So what’s next for the Supreme Court after this term saw dramatic pro-business and anti-regulation effects?
- A particular brand of judging is ascendant. The conservative majority, as shown this term, is devoted to a strict originalist reading of the law and a history-based approach to interpreting it. They focus on the meaning of constitutional and statutory provisions as they were understood at the time they were enacted, read text literally and narrowly and take a dim view of rights that do not appear expressly or were not well established in prior eras. And they do not hesitate to apply this philosophy even where it topples what have been well-established expectations about the law.
- Additional legal rights and precedents could be revisited… Justice Clarence Thomas previewed a desire to revisit court precedents that confirmed constitutional protection for contraception, same-sex marriage and private, consensual sexual acts. Many observers predict future court action on these and other divisive issues like affirmative action, voting rights, free speech, privacy, religious exercise, environmental protection and gender identity, including where the law was considered settled.
- …But not immediately. Companies should begin thinking about the cases to come, though Supreme Court cases typically do not arise overnight. Legislatures and officials will need to act to invite legal challenges, which must percolate through lower courts before the Supreme Court accepts a case for review—itself kicking off a decision process that could take up to a year. Justice Thomas also has a lengthy history of identifying long-standing precedents he would like to review. The other conservatives disclaimed Dobbs was about anything other than abortion. Time will tell which rights and precedents remain undisturbed and where Justice Thomas finally has his majority.