Splinters in the 6-3 Supreme Court (Part 5: Clarence Thomas cont'd)

Credit: @realDonaldTrump

In Part 5 of this series, we saw that Justice Clarence Thomas broke with other political conservatives on the Court--sometimes joined by one of them--to dissent against a majority consisting of both liberal Democratic and conservative Republican appointees. In those cases, we saw that he argued against gun restrictions on domestic abusers, against restrictions on weapons-parts kits or "ghost guns," and against restrictions on assault weapons. He argued against workplace safety standards promulgated by the Occupational Safety and Health Administration, and he even contended that the statutes providing for the GI Bill should be construed narrowly to limit veterans' benefits.

Connect the dots!

Here are a few additional recent cases that exhibit an unmistakable pattern:

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In his dissenting opinion in Glossip--joined by Justice Alito--Thomas protested that the Supreme Court had no authority to review the state court conviction and death sentence. He explained that here, Oklahoma's highest court in criminal appeals--i.e., the Court of Criminal Appeals--had upheld the conviction and death sentence on the basis of "adequate and independent" state grounds, not federal law. Once a state court did that, the Supreme Court had no jurisdiction, according to Thomas.

But the majority of the Court had a different view. Federal constitutional due process, guaranteed against the states through the 14th Amendment, was violated in this case. The state prosecutor had knowingly presented false evidence to the jury--i.e., the lies of the actual killer. That violated the constitutional guarantee of due process, because it deprived the death inmate of a fair trial.

The majority opinion of Justice Sotomayor was joined by the other two Democratic appointees, Justices Kagan and Jackson, as well as by two Republican appointees, Chief Justice Roberts and Justice Kavanaugh. Justice Barrett agreed with the majority regarding the due process merits of the case, but she wrote separately to argue that the state court should be allowed to reconsider the facts. (Justice Gorsuch did not participate.)

Thomas not only disagreed that the Court had power to review the decision below, but he additionally disagreed that there was any due process violation. He insisted that the false testimony made no difference in the trial.

Another death penalty case from Oklahoma:

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Justice Thomas's dissent in Andrew v. White--this time joined by Justice Gorsuch--was based on the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Under AEDPA, federal courts may not grant habeas corpus relief to a state criminal defendant unless the state court decision in the case violated clearly established federal law. According to Thomas, it is not clear under the Supreme Court's precedents that the admission of prejudicial evidence, even if it renders a trial fundamentally unfair, violates federal constitutional due process. Thomas reasoned that, while there might be some "general rule" about prejudicial evidence and fair trials, there is no "specific legal rule" that justifies habeas relief.

Beyond that, Thomas argued, as he did in Glossip discussed above, that the prejudicial evidence--here, irrelevant, inflammatory information about the defendant's sex life--made no difference. He agreed with the Oklahoma court that the evidence of guilt that was relevant was so overwhelming, that any error in admitting the prejudicial evidence was harmless.

However, the 7-2 majority, in a per curiam opinion, held that clearly established federal law had indeed been violated. As they explained, the Supreme Court had already held in several previous decisions that a "prosecutor's prejudicial or misleading statements violate due process if they render a trial or capital sentencing fundamentally unfair." Moreover, addressing Justice Thomas's argument about a general versus specific rule, the majority added that “certain principles are fundamental enough" that they can "apply with obvious clarity to the specific conduct in question.” According to the majority, that was the case here: the due process protection against a fundamentally unfair trial does not require any "interpretation or extension of this Court’s cases"--that principle is clear.

Another AEDPA case involving prejudicial evidence:

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In Davis v. Smith, Justice Thomas--joined by Justice Alito--argued in dissent that the Court should have granted certiorari, should have summarily reversed the federal appeals court's grant of habeas corpus, and should have reinstated the defendant's convictions. According to Thomas, the 6th Circuit Court of Appeals had disregarded the strict limits that AEDPA places on federal courts to invalidate state court decisions. If any "fairminded jurist" could conclude that the state court complied with Supreme Court precedents, then a federal court may not disturb the state court decision.

Here, the state's appellate court had found that the victim's identification of the defendant as her attacker was reliable. That court had rejected claims that the identification procedure in question was unduly suggestive. According to Thomas, the 6th Circuit should have accorded "substantial deference" to the state court's conclusion and affirmed its ruling, just as AEDPA requires. Instead, the 6th Circuit criticized the state court for merely citing Supreme Court precedent without providing an explanation of how it was applied. But Thomas insisted that "a state court need not explain its reasoning at all;" a federal court should focus only on the state court's "bottom-line decision.”

The 7-2 majority had a different view. It did not believe that the 6th Circuit's decision needed to be reversed and the convictions reinstated. Indeed, despite Justice Thomas's arguments to the contrary, there were pretty obvious reasons to leave the 6th Circuit's decision alone. Even as Thomas had recounted the facts in his dissent, the way in which the defendant was identified seemed to irreversibly taint the state prosecution's case and to constitute reversible error.

As Thomas acknowledged, the victim had been visited by a police officer while she was recovering from her injuries. The officer told her, “I think I found out who did this to you.” The officer then showed the victim a photo of the defendant. He told the victim that the defendant's DNA was found in her home, and that the defendant is “very violent” and “hoping you’re dead.” At some point, the victim responded that she either dreamt or remembered that the defendant had attacked her. 

The 6th Circuit found that the police conduct in getting the victim to identify the defendant as her assailant was irreparably suggestive. The Supreme Court's seven-Justice majority--the three liberals and four of the conservatives--chose not to disturb that conclusion. Thomas disagreed and insisted that the 6th Circuit had to be reversed and the state court convictions upheld.

