In October Term 2021, the Court issued 58 signed opinions after briefing and oral argument – a bit more than the prior two years but significantly less than the 1980s when the Court typically decided over 150 cases a year. Of those, 19 were decided 6-3, and nine were decided by a 5-4 margin. Only 29 percent were unanimous, the smallest proportion in recent memory.
The New York Times recognized the last Term as the most conservative Court since 1931. Chief Justice John Roberts and Justice Brett Kavanaugh were in the majority in 95 percent of the cases. Justice Sonia Sotomayor was in the majority in only 58 percent of the decisions. October 2021 was the first Term with Justice Amy Coney Barrett on the Court, and the decisions reflect the new conservative majority.
The current conservative majority can be attributed to the record of Republican presidents who appointed justices. From 1960 to 2020, there were 32 years with a Republican president and 28 years with a Democratic president. Although the number of years each party was in office is roughly the same, during their tenure, Republican presidents picked 15 justices, and Democratic presidents selected only eight. Recent history is an apt illustration. In his four years in office, President Trump chose three Supreme Court justices. By contrast, the last three Democratic presidents – Presidents Carter, Clinton, and Obama – served for a combined 20 years in office but appointed only four justices.
The decisions from the October 2021 Term reflect the Court’s clear conservative majority. President Trump’s three appointees – Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett – were in the majority in every significant conservative ruling. Those rulings addressed some of the most divisive issues in American society.
In virtually every major case, the Court divided ideologically and moved the law sharply to the right. Conservatives are “jubilant,” while liberals are “angry and afraid.”
There is no doubt that the outcome of the 2016 election had a significant impact on the Court that will be felt for years to come.
The most widely discussed and noteworthy decision of the Term was Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022), which overruled Roe v. Wade. Dobbs was decided 6-3 along partisan lines, unlike the two prior abortion decisions, Roe and Casey, which were bipartisan.
In Dobbs, the Court held that a Mississippi law prohibiting abortions after the fifteenth week of pregnancy is constitutional. The Court held that the issue of abortion should be left to the political process.
In an opinion by Justice Samuel Alito that was joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, the conservative majority held that individual rights are only protected if they are stated in the Constitution’s original meaning or part of a long tradition. The majority opinion rejected the precedent established in Roe v. Wade, stating that Roe was “egregiously wrong” and “exceedingly poorly reasoned.”
Importantly, the Court stated that regulations governing abortions should be reviewed under the rational-basis test: “Under our precedents, rational-basis review is the appropriate standard for such challenges…It follows that the States may regulate abortion for legitimate reasons, and when such regulations are challenged under the Constitution, courts cannot ‘substitute their social and economic beliefs for the judgment of legislative bodies.’…A law regulating abortion, like other health and welfare laws, is entitled to a ‘strong presumption of validity.’
Justices Clarence Thomas and Brett Kavanaugh each wrote concurring opinions. Justice Thomas disagreed with the majority’s reassurances that its decision does not presage the elimination of other constitutional rights, including the right to purchase and use contraceptives, the right to engage in private consensual same-sex sexual activity, and the right to same-sex marriage. Indeed, Justice Thomas explicitly called for overruling other landmark precedents based on substantive due process, including Griswold, Lawrence, and Obergefell, arguing that they were “demonstrably erroneous decisions.”
Chief Justice Roberts concurred in the judgment, stating that he would have upheld the Mississippi law prohibiting abortions after the fifteenth week of pregnancy but would not have reached the question of whether to overrule Roe.
In a joint dissenting opinion by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagen, the three liberal members of the Court stressed the effect of the Court’s decision on women’s lives. The dissenting Justices also noted that the right to privacy had been protected since 1920 when the Court decided Griswold.
Dean Chemerinsky concluded that post-Dobbs, the regulation of abortions is left to the states unless a future Republican President and Congress should enact legislation prohibiting abortion nationwide. Alternatively, Congress could use its power to regulate interstate commerce to enact legislation creating a nationwide right to abortion.
