Abstract
We will consider in this chapter the issue of judicial activism at the United States Supreme Court (USSC) in the Trump era. This is a time when the USSC majority leans to the conservative right and when President Trump openly and repeatedly suggests in post ruling commentary on cases involving his administration that the purported correct and unbiased rulings at any level of the court system would necessarily reflect the Trump administration’s politically right-leaning and often times highly conservative policy positions. Hence when a District Federal Court judge of the Ninth Circuit ruled against the Trump administration on an asylum matter; President Trump referred to the federal judge of the Ninth Circuit who issued the ruling as being an “Obama judge” thus insinuating that because the judge had been appointed by President Obama; the court’s ruling was inevitably tainted by political considerations. The Chief Justice of the Supreme Court of the United States, Justice Roberts, offered a rare public statement in order that he could publicly rebuke the President’s characterization (by implication) of the judge’s ruling as biased and misdirected.
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Notes
- 1.
The District Court Judge had ruled invalid President Trump’s Executive Order disallowing the right to advance asylum claims by persons who had entered the United States illegally. See BBC News Chief Justice Roberts rebukes Trump’s ‘Obama judge’ gibe, (22 November, 2018) https://www.bbc.com/news/world-us-canada-46294734.
- 2.
BBC News Chief Justice Roberts rebukes Trump’s ‘Obama judge’ gibe, (22 November, 2018) https://www.bbc.com/news/world-us-canada-46294734.
- 3.
BBC News Chief Justice Roberts rebukes Trump’s ‘Obama judge’ gibe, 22 November, 2018 https://www.bbc.com/news/world-us-canada-46294734.
- 4.
Ruth Bader Ginsburg, Associate Justice of the United States Supreme Court Remarks for the Second Circuit Judicial Conference June 7, 2019 https://www.supremecourt.gov/publicinfo/speeches/RBG%202019%20Second%20Circuit%20Judicial%20Conference%20Remarks%20June%207%202019.pdf.
- 5.
Rucho et al. v Common Cause et al. No. 18-422. Argued March 26, 2019—Decided June 27, 2019 (Supreme Court of the United States).
- 6.
None of the justices of the USSC that decided the landmark case Roe v Wade 410 U.S. 113 (1973) that established the unfettered right to abort a non-viable fetus are currently on the U.S. Supreme Court and only Justice Thomas, currently on the USSC bench, participated in the Casey case (affirming Roe v Wade) in which he dissented (see Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833, 846 (1992)) (Supreme Court of the United States).
- 7.
The term non-viable and pre-viable are used interchangeably in the discussion.
- 8.
Roe v Wade 410 U.S. 113 (1973) (Supreme Court of the United States).
- 9.
Compare Scheindlin, Shira A ‘If Roe v Wade is overturned we should worry about the rule of law’ The Guardian (International Edition) 21 May, 2019.
- 10.
At the time of the redistricting complained of (redistricting intended to strengthen the voting strength of Democrats); the Democrats already held both the House and Senate of the Maryland General Assembly as well as the governorship of Maryland See Rucho et al. v Common Cause et al. No. 18-422. Argued March 26, 2019—Decided June 27, 2019 (Justice Kagan Dissenting opinion with concurrence by Justice Ginsburg, Breyer and Sotomayor) at p. 5.
- 11.
At the time of the redistricting complained of (redistricting intended to strengthen the voting strength of the Republicans) there were already Republican majorities in both the House and Senate of the North Carolina General Assembly See Rucho et al. v Common Cause et al. No. 18-422. Argued March 26, 2019—Decided June 27, 2019 (Supreme Court of the United States (USSC) (Justice Kagan Dissenting opinion with concurrence by Justice Ginsburg, Breyer and Sotomayor) at p. 3.
- 12.
Lexico, Oxford Dictionary online: Gerrymandering is defined in the Oxford Dictionary as follows to “Manipulate the boundaries of (an electoral constituency) so as to favour one party or class” and thus achieve certain electoral result. https://www.lexico.com/en/definition/gerrymander.
- 13.
Rucho et al. v Common Cause et al. No. 18-422. USSC Argued March 26, 2019—Decided June 27, 2019 syllabus at p. 1 (Supreme Court of the United States).
- 14.
Rucho et al. v Common Cause et al. No. 18-422. USSC Argued March 26, 2019—Decided June 27, 2019 (Supreme Court of the United States).
- 15.
In Virginia House of Delegates v. Bethune-Hill 587 US_ 2019 (Supreme Court of the United States); the USSC majority blocked by five to four Virginia’s attempt to reverse the lower courts striking down of 11 redistricted areas that were drawn based on unconstitutional racial gerrymandering.
- 16.
Rucho et al. v Common Cause et al. No. 18-422. USSC Argued March 26, 2019—Decided June 27, 2019 syllabus at p. 2 (Supreme Court of the United States).
- 17.
Rucho et al. v Common Cause et al. No. 18-422. USSC Argued March 26, 2019—Decided June 27, 2019 syllabus at p. 3 (Supreme Court of the United States).
- 18.
Rucho et al. v Common Cause et al. No. 18-422. USSC Argued March 26, 2019—Decided June 27, 2019 syllabus at p. 3 (Supreme Court of the United States).
- 19.
Rucho et al. v Common Cause et al. No. 18-422. USSC Argued March 26, 2019—Decided June 27, 2019 (Justice Kagan Dissenting opinion with concurrence by Justice Ginsburg, Breyer and Sotomayor) at p. 1 (Supreme Court of the United States).
- 20.
Rucho et al. v Common Cause et al. No. 18-422. USSC Argued March 26, 2019—Decided June 27, 2019 syllabus at p. 3 (Supreme Court of the United States).
- 21.
Kmiec (2004), pp. 1442–1477.
- 22.
Referring here—given the political situation at the time at the US State level—to the outcome of entrenchment of Republicans in most US State legislatures by way of unconstitutional excessive political partisan gerrymandering.
- 23.
Rucho et al. v Common Cause et al. No. 18-422. USSC Argued March 26, 2019—Decided June 27, 2019 (Justice Kagan Dissenting opinion with concurrence by Justice Ginsburg, Breyer and Sotomayor) at p. 1 (Supreme Court of the United States).
- 24.
Rucho et al. v Common Cause et al. No. 18-422. USSC Argued March 26, 2019—Decided June 27, 2019 (Justice Kagan Dissenting Opinion with concurrence by Justice Ginsburg, Breyer and Sotomayor) “Their findings about these gerrymanders’ effects on voters—both in the past and predictably in the future—were evidence-based, data-based, statistics-based” at p. 21 (Supreme Court of the United States).
- 25.
Rucho et al. v Common Cause et al. No. 18-422. USSC Argued March 26, 2019—Decided June 27, 2019 (Justice Kagan Dissenting opinion with concurrence by Justice Ginsburg, Breyer and Sotomayor) at p. 2 (Supreme Court of the United States).
- 26.
Rucho et al. v Common Cause et al. No. 18-422. USSC Argued March 26, 2019—Decided June 27, 2019 (Justice Kagan Dissenting opinion with concurrence by Justice Ginsburg, Breyer and Sotomayor) at p. 23 (Supreme Court of the United States).
- 27.
Rucho et al. v Common Cause et al. No. 18-422. USSC Argued March 26, 2019—Decided June 27, 2019 (Justice Kagan Dissenting opinion with concurrence by Justice Ginsburg, Breyer and Sotomayor) at p. 6 (Supreme Court of the United States).
- 28.
Rucho et al. v Common Cause et al. No. 18-422. USSC Argued March 26, 2019—Decided June 27, 2019 (Justice Kagan Dissenting opinion with concurrence by Justice Ginsburg, Breyer and Sotomayor) at p. 8 (Supreme Court of the United States).
- 29.
Rucho et al. v Common Cause et al. No. 18-422. USSC Argued March 26, 2019—Decided June 27, 2019 (Justice Kagan Dissenting opinion with concurrence by Justice Ginsburg, Breyer and Sotomayor) at p. 8 (Supreme Court of the United States).
- 30.
Rucho et al. v Common Cause et al. No. 18-422. USSC Argued March 26, 2019—Decided June 27, 2019 (Justice Kagan Dissenting opinion with concurrence by Justice Ginsburg, Breyer and Sotomayor) at p. 29.
- 31.
Rucho et al. v Common Cause et al. No. 18-422. USSC Argued March 26, 2019—Decided June 27, 2019 (Justice Kagan Dissenting opinion with concurrence by Justice Ginsburg, Breyer and Sotomayor) at p. 22.
