When I first taught constitutional law in 1980, Warren Burger was beginning his second decade as chief justice. There seemed then a solid conservative majority on the Supreme Court, with only two reliable liberal justices, William Brennan and Thurgood Marshall. Harry Blackmun and John Paul Stevens were not yet perceived as liberal. Byron White, a Kennedy appointee, was often with the conservatives, such as in his dissents in Miranda v. Arizona, 384 U.S. 436 (1966), and Roe v. Wade, 410 U.S. 113 (1973). Potter Stewart, an Eisenhower appointee, was seen as a moderate. Lewis Powell and especially William Rehnquist, the Nixon appointees in addition to Burger and Blackmun, appeared conservative across the board.
This was no Warren Court. In its first decade, the Burger Court had moved the law substantially to the right, most notably in the area of criminal procedure. The Burger Court’s 5–4 decision in San Antonio Board of Education v. Rodriguez, 411 U.S. 1 (1973)—holding that there is no constitutional right to education and that poverty is not a suspect classification—slammed the door on further expansion of many of the themes of the Warren Court. The five justices in the majority were the four Nixon appointees and Potter Stewart.
But in hindsight, the Supreme Court of 1980 was so much less conservative than that of today. Of the nine justices on the bench at that time, only Rehnquist was as conservative as the six Republican appointees now on the bench: John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.
Indeed, the Court has become ever more conservative over the course of the last 45 years. The three justices added to the Court by President Ronald Reagan—Sandra Day O’Connor, Antonin Scalia, and Anthony Kennedy—moved the Court further to the right, as each was more conservative than the justice that he or she replaced. President George H. W. Bush added Clarence Thomas, as conservative as any justice who has been on the Court, and David Souter. President George W. Bush selected John Roberts to replace Rehnquist and Samuel Alito to replace O’Connor. And the three Trump appointees—Gorsuch, Kavanaugh, and Barrett—made the Court much more conservative. Kavanaugh is more conservative than Kennedy, whom he replaced, and Barrett is far more conservative than her predecessor, Clinton appointee Ruth Bader Ginsburg.
Over the time I have been teaching, we have moved from the swing vote being Powell, to O’Connor, to Kennedy, to no swing vote at all with six conservatives.
How did this happen? Between 1960 and 2020, there were 32 years with Republican presidents and 28 years with Democratic presidents, but Republican presidents picked 15 justices during this time, while Democratic presidents chose just 8. President Donald Trump selected three justices in 4 years, while the prior three Democratic presidents—Jimmy Carter, Bill Clinton, and Barack Obama—served a combined 20 years in the White House and yet picked only four justices.
Even electoral results do not tell the full story of the genesis of the current Court. That story involves pressure placed on Justice Sandra Day O’Connor to resign earlier than she planned. She later expressed regret that she left too soon. It also involves Senator Mitch McConnell, in an unprecedented display of power politics, keeping a seat on the Supreme Court vacant for over a year rather than allow President Obama’s nominee to replace Justice Scalia or to even have a hearing and be considered. It involves a hero of the left, Justice Ruth Bader Ginsburg, refusing to retire when there was a Democratic president and a Democratic Senate to replace her, gambling that her health would hold out. It did not, and her death allowed the Republicans to push through the confirmation of Amy Coney Barrett, who was sworn in as a justice just 10 days before the November 3, 2020, election in which her appointing president was removed from office by the voters.
My review of the trends in constitutional law over the past 50 years will focus on several key areas and the major Supreme Court cases that reflect the movement to the right.
Justiciability
Beginning in the early 1970s, the Supreme Court created new requirements for standing, demanding that a plaintiff prove a personally suffered injury that was caused by the defendant and that would be likely to be remedied by a favorable federal court decision. See, e.g., Sierra Club v. Morton, 405 U.S. 727 (1972); Warth v. Seldin, 422 U.S. 490 (1975). If I had to pick one decision that reflects the narrowing of standing to sue in federal court and that has had a detrimental effect on the right to raise constitutional challenges, I would choose City of Los Angeles v. Lyons, 461 U.S. 95 (1983). Lyons involved a suit to enjoin as unconstitutional the use of choke holds by the Los Angeles Police Department in instances where the police were not threatened with death or serious bodily injury.
