stare decisis precedent

<div>see activist ct</div><div>see indep legis</div><div>see dobbs
</div><div>opus dei?!
BS but...<div><div>THE WEEKEND INTERVIEW</div><div>Samuel Alito, the Supreme Court’s Plain-Spoken Defender</div><div>He has emerged as an important justice with a distinctive interpretive method that is pragmatic yet rooted in originalism and textualism.</div><div>By David B. Rivkin Jr. and </div><div>James Taranto</div><div>July 28, 2023 </div><div>
</div><div>via realclear</div><div>
</div><div><p data-type="paragraph" class="css-k3zb6l-Paragraph e1e4oisd0" style="box-sizing: border-box; --summary-font-color: var(--secondary-text-color); --summary-bullet-small-font-color: var(--primary-text-color); direction: var(--article-direction); line-height: calc(1.58824); margin: 0px 0px 1em; overflow-wrap: break-word; background-color: rgb(255, 255, 255);">the Supreme Court usually makes news by making decisions, and it’s done plenty of that lately. In its first two terms with a 6-3 conservative majority, the justices have revisited old precedents and established new ones [THAT IS IGNORED STARE DECISIS] on abortion, gun rights, racial discrimination, freedom of speech and religion, the power of unelected federal regulators and more.<div data-block="doNotPrint" class="css-1u1rran-Wrapper e1a87je71" style="box-sizing: border-box; background-color: rgb(255, 255, 255);"><div class="article-news-front css-17jwauc-Container e1a87je70" style="box-sizing: border-box; width: 620px; margin: 24px 0px;"><p data-type="paragraph" class="css-k3zb6l-Paragraph e1e4oisd0" style="box-sizing: border-box; --summary-font-color: var(--secondary-text-color); --summary-bullet-small-font-color: var(--primary-text-color); direction: var(--article-direction); line-height: calc(1.58824); margin: 0px 0px 1em; overflow-wrap: break-word;">By comparison with the previous eight decades or so, the court has frequently declined to defer to elite political opinion, and as a result it has made news in other ways. A draft abortion opinion was leaked to the press. An armed man was arrested outside the home of Justice Brett Kavanaugh and charged with attempted assassination. The justices have come under attack from President Biden (“this is not a normal court”) and Democratic lawmakers. Partisan journalists have tried to gin up “ethics” scandals and incite animus against disfavored justices.<p data-type="paragraph" class="css-k3zb6l-Paragraph e1e4oisd0" style="box-sizing: border-box; --summary-font-color: var(--secondary-text-color); --summary-bullet-small-font-color: var(--primary-text-color); direction: var(--article-direction); line-height: calc(1.58824); margin: 0px 0px 1em; overflow-wrap: break-word;">“I marvel at all the nonsense that has been written about me in the last year,” Justice Samuel Alito says during an early July interview at the Journal’s New York offices. In the face of a political onslaught, he observes, “the traditional idea about how judges and justices should behave is they should be mute” and leave it to others, especially “the organized bar,” to defend them. “But that’s just not happening. And so at a certain point I’ve said to myself, nobody else is going to do this, so I have to defend myself.”<p data-type="paragraph" class="css-k3zb6l-Paragraph e1e4oisd0" style="box-sizing: border-box; --summary-font-color: var(--secondary-text-color); --summary-bullet-small-font-color: var(--primary-text-color); direction: var(--article-direction); line-height: calc(1.58824); margin: 0px 0px 1em; overflow-wrap: break-word;">He does so with a candor that is refreshing and can be startling. He spoke with us on the record for four hours in two wide-ranging sessions, <a data-type="link" href="https://www.wsj.com/articles/justice-samuel-alito-this-made-us-targets-of-assassination-dobbs-leak-abortion-court-74624ef9?mod=article_inline" rel="" target="blank" class="css-1h1us5y-StyledLink el06won0" style="box-sizing: border-box;">the first</a> in April in his chambers at the court. In the interim, he wrote an <a data-type="link" href="https://www.wsj.com/articles/propublica-misleads-its-readers-alito-gifts-disclosure-alaska-singer-23b51eda?mod=article_inline" rel="" target="blank" class="css-1h1us5y-StyledLink el06won0" style="box-sizing: border-box;">op-ed</a> for these pages responding in detail to a hit piece from ProPublica, a self-styled “independent, nonprofit newsroom that produces investigative journalism with moral force.” Many of the court’s critics claim to want more “transparency.” Their hostile reactions to our April interview and his June op-ed suggest—no surprise—that they’re really after ideologically congenial rulings, not to mention conformist press coverage.<p data-type="paragraph" class="css-k3zb6l-Paragraph e1e4oisd0" style="box-sizing: border-box; --summary-font-color: var(--secondary-text-color); --summary-bullet-small-font-color: var(--primary-text-color); direction: var(--article-direction); line-height: calc(1.58824); margin: 0px 0px 1em; overflow-wrap: break-word; background-color: rgb(255, 255, 255);" /><p data-type="paragraph" class="css-k3zb6l-Paragraph e1e4oisd0" style="box-sizing: border-box; --summary-font-color: var(--secondary-text-color); --summary-bullet-small-font-color: var(--primary-text-color); direction: var(--article-direction); line-height: calc(1.58824); margin: 0px 0px 1em; overflow-wrap: break-word;">Justice Alito, 73, was appointed in early 2006 and is now the second most senior associate justice. He has emerged as an important voice on the court with a distinctive interpretive method that is rooted in originalism and textualism—adherence to the text, respectively, of the Constitution and statutes—but in some ways more pragmatic than that of Justice Clarence Thomas or Neil Gorsuch.<p data-type="paragraph" class="css-k3zb6l-Paragraph e1e4oisd0" style="box-sizing: border-box; --summary-font-color: var(--secondary-text-color); --summary-bullet-small-font-color: var(--primary-text-color); direction: var(--article-direction); line-height: calc(1.58824); margin: 0px 0px 1em; overflow-wrap: break-word;">“There are very serious differences” in how the six conservative justices approach cases, Justice Alito says. The simplest difference involves respect for precedent: Justice Thomas “gives less weight to stare decisis than a lot of other justices.” It is, “in its way, a virtue of his jurisprudence,” Justice Alito says. “He sticks to his guns.”<p data-type="paragraph" class="css-k3zb6l-Paragraph e1e4oisd0" style="box-sizing: border-box; --summary-font-color: var(--secondary-text-color); --summary-bullet-small-font-color: var(--primary-text-color); direction: var(--article-direction); line-height: calc(1.58824); margin: 0px 0px 1em; overflow-wrap: break-word;">That’s why Justice Thomas writes many lone concurrences. In Dobbs v. Jackson Women’s Health Organization (2022), he argued that “in future cases, we should reconsider all of this Court’s substantive due process precedents,” including those involving same-sex marriage, contraception and consensual sodomy. Justice Alito’s majority opinion carefully distinguished those issues from abortion. Justice Thomas often disregards precedents with which he disagrees and follows his own route to the majority’s destination—to cite a recurring example, by relying on the 14th Amendment’s Privileges or Immunities Clause rather than the Due Process Clause. The disadvantage of this approach, Justice Alito says, “is that you drop out of the conversation, and . . . lose your ability to help to shape what comes next in the application of that rule.”