- 32.
See Rucho et al. v Common Cause et al. No. 18-422. USSC Argued March 26, 2019—Decided June 27, 2019 (Justice Kagan Dissenting opinion with concurrence by Justice Ginsburg, Breyer and Sotomayor) (Supreme Court of the United States): “Those voters (Republicans in the one case, Democrats in the other) did not have an equal opportunity to participate in the political process. Their votes counted for far less than they should have because of their partisan affiliation. When faced with such constitutional wrongs, courts must intervene” at p. 31.
- 33.
See Rucho et al. v Common Cause et al. No. 18-422. USSC Argued March 26, 2019—Decided June 27, 2019 (Justice Kagan Dissenting opinion with concurrence by Justice Ginsburg, Breyer and Sotomayor) (Supreme Court of the United States): “…the need for judicial review is at its most urgent in cases like these” at p. 29.
- 34.
See for instance Dept. of Commerce et al. v State of New York et al. (Supreme Court of the United States) No. 18-966. Argued April 23, 2019—Decided June 27, 2019 https://www.supremecourt.gov/opinions/18pdf/18-966_bq7c.pdf In that case the USSC ruled, based on evidence, that in its view the US Federal government had put forward a pretextual reason for wishing to re-introduce a question as to citizenship on the 2020 US Census (that question had been dropped since 2010). The US Constitution requires that every 10 years the population be ‘enumerated’ so as to apportion congressional representatives amongst the States (Dept. of Commerce et al. v State of New York et al., Syllabus). Further; “The population count is also used to allocate federal funds to the States and to draw electoral districts. The census additionally serves as a means of collecting demographic information used for a variety of purposes.” (Dept. of Commerce et al. v State of New York et al., Syllabus). The government maintained it was adding the citizenship question so as to better enforce the Voting Rights Act. The State of New York et al. maintained that the citizenship question was intended to (a) intimidate especially undocumented foreigners into not completing the census—a significant segment of that population being undocumented Latinos who had already been the target of President Trump’s restrictive border and other polices. (i.e. the threat of targeting the ‘Dreamers’; ending the legal stay for Latino children who were brought to the States illegally by parents and others when the children were under 16 years old) and to (b) have a chilling effect also on the ethnic minority population more generally in filling out the census as many Latino and other minority ethnic households have mixed undocumented (potentially at risk of deportation if found out) and documented family members This census strategy then, it was alleged by the complainants, was adopted in the hopes that the re-introduction of the citizenship question would likely depress the vote for the Democrats as the minority ethnic population is more Democrat leaning overall. There was also a fear that electoral districts might be unconstitutionally drawn based in effect on (a) the number of citizens in a district rather than the number of people contrary to what the Constitution mandated and with (b) an underestimate of the number of people in the Democrat-leaning electoral districts in particular due to the chilling effect of the citizenship census question. The USSC in this case blocked reintroduction of the citizenship question pending a submission of a government rationale acceptable to the USSC for the citizenship question’s inclusion in the 2020 census.
- 35.
Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. (Supreme Court of the United States, 587 U. S. ____ 2019 (Decided 28 May, 2019) at p. 1 See also Planned Parenthood of Indiana and Kentucky, Inc., et al v. Indiana Department of Health, et al. (United States Court of Appeals for the Seventh District) (Decided 19 April, 2018) at pp. 1–2.
- 36.
Referring to medical facilities that were also licensed abortion providers.
- 37.
This author uses the term ‘dispose’ as it is the one used in the court filings by all the parties regarding the treatment of the fetal remains issue though a term more responsive to sensibilities in this difficult delicate matter would have been preferable on the view here.
- 38.
Prior to the enactment of the new statutory provisions for the handling of fetal remains; Planned Parenthood of Indian and Kentucky Inc. “transferred the material to a medical waste removal company that incinerated and disposed of the tissue in accordance with law.” Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. In the Supreme Court of the United States Respondents’ Brief in Opposition to the Application for Writ of Certiorari at p. 2.
- 39.
The term ‘race’ is used here only because it is used in the court documents though the term ‘ethnicity’ would be more accurate.
- 40.
Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. In the Supreme Court of the United States Respondents’ Brief in Opposition to the Application for Writ of Certiorari at p. 3.
- 41.
Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. In the Supreme Court of the United States Respondents’ Brief in Opposition to the Application for Writ of Certiorari at p. 3.
- 42.
Planned Parenthood of Indiana and Kentucky, Inc., et al v. Indiana Department of Health, et al. (United States Court of Appeals for the Seventh District) (Decided 19 April, 2018) at p. 2.
- 43.
Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. In the Supreme Court of the United States Respondents’ Brief in Opposition to the Application for Writ of Certiorari at p. 22.
- 44.
Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. In the Supreme Court of the United States Respondents’ Brief in Opposition to the Application for Writ of Certiorari at p. 22.
- 45.
Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. In the Supreme Court of the United States Respondents’ Brief in Opposition to the Application for Writ of Certiorari at pp. 22–23.
- 46.
Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. In the Supreme Court of the United States Respondents’ Brief in Opposition to the Application for Writ of Certiorari at p. 3.
- 47.
Referring to the provision requiring the licensed medical facility where the abortion or miscarriage took place to dispose of the fetal remains separately from the disposal of ‘medical waste’.
- 48.
Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. In the Supreme Court of the United States Respondents’ Brief in Opposition to the Application for Writ of Certiorari at p. 4.
- 49.
But ‘prospective child’ from the point of view of Planned Parenthood.
- 50.
Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. In the Supreme Court of the United States Respondents’ Brief in Opposition to the Application for Writ of Certiorari at p. 5.
- 51.
Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. In the Supreme Court of the United States Respondents’ Brief in Opposition to the Application for Writ of Certiorari at p. 5.
- 52.
Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. In the Supreme Court of the United States Respondents’ Brief in Opposition to the Application for Writ of Certiorari at p. 6.
- 53.
Referring to an abortion carried out on what currently is deemed a non-viable fetus, that is given the gestational age of the fetus, the fetus would not survive outside the womb even with medical support. The point in development at which a fetus may be viable in future of course will change with advances in medical knowledge and technologies.
- 54.
Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. In the Supreme Court of the United States Respondents’ Brief in Opposition to the Application for Writ of Certiorari at p. 6.
- 55.
Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. In the Supreme Court of the United States Respondents’ Brief in Opposition to the Application for Writ of Certiorari at p. 6.
- 56.
For example Roe v. Wade, 410 U.S. 113 (1973), Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) (plurality).
- 57.
Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. In the Supreme Court of the United States Respondents’ Brief in Opposition to the Application for Writ of Certiorari at p. 7.
- 58.
Planned Parenthood of Indiana and Kentucky, Inc., et al. v Kristina Box, Commissioner, Indiana Department of Health, et al. No. 17-3163.
United States Court of Appeals, Seventh Circuit, 888 F.3d 300 (7th Cir. 2018) Decided 19 April, 2018 at p. 4 para 305.
- 59.
Roe v. Wade, 410 U.S. 113, 153 (1973) (United States Supreme Court).
- 60.
Greene (2010), pp. 715–747.
- 61.
In Lawrence v Texas deeply private behavior was held by the majority of the Supreme Court of the United States to be protected under the liberty clause of the Fourteenth Amendment without reference to a constitutional privacy right. That case concerned a State law deemed by the USSC Majority unconstitutional; criminalizing same sex intimate relations in the privacy of the home. Lawrence v Texas, 539 US 558 (2003) (Supreme Court of the United States). Note that in a dissent in that case then USSC Justice Scalia accused the majority in Lawrence of results-oriented reasoning. This in that the Majority, in Justice Scalia’s view, allegedly in contradictory manner, both upheld Roe v Wade as ‘super precedent’ where what he termed as “judicially invented abortion rights” were at issue, but overruled a 17 year standing case precedent relevant in the Lawrence case (Lawrence v Texas, 539 US 558 (2003) at p. 587) (Supreme Court of the United States).
- 62.
Referring to grounding in the US Constitution’s Fourteenth Amendment express text (specifically the liberty rights clause and the equality rights provision) the right to abort a nonviable fetus as opposed to basing the right to abortion on an implied constitutional privacy right.
- 63.
Greene (2010), p. 71.
- 64.
Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833, 846 (1992) (United States Supreme Court).
- 65.
Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833, 846 (1992) (United States Supreme Court) majority opinion p. 861 point 3.
