December 10, 2023 / by 


Sandra Day

Sandra Day O’Connor has passed away. Don’t let anyone spoof you, she was one of the nicest, brightest and best people you could ever hope to meet. Gracious is not enough of a word to describe her. She went from the smartest girl in the room at Stanford Law to not being able to get a job because they were all helmed by men. From the NYT and Greenhouse:

“During a crucial period in American law — when abortion, affirmative action, sex discrimination and voting rights were on the docket — she was the most powerful woman in the country.

Very little could happen without Justice O’Connor’s support when it came to the polarizing issues on the court’s docket, and the law regarding affirmative action, abortion, voting rights, religion, federalism, sex discrimination and other hot-button subjects was basically what Sandra Day O’Connor thought it should be.

That the middle ground she looked for tended to be the public’s preferred place as well was no coincidence, given the close attention Justice O’Connor paid to current events and the public mood. “Rare indeed is the legal victory — in court or legislature — that is not a careful byproduct of an emerging social consensus,” she wrote in “The Majesty of the Law: Reflections of a Supreme Court Justice,” a collection of her essays published in 2003.

The idea seemed so novel that Ronald Reagan’s promise during his 1980 presidential campaign made front-page news. Only two years before that, a Broadway comedy, “First Monday in October,” featured a conservative female Supreme Court justice, and the very idea was played for laughs. When life imitated art on July 7, 1981, Paramount moved up the release date of the movie version of the play by five months, releasing it in August. Ultimately, of course, it was Sandra O’Connor who had the last laugh.

Sandra Day O’Connor was one of the good people in life, as was her too early departed husband John. Print and visual media will tell you the obvious, good and bad. I’ll tell you something different.

Long ago, one of her sons was kind of a friend. He lived in their house while she was mostly away in Washington. There was a raging party at said house, and there was a long line of girls at the main bathrooms. So I, ahem, went outside by the side of the house. As one does.

After finishing business, I walked out toward the front. Where there was suddenly some kind of black car/limo. It was Sandra Day. She came home early. During the party!

I helped her with her luggage and then asked a freaking sitting member of SCOTUS, if there was anything else I could do?

The response was: ‘Can you get me a beer”? So I could and did. Discussion with Sandra Day was incredible for the rest of the night.

Hard to describe how wonderful she was. Saw her occasionally at the local grocery store. Always a beautiful human. So, say what you will, she was better than that, she was.

The Supreme Court Has Always Been Terrible

Index to posts in this series

The Civil Rights Cases

The Slaughterhouse Cases and US v. Cruikshank are preludes to the final gutting of the Reconstruction Amendments in The Civil Rights Cases, decided in 1883. Earlier bills aimed at insuring the full citizenship of Black people were struck down by the Supreme Court but Congress kept trying, passing another Civil Rights Act in 1875.

The new law required all businesses to serve people equally regardless of race or prior condition of servitude. The Civil Rights Cases are a consolidated group of cases brought by Black people to enforce their right stay in a hotel, to visit a theater, to sit in the dress circle of a theater, and for Black women to ride in the Ladies Car on a railroad. The Court struck down the law on the same grounds as cases linked above. I have two further observations.

1. Writing for the majority, Joseph Bradley writes:

We have … felt, in all its force, the weight of authority which always invests a law that Congress deems itself competent to pass. But the responsibility of an independent judgment is now thrown upon this court, and we are bound to exercise it according to the best lights we have.

Bradley doesn’t say who threw the “responsibility of an independent judgment” onto him. He uses the passive voice to hide it. We know it can only come from the minds of the members of the Court. He also knew he could get away with this outrageous assertion of power. By 1883 Congress was controlled by the Democrats, then the part of White Supremacy, so they didn’t care. The presidency, then at a low ebb in power, was irrelevant.

The lives and liberty of Black people didn’t count, and nothing was left of the Reconstruction Amendments.

2. To add insult to injury Bradley offered this argument.

When a man has emerged from slavery, and, by the aid of beneficent legislation, has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen and ceases to be the special favorite of the laws, and when his rights as a citizen or a man are to be protected in the ordinary modes by which other men’s rights are protected. There were thousands of free colored people in this country before the abolition of slavery, enjoying all the essential rights of life, liberty and property the same as white citizens, yet no one at that time thought that it was any invasion of his personal status as a freeman because he was not admitted to all the privileges enjoyed by white citizens, or because he was subjected to discriminations in the enjoyment of accommodations in inns, public conveyances and places of amusement. Mere discriminations on account of race or color were not regarded as badges of slavery.

The Supreme Court had struck down that “beneficent legislation”. Bradley knew about the Colfax Massacre. He knew the army had been sent in to stop murderous groups like the KKK. He know about lynchings, rapes, robberies, and mob violence. He knew that states refused to protect Black citizens, and that Congress was trying to fill the gap. He knew full well the intent of the Reconstruction Amendments was to enable the federal government to protect Black Citizens. He just didn’t care.

Bradley would fit right in with the MAGA SCOTUS of today.

Our Current SCOTUS Doesn’t Care About The Consequences of Its Decisions

Three examples will suffice.

Gun Case. Here’s a section of the oral argument in Macdonald v. City of Chicago.

… BREYER: You’re saying they can have — no matter what, that the City just can’t have guns even if they’re saving hundreds of lives — they can’t ban them.


… SCALIA: There’s a lot of statistical disagreement on whether the Miranda rule saves lives or not, whether it results in the release of dangerous people who have confessed to their crime, but the confession can’t be used. We don’t — we don’t resolve questions like that on the basis of statistics, do we?

Miranda is not analogous, and the intellectual fraud Scalia knew it. The statistics the odious Scalia is talking about are real dead and injured people. Like this child. Scalia doesn’t care about these murders or what guns and gun violence do to our society. He thinks his views of the intent of the Founders are more important. He thinks the Founders would sacrifice thousands of dead people for the right to waltz around with an AR-15.

