Sunday, August 7, 2022

In Kansas, Voters Reject SCOTUS on Abortion

    In his opinion for the Court overruling the Roe v. Wade abortion rights precedent, Justice Samuel Alito may have expected a rush of public approval for reducing the courts’ role on the issue and turning it over instead to state legislatures. But the evidence six weeks later suggests that the public rejects rather than welcoming the Court’s decision.

            In fact, legislatures in several states responded quickly to the Court’s June 24 decision in Dobbs v. Jackson Women’s Health Organization to overrule Roe v. Wade and nullify any nationwide constitutional right to abortion. Legislatures in some states voted to completely ban abortions and in other states enacted laws that sharply limit the discretion for women and their doctors to consider terminating an unwanted pregnancy.

            On the other hand, however, the people of Kansas voted last week [Aug. 5] by an overwhelming margin to reaffirm the judicially recognized right to abortion under the state’s constitution and to reject the accompanying provision to authorize the state’s legislature to ban or otherwise restrict abortion rights. With more than 922,000 Kansans going to the polls to vote on the referendum, 543,855 (or 59%) voted against a proposal that the Kansas constitution be amended to remove protections for abortion rights, while only 378,466 (or 41 percent) voted in favor.

            The vote in Kansas corresponds with public opinion polls following the Supreme Court’s decision that indicated 60 percent of Americans opposed the decision to overrule Roe v. Wade. Alito seemed to appeal to public sentiment with the final paragraph in his massive, 35,000-word opinion.

“The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion,” Alito wrote, on behalf of five justices. “Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”

            Alito opened by declaring Roe v. Wade “egregiously wrong” and went through a check list of factors to consider in overruling a prior decision. It must be noted that among twenty-one justices to have served on the Court since 1973, only eight – a small minority – have ever voted to overrule Roe v. Wade, which itself was a 7-2 decision with five Republican-appointed justices in the majority.

            Never before in U.S. history has the Supreme Court withdrawn a legally protected right important to wide segments of the American populace. Nor has the Court ever before overruled a precedent after a president based his campaign and his presidency on a promise to appoint justices who would vote to overrule the prior decision. It must be stressed that this is not law, this is nothing more than politics.

            Some have interpreted the Kansas referendum as a triumph for democracy, but it is a perversion of constitutional democracy to force the people to vote to preserve a right legally protected for nearly a half-century. Imagine a hypothetical analogy in which the Court overrules Brown v. Board of Education after fifty years and gives southern school boards the right to reinstitute racially separate school systems for white and black students.

            The hypothetical post-Brown Court might explain that the Brown Court erred in finding any legally protected right to public education in a Constitution that makes no reference to education, just as Alito and the other justices declared that the Constitution makes no mention of abortion either.

            Indeed, in a concurring opinion, Justice Clarence Thomas called for overruling several other precedents, important to wide segments of the American populace: Supreme Court decisions that guarantee the right to contraception, that protect the right for private, consensual gay sex, and that guarantee marriage equality for same-sex couples.

            In his opinion for the Court, however, Alito answered Thomas by stating that the decision does not implicate any of the other substantive due process precedents that Thomas wants to scrap.  The vote in Kansas suggests that Americans are in no rush to curb the power of courts to recognize constitutional rights to privacy on such intimate subjects as contraception and marriage.

            The eventual effects of the Court’s decision will turn on the actions of legislatures in the various states, but one result is certain: a patchwork of laws on reproductive rights that differ widely from blue states to red states.

            For now, however, this much can be stated with certainty. The Supreme Court has defied public opinion, rather than serving public opinion, by overruling a forty-nine-year-old precedent that three generations of American women have counted on in planning their personal and professional lives.

            Indeed, three of the justices who joined Alito’s opinion – Gorsuch, Kavanaugh, and Barrett – all circumspectly described Roe v. Wade as settled precedent in their Senate confirmation hearings. None of them then described Roe v. Wade as “egregiously wrong,” Alito’s characterization to which they now have concurred.

Saturday, July 30, 2022

Catholic Court in Disharmony with Constitution

    When John Kennedy was campaigning in 1960 to become the country’s first Catholic president, he sought to reassure anti-Catholic voters by declaring on a Sunday interview program, “Fortunately, my conscience and the Constitution happen to be in very close harmony.” Unfortunately, that cannot be said today about the Catholic justices who form a conservative supermajority on the current Supreme Court.

            As president, Kennedy did not invoke Catholic doctrine in U.S. domestic or foreign policy and did not establish, as some anti-Catholic voters warned, a hot line between the White House and the Vatican. To the contrary, Kennedy did not consider establishing diplomatic relations with the Vatican: President Ronald Reagan initiated that step in 1984. 

