Let's Talk About the Supreme Court - Guest Post by the Hubby

This election.  I could write a book on this election.  I won’t, though.  The Donald is going to be defeated in a couple of days so I’ll just stick to non-partisan information for this post, because I’m just frankly embarrassed for my conservative friends who keep looking for reasons to vote for this fraud.  Heck, if anyone should convince you of Secretary Clinton's worth, I could just let the Donald do it.  There's plenty of it.  But this post is about getting rid of the biggest reason my conservative friends cite for why they “still have to vote for him.”  And I felt I had to write it because, as vast as the internet is, I couldn't find a cogent article on the subject.  If you want something done...

“Perhaps the most important aspect of this election is the selection of a Supreme Court justice…”

If you watched the second presidential debate, you heard those words prefacing an audience member’s question to the candidates. 

Then during the third presidential debate, Mr. Wallace started the debate with “The Supreme Court.”  He said, “First of all, where do you want to see the Court take the country” (a horrible question – the Court doesn’t take the country anywhere) “and secondly, what’s your view on how the Constitution should be interpreted, do the Founder’s words mean what they say or is it a living document to be applied flexibly according to changing circumstance?”  (which is a softball question meant to get them into a discussion). 

My experience tells me 99/100 people have no idea what they are talking about when they try to talk about “The Supreme Court,” including most attorneys.  So this merits explanation and background. 

My credentials:  I’m an attorney, I taught four semesters of Constitutional Law while I was in law school, I wrote my Senior Honors Thesis examining Buckley v. Valeo, (the seminal case for money in elections) its progeny, and the need for a constitutional amendment that says, in essence, money isn’t speech, so we can get private money out of politics.  (More expansive but similar to what Secretary Clinton will push for in February).  

I interviewed Senators Feingold and McCain for the project (they had just pushed through a rather tame bill for campaign finance reform).  I also worked for JusticeProsser on the Wisconsin Supreme Court, penning more than my fair share of sections of opinions and a full dissent.

All this is to say, while there aren’t many areas where I know more than the average person, this is one area where I know a lot more than the average person.

It may shock you when I say this:  it isn’t going to matter all that much to the Supreme Court whether Secretary Clinton or The Donald is elected in November. And, no, I'm not talking about any of this nonsense that Senator McCain and a few others have talked about recently.  

Yes, that’s right.  Whether the Donald or Secretary Clinton is elected won’t matter all that much to the Supreme Court.  At least, not for the two things related to the Court that you think you know or care about.  The two things that came up at that 3rd debate that seem to go hand-in-hand whenever anyone brings up the Court: abortion and gun rights.

Let’s start with an interesting fact, in 1971, the majority of Supreme Court Justices were appointed by Presidents nominated by the Democratic Party.  In 1972, the majority of Supreme Court Justices were appointed by Presidents nominated by the Republican Party.  FOR THE LAST 44 YEARS there has been a majority of justices sitting on the Court that were appointed by Republicans.  At least, that continued to be the case up to Justice Scalia’s death in February.  Now the count now sits at 4-4. 

For those that don’t quite understand what I’m getting at:  Roe v. Wade was decided by a conservative Court.  Universityof California v. Bakke was decided by a conservative Court.  Lawrencev. Texas was decided by a conservative Court.  All of them.  All of the cases in my lifetime were decided by conservative Courts. 

So, if you are a conservative, you’ve had the Supreme Court for my entire life.  And abortion is legal and the government can take away your guns.  So what are you worried about?  Are new justices going to make abortion more legal?  And, likewise, to the liberals: you aren't going to lose the right to choose because not only have conservatives held the Court for 44 years, it was a conservative who authored Roe.  Now, maybe you care about eminent domain?  Not likely.  The Commerce Clause?  I bet you don’t know what that is.  No, just about everyone I talk to about the Court can only ever remember "abortion" or "guns" (unless something was in the news within 24 hours).  So let’s get right into why this election doesn’t really matter for the only two Supreme Court issues you care about enough to have passing knowledge.