- 66.
Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833, 846 (1992) (United States Supreme Court) Cited in Planned Parenthood of Indiana and Kentucky, Inc., et al. v Commissioner of the Indiana State Dept. of Health (US Court of Appeals for the Seventh District) at p. 8. See also Roe v Wade “With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications.” Roe v Wade 410 U.S. 113 (1973) at p. 163 (United States Supreme Court) (Justice Blackmun Opinion).
- 67.
This then appears to be a case, under the revised Indiana abortion statute, of considerations regarding ‘survival of the fittest’ after live birth of the child being a factor in determining right to life of the fetus before viability.
- 68.
Planned Parenthood of Indiana and Kentucky, Inc., et al v. Indiana Department of Health, et al. United States Court of Appeals for the Seventh District (Decided 19 April, 2018) at p. 8 Citing Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833, 846 (1992).
- 69.
Planned Parenthood of Indiana and Kentucky, Inc., et al v. Indiana Department of Health, et al. United States Court of Appeals for the Seventh District (Decided 19 April, 2018) at p. 8 Citing Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833, 846 (1992).
- 70.
Planned Parenthood of Indiana and Kentucky, Inc., et al v. Indiana Department of Health, et al. United States Court of Appeals for the Seventh District (Decided 19 April, 2018).
- 71.
Planned Parenthood of Indiana and Kentucky, Inc., et al v. Indiana Department of Health, et al. United States Court of Appeals for the Seventh District (Decided 19 April, 2018).
- 72.
Planned Parenthood of Indiana and Kentucky, Inc., et al v. Indiana Department of Health, et al. United States Court of Appeals for the Seventh District (Decided 19 April, 2018).
- 73.
Roe v Wade 410 U.S. 113, 153 (1973) at 164–165 (United States Supreme Court).
- 74.
Planned Parenthood of Indiana and Kentucky, Inc., et al v. Indiana Department of Health, et al. United States Court of Appeals for the Seventh District (Decided 19 April, 2018) at p. 18.
- 75.
Casey is a USSC ruling holding that any statutory provision that puts undue hardship on a woman by placing a substantial obstacle in her path to her securing an abortion of a pre-viable fetus is constitutionally infirm (Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833, 846 (1992)).
- 76.
Roe v Wade 410 U.S. 113 (1973) (United States Supreme Court).
- 77.
Planned Parenthood of Indiana and Kentucky, Inc., et al v. Indiana Department of Health, et al. United States Court of Appeals for the Seventh District (Decided 19 April, 2018) at p. 19.
- 78.
Note that there were no oral arguments presented before the Supreme Court of the United States in this case.
- 79.
Planned Parenthood of Indiana and Kentucky, Inc., et al v. Indiana Department of Health, et al. United States Court of Appeals for the Seventh District (Decided 19 April, 2018) at pp. 19–20.
- 80.
Planned Parenthood of Indiana and Kentucky, Inc., et al v. Indiana Department of Health, et al. United States Court of Appeals for the Seventh District (Decided 19 April, 2018) at p. 21 (Judge Manion, Dissenting Opinion).
- 81.
Of course it is today possible to alter one’s genitalia surgically as is the choice for some transsexual persons but for most persons biological sex at birth will remain tantamount to an immutable characteristic in all its manifestations.
- 82.
Planned Parenthood of Indiana and Kentucky, Inc., et al v. Indiana Department of Health, et al. United States Court of Appeals for the Seventh District (Decided 19 April, 2018) at p. 21 (Judge Manion, Dissenting Opinion).
- 83.
Planned Parenthood of Indiana and Kentucky, Inc., et al v. Indiana Department of Health, et al. United States Court of Appeals for the Seventh District (Decided 19 April, 2018) at p. 21 (Judge Manion, Dissenting Opinion).
- 84.
See Huq (2012), pp. 579–605 for an historical perspective on judicial activism v judicial restraint in the US.
- 85.
Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833, 846 (1992) at p 870 Cited in Planned Parenthood of Indiana and Kentucky, Inc., et al v. Indiana Department of Health, et al. United States Court of Appeals for the Seventh District (Decided 19 April, 2018) (Judge Manion, Dissenting Opinion) at p. 20.
- 86.
Planned Parenthood of Indiana and Kentucky, Inc., et al v. Indiana Department of Health, et al. United States Court of Appeals for the Seventh District (Decided 19 April, 2018) at p. 22 (Judge Manion, Dissenting Opinion).
- 87.
Planned Parenthood of Indiana and Kentucky, Inc., et al v. Indiana Department of Health, et al. United States Court of Appeals for the Seventh District (Decided 19 April, 2018) at p. 22 (Judge Manion, Dissenting Opinion).
- 88.
Planned Parenthood of Indiana and Kentucky, Inc., et al v. Indiana Department of Health, et al. United States Court of Appeals for the Seventh District (Decided 19 April, 2018) at p. 25 (Judge Manion, Dissenting Opinion).
- 89.
Associated Press posted 24 May, 2019 Legal challenge to Alabama’s controversial abortion law filed https://www.cbc.ca/news/world/us-lawsuit-alabama-abortion-1.5148326.
- 90.
Associated Press posted 24 May, 2019 Legal challenge to Alabama’s controversial abortion law filed https://www.cbc.ca/news/world/us-lawsuit-alabama-abortion-1.5148326.
- 91.
Associated Press posted 24 May, 2019 Legal challenge to Alabama’s controversial abortion law filed https://www.cbc.ca/news/world/us-lawsuit-alabama-abortion-1.5148326.
- 92.
Associated Press posted 24 May, 2019 Legal challenge to Alabama’s controversial abortion law filed https://www.cbc.ca/news/world/us-lawsuit-alabama-abortion-1.5148326.
- 93.
Tavernese, S New York Times Missouri senate advances fetal heartbeat abortion bill posted 16 May. 2019 https://www.nytimes.com/2019/05/16/us/missouri-abortion.html.
- 94.
Reproductive Health Services of Planned Parenthood of the St. Louis Region, Inc., on behalf of itself, its physicians, and its patients, and Colleen P. McNicholas, D.O., M.S.C.I., F.A.C.O.G, on behalf of herself and her patients (Plaintiffs) v. Michael L. Parson, in his official capacity as Governor of the State of Missouri, et. al. (Defendants) Case No. 2:19-cv-4155-HFS (US District Court of the Western District of Missouri Central Division) Memorandum and Order, August 28, 2019.
- 95.
Associated Press posted 24 May, 2019 Legal challenge to Alabama’s controversial abortion law filed https://www.cbc.ca/news/world/us-lawsuit-alabama-abortion-1.5148326.
- 96.
UN ‘very concerned’ about abortion access after recent Alabama, Missouri laws Thomson Reuters (Posted: May 21, 2019) https://www.cbc.ca/news/world/un-concern-us-abortion-access-1.5143136.
- 97.
Planned Parenthood (2019) Roe v Wade: The constitutional right to access safe legal abortions https://www.plannedparenthoodaction.org/issues/abortion/roe-v-wade.
- 98.
Garza (Guardian ad litem for J.D.) v Hargan (Acting Secretary of Health and Human Services) et al. 874 F.3d 735 (DC Circuit en banc ruling) 2017 (Concurring Opinion of Judge Millett, Circuit Judge).
- 99.
Garza (Guardian ad litem for J.D.) v Hargan (Acting Secretary of Health and Human Services) et al. 874 F.3d 735 (DC Circuit en banc ruling) 2017 (Concurring Opinion of Judge Millett, Circuit Judge).
- 100.
Rochelle Garza, as guardian ad litem to unaccompanied minor J.D., on behalf of herself and others similarly situated, Plaintiff, v. ERIC D. HARGAN, et al., Defendants. Civil Action No. 17-cv-02122 (TSC) Decided 30 March, 2018 (US District Court for the District of Columbia) (Judge T Chutkan) https://prawfsblawg.blogs.com/files/ddc-abortion.pdf.
- 101.
Legal Information Institute (Cornell Law School) The Fifth Amendment https://www.law.cornell.edu/wex/due_process.
- 102.
“Judge Kavanaugh’s dissenting opinion claims that the court has somehow broken new constitutional ground by authorizing “immediate abortion on demand” by “unlawful immigrant minors” (Judge Kavanaugh’s Dissent Op. 1)”: Cited in Garza (Guardian ad litem for J.D.) v Hargan (Acting Secretary of Health and Human Services) et al. 874 F.3d 735 (DC Circuit en banc ruling) 2017 (Concurring Opinion of Judge Millett, Circuit Judge) The majority en banc court rejected Judge Kavanagh’s view since, for instance, the government itself had not argued that the child had no constitutional right to an abortion.
