The Roberts Court’s New Constitutional World

From a New York Times essay by Linda Greenhouse headlined “The Roberts Court’s New Constitutional World”:

The end of a Supreme Court term always sparks a lively conversation about how to characterize what just happened, and this year was no exception. In refusing to weaken the Voting Rights Act any further, did the court show itself to be a bit less dogmatically conservative than the year before? Did the 6-to-3 rejection of a dangerous theory that would have stripped state courts of the authority to review election laws show that the justices could still build bridges across their ideological divide?

Yes, democracy survived, and that’s a good thing. But to settle on that theme is to miss the point of a term that was in many respects the capstone of the 18-year tenure of Chief Justice John Roberts. To understand today’s Supreme Court, to see it whole, demands a longer timeline. To show why, I offer a thought experiment. Suppose a modern Rip Van Winkle went to sleep in September 2005 and didn’t wake up until last week. Such a person would awaken in a profoundly different constitutional world, a world transformed, term by term and case by case, at the Supreme Court’s hand.

To appreciate that transformation’s full dimension, consider the robust conservative wish list that greeted the new chief justice 18 years ago: Overturn Roe v. Wade. Reinterpret the Second Amendment to make private gun ownership a constitutional right. Eliminate race-based affirmative action in university admissions. Elevate the place of religion across the legal landscape. Curb the regulatory power of federal agencies.

These goals were hardly new, but to conservatives’ bewilderment and frustration, the court under the previous chief justice, the undeniably conservative William Rehnquist, failed to accomplish a single one of them. In fact, to any conservative longing for change, the situation in 2005 must have appeared grim indeed. Not only had the Rehnquist court reaffirmed the right to abortion in the 1992 Casey decision; in 2000 it overturned a state ban on so-called partial-birth abortion, a law aimed at enlisting the court in a graphic anti-abortion narrative.

On gun rights, the court was maintaining a decades-long silence despite Justice Clarence Thomas’s public call in 1997 to revisit the Second Amendment and the George W. Bush administration’s startling advice to the court five years later that the federal government was ready, for the first time, to support the individual-right position on the ownership of firearms when an appropriate case arrived.

The Grutter decision in 2003, upholding affirmative action in admission to the University of Michigan’s law school, appeared to put racially conscious admissions decisions on a solid footing, at least for 25 more years.

On religion, a 1990 decision written by Justice Antonin Scalia held that the First Amendment’s free exercise clause ordinarily did not provide a religious opt out from compliance with laws that applied to everyone. And one of Chief Justice Rehnquist’s last major opinions, Locke v. Davey, called for maintaining a cautious “play in the joints” between free exercise and the First Amendment’s other religion clause, the establishment clause. (“In other words,” as the court put it, “there are some state actions permitted by the establishment clause but not required by the free exercise clause.”) The decision rejected the claim that a state offering scholarships for postsecondary education had to cover study for the ministry as well. There is little doubt that the same case would come out differently today.

Finally, actions of the federal agencies that make up the administrative state were largely insulated from judicial review based on the court’s 1984 Chevron decision, requiring courts to defer to an agency’s plausible interpretation of its own authority if Congress had failed to speak precisely to the question at hand.

That was how the world looked on Sept. 29, 2005, when Chief Justice Roberts took the oath of office, less than a month after the death of his mentor, Chief Justice Rehnquist. And this year? By the time the sun set on June 30, the term’s final day, every goal on the conservative wish list had been achieved. All of it. To miss that remarkable fact is to miss the story of the Roberts court.

It’s worth reviewing how the court accomplished each of the goals. It deployed a variety of tools and strategies. Precedents that stood in the way were either repudiated outright, as the Dobbs v. Jackson Women’s Health Organization decision did last year to Roe v. Wade and Planned Parenthood v. Casey, or were simply rendered irrelevant — abandoned, in the odd euphemism the court has taken to using. In its affirmative action decision declaring race-conscious university admissions to be unconstitutional, Chief Justice Roberts’s majority opinion did not overturn the 2003 Grutter decision explicitly. But Justice Thomas was certainly correct in his concurring opinion when he wrote that it was “clear that Grutter is, for all intents and purposes, overruled.”

Likewise, the court has not formally overruled its Chevron decision. Its administrative-law decisions have just stopped citing that 1984 precedent as authority. The justices have simply replaced Chevron’s rule of judicial deference with its polar opposite, a new rule that goes by the name of the major questions doctrine. Under this doctrine, the court will uphold an agency’s regulatory action on a major question only if Congress’s grant of authority to the agency on the particular issue was explicit. Deference, in other words, is now the exception, no longer the rule.

