Welcome to the land of Make-Believe.
My kids love to play make-believe. My youngest is often stomping around the house declaring himself a power ranger and running off to “get the bad guys” (while wearing the most serious expression). My middle child has a whole basket of costumes. Some days he is spider-man, others a pirate, he has even performed as Alexander Hamilton. Pretending and exercising imagination are wonderful exercises as a child. But I am tired of playing make-believe with the federal government, and specifically the federal judicial system. We call it make-believe for children, but for adults I believe the correct term is bullshit. I am tired of hearing that the Supreme Court is an institution separate and apart from political viewpoint. I am tired of the faux legal reasoning that is used to justify politically motivated ends.
In Dobbs, Justice Alito utilizes the Gluckesburg test to argue that there is no constitutional right to an abortion. Without getting lost in the weeds, the “right to abortion” (which is more properly understood as a right to privacy or personal autonomy) was derived from an interpretation of the Due Process Clause of the 14th Amendment. In short, Roe and its progeny held that the promise of life and liberty provide for a fundamental right of privacy in decisions related to procreation. The Gluckesburg test says that 14th Amendment protects only those rights which are firmly rooted in this nation’s history and tradition and implicit in the concept of ordered liberty. This, my friends, is utter bullshit.
The test is designed to maintain and promote a politically conservative viewpoint. What rights are firmly rooted in our nation’s traditions and history? Very few, and certainly none which would be called progressive today. One need only look at our nation’s history and tradition to understand how little validity there is in such a concept. Our nation’s history and tradition demonstrate a distinct lack of respect and consideration for anything that might be considered women’s rights. At the founding, women did not have the right to vote. As a tradition, women were largely seen as the property, or under the control of the husband. Woman could not hold elected office. It was not until the 20th century that all women had the right to own property. It is 2022 and the Equal Rights Amendment is still not in the constitution. Thus, women’s rights, understood broadly, are not firmly rooted in our nation’s history, therefore, the right to abortion, or better stated as the right bodily autonomy is not protected by the Due Process Clause.
If you look across U.S. history you will find numerous examples of oppression of people based on gender, race, religion, sexual-orientation, gender-identity and socio-economic status. To be fair, I think the trajectory has always been a slow (very slow) march (maybe crawl) toward greater freedom for all. But the road is littered with the detritus of our past prejudices, violence and oppression. When you look to history and tradition you will find little support for the rights of women, people of color and the LGBTQ+.
That is why Alito’s reasoning is bullshit. That is why we and our institutions are playing make-believe. The test is designed to ensure a particular outcome. It is result oriented. When you look to history and tradition you will always find support for a conservative viewpoint/outcome. Alito is rigging the game. Yet the Supreme Court and their GOP benefactors will pretend to be applying a doctrine of interpretation that protects the integrity of the Constitution. Make-believe. If you believe otherwise, then you are also lost in the land of make-believe.
The Supreme Court has other imaginative doctrinal tools as well. Originalism being the conservative majority’s favorite plaything. Originalists claim to interpret the Constitution in the same way it would have been understood by the drafters. 21st Century considerations be damned, let’s try to think like 18th Century-wealthy-landed-white-men. Most of the Constitution was drafted by 1791. Let’s be clear, culturally, scientifically, educationally, 18th century America is more similar to the time when women were burned at the stake as witches than it is to the 21st Century. When the Constitution was drafted people settled disputes with duels. Indeed, in a sitting Vice President killed a former Secretary of the Treasury in a duel! Originalists believe we should be taking our cues from men whose grandfathers or great-grandfathers might have been burning witches and shooting their political rivals. Men who owned slaves, and oppressed women. No doubt they were men of vision, but their vision was limited by the times in which they lived, their own prejudices and the limits of imagination.
In the 21st Century why would Supreme Court justices apply a doctrine so silly on its face? Because its pretend. It provides Judges and Conservatives a philosophical and doctrinal basis to support their pre-determined outcomes. It is a means to justify the ends.