On October 6, 1976, at about 2:00 a.m., Adolph Lyons, a 24-year-old African American man, was stopped by four Los Angeles police officers for driving with a burned-out taillight. The officers ordered Lyons out of his car and greeted him with drawn revolvers as he emerged from it. Lyons was told to face his car and spread his legs. He did as he was told and was then ordered to clasp his hands and put them on top of his head. He again complied. After one of the officers completed a pat-down search, Lyons dropped his hands but was ordered to place them back above his head. One of the officers grabbed Lyons’s hands and slammed them onto the roof of the car. Lyons complained about the pain caused by the ring of keys he was holding in his hand cutting into the skin of his palm. Apparently, Lyons was perceived as having “mouthed off” to the officers. Within five to 10 seconds, the officer began to choke Lyons by applying a forearm against his throat. As Lyons struggled for air, the officer handcuffed him but continued to apply the choke hold until Lyons blacked out. When Lyons finally regained consciousness, he was lying face down on the ground, choking, gasping for air, and spitting up blood and dirt. He had urinated and defecated. He suffered an injured larynx as a result of being choked by the officer. He was issued a traffic citation and allowed to go.
At the time of the suit, 16 people in Los Angeles had died from the choke hold—12 of them Black men. Lyons’s complaint alleged that it was the official policy of the Los Angeles Police Department to use the choke holds in situations where officers were not faced with a threat of bodily injury or death.
The Supreme Court, in a 5–4 decision, ruled that Lyons did not have standing to seek injunctive relief. Although Lyons could bring a suit seeking damages for his injuries, he did not have standing to enjoin the police because he could not demonstrate a substantial likelihood that he, personally, would be choked again in the future. Justice White, writing for the Court, explained that standing depended on whether Lyons was likely to suffer future injury from the use of the choke hold by police officers. The Court concluded that
absent a sufficient likelihood that he will again be wronged in a similar way, Lyons is no more entitled to an injunction than any other citizen of Los Angeles; and a federal court may not entertain a claim by any or all citizens who no more than assert that certain practices of law enforcement officers are unconstitutional.
461 U.S. at 111.
Lyons establishes that to have standing to seek an injunction, an individual must allege a substantial likelihood that he or she will be subjected in the future to the allegedly illegal policy. This standard has created an enormous obstacle to plaintiffs challenging unconstitutional police practices and other government actions. It is representative of many cases in which the Court has limited the ability to sue in federal court, as discussed in detail in my book Closing the Courthouse Doors (2017).
Federal Powers
From 1936 until 1995, not one federal law was struck down as exceeding the scope of congressional powers. But that changed dramatically in 1995 in United States v. Lopez, 514 U.S. 549 (1995). The Supreme Court, by a 5–4 margin, declared unconstitutional the Gun-Free School Zones Act of 1990, which made it a federal crime to have a gun within 1,000 feet of a school. Splitting along ideological lines, the Court ruled that the relationship to interstate commerce was too tangential and uncertain to uphold the law as a valid exercise of Congress’s commerce power. The Court followed its decision in Lopez five years later with United States v. Morrison, 529 U.S. 598 (2000), in which it declared unconstitutional the civil damages provision of the Violence Against Women Act, which had created a federal cause of action for victims of gender-motivated violence.
The Supreme Court also significantly narrowed the powers of Congress under other constitutional provisions. In City of Boerne v. Flores, 521 U.S. 507 (1997), the Court, in a 6–3 decision, declared the Religious Freedom Restoration Act (RFRA) unconstitutional as exceeding the scope of Congress’s power under section 5 of the Fourteenth Amendment. RFRA had been adopted in 1993 to overturn a recent Supreme Court decision that had narrowly interpreted the free exercise clause of the First Amendment, Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990). In Smith, the Supreme Court significantly lessened the protections of the free exercise clause when it addressed an Oregon law that prohibited the consumption of peyote, a hallucinogenic substance. Native Americans challenged this law, claiming that it infringed free exercise of religion because their religious rituals required the use of peyote. Under prior Supreme Court precedents, government actions burdening religion would be upheld only if they were necessary to achieve a compelling government purpose. The Supreme Court, in Smith, changed the law and held that the free exercise clause cannot be used to challenge neutral laws of general applicability. The Oregon law prohibiting consumption of peyote was deemed neutral because it was not motivated by a desire to interfere with religion, and it was a law of general applicability because it applied to everyone.
