Professor Vladeck Talks Progressive Legal Philosophy

Sarah and David talk about the First Amendment, 14th Amendment, Puerto Rico, and progressive legal ...

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Sarah and David talk about the First Amendment, 14th Amendment, Puerto Rico, and progressive legal philosophy. They start with a big Supreme Court case that makes David fall asleep, move on to Clarence Thomas’ musings, and then finish with an enlightening and interesting conversation with Steve Vladeck, law professor at the University of Texas, about the shadow docket, Kagan originalism, and much, much more. Oh, and David ends with a movie recommendation. Since his pop culture recommendations are infallible, you’ll want to listen to the end.

Show Notes:

–City of Austin v. Reagan National Advertising of Austin, LLC

–Hill v. Colorado

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  1. Avatar photo
    Jordan Caruso

    Was Prof. Vladeck accurate in saying precedent on Statutory Interpretation is “super-stare decisis”?

    I literally just took my Leg. Stat. Final today lol. From my own reading of the cases, stare decisis seemed to me at its weakest in SCOTUS’s statutory interpretation, at least since Scalia. It seems that the Court is constantly fighting back and forth between the weight of interpretive canons, even to the point that is undermined any institutional gumption to “check and balance” the legislative branch.

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  2. BrianM

    As a municipal attorney presently tasked with crafting an amendment to a sign code ordinance in a way that affects off-premises advertising, I appreciate Sarah's perseverance in bringing up the topic. And David's ambivalence about how to come down on it. So, your conversation at least served an audience of one! Maybe I'll tell Council to use their common sense and see what happens.

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    Whitman H. Brisky

    You didn't ask Professor Vladeck the ultimate question, granting that there are rights not written down in the Constitution, where do you find a right to abortion in the common law or elsewhere? Without grounding this in something, if not in the text or some pre-existing common law right, you can come out anywhere you want.

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    1. Avatar photocircle-angle-nib
      Sarah Isgur vertical-nib Author

      Interestingly there is lots of history on this in the Dobbs briefs. in particular state law in the 19th century often protected abortion at various stages. So it’s certainly not the case that abortion was universally illegal at the time of the founding. Neither was it universally protected to birth tho.

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    Whitman H. Brisky

    David, are you implying that, despite the weather ("Ithacation"), Ithaca is not a desirable place to live?

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  5. app

    The Professor’s comment that fetal personhood was above his pay grade was quite the tell. That’s the very problem with Roe.

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    Hawks Law Office

    In their recent book, The Original Meaning of the 14th Amendment, Profs. Barnett and Bernick set out an interpretation of the Privileges or Immunities Clause under which neither birth control nor abortion would qualify as a privilege or immunity because neither were (1) enumerated rights in 1868, (2) enumerated in the Civil Rights Act of 1866, (3) enumerated by subsequent constitutional amendment, or (4) rights that qualify as fundamental under Glucksberg v. Washington. Therefore, under their analysis, abortion would be at most a non-fundamental right that can only be protected as a "liberty" under the Due Process of Law Clause. In this regard, even CJ Rehnquist in Casey agreed that abortion was a liberty interest of the woman (see his dissent, 505 U.S. at 966). He just thought that rational-basis review applied so that the state's interest in fetal life would still prevail.

    Still, with respect to Dobbs, I think there is an originalist argument for a very limited abortion right under the Due Process of Law Clause, which goes like this: The "liberty" protected by the Due Process of Law Clause presumptively encompasses any individual right that does not conflict with the rights of other legal persons. Fetuses aren't persons under the Federal Constitution or in Mississippi, so the abortion right does not conflict with any fetal rights.

    Like enumerated rights, however, unenumerated rights (whether fundamental or not) are only prima facie or presumptive rights. To become protected rights, they must survive a challenge from a countervailing state interest, which will further depend on the applicable level of scrutiny.

    Abortion is therefore a presumptive right in Mississippi, but strict scrutiny does not apply because it is not a fundamental right under Glucksberg. Other personal autonomy rights, however, have received some form of heightened scrutiny (Meyer v. Nebraska, Pierce v. Society of Sisters, Griswold, and later Lawrence), so Casey was consistent with prior precedent when it settled on "undue burden" as a form of heightened scrutiny.

    So the key question is how much weight should the state's interest in fetal life be given when heightened scrutiny rather than rational-basis review applies. Here the originalist argument is that not all police powers are equal. Rather it is strongest when the state is protecting an individual right, but weaker when promoting a social value, even one as important as fetal life. Thus in states that have *not* granted fetal personhood, the non-fundamental liberty interest in abortion should prevail over the weaker state police power under a heightened scrutiny review. To date, only Alabama has amended its state constitution to create fetal personhood status. Ironically, Mississippi *refused* to grant personhood status by statewide referendum in 2011, so Mississippi should now lose in Dobbs

    Here is where it gets really interesting. In ruling against Mississippi, the SCt should also point out that neither Roe or Casey, nor any other SCt abortion decision for that matter, has ever addressed, much less decided whether a state can grant fetal personhood status under the 10th Amendment. Thus, the SCt should explicitly limit Roe/Casey to their facts (i.e. by leaving state fetal personhood status an open question) and let the states work through whether, and if so, how fetal personhood can or should be granted under their respective state constitutions.

