In Part 1, our competing world visions drive our reasons for why certain solutions are appealing. This information matters when you have a majority that share the same world vision - whether it is a “constrained” or an “unconstrained” vision.
In Part Deux, I will try to bring together those world visions to give context to the recent Supreme Court rulings.
The ‘70s Supreme Court is still calling…
… And they want to be left alone. However, the chaotic mess from certain rulings is too much for the Constrained vision to ignore. I am not sure what happened in that era since I was born in 1977, but it sounded like a hot mess, in general. Here is a brief rundown of the ‘70s.
1970 - Nixon creates the Environmental Protection Agency (EPA)
End of Vietnam War and anti-war movement
President Nixon took the US off the gold standard and inflation started
President Nixon resigned because of Watergate
President Jimmy Carter oversaw an energy crisis
30 year mortgage went up to 11%
the Cold War
the break up of the Beatles
the death of Elvis
No wonder we needed an Italian Stallion to get us through.
Era of experiments. So many experiments by elected officials were tried during this era including by the Supreme Court, known as the “Burger Court” because Warren Burger was the Chief Justice from 1969 to 1986. There were 3 major decisions from that era that created judicial “tests” that ultimately became unworkable.
1971 - Lemon v. Kutzman (Religious freedom)
1973 - Roe v. Wade (Abortion)
1978 - Regents of University of California v. Bakke (Affirmative Action)
Ironically, these decisions made it more possible for more cases to come before the Supreme Court. Ultimately, the Supreme Court became a regulator of the law instead of a proclaimer of the law. The proper process according to our Constitution is that lawmakers are elected to make the laws and Judges are appointed to decide if a law complies with the constitution or not (broadly speaking).
The “Constrained” vision likes the proper process. The “Unconstrained” vision does not care as long as they are on the path to the proper outcome. Let’s see how these 1970s cases chose the Unconstrained path and how the Constrained vision is trying to Make the Process Great Again (MPGA) which does not have quite the same ring to it.
I will take on Roe first since that is what I think most people care about.
#1 - (1973) Roe vs. (2022) Dobbs
Unconstrained vision of Roe. There are not many lawyers, legal experts or judges who think Roe v. Wade was good law. It was so poorly written because it had no legal basis to draw from in the Constitution. The Supreme Court judges saw the different state laws and believed that the “desired outcome” (abortion legal everywhere) was the most important problem to solve. Even the great RBG could see the flaws in the methods used by the Court that brought constant problems for decades.
(1973) Roe Decision -
Woman has broad right of privacy to make decisions like abortion
But…
State’s have interest to regulate depending on the trimester
Court creates a qualification test
This test was created based upon the knowledge they had in 1973. You know… back when they took x-rays of the baby in utero. This ruling blew everything up because, to the “constrained” vision, the Supreme Court took away the proper process or authority for these type of issues. It is believed that the State lawmakers are the ones responsible for handling these social issues.
But, the confusion does not stop there. Another case came along in 1992 that made the process less clear and added more chaos throughout state laws.
(1992) Casey Decision -
In reality, Roe v. Wade was overturned by Planned Parenthood v. Casey which challenged a Pennsylvania abortion law restriction. It is just easier to say Roe v. Wade because it is so famous, but our laws have been structured around the Casey decision. Here is a brief overview of the 4 ways that Casey overturned Roe.
“Unconstrained” vision reasoning in Casey -
“To overrule [Roe] under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court’s legitimacy beyond any serious question.”
Translation - the desired outcome and protecting the legitimacy is more important than the process
Abortion is not a simple debate. Abortion is legally and morally complicated. People are having simple shouting matches about whether a woman has a right to choose, but it is not that simple when it plays out in reality. For example, can a procedure be called an abortion if the baby is born alive? This is what happens in a 3rd trimester abortion -
The doctor induces labor
The mother gives birth to a live baby
The doctor then takes scissors and cuts the back of the babies neck in order to take her or his life
This is the only way to do it that is physically safe for the mother.
Another complicating factor - legal contradictions. There are state laws that treat a pregnant woman as 2 people. Therefore, an estranged boyfriend who causes the death of a pregnancy can be tried for murder of that fetus. Here are two legal contradictions from laws like this -
Are laws like this fair to the boyfriend who wants the baby, but the woman wants an abortion?
Are laws like this saying that a fetus becomes a person depending on the “desire” of the mother? If the mother does *not* desire to have a baby, then the mother is exercising her fundamental right to liberty. However, if the mother does have a desire to have a baby, then the death of the fetus is murder.
Here would be a law school Socratic method inquiry - what if the mother is on her way to the abortion clinic with the intent to abort her baby, but then a drunk driver slams into her car resulting in the termination of her pregnancy, is that murder or an abortion?
Again, this is simply to show that abortion hinges on many details. It is not as simple as people shouting on the tv make it sound.
