Making Sense of the Supreme Court Leak Part II

David and Sarah spend more time on the leaked draft opinion by Justice Samuel Alito ...

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David and Sarah spend more time on the leaked draft opinion by Justice Samuel Alito on Dobbs and ask the question: If Alito’s opinion holds, what does that mean for gay marriage? They also discuss last week’s Supreme Court ruling that the city of Boston violated the First Amendment by refusing to fly a Christian group’s flag and then discuss “After School Satan” more than any podcast in human history. They finish with a discussion of a great concurrence in an infuriating case.

Show Notes:

–G-File: “Why Joe Biden Hates Saying the A-Word”

–Sarah in Politico: “Abortion Might Not Be the Wedge Issue It Used to Be”

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  1. Avatar photo
    LeGrand Northcutt

    The Dobbs conversation was excellent, thank you. But can we talk about the fact that THEY STILL REQUIRE YOU TO LEARN LEMON FOR THE BAR EXAM‽‽‽ I’ll put my cards on the table— I am on team resurrect Lemon. Maybe not “on” the team, but I’d definitely play if I was called up from the minors because potential coercion is a big deal for me, and losing Lemon means losing a (yes, very imprecise) check against that. But if truly killing it means that future aspiring lawyers don’t have to answer multiple choice questions wrongly according to current precedent in order to get them “correct”, then I am all for it. Clarity in the law is much more important here.

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      LeGrand Northcutt

      Addendum— I had to go back in my notes from bar studying, but the exact quote from the lecturer was “today, the lemon test is in a kind of doctrinal coma— it may be alive, but it’s not actually accomplishing anything.” I like the un-dead analogies better, but this one was also a gem worth writing down.

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    Ryan Johnson

    If Justice Alito has lost the joy of supreme courting, then maybe he should listen to this album by Ben Rector that describes losing and regaining the joy of music. https://youtu.be/p0WKrsj4yoQ
    If my wife goes into labor before Saturday, then we won’t need our Ben Rector tickets in Indianapolis, and in that case I would be happy to give them to Alito. :-)

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  3. Dr. JSH

    RE: “Abortion Might Not Be the Wedge Issue It Used to Be” in Politico

    "But most Americans are unlikely to support elective abortions at 39 weeks."
    Why do pro-life supporters say things like this?
    IT NEVER HAPPENS.
    No health care provider would ever induce an abortion so late in pregnancy. It's just an out-of-this-world claim. I don't care what a state law permits. Laws are written by politicians who are prone to bravado to make a point ("We're so pro-Roe we'll allow abortion any time up to labor and delivery!") No ethical doctor would ever do the procedure then, and frankly no reasonable woman would request an abortion at 39 weeks.
    Only 1% of abortions in the United States occur after 21 weeks. Those that do happen are due to fetal abnormalities that make infant survival (nearly) impossible. But at 39 weeks? No.
    Also a scurrilous term: "abortion on demand."
    Who walks into a clinic, says, "I want an abortion right now," and gets rushed into a procedure room to have an abortion no matter the gestational age of the fetus?
    IT NEVER HAPPENS.
    This abuse of language makes discourse nearly impossible, and pro-life advocates do their best to control the conversation. Supreme Court activist justices (the conservatives, it's ALWAYS been the conservatives) do justice no favor by being overtly sympathetic to Christian religious beliefs and using their jargon.
    Sorry, Alito, but a fetus is not an "unborn child," It's just not. The notion that a zygote (fertilized egg) is an unborn human being is preposterous. It just is. What's even more absurd is the claim that "unborn human beings" are guaranteed full constitutional rights due to the Equal Protection Clause. Have these people ever read the Fourteenth Amendment? The very first words are "All persons BORN in the United States..."
    To believe a fertilized egg is an unborn child requires at least a willing suspension of disbelief, if not faith. So is the claim that girls and women "murder" the "life of the unborn person" inside them. All of this talk is completely irrational and should have no place in laws and regulations.
    "We are a nation of laws, and not of men" and certainly not of God. Gorsuch, who passed the religious test of the self-named "Catholic mafia" led by Leonard Leo, is absolutely wrong in his concurrence in Shurtleff v. Boston. His (and other Federalist Society judges') interpretation of our ACTUAL first freedom -- the Establishment Clause --is revolutionary and handy for Christian nationalists.
    Gorsuch and those who agree with him are a very tiny minority of Americans. His rant "why did Boston believe there is a separation of church and state" is strange because most Americans cherish the wall of separation and want to keep it high and strong.
    People who are seldom on the receiving end of discrimination are notorious for their lack of empathy. Gorsuch sees no problem with a Latin cross on a state seal, prayer to begin government meetings, and city-organized passion plays in public parks. Presumably he would be fine with the recent revival meeting held during school hours at a Virginia school and the Texas judge who invites a minister to lead the court in prayer every day after saying, "Rise with me."
    And Gorsuch mocks Americans who resent this (what we continue to regard as) unconstitutional encroachment of church on state as overly sensitive drama queens who are itching to make trouble to persecute Christians. The opposite is the reality.
    It's politicized Christians who are vehemently against religious liberty. These people believe the United States is a Christian nation, ergo they have special status. Many even claim the Free Exercise Clause applies only to them and the Establishment Clause applies only to "false religions," including Christians who don't sufficiently overlap with their theology.
    The original meaning of the Establishment Clause is crucial for Alito's draft abortion opinion. Pigeon-holing the Establishment Clause as only keeping the government out of church affairs is very convenient for activists who long for Christendom. But it's a lie.
    The Establishment Clause's original meaning guarantees the religious liberty of not having TYRANTS (James Madison's word) legislate or ADJUDICATE their religious proscriptions, thereby making SLAVES (Madison again) of who are purported to be a Sovereign People. Politicians and judges abuse their authority by making their religious beliefs law. The People cannot debate a deity's mandate. We cannot outvote the supernatural. Instead we are trapped by "God's law" we never consented to and are no longer free.
    The focus of the anti-Roe agenda is life begins at conception, God knows every hair on the head of an "unborn person" in the womb, "I knew you when you were made" and on and on. Those who claim the push to abolish abortion, even for rape and incest, is not religious aren't fooling anyone. It's a belief in the supernatural or the miraculous, if not the Christian version of God, and should have NO place in a Supreme Court decision, particularly when the Supreme Court majority was personally chosen (and unconstitutionally stolen) by the above-mentioned "Catholic mafia" (their name, not mine).

