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.

Gorsuch, Part 4: His (Backward and Extreme) Past IS Prologue

Then-Judge Gorsuch compiled a distinctive record on the federal appeals court.

Now-Justice Gorsuch has already begun to build another distinctive record at the Supreme Court.

They are very much the same.

Let's look at them both.

At his confirmation hearing, Democratic Senators harped on an opinion that then-Judge Gorsuch had written involving a fired truck driver. In his opinion, Gorsuch took the position that the company was within its rights to fire the trucker who had left his rig on the side of a highway--even though the trucker had done so in order to save his life, which was in danger, because he and his rig were stranded in a severe winter storm.

Whatever one might think about Gorsuch's opinion, it's actually worse, or better, depending on one's point of view. Gorsuch's opinion was a dissent. That is, his colleagues had sided with the trucker who, therefore, won the case and was vindicated. But Gorsuch apparently thought that his colleagues were so wrong, and that it was so important that the company be allowed to fire the trucker, that he authored a dissenting opinion to make public his disapproval of his colleagues' decision favoring the trucker.

At the confirmation hearing, Republican Senators, as well as Gorsuch himself, sought to downplay the Democrats' criticism. They insisted that this particular opinion did not really represent any overall bias against workers, or in favor of business, or reflect a callous indifference or ultra-conservative ideology.

Hmmmm.

The truth of the matter is this. Anyone willing to actually review Gorsuch's record as a federal appeals court judge, and willing to be honest about what that review revealed, would have to acknowledge that his trucker opinion was fairly typical--not an aberration--and that Gorsuch's record was ultra-conservative. Good or bad, that is what it was. Not moderate. Not balanced. Not neutral in any real sense of that term. But overwhelmingly, ideologically, one-sided.

Of course, that should be no surprise. That is exactly why the Federalist Society and the Heritage Foundation--too institutions that are unabashedly conservative [Again, good or bad.]--recommended Gorsuch to Trump. Nor should that be a surprise to anyone who cared to pay attention to what Gorsuch had previously said and written about the role of judges. And more to the point, about his view of judicial decision-making. In my own view, as I have written previously, it is "extreme and backward." [See Part 3; Part 2; Part 1.] 

Now that may sound good to some. That may indeed be what some believe to be appropriate for a judge. That is, a judge should strictly adhere to the past, strictly oppose judicial attempts to move the law forward, strictly insist on preserving those "traditional" values such as old school religion, free market capitalism, etc., etc.

But whether one believes that being "extreme and backward"--in that sense--is good or bad, preferable and appropriate in a judge or not, it cannot seriously be disputed that Gorsuch's record is just that. Sure, anything can be disputed, just as some of the Senators and commentators disputed any such characterization. And especially if one is entirely unfamiliar with Gorsuch's record, or if one is so ideologically motivated that Gorsuch's actual record is simply denied.

So let's take a look at Gorsuch's record. And since dissenting opinions, like Gorsuch's opinion in the trucker case, are so revealing about what the authoring judge thinks is important--i.e., important enough to disagree openly and take a stand against a majority of that judge's colleagues--let's focus on those.

We'll begin with employment law cases. They demonstrate that siding against workers, even in the most sympathetic cases, was the pattern--not the exception--for Gorsuch.

Worker/Employer
TransAm Trucking, Inc. v. Administrative Review Board: This is the fired trucker case. The majority of the appeals court held that the need to save his life necessarily justified the trucker's leaving his rig. Judge Gorsuch disagreed; in dissent he argued that the employment contract and the employer's rules did not permit the trucker to leave, regardless of the dire circumstances.

Compass Environmental, Inc. v. Occupational Safety and Health Review Com’n: The majority upheld OSHA's finding that the company committed a serious safety violation by failing to train its now-deceased employee on avoiding an electrocution hazard at work. Gorsuch dissented; he argued that the company only violated its own internal rules.

N.L.R.B. v. Community Health Services: The majority upheld the NLRB's award of backpay to workers where the employer had wrongfully reduced their working hours. Gorsuch dissented; he argued that the workers' backpay should be reduced if they had taken a "second or 'moonlighting' job" to make up for their reduced hours.

Strickland v. United Parcel Service, Inc.: The majority held that the evidence that the female worker was treated worse than her male co-workers entitled her to a jury trial on her sex discrimination claim. Gorsuch dissented on the ground that, in his view, the evidence showed that the employer harassed male workers too.

See a pattern emerging?
Let's continue with a few other civil cases.
(We'll look at criminal cases in the next post.)

