Welcome. It is that time of year again: time for this blog's four-part discussion of the just-concluded US Supreme Court session.
The division of the four parts will follow the usual pattern. Today, I will focus on one outstanding case, along with some introductory observations. Tomorrow, I will discuss the Supreme Court's role as the interpreter of last resort of certain statutes, with an eye especially on the significance of partisan split (red and blue Justice) and the help or hurt that interpreters do to or for the cause of human liberty.
On Thursday, I will look at a range of constitutional questions treated this term, though I will leave the first amendment out of it. This will leave us with, for example, the second amendment gun-control case and the question of what if anything the idea of "equal protection" tells us about the treatment of Puerto Rico as in the U.S,. but not quite "of" it.
Finally, on Friday, [Later ed: next week] I turn to the complicated first-amendment legacy of this term. Near the term's end, for example, the Court finally buried the Lemon test on Church-state matters. The Lemon test (as portrayed in the cartoon above) has been effectively dead for many years, but the burial was always delayed. Now all is done.
We will also discuss the first-amendment resemblance of a social media platform to a shopping mall.
What We Won't Discuss
So much for a look ahead. I should also mention that there are important cases decided this term that I will not discuss at all. In one, the Justices grappled with the transition from Trump to Biden immigration policies. In two cases, they left intact the Chevron rule, simply by deciding an administration law case without reference to it one way or another -- each time leaving the readers of tea leaves to puzzle out its significance as best they can. And in yet another, on the penultimate decision day, they informed Texas that it was not allowed to nullify the federal government's protections for disabled veterans. You have now read all that you will read here of any of those.
I generally like to keep an eye on the court's intellectual property cases. This year, there is little to report on that subject, except that the court has set up a fascinating clash I may be discussing at this time NEXT year.Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith - SCOTUSblog
One Extraordinary Decision
But we really have to talk about Dobbs. No pun intended, but we have no choice.
Dobbs is certainly an extraordinary development. A woman born in February 1973 who has lived in the United States throughout her life is now 49 years old and most of her fertile years are quite likely behind her. She has never known a time when she was NOT free to choose to terminate a pregnancy. And this is new for her.
And it is new for the country. I can’t think of a time when such a life-critical right for such a large portion of the country was acknowledged by an august authority and, later, withdrawn -- when the same authority that acknowledged it in the first place, decades later, said like Emily Latella “never miiiind.”
And let us NOT try to compare it with other cases by saying things like, "Employers previously had the constitutional right to hire workers for starvation wages, but since 1937 they haven't." Unless I were writing for shock effect, I would avoid that comparison. Maybe I'm getting old.
But, acknowledging how strange Dobbs is, let us think for a bit about the strange way it came about. In early May, a website got a hold of Alito’s decision (in more-or-less the same form in which it was published at the end of June). There was immediately a lot of bluster and posturing about what a terrible thing this leak was.
No Internet Hacking Required
If anyone in a position to investigate really wanted to know where the leak came from, the fact would by now be well known.
Consider that this was NOT a hack by some nerdy internet wiz. It was a very old-fashioned leak. The SCOTUS Justices run a paper-heavy office. Things get printed out and passed around. Somebody, likely a clerk for one of the Justices, simply took a copy to a photocopier and ran it off. The concurring and dissenting opinions likely weren’t written yet then, so all there was, was the Alito opinion.
How do we know this? The website, Politico, made available a photocopy of the first page of the leaked document. There are the unmistakable two small holes made by a stapler at the top of that page. Someone clearly came into possession of it AS A PAPER DOC and then removed a staple to facilitate the copying.
Softening the Blow
So: who did it? The number is not very high of those who could have. Aside from the stapler thing, consider another clue. Politico’s story on the subject carried two bylines: Alexander Ward and Josh Gerstein. Gerstein is Politico’s regular Supreme Court reporter. It would be a shock if the story did NOT have his name on it. But Ward? -- he generally reports on national security issues for that website. This is not his beat. He 'should have' been working on a Ukraine story.
Why is his byline there? Presumably because he knew someone important. The leaker knew Alexander Ward -- leaker brought the document to his friend Ward and Ward brought it to Gerstein, and Ward insisted on getting co-author credit for the history-making scoop.
