The Supreme Court in 2022

This is the season for reflecting back on 2022 and it was a monumental year in the Supreme Court. The year saw dramatic changes in constitutional law and was a harbinger of what is to come. We saw the full effect of Donald Trump having been able to appoint three justices in his four years in the White House.

What were some of the most important things we learned about the Court in 2022?

Precedent matters little in the Roberts Court. The year will be most remembered for the Supreme Court decision on June 24 in Dobbs v. Jackson Women's Health Organization, which overruled Roe v. Wade. Rarely in American history has the Supreme Court ever taken a right away, but that is exactly what the Court did 49 years after it held that the Constitution protects a right for women to choose whether to terminate their pregnancies.

For decades, conservatives have sought to overrule Roe. As a presidential candidate in 2016, Trump said that he would appoint justices committed to overruling Roe. He did just that and it worked: the three Trump appointees joined Justices Alito and Thomas in the majority to end abortion rights.

Dobbs did not end the fight over abortion but intensified it. There are now fights in legislatures across the country about laws to restrict or protect abortion rights. State courts are being asked to provide protection under the state constitution. A plethora of legal issues are arising that will have to be litigated and resolved in the courts.

And Dobbs was not the only case to overrule precedent. On June 27, the Court ruled in Kennedy v. Bremerton School District that punishing a high school football coach for engaging in silent prayers on the field after games violated his free exercise of religion and freedom of speech.

In 1971, the Lemon v. Kurtzman Court had articulated a three-part test for the Establishment Clause of the First Amendment. A law was unconstitutional if it lacked a secular purpose, or if the primary effect is to advance or inhibit religion, or if there is excessive government entanglement with religion. This test has been central to Establishment Clause analysis for decades. But in Kennedy, Justice Gorsuch said that the Lemon test had been overruled. Now the government violates the Establishment Clause only if it coerces religious participation.

The triumph of originalism. It was not that long ago, in 1987, that Robert Bork was decisively rejected by the Senate because his originalist approach to the Constitution was seen as radical and dangerous. Bork had previously said, and reaffirmed in his confirmation hearings, that he did not believe that there was any constitutional protection of privacy and autonomy, that equal protection does not protect women from discrimination, and that the First Amendment protects only speech related to the political process.

But now there are three justices - Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett - who are self-avowed originalists and three other conservatives who join their opinions and often write in originalist language. The triumph of originalism is reflected in the Court's decision in New York State Rifle and Pistol Association v. Bruen, which was decided on June 23.

The case involved a New York law, initially adopted in 1911, that prohibits having weapons in public without a permit. If a person wants to carry a firearm outside the home or place of business for self-defense, the applicant must obtain an unrestricted license to "have and carry" a concealed "pistol or revolver." To secure that license, the applicant must prove that "proper cause exists" to issue it. New York courts interpreted this to require that a person "demonstrate a special need for self-protection distinguishable from that of the general community." California law was the same in this regard.

In a 6-3 decision, with the majority opinion written by Justice Clarence Thomas, the 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." The Court held that state laws are unconstitutional if they restrict having concealed weapons to those who show cause.

When the Court deems a right fundamental and wants that right to have the greatest protection, it adopts strict scrutiny, which requires 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 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.

This provides more protection for Second Amendment rights than any others in the Constitution. It is the most originalist decision in history, using originalism both to decide the content of Second Amendment rights and what regulations are allowed.

They've only just begun

Sometimes an extraordinary year in the Court is followed by a quieter term. Not this year. The docket is filled with potentially momentous cases that were argued in the Fall of 2022. Students for Fair Admissions v. University of North Carolina, and Students for Fair Admissions v. Harvard College, which were argued on Oct 31, involve whether the Court should overrule four decades of precedents and hold that colleges and universities cannot engage in affirmative action. There is consensus, among liberals and conservatives, that this is likely to happen and it will have a significant effect on college and university admissions across the country.

303 Creative LLC v. Elenis, which was argued on Dec. 5, is about whether a website designer has a right based on free speech to refuse to design websites for same-sex couples in violation of state anti-discrimination law. If the Court rules in favor of the web designer, as most predict, this will create a basis for many to claim exemption from anti-discrimination laws.

Moore v. Harper, which was argued Dec. 7, concerns whether a state supreme court can enforce the state constitution and find gerrymandering impermissible. The North Carolina Supreme Court found that the North Carolina legislature's partisan gerrymandering violated the state constitution and ordered a commission to draw non-partisan districts. The Speaker of the North Carolina House of Representatives argues that the legislature gets the sole and final word, unreviewable by the state courts. If the Court accepts the "independent state legislature" theory, the implications are enormous for congressional elections, even future presidential elections.

Conclusion

It is not hyperbole to say that 2022 was one of the most important Supreme Court years in American history. And it is not aberrational. The conservative justices on the Court are poised for more dramatic changes in constitutional law in the years to come.