Justice Breyer to Court Packers: Not on My Watch

Justice Breyer writes in new book that "measures to restructure the Court could undermine both the Court and the constitutional system of checks and balances that depends on it."

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On Wednesday, President Biden's Commission on the Supreme Court will hold its first public meeting. (I've registered to attend on Zoom). I am fairly certain Justice Breyer will not be invited to testify. His new book throws down the gauntlet to the Court Packers.

Adam Liptak has the details:

Justice Breyer has been particularly adamant that politics plays no role in judges' work, and he recently suggested that it should also not figure into their decisions about when to retire.

"My experience of more than 30 years as a judge has shown me that, once men and women take the judicial oath, they take the oath to heart," he said last month in a lecture at Harvard Law School. "They are loyal to the rule of law, not to the political party that helped to secure their appointment."

In the speech, a version of which will be published in September as a book called "The Authority of the Court and the Peril of Politics," Justice Breyer said that the odor of partisanship damages the judiciary.

"If the public sees judges as politicians in robes," he said, "its confidence in the courts, and in the rule of law itself, can only diminish, diminishing the court's power."

Here is the description of his new book:

A sitting justice reflects upon the authority of the Supreme Court—how that authority was gained and how measures to restructure the Court could undermine both the Court and the constitutional system of checks and balances that depends on it.

A growing chorus of officials and commentators argues that the Supreme Court has become too political. On this view the confirmation process is just an exercise in partisan agenda-setting, and the jurists are no more than "politicians in robes"—their ostensibly neutral judicial philosophies mere camouflage for conservative or liberal convictions. As a result of this perceived crisis, and for the first time since the New Deal era, there is serious talk of court packing in the name of ideological balance.

Justice Stephen Breyer sounds a cautionary note. Mindful of the Court's history, he suggests that the judiciary's hard-won authority would be marred by reforms premised on the assumption of ideological bias. Having, as Hamilton observed, "no influence over either the sword or the purse," the Court earned its authority by dispensing impartial justice and thereby accumulating public trust. If public trust is now in decline, the solution is to promote better understanding of how the judiciary actually works: overwhelmingly, judges adhere to their oath to avoid considerations of politics and popularity. The peril facing the Supreme Court comes less from partisan judges than from citizens who, encouraged by politicians, equate impartial justice with agreeable judicial outcomes.

Breyer warns that public trust would be eroded by political intervention, dashing the authority of the Court. Without the public's trust, the Court would no longer be able to act as a check on the other branches of government and a guarantor of the rule of law, threatening the foundations of our constitutional system.

You hear that Dean Chemerinsky? Judges should "adhere to their oath to avoid considerations of politics and popularity." You hear that Court Packers? There is only a "perceived crisis" to gin up support for "court packing in the name of ideological balance." You hear that Senator Whitehouse? Politicians should not "equate impartial justice with agreeable judicial outcomes."

Justice Ginsburg refused to step down because of her narcissism. Justice Breyer is refusing to resign because of his principles. My respect for Justice Breyer continues to grow. He has a backbone of steel. I wish some of the conservatives would exemplify such fortitude.

The book will be released on September 7. I've pre-ordered my copy.

NEXT: The Chief Justice's Last Bulwark of Moderation: Limiting and Reframing Questions Presented

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  1. In his post immediately preceding this one, Josh writes:

    “I remain of the mind that a Court with seven conservative Justices would consistently reach conservative outcomes. Even before Justice Barrett’s appointment, I didn’t think six would be enough. Seven ought to do it.”

    1. You aren’t getting it. Conservative outcomes are the objectively correct outcomes, so conservative judges that rule that way consistently are just doing their jobs right, not being politicians in robes. Only liberal judges, moderates, and squishy conservatives that want to please the cocktail party crowd in D.C. occasionally are doing it wrong.

    2. Today’s 9-0 decision was a quite conservative decision. Deciding that the 4th amendment doesn’t allow police to search the house and sieze a man’s guns, despite any personal feelings about whether he should have access to his guns is exactly what all judges should do.

      Good judging usually has a conservative outcome, because fidelity to the constitution is a bedrock conservative value.

      1. Article 1, Section 4 gives Congress the power to legislate regarding elections to Congress, and the Fifteenth Amendment empowers it to ensure equal access according to race. Yet the conservatives on the court, with an opinion written by CJ Roberts, decided for themselves that the formulas and jurisdictions and states covered by the pre-clearance provision of the Voting Rights Act were too out of date, despite Congress having reauthorized the Voting Rights Act multiple times since 1965. Is that fidelity to the constitution?

        1. ” and the Fifteenth Amendment empowers it to ensure equal access according to race.”

          What’s complicated about it? It’s a matter of rational basis. You can’t claim to be acting to ensure equal access according to race, when you’re basing preclearance status off stuff that was half a century or more ago. Nobody in the state governments today had anything to do with the wrongs the preclearance status was supposedly based on.

          And pre-clearance, as such, is a pretty hardcore interference in state legislative authority. Telling a state its own legislation can’t take effect without federal approval, which can, (And has been!) be arbitrarily denied for reasons unrelated to equal access to voting? That’s really intrusive.

          Yes, Congress can, if it wants, take direct control over the rules for federal elections, and doesn’t have to justify doing so on the basis of the 14th amendment. But taking over control of state and local election rules actually does need a valid, not pretextual, 14th amendment basis.

          1. Yes, Congress can, if it wants, take direct control over the rules for federal elections, and doesn’t have to justify doing so on the basis of the 14th amendment. But taking over control of state and local election rules actually does need a valid, not pretextual, 14th amendment basis.

            If this is the case, then the remedy should have been to retain preclearance requirements for federal elections. But that’s not what happened.

            1. If this is the case, then the remedy should have been to retain preclearance requirements for federal elections. But that’s not what happened.

              Assuming that the same conditions exist in these states as existed 56 years ago. Do the same circumstances and pressures exist in these states to deny or abridge, on account of race, the rights of citizens of the United States to vote, as existed in 1965? If not (and few would say that the same level of Jim Crow prevails, despite rhetoric to the contrary) then why would retaining the original law be justified under the 15th amendment?

      2. Uh, except for Scalia, a muscular 4A is something you see from the liberal side of the Court more than the conservative.

        Good judging usually has a conservative outcome, because fidelity to the constitution is a bedrock conservative value.
        Well, this is some empty nonsense.

        1. Well you certainly see it in Thomas’s 9-0 decision. But I certainly will concede Roberts looks like he had a couple of teeth pulled going along with it:
          CHIEF JUSTICE ROBERTS, with whom JUSTICE BREYER joins, concurring. Fifteen years ago, this Court unanimously recognized that “[t]he role of a peace officer includes preventing violence and restoring order, not simply rendering first aid to casualties.”
          A warrant to enter a home is not required, we explained, when there is a “need to assist persons who are seriously injured or threatened with such injury.” (warrantless entry justified where “there was an objectively reasonable basis for believing that medical assistance was needed, or persons were in danger” (internal quotation marks omitted)). Nothing in today’s opinion is to the contrary, and I join it on that basis. “

  2. On this view the confirmation process is just an exercise in partisan agenda-setting, and the jurists are no more than “politicians in robes”—their ostensibly neutral judicial philosophies mere camouflage for conservative or liberal convictions.

    Sounds right to me. Tell me again on what basis Merrick Garland was rejected.

    1. Bernard,
      Tell me what that has to do with Stephen Breyer’s judgement.

    2. Merrick Garland was never rejected, that would have required hearings and a vote. His nomination was never considered.

      That isn’t the most common outcome, the last time a nominee didn’t receive a vote was Harriet Miers way back in 2005, she withdrew without a vote. And 6 times previously a nominee never received a vote because congress took no action before the legislative session expired.

      1. Nominees being withdrawn when it was clear that they might not or almost certainly would not get confirmed is not at all the same thing as McConnell announcing that no nominee would be considered before Scalia’s body was even cold. Just like he announced that Trump’s nominee would be voted on before RBG’s body was cold. And were those 6 times you refer to SCOTUS nominees or lower courts? And were they nominated with 10 full months left in the legislative session? There was plenty of time to consider Garland and have a vote before the summer. Barrett was confirmed in about a month from her nomination, so the expiration of the session was not an issue.

        Attempts to justify with precedent what the Senate GOP did with Garland and Barrett are doomed to failure because those moves were so transparently partisan.

