It's important to view Alexander as a real and actual sequel to Dobbs and to see that the conduct of the majorities in both decisions is fundamentally (and obviously) anti-constitutional, and it is about something even more fundamental and essential than skin color. Look at the Dobbs opinion and see how many times it uses the words "moral," "belief," "believe" or "view" and look at the words around those words. That is what Alexander was intended (by the SCOTUS majority) to protect and entrench.
The SCOTUS majority (and the state legislators they empowered) in Alexander and in Dobbs are rather flagrantly doing nothing more and nothing less than imposing their own religious and political views on people who do not share their religious or political views. That is powerfully opposed by the First Amendment (and copious SCOTUS precedent construing and applying the First Amendment regarding freedom of religion and freedom to think and live as we wish) (essentially, as the Declaration of Independence says, our right to life, liberty and the pursuit of happiness).
If the Dobbs and Alexander majorities had focused on what was in our Constitution (what it actually says and clearly means), I'd have no problem with those decisions. I was a paratrooper. I served this nation for a long time in dangerous and unpleasant places. My brothers and I sacrificed a lot of our liberty and happiness for this nation. Many of us sacrificed our health. Some sacrificed their lives. I understand that nations (as societies) get to make decisions that disproportionately affect some citizens' lives. I accept that concept, but only to the extent that it actually did what my oath (and the oath of every federal judge) said, i.e., "support and defend" our "Constitution." I'm also a lawyer and I've studied a lot and thought a lot about our Constitution and our early history. I think about our Constitution as a lawyer, a soldier and a citizen. I know that, as a matter of law, judges are no less bound by their oaths than soldiers. Our oaths are our promises to the people we serve, our promise that in everything we do we always will "support and defend" our "Constitution."
It is obvious that supporting and defending our Constitution is not at all what SCOTUS did in Dobbs or in Alexander (and that's not what state legislators are doing). They supported and defended parts of our history that were consistent with their own religious and political views. In Dobbs, in particular, they used a lot of irrelevant history to deceive us about our Constitution, and they ignored the relevant history.
The relevant text and meaning of our Constitution and our relevant history really are quite straightforward and simple. They also were remarkably brutal and bloody. Throughout our early history, a huge number of Americans accepted that some people can treat other actual people (men, women, children) as well as fetuses as property (consistent with our Constitution).
The 14th Amendment clearly and emphatically says all "persons" who were "born" in the U.S. (or born somewhere but "naturalized" in the U.S.) are equal under the law and equally protected by the law. So now, some people cannot treat other people as their property. Even so, the Constitution clearly does not say (or mean) that state legislators (or SCOTUS) can rob people (who actually were "born" or "naturalized" in the U.S.) of their protection under the Constitution to protect any fetus (which clearly is not a "person" who was "born" anywhere).
With the 19th Amendment, our Constitution finally expressly and specifically acknowledged that women were fully first-class citizens (fully "persons" and "citizens" (fully part of "the people") as those terms were used in the Constitution). The fact that the 19th Amendment even was required is a massive red flag about the history and people on which Justice Alito and his gang love to rely. The letter and spirit of the 14th Amendment clearly commanded protection of all "citizens" regarding their "privileges or immunities" and "due process of law" and "equal protection of the laws" for every "person." Yet, the people in power (state legislators and judges) pretended "person" and "citizen" did not actually mean women. The originalists' own logic condemns their own deceitful conduct in relying on a history of obviously and irrefutably unconstitutional conduct.
The view that actual "persons" and "citizens" can make their own decisions about their own lives and bodies (and treat their own bodies and everything in them, including fetuses, as their property) is perfectly consistent with the text and meaning of the original Constitution, the Bill of Rights, and the 13th, 14th and 19th Amendments and with a lot of our history before and even after the 14th Amendment. If anyone truly believes that the opposite view is consistent with those parts of our Constitution (and our history until well after the 14th Amendment), please show me how.
It's a good idea to keep in mind that there are legitimate reasons to state such a presumption (as the dissenting justices in Alexander emphasized). But stating such presumption never should be used (as the majority used it in Alexander) to imply more than that some evidence is required that legislators were motivated by intentions that were not "good" (e.g., not consistent with statutes or a state or federal Constitution). See "The proper response to this case is not to throw up" (So Says SCOTUS Dissent to Alito Gang's Lies) https://blackcollarcrime.substack.com/p/the-proper-response-to-this-case?r=30ufvh
The original sin of the modern conservative movement is building legal and widespread infrastructure that acts as a cover for people who do not want to participate in pluralism. For too long, legal and media voices have ignored this reality of the conservative legal movement and then criticized people who go too far down the path of voicing that concern about modern conservatism. The result is a loss of our democracy. Once again, naively thinking that harming one group can be ignored has turned out to be dangerous for all of our collective rights.
