"We're The Supreme Court, Bitches!"

Why is it unthinkable to hinder the Constitutional rights of gun owners but perfectly acceptable to restrict women’s rights to bodily autonomy?
What if we set a 15-week waiting period to obtain a gun? pic.twitter.com/3H3JAEYOvV

— BreviLOCAcious 💉😷🥑 (@KSfirefly24) December 2, 2021

We start with the wise words of rustypickup: 

Actual law practice makes one face the reality of how the law impacts people's lives. I meant to comment to the post about law school and learning the theory of law versus the actual practice of law. By the time I had thought it through the post was a dozen back from the most recent, so I will take this as an opportunity instead. I went to a decent state law school, in retrospect it was a good legal education focused on practice. The second and third year classes that related to my eventual area of practice, intellectual property, were all taught by practitioners, or full time professors with extensive experience of legal practice before academia. Their training let me hit the ground running as a young lawyer.

The professor that really stands out in my memory though, was in an area of law I have never practiced, trusts and estates. We would have a class focused on some topic, how you create a will where you wrote family members out or where money was used for control. Then he would tell us why you shouldn't recommend this to your clients, and the consequences in human terms of wills or trusts with these terms. I will never forget a statement he used over and over. "When it comes to inheritances, money equals love." Any unequal distribution would leave those getting less believing they were loved less or not at all. It would set children against each other and inflame old hurts. None of this was a "legal education", but it was important to how to be a good counselor. Trusts and estates legally is the transfer of assets. Looking back now, what I was taught was that legal subject, but really the intersection of money, family relationships, and the consequences of those two under the stress of death of a person. That makes a big difference in how to approach the practice of counseling and guiding a client, and also how one would rule on matters from the bench. Legal theories and principles are convenient ways to abstract away from the real life consequences of a ruling on real people. 

During yesterdays hearing, the court ignored any discussion of consequences for poor women, women of color, women without health insurance. Better the abstract principles of law and hypotheticals. The hearing was particularly disheartening because what I heard was not just coming overturning of Roe, but jockeying for the legal framework to overturn long strings of cases. Thomas and Alito called into question everything from Lochner on. Others were angling to roll back the whole line of Griswold and more. This decision will be the road map for a major reordering of national life. The six justices are not conservative any reasonable definition, they are reactionaries looking to remake the world.

Curiously, I remember this (now that rustypickup mentions it) being the same attitude of my Wills and Probate professor.  He was much more concerned with the human ramifications of this area of law than say, my CrimLaw professor or my Torts professor or Contracts or Property.

Lochner, for those not in the know, is this:

In Lochner v. New York (1905), the Supreme Court ruled that a New York law setting maximum working hours for bakers was unconstitutional. The Court held that the Constitution prohibits states from interfering with most employment contracts because the right to buy and sell labor is a fundamental freedom protected by the Fourteenth Amendment. The decision, and the resulting "Lochner era" it ushered in, led to the abrogation of many progressive era and Great Depression laws regulating working conditions. In 1937, the Supreme Court overturned Lochner in West Coast Hotel v. Parrish.  

What the Supreme Court gaveth, in other words, the Supreme Court can taketh away.  The "check" on this wholesale disruption of settled law is supposed to be stare decisis. The courts are not supposed to upend settled law because it suits their whims.  But there's absolutely nothing, other than adherence and allegiance to that doctrine, to stop the Court from doing so.  After all, Lochner was the law of the land for 32 years. And then: whoops! Never mind!

My daughter is almost 30. Lochner was a terrible decision; but precedent is not to be tossed out lightly.

This did come up in oral arguments recently, where the responding parties (the appeal was by Mississippi) pointed out the Court overruled Plessy and Dred Scott (and Lochner) in order to expand rights for people, to allow them equal protection under law (the 14th Amendment, ironically used by the Lochner court for its decision).  West Coast Hotel v. Parrish has been "settled law" for 84 years.  What's to keep the Court from re-establishing Lochner, if someone asks?

Griswold is the foundational case for Roe.

Primary Holding

A right to privacy can be inferred from several amendments in the Bill of Rights, and this right prevents states from making the use of contraception by married couples illegal.

Facts

In 1879, Connecticut passed a law that banned the use of any drug, medical device, or other instrument in furthering contraception. Although the law was rarely enforced, courts had resisted challenges to bans on contraception, most notably in the Supreme Court's 1961 decision in Poe v. Ullman. 

A gynecologist at the Yale School of Medicine, C. Lee Buxton, opened a birth control clinic in New Haven in conjunction with Estelle Griswold, who was the head of Planned Parenthood in Connecticut. They were arrested and convicted of violating the law, and their convictions were affirmed by higher state courts. However, this was part of their plan to use the clinic to challenge the constitutionality of the statute under the Fourteenth Amendment, on which grounds they appealed to the the Supreme Court.

