💣 Abortion, Guns & School Prayer: 3 Supreme Court Cases to Understand Now
The U.S. Supreme Court blew up the constitutional landscape
As June 2022 ended, the U.S. Supreme Court blew up the constitutional landscape with its rapid-fire decisions on some of the most pressing and divisive issues in America today. This all-out reshaping of the Constitution by a “conservative” majority cannot be overstated. It is breathtaking, and it will affect every human being in the United States. (There’s nothing conservative about what the Court is doing.)
Let’s break down these cases into bite-sized pieces.
Today’s newsletter will cover abortion, guns and school prayer. My next newsletter will cover climate change, immigration, Native Americans, and—more broadly—the separation of church and state.
Bottom line: Sen. Mitch McConnell (R-Ky.) achieved a political master stroke by packing the Supreme Court, which is now effectively and systematically transferring unprecedented power into its own hands — or more specifically, into the hands of five unelected individuals in black robes who cannot be fired except with a Senate supermajority via impeachment.
Summer 2022 Key Cases
December 2021 — Here’s what I predicted: What Roe Could Take Down With It
June 2022 — Here’s what happened…
Case: Dobbs v. Jackson Women’s Health Organization
Outcome: The Court ruled that a Mississippi law that bans most abortions after 15 weeks is constitutional and overturned 50 years of precedent recognizing a constitutional right to abortion at approximately 24 weeks, first established by Roe v. Wade in 1973.
Roe balanced the interests of mothers against the interests of fetuses and held that after “viability" (the point of survival independent of the mother), the state’s interests in fetal life justify restrictions on abortion access. Before that, women and girls—along with their families, friends, doctors, and clergy—make the call for themselves.
The gaping legal anomaly of the decision is that Justice Alito ignores the constitutional interests of pregnant but fully born human beings, known as women, and elevates the state’s interests in protecting what he calls “unborn children” to a higher constitutional status than that of women (and minor girls who cannot even vote) when it comes to deciding whether to carry a pregnancy to term. In effect, the state gets to decide individual pregnancy decisions because the other side of the constitutional scale (representing women and girls) is now legally empty.
Impact: Access to reproductive health care will be individually decided by state legislatures (never mind problems with voter access and gerrymandering). The grown-up-in-the-room we call the Constitution is largely out of the picture on this issue. The number of reproductive health clinics performing abortions will decrease, further inhibiting access to primary healthcare and preventative screenings, particularly for low-income women. Maternal mortality rates will increase.
Reality: The SCOTUS decision will not end abortions, but it will vastly alter whether and where they are happening and for whom. Women and girls will pay the price for this blatantly “moral”—versus steadfastly legal—decision (check out the very first line of Alito’s opinion on this).
Click the image below for my interview with Tracy Anderson: Breaking Down the Overturning of Roe v. Wade
Click the button below for my article pre-Dobbs on the opinion leak: What We Keep Getting Wrong About Abortion
October 2021 — Here’s what I predicted: Will the Supreme Court Throw Out Laws Prohibiting Concealed Carry?
June 2022 — Here’s what happened…
Case: New York State Rifle & Pistol Association v. Bruen
Outcome: The Court ruled that states with strict limits on carrying guns in public violate the Second Amendment.
Impact: The Supreme Court decision strikes down a century-old New York law requiring a special need to carry a weapon in public, putting at risk similar laws in Maryland, California, New Jersey, Hawaii and Massachusetts.
Reality: According to data from Pew and Gallup, while 40 percent of American adults live in households containing a gun, over half (53 percent) favor stricter gun laws. 2021’s death toll from gun violence was 14,516 as of September 15, with 498 of the incidents involving four or more people shot or killed (not including the shooter).
By that definition of “mass shooting,” that’s nearly two per day.
But elected state and municipality officials are now constitutionally constrained in what they can do about handguns in public. (How’s that for democracy by the people?)