But how to tell a major question from an ordinary one? No surprise there: The court itself will decide. While the ratio of major questions to ordinary questions of administrative law remains to be seen, it’s hard to envision an issue important and contentious enough to make it to the Supreme Court not being regarded as major by justices who flaunt their skepticism of the administrative state.

Justice Neil Gorsuch was candid about this in a concurring opinion last year when the court limited the Environmental Protection Agency’s ability to regulate emissions from power plants. The major questions doctrine, he explained, “applies when an agency claims the power to resolve a matter of great ‘political significance.’” What is a better indicator of political significance than sustained conservative backlash? Last year’s environmental case set the stage for the court’s June 30 decision overturning the Biden administration’s student-loan forgiveness program.

The Heller decision in 2008 opened the Second Amendment door a crack, granting individuals the right to keep a handgun at home for self-defense. Chafing at Heller’s limited scope, Justice Thomas complained repeatedly over the next 14 years that the court was treating the Second Amendment as a “second-class right.” He finally won the day with the Bruen decision in 2022, a breathtakingly broad opinion rejecting any limitation on gun ownership that can’t be tied to an analogous limitation in the 18th century. On June 30, the court agreed to hear United States v. Rahimi, which will put this approach to the test. The question in the case is whether the Second Amendment allows the government to bar gun ownership by an individual under a restraining order for domestic violence. That the answer actually might be “no” — domestic violence wasn’t even a concept in the 18th century, when the Second Amendment was adopted — is too astonishing to contemplate.

And then there is religion and the case of the web designer who sought the right to refuse to design websites for same-sex couples celebrating a marriage. I was baffled when the court agreed to hear the designer’s appeal in February of last year, and not only because the designer, Lorie Smith, had not yet designed a wedding website for a paying customer and hadn’t turned anyone away — indications that the case wasn’t ripe for review.

Her lawyers at Alliance Defending Freedom, a hard-right Christian litigating group, asked the court to decide whether Colorado’s law prohibiting businesses from discriminating against L.G.B.T.Q. people violated either Ms. Smith’s right to freedom of religion or to free speech. The court agreed to hear only the speech question. I didn’t see how the two questions could be disentangled, given that Ms. Smith sought the right to post a statement on her web page explaining that it was for religious reasons that she was unable to create a website for a same-sex wedding. In other words, it was religion that inextricably fueled her free-speech claim.

Justice Gorsuch’s majority opinion, in fact, took pains to nest the religious essence of the case so deeply in the discussion of free speech that even a well-informed reader might not realize what the decision accomplished: The court has created a religious opt-out from compliance with laws that govern the commercial marketplace. He found a First Amendment violation in the fact that if Ms. Smith went into the wedding website design business, Colorado’s anti-discrimination law would require her to take all customers. His opinion cites many First Amendment precedents, including the right not to salute the flag, the right of private parade organizers not to include a gay organization among the marchers and the right of the Boy Scouts not to retain a gay scoutmaster.

But none of those precedents are relevant, because none involved discrimination by a commercial entity. It is only on the first page of Justice Sonia Sotomayor’s dissenting opinion, joined by Justices Elena Kagan and Ketanji Brown Jackson, that a reader will comprehend clearly what just happened: “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.”

A full understanding of this case, 303 Creative L.L.C. v. Elenis, requires context. It is now eight years since the court, in Obergefell v. Hodges, recognized a constitutional right to same-sex marriage. Of the six members in the majority in 303 Creative, three were on the court for Obergefell, and all three — Chief Justice Roberts and Justices Thomas and Samuel Alito — were dissenters. Justice Alito’s dissenting opinion, which Justice Thomas joined, was bitter. The decision would be “used to vilify Americans who are unwilling to assent to the new orthodoxy,” he warned. Since then, those two justices have been searching for an Obergefell victim whose plight would vindicate their expressed concern. It wasn’t easy, but finally, despite the appeal’s obvious procedural flaws, in 303 Creative they found one.

My focus here on what these past 18 years have achieved has been on the court itself. But of course, the Supreme Court doesn’t stand alone. Powerful social and political movements swirl around it, carefully cultivating cases and serving them up to justices who themselves were propelled to their positions of great power by those movements. The Supreme Court now is this country’s ultimate political prize. That may not be apparent on a day-to-day or even a term-by-term basis. But from the perspective of 18 years, that conclusion is as unavoidable as it is frightening.

Linda Greenhouse, the winner of a 1998 Pulitzer Prize, reported on the Supreme Court for The Times from 1978 to 2008. She is the author of “Justice on the Brink: The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months That Transformed the Supreme Court.”

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