Chuck Grassley Says the FBI Must Combat Sexual Misconduct But the Senate Can Whitewash It

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In a piece billed as “analysis” describing why Kash Patel likely faces little Republican opposition, the NYT’s Catie Edmondson chose to quote one after another Republican making false claims about bias from the Bureau:

  • Thom Tillis falsely claiming Patel’s nomination fulfilled Trump’s promise to “enforce our laws equally and fairly”
  • Chuck Grassley lying that the “unprecedented raid of President Trump’s home in Florida” was “to serve a warrant for records” and not conduct a search necessitated by Trump’s earlier obstruction
  • Joni Ernst imagining that Kash’s nomination would “create much-needed transparency at the F.B.I”
  • John Cornyn asserting that “no one should have to go through what President Trump went through by a partisan Department of Justice and F.B.I.,” which he falsely portrayed as a retribution tour launched by Jim Comey
  • Markwayne Mullin imagining that Kash might “actually get them focused on mission, rather than politics”

What the NYT describes but does not factually label is that most of the Republican party either parrots or truly believes Donald Trump’s manufactured claims of victimhood. But unless you describe that those claims that poor Donald Trump has been targeted are false, then you simply participate in the propaganda, blindly performing the same ritual of obeisance the Republican Senators are.

NYT quotes, but does not link, the letter in which Grassley issued his rant. Fact checking the letter (sent the day before Chris Wray announced he would resign, as Grassley demanded) might have provided a way to demonstrate the pile of false claims on which this impression of the FBI was built.

Oh sure, this particular journalist might not have had time to point out that on December 10, Alexander Smirnov answered any questions about the bribery claim he made up against Joe Biden by signing a plea deal (which the NYT wrote up yesterday, but buried), which Grassley complained about this way:

Consistent with that FBI failure, yet another glaring example of FBI’s broken promises under your leadership is its inexcusable failure to investigate bribery allegations against former Vice President Joe Biden, while strictly scrutinizing former President Trump. You’ve repeatedly claimed you would ensure the FBI does justice, “free of fear, favor, or partisan influence.”25 The FBI under your watch, however, had possession of incriminating information against President Biden for three years until I exposed the existence of the record outlining those allegations, but did nothing to investigate it.26 This record, known as an FD-1023, documented allegations of bribery between and among then-Vice President Biden, Hunter Biden, and Ukrainian officials.27 The FBI confidential human source (CHS) behind this FD-1023 was on the FBI’s payroll during the Obama administration, paid hundreds of thousands of dollars, was given permission to violate the law, and the information he provided was used in prosecutions. The FBI called this CHS “highly credible,” and Deputy Director Abbate publicly testified in response to the FBI’s refusal to remove obstructive redactions from that document that “[w]e often redact documents to protect sources and methods…the document was redacted to protect the source as everyone knows, and this is a question of life and death, potentially.” 28 Then after the FD-1023 was made public – which didn’t include the source’s name – DOJ not only publicly named him, but indicted him, calling into question the truthfulness of Deputy Director Abbate’s testimony and his refusal to be transparent.29 Still, to-date, the DOJ and FBI have neither answered whether they investigated the substance of the FD-1023, nor have they provided an explanation for any effort undertaken to obtain the financial records and other pieces of evidence referenced within the document. This sounds a lot like Director Comey’s leadership of the FBI, which was nothing short of shameful.

As I noted on the Senate floor on February 27, 2024, if a highly regarded source had alleged President Trump accepted a bribe, the FBI would pursue this information without keeping it stored away in one of its dusty closets for three years.30

Even before Smirnov’s plea agreement, though, there was plenty in the indictment (like reference to all the travel records that disprove Smirnov’s claims) that not just debunk Grassley’s claims, but make clear that the scandal here was that Scott Brady falsely insinuated to Congress that Smirnov’s travel records corroborated his claims, when they did the opposite.

There’s a far, far bigger problem though: Grassley’s claims about how FBI would respond to a claim of bribery if one implicated Trump are ridiculous.

When FBI (in reality, the decisions here were repeatedly made by DOJ, not FBI, which returning SJC Chair Grassley should be expected to know) got credible claims Trump had been paid by Egyptian spooks, first Robert Mueller (probably Rod Rosenstein), then Bill Barr prevented investigators from obtaining the financial records to pursue the case, a version of which story NYT published in August.

There’s the tip that — the NYT described — the Italians gave Barr and John Durham in 2019 about “suspicious financial dealings related to Mr. Trump,” a detail Durham chose to exclude from his final report.

There’s the $2 billion investment that Saudis made with Jared Kushner after Trump’s son-in-law finished his nepotistic service in the White House; as the NYT laid out, even the Saudis had doubts that Kushner had the expertise to invest that money. A NYT follow-up showed that Kushner’s firm has pocketed $112 million in fees without showing any profit from investments. Democrats have called for a Special Counsel to investigate that, but the Special Counsel-happy Merrick Garland has not done so.

And since the election, a Chinese national whom the SEC has accused of fraud, Justin Sun, effectively just sent Donald Trump $18 million (here’s a less direct NYT story on the how cryptocurrency creates real opportunity for corruption). Where’s your call for fairness, Chuck?

But there were alternative ways to debunk Grassley’s lies other than pointing to the six NYT stories that disproved his claims that FBI ignored a bribery allegation about Biden but chased them with Trump. Consider his most justified complaint, the one with which he begins his rant: The FBI has not explained whether it has pursued allegations of sexual misconduct within its own ranks fairly.

One of the most egregious examples is the FBI’s failure to provide basic information I requested more than two years ago related to the FBI’s ongoing mishandling of sexual harassment claims made by the FBI’s female employees. This request was not pulled out of a hat. It was based on credible whistleblower disclosures alleging hundreds of FBI employees had retired or resigned to avoid accountability for sexual misconduct. 5 Whistleblowers also alleged the FBI had disciplined senior officials less severely than their subordinates for this misconduct.6 In November 2022, I released internal FBI documents corroborating these disclosures.7 I and my staff ever since have asked repeatedly for information sufficient to determine how FBI handled these serious claims and how widespread the problem really is. The FBI, for its part, told the media it would provide the information to me.8 You personally told me at a December 5, 2023, Judiciary Committee hearing, when I confronted you with the FBI’s blatant inaction, that you would check with your team and then follow up with me.9 Your Deputy Director, Paul Abbate, also publicly stated the FBI is serious about removing officials for sexual misconduct. 10 After a year since you made that pledge, over three years since Deputy Director Abbate’s public comments, and after many more requests to FBI to provide this information, neither of you have followed up or followed through. This inexcusable delay and obstruction by you and Deputy Director Abbate has prevented Congress and the Judiciary Committee from addressing the shocking sexual misconduct at the FBI. This is a promise made and broken, on an issue of utmost importance.

Chuck Grassley says FBI’s failure to deal with credible claims of sexual misconduct is “an issue of utmost importance.”

