The Daily Escape:
Denali from Byers Lake, AK – June 2022 photo by Todd Salat
In his concurring opinion to the decision in Dobbs v. Jackson Womenâs Health Organization, that dismantled Roe, Justice Thomas basically begged Red states to send the Court more culture war cases that they could dismantle.
The Houston Chronicle reports that Texas GOP AG Ken Paxton is ready to do just that:
âTexas Attorney General Ken Paxton last week seemingly expressed support for the Supreme Court potentially overturning past rulings on cases involving the LGBTQ community following the downfall of Roe v. Wade on Friday.â
Paxton, in an interview, said he would support the Supreme Court revisiting the cases mentioned in Thomasâ concurring opinion. Here are the decisions Thomas would like a shot at overturning:
He questioned a number of earlier Court rulings, including Obergefell v. Hodges, which established the right of same-sex couples to marry, and Lawrence vs. Texasâa 2003 decision in which the court ruled against the state of Texas regarding its 1973 law criminalizing the act of sodomy.
Thomas also mentioned Griswold v. Connecticut, which established the right of married couples to use contraception without government interference:
“In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell….We have a duty to ‘correct the error’ regarding these established in those precedents.”
For those who donât fully understand legal shorthand, the judicial theory Thomas is pursuing is that these issues should be in the hands of state legislatures, and not be decided by the courts.
Conservatives in other states have also expressed support for Thomas’s opinion, including Utah Senate President Stuart Adams, who said he would support the Supreme Court reconsidering same-sex marriage. Utahâs constitutional ban on same-sex unions still exists and could be reinstated if the high court were to overturn its earlier decision.
We shouldnât forget that Obergefell was a 5-4 decision. Lawrence v. Texas was also a 5-4 decision. Since these cases were decided, the Court has moved three seats to the right. We should expect that both of these decisions will be overturned, assuming some state AG sends a case up to the Supremes.
After all, the Courtâs Conservatives havenât gotten more liberal on these issues in the last 10-15 years.
Some more history: Griswold v, Connecticut was decided 7-2, Loving v. Virginia was unanimous; and Brown v. Board of Education was unanimous. All of that said, while history shows that very few 5-4 decisions get overturned, in this time of Conservative Justice grievance, thatâs not the way to bet. Even if those cases had been 6-3, 7-2 or 8-1, it wouldn’t matter to the current Justices on the Court.
Pundits are talking as if they would be shocked if the Court reverses Obergefell and Lawrence. Thatâs because theyâre comforted that Thomasâs revolutionary concurrence wasnât joined by other Justices. But all of them voted to end Roe, and Alito said:
“…abortion is not mentioned anywhere in the Constitution. Therefore, there is no right to an abortion.”
We should also remember that the Court used nearly word for word, the failed Robert Bork’s reasoning why there isnât a Constitutional right to privacy in Griswold v. Connecticut.
If thereâs no right to privacy because the Constitution does not explicitly state there is such a right, then according to the Courtâs Conservative 6, all of the rest of our privacy rights are in play. That means nearly nothing in the Fourth Amendment may remain, because you have no right to privacy in your home or in your vehicle.
But if you bet that the Courtâs Conservative majority will somehow find that the founders explicitly wanted corporations to have a right to privacy, youâll earn some folding money.
The naked desire by the Furious Five to achieve their ideological goals as quickly as possible is most likely, uncontrollable. Chief Justice Roberts is being increasingly sidelined because he wants to (at least) try to hide their ideological agenda. But the Furious Five doesnât have any interest in hiding what theyâre doing.
No more calling âballs and strikesâ as Roberts said during his 2005 Senate confirmation hearing.
In closing, the music world has reacted strongly to the Supreme Court ruling on abortion. NPR has a nice roundup of what artists are saying and doing in response. Check it out if you have time.
I trace all of this to the Warren Court’s expansive view of rights based on the view of some of the founders (Hamilton and Madison) that the rights not enumerated were still rights. Hamilton and others also believed in an evolving constitution, via case law – similar to how English law evolved. In order to avoid this notion (and crush the movement for more rights) conservatives in recent years created a distinction between enumerated rights and others.
They also twisted the meaning of the constitution. The 2nd Amendment was written in response to a fear of a standing army, so a well trained militia would be the alternative. Regarding militias – in fact in many cases the militia held weapons and powder not individuals – though individuals would also own weapons, often squirrel guns and shot guns. The right of persons to own guns was not created by the 2nd amendment (in my view) but if it exists at all should be a non-enumerated right. property rights are not enumerated but assumed. and privacy is also assumed (and is at the center of the 4th and 5th amendments).
But to have non enumerated rights is to respect the Warren Court – and so support civil rights. The conservative movement is largely a reflection of southern biases (white biases) and has little in common with conservative views like that of Hamilton and Adams.
As usual, Terence McKenna’s comment is incisive and scholarly. I would add that the three branches of government were meant to be coequal. Several of last week’s SCOTUS opinions reflect an effort to trim back the power of the Administrative Branch aka “Deep State.” Were the Legislative Branch not so hamstrung by the filibuster and the enormous advantage of rural sensibilities in the Senate, the votes would be there to do what SCOTUS has proposed: pass legislation setting forth the stripped powers. Makes the upcoming election seem much more important, does it not?