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Opinion

What the Devil won't tell you

Time to expand thinking on history-obsessed Supreme Court

Dear Sen. Kelly, Rep. Kirkpatrick: Conservative justices' antiquity fetish is arbitrary & dangerous, as more than just right to abortion is threatened

Dear Sen. Mark Kelly and Ann Kirkpatrick: It's time to pack the U.S. Supreme Court.

I, and others who aren't right-wing nutbars, have given up on U.S. Sen. Kyrsten Sinema. Adding members to the high court is a lousy campaign theme in a swing state and you have an election coming up in November. I know U.S. Rep. Raul Grijalva is game.

Two rulings in two days show this is a dangerous court with a majority of justices now dancing with their two new favorite partners, whimsy and caprice. They are insisting certain rights have historical precedent while abandoning the idea that courts should follow their own precedents — a judicial precept that dates back to 12th century England and Henry II.

So 330 million Americans have to live under the court's increasingly arbitrary sense of constitutional justice — exemplified by two rulings last week.

Last Thursday, there was the New York State Rifle and Pistol Association v. Bruen, in which the court struck down a New York City law that banned carrying concealed weapons without proving an over-riding interest.

Then Friday came the big one. In Dobbs v. Jackson, the court overturned Roe v. Wade, rescinding a woman's right to an abortion. Remember how all of us were "hysterical" thinking that Roe would be overturned. Now, no doubt, we're crazy for having a problem with it.

The upshot is that in Arizona women won't be able to have an abortion after 15 weeks. Doesn't matter if the woman's life is in danger or if they are carrying their rapist's baby. If a territorial law dating back to the century before the last century and still remaining on the books is found to be enforceable despite a 50-year-old court injunction, then all abortions will be outlawed in Arizona.

How the hell does a mom raising a rapist's baby deal with child support from the father? I know this much: The Legislature sure as hell ain't gonna pick up the tab. We've seen this movie way too many times. The "pro-life" crowd in Phoenix will have one message for that mom: "You're on your own lady, and your little brat, too."

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I digress. I'll let the females of the species take it from there, while I focus on why the hell "history" is suddenly becoming the test of choice for the U.S. Supreme Court.

Since justices now are substituting historical interpretation for legal scholarship, I don't need to be a credentialed legal scholar myself to make the case that history is a terrible device for meting out justice.

History is great to debate over beers because it's not conclusive. It's a three-dimensional furball of clashing disciplines, traditions and innovations. You can give your own telling of history. I can give mine. Both can be accurate while neither is conclusive.

On the other hand, history works great as intellectual cover for "just-do-as-you-are-told" rulings by judges more concerned with being national parents than authorities of law.

The constitutional power to set the size of the Supreme Court lies with Congress. The bench of the high court has held nine justices since 1869; it's past time to expand the number of seats and ensure that our justices represent the far larger and much more diverse United States in which we now live.

Tale of two cases

New York State Rifle and Pistol Association v. Bruen

Thursday, the court tossed out a New York City law banning concealed weapons without "proper cause." Justice Clarence Thomas wrote the majority opinion but that still affirmed state's rights of gun control.

Friday, the court decided that because the right to an abortion isn't prescribed by the U.S. Constitution, the right does not exist. Justice Samuel Alito said some "unemumerated rights" do exist. By that way of thinking, neither does the right to read a certain book or news report, nor does the federal government have the ability to print paper money. The feds can only make coins. Dollar bills, y'all, are unconstitutional.

The two rulings aren't exactly apples and apples but I found a piece of writing that explains how this idea of "history" fits into the concept of what proponents have dubbed "originalism."

This cuts two ways. First comes the weird slice:

States only have the power to regulate guns in the same manner as what five justices concluded has been done in the 235 years since the Constitution was written.

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Thomas' ruling stated New York doesn't have the right to have a concealed gun law tailor-made to its own interests, unless it can show other cities like New York have passed similar rules. 

Thomas wrote:

"Historical analysis can sometimes be difficult and nuanced, but reliance on history to inform the meaning of constitutional text is more legitimate, and more administrable, than asking judges to “make difficult empirical judgments” about “the costs and benefits of firearms restrictions,” especially given their “lack [of] expertise” in the field.

