Tuesday, June 28, 2022
Friday, June 24, 2022
As we have explained, procuring an abortion is not a fundamental constitutional right because such a right has no basis in the Constitution’s text or in our Nation’s history.
in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold [the right to use contraceptives], Lawrence [the right to engage in same-sex intimacy], and Obergefell [the right to marry for same-sex couples]. Because any substantive due process decision is “demonstrably erroneous,” we have a duty to “correct the error” established in those precedents.
Of course, Justice Thomas didn't mention Brown v. Board of Education [outlawing racial segregation], Loving v. Virginia [invalidating laws against interracial marriage], or Reed v. Reed [recognizing equal protection for women]. But all of those decisions, and many others, similarly rejected arguments that the Court majority applied today to uphold restrictions on abortion and to reject any right to choose.
Justice Alito's introductory and concluding assertion is indisputably correct: Abortion presents a profound moral issue on which Americans hold sharply conflicting views. Yes. But the very same was said--and in some cases can still be said--about racial integration, interracial marriage, women's rights, gay rights, consensual adult sex, contraceptives, etc. But also about gun rights, campaign finance, affirmative action, etc. Does the existence of sharply conflicting views really mean that the Supreme Court should leave those matters to the states?
Regardless of one's views about abortion--and, as I believe is undeniable: there are profound interests on both sides--the arguments applied by Alito, and now by the Court majority, to justify denying any right to choose are nonsense. And beyond that, if they are to be taken seriously, they place other rights recognized in Supreme Court landmarks in jeopardy.
Thursday, June 16, 2022
|With Recent Appointee,|
Justice Scalia, 1986 Term
|Chief Judge DiFiore|
|Chief Judge Lippman|
|Chief Judge Kaye|
|Chief Judge Wachtler|
Wednesday, June 8, 2022
|Justice Samuel Alito|
Al Drago/Bloomberg via Getty Images
to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.
Really? Even though the entire thrust of his opinion parallels the legal arguments that have been urged against other rights? Legal arguments ultimately rejected in landmark decisions protecting those rights? Legal arguments still raised against those rights?
So, a cramped view of a fundamental constitutional concept, based on a legal past that binds the Court.
The term "liberty" alone provides little guidance.We must exercise the utmost care whenever we are asked to break new ground in this field.We must ask what the Fourteenth Amendment means by the term "liberty."The abortion right is also critically different from any other right...within the Fourteenth Amendment's protection of "liberty."It is certainly not "ordered liberty."The clear answer is that the Fourteenth Amendment does not protect the right to an abortion.
An unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law.For the first 185 years after the adoption of the Constitution, each State was permitted to address this issue in accordance with the views of its citizens.When the Fourteenth Amendment was adopted, three-quarters of the States made abortion a crime. [And again...]By the time of the adoption of the Fourteenth Amendment, three-quarters of the States had made abortion a crime. [And again...]By 1868, when the Fourteenth Amendment was ratified, three-quarters of the States, 28 out of 37, had enacted statutes making abortion a crime.
Our Nation's historical understanding of ordered liberty does not prevent the people's elected representatives from deciding how abortion should be regulated.It follows that the States may regulate abortion.Courts cannot substitute their social and economic beliefs for the judgment of legislative bodies. [To do so is...]The exercise of raw judicial power.
The laws of a majority of the states authorized segregation at the time the Fourteenth Amendment was ratified.Of the 37 states that comprised the Union at the time of adoption of the Fourteenth Amendment, 24 of them maintained legal segregation.It is a late day to say that such segregation is violative of fundamental constitutional rights.This court would be going far beyond the limits of the judicial power if, on the basis of such a record, it should reverse the trend of nearly ninety years.
What about the effort in Loving v. Virginia (1967) to save anti-miscegenation laws? This is from the state of Virginia's brief to the Supreme Court supporting its criminal law against interracial marriage:
The Fourteenth Amendment had no application whatever to the anti-miscegenation statutes of the various States.
A majority of the States which ratified the Fourteenth Amendment still maintained and enforced their anti-miscegenation laws as late as 1950.
Federal courts and State courts clearly indicated that anti-miscegenation statutes of the various States are not violative of the Fourteenth Amendment.
It is the exclusive province of the legislature of each State to make the determination for its citizens.