<p data-type="paragraph" class="css-k3zb6l-Paragraph e1e4oisd0" style="box-sizing: border-box; --summary-font-color: var(--secondary-text-color); --summary-bullet-small-font-color: var(--primary-text-color); direction: var(--article-direction); line-height: calc(1.58824); margin: 0px 0px 1em; overflow-wrap: break-word;">Justice Gorsuch has an ornery streak that has shown itself in cases involving Indian law, crime and discrimination. “He’s definitely not a consequentialist,” Justice Alito says of his colleague—meaning he is less concerned with the real-world effects of following his principles.<p data-type="paragraph" class="css-k3zb6l-Paragraph e1e4oisd0" style="box-sizing: border-box; --summary-font-color: var(--secondary-text-color); --summary-bullet-small-font-color: var(--primary-text-color); direction: var(--article-direction); line-height: calc(1.58824); margin: 0px 0px 1em; overflow-wrap: break-word; background-color: rgb(255, 255, 255);">An example is Ramos v. Louisiana (2020), which overturned a pair of 1972 precedents and held that the Sixth Amendment’s right to a jury trial requires unanimity for a finding of guilt in state court. Every state but Louisiana and Oregon already required unanimous verdicts, but “Ramos potentially affected many, many criminal convictions that had been obtained . . . using nonunanimous jury verdicts, which had been specifically approved by the Supreme Court,” Justice Alito says. “Overruling those decisions had potentially vast consequences. . . . That was not a big factor in his analysis.”<p data-type="paragraph" class="css-k3zb6l-Paragraph e1e4oisd0" style="box-sizing: border-box; --summary-font-color: var(--secondary-text-color); --summary-bullet-small-font-color: var(--primary-text-color); direction: var(--article-direction); line-height: calc(1.58824); margin: 0px 0px 1em; overflow-wrap: break-word;">As for Chief Justice John Roberts, “he puts a high premium on consensus. He rarely dissents.” He filed no outright dissenting opinions in the 2022-23 term and only one in 2021-22. He also “has expressed a very strong tendency to protect the prerogatives of the judiciary,” as in Bank Markazi v. Peterson (2016). The court upheld a law directing that Iranian assets targeted by successful plaintiffs in a specific terrorism case be seized to pay the judgment. The chief justice dissented against what he called an unacceptable intrusion on judicial power: “Hereafter, with this Court’s seal of approval, Congress can unabashedly pick the winners and losers in particular pending cases.”<p data-type="paragraph" class="css-k3zb6l-Paragraph e1e4oisd0" style="box-sizing: border-box; --summary-font-color: var(--secondary-text-color); --summary-bullet-small-font-color: var(--primary-text-color); direction: var(--article-direction); line-height: calc(1.58824); margin: 0px 0px 1em; overflow-wrap: break-word;">On the liberal side of the court, by contrast, “I don’t see that there’s a difference in interpretive method,” Justice Alito says. Yet he emphasizes that “we don’t always line up 6-3, 5-4, the way some people tend to think. If you look at all the cases, there are cases where the lineup is unusual.” Chief Justice Roberts wrote two election-law decisions this term, Allen v. Milligan and Moore v. Harper, in which he was joined by the three liberals and Justice Kavanaugh, along with Justice Amy Coney Barrett in the latter case.<div class="ad-portal" style="box-sizing: border-box; background-color: rgb(255, 255, 255);"><p data-type="paragraph" class="css-k3zb6l-Paragraph e1e4oisd0" style="box-sizing: border-box; --summary-font-color: var(--secondary-text-color); --summary-bullet-small-font-color: var(--primary-text-color); direction: var(--article-direction); line-height: calc(1.58824); margin: 0px 0px 1em; overflow-wrap: break-word; background-color: rgb(255, 255, 255);">Another prime example is National Pork Producers Council v. Ross, which upheld a California law banning the sale of meat from pigs that are “confined in a cruel manner”—almost all of which is produced in other states. The council argued that the law violated the Dormant Commerce Clause, a doctrine that limits states’ authority to enact policies that burden interstate commerce.<p data-type="paragraph" class="css-k3zb6l-Paragraph e1e4oisd0" style="box-sizing: border-box; --summary-font-color: var(--secondary-text-color); --summary-bullet-small-font-color: var(--primary-text-color); direction: var(--article-direction); line-height: calc(1.58824); margin: 0px 0px 1em; overflow-wrap: break-word; background-color: rgb(255, 255, 255);">Justice Alito, who agreed with that view, says “it’s no secret that Justice Thomas and Justice Gorsuch don’t think that there is such a thing as the Dormant Commerce Clause.” Justices Barrett, Sonia Sotomayor and Elena Kagan signed on to parts of Justice Gorsuch’s opinion, providing a majority that let the law stand.<p data-type="paragraph" class="css-k3zb6l-Paragraph e1e4oisd0" style="box-sizing: border-box; --summary-font-color: var(--secondary-text-color); --summary-bullet-small-font-color: var(--primary-text-color); direction: var(--article-direction); line-height: calc(1.58824); margin: 0px 0px 1em; overflow-wrap: break-word; background-color: rgb(255, 255, 255);">“I have not joined Justice Thomas, Justice [Antonin] Scalia, Justice Gorsuch in saying we should get rid of the Dormant Commerce Clause,” Justice Alito says. “I’ve written this in the Tennessee wine case—that the Constitution surely was meant to contain some principle that prevents the balkanization of the economy. That was one of the main reasons for calling the Constitutional Convention in Philadelphia.”<p data-type="paragraph" class="css-k3zb6l-Paragraph e1e4oisd0" style="box-sizing: border-box; --summary-font-color: var(--secondary-text-color); --summary-bullet-small-font-color: var(--primary-text-color); direction: var(--article-direction); line-height: calc(1.58824); margin: 0px 0px 1em; overflow-wrap: break-word; background-color: rgb(255, 255, 255);">He refers to his 7-2 ruling in Tennessee Wine and Spirits Retailers Assn. v. Thomas (2019). In dissent, Justices Gorsuch and Thomas cited the 21st Amendment, which repealed Prohibition and gave states broad authority to regulate alcohol. Justice Alito’s majority opinion treated that provision “as one part of a unified constitutional scheme,” within which the lawmakers who ratified the 21st Amendment understood that “the Commerce Clause did not permit the States to impose protectionist measures clothed as police-power regulations.”