Reversing The Burger Court

The Supreme Court has largely left Warren Court precedents in place, but is consistently undoing precedents from the Burger Court.

In my new Civitas column, I explain how President Trump is, in many regards, refighting the war that was waged against President Nixon. In the process, Trump is butting against many precedents of the Burger Court, including United States v. Nixon and Train v. United States. I suspect that both of these cases would no longer command a majority of the Court.

Taking a step back, it is striking how many of the decisions by the Burger Court have been overturned in recent years, even as precedents of the Warren Court remain inviolable.

Consider some highlights (or lowlights, depending on your perspective).

1. Roe v. Wade (1973) was reversed by Dobbs v. Jackson Women's Health Organization  (2022).
2. Board of Regents of California v. Bakke (1978) largely upheld the use of affirmative action policies. This decision was (basically) reversed by Students for Fair Admission v. Harvard (2024).
3. Lemon v. Kurtzman (1971) prohibited any "entanglement" between church and state. Kennedy v. Bremerton School District (2022) effectively overruled the Lemon test.
4. Abood v. Detroit Board of Education (1977) upheld the power of public sector unions to mandate certain dues from employees. Janus v. AFSCME (2018) overruled Abood.
5. Chevron v. NRDC (1984) ruled that courts should defer to administrative agencies when a statute is "ambiguous." Loper Bright v. Raimondo (2024) overruled Chevron deference.
6. Ramos v. Louisiana (2020) overruled Apodaca v. Oregon (1972).
7. Franchise Tax Board of California v. Hyatt (2019) overruled Nevada v. Hall (1979).
8. Knick v. Township of Scott (2019) overruled Williamson County (1985).
9. Rucho v. Common Cause (2019) overruled Davis v. Bandemer (1986)

Most of the current Justices came of age when the Burger Court was in power. They perhaps see this Court as prone to reversal. I think Justice Thomas stated the issue well:

"At some point we need to think about what we're doing with stare decisis," Thomas said Thursday, referring to the legal principle of abiding by previous decisions. "And it's not some sort of talismanic deal where you can just say 'stare decisis' and not think, turn off the brain, right?"

The Court's senior conservative suggested that some members of the Court over the years have blindly followed prior judgments, comparing them to passengers on a train.

"We never go to the front see who's driving the train, where is it going. And you could go up there in the engine room, find it's an orangutan driving the train, but you want to follow that just because it's a train," Thomas said.

"I don't think that I have the gospel," he said, "that any of these cases that have been decided are the gospel, and I do give perspective to the precedent. But it should — the precedent should be respectful of our legal tradition, and our country, and our laws, and be based on something, not just something somebody dreamt up and others went along with."

So who is the "orangutan" driving those trains?

I've heard it said that Chief Justice Burger could have done more on the Court if he had more conservative votes. I'm not so sure. Burger was in the majority of most of the overruled cases. He assigned Roe to Justice Blackmun and wrote the majority opinion in Lemon. Justice Rehnquist, appointed around the same time, was often the lone voice of reason.

To pile on a bit more, former-Chief Justice Burger described an individual Second Amendment right as "one of the greatest pieces of fraud, I repeat the word fraud, on the American public." The Supreme Court emphatically rejected Burger's glib comment in District of Columbia v. Heller (2008).

Chief Justice Burger stepped down from the Court in September 1986. His resignation allowed President Reagan to promote William Rehnquist to Chief Justice, and appointed Antonin Scalia to the Supreme Court. In many regards, Burger's departure ushered in the modern originalist revolution. If only Justice Powell had stepped down earlier, we would likely have never known of a Justice Kennedy.

Comments

[Martinned]

the war that was waged against President Nixon

Wait, what?

[ducksalad]

Blackman is young, born well after Watergate and probably not even aware of politics until well into Clinton's term.

He's never known a time when a politician's own party would think his obstruction of justice was a serious crime.

