Expanding gun rights

Although he advocated for an incremental approach on abortion, Roberts joined Thomas’ opinion for the court in New York Rifle and Pistol Association v. Bruen, which struck down a New York handgun-licensing law that required New Yorkers who wanted to carry a handgun in public to show a special need to defend themselves.

Bruen was the court’s first major ruling on gun rights in over a decade. The court had ruled in 2008 that the Second Amendment protects the right to have a firearm in the home, and in 2010 it had affirmed that both states and the federal government must respect that right. But in the 12 intervening years, the justices had repeatedly turned down requests to weigh in on laws like New York’s. The conventional wisdom was that although there may have been four votes to take up the case, the court’s more conservative justices were not convinced that Roberts would provide the fifth vote needed to strike down the laws.

Six months after the arrival of Barrett in the fall of 2020, who had taken a relatively expansive view of the Second Amendment as a lower-court judge, the justices announced that they would review the New York law. And when the Supreme Court issued its ruling in the case on June 23, Roberts was on board. The decision was noteworthy not only because it struck down the New York law, which mirrored similar restrictions in California, Hawaii, Maryland, Massachusetts, and New Jersey, but for its methodology. Rejecting the two-part test that many lower courts have used to evaluate challenges to gun-control measures, the court outlined a new and more stringent standard for courts to use going forward. A restriction passes constitutional muster, Thomas explained, only if there is a history or tradition of such regulations in U.S. history.

A pair of cases on religious freedom

The court’s conservative majority also issued two significant rulings that opened the door to a greater role for religion in public life. Treating religious conduct and religious institutions differently than their secular counterparts, the court made clear this term, is unconstitutional discrimination against religion. In Carson v. Makin, the court struck down a Maine program that provided public funding for students to attend private schools, but prohibited the use of state money at schools that provide religious instruction. When state and local governments opt to subsidize private schools, Roberts wrote, they must allow families to use that public funding to pay for religious schools.

In Kennedy v. Bremerton School District, the majority sided with a high school football coach who lost his job because of his practice of praying on the 50-yard-line after games. The opinion by Gorsuch rejected the school district’s contention that allowing the coach to pray would violate the Constitution’s establishment clause, which bars the government from both establishing an official religion and preferring one religion over another. And in doing so, Gorsuch officially cast aside the “Lemon test,” a multi-pronged analysis derived from the 1971 decision Lemon v. Kurtzman to determine whether a government law or practice violates the establishment clause. Instead, Gorsuch explained, courts should look at the history and understanding of the Constitution’s drafters.

Agency power and “major questions”

The court’s conservative majority declined to take one step that some court watchers believed might be possible during the 2021-22 term. Despite having the opportunity to overrule the Chevron doctrine, which instructs courts to defer to an agency’s reasonable interpretation of federal law, the court declined to do so. In fact, the court’s decisions in American Hospital Association v. Becerra and Becerra v. Empire Health Foundation did not mention Chevron at all, even though Chevron loomed large in the briefing for both cases, which involved agency interpretations of complex Medicare statutes. Instead, the court simply interpreted the two statutes at issue by looking primarily at the statutes’ text and structure.

But although the court left the Chevron doctrine in place, at least formally, a series of other decisions nonetheless put limits on the power of federal agencies to make important policy decisions under federal law. The limits came through a legal theory known as the “major questions” doctrine, the idea that if Congress wants to give a federal agency the authority to make decisions with “vast economic and political significance,” it must clearly say so.

The first ruling relying on the major-questions doctrine came in late August, during the court’s summer recess before the term began. The court barred the Biden administration from enforcing a federal moratorium on evictions, imposed because of the COVID-19 pandemic, in areas with high levels of community transmission. Over a dissent by the three liberal justices, the court explained that the government’s interpretation of the federal law at issue, which gave the Centers for Disease Control the power to employ measures like fumigation and extermination to stop the spread of disease, “would give the CDC a breathtaking amount of authority.”

