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US Supreme Court 2021-22 Term Invites More Lobbying

The 2021-22 US Supreme Court term will result in more citizen participation in setting public policy and thereby more work for lobbyists – federal, state, local, legislative and executive. Four rulings illustrate the court’s constitutional redirection vis-à-vis promoting lobbying[2]:

  • Constitutional lineage[3],[4] shall prevail over judicial vogue.[5]
  • Longevity of judicial vogue hallows not constitutionally bad Supreme Court law.[6]
  • Executive rulemaking substantially burdening the people is unconstitutional absent clearly delegated legislative authority.[7]
  • Constitutional rights may not be rank ordered according to the Government’s view of relative Constitutional importance.[8]

No longer muted by now-unconstitutional law,[9] expect citizen involvement to intensify, lawmaker accountability to increase, legislatures must invest more in legislative process and in details of bill drafting, and less legislative punting of politically difficult decisions to executive branch agencies.

Dobbs v. Jackson Women’s Health Clinic Organization sends lawmaking back to the people and their elected representatives and signals the lobbying future. While this quote is specific to Dobbs, as to the court’s thinking it may be representative:

“Our decision returns the issue of abortion to those legislative bodies, and it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office.”[10]

Reread Marbury v. Madison (1803) in which the court says, “Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument.” Lawmakers and judges, per Marbury, must submit to the supreme secular law as established by the people and embodied in their constitution; a constitution designed to protect them from the federal government. This approach to constitutional interpretation and application ensures that We the people’s rights are scrupulously protected and their influence and opportunities for participation expanded.

Lots more lawmaking and lobbying in the future. Originalism isn’t really as much original as it’s interpreting the law as written by the people. It’s an exciting time to be a lawyer, lobbyist, and one who teaches and writes about lobbying.

FOOTNOTES:

[1] Robert L. Guyer writes and teaches state lobbying, legislative and administrative. He is a graduate of the University of Florida Levin College of Law and is admitted to the practice of law in Florida and the District of Columbia. He has lobbied domestically and internationally, authored seven practice manuals, a 15-video series, and lectures on lobbying. He is not a constitutional lawyer. He is a lobbyist.

[2] Theories of constitutional interpretation, who and what kind of originalists are on the court, and if and how principles announced in recent decisions will lead to reversals of previous rulings flowing from now constitutionally discredited cases are beyond the scope of this blog. However, critics well caution that “originalist” Supreme Court thinking may lead to reexamining decisions at least going back to Engel vVitale, 370 U.S. 421 (1962).

[3] In Congressional confirmation testimony Supreme Court nominee Amy Coney Barrett said,  “… I interpret the Constitution as a law,’ she said, ‘ and that I interpret its text as text, and I understand it to have the meaning that it had at the time people ratified it. So that meaning doesn’t change over time and it’s not up to me to update it or infuse my own policy views into it.” “Barrett, An Originalist, Says Meaning Of Constitution ‘Doesn’t Change Over Time’”,  NPR (October 13, 2020)

[4] As to the court going “originalist” author, attorney, and president of Liberty First Society KrisAnne Hall, comments, “Well, first I am not convinced they are an ‘originalist’ Supreme Court. What I do see is a limited return to the understanding that the States have some reserved powers. It’s like a few of them woke up and said, ‘hey wait, hey guys there are States out there! I forgot!’” LinkedIn comment upon my question about whether the current court is “originalist.”

[5] In Dobbs v. Jackson Women’s Health Clinic Organization the court wrote, “Like the infamous decision in Plessy v. Ferguson, Roe was also egregiously wrong and on a collision course with the Constitution from the day it was decided. Casey perpetuated its errors, calling both sides of the national controversy to resolve their debate, but in doing so, Casey necessarily declared a winning side.” Pp. 43–45

[6] In Kennedy v. Bremerton School District the court held, “The Free Exercise and Free Speech Clauses of the First Amendment protect an individual engaging in a personal religious observance from government reprisal; the Constitution neither mandates nor permits the government to suppress such religious expression.”  Pp. 11–32.  To avoid the risk of constitutional liability under the Establishment Clause for his [i.e., district employee’s] religious conduct, the school board fired its football coach.

[7] In West Virginia v. EPA the Court found that the USEPA had arrogated to itself authority not delegated to it by Congress. While agency rulemaking often deals with questions only on which PhDs can opine, the court noted, “But the only question before the Court is narrower: whether the ‘best system of emission reduction’ identified by EPA in the Clean Power Plan was within the authority granted to the Agency in Section 111(d) of the Clean Air Act.  For the reasons given, the answer is no.”  Pp. 28–31

[8] In  New York State Rifle & Pistol Association, Inc., Et Al. v. Bruen the court ruled that state laws cannot infringe on civil rights provided by the US Constitution. “The constitutional right to bear arms in public for self-defense is not ‘a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.’  McDonald, 561 U. S., at 780 (plurality opinion). The exercise of other constitutional rights does not require individuals to demonstrate to government officers some special need. The Second Amendment right to carry arms in public for self-defense is no different.  New York’s proper-cause requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms in public.”  Pp. 62–63

[9] “Those on the losing side—those who sought to advance the State’s interest in fetal life—could no longer seek to persuade their elected representatives to adopt policies consistent with their views. The Court short-circuited the democratic process by closing it to the large number of Americans who disagreed with Roe.” Pp. 43–45

[10] Dobbs, at 65

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