No, There Is No Nuanced Version of the Second Amendment Insurrectionist View

by Neil H. Buchanan

 

A week ago today, an eighteen-year-old armed with a weapon that would be nearly impossible to obtain in most countries killed 19 children and 2 adults in Uvalde, Texas.  The Washington Post reports that there were at least fifteen mass shootings in the United States in the six days after that horrific slaughter, with twelve of the shootings taking place over the Memorial Day weekend (a grimly apt name for that holiday this year).  The public's reaction to, and focus on, the Uvalde massacre has lasted longer than expected, with political reaction being more intense than anything we have seen since at least the Parkland killings in Florida four years ago.

With all of that attention, is there anything happening in the public debate that is different this time around?  On some level of generality, of course not.  The mind-numbing sameness of these tragedies is a big part of what makes it possible for cynical politicians to refuse to act, relying on the usual generic arguments about "evil," mental illness, and the rest of their rhetorical arsenal.  (Yes, I chose that word deliberately.)  Even so, each time this happens, there are differences in the ways that those familiar excuses are offered, which can be instructive.

Here, I want to revisit the so-called Insurrectionist View of the Second Amendment, which holds that The People must be allowed to own guns so that they can prevent the government from becoming tyrannical.  That view has gone from fringe joke to sacred precept on the American right in only a few short years.  It never should have been taken seriously in the first place, but given that it has now taken on such importance, I want to ask whether there might at least be a subtler version of that argument that could hold water.

 

So, just as we know that there are absurd versions of free speech absolutism that do not automatically undermine defensible almost-absolutist views of the First Amendment, and just as we accept that one can be in favor of high tax rates without being in favor of confiscatory taxation, can we find a version of insurrectionism that is anything less than an embarrassment?  No, of course not; but it is interesting to try.

Ah, Look At All the Potential People

 by Sherry F. Colb

In his draft opinion declaring that women have no right to expel the contents of their uteruses, Justice Alito (SA) mentioned the topic of "potential life." He put the phrase in quotes, perhaps to signify his own rejection of the idea that an ensouled zygote could be anything less than a fully realized person, entitled to take what it needs from its living incubator's bloodstream. Potential life comes up at all because both Roe v. Wade and Planned Parenthood v. Casey identified a governmental interest in such potentiality, thus proving--for SA--that at the very least, a zygote has an interest in going from potential to actual personhood. As with so much else in his misbegotten draft, though, SA is egregiously wrong about that.

As moral philosophers have long explained, having an interest means being the sort of creature for whom life could go well or ill. You have interests, and you know that because asking you "how do you feel?" is a coherent question when posed to you. The same question posed to an orange seed or a zygote does not make any sense. Neither an orange seed nor a zygote has preferences, fears, or any of the other feelings and sensations that would give them interests.

Let us consider some other things that, like orange seeds and zygotes, lack any interests, particularly in turning into a more actualized version of themselves. Imagine a 13-year-old girl who has begun menstruating. She plainly has interests. But now think about the egg that has just burst forth from one of her ovaries. That ripe egg is a potential person, just as a blank canvas is a potential painting. Each requires more material and hard work to become actualized, but so does a fertilized egg. If the 13-year-old has sex with someone carrying around his own store of potential people, one of those could penetrate the egg and thus complete the next stage in actualizing its potential. Neither the egg nor the fertilized egg, of course, has interests. Indeed, the very same religious people who praise the Lord for Commander Alito's pathological patriarchy would try to discourage the 13-year-old girl from having sex and would thereby aim to prevent a potential person from taking the next step toward becoming an actual person. Why? Because most people--perhaps the so-called "pro-life" most of all--can agree that teen pregnancy is undesirable (unless the alternative is ending an unwanted teen pregnancy that has already begun). No one worries about the potential life that exits the girl's body as part of her period; no one mourns for the "potential life" that never became an actual life in that case.

Justice Thomas's Greatest Hits

 By Eric Segall

Unless you have been living under a rock, not a terrible idea these days, you have probably read about Justice Thomas's wife trying to overthrow the results of a free and fair election while Justice Thomas has not recused himself in a case involving that election, an obvious breach of judicial ethics. But as I wrote in 2012, Justice Thomas having such a lapse of judgment should not be surprising, as anyone expecting him to do the right thing is being foolish, unless that thing helps the Republican Party. 

Justice Thomas may have a warm smile and an infectious laugh but both his character and his legal opinions leave a lot to be desired. Here are his ten greatest hits in no particular order (and please notice I am leaving out Anita Hill's allegations but not because I don't believe her).

1) Justice Thomas has made numerous public appearances for the Heritage Foundation, a far right activist group, without disclosing that his wife had been a paid consultant for Heritage for years. 

