“The federal government prosecuted Merle Denezpi twice for the same crime. It also punished him twice: the first time with 140 days in a federal detention center, the second time with a prison sentence more than 70 times as long.
Although that may seem like an obvious violation of the Fifth Amendment’s ban on double jeopardy, the Supreme Court..ruled that it wasn’t. As the six justices in the majority saw it, that puzzling conclusion was the logical result of the Court’s counterintuitive precedents on this subject.
The Fifth Amendment says no person will “be subject for the same offence to be twice put in jeopardy of life or limb.” But under the Court’s longstanding “dual-sovereignty” doctrine, an offense is not “the same” when it is criminalized by two different governments.
That doctrine allows serial state and federal prosecutions for the same crime, opening the door to double punishment or a second trial after an acquittal. Although neither seems just, the Court says both are perfectly constitutional.”
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“Gorsuch, joined by Justices Sonia Sotomayor and Elena Kagan, dissented…Even the “colossal exception” created by the dual-sovereignty doctrine, he said, is not big enough to encompass the two cases against Denezpi, both of which were pursued by the federal government under federal law.
In 2017, Denezpi and a woman identified as V.Y. in court papers, both members of the Navajo Nation, traveled to Towaoc, Colorado, a town within the Ute Mountain Ute Reservation where Denezpi’s girlfriend lived. V.Y. alleged that Denezpi sexually assaulted her during the trip, while he maintained that the encounter was consensual.
After federal officials charged Denezpi with three crimes, he pleaded no contest to assault and battery, which is defined by tribal law but also punishable under the Code of Federal Regulations by up to six months in jail. A Court of Indian Offenses, part of a system established by the Department of the Interior, sentenced Denezpi to time served: 140 days.
Accepting V.Y.’s allegations as true, most people would view that penalty as excessively lenient, and federal prosecutors in Colorado evidently agreed. Six months after Denezpi completed his Interior Department sentence, the Justice Department charged him with aggravated sexual abuse, which resulted in a 30-year federal prison term.”
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“Six justices nevertheless approved the second prosecution, tracing the authority for the first conviction to a distinct “sovereign”: the Ute Mountain Ute Tribe. But as Gorsuch notes, the first prosecution was not based on tribal law per se; it was based on a federal regulation that criminalizes “violation of an approved tribal ordinance.”
Although the two convictions involved the “same defendant,” the “same crime,” and the “same prosecuting authority,” Gorsuch observes, the Court implausibly concluded that “the Double Jeopardy Clause has nothing to say about this case.” Such reasoning amplifies the danger that Gorsuch decried in 2019, inviting the government to “try the same individual for the same crime until it’s happy with the result.””
“At the heart of the case was the question of whether the discretion that New York placed in the hands of local licensing officials was consistent with how constitutional rights are typically treated in the American system. New York’s licensing scheme failed that test. “We know of no other constitutional rights that an individual may exercise only after demonstrating to government officers some special need,” Thomas wrote. “That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant’s right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for self-defense.””
“Chief Justice John Roberts wrote for the majority in the case, which split the court cleanly along ideological lines. Roberts said the state’s interest in avoiding concerns about establishment of religion did not justify the policy that effectively blocked parents directing funding to religious schools.
“A neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause,” Roberts wrote. “A State’s antiestablishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.”
Under the Maine “tuitioning” program the court struck down on Tuesday, local governments lacking the population to run schools at a certain grade level typically pay for students to be educated at public or private schools of their choice. But, to avoid government funds being used for religious purposes, since 1981 the program has refused to pay for schools providing religious education.
In a 2020 decision on an educational aid program out of Montana, the Supreme Court ruled 5-4 that states could not exclude families or schools from student aid programs simply because the schools were backed by religious institutions.
However, that decision left open the question of whether states could block the use of their funds for explicitly religious or “sectarian” classes.
But in the case decided Tuesday, Roberts explicitly rejected Maine’ arguments that it was only targeting religious teaching and not whether a school was run by a religious group.