All of which brings me back to the point. Anyone who really wanted to investigate could look into who among the clerks of the Justices knew Alexander Ward. Start there. Why, after almost two months now, has no progress been made on this investigation? I’m guessing: the Powers-that-be at the court don’t want the name named. They either helped release the document or they deliberately looked the other way.
Why? I’m guessing: to soften the blow. For the reasons I mentioned above, they knew this was going to be a Big Nasty deal. They thought they might make it slightly less nasty for them if they let us all know in a very unofficial way before the case was decided. It is incumbent on the people of the United States now to prove them wrong in this.
The Political Consequences
Now let us turn to the political consequences. I was telling people even before the leak: this could be THE deciding factor in the midterms. This won’t be an election in support of James Carville’s wisdom, “it’s the economy, stupid.” When people use that phrase they have in mind things like unemployment, inflation, the Dow, gasoline prices, etc.
THAT sort of midterm election could have set up a Republican win. Inflation is scary, the Dow is in Bear territory, gasoline prices are rising faster than the general inflation figures. The party of the President is usually made to pay for such things.
But this time I don’t think it will. The Dobbs decision, combined with the drip-drip-drip of Jan. 6 news, and the internal turmoil of the Republican Party, which has led them to endorse Herschel Walker and his ilk … these things, and Dobbs especially -- will make this a strong Democratic Party win.
Gone are the days when the most ‘liberal’ abortion law in the U.S. was one signed by California Governor Ronald Reagan. This has become increasingly an issue in which anti-choice positions define what it means to be a Republican. That will make it impossible for them to back-peddle fast enough. Compare and contrast this with guns.
As the Supreme Court was coming to a drastic conclusion about gun laws, a large chunk of Republicans reversed themselves on that same issue and voted for a reform bill with provisions that have failed repeatedly in years and decades past. Why? So that IF privately owned guns turn out to be a huge issue in November, and the guns-forever position turns out to be very unpopular by November, at least some critical Republicans will be able to dissociate themselves from it. With abortion: nothing like that will happen.
Legalistic observations
Abruptly I'll start another line of thought. The late Justice Ruth Bader Ginsburg never thought highly of the reasoning of the Roe decision. This was in part because it was based on the notion of privacy which was imported into the due process clause of the 14th amendment in a rather doctrinally rickety way.
In fact Justice Blackmun, who wrote the decision, had been a doctor’s lawyer when he was a member of the bar in the ‘40s and ‘50s. A large-ish chunk of the legal profession caters to the needs of doctors -- and with everything from the incorporation of medical clinics to the defense of malpractice tort suits --- a doctor’s lawyer can be a busy person. Blackmun rose very high in this line. Before he was appointed to his first judicial post, by President Eisenhower, he was actually the chief in-house counsel for the Mayo Clinic, which must be just about the peak of doctor’s lawyering. He was of course appointed to the Supreme Court by Richard Nixon, who had known him slightly as Ike's veep.
One problem with the Roe decision as a piece of writing is that it reads too much like an amicus brief that the in-house counsel for the Mayo Clinic might have submitted. It sounds too much like industry deregulation.
To get back to Ginsburg: she believed that the Court should have used the "equal protection clause" for the same end. Restricting abortions is constitutionally invalid because it is historically a means by which men have subjugated women. Thus, such laws deprive women of equal protection. QED.
Would that have been a more secure foundation? Suppose in 1973 the Court had written the sort of decision Ginsburg had in mind, rather than the one Blackmun wrote. Would we still be where we are today? And if her proposed foundation wouldn’t have mattered in the end, would any other doctrinal change have improved the situation? We’ll never know of course: I have further views on that, but this is getting quite long enough. So I will move on to my ...
Final Thoughts
I remember my own years at law school (1979 --1982). Roe was less than a decade old. The partisan lines on it were beginning to harden, but here were a lot more pro-choice Republicans and pro-life Democrats than there are today. And although Roe was very controversial all through this period, there was a consensus. That was: Roe would over time become so deeply entrenched efforts to topple it would fade away, in much the same way efforts to topple Brown v. Board had.
Among the many smart-as-whips law student friends I had then, I think nearly all of them would have agreed with THAT proposition. And they were clearly wrong.
But if Roe can be toppled then so, it must follow, can Dobbs. And we will know from what unfolds in November whether it will take as long, or perhaps much shorter
Tomorrow, we discuss the interpretation of certain important federal statutes.
