Wednesday Writs: The Most Concise Synopsis I Can Come Up With on The Supreme Court and SB 8
Panorama of the west facade of United States Supreme Court Building at dusk in Washington, D.C., USA 10 October 2011. Photo by Joe Ravi, CC BY-SA 3.0
WW1: In a slip opinion released last Friday, the Supreme Court announced it will let SB 8 stand while challenges to the law by abortion providers work their way through the courts. Justice Gorsuch wrote for the majority.
To discern what the Court ruled and why requires untangling a mass of threads of procedural history involving multiple parties, but here’s the most concise synopsis I can come up with:
First, the parties:
The Petitioners/plaintiffs below: Whole Women’s Health, an abortion provider
Defendants: several Texas government officials, including the state’s attorney general, a state court judge, a state court clerk, several state health agency department heads, and one private citizen, who was expected to file suits against abortion facilitators as permitted by SB8.
The petitioners originally sued in federal court to prevent enforcement of SB8. The judge and the clerk were included because since without their cooperation (“their” as in their official position) no lawsuit can ever be filed or maintained. These officials moved to dismiss the suit, on the basis of sovereign immunity. The private citizen, Mark Dickson, also moved for dismissal claiming lack of standing. The district court denied both of these motions. Defendants appealed to the Fifth Circuit Court of Appeals, at which time the plaintiffs asked for an injunction to prevent enforcement of SB8 while the appeals were pending. The appeals court denied the injunction but issued a stay of the proceedings in district court while the appeals were pending. The plaintiffs then asked the Supreme Court for an injunction, which was denied. Subsequently, the plaintiffs again appealed to SCOTUS, this time asking the Court to rule on the appeals which were pending in the Fifth Circuit, regarding the defendants’ ability to be sued.
This means that SCOTUS is “standing in the shoes” of the Fifth Circuit for purposes of this ruling. Thus, says Gorsuch, “[I]n this preliminary posture, the ultimate merits question, whether S. B. 8 is consistent with the Federal Constitution, is not before the Court.”
The opinion then states bluntly that the court clerk and the state court judge should be dismissed from the suit. The Court looked to Ex Parte Young, which was invoked several times during oral argument, and finds that while a federal court may act to stop the enforcement of an unconstitutional state law by enjoining government officials from carrying out its dictates, it also stated that state courts could not be enjoined. Additionally, the Court was not willing to classify judges and clerks as “adverse litigants” for purposes of Article III jurisdiction.
The Court went on to opine that the attorney general should likewise be dismissed from the suit, because the AG has no ability to enforce the statute. Finally, the Court accepts the sworn statement of private citizen Mr. Dickson indicating he has no intention of filing an SB8 lawsuit, holding that he should be dismissed as well.
This left only the various agency head defendants, the executive directors of the Texas Medical Board, the Texas Board of Nursing, and the Texas Board of Pharmacy, and the executive commissioner nof the Texas Health and Human Services Commission. Each of these may be sued for injunction under the dictates of Ex Parte Young according to the majority. Gorsuch explained that each of them are required by law, as part of their duties, to take action against those under their purview who violate Texas’s Health and Safety Code, under which SB8 falls. Thus they would conceivably play a role in enforcing the statute, and are a proper party for the petitioner’s lawsuit.
Justices Alito, Kavanaugh, and Barrett joined Gorsuch’s opinion in full. Justice Thomas joined in all aspects except for the part which allows the lawsuit to continue as to the agency directors. He doesn’t buy the argument that the agency heads are tasked with enforcing the law against providers, since SB8 makes it clear that private civil actions are the sole means by which the statute may be enforced. The majority opinion counters that there is a “savings” clause in SB8 which provides that “no court may construe S. B. 8 as ‘limit[ing] the enforceability of any other laws that regulate or prohibit abortion.'” Thomas contends that the various medical boards involved must enforce the Health and Safety Code which does not regulate abortion; rather, “it grants authority to the Texas Medical Board to enforce other laws that do regulate abortion.” The majority does not see this distinction, and notes that the medical board is tasked with instituting disciplinary action against providers who violate Chapter 171, which includes SB8.
Thomas then argues that even if Young would permit suit, it does so only when enforcement action is imminent, which none of the government officials are threatening. The majority cited the chilling effect of the law and the immediate impact it has already had on abortion services. Not good enough, says Thomas. “To sustain suit against the licensing officials, whether under Article III or Ex parte
Young, petitioners must show at least a credible and specific threat of enforcement to rescind their medical licenses or assess some other penalty under S. B. 8.”
Chief Justice Roberts wrote separately, joined by Justices Breyer, Kagan, and Sotomayor, to concur in part and dissent in part. The concurrence was with the decision to uphold the lawsuit as to the agency heads and the holding that a state law can be subject to pre-enforcement federal review.. But the Chief and the Court’s liberals dissented as to the remainder of Gorsuch’s opinion. In addition to his concern over the state’s attempt to nullify the Court’s decisions, Roberts wrote in favor of upholding the suit against the attorney general and the court clerk. The AG has the same authority to enforce as the medical board, and the court clerk sets in motion the “machinery” of the system by accepting a suit for filing and starting the process. In this way the clerk is “adversarial” and a key player in the enforcement of the suit. Thomas addresses this in his concurrence, pondering how this works in a practical sense. Is a clerk then responsible for studying every complaint she receives and determining whether it is legally sufficient? Will all clerks need to hire a lawyer to work for them to make such decisions?
Sotomayor wrote separately as well, joined by Breyer ad Kagan. As expected, her dissent is forceful in its criticism of SB8 and the Court that has failed to curtail it.