        1. You seriously believe that Progressives would have done things differently had the situation been reversed?

          1. No way to know. But one’s acts cannot be justified by one’s guesses in response to hypotheticals about how the other side would behave.

            1. Understandably, you didn’t answer. Reps are pretty cowardly and follow rules, Dems push every boundary and when they lose they change the rules. Nuclear Option and Court Packing for instance.

              1. What is there to answer? It is a hypothetical that is impossible to know for sure. We only know what the GOP actually did do. I could guess that Democrats may have done something similar had roles been reversed, but even the worst example from recent decades that conservatives bring up (Bork) still had him getting a vote. Thomas got a vote and was confirmed, too. And you also know that if Democrats had ever done something like what happened to Garland, the Republicans would have raised holy hell about it, so what really is your point?

                What precedent in the last 100 years is there for the party in control of the Senate refusing to even hold hearings for a SCOTUS nominee that ended up leaving a seat open for 14 months? And do you even know why Reid and the Senate Democrats went ‘nuclear’ in the first place? The GOP was engaging in a level of obstruction over lower court nominees that was a big escalation over anything that Democrats had done to Bush. Such as also refusing to even consider 3 nominees to the D.C. Circuit Court of Appeals. (Probably what you meant by “Court Packing”, as they argued that they should be left open because the D.C. Circuit doesn’t hear as many cases as most other circuits. Which would be an argument for Congress to reduce the size of the Circuit, not to leave seats open.)

                Once McConnell became Majority leader after 2014, the process ground to almost a complete halt. Obama got hardly any nominees confirmed after that. Do I need to link to the video of McConnell chuckling during a Hannity interview as he took credit for why there were so many openings for Trump to fill?

              2. Understandably, you didn’t answer.

                No, I did. I said, “No way to know.”

                Reps are pretty cowardly and follow rules, Dems push every boundary and when they lose they change the rules.

                I understand that you believe this. Do you understand that liberals believe exactly the opposite?

          2. You seriously believe that Progressives would have done things differently had the situation been reversed?

            The other side would have done it, so we had better do it first! Do unto others before they do unto you!

            Is that your counter-argument? Sometimes it is nice when your opponents admit that there isn’t any higher principle involved, just a pure desire to win at all costs.

        2. Attempts to justify with precedent what the Senate GOP did with Garland and Barrett are doomed to failure because those moves were so transparently partisan.

          Of course it was partisan. The Senate is a partisan body. It refused to confirm a nominee. That was its right. Contrary to Justice Breyer’s position the Supreme Court is also a political body, unless you can explain a rationale grounded in the Constitution as to why having an abortion is a “liberty” protected by the Constitution but working for less than the minimum wage is not such a “liberty.” What other than personal political preference could be the explanation? I agree with Breyer, though, that there is no way that the purely political character of packing the Supreme Court could be hidden from the public the way these other things have been. The public would no longer demand that the president enforce Supreme Court decisions because the veneer of objectivity would have been obliterated.

          1. Contrary to Justice Breyer’s position the Supreme Court is also a political body, unless you can explain a rationale grounded in the Constitution as to why having an abortion is a “liberty” protected by the Constitution but working for less than the minimum wage is not such a “liberty.”

            The ability to work for less than the minimum wage is a liberty in the same sense that people can engage in BDSM if they want to, I suppose. The policy argument about what the minimum wage should be is not to say that it shouldn’t exist. You can have the “liberty” to send your child to work at a factory, choose to work in a place that isn’t safe, or work 60+ hours a week without overtime pay, but I’m sure that most people think that only desperate people without the real freedom to choose a better job would do those things, and that anyone employing workers under those kinds of conditions in a country this wealthy are exploiting their lack of real freedom. But then, liberty or not, Congress is explicitly given the power to regulate interstate commerce. It can certainly do so in what it judges to be the public interest. (Aside: While the Founders may have thought that there would be a clear distinction between what would be interstate commerce and what was entirely local commerce within a state, transportation and communication technology has virtually erased such boundaries when it comes to the labor market.)

            How would I argue in favor a right to an abortion? I’m so glad you asked. First, the whole point of the 9th Amendment is that you don’t have to point to a specific clause or text and say, “There it is.” You are permitted to “read between the lines”, or else you are ignoring the 9th Amendment and rendering it meaningless. It is not “textualist” or “originalist” to set aside whole provisions of the Constitution as having no effect.

            What we do find in the text of the Constitution does show that government must have very good reasons to impose force upon a person, physically. 4th Amendment protections against searches and seizures and 8th Amendment protections against cruel and unusual punishment, come to mind right away. We can also look to basic ideas of liberty and see that a person definitely should have the right to control their own physical condition. Would you argue otherwise?

            I’m also sure you would agree that government would never, under any circumstance, have the power to force someone to become pregnant, so it certainly should be upon government to demonstrate a rather powerful need to force someone to remain pregnant. The basic anti-abortion position is that government has an interest in protecting the developing human life inside the pregnant woman. Then we have to examine how powerful of an interest that is.

            First is the obvious biology that this life is not a person upon conception, but a single cell. (It isn’t even necessarily unique at that point, as it could still become separate cells when it first divides, aka, identical twins.) It has the potential to become a human person, but that isn’t the same thing as it being a person at that time. It has no history of thoughts, feelings, consciousness, memory, desires, fears, or anything else that we use to define ourselves as having a right to live. Even a newborn infant has a debatable level of such things, but at least then, it is not a burden to any one specific person, so there is no issue to be debated there. We are then left with deciding where in between conception and a full-term birth it becomes a person with an independent right to live.

            Most of that analysis is going to involve personal beliefs that government has no business regulating. The 1st Amendment guarantees freedom of expression, including, but not limited to religious expression. The clear intention was to protect a person’s individual right of conscience. The government can’t tell you what to think or believe.

            The current standard of viability of the fetus is suitable for this, as it doesn’t depend on individual beliefs about when a developing life has independent meaning. Once it can survive outside the womb, then terminating a pregnancy no longer has to result in the destruction of that life. If the woman doesn’t want to be pregnant anymore, then doctors can find a way to accommodate that desire without killing the fetus. Even if she is freaking out and wants it out of her at 6 months, it is not much more of a burden than what the woman has already undergone to wait another few weeks to induce labor or perform surgery to remove it at a time when the risks of complications for the newborn of being premature are lower.

            The main issue for me, though, is that pregnancy inherently involves risk. Even in the U.S., with all of our medical technology and belief in the superiority of our medical skills, one woman dies with pregnancy at least a substantial contributing factor for every 6000 live births. Prior to modern medicine and in developing countries today, the rate is much higher, and this rate has actually been increasing in recent years here, for reasons that are not entirely clear.

            We don’t legally require people to take any significant risk to themselves in order to aid others. You can’t be made to donate blood or other tissue, even if another person would die without it and the risk to you is negligible. We don’t even require people to be organ donors after they are dead. It is perverse, in my mind, to then require that a woman remain pregnant against her will for several months, taking that inherent risk, for a life that has never been a person, but based only on the possibility that it could become one.

            1. The ability to work for less than the minimum wage is a liberty in the same sense that people can engage in BDSM if they want to, I suppose.

              No. The 18 year old kid finds out that he hasn’t got the knowledge or experience necessary to be hired, so he agrees to work for less than the minimum wage in order to acquire the knowledge and experience. Furthermore, he would rather work for less than the minimum wage than go on welfare or go without eating. Is that deciding to engage in BDSM?

              First, the whole point of the 9th Amendment is that you don’t have to point to a specific clause or text and say, “There it is.” You are permitted to “read between the lines”, or else you are ignoring the 9th Amendment and rendering it meaningless.

              The 9th amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” It is referring to rights other than those enumerated in the constitution. Then you talk about rights that are implied by the 4th and 8th amendments. That doesn’t seem to follow. Nor is your definition of human life supported by anything that can be found between the lines of the constitution. Nor was there at the time of the 9th amendment a recognized right to have an abortion.

              But look, according to your reasoning the Supreme Court should be declaring almost a libertarian right to be free from any governmental interference concerning one’s own body, but the court has not done so. It has not declared a right to smoke opium, to take unapproved or experimental medications, or to work for less than the minimum wage, and it has not explained why a constitution liberty to have an abortion should be “read between the lines” in one case but not the other. Your explanation (and the court’s) seems to be that it’s good policy in one case but not in the other, but this is a political determination, not a judicial one.

