A year ago, I praised the end of the Supreme Court term as the best of the previous 50 years. It was a term defined by its record deciding cases according to text and original meaning, avoiding the pitfalls of a judicially activist past. I still hold that view but now must qualify it: This most recent term was even better. The Court had weightier issues on its docket and took on the challenges before it with decisiveness and both professional and personal courage.
That the Constitution should be construed according to the original public meaning, context, and spirit in which the people’s representatives drafted it, without injecting judges’ policy preferences, should be straightforward. But for many years, that philosophy was stigmatized and its proponents were widely vilified. A working originalist majority of the Court was not going to come about without a fight.
Because of the stakes, this year brought new benchmarks in intimidation tactics unleashed on the Court by the Left. Justice Stephen Breyer was subjected to a crass but successful campaign by dark-money groups to push him off the Court to make room for a younger and more liberal replacement. The campaign against the liberal bloc’s senior member is easily forgotten because of the barrage of even more reprehensible conduct deployed against the Republican-appointed justices. The leak of Justice Samuel Alito’s draft opinion for the Court in Dobbs v. Jackson Women’s Health Organization overturning Roe v. Wade; the targeting of justices at their homes, churches, and Justice Amy Coney Barrett’s children’s school; the violence against crisis pregnancy centers and churches; and the attempted murder of Justice Brett Kavanaugh are still raw memories. And the man to whom this term brought the greatest vindication, Justice Clarence Thomas, was subjected to an extra layer of vilification by activists and even members of Congress seeking to silence him, though his persecution has never really stopped since he was confirmed over thirty years ago.
By holding strong and overruling Roe along with the reformulated abortion standard in Planned Parenthood v. Casey (1992), the Court’s five originalists—Thomas, Alito, Neil Gorsuch, Kavanaugh, and Barrett—made history in Dobbs. That decision upheld Mississippi’s prohibition on abortions at 15 weeks, a judgment in which Chief Justice John Roberts concurred separately. But beyond that, it marked the Court’s abandonment of the intellectually dishonest business of inventing constitutional rights by fiat, returning one of the most contentious issues in American history to the people.
Thomas, the only justice who participated in Casey who remains on the Court, is now the leader of a majority of justices who share his commitment to originalism and the rule of law. On many topics, he used to find himself regularly a lone dissenter or joined only by Justice Antonin Scalia, including in his concern that the Court take more cases to prevent the Second Amendment from being relegated to a “second-class right.” This term, in New York State Rifle & Pistol Association v. Bruen, he wrote the majority opinion clarifying that the phrase “keep and bear arms” in that amendment has substance. The Court struck down New York’s onerous licensing law, which prevented law-abiding citizens with ordinary self-defense needs from carrying their arms in public to defend themselves. In deciding what firearm regulations would pass constitutional muster, judges would focus not on their own predilections, but on whether the challenged laws are “consistent with this Nation’s historical tradition of firearm regulation.”
Decided just one day before Dobbs, Bruen demonstrates the difference between today’s Court and yesterday’s: Rights enumerated in the Constitution receive a more robust reading, in contrast to the days when the justices guarded contrived holdings more zealously than enumerated rights.
Also reflecting this dynamic are this term’s victories for religious freedom and expression, an extension of a winning streak in merits cases spanning more than a decade. In Carson v. Makin, the Court struck down Maine’s exclusion of religious schools from a program of tuition assistance for private education as a violation of the Free Exercise Clause. In Shurtleff v. City of Boston, the Court invoked the Free Speech Clause to hold that Boston could not exclude a religious flag from a flag-raising program in which private groups were allowed to briefly fly flags of their choosing on a flagpole at City Hall Plaza. In Kennedy v. Bremerton School District, the Court held that a school district had violated both the free exercise and free speech rights of a high school football coach when it disciplined him for saying a quiet personal prayer on the field after football games, during a time period that members of the coaching staff were permitted to use for personal activities.
