The week of June 19, 2022 was a bad week for our federal republic, capped off by the two worst Supreme Court decisions in my lifetime. Earlier in the week there was one other bad decision. All three were deceptive in approach, and all were based on a deficient understanding of constitutional law and history.
The decisions also seemed to be motivated by the partisan politics of the six justices in the majority, three of whom were anxious to show their true allegiance after giving misleading testimony in confirmation hearings.
One justice seemed oblivious to the fact that his wife and former law clerk were implicated in a plot to stage a presidential coup d’état (after he had failed to recuse himself in a case against one of the alleged plotters.) In all, the justices cast aside precedent, conflict of interest and all other principles of judicial restraint in a scheme to align the law with their political and religious preferences.
It was no accident. The three decisions were the culmination of decades-long efforts by the unholy trinity of the National Rifle Association (NRA), the Federalist Society, the Republican Party and their dark money sponsors, all designed to impose the derelict views of a cultish minority on a free society. All six justices had substantial involvement with one or more of these organizations.
Those views and their proponents are frequently described as conservative, but there’s nothing conservative about them. The NRA has created a cult of the high-powered gun that seemingly demands (and gets) frequent human sacrifices. The Federalist Society embraces libertarianism, the gun cult and other anarchic and reactionary views. The Republican Party promotes the ideas and goals of both organizations, along with theocratic ideas about the place of religion in public life, while abandoning concepts like comity, the peaceful transfer of power and the separation of church and state.
The first decision, in Carson v. Mackin, delivered a win to religious schools, and continued the six justices’ promotion of religion in public life. This assault on the Establishment Clause, and the steady erosion of the separation of church and state, is based on religious preferences of the justices, not precedent. The most absurd example of this was a case a few years ago, wherein the Court granted a corporation (a legal fiction not found in the Constitution) a religious liberty interest sufficient to block its female employees’ insurance coverage for contraception.
The second decision is New York State Rifle & Pistol Association v. Bruen. Its holding is based on a series of lies promoted by the NRA, and adopted by the Federalist Society and today’s Republican Party. The central and most serious lie concerns the interpretation of the Second Amendment. It reads in its entirety as follows:
“A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.”
The amendment was a public safety measure. The young republic was situated on a long, relatively narrow coastal strip, sparsely populated, with open seas (and potential enemies) to the east and a vast wilderness to the west. It had no standing army and little protection other than the state militias.
In the 20th century, the U.S. became a military superpower. Additionally, it developed a variety of federal, state and local law enforcement forces. The state militias became the National Guard, a very well-regulated force. The reason for the Second Amendment having disappeared, its second phrase became dormant and was never interpreted as conveying an individual right to own or carry a gun until 2008. In that year, a Republican-dominated Supreme Court adopted that interpretation, a result which the NRA had sought for decades. A former chief justice of the Supreme Court, Warren Burger, called that NRA campaign “the greatest fraud ever perpetrated on the American public.”
In Bruen, Judge Thomas and the other five justices accepted that fraud hook, line and sinker, and greatly expanded the ”liberty interest” newly found in 2008. While striking down a 109-year-old gun safety law that restricted the carrying of a gun in public spaces, the majority mandated that a state or locality has the burden of justifying gun safety laws, and that any such efforts will have to withstand a high level of constitutional scrutiny. Furthermore, Justice Thomas suggested that any bans on carrying a gun, except in small strictly designated areas, would be inherently suspect.
This is a major win for the NRA and the Republican Party. Since the 1990s, they have relentlessly sought to make gun safety laws ineffective, and the Supreme Court has now weaponized the Constitution to strike at the police power of the small number of states that do have more effective gun safety laws.
No nation can long survive unless it has a monopoly or near monopoly on the use of force. The Supreme Court majority in the decisions last week recognized there are stark cultural, religious and political divides in the U.S. population. What level of imbecility does it take to suggest as a solution that we just arm everybody (who wants one) with a high-powered gun? But that’s the direction the six justices took days after the funeral of the last victim of the Uvalde gun massacre. Those victims, most of them 9 and 10 years old, had to have their remains identified by DNA because their small heads were pulped beyond recognition by the high velocity bullets of a military-style weapon.
In a concurring opinion, Justice Alito wrote that the dissent’s thorough description of the increasing gun carnage on American streets (which occurs in no other advanced country) served no legitimate purpose in a constitutional review of a gun safety law. Alito’s comment only proves his complete unfitness to serve as a judge on gun safety cases.
Perhaps, I am not the best person to comment on the last case of the week, the overruling of Roe v. Wade and Planned Parenthood v. Casey, not having had any involvement in my legal career with the issues raised in those cases and their progeny.
However, I did attend parochial school for 12 years and I think I can relate the Church’s position on abortion, as can the six judges in the Dobbs v. Jackson majority, all of whom are Catholic and/or attended parochial school. It is my considered opinion that their decision in that case owes more to their religious beliefs (and their allegiance to the “unholy trinity” described above) than to constitutional jurisprudence.
The church condemns abortion as a mortal sin akin to murder because God imbues the fertilized egg at the moment of conception with an immortal soul. The Church’s prohibition of abortion makes no provision for rape, incest, fetal abnormality or the life and health of the mother. (In fact, its doctrine holds that if it’s a choice between the life of the fetus or the life of the mother, one has to choose the fetus).
Given that one of two pregnancies in the U.S. is unplanned, a pragmatist might suggest a campaign of comprehensive sex education and the encouragement of contraceptive use. The Church, however, is skittish about the former and, as to the latter, forbids all “artificial” contraception including “morning after” pills, as well as in vitro fertilization.