In related news, Ginny Thomas was working for Heritage in 2000 trying to get folks placed in the upcoming Bush Administration while Justice Thomas was deciding the election for Bush in Bush v. Gore. 

Sorry, but I have never just "gotten over it," as the late Justice Scalia used to tell his many audiences.

Cause-and-Effect, Lawyers, and Mass Murder (Part One)

 -- by Neil H. Buchanan

Amidst the ongoing wave of unrelentingly horrifying news on all fronts, I will take a mental health break by writing about ... wait for it, and please do not click away ... homeowners' insurance!  There is a story coming out of Florida that is not about Don't Say Gay, punishing "woke" corporations, forbidding businesses from responding to COVID-19, stopping educators from talking about "divisive" racial issues that might cause "anguish" for a few of our apparently thin-skinned students, or even about a naked Florida Man driving a riding mower down the interstate while high on meth and bath salts.

This story is especially interesting to those of us with law degrees, as it involves the usual lawyer-hating that conservatives love to stoke.  It is also a not-made-up problem (unlike the non-problems that turned into the various pieces of real legislation that I referenced above), which makes it particularly unusual in my home state.  The question is this: Why is Florida's homeowners' insurance market a complete mess, with spiraling premiums and threats of insurers shutting down entirely?

 

The answer, as they say, may surprise you.  And fair warning: The mental health break ends about two-thirds of the way through this column, because I will turn my attention to the most recent mass shooting (the one in Uvalde, Texas, which for all I know will have been superseded by something even worse by the time I hit "publish" on this column).  There turns out to be a logical similarity between the arguments about Florida's insurance mess and Texas's (and this country's) orgy of violence.

Rationalizing Misogynist Religious Rules

 by Sherry F. Colb

I grew up religious, though my religion was not that of a majority of the U.S. Supreme Court--the religion that regards a zygote as a person. The religion of my youth rejects the personhood of a zygote and indeed finds no "person" present until some point during labor. But like the religion that the Supreme Court now consults to legitimize abortion prohibitions--among the most extreme deprivations of liberty that a person can experience--my religion found ways to rationalize rules that might on their face appear misogynistic.

In my religion, devout families observe the purity of the family, whereby a woman must not engage in any sexual touching with any man (including her spouse) while she is menstruating. Justice Alito's (SA's) religion and that of his fellow theocrats on the Supreme Court does not, as far as I know, make any menstruation-related demands of its parishioners, though Christians and Jews alike have their share of nasty words to describe a normal part of most women's lives--the curse, for example.

Failure to Extend a Precedent Versus Failure to Apply It: A Comment on Shinn v. Martinez Ramirez

 by Michael C. Dorf

I have very little to add to the excellent analysis set forth in the dissent of Justice Sotomayor (joined by Justices Breyer and Kagan) from Monday's SCOTUS decision in Shinn v. Martinez Ramirez. The case does, however, provide an opportunity to make a broader point about a tactic of the Roberts Court (and of other Courts before it) that can be as threatening to existing law as frank overruling: the characterization of a straightforward application of current law as calling for an "extension" that the Court declines to make. After summarizing Martinez Ramirez as briefly as possible, I'll note some other instances of the practice.

Sam Alito and his Big Dicta

by Sherry F. Colb

In his draft opinion for the Supreme Court in Dobbs v. Jackson Women's Health Organization, Justice Samuel Alito (SA) criticizes Roe v. Wade for a variety of supposed flaws. One of the critiques rests on the claim that Justice Blackmun's opinion reads like a statute. What is wrong with a statute? you might wonder. The answer is that legislation is supposed to be different from judicial opinions. While legislation aims to anticipate the universe of categories into which particular conduct might fall, judicial opinions decide specific questions of law that have arisen between the parties.

A statute, for instance, might say (as quite a few do) that people must not conduct an enumerated set of businesses on Sunday (which, if you were wondering, is not at all the imposition of a Christian holiday on the American population, pursuant to McGowan v. Maryland). A judicial opinion might say that selling shampoo on Sunday is permissible under the court's interpretation of the statute in question.

According to SA, one of Justice Blackmun's sins in Roe was to create a trimester framework for pregnancy and then develop the sorts of regulation of abortion that the government could validly apply in each of the trimesters and under which circumstances. After the Court decided Roe by a 7-2 vote, Americans knew not only whether the Texas statute under consideration was unconstitutional but also what the contours of lawful abortion regulation would be in the coming years. SA condemned this feature of Roe because he saw the complex regulatory scheme as falling outside the scope of a proper judicial opinion.

