The 2021-2022 Supreme Court term had its share of high-profile rulings that directly affected the lives of millions of Americans. The court’s 6-3 conservative majority issued decisions on abortion, guns and separation of powers that evoked strong opinions on both sides of the political spectrum.
At the American Bar Association Annual Meeting in Chicago on Aug. 6, the Showcase program, “The Roberts Court 2021-2022: Abortion, Guns and Separation of Powers,” assembled a panel of constitutional law experts to dissect the U.S. Supreme Court’s most controversial decisions and read the tea leaves on what to expect next term from the justices.
Panel moderator John M. Barkett, a partner at Shook, Hardy, & Bacon in Miami, went through the statistics of the 66 court decisions for the term (including three per curiam) and noted that Chief Justice John Roberts issued the most opinions with eight.
This term, only 29% of the court’s merit decisions were unanimous, a sharp drop from the 43% average over the past decade. The most common vote for the term was 6-3, with 30% of cases decided with that vote, including major cases that expanded Second Amendment rights, increased the role of religion in public life, and limited the government’s authority to regulate carbon emissions.
The most notable case of the term — Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and found that there was no constitutional right to abortion — had the conservative bloc’s 6-3 vote. Roberts wrote a concurrence that said he preferred a narrower result and would not have overturned Roe.
The panel jumped right into the fire, discussing the Dobbs decision first. Legal scholar Melissa Murray, a New York University law professor and MSNBC legal commentator, led off by explaining the logic behind the Dobbs decision authored by Justice Samuel Alito.
Murray pointed out that when the court was first asked to take the Dobbs case in June 2020, it was not asked to overturn Roe and the subsequent Planned Parenthood v. Casey case that upheld Roe. But after going through more than a dozen court conferences, the question did become whether or not to overturn Roe. The difference? Amy Coney Barrett had replaced Justice Ruth Bader Ginsburg after Ginsburg’s death in September 2020.
Alito ruled that the text of the Constitution did not explicitly mention a right to abortion and that a right to abortion was not deeply rooted in American society. While Justice Brett Kavanaugh concurred, he stressed the decision should be returned to the states and that the ruling would have no effect on same-sex marriage, contraception or travel between states. Justice Clarence Thomas’ concurrence did not express the same confidence as Kavanaugh that same-sex marriage and contraception were as strongly protected.
Genevieve Lakier, a professor at The University of Chicago Law School, warned that this decision “is not the end of abortion in the federal courts.” She spelled out the argument between “enumerated” and unenumerated” rights and argued that abortion was protected under the 14th Amendment and bodily autonomy. “The logic of the Dobbs decision fails,” she said.
Murray also warned that same-sex couples, even if their right to marriage is upheld by the court, may have a “difficulty to exist” because of the court’s recent willingness to allow religious exceptions that could result in discrimination.
Vikram Amar, dean of the University of Illinois College of Law, explained Thomas’ decision in New York State Rifle & Pistol Association Inc. v. Bruen, which ruled a longstanding New York law that granted government officials discretion in whether to give concealed carry permits to individuals as unconstitutional. Thomas expanded on the Heller decision that ruled law-abiding citizens could possess a handgun in the home for self-defense to a similar right to carry handguns publicly for self-defense.
Thomas wrote that a law must demonstrate it has historical relevance. But all the panelists questioned Thomas’ use of history.
“The court is playing amateur historian,” Murray said. “They are prioritizing one era and glossing over precedence that doesn’t work for them.”
Amar added that the Supreme Court justices and the bar that argues before them are not experts in any field of law but generalists. Still, they like to act like experts. “The court can’t be so arrogant,” Amar said.
Lakier’s criticism was harsher. She pointed to a “radicalism” in the court and its pervasive infatuation with history, but never seeming to settle on the point in our history that matters, which gives “the court wide discretion to create the narrative they want,” she said.
Murray also highlighted the inconsistency in the decision where Dobbs stressed federalism — giving the power to the states — while Bruen took the authority away from the states.
The panel also discussed several other key rulings. In West Virginia v. Environmental Protection Agency, the court ruled that Congress did not grant the EPA the authority to devise emissions caps based on the Clean Air Act.
Amar said that while the Clean Air Act may have given the EPA the power to prescribe different ways to burn coal, the court decided that the agency did not have the authority to adopt regulations changing what was allowed to burn.
The ruling deals with the “major questions doctrine,” which holds that courts should not defer to agency statutory interpretations that concern questions of “vast economic or political significance” unless they are sure that is what Congress intended. Amar said that this thinking is “anachronistic” because of “congressional paralysis.” Since Congress can’t make the needed decisions, nothing will get done. “It’s a recipe for not dealing with anything and that has major consequences,” Amar said.
Murray added that the wide discretion that the court has given to determine when specific authorization is required has become a “formula for deregulation.”
The panel noted how the court has shifted dramatically on the topic of religious expression and freedoms. In the battle between the free exercise of religion clause and the establishment clause that separates church and state, the free exercise clause has been the winner, especially with this current court makeup.
In Carson v. Makin, the court ruled that Maine violated the Constitution when it refused to make public funding available for students to attend schools that provide religious instruction. In Kennedy v. Bremerton School District, the court said that free exercise and free speech clauses of the First Amendment protect an individual engaging in a personal religious observance in a case about a Washington state football coach who held a prayer service at the 50-yard line after games. And in Shurtleff v. City of Boston, the court ruled 9-0 that the city’s flag-raising program’s refusal to let a Christian group fly their flag violated the free speech clause of the First Amendment.
As far as the upcoming term, two cases involving challenges to race-based affirmative action at Harvard University and the University of North Carolina, which have been joined, will garner a lot of attention.
But the biggest case will be Moore v. Harper, which will explore the independent state legislature theory. The case would grant state legislatures wide latitude over courts in their states and could have huge implications going forward regarding elections in America. “It’s a very, very, very important case,” Amar said.
The program was sponsored by the Judicial Division.
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