Liberals who had long been accustomed to a Supreme Court engaging in living constitutionalism and textual recklessness are not happy with the latest term. The Washington Post’s Ruth Marcus opened a recent interview, “If the best adjective to describe the 2021-2022 term is ‘cataclysmic,’ what’s the best way to describe the term that just concluded?” The interviewee, University of Texas law professor Stephen Vladeck, replied, “Reaffirming, as in reaffirming that last term was not an aberration.”
Last term was indeed one for the ages, having included the overturning of Roe v. Wade and broken new ground to vindicate First Amendment (free exercise and speech) as well as Second Amendment rights. Not to mention a significant victory for the structural Constitution as the Court rejected the EPA’s overreach.
And thankfully, as Vladeck observed, last year was not an aberration. This term, the Court reached another landmark when it effectively overturned a mess of precedents that had permitted racial discrimination in university admissions. Students for Fair Admissions v. President and Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina straightforwardly rejected the use of race in the admissions process under the Equal Protection Clause and Title VI of the Civil Rights Act of 1964. It brought back the principle of a colorblind Constitution from which the Court had strayed in decisions going back to Regents of the University of California v. Bakke (1978). The Court’s opinion by Chief Justice John Roberts and a concurring opinion by Justice Clarence Thomas skewered politically charged dissents by Justices Sonia Sotomayor and Ketanji Brown Jackson, exposing how far the liberal bloc of the Court has departed from the anti-segregation position taken by the Court in Brown v. Board of Education (1954).
In Biden v. Nebraska, the Court struck down President Biden’s federal student-loan cancellation plan, which constituted one of the largest federal expenditures in American history. Although this was a statutory construction case, it implicated a major breach of our constitutional system. The power of the purse belongs to Congress under the Appropriations Clause of the Constitution, and the Biden administration tried to stretch the language of the 2003 HEROES Act beyond recognition to justify what amounted to an egregious power grab. The Court’s decision came exactly one year after its rejection of EPA overreach and similarly involved an application of the “major questions doctrine” requiring clear congressional authorization for executive action on significant matters, with consideration of the “history and the breadth of the authority” asserted by agencies.
In 303 Creative LLC v. Elenis, the Court scored a victory for freedom of conscience while building on its precedents prohibiting compelled speech. It prevented Colorado from enforcing its Anti-Discrimination Act against a graphic designer who holds the traditional definition of marriage as a matter of religious belief. While the case involved speech, it naturally also advanced religious freedom, continuing a trend from recent terms.
Among the 58 opinions of the Court issued this term, arguably none were more significant in their constitutional impact than the above three. All were decided by a 6–3 majority in what could be described as the conventional split on the Court, with the three liberal justices in dissent. Overall, the term was notable for a considerable rise from last term in unanimous decisions, including in several significant cases. In Groff v. DeJoy, another victory for religious freedom, the Court ruled in favor of a postal worker suing under Title VII of the Civil Rights Act of 1964 who avoids work on Sundays as a religious obligation and was disciplined for it by the postal service. Justice Samuel Alito’s opinion for the Court rejected language from Trans World Airlines v. Hardison (1977) that absolved employers from accommodating the religious beliefs of employees as long as the accommodation in question would require an employer “to bear more than a de minimis cost.” Lower courts latching onto that language would overwhelmingly side with employers who showed any burden. No, the Court ruled, employers in fact would have to meet a higher standard to win such cases: They must demonstrate a “substantial” burden, which in turn ensures greater protection for employees. In Tyler v. Hennepin County, the Court applied the longstanding principle that “a government may not take more from a taxpayer than she owes” to find that a county violated the Takings Clause when it seized and sold the property of an owner who owed property taxes, interest, and penalties and then kept the $25,000 surplus that remained from the sale as a windfall. In Twitter v. Taamneh, the Court rejected claims by relatives of a victim in an Istanbul shooting massacre that several social media companies faced aiding-and-abetting liability under the Justice Against Sponsors of Terrorism Act, a ruling that the Court used to dispose of a similar theory of liability in Gonzalez v. Google.