The Concession that STILL Dooms Originalism

 By Eric Segall

One of the most cited articles about constitutional interpretation in recent years is the boldly named, "Originalism Versus Living Constitutionalism: The Conceptual Structure of the Great Debate," by the Godfather of New Originalism Professor Larry Solum. The piece is complex and much can and has been said about it by it other theorists but I want to focus (again) on one aspect of the article that I wrote about previously because that part of Professor Solum's article was also used by Professor Randy Barnett in his recent and interesting review of Adrian Vermeule's book "Common Good Constitutionalism." 

First this post talks about Professor Solum and then Professor Barnett.

Nullification in Abortion Prosecutions (Guest Post by Peter N. Salib and Guha Krishnamurthi)

 by Peter N. Salib and Guha Krishnamurthi

The leaked draft of the Dobbs opinion threatens a drastic curtailment of women’s reproductive rights. Several states already have trigger laws that will criminalize abortions. Others are passing more restrictive laws that will impose criminal and civil liability on providers and receivers of abortion services. This will be a sea change, and indeed a tide against popular sentiment. 

We think that jury nullification may have a role to play, even if limited, in securing reproductive rights. Below we proffer a brief explanation how, but a longer version of our argument is available here.

Alito, Syphilis, and Unwanted Pregnancy

by Sherry F. Colb

I want to draw an analogy here. The analogy may be offensive to some, but I think it captures a part of what is wrong with Justice Samuel Alito's (SA's) leaked opinion in Dobbs v. Jackson Women's Health Org. and its conclusion that Roe v. Wade and Planned Parenthood v. Casey were "egregiously wrong."

From 1932 until 1972, the U.S. government and Tuskegee University recruited Black men suffering from syphilis to come in for treatment for their condition. The doctors then pretended to treat the disease but actually did nothing, initially because no treatment existed and in later years by allowing the patients to think that they were receiving the top of the line medical cure when in fact they were simply getting sicker and sicker. The purpose of this "study" was apparently to observe the course of untreated syphilis in Black men for medical knowledge. Most shocking about the experiment was that it continued even after penicillin became available as an effective cure for the disease. The Tuskegee doctors chose nonetheless to continue with their fake treatments so they could watch the progress of the illness, which ultimately leads to dementia and then becomes incurable.

This experiment exposes how recently medical professionals viewed Black Americans in purely instrumental terms. It comes to mind when when I absorb SA's attitude and the opinion he wrote to make that attitude part of the law. I will hereinafter refer to the Tuskegee doctors and to SA as "the villains," though I understand I must make my case for this appellation.

In both Tuskegee and unwanted pregnancy, the villains did nothing to create the undesirable condition in which Black men and women of all races respectively found themselves. No doctor injected syphilis into a patient and no government actor inseminated a woman. Both Black men and women of all races engaged in sexual activity that gave rise to the conditions in which they found themselves.

What the villains did was to decide that the women and Black men should remain in the state that made them feel sick and that they desperately wished to exit. And indeed, in both cases, there were ethical doctors prepared to assist women and Black men in exiting their unwanted and sickening respective conditions, but someone came along to stop them from receiving that assistance. The Tuskegee doctors effectively prevented their patients from getting help by misleading--much in the way that Crisis Pregnancy Centers mislead women into thinking they are going to an abortion clinic, lies that were approved by the Supreme Court in NIFLA v. Becerra.

SA now invites states and the federal government to criminally punish anyone who helps a woman exit an unwanted pregnancy that may feel to her as awful as and even more threatening than an STD, acquired the same way as the syphilis that so many Black men were left to die of in Tuskegee.

The Electoral-Industrial Complex and Shiny Distractions

by Neil H. Buchanan

 

This has been one of the more active weeks of the 2022 midterm election season, with primaries held in key states and pundits reading the tea leaves and offering hot takes on what it all means.  Will Trump's endorsed candidates win?  Mostly yes, but not for any reasons that add up to a lesson of any significance.  Are insurrectionists and election deniers doing well?  Again yes, because that is the reality of Republican politics this year.  I guess it would be biggish news if the craziest of the crazies were losing in significant numbers, but mostly there is not much interesting happening.

Even so, there are people who are both professionally obligated and clearly personally invested in making this all seem breathlessly important.  Unlike so many things in American life in the 21st Century, that is very much an all-sides-do-it phenomenon.  Almost completely empty horse-race coverage dominates American political discourse, but the deeper problem is that the people who spend their time talking about it have every incentive to pretend that what is truly happening is not happening.  What is happening?

 

In Vitro Fertilization and Dobbs

by Sherry F. Colb

As readers know, I have spent the last few weeks identifying the many ugly features of Justice Alito's (SA's) draft opinion in Dobbs v. Jackson Women’s Health Org, and there is much left to identify. But I want to turn in this post to a topic that has not received much airtime either in the Dobbs opinion or among those worried about the impact of the decision approving laws that force women to remain pregnant and give birth against their will. That topic is in vitro fertilization. The Court seemed to ignore it, and with some notable exceptions (like Senator Tammy Duckworth), public debate has mostly focused on other issues.