[Keldonric]

Your comment made me think of Madison’s veto of the Bonus Bill. He actually supported the purpose of funding internal improvements, but still blocked it on principle because he believed Congress hadn’t been delegated the power.

[Krayt]

Shades of arguing the justice of redistribution of wealth, or of borrowing from future generations to pay for pay-as-you-go stuff (as opposed to borrowing for things that are long-term benefits, like wars, where loss benefits no one, or infrastructure, which lasts decades. But goodies the current generation wants but refuses to pay for?) People used to discuss the propriety of these things philosphically.

[Sisu]

What were the "charge(s) filed" against Pres Nixon ? And, in what court were they filed ? ...

What were the "impeachment charges" adopted by Congress (not the judiciary committee) ?

Is an Article. II. Executive entitle to the presumption of "innocent until proven guilty" ?

Did not President Nixon state in his resignation speech state:

"... I would have preferred to carry through to the finish whatever the personal agony it would have involved, and my family unanimously urged me to do so. But the interests of the Nation must always come before any personal considerations. ... "

President Ford's discussion of his Pardon of President Nixon:

"... The facts, as I see them, are that a former President of the United States, instead of enjoying equal treatment with any other citizen accused of violating the law, would be cruelly and excessively penalized either in preserving the presumption of his innocence or in obtaining a speedy determination of his guilt in order to repay a legal debt to society.

During this long period of delay and potential litigation, ugly passions would again be aroused. And our people would again be polarized in their opinions. And the credibility of our free institutions of government would again be challenged at home and abroad.

In the end, the courts might well hold that Richard Nixon had been denied due process, and the verdict of history would even more be inconclusive with respect to those charges arising out of the period of his Presidency, of which I am presently aware.

But it is not the ultimate fate of Richard Nixon that most concerns me, though surely it deeply troubles every decent and every compassionate person. My concern is the immediate future of this great country. ..."

Was President Ford's Pardon of President Nixon more egregious than the "Autopen's" pardon of the Biden "co-conspirators" ?

Ducksalad, Have you ever done anything courageous, knowing that there would be those who would disparage and ridicule you simply to "go along, to get along" (i.e., unable to educate or think for themselves) ? ... I cannot think of one yippie from the past who ever made a positive contribution to humanity.

[ducksalad]

I have several answers for you, Sisu.

1. My apologies to you and Mr. Nixon for omitting the word "alleged", if that is what you're concerned about. In if the past I've neglected to use the word "alleged" when referring to crimes allegedly committed by Warren Harding, Porfirio Diaz, or Attila the Hun, none of whom received a jury trial, I apologize for that as well.

2. An Article II executive is entitled to the presumption of innocence when threatened, in a US court, with a criminal sentence. Outside that context, in my personal opinion, every POTUS in my adult life has been a criminal. Not all *equally* criminal, of course.

3. There was nothing egregious at all about Ford's pardon. His moral reasoning was not invalid and it's at least arguable the pros outweighed the cons. It could be described as (mildly) courageous considering Ford took the political hit himself. Or not.

4. Have you ever done anything courageous?. I have no intention of nominating myself for a Nobel Peace Prize, nor will I be writing a campaign biography with "Courage" in the title.

[wvattorney13]

Watergate happened a couple of years before I was born but I think that Ford's pardon of Nixon was appropriate. I don't think it would have served the nation well to have an ex-President go to prison except in the most egregious of circumstances.

That being said, I think it was most unfair that the underlings like Liddy, Haldeman, et al. had to serve time when Nixon got away from it all. I forget who, but someone proposed a grand bargain whereby all draft dodgers and Watergate criminals would be pardoned.

I thought Biden could have stepped up in his final days in office by doing something similar: pardoning Hunter, Trump, the J6 protesters/rioters, and the BLM protesters/rioters. But that was not to be.

[thesafesurfer]

Geoff Shepard, Harvard Law 1969, has the most important recent writings on Watergate. He was Nixon and Ford's Associate Director for General Government. He was also Nixon's deputy defense counsel during Watergate.

