The highest court in the most powerful nation in the world seems to have decided that it should only follow the law when it wants to.
Last December, for example, the Supreme Court handed down a decision that fundamentally changes the Union — giving states broad powers to limit their residents’ constitutional rights.
At least that’s what happened if you take the Court’s 5-4 decision in Whole Woman’s Health v. Jackson seriously. Jackson included the Texas anti-abortion law SB 8, which allows “any person” not employed by the state to sue anyone they suspect of having performed an abortion after the sixth week of pregnancy and collect a reward from the most a little over $10,000 from that abortion provider. The court allowed this law to go into effect, even though abortion was still considered a constitutional right at the time.
Applying Jackson’s logic more broadly, any state could pass a law unleashing such controversial bounty hunters against people exercising some constitutional right. Maybe a state wants to ban gun ownership, or maybe it wants to allow bounty hunters to sue any black family that sends their child to a predominantly white school – and the federal judiciary will just stand back and let it happened. Realistically, the Court is unlikely to allow such attacks. But despite abortions, the conservative majority was ready to open the door to them.
Jackson, moreover, was just the beginning of the Rumspringa of conservative excess led by the Republican-appointed majority on the Court.
In its just-completed term, the Supreme Court overturned Roe v. Wade, allowing states to ban abortions without having to resort to SB 8-style shenanigans. It also overturned a landmark 1971 decision barring the government from pushing some religious beliefs at the expense of others. It nearly overturns another half-century of precedent allowing federal law enforcement officials who violate the Constitution to be prosecuted. And the Court’s Republican majority overturned two decisions protecting criminal defendants who were convicted or sentenced without adequate counsel, most likely condemning an innocent person to die in the process.
The court threatened huge swathes of long-standing gun laws, striking down a New York state law that had been in place for 109 years. And he did so in an opinion that both fetishizes the “plain text of the Second Amendment” while ignoring the first thirteen words of that amendment.
The same court that attacked Roe as “remarkably loose in its treatment of the constitutional text” saw no problem with ignoring half of the text of the Second Amendment.
In what may be the most serious environmental case in decades, the Court relied on something called the “fundamental issues doctrine”—a relatively new legal doctrine that is never mentioned in the Constitution or in any law and which was entirely made up by judges – to strip the Environmental Protection Agency of much of its power to fight climate change.
The court even abandoned any pretense of being honest about the facts of the cases it decides, holding that a public school football coach who demonstratively prayed at the 50-yard line after games — while surrounded by players, spectators and members to the press – he simply engaged in a “short, private, personal prayer.”
Former Bremerton High School assistant football coach Joe Kennedy knelt before the U.S. Supreme Court after Kennedy v. Bremerton School District was argued in court on April 25. Win McNamee/Getty Images
It was a particularly troubling tenure on the Supreme Court. The court didn’t just abandon long-standing rules of law, it sometimes seemed to abandon the rule of law altogether.
What is the “rule of law”?
I make a strong case in this essay by arguing that the United States Supreme Court no longer decides very large cases in a way that is recognizably “lawful.” So let’s start by establishing a basic definition of what the rule of law is and what it means for a judge to act consistently with that principle.
Societies that adhere to the rule of law must apply the same binding rules to all individuals and institutions, including the state itself. According to the United Nations, these rules must be “publicly promulgated, uniformly applied and independently adjudicated”, and the rule of law requires “equality before the law”, “legal certainty” and “avoidance of arbitrariness”.
The late Justice Antonin Scalia offered one of the best explanations of how a justice can act in accordance with the rule of law in a 1989 essay. “When I adopt a general rule in writing for a majority of the Court,” Scalia explained, “I do not only limiting the lower courts, but also myself.” Because “if the next case should have such different facts that my political or policy preferences as to the outcome are exactly opposite, I will not be able to indulge those preferences.”
Scalia’s formulation captures the rule of equality before the law. If a judge applies a certain rule to Republicans, he should feel comfortable applying it to Democrats as well. If they apply one rule to people who oppose abortion, they should apply the same rule to people who support abortion.
Similarly, Scalia’s formulation promotes the values of legal certainty and non-arbitrariness. Although there are exceptional circumstances when the Supreme Court must overrule one of its previous precedents, lawyers and legislators should generally be able to look at the Court’s past decisions and be able to predict how the law will be applied going forward. Whenever possible, the Supreme Court should establish clear legal rules that enhance this predictability and that cannot be easily manipulated to make arbitrary decisions that favor some groups over others.
With these principles of equality, clarity and non-arbitrariness in mind, let’s look at some of the Court’s recent decisions.
Whole Woman’s Health v. Jackson is one of the worst decisions in Supreme Court history
There are a handful of Supreme Court decisions that legal scholars call “anti-canon,” decisions so ill-motivated and monstrous in their consequences that they are taught to law students as examples of how judges should never to behave. The anti-canon includes cases such as the slavery decision in Dred Scott v. Sandford (1857), the segregationist decision in Plessy v. Ferguson (1896), the anti-labor decision in Lochner v. New York (1905), and the Japanese-American internment decision in Korematsu v. United States (1944).
Whole Woman’s Health v. Jackson belongs on that list. This, as Chief Justice John Roberts wrote in dissent, is so completely inconsistent with the idea that the Constitution binds every state government that it threatens to make that document a “solemn mockery.” Jackson introduces an intolerable amount of unpredictability and arbitrariness into US law, turning constitutional rights that every American should reasonably be able to rely on into dust that can be blown away by a smart enough state legislature.
While Jackson remains good law, no constitutional right is safe.
The Whole Woman’s Health Clinic of Fort Worth in Fort Worth, Texas, on July 3. Whole Woman’s Health announced July 6 that it will close its four clinics in Texas and is working to rebuild them in New Mexico. Shelby Tauber/Bloomberg via Getty Images
To understand why Jackson is so troubling, and why it threatens literally all constitutional rights, it’s helpful to understand why Texas wrote this law to rely on private bounty hunters.
As a general rule, someone who believes a state law violates his constitutional rights cannot sue that state directly in federal court. However, under the Court’s decision in Ex parte Young (1908), they could sue the public official charged with enforcing an allegedly unconstitutional law. So, for example, if a state passes a law requiring state police to block abortion clinics, a plaintiff can sue the state police chief to block that law.
But SB 8, the anti-abortion law at issue in Jackson, tries to take state officials out of the enforcement process entirely. SB 8 provides that it “shall be enforced exclusively through … private civil actions,” which may be brought by anyone who is not a public employee.
It should be noted that Texas lawmakers actually failed to write a law that no Texas public official plays a role in enforcing. The plaintiffs in Jackson sued a Texas state judge who would hear lawsuits filed under SB 8, as well as the Texas clerk of courts charged with moving those cases through the courts. If Young means anything, these plaintiffs should have been allowed to move forward with their federal case.
But Gorsuch’s majority opinion in Jackson argued that those lawsuits against Texas judges and officials may not proceed. This means there is no way to get a federal court order to stop SB 8.
Frankly, an abortion provider could wait until they are sued in Texas state court for violating SB 8, and then argue that SB 8 violates Roe v. Wade in state court. But even if Roe were still good law, this defense is not adequate to protect the rights of abortion providers.
That’s because SB 8 not only allows a person not employed by the state of Texas to sue an alleged abortion provider, it also allows the winning plaintiff to collect an award of at least $10,000 from the provider. There is no cap on this premium and an alleged abortion provider who…
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