Yet the decision in Dobbs virtually guarantees the government's authority to prohibit IVF.  After explaining why I draw that inference, I will offer my account of why neither SA nor the rest of the Court is interested in enabling those who would prohibit IVF.

As a Matter of First Impression, Should Free Speech Protect the Right to Protest at Homes?

 by Michael C. Dorf

My latest Verdict column addresses the legal and strategic questions surrounding protests outside the homes of justices, judges, and other public officials. While recognizing the utter hypocrisy of the likes of insurrectionist-adjacent Josh Hawley calling for peaceful protesters to be prosecuted and that the issue could distract from the much larger looming disaster for American women as SCOTUS prepares to overrule the right to abortion, I nonetheless regard the questions as somewhat difficult. Here I want to step back a bit and consider the free speech question without the overhang of existing constitutional doctrine--especially the 1988 SCOTUS ruling in Frisby v. Schultz.

As I note in the column, Frisby found that the public have a right to peaceful protest in residential neighborhoods but not to engage in "targeted picketing"--i.e., protesting at length in front of any particular home. Is that the right line? Let's start from scratch.

Rational Basis Scrutiny?

by Sherry F. Colb

In his lengthy draft opinion overruling Roe v. Wade and Planned Parenthood v. Casey, Justice Samuel Alito (SA) does a number of things that add insult to injury. I have accordingly criticized SA's opinion here, here, here, and here, rather than just saying "Alito is a misogynist creep who turned back the clock a half century" and calling it a day. In this post, I will focus on the slap in women's faces that SA achieves by ruling that prohibitions against abortion trigger "rational basis" scrutiny.

Rational Basis

The first thing to note is that every law, however innocuous, must survive rational basis scrutiny if challenged under the Fourteenth Amendment Due Process Clause (as well as the Equal Protection Clause). A law, for instance, that requires drivers to signal before a lane change would, if challenged, have to undergo rational basis scrutiny (RBS). RBS, in turn, demands that the law at issue serve some legitimate purpose. Many have characterized RBS as toothless because only a ridiculous law that does not, even hypothetically, promote a legitimate objective fails RBS. Strict scrutiny, by contrast, demands that the actual purpose of a law (not just a hypothetical goal) promotes a compelling governmental interest and does so in a way that is narrowly tailored to the compelling interest and therefore neither over-inclusive nor under-inclusive with respect to that purpose. Limits directed at the freedom of speech and the right to marry must survive strict scrutiny, which most laws fail to satisfy.

A Few Very Hard Questions About Religion and the Court

By Eric Segall

A number of years ago I sat on a long plane ride next to an orthodox Jewish man. We struck up a conversation and found out that we each had three children. I have three daughters while he told me he had two daughters and a son. When I told him I was a law professor, he told me with delight that both of his sons had expressed some interest in going to law school. I asked him about his daughter and he said that she would, of course, be a wife and mother and take care of the home. I expressed surprise at this (naive I know), and asked him what his teen daughter thought about these differing expectations based on gender. The man said that she didn't have a choice but in any event his daughter was quite comfortable with this life plan. I asked him if I could speak freely and he kindly responded in the affirmative. I asked him how he could possibly justify limiting his daughter this way especially in light of how proud he sounded about his sons wanting to be lawyers. His response was that this is the way they live, it works, and he saw no need to alter this lifestyle for his daughter.

Here is my question: if this man were nominated to be a federal judge, should his views on gender disqualify him from the position?

Before turning to that question, let's agree on one thing. A federal judicial nominee who in a confirmation hearing testified that he did not think women should be CEO's, Senators, lawyers, or bankers because their proper place is in the home and that we would all be better off with more precise gender roles would not be confirmed. 

Does the calculus change if the nominee testifies exactly the same way but says his views are based on sincere religious faith?

Hold that question.

Justice Aborted

 by Sherry F. Colb

Justice Samuel Alito (SA) has given us commentators a lot to criticize in the days following the leak of his draft opinion overturning Roe v. Wade and Planned Parenthood v. Casey. In this post, I want to focus on a phrase he uses in the draft: "aborted fetuses." Because the Movement for Forced-Pregnancy-and-Birth has regularly used this phrase (along with the meaningless propaganda term "abortion on demand"), it might sound like a proper usage, but I would contend that it is not. We abort a process that has just begun or that is in progress. We do not "abort" the endpoint of the process. To say "aborted fetuses" is to pretend that there is no process.

So what? you might ask. The Court is approving of reproductive servitude for women, including victims of rape and incest, and I am nitpicking about phraseology? I will now explain why the phrase that SA uses matters a lot.

