WILL SAMUEL ALITO SEND CLARENCE THOMAS TO PRISON?

I know there was a dreadful racist-inspired massacre in Buffalo, and there is a horrific war going on in Ukraine, but I am obsessed with the Alito draft opinion reversing Roe v Wade. I have no doubt that it, perhaps with minor changes, will become the decision of this awful Supreme Court. I believe that will produce severe adverse consequences both for the court and for our citizenry. The Court will be seen for what is it--a body of religious zealots and politically dishonest extremists, and the citizens will suffer for it. Mothers, lock up your daughters!

I start my parade of horrors by referring to a Washington Post article that reported on a recent legislative hearing in Ohio in which a Republican state legislator sponsored a bill imposing an absolute ban on abortion, except if the mother's life was at risk. When asked in a legislative hearing what she thought about the consequences of her bill for a 13-year-old girl who had been raped, the proponent of the legislation responded, "This was an opportunity for this mother bring up a healthy child." 

My apologies to lawyers reading the rest of this piece who may find it an unnecessary repetition of some things they already know, even though they perhaps have not imagined the consequences of what they know.

Let's start with basics. The 14th Amendment of the United States Constitution reads, in part:

"No state shall … deprive any person of life, liberty, or property, without due process of law; nor deny any person within its jurisdiction the equal protection of the laws."

In 1973, in Roe v Wade, the US Supreme Court struck down a Texas statute that criminalized abortion. The Texas sentence for abortion providers, or anyone who assisted them, was up to five years in prison.

The legal reasoning adopted by the Roe court involved  language in the 14th Amendment precluding state action that would “deprive any person of… liberty… without due process of law… ."

Before deciding Roe, the court considered the reaches of that language. What did it mean to deprive a citizen of liberty without due process of law.? The court had earlier concluded that "liberty" meant more than just not being in jail. Lots more. Liberty meant the right to use contraceptive devices without interference from the state. Liberty meant marrying any person you wanted whether that person's skin was the same color as yours. Liberty meant that there was an area of privacy enjoyed by all individuals -- a zone that was free from state intrusion. And the boundaries of this zone clearly protected  "freedom of personal choices in matters of marriage and family life."

The decision in Roe was not unanimous. Justice Rehnquist dissented. He reasoned that in order to reach its result about that zone of privacy, "the court necessarily had to find within the scope of the 14th amendment a right that was completely unknown to drafters of the amendment"  And, he wrote,

"Since so many states had (in 1868) [some] restrictions on abortion, {restriction of abortion] is not so rooted in the tradition and conscience of our people as to be ranked as fundamental."

Justice Alito has adopted the language of the Rehnquist dissent almost word for word.  Applying the Rehnquist test, Alito rejects Roe because it was not an enumerated right in the Amendment, and in 1868 there were a number of state laws regulating abortion. Therefore, there was no 14th Amendment "liberty right" regarding abortion because when the Amendment was passed, a woman's freedom of choice was not ''deeply rooted in this Nation's history and tradition." (Duh, women's freedom to choose deeply rooted in our history and tradition? The men who drafted the Constitution and the 14th Amendment didn't even give women the right to vote until 1920!)

So assuming, as has been reported, the Alito draft prevails and is adopted by the court, we will have a clear declaration of what the new test is for whether a state prohibition violates a person's "liberty right" under the 14th Amendment: unless the challenged state law interferes with or intrudes upon conduct that was "deeply rooted in this nation's history and tradition" or as Rehnquist put it "so rooted in the traditions and conscience of our people as to be ranked as fundamental", then the conduct at question is not a "liberty right" protected by the Due Process Clause, and the state is free to prohibit and penalize it.

So here is Clarence Thomas' problem:: if the court expects the populace to respect its decisions, those decisions have to be based on law and consistency. Its called the "Rule of Law". It's what separates us from authoritarian dictatorships. For the Court to start rendering decisions that are not based on law and consistency, its rulings are political trash, and the court comes to be so disrespected that its decisions become meaningless drivel.

The Roe decision that personal matters affecting marriage and family life were within a zone of privacy protected by the Due Process Clause of the 14th Amendment – a zone into which the state could not intrude – was based on a number of important legal precedents, Including cases called Griswold and Loving.

In Griswold, the court struck down a Connecticut statute that criminalized the prescription of contraceptive devices for married couples. The use of contraceptive devices was clearly in the protected zone of privacy.

In Loving, the court struck down a Virginia anti-miscegenation statute that criminalized the marriage of a white person to a person of color. When that statute was attacked in the state courts, the Virginia Supreme Court held that the law was constitutional. The United States Supreme Court reversed and held that the anti-miscegenation statute intruded upon the zone of privacy provided by the Due Process Clause i.e. it was an infringement of a person's liberty without due process of law. Obviously, the court did not apply the Alito test that in order to be a violation of the due process clause, the conduct in question had to be "deeply rooted in this nation's history and tradition" or the Rehnquist test that the conduct had to be "so rooted in the traditions and conscience of our people as to be ranked as fundamental." I suggest there can be no argument that in 1868, interracial marriage was not "deeply rooted in this nation's history and tradition."

So, following the new Alito test, it is clear that Loving, Roe, Griswold (and others) were wrongly decided and should be reversed by this court. If the court does not reverse Loving, then I suggest it demonstrates conclusively that the Alito decision is not based on law, and consistency, but is based on religious and political zealotry. In other words, a disgrace, and a threat to our ordered Constitutional scheme.

I conclude with some hypothetical questions I put to a right-wing correspondent. He is an accomplished Ivy-League educated lawyer and well-versed in the legal tradition of finding and testing answers to legal problems via the process of asking hypothetical questions. Here were the ones I put to him: I await his answer:

Assuming this Supreme Court concludes that it is necessary for the maintenance of its integrity and respect to take up the Loving case, (as it took up the Roe case), and apply the new Rehnquist/Alito test, and therefore the court, as it must,reverses, its 1967 decision that reversed the Virginia Supreme Court decision that sustained Virginia's anti-miscegenation statute:

1. Does that automatically renew the vitality and effectiveness of the heretofore reversed Virginia Supreme Court decision?

2. If the answer to number one is yes, does that renew the vitality and effectiveness of the Virginia anti-miscegenation statute struck down by the now-defunct 1967 Supreme Court decision?

3. If the answer to number two is yes, will the Thomases, and the new justice-to-be Jackson, need to avoid traveling to Virginia, or any one of the other15 states with anti-miscegenation laws on the books, in order to avoid being charged with a felony?

4. If the Court does not take up Loving, or Griswold, or the other 14th Amendment due process "personal liberty" cases decided over the last 60+ years, (involving gay marriage, gay sex, etc,) does it not prove that when justices say they are not swayed by public opinion, they lie?

5. Because it is clear that several of the Alito-wing justices lied to get their court confirmations, do the current court lies surprise any objective person?

A bientot!

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