No party has identified any prior circumstance in which a State has delegated an enforcement function to the populace, disclaimed official enforcement authority, and skewed state-court procedures to chill the exercise of constitutional rights. Because S. B. 8’s architects designed this scheme to evade Young as historically applied, it is especially perverse for the Court to shield it from scrutiny based on its novelty.
Sotomayor disagrees that a court clerk is not a proper party to enjoin. She cites Shelley v. Kraemer, a 1948 case in which a homeowner sought to enforce restrictive covenants to keep Black people from buying a house in his neighborhood. The African-American family argued the unconstitutionality of the covenants, but the state court declined to enjoin the covenants on that ground because it was the action of a private party, not the state. The Supreme Court held that while it was not a 14th amendment violation for that reason, the homeowner could not use the courts to enforce the covenant because that would be a state action:
We conclude, therefore, that the restrictive agreements, standing alone, cannot be regarded as violative of any rights guaranteed to petitioners by the Fourteenth Amendment. So long as the purposes of those agreements are effectuated by voluntary adherence to their terms, it would appear clear that there has been no action by the State, and the provisions of the Amendment have not been violated.
But here there was more. These are cases in which the purposes of the agreements were secured only by judicial enforcement by state courts of the restrictive terms of the agreements.
***
The undisputed facts disclose that petitioners were willing purchasers of properties upon which they desired to establish homes. The owners of the properties were willing sellers, and contracts of sale were accordingly consummated. It is clear that, but for the active intervention of the state courts, supported by the full panoply of state power, petitioners would have been free to occupy the properties in question without restraint.
In the majority opinion Justice Gorsuch dismissed Shelley: “[Shelley]did not even involve a pre-enforcement challenge against any state-official defendant. There, the petitioners simply sought to raise the Constitution as a defense against other private parties seeking to enforce a restrictive covenant, much as the petitioners here would be able to raise the Constitution as a defense in any S. B. 8 enforcement action brought by others against them.” In other words, the Shelley ruling was that the the Shelleys were able to raise a constitutional claim, and the Whole Woman’s Health petitioners may do so as well. Gorsuch is silent on Shelley’s holding that judicial enforcement is state action that could be enjoined.
The most pointed part of Sotomayor’s dissent, in my opinion, was this:
This is a brazen challenge to our federal structure. It echoes the philosophy of John C. Calhoun, a virulent defender of the slaveholding South who insisted that States had the right to “veto” or “nullif[y]” any federal law with which they disagreed. Address of J. Calhoun, Speeches of John C. Calhoun 17–43 (1843). Lest the parallel be lost on the Court, analogous sentiments were expressed in this case’s companion: “The Supreme Court’s interpretations of the Constitution are not the Constitution itself—they are, after all, called opinions.”
So the battle rages on in Texas, as other states threaten to craft similar laws on other controversial topics, such as gun control.
WW2: Case in point: California Governor Newsom threatens to do just that. The author of SB8 commented on Newsom’s plan: “[g]ood luck with that. If California takes that route, they’ll find that California gun owners will violate the law knowing that they’ll be sued and knowing that the Supreme Court has their back because the right to keep and bear arms is clearly in the Constitution, and the courts have clearly and consistently upheld it.”
WW3: Kim Kardashian (West?) has passed the baby bar, a step on the way to becoming a licensed attorney in California. She’s been trying for a while, taking a non-traditional, no-law-school-needed path to lawyerhood. It was her 4th try to pass the notoriously difficult exam, but hats off to her, just the same.
WW4: Prince Andrew’s newest line of defense against allegations of rape as part of the Jeffrey Epstein sex trafficking ring: his accuser was past the age of consent in New York. Sometimes, as a lawyer, you just have to go with what you got and hope for the best.
WW5: As legal bills roll in for those implicated in the January 6th Capitol rioting, the MAGA faithful are wondering where their president is:
This guy’s sitting on giant gold buildings all over the world with his name on it and we’ve done more to help those people than he has,” Dustin Stockton told Rolling Stone. “It’s fucking disgusting.”
It’s almost as if Trump doesn’t care about these folks… but that can’t be… can it?
WW6: Men can go topless in Ocean City, Maryland but women can’t, and one group of ladies who would like to tan their ta-tas is taking their cause to the Supreme Court after the 4th Circuit ruled the ordinance constitutional.
WW7: Oxford High school shooter Ethan Crumbley’s parents were in court this week for a preliminary hearing, which was continued until February due to the voluminous evidentiary materials. The pair’s lawyers will file a motion to reduce their bond. The part of this article that stands out the most to me:
The couple is represented by a high-priced legal team headed by Shannon Smith, whose past clients have included disgraced USA Gymnastics doctor Larry Nassar.
Ethan Crumbley has a court-appointed lawyer.
WW2: The assertion that the right to guns is in the Constitution but the right to an abortion is not tells you everything you need to know about so-called “Constitutional conservatives.”
While they may wank on about “originalism” or “textualism” or whatever, the truth is that they use the Constitution as a flexible document whose meaning changes just like anyone.Report
The right to an abortion *IS* in the Constitution. It’s in the 9th.
The problem is that, until recently, it was difficult to find a constituency for “the government shouldn’t have jurisdiction over your life to that point”.
Additionally, there was a Constitutional Interpretation Theory that, until recently, argued that the constitution says whatever the Justices agree it says and nothing more. This was used in defense of arguing that the 2nd Amendment doesn’t mean that the people have the right to keep and bear arms.