In January, the justices employed the major-questions doctrine to block the Biden administration’s COVID-19 vaccine mandate for large employers. In National Federation of Independent Business v.  Department of Labor, the court – again, over a dissent by the three liberal justices – stressed that although Congress had given the Department of Labor the power to establish safety standards for the workplace, it had not given the agency the authority to enact such a “significant encroachment into the lives – and health – of a vast number of employees.”

And in West Virginia v. Environmental Protection Agency, one of the final cases released before this year’s summer recess, the court reversed a lower-court ruling that had interpreted the Clean Air Act to give the EPA expansive powers over carbon emissions. Writing for the court, Roberts rejected the Biden administration’s argument that the justices should refrain from weighing in right now because the EPA plans to issue a new rule on carbon emissions, rather than implementing the Obama administration rule at the center of the case, which has never gone into effect.

The core of the Roberts opinion, however, relied on the major-questions doctrine. “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,’” Roberts acknowledged. But Congress had not specifically given the EPA the power to make a “decision of such magnitude and consequence,” Roberts concluded.

In her dissent, which both Breyer and Sotomayor joined, Kagan countered that Congress had intended for the EPA, with its expertise on environmental issues, to make precisely these kinds of decisions. She did not mince words, arguing that the majority’s ruling “prevents congressionally authorized agency action to curb power plants’ carbon dioxide emissions. The Court appoints itself – instead of Congress or the expert agency – the decision-maker on climate policy. I cannot think of many things more frightening.”

Looking to the future

The impact of the court’s decisions on abortion and gun rights quickly became apparent. In some states, laws banning abortion went into effect immediately, while in others so-called “trigger laws,” intended to take effect after a decision overruling Roe and Casey, were at least temporarily put on hold after challenges in court. With uncertainty about whether and when laws restricting abortion would be enforced, the overall picture in many states was, as one article in The New Yorker put it, “chaotic.”

In response to the court’s ruling in Bruen, New York passed new gun-control measures that, among other things, bar handguns in places like parks, libraries, and schools, as well as private businesses unless the owners specifically authorize concealed firearms. But those laws are expected to face legal challenges under the tougher test outlined in Bruen – and could eventually return to the Supreme Court.

At the same time that the court’s five most conservative justices were ready to move ahead without regard to whether Roberts was on board, the court also appeared to be out of step with public opinion. One poll taken after the court’s decision in Dobbs indicated that 56% of Americans disagreed with the decision, while the same number expressed support for the concealed-carry restrictions that the court struck down in Bruen. More broadly, confidence in the Supreme Court reached an all-time low.

The justices began their summer recess with a new line-up. After 28 years on the court, Breyer stepped down from the bench on July 1, making his January retirement announcement official. Ketanji Brown Jackson, a judge on the U.S. Court of Appeals for the District of Columbia Circuit, had been confirmed in April to succeed Breyer, and she was quickly sworn in, making her the first Black woman to join the court.

While Jackson’s ascension to the court made history, it is not expected to change the ideological balance on the court. When the justices return to the bench in the fall, they will encounter a docket that is already stocked with more high-profile cases, on issues like affirmative action, state legislatures’ power over elections, and the case of a website designer who, for religious reasons, does not want to create wedding websites for same-sex couples. Like Breyer before her, Jackson and her fellow liberal justices could very well find themselves in dissent on these questions as well.

Jackson will also be joining a court that, in recent months, has aired its dirty laundry in public more than it normally would. After the shocking leak in early May of Alito’s draft opinion overturning Roe and Casey, Thomas called the disclosure “like kind of an infidelity,” and he compared the current iteration of the court unfavorably with its predecessors, noting that the court from 1994 until 2005 – at which point Roberts arrived – “actually trusted each other.” “We may have been a dysfunctional family,” Thomas said, “but we were a family.”

Sotomayor struck a more optimistic note in a June appearance before progressive lawyers and law students at the annual convention of the American Constitution Society. She implored her audience to “have continuing faith in the court system and our system of government,” and she assured them that she hoped “to regain the public’s confidence that we – as a court, as an institution – have not lost our way.”

This article was originally published at Howe on the Court.



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