“Any attempt to give effect to such a distinction by scrutinizing whether and how a religious school pursues its educational mission would also raise serious concerns about state entanglement with religion and denominational favoritism,” the chief justice wrote.
In what is one of his final dissenting opinions before his planned retirement, Justice Stephen Breyer said the court seems to have lost all interest in enforcing the Constitution’s prohibition on establishment of religion.
“The First Amendment begins by forbidding the government from ‘mak[ing] [any] law respecting an establishment of religion.’ It next forbids them to make any law ‘prohibiting the free exercise thereof.’ The Court today pays almost no attention to the words in the first Clause while giving almost exclusive attention to the words in the second,” Breyer wrote.
Breyer also said the court was opening a Pandora’s box with its decision, suggesting that it was simply a way station to requiring all communities to use taxpayer funds to pay for religious schooling.
“We have never previously held what the Court holds today, namely, that a State must (not may) use state funds to pay for religious education as part of a tuition program designed to ensure the provision of free statewide public school education,” Breyer wrote.
“What happens once ‘may’ becomes ‘must’? Does that transformation mean that a school district that pays for public schools must pay equivalent funds to parents who wish to send their children to religious schools?” Breyer asked. “Does it mean that school districts that give vouchers for use at charter schools must pay equivalent funds to parents who wish to give their children a religious education?”
Justice Sonia Sotomayor also dissented, lamenting what she sees as a series of decisions bringing the government closer to direct sponsorship of religious activity.
“This Court continues to dismantle the wall of separation between church and state that the Framers fought to build,” Sotomayor warned. “It is irrational for this Court to hold that the Free Exercise Clause bars Maine from giving money to parents to fund the only type of education the State may provide consistent with the Establishment Clause: a religiously neutral one. Nothing in the Constitution requires today’s result.”
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“Forcing American taxpayers to fund private religious education — even when those private schools fail to meet education standards, intentionally discriminate against students, or use public funds to promote religious training, worship, and instruction — erodes the foundation of our democracy and harms students,” NEA President Becky Pringle said in a statement.
A national campaign sponsored by the Education Law Center and Southern Poverty Law Center meanwhile promised to pressure Maine’s legislature into repealing the state tuition program.
Still, the decision’s short-term reach appears to be limited — even if it creates new legal quandaries over the long term.
“Has anything enormous changed? No,” Derek Black, an education and civil rights professor at the University of South Carolina School of Law, said of Tuesday’s decision. “But what we are seeing is that all gray and ambiguous or open questions are being resolved to the benefit of religion.”
In the immediate aftermath, Black said the ruling poses serious challenges for states such as Maine and Vermont that have instituted private school voucher programs that prohibit funds from going to religious schools.”
“Noting that “the Constitution makes no reference to abortion,” Alito argues that “no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment.” Although “that provision has been held to guarantee some rights that are not mentioned in the Constitution,” he says, “any such right must be ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.'” Alito concludes that “the right to an abortion does not fall within this category.”
That analysis falls short in at least two crucial ways.
First, Alito fails to grapple with the argument that the right to terminate a pregnancy can be understood as a subset of the right to bodily integrity. As the legal scholar Sheldon Gelman detailed in a 1994 Minnesota Law Review article, the right to bodily integrity can be traced back to the Magna Carta. That makes it one of the many rights “retained by the people” (in the words of the Ninth Amendment) that were imported into the Constitution from English law. That right, in other words, is “deeply rooted” in American history and tradition.
Second, Alito’s draft opinion distorts the relevant legal history and thus misstates the historical pedigree of abortion rights. “When the United States was founded and for many subsequent decades, Americans relied on the English common law,” explains an amicus brief that the American Historical Association and the Organization of American Historians filed in Dobbs. “The common law did not regulate abortion in early pregnancy. Indeed, the common law did not even recognize abortion as occurring at that stage. That is because the common law did not legally acknowledge a fetus as existing separately from a pregnant woman until the woman felt fetal movement, called ‘quickening,’ which could occur as late as the 25th week of pregnancy.”