The OSHA Rule. Here’s a snippet from oral argument on the OSHA Covid vaxx or test rule.

… ROBERTS: No, it’s not so much that OSHA has less power. It’s that the idea that this is specific to particular agencies really doesn’t hold much water when you’re picking them off one by –one by one.

I think maybe it should be analyzed more broadly as this is, in effect, an effort to cover the waterfront. I’m not saying it’s a bad thing.

But I don’t know that we should try to find, okay, what specific thing can we find to say, oh, this is covered by OSHA? What specific thing can we find to say that this is covered by the hospitals? What specific thing can we find to say, oh, no, we’re doing this because this is a federal contractor?

It seems to me that the more and more mandates that pop up in different agencies, it’s fair –I wonder if it’s not fair for us to look at the Court as a general exercise of power by the federal government and then ask the questions of, well, why doesn’t Congress have a say in this, and why don’t the –why doesn’t this be the primary responsibility of the states?

Roberts is saying it’s suspicious that Biden (and Trump before him) marshaled all government agencies to deal with the pandemic. He’s going to decide how the government can respond, no matter what the statutes say, and as Elizabeth Prelogar, the Solicitor General responds, he could just read the statute. But you won’t see Roberts taking any blame for the people who died, or spent days or weeks in intensive care, or got long Covid, because of his decision. For him, that’s just statistics. He doesn’t care.

Abortion. In Dobbs v. Jackson Whole Women’s Health Alito says SCOTUS doesn’t have to follow precedent, meaning Roe v. Wade, in part because no one can prove they rely on it. Reliance requires proof that one is planning in advance based on the precedent. No one plans to get pregnant then get an abortion. Presto, no reliance. There’s more, and it just gets more cruel.

Alito ignores the actual effect of Roe v. Wade: that women and their families can control their own lives, that their lives are valuable. The abstract idea that states should have a say in women’s lives is more important than an unknown number of deaths, thousands of dangerous pregnancies, and loss of dignity as citizens. Alito doesn’t care.


The Constitution doesn’t give SCOTUS the final say on our rights. It doesn’t say SCOTUS has the unrestrained power to throw out laws and rules created by the elected branches. That’s all invented by SCOTUS itself, taking power and control away from democratically-elected officials.

The Fox News Six would repeat every decision of the Reconstruction Era Supreme Court. They follow in the footsteps of people who don’t care.

The Major Questions Metadoctrine and The Slaughterhouse Cases

In my last post I show how US v. Cruikshank (1876) and The Slaughterhouse Cases (1873) affect our gun control crisis. In this post I look at the connection between The Slaughterhouse Cases and Biden v. Nebraska, the recent case striking down Biden’s student loan reduction plan.

The Slaughterhouse Cases

I discuss The Slaughterhouse Cases here. The Supreme Court could have decided them strictly on the basis of the police power. The appellant butchers argued that the untrammeled right to earn a living was a right protected by the Privileges or Immunities Clause of the 14th Amendment. That’s obviously not true. The Court later takes up the purposes of the Reconstruction Amendments, and there’s nothing to support the Appellants’ argument.

But Samuel Miller, who wrote the majority opinion, explains that he and the other members of the Court have thought it over, and “ we now propose to announce the judgments which we have formed in the construction of those articles, so far as we have found them necessary to the decision of the cases before us, and beyond that, we have neither the inclination nor the right to go.”

One of the advisory opinions that follow is that the Reconstruction Amendments were not intended to change the balance of powers between the federal and state governments. Miller justifies this by saying that if Congress wants to make an significant change the balance of powers between the states and the US, it has to do so in language acceptable to the Supreme Court.

Earlier in the opinion, MIller said that the Reconstruction Amendments were intended to insure that Black people had a full range of rights, just like White people. Section 5 gives Congress the power to enact laws to secure that right. So at the very least, the Reconstruction Amendments change the relations between state and US governments enough to permit the US to protect the rights of Black people. It’s hard to imagine clearer language, and Miller doesn’t even hint at one.

Furthermore, by the time of The Slaughterhouse Cases Congress had enacted two civil rights laws and three enforcement acts. This effectively is a declaration of Congress’ understanding of its power, and that of the President. Miller ignores the views of the other two branches. Only the opinion of five members of the Supreme Court counts. The Supreme Court is the unelected final authority in our democracy.

So, we have three points from The Slaughterhouse Cases:

1. If the Supreme Court majority wants to issue a ruling in a case, it will do so, regardless of precedents it might have established.

2. If Congress wants to accomplish a major change in our government it must figure out some language that even the Supreme Court is afraid to reject, but likely that’s impossible.

3. SCOTUS is supreme; it ignores the other two branches if it chooses.

Biden v. Nebraska

Majority Opinion. John Roberts’ majority opinion addresses the standing of the Appellants. Most of them don’t have standing, but no matter, because Roberts asserts that Missouri does and one is plenty. The basis for Missouri’s standing is that it had created MOHELA, an independent nonprofit governmental corporation, which owns and services student loans. MOHELA refused to participate in the lawsuit (I wonder why) but the Missouri AG claims that Missouri can sue in its place. He says MOHELA would lose an estimated $44 million in fees for loan servicing. None of that would ever go to Missouri, ever, but so what?

Roberts and the Fox News Six say MOHELA is an “instrumentality” of Missouri, the instrumentality might lose money which is an injury sufficient for standing, and that’s good enough. What he means is that standing is available because he wants to rule on the merits. Just like in The Slaughterhouse Cases.

In her dissent Elena Kagan explains that standing rules arise from the Constitutional requirement that SCOTUS only has jurisdiction of actual controversies. If a plaintiff isn’t injured, there is no standing.

It still contravenes a bedrock principle of standing law—that a plaintiff cannot ride on someone else’s injury. Missouri is doing just that in relying on injuries to the Missouri Higher Education Loan Authority (MOHELA), a legally and financially independent public corporation. And that means the Court, by deciding this case, exercises authority it does not have.