Normality and Increasing Awfulness -- Why Post-Roe Politics Will Not Save Democracy

by Neil H. Buchanan

Even the most casual reader of Dorf on Law is, I suspect, immediately struck by the pessimism infusing much of what we publish here.  The other day, I received an email from Professor Dorf under the subject line: "Our blog posts -- in cartoon form," providing a link to the latest from the indispensable satirist Tom Tomorrow.  Mr. Tomorrow (?) is capable of capturing in only six cartoon panels what a gifted writer would need at least six thousand words to convey (and that I would eventually cover in 15,000 words).

Misery loves company, and it is oddly heartening to see others who are as pessimistic as I am.  Maybe that says something about me, but in any case, I have lately been trying to think -- on (what I hope is) a deeper level -- about the sources of our well founded pessimism.  That is, much of my writing over the last several years has been a matter of describing the political mechanics that are in the process of killing our constitutional democracy.  But those mechanical processes have existed for a long time and are ultimately run by people.  The people who run them, however, are doing so in increasingly corrupt and shameless ways.  Why the change?

 

People tend to talk about "the new normal" of American politics, which allows us to contrast the current situation with the shattered norms of the past.  We also need to think about what has caused so many people not to care or even seem to notice that everything is different.  Unlike most of our conversations about this country's politics, this is truly a situation in which both parties are to blame -- but in very different ways.

The Aftermath of Carpenter v. United States

By Matthew Tokson

I recently wrote an article, "The Aftermath of Carpenter: An Empirical Study of Fourth Amendment Law, 2018-2021," forthcoming in the Harvard Law Review. The article looks at the state of Fourth Amendment law following the Supreme Court’s groundbreaking 2018 opinion in Carpenter v. United States. It analyzes hundreds of recent Fourth Amendment cases and identifies the factors that drive modern search decisions. It describes an emerging “Carpenter Test” that determines when the Fourth Amendment applies to government actions.

Essentially, this test looks to (1) the revealing nature of the data collected by the government, (2) the amount of data collected, and (3) whether a person has voluntarily disclosed their information to a third party. While other considerations sometimes arise, these three are the most influential and commonly used factors in modern Fourth Amendment decisions. They drive case outcomes in hundreds of frontier cases.

More broadly, courts have largely embraced Carpenter and its analysis, with almost no overt criticism and relatively little misapplication. The law is still developing, but Carpenter appears to be workable in the lower courts. That said, the aftermath of Carpenter highlights the surprisingly common phenomenon of “indirect noncompliance,” where courts intentionally misinterpret controlling precedent in order to reach a preferred outcome. A small percentage of post-Carpenter cases involve courts applying a strong version of a doctrine that Carpenter curtailed. These opinions may represent a small pocket of indirect resistance towards Carpenter. Yet judicial inertia towards a prior status quo is a common phenomenon following a major legal change, and its occurrence here is not too surprising. Judges confronting an unfamiliar new standard that raises decision costs and increases uncertainty are likely to favor the prior doctrine—at least until they grow more comfortable with the new one.  This effect has been observed in areas including criminal sentencing, patent remedies, copyright fair use, qualified immunity law, and many more.

Why "Pro-Life" Advocates Love Late-Term Abortions

 by Sherry F. Colb

Inspired by Justice Samuel Alito's (SA's) leaked opinion, I thought a lot about different kinds of abortions. Some, including medical abortions, take place very early in pregnancy. Others happen far later along. For Americans who do not take their position on abortion from religious doctrine, a late abortion is morally fraught in a way that an early abortion is not. Why? Because as a pregnancy progresses, the zygote, a simple one-celled organism like a paramecium, and a morula and blastula, clumps of undifferentiated tissue, grow into what increasingly looks like and acts like the baby it would eventually become. When the self-styled "pro-life" community march around with posters of allegedly aborted fetuses, you rarely see a picture of a zygote, blastula, or morula because no one sane would empathize with this reproductive tissue. Early abortions do not make for good copy. Indeed, an early abortion could look very much like a menstrual period.

So the "pro-life" folks need late abortions and photos (allegedly) of them to draw out a sense of empathy and outrage for the supposed "victims" of abortion. And what could be more upsetting for the viewer than seeing a metal instrument enter the uterus and tear a fully formed apparent baby limb from limb, followed by the crushing of that seeming baby's skull?

