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This essay first appeared in the July 5, 2023 Epoch Times.

This essay and the following one thumbnail the 10 most important constitutional cases in the Supreme Court’s “October 2022 term,” which ended on June 30. They relate the gist of each case and whether it was based on constitutional (“originalist”) grounds or on other factors.

The mass media (including sometimes this paper) often say SCOTUS has a “6–3 conservative majority.” For reasons I have detailed in previous Epoch Times essays here, here, and here, this statement isn’t accurate. And this year’s cases further confirm that it isn’t accurate. On the contrary, these cases, which otherwise have mixed results, still display the liberal judicial pattern of aggressively striking down state laws and regulations while refusing to keep Congress within constitutional limits.

To understand why this happens, you have to know how to count to five—the number necessary to form a majority on the nine-member bench. There are three liberal-activists: Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson. To reach a majority of five, they must persuade just two of their colleagues to vote with them.

On the other side is only one staunch originalist: Clarence Thomas. For him to prevail, he must persuade four of his colleagues to vote with him.

The five in the middle follow several different judicial philosophies. They all take into account the original meaning of the Constitution. But they also favor certain judicial notions spun by liberal majorities during the 20th century. These include the “incorporation doctrine” mentioned below and the notion that courts should stretch the law if necessary to defer to Congress, and acceptance of the cases by which liberal majorities substantially rewrote the Constitution.

One last introductory point: Some of this year’s important cases weren’t constitutional decisions. Instead, they interpreted specific laws. In this category were (1) Biden v. Nebraska, the student loan case (touted as a conservative victory), and (2) Allen v. Milligan, striking down a Republican apportionment plan for the Alabama legislature (proclaimed as a liberal victory).

The cases considered in these two installments either interpreted the Constitution or had major constitutional implications.

Tyler v. Hennepin County

On its face, this unanimous decision looks like a “conservative” victory: The court held that a property owner’s loss of $25,000 in a tax sale foreclosure violated the rule in the Constitution’s Fifth Amendment that government can’t seize property without compensation.

But closer examination shows the case isn’t entirely what it seems to be. First, Chief Justice John Roberts’s opinion applied a liberal 20th-century constitutional theory long criticized by many serious historians and constitutional scholars. This is the “incorporation doctrine.” The incorporation doctrine is that the adoption of the 14th Amendment in 1868 not only imposed certain explicit rules on the states, but also somehow imposed additional, unmentioned rules on them as well.

Second, the opinion makes it clear that the justices feel empowered to interfere more in state property law, a field the Constitution reserves to state rather than federal control.

Third, in a concurring opinion in Tyler, Justices Neil Gorsuch and Ketanji Brown Jackson pointed out that the $25,000 forfeiture could have been treated as an “excessive fine” in violation of the Eighth Amendment.

In fact, the forfeiture is more naturally classified as a fine than as a property taking. So why didn’t the court treat it as a fine?

I think part of the answer is that the state forfeiture in Tyler was birdfeed compared to the penalties federal agencies impose. For example, in Sackett v. Environmental Protection Agency, discussed in the next installment, Justice Samuel Alito noted that the EPA could fine a property owner $65,000 per day.

Classifying a one-time $25,000 penalty as an “excessive fine” would have invited long-overdue challenges to the brutal punishments imposed by federal agencies. The majority is cautious. Perhaps they didn’t want to encourage such challenges.

303 Creative v. Elenis

In 303 Creative v. Elenis the court also applied the incorporation doctrine to reach its result. Aside from that, however, it’s a clear victory for what the media call “conservatives”—by which they mean it’s a victory for the Constitution.

303 Creative is a Colorado web design company owned by Lorie Smith. State authorities wanted to force her to use her talents to design for same-sex weddings. However, as a Christian, she believes—in accordance with traditional Christian, Jewish, and Muslim views—that same-sex weddings contradict God’s law. The issue was whether the state could force her to violate those beliefs.

However, the court’s decision was not based on the First Amendment’s protections for religion, but on its protection for free speech. Justice Gorsuch’s majority opinion ruled that the state couldn’t force her to deliver a message of which she disapproved.

The vote, which should have been unanimous, was 6–3. One reason it wasn’t unanimous is because the parties and the court mischaracterized the case. Ms. Smith’s design work is not protected by the First Amendment’s guarantee of freedom of speech. It’s protected by the First Amendment’s guarantee of freedom of the press. You can see a more complete analysis of this point in my article for the Federalist Society Blog.

Haaland v. Brackeen

This was a huge liberal victory. As many readers know, the Constitution’s Commerce Clause (Article I, Section 8, Clause 3) has been stretched unmercifully. Originally an authorization to regulate trade and a few related activities, it has become a license for Congress to regulate the entire economy.

The ruling in Haaland v. Brackeen stretched the Commerce Clause even further.

Through Justice Amy Coney Barrett, a 7–2 majority held that Congress could employ its power to “regulate Commerce … with the Indian Tribes” to govern an activity that has nothing whatever to do with commerce—the placement of Indian children in adoptive and foster homes. Justice Barrett’s opinion, and the concurrence by Justice Gorsuch, are among the most confused issued in recent years. Indeed, the court, in an opinion by Justice Brett Kavanaugh, seemed to repudiate some of Haaland’s language just a few days later.

Supporters of the Constitution often express the hope that SCOTUS will trim Congress’s unlimited “Commerce Clause” pretensions. They have been disappointed again and again. Haaland is the latest disappointment.

Next installment: Seven more cases.