The term of the Supreme Court just concluded was Justice Amy Coney Barrett’s first, and her confirmation last fall gave the Court a majority of justices who base their decisions on the law and the Constitution. That has translated into a term conspicuous for the absence of living constitutionalism, a brand of activism that disregards both the structural Constitution and the Constitution’s enumerated rights, which too often have been diminished by judicial interpretation even as justices contrive other rights from current fashions nowhere to be found in text or history.
The Court’s journey to where it is today was long and tortuous, including recurring Democratic campaigns to vilify conservative nominees and the notable defeat of Robert Bork’s nomination along the way. As I previously pointed out here, the principles of originalism and textualism were widely stigmatized for many years in courts and in legal academia before the Reagan administration began to push for originalist judges during its second term. By that time, much damage had been done at the hands of Republican-appointed justices, and additional appointments by Reagan and the first President Bush would have a mixed record, often siding with the Court’s liberal bloc. While Justices Antonin Scalia and Clarence Thomas were champions of originalism, Justice David Souter would become a fixture in the Court’s liberal bloc, a distinction he shared with fellow Republican appointees William Brennan, Harry Blackmun, and John Paul Stevens. The swing justices in the center, Sandra Day O’Connor and Anthony Kennedy, were known to join the liberals in several of their era’s defining examples of liberal activism.
Indeed, every one of the Court’s decisions embracing a “living Constitution” over the last half century depended on the votes of Republican-appointed justices. In fact, nearly 30 years ago, after Justice Thomas replaced Justice Thurgood Marshall on the Court, only one Democratic appointee remained on the Court, Justice Byron White, and he usually voted with conservatives. Yet in 1992, that Court handed down its notorious decisions reaffirming abortion as a constitutional right (Planned Parenthood v. Casey) and striking down clergy-led prayer at a high-school graduation ceremony (Lee v. Weisman) — with White in dissent in both cases.
Besides contriving new constitutional rights and often demeaning religious practice, the Court used to be less likely to protect political speech and Second Amendment rights that, like the free exercise of religion, follow directly from constitutional text. The structural Constitution — the less headline-grabbing areas of law, such as the separation of powers and federalism, that are nonetheless just as essential as the Bill of Rights in protecting individual liberty — also took repeated hits.
Members of the conservative blocs of years past were far from blameless for some of these trends. Consider that Justice Scalia was alone in dissent from the Court’s decision upholding the independent-counsel statute in the landmark separation-of-powers case Morrison v. Olson (1988). And Scalia himself revealed a blind spot when he wrote the Court’s opinion narrowing the free-exercise clause in Employment Division v. Smith (1990), which declined to allow an individual’s religious beliefs to excuse compliance with an otherwise valid, neutral law of general applicability even where it burdened such beliefs. Abood v. Detroit Board of Education, the 1977 case that upheld the charging of fees by unions to government employees who did not wish to join, was decided unanimously, and it took over four decades before a 5–4 majority of the Court overruled it in Janus v. AFSCME (2018).
So terms like “conservative” or “liberal” are of limited utility in describing blocs of the Court today versus the past. Moreover, the notion of a center bloc separated by vast ideological space from the other blocs, depending on the case, has become obsolete. Commentators who track the Court have for years indulged in dramatic depictions of the three blocs of justices giving rise to majority opinions that veer from scrupulous originalism to living constitutionalism in the same term. That paradigm had some utility as recently as last term, when Chief Justice John Roberts departed from his prior positions and helped the Court strike down an abortion regulation aimed at women’s health, stymied the Trump administration’s rollback of the Obama administration’s Deferred Action for Childhood Arrivals (DACA) program, and rewrote the Civil Rights Act of 1964 to include sexual orientation and transgender status. He was the justice in the majority the most last term — 97 percent, more than any chief justice in the previous 70 years — and it made sense to highlight his unique ideological place at the center of the Court.
The median justice this term, who was in the majority 97 percent of the time, is Brett Kavanaugh. He had been in dissent in all three of the above-referenced liberal decisions from last term and during his tenure has consistently declined to adopt a constitutional or statutory interpretation in any major case that defies originalism and textualism. That is not to say, of course, that he always agrees with or is more often correct than his fellow constitutionalist justices who subscribe to some form of originalism — Thomas, Samuel Alito, Neil Gorsuch, and Barrett. The Court’s docket includes many close questions of interpretation of legal text, as in Van Buren v. United States, when a question of construing the Computer Fraud and Abuse Act yielded competing opinions, each invoking Scalia for support, with Barrett, Gorsuch, and Kavanaugh in the 6–3 majority and Thomas and Alito in dissent, joined by Roberts.
In other cases, the originalists have disagreed on whether to take a case or whether there are issues preventing them from reaching particular constitutional issues. California v. Texas, the multi-state lawsuit filed in an effort to secure a ruling that the Affordable Care Act is unconstitutional, did not reach the constitutional question because a 7–2 majority that included Thomas decided the plaintiffs lacked standing. While the plaintiffs obviously placed their hopes in a victory and Democrats fueled expectations with their shameless insistence last fall that Barrett was nominated in order to bring about that result, most conservative legal scholars did not expect the challenge to succeed.
