The most recent term of the Supreme Court left plenty of liberals lamenting how conservative that tribunal had become. And while the court conversely left plenty of conservatives happy, there has been some grumbling in right-leaning circles over whatever part of the glass appears to be empty. Those critics do not point to any constitutional apostasy, but complain because of the occasional praiseworthy judgment that did not carry more sweeping pronouncements of law.
Lost in such criticism is a sense of historical perspective about a term that included no rulings on a major constitutional or statutory issue that rejected originalism or textualism. It held as violative of the “free exercise” clause New York’s COVID restrictions on worship (Roman Catholic Diocese of Brooklyn v. Cuomo) and Philadelphia’s refusal to contract with Catholic Social Services to continue providing foster care (Fulton v. City of Philadelphia). It defended the freedom of association against California’s cynical argument that it had a legitimate reason to force nonprofits to disclose the names of their donors (Americans for Prosperity Foundation v. Bonta).
The court vindicated property rights, striking down a California regulation that authorized union organizers to physically occupy growers’ property (Cedar Point Nursery v. Hassid). It defended the separation of powers by agreeing with a challenge to limitations on a president’s power to remove the Federal Housing Finance Agency director (Collins v. Yellen). It rejected a reckless interpretation of the Voting Rights Act in a challenge to widely accepted restrictions on ballot harvesting and out-of-precinct voting (Brnovich v. Democratic National Committee).
Indeed, as David Rivkin and Andrew Grossman pointed out, “only textualist reasoning can achieve a majority on today’s court.” A decisive reason for this is the court’s three most recent arrivals. Over the course of this last term, Justice Clarence Thomas agreed in merits cases with two of them, Justices Neil Gorsuch and Amy Coney Barrett, more than with any other colleague.
My challenge to the naysayers who fail to recognize the dramatic level of progress on the high court is this: identify the last term you think the court did better.
Surely it was not the previous term, when the court (over Justice Brett Kavanaugh’s dissent, it should be noted) rewrote the Civil Rights Act of 1964 to include sexual orientation and transgender status; stymied the Trump administration’s rollback of the Obama administration’s Deferred Action for Childhood Arrivals (DACA) program; and struck down an abortion regulation aimed at women’s health.
The DACA ruling continued a trend of politicizing administrative law from the prior term, when the court set aside the Trump administration’s reinstatement of a citizenship question to the census. And the abortion ruling continued the court’s extra-constitutional foray into judicially legislating the issue of abortion, starting notoriously with Roe v. Wade in 1973 and continuing in later rulings in 1976, 1979, 1983, 1986, 1990, 1992, 2000, and 2016.
Was there a better term than the one begun in October 2020 during the last 50 years? Surely it was not 50 years ago, when the court muddled religion jurisprudence for generations with its decision in Lemon v. Kurtzman, particularly evident in attempts to apply the Lemon test in 1982, 1985, 1987, 1989, 1992, 2000, and 2005. Or 49 years ago, when the court in Furman v. Georgia effectively ended the death penalty by holding existing laws unconstitutional. Although the court lifted its virtual moratorium in Gregg v. Georgia (1976), decades of Eighth Amendment decisions followed based more on justices’ personal views of criminal punishment during given snapshots of time than on the law.
Then, of course, there were also terms in which the court upheld the charging of fees by unions to government employees who did not wish to join (Abood v. Detroit Board of Education, 1977); set standards that undermined the separation of powers with excessive deference to unelected bureaucracies (Chevron v. Natural Resources Defense Council, 1984, and Auer v. Robbins, 1997) and insufficiently accountable officers like the independent counsel (Morrison v. Olson, 1988); allowed the government to take private property from one private owner to give to another in exercising eminent domain (Kelo v. City of New London, 2005); overrode Congress’ legitimate process to handle challenges to the capture of enemy combatants on overseas battlefields (Boumediene v. Bush, 2008); struck down the Defense of Marriage Act (United States v. Windsor, 2013); and invented by judicial fiat a constitutional right to same-sex marriage (Obergefell v. Hodges, 2015).
These examples only scratch the surface. But they prompt a question to those who declare conservative judicial defeat: When did the Supreme Court last have a better term than the one just concluded?