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Best Pride Month Ever
In the course of a few weeks in June, the Supreme Court has restored democracy, expanded gun rights and expanded religious liberty in ways few thought possible.
that are claiming Thomas would come after interracial marriage
The administrative state’s threat to democratic accountability, which does not feature in Kagan’s dissent, is the theme of Gorsuch’s concurrence. “The framers believed that a republic – a thing of the people – would be more likely to enact just laws than a regime administered by a ruling class of largely unaccountable ‘ministers,’” Gorsuch argues. He cites his about-to-retire colleague Stephen Breyer — who signed Kagan’s dissent — on the dangers of the legislative branch divesting its power to the executive branch and the risk of legislation becoming nothing more than the will of the current president or, worse, the will of unelected officials barely responsive to him.
Vision 1. The Constitution allocates powers to the three branches of government, and also lists certain rights entitled to constitutional protection. The role of the courts is (1) to assure that the powers are exercised only by those to whom they are allocated, (2) to protect the enumerated rights, and (3) as to things claimed to be rights but not listed, to avoid getting involved.
Vision 2. The Constitution is an archaic document adopted more than 200 years ago, and largely obsolete. The role of the courts is to implement the current priorities of the academic left and then somehow rationalize how that is consistent with the written document.
Josh Hawley of Missouri came to bury originalism, not to praise it—and he was wrong. “It represents the end of the conservative legal movement,” he said on the Senate floor two years ago, referring to a decision by Justice Neil Gorsuch that redefined “sex discrimination” to protect gay and transgender employees. On Dec. 5, four days after the justices heard oral arguments in Dobbs v. Jackson Women’s Health Organization, Catholic University of America legal scholar Joel Alicea issued a more sympathetic warning. “The conservative legal movement finds itself at its most precarious point since its inception in the early 1970s,” he wrote. If the court declined to overturn Roe v. Wade (1973), Mr. Alicea argued, it would “likely shatter the movement,” bringing “an end to one of the most successful intellectual and political projects of the past half-century.”
Instead, this was the term when the conservative court arrived. Roe and its successor, Planned Parenthood v. Casey (1992), are no longer good law. Neither is Lemon v. Kurtzman (1971), which set up a confusing three-part test to keep religion out of the public sphere. The court expanded gun rights for the first time in 12 years. And it limited the executive branch’s power to regulate without explicit authorization from Congress.
“Let’s put it in simple terms,” Paul Clement says. “I don’t think Justice Thomas has ever had a better term on the court.” (Clarence Thomas joined the court shortly after the start of the 1991-92 term.) Many of this term’s rulings, Mr. Clement says, “seem like they’re joined at the hip in terms of really trying to restore things to first principles, text, history and tradition.”
No one has a better seat to watch the evolution of the current court than Mr. Clement. The 56-year-old lawyer has argued more than 100 cases before the justices since 2000, more than any other advocate—including four this term, three of which he won. He has been at the frontlines of the conservative legal advance, as a clerk to Judge Laurence Silberman and Justice Antonin Scalia, as an appellate litigator in private practice, and at the Justice Department, where he served as solicitor general, the lawyer representing the government before the high court, from 2005 to 2008.
Mr. Clement’s victories this term illustrate the stakes for culture and policy and the conservative majority’s interpretive method. In Kennedy v. Bremerton School District, the court held that Mr. Clement’s client, a Washington state high-school football coach, was within his rights under the First Amendment’s Free Exercise Clause to pray quietly on the field after games. It rejected the district’s claim that such prayer was unlawful under the amendment’s other religion clause, which bars laws “respecting the establishment of religion.”
That’s where the Lemon test came in. In that case, the court had barred state funding for secular instruction at sectarian schools on the grounds that it constituted an “excessive government entanglement” with religion, thus failing the test’s third “prong.” (The first prong required a “secular purpose”; the second, a “primary effect” that was neutral as to religion.)
