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.

Ketanji Brown Jackson

Instead of rewriting what I've already said quite a few times in interviews on TV, radio, and podcast about President Biden's Supreme Court nominee, I thought I'd simply provide links to a few of those interviews.

In the meantime, of course, our hearts, thoughts, and support

are with the people of Ukraine.

Judge Ketanji Brown Jackson

U.S. Court of Appeals for the D.C. Circuit

Supreme Court Nominee

Photo by H2rty via Wikimedia Commons

Ketanji Brown Jackson primed to make Supreme Court history

Spectrum News 1, CAPITAL TONIGHT

Feb. 25, 2022

https://spectrumlocalnews.com/nys/capital-region/politics/2022/02/25/ketanji-brown-jackson-primed-to-make-supreme-court-history

Albany Law Prof. Vin Bonventre discusses nomination of Judge Ketanji Brown Jackson to Supreme Court

WAMC Northeast Public Radio, MIDDAY MAGAZINE

Feb. 27, 2022

https://www.wamc.org/news/2022-02-27/albany-law-prof-vin-bonventre-discusses-nomination-of-judge-ketanji-brown-jackson-to-supreme-court

Who is Ketanji Brown Jackson? Prof. Vin Bonventre Shares His Insights

Albany Law School, PODCAST

March 1, 2022

https://soundcloud.com/user-952955809-873766748/who-is-ketanji-brown-jackson-prof-vin-bonventre-shares-his-insights?utm_source=clipboard&utm_medium=text&utm_campaign=social_sharing

What's with Gorsuch?

As widely reported, Justice Neil Gorsuch has decided to go maskless on the bench. Everyone else on the Court has been wearing a mask. Well, we can't say that about Sonia Sotomayor. She has avoided the bench and participated in oral arguments remotely. Notably, she is a diabetic. Good enough reason to keep her distance from the unmasked colleague.

Relatedly, it has become pretty well known among Supreme Court watchers that Gorsuch's colleagues find him annoying, self-righteous, arrogant, and not nearly as bright as he apparently thinks. One might say insufferable. Yes, I'll say it.

Actually, none of this is new. Shortly into his tenure, Court watchers described Gorsuch as an impudent upstart who was preaching to his veteran colleagues. He quickly took to telling them that he, not they, understood the role of a Supreme Court Justice. As one observer reported about an early Gorsuch opinion, "He instructed his senior colleagues, who collectively have a total of a hundred and forty years’ experience on the Court, about how to do their jobs." [See, How Badly Is Neil Gorsuch Annoying the Other Supreme Court Justices? by Jeffrey Toobin, The New Yorker, September 29, 2017.]

Another observed that "He’s the new kid in class with his hand always up. He is in his colleagues’ faces pointing out the error of their ways, his snarky tone oozing disrespect toward those who might, just might, know what they are talking about." [See, Trump’s Life-Tenured Judicial Avatar, by Linda Greenhouse, New York Times, July 6, 2017.]

Several years into his tenure on the Court, Gorsuch remains just as smug. Dissenting last year against the Chief Justice in "an unmistakably parental tone," Gorsuch "scolded the majority." John Roberts' opinion for the Court, Gorsuch sneered, "says so little about the Constitution’s terms because so little can be said that might support its ruling.” [See, Neil Gorsuch Couldn’t Stop Complaining About the Rest of the Justices Today, by Elura Nanos, Law & Crime, Mar 25th, 2021.] 

As one long-time Court watcher, well-known for her inside sources, put it recently, "Gorsuch, from the beginning of his tenure, has proved a prickly justice, not exactly beloved even by his conservative soulmates on the court." [See, Gorsuch didn't mask despite Sotomayor's COVID worries, leading her to telework, by Nina Totenberg, NPR, January 18, 2022.]

Gorsuch seems so cocksure of his own perspectives. Less pompous and more perceptive Justices understand how difficult and close the legal questions typically are that confront the Court. There are, almost always, strong legal arguments supporting each side of the controversies that come before the  Court. But Gorsuch, even when he agrees with a result reached by his colleagues, often feels compelled to write separately to instruct them, as well as any Justices on the opposing side, of his own superior and certain description of the case and analysis of the issues. These separate writings are oftentimes snide, and not nearly as persuasive as the leading majority or dissenting opinions.

