Congress: Another Opening, Another Show…

And now, the 118th Congress convenes.  What can we expect to see?

Starting with the Senate:  As a result of the 2022 elections, there will now be 51 senators who are either Democrats or Independents who caucus with the Democrats (there are 3 in that latter category) and 49 Republicans.  Because the Republicans control the House and because it actually takes 60 seats for either party to actually control the Senate, this doesn’t translate into any great legislative prospects for the Democrats.  It does, however, mean that Biden can expect to continue to have the cooperation he needs for confirming his judicial appointments.  Biden has set a record for both the number of women and the number of Black women he has appointed to the bench, and of course it’s to be expected that the people he appoints to the bench will be either liberals or at least judges who don’t have big records of conservatism.  So Biden will likely continue the process of balancing off the huge rash of conservative appointments that Trump made during his four years, when he had a Republican majority behind him in the Senate.

Turning now to the House:  The Republicans were expected to make a big sweep, but all they got was a narrow majority.  Still, that narrow majority is going to be enough to do two things:  (1) make sure that no legislation that the party doesn’t want will come up for a vote, and (2) launch a spate of committee investigations designed to embarrass President Biden.

First, the Republicans have to agree on a Speaker of the House.  Kevin McCarthy, the minority leader for the past four years, wants to be Speaker, but he has some opposition from conservatives who don’t think he’s conservative enough, or perhaps don’t think he’s Trumpy enough.  It’s not a neat division, and in fact he has he support of the looniest Trump supporter of all in the House, Marjorie Taylor Greene of Georgia, who won re-election.  The question is, if the Republicans can’t agree on McCarthy, whom can they agree on?  They need somebody who can get the votes of both the Trump extremists and the more mainstream “establishment” Republicans, though even there, one doesn’t find many who actually repudiate Trump.

One more thing about the 2022 elections:  Although many election deniers (the people who deny that Joe Biden was the rightful winner of the 2020 presidential election) were defeated at the state level, both the House and Senate still have most of the lawmakers who voted against certifying the results of the electoral college in the famous January 6 session.  However, it’s also true that Congress successfully passed the Electoral Count Act of 2022 in the final days of its last session.  That act solidifies the principle that the vice president has no authority to overturn the count, and it provides that in order to question the certification of the electoral vote from any state, it now takes a fifth of both chambers rather than just one member of each chamber to challenge the results.  So it is going to be harder to interfere with the electoral vote count next time around than it was last time.

Article in Politico, January 2, 2023

Article in TheHill, December 25, 2022

NPR report, January 1, 2023

Happy New Year, and please keep following what’s going on.


Coming Soon to the Supreme Court: The ‘Independent Legislature’ Doctrine

Note to current Am Gov’t class:  I’ll be talking about this case in our next class meeting Friday night.

Back in 2019, when the Supreme Court ruled in Rucho v. Common Cause and Lamone v. Benisek that the federal courts had no jurisdiction over partisan gerrymandering (drawing legislative district lines to keep one party stronger than the other in a state), it was noted that state courts could still deal with the issue.  Indeed, there have been rulings by state courts to the effect that partisan gerrymandering in a particular state violated that state’s constitution.  But that may change, with a case that the Court is scheduled to hear on December 7, called Moore v. Harper.  The case involves partisan gerrymandering in North Carolina, and it will be bringing to the Court a constitutional argument that could have far-reaching effects if the Court buys it.

In a nutshell, the North Carolina legislature drew up a map of congressional districts, and a state court ruled that the map was no good because the districts were gerrymandered (in favor of the Republicans), and such partisan gerrymandering violated North Carolina’s constitution.   But did the state court have the legitimate power to make that ruling?  At first glance, the answer would seem to be an obvious yes.  After all, a state legislature is subject to the state’s constitution that created the legislature, and anything the state legislature does is supposedly subject to judicial review by the state courts, which were also created by the state’s constitution.  That’s what would seem to be the case.