Consumer Protection
Ragab v. Howard: The majority held that the plaintiff was entitled to sue the corporate defendants for violating consumer credit repair laws. Gorsuch dissented; he argued that, despite inconsistencies in the parties' several agreements, the "non-essential [procedural] terms" show that the plaintiff should be forced into arbitration.

Right to Choose
Planned Parenthood Association of Utah v. Herbert: The majority adhered to its original decision--i.e., it declined to rehear the case--in which it had ruled in favor of Utah Planned Parenthood. The latter had claimed that the governor's stated reason for stopping funding for Planned Parenthood was pretextual, and that his true motivation was to punish the exercise of constitutional rights. Gorsuch dissented; he argued on procedural grounds for a rehearing and on substantive grounds that the governor had the authority to discontinue the funding.

Church-State Separation
American Atheists, Inc. v. Davenport: The majority adhered to its original decision--i.e., it declined to rehear the case--in which it had ruled that Utah's action, erecting twelve-foot high white crosses along public highways to honor fallen state troopers, was an unconstitutional endorsement of a certain religion. Gorsuch dissented; he argued that the original decision was wrong because only an "observer [who was] biased, replete with foibles, and prone to mistake" would believe that the white crosses were endorsing a religion. [Sic!]

Green v. Haskell County Board of Com’rs: The majority adhered to its original decision--i.e., it declined to rehear the case--in which it had ruled that the erection of a Ten Commandments monument on county courthouse grounds was an unconstitutional government endorsement of religion. The proposal for the monument had been approved by the county board when a local resident told the officials that "the Lord had burdened [his] heart" to create it. Gorsuch dissented; he argued that only "the perceptions of an unreasonable and mistake-prone observer" would lead to the majority's conclusion that religion was being endorsed.
[Again, sic! One may disagree with the "reasonable observer/endorsement" test to determine a constitutional violation. But it can hardly be denied that a perfectly rational observer might well perceive that religion was indeed being endorsed by a monument to the Decalogue--presented to Moses by God--on government grounds.]

Do those dissents of Gorsuch--those occasions where he felt strongly enough to disagree openly with his colleagues and author an opinion criticizing their decision--demonstrate that he's a moderate? Neutral? Balanced? Or ideologically ultra-conservative?

In the next post, we'll look at Gorsuch's dissents in criminal cases.
(It's not hard to guess what pattern emerges. Hint: it's neither pro-accused nor moderate.)
And following that, we'll look at his record to date on the Supreme Court.
(Same.)

Gorsuch--Yes, Backward and Extreme (Part 2)

It's now Justice Neil Gorsuch, having been confirmed by the Senate following the Republicans' deployment of the nuclear option. I've been tied up with (over)commitments--not that I could have affected the outcome--but let's continue with this series because Gorsuch's record is at least as important now as it was when he was a nominee.

We saw how Judge, now Justice Gorsuch's avowed approach to judicial decision-making is "focusing backward, not forward." It's viewing constitutional rights in accordance with "what a reasonable reader at the time...would have understood the law to be." Judicial decision-making is "not a forward-looking but a backward-looking authority." Those are his words. That is his judicial creed. That is what he has reaffirmed repeatedly in speeches and writings, and applied in cases.

At first blush, Gorsuch's approach might sound perfectly reasonable. You know, it's a specie of the bromide that "judges should just apply the law and not make it." But any thoughtful consideration exposes Gorsuch's judicial creed as drastically reactionary. As a prescription for undoing our nation's cherished advances in fundamental constitutional protections.

That is no exaggeration. That is just plain fact and history. That might be his and others' preference. But that is what it is.

Gorsuch's judicial creed, which had been famously professed by his predecessor, Antonin Scalia, is part of a tradition that has opposed constitutional advances and has condemned those advances after they have been made. Yes, opposed them and condemned them--at least until those advances have become part of our culture, a cherished part of our culture, and to oppose them any longer is too embarrassing.

