The Injustice Of Our Rights Regime

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We’ve seen the rise of the Holmes/Frankfurter theory that the Constitution protects few rights but protects them strongly. In practice that means that if a law infringes a constitutionally protected right, there is a heavy burden on the government to justify it, called strict scrutiny, but if there is no right, the law stands unless there is no rational basis for it.

Chapter 4 of Jamal Greene’s How Rights Went Wrong is titled Too Much Justice. The phrase comes from a dissent by William O. Brennan in a death penalty case, McClesky v. Kemp. McClesky showed that in Georgia, Black people convicted of killing white people were disproportionately sentenced to execution. Lewis Powell constructed a slippery slope argument to the effect that any kind of defendant might show such disproportion and then what? Brennan wrote that McClesky would die because Powell was afraid of too much justice.

San Antonio Independent School District v. Rodriguez, (1973) is similar.  The plaintiffs were the families of kids in the Edgewood district of the Defendant San Antonio Independent School District (SAISD). They claimed that the funding system for Texas school districts was unconstitutional because it effectively deprived their kids of a decent education.

Greene begins his discussion with a description of the school that the Rodriguez kids attended:

The school building was falling apart. Many of the windows were broken. Many of the teachers were uncertified and underpaid; a third of them had to be replaced every year. Temperatures in San Antonio reached the mid-80s that day, but the school had no air-conditioning. There was no toilet paper in the restrooms. A bat colony had nested on at least one floor of the school. P. 94.

Powell wrote the 5-4 majority opinion. He starts with a detailed history and description of the funding system which is based on property taxes in each district. Edgewood had the lowest property value in the SAISD. Texas capped property tax rates. Even though Edgewood had a higher property tax rate, it raised substantially less than other school districts in the SAISD. Edgewood had $356 per student compared with $596 in Alamo Heights, which had the highest property tax valuation.

Powell’s discussion of applicable law starts with a discussion of the decision below. A three-judge panel of the District Court found that the Texas funding system discriminated on the basis of wealth, that wealth was a suspect category, that education was a fundamental right, and therefore the State was required to carry a heavy burden of proof justifying this system. Of course Texas could not show a compelling reason for the funding system.

Powell rejects that analysis. He doesn’t bother with the actual facts of the case as they affect the plaintiff. His only interest is the nature of the legal rights asserted by the plaintiff.

We must decide, first, whether the Texas system of financing public education operates to the disadvantage of some suspect class or impinges upon a fundamental right explicitly or implicitly protected by the Constitution, thereby requiring strict judicial scrutiny.

Powell says the wealth discrimination shown here is unlike any other kind of wealth discrimination accepted by SCOTUS to date. Later he says the same about education as a fundamental right.

Wealth Discrimination

The lower court found that poorer people in San Antonio received “less expensive” educations that those in weather districts. It held that that was enough to find wealth discrimination. Powell says that’s simplistic. Powell says he has to find a class of disadvantaged poor people that can be defined in the customary language of equal protection cases; and then evaluate the relative — rather than absolute — nature of the asserted deprivation is of significant consequence.”

He says there are three possible ways to show discrimination.

1. People with incomes below an identifiable and relevant level, which he calls “functionally indigent” (my quotes).
2. People relatively poorer than others
3. People who live in poor districts regardlesss of their incomes.

He says he will stick to SCOTUS precedents. He offers two groups where wealth discrimination has been found. He says that in those cases, the group discriminated against was so poor they could not pay, and thus were denied a benefit available to wealthier people. We are treated to several pages of cases, an expanded form of what lawyers call string-citing. Based on this analysis, the Texas plaintiffs must be relying on Powell’s first definition of a class of poor people.

But that is no good. There are equally poor people in wealthier districts. There’s a study saying that poor people tend to live in districts with a high concentration of warehouses and industry, which would support a higher property tax rate. That’s tnot the case here.

Anyway, SCOTUS precedents require that the class be denied the benefit. Here the kids are getting an education, and some money, and that’s good enough under the Equal Protection Clause.

 … [I]n view of the infinite variables affecting the educational process, can any system assure equal quality of education except in the most relative sense. Texas asserts that the Minimum Foundation Program provides an “adequate” education for all children in the State.

Who can tell? It’s all so complicated.

The right to education

Powell says SCOTUS is committed to education as an important right. Then he says that education is just another service offered by the state. The Equal Protection Clause doesn’t require equality in that service. Powell says education isn’t a fundamental right set out in our Constitution.

It is not the province of this Court to create substantive constitutional rights in the name of guaranteeing equal protection of the laws.

Discussion

1. There’s more. Lots more. And that’s not counting the 114 footnotes. But I doubt many EW readers got far into the discussion before saying to themselves, But what about the kids going to school with BATS? The bat colony isn’t mentioned in either the SCOTUS decision or that of the lower court.  The lawyers are so wound up about the funding mechanism and court-created rules about classification that they ignored the actual outcome: kids are going to school with bats!

2. Powell gives us a slippery slope argument: if we say kids shouldn’t have to go to school with bats, we might have to say they have to be fed a nutritious meal at school.

3. Greene describes Powell’s background in some detail. Reading between the Ines, Powell seems like one of those genteel Southern Politicians, the ones who would never use the N-word in public, but can’t quite pronounce Negro, especially at the country club.

4, The 14th Amendment says in part that no state is permitted to “… deny to any person within its jurisdiction the equal protection of the laws.” How hard is it to apply that rule to kids going to school with bats?

5. This case and hundreds of others are the direct result of the refusal of SCOTUS to enforce the 14th Amendment. Instead, we get blindingly stupid holdings based on what John Roberts called the dignity of the state. A state that makes kids go to school with bats and calls that an “adequate” education has no claim to dignity.

 

Strict Scrutiny and Rational Basis Scrutiny

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Index to posts in this series

In Chapter 2 of How Rights Went Wrong, Jamal Greene introduces us to a rule of Constitutional interpretation suggested by Oliver Wendell Holmes in his dissent in Lochner v. New York (1905).  The idea is that the Constitution protects few rights, but those it protects, it protects strongly. This cashes out as the requirement that the government must show very strong grounds if it infringes a protected right, the strict scrutiny test. However, the government need only show that it has a rational basis for other legislation, the rational basis test.

Chapter 3 explains how that rule came into effect, worked for a while, and then proved inadequate. The principle driver of change was Felix Frankfurter, showing once again the importance of people and relationships in the evolution of our legal system. Frankfurter was the son of Austrian immigrants. He came to New York City in 1894 at the age of 11. He was a star student, went to Harvard Law, and began to rise in government service. Greene describes him as “An inveterate sycophant and social climber” (p, 60). One of his targets was Holmes, and over the years, Frankfurter slobbered over him.

