Flexing their muscle
Most Supreme Court terms end with one, and sometimes two, “blockbuster” rulings. Often those cases arise from actions by one of the other branches of government. In 2012, for example, the Supreme Court reviewed the then-newlyenacted Affordable Care Act, also known as Obamacare. By one vote — that of Chief Justice John Roberts — the court upheld the new law. Similarly, in 2018, the Court reviewed the socalled “Muslim Ban” imposed by former Pres. Trump, limiting immigration to the U.S. from (initially) seven predominantly Muslim-oriented countries.
The 2021-22 term that is ending, however, is unique. The court has already issued three such landmark decisions, and is poised to issue a fourth. One was the New York gun case discussed here last week, which created a raft of new restrictions on how the government can regulate firearms. The next day, the court issued the long-awaited, long-dreaded final version of Dobbs v. Jackson Women's Health Organization, in which the court was only asked to uphold Mississippi's ban on abortions after 15 weeks; instead, it overturned the 50-year-old precedent Roe v. Wade, creating political chaos across the nation.
And then, this past week, it decided Kennedy v. Bremerton School District, holding that a high school football coach was free to lead post-game prayers on the field at a public high school. To reach that decision, it overturned another 50-yearold precedent, Lemon v. Kurtzman, which had set forth the “Lemon test” to evaluate cases involving entanglement between religion and government. And next week, it will issue its likely fourth such ruling, in a case involving the Environmental Protection Agency. Based on the questioning during oral argument, that decision is widely expected to severely limit the power of administrative agencies to address political, social, or economic problems.
As noted at the outset, sometimes actions by the executive (the “Muslim ban” case) or the legislature (the Affordable Care Act) lead the court to get involved. The legality of both the ban and the newly-enacted health care law was uncertain, so the court's rulings provided some certainty and stability so that the other branches of government could move forward.
This year, however, the court's decision to wade into not one, or two, or three, but at least four major policy issues was entirely of the court's own doing. Since the last of the three “Trump justices” — Neil Gorsuch, Brett Kavanaugh, and Amy Barrett — were sworn in, thereby cementing a five-vote conservative bloc that can do whatever it wants, that is indeed what they have done: exercise raw political power merely because, well . . . they can. They have five votes, they agree on the policies, so they'll do what they like.
This contrasts sharply with the vision of the Chief Justice who, while also deeply conservative, values the place of the Court and its public standing, and has tried to “go slow” so that the Court didn't look like just a super-legislature carrying out right-wing policy preferences. It's like the old tale of putting a frog in the pot. If you toss the frog into hot water, it will leap out. But if you put it into cool water and s-l-o-w-l-y turn up the heat, over time the frog will get acclimated, so that by the time the water becomes dangerously hot, it's too weak to escape.
A good example of the contrast is in the abortion decision. Roberts wrote separately — joined by none of the other justices — to say that he would simply have upheld Mississippi's 15-week ban on abortions. After all, that's all that Mississippi asked the court to do. Instead, it flat out reversed a 50-year-old precedent — again, just because it could.
And some of the other justices think more earthquakes should follow. Clarence Thomas, not content at undoing a half-century of law, wrote separately to say that it's time for the court to undermine lots of other precedents — on contraception and same-sex marriage, for example. Toss that frog into the boiling water!
The same is true, though, of the other issues that the Court took up in 2021-22. There was no one except a narrow religious minority — and the court's conservative majority — agitating for more religion in the public square. Likewise, the Court's gun decisions all have been issued since 2008. Like its legacy on religion, abortion, and administrative authority, this Court's majority is just making it up as it goes along.
And so, if you think that, say, the Court's rulings on the Affordable Care Act (or anything else) are now settled law . . . well, Clarence Thomas would like a word.