<div class="ad-portal" style="box-sizing: border-box; background-color: rgb(255, 255, 255);"><p data-type="paragraph" class="css-k3zb6l-Paragraph e1e4oisd0" style="box-sizing: border-box; --summary-font-color: var(--secondary-text-color); --summary-bullet-small-font-color: var(--primary-text-color); direction: var(--article-direction); line-height: calc(1.58824); margin: 0px 0px 1em; overflow-wrap: break-word;">That demonstrates a central feature of Justice Alito’s jurisprudence: its emphasis on historical context. “I think history often tells us what the Constitution means,” he says, “or at least it can tell us what the Constitution doesn’t mean.” His dissent in Obergefell v. Hodges (2015) is a case in point. “It’s perfectly clear that nobody in 1868 thought that the 14th Amendment was going to protect the right to same-sex marriage,” he says. Before this century, “no society—even those that did not have a moral objection to same-sex conduct, like ancient Greece—had recognized same-sex marriage.” The first country to legalize it was the Netherlands, effective in 2001.<p data-type="paragraph" class="css-k3zb6l-Paragraph e1e4oisd0" style="box-sizing: border-box; --summary-font-color: var(--secondary-text-color); --summary-bullet-small-font-color: var(--primary-text-color); direction: var(--article-direction); line-height: calc(1.58824); margin: 0px 0px 1em; overflow-wrap: break-word; background-color: rgb(255, 255, 255);">The same attention to history informs Justice Alito’s textualism. “I reject the idea that a statute should be interpreted simply by looking up the words in the dictionary and applying that mechanically,” he says. Justice Gorsuch did something like that in Bostock v. Clayton County (2020), in which the court held that Title VII of the 1964 Civil Rights Act, which prohibits employment discrimination “because of . . . sex,” covers “sexual orientation and gender identity.”<p data-type="paragraph" class="css-k3zb6l-Paragraph e1e4oisd0" style="box-sizing: border-box; --summary-font-color: var(--secondary-text-color); --summary-bullet-small-font-color: var(--primary-text-color); direction: var(--article-direction); line-height: calc(1.58824); margin: 0px 0px 1em; overflow-wrap: break-word; background-color: rgb(255, 255, 255);">Justice Gorsuch reasoned that because sex is essential to the definition of both categories, such discrimination is “because of” sex. But in 1964 homosexuality was subject to widespread disapprobation, and gender identity “hardly existed as a concept, even among professionals in the field,” as Justice Alito says. “When it’s very clear that the author of the text . . . cannot have meant something, then I don’t think we should adopt that interpretation, even if a purely semantic interpretation of the statute would lead you to a different result.”<p data-type="paragraph" class="css-k3zb6l-Paragraph e1e4oisd0" style="box-sizing: border-box; --summary-font-color: var(--secondary-text-color); --summary-bullet-small-font-color: var(--primary-text-color); direction: var(--article-direction); line-height: calc(1.58824); margin: 0px 0px 1em; overflow-wrap: break-word;">Justice Alito’s respect for precedent has limits: “Some decisions—and I think that Roe and Casey fell in this category—are so egregiously wrong, so clearly wrong, that’s a very strong factor in support of overruling.” Those are the 1973 and 1992 abortion cases that Dobbs overturned, with Justice Alito writing for a majority of five. Chief Justice Roberts provided a sixth vote to uphold Mississippi’s 15-week abortion ban but urged “a more measured course” that would narrow the precedents while deferring the question of whether to overturn them altogether.<p data-type="paragraph" class="css-k3zb6l-Paragraph e1e4oisd0" style="box-sizing: border-box; --summary-font-color: var(--secondary-text-color); --summary-bullet-small-font-color: var(--primary-text-color); direction: var(--article-direction); line-height: calc(1.58824); margin: 0px 0px 1em; overflow-wrap: break-word;">Justice Alito has been known to take a similarly incremental approach. His opinion for the court in Janus v. Afscme (2018) held that compelling public employees to pay union dues violated the First Amendment, and it overturned a 1977 precedent, Abood v. Detroit Board of Education. A foretaste came in Harris v. Quinn (2014), also written by Justice Alito, which subjected Abood to a withering critique but left it standing.<p data-type="paragraph" class="css-k3zb6l-Paragraph e1e4oisd0" style="box-sizing: border-box; --summary-font-color: var(--secondary-text-color); --summary-bullet-small-font-color: var(--primary-text-color); direction: var(--article-direction); line-height: calc(1.58824); margin: 0px 0px 1em; overflow-wrap: break-word; background-color: rgb(255, 255, 255);">“The question how broad a decision should be—should we overrule a prior precedent when we really don’t have to in order to decide this case?—it’s a judgment call,” he says. “There can be reasons for deciding the case more narrowly. Maybe we’re not sure whether it should be overruled. Maybe we think it would be better if the issue were highlighted for others to address first—scholars, lower-court decisions. Maybe it’s a question of what a majority of the court is willing to go along with.”<p data-type="paragraph" class="css-k3zb6l-Paragraph e1e4oisd0" style="box-sizing: border-box; --summary-font-color: var(--secondary-text-color); --summary-bullet-small-font-color: var(--primary-text-color); direction: var(--article-direction); line-height: calc(1.58824); margin: 0px 0px 1em; overflow-wrap: break-word; background-color: rgb(255, 255, 255);">That last contingency sometimes depends on events more than philosophy. Justice Ruth Bader Ginsburg died in September 2020, and President Trump appointed Justice Barrett to succeed her. Had Ginsburg lived a few months longer, the chief justice’s tentative approach might have prevailed in Dobbs. Or perhaps the justices wouldn’t have taken the case.<p data-type="paragraph" class="css-k3zb6l-Paragraph e1e4oisd0" style="box-sizing: border-box; --summary-font-color: var(--secondary-text-color); --summary-bullet-small-font-color: var(--primary-text-color); direction: var(--article-direction); line-height: calc(1.58824); margin: 0px 0px 1em; overflow-wrap: break-word;">In the 2023-24 term, the court will consider whether to overturn Chevron v. NRDC (1984), an increasingly disputed precedent that requires courts to defer to administrative agencies’ interpretations of ambiguous statutes. Justice Alito is careful not to state a position on Chevron, but he does make a pertinent broader point about precedent: “I’m not in favor of overruling important decisions just by pretending they don’t exist but refusing to say anything about them.”<p data-type="paragraph" class="css-k3zb6l-Paragraph e1e4oisd0" style="box-sizing: border-box; --summary-font-color: var(--secondary-text-color); --summary-bullet-small-font-color: var(--primary-text-color); direction: var(--article-direction); line-height: calc(1.58824); margin: 0px 0px 1em; overflow-wrap: break-word; background-color: rgb(255, 255, 255);" /><p data-type="paragraph" class="css-k3zb6l-Paragraph e1e4oisd0" style="box-sizing: border-box; --summary-font-color: var(--secondary-text-color); --summary-bullet-small-font-color: var(--primary-text-color); direction: var(--article-direction); line-height: calc(1.58824); margin: 0px 0px 1em; overflow-wrap: break-word;">He says that’s what his colleagues did last month in U.S. v. Texas, the term’s only case that had him alone in dissent. The court threw out Texas’ challenge to lax Biden administration immigration guidelines on the ground that the state lacked standing to challenge them in court. But Justice Alito says Texas’ claim of injury “was the same as—in fact, stronger than—that of Massachusetts in Massachusetts v. EPA,” a 2007 case that opened the door to federal regulation of greenhouse gases. “The court just hardly said a word about Massachusetts v. EPA.”