In 1914 Frankfurter joined the law faculty at Harvard and began to advocate for the Holmes dissent in Lochner. He was in and out of government service, and became a sort of Leonard Leo figure, placing his best students in clerkships and government positions.

He forged a relationship with Franklin Delano Roosevelt during WWI when both served on a government board. The relationship grew when FDR became governor of New York.

The effort to actualize Holmes’ Lochner dissent wasn’t going well through the 1920s, as the Supreme Court repeatedly applied the rule of the Lochner majority. When FDR was elected president, Frankfurter became one of his most trusted advisers. In the early years of the New Deal, SCOTUS struck down most of the laws enacted to deal with the Depression. That led to FDR’s threats to pack the Court, and to the sudden change in the outcomes of these cases.

US v. Carolene Products Co. was an early example. In that case, the majority based its decision on Frankfurter’s view of Holmes’ Lochner dissent. Further, it expanded that rule with Footnote 4, which Greene summarizes as holding that strict scrutiny would apply in three different cases:

(1) when the law interferes with a right the Constitution specifically protects, (2) when the law restricts the political process itself, or (3) when the law discriminates against particular religious or racial minorities. P. 66.

I read Greene as suggesting  that one of the factors in Frankfurter’s advocacy was his progressive view of the need for government regulation of corporations. Footnote 4 connects that view with strong protection for minority groups.

Greene shows how this rule made its way into the leading treatises and legal textbooks, largely through the influence of people trained and steeped in Frankfurter’s views.

With minor adjustments, that remained the rule through the 50s and early 60s. That was a period of vast social change, and social unrest, as Black people, women, LGBTQ people, Native Americans, and poor people from all groups began to make demands on the legal system that went beyond the bare scope of Footnote 4.

One example of this push is Griswold v. Connecticut, which Greene discusses in detail. One of Frankfurter’s last SCOTUS decisions was Poe v. Ullman; Poe was a facial challenge to Connecticut’s ban on birth control. Frankfurter punted, saying that the statute was never enforced. Side note: the legal term is desuetude. It ought to apply, for example, to the Comstock Act which isn’t ever enforced, but with the current majority on SCOTUS, who knows.

Estelle Griswold, the executive director of Planned Parenthood League of Connecticut, got herself and a doctor arrested and convicted for dispensing birth control material and information. Frankfurter had retired due to a stroke. William O. Douglass, who had dissented in Poe, wrote the majority opinion in which he laid out the right to privacy.

In the remainder of the Chapter, Greene looks at the different ways courts, especially SCOTUS, have tried to deal with the demands of groups whose rights were limited by all branches of state and federal governments.

Discussion

1. Reading between the lines, it seems to me that Greene thinks that the values, biases, and opinions of judges play a crucial role in decisions. This is one of several versions of legal realism.

For the purposes of this Article, I define “legal realism” as the perspective that Supreme Court decisions resolving important constitutional law questions are based primarily on the Justices’ values, politics, and experiences, not on text, history, or precedent. In other words, personal preferences, rather than the prior law dictate most Supreme Court constitutional law decisions.

2. Here’s an example. Richard Posner is an intellectual. He served on the 7th Cir. From 1981 to 2017. He taught at the University of Chicago Law School for decades. He seems to have been influenced by the strict neoliberalism taught at the Chicago Business School. That connection perhaps led him to his theory of law and economics, which I would describe as the idea that in deciding cases Posner would assume that the law favors the economically efficient outcome.

In a 1985 article, An Economic Theory of the Criminal Law,  he analyzes crimes like rape in terms of markets and market efficiency, apparently indifferent to the inherent silliness of the effort.

Put differently, the prohibition against rape is to the marriage and sex “market” as the prohibition against theft is to explicit markets in goods and services. [footnote omitted]

After the Great Crash of 2008, he formally renounced the entire project of the Chicago School of economics, including his own law and economics branch. Here’s a discussion.  That, of course, is the mark of an intellectual: he rejected a theory he had relied on for decades when he saw it didn’t work.

2. Greene mentions the deeply felt trope that we have a government of laws, not men, citing John Adams. P. 58.  How does it square with the theory that the prejudices and deeply held world views of judges are a critical factor in their decisions?

In routine cases it’s not a problem. But it’s a huge problem for major constitutional law issues decided by SCOTUS. Neil Gorsuch pompously demonstrated this when he said at oral argument in Trump v. United States,  “…we’re writing a rule for the ages” about presidential immunity from criminal accountability. P. 140. That is not the job of a judge. Writing rules for the ages is the responsibility of legislatures. But the current majority doesn’t think like that. As they showed in Dobbs and the gun cases, they don’t even believe there are rules for the ages. There are only rules laid down by five unelected unaccountable lawyers, good only until changed by five other unelected unaccountable lawyers.

3. I think that when institutions are controlled by people willing to subvert the norms of their jobs to achieve ideological or political goals, the institutions will fail. There are no rules sufficient to restrain them. The only solution is to remove them and replace them with people who comply with the norms.
__________
Graphic: Gilbert Stuart’s portrait of John Adams.

The Second Amendment, as Applied

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AM-15 Machine Gun, now apparently legal to possess in Kansas

The Second Amendment as written and ratified: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

The Second Amendment, as applied by US Federal Judge John W. Broomes of the Kansas District: “A well regulated Militia, being necessary to the security of a free State, t [T]he right of the people to keep and bear Arms, shall not be infringed.”

From the top of Broomes’ ruling on Wednesday tossing out a gun possession charge:

This matter is before the court on Defendant’s motion to dismiss based on Second Amendment grounds. (Doc. 26.) A response and a reply have been filed (Docs. 28, 29), and the court held a hearing to establish additional facts about the weapons charged. The motion is thus ripe for review. The court finds that the Second Amendment applies to the weapons charged  because they are “bearable arms” within the original meaning of the amendment. The court further finds that the government has failed to establish that this nation’s history of gun regulation justifies the application of 18 U.S.C. § 922(o) to Defendant. The court therefore grants the motion to dismiss.

And just what were the weapons in question that were charged?

I. Background
Defendant Tamori Morgan is charged with two counts of possessing a machinegun [sic throughout] in violation of 18 U.S.C. § 922(o). (Doc. 1.) Specifically, Defendant is charged with possessing an Anderson Manufacturing, model AM-15 .300 caliber machinegun and a machinegun conversion device.  It was established at the hearing that the conversion device is a so-called “Glock switch” which allows a Glock, model 33, .357 SIG caliber firearm to fire as an automatic weapon.

Making machine guns great again. Wonderful.

Just as the Alito-authored Dobbs spawned a host of ugly laws, regulations, and ripple effects across the country, the Thomas-authored Bruen is now doing the same. Welcome to the Federalist Society Judicial System.

Elections matter, people. Elections matter a lot.