[ducksalad]

Nixon had a conscience and a sense of duty when it came to stuff that he thought was important.

In 1960, he had a *much* better case than Trump 2020 that election fraud had cost him the election. He declined to pursue it, saying that "our country cannot afford the agony of a constitutional crisis.” He even conceded a state (CA) it turned out he actually won, just to get the election resolved promptly.

And to your point: he could have pardoned all his subordinates, but by the standards of the time, that would have been considered a grave abuse of his powers, and he decided not to go there. At the time of resignation he had no promise of a pardon and could have faced criminal charges himself.

[Michael P]

It's sad state of affairs that Richard Nixon had stronger ethics than any Democrat president since him.

[neurodoc]

What argument would you make in support of the 1/6/2021 crowd? You approved of their pardoning by Trump, along with all of his other pardons to date? What commendable purpose(s) do you think were served by them?

[Jack Jordan]

wvattorney13, please see my comment below quoting our Constitution. It is far more unfair that average Americans are prosecuted for committing crimes, but the people whom we should hold to the highest standards are allowed to commit crimes against the nation with impunity.

Every public servant (including any who ever got prosecuted (or who should have been prosecuted)) acknowledged that their first, foremost and constant duty was "to support" our "Constitution" in all official conduct, as Article VI requires. As required by federal law (5 U.S.C. 3331), every executive branch employee below the president and every judge acknowledged that his or her first, foremost and constant duty always is to "support and defend" our "Constitution" against "all enemies, foreign and domestic" and to always "bear true faith and allegiance to" our Constitution.

Article II similarly requires the president to acknowledged that his first, foremost and constant duty to "preserve, protect and defend the Constitution of the United States" to "the best of" his "Ability," and the foregoing duty specifically includes the duty to always "take Care that the Laws" enacted or approved by Congress are "faithfully executed."

The very dangerous inclination to make our Constitution irrelevant was addressed hundreds of years ago by Chief Justice John Marshall (writing for SCOTUS) in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). Marshall and SCOTUS specifically addressed the great significance of the oath required by Article VI, and his pronouncements necessarily are equally relevant to the oath required by Article II and 5 U.S.C. 3331 and any other relevant law.

"[I]t is apparent, that the framers of the constitution contemplated that instrument, as a rule for the government of courts, as well as of the legislature.

Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies, in an especial manner, to their conduct in their official character."

Any person violating the oath in Article II, Article VI, 5 U.S.C. 3331 or other federal or state law prescribing an oath to support our Constitution commits “worse than solemn mockery” of our Constitution, and any person who dares “take this oath” without believing it commits “a crime.”

“Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of [any] legislature" (ANY act of ANY public servant) "repugnant to the constitution, is void.”

Obviously, "the constitution is to be considered, in court, as a paramount law," so courts cannot "close their eyes on the constitution, and see only the law." Any purported "doctrine" to the contrary "would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void; is yet, in practice, completely obligatory." It "thus reduces to nothing what we have deemed the greatest improvement on political institutions—a written constitution."

[Krayt]

I always felt "allegedly" was a legal cover-your-ass thing for journalists.

Logically, prosecutors never allege anything. They flat out claim Soandso committed this crime.

"Oh yeah? I'll see you in court!"

"Yes. That is the point."

[Jack Jordan]

Krayt, prosecutors necessarily do allege. Prosecutors (and plaintiffs) necessarily start by alleging facts that must be proved in court. The point of the proceedings is to ascertain whether the allegations can be proved consistent with rules governing evidence, including the relevant burden of proof.

Especially regarding criminal matters, saying "allegedly" serves an important purpose that promotes justice. Obviously, mere allegations aren't proof. Even so, too many people are far too inclined to judge based on mere allegations. Instead of presuming a defendant innocent, many presume the defendant is guilty. Far too many are far too inclined to judge people based on the mere assertions of mere journalists or pundits. Saying "allegedly" is a reminder not to make such mistakes.