Framing is another way the Supreme Court and Conservatives like to play make-believe. How the question or issue before the Court is framed will establish the outcome. The best example is the detestable decision of Bowers v. Hardwick. In that case the Court considered the constitutionality of laws that criminalized sodomy. The laws were intended and enforced to oppress homosexuals. The Bowers Court framed the issue as whether there was a constitutional right for homosexuals to engage in sodomy. Obviously, when framed that way the outcome is decided. The Court pretended that the issue was narrow and specific. The Court phrased the issue in a way to make the reader/public uncomfortable. In Lawrence v. Texas the Court overruled Hardwick and reframed the issue as the right to privacy and/or the right to engage in private consensual sexual conduct, which really was the issue all along.
Similarly in Dobbs, Alito and his conservative majority frame the issue as the right to abortion. But the better framing, as addressed by the Court in Roe and Casey, is the right to privacy and the right to privacy in decisions related to procreation. But that is not even the best or most accurate framing. The issue at stake is a woman’s right to bodily autonomy. The idea that a woman should have control over her own body should be incredibly non-controversial. It is 2022, it is truly insane that women no longer have control over their own bodies.
Justice Gorsuch is so committed to the land of make-believe that he has shown himself willing to make-up facts to justify his preferred outcome. The recently decided Kennedy v. Bermerton case involved a high school football coach who lost his job after a consistent course of praying on the football field with students after games. Justice Gorsuch states that the coach “offered his prayers quietly while his students were otherwise occupied.” According to Vox.com, this is a gross misrepresentation of the facts. Instead of a quiet prayer, the coach engaged in very public prayer at the 50-yard line, with members of his team, the opposing team and the public. It is a matter of the most basic common sense that a young football player with a desire to impress his coach and accumulate minutes on the field would feel compelled to participate in his coach’s prayer. That is the problem. It is not a coach’s private exercise of his religion, he is free to do that. It is the imposition of religion by a school official in a school event and the implicit coercive effect that has on a student. It is not about free exercise, it is about the school official impliedly establishing a religion in a school setting. Which is, quite obviously, a violation of the establishment clause.
The conservative majority on SCOTUS do not believe in their made-up doctrines. The play make believe with legal reasoning to justify arriving at the political or social outcome they desire. The Second Amendment is the example that proves the rule. Originalism cannot justify striking down reasonable gun restrictions. The founders did not and could not conceive of the technological advancement of modern weapons. The founders had muzzle loading muskets. We have semiautomatic AR-15s. The drafters did not contemplate easily firing 30 rounds a minute. Originalism fails for this reason, and a host of others. Thus, the Conservatives have look into their toy box of pretend doctrines to find another way to justify their predetermined outcome. Textualism is the preferred toy for the Second Amendment. The Constitution says “… the right of the people to keep and bear arms, shall not be infringed.” Therefore, by a textualist interpretation, laws restricting gun ownership are unconstitutional. Conservative Justices don’t believe in their doctrines, they believe in their outcomes.
So maybe you are asking yourself “What’s your point John?” The point is SCOTUS is now deeply and irreparably political (maybe it always was). It was intended to be above, separate and insulated from politics. SCOTUS is the most undemocratic of all branches of government. Once appointed to the Court a justice serves for life and without accountability. They cannot be voted in or out, and only one justice has ever been impeached. Thus, we are left with a profoundly undemocratic institution applying make-believe doctrines to ensure the predetermined political/social outcomes that are desired by its conservative majority.
The point is that I am tired of the make-believe. I am tired of the bullshit. The point is that it is past time we stopped pretending the Constitution and SCOTUS are sacred and reckon with the ways in which it no longer achieves its intended purposes. We need to look with open eyes and clear heads at the ways in which our system, our Court is failing us.
P.S. If you are reading this, and you feel it is worthwhile please share with others. I am writing because I feel a growing panic about the country my kids are inheriting. Thus, if you think my writing has value, please help me spread these ideas.