I have to hand it to him. Thomas goes into great detail about the history of private weapons law. He just does so stupidly and of course cherry-picks. 

He even compares the knife culture of Tudor times to modern gun culture. A knife isn't a stand-off weapon with easy lethality at a safe distance.

The main point he makes is that there's no historical precedent for a city like New York to bar concealed weapons. That may be true but there are no other American cities like New York. How can there be precedent? 

We're all taught in 9th grade that geography dictates culture. A city that lives on the side of a volcano might have different concerns than a city of 7 million crammed onto an archipelago in a tidal estuary.

Thomas points to historical precedents that say government can only restrict guns if they are "apt to terrify the people" and then concludes gun restrictions are limited to those who carry "to terrify the people." He drops the "apt" and changes the entire meaning. The first describes reaction, and the second intent. They're completely different.

Also, those 16th, 17th and 18th century provisions were written before high-capacity magazines and mass shootings. People are terrified. Though I'm not sure that should be the standard used to uphold or strike down law. Is my fear really a sufficient reason to strip you of your rights?

Justice Thomas also argues that three examples of colonial-era gun control aren't enough. So the mere ubiquity of a law makes it constitutional, he's saying. Jim Crow was pretty widespread. Is the Civil Rights Act unconstitutional? The comparative rarity of a law means it's unconstitutional, under his standard.

Right here in Southern Arizona, we had a pretty big event that led to a shootout near a corral in Tombstone in 1881. That was partially prompted by the Clantons refusing to turn in their guns while in town.

So 141 years isn't enough history for Thomas? Dodge City, Kan. Deadwood, S.D. and Abilene, Texas also had gun control ordinances in the days of yore. Still, Thomas concludes there's no historical context for New York City to declare itself a "sensitive place" because it was crowded. Could Deadwood do so back in the day, because it got "shooty?"

I mean, c'mon. Americans didn't claim an unlimited right to maximum personal firepower until about 40 years ago. Let's call it "guns on demand."

Dobbs v. Jackson

The court's second reading of history this week cuts in the opposite direction — holding that rights can't be new if they aren't specifically enumerated.

Justice Samuel Alito wrote in overturning Roe v. Wade that abortion isn't specifically protected in the U.S. Constitution. Unenumerated rights exist,  Alito wrote, only if they are rooted in history or tradition.

Back to gun control real quick — Thomas declared self-defense a "central component" to the 2nd Amendment, even though the amendment itself never mentions self-defense. The late Justice Antonin Scalia declared self-defense's centrality to the right to bear arms in a previous opinion. 

Self-defense might very well be more tightly aligned with American history than women's rights over their own bodies. Then again, women have been legally little more than "boy-making machines" since about 3000 B.C. So no, women didn't have an unenumerated right to bodily autonomy, because of what the liberals rightly sum up as "the patriarchy."

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Women started to become full citizens only in the 20th century and became equal partners in but the latter part of the 1900s. They were in no position to avail themselves of a right before that, and that fact shouldn't disqualify those rights because they are newly asserted. Pretty basic.

Every act of liberation is a spanking new upending of some kind of toxic tradition. I mean, good Lord, the Egyptians had a long tradition of enslaving Jews. I will grant you the Angel of Death was likely unconstitutional.

Scalia lost at sea

The talk of history isn't new. In fact, Scalia brought it roaring back as a companion to "originalism" — the legal theory that modern rights are limited to their original meanings.

One up-and-coming legal scholar invoked Scalia as to why history should be considered in overturning precedent: "Justice Scalia framed some of his most vociferous disagreements with Supreme Court precedent as a defense of a competing form of precedent: the history and traditions of the American people."

Notre Dame Law Professor Amy Coney Barrett wrote that in 2017 (it's an interesting argument worth reading but a lousy way to govern a country if taken literally).

She quotes Scalia as saying that tests for equal protection, “cannot supersede—and indeed ought to be crafted so as to reflect— those constant and unbroken national traditions that embody the people’s understanding of ambiguous constitutional texts.”

