Week 5: The One Where Old Yeller Dies

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Monday, July 4, 2022


Aidan Keaveney

I try to make these blogs somewhat light and enjoyable to read. This will not be one of those blog entries. Before I begin, I would like to fully acknowledge my limitations in the fields about which I intend to discuss for this week. I am a physics and mathematics student with a Wikipedia problem. Yes, I read a lot, and yes, I listen to a lot of podcasts, and yes, I work in Congress. But none of that makes me an expert on the Supreme Court (SCOTUS) or American jurisprudence. The opinions I am about to share are my own, and do not necessarily reflect the views of Congressman Foster, SPS, or anyone other than myself. I fully claim any inaccuracies or misrepresentations as solely my own, though I don’t believe there to be any present. 


On Friday, June 24, 2022, I was sitting at my desk having just finished press clips like any other Friday when MSNBC reported that the Supreme Court had overturned Roe v. Wade. I, a SCOTUS nerd, had been anticipating the decision any day at that point, so I had been intermittently refreshing the SCOTUS website waiting in trepidation for a decision that was sure to upend my day. I missed the announcement while reading one of the SCOTUS decisions released the previous day, Vega v. Tekoh. I didn’t know what was happening until I heard someone in the bullpen say “Holy s***, they f***ing did it”. I will never forget where I was, what I was doing, or how it felt when I heard those six words. Those six words were my introduction to the post-Roe world. 


A socially acceptable number of minutes later, I excused myself, mumbling something about needing a smoothie before the phone calls came in, and managed to get to a bathroom stall before the tears came. I’m not usually a big cryer, so it only took a few minutes for me to compose myself for the long walk to Jamba Juice. On the walk, among the thoughts of all of the uterus-havers in my life who would soon have less autonomy in their health decisions, the sadness of knowing that lives would be lost for want of safe and accessible abortion care, the anger that the methods used to warp Senate and Supreme Court procedure and tradition to its breaking point had worked, and the anxiety of knowing I would spend the day speaking to distraught constituents, one thought dominated my mind: if I every run for office, today will be the reason why. 


Twenty or so minutes later I returned to my desk, large Mango-a-go-go in tow, and sat awaiting the phone calls. Phone calls that never came. I recall maybe two callers that day who talked about the Dobbs decision. It was almost eerie, how silent it was. Everybody dealt with the news differently. I went for a comically large smoothie. A few staff members gathered in the Chief of Staff’s office hugging, weeping, and consoling one another. At 5:00 PM, the team gathered in Congressman Foster’s office and started drinking. Our constituents seemed to find the news depressing, not animating. I don’t claim to be able to psychoanalyze our constituents, but it’s the only explanation I can think of to justify the deafening silence.


Alright, enough of my melodrama. As destabilizing Dobbs v. Jackson Women’s Health Organization was, it was just one ruling, albeit a major one, among dozens in an unprecedented SCOTUS term. The nine days of Supreme Court decisions beginning with Carson v. Macon on June 21 and ending with West Virginia v. EPA and Biden v. Texas on June 30 may go down as among the most consequential in the history of American jurisprudence. I wish I could talk about every case, because to paraphrase my brother’s words regarding Stranger Things 4, “they just keep churning out bangers”, but I don’t have time. Instead, I will talk about just a few cases: Carson v. Macon, Kennedy v. Bremerton School District, New York State Rifle and Pistol Association v. Bruen, Dobbs v. Jackson Women’s Health Organization, and West Virginia v. EPA. 


