Monday, October 08, 2018

A Supremely Dark Future

By Eric Segall

Letter to my Granddaughter, 8/24/2045

Dear Jenny,

As you prepare for your first year teaching constitutional law at Clarence Thomas Law School at Liberty University, I thought you might find it helpful to have an accurate historical perspective on some of the subjects you're going to teach. I know you will find some of the law described below to be ancient history, but I can assure you, it wasn't that long ago.

Before Justice Kavanaugh was confirmed to the Court giving the Trump Party its solid majority, the Second Amendment had been used by the Court only twice to strike down gun control laws, and both were total bans on handguns. We had terrible gun violence under that regime, but nothing like we have today. What role the fundamental right to own easily manufactured 5-D guns and death lasers has played in the escalating violence is an issue some folks debate, but there was a time when state governments could regulate these terrible weapons. Alas, as the Gorsuch Court thought it was moving us forward we in fact are back to the ancient days of the Wild West.

There was a time when the Constitution did not require state and local governments to make religious exemptions to generally applicable laws, and the issue of whether to grant such exemptions was left to the states and the People. It was not a surprise when Justice Barrett wrote a majority opinion overturning the Smith decision. What was more of a surprise in the 2030's was the Court creating a strong common law of First Amendment exemptions basically negating for most purposes anti-discrimination laws at both the state and federal levels. This may explain why people of color, women, and gays and lesbians are even more out-of-power today than when I last taught constitutional law in 2027. It may feel like claims of "religious liberty" naturally Trump all other regulatory measures, but alas it wasn't always the case.

There has been a lot of discussion recently about our low voting turnouts, dipping into the low 20% of our population in the last few elections. Of course the Trump Party, along with its partisans on the Court, are happy to make it more difficult for everyone but the wealthy to vote. When the Court upheld Alabama's face scan technology requirement, which to work required a $2,000 face scan injection, the poor became almost completely disenfranchised, as you know. When you teach this subject, remember there was a time not too long ago when the right to vote triggered serious judicial scrutiny, not the rational basis test the Court now employs to review voting prohibitions.

I know that affirmative action was extinguished by the Court over 20 years ago pursuant to the Court's mandating of color-blindness and prohibiting all considerations of race in all governmental programs. But you should ask yourself, and your students, how that principle stands along the Court's decisions in Barbra Smith v. Alabama where the Court held that state universities could have a quota of fifty percent white men given that white males had been allegedly discriminated against from the mid-1970's to 2025. I know the Court limited that principle to the next twenty-five years, but still the tension should be clear.

I don't envy you having to teach Planned Parenthood v. Pence, Jr.. When the Court returned the issue of abortion to the states in a series of 2022-2025 decisions, federalism was at the forefront of Justice Alito's opinions. "Let the states decide" was the rallying cry. Those decisions of course were consistent with Justice Thomas' final set of decisions holding that Congress could only use its commerce clause authority when it presented clear and convincing evidence that the matter regulated directly affected the commerce of every single state. Thomas' preference for local rule was clear. Yet, somehow, when Congress passed the National Right to Life Act making abortion a federal crime, the Court deferred to Congress' finding that human life began upon a couple's first kiss, and exterminating the results of that kiss could cost the economy billions of dollars. I recommend Justice Kagan's final dissent to make the inconsistency clear. She lamented "federalism for thee but not for me."

Finally, I need to say something about the New, New, New, Ultra New Originalism. There was a time long before I went to law school when people, mostly those in the old Republican Party, thought judges shouldn't strike down laws absent clear proof those laws violated the original intent or meaning of the Constitution. Of course, as I traced in my final book Originalism as Trumpism, by 2027, it was well accepted by six of the Justices that the proper inquiry for originalists does not require historical investigation into ratification eras or even the use of old dictionaries to ascertain the original public meaning of the text. The new test, asking what would Trump/Pence/McConnell think if they were still alive, has the benefits of a closed inquiry into the minds of three people, thus evading indeterminacy critiques. I know that the infamous "living constitutionalists" who fought that change are now a marginalized minority but you may want to go back and read some of their work, if nothing else for an accurate historical perspective. I recommend Bobbitt, Dorf, and Strauss.

