Tag Archives: Supreme Court

Ruth Marcus Schools The Court

A recent opinion column by Ruth Marcus is really a “must read” by anyone who thinks that the absence of a specific provision in America’s constitution is evidence that the document is “neutral” about an issue.

Marcus’ essay focuses on reproductive rights, but her explanation of the Constitution’s operation extends well beyond abortion. Although she doesn’t put it this way, what she is really exposing is the fact that judges who call themselves “originalists” are actually revisionists who use the absence of a particular word in the text to justify a preferred, distinctly unoriginal interpretation of the Bill of Rights.

The argument–which was on display during oral arguments in Dobbs v. Jackson-– is that, absent express constitutional language, an issue must be left to “the people.” As Marcus points out,

The fundamental flaw here is that the Constitution exists in no small part to protect the rights of the individual against the tyranny of the majority. The Bill of Rights and the 14th Amendment exist to put some issues off limits for majority rule — as Justice Robert H. Jackson put it in a 1943 ruling protecting the right of Jehovah’s Witness schoolchildren not to be forced to salute the flag, “to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities.” The Supreme Court, in protecting abortion rights, isn’t telling women what to do: It is preserving space for them to make their own decisions about their own pregnancies.

She also notes the highly selective application of the “leave it to the people” approach.

They’re happy to second-guess the decisions of elected officials and public health experts about how best to safeguard their communities in the midst of a pandemic when religious institutions claim their rights are being violated. They don’t flinch at saying that the core First Amendment protection for political speech places strict limits on Congress’s ability to limit corporate spending on elections or enact other campaign finance rules.

What this disingenuous argument rejects is the whole purpose of the Bill of Rights (the Founders’ actual “original intent”)–which was to keep government from invading the fundamental rights of the people to personal autonomy–the right to self-government. A reading of the history of the too-frequently overlooked Ninth and Tenth Amendments makes clear that “unenumerated” rights were among those to be protected.

When people argue that the right to privacy is not protected from government overreach because the word “privacy” doesn’t appear in the document, they conveniently ignore the reality that without recognizing a zone of privacy, it is impossible to give effect to very explicit provisions of the First, Third, Fourth and Ninth Amendments (not to mention the 14th, which was ratified after the Civil War.)

When the Supreme Court decided, in Bowers v. Hardwick, that the Constitution didn’t protect a right to homosexual behavior, because such behavior was not addressed in the document, legal scholars–and a later Court–addressed the fundamental error in that analysis: It had inverted the question. Where in the Constitution or Bill of Rights is government given authority to tell people who and how they can love?

The question is always: who gets to decide this matter, government or the individuals involved? The Bill of Rights answers that question by enumerating things government is forbidden to do. It cannot censor our speech, decide our religions, search our homes or persons without probable cause, or take a variety of other actions that invade an individual’s right to self-determination (the Constitutional definition of privacy).

As Marcus reminds readers,

There are any number of rights that the court has long found fall within the bounds of constitutional protection even though they are not specifically mentioned in the text. The right to travel. The right of parents to educate their children as they choose. The right to contraception. The right to private sexual conduct. The right to marry a person of another race. The right to marry a person of the same gender.

All these derive from the intentionally broad phrases of the 14th Amendment’s protections against the deprivation of “liberty” without due process of law. “The full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution,” Justice John Harlan, no liberal, explained in a 1961 dissent, from an early case involving access to contraception.

If a woman’s right to control of her own body doesn’t have constitutional protection, then logically, none of the rights Marcus enumerates are protected either–and the intellectually dishonest “religious” conservatives on the Court are quite capable of coming for those rights in the future.

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The Court

The newly engineered Supreme Court will soon decide two abortion-rights cases: Texas’ empowerment of “pro-life” vigilantes, and a more threatening case from Mississippi that was argued this week.

When I describe today’s Court as “engineered,” I am referring to the brazenly unethical behavior of Mitch McConnell, who ensured the appointment of far-right Associate Justice Amy Coney Barrett. Barrett, of course, joined five other conservative Justices, and probably guaranteed that Roe will be overturned or eviscerated.

What then?

According to the Guttmacher Institute,  extrapolating from 2014 statistics, one in four (24%) American women has had an abortion by age 45, despite the considerable barriers to the procedure that have been erected in some half of U.S. states. Fifty-nine percent of them were obtained by patients who had previously had at least one child, and 51% had been using a contraceptive method in the month they became pregnant.

As the country fractures and the Supreme Court drifts farther from any observable understanding of the environment within which it issues its decisions, I’m reminded of a column by Linda Greenhouse, in which she considered the legacy and evolution of Sandra Day O’Connor, the first woman to sit on the country’s highest court. Among other things, Greenhouse noted the deep friendship between O’Connor and Justice Stephen Breyer.

