Scott Gurvey

When Justice Samuel Alito wrote the majority opinion in Dobbs v. Jackson Women’s Health Organization, stripping American women of the Constitutional right to make their own healthcare decisions and making the personal religious dogma of the majority the law of the land, he tried to reassure the shocked nation that other rights would not be endangered by future decisions, writing, “to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

Justice Brett Kavanaugh went so far as to put down his beer and write a separate concurring opinion specifically naming cases people arguing that Roe v Wade be upheld see at risk:

First is the question of how this decision will affect other precedents involving issues such as contraception and marriage—in particular, the decisions in Griswold v. Connecticut, 381 U. S. 479 (1965); Eisenstadt v. Baird, 405 U. S. 438 (1972); Loving v. Virginia, 388 U. S. 1 (1967); and Obergefell v. Hodges, 576 U. S. 644 (2015). I emphasize what the Court today states: Overruling Roe does not mean the overruling of those precedents and does not threaten or cast doubt on those precedents.

I don’t buy a word of it.

To believe other rights are not in danger you would have to be as naïve as Senators Susan Collins and Joe Manchin. I think, and certainly hope, my readers are smarter than that.

For once in his life it may be Justice Clarence Thomas who is unabashedly telling the truth. Thomas could keep a mental health professional fully employed just by dealing with his neurosis, but his repressive self-loathing is on display for anyone who has taken an elementary psychology course. Of legal interest is the fact that he is a walking talking conflict of interest. But the most egregious of his conflicts involve his wife, Virginia “Ginni” Thomas.

Ginni represents many companies and others with business before Congress and the courts. But her husband refuses to recuse himself when sitting on cases involving them. Recently we have read emails released by the House Select Committee to investigate the January 6th Attack on the United States Capitol revealing that Ginni Thomas worked with Trump lawyer John Eastman, who had written a detailed plan to attempt to persuade then-Vice President Mike Pence to throw out the 2020 election results on Jan. 6. Ginni urged Arizona lawmakers to replace their electors, pledged to Joe Biden by popular vote, with electors supporting Donald Trump. Ginni won’t appear before the January 6th Committee. And Clarence won’t recuse himself from cases regarding the more than eight hundred, at this writing, people charged with crimes in connection with the scheme to overturn the 2020 election.

But on the question of overturning fundamental rights, Thomas tells us in a concurring opinion to Dobbs exactly what he has planned:

in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is “demonstrably erroneous,” Ramos v. Louisiana, 590 U. S., (2020) (THOMAS, J., concurring in judgment) (slip op., at 7), we have a duty to “correct the error” established in those precedents, Gamble v. United States, 587 U. S., (2019) (THOMAS, J., concurring) (slip op., at 9).

What Thomas is correctly pointing out is that the majority, in striking the right to abortion after fifty years, questions the Roe majority’s use of a legal doctrine known as “Substantive Due Process,” which I discuss at some length in my last column. If the use of substantive due process was “egregiously wrong” in Roe, how could it not be egregiously wrong in other cases, which relied on the same doctrine?

If the Court can differentiate in future cases, as Alito and Kavanaugh suggest in Dobbs, involving other rights, from Roe, it just demonstrates how Dobbs is not based on Constitution or law but is based on the personal views of the new religious majority. The Dobbs majority is capricious and fanatical. They have hated Roe for fifty years. Now they finally have the votes to overturn it. So they did. It is a power trip, pure and simple.

And what are the cases Thomas suggests will be up for review in the years ahead? Griswold v. Connecticut, the right to use contraception, Lawrence v Texas, gay rights, and Obergefell v. Hodges, same-sex marriage.

There is another case, also relying on substantive due process, that Thomas suspiciously omits from his target list. It is Loving v. Virginia, a 1967 ruling that declared it unconstitutional to ban interracial marriage. That decision was written by then Chief Justice Earl Warren himself. How could Thomas miss that? Could it be because Clarence Thomas is black? And his wife Ginni is white?

We have replaced the Congress, the President, and the Constitution itself and are now subject to the whims of a power-hungry majority on the Supreme Court. They need no rhyme or reason for their decisions. They impose their will on the nation simply because they can.