But you're right that sometimes saying "allegedly" is pretty silly. When we have access to the facts establishing that allegations are true, then saying "allegedly" seems more like a crutch for someone too lazy to just walk.

[Jack Jordan]

Sisu, regarding whether "an Article. II. Executive" is "entitle[d] to the presumption of "innocent until proven guilty" you need to ask about a different but inextricably intertwined principle. You must ask who must bear the burden of proof in the proceeding at issue?

Presumptions stated by courts have a very limited legitimate scope. They are (and must be) limited to litigation in a particular context. Such presumptions make sense legally only as a mere corollary of a particular legal burden. A legal presumption favoring one party always must be paired with a legal burden that the other party must bear. Stating a legal presumption in court proceedings is simply another way of stating a legal burden of proof or a legal burden of production of evidence. Nothing more.

The classic example of a presumption paired with a burden is in criminal law. Everyone knows of this presumption, and it highlights that the government does not and cannot always benefit from any presumption that government employees acted in "good faith or with "regularity" or did not violate our Constitution. In a criminal case, the government always must prove every material fact establishing guilt beyond a reasonable doubt. The corollary is that the defendant enjoys the presumption of innocence. There is no presumption favoring the government.

Justice Kagan's dissent in Alexander v. South Carolina State Conference of the NAACP in 2024 also explained how presumptions (in litigation) must be paired with a particular burden (in litigation).

[Jack Jordan]

Sisu, it was a national shame that Ford pardoned Nixon. One of the greatest services Nixon and Ford could have rendered to the U.S. at that time would have been to insist that Congress enact legislation that regulated impeachment trials more like criminal trials.

Ford was correct to be concerned about the existing process denying a citizen due process of law. Impeachment and the trial should be much more legal processes (with rules prescribing the process of law that is due) than they are. They should not be decided on the basis of mere politics or mere personal preference (including vague claims about what is good for the nation).

Our Constitution specifically commands that "[t]he President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."

Articles I, II and III did not vest in any public servant any power to violate that command or obstruct the justice it prescribed. Article VI emphasized that "the supreme Law of the Land" is, first, our "Constitution, and" then the federal "Laws" that were "made in Pursuance" of our Constitution (including all federal rules of procedure and evidence) "and all Treaties" and all legislators and "all executive and judicial Officers, both of the United States and of [all] States" are "bound" to "support this Constitution." Failing to try Nixon according to real rules of law constituted an egregious failure to support our Constitution.

[Jett's Pop]

I think the assertion that Bakke "largely upheld the use of affirmative action policies" is an overstatement. Bakke won. The policies in question were found to have violated Title VI. The Court was split, and there was not a great deal of commonality between the Powell decision and the Brennan decision, both of which suggested that some race-conscious decision-making should be permitted in the future. It was not until Grutter (in the Rehnquist court) that Powell's decision in Bakke was adopted by a clear majority of the Court.

[wvattorney13]

Bakke "largely" upheld affirmative action by showing the drafting plan of how it had to be done. You couldn't just openly have a quota, you had to be secret about it, and places were able to do so for years.

This was indeed blessed by Grutter.

So yes, Bakke did allow a vibrant practice of affirmative action to flourish so long as you paid lip service to the limitations that existed solely in the mind of Justice Powell.

[SMP0328]

The current Court views the Burger Court as having been wrongly untethered from the Constitution or legal principles. This has resulted in the Roberts Court reevaluating and ultimately overruling many Burger Court decisions.

The Conservative Justices on the Roberts Court do not respect the Burger Court in the slightest and have taken on the mission of fixing what they believe to be that Court's many mistakes. That mission is ongoing.

[wvattorney13]

I wonder though why it continues to abide by Warren Court opinions which are even more outrageous from an originalist point of view.

[SMP0328]

It could simply be a matter of few, if any, Warren Court decisions being challenged before this SCOTUS. Has the Roberts Court ever heard a case where it's been asked to overrule a Warren Court decision?