In Sackett v. Environmental Protection Agency, the Court ended longstanding confusion on the meaning of “the waters of the United States,” the Clean Water Act’s phrase that is key to determining the scope of “navigable waters” that are subject to regulatory authority. The lack of clarity traced back to the fragmented Court in Rapanos v. United States (2006), where Justice Anthony Kennedy’s lone opinion established an open-ended “significant nexus” test long deemed controlling. A 5–4 majority in Sackett held that Justice Antonin Scalia’s plurality opinion in Rapanos set the right standard: Covered wetlands are those with “a continuous surface connection” to and indistinguishable from bodies that are “waters of the United States” in their own right. The Court’s judgment was unanimous, but Justice Brett Kavanaugh joined the three liberal justices in a separate concurrence to advocate a looser standard.
The originalism and textualism that has recently defined the Court was manifest during this term. The closest to an exception among significant cases on the merits docket was Allen v. Milligan, in which a 5–4 Court found that Alabama’s congressional map containing one majority-black district out of seven likely violated Section Two of the Voting Rights Act. The liberal justices were joined by Roberts and Kavanaugh in rejecting a race-neutral benchmark in determining whether a district map amounted to impermissible vote dilution. The decision had the effect of keeping muddled case law in place, even while the Court insisted that it was unlawful to demand proportional representation based on race. Another election law case, Moore v. Harper, was perhaps the most overhyped case of the term. As it turns out, it should not have been decided on its merits at all. The North Carolina Supreme Court, which had usurped the state legislature by rejecting its congressional map based on a flimsily concocted rule against partisan gerrymandering, had reversed itself in April. Regardless, a 6–3 majority of the Court reached at least some of the merits, rejecting the idea that state constitutions cannot constrain legislatures when they exercise power under the Constitution’s Elections Clause. The Court declined to adopt a standard of review or address the ultimate question of whether North Carolina’s highest court had gone too far, but it did include a warning to activist state judges that “state courts do not have free rein” in this area.
In Haaland v. Brackeen, a 7–2 Court rejected Article I–based challenges to the Indian Child Welfare Act while declining to entertain equal protection and nondelegation challenges on standing grounds. The case is difficult to pin down as a repudiation of originalism. Indian law is particularly complex and not nearly as straightforward as most questions involving federalism. Justice Amy Coney Barrett’s opinion for the Court was limited to particular Article I challenges presented in the case, and lengthy originalist analysis appeared on both sides of the case in a concurrence by Justice Neil Gorsuch and a dissent by Thomas. In United States v. Texas, the Court by an 8–1 margin denied standing for two states challenging the Biden administration’s immigration enforcement guidelines.
The Court is now in a place that would have been inconceivable five years ago, prior to the arrival of Justices Kavanaugh and Barrett. The median justice went from Kennedy to Roberts to Kavanaugh, who once again was in the majority more often this term than any of his colleagues. While some commentators have noted that members of the liberal bloc were in the majority more often this term than Thomas and Alito, that means little without looking at the cases themselves. Different cases vary widely in importance, and those seeking liberal decisions from the Supreme Court would gladly trade the outcomes of divided cases in which Thomas and Alito were in the majority for those in which liberal justices were in the majority. Vladeck lamented during his Washington Post interview that except for Allen v. Milligan, “which is the outlier, almost all of the cases being portrayed as liberal victories, I really don’t think they’re a victory. They’re just not defeats.”
For those who value originalism and textualism, this term reinforced that the current Supreme Court is the best in living memory. It has been less than three years since the Court acquired an originalist majority, and since last year alone, both Roe and affirmative action are now gone. Those were two behemoths of constitutional law, and the idea that the Court might overturn precedents in both areas was unthinkable until recently. Add to Students for Fair Admissions the array of additional victories for constitutionalism, and it is easy to rank this term among the Court’s best ever.