              1. “It is referring to rights other than those enumerated in the constitution. Then you talk about rights that are implied by the 4th and 8th amendments. That doesn’t seem to follow.”

                Freedom of association is not in the Constitution. The Constitution does not demand the presumption of innocence in criminal prosecution or that a defendant be proven guilty “beyond a reasonable doubt”. The Fifth and Sixths Amendments don’t require that people suspected of crimes be told that they have those rights before their statements to government investigators and police could be used against them. Parental rights are nowhere to be found in the Constitution either. I don’t see what you are objecting to in what I was saying. Rights that aren’t explicitly enumerated in the Constitution can be implied as deriving from other rights that explicitly listed (SCOTUS considered Freedom of Association to come from Freedom of Speech, for instance), or they can be found in long-established history and practice. Gun rights supporters often appeal to a natural right of self-defense in addition to pointing to the Second Amendment, and self-defense is also not found explicitly listed in the Constitution. They also use that as justification for the right to carry other weapons besides firearms. Shall I go on?

                “Nor is your definition of human life supported by anything that can be found between the lines of the constitution. Nor was there at the time of the 9th amendment a recognized right to have an abortion.”

                The Constitution doesn’t define human life at all in a way that is helpful with understanding abortion. If the text of the Constitution isn’t helpful in finding a right to abortion, it is also unhelpful in finding a right to life that begins before birth. There was likely variation then, just as there is now, about what people believed regarding when a human life begins. Abortion was not recognized as a right then, but it was also not illegal in the states at the time, prior to “quickening” (when fetal movement can be felt, which is after the point that most abortions are performed). It wasn’t until after the Civil War that states started banning abortion at any point of pregnancy (and birth control, for that matter).

                “But look, according to your reasoning the Supreme Court should be declaring almost a libertarian right to be free from any governmental interference concerning one’s own body, but the court has not done so.”

                Yeah, and I think that it should. It should recognize a right to try experimental medications. There is legitimate government interest in protecting people from snake oil salesmen that would sucker people desperate for a cure to their illnesses that scientific medicine can’t fix, but reasonable regulations can be made that respect people’s rights. There is also a legitimate government interest in regulating intoxicating substances that can be abused and destroy the lives of those that become addicted and people around the addicts. But laws and regulations can be made that meet those needs while allowing people their liberty. (I’ll address the minimum wage again shortly.)

                There is a lot that I wrote regarding abortion that you didn’t respond to. I would say that any law that legally held a person responsible for failing to aid another person, when doing so would risk their own safety, would be unconstitutional. Do you agree? (There was the recent post by Eugene Volokh, I think, about a case involving a duty to aid someone when you are the cause of their distress, even if you were acting in self defense against an attack by that person. But I think he was on the side of saying that such a law could not hold a person liable if they were still in danger from that person.) If you do agree, then how would you explain to me why a woman could be forced to remain pregnant, even though remaining pregnant is a risk to both her health and life? I said that was the biggest, main issue that I have with restricting abortion, yet you didn’t address it at all.

                “The 18 year old kid finds out that he hasn’t got the knowledge or experience necessary to be hired, so he agrees to work for less than the minimum wage in order to acquire the knowledge and experience. Furthermore, he would rather work for less than the minimum wage than go on welfare or go without eating. Is that deciding to engage in BDSM?”

                If the minimum wage issue was really about young people with no experience working looking to learn and grow their income, then it would be an entirely different debate. You can’t conflate the wages paid to someone while doing on-the-job training with someone needing a job to buy food and pay rent. You still are not addressing the main thrust of my argument. Is the issue a person’s right to work for less than a minimum wage or does an employer have a right to pay less than some minimum wage for labor? Would the business have that right, even if it could easily afford to pay higher wages, but can get away with paying less because there are poor people out there desperate enough to work for wages that are too low to put food on their table? The whole point of progressives demanding a “living wage” is that below a certain point, a person would still be going without eating or paying their electric bill or rent or buying decent clothes, even working full-time. Does your idea of liberty include people with enough wealth and power having the liberty to take advantage of and exploit those with less? Government obviously can’t remove all unfairness from the world or the economy, but your position makes it seem like it should never try to address such unfairness at all. Maybe that is a core libertarian position. If so, it is an example of why I am not a libertarian. If private charities and philanthropy was sufficient to address inequality and economic exploitation, then it would have done so a long time ago.

                1. I don’t see what you are objecting to in what I was saying.

                  I was simply pointing to the incongruity of first pointing to the 9th amendment which referred to rights not found in the constitution and giving, as examples of that, rights that you claim are found in the constitution (if between the lines).

                  Abortion was not recognized as a right then

                  If it was not a right then, then it was not among the “others retained by the people” referred to by the 9th amendment.

                  Yeah, and I think that it should.

                  But that’s the point. It doesn’t. The court picks one “liberty” (abortion) out of thin air but then fails to explain why that liberty justifies special treatment and other liberties do not. That was the point of my original comment.

                  If you do agree, then how would you explain to me why a woman could be forced to remain pregnant, even though remaining pregnant is a risk to both her health and life?

                  Becoming pregnant is voluntary. Every woman knows how to avoid it with certainty. By failing to avoid it she has brought the life, or potential life, of another person into the mix. Whether it is to be considered a life or a potential life is not answered by the Constitution, nor is there anything “between the lines” that would answer the question. Questions like that are put to the democratic process if they are not clearly dealt with in the Constitution.

                  Is the issue a person’s right to work for less than a minimum wage or does an employer have a right to pay less than some minimum wage for labor?

                  No, it is the individual’s right to sell his own labor. What is the principle we can use to distinguish that from the right of a woman to have an abortion or the right of a person to enter into a gay marriage? Please supply the principle, and if the principle is not found in the Constitution please explain why it should be accorded constitutional power.

                  There is also a legitimate government interest in regulating intoxicating substances that can be abused and destroy the lives of those that become addicted and people around the addicts.

                  But explain why there is not also a governmental interest in regulating the potential life that a woman has brought into existence, and do so in a way that does not simply come down to the fact that you personally value one interest more than another.

                  Most of that analysis is going to involve personal beliefs that government has no business regulating.

                  By “no business regulating” are you saying that if a person believes that an eight month fetus is not a human life the government has no business interfering with the abortion of this fetus?

                  Gun rights supporters often appeal to a natural right of self-defense in addition to pointing to the Second Amendment, and self-defense is also not found explicitly listed in the Constitution. They also use that as justification for the right to carry other weapons besides firearms. Shall I go on?

                  Gun rights supporters make many claims, but the Supreme Court has not recognized a natural right of self-defense as a ground for the right to keep and bear arms.

                  1. Freedom of association is not in the Constitution.

                    To the extent that the association referred to is an association for the advancement of beliefs and ideas, then it is clearly a type of speech, and protected by the first amendment. To the extent that it refers to a right to maintain private associations free from governmental interference, the Supreme Court has held that they lack the full constitutional protections possessed by the other, and I am not convinced that they are protected by the constitution at all.

                    The Constitution does not demand the presumption of innocence in criminal prosecution or that a defendant be proven guilty “beyond a reasonable doubt”.

                    The due process clause of the fifth and fourteenth amendments is a reference to certain fair trial guarantees provided by English common law. That these rights were included is not an unreasonable interpretation. (It is an unreasonable interpretation that “without due process of law” referred to anything other than procedural guarantees of this kind.

                    The Fifth and Sixths Amendments don’t require that people suspected of crimes be told that they have those rights before their statements to government investigators and police could be used against them.

                    Indeed they do not, and nobody at the time of the 5th and 6th amendments thought that this right was protected. These were court-invented rights, but the court was not granted the authority to add new rights.

                    Parental rights are nowhere to be found in the Constitution either.

                    Meyer v. Nebraska, which created parental rights, was one of the first instances in which the Supreme Court used substantive due process in the area of civil liberties. Roe v. Wade was simply a continuation of this. It is illegitimate. Not every right that should have constitutional protection does indeed have constitutional protection. Why couldn’t the court simply say that the constitution doesn’t protect parental rights and let the people add that right? Instead, they assumed the authority to add those privileges “essential to the orderly pursuit of happiness by free men.” If the 5th amendment due process clause provided this then why were any of the other amendments necessary? Why is the right to sell one’s labor not essential to the orderly pursuit of happiness?