Two of Justice Thomas's dissents came in other criminal law-related cases, where municipal law enforcement was sued for constitutional violations:

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In his dissenting opinion in Chiaverini, Justice Thomas--joined by Justice Alito--repeated an argument he had made in an earlier case, that a claim of malicious prosecution was not a 4th Amendment claim. Therefore, according to Thomas, it could not be the basis for a §1983 lawsuit that a constitutional right had been violated. A malicious prosecution, Thomas insisted, bore little resemblance to an unreasonable seizure, which is what the 4th Amendment prohibits. 

Thomas elaborated that a baseless prosecution is the essential ingredient of the tort of malicious prosecution. A baseless detention is something entirely different. For that reason, regardless of any baseless arrest or baseless pretrial detention alleged in this case, the claim of malicious prosecution does not fit a claim of a 4th Amendment violation. (Justice Gorsuch wrote a very brief, separate dissenting opinion, similarly arguing that the common law tort of malicious prosecution was not the same as a 4th Amendment violation.)

That formalistic argument of Thomas (and Gorsuch) was readily dismissed by the 6-3 majority. Speaking through Justice Kagan, the majority explained that a §1983 malicious prosecution lawsuit, such as the one brought in this case, is in fact based on a 4th Amendment unreasonable seizure. It is based on an arrest and detention unsupported by probable cause to believe a crime had been committed. Stated otherwise, the “gravamen” of such a §1983 wrongful prosecution claim is “the wrongful initiation of charges without probable cause” that results in an illegal arrest.

The specific issue in this appeal was actually something different. It was whether the §1983 lawsuit, based on an arrest and detention on unfounded charges, was defeated if there was a charge that was supported by probable cause. The majority answered no; the cause of action still survives. As illustrated by the majority: the 4th Amendment is violated "if an invalid charge—say, one fabricated by police officers—causes a [pre-trial] detention either to start or to continue." Those were the facts alleged here. 

That allegation was not disputed by Thomas. (Or by Gorsuch.) Instead, Thomas dissented to complain that the §1983 cause of action, as upheld by the majority, "mixed...legal frameworks.

Thomas dissented on similar formalistic "legal frameworks" grounds in another §1983 case:

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An 8-1 majority in Gonzalez v. Trevino reaffirmed its rule regarding retaliatory-arrest. That is, an unconstitutional arrest can occur even when there is probable cause. If others who had engaged in the very same misconduct were not arrested, then the arrest of an individual to retaliate for that person's protected expressive activities would violate the 1st Amendment. That was precisely the basis for the §1983 lawsuit here.

All of the Justices except Thomas joined the Court's per curiam opinion. (Justices Alito, Kavanaugh, and Jackson also wrote separately to elaborate.)

In dissent, Thomas argued that any probable cause to arrest, no matter if others were charged or not, should defeat a retaliatory claim. Similar to his formalistic protest in Chiaverini discussed above, Thomas insisted that a constitutional claim for retaliatory arrest must be based on the same essential element as its common law analogues of false imprisonment, malicious arrest, and malicious prosecution. They all require the lack of any probable cause. Moreover, according to Thomas, an improper retaliatory motive makes no difference. For Thomas, the only legitimate focus is the manner in which the process is executed, not the underlying purpose for executing it.

Thomas's usual ally, Justice Alito, authored a concurring opinion further clarifying the reasons for the majority's ruling. He repeated what the Court had explained in an earlier decision: officials "might exploit the arrest power as a means of suppressing disfavored speech." Thomas wanted that precedent overturned in order to render the motive for an arrest irrelevant. 

Connecting the dots: In each of the criminal appeals, Thomas sided with the prosecution, even when it knowingly presented false evidence, even when it presented highly inflammatory and irrelevant evidence, and even when it relied on a victim's identification of the defendant that was irreparably tainted by police suggestion. In the §1983 cases, he sided against individuals whose constitutional rights were violated, whether the individual was arrested and detained on baseless charges, or whether the individual was charged with an otherwise unenforced charge in retaliation for disfavored political speech.

In all of the cases discussed in this and the preceding installment in this series, Justice Thomas dissented against majorities that included not only the liberal Democratic appointees on the Court, but customary conservative Republican allies as well. And what did he consistently disagree with? In all of these dissents, he disagreed with rulings intended to protect against gun violence or against constitutional violations. Firearms in the hands of domestic abusers, assault weapons, untraceable "ghost guns," fundamentally unfair criminal trials, hopelessly tainted identifications, and highly inflammatory irrelevant evidence--Thomas took issue with decisions upholding protection against each of these.

To be sure, Thomas did articulate legal arguments in support of his positions in all of his dissents. And unless one is ideologically blind, it must be acknowledged that the majority could legalistically have decided these cases either way. Whether wisdom and equity would strongly favor one decision over the other is a separate, if perhaps the most critical, consideration in these legally-close cases.

With that in mind, the specific point here is that, whatever the wisdom and equity of the majority in each of the cases discussed, Thomas's sympathies lay more with unabridged gun rights than with protection against gun violence, and more with unimpeded prosecution of crime than with the constitutional rights of the accused. And Thomas's record evinces such sympathies to be much more unwavering than those of other political conservatives on the Court.

Splinters in the 6-3 Supreme Court (Part 4: Clarence Thomas)

Credit: Evan Vucci/AP

Clarence Thomas is a different story from Amy Coney Barrett.

We've been seeing how Justice Barrett has emerged as an increasingly moderate voice on the Court. In some of the Court's most important cases, she has disagreed with the more politically conservative positions taken by the majority or by justices in dissent, and she has even sided with the Court's liberals.

[As mentioned in Part 3 of this series, this is now being noticed by other commentators, and some political conservatives are distressed. See the several commentaries cited in that post, as well as in another recent one: David Lat, Amy Coney Barrett Is the Most Interesting Justice on the Court, Bloomberg Law, July 2, 2025, https://news.bloomberglaw.com/litigation/amy-coney-barrett-is-the-most-interesting-justice-on-the-court .]

