This piece originally appeared at Manhattan Contrarian Friday, 1 July 2022, under the title "There Are Two Fundamentally Irreconcilable Constitutional Visions" and the byline Francis Menton
It’s been a momentous couple of weeks at the Supreme Court. As usual, they saved the big cases for the end. This year the big three were Bruen [New York State Rifle & Pistol Assn, Inc v Bruen] (gun rights), Dobbs [Dobbs v Jackson Women's Health Organization] (abortion rights) and West Virginia [West Virginia v Environmental Protection Agency] (administrative regulation of CO2).
All three cases were decided 6-3 along ideological lines. These cases involved the most basic issues of what the Constitution is and how it is to be interpreted. On those issues there is virtually no hope of one side ever convincing anyone from the other side. There just are two fundamentally irreconcilable visions of how this should work. The two visions can be summarized in just a few sentences each:
Vision 1 — The Constitution allocates powers to the three branches of government, and also lists certain rights entitled to constitutional protection. The role of the courts is (1) to assure that the powers are exercised only by those to whom they are allocated, (2) to protect the enumerated rights, and (3) as to things claimed to be rights but not listed, to avoid getting involved.
- Vision 2 — The Constitution is an archaic document adopted more than 200 years ago, and largely obsolete. The role of the courts is to implement the current priorities of the academic left and then somehow rationalize how that is consistent with the written document. If a right is enumerated in the Constitution but disfavored by the current left (e.g., the right to "keep and bear arms"), then the courts should find a way to uphold enactments that minimize that right down to the point that it is a nullity. If a right is not enumerated in the Constitution, but is a priority of the left (e.g., abortion), then that right can be discovered in some vague and unspecific constitutional language ("due process"). And if the left has a priority to transform the economy and the way the people live, but the Congress does not have sufficient majorities to enact that priority, then the Executive agencies can implement that priority on their own authority, and the role of the courts is to assist the agencies in finding something in the tens of thousands of pages of federal statutes, however vague and dubious, that can be claimed to authorize the action.
Suppose that you are on the Supreme Court, and you subscribe to Vision 2; and thus you find yourself time after time on the losing end of these 6-3 decisions. What's your strategy in writing your dissents? Actually, it's easy. The goal is to divert attention away from the actual Constitution as far and as quickly as possible. Instead, you argue that the position of the current left is the only moral position, and anyone who might oppose it is a monster. Does this have anything to do with the Constitution? No, but so what? Don't worry — you have the entirety of the media and academia to support you and to help keep the people from figuring out what you are doing.
Don't believe me? Let's look at the dissents in the three decisions that are the subject of this post. First, Bruen. Justice Thomas has written a majority opinion that basically says that the right to "keep and bear arms" is right there in the Constitution, Second Amendment, and that this right is entitled to the same recognition and status as the other rights in the Bill of Rights. Here is the first paragraph of Justice Breyer's dissent [PDF]:
In 2020, 45,222 Americans were killed by firearms. See Centers for Disease Control and Prevention, Fast Facts: Firearm Violence Prevention (last updated May 4, 2022) (CDC, Fast Facts), https://www.cdc.gov/violenceprevention/ firearms/fastfact.html. Since the start of this year (2022), there have been 277 reported mass shootings—an average of more than one per day. See Gun Violence Archive (last visited June 20, 2022), https://www.gunviolence archive.org. Gun violence has now surpassed motor vehicle crashes as the leading cause of death among children and adolescents. J. Goldstick, R. Cunningham, & P. Carter, Current Causes of Death in Children and Adolescents in the United States, 386 New England J. Med. 1955 (May 19, 2022) (Goldstick).
In the face of these statistics, how could you be against New York's gun regulation, you monster? Next up we have the joint Breyer/Sotomayor/Kagan dissent (no lead author) in Dobbs[PDF]. This time you must counter the Alito majority decision that says, basically, sorry, but the Constitution doesn't say anything about a right to abortion, so it's up to the states. Here again is the first paragraph:
For half a century, Roe v. Wade, 410 U. S. 113 (1973), and Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), have protected the liberty and equality of women. Roe held, and Casey reaffirmed, that the Constitution safeguards a woman's right to decide for herself whether to bear a child. Roe held, and Casey reaffirmed, that in the first stages of pregnancy, the government could not make that choice for women. The government could not control a woman's body or the course of a woman's life: It could not determine what the woman's future would be. See Casey, 505 U. S., at 853; Gonzales v. Carhart, 550 U. S. 124, 171–172 (2007) (Ginsburg, J., dissenting). Respecting a woman as an autonomous being, and granting her full equality, meant giving her substantial choice over this most personal and most consequential of all life decisions.