<p data-type="paragraph" class="css-k3zb6l-Paragraph e1e4oisd0" style="box-sizing: border-box; --summary-font-color: var(--secondary-text-color); --summary-bullet-small-font-color: var(--primary-text-color); direction: var(--article-direction); line-height: calc(1.58824); margin: 0px 0px 1em; overflow-wrap: break-word; background-color: rgb(255, 255, 255);">The Biden policies suspended all enforcement measures for certain categories of illegal aliens, despite statutory language to the contrary—a clear violation, in Justice Alito’s view, of the president’s express constitutional duty to ensure that the law be faithfully executed. How did all eight of his colleagues end up on the other side? “I have no idea,” he says. “I honestly don’t. Why did it turn out that way? Because it involves immigration? Because it’s vaguely connected to Trump? I don’t know. I don’t know what the explanation is.”<p data-type="paragraph" class="css-k3zb6l-Paragraph e1e4oisd0" style="box-sizing: border-box; --summary-font-color: var(--secondary-text-color); --summary-bullet-small-font-color: var(--primary-text-color); direction: var(--article-direction); line-height: calc(1.58824); margin: 0px 0px 1em; overflow-wrap: break-word;">After the justices reconvene on the first Monday in October, they will continue making news in the usual way. Among the issues on the fall docket, along with the reconsideration of Chevron: whether South Carolina impermissibly gerrymandered its congressional districts by race, whether the Consumer Financial Protection Bureau’s funding scheme is unconstitutional, whether Congress can tax unrealized investment income, and whether someone subject to a domestic-violence restraining order can be deprived of his right to possess firearms. (Mr. Rivkin and a law partner, Andrew Grossman, represent the appellants in Moore v. U.S., the tax case.)<p data-type="paragraph" class="css-k3zb6l-Paragraph e1e4oisd0" style="box-sizing: border-box; --summary-font-color: var(--secondary-text-color); --summary-bullet-small-font-color: var(--primary-text-color); direction: var(--article-direction); line-height: calc(1.58824); margin: 0px 0px 1em; overflow-wrap: break-word; background-color: rgb(255, 255, 255);">The attacks on the court are sure to keep coming as well. Last week the Senate Judiciary Committee voted along party lines to advance Sen. Sheldon Whitehouse’s Supreme Court Ethics, Recusal and Transparency Act, which purports to impose on the justices and their clerks regulations “at least as rigorous as the House and Senate disclosure rules.”<p data-type="paragraph" class="css-k3zb6l-Paragraph e1e4oisd0" style="box-sizing: border-box; --summary-font-color: var(--secondary-text-color); --summary-bullet-small-font-color: var(--primary-text-color); direction: var(--article-direction); line-height: calc(1.58824); margin: 0px 0px 1em; overflow-wrap: break-word;">Justice Alito says he voluntarily follows disclosure statutes that apply to lower-court judges and executive-branch officials; so do the other justices. But he notes that “Congress did not create the Supreme Court”—the Constitution did. “I know this is a controversial view, but I’m willing to say it,” he says. “No provision in the Constitution gives them the authority to regulate the Supreme Court—period.”<p data-type="paragraph" class="css-k3zb6l-Paragraph e1e4oisd0" style="box-sizing: border-box; --summary-font-color: var(--secondary-text-color); --summary-bullet-small-font-color: var(--primary-text-color); direction: var(--article-direction); line-height: calc(1.58824); margin: 0px 0px 1em; overflow-wrap: break-word; background-color: rgb(255, 255, 255);">Do the other justices agree? “I don’t know that any of my colleagues have spoken about it publicly, so I don’t think I should say. But I think it is something we have all thought about.”<p data-type="paragraph" class="css-k3zb6l-Paragraph e1e4oisd0" style="box-sizing: border-box; --summary-font-color: var(--secondary-text-color); --summary-bullet-small-font-color: var(--primary-text-color); direction: var(--article-direction); line-height: calc(1.58824); margin: 0px 0px 1em; overflow-wrap: break-word;">The political branches have other weapons they could deploy against the court. The Constitution doesn’t specify the number of justices, so Congress could pack the court by enacting legislation to expand its size. Last week a pair of leftist law professors issued an “<a data-type="link" href="https://balkin.blogspot.com/2023/07/an-open-letter-to-biden-administration.html" rel="" target="_blank" class="css-1h1us5y-StyledLink el06won0" style="box-sizing: border-box;">open letter</a>” urging President Biden to “restrain MAGA justices” by applying their rulings as narrowly as possible. The day the court decided Biden v. Nebraska, striking down Mr. Biden’s student-loan forgiveness plan, the president announced that he was undertaking legally questionable alternatives.<p data-type="paragraph" class="css-k3zb6l-Paragraph e1e4oisd0" style="box-sizing: border-box; --summary-font-color: var(--secondary-text-color); --summary-bullet-small-font-color: var(--primary-text-color); direction: var(--article-direction); line-height: calc(1.58824); margin: 0px 0px 1em; overflow-wrap: break-word;">Justice Alito wonders if outright defiance may be in the offing for the first time since the aftermath of Brown v. Board of Education (1954): “If we’re viewed as illegitimate, then disregard of our decisions becomes more acceptable and more popular. So you can have a revival of the massive resistance that occurred in the South after Brown.”<p data-type="paragraph" class="css-k3zb6l-Paragraph e1e4oisd0" style="box-sizing: border-box; --summary-font-color: var(--secondary-text-color); --summary-bullet-small-font-color: var(--primary-text-color); direction: var(--article-direction); line-height: calc(1.58824); margin: 0px 0px 1em; overflow-wrap: break-word; background-color: rgb(255, 255, 255);">Will the justices’ recent rulings endure? The court shows little sign of yielding to external pressure, but its three liberal members stand ready to overturn many recent precedents from which they dissented. Whether they’ll have the opportunity likely depends on who holds the White House and the Senate when future high-court vacancies arise. About that prospect, Justice Alito demurs: “We are very bad political pundits.”<p data-type="paragraph" class="css-k3zb6l-Paragraph e1e4oisd0" style="box-sizing: border-box; --summary-font-color: var(--secondary-text-color); --summary-bullet-small-font-color: var(--primary-text-color); direction: var(--article-direction); line-height: calc(1.58824); margin: 0px 0px 1em; overflow-wrap: break-word; background-color: rgb(255, 255, 255);">Mr. Rivkin practices appellate and constitutional law in Washington. He served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Mr. Taranto is the Journal’s editorial features editor.</div></div><div>===</div><div>
</div><div>an 3 23</div><div>
</div><div style="background-color: rgb(255, 255, 255);">one of the most influential Republicans of the 20th Century was U.S.