The First Amendment significantly includes two religion clauses, complementary but at some tension with each other. The First Amendment prohibits legislation abridging the free exercise of religion and likewise prohibits legislation regarding establishment of religion. The Supreme Court during the 2021 term issued sharply divided rulings that allow religious believers to enlist financial and legal support from the government to support their religious practices even at the cost of the constitutional prohibition against establishment of religion.

            Kennedy took no special steps to nominate Catholic jurists to the federal bench. In fact, his two appointments to the Supreme Court were Byron White, a New Frontiersman with no outspoken views as an observant Catholic, and Arthur Goldberg, a labor lawyer appointed as the Court’s fourth Jewish justice to succeed the Jewish justice Felix Frankfurter after Frankfurter’s retirement in 1962.

Throughout his 1960 campaign, Kennedy insisted that his religion was not an issue. Today, however, the religious right has made religion a major issue in politics and in law, to the detriment of the United States’ history of religious tolerance.

In fact, as my Congressional Quarterly colleagues Peter Canellos and Josh Gerstein reported in Politico on July 8, a leading figure of the religious right enlisted evangelical leaders as part of a lobbying campaign that he called “Operation Higher Court.” Rod Schenck disclosed that over a period of several years, he enlisted twenty like-minded couples to come to Washington and entertain three of the justices – Thomas, Scalia, and Alito – over dinner and drinks while bandying about key phrases in the religious right’s advocacy on culture war issues.

            Schenck told Canellos and Gerstein that the aim was to create an ecosystem of support for conservative justices, as a way of making them more forthright in their views. As Cannelos and Gerstein explained, this previously undisclosed initiative illustrates the extent to which some Supreme Court justices interacted with advocates for the religious right as the Court was grappling with such issues as abortion and gay rights.

            Imagine the scandal that this lobbying would have engendered had it been disclosed at the time. Or, conversely, imagine the likely uproar if the Chamber of Commerce were to enlist business leaders to come to Washington for private dinners with the justices to impress on them the importance of freeing corporate America from the burdens of labor laws, job safety laws, environmental protection, and the like.

            Scalia died in 2016, but Thomas and Alito are likely to continue as justices for perhaps another decade as part of a solid Catholic majority on the Court along with Roberts, Kavanaugh, and Barrett. Together, these five – along with Gorsuch – provided the votes for the religious right to run the table during the 2021 term.

            The religious right’s biggest victory came in the 6-3 decision to eliminate the constitutional right to abortion by overruling the 1973 precedent, Roe v. Wade. As the semi-retired Supreme Court correspondent Linda Greenhouse pointed out in an article in the New York Times [July 22], it was religious doctrine, not the Constitution, that drove the decision in that case. “It was not constitutional analysis but religious doctrine that drove the opposition to Roe,” Greenhouse wrote.

            As the author of the decision, Justice Samuel A. Alito Jr. implicitly confirmed Greenhouse’s analysis by taking a victory lap, not at an American law school, but in Rome at an event sponsored by Notre Dame Law School’s Religious Liberty Initiative. It is also worth recalling that Alito was granted an honorary degree five years ago by the Catholic St. Charles Borromeo Seminary in Wynnewood, Pennsylvania.

            Alito was part of the 6-3 majority in two other major decisions in the 2021 term that stretched the Free Exercise Clause so far as to virtually eliminate the Establishment Clause. The 6-3 ruling in Carson v. Makin forced the state of Maine to provide tuition assistance to families wanting to enroll their children in private religious schools. By the same vote, the Court held in Kennedy v. Bremerton School District that a local school district in the state of Washington violated a football coach’s free exercise right by suspending him for leading a post-game prayer ritual with players on the football field itself. The decision seemingly reverses, sub silentio, the school prayer rulings from the 1960s that prohibit classroom teachers from conducting religious exercises in public school settings.

            Dissenting in the Maine school case, Breyer persuasively explained that the two religion clauses together create what he called “constitutional neutrality” that would allow religious exercise without sponsorship or interference. “[T]he basic purpose of these provisions,” Breyer added, quoting from a prior decision, was “to insure that no religion be sponsored or favored, none commanded, and none inhibited.”

With Breyer’s retirement, the role of defending his concept of “constitutional neutrality” rests with his successor, Justice Ketanji Brown Jackson, and the two other liberal justices: Sonia Sotomayor and Elena Kagan, who dissented in vain as the Court tore down the wall separating church and state.

