The Supreme Court’s 2021-22 term is certainly one for the history books. The number of cases the Court handles continues to decline, making several cases with outsized attention and impact really stand out.
Justice Clarence Thomas has described the judicial task as “interpret[ing] and apply[ing] written law to the facts of particular cases.” In the cases the public hears about, the process for fulfilling this task has four parts: the parties to a case submit written briefs, the Court hears arguments from the parties’ lawyers, the Court makes a judgment that answers the legal question in that case, and then issues a written opinion explaining that judgment. Most opinions bear the name of the justice who wrote it; those with joint authorship are called per curiam.
Since the early 20th century, the Supreme Court has had almost complete discretion over which of the thousands of cases appealed to it each year it will consider. The number of cases each year that get the full treatment, from written briefs and oral arguments to written opinions, has declined from an average of 165 in the 1970s and 80s to 89 in the last two decades. The term that just ended produced only 63 cases decided with written opinions after oral arguments, the lowest total in nearly a century.
The biggest decision of the term came in Dobbs v. Jackson Women’s Health Organization, in which abortion clinics challenged a Mississippi law prohibiting abortion after 15 weeks. In Roe v. Wade, the Supreme Court in 1973 created a right to abortion that, it said, was protected by the 14th Amendment and issued rules for evaluating different kinds of abortion restrictions. Decisions in more than two dozen abortion cases followed as lower courts struggled with applying the Supreme Court’s controversial ruling.
In Planned Parenthood v. Casey, the court in 1992 revised Roe’s basic decision and its rules, but the controversy and confusion continued. The Mississippi law banned abortion long before Roe and Casey allowed, prompting the Court to decide whether those precedents should be abandoned altogether. In Dobbs, the Court voted 5-4 that Roe and Casey had been wrong, unworkable, and poorly reasoned and should be overruled. Chief Justice John Robert voted to uphold the Mississippi but wanted to, yet again, revise the Court’s abortion rules rather than abandon them altogether.
The Court also decided cases involving multiple clauses of the First Amendment. In Shurtleff v. Boston, the city of Boston allowed many groups holding ceremonies in City Hall Plaza to fly a flag next to the city and Massachusetts flags. Boston, however, denied permission for a group to fly what is often referred to as the Christian flag. The flags on this third pole, Boston said, amounted to government speech and, therefore, flying a Christian symbol would be an “establishment of religion” prohibited by the First Amendment. The Supreme Court unanimously disagreed. Because the flag was instead private expression, the government could not discriminate against certain viewpoints.
Kennedy v. Bremerton School District involved the intersection of the First Amendment’s two religion clauses. Since he was hired in 2007, high school football coach Joe Kennedy regularly knelt at midfield after games had ended to offer a brief silent prayer. Some players or coaching staff sometimes asked tojoin him, but he did not encourage or pressure anyone to do so. Kennedy also continued an existing tradition of pre-game prayer in the locker room. In 2015, the school district told him to stop the locker room prayers, which he did, and that he could silently pray, even by himself, only where no one could see him. The district claimed that anyone assuming that the school district approved of his silent, solitary, 30-second prayer would turn the situation into an establishment of religion. The Supreme Court voted 6-3 that the school district had violated Kennedy’s First Amendment right to freely exercise religion.
Carson v. Makin also involved the claim that a government practice established religion. Maine’s tuition assistance program helps parents in counties with no public schools send their child to accredited private “nonsectarian" schools. Maine argued that including sectarian schools would result in taxpayers’ money being put to a religious “use” and, therefore, would be an establishment of religion. The Supreme Court voted 6-3 that, in fact, Maine was discriminating against sectarian schools solely because of their religious “status,” which clearly violated the First amendment right to freely exercise religion.
The Supreme Court also decided an important Second Amendment case. New York Rifle & Pistol Association v. Bruen challenged a New York state law requiring a license to carry a firearm outside the home. Obtaining a license to carry a concealed handgun, however, required satisfying a government official that an individual had “a special need for self-protection distinguishable from that of the general community.” The law did not define “special need,” leaving that determination up to the official’s personal discretion. As it had done in two previous cases striking down firearm restrictions in Washington, D.C., and Chicago, the Court focused on the “original meaning of the constitutional text,” voting 6-3 that the New York law violated the right to keep and bear arms.
Another important case, West Virginia v. EPA, involved the power of regulatory agencies. The Environmental Protection Agency claimed that a section of the Clear Air Act gave it authority to limit carbon dioxide emissions from existing coal- and natural gas-fired power plants. In its 2015 Clean Power Plan, the EPA set the limit that was achievable using the “best system of emission reduction.” The Trump administration replaced the Clean Power Plan with its own rule and, after several states sued, the U.S. Court of Appeals ruled against the administration, sending the case back to the EPA. The Biden administration, in turn, asked the courts to put this case on hold as it considered whether to issue a new rule of its own.
The Supreme Court voted 6-3 that the Clean Air Act did not authorize the EPA’s method for setting emissions limits in its Clear Power Plan. That plan’s complexity and significant national impact required “clear congressional authorization” which did not exist here. Such “unheralded regulatory power over a significant portion of the national economy,” the Court said, could not be justified by vague language in a rarely used statute.
America’s founders designed the judiciary to be the “weakest” of the three branches. Decisions like these show that it has become much more than that. In areas such as abortion, religious freedom, or the right to self-defense, the Supreme Court has caused problems by distorting the Constitution’s original meaning. There appears to be a majority, today at least, trying to correct those errors or to lessen their negative impact. We should be thankful because our freedom to govern ourselves is strengthened when the Supreme Court tries to exercise only its proper authority.
This piece originally appeared in Christian Renewal