But before we do that, you need to understand a basic concept of constitutional law.  “Stare decisis” (Star-A DE-scysis).  It’s Latin for “stand by things decided.”  This is just just a fancy way of saying “we have to rule consistent with how we’ve ruled in the past – we can’t just make this stuff up as we go along.”  And that’s important – so important because, without it, “The People” couldn’t reasonably rely on what the Supreme Court says.  So, for example, if the Supreme Court says the First Amendment bans the government from putting up and displaying a Nativity, then the First Amendment must always mean that.  Always.  If there was no stare decisis, the Court could come to a conclusion, write an opinion and issue a ruling but then the issue wouldn't end there.  Without stare decisis,  the city council in Backwoods, Alabama would decide to put the Nativity up 10 years after said ruling, hoping for a different result from a different Court because President Clownface appointed “conservative judges” and maybe they’ll win this time.  That wouldn’t be helpful or useful, would it?  It would basically emasculate the Court.  If the Court didn’t follow stare decisis, the Court would lose its power.  The great myth of the Court is that its rulings are simply clear interpretations of a document that was written almost a quarter of a millennia ago.  So we listen to them.  But if they start messing up the interpretations, changing their minds, then why listen to them?  The meaning behind the seminal case, Marbury v. Madison, the case that gave them their power, would evaporate.  You understand what I’m getting at here?  If not, leave a comment – I don’t want to spend a lot of time on this if we don’t have to.  I have a habit of beating things to death (sorry honey). 

OK, on to the hot button stuff.  The stuff that Mr. Wallace “focused on.”  The issues you think you know something about.  Let’s go one at a time.

Abortion: 

The Donald was amazing during the 3rd debate on this subject.  He was talking about abortions on the “final day of pregnancy” which, of course, doesn’t happen (that would be infanticide). Anyway… 

As stated, Roe, Casey, and Carhart (both of them) were all decided by conservative courts.  (Maybe I should mention that Roe and Casey are the seminal cases on abortion, and the the two Carhart cases are good examples of what Republicans are "trying" to do to undermine Roe and Casey).  I think it’s best to summarize what was held (the “ruling”) in these cases so you can understand why we are where we are.

Roe (1972):  Remember, this was decided by a conservative court.  I keep mentioning that because of its significance.  This wasn’t nine hippies from Berkley.  Justice Blackmun (appointed by President Nixon) wrote the opinion.  He did something very smart (for conservatives) in his opinion.  The pro choice side (Ms. Roe) wanted the Court to rule in their favor using a reasoning called “substantive due process.”  The short, short explanation is that a ruling in favor of Ms. Roe using SDP would have made abortion as close a thing to an absolute right as we have.  BUT!  Justice Blackmun rejected that reasoning, but still sided with Ms. Roe.  He wrote that there is a right to privacy for all Americans and it is contained in the 1^st, 4^th, 5^th, 9^th, and 14^th Amendments even if the words "right to privacy" do not appear anywhere in the text.  The basic idea, and this is how my students could understand this, is that its pretty hard to pursue life, liberty and property without a little privacy.  Hence, the Right to Privacy must exist.  AND THEREFORE (sorry, lawyer joke) if a woman has a right to privacy, the GOVERNMENT can’t prevent her from deciding, basically, whether she wants to have a medical procedure.

Now, if we are talking about life - that's another matter.  But there was no evidence that what they were talking about in this particular case involved a "life."

Cue a large number of Americans screaming, literally, bloody murder.

Fast fact: judges can’t just make up facts.  There needs to be testimony/evidence in the record.  That testimony/evidence must be weighed against other testimony/evidence, if any exists.  Then a judge can rule on how a law (the Constitution, in these cases) interacts with the facts.

So… a judge can’t inject his non-fact based opinion into a case.  That isn’t how it works.  Which is why a conservative majority court decided Roe the way it was decided.  No evidence that they were talking about a life.  OK, back to the cases.

Casey (1992):  This opinion is messy, because it had 3 authors, all appointed by Republican Presidents.  But Justice O’Conner’s (appointed by President Reagan) part of the opinion is the salient one.  The other parts mostly talked about stare decisis – which was their way of saying “we are following Roe, we really, really are.”  Even though they scratched away at it in the way Blackmun’s opinion (in Roe) allows.  (OK, the short, short version: if a fetus is "viable", i.e., it can live outside the mother, then it is a life and the government can, obviously protect it, so long as the life of the mother is protected too.  It basically meant that the government cannot touch abortion in the first trimester, and lots of restrictions on the government in the second trimester, which bring us to...)

The O’Connor opinion.

Near the end of the O’Conner’s opinion, she says, in essence, look guys, Americans have a right of privacy.  And Americans have a right to life.  AND the right to life trumps privacy.  But!!! THERE IS NO EVIDENCE OF LIFE in the first trimester and it's tenuous in the second.  You (right to life people) keep saying that a fetus is alive and has rights.  Guess what?  I believe that too!  But your lack of ACTUAL EVIDENCE prevents me from ruling the way you want me to rule.  And that makes me mad.  Please go back and fund as many studies and technologies as you can to determine when life begins.  When you have that evidence, bring it back here and we’ll change the outcome of these rulings.  Until then we're only letting you ban abortions if a fetus is alive ("viable").  

