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Supreme Court as vending machine
Jun. 24th, 2022 12:20 pmThe Supreme Court seems to have become a right-wing vending machine, delivering two rulings recently that are purely ideological. I agree with the outcome of one and disagree with the other, but they are both wrongly-decided and will not bring credit to the court.
The first ruling came out yesterday and overturned New York State's concealed-carry law. In the opinion, Clarence Thomas made the argument that such laws are unconstitutional if they are not "consistent with this nation’s historical tradition of firearm regulation.” He then ignores the history of gun regulation in the US and pre-revolutionary England. We actually do have a long tradition of preventing people from carrying guns - the gunfight at the OK Corral was started when local law enforcement (the Earps) were attempting to enforce a local ordinance prohibiting carrying guns in town.
If he had truly been concerned about protecting the right of self-defense (which is not in the Constitution - it's a common law right we inherited from England) he could have done so by ruling that New York's law, which requires "some elevated need for self-defense" was too subjective. New York would then have to write some variant of "shall issue" law. ("Shall issue" = "do X, Y and Z and we shall issue a permit.")
The second ruling came out today, invalidating Roe and thus removing a Federal right to abortion. I don't agree with the outcome but this ruling is bad as well. Here, the argument Alito uses would also invalidate much of 20th-century civil rights. As Thomas points out in his concurrence, the same logic used by Thomas should invalidate the rights to birth control, non-missionary sex and gay marriage. Thomas, hypocritically, does not note that his own interracial marriage would be at issue under the logic of the ruling.
It's not clear how one would correctly overturn Roe, primarily because Roe recognized a right of women to make their own medical decisions. Arguing that we should only have rights that are "deeply rooted in history" is an express train to the 1860s. I don't think most Americans want that.
By these rulings, the Supreme Court has shredded their legitimacy. I think John Roberts, a man very much concerned about the Court as an institution, knows that. I predict this will not end well for the Supreme Court.
The first ruling came out yesterday and overturned New York State's concealed-carry law. In the opinion, Clarence Thomas made the argument that such laws are unconstitutional if they are not "consistent with this nation’s historical tradition of firearm regulation.” He then ignores the history of gun regulation in the US and pre-revolutionary England. We actually do have a long tradition of preventing people from carrying guns - the gunfight at the OK Corral was started when local law enforcement (the Earps) were attempting to enforce a local ordinance prohibiting carrying guns in town.
If he had truly been concerned about protecting the right of self-defense (which is not in the Constitution - it's a common law right we inherited from England) he could have done so by ruling that New York's law, which requires "some elevated need for self-defense" was too subjective. New York would then have to write some variant of "shall issue" law. ("Shall issue" = "do X, Y and Z and we shall issue a permit.")
The second ruling came out today, invalidating Roe and thus removing a Federal right to abortion. I don't agree with the outcome but this ruling is bad as well. Here, the argument Alito uses would also invalidate much of 20th-century civil rights. As Thomas points out in his concurrence, the same logic used by Thomas should invalidate the rights to birth control, non-missionary sex and gay marriage. Thomas, hypocritically, does not note that his own interracial marriage would be at issue under the logic of the ruling.
It's not clear how one would correctly overturn Roe, primarily because Roe recognized a right of women to make their own medical decisions. Arguing that we should only have rights that are "deeply rooted in history" is an express train to the 1860s. I don't think most Americans want that.
By these rulings, the Supreme Court has shredded their legitimacy. I think John Roberts, a man very much concerned about the Court as an institution, knows that. I predict this will not end well for the Supreme Court.
