Tag Archives: Alito

Originalism And Corruption

At what point does an ideological lens morph into dishonesty and corruption? I don’t know the answer to that, but it is a pressing question raised by some highly dubious and arguably corrupt behaviors by two current Supreme Court Justices. 

In the case of Clarence Thomas, highly questionable behavior has been obvious–and criticized–for years. More recently, with the revelations about his wife Ginni and her deep involvement in Trump’s attempted coup, his refusal to recuse himself in cases that might well implicate her is nothing short of scandalous. Now, there are growing, serious concerns about the degree of dishonesty characterizing Samuel Alito’s jurisprudence and (if recent accusations are found to be accurate) improper behaviors.

The purported basis upon which these justices have based controversial opinions goes under the rubric of “originalism.”

So what, exactly, is “originalism”? As a recent post to the History News Network began,

“Originalism.”

That’s the touchstone of constitutional jurisprudence over which Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett obsess.

It makes them feel righteous to do it, because for people like themselves the doctrine is faith. 

They presume that the words of the Constitution possess essentially one “original” meaning.  And they also presume they have the power to determine this meaning and then lord it over everyone else.

They believe this.

As the post proceeds to note, historians, linguists, and anyone possessing an ounce of intellectual integrity consider that iteration of  originalism to be simple-minded dogma.

As an article about Amy Comey Barrett put it, arguments for originalism have always rested on flimsy foundations–and conservative judges have routinely ignored the doctrine when it interfered with a desired result.

It turns out that originalism’s real utility is its transactional value as a vehicle for other legal principles. The deeper structure of constitutional jurisprudence is the pervasive and foundational but largely unacknowledged influence of Catholic natural law moral philosophy. Barrett represents more than simply the latest link in the chain of custody for originalist jurisprudence that extends from her mentor, and one of originalism’s founding fathers, former Justice Antonin Scalia, to the present day.

The article argues that a medieval form of Catholicism, rather than Evangelical fundamentalism, permeates the judiciary–and especially the current Supreme Court. The article asserts that it is Catholicism that today forms the linchpin of culture-war conservatism in the United States.

The underlying organizational and intellectual impetus for this influence derives from Thomist Catholic perspectives—on natural law, in particular—that have achieved resurgence in the last 50 years and have infused conservative foundations and think tanks alongside vast amounts of donor money.

As Ruth Marcus noted in a recent column,

When originalist arguments favor a result the conservative justices dislike, they’re content to ignore them, or to cherry-pick competing originalist interpretations that comport with their underlying inclinations. Originalism doesn’t serve to constrain but to justify. This is not a fair fight — or an honest one.

Marcus’ column is lengthy, but well worth reading; she traces the evolution of the doctrine and its embrace by conservatives unhappy with the Warren Court’s approach, which I would characterize as a correct understanding of “original intent”–namely, looking to the values the Founders were trying to protect, and endeavoring to protect those values–free speech, freedom of religion, etc.–from previously unanticipated threats emerging from an environment the Founders could never have envisioned. (The Founders said nothing about free speech on the Internet…)

Multiple historians have objected to Alito’s highly inaccurate historic references in Dobbs, and recently a former leader of the anti-abortion movement has alleged that Alito leaked his equally troubling decision in the Hobby Lobby case to one of that leader’s colleagues..

To return to my initial question: when does a fervently held ideology become a corrupt enterprise? There is, after all, a difference between bringing a particular philosophical “lens” to the law and facts of a case (as any lawyer will confirm, it is impossible not to do so) and distorting and/or fabricating those facts and mischaracterizing that law in order to reach a desired result.

Corruption is not always financial. The dictionary defines corruption as “the process by which something is changed from its original use or meaning to one that is regarded as erroneous or debased.” Alito’s jurisprudence–which many lawyers, including this one, have criticized over the years–has arguably devolved into precisely such debasement. 