Has that particular interpretation theory been abandoned without acknowledgment? If so, I’d hope that nobody notices!Report
I’m not aware of that particular Constitutional Interpretation Theory.
Sounds like a Twitter account called Bad Legal Takes.Report
Have you never seen the argument that the 2nd Amendment doesn’t mean that the people have the right to keep and bear arms?
Were you curious when you compared the text to what the person was saying how the legal interpretation went as to what mental gymnastics they were performing?
If you had pressed, you would have encountered what you seem to be considering a Bad Legal Take. While I would agree that it is, I also acknowledge that it seemed to be common enough to not dismiss out of hand.Report
I hope I don’t have to actually explain the difference between “The constitution requires interpretation” and “constitution says whatever the Justices agree it says and nothing more. “Report
Would you be able to, if you had to?
I mean, to the point where you could defend “abortion is in the constitution, the right to own a handgun isn’t”?Report
You can take the boy out of Fundamentalism, but you can’t take the Fundamentalism out of the boy.Report
True enough, but it’s my position that the 2nd Amendment is fairly straightforward and abortion is in an emanation from a penumbra.
And that’s based off of a fairly boring and trivial reading of the text itself.Report
How does one arrive at a straightforward reading that allows a ban on automatic rifles?
And it seems fairly straightforward to me that an enumerated right to privacy of papers indicates a right privacy of one’s body.Report
1. One doesn’t. One has to hem and haw and obfuscate.
2. Agreed on that. The question is whether the right to be secure in one’s person also extends to the infant.Report
So it sounds like there really isn’t any “straightforward ” reading possible.
Any position will require some form of interpretation.
And any reading that holds that a fertilized ovum is an “infant” seems rather less than straightforward.Report
If you want to argue that being secure in one’s papers means that one can get an abortion without the government being able to prevent it, I think I’d be willing to entertain that.
I’m just wondering why you can read that so very expansively and IMMEDIATELY come to the conclusion that the 2nd requires a narrow reading, one that doesn’t mean anything about whether the people have a right to keep or bear arms.
A straightforward reading, however, can give you the 2nd pretty easily. You might have to work for abortion but it’s possible if you pull an emanations from penumbra trick.Report
I’m saying that the word “straightforward” shouldn’t be used at all.Report
Is there a word you’d prefer for the concept of “it means, more or less, what it says”?
I’d like to have that word available.Report
That’s the problem here.
You want to use a word that doesn’t apply.Report
You mean “papers”?Report
If everything is very, very complicated, so complicated that a right to bear arms means no such thing, then it means what 5 wise men agree it means.Report
A terrible flaw by the drafters of the Constitution that it doesn’t say plainly what is allowed or not.
What they should have done is established some sort of body, maybe composed of 6 good men, no make that 12 good men- No, wait, that’s too many, how about 9, yes that’s it, 9 good men, er, that’s sexist um, ok, 9 good citizens who will be in charge of reviewing court challenges and interpreting what the Constitution says.Report
A terrible flaw by the drafters of the Constitution that it doesn’t say plainly what is allowed or not.
If you read it as seeing it not as what you, Chip Daniels, is allowed to do, it’s not plain at all.
If you read it as seeing what the executive, Donald Trump or Joe Biden, is allowed to do, it becomes much more apparent.
Like, instead of reading the First Amendment and having the “FREEDOM OF SPEECH” phrase echoing in your head, read it about how it’s saying that Congress shouldn’t pass a law that does a particular thing.
And, I know, you’re going to ask about the Alien and Sedition Act and I’m going to ask you if your reading of the First Amendment has that law as being a Constitutional one.Report
When I was young (in the 60’s), lots of us younguns believed that if we didn’t have the right to shout whatever we wanted wherever we wanted at any volume we wanted, then “free speech” was a fraud. We grew up. We were replaced by a new group of fundamentalists who believe that if they don’t have the right to carry whatever weapons they want wherever they want (e.g., into the Michigan state capitol building) whenever they want, then the “right to keep and bear arms” is a fraud. I hope they grow up some day.Report
Sure, I can totally understand how someone might look at the 1st and say “that’s too expansive” and look at the 2nd and say “that’s too expansive”.
I can totally understand looking at the Constitution and saying “we require a narrow reading instead of a broad one.”
But narrow readings don’t allow for emanations from penumbras.Report
I probably placed my comment in the wrong thread. My point is this: I often see (especially in replies to this post) comments implying that you either believe that the constitution protects “the right to keep and bear arms” or you don’t; there is no room for nuance. That’s nonsense, just as it is nonsense to argue that, for example, all libel laws are unconstitutional because the constitution guarantees freedom of speech and of the press. (And don’t get me started on the qualifying clause that open the 2nd amendment which we are all supposed to pretend isn’t really there.) It is cheap and easy to ridicule “emanations from penumbras” (as unfortunate phrase as any justice ever included in an opinion), but differing interpretations of the constitution really are inevitable.Report
I’m 100% down with wanting to explore nuance.
I am more than happy enough to discuss whether the first clause of the 2nd Amendment means that people shouldn’t be allowed to own AR-15s without taking government training first.
But I’d love to hammer out what that Constitutional Interpretation Theory would be, figure out the nuances, and then see what happens when we start looking at, for example, the 4th Amendment.
Hell, the 14th.Report
Yeah, so would I.
So would millions of your fellow citizens.
There’s a name for that, called “Constitutional Law” and it is taught at universities and can take years to master, and even then there are many competing theories of how to interpret the Constitution.
Which is why none of these Constitutional scholars walks around talking about how straightforward it is.Report
A handful point out that it’s whatever the Justices say it is.Report
Either you think the 2nd applies to nukes and bioweapons, or you’re just haggling.Report
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.