On the merits, Roberts addresses the statutory power granted to the executive branch to waive or modify any provision of the student loan program in the event of a national emergency. He explains that “waive” doesn’t mean waive, and that “modify” doesn’t mean modify, if the change is big. A lot of money is a big change. He doesn’t even hint at the words Congress should have used to get its way.

He says his opinion is supported by what he grandiosely calls the Major Questions Doctrine, because there’s a lot of money at stake. I call it the Major Questions Metadoctrine, or MQM, for reasons that will appear.

Barrett’s Concurrence. Amy Coney Barret, who clerked for the odious Antonin Scalia, styles herself a textualist. She wants us to know that the MQM is very good, so she writes a concurring opinion. Most of is is technical legal stuff about canons of interpretation. Two points are worth mentioning.

1. Barrett cites a 2010 law journal article by John f. Manning, a Harvard Law professor: Clear Statement Rules and the Constitution. You don’t have to read past the abstract to find out what Manning thinks:

This Essay argues that such clear statement rules rest on the mistaken premise that the Constitution contains freestanding values that can be meaningfully identified and enforced apart from the specific terms of the clauses from which the Court derives them.

Barrett ignores this point entirely. The MQM is supposed to be a clear statement rule. There are a number of these, mostly directed to structural constitutional issues like federalism. The Slaughterhouse Cases could be seen as an application of a clear statement rule, if it weren’t so obviously unnecessary and wrong.

In Biden v. Nebraska the MQM is applied to enforce Congressional control over the purse. But as Barrett herself shows, that isn’t in the Constitution. In her view, this purpose is an emanation from the Appropriations Clause. The power of the purse is a judicial trope, already once removed from the text of the Constitution. The MQM is a further step from the Constitution. Thus, a metadoctrine.

2. Barrett offers a hypothetical to explain her view.

Consider a parent who hires a babysitter to watch her young children over the weekend. As she walks out the door, the parent hands the babysitter her credit card and says: “Make sure the kids have fun.” Emboldened, the babysitter takes the kids on a road trip to an amusement park, where they spend two days on rollercoasters and one night in a hotel. Was the babysitter’s trip consistent with the parent’s instruction?

This is a laughable hypothetical. The Biden Administration didn’t just decide for funsies to reduce student debt. There was an economic catastrophe caused by a pandemic that killed a million Americans and sickened tens of millions.

The correct hypothetical is not a trip to a theme park, but a trip to the emergency room paid with the credit card.

This is shoddy work, but it’s all we an expect from rigid ideologues. It’s also an ugly parallel with the Reconstruction Era Supreme Court.


The parallels to The Slaughterhouse Cases are, I hope, obvious.

1. SCOTUS will ignore every restriction on its use of power if five members want to.

2. There is no statutory language clear enough if five (or more) members of SCOTUS don’t like the policy.

3. SCOTUS is very supreme.

Cruikshank, Gun Control, And Bad Rulings

Index to posts in this series

We’ve looked at two early cases interpreting the Reconstruction Amendments, The Slaughterhouse Cases and US v. Cruikshank. These cases are still in force, and have done massive damage, to Black people especially and others who hoped to gain their rightful freedom; to the balance of power among the three branches of government; and to our jurisprudence. Recent 2nd Amendment cases are good examples of this damage.

Gun control

Recapitulation of the old cases. In The Slaughterhouse Cases the Supreme Court analyzes §1 of the 14th Amendment (text below). The second sentence bars states from abridging the privileges or immunities of “citizens of the United States”. The Court says this provision applies only to the tiny number of privileges or immunities that attach to people solely as citizens of the US. It doesn’t apply to their rights as citizens of a specific state.

The Court says that the !4th Amendment doesn’t change the relationship between state and federal governments. 83 US 77-78. It’s a negative argument: such a monumental change must be in very clear language, and this isn’t clear enough to suit the Court.

In Cruikshank, the Court examines the rights which the defendants allegedly illegally conspired to violate. One is the right to keep and bear arms for a lawful purpose. Here is the Cruikshank Court’s entire discussion of that issue.

The right there specified is that of ‘bearing arms for a lawful purpose.’ This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the ‘powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,’ ‘not surrendered or restrained’ by the Constituton of the United States.

Citing several older cases, the Court says that the 2nd Amendment does not guarantee the right to keep and bear arms; all it does is bar the US from infringing on that right. It says that states can regulate the ownership of arms as part of their police power.

To summarize:
1. The 14th Amendment didn’t change the power relations between the state and federal governments.
2. Rights not specific to the Constitution are solely the domain of the states under their police power.
3. The 2nd Amendment does not grant any rights to anyone. It merely prohibits the US from infringing the right to bear arms.
4. Any important change in the laws or Constitution must be clear enough to suit the Supreme Court.

Current cases. Eventually the Supreme Court started applying the Bill of Rights to the states using the Due Process Clause. By the time Heller v. Dist. of Columbia was decided, most of the Bill of Rights had become more or less applicable to the states.

In Heller Scalia cites Cruikshank approvingly. He writes: “States, we said, were free to restrict or protect the right under their police powers.” He completely ignores the holding of Cruikshank and several older cases that the only function of the 2nd Amendment is to prohibit the US from infringing the right, as well as the holding that the right does not arise from the Constitution. He simply imposes his own textualist reading of the 2nd Amendment as if it were written today instead of 240 years ago.

A few years later in Macdonald v. City of Chicago Alito put SCOTUS in charge of controling state power over guns. The Seventh Circuit had upheld Chicago’s gun regulations, relying in part on Cruikshank. Alito says the issue is: “… whether the Second Amendment right to keep and bear arms is incorporated in the concept of due process,” an issue not considered by the lower courts. Cruikshank isn’t applicable because it only considered the Privileges or Immunities Clause.