This is a notice to Black Americans as well as LGBTQ Americans that the forthcoming election has more to do with your civil rights than ever before. A Biden victory will ensure that upcoming Supreme Court nominees will help offset the lopsided, conservative leaning court that has produced so many ridiculous decisions led by Alito and Thomas. A Biden victory will set a course for strengthening our democracy and protecting everyone’s rights for generations to come. Vote Blue!
Anybody and everybody in America who cares about their own rights or our Constitution should vote against Trump if he's a candidate. If he proved nothing else on Jan. 6 it was that he could not care less what the Constitution says or means. The SCOTUS majority are writing opinions with a shockingly similar theme.
We should believe Trump (and not believe any SCOTUS justice who says he has immunity from Congress and federal law for what he did). Invoking the experiences of the German generals that Trump invoked isn't inappropriate. Within about 13 years, Germany went from being relatively free (and phenomenally militarily and technologically superior) to tyranny and then to totally trashed.
And how long after stripping the LGTBQ and people of color communities of their rights do you think it will take for them to strip ALL of us from any rights remaining? Not long. Vote Blue down the ticket!
The only reason the High Court of Chancery didn't have a case about redrawing district lines--which is, of course, injunctive relief, is that in 1789 there weren't any CASES about voter districts. Nobody much cared about who could vote in England until the Reform Acts of the 1830s. Thomas just ignores what power the courts of equities actually have. And yes, the "presumption of good faith" of the legislatures is pure invention as well as poppy-cock. Even in Shelby the court overturned the "pre-qualificiation" requirement because the choice of what states were covered depended on 40 year old data. It didn't "presume" anything about the faith of the legislature: it just said you need more updated evidence of bad actions. The key thing about Alexander is not the gerrymandering aspect, bad as it is, but the usurpation by the court of the job of the trier of fact. Looks like we are heading towards One Court To Rule Them All, down to deciding who did what to whom.
Creative 303 has always blown me away because after all the Sturm und Drang the actual holding was simply that you can't force someone to sell something that is against your religious beliefs. That's been the law for forever: no one can force a hijab company to make rosaries, and no one has ever tried. The decision has been taken to hold that one can refuse service to someone with a different belief, but that's not what the court actually held and it repudiates that interpretation in a footnote. You STILL can't say "no blacks allowed" or "no LGBTQ folks allowed." Even if Stewart or someone HAD inquired about a website for a gay wedding, if they accepted all the Christian guff the designer wanted to put on such a website, the owner would not have been able to turn them down.
It is a very valid point (and important) that SCOTUS justices are being deceitful (about facts and law), as well as that the same justices are granting certiorari and issuing a remarkable number of decisions to expressly protect and entrench their own religious and political views. Even so, it's not a good idea to believe that the "Kennedy and 303 Creative" decisions "expanded the reach of the First Amendment to maximize protection for one group only — conservative Christians."
Kennedy and 303 Creative should be read as explaining and applying the Constitution's protections for our freedom of conscience and freedom to think and speak as we wish (free from discrimination by any state or federal official). It's far better to set the Christian context aside and think about how those decisions were contrary to Dobbs and Alexander. What the justices in the majorities wrote in Kennedy and 303 Creative should be contrasted with what the same justices did and said in the majority opinions in Dobbs (empowering state legislators to create laws that support their own "moral" "belief" or "view," i.e., what people "believe" about life) and Alexander (empowering state legislators to discriminate against voters based on "partisan" (political (and often religious) views). It's better to use those decisions than (only) attack them. See, e.g., Sam's Club (SCOTUS) Says Separate-But-Equal Is Cool https://blackcollarcrime.substack.com/p/scotus-says-separate-but-equal-is?r=30ufvh
It's important to view Alexander as a real and actual sequel to Dobbs and to see that the conduct of the majorities in both decisions is fundamentally (and obviously) anti-constitutional, and it is about something even more fundamental and essential than skin color. Look at the Dobbs opinion and see how many times it uses the words "moral," "belief," "believe" or "view" and look at the words around those words. That is what Alexander was intended (by the SCOTUS majority) to protect and entrench.