Nukes and bioweapons probably aren’t firearms. The weird argument is claiming that firearms aren’t firearms.Report
It doesn’t say “firearms”‘; it says “arms”. They’re certainly arms.Report
Not from my reading of the dictionary.
Now “cannon” are apparently included.Report
“Mr. Smith, you are under arrest for armed robbery!”
“Nope, I was only using a cannon. It doesn’t qualify as ‘armed robbery’.”
“Damn!”Report
From a legal dictionary: “Armed robbery” involves the use of a gun or other weapon which can do bodily harm, such as a knife or club, and under most state laws carries a stiffer penalty (longer possible term) than robbery by merely taking.
I am not a lawyer but I suspect a cannon counts as a “deadly weapon”.Report
Dat’s da joke.
When the Constitution was drafted, “arms” meant cannon, muskets, swords and knives.
Since they didn’t see fit to use “firearm”, a logical interpretation is that any and all arms such as cannon or nuclear explosives are protected.
If we want to craft a line of logic that excludes some weapons and not others, well fine, but lets acknowledge that there is nothing “straightforward” or self evident about such a logic, but we’re in the “well here’s what we think they meant” territory, or as Mike called it, haggling.Report
So in your opinion, what does the 2nd AM do?Report
I am 100% down with this argument, Chip.
Can you see how someone might read “papers” and not see how abortion is what is being talked about?
I’m not asking you to *AGREE*. I’m asking you to see the Constitution and see how a narrow reading of more rights than merely the ones you dislike is reasonable.Report
I thought I was asking you that!Report
I’m one of the people who reads the Constitution broadly enough to conclude that the 9th Amendment allows for abortion *AND* the 2nd allows for handgun ownership.
I’m someone who believes that the government’s jurisdiction is limited, though.
I can see how someone reading the Constitution more narrowly might conclude that abortion isn’t covered in the Constitution but, hey, the 2nd contains “arms” so that probably could include stuff like handguns, long guns, knives, and stuff that doesn’t qualify as “ordnance”.
But when people argue that the right to an abortion is *OBVIOUSLY* in the 4th under “papers” but the 2nd Amendment doesn’t obviously allow for handgun ownership, I kinda find myself thinking that they’re either lying to me or to themselves.
Which brings me back to the question I asked that you still haven’t answered. I’ll copy and paste it again.
Can you see how someone might read “papers” and not see how abortion is what is being talked about?
I’m not asking you to *AGREE*. I’m asking you to see the Constitution and see how a narrow reading of more rights than merely the ones you dislike is reasonable.Report
The answer is right there in my several comments.
There is NO “obvious” or “straightforward” reading of the Constitution.Report
That still doesn’t answer my question. I’m not asking “is there an “obvious” or “straightforward” reading of the Constitution. I’m asking this… here, I’ll copy and paste it again:
Can you see how someone might read “papers” and not see how abortion is what is being talked about?
I’m not asking you to *AGREE*. I’m asking you to see the Constitution and see how a narrow reading of more rights than merely the ones you dislike is reasonable.Report
Limiting them is called “arms control”.Report
I’m not sure we do limit them from a legal point of view.
Wiki says “Muzzle-loading guns are not considered firearms in the US and do not fall under the regulations of the NFA.”
That includes artillery if I’m reading this right.
Now the usual things that are illegal will still be illegal (murder, various other destructive uses), and you can’t walk around with it because of physics.Report
I’m crazy enough to think that it applies to handguns.
You might be surprised to hear that there are people who disagree with a much lower initial offer.Report
What about knives? They’re much more heavily regulated by size, function, and ability to conceal than guns are, even though the damage they can create is far more contained. Maybe there needs to be a National Switchblade Association.Report
Not true. Those sorts of things are regulated under the NFA. Plenty of states also have laws on things like sawed off shotguns, ‘saturday night specials’ and similar stuff.Report
But limitations on AR-15s? Communism.Report
Less an issue of communism and more an issue of rational rules versus the irrational variety. But we’ve already had that debate here 1,000 times, no need to do it again.Report
But let’s stop talking about “the clear language of the 2nd” and admit that guns get special treatment.Report
I mean… of course they do they’re the express subject of a constitutional right. Abortion is not. Which doesn’t mean you can’t also get to an understanding of the constitution that limits the state’s authority to regulate what one does with his or her own body, up to and including that the state cannot prohihibit a woman from having an abortion.
Jay’s point, I believe is that it takes a more expansive reading to get there with abortion than it does with something like firearms (or ‘arms’ anyway) or speech where the very word is actually in the constitution in black and white. Now obviously the court did indeed get there with abortion under existing jurisprudence in Roe and Casey. But it’s always been a precarious analysis. I believe the point is that if we want to protect those kinds of analysis we should be expansive in our reading across the board, rather than narrow sometimes and expansive other times.Report
Guns as opposed to other weapons.Report
I’m comfortable reading ‘arms’ as ‘small arms.’ But I’m also basically fine at least from a public policy perspective drawing a line at viability, where Roe did, albeit maybe under a stretch of jurisprudence. Where it gets weird* to me is when people think Roe/Casey is super obviously right but Heller/McDonald is super obviously wrong.
*Note this is hardly the limitation of positions I find weird, just an example.Report
The individual right to arms is so obviously true that it took almost 220 years to find it in a 5-4 decision. It must not be questioned.Report
…okay.
Now use that same line of argument against abortion. Not because you believe it because I know that you, like all right thinking people, do not believe it.