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      ToneyLady

      The founders were very aware of the damage the wars of religion - which were about whose brand of Christianity was correct, but also about wealth, glory, and temporal power - had done to the European continent, and the ways that monarchs of their time used “divine right” to prop up their rule. Thus, the Establishment clause. Well said on all points, start to finish.

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  4. Avatar photo
    OK Steele

    This was a really enjoyable conversation.

    As someone who thinks of themselves as a textualist I still find it important to question one’s own beliefs. Something I’m caught up on is that the 9th amendment is as broad and ambiguous as a law can be written. Obviously purposefully so. Ambiguity obviously opens it up for judicial interpretation.

    To me it seems to have been written with the intention to include ANYTHING that was forgotten in the bill of rights, (with some limiting principle obviously.) With Alito’s interpretation, I read him as basically saying a right has to be steeped in the history and tradition of American liberty to be considered an unenumerated right, and as someone who believes in small government, and individual liberties, I don’t like the idea of cabining the 9th amendment with this particular limiting principle.

    I can see how Roe and Casey misinterpreted the 14th amendment, but it doesn’t at all seem ridiculous to me to interpret that the 9th amendment can be open to rights not traditionally understood as right when the constitution was written. It almost feels like the amendment was intended to include rights both that they forgot, and that they couldn’t yet imagine that Americans may want in the future.

    I’m not trying to make a case for abortion (although I think it fits in my interpretation) as much as other rights not steeped in the history and tradition of American liberty more broadly. I’ve been influenced greatly by the writing of Frank S Meyer the subject of liberty, and the basic idea that regardless of your moral interpretation of some rights and liberties, you must protect them for the sake of procedural liberalism in general.

    I’m a legal novice. Currently studying for the LSAT. With this complete lack of experience I realize how much of this argument may be flawed or how much of a lack of understanding I may have for certain aspects of the things I’m talking about. Would love to hear where and how I’ve gotten this wrong. Or just other reader/listeners interpretations of the ideas I’m referencing.

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    Faraday

    A thought on the source of the leak. A few reports seem to show the Whitehouse is ambivalent towards any investigation into the leak itself. Could the leak be from the Whitehouse? Could a staffer go over and be able to see these documents in situ as it were? Just my tin foil hat catching its breath.

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    Jack

    Is marriage really a more important decision than DC vs Marvel?

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    Troy Ault

    I’m hoping someone can clarify for me: David speaks here and on Dispatch live to a longtime conservative talking point - that the court “made up” the right to abortion and that no reasonable reading of the due process clause of 14A could find such a right. But the progressive conception of the issue (a woman’s individual and corporeal liberty) does, to me, read as a reasonable interpretation of “deny liberty without due process of law”. It just happens to ignore the conservative conception of the issue, which considers the unborn child to be a life that enjoys the protection of law. But why am I wrong to think of both as defensible arguments that simply fail to acknowledge the other’s premise? Is there some verbiage in Roe that does find “abortion,” specifically, as an unenumerated right vs the 14A, corporeal liberty route? Thanks I’m advance to anyone who can shed light on this for me!