And if you still have any doubt about the rise of the religious majority, read the 6-3 decision which came down the next business day after Dobbs. Justice Neil Gorsuch, occupying the seat rightfully belonging to Merrick Garland, raised Catholic but now attending an Episcopalian church, writing in Kennedy v. Bremerton School District, sent the doctrine of separation of church and state, dear to the Framers, to the shredder.

The case asked if Joseph Kennedy, a high school football coach, had a First Amendment right to pray with students at the 50-yard line after games. According to some teammates, this practice coerced players into joining, and practicing Christianity at school, for fear of incurring the coach’s disfavor. Nonetheless, Gorsuch’s opinion for the court found that Kennedy’s school violated his rights when it asked him to pray in private.

Gorsuch followed the Trump playbook in endorsing his own version of the big lie in Kennedy, writing that Coach Kennedy was simply engaged in quiet, private prayer at the 50-yard line and students voluntarily joined him. Justice Sonia Sotomayor outed Gorsuch as a liar by including photographs in her dissent, something I’ve never seen in a Supreme Court opinion. The pictures showed there were TV cameras present and elected officials and people were storming the field and knocking over the tuba players to join the prayer.

Gorsuch also lied in the manner of Trump by stating that a prior test for church and state situations, to determine if the First Amendment prohibition against establishing a religion and derived from the 1971 case Lemon v. Kurtzman, was dead, “The country didn’t know it, but we quietly overruled the Lemon test at some stage in the past 20–30 years. I’m not going to pinpoint when, but trust us—it happened.”

Trust him? I have a bridge to sell you.

Gorsuch is always certain of the power of his argument. For him, it’s damn the facts. Full speed ahead. In Kennedy, he tells students who are not religious, who felt coerced into joining the prayer circle, that they should just be more tolerant.

Any reasonable observer would look at what Kennedy did and say, this is an endorsement of Christianity. This is an employee of the school, in uniform, in the middle of his official duties, expressing thanks to a Christian God. Gorsuch gets around that problem by saying, “That test is overruled. We have a new test, which is ‘history and tradition.’ Go back and figure out what James Madison would’ve wanted in public schools today.” And the majority’s policy preferences turn out to match their own personal preferences, which becomes their imagined idea of what James Madison would’ve wanted.

Do you think it would have turned out this way if the coach were a Muslim and he brought his prayer rug to the fifty-yard line?

And the religious majority didn’t stop there. The next day they effectively declared that the separation of church and state, a principle enshrined in the Constitution, is, itself, unconstitutional. Their 6–3 decision in Carson v. Makin requires Maine to give public money to private religious schools, steamrolling decades of precedent in a race to compel state funding of religion. Carson is radical enough on its own, but the implications of the ruling are even more frightening. As Justice Stephen Breyer noted in dissent, it has the potential to dismantle secular public education in the United States.

It was Breyer’s last dissent. He retired two days later after 28 years on the Court, fighting the good fight for the rights of ordinary Americans. Ketanji Brown Jackson, the Court’s first black, female Justice, was immediately sworn in as Breyer’s successor. But that will not change the ideological balance of the Court. Breyer, 83 years old, had stepped aside so the 51-year-old Jackson could be appointed, just in case the Republicans gain control of the Senate in the mid-term elections.

Breyer’s was a sacrifice we should all appreciate.

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When I was in college, as it happens the same college Supreme Court Justice Samuel Alito was attending, and just beginning to get interested in American government and the Constitution, conservatives were up at arms over a series of Supreme Court decisions. They faulted what they branded an “activist” court for expanding on cases before them to consider issues not raised by the facts in dispute, for finding in the Constitution rights and powers not actually written in the text, and for in effect writing laws, a power assigned to Congress with the approval of the President.

They were talking about decisions like 1954’s Brown v. Board of Education, which reversed Plessy v. Ferguson, a ruling which allowed the segregation of black and white students into separate schools. Chief Justice Earl Warren, a former Republican governor of California, appointed by President Dwight Eisenhower, who called him a “liberal-conservative,” wrote Brown, effectively ending racial segregation in public schools.

Warren strongly believed that the highest purpose of the law was to “right wrongs” by applying equity and fairness. His Court expanded the constitutional rights of defendants, ensured equal representation in state legislatures, outlawed state-sponsored prayer in public schools, and paved the way for the civil rights and voting rights legislation of the 1960s and the legalization of abortion in 1973. Warren was also a consummate politician, and a hallmark of his leadership is the fact that Brown, Gideon v. Wainwright (right to counsel in criminal cases), and Cooper v. Aaron (states are bound by Supreme Court decisions) were all unanimous decisions. Engel v. Vitale (banning prayer in public schools) had only one dissent.