Take the case where the Court struck New York's pandemic restrictions on church attendance. [Roman Catholic Diocese v. Cuomo (2021).] The unsigned per curiam opinion for the majority was measured and, even if one disagreed, thoughtful and certainly arguable. And yet, Gorsuch couldn't help himself. Despite his agreement with the majority decision to invalidate the state's restrictions, he had to write his own opinion, taking potshots at Chief Justice Roberts who dissented in the case. He accused the Chief Justice of "a serious rewriting of history" about Roberts's reliance on the 1905 Jacobson landmark in a recent opinion, supporting similar pandemic restrictions in California. [In that 100 plus-year-old landmark, Jacobson v. Massachusetts, the Court had upheld a mandate for smallpox vaccinations against constitutional "liberty" challenges.]

The Chief Justice, perceptibly irritated with his junior colleague, responded to "One solo concurrence." Roberts's previous reliance on Jacobson, he reminded Gorsuch, was for an axiomatic proposition that “[o]ur Constitution principally entrusts ‘[t]he safety and the health of the people’ to the politically accountable officials of the states." "It is not clear," the Chief Justice added, "which part of this lone quotation [the unnamed Gorsuch] finds so discomfiting."

Gorsuch also seemed impressed with his own proof of religious discrimination in the New York restrictions. Some non-church activities were treated more favorably than religious ones, according to Gorsuch, for mere "secular convenience." He variously emphasized, for example, that, under the state's restrictions, "it may be unsafe to go to church, but it is always fine to pick up another bottle of wine." Apples and oranges anyone?

In Roberts's previous opinion that Gorsuch disparaged, the Chief Justice had explained that there are activities, like church attendance, "where large groups of people gather in close proximity for extended periods of time." And there are "dissimilar activities," which are understandably treated more leniently, "in which people neither congregate in large groups nor remain in close proximity for extended periods." The latter would, of course, include Gorsuch's picking up a bottle of wine. But, either disregarding or missing the Chief Justice's obvious distinction, Gorsuch concluded his solo opinion--i.e., no one joined him--by rephrasing his complaint about "edicts that reopen liquor stores and bike shops but shutter churches, synagogues, and mosques." Cute, but hardly analytical.

[The majority opinion, by contrast, did discuss secular activities that are more similar to church attendance.]

The point is not that the decision reached by the majority and Gorsuch was legally wrong--remember, these cases are close. Rather, it is Gorsuch's arrogant certainty in his own less-than-compelling arguments.

The point is likewise not about Gorsuch's taking politically conservative positions. Even when he takes positions that political liberals would favor, he can't seem to avoid the self-assured certainty in rather lame--and unnecessary--legal analysis.

Take his opinion for the Court in Bostock v. Clayton County (2020). Writing for the 6 to 3 majority--the 4 liberals at the time plus Roberts and Gorsuch--he concluded that the 1964 Civil Rights Act's prohibition against sex discrimination in employment necessarily prohibits discrimination against LGBTQ persons. It would have been enough for Gorsuch to simply rely on indisputable logic. That is, if a male employee romantically involved with a woman gets to keep his job, but a female employee so involved with a woman gets fired, the only difference is the employee's sex. Clear enough? Well, Gorsuch, a self-avowed disciple of the late Antonin Scalia, felt compelled to insist that the result was also dictated by originalism--i.e., the law's meaning when originally enacted.

Gorsuch spent most of his opinion arguing that "the ordinary public meaning of the statute’s language at the time of the law’s adoption" prohibited sexual orientation discrimination. The ordinary public meaning when the law was adopted in 1964 included sexual orientation? That's what Congress and the American people were thinking when discrimination on the basis of sex was prohibited almost 60 years ago?

In his dissenting opinion, Justice Samuel Alito threw Scalia's originalism right back at Gorsuch. Quoting Gorsuch's idol, Alito argued that a law's words should be given the meaning that "they conveyed to reasonable people at the time they were written." And as Alito explained, "the concept of discrimination because of 'sex'" hardly conveyed "discrimination because of 'sexual orientation' or 'gender identity'” at the time the Civil Rights Act was enacted in 1964. Gorsuch's effort to argue otherwise was "preposterous." Moreover, Gorsuch's updating the statute to reflect current values, as Alito noted, "actually represents a theory of statutory interpretation that Justice Scalia excoriated."

[An unsurprising disclosure: I do not subscribe to Scalia's interpretive methodology of originalism--whether argued by Gorsuch or Alito or Scalia himself. But I certainly do favor the result in the Bostick case, as well as the analysis on the basis of simple logic that does accord with current values and basic decency.]

Well, just maybe, Gorsuch was valiantly, if unpersuasively, enlisting originalist interpretation in the service of equal rights for LGBTQ persons because he so fervently supports them. Unfortunately. a consideration of his opinions in other cases quickly and firmly dispels any such wishful thinking.