In sharp contrast, there seems to be no flexibility from Justice Thomas. If anything, his record demonstrates a deepening political conservatism and suggests a contempt for other political conservatives on the Court who sometimes stray from the party line.

One need only take a look at some of the cases in which Thomas wrote a dissenting opinion. Sometimes, one or two of the Court's other most politically conservative justices joined his dissent. Oftentimes, no one did.

Just connect the dots of Thomas's dissenting opinions in these recent cases:

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Dissenting alone in U.S. v. Rahimi, Thomas argued that the federal law, prohibiting firearm possession by someone subject to a restraining order for domestic violence, violated the 2nd Amendment. Thomas had written the majority opinion for the Court two years earlier in New York State Rifle and Pistol Assn. v. Bruen. There, he asserted that a gun restriction was invalid unless it had a historical antecedent at the time the 2nd Amendment was ratified. This domestic violator law had none.

Thomas's Bruen test differed from the so-called "strict scrutiny" test that the Court typically applies to protect a fundamental constitutional right--i.e., is the law necessary for a compelling reason? [Think mandatory smallpox vaccinations during an epidemic despite personal religious objections.] In Rahimi, the next major gun rights case after Bruen, Thomas lost the majority. In Rahimi, he protested that the rest of the Court was disregarding his historical test from Bruen. [As could well have been expected.] Alone in applying his Bruen test literally, Thomas insisted that prohibiting firearm possession by a domestic abuser was unconstitutional because such a law did not exist in 1792.

Writing for the Court in Rahimi, Chief Justice Roberts reasoned that there were analogous laws applicable to violent persons in existence historically. Moreover, such laws were confirmed by "common sense." That was not sufficient for Thomas.

Another gun rights case:

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In VanDerStock, as in Rahimi, Thomas dissented in a solo opinion. (Justice Alito also dissented, but he did not join Thomas's opinion.) Thomas insisted on a narrower meaning of "firearm" that would be subject to the congressionally authorized regulations of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). In Thomas's view, it could not include weapons parts kits or "ghost guns."

Thomas protested that only an object that is already a “weapon” could constitute a regulable "firearm." Disagreeing with the majority opinion authored by Justice Gorsuch [Who is not exactly an enthusiast of gun restrictions.], Thomas argued that a weapon parts kit could not be viewed as a "firearm" until after it was converted into an operable gun--i.e., until it is “something to fight with.” Consequently, according to Thomas, the ATF had no authority under the Gun Control Act of 1968 to regulate "ghost guns" or anything else that was not already a functioning weapon.

In yet another gun case:

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Thomas issued another lone dissent in Snope. (Justices Alito and Gorsuch did not join Thomas; they simply noted that they dissented.) He would have granted certiorari in order to review the "surprising conclusion" of the 4th Circuit Court of Appeals that there was no fundamnetal right to possess so-called "assault rifles." Thomas argued that AR–15s are unquestionably “arms" within the meaning of the 2nd Amendment. There was no “historical regulation” that was sufficiently like Maryland’s ban which could serve as a constitutionally valid 2nd Amendment exception. 

In Thomas's view, "assault rifles" like AR–15s easily fall within the category of protected arms. He reasoned that "[t]ens of millions of Americans own AR–15s, and the “overwhelming majority” of them “do so for lawful purposes, including self-defense and target shooting.” That settled the question for Thomas. Accordingly, he would have reviewed and reversed the 4th Circuit's decision and invalidated the Maryland law.

As in Snope, Thomas wrote some of his most revealing dissenting opinions when the majority simply rejected a petition for certiorari--i.e., choose not to hear an appeal. Here's another one:

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Again in Allstates, Thomas wrote a lone dissenting opinion. Gorsuch noted that he also dissented, but neither he nor anyone else joined Thomas's dissent.

Allstates, a nationwide industrial general contractor that is required to comply with the workplace safety standards set by OSHA (the Occupational Health and Safety Administration)--and has been fined in the past for violations--challenged the agency's authority. Its legal claim was that Congress violated the Constitution by creating an agency to exercise legislative powers--i.e., to promulgate regulations.

The federal circuit court below upheld OSHA's authority to set workplace safety standards, and a 7-2 majority of the Justices rejected Allstates' petition to appeal. Congress's authority to delegate powers to independent agencies has been settled in numerous Court decisions since the New deal era. But it has recently come under attack by anti-regulatory groups, by their Republican allies, and even by some justices. Thomas is one of them.

He argued in dissent that the Court should hear the appeal and limit OSHA's workplace safety authority. According to Thomas, the Court's precedents violate "the Constitution’s allocation of legislative power to Congress." Hence, the Court needed to take the case to "reconsider [its] approach" to delegating regulatory authority to agencies such as OSHA.

Around the same time that Thomas sought to undo OSHA's workplace safety regulations, he dissented from the majority's generosity toward military veterans:

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In Rudisill, Thomas's dissenting opinion was joined by Alito. The Court's 7-2 majority, speaking through Justice Jackson, held that the governing statutes allowed veterans who are eligible for educational benefits under both the earlier "Montgomery" and later "Post 9/11" GI Bills to switch from the former to the more generous latter. Additionally, for those veterans being eligible under each of these GI Bills, the benefits would extend from the 36 month limitation appilicable to each one to a total aggregate period of 48 months. Jackson added that, in any event, the "pro-veteran canon" would apply if the statutory provisions were ambiguous.