A survey of founding-era legal authorities confirms this view. William Blackstone’s widely read Commentaries on the Laws of England, first published in 1765, noted that life “begins in contemplation of law as soon as an infant is able to stir in the mother’s womb.” Under the common law, Blackstone explained, legal penalties for abortion applied only “if a woman is quick with child, and by a potion, or otherwise, killeth it in her womb.” That means abortion was legal in the early stages of pregnancy under the common law.
Blackstone’s writings had an important influence on America’s founding generation. In his 1790 Of the Natural Rights of Individuals, for example, James Wilson, a driving force at the Constitutional Convention in Philadelphia and a leading voice for ratification at Pennsylvania’s convention, repeated Blackstone’s gloss. “In the contemplation of law,” Wilson wrote, “life begins when the infant is first able to stir in the womb.”
At the time of the founding, no American state had the lawful power to prohibit abortion before quickening because the states adhered to the common law as described by Blackstone and Wilson. We might call this the original understanding of the states’ regulatory powers. That original understanding contradicts Alito’s assertion that abortion rights—at least during the early stages of pregnancy—lack deep roots in American history.”
“Alito is not just a conservative. He’s not a consistent “originalist” in the vein of Scalia or Justice Clarence Thomas, only a “practical” one. The key to understanding Alito is not judicial philosophy or ardent conservatism: it’s his anger — an anger that resonates with the sentiments of many voters, especially white and male ones, who feel displaced by recent social and cultural changes. If you want to understand what to expect from the post-Roberts Court, paying attention to that anger pays dividends.”
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“Alito’s anger consistently sounds in a register of cultural decline, bemoaning the growing prominence of women and minorities in American life. Writing the majority opinion in Hobby Lobby, which endorsed a company’s right to deny employees contraception coverage, Alito waxed lyrically about the “men and women who wish to run their businesses as for-profit corporations in the manner required by their religious beliefs.” The women denied medical care that facilitates participation in the labor market, in contrast, weren’t a concern. Examining a Washington state regulation of pharmacists, Alito was quick to detect “hostility” to conservative religious beliefs. And in an opinion repudiating New Haven’s effort to promote more Black firefighters, Alito alone trawled the history of the case to complain about the role played by a Black pastor who was an ally of the city’s mayor and had “threatened a race riot.” Black involvement in municipal politics, for Alito, appears as a sinister threat to public order.
In stark contrast, when the charge of discrimination is made on behalf of racial or religious minorities, Alito expresses no such solicitude. He does not search for evidence of bias. Instead, he takes an impossibly narrow view of job-related discrimination that demands women somehow instinctively know they are being paid less than male counterparts. Despite his claim to a “just the facts ma’am” approach, Alito has a distinctively constricted take on what the “facts” are. To read his opinions is to inhabit a world in which it is white Christian men who are the principal targets of invidious discrimination, and where a traditional way of life marked by firm and clear gender rules is under attack.
When it comes to the criminal justice system, Alito is a reliable vote for the most punitive version of the state. In 2016, when the Supreme Court invalidated Florida’s death-penalty scheme on Sixth Amendment grounds, only Alito dissented. When the court, a year earlier, found a federal sentencing rule for armed offenders unconstitutionally vague, only Alito voted for the prosecution. It’s difficult to think of cases where Alito has voted for a criminal defendant, or any other litigant that elicits liberal sympathies.”
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“In November 2020, Alito gave a keynote speech to the conservative legal organization the Federalist Society. Much criticized at the time for its partisan tone “befitting a Trump rally,” in the words of one critic, those remarks are useful because they prefigure where a court on which Alito is a dominant voice might go.