So, for  example, as mentioned previously [See Part 1.], the Gorsuch-Scalia creed would have precluded the landmark protections of equal rights for African-Americans, for women, for gays and lesbians, etc. Consider again the consequences if the Supreme Court had adopted the Gorsuch-Scalia approach to decision-making--i.e., looking "backward" to what the constitutional provisions meant "at the time":

•  Racial segregation would have been upheld, not outlawed--the Supreme Court in Brown v. Board of Education (1954) deliberately re-construed the 14th Amendment to prohibit segregation, contrary to what had long been permitted and to what that amendment meant "at the time" it was ratified in 1868.
• State laws preventing women from owning property or running a business or going to law school, etc., would have been upheld, not overruled--the Supreme Court in Reed v. Reed (1971) extended "equal protection" beyond what it meant "at the time" of ratification and invalidated laws that treated men better than women.
• State laws that discriminated against and even criminally punished gays and lesbians would have been upheld, not declared unconstitutional--the Supreme Court in Lawrence v. Texas (2003) held that "equal protection" and "due process" protected gays and lesbians, even though those constitutional provisions certainly did not mean that "at the time."
• And so many others, such as Loving v. Virginia (1967) [invalidating laws that prohibited inter-racial marriage]; Griswold v. Connecticut (1965) [invalidating laws that prohibited birth control]; Heart of Atlanta Motel v. U.S. and Katzenbach v. McClung (1964) [upholding civil rights laws that prohibit racial discrimination in privately owned lodging and restaurants]; West Virginia v. Barnette (1943) [upholding the right of religious-objecting Jehovah Witnesses not to salute the flag].

In every one of those landmark cases, and so many others, the Supreme Court rejected the Gorsuch-Scalia approach. Instead of confining constitutional provisions to what might have been their narrow, specific meanings "at the time" they were written and ratified, the Court gave life to the overriding, fundamental principles that those provisions reflected.

So the 14th Amendment's guarantee of "equal protection" in those cherished landmarks was not confined to "separate but equal" treatment for the newly freed black slaves. Instead, overruling Plessy v. Ferguson (1896) and breaking from the "backward-looking" "at the time" meaning of the 14th Amendment, the Court in Brown gave life to the overriding principle of equality under the law to put an end to legalized segregation of the races. Likewise, repudiating a long series of precedents that permitted disparate treatment of women, including some then-recent decisions, the Court in Reed expanded "equal protection" to invalidate gender as well as racial discrimination. And so forth.

Historically, the Gorsuch-Scalia brand of "backward-looking," "at the time," so-called "originalist-textualist" jurisprudence has always reared its head--yes, its ugly head--whenever the Supreme Court has advanced equal rights for minorities or women. Whether the Court was outlawing segregation, or protecting inter-racial marriages, or upholding the civil rights laws, or requiring that women have the same rights as men, or invalidating laws that discriminated on the basis of sexual orientation, the jurisprudence embraced by now-Justice Gorsuch has always been used to oppose those advances and to denounce them as illegitimate.

Yes, the repeated condemnation of all those cherished landmarks and so many others has been the same: "That's not what the constitutional provision meant at the time; that's not its original meaning." Fortunately for our country, that "originalist-textualist" approach has historically been rejected whenever the Court has understood that fundamental equality and fairness and decency were far more important constitutional principles than some avowed method of interpretation.

And it's not just the equal rights and privacy rights landmarks. The same is true for those landmarks that gave life to the rights of the accused. The Gorsuch-Scalia jurisprudence would have precluded those advances in criminal justice as well. We'll take a look at some of those in the next part of this series.

Gorsuch--Yes, Backward and Extreme (Part 1)

The Democrats in the Senate are right on this one. Judge Neil Gorsuch, President Trump's nominee for the Supreme Court, is indeed backward and extreme. Not necessarily him personally--I don't know him nor do I know others who do. But to be sure, his jurisprudence, as he himself has explained it and as he has applied it in deciding cases, is backward and extreme.

In fact, that is why he is supported so strongly by conservative Republicans, and other social conservatives. That is why he was placed on the list of recommended nominees from which Trump picked him. That list was produced by the Federalist Society and the Heritage Foundation, They are two very ideologically conservative organizations. They do their homework. They know his record.

Those strong supporters may not prefer the labels "backward" and "extreme." But no doubt, that is why they really like him.

Let's consider Gorsuch's own words.
Judges, he has said, should apply the law "focusing backward, not forward," in accordance with "what a reasonable reader at the time...would have understood the law to be."
And again, "judicial power" is "not a forward-looking but a backward-looking authority." In short, apply what the words originally meant.

Ah, no wonder social conservatives like him so much. Looking "backward," applying what constitutional provisions meant "at the time," as Gorsuch urges, just happens to produce decisional results that social conservatives would prefer. It's also no wonder why some of the most socially and politically conservative judges--and politicians and commentators who support them--embrace this so-called "originalism" and "textualism."

So, for example, consider the Constitution's "equal protection of the laws" guarantee. That provision has long been a major battleground between conservatives and liberals. It became part of the Constitution after the Civil War, with the ratification of the 14th Amendment in 1868.