I tend to think of the first two as a pair of cases, as they both concern the relationship between religion and government. Carson v. Macon concerned a Maine school district that offered subsidies to secular private schools to compensate for a lack of public schools, but not religious-based private schools. To do so, Maine claimed, would constitute a government endorsement of religion, thus violating the Establishment Clause of the Constitution. The parents who brought suit argued that to not offer subsidies to religious-based schools constituted discrimination against a religious group, thus violating the Free Exercise Clause and Equal Protection Clause of the 1st and 14th Amendments. The Supreme Court ruled in favor of the parents. In Kennedy v. Bremerton, a high school football coach insisted on praying at center field after games, which became widely publicized and often had crowds on-hand to participate. The football coach was told by the school district to stop holding these prayers, as in their view, it constituted an endorsement of religion on the part of the school district. The football coach eventually sued, citing the Free Exercise Clause. The Supreme Court ruled in favor of the football coach. In both Macon and Bremerton, the Establishment Clause was weakened, and the Free Exercise Clause was strengthened. That much is relatively simple. What is particularly disturbing, however, is the transition in religious freedom cases from “may not” to “may” to “must”. Until the past 80 years or so, the idea that a school district would be required to provide scholarships to religious-based private schools was completely inconceivable. In the past several decades, the precedent in Establishment Clause cases has shifted from “may not endorse”, as in “may not provide scholarships”, to “may endorse”, as in “may allow a coach to pray if it chooses”, to now “must endorse”. It is this transition that Justice Sotomayor references when she writes in her Macon dissent, “What a difference five years makes. In 2017, I feared that the Court was ‘lead[ing] us . . . to a place where separation of church and state is a constitutional slogan, not a constitutional commitment.’... Today, the Court leads us to a place where separation of church and state becomes a constitutional violation.” She adds in her Bremerton dissent, “the Court sets us further down a perilous path in forcing States to entangle themselves with religion, with all of our rights hanging in the balance.” Not to place my own words on the same level as the queen herself Justice Sotomayor, but if I could just add one thing: I’m not convinced this decision would have been the same if it was a Muslim with a prayer rug at the 50-yard line. 


Now, for New York v. Bruen. It’s a common belief that the original intent of the 2nd Amendment was about gun ownership. In fact, most constitutional scholars agree that the primary intent of the Founders in including the 2nd Amendment among the Bill of Rights was to prevent a standing military. In reading the Federalist Papers, it’s pretty clear that the Founders considered one of the biggest threats to freedom to be a standing army controlled by a central government. Such an army, the Founders believed, was a danger to liberty because it could always be turned on its citizens. So, they wrote the 2nd Amendment to ensure that “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” That is, an organized resistance of citizens was necessary to defend itself from a standing army. There was a common law expectation of gun ownership, sure, but the Founders were not concerned with an individual right to gun ownership. They wanted every citizen to be a part of the militia, and they wanted the militia to have the right to be armed. It’s also worth noting that there were many, many restrictions on who could be a part of the militia, and therefore own a weapon. Chief among them: you had to be White, you had to be a man, and you had to own property. I would argue universal background checks seem comparably minimal, but I digress. It wasn’t until District of Columbia v. Heller (a 5-4 decision along ideological lines, by the way) in 2008 that the Supreme Court recognized an individual right to private gun ownership. And, of course, it wasn’t until 2022 that the Supreme Court recognized a constitutional right for an individual to carry a weapon in public for self-defense in New York v. Bruen. Early in the summer, I was jogging around the Washington Monument when I came upon a field of thousands of orange and white flowers. 45,222 bouquets, in fact; one for each person killed by a gun in 2020. Just a few miles away, almost exactly one month after 19 children and 2 adults were killed at an elementary school in Uvalde, Texas, the Supreme Court made it easier to carry a gun in public. 


There’s not much I can say about Dobbs that hasn’t already been said a million times. I’ve also already mentioned most of my own feelings about this decision in the aforementioned melodrama, so I won’t go into that again, nor will I say much about Dobbs, although I could. What I will say is this: under Roe, those who held religious or any objections to abortion had a right to exercise those objections. Under Dobbs, those who hold religious or any objections to being forced into having a child do not have a right to exercise those objections. The only legal justification for that, in my view, is a public interest argument; does the government have a public interest in regulating abortion access? That comes down to an inescapable choice between unborn child and uterus-haver. I believe that any public interest in protecting an unborn child is superseded by the public interest in protecting the right of the uterus-haver to make their own health decisions on behalf of themselves and their potential child. I don’t believe it is the government’s role to interfere in a personal, independent medical decision that does not have an impact on public health.  


