This pivot right is even clearer now as the court scatters for its summer recess. You don’t have to teach constitutional law to recognize that the 6-to-3 conservative majority is, in effect, heading back to Philadelphia, the birthplace of the Constitution. Looming decisions on abortion, the right to keep and bear arms, the use of race to award benefits or inflict penalties, and freedom of speech in the age of neo-monopolies such as Google and Facebook remind us how important the curve to the right is at this moment.
The just-finished term has been a preview. Fulton v. City of Philadelphia, a 9-to-0 decision in favor of religious liberty and the mandate that government may not treat religious groups differently from secular ones, cloaks an even more adamant majority that will protect Americans’ fundamental right to practice the faith — to “exercise” it — as they see fit. Roman Catholic Diocese of Brooklyn v. Cuomo, decided on Nov. 25 of last year, held that New York may not enforce certain limits on the ability of religious congregations to gather and pray. As Barrett noted in her Fulton concurring opinion, intricate questions must still be answered to fully articulate the limits of “free exercise,” but believers in any sort of faith (or none at all) should rest easier knowing that the walls around that liberty will grow higher and stronger over time.
Similarly, in Brnovich v. Democratic National Committee and Arizona Republican Party v. DNC, the court confirmed the states’ authority over voting, including the state legislatures’ right to ban ballot harvesting or out-of-precinct voting. The 6-to-3 decision upholding a state ban on ballot harvesting and out-of-precinct voting shouldn’t obscure the nine solid votes to prohibit the intentional use of race in drawing of electoral districts. Outside of that prohibition (and the injunction that all election districts — federal, state and local — be created in 2022 with numerical equality of citizens), district boundaries reside with state legislatures.
The same six justices will move — hopefully soon — to eliminate the use of race by any arm of government to award benefits or inflict penalties.
Free speech won again at the close of the term, with a decisive 6-to-3 win that struck down a California rule requiring nonprofits to disclose the names and addresses of their largest donors. The decision in Americans for Prosperity Foundation v. Bonta protects the right of people to support causes they believe in without fear of disclosure of their names and addresses to woke mobs of the left or robed extremists of the right. McConnell’s long commitment to unalloyed political speech has been validated by the court he is responsible for building. The new court also made clear it will protect property rights in its June holding in Cedar Point Nursery v. Hassid, obliging governments to pay for all property they seize, a long overdue reemphasis on a weight-bearing wall of freedom.
Back to Philadelphia indeed.