Supreme Court s Conservatives Are Consistent Constitutionalists | National Review
For many years, the Court was less constitutionalist in a number of areas: It was less protective of political speech and Second Amendment rights, yet more inclined toward the freewheeling invention of new constitutional rights not found in constitutional text or history. It was less protective of the separation of powers, but note the progress that has been made between Morrison v. Olson (1988), when Justice Antonin Scalia was the lone dissenter in a decision upholding the independent counsel statute, and the recognition of the president s removal power over principal officers in Seila Law LLC v. Consumer Financial Protection Bureau last year and Collins v. Yellen yesterday. Yesterday also marked the 16th anniversary of the Court s notorious takings decision in Kelo v. City of New London, which the Court appropriately marked with a decision in Cedar Point Nursery v. Hassid that helped bring back the Takings Clause in the face of California s outrageous authorization of union organizers to physically occupy growers property.
And of course, as I have previously noted, there has been a transformation in the law on the religion clauses of the First Amendment, including a winning streak on religious liberty punctuated this term by the Court s decisions regarding Covid restrictions in Roman Catholic Diocese of Brooklyn v. Cuomo and foster care in Fulton v. City of Philadelphia. In the latter case, five justices expressed their disagreement with another regrettable precedent of decades past Employment Division v. Smith (1990), which undermined the Free Exercise Clause in a decision by Justice Scalia joined by the conservative bloc of that time. The justices disagreed only on whether the case presented the opportunity to overrule Smith, but of the sea change since 1990 there should be no doubt.