You see, I (my voice now) may believe life begins at conception.  Or in the second trimester.  Or when my wife is looking googly-eyed at me from across the table.  But without evidence, without facts, there is nothing a judge can do about it.  Nothing.  NOTHING.  N.O.T.H.I.N.G.  This is the part where I mention that it is no surprise that the segment of the American population that has a stronger belief in things that have no supporting evidence (I’m looking at you, sectarians) is the same segment of the population that Just. Cant. Handle. This.  Look, full disclosure.  I’m secular.  (Surprise!)  100%.  And I very, very much dislike abortion.  But a non-viable fetus has not been proven to be alive in the legal sense.  That’s that for me.  The Supreme Court held that a Right to privacy exists, period.  At that point, the right to privacy trumps anything we may believe to be true but cannot prove.  THAT IS EXACTLY WHAT THESE CONSERVATIVE JUSTICES ARE SAYING.  They are on your "team," Republicans, and even they cannot ban abortion unless the science is there.  I agree with the reasoning.  Everyone should.  Because if you aren't humble enough to recognize that people's Rights should not be superseded by what you believe but can't prove to be true, then you have lots of problems, amigo.  

Carhart (both of them, but I'll deal with the second one - 2007).  This type of stuff is where the fight is.  Republicans have been trying to kill abortion with a thousand little cuts, even if they can’t, really, kill it.  But this is their strategy.  It's the thing that keeps the base frothing at the mouth.  I could have chosen the Texas case regarding regulations on hospital privileges, or any number of others, but this one seemed easiest.

At issue in this case was a complete ban on intact Dilation and Evacuation procedures, which was only performed after week 21 (or 24?).  D&E is something that was used in 0.2% of all abortions in the five years leading up to the case.  (91.4% of all abortions are performed in the first 13 weeks of pregnancy, about 1.3% are performed after week 21).  So, honestly my liberal friends, this is not that big of a deal.  It didn't hurt Roe at all.  But it did, potentially, hurt some women.  It precludes D&E as an option (rather than doing a caesarean, for example).  I understand why they wanted to ban it.  D&E is gruesome (Republicans have strategically referred to it and similar procedures as “Partial Birth Abortion”).  I won't describe the procedure, suffice to say that D&X, a more gruesome and loathsome procedure, could not be regulated as stated according to the Court in this case, but D&E could because of the testimony in the record.   

Anyway, the Court ultimately ruled that the government could ban D&E, and do so without requiring an exception for the woman's health.  According to the Court, Congress, in banning D&E, wasn't restricting the Right of privacy, they were regulating what type of procedure was legal for the exercise that right.  The record showed that there were other procedures available to women, and no abortion was stopped, just the type of abortion was curbed.  The big talking point was that there was no exception in the law for the health of women.  The Court said a complete ban was OK because there was no consensus in the medical community on whether D&E is ever medically necessary for the health of the woman seeking the abortion.  (In a fun little aside, the conservative Court made sure to note that the Republican Congress had lied about the medical necessity issue - Congress said it was never necessary, while the Court said the evidence showed that there was no consensus on whether D&E was ever medically necessary, i.e., some experts said it was sometimes necessary for the good of the mother, some said it never required to maintain the health of the mother and that an alternate procedure would always be just as good).  Again, this wasn't a ban on abortions.  It was a ban on a type of procedure.  Other abortions procedures remain(ed) legal.

As a liberal, I recognize this was a blow to women’s health.  That sucks.  This did not stop one abortion – it just made a very rarely used procedure illegal, thus increasing the risk for women who might actually need said procedure.  But note how the Court made the significant part of its ruling: it relied on science.  SCIENCE.  If there had been “consensus” in the medical community on the necessity of the procedure, they would have ruled differently.  And, guess what?  That means Carhart can be overturned (the ruling, not the reasoning) if the science changes or if the facts are different (we call these "as-applied" challenges to the law).  Notice a theme?

Most people don’t know or understand this.  Which is, of course, my ultimate point.

Conservatives, you’ve had 44 years of Roe.  The people you vote and root for could have done away with it at any point IF IT COULD HAVE BEEN DONE AWAY WITH.  Hell, a conservative WROTE IT.  I’ve thought this since I was in high school and started reading my first few cases: conservatives have been lied to, basically played with, like a cat with a mouse, on abortion.  Life is sublime sometimes.  The people who don’t put much stock in science, who want abortion gone, need to be doing the science in order to have a chance at banning it.  (Admittedly, science may not help them here, as a fetus might only ever be considered “alive” once its reaches viability sometime late in the second trimester.  But I digress…)

What does this mean going forward?

