American Law’s Worst Moment(s), 2022

Posted in: Constitutional Law

The envelope please: the award for American law’s worst moment of 2022 goes to the United States Supreme Court for its decision in Dobbs v Jackson Women’s Health Organization.

Because law’s infamous rulings generally do not fly below the radar, it is hardly a surprise to name Dobbs, which has already been subject to withering criticism. But surprising or not, it is still important to name the damage it did to countless millions of people and to the Court itself.

While Dobbs is my choice as law’s worst moment of the year, there were others that I seriously considered for this dubious recognition.

They include two Supreme Court decisions, New York State Rifle & Pistol Association v. Bruen and West Virginia v. Environmental Protection Agency.

Surprisingly even the Heritage Foundation recognized that Justice Clarence Thomas’s decision in the New York gun case (that the text of the Second Amendment protects the right to carry handguns in public for self-defense) rejected the use of “the prevailing framework for evaluating Second Amendment claims.” Instead, the Court held that “the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.”

In the EPA case, the Court limited agencies’ regulatory authority and set the stage for future attacks on the post-New Deal administrative state. It used an entirely made-up test, the so-called “major questions doctrine.”

Under that doctrine, it is necessary for Congress to include a clear statement in the law that it intended to delegate authority to regulate a fundamental sector of the economy. Failing to include such an explicit delegation renders agency action constitutionally suspect.

David Cole, borrowing from the language of Dobbs, labeled those decisions “egregiously wrong” and called the 2021-22 term “unprecedented.” In his view, they exposed the bankruptcy of originalism as a method of constitutional interpretation.

Another competitor for this year’s worst legal moment was the decision by Trump appointee, U.S. District Judge Aileen Cannon, to appoint a special master to review documents seized in the Mar-a-Lago search case.

And then there was the series of botched executions that made 2022 a very bad year for

America’s death penalty and some bad non-decisions, in particular Joe Biden’s continuing inaction on commuting the death sentences of 44 inmates on the federal death row.

All of those things were bad, but Dobbs was worse.

Let’s begin with the chaos in women’s lives already caused Dobbs.

An article published in the July 1 issue of Vox reported that in the immediate aftermath of Dobbs, “About 13.9 million have already lost their rights to legal abortion where they live, or are about to lose them, in most cases in less than a month. Another 6.8 million face early-term restrictions. And 13.1 million women live in states where anti-abortion legislation has been proposed, or where a Republican-led state legislature may pursue future restriction.”

Vox estimates that about “255,000 legal abortions took place in 2019 in the states where abortions are now banned or likely to be banned. While some women may still be able to stop a pregnancy at an abortion facility in a neighboring state, some won’t be able to do that.”

Picking up on the Vox report, the theologian and activist Liz Theoharis noted that, “For millions of us, the Dobbs v. Jackson decision on abortion means life in America has just grown distinctly more dangerous. The seismic aftershocks of that ruling are already being felt across the country: 22 states have laws or constitutional amendments on the books now poised to severely limit access to abortion or ban it outright.”

Assessing the danger that she named, Theoharis says that “Even before the Supreme Court issued its decision, states with more restrictive abortion laws had higher maternal-mortality and infant-mortality rates. Now, experts are predicting at least a 21% increase in pregnancy-related deaths across the country.”

These consequences will be felt most acutely among poor people and in communities of color.

“Survey data,” Theroharis says, “shows that nearly 50% of women who seek abortions live under the federal poverty line, while many more hover precariously above it. In states that limit or ban abortion, poor women and others will now face an immediate threat of heightened health complications, as well as the long-term damage associated with abortion restrictions.”

And the consequences of Dobbs will be felt for generations in the families of women who are compelled to carry a pregnancy to term.

The Vox article notes that research done before Dobbs has shown that “children of women unable to receive an abortion experienced poorer maternal bonding at an early age than did children of those who received an abortion—the mothers were more likely to say that the babies stressed them out. Poor maternal bonding at early infancy could lead to lower social competence later, when children reach school age. These children were also more likely to live in poorer households.”

In itself, this damage would be enough to earn Dobbs recognition as law’s worst moment of 2022. But that decision also damaged the rule of law and the legitimacy of the Supreme Court. And, as law professor Mary Zeigler warns, “If this decision signals anything bigger than its direct consequences, it is this: No one should get used to their rights.”

Despite pious talk about stare decisis and precedent during judicial confirmation hearings, Justice Samuel Alito’s opinion in Dobbs showed how blithely they can be discarded by a determined, radically activist Court.

It did so despite what Alito himself said about Roe during his confirmation hearings before the Senate Judiciary Committee. Roe, Alito declared, “is an important precedent of the Supreme Court. It was decided in 1973, so it has been on the books for a long time.”

According to the New York Times, Alito also privately assured the late Sen. Edward Kennedy that he respected the precedent of Roe v. Wade and had no intention of ever touching it. “I am a believer in precedents,” Alito told Kennedy, “People would find I adhere to that . . . . I recognize there is a right to privacy. I think it’s settled.”

In 2017, during his confirmation hearings, Justice Neil Gorsuch refused to take a position on Roe but told Sen. Lindsey Graham, R-S.C., that he “would have walked out the door” had President Trump asked him to overturn Roe.

Following Alito, Gorsuch, who joined the Dobbs majority opinion, acknowledged that Roe was precedent and said that precedent is the “anchor of law.”

“I would tell you,” Gorsuch continued, “that Roe v. Wade, decided in 1973, is a precedent of the United States Supreme Court. It has been reaffirmed. A good judge will consider it as precedent of the U.S. Supreme Court worthy as treatment of precedent like any other.”

During his 2018 confirmation hearing, Justice Brett Kavanaugh echoed his colleagues’ expression of respect for Roe. He called Roe “important precedent of the Supreme Court that has been reaffirmed many times.”

Dobbs also deserves to be called law’s worst moment in 2022 because it exposed the hypocrisy of several of the Justices who signed onto the opinion overruling Roe. Or maybe it would be better to say that it demonstrated their craven willingness to say anything to get confirmed and apparently they just lied to achieve that end.

Worse, it is not only that Alito, Gorsuch, and Kavanagh disregarded what they had said under oath when they voted to overrule Roe, but that they trashed their predecessors who decided it. They treated it and them with utter contempt and derision.

Alito takes Kavanaugh’s analysis of the conditions justifying overruling a precedent in his concurring opinion in Ramos v. Louisiana and makes it central to his rough treatment of Roe.

As Alito’s majority opinion put it, “Roe was egregiously wrong…Roe’s constitutional analysis was far outside the bounds of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed.” Alito went on the describe Roe as “nothing but ‘raw judicial power.’”

He did so without apparently grasping the irony of how Dobbs was itself “nothing but ‘raw judicial power.’”

All in all, a reader of the Dobbs opinion is unlikely to come away with a renewed respect for the Court and the craftsmanship or good faith of the Justices whose job it is to understand the Constitution and its meaning

In the end, the Dobbs majority seemed more eager to vent the long-held grievances of the most extreme elements of the conservative movement than to protect the authority and legitimacy of the Court on which they serve. Or the health and safety of the people in whose name they serve.

As 2022 draws to its end, Americans are left to think about what these facts mean for the Court and the country. At least for me, it is not a happy thought.

Posted in: Constitutional Law

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