MORNING GLORY: The Supreme Court officially closes the books on another term
Teaching Constitutional Law is a joy, not a job — except for the 11th Amendment and the "Dormant Commerce Clause" cases and materials. The law school classroom is also a great vantage point from which to recognize that American constitutional law moves at a very gradual pace — and that this pace is a very good thing for the enduring "rule of law" that Americans enjoy.
Every semester since 1996, my students hear that Con Law ought to be their most interesting class of their three years of law school. Every law student is different, of course, and the "Uniform Commercial Cod might float some boats and "Trusts and Estates" can be pretty shocking —people do in fact "throw grandma from the train"— but Con Law impacts every citizen’s life and thus law students ought to care about it as citizens if not as lawyers. In fact, only a relatively small percentage of lawyers will run into issues that relate to the Constitution in the course of their careers. Fewer still will "practice" in the field and only a handful will argue a case involving the country’s highest law before even its lowest courts, much less before the United States Supreme Court.
Still, there are many reasons why, come every June or at latest early July, most of the nation’s news media focuses on the decisions flowing out of One First Street, N.E., Washington, D.C. As a republic of laws, the nation’s highest court makes decisions impacting every American as we are equal before the law. The most difficult cases it accepts and decides matter to our 330 millions. The news media — legacy and "new" alike — love the storylines.
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"SCOTUSblog" has thus become an extremely useful gathering place for Court watchers of all sorts, but especially for non-lawyers trying to make sense of the end-of-term rush of decisions. That goes double for laymen trying to figure out if the Court is shifting hard-right or hard-left on many issues or even some.
"By several measures, this term was more ideologically divided than the last one," Jake Truscott and Adam Feldman wrote for the SCOTUSblog platform on the first day of this month. "Last term, 15.2% of the court’s decisions were decided by a 6-3 vote, and 9% of all decisions were 6-3 ideological splits. This term, those figures rose significantly, to 28.8% and 22.7%, respectively."
So the Court has shifted "rightward" a bit, but of all of its cases resulting in opinions, only a little more than a fifth are decided along the divide of "originalists" v. "living Constitutionalists." (The "originalists" are Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Of those six, Roberts, Barrett and Kavanaugh are often grouped together as "moderates." The "liberal" justices are Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson.)
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The Court issued 67 majority opinions this term, though it actually makes hundreds of smaller decisions throughout the Court year that begins in October and ends (usually) as June closes.
"The justice-level data reinforces this picture of a court still organized around a conservative center, but not operating in a purely ideological pattern in every major case," Truscott and Feldman wrote. "Roberts and Kavanaugh were in the majority most often this term, each at 95%. Barrett followed at 92%."
"[Justice] Jackson remained the justice least often in the majority," they continued. "She was in the majority 67% of the time overall this term and 41% of the time in non-unanimous cases."
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So the justice widely regarded as the most ideological and the most left-wing was still in the majority in two out of three major cases. That should reassure the non-lawyer that there is no revolution by the robes underway. Because quite a few district court judges issue bolts-from-out-of-the-blue on a regular basis, there is a growing perception of a judiciary that is politicized and highly ideological. That is true of some lower courts. Our highest court, however, is an enormous force for stability in the country that just turned 250 years old.
Con Law students learn that the Court generally moves slowly and when it doesn’t — as with the radical Roe v. Wade decision of 1973 which declared unconstitutional every anti-abortion law in the land — it cannot expect the country as a whole to shrug and follow along. The Court will sometimes be a bit ahead of public opinion, but rarely, if ever, can it change the course of politics. When it tries, it opens and/or exacerbates rather than closes deep divisions among the citizenry.
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This year’s most controversial decisions are not actually anywhere near as divisive as Roe or the "Obamacare" decision (2012’s National Federation of Independent Business v. Sebelius) or Bush v. Gore which effectively decided that election by ending the (seemingly) endless recounting —correctly, by the way, as post-election "audit" after post-election "audit" showed. The most significant of this term’s cases may turn out to be National Republican Senatorial Committee v. Federal Election Commission, which held that the provisions of the Federal Election Campaign Act restricting the amount of money a party can spend in direct coordination with a candidate’s campaign were unconstitutional, thus breathing much-needed life into the two major political parties which need the lift.
The "birthright citizenship" case, Trump v. Barbara, drew lots of attention but very little genuine surprise among the population at large. Find me anyone outside of academia and a few think tanks who even knew there was a question about the citizenship of any baby born in America before the abandonment of border enforcement in the Biden years, and I'd be surprised if that person knew the underlying text, history and tradition of the arguments. Like most "big cases," the "importance" of the case will fade even as policy arguments about the actual issue of rational immigration policy continues.
Which is itself a triumph for the rule of law. Americans generally accept the Court’s rulings and move on. Contrary to the overheated and indeed absurd "Trump is a fascist" rhetoric, President Trump has always complied with every court decision, even those with which he deeply and loudly disagrees. Such is the authority of the Supreme Court. The Court gets the final say on the "cases and controversies" that divide the country. It has been that way since the Civil War, and we will all be blessed if it stays that way.
So push away the alarmists. Ignore the doomsayers. The Supreme Court has gone about its work successfully — again — and will be back at it in October (or earlier if need be.) The "republic of laws not men" carries on. Con Law is still the most interesting course in law school, but its textbooks change very little from year to year. And that is a very, very good thing.
Hugh Hewitt is a Fox News contributor and host of "The Hugh Hewitt Show" heard weekday afternoons from 3 PM to 6 PM ET on the Salem Radio Network, and simulcast on Salem News Channel. Hugh drives Americans home on the East Coast and to lunch on the West Coast on over 400 affiliates nationwide, and on all the streaming platforms where SNC can be seen. He is a frequent guest on the Fox News Channel’s news roundtable, hosted by Bret Baier weekdays at 6pm ET. A son of Ohio and a graduate of Harvard College and the University of Michigan Law School, Hewitt has been a Professor of Law at Chapman University’s Fowler School of Law since 1996 where he teaches Constitutional Law. Hewitt launched his eponymous radio show from Los Angeles in 1990. Hewitt has frequently appeared on every major national news television network, hosted television shows for PBS and MSNBC, written for every major American paper, has authored a dozen books and moderated a score of Republican candidate debates, most recently the November 2023 Republican presidential debate in Miami and four Republican presidential debates in the 2015-16 cycle. Hewitt focuses his radio show and his column on the Constitution, national security, American politics and the Cleveland Browns and Guardians. Hewitt has interviewed tens of thousands of guests from Democrats Hillary Clinton and John Kerry to Republican Presidents George W. Bush and Donald Trump over his 40 years in broadcasting. This column previews the lead story that will drive his radio/ TV show today.