These landmark decisions on fundamental rights worked through the Fourteen Amendment’s due process clause.

The conservatives hated each and every decision, thought Warren was a traitor to his party, and Eisenhower’s greatest mistake. Republican Richard Nixon, who is the only President to resign his office in disgrace, feuded with Warren for thirty years.

Now comes the most dramatic expression so far of the conservative’s hatred. Alito’s opinion overturning Roe v. Wade takes from American women the right to an abortion, which had been guaranteed since Roe in 1973. In writing Dobbs v. Jackson Women’s Health Organization Alito literally screams, “Roe was egregiously wrong from the start.” Alito’s campaign to overturn Roe began at least as far back as 1985 when he was working in the Department of Justice.

The actions of the Dobbs majority are about as “activist” as you can get. Even Chief Justice John Roberts thinks they went too far. He concurred in upholding the Mississippi law but wrote he would not have overturned Roe, something Mississippi had not asked for. The Court traditionally does not go beyond what it requested in granting relief. But this Court is not concerned with tradition and this Chief is not in control of this Court.

In his sweeping opinion Alito attacks the use by the Roe majority of the Fourteen Amendment’s “Substantive Due Process” clause. We will avoid getting into the deep weeds of Constitutional Law. There are many, many, many sources on this issue if you are interested. The Legal Information Institute of Cornell Law School says:

Substantive due process is the principle that the Fifth and Fourteenth Amendments protect fundamental rights from government interference. Specifically, the Fifth and Fourteenth Amendments prohibit the government from depriving any person of “life, liberty, or property without due process of law.” The Fifth Amendment applies to federal action, and the Fourteenth applies to state action.

The Constitution is one of “enumerated rights,” the Tenth Amendment reserving rights not specifically listed to the States or the People. Just as the Fifth Amendment protects the people from the federal government, the due process clause of the Fourteenth Amendment, the Court has held, protects people from their state government.

Until Dobbs. Now the issue of abortion, which Alito notes is not to be found in the Constitution, is said to be a right that should be administered by each individual state. Just as a practical matter, in a nation where people and goods freely cross state lines, the idea is ridiculous. Alito branded Roe‘s reasoning “exceptionally weak.” Dobbs is weaker still. The right-wing of the Court threw the very lives of millions of Americans into the hands of state lawmakers just one day after they ruled those same lawmakers are not competent to decide the terms under which they issue concealed carry permits for guns in their own states.

Alito argues that abortion is different from other issues because a “potential life” is at stake. This is not a term to be found in the Constitution either. And if the Roe proposition that the viability of a fetus could be marked by trimesters was “weak,” the Dobbs proposition put forth by Alito and many state legislatures that life dates to the moment of conception is weaker still. The Constitution, for what it is worth, in the Fourteen Amendment, defines citizens as, “All persons born….” Not “conceived.”

The reason Alito cannot make a stronger argument for his irrational proposition is that there is none to be made. Neither law nor science can define when life begins. They couldn’t do it in 1973. They cannot do it today. If we could state with specificity when life begins, we could put forth a solution to what is a moral dilemma. Since we cannot, I opt to believe a women must be allowed to make the decision about what happens to her own body and that neither I nor the government should interfere.

Alito and those who support his position fail on at least two fronts. First, they are hypocritical because they claim to be striving to save a life. Yet they will not support universal health care to protect that life, or pre-natal care, or obstetric care, or pediatric care, or additional aid to public education, or school lunches, or any other of a lengthy list of things they could do to ensure a good life for every “person born….” They opposed supplemental aid which lifted millions of children above the poverty level during the pandemic. They can’t even ban assault rifles to keep kids from getting massacred in school. Even in a statement supporting the Dobbs decision, the Vatican makes this point.

Second, they fail because they are making what is at its core a religious argument. And their religion does not speak for every American. The belief that life begins at conception is a very Catholic belief. And Alito is very Catholic. So are Clarence Thomas, Brett Kavanaugh, Amy Coney Barrett, and Chief John Roberts. Neil Gorsuch was raised Catholic but is now a member of an Episcopalian church. Sonia Sotomayor, who usually votes with the left-wing and dissented from Dobbs, is also Catholic.