Thomas, while on the one hand saying that "the statute’s text [is] complicated," nevertheless insisted that it was "ultimately unambiguous" in denying a veteran's entitlement to a 48 month benefit period. Wading through the different subsections of the governing provisions, Thomas argued that, under §3327(d)(2)(A), a veteran who switches to Post 9/11 benefits is entitled only to "the amount [of time] he had remaining for his Montgomery benefits"-- despite separate entitlements to both GI Bills due to multiple periods of service.

Thomas concluded with the additional argument that, even if the statute were ambiguous--in his view it categorically was not [Does the 7-2 divide suggest otherwise?]--the pro-veterans canon of interpretation should not apply. He took issue with "whether this purported canon should ever have a role in our interpretation."

Thus far, in the five cases discussed, we've seen Thomas opposing laws that prohibit firearm possession by domestic violators, opposing the regulation of weapons parts kits or "ghost guns," opposing laws prohibiting the possession of assault rifles, opposing OSHA's workplace safety regulations, and opposing a generous interpretation of the GI Bills. Let's be clear, in none of these cases was there an unequivocal dictate that he take the positions he did. That being so, why?

This hardening ideological jurisprudence--which has increasingly separated Thomas to the right of other political conservatives on the Court--will be equally evident in the next installment in this series. We'll look at his dissenting opinions in several criminal cases and one involving a claim of religious discrimination. No one who follows the Court will be surprised at Thomas's positions in these cases.

The No-Longer-Just-Leaked Opinion--Constitutional Nonsense Revisited (Part 4)

The now-official opinion by Justice Samuel Alito for the Supreme Court in Dobbs v. Jackson Women's Health Organization, overturning Roe v. Wade and eliminating any right to choose an abortion, repeats what we've seen previously when the draft was leaked:

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.

As discussed in previous posts on New York Court Watcher, this argument is utter nonsense and dangerous. (See The Leaked Opinion--Constitutional Nonsense Revisited [Part 1], in which we looked at "it's-not-in-the-text" of the Constitution; [Part 2], in which we considered "deeply rooted in this Nation's history and tradition;" and [Part 3], in which we examined Alito's assurance that his opinion applies only to abortion and that there's no reason to be concerned about any other rights.)

To recap very briefly, as explained in Part 1, most fundamental rights are nowhere mentioned in the text of the Constitution. The document is absolutely not a catalog of rights. It nowhere mentions, for example, the right to marry, the right to be intimate with one's partner, the right to have children, the right to have a friend, etc., etc., etc. Indeed, Alito's argument--now the argument of the Court--was prominently feared by the Framers of the Constitution and nearly defeated adding a Bill of Rights: the fear that mentioning any rights might be the basis for denying others not mentioned. That fear has now been realized and forms the primary basis in the Court's decision today to reject the right to choose an abortion.

As explained in Part 2, the secondary argument, relying on the country's history, could be used to support racial segregation and discrimination against women, as well as the criminalization of interracial marriage, the use of birth control, and gay and lesbian intimacy. All of those were an entrenched part of this Nation's history and tradition from the time of its founding until overruled by the Court in more recent times.

And in Part 3, the notion that this opinion applies only to the right to an abortion and to no other right was shown to be as much nonsense as the text and history arguments. Those were the same arguments made to the Supreme Court against any right to use birth control and to equal protection for women. The same arguments to uphold criminal laws against gays and lesbians, including against same-sex marriage. Indeed, these were the same arguments to uphold racial segregation and criminal laws against interracial marriage. Are these arguments now being revived, but only to be applied against rights the current conservative majority of the Court dislikes?

Well, Justice Thomas for one has made clear where the arguments embraced by the Court necessarily take it:

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.

The Leaked Opinion--Constitutional Nonsense Revisited (Part 3)

Here's the final installment in this series. Preparing an article on overturning precedent and grading final exams and papers are the culprits for the delay.

Justice Samuel Alito
Al Drago/Bloomberg via Getty Images

We've previously looked at Justice Alito's two main arguments against a woman's right to choose an abortion. In Part 1, we looked at "it's-not-in-the-text" of the Constitution; in Part 2, we considered "deeply rooted in this Nation's history and tradition." We now turn to his assurance that his opinion applies only to abortion and that there's no reason to be concerned about any other rights.

As Alito put it:

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?

Consider the essence of Alito's arguments. He doesn't conceal it. He says the same things repeatedly. And for him, what he repeats is proof beyond any doubt that the Constitution does not support a woman's right to choose. But it's more than that. For him, the Constitution's text and tradition affirmatively repudiate the notion of any such right.

As he must, Alito addresses the Constitution's explicit protection of "liberty." It's there in the 5th Amendment against federal violations, and in the post-Civil War 14th Amendment against violations by the states. So what to make of "liberty?"

Here's the essence of Alito's arguments--his proof positive that there can be no constitutional right for a woman to choose: the meaning of "liberty" is strictly limited to the legal understandings and decisions of the past; and it is illegitimate for the  Court to disrupt this past.

So, a cramped view of a fundamental constitutional concept, based on a legal past that binds the Court.

For Alito, that is axiomatic. Those who sought to preserve racial segregation and anti-miscegenation laws urged the same thing. More recently, it has been--and still is--relied upon by those who have denounced any private right to use contraceptives and equal rights for LGBTQ persons, and have even disputed the application of equal protection to women.

Let's first listen to Alito. Then we'll look at the arguments of those who contested landmark civil rights and liberties landmarks. Here's Alito:

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. 

And, for Alito, the limited understanding of "liberty" is certainly fixed by the past:

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.

Accordingly, for Alito:

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. 

Anyone who studies the Supreme Court's landmarks will find Alito's line of reasoning and insistence to be quite familiar. Certainly not because it's what the Court embraced to advance civil rights and liberties. But because it is precisely what was argued by the opponents of those constitutional protections. It's the same line of reasoning and insistence argued by those who have resisted progress on civil rights and liberties at every turn, and still do.