But Dobbs leaves many questions unanswered, including: Should there be an exception to protect the life of the woman? Should there be exceptions for rape or incest? May a state enact travel restrictions to prevent a woman from traveling to another state to obtain an abortion? What does Dobbs mean for I.U.D.s and drugs that induce abortion? How does Dobbs affect medical procedures such as in vitro fertilization? Many of these questions are currently being litigated in courts around the country.
The Court’s other abortion decision was Whole Women’s Health v. Jackson, 142 S. Ct. 522 (2021). Although Jackson concerned an abortion statute, the decision was also important on the issue of federal jurisdiction.
In Jackson, the Texas legislature enacted a law that prohibits abortion once a fetal heartbeat can be detected, which is around six weeks from conception. The Texas law is not enforced by state or local government officials but instead authorizes civil suits against doctors who perform abortions or those who aid and abet an abortion.
In a 5-4 decision, the Court ruled that state officials may be sued for injunctive relief only if they play a role in enforcing or implementing the law. The Court also held that licensing officials in Texas play a role in enforcing the law and can be sued to enjoin it. The Court’s decision is a major change regarding the scope of federal jurisdiction.
II. Administrative Law
In three important administrative law decisions, the Court addressed the major questions doctrine and held that an administrative agency may act on major questions only if there is clear federal guidance.
In National Federation of Independent Business v. Department of Labor, Occupational Safety and Health Administration, 142 S. Ct. 661 (2022), the Supreme Court issued a stay of OSHA’s vaccine-or-testing regime for all businesses with 100 or more employees. The Court held that OSHA did not have clear authority to require vaccines or testing, notwithstanding the public health threat caused by COVID-19. The dissent by the three liberal justices argued that the harm caused by COVID-19 warranted the OSHA requirement.
In Biden v. Missouri, 142 S. Ct. 647 (2022), the Supreme Court refused to issue a stay blocking a federal rule that requires all healthcare workers at facilities that participate in Medicare and Medicaid programs to be fully vaccinated against COVID-19 unless they are eligible for a medical or religious exemption. In a 5-4 decision, with Chief Justice Roberts and Justice Kavanaugh joining the liberal justices to create a majority, the Court reasoned that the U.S. Department of Health and Human Services had a right to regulate the workplace.
The Court issued its most important administrative law decision on the last day of the Term. West Virginia v. Environmental Protection Agency, 142 S. Ct. 2587 (2022) involved the E.P.A.’s authority to limit greenhouse gas emissions from coal-fired power plants. In a 6-3 decision, the Court held that the Clean Air Act did not grant the E.P.A. the authority to regulate greenhouse gases by creating emissions caps.
Writing for the majority, Chief Justice Roberts stated that the authority to regulate greenhouse gas emissions from power plants is a “major question” and that when there is a major question, there must be explicit statutory provisions giving the federal agency the power to act. “Something more than a merely plausible textual basis for the agency action is necessary. The agency instead must point to ‘clear congressional authorization’ for the power it claims.”
Dean Chemerinsky opined that West Virginia v. E.P.A. was noteworthy because the Clean Air Act explicitly gives the E.P.A. the authority to regulate pollution from stationary sources. He believes that the decision will lead to more challenges to federal regulations based on the argument that the agency’s action involves a major question for which Congress did not provide sufficiently specific guidance.
Dean Chemerinsky noted that the Court’s three administrative law decisions provide no guidance on how the Court defines a major economic or political issue that can be grounds for challenging administrative action.
III. Civil Rights
The Court decided several civil rights cases involving important issues, including the scope of qualified immunity, the ability to sue federal officers for constitutional violations, whether a civil suit can be based on the failure to provide a Miranda warning, and the requirements for constitutional claims for malicious prosecution. In all but the last, the Court ruled against civil rights plaintiffs and narrowed the ability of individuals to sue the government for constitutional violations.