Good luck in your new career!!




Michael C. Dorf said...

Eric, as always, I admire your starry-eyed optimism -- believing that there will be a Supreme Court or even mammalian life on Earth, in 27 years.

Joe said...

Those solo dissents by Justice Sotomayor are also worth reading. I believe you enjoyed her series of children's books while growing up.

And, remember, being a conservative originalist means never having to say you are sorry for making stuff up.

David Ricardo said...

Here is the Postscript to the letter that Mr. Segall left off.

PS: While such tactics are commonplace in 2045, you should know that the nomination and confirmation of Justice Barrett in 2020 caused quite a stir. In late October of that year the sudden death of Justice Breyer caused Senator McConnell to call the Senate back into session after its adjournment for campaigning, and the Senate confirmed Trump's nomination of Barrett in a voice vote after no hearings and a 30 hour debate.

Senate Democrats appealed to the 8 member Supreme Court who in an emergency session ruled 5 to 3 that the nomination and confirmation stood. Justice Kavanaugh's opinion in that case was immediately considered a landmark opinon and is required to be memorized by law students at George Mason University School of Law.

Shag from Brookline said...

While Eric is "just a kid"* and may well be around to write that 8/24/2045 letter to his granddaughter, for me I would be a few days into my 116th year. Rather than add a P.P.S. to Eric's letter, I may imagine some history occurring prior to it. For example, Chief Justice Kavanaugh leads SCOTUS and all of the Associate Justices are women, former law clerks of Judge/Justice Kavanaugh, including two from his first term on the Court. The Robing Room is non-gender. And all the justices are packing heat but all others in the Courtroom are barred from carrying heat. The Second Amendment is absolute, including public facilities, except for Congress and federal courts where Congresspersons and judges/justices, respectively, may carry heat as it is presumed they are good guys/gals with guns. For SCOTUS, it has been observed that in oral arguments, counsel are more restrained and orderly.

[More history of the future to follow, subject to moderation.]

*A now deceased friend who was 3 years older than me, used to refer to me on my birthdays as "just a kid."

Joe said...

He would be around your current age.

Shag from Brookline said...

Really still "just a kid" in 2045.

By the way, Amampour & Co. on PBS World will include an interview of Justice Kagan today. I don't know what time, but I'll watch the re-run tomorrow at noon while lunching at home. Robert George was interviewed on today's rep-run. I enjoy Christiane interviews. There is a website to watch earlier programs.

Joe said...

Various stuff on CSPAN this week on various judges and justices, including the aborted second option after Bork was rejected. Patrick Charles now talking about "Gun Rights In America" and just made a Prof. Segall-like point of how judges pick and choose their history to advance the result they want.

(He wrote "Historicism, Originalism and the Constitution: The Use and Abuse of the Past in American Jurisprudence" as well as a couple books on the 2A and the history behind it.)

Shag from Brookline said...

Speaking of a judge/justice "calling balls and strikes," as have SCOTUS nominees Roberts and Kavanaugh, check this out at the NYTImes:

"‘He’s Absolutely Terrible’: C.C. Sabathia Blasts Angel Hernandez"

after the Yankees lost the playoff series to the Boston Red Sox.

"But as reporters and videographers began to disperse from around his locker, Sabathia had something else to get off his chest.

'I need to say this,' he told a handful of reporters who had stuck around. 'I don’t think Angel Hernandez should be umping playoff games. He’s absolutely terrible. He was terrible behind the plate today. He was terrible at first base. It’s amazing how he’s getting a job umpiring in these playoff games.'”

The article also discloses: "As long ago as 2010, a players’ poll by ESPN rated Hernandez as the third worst umpire in baseball."

Also in the NYTimes: "What ‘Justice’ Really Means - The word has taken a beating in the past few weeks. But what role does it truly play in our lives? By Paul Bloomfield, a professor of philosophy at the University of Connecticut.

Are baseball and philosophy relevant to SCOTUS? Imagine if oral arguments were televised with an electronic judicial device measuring how the Justices call balls and strikes. While philosophy has foundations going back to ancient Greece, it has evolved over the centuries as humanity has evolved, reflecting its experiences.