Looking "backward," to what it meant "at the time," would certainly exclude equal rights for gays and lesbians. Certainly, in 1868, the ratification of the 14th Amendment was not meant to protect gays and lesbians. Applying the equal protection guarantee in a "backward""at the time" manner, as Gorsuch urges, would still permit laws that criminally punish private, consensual, same-sex intimacy between adults--let alone same-sex marriage. It would also permit laws that intentionally discriminate against gays and lesbians in employment, housing, restaurants, hotels, etc., etc.

That's right. The Constitution's equal protection guarantee says nothing about gays or lesbians or transgenders. And those persons were absolutely not--looking "backward"--what equal protection was about "at the time" in 1868.

Indeed, Judge Gorsuch's hero, the late Antonin Scalia--the foremost proponent of this so-called "originalist-textualist" approach that Gorsuch has ardently embraced--took exactly that position. The Supreme Court modern era decisions that have extended equal protection to gays and lesbians and same-sex couples were among the most hated and denounced by Scalia. What was Scalia's claimed reason? That the equal protection guarantee did not mean that in 1868. [Scalia on gay rights.]

But this looking "backward" and "at the time" approach goes well beyond allowing discriminatory treatment of gays and lesbians. How about women?

The equal protection guarantee was certainly not intended, in 1868, to insure equal rights for women. It would never have been ratified in 1868 if its purpose was to require that women be treated equally with men. That laws treating women differently and unequally were no longer valid. Looking "backward," equal protection of the laws for women was not what was meant "at the time." In fact, it was not until 100 years later that the Supreme Court finally did give equal protection that meaning and outlaw gender discrimination.

Again, Gorsuch's hero, the "originalist-textualist" Scalia, openly insisted that constitutional equal protection did not apply to women. And why? Because that's not what it meant when it was ratified. [Scalia on women's rights.]

Then there's racial segregation.

Equal protection was certainly not intended to end racial segregation when added to the Constitution in 1868. It would never have been ratified if its purpose was to require that African-Americans be allowed to share the same schools, restaurants, hotels, spaces on the bus and railroads, etc., with white persons. At most, "separate but equal" was as far as equal protection was intended to go "at the time." Indeed, it was not until 1954 that the Supreme Court expanded the meaning of equal protection to abandon "separate but equal' and to outlaw segregation.

So, should the Supreme Court really have looked "backward" and applied the law according to what it meant "at the time"--really? And allowed racial segregation to continue? And should judges today look "backward" and restore the racial segregation that was allowed "at the time" the 14th Amendment was ratified in 1868?

Well, of course, almost all self-avowed "originalist-textualist" judges, politicians and commentators are far too embarrassed to endorse a return to racial segregation. They will attempt to rationalize how their approach would not necessarily support that result. But it does do just that. Just as that "originalist-textualist" approach would deny equal protection of the laws to women. And--as most "originalist-textualist" devotees still do acknowledge--would undo all the gay rights and same-sex rights decisions of the Supreme Court in recent years. That "originalist-textualist" approach, looking "backward," supports a return to allowing racial segregation because it was allowed "at the time."

Of course, the same could be said for so many other constitutional guarantees--e.g., the right to the assistance of counsel, search and seizure protections, free "speech," the right to private sexual choice (even between married couples), etc., etc. Looking "backward" to what they meant "at the time," these were not the rights we enjoy and cherish today as Americans. They were much narrower, much more limited, and didn't mean then what they mean now.

We'll look at some of them in the next post.

But for now, even without looking further, it should be clear that Judge Gorsuch's approach to the law is backward--the term he himself uses--and extreme.

Justice Scalia's Record (Part 2: Women's Rights)

In Part 1, we looked at Justice Antonin Scalia's opinions in major cases dealing with religious liberty and gun rights. Again, the purpose there, and here, is neither to hail nor condemn the positions he took on those issues. I have made plain enough that I find much of his record dreadful--i.e., reactionary, hostile to some basic rights and equalities, and less than persuasive. Indeed, I am sure that many of his supposed supporters and admirers would actually be aghast at some of Scalia's positions, or at least would decline to embrace them publicly. But the focus of this series is what Scalia himself did embrace in his opinions, right or wrong, wise or foolish, popular or not.

photo: AP/Manuel Balce Ceneta 

As in Part 1, we'll review some of the most significant opinions Justice Antonin Scalia authored in cases involving major constitutional issues. We'll take an unvarnished look at the positions he took and the arguments he made. We'll direct our attention to Scalia's record on issues of equality. In this Part 2, we'll focus specifically on women's rights.
[As in Part 1, in the interest of full disclosure, I will state my agreement or disagreement with Scalia.]