Congress overwhelmingly adopted RFRA, which was signed into law by President Clinton. RFRA was express in stating that its goal was to overturn Smith and restore the test that was followed before that decision. RFRA requires courts considering free exercise challenges, including to neutral laws of general applicability, to uphold the government’s actions only if they are necessary to achieve a compelling purpose. Specifically, RFRA prohibited “[g]overnment” from “substantially burden[ing]” a person’s exercise of religion even if the burden results from a rule of general applicability, unless the government can demonstrate that the burden “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. § 2000bb1.
City of Boerne v. Flores involved a church in Texas that was prevented by the local government from constructing a new facility because its building was classified a historic landmark. The church sued under RFRA, and the city challenged the constitutionality of the law. Justice Kennedy, writing for the Court, held that RFRA is unconstitutional. The Court held that Congress under section 5 of the Fourteenth Amendment may not create new rights or expand the scope of rights; rather, Congress is limited to laws that prevent or remedy violations of rights recognized by the Supreme Court, and these must be narrowly tailored—“proportionate” and “congruent”—to the constitutional violation. 521 U.S. at 519–20. This was a new and significant limit on Congress’s powers under section 5 of the Fourteenth Amendment.
The Court further narrowed Congress’s powers under section 5 of the Fourteenth Amendment in Shelby County v. Holder, 570 U.S. 529 (2013). Section 2 of the Voting Rights Act, passed in the 1960s, prohibits state and local governments from having election practices or systems that have a discriminatory effect against minority voters, and lawsuits can be brought to enforce that section. But Congress believed that this method was not sufficient to stop all discrimination in voting, particularly given that litigation is expensive and time-consuming. Congress also knew that Southern states in particular had a history of continually changing their voting systems to disenfranchise minority voters. So a separate section was added to the law. Section 5 of the Voting Rights Act provided that jurisdictions with a history of race discrimination in voting may change their election systems only if they get “preclearance” from the attorney general or a three-judge federal district court for the proposed system change. Section 4(B) of the act defined those jurisdictions that must get preclearance.
Each time the law was about to expire, Congress extended it. In 1982, Congress held extensive hearings, modified the formula under section 4(B) of the act, and extended the provisions for another 25 years. As the law was set to expire in 2007, Congress held 21 hearings and produced a record that is over 15,000 pages long. The Senate voted 98–0 to extend the law for another 25 years, and there were only 33 no votes in the House of Representatives. President George W. Bush signed the extension into law.
In Shelby County, the Supreme Court, by a vote of 5–4, held section 4(B) unconstitutional and thereby effectively nullified section 5 because it applies only to jurisdictions covered under section 4(B). It was the first time since the 19th century that the Court declared unconstitutional a federal civil rights statute. The Court stressed the intrusion on the covered states, as they could not exercise the power to choose how to hold elections, but instead the “States must beseech the Federal Government for permission to implement laws that they would otherwise have the right to enact and execute on their own, subject of course to any injunction in a § 2 action.” Id. at 544. The Court also emphasized that sections 4(B) and 5, by requiring only some states to get preclearance, violated the principle of equal state sovereignty. The Court stated: “Not only do States retain sovereignty under the Constitution, there is also a ‘fundamental principle of equal sovereignty’ among the States. . . . [D]espite the tradition of equal sovereignty, the Act applies to only nine States (and several additional counties).” Declaring unconstitutional this provision of the Voting Rights Act eliminated a crucial check on discrimination in voting in the United States.
Individual Rights
Over the last 50 years, the Supreme Court has substantially narrowed individual rights, with some notable exceptions.
An important case that largely closed the door on the use of the due process clause of the Fourteenth Amendment to protect rights was Washington v. Glucksberg, 521 U.S. 702 (1997). The Supreme Court rejected a facial challenge to a state law prohibiting aiding a suicide, denying a claim that there is a constitutional right to physician-assisted death. The Court said that the Washington law prohibiting assisted suicide did not violate a fundamental right protected under the due process clause. Chief Justice Rehnquist’s majority opinion began by observing that a right is protected as fundamental under the due process clause only when supported by history or tradition. But even more importantly, the Court limited the use of the due process clause in attempts to protect rights not enumerated in the text of the Constitution.