Alito gives a short history of cases applying the Due Process Clause to the Bill of Rights starting with this: “The constitutional Amendments adopted in the aftermath of the Civil War fundamentally altered our country’s federal system.” He doesn’t tell us what that change is, or how it applies to guns.

He cites Heller for the proposition that the 2nd Amendment creates a right to bear arms. Then he announces that the right to and bear arms is covered by the Due Process Clause. There isn’t really an explanation for this. Alito just says it’s, like, you know, fundamental to the concept of ordered liberty, amirite, for every American to carry a gun for “self-defense”. Like this guy.

Then in Bruen, Clarence Thomas says that the only allowable limits on the the right to keep and bear arms are those the states imposed prior to either 1789 or 1868. Whatever that right was, the states obviously regulated it under their police powers, but Thomas doen’t even mention Cruikshank and The Slaughterhouse Cases. I guess Macdonald says it was unconstitutional for states to regulate guns after the ratification of the 14th Amendment, even though they had that right under Cruikshank and used it for 130 years.

Conclusion. The end result is that we can only regulate guns if five members of the NRA Court permit it. And now we learn that Bruen didn’t slake the blood lust of Thomas, Alito, Gorsuch and Kavanaugh. They want to flood the country with ghost guns.

Why Not Overrule Those Old Cases?

I think one reason SCOTUS doesn’t overrule Cruikshank and The Slaughterhouse Cases is that it would change our understanding of our dual sovereignty system. In The Slaughterhouse Cases the Court said that a broad interpretation of the 14th Amendment “…would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment.” Of course SCOTUS is already doing that, as in gun regulation cases.

But if we dropped the pretense that the states are the dominant power in deciding the rights of citizens, SCOTUS would lose one of its go-to arguments against federal laws it doesn’t like. Dobbs, for example, says that the right to abortion should be decided by the states. Section 5 of the Voting Rights Act offends the dignity of the states (no, really), according to Shelby County v. Holder. And in NFIB v. Sebelius, SCOTUS says that the US can’t pressure the states to provide Medicaid to all their citizens, who, I note, are also citizens of the US, because state dignity is so important to suffering people.

There’s another possibility. The right-wing six simply don’t care about any of the traditional pillars of jurisprudence, such as stability, deference to the other branches, institutional reputation, and procedural constraints on power. And they’re careless. They don’t even try to be coherent or to clean up the loose ends of precedent that held for 150 years, or to create workable rules. See part IIIB of Breyer’s dissent in Heller and the dangers to society created by Bruen, as in the Rahimi case.

It’s bad enough that we’re goverened by five or six unelected lawyers. It’s worse that tbese second-rate people do such shoddy work.

Section 1 of the 14th Amendment

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Colfax Massacre And US v. Cruikshank

The Colfax Massacre took place on Easter Sunday, April 13, 1873, in Colfax Louisiana. The 1872 Louisiana election was hotly contested by the Democrats who favored a return to antebellum conditions as fully as possible, and Republicans who worked to bring Freedmen to full citizenship. Wikipedia has a long entry on the Colfax Massacre, including a history of the build-up to that bloody Sunday.

The Louisiana militia, many of whom were Black, a mob of former Confederates and KKK members showed up with cannon and guns, and attacked. The militia surrendered or escaped. The mob caught and killed them, including those who surrendered, between 62 and 153 men; the exact number is unknown. There was only one survivor.

Eventually a few of the attackers were tried and convicted in federal court in New Orleans under the Enforcement Act of 1870. They appealed to the Supreme Court, which overturned the verdict in US v. Cruikshank. On appeal, the Circuit Court was divided on the question of whether the indictments charged a crime, or as we would say today, the constitutionality of the Enforcement Act.

The opinion is by Morrison Waite, the chief. The syllabus describes the indictment. It was based on §6 of the Enforcement Act of 1870:

‘That if two or more persons shall band or conspire together, or go in disguise upon the public highway, or upon the premises of another, with intent to violate any provisions of this act, or to injure, oppress, threaten, or intimidate any citizen with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the constitution or laws of the United States, or because of his having exercised the same, such persons shall be held guilty of felony….

The Court says that this provision applies only to rights that arise under the Constitution or laws of the United States. It cites the Slaughterhouse Cases for the proposition that people are citizens of the US and of a state, and that one’s rights as a citizen of the US are different from ones rights as a citizen of each of the several states.

Next the Court gives us a short version of the theory we’ve seen before, that people form governments to promote their general welfare and protect their rights. The role of every government is the protection of the inhabitants, but they may only do so to the extent of their powers.

This, I think, is the key argument, given without explanation:

The people of the United States resident within any State are subject to two governments: one State, and the other National; but there need be no conflict between the two. The powers which one possesses, the other does not.

Waite knows this isn’t exactly true. The same act may offend the laws of both the state and the US. He gives examples: counterfeit coins, and assaults on a federal officer. Each may be an offense against both the laws of the state and the US.

He notes that the US government only has the powers in the Constitution. He sats his job is to find out whether the rights the defendants allegedly interfered with are granted by the Constitution or the laws of the US.

Counts 1 and 9 relate to the right of peaceable assembly. These are not granted by the Constitution, says Morrison Waite. They are the natural rights of any free government.

The government of the United States when established found it in existence, with the obligation on the part of the States to afford it protection. As no direct power over it was granted to Congress, it remains … subject to State jurisdiction. Only such existing rights were committed by the people to the protection of Congress as came within the general scope of the authority granted to the national government.

The 1st Amendment is couched in the negative, prohibiting US government from interfering with the right to assemble, while leaving the states free to regulate it as they saw fit. The right to assemble to petition Congress or the federal government is a federal right, and if the indictment alleged that that was the purpose of the assembly, this would be a crime. But it didn’t.

Counts 2 and 10 concern the right to keep and bear arms. This also is not given by the Constitution. The 2nd Amendment merely “… is one of the amendments that has no other effect than to restrict the powers of the national government…” leaving citizens to seek the protection of the states under their police powers.