In that speech, Alito criticized pandemic restrictions by bemoaning the rise of “scientific” policymaking. He complained about the “protracted campaign” and “economic boycotts” of Catholic groups and others with “unpopular religious beliefs” (self-identified Christians make up some 63 percent of the American populace). And he (falsely) warned of “morning after pills that destroy an embryo after fertilization.” If that speech is any guide — and there is no reason to think it won’t be — the future of the Supreme Court will be increasingly one of religious censor: keeping women in their lane, standing up for Christian rights, and making sure that uppity “scientists” in the federal government don’t get their wicked way.”
“The Supreme Court, in an increasingly familiar development, handed a victory to a Christian conservative organization on Monday. The Court’s decision in Shurtleff v. Boston establishes that this organization, Camp Constitution, should have been allowed to fly a Christian-identified flag from a flagpole outside Boston’s city hall.
But Shurtleff is unlike several other high-profile victories for religious conservatives that the Court has handed down in recent years because the justices did not need to remake existing law in order to reach this result. The decision was unanimous (although the justices split somewhat regarding why the plaintiffs in this case should prevail), with liberal Justice Stephen Breyer writing the majority opinion.
The case involves three flagpoles standing outside of Boston’s city hall. The first flagpole displays the US flag, with a smaller flag honoring prisoners of war and missing service members below it. The second pole features the Massachusetts state flag. And the third typically — but not always — displays the city’s own flag.
This third flagpole, and the city’s practice of sometimes allowing outside groups to display a flag of their choice from it, is the centerpiece of Shurtleff. Since at least 2005, the city has permitted outside groups to hold flag-raising ceremonies on the plaza during which they can raise a flag of their choosing on the third flagpole.
At various times, the third flagpole has displayed the flags of many nations, including Brazil, China, Ethiopia, Italy, Mexico, and Turkey. It has displayed the rainbow LGBTQ pride flag, a flag commemorating the Battle of Bunker Hill, and a flag honoring Malcolm X.
But when Harold Shurtleff, head of an organization called Camp Constitution, asked to fly a flag associated with the Christian faith, the city refused — claiming that displaying such a flag could be interpreted as “an endorsement by the city of a particular religion,” in violation of “separation of church and state or the [C]onstitution.”
Justice Breyer’s majority opinion concludes that the city erred. Relying on a bevy of cases establishing that the government typically cannot discriminate against a particular viewpoint, Breyer notes that “Boston concedes that it denied Shurtleff’s request solely because the Christian flag he asked to raise ‘promot[ed] a specific religion.’” Under the facts of this case, that’s a form of viewpoint discrimination and it’s not allowed.
While it’s notable that Justices Neil Gorsuch and Brett Kavanaugh each wrote separate opinions indicating that they are eager to let government get cozy with religion, and they have two opportunities to do so this term, this case is a straightforward decision that follows current law — in short, nothing remarkable.”
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“The general rule in free speech cases is that the government may not discriminate against any particular viewpoint. Boston could not, for example, have a rule that Democrats are allowed to gather in the city hall plaza but not Republicans. Or that people who support restrictive immigration policies may do so, but not people who oppose them.
But there’s an exception to this general rule when the government speaks in its own voice. That is, the government is allowed to express its own opinion on a subject without also providing a forum for dissenting voices. If a public school principal tells her students to “say no to drugs,” she’s not required to give equal time to the grungy guy in the junior class who sells weed out of his 1997 Subaru Legacy.
The primary question in Shurtleff is whether, when Boston’s city government permitted a wide range of private groups — but not Camp Constitution — to display a flag of their choice outside of city hall, these flags represented the city’s speech or the private groups’ speech. Again, if the flags were a form of government speech, then Boston is allowed to exclude viewpoints it does not share.
But the Court concluded that the city did not use the third flagpole to express its own views, and that it effectively created “a forum for the expression of private speakers’ views.” As Breyer notes, Boston does not appear to have made any effort whatsoever to control which flags are displayed from this flagpole until it denied Shurtleff’s request to fly a Christian flag.”