The Court decided Rivas-Villegas v. Cortesluna, 142 S. Ct. 4 (2021) and City of Tahlequah, Oklahoma v. Bond, 142 S. Ct. 9 (2021), two cases involving Section 1983 claims against police officers. In a Bivens action under 42 U.S.C. §1983, defendants have qualified immunity so long as they follow the law or policy. The qualified immunity rule has been challenged by critics on both sides of the political spectrum.
In Rivas-Villegas, the Court reversed the Ninth Circuit, which held that Circuit precedent put the officer on notice that his conduct constituted excessive force. In Tahlequah, the Court also reversed, holding that the Tenth Circuit’s decision to the contrary was not based on a single precedent finding a Fourth Amendment violation under similar circumstances. In both cases, the Court held that the police officers were entitled to qualified immunity.
Dean Chemerinsky noted that because there is no clear law defining excessive force, it is hard to overcome qualified immunity, even when the officer violated clear procedure and used excessive force. After these two decisions, it is likely that for a plaintiff to prevail, there must be a Supreme Court precedent with sufficiently similar facts.
Vega v. Tekoh, 142 S. Ct. 2095 (2022), was a case where the defendant was taken into custody but not given the warnings prescribed in Miranda v. Arizona. Prior case law held that if the defendant’s statements are not used at trial, there is no need for a Miranda warning.
In a 6-3 decision split along ideological lines, the Court held that a plaintiff may not state a claim for relief against a law enforcement officer under 42 U.S.C. § 1983 based simply on an officer’s failure to provide the Miranda warnings because Miranda warnings do not involve a constitutional right.
Dean Chemerinsky observed that the holding in Tekoh is contrary to Justice Rehnquist’s opinion in Dickerson, which held that Miranda creates a constitutional rule. Justice Alito wrote that Miranda may be a constitutional rule, but it did not create a constitutional right.
Dean Chemerinsky stated that the Tekoh decision raises the question of whether the failure to give a Miranda warning can be raised in federal habeas corpus petitions, which are permitted only if there is an alleged violation of a constitutional right.
IV. First Amendment – Freedom of Speech
The Court’s First Amendment decisions were not ground-breaking but did clarify some important concepts, specifically, the distinction between content-based and content-neutral regulations, the government speech doctrine, and the issue of when a government action is an infringement of speech.
City of Austin, Texas v. Reagan National Advertising of Texas, Inc., 142 S. Ct. 1464 (2022), addressed the issue of content-based vs. content-neutral laws governing speech. Content-based regulations must be analyzed using the strict scrutiny test. Content-neutral regulations require only intermediate scrutiny. A law is content-based only if it is a subject matter- or topic-based restriction.
City of Austin was a challenge to a local ordinance regulating digital signs on buildings. The Fifth Circuit had held that the law was unconstitutional because it was a content-based restriction on free speech. In an opinion by Justice Sotomayor, the Court reversed, holding that the Austin ordinance was to be analyzed by applying intermediate scrutiny. The Court ruled that the Austin city code’s distinction between on-premise signs, which may be digitized, and off-premise signs, which may not, is not a facially unconstitutional content-based regulation under Reed v. Town of Gilbert. Justices Alito and Thomas dissented, with Justice Thomas arguing that if you have to look at the content to apply the ordinance, the ordinance is content based.
Shurtleff v. Boston, 142 S. Ct. 1583 (2022), was a challenge to the City of Boston’s refusal to allow a flag with a cross to be raised at City Hall as part of a flag-raising ceremony during an event. The Court concluded that Boston had created a forum for public speech when it allowed 284 other private groups to raise flags at City Hall. The Court held that the flag flying was not government speech, and that the city violated the First Amendment when it prevented the private group from flying the flag.
V. Religious Freedom
Some of the most important decisions of the Term involved the separation of church and state. In two decisions involving religion, the Court strongly protected the free exercise of religion but gave little, if any, weight to the establishment clause.
Carson v. Makin, 142 S. Ct. 1987 (2022), was a lawsuit challenging Maine’s prohibition against the use of public funds for religious schools.