If all abortions took place very early in pregnancy, then the posters that urge forcible pregnancy and birth would have to either picture some cells (snore) or lie about what happens during an abortion. I would not ordinarily assume that a group of people is lying about their favorite topic except that I already know that they do. I recently watched Unplanned, a film that supposedly presented the truth about abortion. It involves a woman who worked at an abortion clinic but then saw what abortion really involved and switched sides on the issue. The lie? The overarching theme of the movie (which is absorbing if dishonest) was that the abortion clinic tries to pressure women who are unsure about whether to terminate into having the abortion so that the clinic can rake in the big bucks. In fact abortion providers often give women financial aid if they cannot afford to pay and almost any non-abortion medical practice will produce more profit and without risking the lives of the practitioners (because you never can tell when someone who is "pro-life" will decide to kill people who disagree with them). The big lie was the idea that people perform abortions for the great financial rewards. No one who does this work is in it for the cash. So if they lie about their adversaries' motives, then I cannot assume that they would tell the truth about early abortions.

Good Capitalists versus Vindictive Republicans

by Neil H. Buchanan 

 

"Sen. Scott calls for Biden to resign over inflation."  It is a cliche to say that something "made me laugh out loud," but wow.  Had anyone been nearby when I came across that Washington Post headline this morning, they would have been startled, to say the least.  That Rick Scott is one of my home state's US senators made the bitter humor even more pungent.

Scott, the former governor of Florida and admitted Medicare fraudster, is now spending his time in Washington pushing a Contract on America-like wish list of regressive policy proposals that his leader Mitch McConnell is trying to ignore until after the midterms.  That he views himself as qualified to speak about economic policy is amusing in and of itself, but the detachment from reality that has him calling for the President of the United States to resign because of relatively high inflation is beyond deranged.  At this point in his presidency, Ronald Reagan had presided over much more inflation than Joe Biden has, but sure, Biden should resign!

This small story, which does not even qualify for the news cycle equivalent of fifteen minutes of fame, offers as good an opportunity as any to talk once again about the Republican Party's war on capitalism.  Strap in.

In Defense of Enclaves

{N.B. This is a guest post by Antonio Haynes, discussing his love of Fire Island Pines.  He was prompted to respond to this article that appears in the New York Times.}

Antonio here. I am the other black man whose photograph the Gray Lady featured in Zach Stafford’s tendentious and self-indulgent recounting of his experience in Fire Island Pines. The narrative was peculiar to me because it was written by a black man who, by his own account, was a stranger to Fire Island. While I do not own property on the Island, I am a black gay man (effeminate, sometimes) who has not missed a summer there for more than a decade.  It is the only place on Earth where I am comfortable being all of myself. 

In every imaginable sense, Fire Island is a beautiful, inclusive place. Summer 2011 was the first time I ever lived in New York. As unknowledgeable and as unsophisticated as I may have been, all I knew is that I wanted to go to Fire Island.  To get there, I depended on my instincts, the kindness of strangers (often white), and my ability to figure it out.

Why Did SCOTUS Unanimously Find a Constitutional Right to Fly a Christian Flag on a City Hall Flagpole?

 by Michael C. Dorf

Today I'll talk about a case that the Supreme Court officially released last week. A unanimous Court, in an opinion by Justice Breyer, held that because Boston permitted secular groups to fly their flags on one of the three flagpoles in front of City Hall during permitted events, it also was required to permit a Christian group to fly its flag. The decision in Shurtleff v. Boston is arguably narrow. The U.S. Court of Appeals for the First Circuit had ruled for Boston on the ground that the display of a flag on City Hall grounds is government speech, and the government as speaker has much greater leeway to choose among messages it wishes to promote than it has as regulator of private speech. The bulk of Justice Breyer's opinion for the Court (in Part II) addresses this "basic question" of whether the government or the private group speaks by flying the flag. It concludes that the private group is the speaker.

However, that's not all that the opinion does. It also rejects the proposition that allowing the flying of the Christian flag (on a pole that is the same height as and adjacent to the poles flying U.S. flag and the Massachusetts flag) would violate the Establishment Clause. It then quickly proceeds to rely on the Court's free speech cases holding that government may not discriminate against religious speech to rule against the city.

In today's essay, I take issue with Justice Breyer's opinion in two ways: (1) The Court continues to treat government speech and private speech as though these are completely separate categories, rather than recognizing an intermediate category of mixed speech; and (2) the Court treats the federal First Amendment's Establishment Clause as the only legitimate source of church-state separation norms, thereby continuing the repudiation of an important principle--traceable to Chief Justice Rehnquist--that there is "play in the joints" between the two Religion Clauses of the First Amendment.

Why Is the Anti-Roe Draft Opinion Not Even More Brazen?

by Neil H. Buchanan

 

Roe v. Wade appears to be doomed, and it is important not to lose track of what is happening right before our eyes.  The loss of abortion rights is the loss of abortion rights.  There are other important parts to the story, but even without those other things to worry about, the stakes could not be higher.