Counts 3 and 11 assert the right not to be deprived of life or liberty without due process. The Court is offended by this charge, which it says is nothing more than a standard murder charge. The right to life is a natural right, obviously not granted by the Constitution. Waite says that the 14th Amendment doesn’t add to the powers of the US government. It’s merely an additional guarantee of the right every citizen has under state protection.

Counts 4 and 12 claim that the defendants conspired to deprive black citizens of their right to equal treatment with white citizens as respects their various rights. Waite says this is merely one group of citizens killing another. The 14th Amendment doesn’t add to the powers of the US to protect one group of citizens from another.

Counts 6 and 14 allege violation of rights connected with voting. The Court says that suffrage is a right granted by the states. All the 15th Amendment does is to prohibit discriminate in granting the right to vote on account of race. Thus the right to vote is not a right granted by the US.

Counts 7 and 15 concern voting. Waite says that elections were state elections, and so the US isn’t involved.

Counts 5, 12, 8 and 16 all involve direct allegations that the defendants acted together to deprive the dead of their rights as citizens on account of their race. Waite asserts that the pleading of these counts is defective because it doesn’t specify the facts sufficiently. It merely recites the statutory language. In order to be adequate, it must describe the facts in sufficient detail for the defendants to protect themselves, and to insure that they are not tried twice for the same offense.


1. The attitude of the Court is summed up by this quote: “The charge as made is really of nothing more than a conspiracy to commit a breach of the peace within a State.” The New York Times noted this in its headline. That’s bullshit. This was a race riot, the exact thing Congress was aiming at.

2. Like The Slaughterhouse Cases, this case takes up issues unnecessary for the decision, as the dissent points out, and as Waite does with several counts. The case can and should be decided on the limited ground that the indictment is insufficient. There was no need to reach constitutional questions.

3. The Court doesn’t look at whether the Reconstruction Amendments changed the powers of the states and the US as regards race, why they don’t give the federal government the power to protect at least Black citizens, as an additional safeguard of their rights as citizens. This would be an example of the powers of the two governments do deal with the same events on different grounds.

4. The Court thinks the important thing about this case is the line between the powers of the states and the US. It protects the power of the states to control the lives of their citizens, regardless of the consequences for Black citizens.

There is no indication that Louisiana took any interest in the murder of 150 Black people. As best I can tell, the locals didn’t even investigate the murders. Everyone knows this, including the members of the Supreme Court. Waite offers some worthless words about the responsibility of the states, but he doesn’t care whether they do or not.

This case sets the Court on the road to allowing both both federal and state governments to ignore mob violence against Black citizens, and outright denial of their rights, the result the Reconstruction Amendments were intended to prevent.

The Slaughterhouse Cases

Index to posts in this series

Chapter 4 of The Second Founding by Eric Foner lays out the campaign of the Supreme Court to strangle (my word) the Reconstruction Amendments. The last chapter is the requisite effort to show how things can get better.

I think there’s more to be gained by reading the main decisions on the Reconstruction Amendments, so I’m going to depart from Foner’s text at this point. I think we will see that SCOTUS today uses the same tactics to strike down laws and ignore precedent. I’ll start with The Slaughterhouse Cases, 83 US 36 (1873). The syllabus takes up the first 20 pages; the opinion begins at 57.

Facts. The butchers of New Orleans were scattered across the city. They brought animals for slaughter from the river and train stations to their shops, and threw the offal and scraps into the Mississippi. This was a public nuisance and a health issue.

Louisiana passed a law creating a special corporation charged with building landings and railroad connections to a new set of slaughterhouses in a single location outside the city. The law gave the corporation an exclusive license, required the corporation to lease space to all comers (including Black butchers) for slaughtering operations, set price limits, and required space for a medical officer to check animals and meat for disease, among other things.

Holding. The Supreme Court upheld the statute in a 5-4 decision. The principle ground of the majority opinion is that the law was within the police power of the State. The police power is a legal term describing the power of the state to secure the “the health, good order, morals, peace, and safety of society”, as the dissent puts it. P. 87.

This case could have been decided solely on traditional police power lines, even if the Louisiana law was too broad. But the Court felt it should write about the Reconstruction Amendments, which were a significant part of appellate argument. So the Court ignored the principle of Constitutional Avoidance, the idea that a case should not be decided on constitutional grounds if some other ground is dispositive.

The discussion of the Reconstruction Amendments begins on P. 66. Samuel J. Miller, a Lincoln appointee, gives a brief history of the Civil War and the Reconstruction Amendments. He writes that the purpose of these amendments was to secure

… the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him. P. 71.

The Court goes on to say that the amendments apply to everyone, but to construe them fairly the Court has to consider their “pervading spirit” and the evils to be remedied, and their purpose. This is what Justice Ketanji Brown Jackson is talking about in Allen v. Milligan, the Voting Rights Act case from this last term, and in SFFA v. Harvard, the affirmative action case.

Miller then discusses the 13th Amendment at length. Then he turns to the 14th Amendment.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

Miller explains that this clause was intended to overrule Dred Scott. Then he says:

… the distinction between citizenship of the United States and citizenship of a State is clearly recognized and established.


It is quite clear, then, that there is a citizenship of the United States, and a citizenship of a State, which are distinct from each other, and which depend upon different characteristics or circumstances in the individual. P. 73-4.

The second sentence of §1 says:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

This means, Miller says, that the US can make laws affecting the privileges or immunities a person holds as a citizen of the US, and can protect those rights from state interference. But the 14th Amendment doesn’t give the Federal government the power to control or create the rights granted a state gives to its citizens.

There are very few privileges or immunities of citizens of the US. They are in the text of the Constitution, or the Bill of Rights if the Supreme Courts finds they are. They include protection against ex post facto laws and bills of attainder, and protection on the high seas, and not much else.

What are the privileges or immunities of citizens of states? Miller says they encompass “… nearly every civil right for the establishment and protection of which organized government is instituted.” P. 76. The sole point of the 14th Amendment is to guarantee that all such rights granted to citizens of the state are granted to all citizens within its jurisdiction equally.