Take his opinion in Pavan v. Smith (2017). At issue was the disparate treatment in Arkansas of same-sex married couples involving their children's birth certificates. The name of a mother's male spouse would be listed as a parent, regardless of any biological relationship to the child. But the same treatment was not extended to same-sex couples. The majority's unsigned per curiam opinion summarily invalidated the discriminatory treatment. The Court simply reaffirmed its right-to-marry decision in Obergefell v. Hodges (2015) which held that same-sex couples were entitled to marriage, and were so “on the same terms and conditions as opposite-sex couples.”

Gorsuch dissented. His complaint? While "Obergefell addressed the question whether a State must recognize same-sex marriages," he wrote, "nothing in Obergefell spoke (let alone clearly)" about birth certificates. To be fair, he specified a "birth registration regime based on biology," such as the one in Arkansas. But "this particular regime’s exceptions," as Gorsuch benignly referred to them, didn't make any difference to him. Not even the particular exception for non-biological parents at issue in this case, which just happened to be available to opposite-sex couples, but not to similarly situated same-sex couples. So was that lost on Gorsuch? Or did this unequal treatment simply not matter to him?

[Notably, even Chief Justice Roberts, who had dissented two years earlier in Obergefell, joined the majority opinion.]

Then there is Gorsuch's separate opinion in the cakeshop case. In Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), the Court--with a combination of conservative and liberal justices in the majority--ruled that Colorado had conducted an unfairly hostile hearing when it found the religiously objecting baker to be guilty of illegal discrimination for refusing to make a cake to celebrate a same-sex couple's wedding. In short, the majority of justices simply rejected the state's unfair hearing. They explicitly made clear that they were not approving the baker's--or any other business's--discrimination against same-sex couples. 

Gorsuch wasn't happy. He wasn't pleased with any suggestion that the baker had engaged in discrimination at all. He had to write his own concurring opinion. That baker, Gorsuch argued, "would have refused to create a cake celebrating a same-sex marriage for any customer, regardless of his or her sexual orientation." What? So there's no discrimination here because the baker wouldn't make a cake celebrating a same-sex wedding for an opposite-sex couple's wedding either?

Maybe Gorsuch didn't really mean that. But he repeated his argument. "Any suggestion that [the baker] was willing to make a cake celebrating a same-sex marriage for a heterosexual customer," Gorsuch noted, "would simply mistake the undisputed factual record." So he really was saying that. The baker wouldn't make a same-sex cake for gay or straight customers.

The point Gorsuch was clumsily trying to make was that the baker simply didn't want to express a certain message--i.e., a message approving same-sex marriage. (BTW, Gorsuch's senior colleague, Justice Thomas, made that argument much more clearly, in his own concurring opinion, in which he framed the issue in the case as one involving expressive freedom. Not sure why Gorsuch felt compelled to write another opinion trying to explain the same thing.) 

But whether the issue in the case was to be framed as involving discrimination or expressive freedom, Gorsuch himself could not deny that the baker's refusal necessarily resulted in the unequal treatment of same-sex customers. "To be sure," he admitted, the baker's "conduct promised the effect of leaving a customer in a protected class unserved." Well yes, isn't that the point? 

Not to Gorsuch. He just couldn't get passed the apparently brilliant decisiveness of his own argument. He repeated it again: "the baker [in this case] would have refused to sell a cake celebrating same-sex marriage to a heterosexual customer."

Does that sound like a justice opposed to sexual orientation discrimination? A justice sympathetic to LGBTQ rights? In this Colorado cakeshop case or in the Arkansas birth certificate cake?

So....

Insisting on going maskless on the bench. Instructing senior colleagues how to do their jobs. The "snarky tone oozing disrespect." The "unmistakably parental tone." The "prickly" behavior. Accusing the Chief Justice of being less than honest. Equating the conditions of church attendance with picking up a bottle of wine. Insisting that sex discrimination was publicly understood to include sexual-orientation discrimination in 1964. Arguing that equal rights for same-sex married couples did not extend to equal treatment with birth certificates. Arguing that refusing to serve a same-sex couple in celebrating their wedding was not discriminatory.

Okay, what's with Gorsuch?

Perhaps it's not much more than what a renowned, and somewhat conservative, Supreme Court scholar said to me not long after Gorsuch was appointed to fill the Scalia vacancy on the Court. "I didn't always agree with Scalia, but he was always nice to me and he was brilliant." Then he added, "But Gorsuch is a dummy."