However, there is an argument against that, and that argument involves a clause from Article I of the federal Constitution:  “The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof.”  The state legislature of North Carolina is contending that this clause gives the legislatures exclusive control over the drawing of districts, and that state courts can’t second-guess them.  A brief on behalf of the state legislature says:

The plain language of the Clause leaves
no room for state and federal courts to alter election
regulations set by those who wield the politically
accountable levers of government. And for good
reason. The power to regulate elections is, by nature,
legislative, so the Framers sensibly vested it in
legislative bodies. Given the proximity of the
legislator-constituent relationship, lawmakers are
uniquely well-suited to correctly navigate the
tradeoffs, value judgments, compromises, and
political resolutions inherent in election regulation
(in general) and in drawing electoral districts (in

A brief from the other side counters:

Nothing in the Elections Clause permits a state legislature to violate the state constitution, as construed by the state’s highest court, in enacting congressional redistricting legislation—no more than it permits Congress to ignore this Court’s decisions interpreting the U.S. Constitution….

That brief further notes that the Constitution makes numerous grants of power to legislatures, including the powers of Congress in Article I Section 8, using language different from those provisions granting “sole power,” as in the House having “sole power” over impeachment.  Such grants of power, this brief argues, are clearly subject to judicial review, and that includes actions by state legislatures pertaining to congressional elections.  The brief cites past cases where the Supreme Court has explicitly said that state legislative act passed in accordance with the federal elections clause can be reviewed by state courts.

This “independent legislature” argument is analogous to one that was used by some Republicans on January 6, 2021, to invalidate the elections results.  In at least two states–Pennsylvania and Arizona–a court required an extension of the deadline for mail-in ballots to be accepted in the 2020 presidential election.  The argument (which didn’t get anywhere, but took up some time in an already-tense day and night) was that the Constitution says the state legislature will determine the manner in which a state’s electors are chosen, and thus, if the legislature sets a deadline, any ballots received after that deadline must be discounted, no matter what any court says.

If North Carolina’s Republicans can convince enough justices on the Court of the “independent legislature” doctrine, it will make it easier for legislatures to gerrymander districts with impunity, with no interference from state courts (and they’re already free from interference  with partisan gerrymandering from federal courts).  It could also open the door to complications with presidential elections, if the doctrine is applied to how electoral votes are to be counted.

New York Times article on Moore v. Harper, November 7, 2022.

Politico article on both Moore v. Harper and the Alabama voting rights case, September 29, 2022

Full set of briefs and other documents on Moore v. Harper





The Outlook for Congress

Elections are on Tuesday, November 8.  As things stand now, the Democrats are slightly favored to keep their hold on the majority in the Senate, but the Republicans are strongly favored to gain the majority in the House.  Realistically, this means two things for the next two years:  (1) very little if any significant domestic legislation to improve people’s economic well-being is likely to pass, and (2) the Democratic majority in the House is guaranteed to undertake a number of committee investigations to embarrass President Biden.

It’s usual for the president’s party to lose seats in Congress in a midterm election.  As Professor Thomas E. Patterson of Harvard explains, there are two theories that help explain this pattern.  First, the surge of support for the president’s party that helped elect the president two years earlier is likely to have died down; second, Independent (or swing) voters are likely to view the midterm election as a referendum on the president’s performance.  Biden’s approval rating has been under 50% for over a year now, and many voters blame him for the inflation that they’re currently experiencing.  The redrawing of district lines is likely to play a part as well.

There’s been much talk of the Democratic Party being rescued by the abortion issue.  True, the issue has galvanized many voters in favor of the Republican Party.  However, where the House is concerned, the most that’s likely to do for the Democrats is make the Republicans’ majority narrower.  They’re still likely to prevail in the House.

It’s a well-established fact of life that the majority party in either chamber of Congress controls what issues become the subject of investigatory hearings by committees.  The current investigations of the special committee on the January 6 insurrection would not be happening in the manner that they are, if at all, if the Republicans held a majority in the House.  If the Republicans do, as predicted, take the majority in November, then next year we can expect to see, among other things, hearings on the international business dealings of the president’s son Hunter Biden and hearings on whether the Justice Department under Merrick Garland, along with the FBI, has been influenced by party loyalty in the investigations it has undertaken, including the raid on Trump’s Mar-a-Lago to recover government documents.