Supreme Court Chief Justice Earl Warren, appointed by GOP President

Dwight D. Eisenhower. One landmark ruling after another was handed down

by the Warren Court, from New York Times v. Sullivan (1964) to Griswold v. Connecticut (1965) to Stanley v. Georgia (1969) to Brown v. the Board of Education (1954). Another was Gideon v. Wainwright, a 1963 decision guaranteeing criminal defendants the right to legal counsel. Three years later, the protections of Gideon grew even stronger thanks to the Warren Court's 1966 ruling in Miranda v. Arizona. The Miranda warning famously recited in countless police dramas includes elements of both Gideon v. Wainwright and Miranda v. Arizona, including, "If you cannot afford an attorney, one will be appointed to you." <div id="story_page_incontent_p2_target"><ins class="adsbygoogle" style="display:block" data-ad-client="ca-pub-5155643920455169" data-ad-slot="6339868799" data-ad-format="auto" data-full-width-responsive="true" /></div>Far-right

Justice Clarence Thomas, during his 32 years on the High Court, has

made no secret of his disdain for the Warren Court. And that includes Gideon v. Wainwright.READ MORE:<a href="https://www.alternet.org/ron-desantis-2659533898/" target="self" class="rm-stats-tracked">How DeSantis declared war on the last century’s 'most important 1st Amendment decision': legal analyst</a>In an <a href="https://www.msnbc.com/msnbc/amp/shows/deadlinewhitehouse/blog/rcna75535" rel="noopener noreferrer" target="blank" class="rm-stats-tracked">opinion column published by MSNBC's website</a>

on March 19, legal blogger Jordan Rubin explains, "In a 2019 dissent,

in which he was joined by Donald Trump appointee Neil Gorsuch, Thomas

wrote that the justices who decided Gideon decades ago didn't

attempt 'to square the expansive rights they recognized with the

original meaning of' the Constitution. Of course, we've seen this GOP

Court trample rights under the guise of originalism. And while this was

only two justices calling Gideon into question, we've learned

that precedent only means what the Court's current majority wants it to

mean. I recently noted the irony of Thomas and Gorsuch wanting to

revisit a landmark defamation precedent, given that doing so could hurt

Fox News."The "landmark defamation precedent" that Rubin is referring to is <a href="https://www.msnbc.com/deadline-white-house/deadline-legal-blog/clarence-thomas-fox-news-actual-malice-rcna74243" rel="noopener noreferrer" target="_blank" class="rm-stats-tracked">New York Times v. Sullivan</a>. In