Women's Rights
U.S. v. Virginia (1996): the Court's majority ruled that it was unconstitutional discrimination for women to be denied admission to Virginia Military Institute, a state institution. Scalia, dissenting by himself, argued that the exclusion of women was a legitimate state policy.
The majority took the position that governments may not treat women unequally unless there is some "important governmental objective" for doing so. In the majority's view, Virginia failed to present any such justification.
In his lone dissent, Scalia argued that it was more consistent with "our past jurisprudence" to only require some "rational-basis" for treating women differently than men. But even applying the "important governmental objective" standard, Scalia contended that the benefits of single-sex education more than sufficed to validate Virginia's decision to maintain VMI as an all male institution.

J.E.B. v. Alabama (1994): the Court's majority ruled that intentional gender-based discrimination in jury selection violates constitutional equal protection. In dissent, Scalia argued that a litigant's gender-based dismissal of potential jurors (by so-called "peremptory challenges) is not "sex-based animus," but merely the "desire to get a jury favorably disposed" to one's case.
The majority took the position that all persons have a right not to be excluded from a jury on the basis of discriminatory presumptions, whether about race or gender.
But Scalia reasoned that no group is denied equal protection if "all groups are subject to the peremptory challenge." He chided the majority for basing its decision, not on "any real denial of equal protection, but simply to pay conspicuous obeisance to the equality of the sexes."

Planned Parenthood v. Casey (1992): the Court's majority reaffirmed a woman's right to choose an abortion in the early stages of pregnancy, and it held that governments could impose some reasonable restrictions, but not an "undue burden" on that right. In dissent, Scalia rejected the notion that there was any such right, period.
The majority explained that "the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected" by the Constitution--whether "marriage, procreation, contraception, family relationships, child rearing, and education."
Scalia, "appalled" by the "outrageous arguments" of the majority's opinion, protested that the  "Constitution says absolutely nothing" about the right to an abortion. Moreover, he argued that the majority's asserted protection of "intimate and personal" decisions was equally applicable to "homosexual sodomy, polygamy, adult incest, and suicide"--"all of which," he insisted, "can constitutionally be proscribed because it is our unquestionable constitutional tradition."

[Disclosure: Not too surprisingly, I disagree with Scalia's position in each of those cases. As for the Virginia (VMI) case, it seems clear that a break from the historical 2nd class treatment of women demands that there be some genuinely strong reason for treating women differently than men, not some mere "rational" ground that Scalia preferred. As for the J.E.B. case, it is surely more than "conspicuous obeisance to the equality of the sexes" to prohibit discriminatory treatment that is based solely on a person's gender, whether in jury selection or in any other governmental function. As for Casey, Scalia's protestation that the right to choose an abortion is not mentioned in the Constitution is a preposterous constitutional argument. Most fundamental rights are not mentioned, e.g., the right to marry, to have children, to raise one's own children, to be intimate with one's spouse, to have a friend, etc., etc., etc. (See Supremely Awful Arguments: Constitutional Nonsense [Part 2]: It's not mentioned in the Constitution.) Beyond that, if there is no genuinely legitimate reason for government to prohibit "homosexual sodomy," as Scalia was fond of repeatedly calling it, then it should not be prohibited--which is precisely what the Court, over Scalia's dissent, subsequently held in Lawrence v. Texas (2003).

Notably, Scalia took positions in each of those cases that were contrary to the rights of women. Lest that observation be deemed to insinuate something unfairly, it is, in fact, consistent with views Scalia expressed off the Court. For example, in an interview in 2011--several years after his opinions in those cases--he made clear, as he did on numerous occasions, that he did not think that constitutional equal protection even applied to women: "[T]he Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that."
Scalia seemed to backtrack a bit in another interview a couple of years later--but only with cryptic ambiguity "Of course [the Constitution] covers it! No, you can’t treat women differently, give them higher criminal sentences. Of course not. What I was [previously] referring to is: The issue is not whether it prohibits discrimination on the basis of sex. Of course it does. The issue is, 'What is discrimination?'"

Indeed, in his lone dissenting opinion in the Virginia (VMI) case, Scalia supported his preference for the mere "rational basis" standard by favorably citing older decisions of the Court that had upheld state laws excluding women from jury rolls (Hoyt v. Florida [1961]) and prohibiting women from being bartenders (Goesaert v. Cleary [1948]).]

In Part 3, we'll review Scalia's positions on gay rights.