In Maine, parts of the state are too rural to support public schools, so the state government gives money to parents so they can send their children to private schools. Maine law required that the funds be used to support secular, not “sectarian” schools.
In a 6-3 decision divided along ideological lines, the Court overturned the law, holding that a state violates the free exercise clause when it prohibits students from participating in an otherwise generally available student-aid program if they choose to use their aid to attend schools that provide religious, or “sectarian,” instruction. Chief Justice Roberts’s opinion for the Court held that where the government subsidizes secular private schools, it is constitutionally required to finance religious education. Justice Sotomayor dissented, arguing that the Court’s holding violated the establishment clause.
Dean Chemerinsky noted that the holding in Carson reflects a dramatic change in the law and raises questions about other types of government funding, including charter school funding and funding for government programs that provide aid for secular activities but not religious purposes, such as faith-based drug and alcohol rehabilitation programs.
Another religious freedom case, Kennedy v. Bremerton School Dist., 142 S. Ct. 2407 (2022), involved a football coach at a public school in Washington. After football games, the coach, a self-described devout Christian, would kneel at the 50-yard line and pray for about thirty seconds. Students and others sometimes joined him. The school district suspended him for that activity.
In another 6-3 decision, the Supreme Court held that the school district violated the coach’s constitutional rights to free exercise of religion and freedom of speech. The Court held that the free exercise and free speech clauses of the First Amendment protect an individual engaging in a personal religious observance from government reprisal and that the Constitution neither mandates nor permits the government to suppress such religious expression. In short, not only is prayer allowed, but the school district is required to permit it.
Dean Chemerinsky commented that in holding that the school could not interfere with the coach’s prayer, the Court overruled the establishment clause test set forth in Lemon v. Kurtzman and replaced it with a rule that the establishment clause is violated only if the government coerces participation in religious activity.
Kennedy v. Bremerton School Dist. changes 60 years of precedent and represents a significant shift in the Court’s approach to cases implicating the free exercise and establishment clauses of the Constitution.
VI. Second Amendment
New York Rifle and Piston Association v. Bruen, 142 S. Ct. 2111 (2022), was a challenge to a New York law – first adopted in 1911 − prohibiting a person from carrying a firearm outside the home or place of business without a permit. To obtain a permit, the law required the applicant to obtain a license by showing that “proper cause exists,” which the New York courts interpreted to require that the applicant “demonstrate a special need for self-protection distinguishable from that of the general community.”
In a 6-3 decision, the Court held that the New York law was unconstitutional. The majority opinion by Justice Thomas stated that “the Second and Fourteenth Amendments protect an individual’s right to carry a hand-gun for self-defense outside the home.” The court held that state laws are unconstitutional if they limit the carrying of concealed weapons to people who can show cause.
The Court did not apply a strict scrutiny test but instead based its analysis on an originalist interpretation of the Constitution:
“To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’”
Justice Breyer wrote a strong dissent that Justices Sotomayor and Kagen joined. The dissent focused on the number of deaths and injuries caused by firearms and their effect on American society.
Dean Chemerinsky noted that Bruen is the most expansive reading of the Second Amendment in American history. It will likely lead to tremendous litigation challenging gun regulations and make it more difficult for courts to uphold laws, even long-standing ones like that in Bruen, which was adopted in 1911.
Dean Chemerinsky summarized his remarks by noting that the October 2021 Term was not an aberration, but a harbinger of things to come. The Court’s recent decisions reveal a sharp turn to the right and a willingness to overrule precedent, as evidenced by the Court’s overruling of Roe v. Wade and Lemon v. Kurtzman.
Given the relative youth of the conservative majority, especially the three Trump appointments, the Court will likely continue to have a conservative majority for many years.
On the religion cases, Dean Chemerinsky believes that the new conservative-leaning court will continue to give little weight to the establishment clause’s wall between church and state and decide cases in favor of the free exercise of religion.
For a more in-depth analysis of the Court’s October 2021 Term, see Dean Chemerinsky’s new book, A Momentous Year in the Supreme Court, Oct Term 2021.