Think that's an exaggeration? Ok. Let's see what the state of Kansas argued to the Supreme Court in Brown v. Board of Education (1954). This is straight from the state's brief defending racial segregation:

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.

Alito could have written that brief himself. No?

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.

Alito could have written that too.

It might well be argued that there's little likelihood that the Court--even the majority of Justices in Alito's leaked opinion--is going to overrule the Brown or Loving decisions. Even though the very same arguments apply. So let's look at some other landmarks that are more likely candidates for the chopping block. Unlike Brown and Loving, the Court's decisions in these other cases are still denounced by culturally conservative jurists, politicians, and others.

Let's take Griswold v. Connecticut (1965), where the Supreme Court recognized a constitutional right to privacy protecting the freedom to use contraceptives. That decision is a regular punching bag for the "it's-not-mentioned-in-the-Constitution" crowd. Here are arguments from Connecticut's brief supporting its criminal anti-contraceptives law:

 

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.

Here's from the other dissenting opinion:

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? 

 You might as well add that there's no provision in the Constitution mentioning "contraceptives" or "birth control" or "sex." Just what Alito says about "abortion."

Now, speaking of sex, what about the Supreme Court's landmark decision in Lawrence v. Texas, 2003,  ruling that laws criminalizing gay sex are unconstitutional? To be sure, "gay sex" is nowhere mentioned in the Constitution. But neither is straight sex or sex of any sort for that matter. Nevertheless, Justices Byron White and Antonin Scalia--who, not coincidentally, are quoted frequently in Alito's leaked opinion--argued vehemently that there was no right to "homosexual sodomy," as they insisted on calling it, because it is not mentioned or implied in the Constitution. (Does anyone honestly believe that White and Scalia opposed gay rights for that reason?)

Like the decision in Griswold, to protect a privacy right to use contraceptives, the decision in Lawrence, to protect the right of same-sex couples to engage in sexual intimacy, remains extremely controversial--again, at least in culturally conservative circles. So just consider the similarities between Alito's leaked opinion and the arguments favoring criminal laws against "homosexual sodomy." This is from Texas's brief to the Supreme Court in Lawrence:

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.

Then there's this from Justice Scalia's dissenting opinion in support of the Texas law:

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?

As might be expected, those same arguments against "homosexual sodomy" were urged again 12 years later against same-sex marriage. When the Court, in Obergefell v Hodges, 2015, recognized the right of same-sex couples to marry, Justice Scalia, again in dissent, made those now all-too-familiar arguments to defend laws restricting marriage to opposite-sex couples:

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.

 

Let me refer to just one more landmark to help understand how utterly dangerous and threatening Alito's arguments are to our fundamental notions of civil rights and liberties today. Consider Reed v Reed, 1971. This was the very first decision of the Supreme Court to hold that women are entitled to equal protection under the Constitution. That's right, it was not until 1971! But still, you might think, the Court would never go back and start upholding discrimination against women again. (Although Justice Scalia, the hero of several Justices who have joined Alito's leaked opinion, insisted that the Constitution's Equal Protection guarantee did not apply to women.)

Let's look at the arguments in Reed v. Reed to uphold such discrimination. The state law at issue in that case prioritized the appointment of men over women in probating estates. Here's what the brief to the Supreme Court argued in support of that law:

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.

Yep, these arguments to deny equal protection to women are those we've seen repeatedly and the same ones in Alito's leaked opinion. Whether the arguments were made in the past to support racial segregation, or anti-miscegenation laws, or laws prohibiting contraceptives, or laws criminalizing same-sex intimacy, or laws limiting marriage to opposite-sex couples, or laws denying equal protection of the laws to women, they are of one cloth with the arguments now being made to uphold laws against a woman's right to choose an abortion.

To rephrase how I characterized these arguments at the outset, they boil down to this:

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.

The Leaked Opinion--Constitutional Nonsense Revisited (Part 2)

In Part 1, we examined the nonsensical, ahistorical, and contra-constitutional argument that "it's-not-in-the-text" of the Constitution. In short, the primary argument in Justice Samuel Alito's leaked opinion--i.e., that a woman's right to choose an abortion is nowhere mentioned in the document--misrepresents the purpose of the Constitution, which was to organize and divide powers in the new national government. Not to enumerate rights. Most significantly, Alito's argument is exactly what the Framers feared when they were considering whether to add a list of some rights to the original document. Moreover, that argument disregards the intended safeguard inserted into the resulting Bill of Rights--what would become the 9th Amendment--that the enumeration of rights was certainly not all-inclusive.

Justice Samuel Alito
Erin Schaff-Pool/Getty Images

As I've previously said, Alito is surely aware of all that. He must know how flimsy that "it's-not-in-the-text" argument is. Indeed, he acknowledges--if begrudgingly so--that there are fundamental rights the Supreme Court has recognized that are nowhere to be found in the text of the Constitution.

Alito does not necessarily take issue with unenumerated rights. At least not all of them. But he does repeatedly insist that any non-textual, unspecified constitutional right must be "objectively, deeply rooted in this Nation's history and tradition." He also repeatedly insists that the right to abortion fails that test, and he exhaustively recites a history of abortion crimes to make his point.

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?

Let's consider a few of them.

• 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?

There are so many other Supreme Court decisions protecting civil rights and liberties that do not pass one or the other or either of Alito's tests. But let's move to some landmarks that protect the rights of the criminally accused. Let's see how they hold up to the "history and tradition" test. 

As all students of constitutional law know, it is the 14th Amendment, not the Bill of Rights, that makes federal constitutional protections enforceable against the states. Its Due Process Clause, which explicitly protects "liberty," is what the Supreme Court has relied on to enforce fundamental rights. But neither "due process" nor "liberty" are defined in the 14th Amendment, or elsewhere in the document. So ever since 1868 when the 14th Amendment was adopted, the Court has been giving meaning to those terms.

