The Supreme Court just wrapped up its most consequential term in decades. This is about so much more than overturning Roe v. Wade and allowing states to outlaw abortion. This is about the most conservative Supreme Court in at least three-quarters of a century taking its newfound 6-3 majority out for a spin.
Just how conservative was this court in this term, which stretched from last October to this June? Chief Justice John Roberts is no longer at its center. He is, remarkably, to the left of the center. Let’s be clear, does this mean Roberts is a progressive judge? A million times, no. He just happens to be on a court with five judges who are even more conservative than he is. This became true the moment then-President Donald Trump nominated Amy Coney Barrett, his third deeply conservative nominee to the court.
This is about the most conservative Supreme Court in at least three-quarters of a century taking its newfound 6-3 majority out for a spin.
With Barrett replacing Justice Ruth Bader Ginsburg, the sands have shifted under Roberts’ feet. Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Barrett can now form a majority without Roberts — and have done so. His vote, and the accompanying power as chief justice to decide who writes the majority opinion, is no longer needed for his colleagues to achieve their conservative goals.
Perhaps the best example of this is the court’s decision to overturn Roe v. Wade. After decades of conservative activism, the court finally had five votes willing to conclude that the right to obtain an abortion is no longer protected by our Constitution. In his concurring opinion, Roberts wrote that he would have issued a narrower decision. He would have upheld Mississippi’s 15-week ban on abortion, but left intact some unrecognizably narrow promise that somewhere deep in the Constitution, the right to obtain one is still protected. Not one of the other eight justices agreed with him enough to sign onto his opinion.
But this term was about more than abortion. It was also about guns, religious rights and the power of the federal government. In its biggest Second Amendment case in more than a decade, the court struck down New York’s 109-year-old gun control law. The approximately half a dozen states that had similar laws requiring applicants for concealed carry permits to show a special need, or “proper cause,” must now remove those laws from their books.
This includes California, home to almost 12% of the nation’s population. Simply put, it will be much easier to obtain concealed carry permits in states affected by the court’s decision. This is not an academic difference: About 10 million people live in Los Angeles County alone. In mid-2020, there were about 155 active concealed carry permits in L.A. County; the sheriff estimates that after the Supreme Court’s ruling, that number could top 50,000.
This term was also about guns, religious rights and the power of the federal government.
More troubling is the huge implications of the court’s new approach to interpreting the Second Amendment. Thomas, writing for the conservative majority, concluded that any gun control measure must be “consistent with the Second Amendment’s text and historical understanding.” This standard may sound innocuous, but it is simultaneously overly malleable and frustratingly rigid. Thomas’ framing does not, in fact, answer the question of which gun regulations should be permissible under the Second Amendment. Instead, it all-but invites judges to go on far-reaching tours of historical practice to cherry-pick those traditions that best support their desired outcome. (Alito undertook a similarly selective hunt through time in his decision ending Roe.)
As Justice Stephen Breyer noted in his dissent, the approach taken by Thomas “refuses to consider the government interests that justify a challenged gun regulation, regardless of how compelling those interests may be.” Again, this is not merely an academic argument. The first line of Breyer’s dissent reminds us why this specific approach to the law, which ignores the government’s goals, can have deadly consequences: “In 2020, 45,222 Americans were killed by firearms.”
The conservative majority also whittled away at protections against government endorsement of religion. The court held that a public high school football coach could not be fired for praying at the 50-yard line after games and that a state could not prohibit the use of public funds for use at religious schools. The court is arguably using the free exercise clause of the First Amendment as a sword against any actions that the government might take that could burden the exercise of religion. This of course happens at the expense of any actions that the government might take to prevent the government endorsement of religion. As Justice Sonia Sotomayor pointed out in her dissent in one of the two big religion cases this term: “The Court leads us to a place where separation of church and state becomes a constitutional violation.”
And finally, the court has restricted the power of federal agencies to make “major decisions.” That includes the Environmental Protection Agency’s attempt to reduce power plants’ carbon dioxide emissions. The court found that Congress must give federal agencies more specific authority to act in these cases. Just as Breyer began his dissent in the gun control case with the real world impact of the court’s decision by citing statistics regarding the number of Americans who are killed by guns, Justice Elena Kagan began her dissent by talking about the “catastrophic harms” caused by climate change.
That concludes our tour of the 2021-22 Supreme Court term. The practical implications of the court’s decisions cannot be overstated. States can completely ban abortions, including in the most horrifying circumstances. Those same states are, however, going to be limited in their gun control measures, giving more people access to more guns. States and the federal government alike are also going to be limited in how they can try to maintain the separation between religion and the government. And finally, federal agencies will be limited in how they can try to do things like avoid climate change disasters.
It turns out that all of the hyperbolic cliches about this Supreme Court term being a “blockbuster” that would be full of “bombshell” decisions were actually accurate — and perhaps even understatements. Its next term stands to be just as significant, as the court stands poised to fundamentally reshape our nation’s election rules, just when a House Select committee is investigating Trump’s apparent attempt to overturn the 2020 presidential elections. It is not hard to see the real world consequences of a decision there. And that’s what makes the latest term truly frightening: This was just the beginning for this hyper-conservative court.