“Justice Samuel Alito’s draft opinion overruling Roe v. Wade, which was leaked to Politico and revealed to the public Monday night, is more than just an attack on abortion. It is a manifesto laying out a comprehensive theory of which rights are protected by the Constitution and which rights should not be enforced by the courts.
And Alito’s opinion is also a warning that, after Roe falls, the Court’s Republican majority may come for landmark LGBTQ rights decisions next, such as the marriage equality decision in Obergefell v. Hodges (2015) or the sexual autonomy decision in Lawrence v. Texas (2003).
To be clear, the leaked opinion is a draft. While Politico reports that five justices initially voted to overrule Roe, no justice’s vote is final until the Court officially hands down its decision. And even if Alito holds onto the five votes he needs to overrule Roe, one or more of his colleagues in the majority could insist that he make changes to the opinion.
Alito’s first draft, however, suggests that the archconservative justice feels emboldened. Not only does he take a maximalist approach to tearing down Roe, but much of Alito’s reasoning in the draft opinion tracks arguments he’s made in the past in dissenting opinions disparaging LGBTQ rights.
The Constitution is a frustrating document. Among other things, it contains multiple provisions stating that Americans enjoy certain civil rights that are not mentioned anywhere in the document itself. The Ninth Amendment, for example, provides that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Over time, the Supreme Court has devised multiple different standards to determine which of those unenumerated rights are nonetheless protected by our founding document. Some of these standards are very much at odds with each other.
The central thrust of Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization, the case seeking to overrule Roe, is that only rights that are “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty,” are protected. This method of weighing unenumerated rights is often referred to as the “Glucksberg” test, after the Court’s decision in Washington v. Glucksberg (1997).
Though Alito’s Dobbs opinion largely focuses on why he believes that the right to abortion fails the Glucksberg test, there is no doubt that he also believes that other important rights, such as same-sex couples’ right to marry, also fail Glucksberg and are thus unprotected by the Constitution. Alito said as much in his Obergefell dissent, which said that “it is beyond dispute that the right to same-sex marriage is not among those rights” that are sufficiently rooted in American history and tradition.”
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“For many years, Justice Anthony Kennedy was the pivotal figure in the legal struggle for gay equality. Obergefell and United States v. Windsor (2013), which held that the federal government must recognize same-sex marriages, were both 5-4 decisions authored by Kennedy. Kennedy also penned the Lawrence opinion and the Court’s decision in Romer v. Evans (1996), the first Supreme Court decision establishing that the Constitution places limits on the government’s ability to target gay or bisexual individuals.
Given his longtime role as the Court’s voice on gay rights, it’s tempting to think of Kennedy as a staunch supporter of these rights (I use the word “gay” and not “LGBTQ” because Kennedy’s four opinions concerned discrimination on the basis of sexual orientation and not gender identity). But the reality is almost certainly more nuanced. Decisions like Obergefell and Windsor were the products of an uneasy alliance between the conservative Kennedy and his four liberal colleagues. And, in closely divided cases, majority opinions are often assigned to the justice who is most on the fence — on the theory that this justice is unlikely to flip their vote if they can tailor the majority opinion to their own idiosyncratic views.
The result is that Kennedy’s great gay rights decisions were poorly argued. They ignore longstanding doctrines that could have provided a firm foundation for a rule barring discrimination on the basis of sexual orientation. Instead, they often substitute needlessly purple prose for the meat-and-potatoes work of legal argumentation.”
“Constitutionally speaking, the Court does not have the hard authority of the presidency or Congress. It cannot deploy the military or cut off funding for a program. It can order others to take actions, but these orders only hold force if the other branches and state governments believe they have to follow them. The Court’s power depends on its legitimacy — on a widespread belief, among both citizens and politicians, that following its orders is the right and necessary thing to do.”
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“Justice Samuel Alito’s leaked draft opinion that would overrule Roe v. Wade, if issued, could be yet another significant blow to Court legitimacy. The issue is not just that a majority of Americans will disagree with the ruling, though they almost certainly will. It’s that the process that led to this outcome has repeatedly exposed the Court as a vessel for politics by other means.