To get a taste of how partisan the whole thing is, one need only look at Republican Representative Jim Jordan of Ohio.  This year, he has been the focus of some inquiry by the January 6 committee about his actions in relation to the events of that day.  If the Republicans take control of the House, he will most likely become the chairman of the House Judiciary Committee, which will be running the hearings on the Justice Department.  Jordan is a strong Trump ally who voted, on January 6, not to certify the election results that declared Biden the winner.

Fivethirtyeight website showing the election projections

Webinar with Prof. Thomas E. Patterson on the outlook for the elections, October 12, 2022

Article in The Hill about probable House investigations, October 21, 2022



“And Now It’s Game On”: The Reaction of Trump’s Base to the Mar-a-Lago Raid”

Shortly after the August 8, 2022, FBI raid on Trump’s residence at Mar-a-Lago in Florida, Fox News host Jesse Watters said, “I’ve never seen the base more energized. I’ve never seen the base more angry. I’m angry. I feel violated. The whole country feels violated. This is disgusting. They’ve declared war on us, and now it’s game on.”  House Minority Leader Kevin McCarthy, who will be Speaker of the House if the Republicans win the majority in this year’s elections, had this to say:  “I’ve seen enough. The Department of Justice has reached an intolerable state of weaponized politicization.  When Republicans take back the House, we will conduct immediate oversight of this department, follow the facts, and leave no stone unturned.”  Lavern Spicer, who is running for a seat in Congress from Florida, tweeted: “Biden’s FBI is no better than Hitler’s Gestapo at this point,”

Let’s step back a bit and consider what they are reacting to.  Former President Trump, when he left office in January of 2021, took many boxloads of government documents with him to Mar-a-Lago rather than leaving them to be deposited in the National Archives.  After some negotiations, he returned some of the materials.  When National Archives personnel examined what he had returned, they discovered that it included some highly sensitive and classified papers–and he obviously still had possession of a lot more.  So on the morning of August 8, the FBI raided Mar-a-Lago–with a search warrant–and recovered those documents.

By even the most minimally normal, reasonable standards, the shock and outrage would be over Trump’s behavior, not that of the FBI.  True, it’s the first time a federal raid has been made on the home of a former president, but it’s also the first time a former president has done what Trump did.  Given the fact that police at the federal, state, and local levels get search warrants and raid people’s homes all the time, being outraged that it was done to Trump is saying that Trump (for whatever reason) should be above the law.  And comparing the FBI to the Gestapo–the secret police of a regime that was mass-murdering people for belonging to certain groups that Hitler had marked as undesirable–is wild.

I want to take a moment to consider Kevin McCarthy’s remark.  Unlike a Fox host or a mere candidate for office, Kevin McCarthy actually holds a position of responsibility in the government, a position that would normally be expected to have some obligations of dignity and propriety.  Learning that there’s an investigation going on and that legal action has been taken, it’s highly bizarre behavior for someone in Representative McCarthy’s position to take sides and condemn the action.  He might well say that no conclusions against Trump should be jumped to, that Trump is entitled to be considered innocent until proven guilty, and so forth.  But he’s not doing that.  Rather, he’s declaring Trump innocent, at least innocent of having committed any crime that would make an FBI raid appropriate.  And he’s also declaring that the FBI and Merrick Garland’s Justice Department aren’t entitled to be considered innocent until proven guilty of conducting a frivolous, politically motived investigation.

