This is what the court has been building over the last several terms is a pretty novel and historically unprecedented approach to the rights secured in the Constitution; which is that there are certain rights which are first class rights or top tier rights; and other rights which, if they exist at all, are really lower level, less important rights.
We’ve seen a kind of layering, particularly the end of this term, of the vulnerability of women and other people who could be pregnant, seemingly invisible to the Constitution, and the vulnerability of white men being hyper visible to the Constitution and gun rights and religious liberties are going to come to the rescue. This kind of tiering of rights is something new, and it’s certainly not something that the framers, even if that was where we wanted to anchor the meaning of these rights, had in mind, I think, in creating an ecology of rights among all of the rights that are secured in the Constitution, in ways that doesn’t elevate any other over any others.Katherine Franke James L. Dohr Professor of Law at Columbia University
Why do people listen to us when we decide that the 14th Amendment requires one thing or another thing? Because it’s not necessarily the text. You know the text of the 14th Amendment or any other amendment in the Constitution is so vague. Like “Congress shall make no law” in the First Amendment. Yet Congress makes all sorts of laws that restrict speech or religion. So it’s not just the text, it’s what makes the court’s opinion better than others. And the court’s answer in Casey is it uses the term legitimacy and it says the court’s power lies in its legitimacy, which it defines as “…a product of substance and perception that shows itself in the people’s acceptance of the judiciary as fit to determine what the nation’s law means and to declare what it demands.” And what the court meant by that was; the reason why the court has power is because people think what the court does is engage in principled decision making. And to the extent that the public did not think that the court engages in principal decision making, they wouldn’t take it seriously.
All of the rules that you are describing, all the precedents that you are quoting is just cover for what we all know you’re going to do because you’re Sam Alito, and so to the extent that the court thinks we’re just going to automatically assume there’s a difference between an opinion like Dobbs and Mitch McConnell’s press release. I think that’s an unwarranted assumption, but it’s a cultural one and it’s a cultural force of the court’s power. And so what I am drawing optimism from at this moment is the extent to which members of Congress and the public are looking at these opinions and saying, you know, it’s not like the Constitution demands these outcomes. It’s not like these are the only outcomes you can think of.
In fact, the court is overruling itself, reaching alternative conclusions. And so we don’t have to live in a system in which children are getting shot every day. And we can’t do anything about climate change. And people are forced to birth when they don’t want to. Like all of these things, we don’t have to live in this system just because the court says so. And so the court is not worried about that, but I think it should be.
I think one notable thing about the court is for all of its contempt of Congress, almost every decision that it issued this term could be reversed by a simple statute passed by a majority of both Houses. So, Congress could in effect reverse Dobbs by enacting the Women’s Health Protection Act or a stronger version of it. The Supreme Court allowed Oklahoma and every state to regulate tribes by exercising enforcing its criminal law in Indian country. Congress could just pass a law saying, no, that was wrong. Please try again. The court harmed the EPA’s ability to regulate climate change. Congress could enact legislation to say that was a mistaken interpretation of our statute. The court reinforced qualified immunity this term. Congress could abolish qualified immunity and say “if you’re a police officer and you shoot somebody, you can go to court so that they can recover some damages for their loss of life.” Basically, everything the court did this term can in theory be limited by a statute. Even the decisions that reinforce gun rights or religious liberty could be modified by Congress, especially a Congress motivated enough.
But I think that that risk, the risk that Congress is going to pass bad laws, is a risk that in a democracy we have to take. We have to take the risk that in a democratic legislature, it’s going to enact laws we do not like. Instead, we have this system where we’re so fearful of what Congress might do that we have basically every possible veto we can think of; far more than every other country on the planet in terms of how difficult it is for the national legislature to pass laws. No other country basically requires a supermajority in one house, a second house, in a bicameral legislature, a Presidential veto followed by this Judicial veto afterward, which is just absurd.
It makes it really, really hard, and we do not expect anything to come out of our national legislature, and that’s what I think we need to get rid of. We need to start electing folks who are actually capable of legislating. We need to require that our president and the presidential administration not simply say, well, I guess if the Supreme Court said that this is the rule. So long as the Supreme Court is a Supreme Court, we have to listen to them. But rather like Abraham Lincoln 150 years ago saying, yeah, the court’s the court, but I represent the American people and I’m not going to tolerate this interpretation of our fundamental law. And so there’s obviously a political problem in that.
I certainly do not expect this Congress to legislate. There’s a cultural problem in a sense that most people think the Supreme Court should have the final word on what the Constitution means. But those are the two problems to focus on the political problem of building power through local organizing, through movement building, to demand a legislature that’s capable of legislating, and then a cultural problem of saying, look, Congress or the national legislature, for good or for ill, should have the final word on these questions in a democracy, because leaving it to the court is a terrible idea for a country that calls itself democratic.Nikolas Bowie, Louis Brandeis professor of law at Harvard Law School
we should be ringing the alarm about this case Moore v Harper I think every day from now until it’s decided because the independent state legislature theory is one of the most radical and autocratic conceptions of democracy that this court has ever been presented with. And it really gives the court an opportunity to roll back some rights that many of us took for granted, including rights rooted in state constitutions.Mark Joseph Stern
…as bad as this year has been for individual rights (if you aren’t a white guy) next year could be even worse, especially if we allow the Republicans to retake the House of Representatives and start the steamroll process that will bring back a President Trump in 2024. you have all been warned.
In Bush v. Gore in 2000 John Roberts, Amy Coney Barrett and Brett Kavanaugh argued before the court, using the independent state legislature doctrine, that George Bush should be allowed to become President without the Florida Supreme Court dictated recount, when the margin of his victory was less than 500 votes. The Florida legislature had decided they wanted Bush as President, and that is what the State of Florida should do because the legislature has the last say on that subject.
They are now going to decide a case that they have a demonstrable conflict of interest in, Moore v. Harper. Their decision in this case is already known and because of their conflicts on the subject, should not be allowed to occur. There are things we can do to stop this, but we have to push our Representatives in Washington to do the work that now needs doing.
Congress can strip the court of jurisdiction. It can strip the court of its building. It can strip the court of its summer recess. It can strip the court of its clerks. It can say, if you want to strike down our democratic laws, do so yourselves rather than relying on these 24 year old’s. It can strip the court of its discretionary jurisdiction. It can strip the court of the power to enjoin laws. It can say ‘no more federal courts can enjoin national laws and a nationwide system without a supermajority of the Supreme Court.’ It can change the court’s jurisdiction. It can put the court’s jurisdiction in the D.C. Circuit.
Congress can do all sorts of stuff and in the past, Congress has done so. When Congress was worried about the court invalidating reconstruction, it simply took the case out of the court’s hand and said, ‘Court, you no longer have jurisdiction over these cases.’
The problem we’re facing now is a Congress unwilling to fight back, not a Congress incapable of fighting back. And I think the conflict is something that Congress needs to embrace.Nikolas Bowie