                    1. You keep making arguments that basically would read the Ninth Amendment into meaninglessness. You say that Freedom of Association is good because it can be said to be an obvious expansion of the Freedom of Speech, the presumption of innocence is a Due Process right established by history in English common law, and that the Court should not be inventing any other rights. (By the way, did English common law have a presumption of innocence equal to what the U.S. determined to be constitutionally guaranteed, or did the Court expand upon what rights British subjects had? Dare I say, invented?)

                      As for Miranda rights, you are misreading that precedent, and perhaps I led to that wrong interpretation just by bring it up. Miranda didn’t create any new rights. It declared that police needed to point out those rights to a suspect before questioning them because a person under police scrutiny while in custody by them could easily be led to believe that they didn’t have a choice but to answer questions, even absent unconstitutional coercion by the police. The Miranda reading was intended to remind a person of their rights so that the police couldn’t imply to a suspect that they didn’t have those rights. It was about making sure that their right to avoid self-incrimination and to legal counsel occurred in fact, and not just on paper.

                      What is your preference for how the Court should determine whether an unenumerated right exists, or are you really ready to toss the Ninth Amendment?

                    2. I have another comment awaiting moderation because it had two links in it. Here it is without the links.

                      Becoming pregnant is voluntary.

                      Then you will insist on rape exceptions unlike the new Texas law, I take it. Yet wouldn’t it contradict the very reason to want to restrict abortion in the first place to allow an exception for rape? This is where that whole “legitimate rape” thing that got Todd Akin in trouble came from. Some abortion foes know that it is contradictory to oppose abortion as being murder, yet allow an exception for rape or incest, so some came up with the brilliant idea to argue that a woman being violently raped would wouldn’t get pregnant because her body would respond and “shut the whole thing down”. (Never mind that this wouldn’t do anything to explain away women raped while unconscious or too intoxicated to know what was happening.) Thinking people knew that was just so much bullshit, but Akin probably heard that argument from some anti-abortion activists at some point and swallowed it because it fit what he wanted to believe.

                      Every woman knows how to avoid it with certainty.

                      No method of birth control is 100%, unless you mean not having intercourse at all, for which I point to what I just said about rape, or sterilization, which is irreversible. People like having sex. Yet sometimes, they won’t want to have a child. It’s not directly part of this legal debate, but I would certainly take the anti-abortion side more seriously about wanting to reduce abortion if it wasn’t the same people that fight against real sex education instead of abstinence-only programs proven not to work (and with some evidence that they are worse than not saying anything to young people at all), and that will slut-shame women that testify before Congress about the need for support obtaining effective contraception.

                      Questions like that are put to the democratic process if they are not clearly dealt with in the Constitution.

                      Unless you are talking about limiting someone’s fundamental rights, then you don’t get to duck out of it and leave it to a popular vote. You won’t claim that the right to life prior to viability is guaranteed by the Constitution, but you will let voters decide that life begins at conception and restrict a woman from terminating a pregnancy even if that puts her life at risk.

                      Exceptions to protect the woman are always specified as for medical emergencies, not the general statistical risk that such an emergency might occur. And when abortion is banned, ask Savita Halappanavar how well such exceptions work at protecting the woman’s life.

                      No, it is the individual’s right to sell his own labor.

                      And there has to be someone to buy it. Regulating commerce to be sure that both parties are engaging in a fair, market transaction without one side taking advantage of the other is commonplace. Why should labor be different? If I want to buy snake oil from someone that promises that it will cure my cancer, why shouldn’t I be able to? If I want to buy the services of a fortune teller that promises to help me find my missing child, why can’t I? The answer is that fraud is against the law, and it absolutely should be.

                      Exploiting a desperate person by paying them a wage too low to live on unless they work so many hours that they have no leisure time at all is not a right. Neither is failing to keep your workers safe as they work for you in order to avoid the costs of safety equipment or safe building design, or any number of other labor regulations that people fought for over the last century. You want to frame it as a worker’s right, but only because if you admit that if an already wealthy employer is taking advantage of a desperate person to increase their profits even more, you know it would just look greedy. Making sure that a minimum wage isn’t too high for businesses to be profitable enough to function and stay in business is a policy debate, not a constitutional one. Just like making sure that worker safety regulations and other labor laws are justified by facts and evidence is a policy debate rather than a constitutional one.

                    3. You keep making arguments that basically would read the Ninth Amendment into meaninglessness. … What is your preference for how the Court should determine whether an unenumerated right exists, or are you really ready to toss the Ninth Amendment?

                      The purpose of the first ten amendments was to limit the power of the new federal government. The first eight amendments enumerate certain specific limitations. The ninth amendment was intended to negate the assertion that the federal government has the authority to legislate in all areas except those specifically denied it. See the explanation here, which ends with the same question that I have been trying to get you to answer: “But, if there is a claim of a fundamental right that cannot reasonably be derived from one of the provisions of the Bill of Rights, even with the Ninth Amendment, how is the Court to determine, first, that it is fundamental, and second, that it is protected from abridgment?” Could you supply a clear and unambiguous answer to the question? Also, please explain the process by which abortion became a constitutional right under the 9th amendment given that you acknowledge that it was not among the “others retained by the people” when the 9th amendment was adopted. Same with gay marriage, which I assume you agree was not a right “retained by the people” in 1791.

                      Do you really think that the purpose of the 9th amendment was to give the federal judiciary carte blanche to alter the authority and power of the federal government with no oversight from Congress, the President or the States? The judiciary was denied a policymaking function at the founding when it was specifically excluded from participation in a “Council of Revision.” As founder Nathanial Gorham put it, “As Judges they are not to be presumed to possess any peculiar knowledge of the mere policy of public measures.” This is one of the principal problems. Why would anyone choose lawyers to determine what our fundamental rights should be? What special expertise do lawyers have to do this? They have no training in this area. Yet you are insisting that the founders intended to give authority to the judiciary to declare null and void any action of Congress and the President, based simply on its determination that certain legislation interfered with rights which are nowhere mentioned but which the judiciary thinks should be considered fundamental. You say that the founders went ahead with the Council of Revision but instead of merely including the judiciary they gave the authority exclusively to the judiciary. Really? And this power was intended to be given to an unelected judiciary for life? What do you say to the argument that the judiciary was specifically excluded from a policymaking role?

                      By mentioning such doctrines as freedom of association, presumption of innocence, and Miranda, you are apparently trying to get me to agree that there can be valid constitutional protections that are not supported by enumerated rights. But none of the rights you mention were said by the Supreme Court to depend on the 9th amendment. I explained which ones I thought were legitimately supported by enumerated rights and which ones were not. It it’s not supported it’s not legitimate. The fact that a specified concept such as due process may have required some historical inquiry and interpretation does not render it undefined or open-ended. To the extent the Supreme Court treated it that way they committed an error and exceeded their authority.

                      Miranda didn’t create any new rights.

                      Miranda created a right to be explicitly notified of a right to remain silent and a right not to be questioned further if an attorney was demanded.

                      Becoming pregnant is voluntary.

                      This was in response to your assertion that “any law that legally held a person responsible for failing to aid another person, when doing so would risk their own safety, would be unconstitutional.” So, my first response was that your example assumes that the person failing to aid the other person was not responsible for creating the condition in which the other person is found. This excludes the vast majority of abortions. Nor would it apply to any other case of abortion since a failure to aid is not the same as affirmative action to harm. And yes, not having intercourse at all is 100% effective in preventing pregnancy. If pregnancy is not the goal of intercourse then the purpose is a combination of pleasure and emotional satisfaction. It carries the known risk of pregnancy, in which another person’s welfare arguably enters into the equation.

                      Then you will insist on rape exceptions unlike the new Texas law, I take it.

                      You are referring to my personal preference but that is not the question. What I actually insist on is that all laws be created by a legitimate lawmaking authority. The judiciary is not a legitimate lawmaking authority. They interpret law made by the legislature or found in the Constitution. There is nothing in the Constitution that answers this question; you are willing to say that the judiciary has the authority to resolve any and all public policy questions not dealt with in the Constitution, even to the point of declaring void any contrary resolution by Congress, just by declaring it to involve a “fundamental right.” It just is not the role that anybody intended for the judiciary, or assigned to it, nor is it one for which they have any particular competence.

                      Unless you are talking about limiting someone’s fundamental rights, then you don’t get to duck out of it and leave it to a popular vote.