- 103.
Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833, 846 (1992) (United States Supreme Court).
- 104.
Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833, 846 (1992) Justice Kennedy Opinion (United States Supreme Court).
- 105.
The child J.D. was in her second trimester when the en banc Court of Appeals reconsidered the case on an expedited basis.
- 106.
See Garza v Hargan (2018), pp. 1812–1819.
- 107.
Garza (Guardian ad litem for J.D.) v Hargan (Acting Secretary of Health and Human Services) et al. 874 F.3d 735 (DC Circuit Court of Appeals en banc ruling) 2017 (Millett, Circuit Judge, concurring).
- 108.
Garza (Guardian ad litem for J.D.) v Hargan (Acting Secretary of Health and Human Services) et al. 874 F.3d 735 (DC Circuit Court of Appeals en banc ruling) 2017 (Millett, Circuit Judge, concurring).
- 109.
Garza (Guardian ad litem for J.D.) v Hargan (Acting Secretary of Health and Human Services) et al. 874 F.3d 735 (DC Circuit Court of Appeals en banc ruling) 2017.
- 110.
UN ‘very concerned’ about abortion access after recent Alabama, Missouri laws Thomson Reuters (Posted: May 21, 2019) https://www.cbc.ca/news/world/un-concern-us-abortion-access-1.5143136.
- 111.
Moore (2019), pp. 1010–1027.
- 112.
Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992) (United States Supreme Court).
- 113.
Roe v Wade 410 U.S. 113 (1973) (United States Supreme Court).
- 114.
Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. 587 U. S. ____ 2019 (Decided 28 May, 2019) (United States Supreme Court).
- 115.
On the view here; the ‘reasoned judgement’ in Casey might properly equally be described as ‘discretionary statutory interpretation’ in that particular precedent-setting case; the latter descriptor arguably a less inflammatory moniker than ‘judicial activism’ though both would seem apropos descriptors of the USSC analysis in Casey (Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833) (1992) (United States Supreme Court).
- 116.
Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992) syllabus (United States Supreme Court).
- 117.
Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992) (United States Supreme Court).
- 118.
Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992) at p. 866 (United States Supreme Court).
- 119.
Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992) at p. 866 (United States Supreme Court).
- 120.
Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992) at p. 866 (United States Supreme Court).
- 121.
Abortion of a viable fetus where the mother’s health or life are at significant risk was deemed constitutional under Roe and Casey.
- 122.
Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992) point 4 at p 861 (United States Supreme Court).
- 123.
Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992) point 4 at p 861 (United States Supreme Court).
- 124.
Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992) syllabus (United States Supreme Court).
- 125.
The USSC in Casey did recognize that the State may have a compelling interest to create some regulations regarding abortion but held these were not to create an ‘undue burden’ which would interfere with the right to abort a pre-viable fetus otherwise the regulations would be unlawful as unconstitutional.
- 126.
Saad, Lydia Alabama Bill at Odds with Public Consensus on the Issue (Gallup Blog) 15 May, 2019 https://news.gallup.com/opinion/gallup/257627/alabama-bill-odds-public-consensus-abortion.aspx.
- 127.
Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992) at pp. 866–867 (United States Supreme Court).
- 128.
Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992) (United States Supreme Court).
- 129.
Roe v Wade 410 U.S. 113 (1973) (United States Supreme Court).
- 130.
Blahuta (2017), pp. 758–770.
- 131.
Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992) at p. 867 (United States Supreme Court).
- 132.
Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992) (United States Supreme Court).
- 133.
Legal Information Institute (Cornell Law School) Fourteen Amendment Section 1 https://www.law.cornell.edu/constitution/amendmentxiv.
- 134.
Roe v Wade 410 U.S. 113 (1973) (United States Supreme Court).
- 135.
Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) (United States Supreme Court).
- 136.
Brown, Taylor Kate The US Supreme Court: Who are the Justices? BBC (30 November, 2018) https://www.bbc.com/news/magazine-33103973.
- 137.
Judge Manion the Dissenting judge in Planned Parenthood of Indiana and Kentucky, Inc., et al v. Indiana Department of Health, et al.(United States Court of Appeals for the Seventh District) (Decided 19 April, 2018) commented that “Casey treats abortion as a super-right, more sacrosanct even than the enumerated rights in the Bill of Rights.” (referring to Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992)) (United States Supreme Court).
- 138.
There may be complex cases where the woman’s directive to the physician puts her own life and that of some or all of her unborn at risk but these are beyond the scope of this work to discuss (i.e. where the woman refuses to selectively abort any of the multiple potentially fetuses she is carrying who must be delivered very prematurely and whose survival is possible but a highly precarious matter and will require intensive medical intervention).
- 139.
The term ‘pre-viable’ is used here interchangeably with ‘non-viable’ (the latter is the term most commonly used in the abortion legal literature) though on the view of the author the former term is more accurate in the context of this discussion.
- 140.
The USSC Majority in Roe stated that “The Constitution does not define ‘person’ in so many words… . But in nearly all … instances, the use of the word is such that it has application only post-natally. None indicates, with any assurance, that it has any possible pre-natal application … the word “person,” as used in the Fourteenth Amendment, does not include the unborn (emphasis added).” Roe v Wade 410 U.S. 113 (1973) pp. 158–159 (United States Supreme Court). This conclusion was reached by the USSC Majority in Roe based in part then on inferences from the fact that the text of the U.S. Constitution does not actually address the issue of the status of the unborn as ‘person’ or ‘nonperson’ and the fact that abortion practices were freer for most of the nineteenth century than they were at the time Roe was decided. Note however, as explained by K Savell, that the ‘born alive rule’ that designates only the born alive child as a ‘person’ under the law originated in a time when medical knowledge and technology did not allow for accurate detection of viability and stillbirth due to natural causes was a high probability making being born alive the only sure indicator of viability. The born alive rule then, the old English case law reveals, was not intended as an indicia of legal personhood per se generally but of viability (at a time viability could not be adequately assessed pre-birth) such that determinations could be made in the criminal context as to whether a homicide or manslaughter or assault of some kind had occurred upon a ‘child’ consequent to the assault on a pregnant woman. Thus if the child was born alive and survived briefly but then died due to injuries sustained in utero due to an assault on the pregnant mother; the assailant could be charged with the homicide of the infant but if the infant was born stillborn there was often no way to know in yesteryear if the death was due to the assault on the pregnant woman or for some other cause [See Savell (2006), pp. 625–664. See also Grover (2017a), pp. 708–742].
- 141.
It is in practice the case that in North American democracies ‘personhood’ in law is reserved for human beings after live birth. At the same time, the United Nations Convention on the Rights of the Child (UNCRC) Article 24(d) accords the fetus—pre-viable and viable both without distinction—the right to good medical care (Convention on the Rights of the Child entered into force 7 September, 1990 https://www.humanium.org/en/convention/text/). The latter rights of the fetus are operationalized in the Convention by way of the guarantee of the right to the mother of quality ‘pre and post- natal care’ (a clumsy, but it appears effective way, of trying in Convention Article 24 (d) to avoid in the text directly assigning the fetus a particular status as ‘human life’, ‘human being’ etc. by referring to fetal rights. Note, however, that Article 24 of the Convention refers to the obligation that “States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health”, hence the reference to pre and post-natal care at Article 24(d) contemplates interventions in the normal course to sustain the life of the fetus and then the live born child (child is defined in the Convention as a human being under age 18 years). It is clear that under the CRC (a) the right to good ‘pre and post-natal care’ belongs at least both to (1) the fetus and live born child respectively as well as to (2) the mother assuming then also in the first instance a right of the mother to be afforded pre and post-natal care. By implication at least thus the fetus is assigned human rights such as right to life in the Convention on the Rights of the Child. The Convention does not address abortion but if abortion is deemed necessary in a particular case, consistent with international human rights law, then the CRC could be viewed as ensuring both mother and child the right to have it carried out to the highest medical standard possible with the available resources. Yet some scholars take the view that even viable fetuses do not possess any human rights such as right to life. Copelon et al. (2005), pp. 120–129.
- 142.
Legal Information Institute Due process clause, Section one of the fourteen amendment https://www.law.cornell.edu/constitution/amendmentxiv.
- 143.
Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992) at p. 840 (United States Supreme Court).
- 144.
A federal lawsuit was filed—the first of its kind—asking a US federal court to declare the Colorado River in Southeastern Utah, US a legal person. This in order that the river, on which so many depend, can be protected from the environmental ravages likely to ensue due to US President Trump’s roll back of key environmental protection regulations (see Turkewitz, J (New York Times) Corporations have rights. Why shouldn’t rivers? 26 September, 2017) https://www.nytimes.com/2017/09/26/us/does-the-colorado-river-have-rights-a-lawsuit-seeks-to-declare-it-a-person.html.
- 145.
It is noteworthy that one of the Dissenting Appeal Panel judges in Garza v Hargan held that the pregnant undocumented child J.D. was not a ‘person’ under the Due Process Clause; a view the majority of the en banc Court in the case commented on and rejected. USSC case law the Majority held reveals that Due Process is accorded to illegal aliens deemed entered over whom the US has territorial jurisdiction and to US citizens alike. Due Process in cases where the US had extraterritorial jurisdiction have also been considered (see Grover 2017b).
- 146.
Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992) (United States Supreme Court) (Justice Kennedy, Concurring in part, Dissenting in part).
- 147.
Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992) (United States Supreme Court) (Justice Kennedy, Concurring in part, Dissenting in part).
- 148.
Roe v Wade 410 U.S. 113 (1973) at 159 (United States Supreme Court).
- 149.
Note that under Casey USSC case law any obstacle to abortion of the pre-viable fetus is considered ipso facto an ‘undue burden’ on the woman and unconstitutional without any further analysis necessary. In Casey the Chief Justice Rehnquist, joined by Justice White, Justice Scalia and Justice Thomas held that “The undue burden standard adopted by the joint opinion of Justices O’Connor, Kennedy, and Souter has no basis in constitutional law and will not result in the sort of simple limitation, easily applied, which the opinion anticipates. To evaluate abortion regulations under that standard, judges will have to make the subjective, unguided determination whether the regulations place “substantial obstacles” in the path of a woman seeking an abortion, undoubtedly engendering a variety of conflicting views.” (emphasis added). Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992) (United States Supreme Court) at point 3 p. 840 Justices O’Connor, Kennedy, and Souter gave the opinion of the plurality of the Court on the undue burden standard.
- 150.
Planned Parenthood of Indiana and Kentucky, Inc., et al v. Indiana Department of Health, et al. United States Court of Appeals for the Seventh District (Decided 19 April, 2018) at p. 22(United States Supreme Court).
- 151.
Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992) (United States Supreme Court).
- 152.
See Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992) at p. 867 (United States Supreme Court).
- 153.
See Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992) at p. 845 (United States Supreme Court).
- 154.
Roe v Wade 410 U.S. 113 (1973) (United States Supreme Court).
- 155.
Roe v Wade 410 U.S. 113 (1973) (United States Supreme Court).
- 156.
Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992) (United States Supreme Court).
- 157.
Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. (Supreme Court of the United States, 587 U. S. ____ 2019 (Decided 28 May, 2019).
- 158.
Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. (Supreme Court of the United States, 587 U. S. ____ 2019 (Decided 28 May, 2019).
- 159.
Legal Information Institute: Rule 10. Considerations Governing Review on Writ of Certiorari https://www.law.cornell.edu/rules/supct/rule_10.
- 160.
Roe v Wade 410 U.S. 113 (1973) (United States Supreme Court).
- 161.
Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833, 846 (1992) (United States Supreme Court).
- 162.
Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. (Supreme Court of the United States, 587 U. S. ____ 2019 (Decided 28 May, 2019).
- 163.
Legal Information Institute: Rule 10. Considerations Governing Review on Writ of Certiorari https://www.law.cornell.edu/rules/supct/rule_10.
- 164.
Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. (Supreme Court of the United States, 587 U. S. ____ 2019).
- 165.
This since Planned Parenthood of Indiana and Kentucky Inc. did not advance the proposition that Indiana’s fetal disposal regulations interfered with what it considered a woman’s fundamental right to a non-therapeutic pre-viable fetal abortion.
- 166.
Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. (Supreme Court of the United States, 587 U. S. ____ 2019 at p. 2) (Decided 28 May, 2019) (referencing wording from the lower court in the case).
- 167.
Referring to a medically induced abortion.
- 168.
Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. (Supreme Court of the United States, 587 U. S. ____ 2019) (Decided 28 May, 2019).
- 169.
In the Supreme Court of the United States, Respondent’s Brief in Opposition to the Petition for a Writ of Certiorari in Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. at p. 2.
- 170.
Kristina Box, Commissioner, Indiana Department of Health, et al. v. Planned Parenthood of Indiana and Kentucky, Inc., et al. (Supreme Court of the United States, 587 U. S. ____ 2019) (Decided 28 May, 2019).
- 171.
Note that the USSC in the landmark abortion case Roe did not make a determination as to whether the fetus is a human being. See Roe v Wade 410 U.S. at 159:“When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus [concerning when life begins], the judiciary . . . is not in a position to speculate as to the answer.”
- 172.
Note that the USSC has overturned at least 236 of its own case precedents Willingham AJ The Supreme Court has overturned more than 200 of its own decisions. Here’s what it could mean for Roe v. Wade CNN Politics (29 May, 2019) https://www.cnn.com/2019/05/29/politics/supreme-court-cases-overturned-history-constitution-trnd/index.html.
- 173.
If the USSC rules in a future case that the Fourteenth Amendment does not implicate an unfettered right to abort a pre-viable fetus—if that should be the ruling by the conservative majority on the USSC as constituted at the time of this writing—(assuming the challenge to Roe is heard by the USSC); the Majority would be engaged in ‘conservative judicial activism’ as nothing in the Fourteen Amendment Section 1 precludes a privacy right in the abortion context protecting the woman’s rights to abortion and any such conclusion would be based on the particular reasoning of the particular Majority (now a conservative leaning majority) on the Court at that time.
- 174.
Judge Manion argues that States at least have a compelling interest to prevent abortions based solely on particular discriminatory grounds such as race, sex or inherited disability and that such a State interest should be considered and not rejected out of hand in a constitutionality analysis by the USSC Planned Parenthood of Indiana and Kentucky, Inc., et al v. Indiana Department of Health, et al. United States Court of Appeals for the Seventh District (Decided 19 April, 2018) at pp. 30–31 (Judge Manion, Dissenting Opinion).
- 175.
The precedent set in Gamble would allow for Presidential advisors or others associated with a US government or campaign indicted or potentially to be indicted on Federal charges to face prosecution for the same or analogous crimes at the State level even if the President, whomever that may be, pardons them for the same or similar crimes under the federal criminal law statute (Presidential pardons are not available for crimes defined under U.S. State Criminal Codes).
- 176.
Gamble v United States Slip Opinion No. 17-646. Argued December 6, 2018—Decided June 17, 2019 syllabus p. 2 (United States Supreme Court).
- 177.
Gamble v United States Slip Opinion No. 17-646. Argued December 6, 2018—Decided June 17, 2019 syllabus p. 2 (United States Supreme Court).
- 178.
Legal Information Institute (Cornell Law School) Double Jeopardy https://www.law.cornell.edu/wex/double_jeopardy.
- 179.
Gamble v United States Slip Opinion No. 17-646. Argued December 6, 2018—Decided June 17, 2019 syllabus at p. 3 (United States Supreme Court).
- 180.
Gamble v United States Slip Opinion No. 17-646. Argued December 6, 2018—Decided June 17, 2019 syllabus (United States Supreme Court) at p. 2: “In November 2015, a local police officer in Mobile, Alabama, pulled Gamble over for a damaged headlight. Smelling marijuana, the officer searched Gamble’s car, where he found a loaded 9-mm handgun. Since Gamble had been convicted of second-degree robbery, his possession of the handgun violated an Alabama law providing that no one convicted of “a crime of violence” “shall own a firearm or have one in his or her possession…””
- 181.
Legal Information Institute Double Jeopardy https://www.law.cornell.edu/wex/double_jeopardy.
- 182.
Gamble v United States Slip Opinion No. 17-646. Argued December 6, 2018—Decided June 17, 2019 syllabus at pp. 3–4.
- 183.
Gamble v United States Slip Opinion No. 17-646. Argued December 6, 2018—Decided June 17, 2019 syllabus.
- 184.
Gamble v United States Slip Opinion No. 17-646. Argued December 6, 2018—Decided June 17, 2019 syllabus at p. 2.
