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Your Guide to This Year’s Constitutional Cases From SCOTUS, Part II

Your Guide to This Year’s Constitutional Cases From SCOTUS, Part II

For an audio version read by the author, please click here.

This essay first appeared in the July 6, 2023 Epoch Times.

This two-part series thumbnails 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.

They show that the court, far from being controlled by a widely proclaimed “conservative majority,” is in fact highly fractured. Moreover, it’s ready and able to strike down state laws, but seems unwilling to challenge overreaching by Congress.

The first installment covered Tyler v. Hennepin County, 303 Creative v. Elenis, and Haaland v. Brackeen. This second installment examines the remaining seven.

Sackett v. Environmental Protection Agency

This case interpreted a statute—the Clean Water Act—but it also had major constitutional implications. The result is labeled a conservative victory because the justices unanimously cut back the EPA’s jurisdiction over wetlands. However, they divided 5–4 on how much to cut it back.

Justice Clarence Thomas wrote an opinion pointing out that the Constitution grants Congress power merely over “navigable waters” rather than wetlands per se. But only Justice Neil Gorsuch agreed with him. So the result is more accurately characterized as a “centrist” victory rather than a conservative or originalist one.

Health and Hospital Corp. of Marion County v. Talevski

In addition to its pretensions under the Constitution’s Commerce Clause, Congress claims unlimited spending power under the Taxation Clause (Article I, Section 8, Clause 1). Congress regulates even beyond the scope of its Commerce Clause power by granting money to states, local governments, and private institutions—and then imposing conditions on the grants.

In the Talevski case, a county-owned nursing home had accepted federal funds and the long list of conditions that go with it. The issue was whether federally imposed conditions are merely contract terms or enforceable as “laws.”

In a victory for the court’s liberals, a 7–2 majority said they are “laws.” Justice Thomas wrote alone to point out that the Taxation Clause actually doesn’t give Congress unlimited spending power. Moreover, even if it did grant unlimited spending power, treating the conditions as laws violates a long-standing rule that Congress can’t order state and local governments (including their nursing homes) to adopt laws.

United States v. Texas

This was an attempt by Texas and Louisiana to force President Joe Biden to carry out his constitutional duty (Article II, Section 3) to enforce federal immigration law. In an 8–1 liberal victory (the dissenter was Justice Samuel Alito), the court held that the states didn’t have standing to sue.

Counterman v. Colorado

A hallmark of the liberal Supreme Court majorities of the 20th century was their propensity to make up free speech law as they went along—essentially judicial legislation. They almost never consulted history to learn what the First Amendment meant when it was adopted.

Counterman v. Colorado continues the pattern. “True threats” aren’t protected as free speech, and the issue in the dispute was the definition of “true threat.” Justice Elena Kagan’s opinion for the majority reached a reasonable result. But the opinion did so by guesswork and by applying a limited number of case precedents. It devoted little attention to what the First Amendment really means by “free speech.”

Another liberal victory. Only Justices Thomas and Amy Coney Barrett dissented.

Moore v. Harper

The Constitution grants state legislatures power to draw the lines for congressional districts (Article I, Section 4, Clause 1). The issue in Moore v. Harper was this: When this section of the Constitution refers to a state legislature, does it mean the legislative assembly acting alone (as in the constitutional amendment process) or the state’s entire legislative apparatus—including review by the state courts?

A 6–3 majority decided that “state legislature” means the state’s entire legislative apparatus.

This is generally considered a liberal victory. Chief Justice Roberts, who dissented on the conservative side in a similar case eight years ago, flipped to the liberal side in this one—so the liberals won back-to-back victories.

Actually, the question was a close one. I tend to believe the court’s answer was correct. However, Roberts’s opinion for the court contains some overreaching language that may cause trouble in presidential election cases later. Specifically, he implies (contrary to precedent) that a state legislature’s decision on how to choose presidential electors (Article I, Section 1, Clause 2) is subject to state court review.

I think this is rather clearly wrong, and it could cause delay, confusion, and injustice in resolving future contested presidential elections.

The Two ‘Affirmative Action’ Cases

These were (1) Students for Fair Admissions v. Harvard University and (2) Students for Fair Admission v. University of North Carolina. The same plaintiff brought the first lawsuit against a private institution (Harvard) and the second against a state institution, the University of North Carolina.

Both suits challenged widespread university admissions practices. Specifically, many colleges and universities discriminate against East Asian applicants and Caucasian applicants—especially Caucasians who aren’t from elite families. They correspondingly favor certain other demographic groups, notably African-Americans, Hispanics, and American Indians.

The universities claimed their discrimination was necessary to obtain “educational benefits from diversity.” But as I detailed in a previous Epoch Times essay, this claim is demonstrably false. A 6–3 majority of the court agreed, and ruled against the universities. Discrimination based on race and ethnicity is illegal.

It’s also my view—and here Chief Justice Roberts’s opinion seemed to implicitly agree—that a driving force behind the discrimination was political. The favored groups are all key constituencies of the National Democratic Party. The disfavored groups include non-elite whites who tend to be more conservative.

The ruling against the University of North Carolina was that its practices violated the Equal Protection Clause of the 14th Amendment. In my view, this result was correct.

As Justice Gorsuch suggested, the ruling against Harvard should have been under the Civil Rights Act of 1964. But for reasons Roberts really didn’t explain, the justices based their judgment against Harvard on the Equal Protection Clause as well.

Since the Equal Protection Clause applies only to state institutions and Harvard is private, this appears to be an error. But it is probably what lawyers call “harmless error.”


SCOTUS decisions this term confirm a pattern set earlier: This is no longer the liberal activist bench it was throughout much of the 20th century. It is, rather, a fractured bench, with results that can go in any direction.

Except one: This court, unlike the one led by Chief Justice William Rehnquist from 1986 to 2005, is unwilling to challenge overreaching by Congress.

Rob Natelson