that case, the Warren Court unanimously ruled that in defamation

lawsuits, the defendant has to prove "actual malice" — the thing that

Dominion Voting Systems is trying to prove in its $1.6 billion lawsuit

against Fox News. Dominion, thanks to Sullivan, has a huge

burden of proof in that case. And Fox News' legal team is — ironically,

as Rubin points out — using, in its defense, a legal precedent that

Thomas dislikes. "But when it comes to further weakening the right to counsel," <a href="https://www.msnbc.com/msnbc/amp/shows/deadlinewhitehouse/blog/rcna75535" rel="noopener noreferrer" target="blank" class="rm-stats-tracked">Rubin observes</a>, "a majority latching on to that idea would be more than ironic: It would be tragic."READ MORE:<a rel="noopener noreferrer" target="blank">Ginni Thomas' testimony to Jan. 6 committee sparks calls to investigate Clarence Thomas</a></div><div style="background-color: rgb(255, 255, 255);">
</div><div style="background-color: rgb(255, 255, 255);">=</div>=an ah 12 22In 2023, there will be a lot of gridlock in Washington, D.C., with Republicans having a small majority in the U.S. House of Representatives while Democrats will still control the White House and the U.S. Senate. Democrats performed much better than expected in the 2022 midterms, losing the House but slightly increasing their narrow majority in the Senate and winning key gubernatorial races in Pennsylvania, Michigan, Arizona and other swing states.But even if the United States had taken a hard-left turn in 2020 and 2022 — even if Sen. Bernie Sanders of Vermont were president and Democrats had large majorities in both branches of Congress going in 2023 — the country would still have its most radical-right Supreme Court in generations. And the High Court won’t be moving to the center, let alone the left, anyone soon. It’s entirely possible that all three of the Gen-X justices President Donald Trump appointed (Amy Coney Barrett, Brett Kavanaugh and Neil Gorsuch) will still be on the Court 30 years from now.The Court’s far-right turn is the focus of articles published by <a href="https://www.nytimes.com/2022/12/19/us/politics/supreme-court-power.html" rel="noopener noreferrer" target="blank" class="rm-stats-tracked" style="color: rgb(11, 13, 101); text-decoration-line: none; opacity: 1; transition: color 0.25s ease 0s, background 0.25s ease 0s, opacity 0.25s ease 0s;">the New York Times</a> and the conservative website <a href="https://www.thebulwark.com/signals-from-the-supreme-court-on-its-high-stakes-cases-this-term/" rel="noopener noreferrer" target="blank" class="rm-stats-tracked" style="color: rgb(11, 13, 101); text-decoration-line: none; opacity: 1; transition: color 0.25s ease 0s, background 0.25s ease 0s, opacity 0.25s ease 0s;">The Bulwark</a> on December 19. In the Times piece, journalist Adam Liptak emphasizes that today’s Supreme Court wields more power than other branches of the federal government.READ MORE: <a href="https://www.alternet.org/commentary/john-roberts/" target="self" class="rm-stats-tracked" style="color: rgb(11, 13, 101); text-decoration-line: none; opacity: 1; transition: color 0.25s ease 0s, background 0.25s ease 0s, opacity 0.25s ease 0s;">How John Roberts may slow-walk American democracy right off the cliff</a>“The conventional critique of the Supreme Court these days is that it has lurched to the right and is out of step with the public on many issues,” Liptak explains. “That is true so far as it goes. But a burst of recent legal scholarship makes a deeper point, saying the current Court is distinctive in a different way: It has rapidly been accumulating power at the expense of every other part of the government.”Liptak notes what Stanford University law professor Mark A. Lemley had to say about the High Court in an article published by the <a href="https://harvardlawreview.org/2022/11/the-imperial-supreme-court/" rel="noopener noreferrer" target="blank" class="rm-stats-tracked" style="color: rgb(11, 13, 101); text-decoration-line: none; opacity: 1; transition: color 0.25s ease 0s, background 0.25s ease 0s, opacity 0.25s ease 0s;">Harvard Law Review</a> on November 20.Lemley wrote, “The Court has not been favoring one branch of government over another, or favoring states over the federal government, or the rights of people over governments. Rather, it is withdrawing power from all of them at once…. It is a Court that is consolidating its power, systematically undercutting any branch of government, federal or state, that might threaten that power, while at the same time undercutting individual rights.”Lemley’s article was headlined “The Imperial Supreme Court” — a characterization that Liptak doesn’t disagree with. And Liptak points out that according to Rebecca L. Brown and Lee Epstein of the University of Southern California (USC), the High Court “is establishing a position of judicial supremacy over the president and Congress.”READ MORE: <a href="https://www.alternet.org/2022/11/former-dhs-official-legal-theory" target="self" class="rm-stats-tracked" style="color: rgb(11, 13, 101); text-decoration-line: none; opacity: 1; transition: color 0.25s ease 0s, background 0.25s ease 0s, opacity 0.25s ease 0s;">Former DHS official tears apart a crackpot legal theory that could 'have catastrophic effects for democracy'</a>Liptak also quotes University of California, Berkeley law professor <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4291247" rel="noopener noreferrer" target="blank" class="rm-stats-tracked" style="background-color: rgb(255, 255, 102); color: rgb(11, 13, 101); text-decoration-line: none; opacity: 1; transition: color 0.25s ease 0s, background 0.25s ease 0s, opacity 0.25s ease 0s;">Tejas N. Narechania</a>, who wrote, “The Roberts Court, more than any other Court in history, uses its docket-setting discretion to select cases that allow it to revisit and overrule precedent.”In an article she wrote for The Bulwark, University of Baltimore law professor Kimberly Wehle stresses that the Roberts Court has been showing a total disregard for precedent. Discussing the case Merrill v. Milligan, Wehle points out that how the Court ruled in the past isn’t a major concern for this edition of the Court.