The Court relied on the holding and language from Glucksberg when it overruled Roe v. Wade. In January 1973, the Supreme Court held that the liberty of the due process clause includes the right to privacy and that state laws prohibiting abortion are unconstitutional. The Court ruled that states cannot prohibit abortions prior to viability, the time at which the fetus can survive outside the womb. Roe was a 7–2 decision, with Nixon and Eisenhower appointees providing five of the seven votes in the majority. The majority opinion was written by Justice Harry Blackmun and was joined by two fellow Nixon appointees, Warren Burger and Lewis Powell.
But in Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215, 142 S. Ct. 2228 (2022), the Supreme Court explicitly overruled Roe v. Wade. Justice Samuel Alito wrote the opinion for the Court, joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Chief Justice John Roberts concurred in the judgment. Roberts would have upheld the Mississippi law prohibiting abortions after the 15th week of pregnancy but would not have reached the question of whether to overrule Roe. Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan wrote a vehement joint dissent.
The Court declared: “We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment.” Id. at 2242.
Invoking the language from Washington v. Glucksberg, Justice Alito, writing for the majority, said that a constitutional right exists only if it is in the text of the Constitution or was part of its original meaning or if it has been safeguarded by a long, unbroken tradition. The Court said that abortion meets none of these requirements: It obviously is not mentioned in the text and was not part of the original understanding of any constitutional provision. The Court then reviewed history, starting with English law before the Constitution, and said, “The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.” Id. at 2253–54.
However, there also have been Supreme Court decisions in the last 50 years that have expanded individual rights. In June 2015, in Obergefell v. Hodges, 576 U.S. 644 (2015), the Supreme Court held, 5–4, that state laws prohibiting same-sex marriage violated the fundamental right to marry and also equal protection of the laws. Two years earlier, in June 2013, in United States v. Windsor, 570 U.S. 744 (2013), the Supreme Court declared unconstitutional section 3 of the federal Defense of Marriage Act (DOMA), which defined the term “marriage” under federal law, including for the provision of federal benefits, as a legal union only between one man and one woman as husband and wife. In Windsor, again in a 5–4 decision, the Court found that section 3 of DOMA denied equal protection to gays and lesbians. The Court emphasized that marriage has traditionally been regulated by the states and that there was “no legitimate purpose” served by the federal government refusing to recognize marriages that a state allowed and recognized. Id. at 775. The Court in Windsor did not address whether DOMA violated the fundamental right to marry.
In Obergefell, the focus was primarily on the right to marry, though the Court also briefly found that laws prohibiting same-sex marriage violated equal protection. Justice Kennedy, writing for the majority, explained that the Court long has protected the right to marry as a fundamental right under both the due process and equal protection clauses. The Court noted that “[t]he identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution.” 576 U.S. at 663. The Court examined the precedents concerning the right to marry and stated that “[t]his analysis compels the conclusion that same-sex couples may exercise the right to marry.” Id. at 665.
The other area of dramatic expansion of individual rights has been for the Second Amendment. From 1791 until 2008, the Supreme Court never once declared unconstitutional any law—federal, state, or local—as violating the Second Amendment. In the handful of cases about the provision, the Court said that it was just about a right to have guns for militia service. See, e.g., United States v. Miller, 307 U.S. 174 (1939).
In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court for the first time declared a gun regulation unconstitutional and struck down a 32-year-old District of Columbia ordinance that prohibited ownership or possession of handguns. The decision was ideologically split, 5–4, with Justice Antonin Scalia writing the opinion for the Court. He said that the first half of the Second Amendment, about militias, was the “prefatory clause,” and the latter half was its operative clause protecting a right of the people to keep and bear arms. He said that a prefatory clause cannot limit the meaning of an operative clause. The Court held that the Second Amendment protects a right to have guns in the home for the sake of security. The Court did not prescribe a level of scrutiny to be applied to gun regulations, but it made clear that the Second Amendment is not absolute.
Two years later, in McDonald v. City of Chicago, 561 U.S. 742 (2010), the Supreme Court held, again 5–4, that the Second Amendment applies to state and local governments. Because the District of Columbia is a part of the federal government, it took a separate decision from Heller to hold that the Second Amendment is incorporated into the due process clause of the Fourteenth Amendment and applies to state and local governments.