Let's take a brief look at how history and tradition have dealt with "due process."

• 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.

We could go on and on with constitutional rights of the accused that were finally guaranteed against violation by the states--all in landmarks that flunked Alito's test. For example:

• 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.

Regarding that last mentioned right, as late as 2008 in District of Columbia v. Heller, the Court listed that right against excessive fines among those that had never been held to be enforcible against the states. Indeed, regarding all of those rights of the accused, the aforementioned landmark cases enforced them against the states for the first time. There had been no previous history or tradition of those rights being included within the requirements of the 14th Amendment's due process guarantee.

One final note about the history and tradition test. Alito's repeated reference to it derives from the judicial opinions of one of America's greatest judges, Benjamin Nathan Cardozo. Yes, Cardozo applied that concept in determining what was a fundamental right constitutional right. But he warned against transforming "vague precepts" of due process into "immutable principles."

Throughout his career on the bench, Cardozo made clear that history and tradition were not prescriptions for primitive or static views about the law. To the contrary, in opinions for which he is renowned, he advanced the American law of consumer rights and business ethics as well as so many other areas while on the New York Court of Appeals. He did the same with the protections of workers and retirees and the scope of constitutionally protected liberty while a Supreme Court Justice.

Perhaps most notably for the focus of this commentary, is Cardozo's famous articulation of a foundational liberty within weeks of his appointment to New York's highest court. As he put it in his unanimous opinion in 1914 in Schloendorff v. Society of New York Hosp.:

Every human being of adult years and sound mind has a right to determine what shall be done with his own body.

He was rephrasing what was already accepted as a basic doctrine of civil liberties in other state courts:

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.])

Despite the history and tradition underlying that "first and greatest right" of bodily autonomy, Alito's opinion gives it the shortest shrift, the narrowest scope. Of course, no right is absolute. But the disregard of that right in Alito's opinion, when it comes to a woman's decision whether to continue a pregnancy, is not explainable except that he picks and chooses where and how his history and tradition test shall apply. 

Clearly, Alito's "objectively, deeply rooted in this Nation's history and tradition" test, if it were truly to be applied "objectively"--and not based on ideology or partisanship or personal morality--would provide much more weight to a woman's right to choose than Alito is willing to acknowledge. And as we've already seen, his supposedly mandatory test would have precluded so many of the Supreme Court's landmarks that are now basic to American civil rights and liberties. He's not a stupid man. He knows that.

In the next post, Alito's insistence that his opinion does not affect other rights.

The Leaked Opinion--Constitutional Nonsense Revisited* (Part 1)

 *In a series of posts several years ago, I examined some nonsensical arguments that are regularly spouted, often by those who do or should know better. [Supremely Awful Arguments: Constitutional Nonsense (Part 1); (Part 2); (Part 3); (Part 4).] The leaked opinion is full of them.

Let me begin with what is usually left unsaid or ignored regarding the constitutional issue of abortion. There are two profound competing interests involved. There's the woman's interest in making her own choice about her own pregnancy, and there's the governmental and societal interest in protecting a human life that is yet to be born.

Justice Samuel Alito
Chip Somodevilla/Getty Images

It is a difficult issue that requires thoughtful, delicate balancing. Unfortunately, there is precious little such balancing in the public debate. And Justice Alito's leaked opinion evinces more stridency and vengeance than thoughtfulness or delicacy.

Consequently, and not surprisingly, the constitutional argumentation in his opinion is woefully flawed. The point here is emphatically not about whether Roe v. Wade should be overruled or upheld. That's a  separate matter. The point here is that Alito's arguments to overrule Roe and reject a woman's right to choose are nonsense. Yes, that's a strong indictment. But it's one that's deserved.

There are three main arguments in Alito's leaked opinion. Let's start with the first one that sounds so appealing, but is utter...well, a vulgarity would be most fitting, but let's just say gibberish: the text of the Constitution does not say anything about a right to abortion. 

Alito surely knows better than to make that argument. He's well aware that the Constitution is not a catalog of rights. He knows full well that the Constitution primarily organizes and divides the powers of government. He must know that we nearly did not have a Bill of Rights because the Framers were afraid that such an argument would be made. They were afraid that listing any rights in the document would lead some to argue that those not listed did not exist.

The Framers debated whether it would therefore be more dangerous to add a Bill of Rights which listed some guarantees than to simply leave out any listing at all. Ultimately they chose to include an enumeration of some of those rights that England had been violating, and then to add a provision--the 9th Amendment--that would make clear that the listing was hardly intended to be exhaustive. That a free people had lots of others that weren't mentioned.

In presenting his proposed several amendments to the first Congress, James Madison acknowledged the strength of the argument against listing some rights and the danger of doing so. He offered a provision that he hoped would solve the problem and avoid the "it's-not-mentioned-in-the-text-of-the-Constitution" argument. Well, Madison got his suggested provision--which would become the 9th Amendment. But that dangerous argument that he and the other Framers feared is still being raised. Even by the Justices, as in Alito's leaked opinion.

Perhaps Alito, other Justices, politicians, and commentators need to be reminded. Here's what Madison said as he presented a "bill of rights" to the Constitution on June 8, 1789:

lt has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enu­meration; and it might follow, by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequent­ly insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution [which became the 9th Amendment].

And yet, we still hear the nonsense. "It's-not-in-the-text." Yes, a right may not be mentioned in the text of the document, but that is emphatically not a reason to disparage a right, let alone to deny its existence. There may well be reasons to disparage or deny a right. But that most certainly is not one of them!