Six other opinions of the Court this term did reach major constitutional or statutory issues, and in all six cases, the five originalists agreed on the outcome. In Roman Catholic Diocese of Brooklyn v. Cuomo, they composed the entirety of a 5–4 majority that granted injunctive relief to Catholic churches and Jewish synagogues that challenged New York’s COVID restrictions on worship under the free-exercise clause. In Fulton v. City of Philadelphia, the Court reached a remarkably unanimous judgment that Philadelphia violated the free-exercise clause when it refused to contract with Catholic Social Services, which had been able to contract with the city to provide foster care for over 50 years, unless it agreed to certify same-sex couples as foster parents. Some commentators have emphasized that Thomas, Alito, and Gorsuch concurred separately in the judgment and would have used this case as a vehicle to overrule Employment Division v. Smith while the majority opinion found another free-exercise precedent, Church of Lukumi Babalu Aye v. Hialeah (1993), sufficient to decide the case. But Barrett and Kavanaugh acknowledged in concurrence the “serious arguments that Smith ought to be overruled” and added that “the textual and structural arguments against Smith are more compelling.”
Over 30 years after Smith was decided, a majority of justices expressed their disagreement with the precedent, and future litigants can no longer rely on it to win in court. Alito wrote a comprehensive concurrence on free exercise that lays the foundation for overruling Smith. Do not be surprised if his argument is adopted by the Court in the future, just as the standard for which Alito argued in his concurring opinion regarding the ministerial exception in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012) regarding teachers at religious schools was adopted by the Court last year in Our Lady of Guadalupe School v. Morrissey-Berru. For this term, Cuomo and Fulton continued a remarkable record of wins over the last decade for religious freedom and expression.
Victories for originalism and textualism followed in the areas of property rights, separation of powers, free speech, and voting rights. In Cedar Point Nursery v. Hassid, decided fittingly on the 16th anniversary of the Court’s notorious takings decision in Kelo v. City of New London, the Court struck down as a violation of the takings clause of the Fifth Amendment a California regulation that authorized union organizers to physically occupy growers’ property. The vote was 6–3 with the liberal bloc — Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan — dissenting.
In Collins v. Yellen, which involved a challenge by shareholders of Fannie Mae and Freddie Mac to part of an agreement between the Federal Housing Finance Agency (FHFA) and Treasury Department that transferred nearly all their net earnings to the latter, the Court found the statutory claim barred by the Recovery Act’s anti-injunction clause, but it agreed with the constitutional claim that limiting the president’s authority to remove the FHFA director with a “for cause” restriction violates the separation of powers. This applied the Court’s recognition of the president’s removal power over principal officers last year in Seila Law LLC v. Consumer Financial Protection Bureau. The Court’s six Republican appointees held together on the constitutional claim. Kagan, invoking Seila Law and stare decisis, concurred separately in that judgment while Breyer and Sotomayor dissented.
The two final decisions of the term were among the most anticipated. In Brnovich v. Democratic National Committee, the Court rejected an interpretation of Section Two of the Voting Rights Act that would have wreaked havoc on the nation’s election laws, upholding Arizona’s out-of-precinct policy and ban on ballot harvesting. In Americans for Prosperity Foundation v. Bonta, the Court landed a big victory for anonymous speech and donor privacy as it struck down California’s forced disclosure law. The case is a strong rebuke of states like California and a triumph for the hundreds of groups across the ideological spectrum who sought protection from abusive governments that would bully or intimidate them for their views. Yet again, the Court’s Republican appointees held together in both cases.
Some commentators in mainstream media wrote prior to the last tranche of decisions that the conservatives were badly fractured or that we have a 3–3–3 Court — an argument also advanced in conservative circles. By this account, Roberts, Kavanaugh, and Barrett form a bloc apart from the other three conservatives. That makes for a more dramatic narrative — not unlike the years of wide jurisprudential fluctuations when O’Connor and Kennedy occupied the middle — but current voting patterns do not bear this out. In the six major decisions noted above, the originalists held together — joined even by Roberts in every case except Cuomo. Whether Roberts himself is scaling back the activism he displayed last year may only be apparent after the next term. Either way, the chief justice’s own jurisprudence is not the decisive factor that it was prior to Barrett’s confirmation. In one term, the chief justice went from being in the majority the most to trailing Kavanaugh significantly in that metric (only 91 percent of cases compared with Kavanaugh’s 97 percent). Thomas, for his part, was in the majority 80 percent of the time, up from 72 percent last term. And the two justices with whom Thomas agreed in the judgment most often this term were Gorsuch and Barrett. For that matter, in only three out of the nine cases in which Barrett and Thomas disagreed was Thomas in agreement with both Alito and Gorsuch, supposedly the other two members of a bloc of three. These patterns simply do not support the 3–3–3 bloc theory.
In short, the justices who constitute the new originalist majority have not displayed dramatic differences in their conceptions of the contours of the Constitution. Conservatives may wish for more from the current Court, but those who condemn it without acknowledging what it took to get a majority of the Court to embrace the originalism that was once widely rejected in our legal culture speak without historical perspective. The new Court has made the judicial activism of living constitutionalism a thing of the past, albeit the recent past. Optimistic predictions for next term assume that will remain the case.