In a 2006 episode of the TV show “Boston Legal,” conservative attorney Denny Crane humorously claimed a constitutional right to concealed carry firearms, suggesting that the Supreme Court might affirm this right once they overturn Roe v. Wade. This joke, unthinkable at the time, became a reality in 2022, when the Supreme Court made significant changes, leading to what some call a “constitutional revolution.”
Scholars define a constitutional revolution as a historic correction in constitutional interpretation or a profound shift in constitutional meaning. As Constitution Day is celebrated on September 17th, commemorating the signing of America’s foundational law in 1787, it is evident that a significant shift is occurring in recent Supreme Court rulings.
During the 2021-22 term, the Supreme Court issued groundbreaking decisions on abortion, gun rights, religious freedoms, and federal agency power. In summary, they removed recognition of the constitutional right to abortion, expanded gun and religious rights, and curtailed the regulatory authority of agencies like the Environmental Protection Agency (EPA).
In the 2022-2023 term, the Court continued to address religion and federal bureaucracy while adding race as a major point of contention by ending affirmative action in college admissions. These core rulings were decided by a 6-3 majority, with conservative justices forming the majority.
Here are three major cases from the recent term that contribute to this constitutional revolution:
Race: Students for Fair Admissions v. Harvard College: This case challenged the constitutionality of affirmative action programs at American universities. It differed from previous cases as it focused on Asians, who believed they were treated unfairly in Harvard’s admissions process. The Court ruled that public institutions cannot consider race, even if it’s intended to benefit historically oppressed minority groups. This decision effectively overturned a 2003 ruling that allowed racial preferences for diversity.
Religion: 303 Creative v. Elenis: This case examined whether First Amendment protections for religion and speech override anti-discrimination laws for LGBT citizens. The Court held that it is a violation of free speech to compel individuals to express messages contrary to their beliefs, even in a business context. This ruling extended the protection of religious liberty, following a trend seen in previous cases.
The Administrative State: Biden v. Nebraska: In this case, the Court struck down President Biden’s student loan forgiveness program, citing the “major questions doctrine.” This principle limits federal agency power, asserting that agencies cannot make major political decisions or policy changes without explicit authorization from Congress. The doctrine aims to ensure that only Congress, accountable to voters, wields significant authority, not unelected agencies.
These recent rulings represent a significant shift in constitutional interpretation, driven by a conservative majority on the Court. This “constitutional revolution” has redefined key aspects of law related to race, religion, and the administrative state, signifying a momentous change in the legal landscape.