Let’s take a moment to analyze how the court achieved its goals. It employed various tools and strategies to overcome obstacles. Precedents that stood in the way were either outright rejected, as we saw in the Dobbs v. Jackson Women’s Health Organization decision that challenged Roe v. Wade and Planned Parenthood v. Casey, or were simply rendered irrelevant and abandoned, as the court has done in recent cases. For example, in the affirmative action decision on race-conscious university admissions, Chief Justice Roberts’s majority opinion did not explicitly overturn the 2003 Grutter decision, but it effectively ended its influence, as Justice Thomas correctly pointed out.
Similarly, the court has not formally overruled its Chevron decision, but it has stopped citing it as authority in administrative-law cases. Instead, the court has replaced Chevron’s rule of judicial deference with the major questions doctrine, which requires explicit authorization from Congress for an agency’s regulatory action on a major issue. Deference is now the exception, rather than the rule.
However, distinguishing major questions from ordinary ones is left to the court itself. While we’re unsure of the ratio of major to ordinary questions in administrative law, it’s likely that any important and contentious issue reaching the Supreme Court would be deemed major by justices who express skepticism of the administrative state.
Justice Neil Gorsuch openly acknowledged this in a concurring opinion last year regarding the Environmental Protection Agency’s regulatory authority. He explained that the major questions doctrine applies when an agency claims to have the power to resolve matters of great political significance. It’s hard to find a better indicator of political significance than sustained conservative opposition. This environmental case from last year set the stage for the court’s recent decision to overturn the Biden administration’s student-loan forgiveness program.
The 2008 Heller decision partially recognized the Second Amendment right to keep a handgun at home for self-defense. However, Justice Thomas, dissatisfied with Heller’s limited scope, repeatedly criticized the court for treating the Second Amendment as a “second-class right.” His stance finally prevailed in the recent Bruen decision, which adopted a remarkably broad interpretation of gun ownership rights. Now, the court will hear United States v. Rahimi, a case that will test this expansive approach by examining whether the Second Amendment allows the government to restrict gun ownership for individuals under a restraining order for domestic violence. The possibility that the answer might be “no” due to the absence of the concept of domestic violence in the 18th century is astounding.
Lastly, there’s the case concerning a web designer who sought the right to refuse designing websites for same-sex couples’ weddings. The court’s decision to hear this appeal last year puzzled me, especially since the designer, Lorie Smith, had not designed a wedding website before or turned away any customers. The lawyers from the Alliance Defending Freedom, a conservative Christian group, asked the court to determine whether Colorado’s non-discrimination law violated Ms. Smith’s freedom of religion or free speech rights. The court agreed to address only the free speech question, even though it seemed interconnected with the religious aspect of the case. It was Ms. Smith’s religious beliefs that fueled her claim of free speech rights.
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