Commentary

This is a review of the Supreme Court’s constitutional decisions during its October 2020 term, which ended on June 30, 2021. (It’s called the October 2020 term because that’s when it began.) This review shows that, contrary to the mainstream media narrative, the court doesn’t have a “conservative majority.” In constitutional cases at least, it leans toward the liberal side.

SCOTUS Blog tells us that during this term the court’s most liberal justice, Sonya Sotomayor, was in the majority 70 percent of the time. But that includes cases interpreting federal statutes, where conservatives won some victories. These included Brnovich v. Democratic National Committee (pdf), upholding Arizona’s election integrity law, and Pakdel v. San Francisco (pdf), helping landowners sue for compensation when government seizes their land.

Where the liberal tilt is noticeable is in constitutional cases.

Why the Roberts Court is not Conservative

There are two underlying reasons why the Roberts court is not conservative. First, the bench contains three liberal justices who often seem to manipulate their methods to achieve “progressive” results. These are justices Breyer, Kagan, and Sotomayor. But none of the other six members of the court balance this by straining for conservative results. The last justice of that kind, James McReynolds, retired in 1941.

Instead, the remaining six usually try to apply neutral principles, irrespective of outcome. Justice Thomas, and to a lesser extent Justice Gorsuch, attempt to follow the Constitution’s original meaning. Justice Alito often leans in this direction as well. So when they think the original meaning produces liberal outcomes, they produce them. The other three tend to be “minimalists,” mostly following precedent.

The second reason the court is not conservative is that many of its constitutional precedents were issued during the time—roughly from 1940 to 1990—when the court was ultra-liberal. Of course, when you apply liberal decisions, you usually get liberal results.

When Justices Kavanaugh and Barrett were confirmed, the ballyhoo was that they would revolutionize the bench. But I was fairly certain they would leave most of the court’s precedents intact, so I published predictions that neither Kavanaugh nor Barrett would change much. And thus far my predictions have been accurate.

The ‘Progressive’ Pattern in Modern Constitutional Law

The American Founders constructed the Constitution on the premise that jurists would continue to apply traditional Anglo-American rules of judging—including what we now call originalism. But during the 1920s, “progressive” justices with very different ideas began to influence the Supreme Court, and by 1940 they had a lock on it. The lock lasted for about 50 years.

During this period the justices largely re-wrote the Constitution. Specifically:

• They refused to enforce limits on the enumerated powers of the federal government. Instead, they allowed federal officials to regulate all sorts of activities far outside the scope of the authority granted by the Constitution.
• On the other hand, they freely voided state laws—mostly through inventive deployment of the 14th Amendment.
• They “constitutionalized” elite social values (or, perhaps, anti-values). They voided, or re-wrote, long-standing policies on land use, domestic relations, pornography, abortion, legislative apportionment, criminal law, and other subjects.

All three patterns appear in the constitutional cases decided this term. Indeed, the Roberts court is proving to be more “progressive” than the Rehnquist court of the 1990s and early 2000s.

Refusing to Enforce Limits on the Enumerated Powers of the Federal Government

As just noted, the liberal majority of 1940–1990 refused to enforce the Constitution’s inherent limits on the enumerated powers granted to federal government. This pattern continued during the latest term:

California v. Texas (pdf) effectively upheld Obamacare for the third time—even though, by the court’s own previously announced standards, Obamacare exceeds Congress’s power. Texas and other states are spending billions of dollars each year to comply with an unconstitutional law, but SCOTUS still denied them standing.

As Justice Alito pointed out in his dissent, there’s a dramatic contrast between how the court indulges liberal states pursuing liberal causes and how it treated the more conservative states in this case. Only Justice Gorsuch joined Alito in his dissent.

In Standing Akimbo v. United States, the justices refused to review a lower tribunal’s decision based on a 2005 SCOTUS case. That 2005 case stretched Congress’s power under the Necessary and Proper Clause to include wholly local activities. Even worse, the 2005 case basically held that, in some circumstances at least, the more overreaching a congressional statute, the more likely it is to be “constitutional.”

In Standing Akimbo, Justice Thomas wrote separately and alone (pdf) to point out that, based on the reasoning of the 2005 case, the statute the lower court applied was no longer constitutional.

In Alabama Association of Realtors v. U.S. Department of Health and Human Services (pdf), the U.S. Centers for Disease Control and Prevention—part of the federal bureaucracy—imposed a nationwide moratorium on landlord-tenant evictions. Under any fair reading of the Constitution, not even Congress (much less an unelected agency) may meddle with the landlord-tenant relationship. That is a classic example of an area reserved to the states. Yet the court failed to address the constitutional issue and failed to stop the overreach.

PennEast Pipeline v. New Jersey (pdf) requires some explanation:

The Constitution gives Congress authority to condemn land for public purposes. The Constitution doesn’t mention this “eminent domain” power explicitly, but history shows it to be incidental to Congress’s other powers (pdf).

However, the 11th Amendment says, in part, that a citizen of one state may not sue another state without its consent. Yet Congress and a federal agency purported to give a Delaware gas line company authority to condemn land owned by the State of New Jersey.

