Tag Archives: Supreme Court

Lawyers Are Grieving

A letter to the editor (Josh Marshall) of Talking Points Memo struck a nerve with me. A major nerve.

As Marshall noted in an introductory paragraph, this term’s string of decisions from the Supreme Court prompted a number of letters from lawyers; he began by quoting one correspondent:

I don’t believe laypeople really understand what a a heavy, heavy emotional lift it is for the vast majority of attorneys generally, and law professors in particular. The belief that we are serving the rule of law and that that while decisions will always be shaped by human weakness, judges can and will render rulings contrary to their ideological predilections if the law requires it is central to our identity. it is what makes us more than the lawyer jokes say we are. It is the essence of the constitutional principle of due process, equal protection, Magna Carta law of the land. All that stuff. It’s hard to accept that it’s dead and courts are just political actors, even as right wing billionaires have plowed fortunes into making state and federal courts exactly that.

I have had this conversation with many attorneys who are not political maniacs like I am. I find few who are not struggling with acceptance because, make no mistake, acceptance is to accept existential crisis, accept the need, at best, to completely redefine who we are and how we do it. In a real sense, most of us are grieving for due process and rule of law like people grieving a death where no body has been found. We know it emotionally, but don’t accept it intellectually or accept it intellectually, but not emotionally.

This particular writer has eloquently conveyed what I–and the multiple lawyers in my immediate and extended family–have been feeling. The ground has shifted beneath our feet, and we are disoriented. I no longer know what country I inhabit. As another letter-writer put it, we’ve been forced to recognize that defending America’s democratic institutions and defending the legitimacy of the Supreme Court are no longer compatible. “You can’t be on the side of the virus and the cure at the same time.”

No kidding.

For most of my professional life, I’ve been very patriotic (perhaps overly so, I’ve reluctantly concluded)–and that patriotism has been rooted in my reverence for what I understood to be the original underlying premises of the Constitution and Bill of Rights. I have always understood America’s government to be constructed on the libertarian premise that we humans have the right to autonomy, to  self-determination, until and unless our actions are harming the person or property of another, and so long as we are willing to accord an equal liberty to others.

True, that genuinely original principle wasn’t shared broadly enough, wasn’t extended to those wrongly viewed as lesser, but at the time, its mere articulation represented a huge advance in conceptions of legitimate governance.

I spent twenty-one years sharing that conviction with university students. I’ve made hundreds of speeches, written literally thousands of columns, academic papers and blog posts based firmly on the understanding that in my country, religious folks didn’t get to legislate obedience to their doctrines, government didn’t get to dictate my private beliefs and/or behaviors–and that those and other limits on government infringements of my personal liberties are at the very heart of what does make America great.

Our job as citizens, I taught, is to ensure that the respect for human rights at the heart of our original founding philosophy is extended to people who have previously been marginalized or oppressed.

That founding philosophy–that genuine originalism– is being purposely upended by an illegitimate and profoundly dishonest Court majority. As Marshall noted, in response to several of the letters he shared,

A whole ideology of judicial independence and the very idea that the law is an independent force with a logic of its own, a constraint on the vicissitudes of power and politics, does seem under threat from the realities of the moment…

We’ve learned a common pattern in which a constitutional challenge once viewed as unprecedented bordering on absurd emerges as new constitutional law two or three years later. This is all the definition of an out of control Court operating beyond its authority. The process by which it arrived at this point is one of a deep and profound corruption.

That corruption can only be addressed by the political process. As Marshall says, both of the other branches must act in concert, limiting jurisdiction and adding judges;  these are  “legitimate remedies, responses to the perversions of the rule of law and judicial independence rather than attacks on it.”

Of course, if there isn’t a blue wave in November, this won’t happen. Like most lawyers, I’m in mourning.