“After the Dobbs ruling overturning Roe v. Wade last term,” Wehle writes, “it’s clear that the Court’s majority is not shy about overturning precedent, however entrenched it may be…. At issue in Merrill, which was argued on October 4, is whether Alabama’s newly redrawn congressional map illegally discriminates against Black voters under the Voting Rights Act (VRA). A three-judge lower-court panel, including two Trump appointees, agreed with the plaintiffs, deeming the Alabama map illegal and mandating the creation of a new one. If the Supreme Court sides with Alabama, it would mean another reversal of established precedent interpreting Section 2 of the VRA in a 1986 case called Thornburg v. Gingles. Even worse, it would be another serious gut-punch to Congress’ ability to pass laws remedying systemic discrimination, this time in voting.”Another current Supreme Court case that worries Wehle is Moore v. Harper, which deals with partisan gerrymandering in North Carolina and a far-right legal idea known as the <a href="https://www.alternet.org/how-an-alarming-supreme-court-case-could-fundamentally-reshape-american-democracy-nc-governor/" target="self" class="rm-stats-tracked" style="color: rgb(11, 13, 101); text-decoration-line: none; opacity: 1; transition: color 0.25s ease 0s, background 0.25s ease 0s, opacity 0.25s ease 0s;">independent state legislature (ISL) theory</a>. The ISL, in its most severe form, argues that only state legislatures have a right govern elections at the state level — not governors, not state supreme courts, not judges.“The implications of Moore are even graver than those in Milligan,” Wehle warns. “The legislators are arguing that under the U.S. Constitution, only state legislatures or Congress can decide the rules governing federal elections — state courts and state constitutions are meaningless. This independent state legislature theory was repeatedly raised with no success by Trump and his supporters seeking to overturn the election in 2020.”Wehle continues, “But what was unthinkable then — a ruling that takes elections away from voters by mandating as a matter of constitutional law that state legislatures have unfettered power to ultimately decide them — is very real now…. If the independent state legislature theory nonetheless carries the day, it would mean that a state legislature could violate the very state constitution that created it. Voters would, once again, be the losers at the Supreme Court — despite multiple laws designed to protect them.”Wehle wraps up her article by arguing that today’s Supreme Court is more radical than conservative.“Alas, the conservative justices on this Court have already shown their hand,” Wehle writes. “They don’t care about precedent, let alone intellectual integrity. As a result, Americans may be in for a rude awakening. Indeed, perhaps it’s time to retire the label ‘conservative’ when referring to the majority of this Court. Each term gives further evidence of its decidedly unconstrained unconservatism. And the future of our precious Constitution is in their hands.”READ MORE: <a href="https://www.alternet.org/2022/11/trump-lawyers-clarence-thomas" target="self" class="rm-stats-tracked" style="color: rgb(11, 13, 101); text-decoration-line: none; opacity: 1; transition: color 0.25s ease 0s, background 0.25s ease 0s, opacity 0.25s ease 0s;">Trump’s lawyers believed Clarence Thomas was their 'only chance' at overturning the presidential election: report</a>=tom b raw an 10 22In a blunt-talking editorial from the St. Louis Post-Dispatch, the editors took two of the most conservative members of the Supreme Court to task for doing little to halt the slide in the court's credibility that has been in freefall after it became a 6-3 conservative majority.Specifically, they cited Associate Justices Clarence Thomas and Sam Alito over a Thomas ruling last week, and a report on Alito dating back to his confirmation in 2005.In the case of Thomas, last week he interceded on behalf of Sen. Lindsey Graham (R-SC), who is balking at having to testify in an election corruption case in Georgia related to Trump's phone call to Georgia's secretary of state.Regarding his ruling temporarily granting Graham relief, the editors wrote, "... as with anything regarding that election, having Thomas involved in any way automatically looks suspect because of his wife, right-wing activist Ginni Thomas. In the weeks leading up to the Jan. 6, 2021, Capitol insurrection, Ginni Thomas flooded Trump’s inner circle with unhinged texts calling Joe Biden’s election a 'coup,' suggesting the Biden 'crime family' should face 'military tribunals for sedition,' and generally encouraging resistance to accepting the election outcome."The editors added, "In what universe is it OK for Justice Thomas not to recuse himself from anything Jan. 6-related when this is the kind of pillow talk he goes home to at night?"As for Alito, he was scorched for l<a href="https://www.nytimes.com/2022/10/24/us/politics/alito-kennedy-abortion.html" rel="noopener noreferrer" target="blank" class="rm-stats-tracked" style="text-decoration-line: none; color: rgb(11, 13, 101); outline: none; opacity: 1; transition: color 0.25s ease 0s, background 0.25s ease 0s, opacity 0.25s ease 0s;">ying his way onto the court</a> that led to his Dobbs's majority decision that gutted Roe v. Wade 17 years later.With the New York Times reporting that Alito had assured Sen. Ted Kennedy (D-MA) that he had no intention of overturning Roe, saying, "I am a believer in precedents. People would find I adhere to that,” the Post-Dispatch editors slammed him for his "mendacity.""That mendacity is hardly a surprise, nor is Alito alone in it," they wrote. "All five conservative justices who voted in June to overturn Roe (Roberts concurred, but stopped short of endorsing full reversal) have at various times waxed on about the sanctity of precedent generally — and have, to varying degrees, offered assurance they weren’t going to go out of their way to flip Roe as soon as they had the votes to do it. Which, of course, is exactly what they did."<div style="color: rgb(49, 49, 49); font-family: Georgia, sans-serif; font-size: 20px; background-color: rgb(255, 255, 255);">The editors also took a shot at Chief Justice John Roberts for acting like he doesn't understand why the court he heads has lost the confidence of the public.With Roberts complaining, "I don't understand the connection between (Supreme Court) opinions that people disagree with and the legitimacy of the Court," the editors explained, "As we noted then, his frustration is misplaced. These latest developments further illustrate why."You can read <a href="https://nordot.app/958310304558120960?c=592622757532812385" rel="noopener noreferrer" target="blank" class="rm-stats-tracked" style="text-decoration-line: none; font-weight: bold; color: rgb(11, 13, 101); outline: none; opacity: 1; transition: color 0.25s ease 0s, background 0.25s ease 0s, opacity 0.25s ease 0s;">the whole piece here</a>.</div>=an 7 22 lucien t 4
watching Justice Samuel Alito go spelunking in his Dobbs opinion