From the outside, it seemed an unlikely pairing, two people from opposing political parties with such different backgrounds, public personas and career paths. But they shared a deep concern about the practical effect of the court’s decisions.

When it comes to reproductive rights, those “practical effects” are likely to be dire. A recent study published in the Annals of Internal Medicine found that–in addition to financial and emotional problems–women who had been denied abortions experienced long-term health problems.

There’s a good deal of research that shows, in the short term, having an abortion is much safer than childbirth, but there isn’t much research over the long-term,” says study co-author Lauren Ralph, an assistant professor of obstetrics, gynecology and reproductive sciences at the University of California, San Francisco. “Our study demonstrates that having an abortion is not detrimental to women’s health, but being denied access to a wanted one likely is.”

According to the study, women who were denied abortions “consistently” faced worse health outcomes than those who weren’t. “The findings were consistent with a raft of other studies highlighting some of the most serious consequences women face when government restricts women’s access to abortion.

It isn’t only women who face adverse consequences from that denial.

The discourse around abortion tends to focus on women and generally fails to consider how being denied an abortion affects the children a pregnant woman already has and those she may have in the future. The research is clear: Restricting access to abortion doesn’t just harm women — it harms their children as well…Our study shows that denying a woman a wanted abortion has a negative impact on her life and the lives of her children.

A University of Colorado study found that banning abortion nationwide would lead to a 21% increase in the number of pregnancy-related deaths overall and a 33% increase among Black women.

None of these consequences bother the zealots who are “pro fetal life.” (They certainly aren’t “pro” the life and health of women–or concerned about the wellbeing of children once they’re born.) They are willing to ignore two undeniable facts: (1) as the American College of Obstetricians and Gynecologists insists, access to abortion is an important part of women’s health care; and (2) outlawing the procedure will not end abortions. It will simply end medically safe abortions for women who cannot afford to travel to states where the procedure is legal.

Beyond those “practical effects” is the undeniable message that is sent when government intrudes on intimate moral decisions properly left to individual citizens. As Michelle Goldberg recently wrote,

As the feminist Ellen Willis once put it, the central question in the abortion debate is not whether a fetus is a person, but whether a woman is. People, in our society, generally do not have their bodies appropriated by the state.

I realize that none of the documented practical effects of gutting Roe v. Wade will persuade the minority of Americans who think they have the right to impose their religious (or misogynist) beliefs on the clear majority that doesn’t share them, or the politicians who continue to use the issue to motivate their voters (while not-infrequently pressuring their mistresses to abort accidental pregnancies).

I do wonder, however: what will a “victory” for pro-fetal-life activists mean politically? How many of the substantial number of women who have had abortions–and the partners and family members who helped them make that decision– will respond by becoming the new “single-issue” voters?

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Hear Ye, Hear Ye…

For those of us desperate for any good news, any glimmer of hope that America might eventually emerge from the purgatory into which we’ve been plunged by the MAGA party, a newsletter from the Brennan Center recently offered that glimmer. (No link, sorry.)

On September 30, President Biden announced ten more federal court nominees, bringing the administration’s total number of nominees to 53. Biden also announced four nominees to serve on local D.C. courts.

Biden’s eighth slate of nominees includes two civil rights lawyers and three current or former public defenders. Several of the nominees, if confirmed, would also mark historic firsts: the first Asian American man on the Western District Court of Washington, the first Asian American woman on the Southern District Court of California, and the first Hispanic district court judge in Ohio.

According to CNN, more than 25% of Biden’s nominees to date are Black, 21% are Hispanic or Latino, and 23% are Asian American or Pacific Islanders. Close to 75% are women. In addition, 32% of Biden’s judicial nominees are former public defenders and 25% are civil rights lawyers.

Biden is confirming judges at a rate faster than any other president at this point in their term since Richard Nixon, according to Bloomberg Law. Sixteen of Biden’s judicial nominees have been confirmed so far.

I feared–and still fear–that Mitch McConnell and Donald Trump had ensured a generation in which the federal courts would be lost to principles of justice and equality. After all, they did manage to elevate a number of ideological and, frequently, demonstrably unqualified partisans to those courts. The Biden Administration is clearly aware of the need to ensure the ongoing integrity of the courts, and equally aware of the need to populate the bench with Americans who are both competent and representative of the country as a whole.

So–good news. I’ll take it.

Unfortunately, all the emerging reports about America’s courts are not as positive as that one. That same newsletter relayed the conclusions of an investigation by the Wall Street Journal that found 130 federal judges had violated U.S. law and judicial ethics by “overseeing court cases involving companies in which they or their family owned stock.”

The Journal reported that between 2010 and 2018, 129 federal district court judges and two federal appellate judges had failed to recuse themselves from 685 cases in which they or their families had a financial conflict, and that approximately two-thirds of the rulings subsequently favored the judges’ or their family’s financial interests.

