News Analysis
The Supreme Court’s six-member conservative-leaning majority flexed its muscles in its recent term that wrapped up on June 30.
It adopted a conservative or pro-limited government position in a series of closely watched rulings dealing with affirmative action, student loan relief, religious freedom, immigration, and property rights.
The term came after last year’s tumultuous term, in which it advanced conservative goals when it reversed Roe v. Wade, finding there was no constitutional right to abortion; recognized a constitutional right to carry a gun in public for self-defense; and curbed the government’s environmental regulatory powers.
The court issued 58 opinions in cases argued in the term that began in October 2022. Its new term will begin with oral arguments this October.
Curt Levey, an attorney who is president of the conservative legal advocacy non-profit Committee for Justice, said he was generally happy with the decisions rendered this term.
“This is a jurisprudentially conservative court that engages in textualism and certainly defers to precedent—unless it’s outrageous.” He said he was pleased that the court did “push back against the administrative state,” a reference to unelected bureaucrats exercising power that is supposed to be exercised according to the directive of elected officials.
The court did disappoint some conservatives by issuing only a brief stay against the abortion pill mifepristone, when its regulatory approval was challenged but then “immediately lifted it,” he said, referring to the April stay that temporarily blocked the pill’s sale.
From a “conservative constitutionalist” perspective, this term bodes well for the future, Levey said in an interview.
“The base of both parties will continue to want everything to go their way [and be] results-oriented. But I do wish that the base on the left at least would stop its rhetoric about this being a reflexively right-wing court because the evidence is it’s clearly to the contrary.”
Larry Salzman, director of litigation for the pro-liberty legal non-profit Pacific Legal Foundation (PLF), told The Epoch Times that this term, “the court again expressed a willingness to answer fundamental questions.”
“They looked at major cases on property rights, separation of powers, the 14th Amendment, and the meaning of civil rights.”
This term, the court examined “some of the deepest questions that the Constitution confronts—the relationship between the government and individuals, and with the separation of powers,” Salzman said in an interview.
The court was “deeply engaged” in preventing “federal agencies from exercising authority or doing things that Congress didn’t authorize them to do.”
“The court is standing in its proper role as a coequal branch of government to say, ‘We say what the law is, Congress wrote a law, and you’re exceeding it.’ And so the executive branch, the president of the United States, just can’t do things that Congress didn’t authorize.”
Salzman said it is “naïve to think” that the Supreme Court’s decisions are all about which parties appointed the justices.
“Jurisprudential reasoning is both more subtle and philosophical than you can line up with parties, and I don’t think it serves our institutions to have this view that it’s all about politics. It’s absolutely not. There are principles beneath all of these cases.”
Affirmative Action
In arguably the most anticipated decisions of the term, the court ruled 6-2 in Students for Fair Admissions Inc. (SFFA) v. Harvard College and 6-3 in SFFA v. University of North Carolina (UNC) to end the use of racially discriminatory admissions policies at U.S. colleges.
The court said the rulings do not apply to military academies because they didn’t figure in the cases and because there may be “potentially distinct” and “compelling” interests that justify the policy.
Then-Justice Sandra Day O’Connor predicted the demise of affirmative action at colleges in Grutter v. Bollinger (2003). “We expect that 25 years from now, the use of racial preferences will no longer be necessary,” she wrote, adding that “all governmental use of race must have a logical end point.”
Chief Justice John Roberts wrote on June 29 that for too long, universities have “concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin.”
A student “must be treated based on his or her experiences as an individual—not on the basis of race.”
“Many universities have for too long done just the opposite … Our constitutional history does not tolerate that choice.”
Justice Clarence Thomas, the nation’s second black Supreme Court justice after the late Thurgood Marshall, wrote that the universities’ admissions policies have been exposed “for what they are: rudderless, race-based preferences designed to ensure a particular racial mix in their entering classes.”
Justice Ketanji Brown Jackson, the first black female justice, sharply dissented, saying that the UNC ruling was “truly a tragedy for us all.”
“With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces ‘colorblindness for all’ by legal fiat. But deeming race irrelevant in law does not make it so in life.”
PLF’s Salzman said the result here was encouraging.
“On the whole, they [the justices] are willing to consider anew the deepest questions in civil rights law, and they came up with an answer. And that answer is: What matters is not groups, what matters is individuals. And race has no place in public life.
“I think the effect it would have more broadly doing is reaffirming the point that the 14th Amendment establishes a colorblind Constitution,” he said.
Redistricting
But the court was unwilling to remove the racial analysis in two cases about who gets to draw the boundaries of congressional districts, ruling against the conservative-constitutionalist position in both cases.