And now, let’s turn to Jesse Watters’ remark, specifically the words “They’ve declared war on us, and now it’s game on.”  Who’s “they,” and who’s “us”?  Apparently, “they” in his view means the Democratic Party, or maybe the quote-unquote “Left,” or maybe that entity that Trump loved to rail against, “the Deep State.”  In any case, “they” means an entity outside of the realm of “the American people,” outside the realm of anything legitimate or respectable–an adversary.  An enemy.  And who’s “us”?  That would appear to mean “the American people.”  He does, after all, also say it’s “the whole country” that “feels violated.”  But obviously the whole country doesn’t feel violated; obviously it’s only Trump’s base that feels violated.  So what’s he really saying?  To me, what he’s really saying is that it’s only Trump’s base that’s worthy of being considered “the American people.”  Only Trump’s base matters.

He is, moreover, talking the language of civil war.  Now sure, there will be some who will insist that no, he just means the Republicans are going to try harder to mobilize voters to defeat those dirty rotten Democrats in the next election.  But the man who attacked an FBI office in Cincinnati very soon after apparently had other ideas.  So did the people who stormed the Capitol on January 6.  Clearly, Trump’s base includes those who would do a lot more than just knock on people’s doors and tell them they should vote Republican.

It’s well known that Trump’s base includes members of extremist groups, white nationalists who feel threatened by the growing proportion of non-white and non-gentile citizens and who fear being “replaced.”  “The Jews will not replace us” was one of the chants at the “Unite the Right” rally in Charlottesville, Virginia, in August 2017.  But the hard-core racists are just one subset.  For a lot of other Trump supporters, it’s more about ideology and cultural conformity than race.  What they have in common, though, is that they feel under siege by all manner of sinister, conspiratorial movements and forces, and they regard Trump, not just as their candidate running against a party of an alternative ideology, but as the strong leader who will stand up for America in the face of its enemies who want to bring it down.

Paradoxically, even when things are normal, it’s usual for the competing parties to try to make each other look extremist, even sinister.  But we’re on an extreme here.  What we have is a cult of personality, a subset of whom are willing to resort to violence to stand up for their leader.  But even in the mainstream, we have political leaders like Kevin McCarthy who are willing to pander to the fallacy that the FBI raid on Mar-a-Lago represents, not a legitimate law enforcement action by a nonpartisan law enforcement agency (which is, in fact, what it was), but rather, a political move by a political party to discredit an innocent, persecuted, and heroic leader who just wants to make America great again.

We are living in bizarre, dangerous times.  There are some who fear that we may actually have civil war in this country.  What’s beyond dispute is that there are people and groups with a civil war mentality–and politicians who play to them to stay in office.

NOTE:  There will always be those who will try to tell me “You’ve got to be objective, you’ve got to be balanced!”  Answer:  I’m very objective and balanced when we’re talking about issues where there really is legitimate room for difference of opinion, as is the case for me with just about every issue concerning what the laws and the policies should be.  But there are not two legitimate sides to whether the 2020 election was stolen, there are not two legitimate sides to whether Trump on January 6 acted the way that any responsible public servant would have acted, and there are not two legitimate sides to whether the FBI raid on Mar-a-Lago represent the Left making war on “The American people” or Gestapo tactics or anything other than a law enforcement investigation by a law enforcement agency.  For me, trying to find a balance between two sides to any of those questions is not being objective, but rather, being dishonest.  And I hope there’s nobody in my classes who wants me to be dishonest.

Article in Politico Magazine, August 19, 2022

Article in Politico, August 26, 2022

The redacted affidavit that preceded the search

Discussion on WNYC of whether we’re headed for civil war, August 26, 2022

The Bill That Congress Just Passed

In his first message to Congress in early 2021, President Joe Biden requested passage of a host of measures that involved large-scale federal spending in the broad areas of infrastructure-building and social welfare, with provisions designed to fight climate change.  It should be remembered that in that year, two major bills were considered by Congress:  a bipartisan infrastructure act, which passed, and the Build Back Better Act, which did not pass.