Opinions

Majority

William Orville Douglas (Author)

Earl Warren

Tom C. Clark

William Joseph Brennan, Jr.

Arthur Joseph Goldberg

Since the right to privacy is not mentioned in the Constitution, Douglas needed to find another basis for it. He argued somewhat vaguely that the "penumbras" surrounding many of the constitutional amendments, like the Fifth Amendment's protection against self-incrimination, suggested that the right to privacy from the state can be inferred as something that the Constitution is intended to protect.

Concurrence

Arthur Joseph Goldberg (Author)

Earl Warren

William Joseph Brennan, Jr.

Rather than finding that the right to privacy was contained in imaginary penumbras, Goldberg located it in the Ninth and Fourteenth Amendments.

Concurrence

John Marshall Harlan II (Author)

Harlan found that the Due Process Clause of the Fourteenth Amendment protects the right to privacy.

Concurrence

Byron Raymond White (Author)

This opinion agreed with Goldberg and especially Harlan that the Fourteenth Amendment was the proper basis for the decision.

Dissent

Hugo Lafayette Black (Author)

Potter Stewart

Unpersuaded by the loose reasoning of the majority, Black felt that there was no way to infer that the Constitution contained a right to privacy. He also dismissed the views of the concurrences that it could be found in the Ninth and Fourteenth Amendments.

Dissent

Potter Stewart (Author)

Hugo Lafayette Black

Despite his personal view that the law was "uncommonly silly," Stewart felt that the Court had no choice but to find it constitutional.

Case Commentary

The fact that this law applied to married couples probably made the case particularly sympathetic to the Court. The decision seemed to contort its logic to reach the desired result, creating a murky notion of "penumbras" from which one can infer the right of privacy as implicit among the freedoms guaranteed by the Bill of Rights. Griswold would lay the foundation for a series of other cases on individual freedoms related to sex, marriage, and family, and it would leave an impact on landmark decisions such as Roe v. Wade and Lawrence v. Texas.

I quote all of that because the idea of "penumbral" rights remains the primary criticism of the holding in Roe.  Some still argue Roe's "right of privacy" should be found in the 14th Amendment (where it is no less vague, however), or maybe the 9th. The majority, as that final note conjectures, was trying to understand the situation of persons under the law.  Potter Stewart reflects the view that might find more favor on today's court:  the law against purchasing contraceptives was silly, but there wasn't a constitutional remedy.  So what is the Constitution for?  People?  Or just primarily property?  That's still the dividing legal issue of American jurisprudence:  does the law protect rights fundamentally, or just rights in property fundamentally?  English common law is based almost entirely on the latter, because individual rights were not a thing most subjects of the crown were allowed to.

In our beginning is our end.

One issue, then, is which is more important:  people, or property?  The arguments against mask/vaccine mandates use the language of the civil rights movement, seeking to put individuals above the interests of the community.  But the civil rights movement, at least under Dr. King, was aimed squarely at the community.  Dr. King knew that if whites understood the moral crimes committed in the name of the law (Jim Crow, etc.), they would see the injustice in the law and force it to change.  Most of LBJ's legislative legacy is laws aimed at providing protections for people, from Medicare to education to civil rights.  The insistent reversal of that ever since is just a return to status quo ante.  Having reached that position, the current Court might well be poised to move back even further.  Why not?

The only thing standing in their way is stare decisis.  Human beings don't really matter.  A fetus facing abortion is not given human rights by the anti-abortion legal arguments:  it is simply given primacy in order to ban abortions.  Can the baby even be safely born?  Who cares?  Can it live safely in the world until it reaches it's majority?  Not our problem!  What matters to them is not human beings, but abstract concepts; which, fundamentally, is what property is:  an abstract concept.  An object can be many different kinds of "property" under the law; real property can be owned, or burdened, in myriad ways, all of them concepts.  And the concepts are far more important than the object or the land.  The concepts are everything.

The law on property, especially as specifically and intentionally inherited from England, is centuries old.  The laws on how people should be treated, on what 'equal protection' under the law means, are by contrast mere infants.  Infants are shockingly easy to ignore, except by their parents.  The parents of those laws concerning humans and their fair and equal treatment, are not in the majority on the current Supreme Court.  It may be the only way to return them to the majority is to increase the size of the Court.  There are currently 179 judgeships divided among 13 federal appellate courts.  That's an average of over 13 judges per circuit.  Why is it we can't possibly increase the size of the Supreme Court to that average?

FDR supposedly got the attention of the court by trying to increase it in the '30's.  Does anyone think this Court would change it's radical ideology in the face of similar, and mere, threats?  FDR won the support of the people who needed help and weren't then accustomed to the federal government providing it.  If this court takes away Roe and Casey, is it likely the people won't demand a recovery, not of what they could have had, but of what they have lost?

In our end is our beginning.