Finally, I couldn’t claim to be a science policy intern if I didn’t talk about West Virginia v. EPA. The impact of the decision itself on climate change policy isn’t great, but it also could be worse. The EPA can still attempt to regulate certain emissions standards under various provisions of the Clean Air Act and Toxic Substances Control Act, and Congress still has the power (should it manage to wield it) to enact climate change legislation. That is not why I personally find this case so morbidly fascinating. The entire legal basis for this case is just bizarre. During the Obama Administration, the EPA introduced the Clean Power Plan, a relatively unambitious set of emissions standards for each state to meet in whatever way they saw fit, with the eventual goal of reducing carbon emissions by 32% by 2030. At the time, the Supreme Court blocked the Clean Power Plan from going into effect while various lawsuits made their way through the courts. Before it could be fully litigated, the Trump administration took over, repealed the Clean Power Plan, and replaced it with its own emissions “regulations”. Then, when the Biden administration took over, it announced that it would not be reenacting the Clean Power Plan, but instead enacting something else entirely to be announced later. In response, West Virginia and several other states sued the EPA, and requested that the Supreme Court rule on the legitimacy of the Clean Power Plan, in anticipation that the Biden administration’s policies would be similar. Astoundingly, the Supreme Court took up the case, thus deciding they would rule on the validity of a policy that never actually went into effect, nor will it ever go into effect, nor was it all that extreme (the goals set by the Clean Power Plan will soon be met anyway). So basically, the Supreme Court ruled on a policy that doesn’t exist, with the intent of restricting future policy that also doesn’t currently exist. I am not personally familiar with any case of the judiciary ruling on the constitutionality of policy before the policy is ever written. Almost as bizarre is the legal doctrine used by the majority to restrict the EPA’s potential action: the major questions doctrine. This relatively new, and until this case relatively unapplied, legal theory states that the Court will not recognize the authority of an agency to regulate issues of major political or economic impact unless that agency has been given that authority explicitly by Congress. This is really the first case that has applied the major questions doctrine so explicitly, and there’s really no precedent for it. This is a standard that the Supreme Court has chosen to make up for itself. So, as potentially problematic as the content of the ruling is, I am significantly more concerned as a climate change advocate by the evident hostility of this conservative majority to any EPA regulations not explicitly authorized by Congress. If the EPA can’t P the E, and Congress can’t get the votes for a climate change package, it will have an enormous impact on attempts to curb the effects of anthropogenic climate change. 


I am under no illusions that this blog post will be widely read or distributed. I would be surprised if 5 people read this, including my Mom. I also know that any readers who do find their way here, on accident or otherwise, are not here to read about a 21 year old physics student’s take on American jurisprudence. That’s not why I write all of this. I spent 5 hours writing this because of all the words that come to mind when I think about how this Supreme Court term has affected me, one sticks out beyond all others: destabilizing. My foundational beliefs about life and morality, not just government, were completely upended this summer. I was raised on the idea that people are inherently good, and that goodness should be responded to with generosity. Kindness and respect, towards people and institutions, are free to give and valuable to receive. Beyond perhaps all of these, my overriding guiding principle is empathy. Allowing yourself to be impacted by another’s experience makes you a better person and the world a better place. I suppose some part of me always thought, and continues to think, however irrationally, however arrogantly, that if I just continue to believe in those principles of generosity, respect, and empathy, then maybe they would win the day. I can recall three periods of my post-pubescent years where those beliefs and principles were fundamentally shaken: the 2016 presidential election, the COVID-19 pandemic, and this Supreme Court term. I am not writing this so that someone might read it. I am writing this because for most of this summer, it’s all that I’ve been able to think about. So dang it, I’m gonna write about it. 


Aidan Keaveney