I’m just asking you to see if it *WORKS* if you use it like that.Report
It does. Designing a Rube Goldberg scheme to get around it, nd having people with the egos of Supreme Court Justices respond “Oooh, you’re too clever for me”? Not for one second.Report
Eh, it’s like judges ruling that hate speech isn’t covered by the First Amendment.
I mean, I totally understand where they’re coming from.
But if you want to play the game where the words don’t mean what they say, you’re going to find that other people will start getting all Humpty Dumpty on it as well.
“You can’t do that!”, you may find yourself saying.Report
Heh, sure, but that right to an abortion it took them almost 200 to find, that ones sacrosanct.Report
Hmm… checking that. You’re right.
Anti-abortion laws go back to… 1803? (Although that was Britain).
Various anti-abortion laws became codified or expanded from common law in the US in the 1820’s.
Given how this blends into common law and thus pre-dates both women’s rights and ending slavery, “who owns/controls a woman’s body” is going to have uncomfortable answers by our standards.
Roe was a massive expansion of individual rights.Report
I mean… I did go to law school where we talk about these things!
But yes, I believe the common law drew its lines around what was called ‘quickening’ which is when the child in the womb can be felt kicking and moving around. A right to privacy as we understand it is something that evolved in the jurisprudence over a long period of time. Before Roe there was Griswold v. Connecticut dealing with contraception.Report
I mean… I did go to law school where we talk about these things!
Funny, Clarence Thomas said they didn’t.Report
The first time the federal gov stepped into trying to control guns was in 1934. So we went the first 158 years without needing to look at it.
https://time.com/5169210/us-gun-control-laws-history-timeline/
Then yeah, we spent about 70 years focused on the “militia” aspect of that clause until the Supremes realized that every other aspect of the Constitution was about individual rights.Report
It’s the only Amendment where you have to ignore part of the text to understand it correctly.Report
You don’t have to ignore it at all. Just see it as the only Amendment that specifically describes its justification in the text.Report
My modern translation would be: “In order to make sure the country is safe, you have the right to guns”.
It’s not that the first clause “is ignored” its that putting the reasoning in there is extra.Report
The simple and straightforward reading is that it clearly and literally gives the collective People the right to create regulated armed militias without restriction.
I don’t know why this is so hard to understand! Its right there in black and white!
Oh sure, you can conjure up all sorts of emanations and penumbras to arrive at an individual right, or why “arms” doesn’t mean “arms”, but that would be silly.Report
That’s certainly one reading.
And, get this, if you apply the philosophy you just used to the 4th as well, you might even get to “abortion”.
Nutty, huh?Report
It seem laughable that a list of individual rights would include giving the state a power it already had.Report
Further “the militia” back in the day was “all free men”.
If you were a free man in a city where the Indians attacked or if there was a slave rebellion, then your life and your family were on the front line.Report
Link from the History channel on the first battle of the war of independence. Showcasing that “the militia” was NOT under the state’s control (the State at that time controlled the redcoat army). https://www.history.com/topics/american-revolution/battles-of-lexington-and-concord
Alternatively you could just google “Minutemen wiki”. Or alternatively, “Militia (United States) wiki”.
Today, as defined by the Militia Act of 1903, the term “militia” is used to describe two classes within the United States:[8]
Organized militia – consisting of State Defense Forces, the National Guard and Naval Militia.
Unorganized militia – comprising the reserve militia: every able-bodied man of at least 17 and under 45 years of age, not a member of the State Defense Forces, National Guard, or Naval Militia.Report
It isn’t possible to have an “across the board” expansive or narrow reading of the Constitution any more than it is possible to have a “literal” interpretation.
Remember that the government is most often a third party to disputes; any interpretation will empower or restrict the rights of one of the parties.Report
It *IS*, however, possible to say “if the Founders had foreseen the future, they would not have worded this Amendment the way they did” about the 4th when it comes to interpreting the “papers” clause as protecting abortion.Report
Oh I don’t think that’s true at all. For one the government is sued regularly, though obviously the merits of the claims vary. There’s also lots of things not expressly in the bill of rights, like having to exclude evidence obtained in violation of the 4th amendment (ridden with holes as that one is), to state agents having to read Miranda rights to use statements gotten during custodial interrogation against defendants in court, to the government actually having to provide for indigent defense. As a general matter we can say we prefer an approach that interprets the bill of rights as having some actual umph to them, that the state can’t just ignore them when it acts. Not only that, we can prefer the courts willing to take some leaps here and there to make sure that’s the case. Or we can say none of it really means anything, the government can do whatever it wants, and hey, I would disagree but at least it’d be principled.Report
The trouble with demanding an “expansive” interpretation is that it favors restricting the government’s power, which is many cases is the power to protect.
One of the arguments against civil liberties rulings is that they are a de facto restriction of the freedoms and rights of law abiding people.
That is, “Criminals get to walk free while I must lock myself behind bars”.Report
It’s not demanding an expansive interpretation.
It’s pointing out that if it’s possible to read the 2nd and come to the conclusion that only the police should be allowed to own handguns, it’s certainly possible to read the 4th and *NOT* see abortion in there.Report
Certainly, people can come to those conclusions and have.
I was noting that there isn’t any persuasive logic that says an expansive view of one must demand an expansive view of another.Report
Again, it’s not demanding an expansive interpretation.
It’s pointing out that if it’s possible to read the 2nd and come to the conclusion that only the police should be allowed to own handguns, it’s certainly possible to read the 4th and *NOT* see abortion in there.
