Friday, July 30, 2021
Was there a better term than the one begun in October 2020 during the last 50 years? Surely it was not 50 years ago, when the court muddled religion jurisprudence for generations with its decision in Lemon v. Kurtzman, particularly evident in attempts to apply the Lemon test in 1982, 1985, 1987, 1989, 1992, 2000, and 2005. Or 49 years ago, when the court in Furman v. Georgia effectively ended the death penalty by holding existing laws unconstitutional. Although the court lifted its virtual moratorium in Gregg v. Georgia (1976), decades of Eighth Amendment decisions followed based more on justices’ personal views of criminal punishment during given snapshots of time than on the law.
Then, of course, there were also terms in which the court upheld the charging of fees by unions to government employees who did not wish to join (Abood v. Detroit Board of Education, 1977); set standards that undermined the separation of powers with excessive deference to unelected bureaucracies (Chevron v. Natural Resources Defense Council, 1984, and Auer v. Robbins, 1997) and insufficiently accountable officers like the independent counsel (Morrison v. Olson, 1988); allowed the government to take private property from one private owner to give to another in exercising eminent domain (Kelo v. City of New London, 2005); overrode Congress’ legitimate process to handle challenges to the capture of enemy combatants on overseas battlefields (Boumediene v. Bush, 2008); struck down the Defense of Marriage Act (United States v. Windsor, 2013); and invented by judicial fiat a constitutional right to same-sex marriage (Obergefell v. Hodges, 2015).
These examples only scratch the surface. But they prompt a question to those who declare conservative judicial defeat: When did the Supreme Court last have a better term than the one just concluded?