There were no Supreme Court decisions about the Second Amendment for the next 12 years, a time during which the composition of the Court changed greatly. New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 142 S. Ct. 2111 (2022), involved a New York law, initially adopted in 1911, that prohibits having weapons in public without a permit. A person who wanted to carry a firearm outside the home or place of business for self-defense had to obtain an unrestricted license to have and carry a concealed pistol or revolver. To secure that license, an applicant had to prove that “proper cause exists” to issue it. New York courts interpreted this provision to require that a person demonstrate a special need for self-protection distinguishable from that of the general community.
In a 6–3 decision, with the majority opinion written by Justice Clarence Thomas, the Supreme Court declared the New York law unconstitutional. For the first time in American history, the Court was explicit that “the Second and Fourteenth Amendments protect an individual’s right to carry a hand-gun for self-defense outside the home.” 142 S. Ct. at 2122. The Court held that state laws are unconstitutional if they restrict having concealed weapons only to those who show cause for having them.
When the Court deems a right fundamental and wants more than intermediate scrutiny, it usually adopts strict scrutiny, requiring that the government action be necessary to achieve a compelling interest. But that is not what the Court did in Bruen. Instead, the Court said that a gun regulation is constitutionally permissible only if it was historically allowed. The Court declared:
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.”
The Court expressly rejected any balancing of the government’s interests in regulating guns with a claim of Second Amendment rights. Justice Thomas wrote, “[T]he Second Amendment is the very product of an interest balancing by the people and it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms for self-defense.” Id. at 2118. The Court said that it was rejecting any analysis of means and ends, such as whether the government regulation serves a compelling interest and whether it is necessary to achieve it. Several times in the majority opinion, the Court stressed that government regulation of guns is allowed only if it was historically permitted.
Bruen and its new standard has led to hundreds of lawsuits challenging every type of gun regulation. There has been one major Supreme Court decision about guns since Bruen. In United States v. Rahimi, 144 S. Ct. 1889 (2024), the Court upheld a federal law that prohibits those under a restraining order in a domestic violence case from having a gun. The Court said that when an individual has been found by a court to pose a credible threat to the physical safety of another, that individual may be temporarily disarmed consistent with the Second Amendment.
Equal Protection
Over the last half century, the Supreme Court has moved equal protection law in a decidedly more conservative direction. One of the most significant changes is that over the last 40 years, the Supreme Court continually has held that proving discrimination requires showing that the government acted with a discriminatory purpose; demonstrating a discriminatory impact is not enough to show that a government action should be treated as racial discrimination. Requiring proof of discriminatory purpose in order to demonstrate an equal protection violation has dramatically lessened the ability to make successful constitutional challenges to government actions.
There are many instances where laws that do not mention race are administered in a manner that discriminates against minorities or has a disproportionate impact on them, but there is not sufficient evidence to prove that the government acted with a discriminatory purpose. Current law means that the government need not offer a racially neutral explanation for these effects and, indeed, generally need do no more than show that its action is reasonable. To show the existence of an improper racial classification—or at least to shift the burden to the government to provide a nonrace explanation for its action—requires proving discriminatory intent.
Washington v. Davis, 426 U.S. 229 (1976), was a key case articulating this requirement. Applicants for the police force in Washington, D.C., were required to take a test, and statistics revealed that Black people failed the examination much more often than Whites. The Supreme Court, however, held that proof of a discriminatory impact is insufficient, by itself, to prove that there is racial discrimination. Justice White, writing for the majority, said that there must be proof of a “racially discriminatory purpose” in order to find that a law violates equal protection, even if it has—like the Washington law—a significant discriminatory effect against people of color. Id. at 239. The Court explained that discriminatory impact, “[s]tanding alone . . . does not trigger the rule that racial classifications are to be subjected to the strictest scrutiny and are justifiable only by the weightiest of considerations.” Id. at 242. In other words, laws that are facially neutral as to race (they do not explicitly mention race) will receive review stricter than rational basis review—under which they are sure to be upheld—only if there is proof of a discriminatory purpose.
Many times, the Court has reaffirmed this principle that discriminatory impact is not sufficient to prove a racial classification that violates equal protection. For example, in McCleskey v. Kemp, 481 U.S. 279 (1987), the Supreme Court held that proof of discrimination impact in the administration of the death penalty was insufficient to show an equal protection violation. Statistics presented to the Court powerfully demonstrated racial inequality in the imposition of capital punishment. The Supreme Court, however, said that for the defendant to demonstrate an equal protection violation, he “must prove that the decisionmakers in his case acted with discriminatory purpose.” Id. at 292 (emphasis in original). Because the defendant could not marshal proof that the prosecutor or jury in his case was biased, no equal protection violation existed. Moreover, the Court said that to challenge the law that authorized capital punishment, the defendant “would have to prove that the Georgia Legislature enacted or maintained the death penalty statute because of an anticipated racially discriminatory effect.” Id. at 298. These are impossible burdens to meet in the courtroom.