[Jack Jordan]

SMP0328, of course Justice Thomas is correct that we need to think critically about what we're following and why. But that logic should be applied to the opinions of the current majority, too. If we do so, we would see that the current SCOTUS majority's conduct often is unconstitutional and even anti-constitutional.

The starting point for all analysis of our rights should be very much as Justice Alito (joined by Justices Scalia and Thomas) put it in their dissenting opinion in Obergefell v. Hodges, 576 U.S. 644, 741 (2015), "In our system of government, ultimate sovereignty rests with the people, and the people have the right to control their own destiny."

Regarding the control of each person over their own destiny, we should be mindful of how James Madison explained how to see our right to our "property." See https://founders.archives.gov/documents/Madison/01-14-02-0238:

"Government is instituted to protect property of every sort," including "that which lies in the various rights of individuals" and "that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every [person], whatever is his own." Property means “that dominion which one [person] claims and exercises over the external things of the world, in exclusion of every other individual. In its larger and juster meaning, it embraces every thing to which a [person] may attach a value and have a right; and which leaves to every one else the like advantage." Each person "has a property very dear to him in the safety and liberty of his person. He has an equal property in the free use of his faculties and free choice of the objects on which to employ them."

The current SCOTUS majority is (unconstitutionally) attacking the Burger Court's mere weakly-reasoned opinions to pretend to justify overruling judgments that were strongly consistent with the foregoing primary principles secured by our Constitution. A perfect example was provided in Dobbs.

In Dobbs, the majority opinion (twice) misrepresented that the Ninth Amendment was a "reservation of rights to the people." The majority abused that lie about the meaning of the Ninth Amendment to justify the following contention and conclusion (which blatantly violated the Ninth Amendment): "The Constitution makes no express reference to a [person’s] right to [not be compelled to devote such person’s own body or liberty to support another being], and therefore those who claim that it protects such a right must show that the right is somehow implicit in the constitutional text."

Clearly, the Ninth Amendment does not state a reservation of rights. It perfectly clearly states a rule of construction that expressly prohibits judges from doing what six SCOTUS justices did, above. This is super simple and super straightforward. No judge (or lawyer) worthy of the title could read the Ninth Amendment and fail to see that it stated a clear command about how our "Constitution" absolutely "shall not be construed." Our "Constitution" NEVER can "be construed to deny or disparage" ANY rights "retained by the people" because of any mere "enumeration in the Constitution" of "certain rights."

The Dobbs majority blatantly violated the Ninth Amendment by focusing on the (irrelevant) fact that "[t]he Constitution makes no express reference to a right to [do something specific]" and then using the absence of an "express reference to a [person’s] right to [not be compelled to devote such person’s own body or liberty to support another being]" to justify shifting the burden of proof to people asserting our rights.

The Thirteenth Amendment was perfectly clear that "involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall [not] exist within the United States, or any place subject to their jurisdiction."

[Brett Bellmore]

I think you're maybe misinterpreting Dobbs' analysis here.

First, the majority noted that the right in question wasn't expressly guaranteed by the Constitution. They found it wasn't.

If they'd been ignoring the 9th amendment, that would have been the end of it. But they weren't, so it wasn't.

"The Constitution makes no express reference to a right to obtain an abortion, but several constitutional provisions have been offered as potential homes for an implicit constitutional right. Roe held that the abortion right is part of a right to privacy that springs from the First, Fourth, Fifth, Ninth, and Fourteenth Amendments."

Now, while the 9th amendment absolutely prohibits inferring that a right does not exist solely on the basis of its non-enumeration, it hardly creates a rule that non-enumeration means you MUST admit the right exits. Rather, enumeration by itself is proof a right exists, and in it's absence you have to look for other proof. So,

"The Court’s decisions have held that the Due Process Clause protects two categories of substantive rights—those rights guaranteed by the first eight Amendments to the Constitution and those rights deemed fundamental that are not mentioned anywhere in the Constitution. In deciding whether a right falls into either of these categories, the question is whether the right is “deeply rooted in [our] history and tradition” and whether it is essential to this Nation’s “scheme of ordered liberty.”"

