Supreme Court; Final Days of 2021 Term

The final days of the 2021 Term of the United States Supreme Court greatly pleased conservatives of all stripes. One unifying theme found through the 4 largely 6-3 decisions are not just that the lefties are big mad and super upset about the outcomes, but the Court is returning to the constitution’s history, text and tradition found when the document or amendment was ratified.

In West Virgina v. EPA, Justice Roberts wrote for the Court that the executive branch doesn’t have the authority to regulate carbon emissions through the clean power plan without express congressional authorization because in this country we have separation of powers. The Court relied upon the major questions doctrine to do the heavy lifting in this case, like they have in other cases this term like National Federation of Independent Business v. Department of Labor, Occupational Safety and Health Administration (vaccine mandate case). The decision is an excellent one, but the Court should have gone further and overruled Massachusetts v. EPA (2007) and said that greenhouse gases are not pollutants. Secondly, the Court should have resurrected the nondelegation doctrine, which arises from the text of Article I, which reads ALL legislative power shall be vested in a Congress, composed of a House of Representatives and a Senate. The question of whether C02 should be considered a pollutant for the purposes of public policy is no doubt a major one and the Court was correct to strike down the EPA action; this will have implications for other agencies like the SEC, OSHA, ATF and so forth. The EPA is going before the Court again next term with their definition of Waters of the United States in Sackett II. (Sackett I was in 2012)

In Kennedy v. Bremerton School District, Justice Gorsuch wrote for the Court that the Constitution neither mandates nor permits the government to suppress such religious expression because Mr. Kennedy has the right to free speech and free exercise of religion. The Court continues along the path started by Town of Greece v. Galloway (2013) and cites another case from this term Shurtleff v. Boston to support the point that the Establishment Clause does not mandate suppression of this speech. The Court announced the Establishment Clause must be interpreted by “‘reference to historical practices and understandings’” and the Court stressed that Lemon is no longer good without expressly overruling it. The lower courts need to rely on historical practices and tradition, not on the Lemon’s endorsement Test. More religious expression is permitted, but it can’t be coercive, which wasn’t established here.

In Dobbs v. Jackson Women’s Health Organization, Justice Alito did what conservatives have petitioned, marched and prayed for over the past 49 years. Justice Alito wrote for a majority that Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives. Even setting aside the fact that millions of unborn babies have been killed due to Roe, on page 63 Justice Alito notes how Roe has mangled legal precedents to support child sacrifice:

The Court’s abortion cases have diluted the strict standard for facial constitutional challenges. They have ignored the Court’s third-party standing doctrine. They have disregarded standard res judicata principles. They have flouted the ordinary rules on the severability of unconstitutional provisions, as well as the rule that statutes should be read where possible to avoid unconstitutionality. And they have distorted First Amendment doctrines.

Justice Roberts would have upheld the Mississippi law (thereby discarding the viability standard) and put something different in its place.

In the aftermath of Dobbs, some states have banned abortion, other states have loosened the requirements to get one. The Left is now seeking to win in State Courts and in other cases, the people will be asked via a constitutional amendment to decide what to do about this issue. Congress has attempted to restore a federal right via statute, which hasn’t passed; Congress has also attempted to go further based on the reading of Justice’s Thomas’ concurrence to enshrine a right to contraception and a right to gay marriage into law. Even though a full draft of the majority decision was leaked, the outcome didn’t change and the hunt for the leaker is still ongoing.

In New York State Rifle & Pistol Association Inc. v. Bruen, Justice Thomas wrote for the majority that the 2^nd amendment is not a second class right and the proper cause requirement is unconstitutional. Like Justice Alito in Dobbs shows before 1973, states prohibited abortion at all stages, Justice Thomas in Bruen shows that American history allowed for all Americans to keep and bear arms simply because they desire to do so. The requirement to provide a special need is not how any other constitutional rights works; Justice Thomas cites the 1^st and 6^th amendments as examples. The 4^th amendment makes his point even better. As a general matter, when the government desires to search your property, you don’t need to provide them specific reasons why they shouldn’t; the constitutional text requires that the government get a warrant justifying why they want to search your property and what they want to take over your objections. For gun regulations to stand, the Court ruled that the regulations must be consistent with our nation’s traditions and history and the Court sent back several cases to the lower courts to analyze under the Bruen framework

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