Its sole purpose was to declare to the several States that, whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction. P. 77.

Miller claims that other construction would enable the federal government to control the exercise of the power of the state to make laws they think best, and set the Supreme Court up as the ultimate arbiter of the powers of states to pass laws. That would change the entire theory of government in this country. It that was the goal, the drafters of the 14th Amendment would have to use “… language which expresses such a purpose too clearly to admit of doubt.” P. 78.

Miller says that the states can enact any law they like, so long as the laws don’t discriminate against Black people as a class. P. 81. He doubts that the 14th Amendment could ever apply to anyone besides Black people.

The opinion concludes with a reminder that the Founders were worried about federal encroachment on state power, and claims that the Supreme Court “…has always held with a steady and an even hand the balance between State and Federal power….”. P. 82.


1. This case shows the disaster that can arise when SCOTUS gives advisory opinions. There is a huge middle ground between Miller’s cramped reading of the 14th Amendment and the Appellant’s broad view. The opinion establishes a powerful limiting principle: that the purpose of the Reconstruction Amendments is to secure and protect the Freedmen and Black people. It would meant that the federal government can intervene to prohibit actual discrimination against Black people, and generally everybody, but it can’t intervene just because it doesn’t agree with the state’s decisions about privileges and immunities equally applicable to all citizens. That was a perfectly likely outcome in a proper case, a case where a state, for example, barred Black people from testifying against White people.

2. The Appellants were trying to stop state regulation of their businesses. They claim they have an
unfettered right to do business wherever and however they see fit, and that the 14th Amendment protects their exercise of that right. They didn’t win this case, but the idea persisted, and a form of it eventually was adopted by the Supreme Court, as seen in cases like Lochner v. New York.

3. There’s a tendency today to say that SCOTUS, a once-respected institution, has suddenly collapsed in a mixture of partisanship and hubris. Maybe we should ask when that wasn’t the case.

Thomas, Alito and Christmas Cookies

You have heard about the private jet and yacht trips given to Clarence Thomas, the jet trips given to Samuel Alito, etc. The stories of this type of absolute impropriety are seemingly endless.

Senior Massachusetts District Judge Michael Ponsor has penned an op-ed in today’s New York Times: in which he discuses the acceptable limits of what federal judges can take as grift. It is quite good and not very long, I’d suggest a read of it.

What has gone wrong with the Supreme Court’s sense of smell?

I joined the federal bench in 1984, some years before any of the justices currently on the Supreme Court. Throughout my career, I have been bound and guided by a written code of conduct, backed by a committee of colleagues I can call on for advice. In fact, I checked with a member of that committee before writing this essay.
The recent descriptions of the behavior of some of our justices and particularly their attempts to defend their conduct have not just raised my eyebrows; they’ve raised the whole top of my head. Lavish, no-cost vacations? Hypertechnical arguments about how a free private airplane flight is a kind of facility? A justice’s spouse prominently involved in advocating on issues before the court without the justice’s recusal? Repeated omissions in mandatory financial disclosure statements brushed under the rug as inadvertent? A justice’s taxpayer-financed staff reportedly helping to promote her books? Private school tuition for a justice’s family member covered by a wealthy benefactor? Wow.

This is FAR beyond “the appearance of impropriety”, it is actual impropriety. Any judge and/or lawyer with even an ounce of ethics knows this, and it is patently obvious. It is wrong.

Let me give you an analogy that demonstrates how absurd Thomas and Alito really are.

Many, many years ago, a junior partner in our firm decided to be nice to the local county level judges we practiced in front of. So she got a bunch of boxes of Christmas cookies from a local custom cookie place and tried to deliver them to the pertinent judges for Christmas.They were just local superior court judges, not SCOTUS level. They turned them down, and there were a bunch of cookies suddenly in our kitchen and lounge.

There were a lot of attorneys, including me, both prosecution and defense, that used to drink at a local downtown dive bar after 5 pm. Judges, both federal and state, came in too. The lawyers always swapped rounds. But not the judges, they always paid for their own.

Nobody in the world would have carped about it if the judges would have eaten the cookies, nor had the judges gotten a free drink. They just did not. It was pretty admirable.

And now, when such things should be far more apparent, we have a Supreme Court that thinks they are entitled to the graft and grift. Do I think that makes them “corrupt” per se? I do not know that, we shall see how it all plays out further.

SCOTUS Takeover Continues

SCOTUS released opinions in three big cases, the affirmative action case, the student loan forgiveness case, and the anti-LGBT case. I haven’t had time to read them carefully, but it’s clear that they suck. The only bright spot is the emergence of Justice Ketanji Brown Jackson. I can offer some intitial impressions.

1. We now know that the 14th Amendment has an expiration date, at least as far as Black people are concerned. I wish the majority would tell us the date they ended racism so we could have a new holiday.

2. The major questions “doctrine” has a corollary: if enough money is involved, you can make up your own standing requirement. None of the plaintiffs in the student loan case could show injury. The majority says that Missouri has standing because Mohela is an instrumentality of the state. Mohela has the power to sue and be sued, but it refused to sue. I’m just sure the majority offers a not-gibberish explanation.

3. If a plaintiff is trying to inflict damage on the LGBT community they don’t need to show standing.

4. None of the plaintiffs in the affirmative action case could show injury, nor could they show a remedy that would help them. But they all have standing.

5. Standing is a meaningless concept.

Most important, John Roberts has a message for you in Bien v. Nebraska at 25-6:

It has become a disturbing feature of some recent opinions to criticize the decisions whith which they disagree as going beyond the proper role of the judiciary. Today we have concluded that an instrumentality created by Missouri, governed by Missouri, and answerable to Missouri is indeed part of Missouri; that the words “waive or modify” do not mean “completely rewrite”; and that our precedent — old and new — requires that Congress speak clearly before a Department Secretary can unilaterally alter large sections of the American economy. We have employed the traditional tools of judicial decisionmaking in doing so. Reasonable minds may disagree with our analysis — in fact, at least three do. See post, p. ___ *KAGAN, J. , dissenting). We do not mistake this plainly heartfelt disagreement for disparagement. It is important that the public not be misled either. Any such misperception would be harmful to this institution and our country.