Just consider a few examples:

• The right of a couple--even a traditional heterosexual one--to marry? Nope, nowhere mentioned in the text.
• The right of a married couple to be intimate? Nope, not there.
• The right of that couple to kiss prior to marriage? Not that either.
• The right of a married couple to have children? Nowhere to be found in the document.
• The right of a married couple to raise their children, or even to hug them? Not mentioned.
• The right to look for work to support oneself and one's family? Nope.
• The right to have a friend? Not even that one is in the text.
• The right to join a group of friends or others with similar interests? Nope.
• The right to wave to a neighbor and say 'hello?" Not mentioned
• The right to go for a stroll? Sorry, not in the text.
• The right to donate to a favorite charity? Nah, not there.
• The right to offer your services to that charity? Not that either.
• The right to march in support of a cause? No.
• Etc., etc., etc.

And let's not leave out some rights favored by those Justices, politicians, and commentators who most frequently make the nonsensical "it's-not-in-the-text-of-the-Constitution" argument:

• The right to contribute money to a political candidate? Not mentioned.
• The right of a corporation to finance a video about a candidate? Nope. [The closest the Constitution says is "speech." That's the only relevant word James Madison used, and he surely knew its definition.]
• The right to go hunting? Nope.
• The right of self-defense in one's home? Not even that.
• The right to even choose who gets to enter one's home? Not in the text.
• The right to avoid and hate liberals for ruining this country? Nope.
• Again, etc., etc., etc.

The fact is that most of our rights, most of those liberties and privileges that are essential to a free society are not mentioned in the text of the Constitution. The document was never intended to be some all-inclusive catalog of rights. Indeed, not a catalog of rights at all.

And yet, that "it's-not-in-the-text" argument is front and center in Alito's leaked opinion. He must know it's nonsense. He must know it has little to do with whether a woman has or should have a right to choose. Maybe he is just so blinded with anger about abortion rights that he refuses to see or just doesn't care.

Next on New York Court Watcher, Alito's "it's-not-part-part-of-American-tradition" argument.

Grand Questions of the U.S. Constitution

The 2021 Albany Law Review Symposium 

 

VIDEO: https://vimeo.com/542787220

PODCAST: https://soundcloud.com/user-952955809-873766748/albany-law-review-presents-grand-questions-of-the-us-constitution

Religious Institutions Must Pay Abortion Coverage in NY (Part 3)

More Aftermath of Scalia's Dreadful Oregon v. Smith Opinion

We've previously discussed how New York's highest court, when deciding Catholic Charities v. Serio in 2006, did so with the Supreme Court's 1990 decision in Oregon v. Smith as a backdrop. The Supreme Court in Smith significantly reduced the 1st Amendment protection for religious liberty, and the New York court in Catholic Charities did likewise as a matter of its own state constitutional law. (See Part 2.) Scalia's majority opinion in Smith disowned the "compelling interest/strict scrutiny" test for free exercise of religion under the nation's Constitution, and the New York Court of Appeals rejected that test as well under the state's own law.

The Scalia majority in Smith ruled that all "generally applicable" and "otherwise valid" laws defeat the 1st Amendment guarantee of religious freedom. In its Catholic Charities decision sixteen years later, New York's high court, though claiming it was rejecting Smith as "inflexible," nevertheless quickly stated that Smith "should be the usual" rule. Beyond that, New York's court relieved the state government of having to justify its interference with religious liberty. Instead, the court required those whose fundamental right was being abridged to prove that the admittedly "serious" interference was unreasonable.

Hence, in New York, as the state's high court put it in Catholic Charities:

The burden of showing that an interference with religious practice is unreasonable, and therefore requires an exemption from the statute, must be on the person claiming the exemption.

But!
Yes, as promised in the last installment in this series, there is a "But!"

There are a few lines, immediately following those just quoted, that don't quite fit the tenor of the rest of the Catholic Charities decision. Indeed, they seem to contradict or at least confuse the very rule just adopted.

"The burden [of showing that an interference with religious liberty is unreasonable], however, should not be impossible to overcome," the court added, seemingly softening the rule it had just announced. It then asserted that some "hypothetical laws," even though "facially neutral," would be "well beyond the bounds of constitutional acceptability." Among such laws that, apparently, would be clearly unconstitutional under New York's protection of religious liberty, the court listed:

• "a requirement that all witnesses must testify to facts within their knowledge bearing on a criminal prosecution [which] if applied without exception, could abrogate the confidentiality of the confessional"
• "a general prohibition of alcohol consumption [that] could make the Christian sacrament of communion illegal"
• "uniform regulation of meat preparation [that] could put kosher slaughterhouses out of business"

(The court was quoting from Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, Harvard Law Review [1990].)

Curiously though, laws of the sort the court had listed would not be particularly unreasonable. In fact, some would seem entirely reasonable. Moreover, applying such laws uniformly--i.e., generally applicable, without the granting of exemptions--would not be particularly unreasonable either. To be sure, they would be religiously objectionable to some. But "unreasonable?" A "requirement that all witnesses must testify [in] a criminal prosecution"--unreasonable? A "general prohibition of alcohol consumption," e.g., in any establishment not licensed to serve to the public--unreasonable?"[U]niform regulation of meat preparation" for health or ethical reasons--unreasonable?

And yet, the court in Catholic Charities insisted that such laws without religious exemptions would be "well beyond the bounds of constitutional acceptability [my emphasis]." So not merely unacceptable, but "well beyond" being acceptable? Would religious objectors, then, not have to show that such laws imposed an "unreasonable" interference? Would the interference from such laws be considered per se "unreasonable?" And why those such laws?

