Landscape | Fall 2022 Issue

The Court Sides with the Right

Constitutional scholar Erwin Chemerinsky takes stock of the court today

By Erwin Chemerinsky

ON MONDAY, OCTOBER 3, the justices returned to the bench for the beginning of the Supreme Court’s 2022 term. It was Justice Ketanji Brown Jackson’s first day of oral arguments, and the first time in 28 years that the court was without Justice Stephen Breyer. But it remains a court with six conservative justices and, like the term that ended on June 30, 2022, it is certain to be another year of blockbuster cases that will move the law significantly to the right.

Last year, the October Term 2021, was the first full term with Justice Amy Coney Barrett, and in many cases the court split 6-3, with the six conservative justices who had been appointed by Republican presidents comprising the majority, and the three liberal justices who had been appointed by Democratic presidents in dissent. The court decided 60 cases with signed opinions after briefing and oral argument. Nineteen, or almost a third, were decided by a 6-3 margin, with another nine decided 5-4.

But the numbers don’t tell the story of how in a single momentous week the court changed the law, not incre- mentally but dramatically. The term will be most remem- bered for the decision on June 24, in Dobbs v. Jackson Women’s Health Organization, that overruled Roe v. Wade, and held that no longer is there a constitutional right for women to choose whether to have an abortion. Predictably, Dobbs has opened the door to a plethora of states considering and adopting laws prohibiting abortions, including some that forbid abortions from the moment of conception and lack exceptions even in cases of rape or incest or where the woman’s health is in danger. Perhaps the court thought it was returning the country to where it was before Roe in 1973. But then it was naive in not realizing that the conservatives who have been using abor- tion as a political issue for years would continue to do so by adopting ever more stringent laws and far more aggressive prosecutions than had occurred before.

The day before, in New York Rifle and Pistol Association v. Bruen, the court interpreted the Second Amendment to provide the most expansive protection of gun rights in American history. The court held that there is a right to have guns outside the home and that laws giving government officials discretion whether to issue concealed-weapons permits are unconstitutional. Justice Clarence Thomas, writing for the majority, said that a law regulating firearms is permissible only if it is a type of regulation that existed in 1791, when the Second Amendment was ratified, or perhaps 1868, when the 14th Amendment was adopted. This opens the door to challenges to almost every type of federal, state or local law regulating firearms.

On June 27, in Kennedy v. Bremerton School District, the court ruled that a high school football coach’s First Amendment rights to freedom of speech and free exercise of religion were violated when he was disciplined for engaging in prayers on the field after games. For 60 years, the Su- preme Court had repeatedly prohibited prayer in public schools. Now, the court not only allowed it but said that the government was constitutionally required to permit the prayers. Any restriction of prayer by teachers or students limits their free speech and free exercise of religion. Justice Neil Gorsuch’s opinion for the court was explicit that the only limit is what the Framers in 1791 thought would have been an impermissible establishment of religion, and that’s not much of a constraint on religion in public schools.

And on June 30, in West Virginia v. Environmental Protection Agency, the court held that the EPA lacked the authority to regulate greenhouse gas emissions from power plants. The court said that federal agencies cannot act on “major ques- tions” of economic and political significance with- out clear direction from Congress. This will lead to the challenges to a myriad of agency actions — protecting the environment and health and safety — because the court did not define what is a “major question” or what is specific enough guidance to meet this requirement.

Each of these cases was a 6-3 decision and each significantly changed the law. October Term 2022 is likely to be more of the same. For example, the court will hear two cases on October 31 — Students for Fair Admission v. University of North Carolina and Students for Fair Admission v. President and Fellows of Harvard College — that pose the question of whether the court should overrule long-standing precedents and end affirmative action by colleges and universities. In a series of cases over more than four decades, the Supreme Court has held that colleges and universities have a compelling interest in having a diverse student body and may use race as one factor in admissions to benefit minorities and to enhance diversity. Now, with a much more conservative court, both liberals and conservatives expect the justices to end affirmative action in higher education. By taking both cases, the court will be ruling on the future of affirmative action in both public and private colleges and universities.

In 303 Creative LLC v. Elenis, the court will consider a First Amendment challenge to a law that prohibits discrimination based on sexual orientation. Lorie Smith owns a graphic design firm and wants to expand her business to include wedding websites. She says that same-sex marriage violates her religious beliefs and she does not want to design websites for same-sex weddings. Colorado law prohibits such discrimination on the basis of sexual orientation. The Supreme Court will decide whether she has a First Amendment right to discriminate in violation of state law.

One of the most important cases of the term involves the “independent state legislature” theory. This is the view that under the Constitution, state legislatures control the election of members to Congress and that courts cannot be involved even in enforcing state constitutional requirements.

The case before the court is Moore v. Harper. The North Carolina legislature, controlled by Republicans, drew maps for congressional districts from the state. Although North Carolina is almost evenly divided politically between Democrats and Republicans, the map would have given Republicans likely control of 10 of 14 congressional districts. The North Carolina Supreme Court found that the map violated the North Carolina Constitution and enjoined its use. A trial court adopted a new map.

The Supreme Court granted review on the question of whether the state’s judicial branch can enforce the state constitution and invalidate the legislature’s decisions with regard to election districts. The stakes in this case are enormous. There is another provision of the Constitution that concerns choosing electors for the Electoral College to select the president of the United States. If the court were to adopt the independent state legislature theory, then it could conceivably mean that courts would be disempowered to enforce the federal and state constitutions and state laws in presidential elections as well.

These, of course, are just a few of the cases to be decided in the next Supreme Court term. And while these terms are momentous in their conservative changes in the law, they are surely harbingers of what we will see for many years to come. Justice Clarence Thomas is the oldest justice at 74, while Samuel Alito is 72 and John Roberts is 67. The three Trump appointees — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — are in their 50s. It is easy to imagine this conservative majority being together another decade or two.

It is a time for conservatives to be jubilant, as this is the conservative Supreme Court they have wanted for decades, and for liberals to be angry and petrified. At a time when the country is deeply polarized, the court has come down emphatically on one side of that divide. The court’s approval ratings are its lowest in history. There is no way to know what that will mean for the long term, but the implications for American government should frighten us all.

Image Needed

Erwin Chemerinsky

Post navigation



Gov. Jerry Brown: The Long Struggle For The Good Cause

Jerry Brown has been fighting for the environment for decades. He reflects on that history.