Finally, some sanity from an important institution, the Supreme Court of the United States. And in being sane it also exposes the insanity of deranged leftists.
This past week saw several important cases decided: Dobbs, NY State Rifle, Berger, and Carson. SCOTUS is firing on all cylinders, making excellent judgments based on law, not politics, with the screeching, screaming, minority activist judges dragged along against their will.
Of these, the one making the most news and eliciting the most ridiculous outcry is Dobbs.
Briefly, Mississippi’s Gestational Age Act provides that “except in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform or induce an abortion of an unborn human being if the probable gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks."
This law was challenged by an abortion clinic on the basis that it violated the provisions of Roe and Casey where the Supreme Court "manufactured" a constitutional right to obtain abortion up to the end of the second trimester on flimsy or nonexistent legal grounds.
The court held that "the Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives."
It was a 6-3 decision, the 3 being the extreme liberal activists Sotamayor, Breyer, and Kagan. Roberts went along with the majority, but issued lots of weasel words in his consent. Alito wrote the main decision, and it was very well-reasoned and attempted to be politically sensitive. Clarence Thomas is the firmest textualist on the court, and minced no words himself.
About time! I blogged about this in R.I.P RBG about 2 years ago. I mentioned that Ruth Bader Ginsberg was herself opposed to Roe on the basis that it was the court making laws, not interpreting them. This case has been made by the vast majority of constitutional lawyers as well. Quoting from my earlier blog entry, these include John Hart Ely, Laurence Tribe, Alan Dershowitz, Cass Sunstein, Kermit Roosevelt, Jeffrey Rosen, Michael Kinsley, William Saletan, Benjamin Wittes, and Edward Lazarus, a former clerk of the Justice who wrote the opinion, who said,
"As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible.... Justice Blackmun's opinion provides essentially no reasoning in support of its holding. And in the almost 30 years since Roe's announcement, no one has produced a convincing defense of Roe on its own terms."
The net result is that the question of abortion reverts to a State responsibility, where elected representatives can make whatever law their population, through the Democratic process, agrees upon. I find it absurd that people are protesting the exercise of democracy on this question. It's a hallmark of the authoritarian left to ram their ideas down the throats of everybody.
Personally, if every State passed a law exactly like Roe, but banning abortion except in medical emergencies in the third trimester, I would be all for that. The great majority of Americans agree with that, in favour of abortion but not by the third trimester with healthy mother and baby.
I mean, arguing that a fertilized egg is a "human being" is silly. And arguing that a baby a week away from birth is not a "human being" is equally silly. Saying the State has no interest in protecting the life of a human being is also silly. Compromise, people.
But I also find it fine that the majority in any State can decide for themselves, and I may agree or disagree with each of their laws. At least it's democracy in action, not judicial authoritarianism from a partisan unelected body. There is no impediment to moving to another state, or to cross state lines to obtain an abortion. I'm sure that with all the money the pro-abortion lobby spends, they can certainly privately fund poor people to assist them in making the trip.
Some people claim what we are seeing is a partisan court, with Democrats and Republicans. I don't see that at all. I see Activists and Textualists. Activists go way beyond what can reasonably be interpreted in the law to get decisions favouring their political viewpoint. The court has been dominated by Democrat Activist judges for a long time. Trump turned that tide and nominated Textualists to the court to make a majority.
Biden the President, Pelosi the Democrat house leader, and Garland the Attorney General are all making ridiculous statements that dangerously undermine the authority of the court to interpret the law.
From Biden:
From Garland:
The Supreme Court has eliminated an established right that has been an essential component of women’s liberty for half a century – a right that has safeguarded women’s ability to participate fully and equally in society. And in renouncing this fundamental right, which it had repeatedly recognized and reaffirmed, the Court has upended the doctrine of stare decisis, a key pillar of the rule of law. The Justice Department strongly disagrees with the Court’s decision. This decision deals a devastating blow to reproductive freedom in the United States. It will have an immediate and irreversible impact on the lives of people across the country. And it will be greatly disproportionate in its effect – with the greatest burdens felt by people of color and those of limited financial means.
That rhetoric is not helpful and undermines a pillar of the US system: the judiciary. There is nothing in the least "extreme" or "radical" or "dark". The decision returns the right to populations to decide for themselves via the democratic process. It was never a "constitutional right" to begin with, it was only made so by a past activist court and was now correctly overturned.
For an AG, responsible for upholding the law, to make such a statement is completely without precedent, and betrays a true darkness: the mechanism of the State deployed to political ends.
I'm sure we're going to see riots in the streets (I hope not), and i will be very interested to see if the rioters are prosecuted to the same extent, say, the Jan 6 rioters were, or are let off with a slap on the wrist like the BLM rioters were. We shall see.