The Lemon test was “very typical methodology for the 1970s,” Mr. Clement says in a Zoom interview. “It was the product of a court that was very comfortable with fashioning tests and doctrines that were based less on the text of the Constitution and more on looking at previous cases the court had and trying to group them together and come up with a three-part test.”
Over the years the justices repeatedly modified or chipped away at Lemon but never expressly overturned it. That left lower courts without clear guidance even as the justices moved toward protecting religious liberty. In Kennedy, Justice Neil Gorsuch removed all doubt: “This Court long ago abandoned Lemon.” The effect, Mr. Clement says, was not only to vindicate Joe Kennedy’s rights “but to really clear up the doctrine here and make clearer than the court has ever made.”
It’s a classic example of originalism, the interpretive approach of looking to the Constitution’s text, history and tradition. So is another of Mr. Clement’s cases this term, New York State Rifle & Pistol Association v. Bruen, which he calls “a kind of natural experiment in originalism.” The Second Amendment had long been a constitutional orphan; only in 2008 did the justices recognize that it conferred any legal right at all. Because the court, “for better or for worse, took 100 years off,” Mr. Clement says, there’s no accumulation of precedent and it can look at the issue anew. “You get a window into what the court thinks is the best mode of constitutional interpretation.”
The answer turns out to be something different from the approach that has prevailed since the late 1930s, when the court first introduced “tiers of scrutiny”—tests for balancing governmental interests with constitutional rights, with the government’s burden depending on the importance the justices assign to the right being asserted.
The justices laid out no such test in their earlier Second Amendment cases, D.C. v. Heller (2008) and McDonald v. Chicago (2010), but lower courts had improvised their own. No longer. “When the Second Amendment’s plain text covers an individual’s conduct,” Justice Thomas wrote in Bruen, “the government may not simply posit that the regulation promotes an important interest.” Instead, the test will be whether “the regulation is consistent with this Nation’s historical tradition of firearm regulation.” Mr. Clement describes Bruen as “kind of wiping the slate clean of a decade of post-McDonald circuit-court law.”
In Dobbs, the term’s highest-profile decision, Justice Samuel Alito’s decision also emphasized constitutional text and history. But unlike in Kennedy and Bruen, only five justices joined it. Chief Justice John Roberts voted with them to uphold Mississippi’s law limiting abortion but said in a lone concurring opinion that he wasn’t prepared to overturn Roe.
One difference is that Dobbs reversed precedent much more dramatically and consequentially than Kennedy did. “Stare decisis is hard,” Mr. Clement says. “The chief is a very conservative justice by historical standards, who happens to be the chief—and either because of who he is or because he’s the chief, sort of has an acute concern with the institution and how quickly it moves and all of that.”
That’s harder for him to control now that the court is no longer evenly divided on many of the most politically charged cases. “If five of the chief’s colleagues to his right are ready to move on something, there are only so many tools in the chief’s toolboxes,” Mr. Clement says. “It’s one of the paradoxes of the job. You call him the chief, the court tends to get named after him, but in reality, for a lot of purposes, other than being the ceremonial head of the Smithsonian and a few other things, you really are just a justice, and you’ve got to operate this dynamic of the nine justices.”
A litigator has to operate the same way. “The job of a Supreme Court advocate is to get to five for your client,” Mr. Clement says. During the Rehnquist court, when Justices Sandra Day O’Connor and Anthony Kennedy often voted unpredictably, he had to figure out how not to “alienate” them while also holding the court’s conservative minority.
“I used to joke that sometimes I think Justice Scalia would ask me a friendly question that was perfectly designed to get his vote and no others, or certainly not more than three,” Mr. Clement says. “You just had to be careful about that, and you had to build your coalition.”
