Something important that many people--including lawyers and even law professors--seem not to understand is that Supreme Court decisions are often not about what the policy should be, but rather about who (or which level of government, or which institution) should make the policy.— Robert P. George🇻🇦🇺🇸🪕 (@McCormickProf) July 1, 2022
Since we are on the consequences of Dobbs, here is as good as anywhere to comment on something that caught my notice when the draft decision was leaked and appears to have made it to the final opinion. Alito and the other reactionaries have some stomach churning views of Lochner. "West Coast Hotel signaled the demise of an entire line of important precedents that had protected an individual liberty right against state and federal health and welfare legislation." and "For example, American businesses and workers relied on Lochner v. New York, 198 U. S. 45 (1905), and Adkins v. Children’s Hospital of D. C., 261 U. S. 525 (1923), to construct a laissez-faire economy that was free of substantial regulation." So with the demise of Lochner "we" all lost an individual liberty right against health and safety legislation. I am sure the industrial worker was devastated to lose their right to breath lead dust, cotton fibers, and coal dust, along with losing the right to lose a limb or worse to dangerous machinery, be crushed in a mine collapse or fall off a building without safety equipment. I am sure the 10 year old factory or mine worker was distraught to lose their right to participate in the majesty of the laissez-faire capitalist system. Words like liberty and freedom are twisted to just their opposite by our cynical advocates and jurists. Of course none of this is new, the same cynical logic was need to protect the rights, freedom and liberty of the slave owner to retrieve their property under the Fugitive Slave Act. The freedom, rights and liberties that matter are those that make the rich richer, the powerful more powerful, and the poor and powerless become exploited, sick, maimed and dead. It is the capability of the advocate and jurist to remove the human from the intellectual discussion of these ideals (to which they are well compensated) and to reduce human suffering to cold abstractions that is the foundation of this glittering edifice to which we are all supposed to genuflect in adoration of our new "rights, freedoms and liberties". Too much of the press coverage addresses these cases as if these supposed freedoms, liberty and rights have the same application and consequences for everyone. Of all the decisions out of the court this term, Dobbs seems to be the only one where the press has begun to address the human element, with questions about women with ectopic pregnancies, couples wanting IVF and other intersections of the law and humans. I am mostly in despair. Each decision has a roadmap for further challenges and further erosion of our individual freedoms and our ability to collectively respond to our societal challenges.
The best legal writing I've ever read was written by Judge Learned Hand (also the best name for a judge, ever). Banjamin Cardozo comes a close second. Both men carefully and rationally balance the requirements of the law and the concerns of the people affected by the law. There are always two parties in a legal analysis, and I don't mean the opposing parties in a lawsuit. There are the interests of society: in justice, in fairness, in legal reasoning and laws they can understand and derive guidance from (and I don't mean spiritual or psychological guidance; I mean a clear expectation of what to do to comply with the law). And there are the interests of the parties, the people who deserve fairness and justice and also want to know what to do to comply with the law. What affects one affects all (no, not in the stupid "Q-Anon" sense). Judges rule for the parties, and for the country (or just state) at large. It's a burden; it's a balancing.
When you start doing things like imposing morality, deciding what is right and what is wrong, as with Justice Thomas complaining that covid vaccines were developed from stem cells from aborted fetuses (to begin with, abortion is a medical procedure used to protect the health of the mother, not just a "eww, baby icky, make it go away!" procedure imagined as the new massacre of the innocents. We really need to get clear on that.). His statement was primarily moral; but it is his morality, not mine. He imagines abortions as women simply being callous and promiscuous. I understand them as often necessary for the health, not just the life, of the mother. Justice Thomas can abstain from taking covid vaccines on that principle, if he wishes. He can't make the rest of us abstain, however, because of his moral compunctions. He does not, and should not, have that authority. Imposing morality on others, especially when you are an unelected and unresponsive super-legislator (how else do we describe the Supreme Court now?) is beyond the bounds not only of prudential jurisprudence, but the law itself. So be careful with the arguments about law and morality. Murder is not a moral question, it's a legal one. Punishment for murder is necessary for the ordering of society. Punishment for abortion is a much less clear question in law, and even murkier in morality. If the abortion is a medical procedure responsive to the healthcare of the mother (there are far more situations involving that than you are aware of, unless you work in ob/gyn), it's not exactly elective surgery on the order of a boob job.
Indeed, I would argue that boob jobs and plastic surgery for purely cosmetic (as opposed to reconstructive) purposes is far more immoral. But it's hardly grounds for criminalizing it, is it?
The argument in that tweet above is an argument to return to the "good old days" of Lochner, when "freedom" was the proper ideal, and any question of disparity of power between labor and employer was disregarded as irrelevant. Lochner even predates real child labor laws, which FDR finally backed because it meant adults would take the jobs children were still doing; and FDR needed able-bodied adults working. He wasn't as concerned with the condition of the children, as he was with the economy and his re-election chances.
Well, it's how the system works.
And I'm not sure the "major question" doctrine the Supreme Court used in that EPA case is solely a methord for deciding which agency should impose the policy. It's the question of whether any policy can survive a "major question" analysis; which is the point of the new method of analysis:
Returning to Lochner is feature, not bug. “Major question” is whatever the Court wants it to be, and it will always be what the agency in question is not allowed to do. Whatever that is. Congress could create a Cabinet-level “Department of Atmosphere Care and Global Warming Reversal,” and there would still be a “Major Question” limiting its ability to regulate anything.
The issue isn't just that the *current* Congress is subject to the filibuster-induced deadlock; it's that *no* Congress will ever have the *capacity* to regulate across every issue with the specificity that "major questions" requires. It's not pro-democracy; it's anti-regulation.— Steve Vladeck (@steve_vladeck) June 30, 2022