Privacy And Diversity

America has always been more diverse than most countries. Initially, that diversity meant different kinds of Christians–Maryland, for example, was Catholic, while the other original colonies were dominated by a variety of Protestant denominations. We are far more diverse these days, thanks to immigration, the splintering of numerous sects, and the explosive growth of the “nones,” Americans without religious affiliations.

We aren’t only diverse in our religious beliefs. Individuals represent different races, different regional cultures and backgrounds and very different political and ideological commitments.

The big question is: what sort of government can serve such wildly different citizens and be  viewed as fair across all those differences? (That, of course, is a question that has long preoccupied political philosophers. John Rawls proposed a “Veil of Ignorance”–an intriguing mechanism for determining fairness.)

These days, as columnist Jennifer Rubin has written, an uncomfortable number of Americans are uninterested in fairness; they are interested in dominance. That faction is represented by a right-wing, activist Supreme Court and the Christian nationalists they favor. In their ahistorical vision of proper government,  “a sliver of the electorate (White, Christian, male) exploits anti-majoritarian aspects of our democracy (e.g. the filibuster, the electoral college, gerrymandering) to use the awesome power of the government to impose values rooted in the 19th century on a diverse country.”

In that vision, the proper beneficiaries of public policy are mostly White, Christian and male, and elements of modernity like science and expertise, not to mention diversity, are “foreign, elite and alien.”

Rubin uses a speech by retiring Justice Breyer to explain the countervailing, constitutionally-anchored viewpoint–one that, as she says, recognizes the heterodoxy of America.

“This is a complicated country. More than 330 million people. My mother used to say, it’s every race, it’s every religion — and she would emphasize this — it’s every point of view possible. It’s a kind of miracle when you sit there and see all those people in front of you. People that are so different in what they think. And yet they decided to help solve their major differences under law.”

This vision posits that to achieve “ordered liberty” for a diverse, noisy, rambunctious people, we must respect the right to self-determination — to choose one’s family, one’s lifestyle, one’s profession and one’s philosophy of child-rearing. That necessitates restriction on government so as to protect a sphere of private conscience. It’s what Louis Brandeis called the “right to be left alone.”

Poll after poll affirms that a large majority of Americans believe that the “right to be left alone”–the right to direct their own lives, consistent with their own moral commitments –should extend to such matters as contraception, abortion, same-sex marriage, child rearing and lifestyle.

Until the advent of this rogue court, the Supreme Court had largely agreed. As Rubin reminds us, even before Griswold v. Connecticut was decided in 1965, the court had protected the right to send your child to the school of your choice and receive instruction in a foreign language. In the 1950s, the Court affirmed the right to choose your profession; and the right to travel (neither of which is expressly set forth in the Constitution).

The court in 1923 held that “liberty” includes the right “to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”

After Griswold, that zone of privacy was extended to interracial marriage, private consensual sex, abortion, the right of grandparents to live with their grandchildren (i.e. how one defines a “single family”) and to same-sex marriage.

The zone of privacy erected by the Court is precisely what a fair reading of the Bill of Rights protects–the right of individuals to make personal decisions without government interference.  That is precisely what the MAGA movement cannot abide: it wants  government to “control how schools teach race, what teachers say about sexual and gender identity, how parents treat transgender children, and, now, whether women can be forced to give birth against their will.”

In response to the constitutional question “who decides?” the White Christian Nationalists of the MAGA movement respond: “we do.”

At stake right now is the individual’s right to live “free from the tyranny of the government and the mob.” As Rubin says, we need a counter-movement.

In sum, Americans need a counterweight to a Christian nationalist movement that seeks to impose on the majority the set of social beliefs of the minority. They need a movement to defend the myriad ways 330 million Americans engage in “pursuit of happiness” — ways as diverse as the country itself.


The War On Government

One of the consequences of  the low civic literacy I keep complaining about is a widespread lack of understanding of  the importance of systemic problems. Our current media environment doesn’t help.

Let me give a few examples to explain what I mean.