[Here I'll take exception: Once a right has been mentioned by one of the first 8 amendments, the analysis should be over, you don't have to ask if it's deeply rooted or essential to anything, because you have a constitutional command that you respect it regardless of what you think on those scores.]

The Court found that there was no evidence that abortion was ever treated as a right in America prior to Roe. On the contrary, all the evidence was on the other side:

"Guided by the history and tradition that map the essential components of the Nation’s concept of ordered liberty, the Court finds the Fourteenth Amendment clearly does not protect the right to an abortion. Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. No state constitutional provision had recognized such a right. Until a few years before Roe, no federal or state court had recognized such a right. Nor had any scholarly treatise. Indeed, abortion had long been a crime in every single State. At common law, abortion was criminal in at least some stages of pregnancy and was regarded as unlawful and could have very serious consequences at all stages. American law followed the common law until a wave of statutory restrictions in the 1800s expanded criminal liability for abortions. By the time the Fourteenth Amendment was adopted, three-quarters of the States had made abortion a crime at any stage of pregnancy. This consensus endured until the day Roe was decided. Roe either ignored or misstated this history, and Casey declined to reconsider Roe’s faulty historical analysis."

So, if you want to argue that the Court is excessively reluctant to recognize 9th amendment rights, I would not argue with you. But in the case of Dobbs, they followed the right procedure: Lacking textual basis, they looked at history to see if abortion had ever been treated as a right, and found all the evidence was on the contrary side.

[Jack Jordan]

Brett, your comment merely showed that my statement was true: the Burger Court's mere opinion was weakly-reasoned, but its judgment was strongly consistent with the letter and spirit of our Constitution.

For example, forget the due process clause. It's irrelevant. The due process clause argument was artificial from the start. It was made up because of a prior SCOTUS decision refusing to acknowledge the privileges or immunities of citizens. As Justice Thomas acknowledged in his concurrence, the proper analysis would have considered whether a privilege or immunity of citizens was at stake.

Equally obviously, the right at issue wasn't merely "abortion." That was the epitome of a straw-man argument. As I clarified, the right at issue really was the right of a person to not be compelled to devote such person’s own body or liberty to support another being. That right is stated expressly in Amendment XIII: "involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall [not] exist within the United States, or any place subject to their jurisdiction."

The Preamble also emphasized that "We the People" did "ordain and establish this Constitution for the United States of America" to "secure the Blessings of Liberty to ourselves." Statements by Madison and others about liberty and property helped show how people thought about their liberty and their property during and after the American Revolution.

This was far from a mere abstract issue. People thought a lot about what they could be compelled to do with their own bodies. They also thought a lot about the extent to which actual persons could be the property of other persons. A huge percentage of Americans saw the subordination of the life of an actual person (an enslaved person) to another person as perfectly consistent with our Constitution. Our Constitution even expressly protected the ability to import and tax actual persons as property until 1808. See Article I, Section 9: "The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person." Here, we're talking about a fetus, which clearly is not even a person.

The SCOTUS majority ignored virtually every relevant part or aspect of our Constitution and distracted us with irrelevant parts or aspects. Anybody who was a real originalist would have considered the concepts of liberty and property that underlay the original Constitution and the first 10 amendments (in 1787-1791). A real originalist--indeed, anyone who cared about individual liberty--would easily see that compelling a woman or a couple to support one or more fetuses for some 9 months or support one or more children for some 19 years is involuntary servitude.

[Jack Jordan]

Brett, I didn't say the SCOTUS majority were merely "ignoring the 9th amendment." I said they lied about its meaning (so that they could knowingly violate it). You discussed the Ninth Amendment, but you did not even begin to refute my statement that the majority misrepresented the significance of the Ninth Amendment to the Court's sham analysis of our rights.