                      This begs the question, which is how something becomes a fundamental right.

                      You won’t claim that the right to life prior to viability is guaranteed by the Constitution, but you will let voters decide that life begins at conception and restrict a woman from terminating a pregnancy even if that puts her life at risk.

                      The pregnancy puts her life at risk and the abortion, arguably, puts the life of the baby at risk. Please clearly state the constitutional principal at work here, its source, and its resolution, given that the Constitution is silent on when life begins as well as what combination of preference, convenience, and risk of one person justifies ending the life of another. I just don’t see the answers in the Constitution, much as you might appeal to abstract philosophical principles that you find convincing.

                      (continued)

                    4. Exploiting a desperate person by paying them a wage too low to live on unless they work so many hours that they have no leisure time at all is not a right.

                      I didn’t propose this as a right of the employer.

                      You want to frame it as a worker’s right, but only because if you admit that if an already wealthy employer is taking advantage of a desperate person to increase their profits even more, you know it would just look greedy.

                      No, a person’s right to his own labor has always been considered fundamental, if not in a constitutional sense. Furthermore, are you not concerned by the racist origin of the minimum wage laws? It was originally used to keep Japanese and Chinese immigrants, as well as blacks, from underbidding the wage at which the whites would work. As Thomas Sowell puts it, “This is more than a theoretical point. Historically, lower skill levels did not prevent black males from having labor force participation rates higher than that of white males for every US Census from 1890 through 1930. Since then, the general growth of wage-fixing arrangements: minimum wage laws, labor unions, civil service pay scales, etc. has reversed that and made more and more blacks unemployable despite their rising levels of education and skills: absolutely and relative to whites.” Do you deny that reducing the minimum wage would reduce unemployment among the least-skilled? Why is it better for these people to be on the public dole?

                      You also seem to believe that if a person is willing to pay $7/hour for somebody to do a particular job, then it is only his greed that keeps him from being willing to pay somebody $15/hour to do that job, as if every person’s labor and every job produces $15/hour of benefit. Why not $50/hour of benefit? You also assume that every wage earner must earn enough to support a family of four but actually if he has a spouse then he only needs to earn half that amount and if he is a teenager without responsibilities to support a family it is less still. Finally, you assume that the opportunity to establish that one is able to be punctual, personable and reliable, traits far from universal and necessary prerequisites for getting a more substantial job, has no value.

                      But all this is beside the point. These are all policy considerations. Please specify the constitutional principle(s) which require the conclusions that (a) the life of a fetus is constitutionally subordinate to the convenience and reduction of risk for the mother, (b) a person has a constitutional right to enter into a gay marriage, but (c) a person does not have a constitutional right to sell his labor for an amount that the government considers to be insufficient. How do we know that the first two interests are constitutionally protected but the last isn’t? How can an interest be constitutionally protected without having any grounding at all in the written constitution?

                      In the end do you really support the notion that the personal preference of a majority of nine judges should be the law of the land with respect to what should be considered constitutional rights? If so, then what principled objection would you have if a majority of the current Supreme Court overruled Roe v Wade? Just stare decisis? Then explain why stare decisis should be observed in the case of Roe but it was not appropriate for it to be observed in the 2015 case of Obergefell v. Hodges, which required the overruling of the 1986 case of Bowers v. Hardwick. Suppose the Supreme Court declared that even human embryos were “persons” as that word is used in the 14th amendment. What constitutional principle would that run afoul of? If judges are seers with the authority to act outside the written guidelines then what principle would you cite as a basis for disagreement? I mean, beside the observations that you didn’t like the result and that you personally would have given different weight to the various considerations.

                    5. You quote from your link,

                      “But, if there is a claim of a fundamental right that cannot reasonably be derived from one of the provisions of the Bill of Rights, even with the Ninth Amendment, how is the Court to determine, first, that it is fundamental, and second, that it is protected from abridgment?”

                      Then you ask,

                      Could you supply a clear and unambiguous answer to the question?

                      I will do what I can, as someone not a legal scholar, in a moment. But, why don’t you answer that question? You surely have an opinion by now, if you didn’t before we started this discussion. Although, it seems to me, from reading other things that you have written, that you think that only those rights that can be drawn from enumerated rights or previously established rights in common law should be included. You think that using the Ninth Amendment as I would is too open-ended, but I think that was the point of the Ninth Amendment. And quite frankly, even if those that ratified it didn’t think so, the plain text of what it actually says makes it so.

                      A footnote in what you linked mentions Randy E. Barnett’s 1989 book, The Rights Retained by the People. In it, Barnett collects and discusses the writings of several authors. Check out this review of his book. There are a variety of arguments surrounding the Ninth Amendment. That review discusses one such argument that I mostly agree with:

                      Calvin Massey would impose a four-part test on the courts before a right could be enforced to overturn legislation. First, the court must find some textual foundation in the Constitution “however implicit or attenuated.” Second, the right should have some historical roots in the laws of the nation, the states, colonies, or the common law. Third, the right should be consistent with theories of natural law. Finally, the right should be broadly recognized by contemporary society as “inextricably connected with the inherent dignity of the individual.” Massey’s four-part interpretative analysis would result in a dynamic Ninth Amendment.

                      This is pretty good, I think, though I wouldn’t include that first part of the test. The point of the Ninth Amendment is to not require that an asserted right be listed, so requiring that it be textually connected to those specifically mentioned is contradictory to that, in my opinion.

                      I also wouldn’t rely so much on history. My biggest complaint with originalism is that those that wrote the Constitution, the Bill of Rights, and the 14th Amendment lived a long time ago. They could not have anticipated how human life would change with increasing human knowledge through scientific research and technology, and they were ignorant of many things about nature and human behavior that we understand now and take for granted. That they viewed homosexuality as a perversion is a clear example. (That word didn’t even exist until the late 1800’s.) It was simply beyond their conception that people might be inherently attracted, romantically and sexually, to the same sex rather than the opposite sex. Opposite sex attraction is what was “natural”, the Bible condemned it as an “abomination”, and that’s all there was to it. Anything else was “sinful”. While plenty of people still believe that today (though a decreasing amount of people), it is not a rational belief, and so it should not be used as a basis for discrimination in law.

                      How does abortion fit in? I would include in the “inherent dignity of the individual” a natural law right to control one’s own medical destiny and also a natural law right to not be required to put oneself at physical risk, even to save another person’s life. Thus, even if a majority of the people believe that human life with its own natural rights begins at conception, abortion could still not be banned, as a woman could not be legally required to risk her own life to benefit it.

                      This is what I have been saying the whole time, and you have never addressed this risk portion of my argument.

                    6. Please specify the constitutional principle(s) which require the conclusions that (a) the life of a fetus is constitutionally subordinate to the convenience and reduction of risk for the mother, (b) a person has a constitutional right to enter into a gay marriage, but (c) a person does not have a constitutional right to sell his labor for an amount that the government considers to be insufficient.

                      (a) Nitpick – abortions can occur before the fetal stage. The new Texas heartbeat law (heartbeats can be detected at ~6 weeks, which is still in the embryonic stage) would exclude abortions before that.

                      I think that is clear, from a biological point of view, that an embryo or fetus prior to viability is simply not a person in any sense that we use to declare human life to have value. When we mourn the loss of a person, we remember who they were and mourn the loss of that person’s unique personality, their lived experiences, and their connections and what they meant to us. An embryo or fetus has none of that.

                      We do also mourn the loss of what could have been, in the case of someone that died “too soon”, but that is something that goes along with the other aspects of mourning, and we don’t feel that way nearly so much for those that lived a long, full life. When prospective parents mourn a baby stillborn, or a miscarriage, they are mourning what they personally were hoping for. Then, clearly, they wanted a child, and the tragedy is with their loss. The child that they were hoping for never came to exist.

                      Since there is nothing in biology, the Constitution, or the history of the Founding era, for that matter, that requires us to view an embryo or fetus as equal in a right to live as person that was born alive, then that inherently subordinates it to the rights of the pregnant woman. (I’ve already addressed the post-viability part of the issue. In the extremely rare case that a woman would not want to be pregnant anymore after viability, that could be accommodated without destroying it, so that makes it a non-issue, legally.) A legislative majority that wanted to grant an embryo or pre-viable fetus a right to live would be doing so on its own, not with a basis in the Constitution or a historical foundation of understanding of when life begins from the Founding era (to the extent that this would matter). A majority cannot restrict the inherent rights of individuals in that way.

