SCOTUS Overturns Activist Decisions From the 1970s

Jul 12, 2023

In the last 14 months, the U.S. Supreme Court has in a historic fashion overturned four landmark decisions from the 1970s. The activist Burger Court of the 1970s left an unconstitutional legacy. It penned major decisions regarding the First Amendment Establishment Clause, abortion, narrowing employee protections under Title VII involving religious discrimination, and imposing affirmative action for admission to colleges and universities.   

The current majority of Justices on the High Court today subscribe to originalism, a legal philosophy that Justice Amy Coney Barrett defines as where the “constitutional text means what it did at the time it was ratified and that this original public meaning is authoritative.” Originalism maintains judges are bound by the words of the Constitution as well as their meaning at the time when they were added to the Constitution. 

The Burger Court, however, clearly took a judicial activist approach with four of its precedential rulings reading into the text and carving out judge-made rules that had consequential results.

Lemon v. Kurtzman (1971)

In Lemon v. Kurtzman, the Court ruled 8-0 that Pennsylvania and 8-1 that Rhode Island violated the Establishment Clause by making state financial aid available to supplement the salaries of parochial schoolteachers in religious schools. The Establishment Clause forbids the government from establishing an official religion and prohibits government actions favoring one religion over another. In this case, the Justices devised a three-part test for evaluating whether government actions might violate the Establishment Clause, which became known as the “Lemon Test.” The “Lemon Test” has been binding authority for 51 years and has been cited thousands of times in court opinions and administrative law decisions. As a result, Lemon has been used by courts since 1971 to remove religious symbols and displays from the public square, such as the Ten Commandments, Crosses, and Nativity scenes. The “Lemon Test” was also used to distort the Free Exercise Clause and the Free Speech Clause. The late Justice Antonin Scalia described the test as a “ghoul in a late-night horror movie” used to influence officials and attorneys into censoring religious expression. 

On May 2, 2022, the Court rejected the use of the “Lemon Test” in Shurtleff v. City of Boston (2022) and ultimately buried it in Kennedy v. Bremerton School District (2022), decided on June 27, 2022. The Court unanimously ruled 9-0 that the City of Boston violated the First Amendment Free Speech Clause by censoring a private flag in a public forum open to “all applicants” merely because the application referred to it as a “Christian flag.” The High Court stated that the government relied upon the “Lemon Test” when it censored the flag because it was referred to as a Christian flag on the application, and such censorship was viewpoint discrimination. 

The Shurtleff case then set up the Kennedy decision. Like Boston, the Bremerton School District also relied on the “Lemon Test” to argue it must censor the silent prayer of Coach Joseph Kennedy who wanted to pray along the sidelines after games. SCOTUS reversed course from its 1971 precedent and buried the court-made “Lemon Test.” Justice Gorsuch wrote, “Issued during a ‘bygone era’ when this Court took a more freewheeling approach to interpreting legal texts… [the “Lemon Test] sought to devise a one-size-fits-all test for resolving Establishment Clause disputes. That project bypassed any inquiry into the Clause’s original meaning. It ignored longstanding precedents. And instead of bringing clarity to the area, Lemon produced only chaos. In time, this Court came to recognize these problems, abandoned Lemon, and returned to a more humble jurisprudence centered on the Constitution’s original meaning.” The Court further instructed that the “Establishment Clause must be interpreted by ‘reference to historical practices and understandings.’” 

Roe v. Wade (1973)

In this 7-2 decision, SCOTUS struck down a Texas abortion law finding a so-called “right” to abortion, even though the Court could point to no specific provision to justify its ruling. On June 24, 2022, the Court overturned Roe, as well as the 1992 Planned Parenthood v. Casey decision that upheld it. The High Court in Dobbs v. Jackson Women’s Health Organization ruled 5-4 there was no right to an abortion in the Constitution. Justice Alito authored the majority opinion in which he wrote, “Roe was egregiously wrong from the start…It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives…The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision...” 

In his concurring opinion, Justice Thomas stated, “Indeed, ‘[t]he notion that a constitutional provision that guarantees only process before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words…. The resolution of this case is thus straightforward. Because the Due Process Clause does not secure any substantive rights, it does not secure a right to abortion.” 

According to the National Right to Life Committee, more than 63,000,000 babies have been aborted since the 1973 ruling. States anticipating the overturing of Roe enacted trigger laws banning abortion that took effect shortly after the Dobbs decision. According to Susan B. Anthony Pro-life America, an estimated 60,000 lives have been saved in the last year as a result of these laws. 

Trans World Airlines Inc. v. Hardison (1977)

The Court ruled 7-2 in favor of Trans World Airlines in that they could fire an employee for not working on their sabbath, and that such employee was not entitled to equal employment opportunity protection under Title VII. Title VII affords protection against discrimination based on religion. Essentially, employers must make “reasonable” accommodations for religious employees unless the accommodation presents an “undue hardship” on the employer. The Court interpreted “undue hardship” to mean an employer suffers hardship when “more than a de minimis cost” is incurred when accommodating an employee’s religious exercise. This ruling distorted the meaning of Title VII and weakened protections for employees regarding religious discrimination in the workplace. 

On June 29, 2023 the High Court unanimously struck down the “de minimus standard” in Groff v. Dejoy. The Court ruled in favor of a former postal carrier who was forced to quit his job at the U.S. Postal Service for not working on his “sabbath” day. The Justices unanimously scrapped the “de minimis standard” as an improper understanding of “undue hardship” in Title VII. 

Justice Alito wrote the opinion stating that the “de minimus standard” clearly imposed unique and unlawful burdens on religious discrimination claimants. Justice Alito wrote, “We hold that showing ‘more than a de minimis cost,’ as that phrase is used in common parlance, does not suffice to establish ‘undue hardship’ under Title VII. Hardison cannot be reduced to that one phrase.” The Court then stated, “an employer must show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.” The ruling puts a greater burden on employers to show a hardship prior to denying religious accommodations which will help employees from having to choose between their faith or their job. 

Regents of the University of California v. Bakke (1978)

Affirmative action reached the Court in 1978 where the Court evaluated whether giving preferential treatment for minorities in admissions to colleges and universities violated the Constitution. Ultimately, the Justices reached a 5-4 decision upholding affirmative action allowing race to factor into college admission policies, but many of the Justices’ opinions in the case were mixed. Six different Justices wrote opinions where they both concurred and dissented on different facets of the case. 

On June 29, 2023, the Court voted 6-3 in Students for Fair Admissions, Inc. v. University of North Carolina (2023) that racially discriminatory processes in college admissions violate the Equal Protection Clause of the 14th Amendment and Title VI of the Civil Rights Act of 1964. The ruling states, “In the years that followed our ‘fractured decision in Bakke,’ lower courts ‘struggled to discern whether Justice Powell’s’ opinion constituted ‘binding precedent.’” The Court stated that Bakke and other affirmative action cases temporarily but willingly dispensed “with the Constitution’s unambiguous guarantee of equal protection.” The ruling determined, “Many universities…have concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin. Our constitutional history does not tolerate that choice.” 

Liberty Counsel’s Founder and Chairman Mat Staver said, “The U.S. Supreme Court has begun to retether itself to the U.S. Constitution. These decisions overturn decades of bad precedent and reflect a return to interpreting the U.S. Constitution to mean what it says. The last two terms of the Supreme Court have strengthened religious liberty, the sanctity of life, and equal protection under the law. The original and historical protections under Title VII, Free Speech, and the Free Exercise and Establishment Clauses are returning to the American people.” 

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