The SCOTUS majority (and the state legislators they empowered) in Alexander and in Dobbs are rather flagrantly doing nothing more and nothing less than imposing their own religious and political views on people who do not share their religious or political views. That is powerfully opposed by the First Amendment (and copious SCOTUS precedent construing and applying the First Amendment regarding freedom of religion and freedom to think and live as we wish) (essentially, as the Declaration of Independence says, our right to life, liberty and the pursuit of happiness).
If the Dobbs and Alexander majorities had focused on what was in our Constitution (what it actually says and clearly means), I'd have no problem with those decisions. I was a paratrooper. I served this nation for a long time in dangerous and unpleasant places. My brothers and I sacrificed a lot of our liberty and happiness for this nation. Many of us sacrificed our health. Some sacrificed their lives. I understand that nations (as societies) get to make decisions that disproportionately affect some citizens' lives. I accept that concept, but only to the extent that it actually did what my oath (and the oath of every federal judge) said, i.e., "support and defend" our "Constitution." I'm also a lawyer and I've studied a lot and thought a lot about our Constitution and our early history. I think about our Constitution as a lawyer, a soldier and a citizen. I know that, as a matter of law, judges are no less bound by their oaths than soldiers. Our oaths are our promises to the people we serve, our promise that in everything we do we always will "support and defend" our "Constitution."
It is obvious that supporting and defending our Constitution is not at all what SCOTUS did in Dobbs or in Alexander (and that's not what state legislators are doing). They supported and defended parts of our history that were consistent with their own religious and political views. In Dobbs, in particular, they used a lot of irrelevant history to deceive us about our Constitution, and they ignored the relevant history.
The relevant text and meaning of our Constitution and our relevant history really are quite straightforward and simple. They also were remarkably brutal and bloody. Throughout our early history, a huge number of Americans accepted that some people can treat other actual people (men, women, children) as well as fetuses as property (consistent with our Constitution).
The 14th Amendment clearly and emphatically says all "persons" who were "born" in the U.S. (or born somewhere but "naturalized" in the U.S.) are equal under the law and equally protected by the law. So now, some people cannot treat other people as their property. Even so, the Constitution clearly does not say (or mean) that state legislators (or SCOTUS) can rob people (who actually were "born" or "naturalized" in the U.S.) of their protection under the Constitution to protect any fetus (which clearly is not a "person" who was "born" anywhere).
With the 19th Amendment, our Constitution finally expressly and specifically acknowledged that women were fully first-class citizens (fully "persons" and "citizens" (fully part of "the people") as those terms were used in the Constitution). The fact that the 19th Amendment even was required is a massive red flag about the history and people on which Justice Alito and his gang love to rely. The letter and spirit of the 14th Amendment clearly commanded protection of all "citizens" regarding their "privileges or immunities" and "due process of law" and "equal protection of the laws" for every "person." Yet, the people in power (state legislators and judges) pretended "person" and "citizen" did not actually mean women. The originalists' own logic condemns their own deceitful conduct in relying on a history of obviously and irrefutably unconstitutional conduct.
The view that actual "persons" and "citizens" can make their own decisions about their own lives and bodies (and treat their own bodies and everything in them, including fetuses, as their property) is perfectly consistent with the text and meaning of the original Constitution, the Bill of Rights, and the 13th, 14th and 19th Amendments and with a lot of our history before and even after the 14th Amendment. If anyone truly believes that the opposite view is consistent with those parts of our Constitution (and our history until well after the 14th Amendment), please show me how.
"This presumption of legislative good faith here is not a legal doctrine, but a thing the majority made up from whole cloth."
What would this SCOTUS majority know about acting in "good faith"?
It's a good idea to keep in mind that there are legitimate reasons to state such a presumption (as the dissenting justices in Alexander emphasized). But stating such presumption never should be used (as the majority used it in Alexander) to imply more than that some evidence is required that legislators were motivated by intentions that were not "good" (e.g., not consistent with statutes or a state or federal Constitution). See "The proper response to this case is not to throw up" (So Says SCOTUS Dissent to Alito Gang's Lies) https://blackcollarcrime.substack.com/p/the-proper-response-to-this-case?r=30ufvh
The original sin of the modern conservative movement is building legal and widespread infrastructure that acts as a cover for people who do not want to participate in pluralism. For too long, legal and media voices have ignored this reality of the conservative legal movement and then criticized people who go too far down the path of voicing that concern about modern conservatism. The result is a loss of our democracy. Once again, naively thinking that harming one group can be ignored has turned out to be dangerous for all of our collective rights.