Huh.

Grassley has not yet weighed in on the nominations of Pete Hegseth, Linda McMahon, or Kimberly Guilfoyle — all of whom have been implicated in sexual harassment or assault, but his comments about RFK Jr thus far have focused on, “educating him about agriculture,” rather than the assault of a nanny RFK admitted to. Other Senators, though, have suggested that Hegseth’s accusers should not enjoy the same protections that Grassley has fiercely defended for FBI whistleblowers, and have brushed off how Hegseth’s accuser could testify publicly given the nondisclosure agreement he paid her to sign.

More curiously, when he was asked about the sexual misconduct allegations against Matt Gaetz, Grassley falsely claimed his committee, “did a very thorough job following up on every accusation made against (Supreme Court) Justice Kavanaugh and nothing ever materialized.” Grassley said that after Sheldon Whitehouse issued a report showing that the FBI had forwarded all tips to the White House, rather than chasing them down.

On instructions from the White House, the FBI did not investigate thousands of tips that came in through the FBI’s tip line. Instead, all tips related to Kavanaugh were forwarded to the White House without investigation. If anything, the White House may have used the tip line to steer FBI investigators away from derogatory or damaging information.

Whitehouse’s report describing the whitewash FBI did quotes now-debunked claims Grassley made about the thoroughness of the investigation several times.

“These uncorroborated accusations have been unequivocally and repeatedly rejected by Judge Kavanaugh, and neither the Judiciary Committee nor the FBI could locate any third parties who can attest to any of the allegations.”

[snip]

Then-Chairman Grassley said that the FBI “decided” which individuals to contact,98 that the FBI’s investigation was being conducted “in accordance with the agency’s standard operating procedures,” that “the career public servants and professionals at the FBI know what they’re doing and how best to conduct a background investigation,” and that the FBI’s investigation “should be carried out independent of political or partisan considerations.”

If you want to talk about FBI’s inadequate response to sexual misconduct allegations, then surely its whitewash of allegations against Brett Kavanaugh should be included? Want to complain about the FBI? Complain about how they deprived you, Chuck Grassley, of treating misconduct claims against Brett Kavanaugh as “an issue of utmost importance.”

But doing so would expose Grassley’s crass double standard, refusing to exercise the same due diligence with sexual misconduct allegations that, he complains, the FBI has not done in his own job, exercising advice and consent with Donald Trump’s nominees.

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Conclusion To Series On Rights

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Conclusion to How Rights Went Wrong

In the last half of Jamal Greene’s book he gives us his explanation of a better way forward, and applies it to several controversial issues, including abortion and discrimination. Greene thinks that courts, especially SCOTUS, spend too much time on their made-up rules about about rights, instead of the rights themselves. He thinks all applicable rights claims have to be considered in rendering decisions and establishing remedies.

The Rodriguez case discussed in the last post is a good example. Kids are going to school with bats, but nothing can be done because of court-created rules designed to limit the reach of the Reconstruction Amendments. I think Greene is right about this.

I think that there are two problems underlying our current judicial approach that prevent Green’s ideas from being effectuated. First, immediately after the enactment of the Reconstruction Amendments SCOTUS limited their reach. The purported reason was preservation of federalism, as we see in The Slaughterhouse Cases. But that doesn’t explain the ferocity with which the Court attacked individual rights and especially Congressional action up to the 1930s, and then after a short respite, returned to the attack beginning in the Reagan era and continuing to the present.

This, I think, reflects a deep skepticism of democracy, whether in claims of individual rights against governments, or in concerted political action through the legislature. It seems SCOTUS has little respect for rights claims of ordinary people regardless of whether the rights arise through legislation or under the Constitution.

The judicial branch has always been a bastion of the privileged elites, who mostly like things the way they are. Powerful commercial interests are heavily over-represented, and have always been. Lewis Powell, the author of Rodriguez, is an example.

The second issue, I think, is the general unwillingness of the judicial system to make rulings requiring other branches to enforce. As an example consider Holmes’ 1902 decision in Giles v. Harris, discussed by Greene. Giles, a Black man, had been registered to vote in Alabama for years. The Alabama Constitution was changed to allow local election registrars to deny registration to people who lacked good character. Giles was not allowed to register under the new system. Ovrall, registration of Black men drooped to nearly zero. There is no doubt that this was a violation of the 15th Amendment. Holmes refused to do anything. One of his reasons was that “…the sheer scale of the conspiracy Giles was alleging exceeded the Court’s power to remedy it.” P. 49.

Courts have always been concerned about their ability to enforce their decrees, and rightly so. But that’s not an excuse for simply refusing to enforce rights. Courts are really good at collecting money. Creative use of this power is a great solution to weakness.

For example, in the Rodriguez case Powell could have given the school district a money judgment large enough to construct a new school, one less friendly to bats, and awarded further monetary damages necessary to bring the school’s textbooks up to date and deal with other issues. He could have imposed costs and attorney’s fees on the school district, and awarded the plaintiffs monetary damages for the injuries they suffered by going to school with bats and ripped up out-of-date textbooks. That would open the door to other under-funded schools in Texas to sue the State and local districts to equalize things. The legislature eventually would have been forced change the funding arrangement.

A third issue, most pornounced in the current panel of SCOTUS, is its effort to justify its decisions by newly created doctrines. The so-called Major Questions Doctrine is an example. This was apparently created for the purpose of thwarting government efforts to remedy serious emergencies pursuant to express legislative action. Another example is the absurd result in US v. Trump, where the loons expressly denied that they were looking at the facts of the actual case:  Trump’s efforts to overthrow an election. Instead they insisted they had to make a rule for the ages.

This is preposterous because the right-wingers on the Court don’t have a problem throwing out cases and rules they don’t like.

There are many better ways forward, including Greene’s. But so what? All Republicans including those on SCOTUS are incorrigible. We can’t even get the current crop of geriatric Democrats to hold a hearing on the corruption we all know exists in the judicial system, ranging from the ethics violations of right-wing SCOTUS members to the scandalous judge-shopping of the creepy right wing, to the overtly political decisions of the District and Circuit Court in Fifth Circuit. The fact is that only sustained aggressive demands will ever change anything.

Conclusion To The Conclusion

In this series I’ve discussed three texts: The Evolution Of Agency by Michael Tomasello; Chapter 9 of The Origins of Totalitarianism by Hannah Arendt; and Greene’s thoughtful book.

Tomasello provided a look at the way we humans evolved. I think it hints at how we came to think about rights. He speculates that the earliest ancestors of humans were weaker, slower, more fragile, and had less sensitive eyes, ears and noses than their competitors. They survived by being more cooperative, more attuned to their group, more sensitive to the desires and emotions of individuals in the group. This increased receptiveness to others was the genesis and result of increasing brain size. The larger brain changed the bodies of women to enable birth babies with larger heads. That led to complications of birth. Dealing with those complications required more social cooperation. The longer dependency of the young also increased the demands of cooperation. These changes increased over time and eventually we became human. For a similar view, I recommend Eve by Cat Bohannon, which discusses evolution from the perspective of the female body and mind.