Judicial inquiry into the wisdom, propriety or desirability of preventing interracial alliances is completely inappropriate.
The Connecticut statute stems from the [federal] Comstock Act of 1873...which prohibited the possession, sale, or mailing of contraceptives.As of December 31, 1964 thirty states of the Union still have some statute specifically applicable to the prevention of conception.Jurisdictions that have ruled on the constitutionality of contraceptive statutes all seem to be in agreement that the regulation of contraceptives is a legitimate exercise of the state's police power to regulate public morals.[Citing, e.g., Commonwealth v. Allison, Mass. 1917 (emphasizing that the "means adopted are sanctioned by long continued usage"); People v. Byrne, N.Y., 1917 (relying of the fact that "convictions had under [an anti-contraceptives law] have never been held unconstitutional"); Lanteen Laboratories v. Clark, Ill., 1938 (noting that "after the federal [Comstock Act of 1873] was enacted, majority of the states passed statutes designed to prevent the sale of contraceptives").]
This Court dismissed [challenges to contraceptive laws in 1919 and 1938] for want of a substantial federal question.The Supreme Court may not decide the desirability of legislation in determining its constitutionality.
Agreeing with those arguments were the dissenting Justices who voted, in Griswold, to uphold the law criminalizing contraceptive use. This is from one of the dissents:
The Court [majority] talks about a constitutional ‘right of privacy’ as though there is some constitutional provision...But there is not.Every state criminal statute must inevitably curtail ‘liberty’ to some extent.
As to the First, Third, Fourth, and Fifth Amendments, I can find nothing in any of them to invalidate this Connecticut law.What provision of the Constitution, then, does make this state law invalid?
In light of pervasive State criminalization of such conduct throughout the nation's history, it could not seriously be asserted that a right to engage in homosexual sodomy was “deeply rooted in this Nation's history and tradition.”Sodomy was a serious criminal offense at common law.
It was forbidden by the laws of the original thirteen states at the time of the ratification of the Bill of Rights.
It was punishable as a crime in all but five of the thirty-seven states in existence at the time of the ratification of the Fourteenth Amendment.
Courts cannot concern themselves “with cultural trends and political movements” without “usurping the role of the Legislature.”The State of Texas has a legitimate state interest in legislatively expressing the long-standing moral traditions of the State against homosexual conduct.
Quoting approvingly from Justice White's majority opinion in Bowers v. Hardwick, 1986, where the Court had previously upheld criminal laws against "homosexual sodomy"--as, again, Scalia and White were fond of calling it:
“Proscriptions against that conduct have ancient roots.”“Sodomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights.”A right to engage in homosexual sodomy was not “‘deeply rooted in this Nation's history and tradition,’"
Scalia continued...There are 203 prosecutions for consensual, adult homosexual sodomy reported from the years 1880–1995.
There are also records of 20 sodomy prosecutions and 4 executions during the colonial period.
Texas's hand should not be stayed through the invention of a brand-new “constitutional right.”Those judgments are to be made by the people.
A lot like Alito's leaked opinion?
The [majority] opinion is the furthest extension in fact of the Court's claimed power to create “liberties” that the Constitution and its Amendments neglect to mention.
When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases.We have no basis for striking down [this marriage restriction] that is not expressly prohibited by the Fourteenth Amendment's text, and that bears the endorsement of a long tradition of open, widespread, and unchallenged use dating back to the Amendment's ratification.
Statutes specifically preferring males to females have been applied whenever they have come before the courts. [Citing numerous cases from several states dating back to 1845.]
Their constitutionality has never before been questioned.
The 14th Amendment [Equal Protection Clause] was not enacted to prohibit the enactment of laws making a distinction on the basis of sex.
There is no present legal authority for [a contrary] contention.
Nothing new can be put into the Constitution except by the amendatory process.
The remedy or remedies should be with the electorate, by state legislatures, where local conditions and needs are better known and responded to than nationally.There is nothing in the vague generalities of the Equal Protection and Due Process Clauses which empower this Court to nullify the deliberate choices of the elected representatives of the people.
Constitutional guarantees have only narrow, specific meanings; that's the way they've been viewed in the past; and the Supreme Court has no legitimate authority to give those rights and liberties any fuller effect.
