Associated Press
They are the most fiercely polarizing issues in American life: abortion and guns. And two momentous decisions by the Supreme Court in two days have done anything but resolve them, firing up debate about whether the court’s conservative justices are being faithful and consistent to history and the Constitution — or citing them to justify political preferences.
To some critics, the rulings represent an obvious, deeply damaging contradiction. How can the court justify restricting the ability of states to regulate guns while expanding the right of states to regulate abortion?
“The hypocrisy is raging, but the harm is endless,” House Speaker Nancy Pelosi said Friday after the court released its decision on abortion.
To supporters, the court’s conservatives are staying true to the country’s founding principles and undoing errors of the past.
The court corrected a historic wrong when it voided a right to abortion that has stood for nearly 50 years, former Vice President Mike Pence said Friday. On Twitter, he said the decision returned to Americans the power to “govern themselves at the state level in a manner consistent with their values and aspirations.”
Opponents of Roe v. Wade, the controversial 1973 ruling that upheld the right to abortion, say the Supreme Court back then did just what some accuse the majority justices of doing now, adapting and twisting legal arguments to fit political positions.
Members of the court’s current conservative majority, laying out their thinking in this week’s decisions, have been quite consistent, sticking to the words of the country’s founders and the precedents of history that reach back even further, those supporters say.
In both decisions, the majority makes the case that if a right is spelled out in the U.S. Constitution, the bar for any government regulation of that right is extremely high. But if a right is not explicit, state and federal governments have greater leeway to impose regulations.
To those who study the court, though, the reality is more complicated.
A number agree that, for all the controversy of the rulings, the majority justices at least followed a consistent legal theory in issuing the decisions on abortion and guns.
“I understand how it might look hypocritical, but from the perspective of the conservative majority on the court, it’s a consistent approach to both cases,” said Richard Albert, law professor at the University of Texas at Austin. “I’m not saying it’s correct, by the way, but from their perspective it is completely consistent and coherent.”
Consistency, though, cannot mask the fact that there has been a seismic shift on the court since President Donald Trump appointed three conservatives. And that is likely to further muddy public perceptions of an institution that prefers to see itself as being above politics, court watchers say.
Both decisions “come from the same court whose legitimacy is plummeting,” said Laurence Tribe, a leading scholar of Constitutional law and emeritus professor at the Harvard Law School.
The court majority’s decisions on gun rights and the ruling a day later on abortion both rely on a philosophy of constitutional interpretation called “originalism.” To assess what rights the Constitution confers, originalists hone in on what the texts meant when they were written.
Opinions by originalists are often laden with detailed surveys of history, as both these rulings are.
The bulk of Justice Clarence Thomas’ opinion on gun rights is devoted to history and what it says about the Founders’ intentions when they crafted the Second Amendment and when lawmakers crafted the 14th Amendment on due process in the 1860s. Thomas broached a long list of historical figures, including the English King Henry VIII, who the ruling says worried that the advent of handguns threatened his subjects’ proficiency with the longbow.
The abortion ruling authored by Justice Samuel Alito similarly delves deep into the past, concluding that there was nothing in the historical record supporting a constitutional right to obtain an abortion.
“Not only was there no support for such a constitutional right until shortly before Roe, but abortion had long been a crime in every single state,” Alito wrote.
This week’s two decisions are more legally consistent than critics suggest, said Jonathan Entin, a law professor emeritus at Case Western Reserve University in Cleveland.
“We can debate about the meaning of the Second Amendment, but the Second Amendment does explicitly talk about the right to keep and bear arms, whereas the right to abortion access is not explicitly in the Constitution,” he said. “If that’s where you are going to go, then maybe these decisions are not in such tension after all.”
Not all observers agree.
“I think there is a double standard going on here,” said Barry McDonald, a professor of law at Pepperdine University, reviewing the justices’ arguments that both decisions are grounded in a strict reading of the law and of history. That logic is shaky, he said, given the conclusion by many legal historians that the right to bear arms in the Bill of Rights is, in fact, much narrower than the court majority insists.
Most ordinary Americans, though, will be unfamiliar with such intricate legal theory. Instead, many will size up the court’s actions based on their perceptions of the justices’ motives and the personal implications of the decisions, experts said.
Many are likely to view the rulings as the direct result of Trump’s appointments and the justices’ determination to carry out his agenda, making the court “more of an institution of politics than it is of law,” McDonald said.
Tribe said the court’s majority has embraced an imaginary past and its claims that is only upholding the law are false. The majority justices can assert that they have been legally consistent. But taken together, he said, the decisions on guns and abortion create a whiplash effect from a court that claims to be protecting individual rights, then effectively limited many Americans’ control over their own bodies.
“I think the decisions point in radically different directions,” Tribe said, “but the one thing they have in common is they are decided by a new, emboldened majority that knows no limits on its own power and is perfectly willing to toss over precedent in the name of a version of originalism that really doesn’t hold together.”
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Republished with permission from The Associated Press.
10 comments
Impeach Biden
June 25, 2022 at 8:59 am
Nancy Pelosi didn’t read the Affordable Care Act and she obviously has never read the Constitution. Guns are protected under the United States Construction, abortions are not. It’s that simple. It is now up to each state on what they want to do in regards to abortions,
marylou
June 25, 2022 at 4:20 pm
The corrupt religious extremists on SCOTUS, who advertise themselves as “originalists” and “textualists”, should be reading the TEXT of the constitution with its ORIGINAL meaning at the time it was written– as they so loudly claim to do.
