The Week from Hell

 By Eric Segall

Last week the Supreme Court issued three rulings that dramatically changed constitutional law in this country for the worse. The three liberals dissented in all three cases. The ultra-conservative Supreme Court majority lowered the wall of separation between church and state, limited the ability of states to pass reasonable gun laws, and reversed Roe v. Wade and returned the issue of abortion to the states (or potentially Congress). My very sad observations are below.


Carson v. Makin

From 1988-1991, while at the Department of Justice, I defended on behalf of the United States Department of Education a church/state case in San Francisco in which Americans United for Separation of Church and State challenged a generally available federal aid program which benefitted religious schools. I worked closely with experienced lawyers representing the United States Catholic Conference and the Archdiocese of San Francisco. Their position, and ours, was that the federal program was constitutional under the establishment clause. 

I would vote against such programs but given my views about judicial deference, I did not think such programs were unconstitutional. No one in that case thought that, when the government decides to give aid to not-for-profit private secular schools, it would be constitutionally obligated under the free exercise clause to provide the same aid to religious schools. No one even thought of making that argument to the court. And did I mention the case involved excellent lawyers representing the Archdiocese of San Francisco and the United States Catholic Conference who had every incentive to make such an argument?

In a trio of cases culminating in the Carson opinion, the Roberts Court has held that, if a state decides to financially assist either secular private schools or the parents of children attending such schools, then it is also under a constitutional obligation under the free exercise clause to provide the same help to religious private schools or parents of children attending such schools.

I previously summarized the facts of Carson as follows: 

The State of Maine has a problem. There are approximately 180,000 elementary and secondary school children in the state spread out over 260 public school districts. Often in rural areas there are not enough students to fill public schools so Maine helps parents financially to send their children to private schools, which have to be "non-sectarian." A school is sectarian if it engages in religious instruction.  
The plaintiffs are parents who argue it is unconstitutional for Maine to set aside money for parents to send their kids to non-religious private schools but not private religious schools. For its part, Maine makes the quite common sense argument that it is simply trying through this program to replicate a public school education and such an education should not (maybe cannot) include religious education. 

The Carson majority, relying on two previous recent cases, Trinity Lutheran v. Comer, and Espinoza v. Montana Department of Revenue, held that Maine has no choice but to fund religious private schools if it wants to fund secular private schools. The result of that decision is that taxpayer money must be used for religious education if it is used for secular education. Nothing in the text or history of the United States Constitution supports, much less requires, that result.

As Mike and I have both written, the Roberts Courts is super-charging the free exercise clause while reading the establishment clause out of the Constitution. In fact, as Mike has also suggested, we are at the point that a state's good faith efforts to comply with the establishment clause now violate the free exercise clause. These cases do not just lower the wall of separation between church and state; they effectively require the states in many cases to breach the wall. 

These cases all represent major departures from how the first amendment has traditionally been interpreted by the Court, the people, Congress, and the states, and they do so without any originalist basis. In fact, there is virtually no history recounted in any of the three cases. All three opinions simply represent the religious values of the conservative Justices, nothing more and nothing less. 


New York State Pistol & Rifle Ass'n v. Bruen

This case presented a Second Amendment challenge to a 108-year-old New York law that required a special permit before someone may legally carry a concealed handgun. The Court had not issued an important Second Amendment opinion since 2010 and it is quite unfortunate that it decided this one. 

The New York law had a long historical pedigree and is not too different from many other gun laws that have been on the books since the Founding. Although 43 states don't have such laws, most of those states do have clear guidelines to be met before someone may acquire a conceal carry license such as a background check or training pre-requisites. The New York scheme did give New York officials much more discretion, though in practice the record was quite unclear how New York officials exercised that discretion. But the difference between clear pre-requisites for a license and discretionary ones, a distinction that is important for free speech law, should not have mattered here because, despite the Court's prior cases, neither text nor history supports reading the Second Amendment as creating an individual right to own guns. Although that argument has been lost, someday I think it will win again. 

Justice Thomas's opinion is atrocious for many reasons, which I could write 100 pages about. But the worst of the worst of it is his repeated suggestions that constitutional law is and should only be about text and history not the balancing of values. This observation as a descriptive matter is demonstrably false and as a normative matter impossible to implement (at least in this country). For example, Mike's Verdict column on the case noted how Justice Thomas completely ignored the main branch of free speech doctrine to assert that it is comparable to his history-only methodology.

More broadly, I can't say it any better today than Dean Erwin Chemerinsky said it in his classic Foreword to the Harvard Law Review written in 1989: "Constitutional law now and always is about values....Scholarship should reveal and debate the Court's value choices."

The majority in Bruen repeatedly claims that its decision is based on text and history but of course it is not. Most historians have argued that the Court's two prior cases finding a personal right to own guns under a constitutional amendment that begins with "A well-regulated militia, being necessary to the security of a free state," is inconsistent with what we know about the history of that amendment. But the Justices don't care that their view has been decimated by experts. And even were history the real guide, which I want to emphasize it is not, the dissent in Bruen shows that history does not support the Court's decision taking away from the people of New York the right to decide when people should be able to secretly carry a handgun in public.

The Bruen decision could call into question many gun laws already on the books and those which are proposed. But the proper balance between today's high powered weapons and public safety simply cannot be sensibly resolved based on history. It just can't. But lower courts judges will have to employ this fatally obsolete historical approach. 

Given the spate of tragic gun shootings in recent months, I thought the Court would issue a more restrained opinion. I was quite wrong. As I've previously written:

There is no constitutional issue in this country more sensitive to local conditions than finding the right balance between public safety and gun rights. What is effective in Montana, Los Angeles, rural Massachusetts, and Columbus, Ohio might vary considerably. Leaving aside the remote possibility that Congress might pass meaningful gun reform, there is no need for the Justices to get involved in these hard, local questions. Over 40 states protect gun rights; we simply don't need the Justices to do the same, at least not with respect to state laws. 


Dobbs v. Jackson's Women's Health

Because of the leaked opinion, this blog has comprehensively covered this case over the last month or so. Below are a few additional observations.

First, I am still stunned that in 2022, five or six Supreme Court Justices still refuse to engage in any equality or equal protection analysis of abortion restrictions other than applying the normal rational basis test to ordinary medical procedures. The majority said the following (citations omitted):

[W]e briefly address one additional constitutional provision that some of respondents’ amici have now offered as yet another potential home for the abortion right: the Fourteenth Amendment’s Equal Protection Clause. Neither Roe nor Casey saw fit to invoke this theory, and it is squarely foreclosed by our precedents, which establish that a State’s regulation of abortion is not a sex-based classification and is thus not subject to the 'heightened scrutiny' that applies to such classifications. The regulation of a medical procedure that only one sex can undergo does not trigger heightened constitutional scrutiny unless the regulation is a mere pretext designed to effect an invidious discrimination against members of one sex or the other. And as the Court has stated, the goal of preventing abortion does not constitute invidiously discriminatory animus against women. Accordingly, laws regulating or prohibiting abortion are not subject to heightened scrutiny. Rather, they are governed by the same standard of review as other health and safety measures.

It is absurd and wrong to think that both abortions and childbirth are just like other "medical procedures." When my right shoulder was reconstructed, it did not require me to be responsible for another life. The balance between the states' interest in potential life and the ability of women to be equal in our country is the most important part of this divisive issue. And the Justices just shrug it all away in a few words. 

Second, in his concurring opinion, Chief Justice Roberts criticizes the majority for deciding whether to reverse Roe when that issue was not part of the question presented and not even fairly raised by the case. Roberts said the following:

Surely we should adhere closely to principles of judicial restraint here, where the broader path the Court chooses entails repudiating a constitutional right we have not only previously recognized, but also expressly reaffirmed applying the doctrine of stare decisis. The Court’s opinion is thoughtful and thorough, but those virtues cannot compensate for the fact that its dramatic and consequential ruling is unnecessary to decide the case before us. 

It should be remembered that five Justices overruled one of the most important and impactful cases in history over the objections of the Chief Justice who thought that issue was not properly before the Court.

Finally, there is footnote 48 of the majority opinion which lists dozens and dozens of important cases that have been reversed by the Court over the years.  The footnote is almost three pages long and includes cases from virtually every area of litigated constitutional law. This institution we call a court simply has rarely cared about prior law. And, this tribunal has been officially asked many times to reverse Roe and even once explicitly said no. Now it does so even though, as the dissent points out, the "Court reverses course today for one reason and one reason only: because the composition of this Court has changed."

Just so. During the week from hell, the institution most Americans call a court tore down the wall of separation between church and state, strongly strengthened gun rights, and reversed a long-standing precedent necessary for women to be equal to men in our country. And this week will likely bring more of the same.

The Court is either not a court at all or it is a very bad court, whichever you prefer. But either way, law has very little to do with it. Yesterday, today, and tomorrow, litigated constitutional law is about values all the way down. And in this author's opinion, the values of the current conservative Justices are terrible.