Not that an expansive view of one must demand an expansive view of another, but whether a specifically narrow view against the 2nd’s supposed support for private handgun ownership makes it reasonable to read the 4th and not see how security in one’s “papers” makes room for abortion rights.
I mean, I do not see how any and every argument you’re making against the 2nd’s allowance for handguns doesn’t do similar for abortion and you’ve yet to explain how it wouldn’t.Report
OK so now we are in full agreement that a reasonable person can take either an expansive or narrow view of any part of the Constitution.
Not that you agree with them, but that a reasonable person can make them.Report
Still not quite there. It’s not about “any part”. It’s about “any part in light of the other parts”.
It’s *VERY* possible to read the Xth Amendment and take a broad view *OR* a narrow view of it.
But if you go to the Bill of Rights and take the Xth Amendment and say “there is no enumerated right here”, that EXACT SAME ARGUMENT can (just as reasonably!) be used on every single other Amendment.
I mean, I do not see how any and every argument you’re making against the 2nd’s allowance for handguns doesn’t do similar for abortion and you’ve yet to explain how it wouldn’t.Report
You’re just arguing the “across the board” point again.
Sure, if I argue for an expansive interpretation of the right to privacy, you can argue that this points toward an expansive view of any other part of the Constitution.
But there isn’t any logical reason why it should.
First, as I explain above, in many cases, both sides can claim they are making an “expansive” interpretation. Abortion is the perfect example, by the way.
Second, if you desire some fashion of “ordered liberty” as the end goal, it is perfectly consistent to take a more expansive view here, and a more narrow view there, depending on the case and its implications.Report
Chip, I’m not arguing that if you have an expansive here then you might have an expansive there.
I’m arguing that I do not see how any and every argument you’re making against the 2nd’s allowance for handguns doesn’t do similar for abortion and you’ve yet to explain how it wouldn’t.
This isn’t an argument asking for why expansive leads to expansive. I’m asking why every single argument you’re giving against the 2nd couldn’t be used against abortion. I’d like to know why every single defense of the right to get an abortion wouldn’t be able to be given for the right to own a weapon.
And you have yet to explain why it wouldn’t be… beyond a nihilist “anybody can argue anything” which brings us back to “the constitution says whatever the Justices agree it says and nothing more” which you’ve already said was a Bad Legal Take.Report
People have a right to an abortion, because our bodies are the most intimate thing we have.
They don’t have a right to machine guns because those are not needed in an ordered liberty setting.
Notice the qualifiers I’m using here?
I’m not saying the right to privacy is so expansive it covers “all” bodily autonomy.
So an expansive right to privacy does NOT cover vaccines, for instance.
And the right to arms is not so narrow as to allow for total abolition, just weapons over a certain threshold.
In other words, the arguments can be made separately, as narrow or expansive as needed.
its absurd and illogical to assert that “a right to abortion argues for a right to a machine gun.”Report
People have a right to an abortion, because our bodies are the most intimate thing we have.
Interesting assertion, but it’s not really a Constitutional argument, is it?
They don’t have a right to machine guns because those are not needed in an ordered liberty setting.
I’m talking about handguns, not machine guns.
Notice the qualifiers I’m using here?
I am! Especially the parts where you’re deliberately avoiding answering the question.
its absurd and illogical to assert that “a right to abortion argues for a right to a machine gun.”
This is not my argument.
My argument is that I do not see how any and every argument you’re making against the 2nd’s allowance for handguns doesn’t do similar for abortion and you’ve yet to explain how it wouldn’t.
Indeed, I don’t see how arguing that the 2nd Amendment allows for *SOME* guns to be banned because OF COURSE it’s not an absolute right wouldn’t cover the recent abortion restrictions that say that they can happen before *THIS* point but not after *THAT* point.
And I’d love to hear from you why they wouldn’t.
Instead of you talking about machine guns or expansive readings.Report
I’ve made my argument, you just don’t like it.
Its absurd and illogical to “not see how any and every argument you’re making against the 2nd’s allowance for handguns doesn’t do similar for abortion.”
You need to actually make some sort of case why this is so, not just assert it.Report
I’ve made my argument, you just don’t like it.
No, it has nothing to do with my feelings. It has to do with whether your argument addresses my points. And your argument does not.
But if you want me to use your argument about why abortion is okay to defend handguns, here, let me throw something together.
You say that we have a right to an abortion because because our bodies are the most intimate thing we have.
We have a right to own a handgun because our bodies are the most intimate thing we have and we have the right to defend the most intimate thing we have.
But, once again, you’re arguing for an expansive reading of why we should be allowed abortion rather than making a case against handguns that can’t also be made about abortion.Report
Let me put it in a different way.
IMO, the state has a compelling interest in maintaining order, so a narrow reading of the 2nd is permissible.
The state doesn’t have a compelling interest in pregnancy (in the first two trimesters) so an expansive reading of privacy is warranted.
Can a different argument using the same sort of logic be made to arrive at an opposite outcome?
Sure! Because we all rank “compelling interests” a bit differently.
You and I are just approaching these questions from a very different set of priorities and value judgements, that’s all.Report
If we agree that abortion can be banned (with a handful of exceptions) in the third trimester and want to compare that to the banning of machine guns (with a handful of exceptions), I’d say that we probably agree.
Heck, and if we want to argue that abortion is none of the government’s business in the first trimester in the same way that handgun ownership is none of the government’s business, then we agree there too.
And, yep, everything in the middle is haggling.Report
Define: “narrow reading”.
Does that mean “no machine guns, nukes, or bio-weapons”?