Alito may insist that "Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion." But that can't be so if he is serious about his arguments. Because those are the same arguments as those that were made--and in some circles are still made--against other precedents. They are the same arguments that were made, but the Supreme Court rejected, in Brown, and Loving, and Griswold, and Lawrence, and Obergefell, and Reed--and, in fact, in most landmark decisions. Alito's leaked opinion reverses the course taken in those landmarks and he now embraces those arguments as dispositive.
Unless Alito's arguments are retracted, or distinguished away, or in some incoherent, unprincipled way made applicable to some constitutional issues but inapplicable to others, they do actually undermine other precedents. They revive the previously rejected positions urged--and still urged--against many landmark decisions.
One last thing. Many readers have surely been doing this all along. Just exchange laws against abortion for laws against racial integration, or against interracial marriages, or against contraceptives, or against "homosexual sodomy," or against same-sex marriage, or against equal rights for women. Make the substitutions in Alito's leaked opinion or in the arguments made against the landmarks. The rights in question may be different, but the arguments against those rights are the same.
Whatever one thinks about a woman's right to choose--and there are profound interests on both sides of the issue--Alito's leaked opinion is dreadfully reasoned and dangerous to civil rights and liberties.
Wednesday, May 11, 2022
|Justice Samuel Alito|
Erin Schaff-Pool/Getty Images
As with the "it's-not-in-the-text" argument, Alito must know the weakness of his fallback test. "Objectively, deeply rooted in this Nation's history and tradition"--really? He must know that every landmark civil rights and liberties decision of the Supreme Court broke with history and tradition. That's why they are landmarks.
The cherished decisions of the Court, the ones that are most celebrated by Americans and by the Court itself, those decisions that have given life to our highest constitutional ideals of liberty and justice and equality--they failed Alito's test! They never would have been delivered if the Supreme Court embraced history and tradition as the mandate Alito insists it is.
Any student of constitutional law--and, to be sure, Alito is one--should have no difficulty rattling off landmark decisions of the Supreme Court that failed his "this Nation's history and tradition" test. Does Alito actually reject those landmarks? Do the other Justices who have apparently voted with him reject those landmarks as well?
- Brown v. Board of Education, prohibiting government-sponsored racial segregation. That 1954 decision, 167 years after the Constitution was adopted, overruled the Nation's history and tradition of allowing racial segregation in this country. In fact, racial segregation was even accepted for 84 years after the explicit guarantee of equal protection was added in 1868 in the 14th Amendment. The Court in Brown famously overruled the "separate-but-equal" doctrine which it had approved in 1896 in Plessy v. Ferguson. The constitutional right against racial segregation clearly failed Alito's test. Did that make Brown an illegitimate decision?
- Loving v. Virginia, recognizing the right of interracial couples to marry. That 1967 decision--perhaps the most dreaded by those who fought against racial integration--rejected the Nation's history and tradition of anti-miscegenation laws. It took 180 years since the framing of the Constitution, and even 13 years after Brown. The Court had to overrule another decision, Pace v. Alabama, an 1883 ruling in which the Court placed its constitutional imprimatur on that long tradition in the states. Sorry, but Loving 's recognition of a right to marry for mixed-race couples flunked Alito's test. Illegitimate?
- Reed v. Reed, invalidating discrimination against women as arbitrary. That 1971 decision was the first to prohibit unequal treatment on the basis of sex. Yes, it was not until 1971, 184 years since the Constitution was adopted and 103 years since the 14th Amendment's guarantee of equal protection. This Nation's history and tradition was to accept "a wide difference in the respective spheres and destinies of man and woman [because the] natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life." (Bradwell v. Illinois, 1873.) It was nearly a century after Bradwell that the Court, in Reed, finally rejected that constitutionally approved notion of women being "evidently unfit" for the same responsibilities and rights as men. Yep, equal rights for women fails Alito's test. Illegitimate?