In that context, a reversal of what is probably the most contentious modern Supreme Court ruling — which established a 50-year precedent with longstanding majority support — will hit differently than previous controversial Court rulings. The damage could be severe and lasting, worse even than nakedly political decisions like Bush v. Gore.
While it may be tempting to cheer the collapse of the Court’s legitimacy given its track record, the Worcester case should give us some pause. In the American system, for better or for worse, the Court is supposed to serve as the final arbiter of political disagreements. If it lacks the legitimacy to play that role, it sets the stage for a constitutional crisis — especially if former President Donald Trump runs again in 2024.”
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“since 2016, Republicans have taken a series of steps that have made it hard for anyone to see the Court as standing above politics.
When Justice Antonin Scalia died in February 2016, GOP Senate Majority Leader Mitch McConnell infamously refused to even schedule hearings for Obama’s replacement nominee, current Attorney General Merrick Garland, until after the 2016 election. McConnell’s argument was that no justice should be appointed in an election year, but the rationale was clearly political: Garland is a moderate liberal and would have tipped the Court from a 5-4 conservative majority to a 5-4 liberal one.
Then Donald Trump won the 2016 election despite losing the popular vote and proceeded to remake the Court along McConnell’s preferred lines.
First, he appointed staunch conservative Neil Gorsuch to the Court instead of Garland — preserving a 5-4 conservative majority on the court. Then longtime Republican operative Brett Kavanaugh was confirmed amid a furious battle over Christine Blasey Ford’s allegations that Kavanaugh sexually assaulted her, one of the most bitter and polarizing hearings in Supreme Court history.
And when Justice Ginsburg died in September 2020, McConnell and Trump rushed Amy Coney Barrett onto the Court before the 2020 vote — giving conservatives a 6-3 advantage, and revealing the alleged principle behind the Garland blockade to be a partisan fiction. (McConnell’s attempt to square this circle, citing an alleged norm against the Senate confirming nominations from opposite-party presidents in election years, was risible.)”
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“the Court itself hasn’t helped matters. Since the Trump appointments, the Court’s jurisprudence has lurched hard right. Chief Justice John Roberts, seemingly the sole conservative concerned with the Court’s above-politics reputation, can no longer join four liberals to rein in his colleagues’ policy ambitions.
This is the context in which Alito’s Roe draft opinion emerged. Much of the concerns about the opinion’s effect on legitimacy have focused on the leak of the draft — on how it makes the Supreme Court look like any other Washington institution. But this is inside baseball: The much bigger effect on Court legitimacy is more likely to come from the ruling itself, if it in fact becomes law.”
“whether or not someone has actually invoked their right to counsel is, to some degree, subjective, though it can have far-reaching consequences in a defendant’s case.”
“On Wednesday, the New York Court of Appeals ruled that the congressional map New York Democrats enacted back in February was a partisan gerrymander that violated the state constitution and tossed it to the curb. The decision was a huge blow to Democrats, who until recently looked like they had gained enough seats nationally in redistricting to almost eliminate the Republican bias in the House of Representatives. But with the invalidation of New York’s map, as well as Florida’s recent passage of a congressional map that heavily favors the GOP,1 the takeaways from the 2021-22 redistricting cycle are no longer so straightforward.
That’s because much of Democrats’ national redistricting advantage rested on their gerrymander in New York.”
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“There are still congressional maps that could get struck down in court, like Florida’s. And there are still states that have yet to finalize a map — like, oh yeah, New York!
In its decision, the New York Court of Appeals endorsed the idea that a neutral special master — essentially, an expert in drawing political maps — should draw New York’s next congressional map. That would presumably lead to a relatively fair map, but the details and exact partisan breakdown are, of course, still a mystery; Democrats could still gain seats from New York’s map when all is said and done (just not as many as from their gerrymander).”