The importance of cooperation in this story leads me to speculate that rights are a way of maintaining individuality among creatures who are tightly bound for the sake of survival.

The Arendt selection says that rights are mutually guaranteed by equal citizens in a society. It also says that rights don’t matter unless there is some way to enforce and protect them. These are her conclusions about the last 200 years, not the earlier millenia.

Greene’s book tells us the story of our national attempt to insure our rights through the legislature and the judiciary, and the sad results.

I think everything we know and essentially all we think and think we know comes from other humans. That includes our rights. Some of us talk about natural rights, some about constitutional rights, some about human rights, some about God-given rights, but all of that comes from other humans and our own interpretations of their thinking. We draw from religions, philosophy, novels, catechisms, preachers, practical experience, our own emotions and sensitivities, laws, each other, our parents and teachers, our colleagues and our children.

But it’s always just us humans, trying to survive as individuals and as members of a group.

So I conclude with a question: how do you discuss questions of rights with people who believe that they possess the absolute unvarying truth?

 

 

 

The Injustice Of Our Rights Regime

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We’ve seen the rise of the Holmes/Frankfurter theory that the Constitution protects few rights but protects them strongly. In practice that means that if a law infringes a constitutionally protected right, there is a heavy burden on the government to justify it, called strict scrutiny, but if there is no right, the law stands unless there is no rational basis for it.

Chapter 4 of Jamal Greene’s How Rights Went Wrong is titled Too Much Justice. The phrase comes from a dissent by William O. Brennan in a death penalty case, McClesky v. Kemp. McClesky showed that in Georgia, Black people convicted of killing white people were disproportionately sentenced to execution. Lewis Powell constructed a slippery slope argument to the effect that any kind of defendant might show such disproportion and then what? Brennan wrote that McClesky would die because Powell was afraid of too much justice.

San Antonio Independent School District v. Rodriguez, (1973) is similar.  The plaintiffs were the families of kids in the Edgewood district of the Defendant San Antonio Independent School District (SAISD). They claimed that the funding system for Texas school districts was unconstitutional because it effectively deprived their kids of a decent education.

Greene begins his discussion with a description of the school that the Rodriguez kids attended:

The school building was falling apart. Many of the windows were broken. Many of the teachers were uncertified and underpaid; a third of them had to be replaced every year. Temperatures in San Antonio reached the mid-80s that day, but the school had no air-conditioning. There was no toilet paper in the restrooms. A bat colony had nested on at least one floor of the school. P. 94.

Powell wrote the 5-4 majority opinion. He starts with a detailed history and description of the funding system which is based on property taxes in each district. Edgewood had the lowest property value in the SAISD. Texas capped property tax rates. Even though Edgewood had a higher property tax rate, it raised substantially less than other school districts in the SAISD. Edgewood had $356 per student compared with $596 in Alamo Heights, which had the highest property tax valuation.

Powell’s discussion of applicable law starts with a discussion of the decision below. A three-judge panel of the District Court found that the Texas funding system discriminated on the basis of wealth, that wealth was a suspect category, that education was a fundamental right, and therefore the State was required to carry a heavy burden of proof justifying this system. Of course Texas could not show a compelling reason for the funding system.

Powell rejects that analysis. He doesn’t bother with the actual facts of the case as they affect the plaintiff. His only interest is the nature of the legal rights asserted by the plaintiff.

We must decide, first, whether the Texas system of financing public education operates to the disadvantage of some suspect class or impinges upon a fundamental right explicitly or implicitly protected by the Constitution, thereby requiring strict judicial scrutiny.

Powell says the wealth discrimination shown here is unlike any other kind of wealth discrimination accepted by SCOTUS to date. Later he says the same about education as a fundamental right.

Wealth Discrimination

The lower court found that poorer people in San Antonio received “less expensive” educations that those in weather districts. It held that that was enough to find wealth discrimination. Powell says that’s simplistic. Powell says he has to find a class of disadvantaged poor people that can be defined in the customary language of equal protection cases; and then evaluate the relative — rather than absolute — nature of the asserted deprivation is of significant consequence.”

He says there are three possible ways to show discrimination.

1. People with incomes below an identifiable and relevant level, which he calls “functionally indigent” (my quotes).
2. People relatively poorer than others
3. People who live in poor districts regardlesss of their incomes.

He says he will stick to SCOTUS precedents. He offers two groups where wealth discrimination has been found. He says that in those cases, the group discriminated against was so poor they could not pay, and thus were denied a benefit available to wealthier people. We are treated to several pages of cases, an expanded form of what lawyers call string-citing. Based on this analysis, the Texas plaintiffs must be relying on Powell’s first definition of a class of poor people.

But that is no good. There are equally poor people in wealthier districts. There’s a study saying that poor people tend to live in districts with a high concentration of warehouses and industry, which would support a higher property tax rate. That’s tnot the case here.

Anyway, SCOTUS precedents require that the class be denied the benefit. Here the kids are getting an education, and some money, and that’s good enough under the Equal Protection Clause.

 … [I]n view of the infinite variables affecting the educational process, can any system assure equal quality of education except in the most relative sense. Texas asserts that the Minimum Foundation Program provides an “adequate” education for all children in the State.

Who can tell? It’s all so complicated.

The right to education

Powell says SCOTUS is committed to education as an important right. Then he says that education is just another service offered by the state. The Equal Protection Clause doesn’t require equality in that service. Powell says education isn’t a fundamental right set out in our Constitution.

It is not the province of this Court to create substantive constitutional rights in the name of guaranteeing equal protection of the laws.

Discussion

1. There’s more. Lots more. And that’s not counting the 114 footnotes. But I doubt many EW readers got far into the discussion before saying to themselves, But what about the kids going to school with BATS? The bat colony isn’t mentioned in either the SCOTUS decision or that of the lower court.  The lawyers are so wound up about the funding mechanism and court-created rules about classification that they ignored the actual outcome: kids are going to school with bats!

2. Powell gives us a slippery slope argument: if we say kids shouldn’t have to go to school with bats, we might have to say they have to be fed a nutritious meal at school.

3. Greene describes Powell’s background in some detail. Reading between the Ines, Powell seems like one of those genteel Southern Politicians, the ones who would never use the N-word in public, but can’t quite pronounce Negro, especially at the country club.

4, The 14th Amendment says in part that no state is permitted to “… deny to any person within its jurisdiction the equal protection of the laws.” How hard is it to apply that rule to kids going to school with bats?

5. This case and hundreds of others are the direct result of the refusal of SCOTUS to enforce the 14th Amendment. Instead, we get blindingly stupid holdings based on what John Roberts called the dignity of the state. A state that makes kids go to school with bats and calls that an “adequate” education has no claim to dignity.

