On Thursday, June 30, the Supreme Court officially concluded its 2021-2022 term with the release of its opinion Biden v. Texas, a case which drew a unique comingling of the Court’s reliable liberals alongside Justice Brett Kavanaugh and Chief Justice Roberts. Writing for the majority, Roberts upheld the Biden Administration’s decision to discontinue the Trump-era Remain in Mexico policy for noncitizens awaiting immigration proceedings at the southern border. In any other term, this very well could have been the defining case – one that would provide legal scholars and commentators with ample motivation to steer law review articles and Op-Eds until the Court returns to action in the fall. This was not any other term. Instead, as some have noted, any of the Court’s decisions in the final two weeks of the term could’ve met that distinction on their own. Combined, it represents perhaps the most memorable (or infamous, depending on your perspective) Supreme Court term in recent memory. To begin:
The term represented some notable events beyond its usual legal proceedings, perhaps none more important than the decision of Justice Stephen Breyer to declare senior status – a special retirement designation for federal judges – in January following nearly 30 years of service. The decision provided President Biden with his first opportunity to offer his first nominee to the Court, which resulted in the successful confirmation of now-Justice (as of noon on June 30) Ketanji Brown Jackson. However, the balance of ideological power on the Court, as illustrated by this term, means that Justice Jackson’s capacity to significantly influence the Court’s jurisprudence in the near future is very unlikely.
The term also reinforced an evolving reduction in public support, wherein a recent Gallup poll revealed that only 25% of survey respondents have a Great deal/Quite a lot of confidence in the Court. While this itself might be troubling, it coincides with an 11% drop from the same poll in 2021 and 15% since 2020. The only period on record with a comparable trend would be 1988 to 1991, which saw a 17% drop.
As Adam Feldman and others note, while the term surely lived up to early expectations that the Court’s conservative majority could run the gambit on generational issues – e.g., the power of executive administrations to regulate private corporations (West Virginia v. EPA), the breadth of the 2nd Amendment (New York Rifle & Pistol Association v. Bruen), and, of course, abortion (Whole Women’s Health v. Jackson and Dobbs v. Jackson Women’s Health Organization) – much of the actual decision-making was otherwise consistent and predictable. Among the decisions released this term, there were 17 unanimous decisions and 13 decisions where the three liberals – Justices Breyer, Sotomayor, and Kagan – were alone in their dissents against the Court’s six-justice conservative majority (Roberts, Thomas, Alito, Gorsuch, Kavanaugh, and Barrett). Based on the percentage of total opinions from orally argued cases, the proportion of unanimous decisions (29%) is the lowest in at least a decade and well below the average of 43% (SCOTUSblog).
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9-0 (or 8-0) |
8-1 |
7-2 |
6-3 |
5-4 |
|
17 |
11 |
4 |
18 |
9 |
However, the decisions that embodied the term were most surely those that ended with a 6-3 majority (representing the general ideological breakdown of the Court’s 6 conservatives and 3 liberals), which were the most frequent at 30% of the total opinions. To provide a brief summary of the most notable decisions, from among many:
Carson v. Makin (6-3, Majority Opinion by Chief Justice Roberts):
Like many states, Maine provides tuition assistance (i.e., student vouchers) that can be used to send students to private schools, though they amended their program in 1980 to reflect a growing consensus that providing funds to secular institutions otherwise run by religious organizations violated the Constitution’s Establishment Clause. The plaintiffs were a group of parents who did not live in the immediate proximity of a public secondary school and instead chose to send their children to a religiously affiliated private school. However, since the school did not meet the non-sectarian requirement, they were denied the voucher. On appeal from the 1st Circuit (which affirmed the state’s requirement), the Court drew on recent rulings in 2002 (Zelman v. Simmons-Harris), 2017 (Trinity Lutheran Church of Columbia v. Comer), and 2020 (Espinoza v. MT Department of Revenue) to find that Maine’s exclusion of private religious schools represented a greater separation of church and state than intended by the Establishment Clause. In effect, the Court found that Maine’s decision to directly exclude otherwise eligible schools solely on the basis of religious affiliation or exercise constituted discrimination against religion. In one of the two dissents, Justice Sotomayor went so far as to argue that the decision to effectively mandate states to include taxpayer funding for religious institutions as a requisite for any tuition assistance program “continues to dismantle the wall of separation between church and state that the framers fought to build.”
Kennedy v. Bremerton School District (6-3, Majority Opinion by Justice Gorsuch):
Another decision with religious overtones, the case concerned Joseph Kennedy – an assistant football coach at Bremerton High School in Washington who began leading on-field prayer circles at the 50-yard-line after each game. It was eventually relayed to Kennedy that accommodations could be made to make the displays more private – the fear from the school board being that they would appear complicit in facilitating religious observances on public school grounds that could implicitly coerce student participation. He would continue to engage in on-field religious observances before being placed on paid leave, and his contract was not renewed the following year. On appeal from the 9th Circuit, the Court ruled that Kennedy’s first amendment rights had been violated. Writing for the majority, Gorsuch contended that unlike prior cases concerning prayer in public schools that upheld prohibitions against these sorts of displays, Kennedy “offered his prayers quietly while his students were otherwise occupied” and breached no concerns of potential coercion that might otherwise make students feel obligated to join him. Writing the dissent, Justice Sotomayor largely criticized the Court’s preferential treatment of the Free Exercise Clause at the expense of the Establishment Clause. Sotomayor further criticized the majority’s account of the facts, going so far as to include pictures of the prayer circles and adding that “Kennedy consistently invited others to join his prayers and for years led student-athletes in prayer.”