Senator Durban has announced that the Senate Judiciary Committee will investigate the allegations of that former leak, and there are renewed calls for the Court to adopt a binding code of ethics, which–unlike lower courts–it currently lacks. 

Both that investigation and an undertaking to abide by the ethical principles that bind the rest of the legal profession are long overdue.

 

 

Women And The Law

The final part of my “War on Women” argument is mercifully short.

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A Constitutional U-Turn

In addition to the First Amendment’s prohibition against legislating religious doctrine, for the past fifty years Americans have relied upon a constitutional doctrine known as substantive due process, often called the “right to privacy.” That doctrine has strengthened the conviction of most Americans that certain “intimate” individual decisions—including one’s choice of sexual partners or the decision to use contraception– are none of government’s business.

The right to privacy was explicitly recognized in a 1965 case titled Griswold v. Connecticut. The Court was considering the constitutionality of a Connecticut law prohibiting the use of birth control by married couples. (The law also prohibited doctors from prescribing or pharmacists from selling contraceptives.) William O. Douglas’s majority opinion reflected the logic of its conclusion. He wrote “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.”

The majority recognized that a right to personal autonomy was necessary to the enforcement of several of the amendments, which Douglas noted would be difficult or impossible to respect without the implicit recognition of such an underlying right. In a concurrence, Justice Goldberg found that same right in the Ninth Amendment, and Justices White and Harlan argued that privacy is protected by the due process clause of the Fourteenth Amendment—hence the doctrinal title “substantive due process.” Wherever it resided–in a “penumbra” or the 14th Amendment–a majority of the Justices agreed on its presence and importance.

Procedural due process protects Americans’ right to a fair process—a fair trial or other governmental proceeding. Substantive due process distinguishes between decisions that government has the legitimate authority to make, and decisions which must be left to each individual. In the fifty years since Griswold, the recognition that the U.S. Constitution protects personal autonomy and respects the right of each individual to self-determination has powerfully influenced American culture. Much of the anger over the Supreme Court’s decision in Dobbs can be traced to shock over Justice Alito’s assault on what most Americans had come to consider a bedrock principle:

Government has the right–indeed, the obligation–to intervene when a person’s behaviors are harming people who haven’t consented to that harm. (Mask mandates to protect public health are an example.) Otherwise, government must leave us alone. Secular and religiously tolerant Americans who had dismissed warnings about growing fundamentalist assaults on that principle, confident that their right to self-determination was secure, reacted to the conservative Christian overtones in Dobbs, justifying an invasion of that right, with predictable shock.

As the foregoing discussion has made clear, different religions—and different denominations within those religions– have very different beliefs about women and procreation, and what amounts to the Court’s elevation of a particular version of Christianity has engendered an enormous and negative reaction. Survey research has confirmed that a majority of Americans, including a majority of religiously-affiliated Americans, disagree with the Court’s decision, and are even more opposed to emerging efforts to make access to contraception difficult or impossible. Large numbers of Americans see the overturning of Roe and cases like Hobby Lobby[ as part of an escalating war on women.

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On November 8th, the American people need to send an unmistakable message to the arrogant theocrats and paternalists on the Court. A massive vote for Democrats–BLUE NO MATTER WHO–will send that message, in three parts: it will be a repudiation of the Court’s current trajectory; a signal that the Court’s legitimacy has dangerously eroded; and it will convey a willingness to make significant changes to the Court’s composition and jurisdiction.

A failure to send that message will be seen as acquiescence to the Court’s retrograde direction, with very negative consequences for all Americans, not just women.

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RFRA For The Rest Of Us…

Indiana’s ACLU has filed a second challenge to the state’s ban on abortion, and this is a challenge focused squarely upon the blatant hypocrisy of the U.S. Supreme Court’s  purported concern for “religious liberty.”

