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FOR SUBSCRIBERS | JULY 10, 2023

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The Supreme Court Returns to the Rule of Law

The Supreme Court’s recently concluded term represented the second year of a sharp change in course.

After the court pointedly refused to intervene in the irregularity-plagued 2020 election and refused to curb the worst pandemic-era restrictions on personal freedoms, former President Donald Trump’s conservative, pro-Constitution appointees—Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—have begun steering the court back toward what the founders had envisioned.

The court made momentous strides in restoring constitutional order, returning the regulation of abortion to the states, safeguarding the right to bear arms in public for self-defense, and limiting the government’s ideology-driven war on carbon dioxide emissions.

Its more recent decisions show that most justices are determined to continue this course. The court struck down racial discrimination in college admissions and declared President Joe Biden’s student loan forgiveness program unlawful. The justices also issued decisions upholding religious freedom and defending property rights from bureaucrats.

Larry Salzman of the Pacific Legal Foundation (PLF) told me he was delighted the court was “deeply engaged” in preventing “federal agencies from exercising authority or doing things that Congress didn’t authorize them to do.”

The death of affirmative action in universities was a long time coming. The incompatibility of putting the radical abstraction of diversity ahead of the Constitution’s command of equal protection had been evident to many for decades. However, it took the court some time to summon the will to do the right thing.

In 2003, Justice Sandra Day O’Connor had predicted that the race-focused policy would exhale its last breath by 2028. “We expect that 25 years from now, the use of racial preferences will no longer be necessary,” she wrote, adding that “all governmental use of race must have a logical end point.” In the end, the demise of the race-conscious policy came five years ahead of schedule.

In one of the two affirmative action cases, Chief Justice John Roberts wrote that for too long, 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.” A student “must be treated based on his or her experiences as an individual—not on the basis of race.”

“Many universities have for too long done just the opposite … Our constitutional history does not tolerate that choice.”

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Few legal experts were surprised when the court consigned Mr. Biden’s attempted erasure of student debt—which some believe helped Democrats minimize a predicted Republican wave in the November 2022 congressional elections—to the dustbin of history. Estimates of the cost ranged from $400 million to more than $1 trillion.

The court also ruled the government had no authority to use an education debt relief bill designed to help first responders and military families to grant student loan relief en masse, even at the tail end of a nationwide pandemic.

The court took on decades of growing environmentalist policy in Sackett v. EPA, finding that damp land that lacks a surface water connection to a navigable body of water couldn’t be declared off-limits to development by its owners.

In Tyler v. Hennepin County, the court unanimously struck a blow against “home equity theft,” which is when a government forces the sale of real estate over an unpaid tax debt and keeps sale proceeds that often far exceed the tax owed.

“The taxpayer must render unto Caesar what is Caesar’s, but no more,” Mr. Roberts wrote for the court.

The court ruled that a local government was not entitled to gain a windfall at the expense of dispossessed homeowner Geraldine Tyler, 94. The ruling came after PLF reported that 12 states and the District of Columbia allow local governments and private investors to seize dramatically more than what is owed from homeowners who fall behind on property tax payments.

And the Supreme Court continued to protect religious freedom.

In 303 Creative LLC v. Elenis, it ruled in favor of a Christian website designer who said that Colorado’s law forcing her to create websites to celebrate same-sex weddings infringed on her constitutional rights.

Colorado may not force “an individual to speak in ways that align with its views but defy her conscience about a matter of major significance,” Justice Neil Gorsuch wrote.

From a “conservative constitutionalist” perspective, this term bodes well for the future, attorney Curt Levey of the Committee for Justice told me. “This is a jurisprudentially conservative court that engages in textualism and certainly defers to precedent—unless it’s outrageous,” he said, adding he was pleased that the court did “push back against the administrative state.”

If you believe in America’s Constitution, that has to be a good thing.

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