This is not reflective of the U.S. population. And more on point, the Roman Catholic doctrine of the majority is not reflective of a majority of those who hold religious beliefs.

Opinion on abortion is far from settled. More importantly, public views on abortion by religion reflect the difficulty most people have with the question of how and when life begins. While Roman Catholic doctrine is clear, there are different views held among the major religions. And among various denominations within religions.

For several religious, theological scholarship places the health of the mother in a paramount position under some circumstances. That, simply put, means many laws banning abortion will violate the religious beliefs of millions of Americans.

This is not hyperbole. A month after releasing his opinion, Alito took a victory lap in Rome. Delivering a July 21 keynote address at a gala dinner sponsored by the University of Notre Dame Law School’s Religious Liberty Initiative, Alito told the Catholic audience writing the ruling was an “honor.”

Attendance at the Religious Liberty Summit was by invitation only. Furthermore, according to the summit’s schedule on their website, Notre Dame Law School’s Religious Liberty Initiative did not include Alito among its list of speakers. The video of Alito’s keynote address was released on the official YouTube page of Notre Dame Law School July 28, more than a week after he delivered his remarks.

Alito also said that to “win the battle to protect religious freedom in an increasingly secular society, we will need more than positive law…. Religious liberty is under attack in many places because it is dangerous to those who want to hold complete power.”

It is an amazing statement emanating from some alternative universe where up is down and right is wrong. Religious freedom means the freedom to choose one’s own religion. Or, if one chooses, no religion at all.

In Alito’s universe, religious freedom is the freedom to impose one’s religion, his religion, on everyone, whether they agree or not. It is absurd. I have never seen a law that requires a woman to have an abortion. We now have, in the name of religious freedom, a law which denies a woman the right to make her own decisions about her own medical care.

With their opinion in Dobbs, The Court’s Catholic majority has established their religious views as the official dicta of the state. Try wrapping your First Amendment around that one.

And there is more to come.

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As expected, the Republican Supreme Court overturned Roe v. Wade, and for the first time in history took away a right the American people believed they had. The vote in the case, Dobbs v. Jackson Women’s Health Organization was six to three. The case challenged a Mississippi law that in effect changed the deadline for getting an abortion to 15 weeks. The standard set previously by decisions in Roe and Planned Parenthood v. Casey was 23 weeks.

The six voting to uphold the Mississippi law were the Republican appointees to the Court. Five of the six, Chief Justice John Roberts not going along, decided to go further than Mississippi asked. Ignoring the tradition of keeping their ruling as narrow as possible, the majority of five decided in addition to upholding the Mississippi law they would rule that the entire doctrine in Roe and Casey should be overturned as improperly decided in 1973. That strips American women of their right to control their own bodies and determine the course of their own health care.

The majority opinion, written by Justice Samuel Alito, did not deviate much from Alito’s original draft, circulated weeks ago in a dramatic leak from the Court. It is clear Alito relished his assignment, writing, “Roe was egregiously wrong from the start,” adding, the reasoning in Roe “was exceptionally weak.” The key points:

• The Constitution does not confer a right to abortion.
• Roe and Casey are overruled.
• The authority to regulate abortion is returned to the people and their elected representatives.

There is a lot to unpack here so let’s get on with it. First, there is no surprise. Decades ago, Republicans decided Evangelical Christians were an essential part of their base. They have been pandering to them ever since. This is the one issue at the top of the Evangelical’s wish list, and they are thrilled Roe has been overturned.

Senator Republican leader Mitch McConnell has made overturning Roe his life’s crusade. He calls the Dobbs decision, “courageous and correct.” McConnell, aided and abetted in the last chapter of the saga by Donald Trump, who praised Dobbs, got three right wing conservatives on the bench during Trump’s one and only, so far, term. He first deprived President Barack Obama of a nominee by refusing, for nearly a year, the longest delay in history, to consider Merrick Garland, Obama’s nominee to succeed Anton Scalia.

McConnell then hypocritically rammed through the Senate the nomination of Amy Coney Barrett, nominated by Trump to succeed Justice Ruth Bader Ginsburg just days before the 2020 election. While Democrats dicker and negotiate amongst themselves, Republicans believe the end justifies the means. They don’t care how hypocritical their position is or who they hurt. And they win.