Most Catholics, like most other Americans, when faced with an actual problem of this nature, tend to observe these prohibitions in the breach; but many right-wing Catholics, right-wing evangelicals and other religious zealots profess strong public allegiance to them.
Together the three religious factions have an outsize influence in the Republican Party, and the legislatures in half the states. Consequently, when the draft opinion on this case was leaked, and the public learned that the Supreme Court intended to return the issue of abortion to the states, there was a scramble among half the states as to which one could implement the harshest antiabortion laws and regulations.
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The six justices seemingly approved the Mississippi law which would have forced a woman to bear the child of her rapist, if she missed the 15-week deadline. Apparently that raised no Constitutional issue with them. That’s not a decision one would expect in a republic committed to ordered liberty. It’s more like “Sharia law: the Roman Catholic version.”
What strikes you first about Alito’s opinion is its unmitigated arrogance and its sly but pervasive dishonesty.
“Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have inflamed debate and deepened division.”
Everything in this statement is false, Alito failed to understand Roe and Casey. Those cases were promulgated by distinguished judges, who had been appointed by Republican presidents over a 40-year period. And those judges had a much better grasp of the issues than Alito does.
Those judges are not the ones responsible for inflamed debate and deepened division in this country. That dishonor belongs to the current Republican Party and its embrace of racism, sexism, gay bashing, immigrant bashing, theocracy, gun lunacy, conspiracy theories and whatever other “hot button” or “wedge” issue serves as an expedient way to gain political power; and to that end its open tolerance of lies, corruption and obstruction, all culminating in its cult around the most divisive president in the history of the country.
Alito examines the issues in Dobbs using the Federalist Society’s preferred method of Constitutional interpretation: originalism. It should be noted that the Trump Administration essentially delegated its duty of naming Federal judges (including its three Supreme Court appointments) to the Federalist Society.
Originalism is also the preferred method of interpretation for the other five judges in the majority, and was used in the other two major decisions. It’s a reactionary method that ignores the complex national experience of the 20th and 21st centuries, but as a Federalist Society representative recently boasted “Twenty five years ago, our ideas were on the fringe, now they are in the mainstream.”
As applied in the Dobbs case, originalism confines any rights claimed to be implicit in the broad language of the fourteenth amendment (and the incorporated Bill of Rights) to those understood to exist deep in the country’s history — especially around and before 1868, when that amendment was ratified. The legal rights of women around 1868 were both thought to be derived from their husband or father and constrained by theocratic notions. In other words, they were simply non-existent. It’s the era of the “rule of thumb,” which defined the maximum thickness of a stick a husband could use to beat his wife. Originalism is a bogus concept to begin with, and its use in the Dobbs case is heinous.
Roe, Casey and Dobbs, in three different eras, faced two questions. They are:
1) Does the Constitution recognize that girls and women have any liberty interest in, or agency over their own bodies, their own health and their own lives in the event of pregnancy?
2) If so, to what extent may a state, in the exercise of its police power, restrict their rights in order to protect fetal life?
Both Roe and Casey answered question one in the affirmative, and then struggled somewhat to provide guidance to the states on the second question, but did so in order to provide some uniformity on these serious issues. Dobbs, on the other hand, answered the first question in the negative, and left the issue of abortion completely to the states, many of which have subordinated (or will further subordinate) the rights of girls and women, if the states recognize any, to “the right to life” of the fetus.
Dobbs creates an untenable situation. Treatments which would constitute good medical practice in about half the states, might well constitute capital crimes for the girls, women and all medical providers involved, in the other states. To put it another way, the rights, privileges and immunities of a significant portion of the population now depend on which state they are in or are a resident of. Medicine is an interstate business, and states have already acted to give their abortion prohibitions and restrictions extraterritorial effect.
The U.S. under the Constitution is a federal republic, and does not allow the states to create such radical disparity in the rights, privileges and immunities of U.S. citizens. See the specific language in Article IV Sections 1 and 2 and Amendment XIV. The Dobbs case runs afoul of the “privileges and immunities’ clauses by eliminating a Constitutional right that the Court had recognized repeatedly for half a century, thereby allowing about half the states to continue its exercise under state law, and half to criminalize it. The Dobbs case is a judicial travesty that creates its own Constitutional violation.
In the space of two days, the Supreme Court majority has taken two state “police power” cases and turned the judicial concept upside down, deciding that “police power” must be strictly limited in dealing with the No. 1 public safety crisis, horrific gun violence, and unlimited when it concerns a woman’s agency over her own body.
While I was writing this, another decision came down, again using originalism, that undermines many of the administrative law precedents developed over the course of the 20th and 21st centuries.
These six justices are an out-of-control wrecking ball, substituting their own political and religious ideologies, many of them fringe or extreme beliefs. There’s an old nostrum that holds that sometimes it is better that the law be settled, than it be settled right. There’s a kernel of truth in that. Most people don’t want to be embroiled in the turbulence and uncertainty of ongoing litigation. The current Supreme Court majority, in contrast, seems to prefer that Constitutional law be both unsettled and wrong.
Alito in Dobbs wrote: “We do not pretend to know how our political system or society will respond to today’s decision … And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision.”
As a judge who sat in a community court for 20 years, I have to disagree.
Understanding the impact of your orders and rulings is an important aspect of the craft of administering justice. The doctor’s rule “First, do no harm” has some application. When judges, with enormous power over the people of our great nation, act in blind adherence to some ideology or arbitrary method of analysis, and do so with blatant disregard for the impact of their rulings, they present a clear and present danger to the Constitution, the federal republic, and the common welfare of its citizens.
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