A Historically Great Term

National Review Online

Friday, June 01, 2022

 

Conservatives are accustomed to losing. Sometimes, we grow too accustomed. Thus, conservative voters often pose Disraeli’s stinging question to their leaders: What have you conserved? Few institutions have provoked this question more often than the Supreme Court, despite the fact that 20 of its last 29 justices have been appointed by Republican presidents, and that we have had a Republican chief justice continuously since 1953.

 

The best answer, often, is what didn’t happen: Bad laws were not passed by Congress, bad decisions were not made by the courts, political fads burned out. But the harder task comes when ground is lost, and must be reclaimed not only by adherence to ancient principles but by the courage and force of will to restore things to their proper order and function. Sometimes, containment must give way to rollback.

 

That is where we find the American constitutional order, or at any rate, where the Court found it when it recessed for the summer this time a year ago. The cultural priorities of progressive elites have been imposed on the people by judicial fiat, with no basis in the Constitution. Meanwhile, liberties expressly secured in the Bill of Rights are trampled, and religious believers face discrimination and exclusion. Laws are enacted by the executive branch instead of the legislature. When Congress does act, it assumes national police powers properly reserved to the states. The Court too often either has acted as the catalyst for these usurpations and derelictions, or has stood by meekly and acquiesced in them.

 

This year, for the first time in memory, the Supreme Court concluded a term in which it consistently did its job. The Court has been holding the line against liberal adventurism on a gradually lengthening list of issues for some decades, but with mixed results, especially on cultural issues. This year, the first full term since Justice Amy Coney Barrett replaced Ruth Bader Ginsburg, the Court not only resisted further mischief, it repeatedly stood up for the Constitution and the rule of written law to the point of rolling back ground seized by the anti-constitutionalists. The shrieking you hear in progressive quarters is the predictable result of rejecting their view of History.

 

The Court started and ended by telling the administrative state that it cannot simply write laws just because Congress has failed to do so. The Court ruled that the CDC cannot unilaterally declare itself a national housing regulator preventing evictions, that OSHA cannot use workplace safety as an excuse to mandate vaccines, and, finally, that the EPA cannot write carbon-emission rules that Congress repeatedly rejected. The alphabet-soup administrative agencies are now on notice that they must pay attention to the legal basis of their exercises of power.

 

The Court stood up for the rights guaranteed specifically by the text of the Constitution. A scholarly opinion by Justice Clarence Thomas, who survived a hospitalization in March and a continuing public campaign to use his wife to delegitimize his work, delivered a stirring and overdue defense of the right to carry guns for self-defense, ending a decade of malign neglect of lower-court resistance to the Second Amendment. The Court allowed a public-school football coach to pray, and a religious flag to be flown, on public property just the same as if they were secular speech. It struck down FEC regulations that deterred non-billionaire political candidates from lending money to their own campaigns, a blow for freer political speech. By contrast, the Court rejected an effort to turn a verbal censure into a free-speech violation: Sometimes, speech can be met with more speech.

 

Most dramatically, in a powerful and methodical opinion by Justice Samuel Alito, the Court ended five decades of judicial overreach by telling a simple truth: The Constitution never protected a right to abortion. That common-sense step required tremendous fortitude in the face of an unprecedented leak, protests at the justices’ homes, and even an assassination attempt on Justice Brett Kavanaugh.

 

The Court summoned the courage to discard old and discredited precedents. It consigned to the dustbin not only Roe v. Wade but also Lemon v. Kurtzman, an early-1970s decision pretending that any “entanglement” between a public school and religion was tantamount to establishing a state church. The restoration of sanity to the Court’s establishment-clause jurisprudence not only allowed the Court to defend the individual rights of the praying coach and a Christian group’s flag, but also, in an opinion by Chief Justice John Roberts, to protect the right of religious parents to use school-choice vouchers for religious schools on the same basis that they are used for secular private schools. In each case, the Court recognized, allowing private citizens to choose their own religious faith in the public square is the antithesis of requiring conformity to a state church.

 

The Court also stood up for the adversarial process itself, allowing the Kentucky attorney general to defend a state abortion law, and, in an opinion by Justice Neil Gorsuch, allowing North Carolina legislators to defend their state’s voter ID law; in each case, Democratic officials were trying to quietly undermine the laws they were sworn to defend.

 

At the same time, the justices took care not to extend the frontiers of previous judicial innovations, resisting the expansion of the Bivens doctrine to allow new civil-rights lawsuits never authorized by Congress, and refusing to allow lawsuits over failures to give Miranda warnings without proof that this resulted in a coerced confession. In the Texas abortion case, the Court resisted calls to allow novel injunctions against state-court clerks and judges just for accepting the filing of lawsuits.

 

Along the way, the Court’s new majority of six Republican appointees, five of them fairly reliable votes for constitutional originalism and statutory textualism, has discredited the critics of the originalist project from the right who claimed that all originalist judges know how to do is lose the Constitution more slowly. Thomas, Alito, Gorsuch, Kavanaugh, and Barrett were all consistent votes and voices — sometimes joined by Roberts — for restoring a government of laws rather than acceding to a government of whatever is popular with lawyers.

 

There is more work to be done. The Court’s precedents remain littered with deviations from the constitutional design. More hot-button cases will be back in the fall. A new justice, who was confirmed amid promises to apply the Constitution as originally understood, will be put to the test. Democrats continue to threaten all manner of assaults on the Court’s independence and legitimacy. But justice should be blind to outside pressures. For a year of doing their jobs in accordance with their judicial oaths, we say to the Court’s majority: Well done. Enjoy the summer.