So once again, I remind you: you mustn’t criticize SCOTUS by pointing out it’s a corrupt power-grabbing rabble intent on imposing their minority views. Also, you mustn’t point out that they make stuff up to do so, or that theyrecognize no constraints on their power. At all times we must remember that theirs is a holy calling without which our great nation would collapse in disorder and chaos.

This is an open thread.

SCOTUS Takes Over

Good boy, Congress! Now it’s your turn President

SCOTUS has set itself up as the sole arbiter of the constitutional limits on the power of the federal government. We say we have a federal government of limited powers. As I’ve noted in this series, one of the goals of the Founders was to keep the federal government from interfering in the internal affairs of the states. In the debates on the Reconstruction Amendments, there is a constant return to the idea that the feds shouldn’t infringe state power. And there’s the 10th Amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Our federalism, or dual sovereignty, may have served political purposes in the late 18th Century, but now it’s created monstrous problems. By narrowly construing the limits of federal power and asserting control over congress and the president, SCOTUS has created or ignored horrifying problems and made it almost impossible for us to solve them. In this post I’ll look at several of them.

1. Democracy In Citizens United, the right-wing members of SCOTUS held that laws limiting PAC spending on elections were somehow unconstitutional. Now billions of dollars are spent on dark money contributions that benefit campaigns, and while we can assume these people are filthy rich, we don’t know who they are, and we have no to find out what they expect in return. (Hint: it’s not good government.)

In Shelby County v. Holder SCOTUS struck down Section 5 of the Voting Rights Act, the pre-clearance provision,

… because the coverage formula was based on data over 40 years old, making it no longer responsive to current needs and therefore an impermissible burden on the constitutional principles of federalism and equal sovereignty of the states. Fn omitted.

In Rucho v. Common Cause SCOTUS allowed partisan gerrymandering.

The Court ruled that while partisan gerrymandering may be “incompatible with democratic principles”, the federal courts cannot review such allegations, as they present nonjusticiable political questions outside the remit of these courts. Fn omitted.

In Brnovich v. DNC, SCOTUS upheld two Arizona laws making voting harder. The two laws had a disparate negative impact on poor people, mostly minorities. The explanation for this decision even in Wikipedia doesn’t make sense to me, but then, I’m in favor of voting. It was generally seen as the last step before complete dismantling of the Voting Rights Act.

That destruction was narrowly avoided in the recent Allen v. Milligan decision, where John Roberts didn’t reverse an earlier case, Gingles, discussed here. Gingles is a very narrow reading of §2 of the VRA, meeting Robert’s lifelong goal of making it really hard to win a VRA case.

A majority of SCOTUS has now decided not to further attack democracy by adopting the ridiculous independent state legislature silliness. Of course they reserved their own supremacy.

These cases make voter suppression easy, and Red states have imposed a startling array of limitations. For example, Texas passed a law limiting drop boxes for mail-in ballots to one per county. In this interview Rep. Terri Sewell of Alabama, a sponsor of the John Lewis Voting Rights Advancement Act, describes some more.

The intent is clear. Continuing centuries of practice, SCOTUS revanchists rule that states are free to restrict voting any way they see fit, no matter the impact on democracy. As a result, SCOTUS is enabling minority rule.

The main impact is on cities, which are routinely cracked and packed to restrict their political power. For example, Texas tightly controls the ability of large cities to govern themselves. Recently cities were forbidden from requiring water breaks for workers as they swelter under a heat dome for the third week.

How long are Dallas, Houston, Austin and San Antonio residents willing to see their taxes spent in small country towns while rural religious fanatics control their personal lives?

2. Women’s Health As I’ve noted Alito’s decision in Dobbs doesn’t comport with constitutional law as I learned it in the long ago. But its consequences have been sickening. Jessica Valenti tries to keep track of attacks on women in her substack. Pregnant women are rufusing to travel to Red states or plan to leave them over health concerns.

Not content with controlling the lives of women who seek treatment inside their jurisdictions, the anti-women states pass laws with extra-territorial effects, like Texas’ SB 8, the Bounty law. These states claim the right to attack citizens of other states who provide care. Blue states are responding by enacting shield laws, refusing to recognize the demands of the aggressors. Here’s an explainer from Vox. Shield laws typically operate to protect all kinds of health care criminalized by legislators in Red States, including gender-affirming care.

This sets up a serious conflict between the states, perhaps reminiscent of the fury over the Fugitive Slave laws. How long will normal people put up with these assaults?

3. Taking away Congressional power SCOTUS is working to hamstring Congress. One obvious example is Shelby County v. Holder, where SCOTUS said Congress didn’t work hard enough to justify renewal of the VRA.

In the middle of the Covid crisis, Congress indicated OSHA should adopt a rule under its emergency authority requiring larger employers to protect their workers. OSHA complied. SCOTUS struck that down on the shadow docket. SCOTUS ruled that Congress couldn’t delegate the management of the crisis to an agency but had to do something specific to prove to SCOTUS Congress did its homework.

In EPA v. West Virginia, SCOTUS said Congress had to pass a new bill if it wanted to do anything serious about climate change. It created a brand-new constitutional rule to explain its decision, which the creators gave the laughable title major questions doctrine. It says that if 5 members of SCOTUS think something is a big deal, Congress can’t delegate authority to an agency under general language, but must specifically authorize the agency to act in a way those 5 oracles think conclusive.

We’re told the solution is through the ballot box. How long will we put up with this sham voting regime when SCOTUS feels free to slap down laws that don’t meet its ever-changing standards?

