An op-ed by Noah Feldman: In another bombshell opinion, the Supreme Court’s conservative majority has upended the way it understands and applies the clause of the Constitution that prohibits the establishment of religion. Completing the revolution begun in last week’s decisions expanding gun rights and overturning abortion law, the court said in Kennedy v. Bremerton School District that it was abandoning long-established constitutional doctrine and replacing it with a historical analysis. This means that in establishment cases the court will no longer examine government action to see if it has a secular purpose and effect, or sends a message of government endorsement of religion. Instead, the court will consider whether government action violates the establishment clause only “by reference to historical practices and understandings.”
Two retired judges of Canada’s Supreme Court criticized the U.S. Supreme Court decision on Friday to end the nationwide right to an abortion, saying it freezes rights in much older times and shows why that court has lost its influence on this country’s judges. … “I think this is a perfect decision for the 18th century,” Rosalie Abella, who is now the Samuel and Judith Pisar Visiting Professor at Harvard Law School, said in an interview. Ms. Abella retired last summer after 17 years on the Supreme Court of Canada.
The Supreme Court’s watershed decision to overturn Roe v. Wade drew outrage and celebration across the country Friday, culminating in a series of nationwide protests Friday night that were largely without incident. … On Friday, the chief justice didn’t join the majority to overturn Roe. Instead, he articulated what some saw as the centrist’s position: He wanted to uphold the Mississippi ban on most abortions after 15 weeks of pregnancy at issue in the case but not overrule one of the Supreme Court’s best recognized precedents. … “To write alone is truly kind of interesting as the chief,” said Glenn Cohen, a professor and deputy dean at Harvard Law School. “One feels a little bit that this is his moment of shouting into the desert as a judicial minimalist.”
In his opinion concurring with the Supreme Court’s decision to overturn the constitutional right to abortion established in Roe v. Wade, Justice Clarence Thomas wrote that the high court should revisit all cases built on similar legal footing—including cases that guarantee the right to contraception, same-sex consensual sexual relations, and same-sex marriage. All three cases—and numerous other landmark decisions—are built upon the right to substantive due process found in the Fifth and Fourteenth Amendments of the Constitution, which prohibit the government from depriving “any person of life, liberty, or property, without due process of law.” … “The court is on a devastating path,” argues Laurence Tribe, Professor of Constitutional Law emeritus at Harvard, “that is likely to jeopardize literally all of the basic bodily integrity rights that people have come to rely on.”
An op-ed by Noah Feldman: Modern constitutional law as we have known it ended today. When the Supreme Court overturned Roe v. Wade and Casey v. Planned Parenthood, it repudiated the very idea that America’s highest court exists to protect people’s fundamental liberties from legislative majorities that would infringe on them. What the dissent aptly called a “catastrophic” decision is not only a catastrophe for women, who now can be forced to carry unwanted pregnancies to term. It is a catastrophe for all Americans — and for people all over the world who have built their own modern constitutional courts on the US model. The tyranny of the majority won the day.
Fertility companies and patients have been moving embryos and making contingency plans, anticipating that if Roe v. Wade were overturned, abortion laws in some states could extend to protect eggs fertilized in laboratories. More than 2% of 3.7 million babies born in the U.S. in 2019 were conceived through in vitro fertilization, the latest federal data show. Many embryos created through IVF aren’t viable, fertility specialists said, and those that aren’t ultimately transferred into a uterus may be discarded. … I. Glenn Cohen, a deputy dean at Harvard Law School, said that the bill likely wouldn’t affect IVF but that the language was vague enough to raise questions. “If lawmakers don’t want to touch IVF, they should be clearer in their language,” he said.
As an appeals court judge, Samuel A. Alito Jr. repeatedly drew criticism from his colleagues for disrespecting precedents and established understandings of the law. Fellow judges said, for example, that one of his dissents ignored “our precedent” and another deviated from the axiom that laws must be interpreted “by well-recognized rules.” Two decades later, a leaked draft opinion shows that the Supreme Court may soon overturn precedents like Roe v. Wade and eliminate women’s constitutional right to have an abortion. Justice Alito wrote the draft, devoting 30 pages to arguing that it was unnecessary for the court to follow decisions that had affirmed abortion rights for nearly 50 years. … Laurence Tribe, a liberal-leaning Harvard Law School professor whom Justice Alito repeatedly cited for a 1973 law review article in which Mr. Tribe criticized the reasoning of Roe v. Wade, denounced Justice Alito’s assertion that the draft opinion raised no doubts about precedents that do not concern abortion. “That’s not how principled adjudication works,” Mr. Tribe wrote on Twitter. “Either you’re being a political hack or your ‘only abortion’ bit is BS.”
An op-ed by Noah Feldman: In a stunningly broad and transformative decision, the Supreme Court has struck down the New York law that says you can only carry a concealed handgun outside your home if you can show you have “proper cause” to do so. For New Yorkers and residents of six other states including California and Massachusetts, this means concealed carry is now basically an automatic right. Anyone you meet on the street or in the car ahead of you may be lawfully packing. For gun rights more generally, the opinion is perhaps even more consequential. Decided 6-3 along pure ideological lines, the opinion by Justice Clarence Thomas astonishingly makes Second Amendment rights even more protected than all the other fundamental rights in the constitutional pantheon. It also applies historical analysis so narrowly and bizarrely that it calls into question the very practice.
The Supreme Court’s 6-t0-3 decision striking down New York’s licensing requirements for handguns is not nearly as broad as some are characterizing it. But the convoluted reasoning behind the ruling is perhaps more dishonest than even the court’s worst critics imagine. Justice Clarence Thomas’s majority opinion striking down the law, which permitted state authorities to exercise discretion in issuing a concealed-carry license, is an exercise in sophistry. He perfectly distills the intellectual dishonesty deployed by self-described “originalists” to reach an outcome they favor. … Harvard University’s Laurence Tribe, a constitutional scholar, tells me the three concurrences and the dissent provide “welcome boundaries on the otherwise outsized reach of the Thomas majority opinion.” But, he says, it would have been far better for the court to have “enumerated concretely the specific sorts of safety measures that are likely to win five votes.” Instead, lawmakers are left adrift and confused.
Now that the Supreme Court has effectively overturned Roe vs. Wade, a “trigger law” signed by Gov. Greg Abbott will outlaw abortion within 30 days of Friday’s ruling. The court reversal of Roe essentially leaves it to individual states to establish abortion laws. Texas and 12 other states have trigger laws that would outlaw or almost completely ban abortions. The 1973 Roe 1973 decision came in the case that originated in Dallas County. The new history making ruling is from Dobbs vs. Jackson Women’s Health case from Mississippi, which had a leaked preliminary opinion indicated justices are ready to overturn Roe. … After the U.S. Supreme Court decided in favor of Jane Roe, who was later identified as Norma McCorvey, Texas never repealed pre-Roe statutes, so the criminal abortion laws have become sort of “zombie laws” says Mary Ziegler, a law professor at Florida State and a visiting professor at Harvard Law School.