The infrastructure act passed with some Republican support (though most Republicans voted against it).  As for Build Back Better, that act had no Republican support at all.  Because of the filibuster, it takes not just a simple majority in the Senate, but 60 votes, to pass most legislation.  (This is not in the Constitution, but rather is a matter of Senate rules.)  Therefore, the only way it could pass was as “budget reconciliation.”  Under Senate rules, a bill that is purely about taxing and spending, as opposed to a bill that requires anybody to do anything (but which includes authorizing the executive branch to do things with the money being appropriated), can be passed as budget reconciliation, and a budget reconciliation bill can’t be filibustered.  Because there are 50 Democrats in the Senate (technically 48 Democrats and 2 Independents who caucus with the Democrats), the BBB Act could only be passed if all 50 Democrats agreed to it, allowing for Vice President Kamala Harris to cast a tie-breaking vote (a constitutional power of the VP in the Senate).  But it didn’t pass, because two of the more conservative Democrats–Joe Manchin of West Virginia and Kyrsten Sinema of Arizona–disapproved of some of its provisions.

For a while, it looked as if it was just a matter of coming to an agreement with Manchin and Sinema.  Then, it looked as if it was hopeless.  However, an agreement was reached, and a scaled-down version of BBB was passed.  With a nod to the concern on most Americans’ minds, the new act, whether accurately or inaccurately, is called the Inflation Reduction Act.

A number of provision from BBB are absent.  This act does not extend the child tax credit, which was helping a lot of lower-income families.  It doesn’t provide two years of pre-K education and two years of free college tuition to everyone, or put money into paid family and sick leave for workers.  Its provisions for fighting climate change are more modest.  But what Democrats all understand is that it’s the most that could be passed with the present configuration of the two parties in Congress.  Getting Manchin and Sinema on board was thus a huge victory for the Democrats.

A few highlights of what’s in the bill:

It puts a heavier tax burden on corporations.  While it doesn’t raise taxes on upper-income earners as individuals, it does beef up the IRS’s enforcement mechanisms for collecting taxes owed.

It uses tax credits as an incentive to corporations reduce carbon emissions, pay higher wages, and do their manufacturing in the United States.

It authorizes Medicare to negotiate, and thus reduce, the price of certain prescription drugs.

It extends subsidies under the Affordable Care Act (Obamacare) for those in lower income brackets.

Congress also recently passed, with bipartisan support, an act investing in the research and domestic manufacture of semiconductors.  There’s a key reason why this act had some Republican support:  it was packaged as a way to stay competitive with America’s chief economic and geopolitical rival, China.

CNN article on the Inflation Reduction Act, August 16, 2022

Forbes article on the Inflation Reduction Act, August 16, 2022

CNN article on the semiconductor bill, July 29, 2022


“Independent State Legislature” Doctrine Will Come to the Supreme Court

It was established in the 2019 Supreme Court case Rucho v. Common Cause that the federal courts cannot interfere with partisan gerrymandering.  But what about state courts?  At the moment, yes, a state court can rule that the way district lines have been drawn violates the equal protection provisions of the state’s own constitution.  But, where the drawing of congressional districts is concerned, that may be about to change.

Article I Section 4 of the Constitution says:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

Does that passage mean that the legislature can do whatever it wants, and state courts can’t interfere?  Or is the state legislature subject to the same checks and balances for the acts it passes concerning congressional elections that it’s subject to for all other kinds of legislation?  If the former is correct, it means that the majority party in the legislature can vote to gerrymander the hell out of the state’s congressional districts and no state court can interfere.

The Supreme Court has agreed to hear the case of Moore v. Harper, from North Carolina, in the coming season.  What’s involved is that after North Carolina’s legislature approved a map for congressional districts in that state, a state court ruled that the gerrymandering that went into that map violated the state’s constitution.  The state court appointed an independent committee to draw  up a new map, and that map is being used for this year’s elections.  Republican legislators tried in February to get the U.S. Supreme Court to issue an emergency order for a return to the map the legislature approved in time for this year’s elections.  The Supreme Court refused, but three justices made clear that they were on the side of the North Carolina Republicans:  Clarence Thomas, Samuel Alito, and Neil Gorsuch.  It’s not clear where the other three conservatives stand; the three liberals can be expected to be on the side of the state court.