 

Strict Scrutiny and Rational Basis Scrutiny

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Index to posts in this series

In Chapter 2 of How Rights Went Wrong, Jamal Greene introduces us to a rule of Constitutional interpretation suggested by Oliver Wendell Holmes in his dissent in Lochner v. New York (1905).  The idea is that the Constitution protects few rights, but those it protects, it protects strongly. This cashes out as the requirement that the government must show very strong grounds if it infringes a protected right, the strict scrutiny test. However, the government need only show that it has a rational basis for other legislation, the rational basis test.

Chapter 3 explains how that rule came into effect, worked for a while, and then proved inadequate. The principle driver of change was Felix Frankfurter, showing once again the importance of people and relationships in the evolution of our legal system. Frankfurter was the son of Austrian immigrants. He came to New York City in 1894 at the age of 11. He was a star student, went to Harvard Law, and began to rise in government service. Greene describes him as “An inveterate sycophant and social climber” (p, 60). One of his targets was Holmes, and over the years, Frankfurter slobbered over him.

In 1914 Frankfurter joined the law faculty at Harvard and began to advocate for the Holmes dissent in Lochner. He was in and out of government service, and became a sort of Leonard Leo figure, placing his best students in clerkships and government positions.

He forged a relationship with Franklin Delano Roosevelt during WWI when both served on a government board. The relationship grew when FDR became governor of New York.

The effort to actualize Holmes’ Lochner dissent wasn’t going well through the 1920s, as the Supreme Court repeatedly applied the rule of the Lochner majority. When FDR was elected president, Frankfurter became one of his most trusted advisers. In the early years of the New Deal, SCOTUS struck down most of the laws enacted to deal with the Depression. That led to FDR’s threats to pack the Court, and to the sudden change in the outcomes of these cases.

US v. Carolene Products Co. was an early example. In that case, the majority based its decision on Frankfurter’s view of Holmes’ Lochner dissent. Further, it expanded that rule with Footnote 4, which Greene summarizes as holding that strict scrutiny would apply in three different cases:

(1) when the law interferes with a right the Constitution specifically protects, (2) when the law restricts the political process itself, or (3) when the law discriminates against particular religious or racial minorities. P. 66.

I read Greene as suggesting  that one of the factors in Frankfurter’s advocacy was his progressive view of the need for government regulation of corporations. Footnote 4 connects that view with strong protection for minority groups.

Greene shows how this rule made its way into the leading treatises and legal textbooks, largely through the influence of people trained and steeped in Frankfurter’s views.

With minor adjustments, that remained the rule through the 50s and early 60s. That was a period of vast social change, and social unrest, as Black people, women, LGBTQ people, Native Americans, and poor people from all groups began to make demands on the legal system that went beyond the bare scope of Footnote 4.

One example of this push is Griswold v. Connecticut, which Greene discusses in detail. One of Frankfurter’s last SCOTUS decisions was Poe v. Ullman; Poe was a facial challenge to Connecticut’s ban on birth control. Frankfurter punted, saying that the statute was never enforced. Side note: the legal term is desuetude. It ought to apply, for example, to the Comstock Act which isn’t ever enforced, but with the current majority on SCOTUS, who knows.

Estelle Griswold, the executive director of Planned Parenthood League of Connecticut, got herself and a doctor arrested and convicted for dispensing birth control material and information. Frankfurter had retired due to a stroke. William O. Douglass, who had dissented in Poe, wrote the majority opinion in which he laid out the right to privacy.

In the remainder of the Chapter, Greene looks at the different ways courts, especially SCOTUS, have tried to deal with the demands of groups whose rights were limited by all branches of state and federal governments.

Discussion

1. Reading between the lines, it seems to me that Greene thinks that the values, biases, and opinions of judges play a crucial role in decisions. This is one of several versions of legal realism.

For the purposes of this Article, I define “legal realism” as the perspective that Supreme Court decisions resolving important constitutional law questions are based primarily on the Justices’ values, politics, and experiences, not on text, history, or precedent. In other words, personal preferences, rather than the prior law dictate most Supreme Court constitutional law decisions.

2. Here’s an example. Richard Posner is an intellectual. He served on the 7th Cir. From 1981 to 2017. He taught at the University of Chicago Law School for decades. He seems to have been influenced by the strict neoliberalism taught at the Chicago Business School. That connection perhaps led him to his theory of law and economics, which I would describe as the idea that in deciding cases Posner would assume that the law favors the economically efficient outcome.

In a 1985 article, An Economic Theory of the Criminal Law,  he analyzes crimes like rape in terms of markets and market efficiency, apparently indifferent to the inherent silliness of the effort.

Put differently, the prohibition against rape is to the marriage and sex “market” as the prohibition against theft is to explicit markets in goods and services. [footnote omitted]

After the Great Crash of 2008, he formally renounced the entire project of the Chicago School of economics, including his own law and economics branch. Here’s a discussion.  That, of course, is the mark of an intellectual: he rejected a theory he had relied on for decades when he saw it didn’t work.

2. Greene mentions the deeply felt trope that we have a government of laws, not men, citing John Adams. P. 58.  How does it square with the theory that the prejudices and deeply held world views of judges are a critical factor in their decisions?

In routine cases it’s not a problem. But it’s a huge problem for major constitutional law issues decided by SCOTUS. Neil Gorsuch pompously demonstrated this when he said at oral argument in Trump v. United States,  “…we’re writing a rule for the ages” about presidential immunity from criminal accountability. P. 140. That is not the job of a judge. Writing rules for the ages is the responsibility of legislatures. But the current majority doesn’t think like that. As they showed in Dobbs and the gun cases, they don’t even believe there are rules for the ages. There are only rules laid down by five unelected unaccountable lawyers, good only until changed by five other unelected unaccountable lawyers.

3. I think that when institutions are controlled by people willing to subvert the norms of their jobs to achieve ideological or political goals, the institutions will fail. There are no rules sufficient to restrain them. The only solution is to remove them and replace them with people who comply with the norms.
__________
Graphic: Gilbert Stuart’s portrait of John Adams.

The Second Amendment, as Applied

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AM-15 Machine Gun, now apparently legal to possess in Kansas

The Second Amendment as written and ratified: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

The Second Amendment, as applied by US Federal Judge John W. Broomes of the Kansas District: “A well regulated Militia, being necessary to the security of a free State, t [T]he right of the people to keep and bear Arms, shall not be infringed.”

From the top of Broomes’ ruling on Wednesday tossing out a gun possession charge:

This matter is before the court on Defendant’s motion to dismiss based on Second Amendment grounds. (Doc. 26.) A response and a reply have been filed (Docs. 28, 29), and the court held a hearing to establish additional facts about the weapons charged. The motion is thus ripe for review. The court finds that the Second Amendment applies to the weapons charged  because they are “bearable arms” within the original meaning of the amendment. The court further finds that the government has failed to establish that this nation’s history of gun regulation justifies the application of 18 U.S.C. § 922(o) to Defendant. The court therefore grants the motion to dismiss.

