SCOTUS Watch: An Activist Radical Republican Court Detached From The Majority Of America

On Monday, the U.S. Supreme Court issued the first of its “major” decisions remaining on the watch list, Carson v. Makin. This case was a challenge to the constitutionality of a Maine program that pays tuition for some students to attend private schools when their own school district does not operate a public secondary school.

This case is the logical finale of the “holy trinity” (pun intended) with two earlier so-called “religious liberty” cases, Trinity Lutheran v. Comer, and Espinoza v. Montana Department of Revenue, that began tearing down the wall of separation beteen church and state. As I posted earlier, the Radical Republican Supreme Court Tears Down What Remained Of The Wall of Separation And Church And State.

Chief Justice Roberts has essentially read the establishment clause out of the First Amendment, and formulates a radical vision of the free exercise clause. The Christian Nationalists on the U.S. Supreme Court (curiously all of them Catholics, not evangelicals) are laying a foundation for a White Christian Nationalist America that the Founding Fathers sought to prevent with the First Amendment, given their recent experience with centuries od sectarian religious wars in Europe.

Reading clauses out of the Constitution with which they disagree is a trademark of activist radical Republican justices. And yet they dare to call themselves “originalists” and “textualists.” They are damn liars.

Years ago, Justice Antonin Scalia read the operative clause of the Second Amendment, “A well regulated Militia, being necessary to the security of a free State,” entirely out of the Constitution to focus solely on the dependent clause “the right of the people to keep and bear Arms, shall not be infringed,” to find an individual right to “keep and bear arms” in District of Columbia v. Heller. Scalia even advanced a fictional history of gun regulation in America, and overruled longstanding state and federal court decisions to support the view of the gun lobby. It is one of the most dishonest opinions ever by a Supreme Court Justice (and four of his Republcian colleagues).

Which brings me to today’s opinions.

Today began with 13 cases yet to be decided this term.

Today is also Justice Clarence Thomas’ birthday and he gave himself something of a birthday present by extending his friend Justice Scalia’s complete dishonesty in Heller even further today in New York State Rifle & Pistol Association, Inc. v. Bruen.

Supreme Court reporter mark Joseph Stern explains, Clarence Thomas’ Maximalist Second Amendment Ruling Is a Nightmare for Gun Control:

The Supreme Court commenced a revolution in Second Amendment law on Thursday, striking down New York’s strict limits on concealed carry in a maximalist opinion by Justice Clarence Thomas that renders most of the nation’s gun control laws presumptively unconstitutional. The decision will unleash a tidal wave of lower court rulings invalidating laws designed to protect Americans from the carnage of gun violence. And it will stymie current efforts to reduce that violence through innovative new solutions to this epidemic. For gun control advocates, it is the worst-case scenario.

Thursday’s decision, New York State Rifle and Pistol Association v. Bruen, involves a challenge to New York’s restrictions on the carrying of concealed firearms in public. Like seven other states, New York bars residents from obtaining a concealed carry permit without some elevated need for self-defense. Thomas, joined by the other five conservative justices, invalidated that law as a violation of the Second Amendment. In doing so, he dramatically expanded the scope of the court’s previous gun decisions, which limited the right of self-defense to the home.

This is the so-called Castle Doctrine (also known as Castle Law, Defense of Habitat Law), state legal defense laws that gives citizens in their homes/abode, and in some states, cars or workplaces the right to protect themselves, other people, and their property by force, in some instances even deadly force without the consequences of legal and civil responsibility or criminal persecution.

Before Thursday, 83 million people—or about one in four Americans—lived in a state with stringent limits on concealed carry. After Bruen, zero do.

But Thomas did not stop there. In striking down New York’s restriction, the justice also established a new standard for evaluating gun control measures. First, he asked whether a law interferes with rights protected in “the plain text” of the Second Amendment—specifically, the right to self-defense (which is not actually in the amendment’s text). If so, Thomas explained, that law is presumptively unconstitutional. The government may only save it from invalidation if it can prove that the regulation “is consistent with this nation’s historical tradition of firearm regulation.”

In other words, courts may no longer rely on empirical evidence in upholding gun control laws. They cannot, for instance, cite the heightened lethality of a particular weapon. Such data is now irrelevant. Rather, they can only ask whether there is some “historical analogue” from 1791 (when the Second Amendment was ratified) or 1868 (when the 14th Amendment was ratified, applying the Second Amendment to the states). One might assume that this analysis would only shield weapons that were in common use in 1791 or 1868. But Thomas clarified that “any modern instruments that facilitate armed self-defense” are also protected under the Constitution, even if they did not exist until recently.

