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A Star Chamber? Is the 14th Amendment Next?

Photo from supremecourt.gov, modified for LEVICK blog

“…it’s not right to say ‘Roe is on the ballot’ in November. The 21st century is on the ballot.”
– Jennifer Rubin, Opinion Columnist for The Washington Post

“I would honestly be lying if I said I weren’t afraid that it could all go away.”
– Jim Obergefell, lead plaintiff in Obergefell v. Hodges, the landmark ruling on same-sex marriage

What makes great societies and religions so strikingly powerful is the slowness with which they change. We may not agree with everything they stand for but we know they are built upon a foundation of beliefs and principles. Solid stone. They do occasionally metamorphosize but usually stop short of revolution and give us time to catch our collective breath.

As Beth Nielsen Chapman sang so passionately in her song Sand and Water, “Solid stone is just sand and water, baby; Sand and water, and a million years gone by.” We may not all be constitutional lawyers or theologians, but we know the ground we stand on is solid stone.

Until last week.

In three rulings on consecutive days the conservative majority of the U.S. Supreme Court has replaced the tests for weighing constitutional violations for guns, abortion and religion with a new “text and history” test, which to me reads as “outcome determinative.” A sort of William Randolph Hearst approach. “You furnish the pictures. I’ll furnish the war.” Give me the result and I will find you the history.

Corporations regularly ask us to predict the future and help them navigate the rocky shoals of conscious capitalism. While full deference to Milton Freedman’s doctrine that “the social responsibility of business is to increase profits” is no longer possible for all corporations all the time, it still provided a solid foundation. Now what? Health care policies are now fully politicized. Guns may become a part of office fashion and the office itself may become a sanctuary.

What are corporations to do about adherence to the rule of law when confidence in the Court has plummeted to an historic low of 25%? Three out of four Americans no longer have confidence in the Supreme Court of the United States of America. Democracy is a voluntary activity and many people act out what they feel. How long before respect for company rules are harder to enforce?

I am not optimistic that the right to privacy survives the “text and history” test. The “right to privacy” is not written in the U.S. Constitution and does not make an appearance until 1928 in Justice Louis Brandeis’ dissent in the wiretapping case Olmstead v U.S. What will tech companies do when law enforcement demands data about women suspected of getting abortions in states where it is illegal? Amazon purchase data and Google search queries? Period-tracking apps?

As the National Lampoon cover satirized in 1972, “Is nothing sacred?”

Don’t catch your breath just yet. This week the Court will likely rule on the administrative state—West Virginia v. the Environmental Protection Agency—which could reverse the near-40-year deference to the Chevron Doctrine and require administrative agencies to operate only from detailed directions from Congress—not as much of a concern but for the intractable congress of the past 30 years. The Court is also entertaining reviewing the “Independent State Legislature Doctrine” that state legislatures could reverse the popular vote in their state for president.

Earlier this year on the daily podcast I host for the Corporate Counsel Business Journal I was honored to have on two First Amendment icons, Floyd Abrams and Chip Babcock. At the end of the show they expressed their mild confidence that Chief Justice Roberts would not let the Court overturn the landmark case New York Times v. Sullivan where the 1964 Court ruled that the freedom of speech protections in the First Amendment restricted the ability of American public officials to sue for defamation. It was designed to protect journalists and activists during the Civil Rights movement a half century ago. I was reassured though not confident then. I am less so now. After all, if Dobbs v Jackson Women’s Health is clear about anything, Chief Justice Roberts is Chief in name only. It’s Sam Alito and Clarence Thomas’ Court now. And, as if on cue, as I am writing this, Justice Thomas just suggested he would like the court to revisit New York Times v. Sullivan.

To provide a more balanced view of this watershed Supreme Court term, I interviewed Nicholas Nelson, Counsel at Faegre Drinker who is an experienced litigator in the U.S. Supreme Court and appellate courts nationwide and who has filed briefs in over 20 U.S. Supreme Court cases. He provides an exceptional analysis on the In House Warrior podcast and is more in a wait and see mode about the direction of the Court. His point that for decades we enjoyed a Court that was more evenly balanced ideologically and had a swing justice—Sandra Day O’Connor, Anthony Kennedy, John Roberts—and as a result gave everyone at least half a loaf at the end of the term is an excellent point.

Still, I am on edge. Despite Justice Alito’s majority opinion that Dobbs is limited to abortion, Justice Clarence Thomas’ concurring opinion takes direct aim at same sex marriage, LGBTQ rights and access to contraceptives. But he did not stop there. Substantive due process—the doctrine which allows courts to establish and protect certain fundamental rights from government interference, even if the rights are not enumerated elsewhere in the U.S. Constitution—is specifically on the list.

Once you take away substantive due process, is the 14th Amendment—“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”— next?

States’ rights is an argument rooted in the Founders, their first experiment with democracy with the short-lived Articles of Confederation, the Civil War and the Civil Rights movement, among others. It is a powerful argument and one worthy of great consideration.

But states are not inherently more democratic than the rights of the majority at the federal level. It feels a lot like venue shopping when you raise the states right argument after you know you will lose at the federal level.

This argument—then known as “popular sovereignty”—was at the root of the Lincoln-Douglas debates in 1858. At the time, advocates insisted that the people who lived in a territory had the right to decide for themselves whether or not to permit enslavement, not the federal government. In his debates with then-Illinois lawyer Abraham Lincoln, United States Senator Stephen Douglas insisted that popular sovereignty “was the true meaning of democracy.”

It was this movement which inspired Abraham Lincoln to give his famous “A house divided against itself cannot stand” speech in June of that year, shortly before the two-month series of debates with Douglas. How long can our divided house stand today?

As the dissenting opinion in Dobbs—written by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan—articulated, “never before had the court rescinded an individual right and left it up to the states whether to respect what had once been anchored in the Constitution.” This may be the first time the Court has taken away individual liberties in 245 years, but it will not be the last.

The Court has created chaos and corporations will find this time no easier to navigate than each of us.

Sand and Water

By Beth Nielsen Chapman

All alone, I didn’t like the feeling
All alone, I sat and cried
All alone, I had to find some meaning
In the center of the pain I felt inside

All alone, I came into the world
All alone, I will someday die
Solid stone is just sand and water, baby
Sand and water, and a million years gone by

I will see you in the light of a thousand suns
I will hear you in the sound of the waves
I will know you when I come, as we all will come,
Through the doors, beyond the grave

All alone, I heal this heart of sorrow
All alone, I raise this child
Flesh and bone, he’s just
Bursting towards tomorrow
And his laughter fills my world, and wears your smile

All alone, I came into the world
All alone, I will someday die
Solid stone is just sand and water, baby
Sand and water, and a million years gone by

Richard Levick

This week’s In House Warrior podcasts for the Corporate Counsel Business Journal

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Listen to How Woke Are Millennials and Gen Zs? Not So Much.

Listen to A Litigator’s Mindset

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