The condemnation suit should have been ruled unconstitutional. However, the court interpreted Congress’s powers expansively notwithstanding the 11th Amendment. Justice Barrett dissented, joined by Thomas, Kagan, and Gorsuch.

The majority opinions in the foregoing cases displayed the justices at their worst. Breyer’s opinion in the Obamacare case centered on an obvious logical fallacy, as I showed in an earlier essay. Roberts’ opinion in PennEast Pipeline was just as messy. In Standing Akimbo and Alabama Association, the court offered no explanation at all.

Voiding State Laws through Inventive Use of the 14th Amendment

The 14th Amendment’s Due Process Clause reads, “nor shall any State deprive any person of life, liberty, or property, without due process of law.” This means that when a state prosecutes a person civilly or criminally, it has to follow pre-existing law. It can’t make up the rules as it goes along.

Early in the 20th century, conservative activist justices claimed the Due Process Clause voided certain unrelated state practices. When the liberal activists took over, they decided the same thing—although, of course, they banned different practices. Liberal activist justices further claimed the Due Process Clause required the states to follow almost every jot and tittle of the justices’ own Bill of Rights decisions.

The court has repudiated the conservative activists’ distortions, but continues to apply and extend the liberal activist version. Last term, for example, the court declared that several states’ longstanding jury rules violated the Due Process Clause (pdf). Here are the results from this term:

Cedar Point v. Hassid (pdf), written by Chief Justice Roberts, held that a California statute allowing union organizers access to agricultural land was an uncompensated “taking” in violation of the Fifth Amendment. I like the result, but the problem is that it rests upon the liberal activist fiction that the 14th Amendment’s Due Process Clause applies the Fifth Amendment to the states.

Fulton v. Philadephia (pdf) unanimously awarded a hollow victory to a Catholic charity. It held that the city of Philadelphia could not disqualify the charity from participating in a foster child program because of the charity’s religious views. But the ruling was based on the “due process” fiction and it explicitly left open a path for Philadelphia to circumvent it.

The court should have held that Philadelphia invidiously discriminated against the Catholic charity in violation of the 14th Amendment’s Equal Protection Clause.

In Americans for Prosperity Foundation v. Bonta (pdf) the court voided a policy of the California attorney general. The policy required charities to disclose the names of their principal donors—thereby opening those donors to retaliation from (mostly leftist) thugs. Again, I like the result, but not the methodology.

Some will claim that Bonta is a “conservative” decision. This is perverse. The decision, like the much-abused case of Citizens United, is based almost exclusively on precedents issued by benches dominated by liberal activists. Bonta also relied on the intellectual spider webs called “tiers of scrutiny”—invented by liberal activist justices.

Imposition of Elite Social Values (or Anti-values)

When “progressives” dominated the Supreme Court, they engaged in what the late Sen. Daniel Patrick Moynahan (D-N.Y.) labeled “defining deviancy down.” Later Supreme Court majorities have continued, rather than reversed, the trend. For example, last term in Bostock v. Clayton County (pdf) the justices ruled that the category of “sex” in the Civil Rights Act of 1964, which was intended to mean men and women, also extended to persons displaying homosexual and transgender behavior. This massively extended the scope of the law, and reduced the right of free association—all without a congressional vote.

This term, in Grimm v. Gloucester County School Board, the court left standing a lower court order that a biological female could use a high school boys’ restroom. Only Thomas and Alito dissented (pdf).

Similarly, in Berisha v. Lawson (pdf) the court refused to review several cases from the liberal-activist era designed to protect the mass media from defamation liability. Although those precedents have encouraged lies and “dark money” campaigns—and although they’re utterly unrelated to the Constitution’s real meaning—only Thomas and Gorsuch argued for re-assessing them. On the other hand, in a statutory decision issued the same day the court refused to grant campus conservatives a remedy against university administrators who had squashed their right to free speech (pdf).

Mahoney Area School District v. B.L. (pdf), written by Justice Breyer, further promotes the pattern of “defining deviancy down.” It was, furthermore, the silliest case of the term: The same court that refused to listen to 18 states challenging Obamacare earnestly endorsed the claim that a 14-year-old’s f-bombs were “free speech.”

The teenager used Snapchat to inflict multiple f-words and an image of her middle finger on 250 of her closest friends. The target of her ire was her high school and its cheerleading program. School administrators suspended her from the cheerleading squad for a year. You might think the administrators deserved commendation, but the court said they violated the First Amendment.

The case illustrates the foolishness of nine Washington, D.C. lawyers second-guessing hard-pressed school authorities’ discipline of a minor. Only Justice Thomas dissented.

In Conclusion …

The current court is not conservative. As this term’s constitutional cases show, the court applies, and sometimes extends, the anti-constitutional jurisprudence developed during its most liberal era.

Robert G. Natelson, a former constitutional law professor, is senior fellow in constitutional jurisprudence at the Independence Institute in Denver. His research studies frequently have been cited by Supreme Court justices and parties, as well as by numerous other courts. He is the author of “The Original Constitution: What It Actually Said and Meant” (3^rd ed., 2014).

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.