Another important case was NY State Rifle.
The State of New York makes it a crime to possess a firearm without a license, whether inside or outside the home. An individual who wants to carry a firearm outside his home may obtain an unrestricted license to “have and carry” a concealed “pistol or revolver” if he can prove that “proper cause exists” for doing so. An applicant satisfies the “proper cause” requirement only if he can “demonstrate a special need for self-protection distinguishable from that of the general community.”
Petitioners Brandon Koch and Robert Nash are adult, law-abiding New York residents who both applied for unrestricted licenses to carry a handgun in public based on their generalized interest in self-defense. The State denied both of their applications for unrestricted licenses, allegedly because Koch and Nash failed to satisfy the “proper cause” requirement.
(Of course, underlying this, is that it is virtually impossible to be adjudicated to have proper cause in New York anyways, despite people displaying extreme need).
Petitioners then sued respondents—state officials who oversee the processing of licensing applications—for declaratory and injunctive relief, alleging that respondents violated their Second and Fourteenth Amendment rights by denying their unrestricted-license applications for failure to demonstrate a unique need for self-defense. The District Court dismissed petitioners’ complaint and the Court of Appeals affirmed. Both courts relied on the Second Circuit’s prior decision in Kachalsky v. County of Westchester, 701 F. 3d 81, which had sustained New York’s proper-cause standard, holding that the requirement was “substantially related to the achievement of an important governmental interest.”
The Court held that "New York’s proper-cause requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public for self-defense."
For reference, the 14th amendment states:
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
And the 2nd amendment states:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Unlike the supposed "right" to have an abortion (which does not, and has never existed in the Constitution), this is an actual real right, actually written in plain language.
You may disagree with what the Constitution says, but it would be disingenuous to argue the right is not spelled out in the Constitution. Likewise in the case of there being no right to abortion.
Carson involved religious school choice.
Maine has enacted a program of tuition assistance for parents who live in school districts that neither operate a secondary school of their own nor contract with a particular school in another district. Under that program, parents designate the secondary school they would like their child to attend, and the school district transmits payments to that school to help defray the costs of tuition.
Participating private schools must meet certain requirements to be eligible to receive tuition payments, including either accreditation from the New England Association of Schools and Colleges (NEASC) or approval from the Maine Department of Education. But they may otherwise differ from Maine public schools in various ways.
Since 1981, however, Maine has limited tuition assistance payments to “nonsectarian” schools. Petitioners sought tuition assistance to send their children to Bangor Christian Schools (BCS) and Temple Academy. Although both BCS and Temple Academy are accredited by NEASC, the schools do not qualify as “nonsectarian” and are thus ineligible to receive tuition payments under Maine’s tuition assistance program.
Petitioners sued the commissioner of the Maine Department of Education, alleging that the “nonsectarian” requirement violated the Free Exercise Clause and the Establishment Clause of the First Amendment, as well as the Equal Protection Clause of the Fourteenth Amendment.
The District Court rejected petitioners’ constitutional claims and granted judgment to the commissioner. The First Circuit affirmed.
The court held that "Maine’s 'nonsectarian' requirement for otherwise generally available tuition assistance payments violates the Free Exercise Clause."
For reference, the free exercise clause of the 1st amendment is highlighted.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Maine's law was a pretty clear clear violation of the first part of the 1st amendment.
Once again, you may disagree with what the Constitution says quite plainly, but that should be neither here nor there to a properly functioning court.
Berger is a bit more subtle, but important nonetheless as it upholds not monkeying around with democratically passed laws.
In 2018, North Carolina amended its Constitution to provide that “voters offering to vote in person shall present photographic identification.” Art. VI, §2(4). To implement the constitutional mandate, the General Assembly approved S. B. 824. The Governor vetoed the bill, the General Assembly overrode the veto, and S. B. 824 went into effect.
So one would think that would be it, right? Nope. The NAACP (The National Association for the Advancement of Colored People) then sued the Governor and members of the State Board of Elections (appointed by the Governor). The NAACP alleged that S. B. 824 offends the Federal Constitution. The defense was to be mounted by the Governor, the Board, and the AG, all of whom were against the law to begin with. The State House of Representatives moved to intervene, arguing that, without their participation, the State would not be adequately represented.
A District Court court denied that, saying the Governor defending it was just fine, and granted an injunction to pause the implementation of the law.
In this decision the Supreme Court held that "North Carolina’s legislative leaders are entitled to intervene in this litigation."
Basically, the court knocked down an intransigent Democrat Governor who was essentially weaseling his way around not respecting the State Constitution amendments passed by the State House.
Good on them!
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