And just what were the weapons in question that were charged?

I. Background
Defendant Tamori Morgan is charged with two counts of possessing a machinegun [sic throughout] in violation of 18 U.S.C. § 922(o). (Doc. 1.) Specifically, Defendant is charged with possessing an Anderson Manufacturing, model AM-15 .300 caliber machinegun and a machinegun conversion device.  It was established at the hearing that the conversion device is a so-called “Glock switch” which allows a Glock, model 33, .357 SIG caliber firearm to fire as an automatic weapon.

Making machine guns great again. Wonderful.

Just as the Alito-authored Dobbs spawned a host of ugly laws, regulations, and ripple effects across the country, the Thomas-authored Bruen is now doing the same. Welcome to the Federalist Society Judicial System.

Elections matter, people. Elections matter a lot.

Two Views Of Protection Of Rights

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The Supreme Court Has Always Been Terrible.  In Chapter 2 of How Rights Went Wrong, Jamal Greene selects three examples of terrible cases: Dred Scott v. Sanford, Plessy v. Ferguson,  and Lochner v. New York. These three cases are so blatantly horrible that no one can support their outcomes and be considered acceptable in academia. Or in polite society, if you ask me.

Greene sees Dred Scott as a case about who is entitled to rights under the Constitution.

At stake in Dred Scott were the boundaries of the political community entitled to the law’s protection and able to claim rights under it.
…
Chief Justice Roger Taney acknowledged that the Declaration of Independence had emphasized the “self-evident” truth “that all men are created equal.” But, Taney continued, “it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration.” P. 36.

Plessy is equally horrible. Henry Brown’s opinion says that being forced to travel in separate railcars isn’t a badge of inferiority but the “colored race” chooses to feel insulted.

Greene says that the Framers saw Constitutional rights as necessary to protect the rights granted by states and local governments from federal intrusion. On that theory, state and local majorities were free to grant or deny rights to people as they saw fit. The views of the Framers failed to protect people when those local majorities trampled on the rights of Black people and others. Local majorities can be just as tyrannical as any unaccountable monarch, and frequently are.

Reconstruction Era cases repurposed the 14th Amendment to protect capitalists from regulation by state and federal governments. Lochner is the example frequently given. The bakers of New York persuaded the legislature to pass health and safety laws concerning their work hours and other matters. Lochner sued, saying that the laws interfered with his right to contract, which he alleged was guaranteed by the Constitution. The holding, that the right to contract prevails over state and federal laws, lasted  until the 1930s when Franklin Delano Roosevelt threatened to expand SCOTUS.

There were two dissents in Lochner, by Oliver Wendell Holmes and John Marshall Harlan. Holmes took the view that there are Constitutional rights, and these must be given maximum protection. But laws that do not implicate Constitutional rights are in the province of the legislature and must be respected and enforced by the courts.

For Holmes, the Constitution protected very few rights—and certainly not the right to contract—but those it protected, such as freedom of speech, it protected strongly. P. 54.

Harlan took the view that all rights, including those enumerated in the Constitution, must be respected. The question for courts is the extent to which rights are respected when they conflict with other rights or the rights of society. Harlan agrees that the Constitution protects the right to enter into contracts. But.

The right to contract “is subject to such regulations as the state may reasonably prescribe for the common good and the well-being of society.” P. 55.

The job of a court in a case like Lochner is not whether there is a Constitutional right to contract. It’s to determine whether the state is acting reasonably in regulating that right. Greene notes that it might have helped if the Courts had considered the right to labor, a right protected by political action .

Holmes’ views prevailed, for reasons we learn in Chapter 3. Greene sees this as the birth of what he calls “rightsism”, the fetish for rights that we see all the time now.

Discussion

1. I’ve skipped all the material that makes this chapter so persuasive. Greene gives detailed and clear descriptions of the cases, and of the backgrounds of Holmes and Harlan. This isn’t just a dry theoretical lecture, it’s a lively picture of important documents and the people who crafted them. It’s a good reminder that we are persuaded not just by logic but by the perceptions we have of the facts and issues in cases. I found myself persuaded that he was on the right track long before we got to the meat of the arguments.

2. I’ve tried to read Dred Scott and Plessy, but failed. The mindset of the writers is jarring even through the somewhat difficult language of that era. The bias is blatant. And yet I’m sure these judges were, in the words of William Baude about the current right-wing majority, “principled and sound”, with some blemishes.

Baude explains that all the recent controversial decisions “… rightly emphasized the importance of turning to historical understandings in deciding Constitutional cases rather than imposing modern policy views.” Of course, Dred Scott, Plessy, and Lochner are soundly reasoned and in accord with historical tradition. That’s not my idea of a good way to justify any Constitutional decision. Maybe it’s relevant that Baude is a member of the Federalist Society, the organization founded by Leonard Leo.

I discussed my view of good judging in this post.  Start at “Let’s begin with this question” for the general discussion. Needless to say, it has nothing to do with anything taught by the conservative legal movement.

3. Lochner logic shows up in Project 2025’s Mandate for Leadership.

Hazard-Order Regulations. Some young adults show an interest in inherently dangerous jobs. Current rules forbid many young people, even if their family is running the business, from working in such jobs. This results in worker shortages in dangerous fields and often discourages otherwise interested young workers from trying the more dangerous job. With parental consent and proper training, certain young adults should be allowed to learn and work in more dangerous occupations. P. 595.

 

4. In The Nation That Never Was Kermit Roosevelt says that the meaning of the term “all men are created equal” changed through the efforts of Abraham Lincoln, Frederick Douglass and many others. Greene does something similar with the idea of Constitutional rights. He explains the shift in our understanding of the Bill of Rights as protecting the power of the states from the central government, to our current view that it protects individuals from all government action.

Language and grammar change, sometimes quickly. So does our knowledge and understanding of history. That’s why originalism and textualism are suspect methods. I do not think the legal academy has given this enough attention.

SCOTUS Usurps Congressional Power

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Posts in this series.

In the previous post in this series I described the thesis of Jamal Greene’s How Rights Went Wrong. He says the Bill of Rights was designed to protect the power of states against intrusion by the newly created federal government. Chapter 1 provides evidence to support his conclusion. My original plan was to go over the evidence he cites. Instead, I have a different bit of evidence.

SCOTUS didn’t mention the Bill of Rights when it listed the rights of citizens of the United States in any of the seminal cases construing the Reconstruction Amendments.

The issue of individual rights under the 14th Amendment came before SCOTUS in The Slaughterhouse Cases (1873), which I discussed here. The majority says that there is a difference between the rights which Americans have as citizens of the United States on one hand, and the rights they have as citizens of a state on the other.

The adoption of the first eleven amendments to the Constitution so soon after the original instrument was accepted shows a prevailing sense of danger at that time from the Federal power. And it cannot be denied that such a jealousy continued to exist with many patriotic men until the breaking out of the late civil war. It was then discovered that the true danger to the perpetuity of the Union was in the capacity of the State organizations to combine and concentrate all the powers of the State, and of contiguous States, for a determined resistance to the General Government.