Sunday, July 3, 2022

At #SCOTUS, Headlong Rush to Change the Law

           Supreme Court Justice Stephen G. Breyer was unaccustomedly emotional sixteen years ago as Chief Justice John G. Roberts Jr. led a newly polarized Court in limiting the ability of local school districts to engineer a measure of racial balance in public schools. Roberts wrote and led five Republican-appointed justices in holding in Parents Involved in Community Schools v. Seattle School District No. 1 (Dec. 4,  2006) that school districts cannot assign pupils to individual schools on the basis of race even to serve the compelling interest in racial diversity in individual schools.

            Those of us in the courtroom that day recall Breyer’s recounting that he had written a seventy-seven-page dissenting opinion in the case, the longest ever in his career. He summarized the opinion by speaking animatedly from the bench for more than twenty minutes, as Linda Greenhouse noted in her next-day coverage in The New York Times. “Justice Breyer made his points to a courtroom audience that had never seen the coolly analytical justice express himself with such emotion,” Greenhouse wrote.

            From the bench, Breyer included an ominous note not found in the written opinion itself. “It is not often in the law that so few have so quickly changed so much,” he remarked. Breyer had no opportunity in the 2021 term to sound a similar warning from the bench, since the justices bowed to social-distancing guidelines throughout the term by issuing decisions without ever taking the bench.

            It fell instead to headline writers and outside observers to make the point about the Court’s radically momentous 2021 term, with more than a dozen politically divided decisions that have radically reshaped American law. “High court upheaval is swift and sweeping,” the Washington Post declared in the headline atop Robert Barnes’s masterful wrap-up.

            Barnes was equally dramatic in his lead paragraph. “The avalanche of change achieved by the Supreme Court’s conservative majority this term spans the breadth of American life,” Barnes wrote. Later in his article, Barnes included an apt quote from Gregory Garre, a former acting solicitor general and frequent advocate before the Court. “Going into the term,” Garre remarked to Barnes, “the biggest question was not so much in what direction the court was headed, but how quickly it was traveling.”

            The New York Times showed with statistical evidence that the 2021 term was the Court’s most conservative since 1931. The Times’ Adam Liptak made the same point in his lead paragraph. “The Supreme Court moved relentlessly to the right in its first full term with a six-justice conservative majority,” Liptak wrote, “issuing far-reaching decisions that will transform American life.”

            Breyer might have said as much had the justices been on the bench on June 24, the day that the Court issued its precedent-smashing decision to overrule the landmark 49-year-old abortion rights decision in Roe v. Wade. The aggressive conservative majority created by President Trump’s three justices took control of the decision from Chief Justice Roberts to explicitly overrule Roe v. Wade, just as Trump had promised during his presidential campaign and as he appointed three justices in his single-term presidency.

            In a co-authored dissenting opinion that spanned sixty pages, Breyer recalled his ominous peroration from the Seattle schools case; amen, his liberal colleagues Sonia Sotomayor and Elena Kagan answered. “For all of us, in our time on this Court, that has never been more true than today,” they wrote. “In overruling Roe and Casey,” they added, “this Court betrays its guiding principles.”

            The abortion decision, Dobbs v. Jackson Women’s Health Organization, would be enough to mark the 2021 term as a disaster for the Court’s promise of “Equal Justice Under Law.” Among the other decisions crafted by the six Republican-appointed justices over the dissenting votes of the three Democratic-appointed justices was the ruling in the New York gun permit case, New York State Rifle and Pistol Association v. Bruen, that establishes a presumptive Second Amendment right to carry a weapon outside the home without any need to show an individualized reason for needing to be armed on public streets. The ruling flies in the face of the long historical tradition of local laws limiting the carrying of concealed weapons from colonial time and, indeed, even in the days of the western frontier.

The Court also split 6-3 in a decision, Kennedy v. Bremerton School District, that in effect invites public school teachers to lead religious observances in the classroom under their First Amendment right to free exercise of religion. Admittedly, the high school football coach Joe Kennedy was disciplined not for praying in the classroom, but for praying with the team on the 50-yard-line.

Among other 6-3 decisions with the same lineup, the Court in National Federation of Independent Businesses v. Department of Labor, Occupational Safety and Health Administration threw out an OSHA rule requiring employers to require employees to be vaccinated against covid-19.  In another victory for Republican Party partisans, the Court in Federal Election Commission v. Ted Cruz for Senate threw out an FEC rule limiting a candidate’s use of post-election contributions to pay off the candidate’s personal loan to his or her campaign.

What else? The justices also divided along partisan lines by ruling in Vega v. Tekoh that a suspect has no federal civil rights claim against a police officer who fails to provide Miranda warnings during custodial interrogation. The Court’s ruling in Garland v. Gonzalez established a daunting obstacle for noncitizens detained in immigration custody to seek bond hearings while contesting removal orders.