The Supreme Court’s term, which ended on June 30, demonstrated the power of the conservative majority that was emboldened after the confirmation of Amy Coney Barrett eight days before the 2020 presidential election.
The court issued 58 merits decisions, that is, those with full arguments before the justices. While it is not possible to highlight all of them, here are the most controversial and the most watched.
In a series of 6-3 victories over their liberal counterparts and most watched cases, Chief Justice John G. Roberts Jr. and Associate Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh, and Barrett joined together to create a concrete bloc. One commentator noted that these rulings were along the most conservative since 1931, when conservatives dominated the Court, soon overturning several New Deal laws promoted by the Franklin D. Roosevelt administration.
In one of the most publicized cases, Dobbs v. Jackson Women’s Health Organization, with Alito writing for the court, the six overruled a nearly 50-year precedent recognizing the right of women to obtain an abortion. Overruling Roe has long been a goal of the antiabortion movement. In 1985 as a young Justice Department official, Alito wrote that cases coming to the court may chip away at abortion rights, but the ultimate goal was to bring “about the eventual overruling of Roe v. Wade.”
The six also struck a blow against gun safety laws by expanding the right to carry concealed weapons. Two years ago, Alito set forth his views. Speaking before the Federalist Society, an association of conservative lawyers and judges, he said, “The ultimate second-class right in the minds of some is the Second Amendment.”
This statement echoed one by Thomas in 2018, when he stated that “the right to keep and bear arms is apparently this Court’s constitutional orphan.” Alito and Thomas joined the six-justice majority in a gun rights case that overturned a century-old New York law requiring people to obtain police permission to carry a concealed weapon outside their home. A similar law exists in six other states, including Massachusetts. It will now be easier to obtain permission to carry a concealed handgun in public places. Gun rights advocates may well challenge the commonwealth’s law.
The six justices severely reined in the EPA in its ability to reduce climate change and reduce greenhouse gas emissions. They held that Congress never authorized the agency to force power plants to move toward clean energy. Roberts’s ruling for the court resolved “a major questions case,” as he calls it, because the EPA unilaterally expanded its authority beyond its congressional mandate. While it does not end the EPA’s authority to regulate power plants, the agency must now find a different route. It may determine how fossil-fuel producing plants can become more ecologically efficient, rather than replace fossil fuels with solar or wind energy.
Several plants in Massachusetts burn fossil fuels, including a new one going up in Peabody. In Ludlow, the Stony Brook Power Plant burns natural gas and oil to produce electricity. And numerous ones exist farther west. Considering the western flow of air to the Island, we can expect increased air pollution to reach our shores over the next several years.
Just as their ruling will save millions of dollars for the power plant industry, the six supported business in another case when they ended the Occupational Safety and Health Administration’s mandate to keep Americans free from death and disease: They prohibited a new rule that forced employers with at least 100 employees to require their workers to receive a COVID-19 vaccine or wear a mask and be subject to weekly testing.
The six justices diluted the establishment clause’s principle of the separation of church and state in two cases. In 1947, the court decided that the meaning of “government establishing a religion” required the separation of church and state. But no more. In his 2020 speech before the Federalist Society, Alito argued that freedom of religion was failing, because “religious liberty is fast becoming a disfavored right.”
In another case, the six justices held that if the State of Maine financially supported secular private schools, it also had to send money to religious schools. In a second one, five conservative justices agreed with Gorsuch that a high school football coach’s prayer on the 50-yard line after games did not implicate the school district. His prayer involved a private act of faith protected by the First Amendment, even if several players either felt uncomfortable or feared losing playing time if they declined to join him.
Finally, in a 5-4 decision, conservative justices diminished the authority of Native Americans to adjudicate criminal cases on tribal land. The court held that a non–Native American who committed a felony on tribal land should be tried in federal or state, not tribal, court. Gorsuch, who supports Native American rights, joined the liberal dissenters.
The court’s liberal wing was not in the minority in all cases this term. Sometimes the lineup of justices was mixed, with conservatives and liberals on the same side.
Roberts, Kavanaugh, and the liberal bloc ruled that the Biden administration won the right to terminate a Trump administration rule requiring immigrants to remain in Mexico until their appeals were adjudicated. In addition, the administration correctly mandated vaccinations against COVID-19 by healthcare workers: the opinion was unsigned, but Roberts and Kavanaugh joined the liberals.
Eight members of the court, in an emergency application filed by former President Trump, denied his assertion of absolute executive privilege when he wanted to withhold White House documents from the Jan. 6 select committee investigating the riot in the U.S. Capitol. Only Thomas dissented.
In the sole death penalty case, a petitioner won the right to have his pastor touch him during his execution. Thomas again was the sole dissenter.
Overall, a landmark term, revealing the strength of the conservative justices in the years to come.
Jack Fruchtman, who lives in Aquinnah, has written “The Supreme Court and Constitutional Law,” now in its third edition, and “American Constitutional History,” now in its second.