 

As Professor Colb noted in her insightful column yesterday -- brilliantly titled "All Hail Justice Coathanger" -- we must remember that the Supreme Court's theocrats are set to empower governments at all levels in this country to harness the coercive powers of the state to force vulnerable people to become unwilling incubators.  As she put it: "It is difficult to imagine a more sex-based 'fuck you' than announcing that the government may lawfully force a woman (or a trans man or a nonbinary person) to go through all that pregnancy, labor, birth, and lactation involve."

Some people will die as a result, others will become grievously ill, and many poor and middle-class victims will be financially devastated.  And that is to say nothing of the emotional damage to the people who will be forced to make terrifying no-win choices about how to proceed in the Republicans' brave new world.

 

And, lest we forget, prosecutorial discretion all but guarantees that the targets of zealous criminal charges will be people of color and relatively poor people. Imagine being, for example, nonbinary and Black, faced with an unwanted pregnancy. Your life is hardly cushy to begin with, but while others might still be able to get away to a state where abortion is legal (for now), you know that there are people in law enforcement who would love to make an example of you. Life just became much more dangerous.

Also, there are the doctors, nurses, and the friends who try to help, all of whom might be charged with murder.  We must remind ourselves that this is no longer an abstraction.

All Hail Justice Coathanger

 by Sherry F. Colb

Many observers have already said wise things about the emesis issuing forth from Samuel Alito (SA) in the leaked draft majority opinion in Dobbs v. Jackson Women's Health Organization that has exposed the Supreme Court as the illegitimate institution that it has now become. I want to take this opportunity to propose, as an initial observation, that SA wears his hypocrisy on his sleeve.

In one part of what reads like an application for the Federalist Society Hall of Fame, SA makes quick work of dismissing the idea that banning abortion (including for rape and incest victims) denies equality to women on the basis of sex. Before quoting his discussion of this idea, I will briefly make the argument that he so cavalierly dismisses.

The argument is that for the most part, women's role in reproduction is far more demanding, physically and psychologically, than men's. Specifically, men ejaculate and thereby complete their role. Women, by contrast, endure forty weeks of some combination of nausea and vomiting, difficulty sleeping, difficulty breathing, the risk of gestational diabetes, the risk of life-threatening pre-eclampsia, the potential need to experience bed rest (which is anything but restful), the most physically painful experiences at the end, including the risk of vaginal tearing and of more serious complications, followed by the production of milk that can sometimes cause very painful mammary gland blockage (if she misses a feeding or pumping) and risks of an abscess.

Criminally prohibiting abortion means that when men ejaculate inside women (which some number do without the consent of the women involved), the law launches women into an extraordinarily burdensome experience and thus creates an extremely unequal state of affairs. Only those with a vagina and a uterus face the enormous and sometimes life-threatening burdens and risks of pregnancy and birth. It is difficult to imagine a more sex-based "fuck you" than announcing that the government may lawfully force a woman (or a trans man or a nonbinary person) to go through all that pregnancy, labor, birth, and lactation involve.

Deeply Rooted in Mystery and Suspicion: A Further Thought on Alito's Effort to Distinguish Other Unenumerated Rights

 by Michael C. Dorf

Part II of Justice Alito's leaked draft opinion in the Dobbs case argues at length that there is no constitutional right to abortion because such a right is not deeply rooted in history and tradition. Much of the argument is tendentious law office history, but there is a further problem. Many of the cases protecting other unenumerated rights would also fail this test if applied at the level of specificity that Justice Alito would apply it. For that reason, in my Verdict column yesterday I suggested that such other rights could be in jeopardy. I focused especially on the LGBTQ+ cases. Here's how I explained why Justice Alito's reassurances that the case only overturns abortion rights are not very reassuring:

[The Alito draft] first notes that Roe and Casey relied on prior cases recognizing such rights as the right to marry, to direct the education of one’s children, and to avoid unconsented surgery. It then also notes that the plaintiffs and the United States as amicus had connected the abortion right to the right of consenting adults to engage in same-sex sexual conduct (recognized in Lawrence v. Texas in 2003) and the right of same-sex couples to marry (recognized in Obergefell v. Hodges in 2015). Notably, however, the Alito draft then goes on to distinguish “the abortion right from the rights recognized in the cases on which Roe and Casey rely.” Crucially, Roe and Casey do not rely on Lawrence or Obergefell, as both of those rulings post-date Roe and Casey. The not-so-subtle implication is that the Court stands prepared to overrule Lawrence and Obergefell.

To be sure, the general language that precedes the seeming carve-out of Lawrence and Obergefell would appear to distinguish those cases from abortion as well. The supposedly crucial distinction to which the draft points is this: "Abortion destroys what [Roe and Casey] call 'potential life' and what the law at issue in this case regards as the life of an 'unborn human being.'” If I were arguing a future case in which the Court were asked to overrule Obergefell or Lawrence, I would surely emphasize that unlike abortion, the right to marry or have consensual sex with a person of the same sex causes no harm to third parties. For now, however, I want to point out how awkwardly this attempted distinction fits with a basic premise of the draft opinion.