through centuries of so-called history and tradition in search of legal

justifications to overturn the right to abortion decided almost 50 years

ago in Roe v. Wade was like watching a boy play in a pile of dirt.

Where do I dig next, he seemed to be muttering to himself as he shoveled

manure from a slave-era law in Virginia onto an 18th-century pile of

garbage he quoted from some doofus who believed women were inferior

beings. Clarence Thomas was right there behind him in his decision that

New York can't prevent people from carrying concealed weapons, plowing

through statutes from jolly old England and the American frontier to

show that Dodge City didn't really mean it when they told cowboys they

had to check their six-guns with the sheriff if they came into town. And

then along came Chief Justice Roberts as clean-up man, swinging the

club of something known as the "major questions doctrine" to deny the

Environmental Protection Agency its statutory authority to — duh —

protect the environment unless Congress spells out exactly how they

should do it. According to Roberts, it is Congress, not the EPA, that

has to write a rule telling corporations they can't empty industrial

waste directly into creeks, rivers or the ocean because it's a "major

question" if it costs corporations a lot of money, so let's make it as

hard as possible for the government to take a chunk out of our golf

buddies' bottom lines.Throughout the entire year of decisions by a

court that for the first time included all three of the Supreme Court's

newest and most conservative members, the Republican majority decided

to jettison the doctrine of stare decisis, which means to stand by things decided, and employ their own doctrine on how precedents should be treated: Stare quisquilias acervum

or "stand by the trash heap," where they proceeded to throw the court's

previous decisions and entire articles of the Constitution.All

of this in service to their favorite doctrine of all — rights granted

by the Constitution must be "deeply rooted in the nation's history and

tradition" or they aren't really rights at all. Legal scholars have been

predicting that the court will use its new jewel of a doctrine to

overturn Obergefell v. Hodges, not to mention other recent

decisions recognizing rights under the privacy provision of the equal

protection clause of the 14th Amendment … because we have no "history

and tradition" of same-sex marriage or gay sex or rubbers or the pill,

or anything else they simply don't like.To justify its

abandonment of the court's "history and tradition" of respecting and

upholding its previous decisions, the Supreme Court called upon a

favorite from an era they apparently revere, states' rights. Speaking

for the court's conservative majority, Alito decided to "return"

abortion to the control of the states, several of which promptly made

performing abortions illegal and effectively established new rules — or

re-established old ones — which dictated that women must carry to term

babies resulting from rape or incest, and then give birth to them,

relying, it would seem, on our deeply rooted history and tradition of

slavery.What can be done about the court's prejudice masquerading

as reason? Doesn't the wrongheadedness of the "history and tradition"

of the way women were treated at the time the 14th Amendment was written

tell us something about all the anti-abortion laws of the past Alito

quoted in the world's longest footnote? Women weren't allowed to vote,

to sit on juries, to own property separate from husbands or male members

of their families, and in some states they did not have the right to

sign contracts. Oh, by the way, they weren't allowed to have abortions,

either.It took decades of fighting for women's rights for us to

get rid of some forms of prejudice against women. But "history and

tradition" demands we go back to banning abortions, according to Alito.Alito's

decision features a gigantic hole not even the dissenters pointed out:

To have "history and tradition," it has to start somewhere. Precedents

become part of history only after they make history. If the

court is going to require that all our rights must be grounded in

history and tradition, that's exactly what Obergefell and the other

privacy rights decisions do. They establish a baseline of history that

can be depended upon in the future rather than reaching back to 1868 in

search of one.I say if they're not going to respect their own

decisions, then neither should we, and neither should lower court

federal judges and state judges and legislatures. Legal scholars use the term "vertical stare decisis"

to describe the principle that lower courts should follow and respect

the decisions of the Supreme Court. But the law is not something handed

down from a higher power or engraved on a tablet with a hammer and

chisel. It is a living thing, and it has to breathe and move and eat and

expel waste in order to stay alive, and some of the waste that must be

expelled can be found in the court's most recent decisions....
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