The Donald lied at the third debate when he said he’ll appoint about two or three justices and the end result will be overturning Roe.  That just isn't going to happen.  Well, maybe he didn’t lie, because it is far more likely he just doesn’t understand this stuff.  Roe isn't getting overturned.  Unless "science" can show life begins much earlier than the second trimester.  

Guns:

Mr. Wallace asked about the Second Amendment, which is now shorthand for supporting gun ownership in America.  Let me preface this by pointing out that D.C. v. Heller is the only Court opinion on the issue that matters.  In that case the Court found, for the very first time, a Right to gun ownership contained within the Second Amendment.

Senator Clinton made me laugh with her response to Wallace.  “First of all, I support the 2^nd Amendment, I lived in Arkansas for 18 years and in upstate New York…”  C'mon Secretary, we all know osmosis doesn't apply to this issue.  Just because you lived in places where people own guns doesn't mean you understand it!  I mean, she knows people are enthusiastic about guns because the NRA and its paltry 4.5 million members exert more influence in Washington than almost any other lobby.  But it ain't osmosis.  Anyway, she went on to say she “disagreed with how the Court applied the 2^nd Amendment in (Heller).”   Specifically, because the D.C. city council wanted to protect toddlers from guns – “and the Court didn’t accept that reasonable regulation (banning handguns, etc.) but they’ve (the Court has) accepted others.”

I went into detail on her answer because of two things.  First, the libertarians I follow on Twitter went nuts when Secretary Clinton said “Heller” and “toddlers” in the same sentence.  They, correctly, pointed out that there was no discussion of children in the Supreme Court written opinions for Heller.  However, the D.C. council’s brief to the Court (their argument, basically) talked about the danger posed to children without the regulations in place (handguns are small, and thus easier for small children to grab and shoot).  So, Secretary Clinton wasn't wrong, she just didn't include all of the reasons the council voted on the regulation.  (Because, of course, "doing it for the kids" sounds better on TV).

Anyway, that isn't what is important.  That's my own little pedantic thing.  No, what is important is that Secretary Clinton's response was a nuanced answer and demonstrated an understanding of the issue that you only hear from candidates who hold law degrees. Unlike, say, exterminators.  

Allow me to regress.

Prior to Heller, there were nine Supreme Court cases that dealt with guns and the 2^nd Amendment.  (See Miller, for example). None of those cases even suggested a Right to own firearms.  When I was in law school, the notion was laughed at.  I mean, everyone laughed at it, even the four conservative students.  There was a dissent, written by Justice Thomas, in a 1996 case involving interstate commerce, in which he suggested there may exist a Right to own firearms.  But that was it.  That was the only written anything by the Court prior to Heller (2008) that suggested a Right to own firearms.  (OK, Dredd Scott, but that is one of the few cases in history that was completely overturned).  For liberals, this is just sour grapes.  The Court, in Heller, said the 2^nd Amendment contains the Right to own a gun, so there isn’t any going back.  Remember stare decisis?

But, honestly, this doesn’t really matter.  Yes, my liberal friends.  It really doesn't matter.

You’ve all heard of the 1^st Amendment, right?  You’ve heard of “Free Speech,” right?  The NUMBER 1 Amendment, the MOST IMPORTANT one? The one that says the government can’t regulate your speech?

Except, nothing in the Bill of Rights is more regulated than speech.

Did you know you can’t bribe someone?  Have you heard of libel laws?  I’m sure you’ve heard something, somewhere, about yelling “fire” in a crowded theatre.  Do you think it’s legal to threaten someone?

My point is that, just because you have a “Right” protected by the Constitution does not mean that the government can’t regulate and restrict that right.  There are no Absolute Rights.  None.  There isn't even an Absolute Right to life (we do still execute people).  What having a Right means is that the government has to have a very good reason for imposing regulations on that Right.

If you want to understand the technicalities of what I’m about to discuss in greater detail, just Google “strict scrutiny and Supreme Court”.  Basically, when you are talking about a “Right,” the Court has to determine what level of scrutiny it will apply when determining whether the government can “infringe” upon it.  For a “Fundamental Right,” the Court uses strict scrutiny.  Which means that the government must have a compelling interest for the restriction, and that the restriction must be “narrowly tailored” using the "least restrictive means" to further that interest. I'm not going to go through this because it's literally the first entire week and more of a semester of constitutional law.  The only thing you really have to know is that the government can regulate a Right - it just has to have a very good reason and method must infringe on the Right in the smallest amount possible to achieve the government's ends.