Was the court's point that such laws, applied without exemptions, would be too drastic from the perspective of the religions affected? So Catholics would view the intrusion upon confessional confidentiality as too drastic? Christians would view the denial of wine for Sunday services as similarly too drastic? And Jews would view the prohibition of kosher slaughtering as too drastic as well? Or, after Catholic Charities, will a majority of New York's high court now decide which particular interferences with which particular religions the court views as too drastic? Or in the court's language, "unreasonable?"

So, let's be clear. It's apparently not too drastic--or "unreasonable"--to force Catholics, and others with similar beliefs, to violate their religion by paying for contraceptive insurance coverage. Apparently, according to New York's high court in Catholic Charities, denying a religious exemption from the contraceptive mandate is not particularly drastic or "unreasonable." But, apparently, it would be too drastic or "unreasonable" to deny an exemption from a criminal witness law, or an alcoholic consumption law, or an animal butchering law.

Why? Because a contraceptive mandate is more important than a criminal witness law, or an alcoholic consumption law, or an animal butchering law? Or because exemptions from a contraceptive mandate are deemed less important to the religious objectors than exemptions from those other laws would be? Is the point that some laws are more critical than others? Or that some religious exemptions are more critical? Or that these considerations are to be balanced? Or what?

And to focus on the specific matter at hand, what about an abortion coverage mandate? Is that like a criminal witness law, or an alcoholic consumption law, or an animal butchering law--all of which would require religious exemptions? Or more like the contraceptive mandate that didn't?

Is it too drastic or "unreasonable" to require Catholics, and others who believe that abortion is akin to murder or otherwise gravely immoral, to pay for abortion insurance? Would it be too drastic or "unreasonable" to deny religious exemptions--just as it would be for those other laws that the court identified in Catholic Charities? Are religious exemptions to the abortion mandate critical? Or is the abortion mandate to be treated the same as the contraceptive mandate? That is, the mandate itself to be treated as critical, while the requested exemptions for the religious objectors to be treated as less so?

Well, those are the constitutional questions presented in Roman Catholic Diocese v. Vullo.

At the trial level, the judge saw absolutely no difference between the contraceptive and abortion coverage mandates. Hence, the judge rejected the constitutional religious liberty claims for exemptions:

The Court finds the constitutional claims challenged in this case to be the same as those raised in Catholic Charities. Given the Court of Appeals addressed and rejected the same arguments, Catholic Charities is binding precedent requiring dismissal of plaintiffs’ constitutional claims in this matter. (Roman Catholic Diocese of Albany v. Vullo [January 10, 2019, Albany County])

The intermediate appeals court, the Appellate Division, saw absolutely no difference as well. The Court of Appeals decision in Catholic Charities--regarding the state's contraceptive mandate--was to be applied jot for jot to the abortion coverage mandate:

[S]tare decisis...when applied to the precise issues presented by this appeal, proves decisive here in determining the constitutional claims advanced by plaintiffs that were addressed and rejected by the Court of Appeals in Catholic Charities....The factual differences in these cases are immaterial to the relevant legal analyses that are identical in both cases. (Roman Catholic Diocese of Albany v Vullo [Appellate Division, Third Department, July 2, 2020])

That intermediate court apparently saw no distinction between contraception and abortion. No distinction between religious objectors being forced to pay for what they believe to be morally wrong as opposed to paying for what they believe to be akin to murder or similarly grave.

So the intermediate court engaged in absolutely no analysis of the importance to the state of the abortion coverage mandate or the importance to the religious objectors of an exemption. More specifically, that court never considered the importance to the state of denying exemptions to the abortion mandate versus the importance to the religious objectors of being exempted.

The intermediate court never considered whether the abortion mandate without religious exemptions is like the laws that the Court of Appeals in Catholic Charities insisted would be "well beyond the bounds of constitutional acceptability." Whether the abortion mandate is like a criminal witness law, or an alcoholic consumption law, or an animal butchering law which would constitutionally require religious exemptions. Whether more like that sort of law that would be too drastic or "unreasonable" without religious exemptions, or like the contraceptive mandate for which exemptions were denied.

Indeed, the intermediate court never even acknowledged what New York's high court in Catholic Charities had emphasized. I.e., that its rule was not absolute. That some "generally applicable" and "facially neutral" laws would be unconstitutional without religious exemptions. That such laws would be "well beyond the bounds." That religious exemptions to some laws, even if those laws are  "generally applicable" and "facially neutral," are constitutionally imperative.

No, not even a whiff of that in the Appellate Division's decision.

So now, when/if New York's highest court hears the appeal, will it merely apply the bottom-line black-letter rule from Catholic Charities mechanically and superficially, like the intermediate court did? Will it merely apply the Supreme Court's "generally applicable" and "otherwise valid" standard from Scalia's Smith opinion as "usual rule"--as the New York court labelled it in Catholic Charities? Will it merely hold, with little analysis or explanation, that "[t]he burden of showing that an interference with religious practice is unreasonable" was not satisfied by the religious objectors to the abortion mandate, anymore than it was to the contraceptive mandate in Catholic Charities?

Will New York's highest court actually explain why some laws, if applied without religious exemptions--like a criminal witness law, or an alcoholic consumption law, or an animal butchering law--are "well beyond the bounds of constitutional acceptability." And why the abortion coverage mandate is or is not like one of those laws?

Will New York's highest court explain what religious objectors must do to show that the "interference" of a certain law is "unreasonable" and therefore that a religious exemption is constitutionally required? Stated otherwise, will the Court of Appeals explain when it is that the "usual rule" applies, and when the "well beyond the bounds" rule applies?

More specifically, whether the "usual rule" applies to the abortion mandate, or whether the "well beyond the bounds" rule applies is precisely the state constitutional law question presented in Roman Catholic Diocese v. Vullo. Neither the trial judge nor the intermediate court addressed that. We'll see if New York's highest court does.