Opinion | Look at What John Roberts and His Supreme Court Have Wrought Over 18 Years

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It’s worth reviewing how the court accomplished each of the goals. It deployed a variety of tools and strategies. Precedents that stood in the way were either repudiated outright, as the Dobbs v. Jackson Women’s Health Organization decision did last year to Roe v. Wade and Planned Parenthood v. Casey, or were simply rendered irrelevant — abandoned, in the odd euphemism the court has taken to using. In its affirmative action decision declaring race-conscious university admissions to be unconstitutional, Chief Justice Roberts’s majority opinion did not overturn the 2003 Grutter decision explicitly. But Justice Thomas was certainly correct in his concurring opinion when he wrote that it was “clear that Grutter is, for all intents and purposes, overruled.”

Likewise, the court has not formally overruled its Chevron decision. Its administrative-law decisions have just stopped citing that 1984 precedent as authority. The justices have simply replaced Chevron’s rule of judicial deference with its polar opposite, a new rule that goes by the name of the major questions doctrine. Under this doctrine, the court will uphold an agency’s regulatory action on a major question only if Congress’s grant of authority to the agency on the particular issue was explicit. Deference, in other words, is now the exception, no longer the rule.

But how to tell a major question from an ordinary one? No surprise there: The court itself will decide. While the ratio of major questions to ordinary questions of administrative law remains to be seen, it’s hard to envision an issue important and contentious enough to make it to the Supreme Court not being regarded as major by justices who flaunt their skepticism of the administrative state.

Justice Neil Gorsuch was candid about this in a concurring opinion last year when the court limited the Environmental Protection Agency’s ability to regulate emissions from power plants. The major questions doctrine, he explained, “applies when an agency claims the power to resolve a matter of great ‘political significance.’” What is a better indicator of political significance than sustained conservative backlash? Last year’s environmental case set the stage for the court’s June 30 decision overturning the Biden administration’s student-loan forgiveness program.

The Heller decision in 2008 opened the Second Amendment door a crack, granting individuals the right to keep a handgun at home for self-defense. Chafing at Heller’s limited scope, Justice Thomas complained repeatedly over the next 14 years that the court was treating the Second Amendment as a “second-class right.” He finally won the day with the Bruen decision in 2022, a breathtakingly broad opinion rejecting any limitation on gun ownership that can’t be tied to an analogous limitation in the 18th century. On June 30, the court agreed to hear United States v. Rahimi, which will put this approach to the test. The question in the case is whether the Second Amendment allows the government to bar gun ownership by an individual under a restraining order for domestic violence. That the answer actually might be “no” — domestic violence wasn’t even a concept in the 18th century, when the Second Amendment was adopted — is too astonishing to contemplate.

And then there is religion and the case of the web designer who sought the right to refuse to design websites for same-sex couples celebrating a marriage. I was baffled when the court agreed to hear the designer’s appeal in February of last year, and not only because the designer, Lorie Smith, had not yet designed a wedding website for a paying customer and hadn’t turned anyone away — indications that the case wasn’t ripe for review.

Her lawyers at Alliance Defending Freedom, a hard-right Christian litigating group, asked the court to decide whether Colorado’s law prohibiting businesses from discriminating against L.G.B.T.Q. people violated either Ms. Smith’s right to freedom of religion or to free speech. The court agreed to hear only the speech question. I didn’t see how the two questions could be disentangled, given that Ms. Smith sought the right to post a statement on her web page explaining that it was for religious reasons that she was unable to create a website for a same-sex wedding. In other words, it was religion that inextricably fueled her free-speech claim.

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