Unquestionably this has given great force to the argument, and added largely to the number of those who believe in the necessity of a strong National government.

But, however pervading this sentiment, and however it may have contributed to the adoption of the amendments we have been considering, we do not see in those amendments any purpose to destroy the main features of the general system. Under the pressure of all the excited feeling growing out of the war, our statesmen have still believed that the existence of the State with powers for domestic and local government, including the regulation of civil rights the rights of person and of property [sic] was essential to the perfect working of our complex form of government, though they have thought proper to impose additional limitations on the States, and to confer additional power on that of the Nation.

So what does the majority say are the rights of citizens of the United States? Very few, all of which are set out in the main body of the Constitution. The majority cites several older cases, and describes each of them as saying that the rights we claim come from our status as citizens of a state.

But neither the majority nor any of the older cases point to the Bill of Rights as a source of our rights as citizens of the US. None of them say that as citizens of the United States we have a right to a jury trial, or to freedom of speech, or any other right in the Bill of Rights.

In that section of The Slaughterhouse Cases the Court says the opposite. It says that the 14th Amendment does not change the principle that our rights come from our status as citizens of a state.

As we saw in earlier posts on the Second Founding, subsequent decisions of SCOTUS including United States v. Cruikshank  and The Civil Rights Cases take the same position, and strike down all of the remedial legislation enacted by Congress under the 14th Amendment to give civil liberties to all citizens including Black people. These cases led us to Plessy v. Ferguson. All of them stand for the proposition that the Reconstruction Amendments do not grant rights to U.S. citizens, and that it is unconstitutional for Congress to grant such rights.

Congress gave up trying, and nothing happened to repair the damage of slavery or bring an end to Jim Crow segregation for 70 years.

Discussion

1. SCOTUS ignores America history and its own precedents when it puts itself in charge of our rights. It wasn’t that way in 1792, and it wasn’t that way in the late 1800s. That whole thing was invented in the 20th Century as SCOTUS began to say that the provisions of the Bill of Rights applied to individuals through the Due Process Clause. The concept of due process has a legal definition, and this isn’t it. We now call it “substantive due process,” and I have never understood how it’s supposed to work. Clarence Thomas agrees, calling substantive due process a “legal fiction” in  MacDonald v. City of Chicago, Thomas J. concurring.

Here’s the Wikipedia entry on substantive due process.  I’m not sure I agree with it completely, particularly the pre-Civil War material. Here’s another which seems closer to what I remember from law school.

2. So where do our rights come from? In early cases under the Reconstruction Amendments, the Court says that our rights come from the states. Rights might be found in a state constitution, or in statutes enacted by state legislatures. That means there is no agreed set of rights held by all of us. It means that there is nothing significant to the idea of being a citizen of the U.S. It also means that we have to go from state to state amending laws and constitutions to protect our liberty.

In this post, I pointed to Hannah Arendt’s view of rights. She thinks that rights only exist among people living in societies that are based on equality as citiznes. In those societies rights arise from a mutual guarantee. We give each other rights, and agree to enforcement mechanisms; and we benefit by having the same rights. That certainly doesn’t point to courts as the source of rights. It points to founding documents, and to the legislature. The courts and the executive branch serve only as enforcement mechanisms.

Each of the Reconstruction Amendments expressly empowers Congress to pass legislation to enforce them. This is a power given to Congress, not to SCOTUS. The idea that SCOTUS gets to overrule the exercise of expressly authorized power by Congress is not in the Constitution or any amendment.

I note in passing that the argument in Shelby County v. Holder, striking down a critical part of the Voting Rights Act, is the dignity of the states. That’s a term cited by John Roberts, a long-time foe of the Voting Rights Act and other legislation broadening democratic rights. Dignity is very important when it comes to states limiting the right to vote, says Roberts.

In Trump v. United States, the right-wingers granted the President almost total immunity in the exercise of official duties. It said in essence that citizens can’t hold Presidents accountable civilly or criminally, and it hamstrung any enforcement that might not have been foreclosed.

That’s how we should treat Congressional actions, including legislation and investigation related to its powers under the Constitution. That’s how we get our rights. We petition Congress for rights, and if granted, they are ours without regard to what five unelected zealots scribble.

How Courts Came to Control Our Rights

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Index to posts in this series

In Chapter 1 of How Rights Went Wrong, Jamal Greene goes through the actual history of the origin of the Bill of Rights. I think most of us were taught that the Bill of Rights is a list of rights that go with being US citizens. Courts are the arbiters of the meaning of the Constitution, so they protect the minority from overreaching by the majority. That’s not what Greene sees.

The Constitution doesn’t give individuals very many rights. It bars ex post facto laws, and bills of attainder, gives people a right to trial by jury, and a few other rights, not much compared to the rights people thought they have.

The Anti-Federalists objected to the Constitution in large part because of the absence of a bill of rights. They claimed to fear that the central government would infringe on the power of the states just like the British kings had done. The people living at that time were very interested in their individual rights, but according to Greene:

… within Founding-era political thought, the institutions best suited to reconcile the competing demands of rights bearers were not courts but rather state and local political bodies: juries, churches, families, and legislatures. Democracy was not a tool of majoritarian oppression but rather was the means through which a community prevented oppression from the outside. P. 7.

The key phrase here is “reconcile the competing demands of rights bearers.” Greene thinks the goal of the Bill of Rights was to center the balancing of rights claims at the local and state levels, and to keep it out of the hands of the federal government.

This theory was consistent with the political power structures of that era, with local and state governments having the dominant role. Many of the states were run by the rich: slavers, merchants and bankers in varying proportions in each of the states. None of these people were willing to cede much power to the federal government not least because it might interfere with their own power and their own profits. The Federalists held plenty of power in their own states, and had no reason not to agree.

Side note: I may be reading some of this into Greene’s words. He doesn’t discuss power and wealth, but I think this is a fair reading of his words:

The backers of the Bill of Rights were not interested in protecting minorities from majority tyranny. They were interested in protecting their own governing majorities from others who might have different interests or agendas. P. 13

The purpose of the Bill of Rights was not to protect individuals from the tyranny of the majority. It was to protect state and local governments from interference and control by the federal government. Most of the provisions of the Bill of Rights in their own words apply to the powers of Congress: “Congress shall make no law”. Only a few of them seem to give rights to individuals, or protect individuals from the power of the States to regulate as they see fit. In fact, as we will see, most states and the federal government enacted laws that seem to violate the express provisions of the Bill of Rights.

Greene says the theory that state and local governments, juries, and private institutions like churches and schools were best positioned to deal with rights claims was destroyed in the Civil War.

Greene goes through each of the first 10 Amendments in the second half of Chapter 1. I’ll look at some of those in the next post.