The media covers our  election “horse races,” but largely ignores the systemic gerrymandering that precedes individual races and pre-ordains too many of their outcomes. The result is that the “win/lose” results don’t really reflect majority voter preferences, but that is rarely the focus of discussion.

The media routinely reports the results of U.S. Senate action, but has only begun to recognize the pernicious effects of the filibuster, which has changed that chamber from one operating on majority rule to a broken system that now requires a super-majority to pass even the most trivial laws.

Americans remain largely unaware of the undemocratic effects of the Electoral College –how that outdated system has operated to install as President candidates who lost the popular vote, and how it threatens to do so again.

As America’s governance has become ever more dysfunctional, recognition of those particular systemic flaws has grown, but–as we can see from reactions to the recent stream of radical Supreme Court decisions–while there is anger at the immediate and visible results, there is little recognition of the truly horrific systemic effects of those decisions.

The overruling of Roe is just one example. As I’ve written before,  the Court achieved that result by undermining an important doctrine–a doctrine that supports a number of other important liberties. The damage done goes far, far beyond the “headline.”

Similarly, the media has largely overlooked the truly breathtaking assault on American government represented by the decision in West Virginia v. EPA.  That decision limited the extent to which Congress can delegate regulatory decisions, and–together with other, less publicized cases–amounts to a war on government’s ability to protect the “general welfare.”

As Sam Baker recently wrote in Axios, the Court is moving to restrict the authority of regulatory agencies in the executive branch.

These cases may not always feel like blockbusters in isolation, but they can constrain federal power in ways that are almost impossible to reverse, with dramatic implications that cut across multiple policy areas.

Driving the news: Just in the past few months, the court …

Prevented the CDC from enforcing an eviction moratorium due to COVID.
Prevented OSHA from enforcing a vaccine mandate in workplaces.
Prevented the EPA from carrying out some of its most aggressive proposed limits on greenhouse gasses.
Some of those issues are bigger than others, but each of those cases raised questions about overarching legal principles related to executive-branch authority.

Taken together, it’s clear which direction things are headed — the federal government is going to be able to do a lot less than it has been able to do in the past.

At least three of the radical Justices are hoping to reinstate something called the “nondelegation doctrine” — a theory that Congress cannot delegate to agencies of the executive branch any of the powers the Constitution gives to Congress.

It’s not carrying the day right now, but at least three justices seem to want to bring it back. When the court struck down OSHA’s vaccine mandate, Justice Neil Gorsuch — joined by Justices Clarence Thomas and Samuel Alito — said that even if Congress had expressly given OSHA the power to impose a vaccine mandate, that likely would have been unconstitutional.

In the 1800s, this debate was reasonable. Back then, We The People elected Congressmen (and they were CongressMEN) to make legal and regulatory decisions that were well within the competence of most lawmakers. In the 21st Century, life is considerably more complicated and a great many of those decisions require a degree of scientific, legal and/or medical expertise that we cannot reasonably expect from even our non-crazy lawmakers.

Forbidding Congress from delegating considerable authority over highly technical issues is a way of strangling the ability of government to act.

We can all point to regulatory decisions we dislike. We can argue that this or that rule exceeds the agency’s  grant of authority. But removing that authority–telling agency personnel that they cannot regulate environmental hazards, or require technical food and drug safety measures, or mandate certain responses to diseases and pandemics, etcetera, etcetera–is tantamount to telling the executive branch its authority doesn’t reach far beyond coining money and declaring war.

Focusing only on the “headline” results of these decisions–appalling as those obvious results are–blinds us to their systemic implications. This Court is coming for the underpinnings of federal governance.

Of course, if climate change destroys the planet, it may not matter…..


What’s Different This Time? A Lot.

Back in the 60s, Bob Dylan told us that “the times, they are a-changing.” They still are.

I’ve been thinking about about the Supreme Court’s efforts to reverse social change, and the extent to which their targets have become too firmly embedded in the culture to be reversed.