As one of my editors likes to type in slack: "Wut?"

Scalia always fancied himself a writer but his pen ran a bit wild there. It sounds pretty but means nothing. 

Name one constant and unbroken national tradition that started in 1788 and is still around today? I can just think of one: The peaceful transition of power from one ... nope. Not so much anymore.

Please explain how any tradition embodies the people's understanding of ambiguous constitutional texts? I can't fathom how a parade informs understanding of the Commerce Clause.

I got one for you: Catholics and African-Americans need not apply to the U.S. Supreme Court. There was one Catholic on the court until 1896 and it was Roger Taney, who wrote the Dred Scott decision.

I used to like reading Scalia at work because he was interesting, funny and sometimes brilliant. He made one really good point about originalism. A justice who doesn't root their constitutional findings in the Constitution itself is intellectually lost at sea without a reference point. 

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Anything goes, if interpretations of law are not derived from its original meaning. That was his argument. Good point. It's in our best interest that the law means what it says.

In unleashing history as a substitute for precedent, he's let sail a constitutional doctrine so lost at sea it needs a volleyball to keep it company.

The coolest thing about originalism is now gone, so the justices can turn themselves into History Channel documentarians.

The imperfect is what's available

If history — or more accurately, what pretends to be history but what's really a narrowly construed cherry-picking of favorable anecdotes — now supersedes court precedent, the justices are jumping outside of the law entirely. That establishes nothing more than an arbitrary rule that holds: "We are the boss of you. You aren't the boss of us."

The court needs to be expanded because increasingly two different constitutions govern different people, rather than a single Constitution governing everyone equally.

A liberal constitution governs conservatives, giving them broad rights to do what they want and dictate rules. A conservative constitution governs liberals, restricting rights and their authority to govern.

I'm not a legal scholar so I'm not sure how it should be expanded. It's entirely within the power of Congress do increase (or decrease) the size of the court. They've done it before — and in fact the Supreme Court was even larger, with 10 justices, during the Civil War.

Originally, the court included six justices. It has had nine since 1869, but that number is not written in stone. It's simply a matter of current law, which can be changed by Congress. The constitutional power to set the size of the court is held by the legislative branch, as a check on a runaway court. The people's representatives set the number of judges.

One option would be to add 15 to 20 justices and add diversity. If we are going to use history to settle court cases, then we should put historians on the court. If the Supreme Court is going to put cultural traditions ahead of precedent, then how about some anthropologists — or feature writers for Arizona Highways?

I admit, it's not ideal. But is what opponents deride as "court-packing" less ideal than an evenly divided nation living under the edicts of an increasingly radical American right wing?

If, say, 20 new justices were added, make it a mix of liberal and conservative minds — so it's not an obvious game of tit for tat but a genuine effort at court reform. Adding more justices would relegate the radicals to being agent provocateurs, which is how radicals excel. Amy Coney Barretts and Neil Gorsuches may be good for the court. They're lightning in a bottle. I like that. They just shouldn't be running the show for hundreds of millions of lives.

Further, the Constitution sets out that judges and justices can "hold their offices during good behavior" and can't have their pay cut, but nothing would bar Congress from rotating them through their seats, so that different justices are hearing and deciding Supreme Court cases.

When Gov. Doug Ducey packed the state's high court in Arizona, expanding it with justices of his own choosing, you didn't hear a peep out of conservatives about any supposed violation of sacred traditions.

Republicans exercise the bejeezus out of power when they have it. Then Democrats promise a return to normalcy. So when they have any power, they get squeamish about using it.

Stop that. We must recognize the time we are living in, and the state of American politics. It's not that one side is playing tackle in the mud and the other side a pleasant game of touch football. It's that one side is playing tackle while the other side is focused on trying to stripe the field just right.

Sorry if white men lost the power to tell everyone else what to do. The right used to rail against "unelected activist judges." They apparently have no problem being overseen by God Emperor judges.

So Congress must break the glass. It's an emergency.

Blake Morlock is an award-winning columnist who worked in daily journalism for nearly 20 years and is the former communications director for the Pima County Democratic Party. Now he’s telling you things that the Devil won’t.


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