The Supreme Court’s decision overturning Roe v. Wade has resulted in the steepest drop in respect for the U.S. Supreme Court in almost a century – the steepest since the Roosevelt court packing crisis of 1937.

James L. Gibson, a political science professor at Washington University and national expert on the subject, wrote in September that the Dobbs v. Jackson decision overturning Roe “may be the most legitimacy threatening decision since the 1930s…Dobbs produced a sizable dent in institutional support, perhaps an unprecedented dent, in part because abortion attitudes for many are infused with moral content.”

Gibson added, “in light of the substantial tilt of the court to the right since 2020, the court’s legitimacy may be at greater risk today than at any time since FDR’s attack on the institution in the 1930s.”

A Gallup poll shows that after Dobbs disapproval of the court rose to the highest point this century – 58 percent – and approval sank to the lowest – 40 percent.

If the five conservative justices in the Dobbs majority hold together to overturn other long-standing precedents, then the court will tip sharply to the right and could continue on that path for years. The current term’s affirmative action cases involving college admissions at Harvard and the University of North Carolina, are  likely to end affirmative action and deepen the impression that the court has taken a sharp right turn. The court’s six most conservative justices also are more willing to allow religion in the public square than the courts of the past half century.

Gregory Magarian, a First Amendment scholar at Washington University Law School and former Supreme Court clerk, says today could be the conservative political counterpoint to 1954 when Brown v. Board heralded the beginning of the Warren Court and its expansion of civil rights, civil liberties and criminal rights.

One difference, Magarian says, is that the agenda of the current five-justice majority is less popular than the Warren Court’s, despite the “Impeach Earl Warren” signs that dotted highways in the 1950s and 60s. The reaction to the Dobbs decision, expressed by voters in the November 2022 midterm elections, appears to confirm the view that Dobbs is unpopular nationwide.

One major substantive difference between the Warren Court and Dobbs majority is that the Warren Court was expanding the rights of Blacks and women to fulfill promises of Equal Protection in the Constitution. But Dobbs was a major step in the opposite direction, requiring women in many states prove their lives were at risk before they could receive an abortion. 

This was the biggest loss of liberty and equal rights in almost a century of steadily growing individual liberties.

If the court’s conservative bloc holds together, the combination of a powerful Supreme Court and a hard to amend Constitution could mean the Constitution we celebrate in 2037 will be substantially different from what it was before former President Trump’s justices tipped the scales of justice.

Other problems of legitimacy

About 85 percent of Americans favor abortion rights under all or some circumstances, according to a Gallup poll. But there are additional reasons for the court’s legitimacy problem. 

One is the lack of respect for stare decisis, precedent. The Dobbs majority jettisoned a precedent of almost 50 years that had been reaffirmed 30 years ago. Respect for precedent is central to legitimacy because it provides a check on the justices simply voting their personal or political preferences.

Roberts seemed almost to be pleading with his conservative colleagues when he wrote in Dobbs: “Surely we should adhere closely to principles of judicial restraint here, where the broader path the court chooses entails repudiating a constitutional right we have not only previously recognized, but also expressly reaffirmed applying the doctrine of stare decisis.”

The Dobbs dissenters said: “The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them. The majority thereby substitutes a rule by judges for the rule of law.”

In addition, President Trump’s three judicial appointments – Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett – had appeared to affirm Roe during confirmation hearings, never suggesting they were ready to overturn it.

Also, the Dobbs decision followed more than 40 years of Republican presidents from Ronald Reagan to George H.W. Bush, to George W. Bush to Donald Trump nominating justices they hoped would overturn Roe. Those Republican presidents were able to name 11 justices, while Democratic presidents elevated five. Six of the nine justices on the current court were appointed by Republicans even though Democrats held the presidency for 16 of the past 28 years and won the popular vote in six of the last seven presidential elections.  

In addition, the Senate rushed Barrett through confirmation hearings immediately before the 2020 election even though Senate Majority Leader Mitch McConnell had refused to hold a confirmation hearing for Merrick Garland under similar circumstances four years earlier.

Altogether, this gave the appearance that Trump and McConnell had packed the court through hardball politics and counter to constitutional norms.

Plus, it appeared the court majority had weakened democratic means for changing the direction of the court any time soon. The Roberts Court found key parts of the Voting Rights Act unconstitutional, refused to block partisan gerrymanders that had helped Republicans control state legislatures and congressional reapportionment and finally had allowed Republicans to impose new restrictions after the 2020 election that limited voters in the name of election integrity. Democratic efforts to nationalize voting requirements have run into the counter-majoritarian, and extra-constitutional constraint of the filibuster.