To oppose us would be to take women back to the Middle Ages. And what exactly does that have to do with the Constitution? Only a troglodyte could ask such a question! Obviously, the Constitution says whatever is needed to support these critical moral principles. I hope you're starting to get the idea how this is done. Now on to West Virginia. This time you must counter Chief Justice Roberts, who in essence says that since the Constitution grants "all legislative powers" to the Congress, administrative agencies can't undertake a complete transformation of the economy on their own authority. Your argument (this time from Justice Kagan) is: but this is just so terribly, critically important to save the planet! Here's the second paragraph of the Kagan dissent [PDF]. [Ed. note: For more on this dissent, see author's 5 July blog post]:
Climate change's causes and dangers are no longer subject to serious doubt. Modern science is "unequivocal that human influence" — in particular, the emission of greenhouse gases like carbon dioxide — "has warmed the atmosphere, ocean and land." Intergovernmental Panel on Climate Change, Sixth Assessment Report, The Physical Science Basis: Headline Statements 1 (2021). The Earth is now warmer than at any time "in the history of modern civilization", with the six warmest years on record all occurring in the last decade. U. S. Global Change Research Program, Fourth National Climate Assessment, Vol. I, p. 10 (2017); Brief for Climate Scientists as Amici Curiae 8. The rise in temperatures brings with it "increases in heat- related deaths", "coastal inundation and erosion", "more frequent and intense hurricanes, floods, and other extreme weather events", "drought", "destruction of ecosystems", and "potentially significant disruptions of food production". American Elec. Power Co. v. Connecticut, 564 U. S. 410, 417 (2011) (internal quotation marks omitted). If the current rate of emissions continues, children born this year could live to see parts of the Eastern seaboard swallowed by the ocean. See Brief for Climate Scientists as Amici Curiae 6. Rising waters, scorching heat, and other severe weather conditions could force "mass migration events[,] political crises, civil unrest", and "even state failure". Dept. of Defense, Climate Risk Analysis 8 (2021). And by the end of this century, climate change could be the cause of "4.6 million excess yearly deaths". See R. Bressler, The Mortality Cost of Carbon, 12 Nature Communications 4467, p. 5 (2021).
The text of the Constitution? The reservation of "all legislative powers" to the Congress? Those are for chumps. By page 5 of her dissent, Justice Kagan has made it clear that a statute that just said "The government must do everything appropriate to save the planet; EPA to implement." would be just fine with her to authorize the agency to transform the economy:
A key reason Congress makes broad delegations like Section 111 is so an agency can respond, appropriately and commensurately, to new and big problems. Congress knows what it doesn't and can't know when it drafts a statute; and Congress therefore gives an expert agency the power to address issues — even significant ones — as and when they arise.
Of the three decisions discussed, the one likely to have the most far-reaching impact is West Virginia. During his first days and weeks in office, President Biden issued one Executive Order after another instructing every part of the bureaucracy to figure out any way it could to implement the "climate" agenda. Statutory authorization? Who needs that? Now, not only is EPA's most expansive regulatory initiative getting shut down, but multiple other agencies have comparable gambits likely to fail in the courts. Most famously, the SEC is now out with 100 pages or so of new proposed regulations, mandating corporate disclosures of "emissions"; and the Federal Reserve supposedly is adopting saving the climate as a third of its missions (the other two being price stability and full employment). More such dubious initiatives are under way in agencies from the Department of Energy to the Department of the Interior.
A major transformation of the economy requires specific legislation duly enacted by Congress. Who could have thought of such a crazy idea?
Francis Menton blogs from the West Village neighborhood in Manhattan. He writes that "all in all, it has been a great place to live and raise a family." The one exception he notes is that "we suffer from a stifling political and ideological orthodoxy", the central tenet of which is that "all personal problems of the people in society can be solved by government taxing and spending." Not just "can be solved" . . . "MUST be solved". He long ago realized that not only does he not subscribe to the orthodoxy, he opposes it in almost every respect. Thus the name of his blog: The Manhattan Contrarian. He retired in 2015 after more than 40 years (31 years as a partner) at a New York City law firm. "Now I have lots more time to devote to the blog. Watch out world!" .