What happened? Most obviously, the Supreme Court rushed out this opinion and forgot to check the metadata.
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Dissent or concurrence? Inside SCOTUS
Category Archives: SCOTUS
A great takedown of originalism and the current SCOTUS
From a Justice on the Hawaii Supreme Court. It’s all dicta and tangential to the case at hand but it’s still on point and worth reading.
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Constitutional law will never be the same
We are in the midst of dramatic changes in many areas of constitutional law. Thirty years ago, I wrote the first edition of a constitutional law casebook. I have just completed the seventh edition, and never has so much changed from the prior edition or since I began writing the book.
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As well it should be
A plan to save the high court from its own excesses?with bipartisan buy-in?is gathering steam. Here are the next steps to build on the unexpected momentum.
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If they don’t like their colleagues, maybe they should quit
Collegiality is scarce, and tensions are apparent.
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Be afraid, be very afraid
Sometimes an especially momentous U.S. Supreme Court term is followed by a quieter year with fewer blockbuster decisions. But that is not what we should expect when the court hands down its rulings for this term in spring 2023. Once more, the court?s docket is filled with cases of great legal and social importance that will profoundly affect the lives of many people.
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Thoughts on abortion
(I first started working on the post around the beginning of the year and kept updating it, the last time on June 5. Rather than revising yet again to take advantage of the Supreme Court’s opinion, which I don’t have time to do, I’m publishing as is.)
The overturning of Roe v. Wade. Conservatives can almost taste it. So close. Possibly as early as next spring when the Supreme Court issues its decision in Dobbs v. Jackson Women’s Health Organization, the challenge to Mississippi’s strict anti-abortion law. But beware what you wish for. The issue is fraught with danger for the Republican party.
It seems to me that there is a solid, if not overwhelming, majority in favor of a moderate position on abortion. Most people are squicked by the thought of forcing a woman to carry an unwanted pregnancy to term, especially if it resulted from rape or incest. They believe in a woman’s right to choose what to do with her own body. But only up to a point. Most people are also squicked at the thought of a late-term abortion except under the most dire of circumsances (in fact, most late-term abortions occur under such circumstances). This moderate position, allowing abortion in the early stages of a pregnancy and permitting state regulation (including prohibition) in the late stages is essentially that of the Supreme Court in Roe and Planned Parenthood v. Casey. A recent poll showed about two thirds of the public in support of Roe and against the Texas statute.
Also, extremists on both sides have locked themselves into a slippery slope argument. The pro-choice people argue that any restrictions on abortion is a step towards banning all abortions while the anti-abortion people claim that allowing any abortions is a step toward ninth-month abortions in lieu of delivery. This makes it difficult for the pro-choice people to adopt the moderate position and impossible for the anti-abortion activists. It is one thing to claim that, whatever its potential, a zygote or fetus is not yet an actual human being. But it is quite another to claim that it is an actual human being and that killing it is murder. That locks you into the extreme position from which there is no escape.
Not that the anti-abortion crowd believes that. They don’t. The proof is that while they’re eager to prosecute those who provide abortions, they’re unwilling to advocate prosecuting the women seek abortions because they know that their support among the broader public would evaporate instantly. In fact, there is only one proven way to reduce the number of abortions: reduce the number of unwanted pregnancies. The most effective anti-abortion provision ever enacted in the United States is Obamacare’s contraceptive mandate. Yet, the conservative movement bitterly opposed it. And they also support abstinence-only sex education. Pragmatically, anyone who supports policies that increase the number of abortions (by increasing the number of unwanted pregnances) must be regarded as pro-abortion.
If the pro-life movement isn’t protecting the unborn, what is it doing? What are its leaders aiming for? The control of women’s bodies? That’s no doubt part of it. There are plenty among the base who long for a return to “traditional morality,” when women were “chaste.” But I think that’s only part of it. Anti-abortionism is very lucrative, both financially and electorily. It’s about money and political power.
What then is SCOTUS likely to do with the abortion cases before it? I suspect that the Texas provision allowing private suits as a way of avoiding judicial review is a bridge too far even for the conservatives. After all, what’s to prevent a liberal state from authorizing suits against gun owners as a way to circumvent the court’s Second Amendment jurisprudence? So I expect the Texas statute to be struck down. Who knows, the decision might even be unanimous.
The Mississippi case, with its direct challenge to Roe and Casey is a tougher call. Not that the conservatives on the court have any respect for precedent. They don’t. But they must recognize the political backlash that would hit the Republicans if Roe and its progeny were to be overturned. Money would pour into the coffers of an engergized Democratic party and it could be enough to hold the House and maybe even get a true majority in the Senate (which would allow them to abolish the filibuster over the objections of Manchin and Sisema). If they are truly the partisan political hacks they are often taken for, they will decide that stare decisis means something this one time. If, on the other hand, they are just ideological hacks, who have bought into the snake oil of originalism, Roe is doomed.
There is also the possibility of a mixed decision, affirming Roe for first trimester abortions upholding the Mississippi law. Chief Justice Robers seemed to suggest during oral arguments that he was open to this approach.The question is whether he can persuade one of his conservative colleagues to join him. In that case, you might see an opinion written by Roberts with the liberals (and one conservative) joining in part and the conservatives joining in another part. Plus, of course, there might be a half dozen or so opinions concurring in part and dissenting in part.
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We may never know
It took 31 years for Deep Throat’s identity to be revealed. But that doesn’t stop the speculation. Here is one theory.
Among the debates generated by the leak of Justice Samuel Alito?s opinion in Dobbs is whether the leaker was conservative or liberal. The leak will ultimately pale in importance to the court?s decision once it is issued; the ruling will directly affect the lives and rights of tens of millions of peo
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What’s to come … maybe
“In Roe, the justices ruled the right to an abortion arose out of a right to privacy, which isn’t explicitly spelled out in the Constitution but rather assembled through the guarantees of the 14th Amendment. Over the decades, the Supreme Court has built a Jenga tower of legal reasoning around the existence of that right to privacy and how rights may be extrapolated from the Constitution. Pull out one block, like Roe, and you threaten to topple the whole thing, experts say. …
“In Roe, the justices ruled the right to an abortion arose out of a right to privacy, which isn’t explicitly spelled out in the Constitution but rather assembled through the guarantees of the 14th Amendment. Over the decades, the Supreme Court has built a Jenga tower of legal reasoning around the existence of that right to privacy and how rights may be extrapolated from the Constitution. Pull out one block, like Roe, and you threaten to topple the whole thing, experts say.”
?Any sort of civil rights or constitutional rights that people have won over the last 50 years is open for discussion. I mean, why not??
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The Supreme Court and religion
“For decades, the Supreme Court took a robust approach to the establishment clause and provided relatively weak protections under the free exercise clause. Now, though, the court is taking the exactly the opposite course, finding little that violates the establishment clause and creating robust protections under the free exercise clause. The implications of this shift are enormous.”
There is a deep political divide on the U.S. Supreme Court, and in the country, over the Constitution and religion. Liberals long have interpreted the establishment clause of the First Amendment as best understood through Thomas Jefferson?s metaphor that there should be a wall separating church and state. For decades, this was the approach taken by the Supreme Court, but conservatives reject this notion and believe the government violates the establishment clause only if it coerces religious participation or gives assistance that favors some religions over others.
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