Two Views Of Protection Of Rights

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The Supreme Court Has Always Been Terrible.  In Chapter 2 of How Rights Went Wrong, Jamal Greene selects three examples of terrible cases: Dred Scott v. Sanford, Plessy v. Ferguson,  and Lochner v. New York. These three cases are so blatantly horrible that no one can support their outcomes and be considered acceptable in academia. Or in polite society, if you ask me.

Greene sees Dred Scott as a case about who is entitled to rights under the Constitution.

At stake in Dred Scott were the boundaries of the political community entitled to the law’s protection and able to claim rights under it.
…
Chief Justice Roger Taney acknowledged that the Declaration of Independence had emphasized the “self-evident” truth “that all men are created equal.” But, Taney continued, “it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration.” P. 36.

Plessy is equally horrible. Henry Brown’s opinion says that being forced to travel in separate railcars isn’t a badge of inferiority but the “colored race” chooses to feel insulted.

Greene says that the Framers saw Constitutional rights as necessary to protect the rights granted by states and local governments from federal intrusion. On that theory, state and local majorities were free to grant or deny rights to people as they saw fit. The views of the Framers failed to protect people when those local majorities trampled on the rights of Black people and others. Local majorities can be just as tyrannical as any unaccountable monarch, and frequently are.

Reconstruction Era cases repurposed the 14th Amendment to protect capitalists from regulation by state and federal governments. Lochner is the example frequently given. The bakers of New York persuaded the legislature to pass health and safety laws concerning their work hours and other matters. Lochner sued, saying that the laws interfered with his right to contract, which he alleged was guaranteed by the Constitution. The holding, that the right to contract prevails over state and federal laws, lasted  until the 1930s when Franklin Delano Roosevelt threatened to expand SCOTUS.

There were two dissents in Lochner, by Oliver Wendell Holmes and John Marshall Harlan. Holmes took the view that there are Constitutional rights, and these must be given maximum protection. But laws that do not implicate Constitutional rights are in the province of the legislature and must be respected and enforced by the courts.

For Holmes, the Constitution protected very few rights—and certainly not the right to contract—but those it protected, such as freedom of speech, it protected strongly. P. 54.

Harlan took the view that all rights, including those enumerated in the Constitution, must be respected. The question for courts is the extent to which rights are respected when they conflict with other rights or the rights of society. Harlan agrees that the Constitution protects the right to enter into contracts. But.

The right to contract “is subject to such regulations as the state may reasonably prescribe for the common good and the well-being of society.” P. 55.

The job of a court in a case like Lochner is not whether there is a Constitutional right to contract. It’s to determine whether the state is acting reasonably in regulating that right. Greene notes that it might have helped if the Courts had considered the right to labor, a right protected by political action .

Holmes’ views prevailed, for reasons we learn in Chapter 3. Greene sees this as the birth of what he calls “rightsism”, the fetish for rights that we see all the time now.

Discussion

1. I’ve skipped all the material that makes this chapter so persuasive. Greene gives detailed and clear descriptions of the cases, and of the backgrounds of Holmes and Harlan. This isn’t just a dry theoretical lecture, it’s a lively picture of important documents and the people who crafted them. It’s a good reminder that we are persuaded not just by logic but by the perceptions we have of the facts and issues in cases. I found myself persuaded that he was on the right track long before we got to the meat of the arguments.

2. I’ve tried to read Dred Scott and Plessy, but failed. The mindset of the writers is jarring even through the somewhat difficult language of that era. The bias is blatant. And yet I’m sure these judges were, in the words of William Baude about the current right-wing majority, “principled and sound”, with some blemishes.

Baude explains that all the recent controversial decisions “… rightly emphasized the importance of turning to historical understandings in deciding Constitutional cases rather than imposing modern policy views.” Of course, Dred Scott, Plessy, and Lochner are soundly reasoned and in accord with historical tradition. That’s not my idea of a good way to justify any Constitutional decision. Maybe it’s relevant that Baude is a member of the Federalist Society, the organization founded by Leonard Leo.

I discussed my view of good judging in this post.  Start at “Let’s begin with this question” for the general discussion. Needless to say, it has nothing to do with anything taught by the conservative legal movement.

3. Lochner logic shows up in Project 2025’s Mandate for Leadership.

Hazard-Order Regulations. Some young adults show an interest in inherently dangerous jobs. Current rules forbid many young people, even if their family is running the business, from working in such jobs. This results in worker shortages in dangerous fields and often discourages otherwise interested young workers from trying the more dangerous job. With parental consent and proper training, certain young adults should be allowed to learn and work in more dangerous occupations. P. 595.

 

4. In The Nation That Never Was Kermit Roosevelt says that the meaning of the term “all men are created equal” changed through the efforts of Abraham Lincoln, Frederick Douglass and many others. Greene does something similar with the idea of Constitutional rights. He explains the shift in our understanding of the Bill of Rights as protecting the power of the states from the central government, to our current view that it protects individuals from all government action.

Language and grammar change, sometimes quickly. So does our knowledge and understanding of history. That’s why originalism and textualism are suspect methods. I do not think the legal academy has given this enough attention.

SCOTUS Usurps Congressional Power

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Posts in this series.

In the previous post in this series I described the thesis of Jamal Greene’s How Rights Went Wrong. He says the Bill of Rights was designed to protect the power of states against intrusion by the newly created federal government. Chapter 1 provides evidence to support his conclusion. My original plan was to go over the evidence he cites. Instead, I have a different bit of evidence.

SCOTUS didn’t mention the Bill of Rights when it listed the rights of citizens of the United States in any of the seminal cases construing the Reconstruction Amendments.

The issue of individual rights under the 14th Amendment came before SCOTUS in The Slaughterhouse Cases (1873), which I discussed here. The majority says that there is a difference between the rights which Americans have as citizens of the United States on one hand, and the rights they have as citizens of a state on the other.

The adoption of the first eleven amendments to the Constitution so soon after the original instrument was accepted shows a prevailing sense of danger at that time from the Federal power. And it cannot be denied that such a jealousy continued to exist with many patriotic men until the breaking out of the late civil war. It was then discovered that the true danger to the perpetuity of the Union was in the capacity of the State organizations to combine and concentrate all the powers of the State, and of contiguous States, for a determined resistance to the General Government.

Unquestionably this has given great force to the argument, and added largely to the number of those who believe in the necessity of a strong National government.

But, however pervading this sentiment, and however it may have contributed to the adoption of the amendments we have been considering, we do not see in those amendments any purpose to destroy the main features of the general system. Under the pressure of all the excited feeling growing out of the war, our statesmen have still believed that the existence of the State with powers for domestic and local government, including the regulation of civil rights the rights of person and of property [sic] was essential to the perfect working of our complex form of government, though they have thought proper to impose additional limitations on the States, and to confer additional power on that of the Nation.

So what does the majority say are the rights of citizens of the United States? Very few, all of which are set out in the main body of the Constitution. The majority cites several older cases, and describes each of them as saying that the rights we claim come from our status as citizens of a state.