(2022) Dobbs decision -
The judges in Casey and Roe created a complicated and abstract process. However, in Dobbs, a very simple “Constrained” vision written by Justice Alito restores the proper process which is what the Constitution explains as the power for the state lawmakers to decide.
The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives.
It is so simple that it seems uncaring or insensitive. This is a reality of the competing visions. One vision appears more compassionate while the other vision sounds mechanical. I do get that.
Now, the Federal and Supreme Courts are no longer in the business of regulating abortion through their abstract tests. This is a recognition that judges should not be in the business of regulating. However, Congress can pass an amendment making abortion a fundamental right, but that takes too much time and effort for Congress. It took the Women’s Temperance movement in the 19th century several decades to pass a Prohibition amendment which was not workable either, but that is for another time.
Key points to Dobbs -
The proper process is look to the Constitution
The Constitution says -
States write the abortion laws and determine the line and tests
and…
Federal lawmakers can make it Constitutional if they put in the time and effort
#2 - (1971) Lemon vs. (2022) Kennedy
In 1971, the Supreme Court created a religious test called the Lemon Test. In 2022, the Supreme Court overruled that test in a 6-3 decision in favor of the high school football coach, Joseph Kennedy, whose lost his job for kneeling to pray at midfield after the games to offer a quiet personal prayer. The dissent disputes these facts, but I think the reasons are more relevant to this newsletter.
The “Constrained” vision wants to maintain order through a predictable process that is allowed by the Constitution. This does not mean they have achieved that in this case. Justice Kagan might be right in her dissent that the majority has thrown out a known test for something that is unknown and might be just as unworkable. Time will tell.
I am optimistic after reading Luke Goodrich’s book - Free to Believe: The Battle Over Religious Liberty in America (2019). He explains how the Lemon Test created hostility and how a more historical approach can bring balance to the force.
Hostility - Goodrich explains that “Not only has it (Lemon Test) produced a host of inconsistent decisions, but it has also introduced into the Supreme Court’s jurisprudence a strain of hostility toward religion that never belonged there in the first place.” (p. 171)
Historical approach - Turns the burden on the government and “The Establishment Clause would not longer be used as a weapon to eliminate religion from the public square.” (p. 172)
Key points to Kennedy -
Removal of court created test
Restores history (balance) as the guide
#3 - (1978) Bakke vs. (2023) Students for Fair Admissions (SFFA)
Origins. This is a future case to look to watch concerning “affirmative action”. This phrase and idea has its roots in a 1961 Executive Order by President John F. Kennedy. This order prohibited discrimination in hiring AND mandated federal contractors to “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color or national origin.”
Don’t discriminate against minorities AND you must hire minorities.
Quotas in College. This inspired colleges to do that same in their admittance process. Colleges adopted a “quota system” to make sure a certain number of seats went to certain types of minorities. Allan Bakke was denied admission to medical school because the 16 remaining seats available were designated for minorities.
This is the prediction for the Fall term - that Bakke will be overturned essentially banning “affirmative action” in the college admissions process.
Constraint Vision Prediction - West Virginia v. EPA
If this newsletter was not long enough, I have one last Supreme Court case on this topic. This case is not tied to a horrible Supreme Court ruling from the ‘70s. Instead, it is tied to a horrible Executive Branch creation from the ‘70s. It is clearly my opinion that it was a horrible idea, but I think you realize I am not stating that as a fact.
Anyway… all Presidents try to get away with as much as they can through their administrative agencies. This has been one of my biggest concerns with the growth in the administrative state. Just to give you an idea, here are the number of laws passed in 2020 by Congress and the administrative state.
Congress - 178
Administrative agencies (EPA, DOJ, etc.) - 3,853
Again, going back to Dobbs, Congress is out of practice with their role as legislators. As a result, the President (of either party in power) will push the boundaries of what the executive agencies can do. One example under the Trump administration was when they allowed the CDC in September of 2020 to place a moratorium that prevented landlord’s from collecting rent. What does the CDC have to do with housing? That is the perfect example of the “unconstrained” vision looking for a desired outcome more than using the proper process. Fortunately, the Supreme Court finally stepped in to say - stick to diseases.
West Virginia v. EPA main issue
Does the EPA have the authority to enact a “directive” from Obama called the Clean Power Plan?
Effect of this Executive created law = West Virginia would resemble California’s energy crisis
It is believed that tomorrow, Wednesday, June 29th, the Supreme Court will release their ruling on West Virginia v. EPA. At the
Constrained Vision Prediction
The “Constrained” vision judges might be persuaded by West Virginia’s rule of law argument -
At bottom, this case will determine the overall balance of power - legislative versus executive, and federal verses state - for one of the most significant public policy issues of our day.
Hopefully, we will find out tomorrow.
Whew! I should almost pay you for finishing this newsletter.
Sincerely,
Me