- 185.
Kmiec (2004), pp. 1442–1477.
- 186.
Gamble v United States Slip Opinion No. 17-646. Argued December 6, 2018—Decided June 17, 2019 syllabus at p. 3 (United States Supreme Court).
- 187.
Gamble v United States Slip Opinion No. 17-646. Argued December 6, 2018—Decided June 17, 2019 syllabus at pp. 6–7 (United States Supreme Court).
- 188.
The Majority in Gamble also made use of an international example in the attempt to support the dual sovereignty theory of successive prosecutions. The example involves the U.S prosecuting the perpetrator of a murder of an American abroad even where that defendant has already been tried and convicted in the foreign country (something that is permitted under U.S, federal law). The majority explains that the U.S. would have separate interests in the matter compared to the foreign state such as “key national interests related to security, trade, commerce, or scholarship.” Further the majority points out the U.S. may not have faith in the integrity of the foreign judicial branch involved and hence wish to try the perpetrator (who may be an American for instance) at home. Gamble v United States Slip Opinion No. 17-646. Argued December 6, 2018—Decided June 17, 2019 at p. 7 (United States Supreme Court). However this example involving international relations etc. poses unique issues that are quite distinct from the interests of the state and federal government both of the U.S. regarding the crime or crimes—one offence or two depending on whether or not one supports the dual sovereignty theory of successive prosecutions—involved in the Gamble case and hence should be addressed separately.
- 189.
Further other complications may arise. For example the assault on the US Marshall could have been legally an actual or automatic ‘breach of the peace’ under State law whereas the ‘hindering of the execution of a legal process’ by assault of the US Marshall may only have been an attempted hindrance as the US Marshall may have already completed that task (execution of a legal process such as serving a subpoena or seizure of property etc.) when he or she was assaulted. Hence, in the latter example, the offences differ on the dimension of actual completion of the actus reus versus attempted completion of the offence at issue under each statute making them thus different offences.
- 190.
Compare Gamble v United States No. 17-646. Argued December 6, 2018—Decided June 17, 2019 (Justice Ginsburg Dissenting Opinion) at p. 4. Regarding the sovereignty residing with the people of the US as a whole such that the State and federal governments of the US are not separate sovereignties.
- 191.
Gamble v United States Slip Opinion No. 17-646. Argued December 6, 2018—Decided June 17, 2019 (Justice Thomas Dissenting Opinion at p. 4) (United States Supreme Court).
- 192.
Gamble v United States Slip Opinion No. 17-646. Argued December 6, 2018—Decided June 17, 2019 (Justice Thomas Dissenting Opinion at p. 4) (United States Supreme Court).
- 193.
Gamble v United States Slip Opinion No. 17-646. Argued December 6, 2018—Decided June 17, 2019 at para 36 (United States Supreme Court).
- 194.
Justice Thomas in Gamble v United States Slip Opinion No. 17-646. Argued December 6, 2018—Decided June 17, 2019 at p 2 of the Justice Thomas Dissent (United States Supreme Court) Citing Obergefell v Hodges 576 U.S. _(2015) (Roberts Dissenting) slip op. at 3.
- 195.
Gamble v United States Slip Opinion No. 17-646. Argued December 6, 2018—Decided June 17, 2019 at p. 3 (Justice Thomas dissent) (United States Supreme Court).
- 196.
Gamble v United States Slip Opinion No. 17-646. Argued December 6, 2018—Decided June 17, 2019 Justice Thomas Dissent at p 2 (United States Supreme Court).
- 197.
Currier v. Virginia, 585 U. S. ___ (2018) (slip op., at 16) (United States Supreme Court).
- 198.
Gamble v United States Slip Opinion No. 17-646. Argued December 6, 2018—Decided June 17, 2019 (United States Supreme Court) Justice Thomas Dissent at p. 10 (“No legislative act, therefore, contrary to the Constitution, can be valid”).
- 199.
Gamble v United States No. 17-646. Argued December 6, 2018—Decided June 17, 2019 (Justice Ginsburg Dissenting Opinion at p. 3 (United States Supreme Court).
- 200.
Gamble v United States No. 17-646. Argued December 6, 2018—Decided June 17, 2019 (Justice Thomas dissent) at p. 9 (United States Supreme Court).
- 201.
Gamble v United States No. 17-646. Argued December 6, 2018—Decided June 17, 2019 (Justice Thomas dissent) at p. 9 (United States Supreme Court) Referring to a textual interpretation that is amongst several alternatives that a judicious reasonable person might consider to have been the possible intent or meaning of the text when drafted.
- 202.
Gamble v United States No. 17-646. Argued December 6, 2018—Decided June 17, 2019 at p. 3 (Justice Thomas dissent) at p. 2 (United States Supreme Court).
- 203.
Gamble v United States No. 17-646. Argued December 6, 2018—Decided June 17, 2019 at p. 10 (Justice Thomas dissent) at p. 2 (United States Supreme Court).
- 204.
Gamble v United States No. 17-646. Argued December 6, 2018—Decided June 17, 2019 at p. 10 (Justice Thomas dissent) at p. 2 (United States Supreme Court).
- 205.
Gamble v United States Slip Opinion No. 17-646. Argued December 6, 2018—Decided June 17, 2019 (United States Supreme Court). Justice Thomas Dissenting Opinion: “Given their understanding of Congress’ limited criminal jurisdiction and the absence of an analogous dual-sovereign system in England, it is difficult to conclude that the People who ratified the Fifth Amendment understood it to prohibit prosecution by a State and the Federal Government for the same offense. And, of course, we are not entitled to interpret the Constitution to align it with our personal sensibilities about “‘unjust’” prosecutions.” at pp. 1–2.
- 206.
Gamble v United States No. 17-646. Argued December 6, 2018—Decided June 17, 2019 at p. 3 (Justice Thomas dissent) (United States Supreme Court).
- 207.
Gamble v United States Slip Opinion No. 17-646. Argued December 6, 2018—Decided June 17, 2019 (United States Supreme Court). Justice Thomas Dissenting Opinion at pp. 1–2.
- 208.
Legal Information Institute Double Jeopardy https://www.law.cornell.edu/wex/double_jeopardy.
- 209.
Gamble v United States No. 17-646. Argued December 6, 2018—Decided June 17, 2019 syllabus at p. 3 (United States Supreme Court). The Majority in Gamble cites Moore v. Illinois, 14 How. 13, 17 (1852): “The constitutional provision is not, that no person shall be subject, for the same act, to be twice put in jeopardy of life or limb; but for the same offence, the same violation of law, no person’s life or limb shall be twice put in jeopardy”.
- 210.
Kmiec (2004), pp. 1442–1477.
- 211.
Moore v Illinois 55 US 13 (1852) (Dissenting Opinion Justice MacClean). The same guarantee against double prosecution for the same conduct/offence applying then in a case where the person is first tried and convicted at the state level.
- 212.
Gamble v United States No. 17-646. Argued December 6, 2018—Decided June 17, 2019 (Justice Thomas Dissenting Opinion at p. 3) (United States Supreme Court).
- 213.
Kmiec (2004), pp. 1442–1477.
- 214.
Gamble v United States No. 17-646. Argued December 6, 2018—Decided June 17, 2019 (Justice Thomas Dissenting Opinion at p. 3) (United States Supreme Court).
- 215.
Gamble v United States No. 17-646. Argued December 6, 2018—Decided June 17, 2019 (Justice Thomas Dissenting Opinion at p. 3) (United States Supreme Court).
- 216.
Gamble v United States No. 17-646. Argued December 6, 2018—Decided June 17, 2019 (Justice Thomas Dissenting Opinion at p. 3) (United States Supreme Court) Justice Thomas has also opined in Gamble that deciding to invoke stare decisis after consideration of the factors of “the antiquity of the precedent, the reliance interests at stake, and…whether the decision was well reasoned” introduces arbitrary policy based discretion into the decision whether or not to rely on judicial precedent or overrule it. See Gamble, Justice Thomas Dissenting Opinion at p. 15.
- 217.
Gamble v United States No. 17-646. Argued December 6, 2018—Decided June 17, 2019 (Justice Thomas Dissenting Opinion at p. 3) (United States Supreme Court).
- 218.
See Gamble v United States No. 17-646. Argued December 6, 2018—Decided June 17, 2019 (Justice Thomas Dissenting Opinion at p. 3) (United States Supreme Court).
- 219.