If you think the Dobbs decision is correct. Then you can go ahead and celebrate. This column is for those who do not. If you want to assign blame, start by looking in the mirror. Every single voter who just couldn’t bring themselves to cast a ballot for Hillary Clinton in 2016 is to blame. You voted for a monster, or at least, by sitting on the sidelines, allowed a monster to occupy the Oval Office. We are still fighting the destruction Trump left in his wake.

And if you don’t think the Republicans appealed to those with racist motives, watch first-term Republican Representative Mary Miller of east-central Illinois thank Trump for “the historic victory for white life in the Supreme Court yesterday.” Later, a campaign aide said she meant to say, “right to life,” but misspoke. Just days after taking office in January 2021, Miller was facing calls for her resignation after she cited Adolf Hitler in a speech to a conservative women’s group in referring to the political indoctrination of youths.

You have to put some blame on the notorious Ginsburg herself. She should have resigned, giving a Democrat the opportunity to name her successor. It must be very painful for a justice of the Supreme Court to have to consider such things. But that is where we are today. Justice Stephen Breyer, who joined in the Dobbs dissent and wrote the dissent in the New York gun law case, has resigned effective at the almost upon us end of term.

Breyer will be succeeded by Ketanji Brown Jackson, a judge on the U.S. Court of Appeals for the D.C. Circuit. Breyer is in good health, but the 83-year-old resigned now rather than having to retire due to health reasons after the 2022 election, when the Democrats may well lose control of the Senate. For that Breyer is a hero. Ginzburg, who died at the age of eighty-seven while still on the bench, was a multiple cancer survivor who was obviously in poor health. She resisted many calls to step down. Her death allowed the conservative Republicans to gain their sixth seat and change the balance of the court, dooming Roe.

A special shout out in the blame game goes to Joe Manchin, the Senator from West Virginia who runs as a Democrat, votes as a Republican and in general acts as though he is the most important person in the country. Manchin has acted repeatedly since the start of President Joe Biden’s term in office to block the progressive legislation Biden promised and the American people, by a margin of more than seven million votes, said they wanted. In 2018, the last time he ran for election, Manchin won 290,510 votes. Only 586,034 people voted in the whole damn state of West Virginia.

Manchin was one of only three Democrats to vote to confirm Justice Neil Gorsuch, who stole Garland’s seat and the only Democrat who voted to confirm the incompetent drunk Brett Kavanaugh. Both voted to overturn Roe after testifying that they believed the case was settled legal precedent during their confirmation hearings.

Manchin tweeted he is “deeply disappointed” in the Court’s decision:

“I trusted Justice Gorsuch and Justice Kavanaugh when they testified under oath that they also believed Roe v. Wade was settled legal precedent and I am alarmed they chose to reject the stability the ruling has provided for two generations of Americans.”

While Manchin now says he would support legislation to codify the rights guaranteed by Roe into law, he voted last month against the Women’s Health Protection Act, which would have enshrined abortion protections into federal law, arguing the bill would have gone too far. You can get whiplash following Manchin around Washington.

But when it comes to mealy-mouthed wishy-washy oratory it is hard to beat the Senator from Maine, Susan Collins. The self-proclaimed moderate Republican, who always seems to vote the hard right line, is also upset. She also voted to confirm Trumps’s right-wing judges proclaiming to all who would listen, which means about every television camera in Washington, that she had gotten their support for a women’s right to choose.

Collins is in hiding someplace but her office has issued a statement on the Dobbs decision:

“The Supreme Court has abandoned a fifty-year precedent at a time that the country is desperate for stability. This ill-considered action will further divide the country at a moment when, more than ever in modern times, we need the Court to show both consistency and restraint. Throwing out a precedent overnight that the country has relied upon for half a century is not conservative. It is a sudden and radical jolt to the country that will lead to political chaos, anger, and a further loss of confidence in our government.

“This decision is inconsistent with what Justices Gorsuch and Kavanaugh said in their testimony and their meetings with me, where they both were insistent on the importance of supporting long-standing precedents that the country has relied upon.”

Fool me once, shame on me. Fool me over and over again, maybe I’d better admit that I’m the fool. When will the people of Maine stop sending us Senator Collins?

To be continued….

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