Discussion

1. So how did the Supreme Court gain control over our rights? SCOTUS claimed the ultimate power to interpret the Constitution. In Dred Scott, it aggressively asserted that it was in charge of the slavery question, no matter what Congress and the people wanted. After the Civil War, instead of refashioning the Supreme Court and insisting on their proper role in control of our rights, Congress and the Executive gave the judiciary a large role in the enforcement of the laws and our rights, including in several Civil Rights laws.

From the beginning, SCOTUS resisted the force of the Reconstruction Amendments. In The Slaughterhouse Cases, there is a nice statement of the goal of the !3th, 14th, and 15th Amendments. Then the Court says it can’t possibly really mean much by that, so those old racists went on to say that the rights of Black people, women and Native Americans were still controlled by the states. In a series of cases SCOTUS restricted the power of Congress to carry out the intent of those amendments, and repurposed them to protect corporations.

After a few decades SCOTUS decided that the Due Process Clause of the 14th Amendment applied against the states, effectively creating a whole set of national rights for individuals which it claimed to find in the Bill of Rights. It claims that the rights it finds there are absolute, and cannot be touched by our government. Congress and the Presidents acquiesced. That’s how we find ourselves under the thumb of a rogue SCOTUS.

2. The current conservative majority agrees with those old courts. They restrict congressional and executive powers. They put crucial matters like women’s health and welfare in the hands of states. They approves of state actions to gerrymander and suppress voters to make sure minorities in those states can dominate the majority. Every disgusting decision the six right-wingers hand down would fit fine with their Reconstruction-era predecessors. Every policy choice they make would satisfy the demands of the Gilded Age Plutocrats.

The founders were rich white men infused with the biases of their day. There were slavers and people willing to compromise with slavers for their own reasons. They agreed that the lives of enslaved people and Native Americans didn’t matter, and that women weren’t really people. Those views informed their drafting of our Constitution and Bill of Rights. Why should they control ours? But Roberts and his majority are trapping us in the amber of those ignorant prejudices.

Alito Versus Law And Science

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Our legal system only works if we have impartial judges whose decisions are based on facts. Samuel Alito is not an impartial jurist. He doesn’t care about facts. In this, he is only the most obvious of the six right-wing members of SCOTUS.

Law

Roe v. Wade, discussed here, stood as precedent for 50 years, until it was thrown out by the right-wingers. Each of the people who signed onto the opinion, and John Robert, who didn’t, swore that stare decisis is a crucial aspect of judicial legitimacy, and recognized that Roe was binding precedent. That was a deception.

One important goal of stare decisis is to create certainty and stability in social relations. The legal term is reliance. We don’t overturn precedent without good cause. We might overturn a precedent because it is doing more harm than good. Thus, reasonable people see the wisdom in overturning Plessy v. Ferguson, which upheld Jim Crow laws.

I do not think Roe v. Wade was wrongly decided, but even if I did, that’s not enough. If overturning it causes more harm than leaving it in place, it should stand. Otherwise, we are not a government of laws, but a government by the feelings of five members of SCOTUS.

In Dobbs v. Jackson Women’s Health Organization, Alito rips that principle to shreds in pursuit of his partisan ideology. He writes:

in this case, five factors weigh strongly in favor of overruling Roe and Casey: the nature of their error, the quality of their reasoning, the “workability” of the rules they imposed on the country, their disruptive effect on other areas of the law, and the absence of concrete reliance.

His justification for all these points is callous and absurd, but especially his rejection of reliance. In § III.E he explains that there are three kinds of reliance.

1. Areas of law requiring precise advance planning. This, of course, is not applicable.

2. Areas of concrete reliance. That’s not present in this case. The claims that women rely on Roe are “novel” and “intangible”, and it would be wrong to consider them.

That form of reliance depends on an empirical question that is hard for anyone—and in particular, for a court—to assess, namely, the effect of the abortion right on society and in particular on the lives of women.

That leads to impassioned arguments, he says, so who’s to say whether there’s any actual reliance. So what if there’s a hideous impact is on society and in particular on the lives of women? Those things are irrelevant in the austere legal world, lit by the incandescent power of the Judicial Intellect Of Sam Alito.

3. This ruling won’t affect other cases. He must think we’re stupid.

Science

Alito uses the term “unborn human being” ten times in his opinion. Usually courts use neutral language, or the language of the parties. His choice of words is a signal about his beliefs. He thinks a human child, a separate person, is living in the womb, just waiting to be born. That’s not true. It’s a religious belief.

My thanks to commenter c-i-v-i-l for linking us to a peer-reviewed paper in Natural Sciences, Pseudo-embryology and personhood: How embryological pseudoscience helps structure the American abortion debate. The paper was written by a noted US embryologist, Scott Gilbert. I have the pleasure of knowing Professor Gilbert. The paper includes a review and explanation of six of the different views scientists hold regarding the onset of personhood.

1. Fertilization: the formation of a unique genome.

2. Gastrulation: the point of cellular division of the fertilized ovum at which the embryo can no longer form identical twins, but can only form one unique human person.

3. Emergence of the human EEG pattern pattern: the cerebral cortex begins to function.

4. Viability: the stage at which the embryo can survive outside the womb.

5. Birth.

In addition to these, Gilbert notes a sixth position taken by many scientists, that personhood is not a scientific category. The differences he describes between the state of the embryo at the five stages he lists show the problem.

Gilbert’s paper disposes of the notion that there is scientific consensus on the issue of personhood. He goes much farther in his analysis, explaining that the anti-abortion mob is creating a pseudo-science to justify their religious zealotry. He likens it to Eugenics which caused tremendous damage; it also seems like creationism.

He describes three myths that buttress this pseudo-science. One is th myth of the valiant sperm fighting its way on a perilous journey, racing to the waiting ovum, piercing it and filling it with new life. This is a story of masculine prowess: the male is the active force and the female is passive. It’s the myth of the journey of the hero as seen in the work of Joseph Campbell and others. He writes:

The female oviduct is not a passive racetrack, and the egg and its cumulus are active in attracting sperm and exciting them to swim faster. Although the sperm needs its propulsion to pass through the cumulus cells and extracellular covering that surround the egg, it does not bore through, drill through, or penetrate the egg, itself. Rather, when the sperm finds the egg, it lies next to it, spooning, and then the membranes of the sperm and egg melt together, and the two become one.

This is a beautiful and powerful picture: two human bodies working together to achieve new life. Alito deals with the beauty and complexity Gilbert outlines in his paper by claiming judges can’t solve the problem. His solution is to hand the decision to state governments. He knows full well that many of them don’t care about reality any more than he does, and that they will take away the liberty of the majority. He doesn’t care.

Partisan hackery

It’s easy to see that Alito is a partisan hack by reading his opinions and checking his voting record. In the face of his record, he refused to recuse from the Trump immunity case and the January 6 criminal case on the hilarious grounds that no one could think him anything but the soul of impartiality.