Does it mean “nothing, no firearms unless you’re in a militia which you can’t create”?Report
I don’t think you understand Chip’s approach to constitutional law. As far as I can tell it’s basically:
For each individual issue in question:
1) Identify what the correct outcome is, based on one’s own opinions
2) figure out how to interpret the constitution in such a way as to allow that outcome.
He’s questioning the whole idea that there’s any need for consistency, which is understandable if you start with the assumption that you yourself are correct about everything and therefore the best outcome is to have the law of the land match your personal opinions. Consistency is for people who actually believe in democracy, rather than just tolerating it and trying to work around it whenever it gets in your way.Report
I’d be okay with that, I guess (as far as it goes), but Chip began with a starting point that that would be a Bad Legal Take.Report
I don’t think that’s true either. Very little of what Congress or any state legislature or government authority does is held unconstitutional. Where the government isn’t doing what you want it’s much more likely to be the result of the political branches than the courts gutting duly enacted legislation. The examples of that happening are really the exceptions that prove the rule.Report
This argument doesn’t combine well with “Team Red can’t be trusted and seeks to overturn democracy”.
Those would be the same criminals who can’t legally have guns right now?Report
What demographic is most likely to use switchblades?
Well, I have a solution if it turns out that it’s Italians or similarly undesireable peoples.
If the Founding Fathers could have foreseen bladed weapons, they would have written the 2nd Amendment differently.Report
Founding Fathers were more afraid of a repressive government than bladed weapons. Ditto firearms and arms.
There is an argument that the world has moved on, but that was their world and their experience.Report
https://www.dallasnews.com/news/politics/2021/04/20/election-judges-can-have-guns-at-most-polling-sites-under-bill-passed-by-texas-house/
But only a thug would have a billy club.Report
Only the police that we agree should be abolished ought to have weapons.Report
I’m pro-abortion, but I’m anti-BS, and this is some real BS.
The Constitution has an amendment dedicated explicitly to protecting the right to keep and bear arms. There is nothing in the Constitution that obviously protects the right to an abortion. If you really strain, you can argue with a straight face that it’s implied in penumbras and emanations, but let’s be honest: The validity of the reasoning in Roe v Wade is, at best, debatable.
Ruling that the Constitution protects the right to keep and bear arms but not the right to abortion is absolutely tenable, and IMO simply correct. I’m not in love with the policy implications of this. I want abortion to be legal in all circumstances, for any reason. But my policy preferences and what the Constitution says are two entirely separate questions.
What is not tenable is claiming that the Constitution protects the right to abortion but not the right to keep and bear arms. You pretty much have to be a hack to claim this. It’s much, much more explicit about the latter.
Now, one or more of the conservative justices may, in fact, be unprincipled hacks. You don’t get cookies for ruling correctly when it’s consistent with your own policy preferences. But claiming that the Constitution protects the right to keep and bear arms but not the right to abortion is not evidence that they’re hacks or that originalism is an intellectual fraud.
I’m legitimately confused as to why you would say something so obviously wrong. One possibility, I suppose, is that you’re conflating originalism with stare decisis. The fact that the Supreme Court has, in the past, ruled that the Constitution protects the right to abortion does not automatically make that the correct interpretation. If the Supreme Court ruled in 1973 that abortion is protected and rules in 2022 that it is not, that doesn’t mean that the meaning of the Constitution has changed; just that two courts disagreed about the meaning of the Constitution (or that one just flat-out lied).
The other possibility is that you don’t actually care whether the things you say make any sense, as long as they show what side you’re on. That would actually explain a lot.Report
This would be a more credible argument if it didn’t come from judges who argued that Congress can’t make a law which charges people a penalty if they don’t have health insurance.
So according to them the government
1. CAN make a law banning a medical procedure on one’s own body, but
2. CAN’T charge people a penalty for not having medical insurance
The “smaller, less-intrusive government” position is consistent with 2, but not with 1. It’s not a consistent legal interpretation whatsoever.Report
I think that the argument would be that the law can’t ban a medical procedure on one’s own body but can ban one performed on another person’s body.
Just off the top of my head.Report
Thousands of pages of “shall be determined” to the point where even Nancy had little idea what was in it. The Supremes thought it would be cruel and unusual punishment to force their clerks to read the law.
Politicians were claiming before, during, and after it was written that it wasn’t a tax at all and was “only” a direct order that people will do this.
With that as the context, I have sympathy for Supremes who “read” it as a direct order and not simply a tax.Report
Show me the text that prohibits me from owning an automatic weapon.
Well of course there isn’t any such language, it’s an interpretation from the emanations and penumbra, just like the right to bodily autonomy.Report
See, Chip? You’ve got it down.
Now you just have to abandon the insight that it’s a Bad Legal Take and FULL STEAM AHEAD.Report
WW4: there were a *LOT* of accounts tweeting about the Maxwell trial at the beginning. Two of the biggest ones have since been suspended.
That’s irritating.Report
It’s being reported fairly comprehensively in the MSM, so no great loss.Report
Oh, which site do you recommend for the best play-by-play breakdown?
I’d prefer if it didn’t have a paywall but I understand if it has to have one.Report
Site? You forget, I’m old. I use newspapers and TV.Report
Yeah, I was hoping for something about as comprehensive as was available for Rittenhouse.Report
WW5: It kind of feels like Stockton is telling reporters what they think they want to hear. It’s really hard to trust him, given his record. Though it is amusing, and I guess we can note that if he’s a guy who blows with the wind, this is the way he thinks the wind is blowing.Report
I’m more inclined to the theory, fairly common among business types, that Trump’s potentially in the slow part of bankruptcy and knows it. Most of that gold-plated stuff has debt associated with it, and no one outside the Trump Organization knows how much or what all the trigger events are. Real estate, at least AIUI, is a field where cascading failures modes are regular occurrences.Report
WW7 – The charges against the parents are more interesting legally and ethically. I’d assume that the son’s case would have low marginal gains per dollar spent on lawyers.Report
No one is arguing Ethan isn’t guilty.