- Lawrence v. Texas, invalidating state laws criminalizing same-sex intimacy. That 2003 decision overruled Bowers v. Hardwick, decided 17 years earlier, which had approved the continuing "savage discrimination" [to use Judge Richard Posner's description] against gays and lesbians. That mistreatment was certainly part of this country's history and tradition. Indeed, those who vehemently oppose gay rights and the Lawrence decision argue both that the Constitution does not confer a right of "homosexual sodomy" and, moreover, that such conduct was widely forbidden since the nation's founding. Of course, whether "homosexual sodomy" is a fundamental right is hardly the issue; but, rather, whether there is any legitimate government interest that justifies criminalizing the most personal and private conduct of consenting adults. But be that as it may, the right of same-sex couples to engage in intimate conduct--just as opposite-sex couples are permitted--fails both the "it's-not-in-the-text" and the history and tradition tests. A fortiori, so does the right to marry for same-sex couples which the Court recognized 12 years later in Obergefell v. Hodges. Are both decisions now headed for the chopping block?
- Griswold v. Connecticut, recognizing a private right to use contraceptives. That 1965 decision, continually derided by opponents because a "right of privacy" is not mentioned in the Constitution, also defied the history and tradition of this country's view of contraceptives as being immoral. Indeed, such a view was enshrined in the federal Comstock Act of 1873, together with the prohibition of obscene materials, and was enforceable with criminal punishments up to 10 years imprisonment. Well, neither "privacy" nor "contraceptives" are to be found anywhere in the Constitution's text. Nor was either deeply rooted in the Nation's history and tradition back in 1965 when Griswold was decided. As with gay rights, the private right to use contraceptives fails both of Alito's tests. The chopping block?
- The right to a jury trial? For the first 100 years after the 14th Amendment was ratified--and 181 years after the Constitution was adopted--the Supreme Court allowed states to conduct prosecutions without affording the accused a right to a jury. Then in its 1968 decision in Duncan v. Louisiana, the Court overruled a string of precedents (see e.g., Maxwell v. Dow, 1900) that had consistently rejected the notion that a jury trial right was a necessary component of due process. The history and tradition of the Constitution's 14th Amendment and of the meaning of its due process provision certainly didn't win the day in Duncan. The jury right in state trials, illegitimate?
- The right to a unanimous jury? Despite the Duncan decision, the Supreme Court continued to reject the notion that a unanimous verdict was required for a conviction. It took another 52 years for the Court to rule that unanimity was a due process requirement. In its 2020 ruling in Ramos v. Louisiana, the Court overruled a couple of post-Duncan decisions--Apodaca v. Oregon and Johnson v. Louisiana, both 1972--and for the first time ruled that states must not only afford the right to a jury trial, but that state juries must be unanimous to convict. So the Supreme Court's recognition of that due process right in the 14th Amendment took 152 years and 233 years after the adoption of the Constitution. Deeply rooted in the Nation's history and tradition?
- The right to counsel? In Gideon v. Wainwright, the Court held that an accused, rich or poor, was entitled to the assistance of counsel in criminal prosecutions in state courts. Accordingly, that 1963 decision required states to provide an attorney for defendants who could not afford one on their own. The Court overruled its 1942 Betts v. Brady decision, which had adhered to the longstanding view that a defendant's rights in state courts under the 14th Amendment were not equal to those rights guaranteed in federal courts by the Bill of Rights. Specifically, state defendants were not constitutionally entitled to the same right to counsel that the 6th Amendment required in federal prosecutions. So, Gideon contravened the history and tradition of due process rights in state courts--that's 95 years of jurisprudence since the adoption of the 14th Amendment and 176 years of jurisprudence under the Constitution itself. Yep, Gideon's right to counsel flunked Alito's history and tradition test.
- Search and seizure rights were not protected against state violation until 1961 in Mapp v. Ohio
- The right against cruel and unusual punishment, not until 1962 in Robinson v. California
- The right against compulsory self-incrimination, not until 1964 in Malloy v. Hogan
- The right against double jeopardy, not until 1969 in Benton v. Maryland
- The right against a racially selected jury, not until 1986 in Batson v. Kentucky
- And more recently, the right against excessive fines, not until 2019 in Timbs v. Indiana.
Every human being of adult years and sound mind has a right to determine what shall be done with his own body.
Under a free government, at least, the free citizen’s first and greatest right, which underlies all others — the right to the inviolability of his person; in other words the right' to himself — is the subject of universal acquiescence. (See e.g., Mohr v. Williams [Minnesota Supreme Court,1905.])