Supreme Court, Legal Feed

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Jill Lepore wrote a powerful piece at The New Yorker showing how poorly the justices are using history.  As one of our best historians, she knows history. Her piece focuses on the gun case.  If you couple this piece with the Adam Serwer Atlantic article I posted the other day, you get a good sense of the most profound confusions of these rulings.

Meanwhile, Jennifer Rubin has been on a roll over at the NYTimes with what feels like 2 or 3 columns a day.  Her latest calls for a "pro-privacy movement" to fight against the Christian Nationalism of the court majority.

Worthy Reads Following the Decisions

I'm sure like many of you I've been reading the analyses and responses since yesterday's catastrophic SCOTUS decision.  I want to highlight two here.

One is a 2019 piece by Caitlin Flanagan that the Atlantic reran today.  In it she describes what are the best arguments on both sides of the abortion divide, and the issues that all of us need to take seriously into consideration in forming our positions.  I remember reading it when it was first published, and it is worth re-reading this weekend.

The other is a somewhat cynical, but still worthy, analysis of the conservative majority's approach to law, not just on this one issue, "The Constitution Is Whatever the Right Wing Says It Is."  I have to say that I found the analysis persuasive, and therefore sad.  One hypocrisy that the article reveals is the gun case on Thursday in which the conservative majority limited how states can restrict gun rights but on Friday expanded how states can regulate women's bodies and health and moral decisions.


An initial response to reading the Opinions

When the news came down earlier today I was doing some outside activities with my son.  I finished those up and then, because weather-wise it is a glorious day in Omaha, I strung up my hammock and decided to forego what else I had planned and read the opinions.  I've long had a habit of reading SCOTUS opinions I'm interested in.  In fact, I think Roe was the first one I ever read, back in Junior High.  And I wanted to read the opinions themselves before reading any articles or analyses.  My initial thoughts, then.

Alito's majority opinion does not seem to be exactly the same as the draft opinion but similar. Will be interesting to read analyses of what changed.   It  appears to respond to some of the criticisms that arose after the leak.

I didn't realize till just now that the phrases “deeply rooted in [our] history and tradition” and whether it is essential to our Nation’s “scheme of ordered liberty" used as criteria are actually from a decision written by Ruth Bader Ginsburg. On another issue of course.

As is usually the case with reading something Alito writes (which is rarely the opinion everyone on his side signs onto), there is a coherency to the arguments but a sense that there's something wrong with the perspective, that his starting point is just off and misses something essential.  The same follows here, and is drawn out by the dissenters.  The key issue of women's equality and liberties and how that embeds within our tradition is pretty much missed completely by Alito.  Again, as if he missed the whole point of the issue and what the precedents were attempting to do.  (See far below for some general thoughts on abortion).

Thomas's concurrence is frightening. He's always been this radical minority voice, but I begin to dread that he now can sway other votes.

Kavanaugh's concurrence is interesting. And shows there isn't currently a majority to go further to the right. Which is a relief.  I do like the way the dissent skewers his opinion later.  Kavanaugh seems to have this pattern of wanting to clarify and explain vote, but his justifications often fall short.
Roberts's opinion is well done. He writes like an actual conservative. His final paragraph:
Both the Court’s opinion and the dissent display a relent-
less freedom from doubt on the legal issue that I cannot
share. I am not sure, for example, that a ban on terminat-
ing a pregnancy from the moment of conception must be
treated the same under the Constitution as a ban after fif-
teen weeks. A thoughtful Member of this Court once coun-
seled that the difficulty of a question “admonishes us to ob-
serve the wise limitations on our function and to confine
ourselves to deciding only what is necessary to the disposi-
tion of the immediate case.” Whitehouse v. Illinois Central
R. Co., 349 U. S. 366, 372–373 (1955) (Frankfurter, J., for
the Court). I would decide the question we granted review
to answer—whether the previously recognized abortion
right bars all abortion restrictions prior to viability, such
that a ban on abortions after fifteen weeks of pregnancy is
necessarily unlawful. The answer to that question is no,
and there is no need to go further to decide this case.
Wow, the dissent is something.  Very well done.
This an essential point in the dissent:
The majority would allow States to ban abor-
tion from conception onward because it does not think
forced childbirth at all implicates a woman’s rights to equal-
ity and freedom. Today’s Court, that is, does not think
there is anything of constitutional significance attached to
a woman’s control of her body and the path of her life. Roe
and Casey thought that one-sided view misguided. In some
sense, that is the difference in a nutshell between our prec-
edents and the majority opinion. The constitutional regime
we have lived in for the last 50 years recognized competing
interests, and sought a balance between them. The consti-
tutional regime we enter today erases the woman’s interest
and recognizes only the State’s (or the Federal Govern-

Liberals & the Court

An interesting essay in the Atlantic discusses the end of liberal love for the Court, but first it explains why that love appeared in the mid-twentieth century:

Fundamentally, though, many liberals loved the Supreme Court for the same reason they loved the law: a vision of universal harmony and justice brought about by reason and persuasion, not the brute forces of political power. Victory in the political arena is always incomplete and uncertain, not to mention grubby. Politics appeals to our baser instincts of greed and fear and competition—which, of course, is why it is so powerful. By contrast, law—whether through “neutral principles” or “reasoned elaboration” or elaborate moral theories, to name a few of the core organizing ideas of 20th-century legal theory—holds out the promise of something objective, something True. To win in the court of the Constitution is to have one’s view enshrined as just, not only for today but with the promise of all time.