But neither the majority nor any of the older cases point to the Bill of Rights as a source of our rights as citizens of the US. None of them say that as citizens of the United States we have a right to a jury trial, or to freedom of speech, or any other right in the Bill of Rights.

In that section of The Slaughterhouse Cases the Court says the opposite. It says that the 14th Amendment does not change the principle that our rights come from our status as citizens of a state.

As we saw in earlier posts on the Second Founding, subsequent decisions of SCOTUS including United States v. Cruikshank  and The Civil Rights Cases take the same position, and strike down all of the remedial legislation enacted by Congress under the 14th Amendment to give civil liberties to all citizens including Black people. These cases led us to Plessy v. Ferguson. All of them stand for the proposition that the Reconstruction Amendments do not grant rights to U.S. citizens, and that it is unconstitutional for Congress to grant such rights.

Congress gave up trying, and nothing happened to repair the damage of slavery or bring an end to Jim Crow segregation for 70 years.

Discussion

1. SCOTUS ignores America history and its own precedents when it puts itself in charge of our rights. It wasn’t that way in 1792, and it wasn’t that way in the late 1800s. That whole thing was invented in the 20th Century as SCOTUS began to say that the provisions of the Bill of Rights applied to individuals through the Due Process Clause. The concept of due process has a legal definition, and this isn’t it. We now call it “substantive due process,” and I have never understood how it’s supposed to work. Clarence Thomas agrees, calling substantive due process a “legal fiction” in  MacDonald v. City of Chicago, Thomas J. concurring.

Here’s the Wikipedia entry on substantive due process.  I’m not sure I agree with it completely, particularly the pre-Civil War material. Here’s another which seems closer to what I remember from law school.

2. So where do our rights come from? In early cases under the Reconstruction Amendments, the Court says that our rights come from the states. Rights might be found in a state constitution, or in statutes enacted by state legislatures. That means there is no agreed set of rights held by all of us. It means that there is nothing significant to the idea of being a citizen of the U.S. It also means that we have to go from state to state amending laws and constitutions to protect our liberty.

In this post, I pointed to Hannah Arendt’s view of rights. She thinks that rights only exist among people living in societies that are based on equality as citiznes. In those societies rights arise from a mutual guarantee. We give each other rights, and agree to enforcement mechanisms; and we benefit by having the same rights. That certainly doesn’t point to courts as the source of rights. It points to founding documents, and to the legislature. The courts and the executive branch serve only as enforcement mechanisms.

Each of the Reconstruction Amendments expressly empowers Congress to pass legislation to enforce them. This is a power given to Congress, not to SCOTUS. The idea that SCOTUS gets to overrule the exercise of expressly authorized power by Congress is not in the Constitution or any amendment.

I note in passing that the argument in Shelby County v. Holder, striking down a critical part of the Voting Rights Act, is the dignity of the states. That’s a term cited by John Roberts, a long-time foe of the Voting Rights Act and other legislation broadening democratic rights. Dignity is very important when it comes to states limiting the right to vote, says Roberts.

In Trump v. United States, the right-wingers granted the President almost total immunity in the exercise of official duties. It said in essence that citizens can’t hold Presidents accountable civilly or criminally, and it hamstrung any enforcement that might not have been foreclosed.

That’s how we should treat Congressional actions, including legislation and investigation related to its powers under the Constitution. That’s how we get our rights. We petition Congress for rights, and if granted, they are ours without regard to what five unelected zealots scribble.

How Courts Came to Control Our Rights

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In Chapter 1 of How Rights Went Wrong, Jamal Greene goes through the actual history of the origin of the Bill of Rights. I think most of us were taught that the Bill of Rights is a list of rights that go with being US citizens. Courts are the arbiters of the meaning of the Constitution, so they protect the minority from overreaching by the majority. That’s not what Greene sees.

The Constitution doesn’t give individuals very many rights. It bars ex post facto laws, and bills of attainder, gives people a right to trial by jury, and a few other rights, not much compared to the rights people thought they have.

The Anti-Federalists objected to the Constitution in large part because of the absence of a bill of rights. They claimed to fear that the central government would infringe on the power of the states just like the British kings had done. The people living at that time were very interested in their individual rights, but according to Greene:

… within Founding-era political thought, the institutions best suited to reconcile the competing demands of rights bearers were not courts but rather state and local political bodies: juries, churches, families, and legislatures. Democracy was not a tool of majoritarian oppression but rather was the means through which a community prevented oppression from the outside. P. 7.

The key phrase here is “reconcile the competing demands of rights bearers.” Greene thinks the goal of the Bill of Rights was to center the balancing of rights claims at the local and state levels, and to keep it out of the hands of the federal government.

This theory was consistent with the political power structures of that era, with local and state governments having the dominant role. Many of the states were run by the rich: slavers, merchants and bankers in varying proportions in each of the states. None of these people were willing to cede much power to the federal government not least because it might interfere with their own power and their own profits. The Federalists held plenty of power in their own states, and had no reason not to agree.

Side note: I may be reading some of this into Greene’s words. He doesn’t discuss power and wealth, but I think this is a fair reading of his words:

The backers of the Bill of Rights were not interested in protecting minorities from majority tyranny. They were interested in protecting their own governing majorities from others who might have different interests or agendas. P. 13

The purpose of the Bill of Rights was not to protect individuals from the tyranny of the majority. It was to protect state and local governments from interference and control by the federal government. Most of the provisions of the Bill of Rights in their own words apply to the powers of Congress: “Congress shall make no law”. Only a few of them seem to give rights to individuals, or protect individuals from the power of the States to regulate as they see fit. In fact, as we will see, most states and the federal government enacted laws that seem to violate the express provisions of the Bill of Rights.

Greene says the theory that state and local governments, juries, and private institutions like churches and schools were best positioned to deal with rights claims was destroyed in the Civil War.

Greene goes through each of the first 10 Amendments in the second half of Chapter 1. I’ll look at some of those in the next post.

Discussion

1. So how did the Supreme Court gain control over our rights? SCOTUS claimed the ultimate power to interpret the Constitution. In Dred Scott, it aggressively asserted that it was in charge of the slavery question, no matter what Congress and the people wanted. After the Civil War, instead of refashioning the Supreme Court and insisting on their proper role in control of our rights, Congress and the Executive gave the judiciary a large role in the enforcement of the laws and our rights, including in several Civil Rights laws.

From the beginning, SCOTUS resisted the force of the Reconstruction Amendments. In The Slaughterhouse Cases, there is a nice statement of the goal of the !3th, 14th, and 15th Amendments. Then the Court says it can’t possibly really mean much by that, so those old racists went on to say that the rights of Black people, women and Native Americans were still controlled by the states. In a series of cases SCOTUS restricted the power of Congress to carry out the intent of those amendments, and repurposed them to protect corporations.

