THE COURT GIVETH AND...

“ I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind as that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances. Institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.”

– Thomas Jefferson to H. Tompkinson (AKA Samuel Kercheval), July 12, 1816 - quoted on Panel 4 of the Jefferson Memorial

Originalism is a sham. The partisan hacks on the Supreme Court wield it enthusiastically when denying reproductive rights, or environmental regulation. At the same time they conveniently forget originalism when extending “free speech” to money and religious rights to corporations. Originalism is a lofty-sounding, phony excuse for imposing a partisan, regressive, theocratic ideology on Americans.

Originalism is an other attempt to reverse the decision of the Civil War. As Heather Cox Richardson made clear in her book, “How The South Won The Civil War” (which I highly recommend you obtain and read), the post-Civil War amendments, particularly the 14th, were a second Declaration of Independence--a declaration that all men (and, eventually, women) really are equal. The originalists may not admit it, but by harking back to 1787 and ignoring 1868, they want to overthrow the Union triumph of 1861-65.

In last week’s Supreme Court decision to allow SB 8, the Texas law outlawing abortion after six weeks, despite this law being in direct contravention to all the Supreme Court decisions of the past 49 years on the subject, Associate Justice Sotomayor wrote: "The court’s ‘choice to shrink from Texas’ challenge to federal supremacy will have far-reaching repercussions. I doubt the Court, let alone the country, is prepared for them."

The ideological heirs of the slave holding South and fellow travelers of the Confederacy have schemed -from the day the Constitution was signed, to the day it was affirmed by Lincoln, and then further enacted by Lyndon Johnson - to unravel our civil rights protections. The Roberts Court has given them enough rope to lynch what they were not able to strangle in its cradle. An American revolutionary vision of radical equality.

In a blazing dissent, Justice Sonia Sotomayor took the conservative bloc to task for laying federal supremacy vulnerable to tactics she compares to those of pro-slavery crusader John C. Calhoun.

“This is a brazen challenge to our federal structure. It echoes the philosophy of John C. Calhoun, a virulent defender of the slaveholding South who insisted that States had the right to “veto” or “nullif[y]” any federal law with which they disagreed.”

Justice Sotomayor is clear-eyed about what’s going on: “By foreclosing suit against state-court officials and the state attorney general, the Court effectively invites other States to refine S. B. 8’s model for nullifying federal rights. The Court thus betrays not only the citizens of Texas, but also our constitutional system of government.”

She lays it all out in Part III of her opinion. Here’s the opening graph but you should read it all: “My disagreement with the Court runs far deeper than a quibble over how many defendants these petitioners may sue. The dispute is over whether States may nullify federal constitutional rights by employing schemes like the one at hand. The Court indicates that they can, so long as they write their laws to more thoroughly disclaim all enforcement by state officials, including licensing officials. This choice to shrink from Texas’ challenge to federal supremacy will have far-reaching repercussions. I doubt the Court, let alone the country, is prepared for them.”

She notes the dramatic and dangerous knock-on effects the court’s decision could have, barring federal courts from intervening when a state passes an unconstitutional law. “The Court thus betrays not only the citizens of Texas, but also our constitutional system of government.”

“These consequences have only rewarded the State’s effort at nullification.”

Chief Justice John Roberts also dissented, taking a milder tone than Sotomayor. “The clear purpose and actual effect of S.B. 8 has been to nullify this Court’s rulings... The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake.”

So far, press coverage of this decision is all wrong.

The five-justice majority did allow a narrow route into federal court, suing the state licensing authorities. But it will be easy for Texas and other states to close that route and block all access to federal court – because the majority makes clear that is permissible.

Justices Neil Gorsuch, Amy Coney Barrett, Brett Kavanaugh and Samuel Alito ruled that abortion providers in Texas can sue a limited number of executive licensing officials — regulators at state medical entities — but not state clerks or the Texas attorney general. The liberals plus Chief Justice John Roberts argued that providers should be able to sue the latter two categories as well. Justice Clarence Thomas said the providers should be allowed to sue no one.

The threat posed by the Texas law is the private lawsuits against abortion providers, and anyone who provides related help to those seeking abortions, threatening draconian liability. The relief that providers and other prospective defendants need, therefore, is an injunction blocking those suits. But the majority’s ruling – barring suits against the court clerks and prospective plaintiffs, makes clear that federal courts can’t give any relief against those lawsuits.

What the majority permits is only a federal court suit based on the threat of enforcement action by state licensing entities. But all Texas, or another state, would have to do is to make clear that no enforcement action is permissible, by any entity. If it does that, there is no federal court action permissible under the majority’s rationale.