Thank you for weaving this together in a clear and understandable manner.
This is a notice to Black Americans as well as LGBTQ Americans that the forthcoming election has more to do with your civil rights than ever before. A Biden victory will ensure that upcoming Supreme Court nominees will help offset the lopsided, conservative leaning court that has produced so many ridiculous decisions led by Alito and Thomas. A Biden victory will set a course for strengthening our democracy and protecting everyone’s rights for generations to come. Vote Blue!
Anybody and everybody in America who cares about their own rights or our Constitution should vote against Trump if he's a candidate. If he proved nothing else on Jan. 6 it was that he could not care less what the Constitution says or means. The SCOTUS majority are writing opinions with a shockingly similar theme.
It's worth bearing in mind that a whole lot of people who have thought that their interests were aligned with or served by a tyrant or fanatics found out otherwise. Trump thought (and said) his generals should behave more like the "German generals" of World War II. See https://www.nytimes.com/2022/08/08/us/politics/trump-book-mark-milley.html?unlocked_article_code=1.v00.VyLs.5xS96Mv5ry0b&smid=url-share
We should believe Trump (and not believe any SCOTUS justice who says he has immunity from Congress and federal law for what he did). Invoking the experiences of the German generals that Trump invoked isn't inappropriate. Within about 13 years, Germany went from being relatively free (and phenomenally militarily and technologically superior) to tyranny and then to totally trashed.
And how long after stripping the LGTBQ and people of color communities of their rights do you think it will take for them to strip ALL of us from any rights remaining? Not long. Vote Blue down the ticket!
Great comment, and of course more definitive. I’m with you all the way to the ballot box (mail box, actually :-).
The only reason the High Court of Chancery didn't have a case about redrawing district lines--which is, of course, injunctive relief, is that in 1789 there weren't any CASES about voter districts. Nobody much cared about who could vote in England until the Reform Acts of the 1830s. Thomas just ignores what power the courts of equities actually have. And yes, the "presumption of good faith" of the legislatures is pure invention as well as poppy-cock. Even in Shelby the court overturned the "pre-qualificiation" requirement because the choice of what states were covered depended on 40 year old data. It didn't "presume" anything about the faith of the legislature: it just said you need more updated evidence of bad actions. The key thing about Alexander is not the gerrymandering aspect, bad as it is, but the usurpation by the court of the job of the trier of fact. Looks like we are heading towards One Court To Rule Them All, down to deciding who did what to whom.
Creative 303 has always blown me away because after all the Sturm und Drang the actual holding was simply that you can't force someone to sell something that is against your religious beliefs. That's been the law for forever: no one can force a hijab company to make rosaries, and no one has ever tried. The decision has been taken to hold that one can refuse service to someone with a different belief, but that's not what the court actually held and it repudiates that interpretation in a footnote. You STILL can't say "no blacks allowed" or "no LGBTQ folks allowed." Even if Stewart or someone HAD inquired about a website for a gay wedding, if they accepted all the Christian guff the designer wanted to put on such a website, the owner would not have been able to turn them down.
Congress MUST act to defend our country and democracy. Impeach Alito and Thomas!
It is a very valid point (and important) that SCOTUS justices are being deceitful (about facts and law), as well as that the same justices are granting certiorari and issuing a remarkable number of decisions to expressly protect and entrench their own religious and political views. Even so, it's not a good idea to believe that the "Kennedy and 303 Creative" decisions "expanded the reach of the First Amendment to maximize protection for one group only — conservative Christians."
Kennedy and 303 Creative should be read as explaining and applying the Constitution's protections for our freedom of conscience and freedom to think and speak as we wish (free from discrimination by any state or federal official). It's far better to set the Christian context aside and think about how those decisions were contrary to Dobbs and Alexander. What the justices in the majorities wrote in Kennedy and 303 Creative should be contrasted with what the same justices did and said in the majority opinions in Dobbs (empowering state legislators to create laws that support their own "moral" "belief" or "view," i.e., what people "believe" about life) and Alexander (empowering state legislators to discriminate against voters based on "partisan" (political (and often religious) views). It's better to use those decisions than (only) attack them. See, e.g., Sam's Club (SCOTUS) Says Separate-But-Equal Is Cool https://blackcollarcrime.substack.com/p/scotus-says-separate-but-equal-is?r=30ufvh