New York required a person to show a need for self-protection in order to receive a license to carry a concealed firearm outside the home. Answer how you feel about this in the poll below:
Click the button below to read my article in The Atlantic: The Best Hope for Fixing America’s Gun Crisis, in which I outline how litigation is the most likely path for meaningful accountability.
Case: Kennedy v. Bremerton School District
Outcome: The Court ruled that a football coach at a public high school had a constitutional right to pray on the field after games.
Impact: Liberal groups see this decision as eroding the separation of church and state in public schools. Conservative groups see this decision as a victory for the First Amendment’s Free Exercise Clause—a provision that’s logically at odds with the Establishment Clause, as the Court has long recognized.
Reality: As I write in my book, How to Read the Constitution--and Why, there are two issues with the freedom of religion: Whether the government can interfere with establishing a government-sponsored church on the one hand (i.e., Establishment Clause) and whether it can interfere with how you personally worship (i.e., the Free Exercise Clause). These terms are inherently in conflict. For a long time, the Court acknowledged that in order to ascertain whether the government is in compliance with the Establishment Clause, it had to consider a subject individual’s Free Exercise interests. If a federal employee is praying online during work hours, for example, does that entangle government too much in religion?
This term, the Court essentially determined that any consideration of individual religious beliefs is unconstitutional under the Free Exercise part of the 1st Amendment, thereby rendering the Establishment Clause a second-class consideration under the Constitution. If you take into account the employee in ascertaining whether the at-work prayer time is a problem under the Establishment Clause, in other words, you are possibly in violation of the Free Exercise part of the 1st Amendment.
What’s a manager to do?
Let’s face it: It’s impossible for a government actor (here, a school) to reasonably consider whether the Establishment Clause is violated without weighing the employee’s religious activity (that is, without taking into account Free Exercise rights). So it’s a “check-mate” for purposes of compliance with the Establishment Clause.
It’s impossible not to imagine that this Court might find differently if the coach were is a strict Muslim. How much can the government (or public schools) entangle itself officially with that religion? In Kennedy, the majority seized upon “history and tradition” (as in Dobbs) as the new test for First Amendment Establishment Clause conundrums. Trouble is, in 1791, when the 1st Amendment was ratified, it was primarily a Christian tradition that governed our history, with a few pockets of Judaism.
What about the rights of scores of other traditions today?
If this scares you, it should. I feel ya.
Below is a picture that Justice Sotomayor inserted in her dissent showing the high school football coach, Joseph Kennedy, in prayer with players. It’s rare that Justices insert photos into their written opinions. But this one below quickly went viral. It speaks volumes in terms of whether there was, in truth, an Establishment Clause problem here.
In the News
President Joe Biden took his time in responding to Roe, and defrayed Democrats’ plea to use federal military bases for abortion access (which it appears he could legally do, mind you).
I sat down with ABC News to speak about what protections were granted by President Joe Biden’s Executive Order, which ostensibly focused on abortion access. It doesn’t do much out of the gate. The Executive Order, signed on July 8th, does set up the next round of legal battles involving women seeking abortions by erecting an unprecedented conflict between state and federal law regarding abortion-related drugs.
But let’s be clear: By reversing Roe, the Dobbs majority settled little. Litigation will be explosive in the wake of the decision, with huge constitutional implications for millions.
Listen to the full interview below for an explanation of the thorny issues involved in resolving state laws and federal FDA drug regulations when it comes to medication abortions.
My Opinion Column of the Moment
One of the recurring themes of the Jan. 6 Committee hearings has been requests for presidential pardons by people who advanced Donald Trump’s election fraud lies and attempts to override Joe Biden’s unequivocal win. More is to come on this, I reckon.
“Because a pardon can operate as the constitutional equivalent of a get-out-of-jail-free card, Eastman, Perry and other Republicans in Congress wanted protection from possible criminal liability for crimes they may have committed in furtherance of Trump’s lawless efforts to undermine the 2020 election results and subvert the peaceful transfer of power.”
Want to learn more about the Pardon Power?
Listen to this podcast interview where I talk about Trump’s use of the pardon power and what it means for our Democratic Republic.