    A fetal personhood case will then percolate back up through the courts on the 10th Amendment issue, at which point I suspect the SCt will find most state fetal personhood laws constitutional, except where the mother's life or health is seriously endangered (which Rehnquist indicated would not even pass rational-basis review). In effect, the SCt would be overturning Roe/Casey without overruling them, and they would remain good law, but *only* in states that fail to grant fetal personhood rights. Think of it as the "middle ground" solution that CJ Roberts was struggling to find at oral argument.

    I lay out the full argument here: https://www.supremecourt.gov/DocketPDF/19/19-1392/192609/20210916131541917_41445%20pdf%20Hawks.pdf

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    DougAz

    It's good. But America will never ever rest when the brilliant David French destroys the Constitution by calling a bunch of fetal cells... a person.

    That's the bitter, literally Christian fascist Theocracy I will forever and ever damn. You make women slaves. You take away their personhood, real, standing on 2 legs, speaking, breathing and put the Fascist Yellow Star on them in Texas. Ready to be arrested for crossing state lines and lined up under the barbed entrance sign... Gebären Mach Frei

    There is NO definition of a person in the Constitution.

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      Rjosephpaquette

      Wouldn't a lot of problems in modern law be settled if the constitution did have a definition of personhood?

      I almost don't care what it says--conception, heartbeat or birth--just settle the issue with an amendment so we can move past this constant struggle over what amounts to a medical, philosophical and religious question.

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        Hawks Law Office

        The issue that I am raising is whether, in the absence of a federal constitutional definition of "personhood," a *state* can adopt a state constitutional definition of "personhood" under the 10th Amendment.

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        JohnF

        If the constitution had actually defined "personhood", what are the odds that it would have excluded large portions of the population based on race and gender?

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        DougAz

        Sounds ideal. Probably would be a Civil war one way or the other

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    Ian Fillmore

    Regarding the billboard case, it sounds to me like there is a similarity here with Bostock. Justice Gorsuch said in Bostock that it's "discrimination on the basis of sex" if you have to consult a person's sex when implementing or enforcing a workplace rule. Similarly, it's "discrimination on the basis of content" if you have to consult the billboard's content when deciding whether the billboard is banned. Is this connection totally crazy?

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      Sarah Isgur vertical-nib Author

      Yeah that’s a smart point. The distinction (if there is a meaningful one) is that sex was the actual statutory term to be defined. The first amendment doesn’t mention content so you’re actually trying to interpret a judicial gloss on a constitutional limit which is a little more removed.

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    TJA

    RE: Professor Vladeck, the Founders and balancing competing rights

    I may be wrong in my understanding (not a lawyer, not a scholar), but the conclusion that I just heard Professor Vladeck come to in answering David's question about competing rights regarding abortion - that there is another person's rights involved - struck me as very odd. The Professor acknowledged that, at some point, competing rights come into play (without getting into the timing discussion about "fetal personhood"), and then went on to say that the Founders intended for the solution to these situations of competing rights questions to be determined in the courts. Wait, what?

    The competing rights at stake create a very real need to reconcile a situation which in an ideal world would see both parties rights sustained 100%. Unfortunately, the world we live in is not ideal, and has situations where legitimate rights come into conflict and we, as a self-governing people, need to balance those competing rights as best we can. Article 1 creates the means for doing that, through the people's representatives working through the arguments and coming to a conclusion. His rather off hand assertion that the Founders expected that work to be done for us, an otherwise self-governing people, through expropriation of the question by a group of Judicial Philosopher Kings, who apply their collective wisdom to tell us not what the law is, but what it should be strikes me as, let's just say, not exactly in line with where most folks think the founders were coming from on the whole self-governing people thing.

    This took me back more than 30 years to a college lecture hall, where Ronald Dworkin, in his "Taking Rights Seriously" class, made a similar argument. He was quite a cheerleader for Judicial Philosopher Kings dispensing "justice" as they see it. On the other hand, even such a staunch defender of reproductive rights as Justice Ginsburg marvelled at the "breathtaking" audacity of the court having taken that role upon itself (Ouch, that one leaves a mark...).

    I'm sure Prof Vladeck has forgotten more about law and the constitution than I'll ever know, but I'm still gonna throw the flag and hit him with 15 yards for Motivated Reasoning BS. Why? Because what I'm certain of is that the Founders did not write a Make-It-Up-As-You-Go-Along Platonic Guardian Clause into the Constitution. If he wants to claim that, he really ought to be asked to show his receipts.

    So, do you agree with the penalty as-called or, after further review, should we pick up the flag?

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    Blaine

    I loved the discussion over Justice Thomas' musings, which led me to some musings (albeit not as well-informed) of my own. I would love to hear a discussion over the President's legal authority to forgive student loan debt. And if there is a true controversy over whether POTUS has the authority to forgive the debt, is there an injured plaintiff with standing to test it in court? And if there is a plaintiff and a court determines he does not have that authority, what is the remedy? Would the court effectively reinstate debts for people who may have made other financial commitments in reliance on the President's actions?

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      Ian Fillmore

      Maybe Congress could sue and claim a Constitutional injury (i.e. the President usurped our authority by canceling debt)? Just spitballing.

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