After a few decades SCOTUS decided that the Due Process Clause of the 14th Amendment applied against the states, effectively creating a whole set of national rights for individuals which it claimed to find in the Bill of Rights. It claims that the rights it finds there are absolute, and cannot be touched by our government. Congress and the Presidents acquiesced. That’s how we find ourselves under the thumb of a rogue SCOTUS.

2. The current conservative majority agrees with those old courts. They restrict congressional and executive powers. They put crucial matters like women’s health and welfare in the hands of states. They approves of state actions to gerrymander and suppress voters to make sure minorities in those states can dominate the majority. Every disgusting decision the six right-wingers hand down would fit fine with their Reconstruction-era predecessors. Every policy choice they make would satisfy the demands of the Gilded Age Plutocrats.

The founders were rich white men infused with the biases of their day. There were slavers and people willing to compromise with slavers for their own reasons. They agreed that the lives of enslaved people and Native Americans didn’t matter, and that women weren’t really people. Those views informed their drafting of our Constitution and Bill of Rights. Why should they control ours? But Roberts and his majority are trapping us in the amber of those ignorant prejudices.

Alito Versus Law And Science

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Our legal system only works if we have impartial judges whose decisions are based on facts. Samuel Alito is not an impartial jurist. He doesn’t care about facts. In this, he is only the most obvious of the six right-wing members of SCOTUS.

Law

Roe v. Wade, discussed here, stood as precedent for 50 years, until it was thrown out by the right-wingers. Each of the people who signed onto the opinion, and John Robert, who didn’t, swore that stare decisis is a crucial aspect of judicial legitimacy, and recognized that Roe was binding precedent. That was a deception.

One important goal of stare decisis is to create certainty and stability in social relations. The legal term is reliance. We don’t overturn precedent without good cause. We might overturn a precedent because it is doing more harm than good. Thus, reasonable people see the wisdom in overturning Plessy v. Ferguson, which upheld Jim Crow laws.

I do not think Roe v. Wade was wrongly decided, but even if I did, that’s not enough. If overturning it causes more harm than leaving it in place, it should stand. Otherwise, we are not a government of laws, but a government by the feelings of five members of SCOTUS.

In Dobbs v. Jackson Women’s Health Organization, Alito rips that principle to shreds in pursuit of his partisan ideology. He writes:

in this case, five factors weigh strongly in favor of overruling Roe and Casey: the nature of their error, the quality of their reasoning, the “workability” of the rules they imposed on the country, their disruptive effect on other areas of the law, and the absence of concrete reliance.

His justification for all these points is callous and absurd, but especially his rejection of reliance. In § III.E he explains that there are three kinds of reliance.

1. Areas of law requiring precise advance planning. This, of course, is not applicable.

2. Areas of concrete reliance. That’s not present in this case. The claims that women rely on Roe are “novel” and “intangible”, and it would be wrong to consider them.

That form of reliance depends on an empirical question that is hard for anyone—and in particular, for a court—to assess, namely, the effect of the abortion right on society and in particular on the lives of women.

That leads to impassioned arguments, he says, so who’s to say whether there’s any actual reliance. So what if there’s a hideous impact is on society and in particular on the lives of women? Those things are irrelevant in the austere legal world, lit by the incandescent power of the Judicial Intellect Of Sam Alito.

3. This ruling won’t affect other cases. He must think we’re stupid.

Science

Alito uses the term “unborn human being” ten times in his opinion. Usually courts use neutral language, or the language of the parties. His choice of words is a signal about his beliefs. He thinks a human child, a separate person, is living in the womb, just waiting to be born. That’s not true. It’s a religious belief.

My thanks to commenter c-i-v-i-l for linking us to a peer-reviewed paper in Natural Sciences, Pseudo-embryology and personhood: How embryological pseudoscience helps structure the American abortion debate. The paper was written by a noted US embryologist, Scott Gilbert. I have the pleasure of knowing Professor Gilbert. The paper includes a review and explanation of six of the different views scientists hold regarding the onset of personhood.

1. Fertilization: the formation of a unique genome.

2. Gastrulation: the point of cellular division of the fertilized ovum at which the embryo can no longer form identical twins, but can only form one unique human person.

3. Emergence of the human EEG pattern pattern: the cerebral cortex begins to function.

4. Viability: the stage at which the embryo can survive outside the womb.

5. Birth.

In addition to these, Gilbert notes a sixth position taken by many scientists, that personhood is not a scientific category. The differences he describes between the state of the embryo at the five stages he lists show the problem.

Gilbert’s paper disposes of the notion that there is scientific consensus on the issue of personhood. He goes much farther in his analysis, explaining that the anti-abortion mob is creating a pseudo-science to justify their religious zealotry. He likens it to Eugenics which caused tremendous damage; it also seems like creationism.

He describes three myths that buttress this pseudo-science. One is th myth of the valiant sperm fighting its way on a perilous journey, racing to the waiting ovum, piercing it and filling it with new life. This is a story of masculine prowess: the male is the active force and the female is passive. It’s the myth of the journey of the hero as seen in the work of Joseph Campbell and others. He writes:

The female oviduct is not a passive racetrack, and the egg and its cumulus are active in attracting sperm and exciting them to swim faster. Although the sperm needs its propulsion to pass through the cumulus cells and extracellular covering that surround the egg, it does not bore through, drill through, or penetrate the egg, itself. Rather, when the sperm finds the egg, it lies next to it, spooning, and then the membranes of the sperm and egg melt together, and the two become one.

This is a beautiful and powerful picture: two human bodies working together to achieve new life. Alito deals with the beauty and complexity Gilbert outlines in his paper by claiming judges can’t solve the problem. His solution is to hand the decision to state governments. He knows full well that many of them don’t care about reality any more than he does, and that they will take away the liberty of the majority. He doesn’t care.

Partisan hackery

It’s easy to see that Alito is a partisan hack by reading his opinions and checking his voting record. In the face of his record, he refused to recuse from the Trump immunity case and the January 6 criminal case on the hilarious grounds that no one could think him anything but the soul of impartiality.

Journalist Lauren Windsor recorded Alito at a recent private event. The video reinforces the perception that he is a partisan, not an impartial judge. He has a Manichean view of US politics: the struggle between the forces of godliness and the secular left. In a rambling response, he describes it as a battle one side or the other must win, though possibly there are ways to live together in peace, but some matters cannot be compromised.

But there wasn’t a battle until a tiny minority funded by billionaires used the state to impose their religion on an unwilling majority. The majority was forced to defend its liberty. Alito thinks this is fine.

His wife, Martha-Ann, is a Fox News Grandma fulminating about the outrage of the day, and stewing in grudges for decades. This recording,  also captured by Windsor, is awesome. As Joan Walsh puts it in The Nation, she lets her freak flag fly.