Roe v. Wade was decided in 1973–almost exactly 50 years ago–and we sometimes forget how much American life  has changed since then. I’ve been thinking about what those changes may mean for the radical Court decision to overrule the constitutional right of a woman to control her own reproduction.

Consider just a few…

  •  Roe was argued in a void of sorts.Tthere was virtually no public discussion of women’s experiences with abortion, because it had been illegal in many if not most states, and coming forward to publicly explain and provide context to a decision to terminate a pregnancy would have labeled the woman a criminal. As Dobbs made its way through the judicial system, however, women faced no such restraint, and their stories have illustrated the multiplicity of situations women face, and the intensely personal impacts of their decisions.
  • Columnist Jennifer Rubin has written about one outcome of that public discussion–widespread recognition of the cruelty of forced birth. How do you defend GOP insistence that a 10-year-old girl impregnated by her rapist carry that pregnancy to term? Yet in that very real case, at least two Republican gubernatorial candidates have affirmed their belief that this child should be required to give birth. As Rubin noted, those utterances by GOP candidates weren’t anomalous: Mississippi House Speaker Philip Gunn said that, in his view, a 12-year-old impregnated by incest should be forced to complete her pregnancy. Herschel Walker, the Georgia Republican Senate nominee, insists he wants no exceptions, even to save the woman’s life. Ohio state Rep. Jean Schmidt has called forcing a 13-year-old rape victim to give birth an “opportunity.” Even people with qualms about abortion are likely repulsed by this sick lack of concern for the lives and health of living women.
  • Poll after poll shows that most people who want to restrict abortion don’t want to ban the procedure entirely. Yet–as The New York Times reports– “There are no allowances for victims of rape or incest in Alabama, Arkansas, Florida, Kentucky, Louisiana, Missouri, Oklahoma, Ohio, South Dakota, Tennessee or Texas.” In Idaho, a woman would have to file a police report to obtain an abortion, something virtually impossible for incest victims and others who live in fear of their attackers.”
  • As legal observers have noted–and survey research has confirmed--the U.S. Supreme Court is in the midst of a full-fledged legitimacy crisis, worsened by a steady stream of extreme decisions handed down by the conservative supermajority. Opinions about the Court are far more negative than they were in 1973.
  • The decision in Dobbs, as I’ve previously explained, rests on an analysis that threatens other rights–rights that weren’t recognized fifty years ago (and thus were not “deeply rooted” in Justice Alito’s version of American history) such as same-sex marriage (2015), contraception (1965) and interracial marriage (1967). That threat is widely understood, and it significantly expands the number of Americans who (accurately) view Dobbs as a personal threat.
  • The media environment today is dramatically different from that of 1973. Whatever their negatives–and I routinely post about those negatives–the ubiquity of the Internet and social media means that very few Americans are unaware of either the Court’s decision or its likely impacts. Digital communication has also made it much, much easier to organize political movements and raise dollars–and we are already seeing a strong political response online to what is being described–again, I believe accurately–as a theocratic and profoundly anti-liberty decision.
  • Over the past fifty years women have become considerably more empowered.
  • The percentage of Americans following the dictates of organized religion is at an all-time low.

I’m old, and I remember 1973.

In 1973, my mother–who was considered pretty liberated for her time– was still saying things like “Men won’t buy the cow if they can get the milk for free.” Women who had sex outside of marriage were considered sluts. Women who dared to have both children and careers were  “obviously” bad mothers. Women who weren’t married were pitied and called “old maids.” Women who earned more than their husbands were “castrating.” Women who played sports were unfeminine–and the very few women who wanted to report on sports were barred from male players’ locker rooms…It was 1974 before we could even get our own credit cards.

In short, a lot has changed since 1973. As a recent car commercial puts it, “this isn’t your father’s Oldsmobile.”  

 In 1971, Helen Reddy wrote our anthem..

In 2022, I think women really are going to roar.



The Supreme Court Has Made Me A Liar

This week, the United States Supreme Court laid waste to 20 years of lectures I gave my students.