This relates closely to another issue that came up in the aftermath of the 2020 presidential election.  Some members of Congress, in the January 6 debates, made the argument that when a state court orders an extension for consideration of mail-in ballots, the state court ruling is invalid, as are any ballots counted after the deadline that the state legislature has set.  This draws on the passage in Article II Section 1, which begins “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors…”  Here again, the argument being made is that the Constitution has granted the state legislatures exclusive authority over certain things, which means state courts have no jurisdiction to interfere.

This will be an important case to follow in the coming year.

Article in SCOTUSBLOG, June 30, 2022


Victory for the Praying Football Coach: Free Exercise over Establishment

From the point of view of the Bremerton, Washington, school district, allowing football coach Joseph Kennedy to kneel down and offer thanks to God on the fifty-yard line at the end of a football game, joined by some student players and visible to the spectators, would have been violating the establishment clause. To the school district, all the case law prohibiting prayer and Bible study in the public school classrooms as representing “an establishment of religion” (that is, having government-sanctioned/supported religious activity) indicated that Coach Kennedy’s fifty-yard-line prayers were constitutionally impermissible.  But from Coach Kennedy’s point of view, by denying him this prayer, the school district was violating his right to the free exercise of religion as well as his freedom of speech.  By a vote of 6 to 3, along political party lines, the Supreme Court has sided with Coach Kennedy.

Neil Gorsuch, Trump’s first appointee to the Court, wrote the majority opinion.  Gorsuch found that the school district, by prohibiting the coach’s post-game fifty-yard-line prayers, was singling him out expressly for his religious practice even though he was not acting with school authority to engage in any school-sanctioned religious activity.  Gorsuch also noted that, as a matter of freedom of speech, Kennedy was acting as a private citizen rather than communicating anything that could be seen as a government-sanctioned message. He acknowledged that some people might not like to see Kennedy engaging in this prayer.  But: “‘learning how to tolerate speech or prayer of all kinds is part of learning how to live in a pluralistic society,’ a trait of character essential to ‘a tolerant citizenry.’ ”  He further denied that any coercion of students was taking place, even though here was anecdotal evidence that some students felt they had to join their coach in prayer to stay in his good graces.

Interestingly, Justice Brett Kavanaugh, though he went along with the ruling, did not sign on to the section where Gorsuch denied coercion.  He did not write a separate concurring opinion explaining himself on this point.

Justice Sonia Soomayor dissented.  “While the Court reaffirms that the Establishment Clause prohibits the government from coercing participation in religious exercise, it applies a nearly toothless version of the coercion analysis, failing to acknowledge the unique pressures faced
by students when participating in school-sponsored activities. This decision does a disservice to schools and the young citizens they serve, as well as to our Nation’s longstanding commitment to the separation of church and state.”  She was joined by the other two Democratic appointees, Elena Kagan and Stephen Breyer.

It should be noted that what made this case justiciable under the First (and Fourteenth) Amendment was the fact that a public school district is an agency of government.  For the establishment clause, the Court had to consider whether allowing the prayer represented government sanctioning of religion, and for free exercise, the question was whether the school district’s disciplinary action against the coach was permissible.  On that latter point, it needs to be noted that for both teachers and students in public educational institutions, when they are on school grounds and subject to school authority, First Amendment rights are neither absolute nor nonexistent, but rather, have to be carved out case by case.  (This is also applicable to employees of other kinds of government agencies; remember Rankin v. McPherson, the case of a clerical employee of a constable’s office who was fired for expressing the wish for the president to be assassinated while she was on the job–a case that she won, 5-4.)

Remember that just a week earlier, the Court ruled 6-3 that the state of Maine was denying families their free exercise rights by excluding religious schools from its program of providing tuition to private schools for students whose own towns did not have public schools.  In that case, as well, the state meant to obey the establishment clause and was sued for violating the free exercise clause.

Coach Kennedy, predictably, is thanking God for this victory.

