by Varun Gauri and Ayesha Khan
Much has been written about the U.S. Supreme Court’s last term. The conservative majority is in a hurry to undo decades of jurisprudence. But what is the Court substituting in its place?
In its recent decision, West Virginia vs Environmental Protection Agency, the Court declared that the Clean Air Act of 1970 did not authorize the EPA to establish a carbon dioxide emissions trading system. And in Kennedy v. Bremerton School District, the Court held that a high school could not prohibit a football coach from taking a knee in prayer at midfield after games. In the former decision, the Court relied on the “major questions” doctrine; and in the latter decision, the Court relied on a “historical test.”
These may seem like disparate decisions, covering entirely unrelated circumstances. But what unites them is that, in both cases, the Court failed to tell us what its test means. The U.S. Congress, state legislatures, public school districts, police departments, and federal agencies are all subject to the U.S. Constitution. When the Court announces tests and doesn’t tell those institutions what those tests mean, not only has the Court failed to do its job, but the institutions are left to guess. Even worse, amorphous and ill-defined tests leave the Justices free to rely on their personal, religious, and political viewpoints in the decisions in question as well as in cases that come before them in the future. Read more »