A Few Brief Reflections on the Leak

 By Eric Segall

The Supreme Court has confirmed that the draft opinion overturning Roe v. Wade and Planned Parenthood v. Casey is authentic but, like all drafts, might change before it is final. Below are a few observations.

If the final opinion is substantially the same as the draft one, the tone is egregious and full of hubris. Reasonable people can disagree about whether the right to abortion should be protected by the Supreme Court. But the dismissive rhetoric by Justice Samuel Alito of the reasoning in both Roe and Casey is unnecessary and hateful. There are ways to write an opinion overturning those landmark cases that are sensitive to both sides. The draft is definitely not such an opinion and, if the tone remains, will further incense the left and increase polarization on this difficult issue. The opinion reads more like a Scalia dissent or an inflammatory argument of a media pundit than a Supreme Court opinion dealing with the most difficult of topics.

By referring to “unborn human beings” and using similar rhetoric, the Court may well be laying the groundwork for future courts to strike down abortion protections in blue states. That result would be a calamity beyond imagination.

The draft opinion's discussion of the history of abortion law in America does not accurately reflect our country's real struggles with this issue. Abortions before quickening were not illegal in America as a general matter before the mid-19th century. So much for serious originalism (no surprise).

Mask Mandate Munsingwear Mootness Mystery

 by Michael C. Dorf

[Note to readers: Last night Politico published a leaked draft of a Supreme Court opinion overturning the right to abortion. I'll undoubtedly have something to say about the substance and perhaps about the leak too. But for now, I'll stick to my regularly scheduled programming.] 

Last week, Adam White of the American Enterprise Institute and I were the featured guests on the National Constitution Center's We the People podcast, hosted by NCC President/CEO (and GW law professor) Jeff Rosen. We discussed Judge Mizelle's ruling invalidating the CDC mask mandate for travelers on planes, trains, and other forms of transit. White arguably agreed with my main line of criticism of the ruling--set forth in my Verdict column--as insufficiently deferential to the CDC in construing the scope of its statutory authority. (I say "arguably" because White said he thought the ruling not clearly right but also not clearly wrong.) We more squarely disagreed on the aspects of the ruling that held the CDC had violated the Administrative Procedure Act (APA) by failing to provide an adequate explanation for dispensing with notice-and-comment rulemaking or for the substance of the rule itself. Once again echoing points I made in my column, I found the objections unpersuasive, whereas White thought they were valid. Finally, we discussed the justifications Judge Mizelle offered for issuing a nationwide injunction and some broader implications.

Early in the podcast I noted the oddity that although the Biden administration has appealed Judge Mizelle's ruling, it has not sought a stay pending appeal. I speculated that the decision might reflect a political judgment. On one hand, the mask mandate is not especially popular now and, if not extended, would have expired on its own within a couple of weeks of Judge Mizelle's ruling, so it's understandable that the administration did not seek a stay, only to re-impose the mandate for a brief period. At the same time, however, Judge Mizelle's very narrow construction of the CDC's authority could limit its ability to fight further waves of COVID-19 or take other measures in response to future disease outbreaks, so appealing could make sense to preserve flexible authority.

Yet, as I noted during the podcast and in my column, the appeal itself is risky, because the Eleventh Circuit and/or the Supreme Court could end up affirming the reasoning of Judge Mizelle's ruling, thereby undermining rather than strengthening the CDC's authority. After all, a federal district court decision sets no binding precedent for future cases involving different parties, but federal appeals court and Supreme Court rulings do. So why did the Biden administration run the risk of an appeal that could backfire?

Of John McGinnis, Adrian Vermeule, Originalist Fallacies, and the Common Good

 By Eric Segall

Last week on the Law & Liberty blog, Professor John McGinnis, a well-known academic originalist and libertarian, reviewed Professor Adrian Vermeule's new book "Common Good Constitutionalism." Vermeule's anti-originalist writings have been upsetting originalists for some time now and for good reason. His critiques of originalism are as persuasive and compelling as his program for what he deems to be the "common good" is disturbing. But we can learn a lot about the fallacies of originalism through a serious examination of McGinnis's futile attempts to critique Vermeule's book.

McGinnis begins by saying Vermeule's attacks on originalism are unlikely to succeed because "the originalist project it challenges has too much momentum to be derailed. The Supreme Court has a majority of originalist justices, and a considerable majority of the small band of legal academic conservatives are originalists."

The Supreme Court does have a majority of Justices who self-identify as originalists but that is simply not the same as saying they decide cases like originalists. The examples of anti-originalist behavior on the Court could fill a book but here are a few key ones: