This is a hard week to post about. There were three opinion days this week. And each one featured a new decision that ripped at the fabric of modern society and featured a rewriting of history in the service of originalism to allow the reactionary members of the court to push through an agenda that lacks electoral support based on a misreading of the Constitution.
Tuesday started off the week with Carson vs. Makin, the Maine school voucher case. Traditionally, there have been two prongs to the Free Exercise Clause — one prong involves the power to follow one’s religious beliefs without penalty and the other prong involves discrimination based on religion. Posed against the Free Exercise Clause is the Establishment Clause which forbids the government from establishing an official religion or religions. Traditionally, the big fights have been in the “no penalty” prong.
On the penalizing religion prong, the battle has always been the reasonableness of the proposed accommodations measured against the significance of the government interest. And in the late 1980s, after one of the low points of religious freedom in which Justice Scalia basically limited this prong to the right to have beliefs without penalty for those beliefs (but no right to act on those beliefs), Congress overreacted by enacting the Religious Freedom Restoration Act which went to the other extreme. The RFRA and the Free Exercise Clause are on the verge of being interpreted as allowing people to claim religious exemptions from civil rights laws. And we are likely to see another case in this prong later this week allowing a coach at a public school to pray publicly while on the job at a school function.
But it is on the non-discrimination prong that the most revolutionary work is being done. Traditionally, the rule was that you could not bar people from benefits because of their religious beliefs. But this prong was never interpreted as requiring government to provide funding for religious groups. In fact, the Establishment Clause stood as a barrier to funding for religious groups (at least in certain circumstances). To show how far things have gone, in the 1970s, state funding to religious schools was held to potentially violate the Establishment Clause in Lemon vs. Kurtzman (one of the favorite whipping boys of the far right legal movement). There was even question about whether tax exemptions for religious groups (and tax deductions for donations to religious groups) violated the Establishment Clause. Today, however, we have what has been called the “most favored nation” approach to the Free Exercise Clause. Under this approach, if the government provides assistance or other government benefits to secular groups, that same assistance must be provided to religious groups that perform the same functions (even if the religious groups add religious elements to their performance of that function). In Carson, the Supreme Court held that, if financial assistance is offered for private schools, the same assistance must be offered for parochial schools.
In essence, this rule eliminates any gap between the Establishment Clause and the Free Exercise Clause. The purpose of the Establishment Clause was to prevent the government from subsidizing religion. A moderate interpretation of both clauses would create some space between when government must and when government can’t make funding available to religious groups. However, Carson is the latest case in which the Supreme Court has effectively eliminated any buffer between the two. If government decides to create a program, religious groups are entitled to participate and receive government benefits under the Free Exercise Clause unless the provision of such benefits would violate the Establishment Clause (which under this Court’s restricted reading of the Establishment Clause is almost never). Madison, Hamilton, and Jefferson are rolling over in their graves.
Strike two this week came on Thursday with the infamous decision in New York State Rifle Association v. Bruen. Lawyers often say that no right is absolute. And the Second Amendment expressly qualifies the right to bear arms by connecting it with the militia. But this Court does not care about the text of the Second Amendment. Where almost every other right can be limited when there is a compelling interest, the majority opinion by Justice Thomas says that for the Second Amendment the sole question is whether a regulation is of the type permitted in 1791 (when the Second Amendment was ratified) or in 1868 (when the Fourteenth Amendment was ratified making the Second Amendment applicable to the states).
The ahistorical nature of the majority opinion should be readily apparent. Under the majority opinion, the types of weapons protected by the Second Amendment are allowed to evolve. Rifles and handguns are deemed the equivalent of muskets. This part of the analysis ignores the limitations of muskets. While there are many differences between muskets in 1791 and semi-automatic handguns, there are three major differences. First, there was no mass production of muskets in 1791. Every gun was handmade by a gunsmith. If the gunsmith was worried that a particular person should not have a gun, they simply did not need to make a gun for that person. Even New York City only had a population of around 33,000. Second, a musket was a single shot weapon. So mass killings were effectively impossible. By the time that the musketeer could reload, they would be swarmed by the crowd. Third, a musket is a very inaccurate weapon as it lacks rifling. If you shot into a crowd, you might hit one person, but there was no way to be sure of hitting a specific person. In other words, a musket was not a good way to murder a particular person. And self-policing by friends, neighbors, and craftsmen eliminated the need for laws to keep guns away from dangerous individuals. (Additionally, so many crimes were capital offenses and protections for the civil rights of mentally ill individuals was so limited that there was no need to worry about the known mentally ill or convicted criminals getting guns.)
A realistic interpretation of the Second Amendment would recognize that what qualifies as a reasonable regulation (implicitly permitted by the clause connecting the right to bear arms to a well-regulated militia) evolves as the weapons protected by the Second Amendment evolves. The majority opinion simply does not recognize this equivalence. The one hope is that the concurring opinion by Justice Kavanaugh (joined by Chief Justice Roberts) implies that most current restrictions will withstand constitutional challenge. But both justices join the majority opinion which does not. We are now left at the whim of six justices who know what type of regulation is similar to the 1860s regulations when they see it. We can only hope that, for most gun laws, the majority of the Supreme Court will see the current regulation as being a mere difference of degree rather than a difference of kind from the traditional regulations.
The final blow to the rights of most Americans was, of course, Dobbs. Again, the majority simply rewrites history and ignores how things have changed over time. While there were some laws barring abortion in the 1860s, the vast majority only applied post-viability. Furthermore, the 1860s were the early days of medicine. There was no FDA regulating drugs to assure that they were safe and surgical techniques were very rough. Additionally, state regulations of doctors were still at an early phase. In short, abortion was very, very risky. It is easy to see limits on abortion as a legitimate heatlh and safety concern. (It is also easy to see regulations of abortion as one of the early stages in the efforts of doctors — who were all male — to gain an exclusive power to practice what they considered medicine and to drive out midwives — who were all female — from their role in what we now call obstetrics.)
In overturning Roe and setting back the rights of women by over fifty years, Justice Alito pretends that this decision is limited to Roe. However, Roe was not about the right to abortion. It was about the right to privacy and control of decisions related to procreation, marriage, the family, and sexual conduct. If Roe was wrongly decided, then so were Griswold (right to contraception), Obergfell (right to same sex marriage), Lawrence (right to engage in homosexual conduct), and Loving (right to interracial marriage). Justice Thomas at least has the semi-intellectual honesty to recognize what opinions are impacted by Dobbs — other than, for some reason which does not immediately come to mind, not including Loving on that list.
The Supreme Court was intended to be an anti-Democratic institution. The concept of a constitution is to create certain rules that are difficult for political institutions to overcome. But things have changed since the Framing. Life expectancies have gotten longer. It is now possible for justices to stay on the court for thirty or forty years at a time. Justice Souter, Chief Justice Burger, and Justice O’Connor are the only justice who retired after less than twenty-five years on the court. And even Justice O’Connor’s service places her in the top third of service length for justices on the Supreme Court. With the expectation that any justice will serve six presidential terms, vacancies have become random events. And that means that the political power of the Supreme Court is used in a random way. The only way to assure a reasonable Supreme Court is to win every election. Republicans have controlled both the Senate and the White House for only eight years in the last twenty-six years, but that was good enough to put five of the current justices on the Supreme Court. While the Democrats have controlled both the White House and Senate for the same length of time, Democrats have only managed to get three justices. More importantly during that same time period the Democrats only controlled the Senate for two years under a Republican president while Republicans controlled the Senate during a Democratic president for eight years. Thus, while Democrats have done better at winning the White House, or losses in Senate elections — especially in 2014 — has prevented Democrats from converting holding the White House into placing justices on the Supreme Court. As the deaths of Justice Scalia and Justice Ginsburg show, vacancies can occur at any time, and justices do not always get to determine when a successor will be chosen. While the concept of a constitution is supposed to reduce the significance of every election, the far right’s campaign to make the Supreme Court just another political branch has made every election significant. We simply cannot afford to lose control of the White House or Senate ever if we want our rights to be protected from the dictatorship of a reactionary minority.
