In the recently concluded “October 2022 term” of the Supreme Court, there were several important constitutional cases that were decided. These cases shed light on the court’s approach to interpreting the Constitution and whether they were based on originalist grounds or other factors. Contrary to the commonly stated claim that SCOTUS has a “6-3 conservative majority,” this term’s cases further highlight the continued liberal judicial pattern of striking down state laws and regulations while not placing similar constraints on Congress.
To understand this phenomenon, it is important to acknowledge the dynamics within the nine-member bench. On one side, there are three liberal activists – Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson. To reach a majority of five, they only need to persuade two of their colleagues to vote with them. On the other side, there is only one staunch originalist, Clarence Thomas, who needs to persuade four of his colleagues in order to prevail.
The five justices in the middle follow various political philosophies and consider the original meaning of the Constitution. However, they also lean towards certain judicial notions established by liberal majorities in the 20th century. These notions include the “incorporation doctrine,” which imposes additional rules on the states beyond the explicit ones mentioned in the 14th Amendment, and the idea that courts should stretch the law to defer to Congress.
It is worth noting that not all of this term’s important cases were constitutional decisions. Some interpreted specific laws, such as Biden v. Nebraska, a student loan case that was hailed as a conservative victory, and Allen v. Milligan, which struck down a Republican apportionment plan for the Alabama legislature and was seen as a liberal victory.
One important case from this term is Tyler v. Hennepin County. On the surface, it may seem like a “conservative” victory as the court held that a property owner’s loss in a tax sale foreclosure violated the Fifth Amendment’s rule against government seizing property without compensation. However, a closer examination reveals some concerning aspects. Chief Justice John Roberts’s opinion applied the incorporation doctrine, a 20th-century constitutional theory that has been criticized by historians and constitutional scholars. It also shows a willingness of the court to interfere in state property law, which should be under state control. Additionally, Justices Neil Gorsuch and Ketanji Brown Jackson pointed out that the forfeiture could have been treated as an “excessive fine” under the Eighth Amendment, but the court did not pursue this approach.
Another case, 303 Creative v. Elenis, was seen as a clear victory for the Constitution, which is often referred to as a victory for conservatives. The case involved a Colorado web design company whose owner, Lorie Smith, refused to design for same-sex weddings due to her religious beliefs. The court ruled in her favor, stating that the state could not force her to deliver a message that she disagreed with, based on the First Amendment’s protection of free speech. However, it should be noted that the case could have been more accurately characterized as being protected by the First Amendment’s freedom of the press.
Haaland v. Brackeen was a significant liberal victory that further expanded the interpretation of the Commerce Clause. The court held that Congress could use its power to regulate commerce with Indian tribes to govern the placement of Indian children in adoptive and foster homes. This decision stretched the Commerce Clause even further and disappointed those who hoped for a trimming of Congress’s broad regulatory powers.
In conclusion, the Supreme Court’s October 2022 term had several important constitutional cases that shed light on the court’s approach to interpreting the Constitution. While some cases were portrayed as conservative or liberal victories, it is important to analyze the reasoning behind the decisions and the impact they have on constitutional principles. The court’s dynamics and the need for a majority of five justices to prevail play a significant role in shaping the outcomes of these cases.