In a series of cases, the Court has handed down decisions favoring Christian fundamentalist doctrines that are at odds with the beliefs held by more liberal Christian denominations, let alone by adherents of other religious traditions. Justice Alito, who authored the decision in the Hobby Lobby case as well as Dobbs, has clearly signaled his belief that his particular definition of “religious belief”  deserves priority–and he now has four other theocratically-inclined colleagues who agree.

Alito’s definition of “religious freedom” as freedom for state-level lawmakers to impose conservative Christian dogma on Americans who hold very different “sincere beliefs,” is inconsistent with both constitutional jurisprudence and common sense. It’s “freedom for me, but not for thee”–and a not-so- tacit endorsement of the MAGA Republican claim that the United States is a “Christian nation” that should be dominated by their particular version of Christianity.

Ironically, the ACLU has filed this lawsuit under the state’s RFRA law–a law originally ballyhooed by those same Christian Warriors.

“Indiana’s RFRA law protects religious freedom for all Hoosiers, not just those who practice Christianity,” said Ken Falk, ACLU of Indiana Legal Director. “The ban on abortion will substantially burden the exercise of religion by many Hoosiers who, under the new law, would be prevented from obtaining abortions, in conflict with their sincere religious beliefs.”

The complaint points out that the new law violates the beliefs of the Muslim, Unitarian Universalist and Episcopalian faiths, as well as those who follow Paganism. (Rather obviously, it also violates the liberties of  the growing numbers of non-religious Americans.)

As I have previously argued,  a very large number of Americans believe that “liberty” is defined as the right of all citizens to follow the doctrines of their particular religions. When applied to the issue of abortion, any rational understanding of liberty means that people whose beliefs prohibit it are protected from measures requiring it, and people whose beliefs allow (or even, in some situations, require) it are equally free to follow their beliefs.

A free country–a country that takes liberty seriously–does not empower legislators to  decide what prayer you say, what book you read, who you marry, or whether and when you procreate. Perhaps the most eloquent statement of that constitutional principle was that of Justice Jackson in West Virginia Board of Education v. Barnette. In a much-quoted portion of his decision, Justice Jackson wrote:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

Justice Alito’s decision in Dobbs essentially reverses Jackson’s 1943 definition of the meaning and  intended operation of the Bill of Rights–a definition that has been endorsed by the courts for decades. Jackson’s definition has been taught in the nation’s law schools and is firmly embedded in the popular culture. In America, We the People make lots of decisions about our governance.  We vote on who will represent us in our various legislative bodies, and–depending upon the state– participate in referenda and recalls.

We don’t vote on fundamental rights.

As any first-year law student (or anyone who took any of my  Law and Public Policy classes) will confirm, the Bill of Rights is taught as a “counter-majoritarian” document. That means that, while a majority of voters can influence innumerable policies, that majority does not get a vote on whether it is permissible to deny other Americans the fundamental rights protected by the Bill of Rights.

We don’t get to vote on our neighbors’ First Amendment right to the free exercise of their religion.

A contrary decision by Indiana Courts would confirm Alito’s profound departure from and disrespect for the essential purpose of the Bill of Rights–and his obvious contempt for people who hold religious beliefs contrary to his own.

It would also highlight the hypocrisy of those Hoosiers who defended RFRA on the grounds that it protected “sincerely held” religious beliefs.

 

 

“Don’t Know Much About History”

That old Sam Cooke tune should be Justice Alito’s theme song.

Distortion–or flat-out lying–about history hasn’t previously been a feature of Supreme Court decisions, although it’s nothing new in political discourse. (Remember the people who argued against same-sex marriage by insisting that marriage “has always been between one man and one woman,” despite the fact that the statement was demonstrably false? Even if you ignore biblical history, more than half of the world still recognizes plural marriage.)

Alito’s recitation of history in Dobbs has been rebutted by historians, and its falsity was recently the subject of a lengthy essay in the Guardian. 

