This was the term the Supreme Court decided to ignore the speed bumps.
No longer. Even had the court not voted to eliminate constitutional protection for abortion rights, this would have been an immensely consequential term. The aggressive new majority expanded the scope of gun rights, tossing out the approach endorsed by every federal appeals court to have weighed gun restrictions in favor of a history-focused analysis that seems destined to pose daunting constitutional hurdles for gun regulation.
It dismantled remaining bricks in the wall of separation between church and state — requiring rather than merely allowing states that subsidize private education to fund explicitly religious instruction and dismissing constitutional concerns over a football coach’s 50-yard-line prayers with his public school students.
It hobbled the ability of the Environmental Protection Agency to deal with climate change, ushering in a new era of limits on federal regulators’ power to tackle complex problems at a moment when Congress has proved itself incapable of rising to the array of policy challenges.
Notably, although Chief Justice John G. Roberts Jr. was unable to rein in his conservative colleagues in their zeal to undo abortion rights — an act he labeled a “serious jolt to the legal system” — he was more often an eager participant in the majority’s mischief-making. Roberts assigned himself to write the opinions in the EPA and religious instruction cases, the culmination of years of patiently steering the court in the desired direction.
As the liberal justices lamented the real-world consequences of rulings on guns, climate change and abortion, the majority was defiantly heedless of the practical effects.
And the conservative bloc might be just getting started. Already on the court’s docket for the next term, when Justice Ketanji Brown Jackson will take the place of Stephen G. Breyer, are cases that could mean the end to using race as a factor in college admissions, severely limit the reach of the Clean Water Act and further gut the already neutered Voting Rights Act.
In 2018, when Justice Anthony M. Kennedy was still on the court, it punted in deciding a case involving a Christian baker who said his religious convictions prevented him from designing a custom cake to celebrate a same-sex wedding; the enhanced conservative majority will soon confront the issue anew in a case involving a Christian website designer.
And on Thursday, as it issued its final opinions, the court added an explosive new case to its docket that could supplant state courts from protecting voting rights in federal elections and, taken to an extreme, give legal cover to election subversion.
How the conservative majority went about its rulings was as telling — as alarming — as its results. In asserting that it was simply following statutory text, the majority applied an inconsistent, self-serving textualism. Dissenting in the EPA case, Justice Elena Kagan quoted her own famous line, “We’re all textualists now,” but with a bitter twist. “It seems I was wrong,” she wrote. “The current Court is textualist only when being so suits it.”
The majority was similarly results-oriented in its use of history, the dominant new touchstone determining the scope of constitutional rights. In the gun and abortion cases, the majority baldly cherry-picked from the past, dismissing examples that did not support its preferred conclusion. This was history as practiced by Goldilocks: This gun law was too early, that one too late to matter. Only some historical examples — which just happen to support the Second Amendment side — are just right. The majority, Breyer wrote in his dissent, offers “a laundry list of reasons to discount seemingly relevant historical evidence,” giving judges “ample tools to pick their friends out of history’s crowd.”
That’s not all. What Justice Sonia Sotomayor called the “restless and newly constituted court” lunged to decide cases where restraint would have been wiser. The EPA case, for example, involved an Obama-era regulation that never took effect, that was overtaken by changes in the industry and that the Biden administration said it had no intention of reviving. Where was the dispute that required the court’s intervention? As Kagan observed, “this Court could not wait — even to see what the new rule says — to constrain EPA’s efforts to address climate change.”
And five justices flagrantly abandoned the court’s ordinary reluctance to disturb precedent in overruling Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey, the 1992 case that reaffirmed the right to abortion. “The Court reverses course today for one reason and one reason only: because the composition of this Court has changed,” the three remaining liberal justices wrote in their joint dissent. “Today, the proclivities of individuals rule.”
The court’s legitimacy rests on an uneasy foundation of public confidence that the law means something more than that. The court disturbs that foundation at its peril.
Speed bumps are in place for good reason, in law as on the roads. Racing over them to achieve the desired result is more than a jolt to the system — it risks serious, perhaps irreparable, damage.