Gamble v United States No. 17-646. Argued December 6, 2018—Decided June 17, 2019 (Justice Thomas Dissenting Opinion at p. 10) (United States Supreme Court).
- 220.
Justice Thomas suggests that whether or not to abandon stare decisis should be determined based on “a clear, principled rule grounded in the meaning of the text.” Gamble v United States No. 17-646. Argued December 6, 2018—Decided June 17, 2019 (Justice Thomas Dissenting Opinion at p. 16) (United States Supreme Court) See also the Justice Thomas Dissent at p. 13 regarding the challenges of legal interpretation and textualism.
- 221.
At the same time Justice Thomas in Gamble acknowledges that “The historical record presents knotty issues about the original meaning of the Fifth Amendment…” Gamble v United States No. 17-646. Argued December 6, 2018—Decided June 17, 2019 (Justice Thomas Dissenting Opinion at p. 13) (United States Supreme Court).
- 222.
Gamble v United States No. 17-646. Argued December 6, 2018—Decided June 17, 2019 (Justice Thomas Dissenting Opinion at p. 12) (United States Supreme Court).
- 223.
Gamble had been sentenced to 10 years in prison by the state of Alabama for being a felon in possession of a firearm and for drug possession where only one year of the sentence was suspended. “Apparently regarding Alabama’s sentence as too lenient, federal prosecutors pursued a parallel charge, possession of a firearm by a convicted felon, in violation of federal law. Gamble again pleaded guilty and received nearly three more years in prison.” Gamble v United States No. 17-646. Argued December 6, 2018—Decided June 17, 2019 (Justice Ginsburg Dissenting Opinion at p. 1) (United States Supreme Court).
- 224.
Gamble v United States No. 17-646. Argued December 6, 2018—Decided June 17, 2019 (Justice Ginsburg Dissenting Opinion at p. 4.) (United States Supreme Court).
Note that Justice Ginsburg also argues that the State (Alabama) and U.S. federal government are not two sovereigns as sovereignty resides with the people of the United States as a whole (Justice Ginsburg Dissenting Opinion at pp. 3–4).
- 225.
American Legion v. American Humanist Association No. 17-1717 (Decided 20 June, 2019) (United States Supreme Court).
- 226.
The cross bears a bronze plaque with the names of the 49 fallen (African American and Caucasian fallen soldiers) and has the American Legion emblem at its centre and the words “Valor,” “Endurance,” “Courage,” and “Devotion” emblazoned at the base. Justice Alito writing for the majority of the USSC in the case found there was no evidence that Jewish names had been left off the monument plaque and noted that one of the American Legion leaders that worked to have the monument constructed was Jewish.
- 227.
See Legal Information Institute: The Establishment Clause “The First Amendment’s Establishment Clause prohibits the government from making any law “respecting an establishment of religion.” This clause not only forbids the government from establishing an official religion, but also prohibits government actions that unduly favor one religion over another. It also prohibits the government from unduly preferring religion over non-religion, or non-religion over religion.” https://www.law.cornell.edu/wex/establishment_clause.
- 228.
American Legion v. American Humanist Association No. 17-1717 (Decided 20 June, 2019) OYEZ (United States Supreme Court) https://www.oyez.org/cases/2018/17-1717.
- 229.
The 32 foot cross stands on a traffic island at a heavily used three way intersection and is said to help ensure traffic safety. The cross is illuminated at night.
- 230.
American Legion v. American Humanist Association No. 17-1717 (Decided 20 June, 2019) Justice Alito Opinion at para 17–18 (United States Supreme Court).
- 231.
American Legion v. American Humanist Association No. 17-1717 (Decided 20 June, 2019) Justice Alito Opinion at para 18 (United States Supreme Court).
- 232.
American Legion v. American Humanist Association No. 17-1717 (Decided 20 June, 2019) Justice Alito Opinion at para 1(United States Supreme Court).
- 233.
American Legion v. American Humanist Association No. 17-1717 (Decided 20 June, 2019) Justice Alito Opinion at para 18 (United States Supreme Court).
- 234.
American Legion v. American Humanist Association No. 17-1717 (Decided 20 June, 2019) Justice Alito Opinion at para 10 (United States Supreme Court).
- 235.
American Legion v. American Humanist Association No. 17-1717 (Decided 20 June, 2019) Justice Alito Opinion at para 10 (United States Supreme Court).
- 236.
American Legion v. American Humanist Association No. 17-1717 (Decided 20 June, 2019) Justice Alito Opinion at para 14 (United States Supreme Court).
- 237.
American Legion v. American Humanist Association No. 17-1717 (Decided 20 June, 2019) Justice Alito Opinion at para 17 (United States Supreme Court).
- 238.
Justice Alito gives the example of the Statute of Liberty (a gift from France) which at first was to symbolize the bond of friendship between France and the United States but has come to symbolize a welcoming of immigrants to America American Legion v. American Humanist Association No. 17-1717 (Decided 20 June, 2019) Justice Alito Opinion at para 26 (United States Supreme Court).
- 239.
American Legion v. American Humanist Association No. 17-1717 (Decided 20 June, 2019) Justice Alito Opinion at para 23–29 (United States Supreme Court).
- 240.
American Legion v. American Humanist Association No. 17-1717 (Decided 20 June, 2019) Justice Alito Opinion at para 23 (United States Supreme Court).
- 241.
American Legion v. American Humanist Association No. 17-1717 (Decided 20 June, 2019) Justice Alito Opinion at para 33 (United States Supreme Court): The First Congress of the United States began its sessions with prayer “This practice was designed to solemnize congressional meetings, unifying those in attendance as they pursued a common goal of good governance.”
- 242.
American Legion v. American Humanist Association No. 17-1717 (Decided 20 June, 2019) Justice Ginsburg Dissenting Opinion (concurrence by Justice Sotomayor) at para 78 (United States Supreme Court).
- 243.
American Legion v. American Humanist Association No. 17-1717 (Decided 20 June, 2019) Justice Ginsburg Dissenting Opinion (concurrence by Justice Sotomayor) at para 65 (United States Supreme Court).
- 244.
American Legion v. American Humanist Association No. 17-1717 (Decided 20 June, 2019) Justice Alito Opinion at para 35 (United States Supreme Court).
- 245.
American Legion v. American Humanist Association No. 17-1717 (Decided 20 June, 2019) (United States Supreme Court).
- 246.
Van Orden v Perry 545 US 677(United States Supreme Court).
- 247.
Van Orden v Perry 545 US 677 syllabus, Justice Rehnquist on behalf of the majority (United States Supreme Court).
- 248.
Van Orden v Perry 545 US 677 syllabus, Justice Rehnquist on behalf of the majority (United States Supreme Court).
- 249.
Van Orden v Perry 545 US 677 syllabus, Justice Rehnquist on behalf of the Majority (United States Supreme Court).
- 250.
Van Orden v Perry 545 US 677 (United States Supreme Court).
- 251.
American Legion v. American Humanist Association No. 17-1717 (Decided 20 June, 2019) (United States Supreme Court).
- 252.
Van Orden v Perry 545 US 677 syllabus, Justice Rehnquist on behalf of the Majority (United States Supreme Court).
- 253.
American Legion v. American Humanist Association No. 17-1717 (Decided 20 June, 2019) Justice Breyer concurring with the majority (United States Supreme Court).
- 254.
American Legion v. American Humanist Association No. 17-1717 (Decided 20 June, 2019) Dissenting Opinion (Justice Ginsburg, joined by Justice Sotomayor) at para 67 (United States Supreme Court).
- 255.
American Legion v. American Humanist Association No. 17-1717 (Decided 20 June, 2019) Dissenting Opinion (Justice Ginsburg, joined by Justice Sotomayor) at para 69 (United States Supreme Court). Note for instance that “At the dedication ceremony, the keynote speaker analogized the sacrifice of the honored soldiers to that of Jesus Christ, calling the Peace Cross “symbolic of Calvary,” …where Jesus was crucified.” (See American Legion v. American Humanist Association No. 17-1717 (Decided 20 June, 2019) Dissenting Opinion (Justice Ginsburg, joined by Justice Sotomayor) at para 77) (United States Supreme Court).
- 256.
American Legion v. American Humanist Association No. 17-1717 (Decided 20 June, 2019) Dissenting Opinion (Justice Ginsburg, joined by Justice Sotomayor) at para 69 (United States Supreme Court).
- 257.