                      (b) Gay marriage is clearly understood by me to be an equal protection concern. I recognize those that are romantically and sexually attracted to members of the same sex as having the same rights to pursue such relationships as I do, so if I can marry a person of my choosing that also chooses me, then why should a gay person be denied that ability? That one has a clear basis in the Equal Protection Clause, in my mind, so I don’t see it as depending on the Ninth Amendment in any case.

                      (c) You still aren’t grounding a right to sell one’s labor for any price in the Constitution yourself. You are challenging me to say why this right doesn’t exist, but what I support does. But I am explaining why. I have repeatedly shown why I think a right to an abortion exists, and I have shown that it is clear that government has an enumerate power to regulate commerce to the benefit of the people (in its judgement). People have never had a right to sell their labor in any manner at all that they choose, just like people have never had a right to purchase labor in any manner at all. People have, on the other hand, always had a right to avoid risking their lives. They have always had a right to control their physical and medical future.

                    7. My biggest complaint with originalism is that those that wrote the Constitution, the Bill of Rights, and the 14th Amendment lived a long time ago. …

                      This is a disagreement with a constitutional form of government, if the constitution requires more than a majority to change it. And if it doesn’t, what makes it different from an ordinary law? There can be no guarantee of freedom of speech or due process or protection for minority rights beyond what the current (possibly riled up) majority chooses to tolerate. Is that what you want?

                      This is pretty good, I think, though I wouldn’t include that first part of the test. …I also wouldn’t rely so much on history.

                      That leaves (3) rights consistent with (somebody’s) theories of natural law, and (4) rights broadly recognized by contemporary society as “inextricably connected with the inherent dignity of the individual.” Does “broadly recognized” mean recognized by a simple majority? If you require more than a majority then you’re back to your originalism complaint. Is this public support determined through some kind of a formal voting process or do judges have an intuitive sense about this kind of thing?

                      Thus, even if a majority of the people believe that human life with its own natural rights begins at conception, abortion could still not be banned, as a woman could not be legally required to risk her own life to benefit it.

                      Wait, now we’re clearly back to your originalism problem. You’ve just substituted your moral preference for somebody else’s. What about the people in later times who believe that your preferences are mistaken? People will say that you “could not have anticipated how human life would change with increasing human knowledge…” What is your justification for saying that abortion could not be banned?

                      You think that using the Ninth Amendment as I would is too open-ended, but I think that was the point of the Ninth Amendment. And quite frankly, even if those that ratified it didn’t think so, the plain text of what it actually says makes it so.

                      Even by your interpretation of the 9th amendment, abortion and gay rights were not among the rights “retained by the people” in 1791, but the right to work at whatever rate of pay one chooses probably was. Some convincing arguments against Barnett’s view of the ninth amendment are given by Raoul Berger, in a law review article found without a paywall here.

                      According to Supreme Court Justice Iredell in 1798: “The ideas of natural justice are regulated by no fixed standard; the ablest and the purest men have differed upon the subject.” On what basis should it be assumed that the judiciary’s view of natural justice is likely to be sounder than that of the legislature? Justice Story wrote that if an English court possessed the “unbounded jurisdiction . . . arising from natural law and justice” ascribed to it, “it would be the most gigantic in its sway, and the most formidable instrument of arbitrary power, that could well be devised.” This is the authority that Barnett urges for the judiciary.

                      Do you really think that the founders chose to give unlimited authority to federal judges to divine which propositions of natural law have constitutional authority, and to abridge, at their whim, the power of the legislature, and that the people ratified this? Required courses in a lawyer’s training include contracts and criminal law, but not natural law. Why would you think that lawyers would be the appropriate people to be given undefined and unconstrained authority for life, practically irrevocable, to make such decisions?

                      The notion that the founders intended to give such extravagant open-ended authority ignores the fact that “A cultural suspicion of judicial ‘interpretation’ was widespread in late eighteenth century America,” and that there was “profound
                      fear” of judicial discretion, so much so that so that Hamilton felt constrained to assure the Ratifiers that of the three branches the judiciary is “next to nothing.” Surely, the authority to declare new individual rights is not “next to nothing.” It is an unlimited and undefined power claimed to have been granted to the federal government, in a section of the constitution devoted to limiting the power of the federal government.

                      Randy Barnett is a libertarian. He would like to see economic rights in the ascendant, allowing people to run their businesses the way they see fit, with minimal government interference. For example, he thinks that federal judges should be the final arbiters of whether it is “really necessary” to limit the number of taxicabs in a municipality, or whether a given merchant has a right under natural law to sell intoxicating substances. Government regulations would be slashed, at the sole discretion of the judges. Certainly, the minimum wage could be done away with or drastically modified. Heretofore, these have all been considered matters of policy, and judges are excluded from determinations of policy. You and Barnett would make judges the final word in matters of policy. The only limitations would be what the judges see as required by natural law. What do you think the effect would be on judicial confirmation proceedings?

                      Finally, you are left with the same question I posed last time. You may think that natural law should give a pregnant woman precedence over the embryo but under your view of the 9th amendment such questions would not be up to you, and I would like to know the reason for your apparent sense of assurance that your view of justice would prevail. This is a double-edged sword. If the Supreme Court majority concluded that the embryo has precedence you have no response except to say that it was not your view of natural law. Unfortunately there would be no objective standards by which to judge the judges. All such matters would have been taken out of the hands of the people and their elected representatives and entrusted exclusively to the judiciary. Is this really the system that you want, or the one that you think is called for by the 9th amendment?

                    8. You still aren’t grounding a right to sell one’s labor for any price in the Constitution yourself.

                      I can only ground this right in the Constitution when there are rules in place that allow judges to declare laws void if they violate the judge’s conception of natural justice. In that case I just work toward my political party having the power to nominate and confirm judges with my view of natural justice. It becomes a simple political equation after judges are turned into politicians by being given the authority to determine policy. This is the reason that judicial confirmations are much more contentious than they used to be.

                      People have never had a right to sell their labor in any manner at all that they choose, just like people have never had a right to purchase labor in any manner at all.

                      The only restriction on the right to sell labor has been the prohibition of certain types of labor. One can’t sell his labor as a hit man, for example. But, prior to the minimum wage laws of modern times, and with the possible exception of economies such as that in the Soviet Union, when the nature of the labor was not prohibited what government or society ever put restrictions on an agreement between a willing buyer and a willing seller?

                    9. (b) Gay marriage is clearly understood by me to be an equal protection concern. …so I don’t see it as depending on the Ninth Amendment in any case.

                      For the meaning of the equal protection clause please see this book, also by Raoul Berger. Congress enacted the Civil Rights Act of 1866, which secured to blacks the same right to contract, to hold property, and to sue, as whites enjoyed, and the “equal benefit of all laws for security of person and property.” However, there was a risk that with the southern states coming back in that this legislation could be watered down. The purpose of the 14th amendment was to protect the rights enumerated in the Civil Rights Act by enshrining them in the Constitution. “Political rights” were not included. Read the discussion and quotations in the section linked to above, titled “What Was Equal Protection to Protect?”

                      You would turn the equal protection clause into an unlimited, open-ended guarantee with no limitations, just like you would do for the 9th amendment. Do laws against bigamy violate equal protection? How about laws against incest where both participants are adults and there is no chance of pregnancy, or laws against prostitution or bestiality or prohibiting someone from walking down the street masturbating or sexually exposing himself for his own gratification? People can disagree about the wisdom of these laws but are they forbidden by the equal protection clause?

                    10. Do you really think that the founders chose to give unlimited authority to federal judges to divine which propositions of natural law have constitutional authority, and to abridge, at their whim, the power of the legislature, and that the people ratified this?

                      Of course they didn’t. They didn’t anticipate giving the Supreme Court the power to nullify executive actions or acts of Congress by declaring them unconstitutional at all (let alone the laws and actions of the states and local governments). But how well have the checks and balances on majoritarian rule alone worked at protecting people’s rights? Even the Supreme Court doesn’t get it right all the time, but without SCOTUS weighing in on Brown, Loving, Lawrence, or Obergefell, people would have waited how many years, possibly decades, to have obtained equal justice? Waiting for a solid enough majority of voters to demand action to give people their rights, when it was a previous majority that was denying those rights to them doesn’t make a lot of sense to me.

                      ou would turn the equal protection clause into an unlimited, open-ended guarantee with no limitations, just like you would do for the 9th amendment. Do laws against bigamy violate equal protection? How about laws against incest where both participants are adults and there is no chance of pregnancy, or laws against prostitution or bestiality or prohibiting someone from walking down the street masturbating or sexually exposing himself for his own gratification? People can disagree about the wisdom of these laws but are they forbidden by the equal protection clause?