As the essay notes, Alito claims that a reversal of Roe v Wade “restores the US to an unbroken tradition of prohibiting abortion on pain of criminal punishment [that] persisted from the earliest days of the common law until 1973.”

This assertion, however, is easily disproven.As historians have exhaustively explained, early American common law (as in Britain) generally permitted abortions until “quickening”, or perceptible foetal movement, usually between 16 to 20 weeks into a pregnancy. Connecticut was the first state to ban abortion after quickening, in 1821, which is roughly two centuries after the earliest days of American common law. It was not until the 1880s that every US state had some laws restricting abortion, and not until the 1910s that it was criminalised in every state. In the wake of Dobbs, social media was awash with examples from 18th- and 19th-century newspapers that clearly refuted Alito’s false assertion, sharing examples of midwives and doctors legally advertising abortifacients, Benjamin Franklin’s at-home abortion remedies, and accounts of 19th-century doctors performing “therapeutic” (medically necessary) abortions.

The essay also emphasized that anti-abortion fervor was not motivated by the moral or religious beliefs generally cited by anti-choice activists.

In fact, the first wave of anti-abortion laws were entangled in arguments about nativism, eugenics and white supremacism, as they dovetailed with a cultural panic that swept the US in the late 19th and early 20th century as a result of the vast changes in American society wrought by the conflict. This panic was referred to at the time in shorthand as “race suicide”

The increasing traction today of the far-right “great replacement theory”, which contends that there is a global conspiracy to replace white people with people of colour, and has explicitly motivated white supremacist massacres in the US, is often said to have originated with a French novel called The Camp of the Saints by Jean Raspail. Published in 1973, the same year that Roe v Wade enshrined American women’s rights to reproductive autonomy, it is a dystopian account of “swarthy hordes” of immigrants sweeping in and destroying western civilisation. But there were many earlier panics over “white extinction”, and in the US, debates around abortion have been entangled with race panic from the start. 

As a similar post at FiveThirtyEight.com put it,” the anti-abortion movement, at its core, has always been about upholding white supremacy.”

Historians point to the numerous newspapers, lectures and sermons that led to the original criminalization of abortion by warning that Catholics and other foreign-born immigrants were likely to outnumber Protestant, native-born Americans. The essay cited one representative example– a 1903 editorial pointing out that the Protestant population of the US was increasing by 8.1% while the Catholic population was increasing by 21.8%, and characterizing those statistics as an “alarming condition of things.” The article noted that there were “on the average more than five abortions a month, none of them in Catholic families”. In case the message wasn’t sufficiently clear, the piece was headlined “Religion and Race Suicide”.

When the resurgent Ku Klux Klan paraded in Louisiana in 1922, they bore banners that read “White Supremacy”, “America First”, “One Hundred Per Cent American”, “Race Purity” and “Abortionists, Beware!” People are sometimes confused by the Klan’s animus against abortionists, or impute it to generalised patriarchal authoritarianism, but it was much more specifically about “race purity”: white domination can only be maintained by white reproduction.

The article is lengthy, but well worth your time to read; it contains a meticulous recitation of the thoroughly racist roots of opposition to abortion. My only quibble is that It gives only a nod to the White male patriarchy embedded in the numerous religious dogmas that require the subordination and submission of women. Without the benefit of that moral “fig leaf,” I doubt whether its clearly racist roots would have carried the movement so far.

I do absolutely agree with the essay’s conclusion:

The assault on women’s rights is part of the wider move to reclaim the “commanding place” in society for a small minority of patriarchal white men. And, as Alito’s decision shows, where legal precedent and other justifications cannot be found, myth will fill the vacuum.

No matter how ahistorical that myth…

 

Don’t Know Much About History…

It’s not just a song by Sam Cooke…

This Fourth of July, Americans aren’t only fighting over our future; we are also fighting over our past–and the need to learn from it. That requires  a clear-eyed encounter with history– accurate history.