Let’s go back to Secretary Clinton at the third debate.  She said she disagreed with the application of the 2^nd Amendment to the specific regulation in Heller.  She knows there is a Right to own a firearm now.  She isn't the dumb one.  But, like many of us, she was surprised that the Court said the government can reduce deaths in better ways without infringing on the Right to own a gun.  

You see, the regulation at issue was from 1975.  It largely banned residents from owning handguns at home (you needed a permit from the police), banned automatic weapons, banned unregistered firearms, and required firearms kept at home to be “unloaded, disassembled, or bound by a trigger lock or similar device.”  Mr. Heller, a policeman, applied for a one-year permit to keep a handgun at home.  He was rejected.  He (or, rather, a pro-gun organization) sued.  The case was decided in 2008 by a 5-4 margin. Justice Scalia, who authored the opinion, made it clear that the ruling did not invalidate the plethora of regulations and bans on firearms that have and had already been upheld in the past.  In fact, they upheld the ban on automatic weapons and unregistered firearms.  They just booted the required permit for handguns and the "unloaded..." provision for guns at home.  Scalia said (paraphrasing) - this is too much, if you want to stop deaths, have people lock their guns up at home, but what good is a gun for protection if it isn't loaded and you can't shoot it?  Secretary Clinton's basic response is that a trigger lock is just like locking guns in a gun cabinet, and that handguns kill kids more than other types of guns, so banning them is a "least restrictive" way to prevent kids from shooting themselves (and others).

Scalia won that round, of course.  But the important thing to remember here is that the devil is in the details.  Secretary Clinton isn't trying to take away your guns.  (Though I wish she would).  She isn't going to appoint any judges that say Heller is bad law.  That just isn't going to happen.  Stare decisis.  

What does this mean going forward?

So, it’s pretty clear that a ban on “assault weapons” would be OK with any Court.  It's basically what Scalia said in Heller (again, they specifically upheld the part of the law banning automatic weapons).  How about banning possession of firearms from people on the no-fly list?  I think so, but the no-fly list itself might be held to be unconstitutional before anything else happens. 

So, yeah, it doesn’t matter who is on the Court for those sorts of things.  The Court is going to allow those bans.  And anything more?  Well, no one is calling for anything more.  Seriously.  Which is a shame.  Personally, I wish they would.  I’d love to see what the country would be like if we went all “Australia” (massive gun buybacks, limited ownership only for hunting, etc).  But that isn’t going to happen – first, neither party wants to do that and, second, we’d need to try LOTS of other things first to pass the requirements from the Court in Heller.  (You aren't going to be able to ban guns, like the handguns in Heller, unless you can show the Court you have exhausted ALL OTHER OPTIONS so that your regulation fits the test.  So, the 2^nd Amendment?  Another election red herring. No need for either side to fret about it.

In Conclusion (congrats on making this far - it may be the only time you are part of a "1%")

Now, there are tons of issues that matter to me that the Court decides.  But for the large majority of the population, you just don’t know, at all, what is being decided, let alone have an understanding of the complex issues involved.  And this isn't because you can't understand it.  No no.  It's because you don’t care to know.  This isn't astrophysics or biochem.  We all can read (as you've demonstrated by getting this far).  You just don't take the time.  You'd rather Keep up with a Kardashian, Back the Pack, or get one more Yoga sesh in before you blast those pecs.  That's all fine.  Everyone is different and that's great.  I'm not judging.  But it is also proof enough for me that these issues shouldn’t affect how you vote.  I mean, the Court literally votes 9-0 (unanimous) 40%-50% of the time (depends on the year).  And the most consequential vote (of my lifetime) where politics mattered (Bush v. Gore), will never happen again because the Court said it won’t, basically (oh God, you do NOT want to get me started on the hypocrisy of that case – by all 9 justices). 

So, if you care deeply about restricting eminent domain, the finer points of policing procedure and expanding their authority, DACA, etc.  Fine.  Go ahead and vote for the clown who will increase your likelihood of dying in a nuclear explosion.  Vote for the kitty grabber.  The man who doesn’t know the difference between talking about tits and ass and bragging about sexual assault.  (Not that talking about T&A is acceptable, either).  Go ahead.  I just don’t believe you.  I think you’re lying.  I think you'd vote for a monkey if it had an (R) after its name.  And, again, I’m embarrassed for you.

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