The Supreme Court has just finished what will likely go down as one of the most momentous and memorable terms in history.
In addition to the court deciding many blockbuster cases from abortion to the limits of the power of the federal bureaucracy, Justice Stephen Breyer retired, now-Justice Ketanji Brown Jackson was sworn in to replace him; there was an unprecedented leak of a draft opinion, protesters showed up at justices’ homes in several attempts to intimidate them, and an armed man made a serious threat to one of the justice’s lives based—in part—on that leaked draft opinion.
This term saw major victories for religious liberty and Second Amendment rights. There were also important decisions about the powers possessed by administrative agencies.
What did the Supreme Court decide this term? How did each of the justices rule? And how is America impacted by the court’s rulings?
There’s just too much information for one article (which is why you should watch The Heritage Foundation’s “Scholars and Scribes” event), but below is a summary of five major cases from this term.
Overturning Roe v. Wade: Dobbs v. Jackson Women’s Health Organization
This case arose from a challenge to Mississippi’s 2018 Gestational Age Act, which prohibits abortions after 15 weeks of gestation except in cases of medical emergency or severe fetal abnormality.
While the state claimed an interest in protecting the lives of innocent unborn children and their mothers, abortion provider Jackson Women’s Health Organization sued the state for passing the law, alleging that the law violated Mississippians’ constitutional rights to access abortion.
Both the federal district court and the 5th U.S. Circuit Court of Appeals sided with the abortion provider, ruling that the law violated the Supreme Court’s framework established in Roe v. Wade and Planned Parenthood v. Casey.
In what became a historic victory for legal originalists and pro-life advocates alike, the court overruled both Roe and Casey to uphold the Mississippi law. The 6-3 majority opinion, authored by Justice Samuel Alito, held that because a right to abortion is neither found in the text of the Constitution nor deeply rooted in the nation’s history and tradition, the Constitution does not provide for such a right.
Accordingly, the authority to regulate abortion was returned to the people through their elected representatives in each state’s legislature, which is where it had resided for all of our nation’s history prior to the Roe ruling in 1973.
The court also found that a proper application of stare decisis, which is Latin for “the thing decided,” counseled in favor of overturning Roe and Casey.
First, as to the nature of the error, Roe was not just wrong from a legal perspective, it was egregiously wrong.
Second, the quality of reasoning in the Roe decision was poor, as it lacked any grounding in constitutional text, history, or precedent. Rather than stating what the law was, the Roe court established a detailed set of rules for pregnancy that looked more like it was writing a law than a judicial opinion, which is not the court’s role.
Third, the workability of past abortion precedent was insufficient and unclear, making it difficult to apply and establish uniform enforcement in the real world.
Fourth, Roe’s and Casey’s deleterious impact on other areas of law was tremendous, leading to the distortion of many important but unrelated legal doctrines.
And fifth and finally, reliance interests would not be upended by overturning Roe and Casey. In other words, contrary to claims by those in favor of keeping Roe and Casey, the court found that individuals had not relied on those court cases to make long-term decisions and order their affairs.
Because regulating abortion does not violate the Constitution and the Mississippi Legislature had legitimate state interests to support its Gestational Age Act, the court upheld it.
The Right to Carry a Gun for Self-defense: New York State Rifle & Pistol Association Inc. v. Bruen
This case arose from a challenge to New York’s strict standards for issuing a license to carry a concealed firearm. The state issued concealed carry licenses only to applicants who could show “proper-cause” for needing one, which did not include a generalized need for self-protection.
Two adult, law-abiding New York residents sued the state after being denied licenses for not meeting this standard. They only stated that they had a generalized need for self-protection and said that New York’s refusal to issue them a permit violated their Second and 14th Amendment rights.
The court agreed and found that the proper-cause requirement violates both the Second and 14th Amendments. The 6-3 opinion written by Justice Clarence Thomas rejected the use of the prevailing framework for evaluating Second Amendment claims, saying instead that “the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.”
The court said that text of the Second Amendment protects the right to carry handguns in public for self-defense, without a “home/public” distinction. Besides a few outliers in the late 1800s, American lawmakers have not broadly prohibited public carry of a commonly used firearm for self-defense, nor have they required a “special need for self-protection distinguishable from that of the general community.”
This means that in states and localities that have “good cause” requirements for issuing handgun permits over and above a generalized need for self-defense, those requirements likely do not survive this ruling.
Protecting Prayer by Government Employees in the Workplace: Kennedy v. Bremerton School District
This case arose from a challenge to the Bremerton, Washington, school district’s decision to fire a high school football coach for kneeling on the football field after games to offer a personal silent prayer. Coach Joe Kennedy had prayed after each game since 2008. While some players joined him at different times, he never required nor encouraged them to do so.
The school district terminated Kennedy, claiming that allowing any “overt actions” that might appear to a “reasonable observer to endorse … prayer … while he is on duty as a District-paid coach” would violate the First Amendment’s establishment clause.
Kennedy sued the school district, alleging that it had violated his free exercise and free speech rights under the First Amendment.
The court sided with Kennedy, holding that both the free exercise and free speech clauses protect an individual engaging in personal religious observance from governmental reprisal. Moreover, the court said that the establishment clause neither requires nor permits the government to suppress such religious expression.