Alito is a crank. Martha-Ann is a crank. They crank together.

What can we do?

1. Please read the Gilbert paper I linked. If nothing else, it will shore up your faith in intelligent observation of our shared reality.

2. Call Senator Durbin’s Judiciary Committee and ask them what they’re doing to protect us from biased judges. It isn’t just Alito and the other SCOTUS rogues. Trump put dozens of right-wing cranks on the bench, including Aileen Cannon, Matthew Kacsmaryk, and James Ho.

Roe v. Wade

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Roe v. Wade (1973)  is at the heart of Jamal Greene’s book How Rights Went Wrong, my next book. It marks the apogee of the trajectory of the Warren Court, though it was decided after he retired. The opinion was handed down during my last year in law school, and I must have read it then, but I hadn’t read since. The name, if not the reasoning, became an icon for our understanding of our rights. And then, the current SCOTUS majority reminded us that they’re in charge of our liberty, and not some ancient version of SCOTUS from 50 years ago.

In this post, I’ll discuss the holding and reasoning of the Roe majority, written by Harry Blackmun.  I’ll skip over the preliminary holdings, including standing, justiciability, and procedural issues.

Introductory context

Blackmun begins his analysis by stating that the Court is aware that the abortion is “sensitive” and “emotional”, and that people hold “deep and seemingly absolute convictions” the subject. People’s views on the subject are influenced by a wide variety of factors, ranging from religious doctrine to worries about population. But he has a job to do.

Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection.

Facts and legal claims

Jane Roe was a single woman residing in Texas. Texas law made abortion a crime with exceptions “… for an abortion by. ‘medical advice for the purpose of saving the life of the mother.’ “. At the time she filed Roe was pregnant and wanted a safe abortion in Texas because she couldn’t afford to go to a state where it would be legal.

Roe claimed that the Texas statutes were unconstitutionally vague, and “… that they abridged her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.”

Context and interests

Blackmun begins with a history of abortion laws from ancient times to the present “for such insight as that history may afford us”. He doesn’t mention the witch-hunter Matthew Hale. He then describes the past and current positions of three professional associations, the American Medical Association, the American Bar Association, and the American Public Health Association. These lay out the general legal and health situation at that time and the recommendations of those bodies.

Blackmun says there are three justifications for criminalizing abortion.

a) to discourage illicit behavior. Texas doesn’t make this argument.

b) to protect the pregnant woman. At the time of adoption of criminal punishment the procedures were dangerous, with a high mortality rate. With modern procedures, that is no longer the case, and abortions, at least in the early months, are safer than normal childbirth. Blackmun notes that there remain important health and safety issues that are properly the function of states. The interest of the states in protecting the woman’s health and safety increase as the pregnancy progresses.

c) to protect pre-natal life. Texas argues that “Only when the life of the pregnant mother herself is at stake, balanced against the life she carries within her, should the interest of the embryo or fetus not prevail.” Blackmun says that “as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone.”

The Roe side argues that there is no reason to think that any of these statutes were intended to protect the fetus. There is no legislative history to support that view, and what there is discusses the health of the pregnant woman. The same is true for the case law.

These are the interests at stake.

The right to privacy

Blackmun says that there is a line of SCOTUS cases in which the Court recognized a zone of privacy for individuals, and lists cases in which provisions of the Bill of Rights were applied to create individual rights to be let alone, including Griswold v. Connecticut, the birth control case. He doesn’t repeat the analysis of Griswold, merely pointing out its roots in the 9th Amendment.

Blackmun holds that the a woman’s decision to get an abortion is within this zone of protection. He recites some of the burdens that Texas imposes on women, and the damage it does to them and their families. But that’s not the end of the discussion.

He’s already said that Texas has an interest in protecting the health of the woman, and in maintaining medical standards, and in protecting potential life. The right to privacy is not absolute. There are other interests that must be protected, and at some point the interests of that the state rightfully claims become dominant. He says this is the general position taken by most of the courts that have ruled on the issue.

Fetal personhood

In Section IX, Blackmun takes on the question of whether a fetus is a “person” within the meaning of the 14th Amendment. Blackmun recites every use of the word person in the Constitution. He says that none of them can be read to include “prenatal application.” Other courts agree. But that doesn’t fully exhaust the interests asserted by Texas.

Texas claims life begins at conception. Blackmun says that doctors and scientists can’t answer that question and gives examples Therefore the judiciary certainly can’t.

Blackmun says that to override a woman’s right to privacy Texas must show a compelling state interest.

We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, … and that it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes ‘compelling.’

This leads to the three part rule of Roe. In the first trimester, the dominant interest is that of the woman, and the state cannot show a compelling interest in her decision or in the means of effectuation. In the second trimester, the risk increases, justifying reasonable regulation related to the life and health of the woman.

After viability, roughly at the end of the second trimester, the interest of the state in protection of the fetus becomes dominant, and reasonable regulation to protect the fetus is justified, so long as it doesn’t impact the life or health of the mother.

Discussion

1. In Dobbs v. Jackson Women’s Heath Organization,  Alito  claims that Roe is badly reasoned. Alito doesn’t like the history, maybe because it doesn’t mention any witch-hunters. He thinks Blackmun was required to show there were prior legal case recognizing a Constitutional right to abortion. He doesn’t like the three part regime. And he doesn’t like the idea of the zone of privacy at all.

Alito states that there is no basis in the Constitution for a right to an abortion. He says that whatever the privacy interests are, the states can evaluate them without regard to the Constitution. He flatly denies the existence of a constitutionally protected zone of privacy. He thinks the only limit on governmental intrusion is something he calls the principles of ordered liberty, which he doesn’t define, or something deeply rooted in our history and traditions. Alito says no new constitutional rights can ever exist, and we’re locked into a regime dominated by slavers and those willing to compromise with slavers; a regime where dominant males said women were second class citizens, despite the Reconstruction Amendments. Alito thinks federal and state governments can intrude into any area of private life with few exceptions.

Alito’s views are at the very beginning of his interminable opinion, and there’s a syllabus, a brief synopsis, at the beginning of the link. See for yourself.

Query: which opinion makes better sense of the world we live in?

2. After we go through Greene’s book we’ll take another look at this case.

King John Would Like a Word with Justice Alito

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The Magna Carta Monument, Runnymede England

I am annoyed by folks who claim to love history and are blind to it. I am disgusted by folks who claim to love history, are willfully blind to it, and in their willful blindness try to use their power to inflict damage on others.

Why yes, I *did* listen to the oral arguments at SCOTUS today. Why do you ask?

sigh

Here’s an exchange between Justice Alito and Michael Dreeben, speaking for the government:

JUSTICE ALITO: Mr. Dreeben, you dispute the proposition that a former president has some form of immunity.

MR. DREEBEN: Mm-hmm.