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  8. Kathy Kattenburg

    Sarah makes the best nonverbal disgust sounds.

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  9. Avatar photo
    Whit Waldo

    Sarah's Dispatch episode a few weeks ago, "Let's Talk About Sex", came to my mind in a big way while listening to the last two Advisory Opinion episodes and I wanted to see if I couldn't toss another take on this out there.

    While I thought Sarah raised a lot of good points about consent not being the end-all in that podcast, I think there's a strong argument to be made that abortion similarly should boil down to a woman's consent, just as sexual activity does. If a woman has the right to engage or disengage from sexual contact at any time because she's in control of her body, why doesn't she similarly have the right to freely disengage from a pregnancy in the same manner?

    Sure, no woman proactively consents to getting pregnant or not - it's a chance event that occurs with or without one's full opt-in, and there's a chance that she'll be unable to carry it to term even if fully committed.

    But this conflation that just because a woman consents to have sex, she fully and wholeheartedly should embrace the notion of also getting pregnant without recourse doesn't make sense, particularly if she's taken additional steps indicating that she clearly does not wish to get pregnant: taking birth control, using a condom, having an IUD installed, etc.

    Alito says that this is sharply different because there's another human's life involved, but does the other human's life that completely override the will of the woman carrying it?

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      ToneyLady

      Not to mention that there are a wide range of beliefs out there in different religious and non-religious traditions about at what point one should consider that another human life is truly involved. Jewish religious tradition is that life doesn’t begin until the first breath (and many of my Jewish friends are very vocal about this). There’s a big problem with taking one sect of Christianity’s definition of when life begins and applying it as the standard for a sweeping declaration that affects every American of every religion (and of no religion).

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  10. Tngraham

    Good episode, as usual. Although Sarah is right that David tends to rate most of your episodes alike as great, David is also right, because most of them are actually quite good.

    It is a testament to Sarah's abilities that, despite being more aligned with David by background and general outlook, 4 out of 5 times when they disagree I tend to think she is right. One of the apparent disagreements between them today (I'm not sure whether it was a real disagreement; there are times I kind of wonder whether Sarah is playing devil's advocate) was about whether the fact that women didn't have equal rights, including the right to vote, during the period in which the Common Law made abortion (especially post-quickening abortion) a crime implied that those rules ought to be considered presumptively invalid so that a right to abortion ought to be considered an unenumerated right under the Fourteenth Amendment substantive due process doctrine. She also seemed to imply at one point that the Common Law proscription of abortion should be deprecated on the basis of the fact that one of the cases against a woman for abortion was prosecuted by a man who also prosecuted a woman accused of being a witch. I thought David did a pretty good job articulating why Sarah isn't right on these things, but I think a few more things could be said in support of his argument.

    First, with reference to impugning the Puritan judge for prosecuting abortion because he also prosecuted witchcraft cases, in general it is not good practice to deprecate all of a person's decisions or actions on the basis of his or her having been wrong on one particular issue, particular when those beliefs were common when the person lived. That is, the fact that he was wrong about witchcraft cases does not by itself that what he thought on abortion was necessarily wrong.

    Second, with regard to deciding that (pre-quickening?) abortion is an unenumerated fundamental right on the basis of the fact that women had no say in the matter at the time the Common Law on abortion was being made is, to my way of thinking, bad practice. Women also had no say in Common Law proscriptions of murder, theft, and many other things. We don't suddenly decide that there is a presumption in favor of those being Common Law rights because not everyone who later acquired political rights was involved in the decision that they were crimes at the time. Indeed, one of the human beings affected by the abortion decision (to wit, the unborn human being) still has no say—and can't speak, for obvious reasons—in whether abortion ought to be legal. So declaring historical norms presumptively invalid because they were established when not everyone had political rights is problematic. Instead, to the extent that we decide that we think a law has become outdated or is wrong, the proper thing to do is to enact new law through the ordinary processes, whether of legislation or of constitutional amendment. Moreover, there are probably at least as many women in the United States who are opposed to abortion rights as who are in favor of them. Are those who are opposed to them to just be overruled by those who are in favor of them because no women had a right to vote when the Common Law proscriptions on abortion were being applied? Why should the views of pro-abortion women trump the views of anti-abortion women? In short, even with the difficulties about the status of women's historical lack of equal civil rights, it still seems far wiser to require that changes in law be made through legislation and not through the personal opinions of a few judges who are chosen for legal acumen, not for exceptional moral insight.

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