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Jun 26, 2022
Abortion, Gun Rulings Show Supreme Court Ready to ‘Jolt’ System
(Bloomberg) -- Back-to-back rulings on guns and abortion eliminated any doubt the US Supreme Court will be the transformational force Republicans envisioned when they filled three vacancies during Donald Trump’s presidency.
Less than two years after Justice Amy Coney Barrett’s confirmation just before the 2020 presidential election, the court’s conservatives laid bare their willingness to rewrite the nation’s lawbooks and upend its social and political dynamics.
They expanded gun rights Thursday by striking down a century-old New York law that limited who can carry a handgun in public. Less than 24 hours later, they delivered what even conservative Chief Justice John Roberts called a “serious jolt to the legal system” by overturning Roe v. Wade, which had protected abortion rights since 1973.
“It is different from the ‘one case at a time’ embrace of judicial restraint -- even with conservative results -- that we have seen from the Roberts courts in recent years,” said Allison Orr Larsen, a professor who directs the Institute of the Bill of Rights Law at William & Mary Law School. “‘Jolt to the legal system’ is spot on.”
The gun ruling cast doubt on laws in six states -- also including California, New Jersey, Massachusetts, Maryland and Hawaii -- where people had to show a special need to get a carry permit. The abortion decision could render the procedure largely illegal in as many as 26 states, home to 33 million women of child-bearing age.
Each fractured the court along ideological lines, with the six Republican appointees in the majority -- though Roberts would have stopped short of overturning Roe and simply upheld Mississippi’s 15-week ban -- and the three Democratic appointees in dissent.
The majorities included the three Trump nominees -- Barrett, Neil Gorsuch and Brett Kavanaugh -- along with veteran conservatives Clarence Thomas and Samuel Alito.
The rulings embraced the conservative-backed “originalist” view that the Constitution should be interpreted based on its specific words and the meaning they held when were adopted. In the abortion case, Alito pointed to the absence of any explicit reference in the text of the Constitution, rejecting the Roe court’s suggestion that the constitutional protections for “liberty” were broad enough to encompass abortion.
“You have a court that is willing to make controversial but confident decisions asserting an originalist and a textualist understanding of the Constitution,” said Adam White, a scholar who focuses on the Supreme Court and constitutional law at the American Enterprise Institute.
The conservatives relied heavily on American legal history, or at least their reading of it. Alito wrote that most states made abortion a crime in at least some stages of pregnancy before 1973 and the “vast majority” criminalized it in 1868, when the 14th Amendment was adopted.
“The inescapable conclusion is that a right to abortion is not deeply rooted in the nation’s history and traditions,” he wrote in the case, Dobbs v. Jackson Women’s Health.
Dissenters Stephen Breyer, Sonia Sotomayor and Elena Kagan questioned Alito’s historical account and blasted what they described as a “pinched view of how to read our Constitution.” They said the majority’s approach was inconsistent with the vision of the Constitution’s framers.
“The framers (both in 1788 and 1868) understood that the world changes,” the group wrote in an unusual joint dissent. They “defined rights in general terms, to permit future evolution in their scope and meaning.”
Alito rejected appeals to stare decisis, the doctrine that says the court normally adheres to its precedents. He called Roe “egregiously wrong and deeply damaging” and likened it to the 1896 Plessy v. Ferguson ruling, which enshrined “separate but equal” racial discrimination until being overruled by Brown v. Board of Education in 1954.
No Gun Deference
Writing the gun ruling, New York State Rifle & Pistol Association v. Bruen, Thomas said the Constitution’s Second Amendment requires the court to override the judgment of lawmakers that gun-carrying restrictions enhance public safety.
“While that judicial deference to legislative interest balancing is understandable -- and, elsewhere, appropriate -- it is not deference that the Constitution demands here,” Thomas wrote.
Thomas cast the New York law as a historical outlier, saying that “American governments simply have not broadly prohibited the public carry of commonly used firearms for personal defense.” Breyer rejected that analysis in his dissent, countering that “the historical examples of regulations similar to New York’s licensing regime are legion.”
For supporters, the conservatives did exactly what they were supposed to do. The Supreme Court is closing out a “banner term for the rule of law,” said Carrie Severino, president of the conservative Judicial Crisis Network, which spent millions of dollars in support of Trump’s three nominees.
“This is a term that shows that we finally do have a clear majority of originalists on the court,” Severino said. They not only “understand how to interpret the Constitution but also have the courage to do so in the face of unprecedented levels of intimidation, threats, even violence.”
But Elizabeth Wydra, president of the progressive Constitutional Accountability Center, said that “neither case is really an illustration of honest originalism,” accusing the majority of “cherry picking the history” to reach the result it wanted.
“Putting aside the technical constitutional questions, what is going on when you see a court that emphasizes the importance of protecting fetal life in Dobbs but refuses in Bruen to consider at all the interest in protecting people from being killed from gun violence?” Wydra said.
The rulings arrived with the court’s institutional standing already reeling. A Gallup poll conducted before the decisions found that Americans’ confidence in the court had reached a new low, dropping 11 percentage points in the last year to 25%.
The abortion ruling may only make those numbers worse. A Gallup poll conducted in May found that only 35% of the public wanted Roe to be overturned, compared with 58% who wanted the court to leave it intact.
Alito said the majority wasn’t concerned with public opinion.
“We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey,” he wrote. “And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision.”
The rulings are likely to further polarize a deeply divided nation. The abortion decision has sparked widespread protests and promises a wave of legal, legislative and political showdowns around the country.
“The court has now made clear that they have a vision of their own omniscience in terms of what the founders meant to do and a sense of an absolutist view of what the Constitution means,” Donald Ayer, a retired Supreme Court advocate who served in two Republican administration, said on Bloomberg TV. “They appear to be ready to simply go off and follow their sense of what the founders wanted and implement it and not really pay attention to where that may take the country.”
©2022 Bloomberg L.P.
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