The historic Supreme Court term that ended this week was a triumph for originalism.
The Wall Street Journal Editorial Board, July 1, 2022
A funny thing happened on the way to the supposedly partisan Supreme Court finishing its term: It ruled for the Biden Administration on immigration. Somehow that case isn’t making the dastardly hit list of those eager to declare that the Court is now “illegitimate,” but the Justices applied the law regardless of the policy and decided for the executive branch.(See nearby for elaboration.)
This isn’t a partisan Court looking for preferred policy outcomes. It’s a Court that hews to the tenets of originalism, with different shades of emphasis by different Justices. The Court’s jurisprudence is focused more than anything else on who under the Constitution gets to decide policy, not what that policy should be.
This is the main reason Democrats and the press corps are furious about the Court’s decisions. For decades they have counted on a majority of Justices to deliver or bless the policy results they want: on abortion, voting rights, healthcare, racial preferences, climate and economic regulation. You name it, the Court found ways to deliver it with balancing tests, trimester analysis, and the discovery of unenumerated rights between the lines of the Constitution’s text.
For decades conservative critics have argued that the role of the Court should be different—supporting rights that are actually in the Constitution, but otherwise enforcing the separation of powers so each branch of government stays in its lane as defined by the Founders. With the arrival of three new Justices nominated by Donald Trump and shepherded to confirmation by GOP Senate leader Mitch McConnell, that Court has arrived.
The result is the opposite of judicial imperialism. In the Dobbs abortion case, the Court is trying to extricate itself from abortion policy debates. As Justice Brett Kavanaugh put it, “the Constitution is neutral on the issue of abortion.” Policy will now be set by legislators in the states as informed by voters, subject to a low-level of legal review known as the “rational basis” test.
The political result may be surprising. The right-to-life movement now must persuade voters across 50 states, and most voters favor some limits on abortion but not an outright ban. If Republicans sound like moral scolds and can’t make their case with compassion for women, they will lose the debate. If Republicans seek a national ban on abortion via Congress, the Court could strike it down. The Court majority in Dobbs has invigorated democracy and federalism.
In its administrative law cases, the Court also isn’t dictating outcomes. It is invigorating its role as a traffic cop among the branches. On immigration law, two conservatives joined the liberals to side with the White House. But on climate six Justices found that the Biden Administration had exceeded the authority that Congress provided in legislation.
The cries from the left are that the Court has doomed the world to burning up. But progressives can still regulate carbon emissions. The rub is that to achieve their climate goals, they will have to pass legislation, not merely reinterpret an obscure corner of the Clean Air Act that wasn’t written with carbon emissions in mind.
As Justice Neil Gorsuch observed in WestVirginia v. EPA, legislating can be difficult in the American system. But that is how the Founders designed it to protect liberty and guarantee political accountability. Telling Congress it must write clear commands to the bureaucracy enhances accountability.
The Court is also taking a more robust approach to protecting the rights that the Constitution does mention, especially the First and Second Amendments. On gun rights, the Justices put new substance into the individual right to bear arms recognized by the 2008 Heller decision. Politicians can still regulate guns, but they must do so more carefully so individuals can defend themselves outside their homes.
On religious liberty, the Court cleaned up decades of confusing instructions to lower courts on the separation of church and state. The Justices gave new vigor to the free exercise of religion by supporting private prayer in a public place and barring discrimination against religious schools. States don’t have to aid private schools, but if they do they can’t deny that aid to religious schools. This is a proper policing role for the Court in securing liberties specified in the Constitution.
All of this vindicates the decades-long effort known as the conservative legal movement. What started with the law and economics school grew with the Federalist Society and a generation of federal judges into something far larger and now more consequential.
Lately some on the social right have called this movement a failure, but they are as mistaken as critics on the left. This Supreme Court term yielded victories for libertarians and cultural conservatives under the principle of originalism. The separation of powers is as crucial to protecting religious freedom as it is to protecting property rights or limiting regulation without Congressional commands.
This is a Court for the Constitution, and that means the right and left will have to win their policy victories the old-fashioned way—democratically.