You violated the Ninth Amendment just like the SCOTUS majority did. It emphatically and clearly commanded how our "Constitution" absolutely "shall not be construed." Our "Constitution" NEVER can "be construed to deny or disparage" ANY rights "retained by the people" because of any mere "enumeration in the Constitution" of "certain rights."

You (and the SCOTUS majority) clearly did disparage a right because it was not enumerated (as you said, "enumeration by itself is proof a right exists, and in its absence you have to look for other proof"). That is exactly the kind of disparagement of our rights that the Ninth Amendment was written and ratified to preclude.

As an alternative, consider the standards SCOTUS articulated to protect the freedom of speech. It considers whether regulation of time, place and manner is reasonable. Viewpoint discrimination is categorically precluded. In between, various types of regulation are subject to varying levels of scrutiny. In each instance, the government (not the citizens) must bear the burden of proof. In each instance, the government must justify imposing a burden. “When First Amendment compliance is the point to be proved, the risk of non-persuasion” always “must rest with the Government, not with the citizen.” United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 818 (2000). “When” any “Government restricts” any “speech, the Government” always “bears the burden of proving the constitutionality of its actions.” Id. at 816.

Even worse, you and the SCOTUS majority actually misrepresented that the right at issue wasn't enumerated. As the Preamble and Amendment XIII clearly emphasize, "We the People" did "ordain and establish this Constitution for the United States of America" to "secure the Blessings of Liberty to ourselves," so "involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall [not] exist within the United States, or any place subject to their jurisdiction."

Surely, no good parent would even argue that supporting one or more fetuses for some 9 months or supporting one or more children for some 19 years is not servitude or does not deprive one or two parents of liberty to do what they want with their time and their bodies. Compelling a person or a couple to do the foregoing irrefutably is involuntary servitude. You, like the SCOTUS majority, failed to even attempt to show otherwise.

[Jack Jordan]

Brett, you also didn't address my most fundamental point:

The starting point for all analysis of our rights should be very much as Justice Alito (joined by Justices Scalia and Thomas) put it in their dissenting opinion in Obergefell v. Hodges, 576 U.S. 644, 741 (2015), "In our system of government, ultimate sovereignty rests with the people, and the people have the right to control their own destiny."

What do you think sovereignty means if it doesn't mean at least sovereignty over our own thoughts, expression, communication, association (as secured by the First Amendment), over our self-defense and self-preservation (as secured by the First and Second Amendments) and over our "persons, houses, papers, and effects" (as secured by the Third and Fourth Amendments)?

[John F. Carr]

"Ramos v. Louisiana (2020) overruled Apodaca v. Oregon (1972)."

This one, requiring unanimous jury verdicts in criminal cases, is the most clearly liberal shift of the list, and may be the only clearly liberal shift.

[wvattorney13]

I wouldn't call that "liberal." It's originalist. People are given a right to a trial by "jury." What is a jury? Well, the Court went through the history and decided that an indispensable part of a jury was the unanimity requirement.

In my opinion, it is more "liberal" or living constitutionalist to decide that the definition of a jury can evolve with the times.

[ducksalad]

Wondering what would happen if you took a public opinion poll of whether jury verdicts need to be unanimous, and compared it to political leanings.

I imagine the results would be influenced by whose trial happened to be in the news that week.

[Krayt]

Wondering what would happen if you took a public opinion poll of whether jury verdicts need to be unanimous, and compared it to political leanings.

Now do a balanced budget amendment.

[Roger S]

What if an orangutan is driving the train? Great analogy. I am adding that to my lexicon.

[Krayt]

Pedantic note: orangutan, oddly, nay, shockingly, does not share the same root word as orange.

Orangutan similarities beyond great ape clade membership are left as an exercise for the reader.

[Krayt]

Man, someone should write a science fiction story where the three other members of the great apes, gorillas, chimpanzees, and orangutans, represent different factions in human societies. That would be awesome!