Another important change over the course of the last half century regarding equal protection has been the overruling of earlier decisions that allowed colleges and universities to engage in affirmative action. In several cases over multiple decades—Regents of the University of California v. Bakke, 438 U.S. 265 (1978); Grutter v. Bollinger, 539 U.S. 306 (2003); and Fisher v. University of Texas at Austin, 570 U.S. 297 (2013)—the Supreme Court held that schools could use race as one factor among many in admissions decisions to enhance diversity and benefit minorities.
But in Students for Fair Admissions v. President and Fellows of Harvard College, 600 U.S. 181, 143 S. Ct. 2141 (2023), the Supreme Court held that no longer can colleges and universities engage in affirmative action. The Court declared:
University programs must comply with strict scrutiny, they may never use race as a stereotype or negative, and—at some point—they must end. Respondents’ admissions systems—however well-intentioned and implemented in good faith—fail each of these criteria. They must therefore be invalidated under the Equal Protection Clause of the Fourteenth Amendment.
143 S. Ct. at 2166.
While the earlier cases had ruled that diversity is a compelling government interest, the Court expressly rejected this as insufficient to meet strict scrutiny. Whereas the earlier cases had expressed the need for deference to colleges and universities, the Court rejected such deference. Id. at 2168.
The Court said that giving a preference to some based on race means that others are disadvantaged because of their race and that is inconsistent with the Constitution’s guarantee of equal protection. Chief Justice Roberts concluded the majority opinion by declaring:
For the reasons provided above, the Harvard and UNC admissions programs cannot be reconciled with the guarantees of the Equal Protection Clause. Both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points. We have never permitted admissions programs to work in that way, and we will not do so today.
Id. at 2175.
This ruling has caused a notable change in long-standing college and university admission practices for both public and private universities.
Religion Clauses
No area of constitutional law has changed more in the last half century than the religion clauses of the First Amendment. See Howard Gillman & Erwin Chemerinsky, The Religion Clauses (2020). In the early 1960s, the Supreme Court held that prayer in public schools, even voluntary prayer, violates the establishment clause of the First Amendment. The Court strictly adhered to this precedent for 60 years. In Wallace v. Jaffree, 472 U.S. 38 (1985), the Court declared unconstitutional an Alabama law that required that every school begin each day with a moment of silent prayer. In Lee v. Weisman, 505 U.S. 577 (1992), the Court held that clergy-delivered prayers at public school graduations are unconstitutional. In Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), the Court ruled that student-led prayers at high school football games violate the First Amendment.
But Kennedy v. Bremerton School District, 597 U.S. 507, 142 S. Ct. 2407 (2022), is the first Supreme Court decision to find that a teacher’s prayer in a public school setting was constitutionally permissible. Indeed, the Court held that restricting prayer in that setting violated the teacher’s free speech and free exercise of religion rights.
Joseph Kennedy was the football coach at a public school in Bremerton, Washington. After games, Kennedy, a devout Christian, would kneel at the 50-yard line and engage in a prayer for about 30 seconds. This necessarily meant that spectators—students, parents, and community members—would observe Kennedy’s religious conduct. Several games into his first season as coach, players began to join him, later growing to include a majority of the team. Sometimes players from the opposing team were invited to join as well. A parent complained to the principal that his son felt compelled to participate in Kennedy’s religious activity, even though he was an atheist, because he felt he would not get to play as much if he did not participate.