American Legion v. American Humanist Association No. 17-1717 (Decided 20 June, 2019) Dissenting Opinion (Justice Ginsburg, joined by Justice Sotomayor) at para 70–72 (United States Supreme Court).
- 258.
Stone versus Graham 449 US 39 (1980) (United States Supreme Court) syllabus https://supreme.justia.com/cases/federal/us/449/39/#tab-opinion-1953776.
- 259.
Stone versus Graham 449 US 39 (1980) (United States Supreme Court) syllabus https://supreme.justia.com/cases/federal/us/449/39/#tab-opinion-1953776.
- 260.
American Legion v. American Humanist Association No. 17-1717 (Decided 20 June, 2019) at para 46 (Justice Kavanaugh Concurring Opinion with the Majority) (United States Supreme Court).
- 261.
American Legion v. American Humanist Association No. 17-1717 (Decided 20 June, 2019) (Justice Alito majority opinion) (United States Supreme Court).
- 262.
The defendants were each fined five dollars and sought to quash their convictions on constitutional First Amendment grounds.
- 263.
Wisconsin v Yoder 406 U.S. 205 (1972) (United States Supreme Court) https://supreme.justia.com/cases/federal/us/406/205/#tab-opinion-1949690.
- 264.
Wisconsin v Yoder 406 U.S. 205 (1972) syllabus (United States Supreme Court) https://supreme.justia.com/cases/federal/us/406/205/#tab-opinion-1949690.
- 265.
Wisconsin v Yoder 406 U.S. 205 (1972) (United States Supreme Court).
- 266.
Wisconsin v Yoder 406 U.S. 205 (1972) (United States Supreme Court).
- 267.
Wisconsin v Yoder 406 U.S. 205 (1972) syllabus (United States Supreme Court).
- 268.
Kmiec (2004), pp. 1442–1477.
- 269.
Here the religious belief of adults in the Amish communities involved that state mandated compulsory public school to age 16 offended their religious beliefs and requirements.
- 270.
Some Amish have over the years branched into areas other than farming such as selling Amish handicrafts and baked goods The Amish, Encyclopedia Britannica https://www.britannica.com/topic/Amish.
- 271.
Wisconsin v Yoder 406 U.S. 205 (1972) p. 212 (United States Supreme Court).
- 272.
Wisconsin v Yoder 406 U.S. 205 (1972) pp. 211–212 (United States Supreme Court).
- 273.
The Amish (BBC online, 2009-06-23) https://www.bbc.co.uk/religion/religions/christianity/subdivisions/amish_1.shtml.
- 274.
Wisconsin v. Yoder, 406 U. S. 205 (1972) (United States Supreme Court).
- 275.
The Amish in the United States have their own schools that focus on a curriculum of reading writing mathematics and religion. The teachers are generally young women from the community who have no training as teachers. The students generally od work on the farm before and after school See The Amish (BBC online, 2009-06-23) https://www.bbc.co.uk/religion/religions/christianity/subdivisions/amish_1.shtml.
- 276.
Such challenges for young people attempting to leave the Amish community have been documented for instance in series such as Breaking Amish. In certain instances young people who have left the community have been shunned by their families and the community but such is not by any means always the case.
- 277.
The Amish allow their children at age 16 to live outside the community if they wish and decide if they wish to become permanent members of the Amish Community. Ninety percent return to the Amish community with the intent at least to become permanent members and live their lives fully as Amish in a communal setting See The Amish (BBC online, 2009-06-23) https://www.bbc.co.uk/religion/religions/christianity/subdivisions/amish_1.shtml.
- 278.
The Amish (BBC online, 2009-06-23) https://www.bbc.co.uk/religion/religions/christianity/subdivisions/amish_1.shtml.
- 279.
Wisconsin v. Yoder, 406 U. S. 205 (1972) (United States Supreme Court).
- 280.
Convention on the Rights of the Child entered into force 7 September, 1990 https://www.humanium.org/en/convention/text/.
- 281.
UNESCO (The right to education global initiative) 2019 The right to education https://www.right-to-education.org/sites/right-to-education.org/files/resource-attachments/RTE%3AUNESCO_Right%20to%20education%20handbook_2019_En.pdf.
- 282.
Wisconsin v Yoder 406 U.S. 205 (1972) syllabus (United States Supreme Court).
- 283.
Wisconsin v Yoder 406 U.S. 205 (1972) syllabus(United States Supreme Court).
- 284.
Wisconsin v Yoder 406 U.S. 205 (1972) (United States Supreme Court).
- 285.
One child had testified that she was opposed to high school education on religious grounds but the children of the other two defendants (defendants convicted of infringing the law requiring they send their children to public school until age 16) had not expressed their views to the Court and their views had not been canvassed by the Court. Thus Justice Douglas concurred with the Majority in the one case on exempting the parent from prosecution for not sending his child to school until age 16 but not in the case of the other two parents whose children had not testified as to their views regarding high school education. He held further that: “The views of the two children in question were not canvassed by the Wisconsin courts. The matter should be explicitly reserved so that new hearings can be held on remand of the case. “See Wisconsin v Yoder 406 U.S. 205 (1972) Justice Douglas Partial Dissent (United States Supreme Court).
- 286.
Wisconsin v Yoder 406 U.S. 205 (1972) Justice Douglas Partial Dissent (United States Supreme Court).
- 287.
Justice Douglas held that the children in Yoder aged fourteen and fifteen were mature enough to express their actual opinions to the Court regarding the desirability or lack thereof, in their view, of their attending public high school. (This likely was the case for most Amish children of age 14 and older given what developmental psychology reveals of adolescent cognitive abilities). Problematic, it would seem, is the likelihood that the children, having grown up in a sheltered Amish community all their lives, and knowing the strict position of their parents and the Amish religious community on the issue, may not typically have felt free to express their honest views to the Court on the education issue and their genuine hopes and dreams for their future were opportunities fully available to them in each case to communicate this to the Court.
- 288.
Wisconsin v Yoder 406 U.S. 205 (1972) (United States Supreme Court).
- 289.
Wisconsin v Yoder 406 U.S. 205 (1972) Justice Douglas Partial Dissent (United States Supreme Court).
- 290.
Wisconsin v Yoder 406 U.S. 205 (1972) Justice Douglas Partial Dissent (United States Supreme Court).
- 291.
Wisconsin v Yoder 406 U.S. 205 (1972) Justice Douglas Partial Dissent (United States Supreme Court).
- 292.
Wisconsin v Yoder 406 U.S. 205 (1972) Majority Opinion Syllabus (United States Supreme Court). Note that Justice White’s opinion, consistent with the Majority, focused on the survival of the Amish community to the exclusion of consideration of the children’s autonomous constitutional liberty and freedom of religion interests. Justice White states in this regard: “I join the opinion and judgment of the Court because I cannot say that the State’s interest in requiring two more years of compulsory education in the ninth and tenth grades outweighs the importance of the concededly sincere Amish religious practice to the survival of that sect.” Wisconsin v Yoder Justice White Opinion (concurrence by Justices Brennan and Stewart) (United States Supreme Court).
- 293.
Justice Douglas, referencing evidence presented in the Court below and a Dissenting Opinion in the Court below, pointed out that the Amish community was often unrealistically portrayed as leading a completely “idyllic agrarian” life when in fact it was not immune to some extent to serious social problems anymore than are other communities Wisconsin v Yoder 406 U.S. 205 (1972) Justice Douglas Partial Dissent (United States Supreme Court).
- 294.
Wisconsin v Yoder 406 U.S. 205 (1972) Justice Douglas Partial Dissent (United States Supreme Court).
- 295.
Wisconsin v Yoder 406 U.S. 205 (1972) Justice Douglas Partial Dissent (United States Supreme Court).
- 296.
U.S. Declaration of Independence http://www.ushistory.org/declaration/document/.
- 297.
Justice Douglas in his Partial Dissent in Yoder expressed concern that the Amish children in the case had no way to vindicate their rights but through the courts in the litigation at hand but that the Court majority was improperly exclusively focused on parental religious liberty rights in the case and the parent’s strength of religious conviction as overriding factors Wisconsin v Yoder 406 U.S. 205 (1972) Justice Douglas Partial Dissent (United States Supreme Court).
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Grover, S.C. (2020). The Supreme Court of the United States and Judicial Activism in the Trump Era. In: Judicial Activism and the Democratic Rule of Law. Springer, Cham. https://doi.org/10.1007/978-3-030-35085-7_2
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