The ruling shows just how far this majority is willing to go in limiting access to federal court, and how unwilling it is to protect constitutional rights against novel threats. That is of a piece with the Mississippi abortion law in Dobbs and the earlier argument last week in the Maine Establishment Clause case. The enforcement scheme is also meant to shield the ban, which is clearly unconstitutional under current precedent, from judicial review.

“By foreclosing suit against state court officials and the state attorney general, the Court clears the way for States to reprise and perfect Texas’ scheme in the future to target the exercise of any right recognized by this Court with which they disagree,” Sotomayor writes.

We are in for dramatic changes in our entire legal system.

In fact, what the court’s decision is really about is the reconstruction of established law. Justice Neil Gorsuch’s majority opinion in the case has vast implications for American law and thus, necessarily, for constitutional justice. This comes down to two legal concepts: the Court’s longstanding allowance for pre-enforcement review; and the Court’s consideration of a law’s “chilling” effects on constitutional rights as part of that determination.

Pre-enforcement review concerns the question of when an objectionable law can be challenged in court. Sometimes, courts will dismiss a lawsuit a policy change in a rule, or a law, as premature, telling the plaintiffs to come back after the law has actually been enforced, so that a better record can be formed as to the actual effects of the new law. Other times, courts will allow the suit to move forward pre-enforcement, on the rationale that the very existence of the law presents a significant enough harm to warrant immediate judicial intervention.

One reason that a law might be susceptible to pre-enforcement review is that its very existence has a chilling effect on established constitutional rights, most noticeably when it comes to the First Amendment.

That has been the way of the court certainly through the lifetimes of most reading this. What’s different now is that, over the past summer, the Supreme Court twice refused to extend similar injunctive relief to prevent enforcement of SB-8 as it impacts pregnant Texans whose access to abortion prior to 24 weeks is otherwise constitutionally protected. SB-8 was allowed to go into full force and effect despite its abrogation of a constitutional right.

With SB-8, the Court has recognized it is contra a current constitutional right. Now that it has been allowed to go into effect first and be challenged second, the effect on future cases will be to unwind the precedent of pre-enforcement review for constitutional matters - even if the law creates a “chilling effect,” as Texas SB-8 clearly does. Justice Sotomayor explained this in her dissent: “The chilling effect has been near total, depriving pregnant women in Texas of virtually all opportunity to seek abortion care within their home State after their sixth week of pregnancy.”

Repeating Justice Roberts: “The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake.”

The fact the new majority does not sign on to the concept that the Supreme Court’s role is to protect established constitutional rights from government infringement, whatever the right may be, is a Very Big Deal.

Gorsuch’s majority opinion says that “... those seeking to challenge the constitutionality of state laws are not always able to pick and choose the timing and preferred forum for their arguments.” He then claims pre-enforcement review “was not prominent until the mid- 20th century,” and that “many federal constitutional rights are as a practical matter asserted typically as defenses to state-law claims, not in federal pre- enforcement cases like this one.”

The important line is that, as for “… the ‘chilling effect’ associated with a potentially unconstitutional law being ‘on the books, that concern is insufficient to ‘justify federal intervention’ in a pre-enforcement suit.”

In other words, pre-enforcement review may be as good as dead. Citizens who think a law is being constructed to specifically get around a constitutional protection will have to take their chances with the justice system, suffer any harm that comes with their rights being violated in the interim, and hope for the best.

None of this is about abortion! It’s about how activist legislators are now empowered by the Court to dare citizens to try and subvert constitutionally-protected rights and, as far as this Court is concerned, get away with it.

Already, California Governor Gavin Newsom said he plans to use a controversial U.S. Supreme Court ruling on strict abortion curbs in Texas to design a law that would allow private citizens to sue some gun manufacturers, distributors and sellers.

Newsom’s announcement may be serious, or merely a way to comment on what he sees as the effect of what the Court has done.

Perhaps I might like depriving you of your right to buy a gun. Perhaps you might like to find a way to prevent me writing what you don’t like. Under this decision, either act would appear on its face to be possible.

This is not the way the Rule of Law is supposed to operate.

And with the Court demonstrating that it is now willing to forego any obeisance to stare decis, to the rule of precedent, there are a lot of rights we take as part of The Way Things Are that are now on the line.

The Court referred several times in both the arguments over SB-8 and the Mississippi abortion restrictions to how they reversed “decades of precedent” when they overturned Plessy v. Fergusion with Brown v. Board of Education, because “time had proven it wrong.”

So what is to prevent this empowered majority from taking second looks at gay marriage, inter-racial marriage, the right of access to birth control, the requirement of law enforcement to inform an arrestee of their rights, even the right of government to enforce rules and regulations on commercial enterprises?

The entire body of progressive legislation and legal decisions from the Twentieth Century is now “open to revision.”

All. Of. It.

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