Note: A comment from “Publius” on the live feed of opinions at SCOTUSblog this morning: “Does anyone else think it is odd that SCOTUS says that the 2nd Amendment is not limited to only firearms that existed when the Constitution was adopted, but the only restrictions on the 2nd Amendment must’ve been around when the Constitution was adopted?” This captured perfectly how Justice Thomas is just making shit up, or call it Calvinball: Calvinball has no rules; the players make up their own rules as they go along.

This approach overrules the test used by many courts of appeals in assessing gun restrictions, creating a new, incredibly demanding standard for the government to satisfy. Previously, these courts engaged in what Thomas dismisses as “means-end scrutiny,” asking whether the law is carefully tailored to promote an important state interest. Countless other rights are assessed under this standard. Thomas, however, declared that it is an inappropriate test for firearm laws, because “the people” already decided that they hold a presumptive right to bear arms when ratifying the Second and 14th Amendments.

After laying out this new test, Thomas easily concluded that there is no historical analogue that saves New York’s statute from invalidation. To do so, he ignored ample history indicating that states have long imposed similar restrictions on concealed carry. Instead, he cherry picked his own preferred sources to build a misleading narrative of the United States as a libertarian paradise in which gun regulations have always been the exception, not the norm [as did Scalia in Heller]. “Apart from a few late-19th century outlier jurisdictions,” he wrote (falsely), “American governments simply have not broadly prohibited the public carry of commonly used firearms for personal defense.”

It is difficult to overstate the consequences of Thomas’ decision. In a single opinion, the justice has abolished the ability of courts to consider the real-world impact of firearms when evaluating limitations on their sale and use. No longer may cities and states enact new restrictions motivated by, for example, a surge in mass shootings, and cite the need to protect their residents as justification. All these facts are now immaterial. Any government attempting to impose gun control must scour the history books for some historical analogue. Of course, that analogue might not exist, because modern technology has made guns vastly more powerful and deadly, and the exponential growth in population creates new challenges that were not present hundreds of years ago. And even if the government can find an analogue, it must pass Thomas’ Calvinball test, which dismisses all historical evidence in support of gun restrictions.

There is only one potential limiting principle on Bruen: Justice Brett Kavanaugh’s concurring opinion, joined by Chief Justice John Roberts. Kavanaugh, obviously aware of the extreme consequences that would flow from Thomas’ approach, tried to make the opinion sound more modest than it actually is. He clarified that states can still require licenses for concealed carry permits that may include “a background check, a mental health records check, and training in firearms handling.” And he added that a “variety” of gun regulations remain permissible, though cited only exceedingly modest measures such as “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.” It is difficult to reconcile Kavanaugh’s concurrence with substantial portions of Thomas’ opinion, and thus hard to know how seriously to take it. Moving forward, gun control advocates’ best hope is that Kavanaugh and Roberts will not follow the strict logic of the majority.

Even if these two justices do tap the breaks down the road, the upshot of Bruen will be devastating. There is clear evidence that permissive concealed carry regimes lead to substantially higher rates of gun homicides without protecting victims from crime. Relaxed concealed carry laws are closely correlated with higher violent crime and more gun deaths. But that’s just the beginning of the fallout. Thomas’ opinion strongly suggests that myriad other restrictions, such as bans on assault weapons and high-capacity magazines, may also be unconstitutional. At a bare minimum, he has given conservative lower courts a blank check to strike down such laws left and right. Even if the Supreme Court never decides another gun case, Bruen alone ensures that dozens of gun control laws will be invalidated by these courts.

No amount of increased gun violence will change the court’s mind; it has already announced that deaths from firearms do not matter. As Justice Stephen Breyer noted in dissent, it is no longer permissible for judges “to consider the serious dangers and consequences of gun violence that lead states to regulate firearms.” (Justice Sam Alito, infuriated by Breyer’s reference to real-world violence, asked, how he could “account for” the recent mass shootings in Buffalo, quipping: “The New York law at issue in this case obviously did not stop that perpetrator.”)

Note to Alito: The Buffalo shooter did not have  concealed gun, but an AR-15, so no, it is not “The New York law at issue in this case.” Justice Alito’s callous disregard for human life in defending the gun lobby speaks volumes about his soullesss lack of character and judgment.