                      That’s a really bizarre parade of horribles you’ve listed there, most of which aren’t even remotely connected to the question of gay marriage. As you said yourself, the Equal Protection Clause included the equal right to make contracts, and what is marriage if not a contract? Remember, the Equal Protection clause doesn’t say that Blacks get equal protection, but that no person shall be denied equal protection. Whether the people that wrote and ratified the 14th Amendment were mainly concerned about the freed slaves or not, they wrote “person”, so that means everyone. I contend that gay people have an equal right to enter into the same kind of legal marriage arrangement with a person of their choosing that straight people do. How does that lead to people being able to masturbate in the street? And polygamy is inherently a different arrangement than a two-person marriage, so that doesn’t follow from Equal Protection either.

                      You are really stretching here.

                    11. Waiting for a solid enough majority of voters to demand action to give people their rights, when it was a previous majority that was denying those rights to them doesn’t make a lot of sense to me.

                      But you didn’t answer why you are confident that the Supreme Court, if granted the authority you propose, would say that natural law aligns with the progressive wish list. Randy Barnett obviously hopes that an era of economic liberty would ensue. Is that what you hope for, more liberty for the capitalists and less government regulation? Or do you think that economic liberty is not a component of natural law? What makes you confident that a right to abortion is required by natural law? Google “natural law and abortion” and you will find many who reach the opposite conclusion.

                      You also didn’t answer why lawyers are qualified to determine which elements of natural law should be binding on American society, and put outside of the democratic process.

                      And polygamy is inherently a different arrangement than a two-person marriage, so that doesn’t follow from Equal Protection either.

                      You are saying that having three marriage partners is inherently different from having two marriage partners but that having marriage partners of the same sex is not inherently different from having marriage partners of opposite sexes. Could you explain the distinction in terms of your understanding of equal protection of the law? Please also address the case of adult incest.

                      Listen, I am not arguing that gay people should not have these rights, and they were widely being granted these rights through the democratic process. But I question the mechanism you have proposed.

                      That’s a really bizarre parade of horribles you’ve listed there

                      Perhaps my parade of horribles is more aptly applied to the situation of the right to have an abortion, which I think you did not defend on equal protection grounds. What principle, not depending on personal whim, requires a right to have an abortion but excludes rights in the cases in my parade?

                    12. Isn’t the equal protection argument for gay marriage simply that if heterosexuals have the right to marry the person they are sexually attracted to then homosexuals should have the same right, and that laws to the contrary intentionally discriminate against them as a class on this basis?

                    13. What principle, not depending on personal whim, requires a right to have an abortion but excludes rights in the cases in my parade?

                      I said this earlier.

                      How does abortion fit in? I would include in the “inherent dignity of the individual” a natural law right to control one’s own medical destiny and also a natural law right to not be required to put oneself at physical risk, even to save another person’s life. Thus, even if a majority of the people believe that human life with its own natural rights begins at conception, abortion could still not be banned, as a woman could not be legally required to risk her own life to benefit it.

                      You even quoted part of this, but then instead of addressing it, you just threw back questions asking me what if things change and people think differently? You didn’t actually address how I constructed the right to an abortion at all. This has been the problem with how you’ve been arguing this whole time. You ask me why I think a right to abortion exists, but then you switch to questions about why I trust judges to make that decision in the first place instead of addressing what I just said. Or, you present some list of other situations and insist that I address each single one as to why those don’t qualify as protected rights. You could be answering your own rhetorical questions quite easily, to be honest, but I have to conclude that you keep bringing them up as a dodge and distraction, hoping to bog me down in answering them, since you’ve never addressed my actual basis for the right to an abortion that I’ve laid out very clearly.

                      I think we’re at an impasse. I’m not going to devote any more time here, since you have us going in circles.

                    14. You could be answering your own rhetorical questions quite easily, to be honest, but I have to conclude that you keep bringing them up as a dodge and distraction, hoping to bog me down in answering them, since you’ve never addressed my actual basis for the right to an abortion that I’ve laid out very clearly.

                      Apparently you expect me to argue against your reasons why there is a natural law right to have an abortion, but arguments that you and I have on that subject are beside the point, which is this: why should we feel comfortable turning such questions over to people who have no objective standards by which to reach an answer? You say that natural law is invoked by the 9th amendment, and you are confident that natural law would protect the “inherent dignity of the individual” a natural law right to control one’s own medical destiny and also a natural law right to not be required to put oneself at physical risk, even to save another person’s life. I ask why you have that confidence, and why you are satisfied putting all such questions out of the reach of the democratic process and turning them over to an unelected group of lawyers for life. Apparently you consider such questions a dodge and a distraction but they are at the core of the issue. Instead you want me to address whether or not your defense of abortion would be found in natural law. The problem is that such questions should not be removed from the democratic process and entrusted to a standardless process that resembles a roll of the dice.

                      You pluck a rationale from natural law to prove a right to abortion, such as the “inherent dignity of the individual.” I ask for a coherent explanation as to why that same rationale wouldn’t require the acceptance of a number of activities that are currently illegal, such as adult incest. I think that is at the core of the problem but you call it a distraction. You apparently maintain that there is a distinction but you refuse to specify what it is.

                      The law of equal protection of the law deals with suspect classifications. You say that a prohibition on marrying someone of the same sex is such a suspect classification but a prohibition on marrying someone who is already married, or who is a close relative, is not, but when I ask why you say I should answer my own questions. I have trouble believing that you really don’t appreciate the problems I am pointing out.

                      You say that we should not be bound by the moral beliefs of those who lived a long time ago, yet you would turn around and bind those in the future. When I ask you to reconcile those positions you say that we are going in circles.

        3. There were entire presidential terms where the senate routinely ignored president’s SCOTUS picks (including refusing to ever hold a vote on a number of them). Most of them are in the 19th century, but they were in similarly hyperpartisan times.

  3. Justice Breyer’s unpersuasive take on Supreme Court politics calls his own political acuity into question. The political bullet he wants to dodge was fired more than 4 years ago, during the Obama administration.

    1. He’s a judge, not a politician, and he’s 10 times smarter than you and knows 1,000,000 times more about being a judge than you do.

      And he doesn’t give a crap what you think of his “political acuity”. He’s Stephen Breyer, and you are some hamburger on the Internet.

      1. I’m sure I can find all kinds of posts from you telling people how Dr. Anthony Fauci is 10 smarter than they are and knows 1,000,000 times more about infectious diseases than they do when they disagreed with him about COVID.

        If Stephen Lathrop is just some “hamburger on the internet”, then what does that make you? Chopped liver?

        1. Anthony Fauci graduated 1st in his class from medical school, does know 100 times more about infectious diseases than you do, fought more of those diseases than you know the names of, Jason, and he has shown courageous leadership of NIAID since the mid 1980’s.
          Those are his credentials. What are yours?

          1. And really ought to come clean about his relationship with a certain lab in Wuhan.

            Josef Mengele also had impressive credentials, a PhD in Anthropology as well as a MD, but that’s not what he’s remembered for…

          2. Don Nico,

            Did you miss that I was commenting on Dilan Esper’s blatant appeal to authority and personal attack on Stephan Lathrop and not really commenting on Fauci’s expertise?

            1. For your information, “appeal to authority” is not some talisman to be used against any expertise. Experts DO know more than us- you do not have your best friend do complex surgery on you because going to a skilled surgeon would be an “appeal to authority”.

              The informal fallacy is assuming that authority figures are always right. I did not do that. I simply said that for a hamburger on the Internet to be decrying Justice Breyer’s supposed lack of “political acumen” is ridiculous.

              1. That would not be ‘appeal to authority’. Appeal to authority applies only to *argument*, and is properly invoked whenever someone would defer to authority without requiring the authority to adequately argue their point. Being an authority should mean they’re better equipped to argue their point – they don’t get to skip making the argument because of that authority. (Which is why appealing to their authority in lieu of argument is a fallacy).

                (Relevant to your analogy, performing a complex surgery isn’t an argument).