New York State Rifle & Pistol Association v. Bruen (6-3, Majority Opinion by Justice Thomas):
The state of New York has historically maintained among the strictest concealed carry restrictions in the United States, effectively requiring applicants to show a special need for self-protection in order to receive an unrestricted license. The plaintiffs sued in federal court after the state refused their applications by claiming that they failed to show proper cause. On appeal from dismissal at the 2nd Circuit, the Court considered whether the special requirement for applicants to demonstrate special need violates the 2nd Amendment – though the plaintiffs originally asked the Court to consider whether the amendment allows the government to prohibit ordinary citizens from carrying handguns outside the home for self-defense. Writing for the majority, Justice Thomas held that New York’s law – which had been in effect since 1911 – was an unconstitutional violation of the right to keep and bear arms, essentially finding that the state had created a protocol for exercising a constitutional right based entirely on a demonstration of some special need to do so. Though the opinion restrained the ruling to note that carrying restrictions in certain spaces – such as courthouses and polling places – would likely still be upheld, the Court’s ruling effectively renders public carry a constitutional right. Writing for the dissent, Justice Breyer drew from contemporary discussions on America’s gun violence epidemic by claiming that the Court’s ruling will impede states’ ability to keep people safe.
Dobbs v. Jackson Women’s Health Organization (6-3, Majority Opinion by Justice Alito)
Perhaps the most infamous decision this term – if not in recent memory, this case centered on Mississippi’s Gestational Age Act (2018), a state law that prohibits (with few exceptions) all abortions after 15 weeks’ gestational (i.e., period of development for an embryo or fetus) age. The litigation began shortly after the ratification of the law, wherein Jackson Women’s Health Organization – the only licensed abortion facility in Mississippi – sued in federal court arguing that the law violated the Supreme Court’s landmark holdings in Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). As an aside, it should be noted that while Roe shares a distinction alongside other landmarks like Marbury v. Madison (1803) and Brown v. Board of Education (1954) as one of the most recognizable cases in the Court’s history, much of the contemporary understandings of pre-Dobbs protections for abortion rights are rooted concurrently in Casey. Nonetheless, the core consideration of the legal debate concerning access to abortion has historically centered on competing interests between a woman’s right to privacy and bodily autonomy versus the government’s desire to protect unborn life – a debate in which the Court has historically held that the mother’s interests must be respected until the point of fetal viability, usually in or around 24 weeks of pregnancy. When the case reached the Supreme Court, the narrative appeared to transition from a consideration of the Gestational Act’s 15-week prohibition to an outright overruling of Roe and Casey. A lengthy draft opinion was leaked on May 2nd by Politico that appeared to strongly indicate that the Court was on the cusp of doing just that, and this expectation was confirmed on June 24th. Across nearly 36,000 words and representing the third-longest opinion since 1946, Justice Alito delivered a scathing critique of Roe and Casey, going so far as to argue that “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.”
Looking forward to the next term, it appears likely that the Court will maintain this same momentum of adjudicating generational and politically charged questions. Perhaps most notably, the Court recently announced it has granted review to Moore v. Harper, a case directly at the center of the doctrine known as the independent state legislature theory – “the idea that, under the Constitution, only the legislature has the power to regulate federal elections, without interference from state courts” (Amy Howe). The case has the potential to grant (or deny) sweeping powers to state legislatures based on the Constitution’s elections clause, which gives them the power to set the “Times, Places and Manner of holding Elections for Senators and Representatives.” While the case itself centers on a dispute between the North Carolina Supreme Court and the state’s Republican-controlled legislature over the drawing of congressional districts, it harkens to the broadest concerns of the 2020 presidential election – i.e., do state legislatures have the power to unilaterally facilitate federal elections without interference from the state’s legal system? To illustrate the potential ramifications, a recent article at Time provides a poignant set of hypotheticals:
“For example, under ISL if an elected state legislature were to announce today that in 2024 it will pick presidential electors itself without regard to what the state voters desire, even if the state constitution provides that electors shall be chosen by the people, there is nothing any other organ of state government—the Governor; the courts, as in the North Carolina case; the people themselves—can do about that. Or if a state legislature announces today that it—rather than elected officials or courts—shall adjudicate any post-election disputes over who actually won, such an arrogation of power would have to be respected, even if it flatly contradicted a state constitutional provision requiring administrative or judicial review of such election disputes.”