Republicans wanted the court to back away from factoring the race of voters into its jurisprudential calculus, while Democrats hoped the court would embrace the status quo and retain race as a factor in redistricting disputes.
On June 8, the court voted 5-4 to strike down Alabama’s electoral map, finding the map drawn by Republican state lawmakers was racially discriminatory and therefore a violation of the federal Voting Rights Act (VRA).
In Allen v. Milligan, the GOP-dominated state asked the court to weaken Section 2 of the VRA, which forbids voting procedures that discriminate on the basis of race, color, or membership in a large language minority group. But the court declined to do so.
Alabama’s position “runs headlong into our precedent,” Chief Justice John Roberts wrote.
“A district is not equally open … when minority voters face—unlike their majority peers—bloc voting along racial lines, arising against the backdrop of substantial racial discrimination within the State, that renders a minority vote unequal to a vote by a nonminority voter. ”
Justice Clarence Thomas dissented, writing that he “would resolve these cases in a way that would not require the Federal Judiciary to decide the correct racial apportionment of Alabama’s congressional seats.”
In Moore v. Harper, the court ruled 6-3 against North Carolina Republicans who argued that state legislatures have sweeping authority to make the rules for federal elections in the states without interference from the courts. Three conservative-leaning justices were in the majority; the other three dissented.
When it was dominated by Democrats, the Supreme Court of North Carolina struck down an electoral map drawn by the North Carolina General Assembly, finding that it violated the state Constitution’s provisions against gerrymandering. But Republicans took over the state court and reversed the ruling while the U.S. Supreme Court was still considering the case, finding there was “no judicially manageable standard by which to adjudicate partisan gerrymandering claims” and that courts “are not intended to meddle in policy matters.”
On June 27, the U.S. Supreme Court rejected the independent state legislature doctrine, under which Republicans say that the Constitution has always directly authorized state legislatures alone to make rules for conducting federal elections in their respective states. Democrats say it is a fringe conservative legal theory that could endanger voting rights, enable partisan gerrymandering in the redistricting process, and cause upheaval in election administration.
Justice Clarence Thomas wrote that he would have dismissed the case as “indisputably moot” after the North Carolina court ruled in the matter.
Christian Adams, president of the Public Interest Legal Foundation, a good-government group that focuses on election integrity, told The Epoch Times that the Milligan and Moore decisions won’t change much.
Both rulings “merely continued the status quo,” he said by email.
“The Alabama redistricting opinion just restated and reaffirmed Gingles v. Thornburg,” Adams said, referencing a 1986 Supreme Court decision.
“Moore v. Harper just kept the status quo—states have judicial review. So I think the impact is close to zero.”
Levey told The Epoch Times it was “a bit of a stretch to say that state legislatures are not subject to state judicial review,” as North Carolina had argued.
Biden White House principal deputy press secretary Olivia Dalton applauded the court for rejecting “the extreme legal theory presented in this case, which would have interfered with state governments [and] which would have opened the door for politicians to undermine people—and would have threatened the freedom of all Americans to have their voices heard at the ballot box.”
Student Loan Forgiveness
That the court struck down President Joe Biden’s student loan forgiveness program on June 30 didn’t come as a surprise to most legal commentators.
The Supreme Court voted 6–3, with all six conservative-leaning justices voting to invalidate the program and all three liberal-leaning justices voting to uphold it.
Biden unveiled the plan in a move that critics decried as a constitutionally dubious attempt to help Democrats in the November 2022 congressional elections. The Congressional Budget Office said the plan could cost about $400 billion but the Wharton School estimates the price tag could blow past $1 trillion.
The now-invalidated program would have canceled as much as $20,000 in loan principals for each of 40 million borrowers.
In Biden v. Nebraska, Chief Justice John Roberts wrote that the government overreached when it invoked the Higher Education Relief Opportunities for Students Act of 2003 (HEROES Act) to grant debt relief en masse.
The government “‘modified’ the cited provisions [in the statute] only in the same sense that the French Revolution ‘modified’ the status of the French nobility—it has abolished them and supplanted them with a new regime entirely,” Roberts wrote.
Justice Elena Kagan, dissented, writing that the government had “broad authority to relieve a national emergency’s effect on borrowers’ ability to repay their student loans.”
Biden denounced the decision and blamed Republicans.
Sixteen million people had been approved for debt relief and “the money was literally about to go out the door. And then Republican elected officials and special interests stepped in,” the president said.
“They said no, no—literally snatching from the hands of millions of Americans thousands of dollars in student debt relief that was about to change their lives.”