He’s not getting out on bail.
Michigan isn’t a death penalty state.
Mental illness isn’t really a defense any more.
Convicting him is a matter of paperwork and gathering signatures. How expensive the lawyer is doesn’t really matter.Report
Agreed. That was my point. I thought Em was commenting that it’s strange that parents would seek better representation for themselves than for their son, but it seemed to me (and you, I guess) that it makes sense in this scenario.Report
WW1: This seems within the Ex Parte Young precedent, and it serves the purpose of getting the issue into federal court. But it doesn’t preserve the pre SB-8 status quo in any meaningful was as far as I can tell. The district court will enter a preliminary injunction against regulators, but people are still feel free to file lawsuit, they just won’t result in the added consequences from the various regulators. And assuming this is all a game of whack-a-mole, what if the regulators lose, the preliminary injunction becomes permanent, but they don’t appeal? The district court judge’s opinion is not binding on anyone except the parties.
Frankly, the DOJ lawsuit made more sense, but it sounds as if the DOJ may have said something in arguments that they would be happy if one of the private suits went forward instead. I believe this was speculation.Report
WW1: I’m not impressed with Sotomayor’s effective use of historical analogies: “The Nation fought a Civil War over that proposition, but Calhoun’s theories were not extinguished.” If anybody was throwing shade on federal law, it was the Republicans and a populace energized by the Dred Scott decision, which was wrongly decided.Report
WW1: So if I read this right, the opinion(s) of the SCOTUS is not that SB-8 is fine, but that there is considerable disagreement regarding what action SCOTUS can take at this point, and they have to wait until something is before them. Do I have that right?Report
Yes, its a procedural issue about whether there is a proper party for this type of lawsuit (pre-enforcement constitutional litigation). From Gorsuch’s opinion: “In this preliminary posture, the ultimate merits question—whether S. B. 8 is consistent with the Federal Constitution—is not before the Court. Nor is the wisdom of S. B. 8 as a matter of public policy.”Report
WW1: “The Supreme Court held that while it was not a 14th amendment violation for that reason, the homeowner could not use the courts to enforce the covenant because that would be a state action…”
This is what I’ve been wondering. Eventually, at some point, a government official gets involved to enforce some aspect of the law. If not, a provider can continue to provide abortions, ignore every lawsuit, refuse to pay, refuse to show up in court, and go about their life. What would stop them? Only the actions of a government agent, correct? So sue that person.Report
FELLOW SCIENCE NERDS:
Mount Stromboli’s volcano is putting on a fireworks show right now. It’s hard to get a sense of scale because it’s night time, but if you check YouTube for watch?v=smRGh_u7FpY you can tell what you’re looking at. (I don’t want to give a second link because it might get blocked. You should check out the webcam now if it’s something that interests you.
https://www.skylinewebcams.com/en/webcam/italia/sicilia/messina/stromboli.htmlReport
WW6: I support the plaintiffs — for all the wrong reasons.Report
WW4: Part of what makes talks about sexual assault trials rage inducing for many non-lawyers is that the defense lawyers usually have to go really low to get the best for the defendant. It was seen as an attack on the victim all over again.
I recently read a book about the Old Bailey’s more sensational trials called Court No. 1: The Old Bailey Trials that Defined Modern Britain. The author made the point that until the 1970s, the victims of any crime from theft to sexual assault to murder weren’t really seen as important. The star of the show was the defendant and the sole issue was whether guilt could be proved beyond a reasonable doubt. A lot of the assumptions in common law criminal jurisprudence really goes against modern ideas about justice and I’m not really sure which one is better in any given circumstance.Report
It isn’t an attack on the victim because there is no victim until it’s proven a crime was committed. The attack is on the state’s case.Report
That’s how the law sees it but that isn’t how much of modern society sees it. The victim is more important now in criminal cases, especially if it involves violence against the person.Report
WW2: I’ve been annoyed at the Supremes for pretending to not understand how Texas’ HB8 works, in particular for their charade of being mystified about what they could do about it if they felt they ought to try to do so. “We can’t stop people from filing lawsuits!”
Which statement is true as far as it goes, but you CAN 1) order court courts to reject those filings; and 2) rule that the civil cause of action, if permitted to survive a challenge to the face of the pleadings, constitutes a state action chilling the exercise of a Constitutional right; and therefore 3) strike down the law creating the civil cause of action ab initio as both intended to effectuate and actually effectuating a chilling effect upon the exercise of those Constitutional rights.
I bet they would figure that out if California passes the equivalent of HB 8 for illegal-in-California assault weapons.Report
Back when you needed to talk to a Judge to get an abortion if you were a minor, we had a local judge have a case with a young teenager.
Judge delayed things long enough that she had to have the kid. He was pro-life, it was pretty clearly deliberate.
Emotional reasoning is also irrational reasoning.Report
Shameful.Report
At least as long as Roe and Casey remain good law I think there’s a real, albeit limited parallel to NYT v. Sullivan. If you were going to ultimately allow this abandoning the former two first would at least be the principled thing to do.Report
The most concise synopsis I can come up with on the Supreme Court and SB 8 is “Assholes”.Report