Full text of the Bremerton decision

Article in Politico, June 27, 2022

Full text of the Maine decision

And Then There’s Clarence Thomas

In my preceding post here on OpenLab, I summarized Chief Justice John Roberts’ concurring opinion in the decision that overturned Roe v. Wade.  Roberts felt that the decision was too broad and should have been narrower.  Well, his colleague Clarence Thomas appears to think the opposite:  he would have liked it to be even broader.  Or, at least, he would like to see some future decisions whose sweep would be broader.

Since the Fourteenth Amendment was ratified in 1868, there have been two ways of reading the “due process” clause (i.e., “nor shall any state deprive any person of life, liberty, or property without due process of the law”).  There’s procedural due process, and there’s substantive due process.  Basically, procedural due process involves crime and punishment, the point being that nobody should be labeled a criminal and punished for crime without due process of law.  (At the time, southern state governments had been using vagrancy laws to keep slavery alive by imprisoning impoverished African Americans and contracting them out for labor.)  The term substantive due process interprets the Fourteenth Amendment as going farther, as empowering the federal courts to define particular types of liberty and requiring states to guarantee same in their laws.

In the early twentieth century, substantive due process allowed the federal courts to stop states from passing laws restricting wages and hours of employment, on the grounds that such laws deprived business owners of their liberty of contract and their right to use their property to maximum gain.  (The key case for that was Lochner v. New York in 1905.)  But in more recent times, the term has applied to the right to privacy cases–and the gay marriage ruling.

Clarence Thomas considers substantive due process to be “an oxymoron that lacks any basis in the Constitution.”  He writes, in his concurring opinion to the ruling overturning Roe v. Wade, “The notion that a constitutional provision that guarantees only ‘process’ before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words.”  Therefore, he opines, the Court in future cases should reconsider its application of this doctrine to a number of cases, including:

  • Griswold v. Connecticut, the 1965 decision in which the Court articulated the “right to privacy” doctrine as part of the Fourteenth Amendment’s protections, striking down a state ban on contraceptive use;
  • Lawrence v. Texas, the 2003 case where the Court ruled states’ antisodomy laws unconstitutional; and
  • Obergefell v. Hodges, the 2015 gay marriage decision.

Some commentators have noted an irony:  Thomas could have included Loving v. Virginia in that list.  Loving v. Virginia is the unanimous 1967 ruling in which the Court said that state laws interfering with Blacks and whites getting married to each other violated the Fourteenth Amendment.  (Thomas, of course, is a Black man married to a white woman.)

It should be remembered that Thomas is just one justice in nine, and he was the only justice who expressed this view in the concurring opinions of this ruling.  Thus, the fact that he wrote this doesn’t mean that any of it is going to happen.  But we definitely have a Court that is taking jurisprudence into a more conservative direction, so it is to be expected that there will be some more controversial rulings still to come.

Here again, is the ruling.  Justice Thomas’s concurring opinion starts on page 117.

The Abortion Decision: What Chief Justice Roberts Would Have Done Differently

From the leak of the decision of Dobbs v. Jackson Women’s Health Organization in early May, it was known that the Supreme Court (assuming that nothing changed) was going to overturn Roe v. Wade and Planned Parenthood v. Casey (1992).  It was also known that Justice Samuel Alito, author of the decision, had Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett on board with him.  It was also a safe assumption that Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan, all Democratic appointees, would be in dissent.  It was not clear, however, where Chief Justice Roberts stood.  Now that the final ruling has been issued, now we know.

The Mississippi law was nowhere near as stringent as laws passed in other states.  The Mississippi law prohibited abortion after 15 weeks.  That’s shorter than the time that the existing precedents of Roe and Casey required states to allow, but it’s over three months, so it’s a point in time when the pregnant woman is going to know she’s pregnant and have time to decide.