              2. Dilan,

                You went after Stephen for criticizing Breyer’s political acuity right after saying that he was a judge, not a politician, so it was already pretty off target for you to then say that Breyer would be much better at understanding something political than Stephen. You also said that Breyer was “10 times smarter” than Stephen, which isn’t even about expertise. So, perhaps appeal to authority wasn’t the only fallacy in there, but also the pure ad hominem nature of what you said is at issue. Notice that you didn’t actually dispute a single thing that Stephen said.

                The informal fallacy is assuming that authority figures are always right. I did not do that.

                Right, you just placed Stephen so far below Breyer in intelligence and experience that Stephen’s arguments should be considered worthless by comparison. That is perfectly valid logic.

          3. Sorry, Fauci is a animal of the federal government and does its bidding. There are many people as smart and knowledgeable that have different opinions.

            1. The federal government does not have a “bidding.”

      2. Thank you, Dilan!

      3. He’s smart but he’s being disingenuous. Supreme Court judges frequently time their retirements so as to get a like minded successor. Everyone knows that, it’s clear from history, and some have admitted it.

        1. Actually a law review study was published in 2019 that showed that “strategic retirements” of Supreme Court justices are not as common as folks like Scott Lemieux claim they are.

          They clearly happen, but not most of the time.

          1. I would think that the phenomenon would manifest itself — as apparently with RBG — the opposite way. Not that justices sometimes retire because they like the person in the Oval Office, but that justices sometimes refuse to retire because they don’t like the person in the Oval Office.

      4. I’m frustrated too, but Breyer’s insistence on ignoring practical outcomes hews to the principled juridical paradigm he espouses.

    2. I call your political acuity into question too. Court packing is a dud of an idea, and it’s going nowhere. It needs 60 votes and it probably can’t even get 48.

      Breyer says the court is working well as it is now, I think he knows what he is talking about.

      I really wonder who could possibly think it would be a good idea to turn the supreme court into a House of Lords with 600 members appointed for life.

      1. Kazinski, I have offered my own proposals to solve the politicized court dilemma, several times. Of course you may have missed them. To summarize, nothing you criticize is featured in anything I would propose.

        I would put initial focus on resetting the balance upset when Scalia died, and McConnell hijacked the Senate process to bar Garland. The reformist plan to follow would not only strive to find a way NOT to give a clear majority to Democrats, but would also strive to strip a perceived illegitimate majority from Republicans.

        There are options for that—either impeachments or added justices could work. If it is desirable to keep the current Court roster at 9 Justices, impeachments (or “voluntary,” resignations) would be better. Clearing out all 9 existing justices as too-political might be the right choice.

        Absent that kind of political power play, another kind of political power play—to pack the Court on behalf of political balance—would suffice. Whatever was done, reform would require that it stop short of delivering partisan advantage to Democrats. The easiest way to assure that outcome would be to get all the present justices off the court, and then adjust Senate rule making to make it impossible to replace them with a new crop of politicians in robes.

        With the Court’s partisan balance forced by political power into something like equipoise, have a Democratic-controlled Senate pass super-majority requirements so strong they force the Senate to reject all nominees who bring notable political valance. Make Senators focus instead on issues like legal acuity, judicial temperament, good writing, collegiality, and whatever other non-political characteristics define a great judge. The aim would be to create a situation where either party in the Senate would be content to let the other party pick the next nominee, because none but apolitical nominees could win consent.

        Obviously, that kind of reform could never happen absent political happenstance which delivers overwhelming political power to Democrats. They must win power sufficient to do whatever they choose with the Court. Republicans will not voluntarily give up their treasured political gains on the Court, regardless of what the benighted Breyer thinks is going on around him.

        But given sufficient political power for Democrats, probably won in a wave election—and given sufficient constraint by them (a daunting question, of course)—Democrats could compel Republican cooperation. A reform plan could be presented as a take-it-or-leave-it offer, with the alternative an out-and-out political coup imposed on Republicans by sheer Democratic power. The Republican choice would be balance, or all power to the Democrats.

        What I describe is obviously well beyond the scope of everyday politics. So is ongoing partisan breakdown of the Court’s judicial process. The choice seems to be political upheaval under wise direction (admittedly a long shot), or an end to the Supreme Court’s public acceptance as a legitimate arbiter of cases and controversies (an unacceptable outcome.)

        Please do not try to argue this Court enjoys legitimacy. It does not. Not any more than a packed pro-Democrat Court would enjoy legitimacy. It invites great trouble to attempt to run this nation without a judicial system broadly accepted as legitimate. But the nation does not have that now. It is terribly unwise to continue as things are now headed.

        1. It invites great trouble to attempt to run this nation without a judicial system broadly accepted as legitimate. But the nation does not have that now. It is terribly unwise to continue as things are now headed.

          So your view is that the public has already written the Supreme Court off as simply another political body and that only by using brute force to revise the political balance will it be accepted as legitimate. Seriously? Actually, the only way to move in the direction of legitimacy would be for the Supreme Court to ground its decisions in the text of the Constitution. The failure to do so is what has brought us to the current situation. That means that the Court must not assert that something such as abortion is a protected constitutional liberty without explaining why something such as working for less than the minimum wage is not. Oddly, heretofore it has only announced abortion as a liberty, but has never explained a rationale that can be understood by anybody lacking powers of divination.

          1. One thing about court packing is that the folks who actually have to practice law and who understand what courts actually do on a day to day basis tend not to support it very much.

            It’s easy to write off SCOTUS as a “political body” if you never send briefs up there.

            1. ” the folks who actually have to practice law and who understand what courts actually do on a day to day basis tend not to support it very much ”

              Did they support McConnell’s political handlings of the two most recent vacancies?

  4. The gratuitous swipe at Justice Ginsburg marred an otherwise interesting and thought provoking post.

  5. I’m unclear on one point. If any actual effort at “court-packing” be initiated, what will Breyer’s role be?

    1. I’m unclear on one point. If any actual effort at “court-packing” be initiated, what will Breyer’s role be?

      Absolutely nothing, as far as I can tell. He’d be nothing but a spectator.

    2. I’m unclear on one point. If any actual effort at “court-packing” be initiated, what will Breyer’s role be?

      The Supreme Court can make anything their business. It was at one time universally believed that it was no business of federal courts if states wanted to model the upper house of their state legislature after the U.S. Senate, giving an equal vote to each county in the state, and most states used that model, but the Warren Court announced that it had authority over the states in this area and that everyone’s long-standing contrary understanding was in error. Whose to say that a similar thing couldn’t happen to the previous belief that the power of Congress to add new supreme court justices was plenary and that federal courts did not have jurisdiction in this area?

  6. 800-Some views on the rulemaking notice with the address to register for the Zoom meeting (the window for which expired a few hours before this post); a slightly more noticeable notice might have have better served the Commission’s purposes.

    So, here’s a thought. Contrary to conventional wisdom and the occasional preachy article in The Green Bag, there’s nothing in the Constitution or any of the statutes from 1789 onward that determines that the legislatively set quorum of the court is required to hear all cases.

    First level: Historically and theoretically speaking, a quorum is required by the terms of the commission of the court — Gaol Delivery, Oyer and Terminer, what you will. And in the US system, the legislature doesn’t issue the commission by which the Supreme Court acts; as a constitutional court, its fiat was set in 1788. As a matter of historical practice, the Court has accepted the legislative quorum rule of 1789 (4), but the Court has certainly frequently sat while under the (later six-member) statutory threshold of members. (Not to mention the wandering in and out during early sessions.)

    Second level: As a matter of historical judicial practice, a court can certainly vote en banc to constitute panels to hear and decide cases. In the earliest forms of assize jurisdiction in England, decisions were reached made on circuit that would only later be enacted by their Westminster court in formal session. In later assize practice, panels were frequently composed of justices who held of different courts (making for some awkward disagreements on the law), who then had to compose an assize bench that met the quorum terms of the relevant commission — so the authority to rule isn’t necessarily coterminous with the commission that sets the terms of the meeting.

    Just a thought.

    Mr. D.

  7. So Breyer is either providing an excuse for why he won’t be resigning prior to the midterms or is trying to lay the groundwork for why his doing so should not be seen as political.

  8. ” Breyer warns that public trust would be eroded by political intervention, dashing the authority of the Court. ”

    Shall we label that the “Garland Rule,” or the “McConnell Rule?”

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