4. Controlling executive powers In the middle of the Covid crisis, district court judges enjoined enforcement of vaccine mandates for health care workers and rebellious members of the military. The injunctions were upheld by appellate courts. Then SCOTUS overturned them after an emergency hearing. The lower courts set themselves up as arbiters of the nation’s military and health care policies. SCOTUS implicitly agreed that lower courts were entitled to do so, even as it overruled these outrageous decisions.

Shortly after taking office, Biden established immigration enforcement priorities. Ken Paxton, the indicted, impeached, and wildly partisan Attorney General of Texas, filed suit to block those priorities and establish priorities he liked. The lower courts granted a stay and SCOTUS allowed that stay to remain in effect for a year. Then in US v. Texas, a recent decision I haven’t read, SCOTUS overruled the 5th Circuit. This is typical for any decision of the executive. Courts at all levels feel free to impose stays and screw around for months while the problem festers.

How long can we let the judiciary prevent us from dealing with massive problems before we protect ourselves from their ignorance and their dangerous ideology?

Note: Please remember that you should not say, or even think, that SCOTUS is an illegitimate power-grabbing rabble intent on imposing their minority views. It hurts their feelings and detracts from the sanctity of their holy calling.

SCOTUS Is Wrecking The Societal Safety Net

The right-wing wrecking crew on SCOTUS is destroying the safety and security that make it possible to live in our society. They oppose governmental power when it’s used to protect us from guns and disease, and they strike at rights people need to participate fully in our complex capitalist society.

The Constitution doesn’t give SCOTUS the power to make these decisions. An earlier version of SCOTUS arrogated the power of judicial review to itself. Whereas the other branches have to justify their exercise of power by reference to the Constitution, SCOTUS justifies its power by pointing to an ancient precedent set by itself. For a discussion of this history and a defense of judicial review, see this article by Erwin Chemerinsky in The American Prospect.

To defuse protest against this power grab, for a long time SCOTUS exercised its power sparingly, and only in egregious cases. Perhaps the first instance of overreach was Dred Scott, which was reversed by the Civil War and the Reconstruction Amendments.

When SCOTUS got out of control in the 1930s, striking down New Deal legislation repeatedly, the other branches took aggressive action to protect their Constitutional powers.

In the 1970s conservatives and radicals rebelled against the Civil Rights cases and other changes wrought by the Warren and Burger Courts. In response, Republicans stacked SCOTUS with right-wing ideologues who have now run amok.

When I say “run amok”, I mean that all of the important decisions of the six SCOTUS right-wingers ignore the interests we all share in living in a safe and secure environment. It’s as if they believe that, as Margaret Thatcher put it, there is no such thing as society. Worse, the individuals affected by the outcomes are never heard, and the decisions only recognize the interests of a tiny minority. This post is focused on gun cases, but there are others equally vile.

New York State Rifle And Pistol Ass’n. Inc. v. Bruen holds that no restriction on the ownership of guns is Constitutional unless “… it is consistent with the Nation’s historical tradition of firearm regulation.” The Holy Six bluntly tell us we can’t protect ourselves from the climate of fear created by today’s weaponry.

In US v. Perez-Gallan, the defendant was charged with carrying a gun while subject to two court orders barring such possession. The District Judge, David Counts, held that there weren’t laws barring people subject to domestic abuse protective orders from having guns in 1792; therefore that can’t be Constitutional today.

In Cargill v. Garland, the 5th Circuit en banc ruled 13–3 to invalidate an ATF regulation banning bump stocks. It claims that a firearm equipped with a bump stock is not a machine gun within the statutory definition, so the ATF regulation banning them is not within its statutory power. There’s a conflict among the Circuits, so the SCOTUS death panel has the opportunity to promote murder by machine-gun equivalents.

It’s worth noting that John Roberts demands governmental protection for all these judges to insulate them from the dangers they create.

None of the endangered parties are before these courts. Perez-Gallan’s ex-wife isn’t there. In the bump-stock case none of the people murdered in Las Vegas are there, nor are their families and friends, or the people who ran or cowered in fear. None of us normal people from Chicago testified about the impact of guns on our lives after months of deadly violence, car-jackings, road-rage shootings, and mass killings like the attack on the Highland Park Fourth Of July Parade.

So who was present? Well, in Bruen the Appellants are the New York State Rifle and Pistol Assn, and a couple of losers who don’t qualify for a concealed carry permit under New York law. In Cargill, the Appellant is a gun nut who turned in several bump stocks and then sued. Perez-Gallan is a truck driver who is subject to a domestic abuse protective order from Kentucky barring him from gun ownership and a separate order barring possession of guns while released on an assault charge. In each case, the opposing parties are government officials.

In other words, murder-neutral courts make these decisions in a bubble, where the only parties are government officials and gun fanatics.

Now I’m sure that the defenders of these laws and their lawyers are dedicated, hard-working, and skilled. But that’s not the issue. The issue is that courts are free to decide societal questions without regard to the specific tangible concerns of the people whose lives are at stake in these cases. After Bruen, the interests of normal people are irrelevant. Only the interests of gun fanatics are relevant. Courts, parties, and lawyers don’t have to look at the coffins of the dead, or the scars of the damaged. They don’t have to consider the psychological impact of shattered bodies on the families of the dead and wounded. They are instructed to ignore the consequences of their decisions. They pretend it’s all just words in a game of legal Scrabble.

They can also ignore the purposes of the Constitution, set out in the Preamble:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

These decisions don’t insure domestic tranquility, they don’t promote the general welfare, and they don’t secure the blessings of liberty for the vast majority.

Instead, they insure domestic violence and homicide. They insure that none of us can go to a Church, a grocery store, a concert, or a Fourth of July parade without fear of being shot. They endanger the lives and liberty of every last one of us.
Photo by Arvell Dorsey Jr. via Flickr.

Copyright © 2023 emptywheel. All rights reserved.
Originally Posted @