Chief Justice Roberts, if he had had his way, would have allowed Mississippi’s law to stand, and in so doing would have ruled that states don’t necessarily have to allow abortion up to the point of viability (the point where the fetus has a chance of surviving outside of the mother’s womb).  He would not have gone any farther than that in the ruling.  He makes that clear in the concurring opinion he wrote (an opinion agreeing with the resolution of the present case but disagreeing with some of the reasoning and, in this instance, with the new precedent that it sets).

He writes:

I would take a more measured course. I agree with the Court that the viability line established by Roe and Casey should be discarded under a straightforward stare decisis analysis. That line never made any sense. Our abortion precedents describe the right at issue as a woman’s right to choose to terminate her pregnancy. That right should therefore extend far enough to ensure a reasonable opportunity to choose, but need not extend any further—certainly not all the way to viability. Mississippi’s law allows a woman three months to obtain an abortion, well beyond the point at which it is considered “late” to discover a pregnancy. . . .

But that is all I would say, out of adherence to a simple yet fundamental principle of judicial restraint: If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more. Perhaps we are not always perfect in following that command, and certainly there are cases that warrant an exception. But this is not one of them. 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.

The Court’s decision certainly has a lot of people upset.  Some question whether it’s going to be a step toward reversing other decisions, like those affirming the right to same-sex marriage and contraceptive use.  Many also believe it will lead to deaths by coat-hanger abortions, as expressed by Representative Alexandria Ocasio-Cortez.  The Democrats are making the most of it in their campaigns for Congress and state legislatures in the November elections.

The ruling about the carrying of concealed handguns, in  case from New York, also has many upset and fearful, especially New Yorkers.  After earlier precedents in 2008 and 2010 established, respectively, that the Second Amendment applies to each individual (not just to state-run militias) and that the Second Amendment can be enforced on the states by the federal courts, the Court ruled that New York’s restrictions on who can get a permit to carry a concealed gun violate the Second Amendment.

Full text of the abortion decision, including the concurring and dissenting opinions  (Justice Roberts’ concurring opinion starts on page 136.)

Full text of the gun decision



Gun Control: What Biden Is Up Against

Thursday night, June 2, President Joe Biden delivered a televised address to the American public speaking about gun violence and asking for support for some new federal gun laws.  His proposals include a ban on military-style assault weapons (which was in effect before, passed when Biden was in the Senate), tougher background check requirements for purchasers of firearms, “red flag” laws that would make it easier to identify potential killers, a repeal of certain types of immunity to lawsuits for gun manufacturers, and more funding for mental health services for the youth.

Biden is not likely to get any restrictions at all on firearm ownership passed by Congress.  Even if all of the Democrats agree on a law, it needs to be remembered that it takes 60 votes to pass most legislation in the Senate, which would mean all 50 Democrats plus 10 Republicans.  This is not likely to happen.  Although a majority of the public nationwide favor some gun ownership restrictions, Republicans in the House or Senate tend to have constituencies that are uncompromisingly against gun control, and they’re the people who will vote for or against candidates according to their positions on guns.

What’s behind this is that members of the National Rifle Association (NRA) and others of similar persuasion do not believe that gun control is about preventing mass shootings and other gun violence.  Rather, they regard any kind of gun control at all as part of a larger plan to totally ban private ownership of guns.  In fact, many of them will go so far as to say that the real reason why liberals favor gun control is that they want to disarm the populace in order to control them, to establish a socialistic dictatorship, because an unarmed populace is easier to enslave.

Closely related is the interpretation of the Second Amendment.  There is already Supreme Court precedent for understanding the Second Amendment as applying to the individual citizen’s right to bear arms; the NRA crowd interprets it as guaranteeing the individual’s right, not just to own some kind of firearm, but to own any and every kind of firearm, including assault weapons, with no restrictions whatsoever.

With only 50 Democrats in the Senate, the president’s proposals don’t have a realistic chance of passing, no matter how many Americans think they should.

Biden’s speech:  President Biden Address to Nation on Mass Shootings |

Article in Politico, June 2, 2022:  Biden demands action on guns: ‘How much more carnage are we willing to accept?’ – POLITICO