JUSTICE ALITO: But, as I understand your argument, you do recognize that a former president has a form of special protection, namely, that statutes that are applicable to everybody must be interpreted differently under some circumstances when they are applied to a former president.

Isn’t that true?

MR. DREEBEN: It is true because, Justice Alito, of the general principle that courts construe statutes to avoid serious constitutional questions. And that has been the longstanding practice of the Office of Legal Counsel in the Department of Justice.

JUSTICE ALITO: All right. So this is more, I think, than just a — a quarrel about terminology, whether what the former president gets is some form of immunity or some form of special protection because it involves this difference which I’m sure you’re very well aware of.

If it’s just a form of special protection, in other words, statutes will be interpreted differently as applied to a former president, then that is something that has to be litigated at trial. The — the former president can make a motion to dismiss and may cite OLC opinions, and the district court may say: Well, that’s fine, I’m not bound by OLC and I interpret it differently, so let’s go to trial.

And then there has to be a trial, and that may involve great expense and it may take up a lot of time, and during the trial, the — the former president may be unable to engage in other activities that the former president would want to engage in. And then the outcome is dependent on the jury, the instructions to the jury and how the jury returns a verdict, and then it has to be taken up on appeal.

So the protection is greatly diluted if you take the form — if it takes the form that you have proposed. Now why is that better?

MR. DREEBEN: It’s better because it’s more balanced. The — the blanket immunity that Petitioner is arguing for just means that criminal prosecution is off the table, unless he says that impeachment and conviction have occurred.

Oh, the horrors of forcing a former president to defend himself in a trial! So sayeth Justice Alito, he who cites a 17th century English witchburner of a jurist (who also invented the marital rape exception), in order to justify denying women bodily autonomy.

If Justice Alito is fond of citing old English judicial writings, let me walk him back another 4 centuries and introduce him to John, by the grace of God King of England, Lord of Ireland, Duke of Normandy and Aquitaine, and Count of Anjou.

Once upon a time — long before a bunch of rabble-rousing colonial insurrectionists said that “Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” — there was a little dustup between John, by the grace of God King of England etc., and a bunch of his barons, as well as various bishops and archbishops. The barons and clergy, distressed at what seemed to them to be very ill treatment at the hand of their king, expressed their frustrations in a manner that could not be ignored.

In June 1215, John and the barons negotiated an agreement. In it, after an introduction and 60 separate clauses in which King John agreed to various reforms and promised to make specific restitution in various particular cases that were demanded by his barons, the 1215 version of the Magna Carta ends like this:

* (61) SINCE WE [ed: John] HAVE GRANTED ALL THESE THINGS for God, for the better ordering of our kingdom, and to allay the discord that has arisen between us and our barons, and since we desire that they shall be enjoyed in their entirety, with lasting strength, for ever, we give and grant to the barons the following security:

The barons shall elect twenty-five of their number to keep, and cause to be observed with all their might, the peace and liberties granted and confirmed to them by this charter.

If we, our chief justice, our officials, or any of our servants offend in any respect against any man, or transgress any of the articles of the peace or of this security, and the offence is made known to four of the said twenty-five barons, they shall come to us – or in our absence from the kingdom to the chief justice – to declare it and claim immediate redress. If we, or in our absence abroad the chief justice, make no redress within forty days, reckoning from the day on which the offence was declared to us or to him, the four barons shall refer the matter to the rest of the twenty-five barons, who may distrain upon and assail us in every way possible, with the support of the whole community of the land, by seizing our castles, lands, possessions, or anything else saving only our own person and those of the queen and our children, until they have secured such redress as they have determined upon. Having secured the redress, they may then resume their normal obedience to us.

Any man who so desires may take an oath to obey the commands of the twenty-five barons for the achievement of these ends, and to join with them in assailing us to the utmost of his power. We give public and free permission to take this oath to any man who so desires, and at no time will we prohibit any man from taking it. Indeed, we will compel any of our subjects who are unwilling to take it to swear it at our command.

If one of the twenty-five barons dies or leaves the country, or is prevented in any other way from discharging his duties, the rest of them shall choose another baron in his place, at their discretion, who shall be duly sworn in as they were.

In the event of disagreement among the twenty-five barons on any matter referred to them for decision, the verdict of the majority present shall have the same validity as a unanimous verdict of the whole twenty-five, whether these were all present or some of those summoned were unwilling or unable to appear.

The twenty-five barons shall swear to obey all the above articles faithfully, and shall cause them to be obeyed by others to the best of their power.

We will not seek to procure from anyone, either by our own efforts or those of a third party, anything by which any part of these concessions or liberties might be revoked or diminished. Should such a thing be procured, it shall be null and void and we will at no time make use of it, either ourselves or through a third party.

* (62) We have remitted and pardoned fully to all men any ill-will, hurt, or grudges that have arisen between us and our subjects, whether clergy or laymen, since the beginning of the dispute. We have in addition remitted fully, and for our own part have also pardoned, to all clergy and laymen any offences committed as a result of the said dispute between Easter in the sixteenth year of our reign (i.e. 1215) and the restoration of peace.

In addition we have caused letters patent to be made for the barons, bearing witness to this security and to the concessions set out above, over the seals of Stephen archbishop of Canterbury, Henry archbishop of Dublin, the other bishops named above, and Master Pandulf.

* (63) IT IS ACCORDINGLY OUR WISH AND COMMAND that the English Church shall be free, and that men in our kingdom shall have and keep all these liberties, rights, and concessions, well and peaceably in their fullness and entirety for them and their heirs, of us and our heirs, in all things and all places for ever.

Both we and the barons have sworn that all this shall be observed in good faith and without deceit. Witness the abovementioned people and many others.

Given by our hand in the meadow that is called Runnymede, between Windsor and Staines, on the fifteenth day of June in the seventeenth year of our reign (i.e. 1215: the new regnal year began on 28 May).

Note the third paragraph, that begins “If we, our chief justice, . . .” In that paragraph, King John, by the grace of God King of England etc., is agreeing that he and his administration are not immune from accountability.

John and the barons agreed on a process for adjudicating disputes. They agreed on a panel that could both bring charges and judge them.  They agreed on how the panel should be chosen, and how the panel should select new members at the death of old ones. They agreed on how many members of the panel needed to agree in order for a judgment to be final. They agreed on a time frame for restitution. Most importantly, should John be found to have violated the terms of this document and yet refuse restitution, John, by the grace of God King of England etc., agreed that his castles and lands could be seized under order of the panel to make restitution for what he had done, or his officials had done on his behalf.

To be fair, the Magna Carta was changed and altered in the years and centuries that followed. But the original text of the original version makes it clear that even the King of England, Lord of Ireland, Duke of Normandy and Aquitaine, and Count of Anjou does not enjoy absolute immunity.

Trump may wish to be a monarch with absolute immunity and not a president.