One of the reasons for this country’s current angst is the public’s loss of trust in the institutions of American government. Trump certainly accelerated suspicion of government bureaucrats with his paranoia about the “deep state,” and he fed a wide variety of conspiracy theories, but much of the loss of trust preceded him. (My book, Distrust American Style, was published in 2009, and the phenomenon was anything but new.) Confidence in the administration hit an all-time low under Trump (and for good reason), but Congress has been utterly feckless for well over a decade.

The courts were, for a time, the holdout.

With McConnell’s success in remaking the Supreme Court into an instrument of partisanship, and four years of appointments of partisan hacks  (mostly White men) to the federal bench, those of us who’ve been paying attention lost hope that the courts would salvage constitutional principles–or at the very least, stem the tide.

I doubt that the Biden Administration has the political capital to do what very clearly needs to be done: either enlarge the Supreme Court or impose limits on Justices’ terms of service. Scholars of the judiciary have been advocating various mechanisms for expanding  the Court for years–far preceding McConnell’s mischief–for reasons of efficiency; they’ve also been advocating term limits in recognition of the fact that Justices live much longer than they used to. (Terms of 18 years, the usual recommendation, would probably be long enough to insulate Justices from political pressure– the original reason for lifetime appointments.)

In the absence of meaningful structural change, the nakedly partisan makeup of the Supreme Court is likely to keep trust in the courts low–leaving discontented citizens with nowhere to turn for redress of grievances.

Of course, speaking of “redress of grievances,” we might remind folks that there is this thing called the ballot box…

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Texas Is About Much More Than Abortion

The angry blowback against Texas’ assault on reproductive rights is eminently justifiable–but as I explained previously, most of the criticism of the law misses the even more ominous threat it poses.

In her newsletter last Saturday, Heather Cox Richardson brought a historian’s perspective to that more ominous reality. She traced the nation’s legal trajectory after WW II, and the resistance to efforts by FDR to use government to regulate business and provide a basic social safety net. And as she reminded readers, racist Southern Democrats furiously fought government’s efforts to ensure racial equality. 

After World War II, under Chief Justice Earl Warren, a Republican appointed by President Dwight Eisenhower, and Chief Justice Warren Burger, a Republican appointed by Richard Nixon, the Supreme Court set out to make all Americans equal before the law. They tried to end segregation through the 1954 Brown v. Board of Education of Topeka, Kansas, decision prohibiting racial segregation in public schools. They protected the right of married couples to use contraception in 1965. They legalized interracial marriage in 1967. In 1973, with the Roe v. Wade decision, they tried to give women control over their own reproduction by legalizing abortion.

The Supreme Court used  the Fourteenth Amendment to apply the Bill of Rights to state governments as well as to the federal government; among other things, that kept state and local government officials from denying certain individuals the same rights enjoyed by other citizens

From the beginning, there was a backlash against the New Deal government by businessmen who objected to the idea of federal regulation and the bureaucracy it would require. As early as 1937, they were demanding an end to the active government and a return to the world of the 1920s, where businessmen could do as they wished, families and churches managed social welfare, and private interests profited from infrastructure projects. They gained little traction. The vast majority of Americans liked the new system.

But the expansion of civil rights under the Warren Court was a whole new kettle of fish. Opponents of the new decisions insisted that the court was engaging in “judicial activism,” taking away from voters the right to make their own decisions about how society should work. That said that justices were “legislating from the bench.” They insisted that the Constitution is limited by the views of its framers and that the government can do nothing that is not explicitly written in that 1787 document.

This is the foundation for today’s “originalists” on the court. They are trying to erase the era of legislation and legal decisions that constructed our modern nation. If the government is as limited as they say, it cannot regulate business. It cannot provide a social safety net or promote infrastructure, both things that cost tax dollars and, in the case of infrastructure, take lucrative opportunities from private businesses.

It cannot protect the rights of minorities or women.

The Court’s refusal to enjoin the Texas law is a truly terrifying omen. If the law is ultimately upheld, the precedent would threaten far more than a woman’s right to control her own reproduction. As Richardson notes, such a result would “send authority for civil rights back to the states to wither or thrive as different legislatures see fit…there is no reason that this mechanism couldn’t be used to undermine much of the civil rights legislation of the post–World War II years.”

In 1957, Republican President Dwight Eisenhower used the federal government to protect the constitutional rights of the Little Rock Nine from the white vigilantes who wanted to keep them second-class citizens. In 2021, the Supreme Court has handed power back to the vigilantes.