Efforts to teach a non-whitewashed  ( pun intended) history in the public schools has been met with so-called “anti-CRT” bills, angry parents accusing school boards of blaming today’s children for the sins of the past, and “patriotic Americans” demanding that history classes emphasize the ‘greatness” of the country and minimize or ignore deviations from our Constitutional aspirations.

The Supreme Court was able to count on that ignorance of actual history in its decision in Dobbs v. Jackson.

In that decision overruling Roe v. Wade, Justice Alito relied substantially on a dishonest recitation of American history  to justify his result.  Few Americans were in a position to point to that dishonesty and set the record straight. I have previously posted on this subject, but let me repeat a portion of what Randall Ballmer, an eminent historian of Evangelical Christianity, has written.

Both before and for several years after Roe, evangelicals were overwhelmingly indifferent to the subject, which they considered a “Catholic issue.” In 1968, for instance, a symposium sponsored by the Christian Medical Society and Christianity Today, the flagship magazine of evangelicalism, refused to characterize abortion as sinful, citing “individual health, family welfare, and social responsibility” as justifications for ending a pregnancy. In 1971, delegates to the Southern Baptist Convention in St. Louis, Missouri, passed a resolution encouraging “Southern Baptists to work for legislation that will allow the possibility of abortion under such conditions as rape, incest, clear evidence of severe fetal deformity, and carefully ascertained evidence of the likelihood of damage to the emotional, mental, and physical health of the mother.” The convention, hardly a redoubt of liberal values, reaffirmed that position in 1974, one year after Roe, and again in 1976.

Ballmer tells us that Falwell and Weyrich, who were furious about efforts to tax their segregation academies, were “savvy enough” to recognize that organizing grassroots evangelicals to defend racial discrimination would encounter moral blowback. “Saving babies” was far more palatable.

Another scholar who has criticized the ahistorical tale told by Justice Alito is  Geoffrey Stone, who authored “Sex and the Constitution” and  teaches law at the University of Chicago. Stone was a Supreme Court Clerk when Roe was decided; as he says,

Americans, almost all, believed at that time that abortion had always been illegal, that it had always been criminal. And no one would have imagined that abortion was legal in every state at the time the Constitution was adopted, and it was fairly common. But people didn’t know that.

The justices came to understand the history of abortion partly because [Justice Harry] Blackmun previously had been general counsel [at the Mayo Clinic] and researched all this stuff. But this history also began to be put forth by the women’s movement. And this was eye-opening to the justices, because they had, I’m sure every one of them, assumed abortion had been illegal back to the beginning of Christianity. And they were just shocked to realize that was not the case, and that prohibiting abortion was impairing what the framers thought to be … a woman’s “fundamental interest.”…

In the 18th century, abortion was completely legal before what was called the “quickening” of a fetus – when a woman could first feel fetal movement, or roughly four and a half months through a pregnancy. No state prohibited it, and it was common. Post-quickening, about half the states prohibited abortion at the time the Constitution was adopted. But even post-quickening, very few people were ever prosecuted for getting an abortion or performing an abortion in the founding era.

This accurate history gives the lie to Justice Alito’s claim that the right to abortion was not ” deeply rooted in the nation’s history and traditions.” Several other historians–notably Heather Cox Richardson–have also disputed Alito’s characterization.

It’s highly unlikely that teaching more accurate history would have included the history of reproductive rights, but it would have–and should have–included those elements of the American past that gave rise to the racial and religious divisions we are experiencing today. Going through school, as I did, without ever encountering the Trail of Tears, the Tulsa massacre, the rise of the KKK and so much else leaves students without important context they need in order to understand today’s political debates. (It’s not just the omissions; we are now discovering that the tales we were told, and told to remember,  were often twisted...)

As legal scholar Akhil Reed Amar recently argued, “originalism” needn’t be dismissed as simply a dishonest tactic employed by radically conservative judges. Based on good, accurate history, it can be surprisingly progressive.