Dive into a handful of major recent SCOTUS decisions, find out what to expect in the upcoming term, and learn how the Supreme Court will likely determine public policy in the future.
The U.S. Supreme Court is not the branch of government tasked with making laws and policy. But in maybe its most consequential term in decades, it had an arguably more impactful policy session than Congress, with decisions to overturn Roe v. Wade, expand the rights of gun owners, and curtail the Biden administration’s power to combat climate change.
This term “showed just how much the 6-3 conservative majority will influence and reshape those areas of policy and law,” said Todd Ruger, editor of immigration and legal affairs at CQ and Roll Call, at a recent FiscalNote event. “This one was momentous, not just because of the issues that were decided, which were huge, but how they were decided and what they could mean for the future.”
The ramifications for government relations and advocacy professionals who traditionally looked to influence policy through educating legislators are vast and far-reaching. Read about some of the big SCOTUS decisions this term and what we might expect from the upcoming term beginning in October.
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Watch our recorded webinar for a conversation with award-winning CQ and Roll Call journalists on the recent SCOTUS decisions.
2021-2022 Recap & Future Impact
WEST VIRGINIA V. EPA
The case West Virginia v. EPA, also commonly referred to as the Clean Power Plan case or the climate change case, was “a fight over a currently non-existent administrative regime from the Obama-era Environmental Protection Agency, that basically established a kind of cap and trade system meant to reduce greenhouse gas emissions,” according to Michael Macagnone, policy reporter at CQ and Roll Call, at a recent FiscalNote event.
The ruling limited the EPA’s authority to rein in those emissions, saying the agency did not have sweeping power to regulate carbon pollution from utilities under the major questions doctrine. The major questions doctrine says that administrative agencies cannot regulate an issue with vast political or public policy significance, without very specific power granted by Congress. This is a major change in how the court interacts with the administrative state and the interpretation of laws that Congress has passed, Macagnone said.
This way of looking at administrative law has come up in several cases in the past few years, notably since the court reached a 6-3 conservative majority — for example, the CDC eviction moratorium case and the OSHA vaccine mandate case. But West Virginia v. EPA is “the first time that the conservative majority really got to stretch its legs in laying out this vision for a more limited administrative state,” Macagnone added.
Experts don’t yet know what laws might trigger the major question doctrine and which administrative agencies will be called into question, which “effectively puts the court in the position of putting their judgment about what should be regulated ahead of the expert regulators,” according to Macagnone. Administrative law experts say this decision will put the Supreme Court in the driver’s seat for many administrative law decisions to come.
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DOBBS V. JACKSON WOMEN’S HEALTH ORGANIZATION
Perhaps the most controversial and widely-discussed Supreme Court decision this term was Dobbs v. Jackson Women’s Health Organization, which held that there is no constitutional right to an abortion, effectively overturning the court’s 1973 Roe v. Wade decision.
Experts said the court took a “very originalist line of thinking to look at the history and tradition of regulation of abortion” in reaching this decision, Macagnone said. The court looked at the 14th Amendment and said if a right was not explicitly laid out in it, the amendment would not cover that right. “It’s a special sort of category of case, because it has to deal with potential life and it has to deal with the ending of potential life,” Macagnone said, paraphrasing Justice Samuel Alito.
Macagnone says the legal experts he has spoken to say this is a marked change in how the Supreme Court has approached substantive due process law in the past. The historical analysis the court used was also a change from the past, and was a “very limited analysis of the text of the Constitution,” he added. “That’s emblematic of the court’s approach to constitutional law this term, that they adopted a very limited view of unenumerated rights and a very limited view of the government’s ability to regulate enumerated rights, based on a historical analysis of the Constitution.”
In the weeks since this decision, there has been an explosion of cases and legislation surrounding abortion across the U.S., with active litigation in more than half a dozen states over trigger laws or preexisting bans that restrict abortion. This is quickly becoming a campaign issue across the country heading into the midterm elections, as states grapple with existing laws and potential limits on contraception and fertility treatments.
NEW YORK STATE RIFLE & PISTOL ASSOCIATION INC. V. BRUEN
Another major case decided by the Supreme Court this term was a victory for gun rights advocates who challenged New York’s concealed carry permitting law, which made it a crime to carry a concealed firearm without a license. New York also required administrative interviews and that a person prove the need to carry a concealed firearm. The Supreme Court found those restrictions unconstitutional in this ruling.
“This also was the opportunity that they took to state that there was a right to carry a firearm for self-defense outside of the home, which was the first time that they’ve done that,” Macagnone said.
Justice Clarence Thomas wrote the opinion for the case and used a method of looking at gun regulation that he said keeps with the history and tradition of the country, “accepting only those gun restrictions that had a longstanding history, going back to the colonial era,” Macagnone explained.
This ruling has many potential implications for future gun regulations. One issue that could arise is whether there are particular places that can actively prohibit carrying firearms, such as churches or public transportation. The court discussed this in its oral argument but didn’t reach a decision this term. Another future issue to watch in gun regulation regards the acceptable limits of the state’s regulation of the right to bear arms.
2022-2023 Supreme Court Term: Top Issues to Watch
The next Supreme Court term begins on October 3, 2022. One big case to watch is on the Voting Rights Act, Macagnone predicts. This case argues that the Voting Rights Act mandates that Alabama draw an additional Black opportunity district in the state. “Alabama argued that the VRA does not mandate anything of that sort and to draw a map that way would actually be racial discrimination,” Macagnone explains.
Another prominent case this term will deal with independent state legislature theory. The case, Moore v. Harper, centers on newly drawn maps of voting districts for North Carolina’s seats in the U.S. House of Representatives. The argument states that North Carolina’s Congressional maps were unfairly gerrymandered in favor of Republicans.
There is also a big case coming up on religious free speech regarding the limit of what someone can be required to do in opposition to their religious views, coming out of Colorado.
There’s no question this was a contentious term for the Supreme Court, with a leak in the abortion case earlier in the year, threats made against justices, and protests at their homes. There have been calls to expand the Supreme Court and add more justices, or to impose term limits, though these calls are only coming from Democrats currently. “There’s all this pressure on Democrats or others to make a change,” Ruger said.
Whether these demands for change will come to fruition remains to be seen, but doesn’t seem likely at present. “Right now Republicans are fine with the way things are going and they broadly see the Democrats as sore losers,” Macagnone said.
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