Over time, Kennedy began giving short motivational speeches at midfield after the games. Students, coaches, and other attendees from both teams were invited to participate. During the speeches, the participants knelt around Kennedy. He then raised a helmet from each team and delivered a message containing religious content, including prayers. The school district ordered that Kennedy cease his religious activities. He initially complied and then openly defied the order and was suspended. Kennedy sued and argued that the school district had violated his First Amendment rights to freedom of speech and free exercise of religion. The Supreme Court, in a 6–3 decision, ruled in his favor on both the speech and religion claims. Justice Neil Gorsuch wrote the majority opinion. His opening paragraph reveals how the majority saw the facts and the law in this case:
Joseph Kennedy lost his job as a high school football coach because he knelt at midfield after games to offer a quiet prayer of thanks. Mr. Kennedy prayed during a period when school employees were free to speak with a friend, call for a reservation at a restaurant, check email, or attend to other personal matters. He offered his prayers quietly while his students were otherwise occupied. Still, the Bremerton School District disciplined him anyway.
Id. at 2415.
The Court said:
Both the Free Exercise and Free Speech Clauses of the First Amendment protect expressions like Mr. Kennedy’s. Nor does a proper understanding of the Amendment’s Establishment Clause require the government to single out private religious speech for special disfavor. The Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike.
Id. at 2415–16.
The Court rejected the conclusion of the lower courts that allowing Kennedy’s prayer would violate the establishment clause. The Court said that the lower courts relied on Lemon v. Kurtzman, 403 U.S. 602 (1971), which held that the government violates the establishment clause if it acts with the purpose of advancing religion or if the primary effect is to advance or inhibit religion or if there is excessive government entanglement with religion.
But Justice Gorsuch, writing for the majority, said, “[T]his Court long ago abandoned Lemon and its endorsement test offshoot.” Id. at 2427. The Court then said:
In place of Lemon and the endorsement test, this Court has instructed that the Establishment Clause must be interpreted by “reference to historical practices and understandings.” “[T]he line” that courts and governments “must draw between the permissible and the impermissible” has to “accor[d] with history and faithfully reflec[t] the understanding of the Founding Fathers.”
Id. at 2428.
This is a dramatic change in the law, overruling the test that had been used for 50 years regarding the establishment clause. It is hard to see what will violate that provision under the Court’s new formulation.
Freedom of Speech
The Supreme Court’s record on free speech over the last half century has been decidedly mixed. On the one hand, the Court has created a framework for analyzing government restrictions of speech that requires strict scrutiny for content-based regulation of expression. A core theme of First Amendment jurisprudence over the last several decades has been that content-based restrictions and compulsions of expression must satisfy strict scrutiny. The Court has explained that “[g]overnment action that stifles speech on account of its message, or that requires the utterance of a particular message favored by the Government, contravenes this essential [First Amendment] right.” Turner Broad. Sys., Inc. v. FCC, 512 U.S. 612, 641 (1994). Thus, “[c]ontent-based regulations are presumptively invalid.” R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992); United States v. Alvarez, 567 U.S. 709, 717 (2012) (plurality opinion). This is a very speech-protective approach.
On the other hand, the Court often has rejected free speech claims as well. A half century ago, the Court held that obscenity is a category of speech unprotected by the First Amendment. Miller v. California, 413 U.S. 15 (1973); Paris Adult Theatre v. Slaton, 413 U.S. 49 (1973). The Court has ruled that there is no First Amendment protection for speech of government employees on the job in the scope of their duties. Garcetti v. Ceballos, 574 U.S. 410 (2006). The Court has given great deference to the government when it seeks to regulate speech that is supporting terrorist organizations. Holder v. Humanitarian Law Project, 561 U.S. 1 (2010).
If I had to point to one Supreme Court decision under the First Amendment that has had enormous impact, it is Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), which held that corporations have a First Amendment right to spend unlimited sums from their treasuries to get candidates elected or defeated. It was a 5–4 decision, split along ideological lines, with the conservative justices greatly limiting what types of campaign finance laws will be allowed under their scrutiny of the Constitution.
Conclusion
It would take a book, actually many books, to summarize constitutional law from the last 50 years. But even this brief review shows what it has meant to constitutional jurisprudence to have a solid conservative majority—and an increasingly conservative majority for over a half century.
Constitutional law professors like me can speculate on what might have been if some close elections had produced different results. What if Hubert Humphrey had defeated Richard Nixon in 1968 and had picked four liberal justices instead of the ones Nixon was able to select? What if John Kerry had won in 2004 and he had been the one to replace Chief Justice William Rehnquist and Justice Sandra Day O’Connor? What if Hillary Clinton had prevailed in 2016 and picked three justices instead of the jurists selected by Donald Trump? We can be certain that we would be teaching quite different constitutional law today.