Court's Green Light to Discriminate

This article at The Atlantic reveals part of what was wrong with the Court's ruling on the Muslim Ban and how the ruling gives the administration a green light to discriminate.  The author demonstrates how for Justice Roberts the only discrimination that is illegal is when it is explicitly stated, discriminatory effects alone don't count.  By this logic of Roberts's, most of the Jim Crow laws banned by the 1965 Voting Rights Act would be okay.

Also, the strange inconsistency (hypocrisy) of the last month:

1) Vaguely "anti-religious" statements of a minor public official in Colorado mean the baker didn't receive due process and his religious freedom was denied, yet

2) Explicitly Islamophobic statements by the President are not relevant, so no one's religious freedom was discriminated against.

Criticizing Religion

Ari Ezra Waldman makes an important critical point about this week's Masterpiece Cake Shop ruling:

Third, the opinion includes troubling conclusions. As we discussed yesterday, the Court found that statements from Commissioners sitting on the Colorado Civil Rights Commission evidenced so much anti-religious bias that they denied the Christian baker a fair, impartial hearing. But those statements don’t really evidence bias. Here was the most offending statement:

I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.

In reaction to this, the Court said, “To describe a man’s faith as ‘one of the most despicable pieces of rhetoric that people can use’ is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere.”

But that is not at all what the Commissioner did. His comment called out using religion as a pretext for discrimination. And besides, the Commissioner is one hundred percent correct. Christianity justified the HolocaustReligion was used to justify slavery. Religion was used to justify Jim Crow, apartheid, and laws against interracial marriage.

This raises an important question. If saying something true, yet critical about religion as an institution is an example of expressing hostility toward religion, then is every comment critical of religion evidence of bias? Are we never allowed to say anything negative about the harms that can be wrought by fundamentalism? It’s now hard to imagine the forces of equality getting a fair hearing if no one can say anything negative about the forces of bigotry when they use religion to justify their hatred.

Granted, Masterpiece Cakeshop is neither a huge triumph for bigotry nor a devastating loss for equality. But it is not harmless. It allowed bigotry to win today and may have several dangerous effects.

It is actually a sign of taking an argument or idea seriously to engage it in critical public discourse.  Religion is not and should not be immune from criticism.  That is how religions improve and advance like anything else.

SCOTUS & the travel ban

In this CNN article about today's SCOTUS decision on the (immoral) travel ban, the key paragraph is this one:

"That's going to be an extreme headache. Think about how the people at the border, at airports are going to make that decision," said Page Pate, CNN legal analyst. "Who is going to make this decision? If we leave it to the folks on the front line, that's just going to lead to more litigation."

SCOTUS often seems unaware of the real world implications of their decisions.  This could sow unnecessary chaos.  They should have maintained the hold until they ruled on the merits of the issue itself.

I'm reminded of something I read about Sandra Day O'Connor when she retired.  Her version of conservatism was Platonic--that the philosopher-kings should make decisions that maintained order and didn't create disruption.  The author said this is why she ultimately ruled in Casey v. Planned Parenthood for reproductive choice instead of against it as had been anticipated, because she didn't want to create chaos by overturning Roe.  

Also, there's this description of English common law I read this morning in the essay on the life of the mind by philosopher Roger Scruton:

It was there, as a member of the Inner Temple, that I first became acquainted with the common law of England, and I was astonished by what I found. The meticulously reported cases, going back over cen­turies, were not only an eloquent expression of life as my ancestors had known it, but also an illustration of thought in action. The laws governing the English, I discovered, have emerged from the judgments of the courts, and not been imposed upon the courts by government. Those brought up on Roman law or the Code Napoléon find this amazing, since they see law as a deductive system, beginning from first principles and working downward to the particular case. But common law arises as morality arises, from the desire to do what is right, not from the desire to expound the principle that makes it so. And often the principle eludes us, even when the rightness of the act is clear. Readers of Jane Austen will not need to be reminded of this. Like morality, the common law builds upward from the particular to the general. For justice is done in the particular case, and until tried in the courts, abstract principles have no more authority than the people who declare them.

The facts of the case may never have been considered before, and the judge may have no explicit rule of law, no precedent, and no act of Parliament to guide him. But still there is a difference, the common law says, between a right and a wrong decision. Thus it was in the celebrated case of Rylands v. Fletcher (1868) in the law of tort, in which water from the defendant’s reservoir had flooded the mines of the plaintiff and put them out of use. No similar case had come before the courts, but this did not prevent Mr. Justice Blackburn from giving judgment in the following terms: “We think that the true rule of law is, that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and, if he does not do so, is prima facie liable for all the damage which is the natural consequence of its escape.”

Until Rylands v. Fletcher no such rule had ever been formulated. But in Blackburn’s eyes, he was not inventing the rule; he was discovering a legal truth buried in the heart of things, bringing it to the surface, and clarifying matters that no politician had yet addressed. He thereby set the standard for environmental legislation in my country, and laid the foundations for the doctrines of enterprise liability in American law.

American law is supposed to be based on English common law, and historically common law was used to interpret our own law.  This excerpt shows both the folly of today's decision and the so-called "originalist" position of many of the current conservatives on the court.