Friday, June 24, 2022
Pour one out for American jurisprudence. This Supreme Court term has been a disaster for civil rights and liberties, and things will only get worse from here. There is no coherent, consistent basis for what this Supreme Court has done this term. To briefly review: if you live within 100 miles of an international border the Fourth Amendment does not apply to you. All firearms regulation is presumptively unconstitutional. Sorry, women- your healthcare choices are not your own. The Federal regulatory structure is rolling back to the 19th century. Oh, and your Miranda rights are really more like suggestions.
In a weird way these results have been brought about because sometime in the 70's legal scholars posited that laws are devised to maintain the status quo of society and thereby codify its biases against marginalized groups. As my late law school classmate Willie Ryan exclaimed about three weeks into our first year Contracts class, "These judges are just doing whatever they want!" For a while conservatives rejected Critical Legal Studies, but they have now embraced it completely and the result has been legal nihilism, without pretext. I don't see the path out. Even if we were able to pack the Courts with jurists who believe in now outdated concepts like stare decisis all that would mean would be that we would be acknowledging that the Supreme Court is an unelected super-legislature. It actually always has been, but before this there were recognized limits on how far the Court could go. That's gone now.
Consider: abortion rights are not found in the text of the Constitution, and are therefore not Constitutionally guaranteed. On the other hand, it's fine to ignore the first 13 words of the Second Amendment when you are constructing an explanation for why firearm regulation is unconstitutional. History should guide our interpretation, rather than the long-established jurisprudential norms that we've been working with since Marbury v. Madison.