I am old enough to remember the billboards demanding “Impeach Earl Warren.” The rage of rightwing White Nationalists at decisions that they (correctly) believed would curtail their ability to deny equal rights to Blacks and other disfavored minorities hasn’t abated. Much of it went underground: into the establishment of “think tanks” devoted to justifications of “originalism”and rollbacks of federal regulations, the (now successful) effort to pack the federal courts with ideologues and capture the big prize: the Supreme Court.

Logically, under the last fifty years of legal precedent, Texas’ effort to “outsource” its abortion ban to vigilantes–its effort to avoid “state action”– should fail. The state’s legislature created the law. Enforcement of its punitive and dangerous scheme requires participation by the state’s judicial system. 

What too few of the people arguing for and against this assault seem to recognize is what is truly at stake right now: the entire edifice of current Constitutional law, which rests on the premise that the Bill of Rights applies to all levels of government–that it sets a civil liberties floor below which states may not go.

This fight is about more than Roe v. Wade.

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A Perfect Storm

I woke up yesterday to the news that Trump’s Supreme Court–through its “Shadow Docket” and by a five to four margin–had effectively overturned what lawyers call “incorporation”–an odd term for the proposition that the Bill of Rights constrains state and local governments

In a scathing dissent, Justice Sonia Sotomayor wrote: “The court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand.”

Actually, it’s worse than that. Much worse.

Not only does the Court’s increasing use of the Shadow Docket raise serious questions about the erosion of the judicial transparency fundamental to the rule of law, the decision to allow Texas’ empowerment of culture war vigilantes achieves a goal long held by “states rights” fundamentalists: a return to the days when state and local lawmakers could impose their preferred “morality” on their citizens–and not-so-incidentally decide which citizens were entitled to equal rights– without the pesky interference of the federal government.

As I noted yesterday, approval of Texas’ ploy opens a door to civil strife far removed from the abortion wars. State legislatures can now turn private citizens into “enforcers” of pretty much any goal–and not just conservative ones. The decision effectively approves a federalism on steroids, and the unraveling of the “United” States.

I used to explain to my students that one of the salutary effects of the incorporation of the Bill of Rights was that it ensured a “floor”–so that when someone moves from New York to Alabama or Texas, they don’t suddenly lose their right to religious liberty or free speech or their protection against unreasonable search and seizure..

This case strikes a terrifying blow against that principle.

I titled this post “a perfect storm” because the Supreme Court’s abandonment of fifty years of precedent is only one of the truly existential challenges we currently face.

It is no longer possible to pretend that climate change is some sort of elitist, liberal theory that can safely be ignored. Fires in California (now threatening Nevada), increasingly powerful hurricanes battering not just Louisiana but causing flooding and chaos all the way to New England, the continuation of “extinctions” threatening to disrupt the global ecology…the list goes on. There are some valiant efforts underway to combat climate change, but the likelihood is that even if those efforts manage to moderate its effects, there will be enormous disruptions of global life–including  famines and massive population movements.

Then, of course, there’s the pandemic. Two pandemics, actually–COVID and insanity. The insanity makes it highly likely that COVID won’t be the last disease to decimate populations around the world.

Speaking of insanity, Leonard Pitts reminds us of the rising tide of rightwing violence.

While it’s unlikely we’ll see regional armies clashing as they once did at Antietam and Shiloh, is it so hard to imagine the country descending into a maelstrom of conservative terrorism, the kind of hit-and-run asymmetric warfare — random bombings and shootings — that rocked Iraq and Afghanistan in the early 2000s? Certainly, the weapons and the sense of grievance are there.

On top of all of this, outdated elements of  America’s legal architecture are impeding our ability to confront these challenges. In a recent, very important paper by Will Wilkinson of the Niskanen Center (I will have much more to say about his paper in future posts), Wilkinson concluded his analysis of what he calls “The Density Divide” with a recitation of the mismatch between America’s population realities and that framework.

As Wilkinson notes, our Constitutional system has a strong small-state bias, “which effectively gives extra votes to topsoil in low-population states.” In a country where 50 percent of voters identify or lean Democratic and 42 percent identify or lean Republican–a Democratic advantage of some 18 million voters– the GOP has erected “an imposing fortification” through gerrymandering, voter ID laws, voter-roll purges…the list goes on.

Wilkinson underscores what many others have said: we desperately need structural reforms and especially strong new legislation protecting voting rights. What he doesn’t say–since his paper was written before the Court’s recent assault on the supremacy of the Constitution–is that such protection must be nationally enforceable.

This “perfect storm” has created a genuinely existential moment. It is no longer possible to ignore the fact that American governance by We the People is teetering on a dangerous edge. The question is: can a nation burdened with a substantial minority of QAnon-believing, MAGA-hat wearing, Ivermectin-ingesting, Confederacy-loving citizens–many if not most of whom are White racially-resentful rural residents empowered by outdated electoral structures– rise to the challenge?

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