Journalist Lauren Windsor recorded Alito at a recent private event. The video reinforces the perception that he is a partisan, not an impartial judge. He has a Manichean view of US politics: the struggle between the forces of godliness and the secular left. In a rambling response, he describes it as a battle one side or the other must win, though possibly there are ways to live together in peace, but some matters cannot be compromised.

But there wasn’t a battle until a tiny minority funded by billionaires used the state to impose their religion on an unwilling majority. The majority was forced to defend its liberty. Alito thinks this is fine.

His wife, Martha-Ann, is a Fox News Grandma fulminating about the outrage of the day, and stewing in grudges for decades. This recording,  also captured by Windsor, is awesome. As Joan Walsh puts it in The Nation, she lets her freak flag fly.

Alito is a crank. Martha-Ann is a crank. They crank together.

What can we do?

1. Please read the Gilbert paper I linked. If nothing else, it will shore up your faith in intelligent observation of our shared reality.

2. Call Senator Durbin’s Judiciary Committee and ask them what they’re doing to protect us from biased judges. It isn’t just Alito and the other SCOTUS rogues. Trump put dozens of right-wing cranks on the bench, including Aileen Cannon, Matthew Kacsmaryk, and James Ho.

Roe v. Wade

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Roe v. Wade (1973)  is at the heart of Jamal Greene’s book How Rights Went Wrong, my next book. It marks the apogee of the trajectory of the Warren Court, though it was decided after he retired. The opinion was handed down during my last year in law school, and I must have read it then, but I hadn’t read since. The name, if not the reasoning, became an icon for our understanding of our rights. And then, the current SCOTUS majority reminded us that they’re in charge of our liberty, and not some ancient version of SCOTUS from 50 years ago.

In this post, I’ll discuss the holding and reasoning of the Roe majority, written by Harry Blackmun.  I’ll skip over the preliminary holdings, including standing, justiciability, and procedural issues.

Introductory context

Blackmun begins his analysis by stating that the Court is aware that the abortion is “sensitive” and “emotional”, and that people hold “deep and seemingly absolute convictions” the subject. People’s views on the subject are influenced by a wide variety of factors, ranging from religious doctrine to worries about population. But he has a job to do.

Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection.

Facts and legal claims

Jane Roe was a single woman residing in Texas. Texas law made abortion a crime with exceptions “… for an abortion by. ‘medical advice for the purpose of saving the life of the mother.’ “. At the time she filed Roe was pregnant and wanted a safe abortion in Texas because she couldn’t afford to go to a state where it would be legal.

Roe claimed that the Texas statutes were unconstitutionally vague, and “… that they abridged her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.”

Context and interests

Blackmun begins with a history of abortion laws from ancient times to the present “for such insight as that history may afford us”. He doesn’t mention the witch-hunter Matthew Hale. He then describes the past and current positions of three professional associations, the American Medical Association, the American Bar Association, and the American Public Health Association. These lay out the general legal and health situation at that time and the recommendations of those bodies.

Blackmun says there are three justifications for criminalizing abortion.

a) to discourage illicit behavior. Texas doesn’t make this argument.

b) to protect the pregnant woman. At the time of adoption of criminal punishment the procedures were dangerous, with a high mortality rate. With modern procedures, that is no longer the case, and abortions, at least in the early months, are safer than normal childbirth. Blackmun notes that there remain important health and safety issues that are properly the function of states. The interest of the states in protecting the woman’s health and safety increase as the pregnancy progresses.

c) to protect pre-natal life. Texas argues that “Only when the life of the pregnant mother herself is at stake, balanced against the life she carries within her, should the interest of the embryo or fetus not prevail.” Blackmun says that “as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone.”

The Roe side argues that there is no reason to think that any of these statutes were intended to protect the fetus. There is no legislative history to support that view, and what there is discusses the health of the pregnant woman. The same is true for the case law.

These are the interests at stake.

The right to privacy

Blackmun says that there is a line of SCOTUS cases in which the Court recognized a zone of privacy for individuals, and lists cases in which provisions of the Bill of Rights were applied to create individual rights to be let alone, including Griswold v. Connecticut, the birth control case. He doesn’t repeat the analysis of Griswold, merely pointing out its roots in the 9th Amendment.

Blackmun holds that the a woman’s decision to get an abortion is within this zone of protection. He recites some of the burdens that Texas imposes on women, and the damage it does to them and their families. But that’s not the end of the discussion.

He’s already said that Texas has an interest in protecting the health of the woman, and in maintaining medical standards, and in protecting potential life. The right to privacy is not absolute. There are other interests that must be protected, and at some point the interests of that the state rightfully claims become dominant. He says this is the general position taken by most of the courts that have ruled on the issue.

Fetal personhood

In Section IX, Blackmun takes on the question of whether a fetus is a “person” within the meaning of the 14th Amendment. Blackmun recites every use of the word person in the Constitution. He says that none of them can be read to include “prenatal application.” Other courts agree. But that doesn’t fully exhaust the interests asserted by Texas.

Texas claims life begins at conception. Blackmun says that doctors and scientists can’t answer that question and gives examples Therefore the judiciary certainly can’t.

Blackmun says that to override a woman’s right to privacy Texas must show a compelling state interest.

We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, … and that it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes ‘compelling.’

This leads to the three part rule of Roe. In the first trimester, the dominant interest is that of the woman, and the state cannot show a compelling interest in her decision or in the means of effectuation. In the second trimester, the risk increases, justifying reasonable regulation related to the life and health of the woman.

After viability, roughly at the end of the second trimester, the interest of the state in protection of the fetus becomes dominant, and reasonable regulation to protect the fetus is justified, so long as it doesn’t impact the life or health of the mother.

Discussion

1. In Dobbs v. Jackson Women’s Heath Organization,  Alito  claims that Roe is badly reasoned. Alito doesn’t like the history, maybe because it doesn’t mention any witch-hunters. He thinks Blackmun was required to show there were prior legal case recognizing a Constitutional right to abortion. He doesn’t like the three part regime. And he doesn’t like the idea of the zone of privacy at all.

Alito states that there is no basis in the Constitution for a right to an abortion. He says that whatever the privacy interests are, the states can evaluate them without regard to the Constitution. He flatly denies the existence of a constitutionally protected zone of privacy. He thinks the only limit on governmental intrusion is something he calls the principles of ordered liberty, which he doesn’t define, or something deeply rooted in our history and traditions. Alito says no new constitutional rights can ever exist, and we’re locked into a regime dominated by slavers and those willing to compromise with slavers; a regime where dominant males said women were second class citizens, despite the Reconstruction Amendments. Alito thinks federal and state governments can intrude into any area of private life with few exceptions.

Alito’s views are at the very beginning of his interminable opinion, and there’s a syllabus, a brief synopsis, at the beginning of the link. See for yourself.

Query: which opinion makes better sense of the world we live in?

2. After we go through Greene’s book we’ll take another look at this case.