By the SCOTUS’ own definition, gun rights are limited to the guns that were available in 1790. The SCOTUS judicial activists have fabricated a right that the founders never intended or could even have imagined.
Although not specifically mentioned in the Constitution, the founding fathers–at least Benjamin Franklin, who included an abortion recipe in his textbook– do not appear to have been opposed to abortion. Abortion is not mentioned in the Constitution because the document is not a guide to medical procedures and remedies. You also won’t find the many other medical practices of the 18th century or the current advancements that I am sure you feel you have a right to.
The six SCOTUS radical “justices” were picked and placed by the Federalist Society to promote their agenda at any expense. Your rights are protected only so long as they don’t conflict with the Federalist Society’s idea of rights that you should be allowed.
Lynda
June 25, 2022 at 11:07 am
The Dobbs decision by a right wing majority of justices (whose nominations and confirmations to SCOTUS were deeply corrupt and required the justices to mislead the senators who voted to confirm them) is dangerous to the National Security of the USA.
The actions to ban abortion outright or restrict abortions to 6 weeks after fertilization have already been taken by many right wing state legislatures and will do significant harm to the women who live in those states. To take away the human rights of women who live in right wing states with extreme and radical legislatures is discrimation based on gender and wrong.
The fact that women were never mentioned in the Constitution (written and ratified beteen 1787 and 1790) is the egregious error at the center of the Constitution of the USA. To use that error as a reason to overturn Roe in 2022 is a doubling down on that error which creates harm for the entire gender of women in the US. Overturning Roe is taking away the right to abortion from every woman in the US after nearly 50 years of having that right.
Thomas forecasting the other rights which could change after Roe—-a ban on contraception, marriage equality and the return of sodemy laws—is disturbing. It is akin to trying to put toothpaste back into a tube or unringing a bell. Americans have structured their lives around certain SCOTUS decisions expected to be safe from being overturned. How cowardly of SCOTUS to push the implementation of Dobbs to state legislatures ill-equiped to perform that task.
The Roberts Court pushed on to New York an expansion of the number and the use of guns by using an interpretation of the Second Ammendment which is not shared by most of the legal community. The voters of New York did not vote for more guns in their state. As it did in the Dobbs decision, the justices forced an action on New York voters which they did not want and which all evidence suggests will make voters of New York and the many states which will follow the SCOTUS ruling less safe.
The current right wing justices of SCOTUS are forcing their religious beliefs about the beginning of human life and their attitudes about guns on to voters who by substantial majorities disagree and oppose their decisions. Gallup polling records the approval rating of the current Supreme Court at 25%–the lowest in history. The “Establishment of one religion” clause in the Constitution may well be endangered by promoting a ban on abortion at fertilization. The members of many religions which place the first breathe as the beginning of life and secular humans without any religious beliefs object strongly to being forced to follow the religious beliefs of the Catholic justices as a matter of Law.
SCOTUS has overreached. Action to Impeach Justices or to expand the number of Justices on the Supreme Court as well as enforcing term limits and ethics rules on justices needs to take place soon.
Impeach Biden
June 25, 2022 at 11:46 am
So change the rules, impeach or pack if you don’t get your way? We’re you jumping up and down when Covid vaccinations were mandated? My body, my choice right?
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PeterH
June 25, 2022 at 2:24 pm
Recently Texas women have been crossing the border into Mexico to get a same day safe legal abortion for 1/2 the cost of a USA abortion. Floridians seeking abortion might consider Cuba where abortion is safe and legal.
Let’s remember that 60% of today’s abortions are achieved with pills that can easily be procured from blue state pharmacies by mail order. Perhaps the medication abortion pills can be procured through Mexico, Canada or the EU.
There is no need to fill the streets with unwanted children. The USA currently has 400,000 unadopted children shifted from one foster home to the next. Red States should shoulder the cost for their anti-abortion stance. The should expect a huge litter of drug addicted, fetal alcohol, deformed babies that require tremendous resources to care for. SCOTUS decisions have consequences.
Mississippi ranks 50th out of 50 states for child welfare. I’m sure they can turn this horrible static around with a huge influx of new unwanted babies.
Impeach Biden
June 25, 2022 at 3:34 pm
How about your President stopping the illegals from entering this country. I think we are over three million so far. Absolute chaos that will haunt the Dems come November.
Bill
June 25, 2022 at 3:45 pm
It’s an issue but mainly an issue with the repubs. Both sides have had plenty of chances to fix it and they’ve all failed. Maybe Texas will succeed and become part of Mexico and we can give Puerto Rico full statehood and not even have to change the flag. As an aside, what does this have to do with guns and abortions?
PeterH
June 26, 2022 at 11:37 am
Congress is responsible for changing immigration policies…….the Executive branch enforces the laws Congress writes.
Try writing to your representatives and demand stricter immigration policies at the Southern border. I’m sure you’ll be amused with Rick Scott’s position. LOL
Cathy
June 25, 2022 at 3:35 pm
Justice Thomas’ brief asks SCOTUS to challenge all decisions on topics not explicitly covered in the Constitution; contraception, gay relationships, gay marriage…Will he also ask the court to revisit Loving vs Virginia? Will his actions follow his logic or just his politics?
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