Religious Freedom
The court continued its trend from recent years of becoming increasingly protective of religious freedoms.
It ruled 6–3 on June 30 in favor of a Christian website designer who said that Colorado’s law requiring her to create websites to celebrate same-sex weddings infringed on her constitutional rights.
Justice Neil Gorsuch wrote in 303 Creative LLC v. Elenis that Colorado may not force “an individual to speak in ways that align with its views but defy her conscience about a matter of major significance.”
Justice Sonia Sotomayor dissented, writing that, “Today, the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class.”
On June 29, the court ruled unanimously in Groff v. DeJoy that the U.S. Postal Service violated the constitutional rights of an evangelical Christian mail carrier when the agency refused to accommodate his wish not to work on the Sunday Sabbath.
“We think it is enough to say that an employer must show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business,” Justice Samuel Alito wrote for the court.
Lawyer Aaron Streett, who represented Groff, hailed the new ruling at the time.
“Our nation has a long history of protecting its employees from being treated differently at work just because of their faith. This decision is consistent with that history and is a tremendous win for all people of faith.”
Immigration
The Supreme Court held 8–1 on June 23 that Texas and Louisiana may not challenge the Biden administration’s decision to focus deportation efforts on individuals deemed to be a threat to public safety.
The state sued the Biden administration over a policy announced in a Sept. 30, 2021, memorandum by Homeland Security Secretary Alejandro Mayorkas that claims it is impossible to remove the estimated 11 million illegal aliens present in the United States.
The document laid out a case-by-case process in which it prioritized the arrest and deportation of suspected terrorists, people who have committed crimes, and illegal aliens recently apprehended at the border.
But the states argued that the federal government was illegally refusing to immigration laws by prioritizing only certain enforcement categories at the expense of others. They said the law requires that specific criminal aliens, such as aggravated felons, must be detained upon release from criminal custody pending a decision on whether to remove them from the country. The law also requires that aliens subject to final orders of removal must be detained pending their removal, they said.
Justice Brett Kavanaugh threw out the states’ challenge, writing in United States v. Texas that the lawsuit was “extraordinarily unusual” and that precedent dictates that states lack legal standing to challenge the policy.
Because resources are limited, the government must prioritize some enforcement areas over others, he wrote.
The court “has consistently recognized that federal courts are generally not the proper forum for resolving claims that the Executive Branch should make more arrests or bring more prosecutions.”
In his dissent, Justice Samuel Alito expressed sympathy for the states, saying that they were “already laboring under the effects of massive illegal immigration” and the court’s decision makes them “even more helpless.”
Property Rights
The court reinforced private property rights that were being encroached upon by governments in three cases. PLF represented the legal challengers in all three appeals.
The court voted to rein in the power of the U.S. Environmental Protection Agency (EPA) to regulate wetlands on May 25 in Sackett v. EPA.
The justices unanimously ruled in favor of Chantell and Mike Sackett who years ago had started building a new home in Priest Lake, Idaho, when the EPA and Army Corps of Engineers suddenly ordered them to stop all work. The government agencies stated that the couple needed a federal permit and threatened them with more than $30,000 in daily fines.
The EPA had determined years before that the Sackett’s parcel of land contained wetlands. The Sacketts say their lot lacks a surface water connection to any stream, creek, lake, or other water body and that it shouldn’t be subject to federal regulation and permitting.
But the justices disagreed on the new rule that the court should follow, splitting 5-4 on what criteria should be used.
The court’s majority opinion was written by Justice Samuel Alito, who held that the EPA had overreached.
The federal Clean Water Act “extends to only those ‘wetlands with a continuous surface connection to bodies that are waters of the United States in their own right,’ so that they are ‘indistinguishable’ from those waters.”
“The wetlands on the Sacketts’ property are distinguishable from any possibly covered waters,” Alito wrote.
Justice Brett Kavanaugh wrote in a dissenting opinion that the test the court’s majority adopted here was wrong.
“[T]he Court’s ‘continuous surface connection’ test departs from the statutory text, from 45 years of consistent agency practice, and from this Court’s precedents,” he wrote.
Justice Elena Kagan wrote that the majority was reacting to “an ambitious scheme of environmental regulation,” to curtail “the anti-pollution actions Congress thought appropriate.”
PLF’s Salzman told The Epoch Times that Sackett was “a property rights case—it was about a family trying to build a home on their private property and whether the federal government had authority to stop them.”
“And so in the end, they said, the local government approved building permits, and the federal government shouldn’t have any more to say about it,” he said.
From The Epoch Times