Under the court’s ruling, the school district violated the free exercise clause because its policy was neither neutral nor generally applicable to everyone, but instead targeted Kennedy’s conduct because it was religious. It also violated the free speech clause because Kennedy’s prayers were private rather than government speech—the court said that they were not “pursuant to his official duties.”
The court found the school’s establishment clause justification for firing Kennedy to be faulty because such a balancing test relies on Lemon v. Kurtzman, a case that, according to the majority opinion, the “Court long ago abandoned” due to its practical and historical shortcomings.
This observation effectively overruled Lemon and its endorsement test for determining whether a government had violated the Constitution’s establishment clause with a requirement that the establishment clause “must be interpreted by ‘reference to historical practices and understandings.’”
Using School Choice Funds for Religious Education: Carson v. Makin
This case arose from a challenge to Maine’s prohibition against applying state funds from the state’s tuition assistance program toward secondary schools that, in addition to teaching academic subjects, provide religious instruction.
Two families challenged this practice, claiming that Maine violated the free exercise, establishment, and equal protection clauses by restricting their freedom of school choice.
The court sided with the challengers, holding that Maine’s “nonsectarian” requirement for otherwise generally available tuition assistance payments violates the free exercise clause.
A 6-3 decision written by Chief Justice John Roberts found that Maine’s requirement could not survive strict scrutiny, the most stringent level of review the court uses when determining whether a constitutional violation has occurred.
The state’s interest in avoiding the appearance of supporting a particular religion did not justify excluding members of the community from an otherwise generally available public benefit simply because of their religious exercise.
The court also noted that the 1st U.S. Circuit Court of Appeals’ attempt to distinguish between religious status prohibitions (prohibiting funding solely based on an institution’s status as a religious organization) and religious use prohibitions (supposedly prohibiting funding regardless of an institution’s religious status and instead prohibiting funding because it would be put to a religious use, such as teaching a religion course) was unpersuasive, and that the prohibition on status-based discrimination under the free exercise clause didn’t justify use-based discrimination.
EPA’s Overreach Regulating Greenhouse Gases: West Virginia v. Environmental Protection Agency
This case arose from a challenge to a cap-and-trade program that the Environmental Protection Agency created in 2016. The EPA launched this policy just after Congress failed to pass the American Clean Energy and Security Act.
The policy aimed to amend the Clean Air Act by establishing a cap-and-trade program for greenhouse gas emissions that was functionally identical to the one that couldn’t get through Congress. The EPA claimed it possessed the authority to issue the policy due to a provision already found in the Clean Air Act.
West Virginia and several other challengers sued the EPA, alleging that the agency lacked the authority to issue such a rule.
The court sided with West Virginia, concluding that Congress did not grant the EPA the authority. In a 6-3 opinion written by the chief justice, the court held that the Clean Air Act does not authorize the EPA to force the fossil fuel energy sector of the economy to shift to so-called green or renewable sources of energy.
The Obama and Biden administrations had argued that the act’s term “system of pollution reduction” actually authorized the EPA to shift from regulating pollution on a factory-by-factory basis (through the use of better pollution-reduction technologies) to demanding that the entire energy sector shift over time from fossil fuels to so-called green energy sources.
But the court judged that the Obama and Biden administrations’ interpretation of the act is precisely the type of judgment that falls under the major questions doctrine. Under that doctrine, it is necessary for Congress to include a clear statement in the law for a court to conclude that it intended to delegate authority “of this breadth to regulate a fundamental sector of the economy.” In this instance, Congress issued no such statement.
Honorable Mention—Mandating Private Employees Get Vaccinated Against COVID-19: National Federation of Independent Business v. Department of Labor, Occupational Safety and Health Administration
While we promised to distill the court’s term to the five most important cases, we couldn’t resist making one honorable mention.
This conglomerate of cases arose from dozens of challenges to the Occupational Safety and Health Administration’s vaccine mandate that it issued in response to the COVID-19 pandemic.
The mandate required businesses with over 100 employees to have their employees get vaccinated against the novel coronavirus. Businesses would be charged a steep fee each day for each employee who did not comply. This mandate would have applied to over 84 million workers.
In a 6-3 per curiam (unsigned) opinion, the Supreme Court stayed (stopped) the implementation of the vaccination mandate. The majority concluded that the government was not likely to later prevail in its argument in court that OSHA possessed the authority to issue this mandate.
The majority noted that neither OSHA nor Congress had ever imposed such a requirement and that “although Congress has enacted significant legislation addressing the COVID-19 pandemic, it has declined to enact any measure similar to what OSHA has promulgated here.”
“As its name suggests,” the court explained, “OSHA is tasked with ensuring occupational safety—that is, ‘safe and healthful working conditions.’” The text of the statute empowers OSHA only “to set workplace safety standards, not broad public health measures,” and “no provision of the Act addresses public health more generally, which falls outside of OSHA’s sphere of expertise.”
The court’s majority rejected the government’s argument that the risk of contracting COVID-19 at work empowers OSHA to issue its vaccination mandate on the grounds that the risk “is not an occupational hazard,” but is a “universal risk” that “is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases.”
The federal government has not pursued arguing the case further, and the stay remains in effect.
This term, the court heard, and decided, many momentous cases. It will likely go down as one of the most memorable and important terms in Supreme Court history. While the court didn’t get every decision right, its decisions this term make clear that a majority of justices are committed to deciding cases on a more originalist and textualist basis than in the past.
That’s a good thing for the court—and a good thing for our country.
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