Even where its holdings applied to a narrow set of factual circumstances, the Court confirmed important developments in its First Amendment jurisprudence. In Kennedy, the Court clarified a significant development in the law—that it had “long ago abandoned” the muddled test for examining Establishment Clause claims in Lemon v. Kurtzman (1971) along with its offshoot, the “endorsement test.” In Federal Election Commission v. Cruz, the Court found the limit on post-election contributions a candidate could receive to repay personal loans to his own campaign—layered on top of base limits that already apply—to be an impermissible burden on speech. The 6–3 margin of that decision likely reflects the margin of protectiveness toward political speech in future cases that face this Court.
The justices also struck a blow on behalf of the structural Constitution by embracing the major questions doctrine, the notion that Congress must provide clear authorization before an agency can exercise powers of vast economic and political significance. This was apparent on the emergency docket last term in Alabama Association of Realtors v. Department of Health and Human Services, where the Court held that the Centers for Disease Control and Prevention lacked the authority to impose a nationwide eviction moratorium, and again in National Federation of Independent Business v. Department of Labor, where the Court found no justifiable ground for OSHA to have bypassed the normal rulemaking procedure and issued its far-ranging vaccination and testing requirements. In the latter case, the major questions doctrine was identified as such and discussed at length in a concurrence by Gorsuch, joined by Thomas and Alito.
That was in January. At the end of June, on the last day of the term’s merits decisions, the doctrine was explicitly embraced by the Court’s opinion in West Virginia v. Environmental Protection Agency. By a 6–3 margin, the justices rejected the EPA’s sweeping claim that a vague, rarely used provision of the Clean Air Act empowered it to impose draconian carbon emission reduction mandates that would transform the power industry writ large. That decision was a victory for the separation of powers and thus for representative democracy as it signaled that the Court was leaving new laws not to unelected bureaucrats, but to the democratic process, as the Constitution demands.
In other cases, the Court avoided judicial aggrandizement in contexts that justices would have found difficult to resist in prior terms. In Whole Woman’s Health v. Jackson, the Court rejected arguments that sought to expand Article III standing in order to allow pre-enforcement challenges to Texas’ recent abortion statute against state court judges and clerks and the attorney general. In Vega v. Tekoh, the Court recognized that Miranda warnings constitute a judicially crafted prophylactic rule, not a constitutional rule; the failure of law enforcement to give such warnings can be remedied by excluding unwarned statements from trial but does not by itself justify a § 1983 lawsuit. In Egbert v. Boule, the Court refused to expand Bivens remedies—causes of action for damages that are judicially crafted in the absence of an applicable statute—in recognition of the separation-of-powers principle that “creating a cause of action is a legislative endeavor.”
The five originalists agreed with each other on the judgment in all of the above cases. Biden v. Texas was a rare prominent case in which that dynamic did not hold. There the Court rejected a challenge to the Biden administration’s rescission of the Trump administration’s Migrant Protection Protocols, known as “Remain in Mexico.” The different positions in the case illustrated disagreements among originalists on complex issues, including whether the Court was barred from reaching the merits and the scope of permissible executive action under the Immigration and Nationality Act in light of the president’s foreign policy authority under Article II. Kavanaugh was the only originalist in the majority, but Barrett, who found the jurisdictional bar dispositive, agreed on the merits.
Contrary to the impression left by the liberal meltdown over the Court’s decisions this term, the justices are calling shots based not on policy preferences, but on what the law actually says. That, of course, is the scenario long dreaded by liberals who became used to the Court imposing their policy preferences. They start from a baseline of little respect for the Constitution on its own terms, so it should be no surprise that the nation has been subjected to the smear campaigns that have tarnished the nomination process for decades and the insidious intimidation tactics that recently followed.
The many years of building a Supreme Court majority committed to interpreting the Constitution as it is written came by way of a protracted battle. This term has been a resounding win for the rule of law. It confirms beyond a doubt that we finally have an originalist Court.