Legal Watch: The Supreme Court’s Hard Right Turn

By Edward Swidriski

When the Supreme Court closed its term this past June, it left in its wake a legal and constitutional landscape drastically altered by a newly emboldened conservative majority. In case after case, the court’s Republican-appointed justices (who now hold six of the court’s nine seats) threw out long-settled precedents, deployed previously familiar legal doctrines in new and unusual ways, and expanded recent conservative decisions—all in the service of reaching outcomes that restrict individual rights and freedoms and hamper the ability of democratic majorities and their representatives to govern for the common good.

The highest profile decision this past term was Dobbs v. Jackson Women’s Health Organization, which held that the US Constitution does not protect a woman’s right to obtain an abortion, overturning the court’s landmark 1973 decision in Roe v. Wade. The decision in Dobbs allows state legislatures to restrict abortions, and some Republican-controlled states have already enacted draconian antiabortion laws that would force rape victims to carry resulting pregnancies to term and that provide no exception for the life or health of pregnant women. In addition to the profound burden that the decision will place on women and their doctors, the reasoning of the court’s opinion threatens other fundamental rights. By undermining the principle of substantive due process, which has allowed for the protection of certain fundamental rights not explicitly enumerated in the constitution, Dobbs calls into question such basic rights as marriage equality, the right to obtain and use contraceptives, and the right to privacy in general. Dobbs also reveals that the court’s conservative wing now feels largely unconstrained by precedent and may readily overrule prior decisions with which it disagrees, even if doing so upsets settled expectations and curtails rights that most Americans support.

Other important decisions this term involved gun restrictions, the separation of church and state, and the federal government’s authority to combat climate change. In New York State Rifle & Pistol Association v. Bruen, the court’s conservative majority struck down a century-old New York law that required individuals to show cause before obtaining a permit to carry a concealed weapon in public, holding that the law violated the Second Amendment. In Kennedy v. Bremerton School District, the same group of justices held that the First Amendment protected a high school football coach who prayed with players in the middle of the field immediately after each game. Court observers have noted that the decision in Kennedy continues a troubling trend of recent decisions that have eroded the Constitution’s separation of church and state. Finally, in West Virginia v. EPA, the six Republican-appointed justices invalidated certain efforts of the Environmental Protection Agency to fight global warming by regulating carbon dioxide emissions at power plants. To reach that outcome, the court deployed the “major questions doctrine,” a legal device that allows judges to overturn a government regulation if they deem the regulation to be of “vast” significance and if they conclude that congressional authorization for agency action is not sufficiently “clear.” Given its vague contours and inherent malleability, the major questions doctrine is likely to become a prominent weapon in the conservative majority’s deregulatory arsenal in the coming years.

The Supreme Court’s decisions this term did not directly address academic freedom and other rights of faculty at institutions of higher education. Nonetheless, the conservative majority’s embrace of judicial activism means that legal efforts to safeguard those rights will likely need to be renewed in the coming years. Next term, for example, the court will take up cases involving Harvard University and the University of North Carolina at Chapel Hill that challenge the use of race as a factor in university admissions decisions. On August 1, 2022, the AAUP joined an amicus brief filed with the Supreme Court in those cases that supports the ability of universities to consider applicants’ race and ethnicity as part of their holistic admissions review. The brief emphasizes the importance of academic freedom, which protects the right of colleges and universities to accept students from a range of racial backgrounds. The brief also points out that if consideration of race is excluded from admissions decisions, the perspective of applicants whose racial identity plays a major role in their lives will be silenced or ignored.

Recent polls indicate that a large majority of the American people now disapproves of the current Supreme Court, and the conservative majority’s recent decisions confirm the public’s view that the court has become a partisan political actor instead of a fair and impartial arbiter. If the court is to regain legitimacy, it will need to correct course—and fast.

Edward Swidriski is assistant counsel at the AAUP.