On Thursday, Thomas and his fellow conservatives threw the United States into a frightening experiment: What happens when the people are no longer allowed to protect themselves from mass slaughter through their elected representatives, and are left at the mercy of unelected judges who do not care if they are shot to death?

Let that sink in for a moment. Guns are now sacrosanct. Human life is not. I’m not sure how these six radical Republican Justices can square this with their overturning of Roe v. Wade, asserting that the life of a fetus is sacrosanct – until once it is born, and then welcome to the great shooting gallery of America. Good luck surviving, baby!

In other opinions today, in Berger v. North Carolina NAACP, an 8-1 decision with Justice Sotmayor dissenting, Justice Gorsuch writes for the majority. The question in this case was whether a pair of Republican legislators in North Carolina can intervene to defend the state’s voter-ID law when the state’s Democratic attorney general is already defending the law. The majority answers yes. Held: North Carolina’s legislative leaders are entitled to intervene in this litigation.

Gorsuch explains that the state “has expressly authorized the legislative leaders to defend the State’s practical interests in litigation of this sort.” Gorsuch adds that “a presumption of adequate representation” — i.e., that the legislators don’t need to intervene because the AG is already in the case — “is inappropriate when a duly authorized state agent seeks to intervene to defend a state law.” This case, Gorsuch says, shows “how divided state governments sometimes warrant participation by multiple state officials in federal court.” The legislators, Gorsuch continues, have different interests to represent than the state Attorney General in defending the law.

Note: A comment on the live feed of opinions at SCOTUSblog this morning explains the importance of this opinion: “The decision in Berger is pretty monumental for those of us who work with state legislatures. Even when the majority party in the legislature is the same as the AG, there are different interests (as was mentioned). This opinion appears to give a presumption that legislators do have the presumptive authority to defend the laws they wrote. If so, that is a major development as third party groups can join as intervenors on behalf of the legislators.”

In Nance v. Ward, a death row inmate case, the court was narrowly divided in  a 5-4 decision. The prisoner, Michael Nance, is on death row in Georgia, where the only authorized execution method is lethal injection. Nance says that a medical condition will cause his veins to “blow” from a lethal injection, creating a risk of debilitating pain. He has requested the firing squad as an alternative method, a method not authorized in Georgia.

This case involves a procedural question by which procedure an inmate must raise his challenge to the method by which the state intends to execute him. The majority holds that an inmate can still bring a federal civil rights claim for his method-of-execution claim.

Justice Barrett, for the dissenters, says that the inmate should have to bring his claim under federal habeas law rather than a Section 1983 civil rights claim.

The final opinion released today is Vega v. Tekoh, a 6-3 decision with the “usual suspects” alignment. Justice Alito writes for the majority to limit Miranda rights. the majority opinion holds that a violation of the Miranda rules does not provide a basis for a §1983 claim.

Alito writes “Miranda did not hold that a violation of the rules it established necessarily constitute a Fifth Amendment violation. That makes sense, as an un-Mirandized suspect in custody may make self-incriminating statements without any hint of compulsion. The Miranda Court stated that the Constitution did not itself require “adherence to any particular solution for the inherent compulsions of the interrogation process” and that its decision “in no way create[d] a constitutional straitjacket.”

“[In] sum, a violation of Miranda does not necessarily constitute a viola- tion of the Constitution, and therefore such a violation does not consti- tute “the deprivation of [a] right . . . secured by the Constitution” for purposes of §1983.”

Justice Kagan dissents, joined by Justices Breyer and Sotomayor. Kagan writes: “The majority’s argument is that ‘a violation of Miranda does not necessarily constitute a violation of the Constitution,’ because Miranda’s rules are ‘prophylactic.’ The idea is that the Fifth Amendment prohibits the use only of statements obtained by compulsion, whereas Miranda excludes non-compelled statements too. That is why, the majority says, the Court has been able to recognize exceptions permitting certain uses of un-Mirandized statements at trial (when it could not do so for compelled statements).”

Kagan contends that Miranda confers a right, and that the Court’s decision today “strips individuals of the ability to seek a remedy for violations of the right recognized in Miranda.”  “The majority here, as elsewhere, injures the right by denying the remedy,” Kagan concludes.

This leaves nine opinions to be released by the court. In a rarity, the Court will issue opinions on Friday. There will be additional opinions issued next week, the last week of the term.

Stay tuned.