I used to explain the importance of stare decisis–the importance of a predictable and stable legal system based on fidelity to the rule of law. I explained that the Founders used lifetime appointments to the federal judiciary to shield judges from political pressures and allow them to engage in dispassionate evaluation of the law and facts of the cases before them. And I emphasized that–while statutes can be passed to confer and protect rights– statutes are much more easily overturned than rights secured by the Constitution.

Mitch McConnell’s Court has proven me wrong on all counts.

Stare decisis? Precedent? What are those to determined judicial ideologues? Mere minor impediments to be brushed away by finding that they’d been wrongly decided and followed.

What about those lifetime appointments? Thanks to a Senate dominated by politicians determined to appoint political cronies, those lifetime appointments have become protection against removal–giving  Justices who have clearly subordinated ethics and dispassionate evaluation to political ideology free reign to wreak havoc with the rule of law.

it was appalling enough when the religious tribunal that constitutes today’s Supreme Court majority overruled Roe v. Wade –a fifty-year precedent–using language that clearly signaled the coming of an all-out assault on other rights. That decision followed a victory by the gun lobby that overturned a New York statute that had been in place for over 100 years, and was equally dismissive of the plain language of Justice Scalia’s decision in Heller.

As if the case from Maine requiring vouchers to be spent at religious schools wasn’t a clear enough message that the majority was coming for the Establishment Clause, the Court drove that message home: the tribunal ruled that a public school corporation must allow a football coach to deliver performative prayers on the football field’s 50-yard line–a clear endorsement of religion, and a radical departure from over 100 years of First Amendment jurisprudence. That decision created a hole in Jefferson’s “Wall of Separation” big enough for the Christian Taliban to drive through, and arguably put prayer back in the nation’s public schools.

(More solicitude for religion: the Court ruled that Texas would violate religious freedom if it executed a death row inmate without allowing his pastor to touch him and pray aloud with him. Evidently, killing him didn’t pose any religious problem–or constitute a “pro life” inconsistency…)

But this radical Court didn’t stop with those UTurns in the law. Yesterday, it eviscerated   the ability of the EPA to act on urgent environmental threats–again, despite precedents to the the contrary. In yet another 6-3 decision, the Court limited the Environmental Protection Agency’s authority to set standards on climate-changing greenhouse gas emissions for existing power plants. A Guardian editorial said the ruling “means it may now be mathematically impossible through available avenues for the US to achieve its greenhouse gas emissions goal.”

Evidently, these Justices don’t have grandchildren who will have to live in a society upended –or possibly just ended–by climate change.

There were other, less publicized offenses against the rule of law.

Wednesday, the Court dramatically increased the power of states over Native American tribes. That result –a win for Republican officials in Oklahoma–required ignoring the Court’s own 2020 ruling that had recognized an expanded tribal authority. (That particular affront was too much even for Justice Gorsuch, who–for once–departed from the lockstep radical majority.)

In another 6-3 case demonstrating the selective nature of the majority’s concern for life (the concern apparently evaporates at birth) the court found that the Biden administration’s vaccine-or-testing mandate for large employers was not lawful.

The New York Times has a rundown of this appalling session, with additional cases.

This recitation brings me to my final error: telling my students that constitutionally protected rights are more stable than rights protected only by statutes.

Congress can–and must–codify the rights this illegitimate Court has trampled, as well as those it is clearly threatening. It also needs to add Justices chosen by a President who actually won the popular vote. But in order to do those things and take other critical steps, Democrats must win in November, and they must win control of the Senate in sufficient numbers to make Joe Manchin and Kyrsten Sinema irrelevant.

Off-year elections almost always favor the party that doesn’t control the White House. If the GOP wins even one house of Congress this year, it is not hyperbole to say that the Constitution and Bill of Rights are effectively over. Neutered. Irrelevant.

Vote Blue no matter what. We can argue about gas prices after we save the Republic.