Severino & Scaturro: Biden suffers Supreme Court smackdown

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Supreme Court rules on two hot-button issues

Fox News chief legal correspondent Shannon Bream breaks down the decisions on 'Special Report'

The Supreme Court term has been a good one for those who believe in the original meaning of the Constitution and the rule of law.

For all the jurisprudential victories of recent years, thinly veiled liberal activism would rear its head in major cases on a recurring basis—as recently as last year. But that did not happen this term, which was the first for Justice Amy Coney Barrett. Her confirmation last fall gave the Court a majority of justices who consider themselves originalists of one stripe or another. The others are Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh.

That bloc of five made the difference in the first major constitutional issue the Court decided. It granted Catholic churches and Jewish synagogues challenging New York’s COVID restrictions on worship under the Free Exercise Clause injunctive relief in Roman Catholic Diocese of Brooklyn v. Cuomo by a 5-4 vote.  

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Another free exercise victory came in Fulton v. City of Philadelphia, where a unanimous Court struck down Philadelphia’s refusal to contract with Catholic Social Services based upon its longstanding beliefs that prevented certification of same-sex couples as foster parents.

The case notably included the first time a majority of justices (in separate opinions) expressed their disagreement with Employment Division v. Smith, the 1990 precedent which sharply narrowed the Free Exercise Clause. Smith is likely to be overruled in a future case. For now, the more than decade-long record of wins for religious freedom and expression in opinions the Court’s opinions continues. 

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On the separation of powers front, Collins v. Yellen affirmed an important principle from its decision last year in Seila Law LLC v. Consumer Financial Protection Bureau that the Constitution allows the president to remove principal officers in the executive branch at will. There the limitation was on the president’s power to remove the Federal Housing Finance Agency (FHFA) director. While protecting the separation of powers, as the Court did in that case, can sound esoteric, doing otherwise would have meant giving unelected, unaccountable bureaucrats unfettered power that is destructive to our constitutional design. 

A major theme of the term was the Court’s rebuke of the Biden administration, which changed positions from the prior administration in several significant cases.  

This happened in Terry v. United States. In an embarrassing defeat for the Biden administration, the Court unanimously rejected the acting solicitor general’s change of position and held that a crack offender is eligible for a sentence reduction under the First Step Act only if convicted of a crack offense that triggered a mandatory minimum sentence. 

Another case in which the Biden administration changed positions and lost was Cedar Point Nursery v. Hassid, where the Court struck a blow for the fundamental liberty and property protections at the heart of the Constitution. The 6–3 majority, over the Court’s three Democratic appointees in dissent, invalidated as a violation of the Fifth Amendment’s Takings Clause a California regulation that granted union organizers a right to physically enter and occupy growers’ land a jaw-dropping three hours per day, 120 days per year. As Chief Justice Roberts wrote in the Court’s opinion, "The Founders recognized that the protection of private property is indispensable to the promotion of individual freedom." 

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The final two cases of the term—Brnovich v. Democratic National Committee and Americans for Prosperity Foundation v. Bonta—were the cherries on top of a winning term for conservatives and the rule of law.  

In Brnovich v. Democratic National Committee, Justice Alito wrote for a 6-3 Court that two of Arizona’s voter integrity measures—the "out-of-precinct policy" and the ban on ballot harvesting—are consistent with Section 2 of the Voting Rights Act.   

The Supreme Court term has been a good one for those who believe in the original meaning of the Constitution and the rule of law.

The case represented a smackdown of the notoriously out-of-step Ninth Circuit. The Supreme Court's majority described the Ninth Circuit’s use of statistics as "highly misleading" and "statistical manipulation" trying to show racial disparity where in 2016, "99% of Hispanic voters, 99% of African-American voters, and 99% of Native American voters…cast their ballots in the right precinct, while roughly 99.5% of non-minority voters did so." 

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The Court’s ruling in Americans for Prosperity Foundation represents a huge victory for anonymous speech and donor privacy, which have played an essential role in our nation’s history since the Founding. The decision was supported by hundreds of interest groups—across the political spectrum—who sought protection from abusive governments that would bully or intimidate them for their views. And yet again in both cases, the Biden administration switched positions—and lost.

With the support of the new Constitutionalist majority, our Founders' ideas fared better on the Court this year than they have in our lifetimes.

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Frank Scaturro is vice president and senior counsel of the Judicial Crisis Network.