Alito may wish to treat him as a monarch with absolute immunity and not a president.

But in a meadow at Runnymede, between Windsor and Staines, John, by the grace of God King of England, Lord of Ireland, Duke of Normandy and Aquitaine, and Count of Anjou, said no. That’s not how even a divinely appointed monarch is to be treated.

SCOTUS Lines Up Behind Trump’s Defensive Strategy

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There is no doubt the Republicans on SCOTUS (hereinafter R-SCOTUS) are lined up behind Trump in his criminal cases. The timeline in the ridiculous immunity case and the decision in the Colorado ballot case are clear demonstrations of their commitment to his reelection despite his obvious unfitness for office.

The Colorado case

In Trump v. Anderson,  all nine members of SCOTUS agreed that Colorado can not keep Trump off the ballot under the  Insurrection Clause of the 14th Amendment. The per curium opinion offers several weak reasons to support this result.

Barrett and the Democratic appointees expressly dissented from the majority’s holding that only Congress can enforce the Insurrection Clause, and only with the approval of SCOTUS. The majority concludes with this:

These are not the only reasons the States lack power to enforcethis particular constitutional provision with respect to federal offices. But they are important ones, and it is the combination of all the reasons set forth in this opinion—not, as some of our colleagues would have it, just one particular rationale—that resolves this case. In our view, each of these reasons is necessary to provide a complete explanation for the judgment the Court unanimously reaches.

Restrictions on Congressional Enforcement of the Insurrection Clause

That last quote refers to the part of the per curium opinion saying that § 5 of the 14th Amendment

… limits congressional legislation enforcing Section 3, because Section 5 is strictly “remedial.” To comply with that limitation, Congress “must tailor its legislative scheme to remedying or preventing” the specific conduct the relevant provision prohibits. Section 3, unlike other provisions of the Fourteenth Amendment, proscribes conduct of individuals. … Any congressional legislation enforcing Section 3 must, like the Enforcement Act of 1870 and §2383, reflect “congruence and proportionality” between preventing or remedying that conduct “and the means adopted to that end.” Citations omitted.

The women on SCOTUS agree that this is unnecessary for the decision. It’s purely a creation of the SCOTUS men. It prescribes no standards, and it arrogates power to SCOTUS at the expense of Congress.

I note that the claim that the 14th Amendment only applies to the actions of individuals is the invention of an earlier SCOTUS, in cases like US v. Cruikshank and The Civil Rights Cases, which I discuss here and here. The Congress that drafted the 14th Amendment thought it had the power to legislate against the KKK and other violent white supremacists acting in their private capacity. For example, in Cruikshank, SCOTUS said principles of federalism mean that the 14th Amendment only applies to state action. Those early  rancid decisions are never questioned even though we now have thousands of federal laws governing individuals.

The kicker is that any restrictions on Congress say nothing about limitations on the States. And any limitations SCOTUS dreams up to control Congress of power can just as easily be applied to the states, and with just as much historical and legal justification.

Manipulating the ridiculous immunity claim

Trump, who already defied the norm of a peaceful transition of power, also defies the principle that no one is above the law. He says that no president can be prosecuted for crimes committed while in office unless they are first impeached. He agrees with Richard Nixon “Well, when the president does it … that means that it is not illegal.”

This is an interlocutory appeal. The decision of the Circuit Court was clearly right. There was no need for SCOTUS to take this case at this state of the proceedings. No one thinks the president is entitled to blanket immunity. After sitting on it for two weeks, SCOTUS set the case for “expedited” review seven weeks later. Who knows when they’ll issue a ruling.

It would be stupid for SCOTUS to take up the claim that Trump is immune from prosecution for any and all crimes committed in his official capacity. So SCOTUS rephrased the question presented:

Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.

This phrasing enables SCOTUS to screw up the trial by all sorts of legal trickery. For example, Trump is charged with “knowingly” participating in conspiracies. SCOTUS could hold that Trump is entitled to a presumption of immunity, and that the prosecution has the burden of proof on whether Trump intended to take actions outside his official duties. That would dramatically increase the burden on the prosecution.

I’m sure R-SCOTUS can come up with better ideas than mine.

Bad judging

I think R-SCOTUS members are bad at judging. They claim to be originalists, but that’s not what they did in the ballot case. The per curium opinion selectively quotes one iota of the history of the 14th Amendment and ignores the rest. It doesn’t address the mountains of information provided in the two amicus briefs filed by historians. It’s solely based on outcomes.

I discussed good judging in my post on Dobbs.  As I see it, good judging at the appellate level is solving hard problems in the way most likely to produce the best possible long-term results. Past cases and history are not absolutely binding, but provide guidance and wisdom (sometimes) from other judges. For this rule, I rely on Judge Richard Posner’s views, and those of Oliver Wendell Holmes and John Dewey’s pragmatism, but I won’t rehash that here.

What R-SCOTUS does is invent a bunch of reasons why their preferred outcome is right. The per curium opinion is jumbled to the point that they feel obligated to justify its lack of coherence.

The dissent relies on principles of federalism, as the majority claims to do. It then looks at the likely outcomes of the Colorado case and explains why those outcomes are bad for the nation. It says that the Constitution doesn’t require that bad outcome. The dissenters give us exactly what Posner expects: their judgment of what is best for the future. They may be right. They certainly are right to refuse to go beyond what’s needed to resolve the present case; that’s a critical guardrail against overreach.

Why though?

The per curium decision all but insures that Trump will not be subject to disqualification under the Insurrection Clause. The timetable for the absurd immunity claim, and the mischief that awaits us from their decision is additional insurance.

I do not understand why R-SCOTUS is in the bag for Trump. They have life tenure, a decent income, and constant security. They have enormous power, to the point that no law or rule is effective without their consent. They have a long to-do list of laws and rules destined for termination. Why waste any of their muscle on Trump?

The easy answer is that they’re corrupt. There’s plenty of evidence of that. Clarence Thomas? His insurrectionist-adjacent wife? And a free RV? Alito, with his giant salmon? Neil Gorsuch’s house? Brett Kavanaugh’s disappearing debts? John Roberts’ wife with her $10 million from BigLaw for legal recruiting? Their total indifference to ethics and the appearance of impropriety?

But that probably isn’t it, unless Trump or someone else holds receipts for this and whatever else there might be, and made it clear those receipts would become public. And I don’t see why that would benefit the filthy rich donors who put these people into power. They set that to-do list and they don’t need Trump to get it done.

Gratitude? At this level there’s precious little of that.

Is it the purely political calculation that any action taken against Trump is too dangerous? Are they worried that his hard-core followers, armed to the teeth by R-SCOTUS cases, will riot or even attack SCOTUS if they rule against Trump? Do they think that normal people will bitch but still comply with their rulings in his favor and accept his potential election peacefully?

Is there something worse that innocents like me can’t even imagine?