He took special pleasure in arguing before Scalia, his former boss. “He asked me once in a case about implied rights of action,” a doctrine that allowed plaintiffs to bring lawsuits under federal statute that don’t specifically authorize them. “I made an allusion to a case being decided that wasn’t decided in the bad old days when the court inferred causes of action. And he asked me, ‘Well, when do you think the bad old days ended?’ And I said, ‘Well, when you got on the court, Mr. Justice Scalia,’ and that’s still one of my favorite answers.” It wasn’t mere flattery, Mr. Clement insists; it was “exactly the right answer. That is when—it was about 1986 when the court stopped inferring causes of action. So it was a great answer.”
The court closed its term on Thursday with two decisions, both written by Chief Justice Roberts, in which states challenged federal administrative decisions. The Biden administration went 1 for 2. In West Virginia v. Environmental Protection Agency, the six conservatives struck down the EPA’s Clean Power Plan, finding that it exceeded the agency’s authority under the Clean Air Act. In Biden v. Texas, the three liberals and Justice Brett Kavanaugh joined the chief in upholding a change from the Trump administration’s immigration policy.
“It does not seem like an accident that the chief kept the two big administrative-law cases for himself, decided them together on the last day, and ruled for the Biden administration in one but against it in the other,” Mr. Clement says in a Thursday afternoon email. “At one level, today’s cases show that the chief is still a pivotal justice, especially when it comes to administrative law.”
Mr. Clement sees a “commonality” between conservative decisions in administrative-law cases like West Virginia and in constitutional ones like Dobbs. In both cases, the justices are asking: “How do we get issues to a part of the political system where the people can have more of a direct voice? And in doing so, I think the theory is that we will take some pressure off the court in the long run and that will be good.”
He says that pressure inevitably rises when the court is “where the most contentious issues in society are being decided.” That makes it “impossible for the court not to be politicized,” especially in a polarized era. At the same time, the court is “not institutionally wired to respond to wokeness,” because its “whole function depends on having two very different positions, both of which are controversial in one circle or the other, being presented as ably as possible.”
That explains why “one of the things that all nine of them agree on is free speech. . . . That’s really out of step with what’s happening at some of the law schools and some of the undergraduate schools, where the coming generation just doesn’t have the same commitment to free speech principles as my generation had.”
That’s true at law firms as well. The day the court decided Bruen, Mr. Clement and another partner announced that they were leaving Kirkland & Ellis because it told them they’d have to drop their gun clients if they wanted to stay. It wasn’t a first for Mr. Clement: In 2011 he left another firm, King & Spalding, when it withdrew from a case in which his client, the U.S. House of Representatives, sought to uphold the 1996 Defense of Marriage Act. (He lost that case, U.S. v. Windsor, at the high court in 2013.)
What do the justices have in store for the October 2022 term? On Thursday they agreed to hear Moore v. Harper, in which North Carolina lawmakers urge them to hold that state courts can’t rewrite laws governing federal elections “based on vague state constitutional provisions purportedly vesting the state judiciary with power to prescribe whatever rules it deems appropriate to ensure a ‘fair’ or ‘free’ election.”
Next term’s most contentious case may be Students for Fair Admissions v. Harvard, which will revisit Grutter v. Bollinger (2003), the ruling that upheld racial preferences in higher education. Chief Justice Roberts has consistently opposed such preferences. “One of the most memorable lines from the chief over the years is that ‘the way to stop discrimination on the basis of race is to stop discriminating on the basis of race,’ ” Mr. Clement says. “This does seem like an issue that he’s cared about, going back to his days as a practitioner. . . . That might be a context in where you expect to see the opinion written by the chief.”
Mr. Clement says that “historically, when the court has had a term anything like this, it often does nothing but take bankruptcy cases the next term and let the steam out of the system a little bit.” Not this time: “They’re slated to have another fairly substantial and momentous term.” The conservative legal movement may be picking up steam.
Mr. Tomaino is an assistant editorial features editor at the Journal.
https://www.wsj.com/articles/the-conservative-court-has-arrived-paul-clement-dobbs-bruen-religion-administrative-state-justice-roberts-alito-thomas-11656692402