An additional blow to legitimacy has been Justice Clarence Thomas’ refusal to recuse himself from cases involving the 2020 presidential election, even though his wife, Ginni, was deeply involved with the Trump White House in election denials.

Legal ethics experts say Thomas should recuse himself from cases involving the Jan. 6 insurrection at the Capitol. But Thomas did not recuse himself recently when the court refused to block the House Jan. 6 committee’s subpoena for phone records of Kelli Ward, chairwoman of the Arizona Republic Party. Thomas dissented from the court’s action without comment. So, he was taking the side of the election deniers and his wife.

The leak of the Dobbs draft opinion last spring was an unprecedented breach of court protocol and reflected deep divisions within the institution, undermining court legitimacy. The failure of the court’s investigation to uncover the leaker and the investigation’s tender handling of interviews with the justices has not helped and probably has hurt the court’s reputation. Critics said the court’s investigation should have subjected the justices to the same probing questioning as other court employees and pressed the justices to sign an affidavit of noninvolvement like other court employees.

In addition, last fall, The New York Times disclosed that a former abortion foe had orchestrated social contacts between wealthy abortion foes and Justices Alito and Thomas. That news unsettled the court because the man claimed Alito had leaked the outcome of a 2014 abortion-related decision at a dinner with anti-abortion fundraisers – a charge Alito denied.

Earlier in December, 2022, the House Judiciary Committee took up these matters in a hearing on a bill that would require the Supreme Court to adopt an ethical code or adhere to the code that already applies to lower level federal judges. The Government Accountability Project and a host of other liberal groups called for passage of the bill, the Supreme Court Ethics, Recusal and Transparency Act of 2022.

Ironically, former President Trump himself doesn’t think the Supreme Court has legitimacy. After the court turned down his attempt to keep his income taxes shielded, Trump wrote on Truth Social, 

“Why would anybody be surprised that the Supreme Court has ruled against me, they always do! It is unprecedented to be handing over Tax Returns, & it creates [a] terrible precedent for future Presidents. The Supreme Court has lost its honor, prestige, and standing, & has become nothing more than a political body, with our Country paying the price. They refused to even look at the Election Hoax of 2020. Shame on them!” 

Trump followed up that post in early December calling for termination of rules in the Constitution so he can be “declare(d) the RIGHTFUL WINNER” or “have a NEW ELECTION.” He wrote: “A Massive Fraud of this type and magnitude allows for the termination of all rules, regulations, and articles, even those found in the Constitution. Our great ‘Founders’ did not want, and would not condone, False & Fraudulent Elections!”

The title on a conlaw professor’s blog on Trump’s post was tongue in cheek: “Trump Stands in the Middle of Fifth Avenue and Shoots the Constitution.” 

The legitimacy of the Supreme Court can only suffer when the former president, who has appointed one-third of the court’s justices, charges that the court has lost its honor and that the Constitution should be set aside to reinstate him to power. Trump maintained a day after the post that he was misunderstood.

Kavanaugh, the new middle?

The right turn that the court is taking might not end up as sharp as it now seems.

 The five-justice majority that overturned Roe may not be as doctrinaire and closely knit as has been portrayed in the media and political arena.

Justice Kavanaugh signed on to Justice Alito’s majority opinion in Dobbs, but wrote a separate concurring opinion that suggested limitations. For one thing, he said Dobbs would not open the way for states that barred abortion to also criminalize a woman going out of state to get an abortion.

As he put it: “May a State bar a resident of that State from traveling to another State to obtain an abortion? In my view, the answer is no based on the constitutional right to interstate travel.” (Skeptics note, however, that the Constitution is no more explicit in protecting a right to travel than it was protecting a right to abortion.)

Kavanaugh also emphasized that Dobbs did not jeopardize other decisions based on personal privacy – interracial marriage, access to birth control or same-sex marriage.

Kavanaugh wrote, “Overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents.” That assurance contradicted Justice Thomas, who called on the court to reconsider its decisions upholding contraception and same-sex relations in future cases.

The reason that Kavanaugh’s view is important is that he could be a fifth justice, along with the chief justice and the three justices appointed by Democrats to limit the court’s movement to the right.

Chief Justice Roberts will certainly try to lure Kavanaugh to the middle as he apparently failed to do in Dobbs. Roberts would have discarded Roe’s trimester formula but preserved an abortion right for a shorter period of several months to give women time to make a decision.

The legitimacy of the Supreme Court has long been Roberts’ most important goal. Roberts is 67. The Roberts Court could last 20 or more years, even past the 250th anniversary of the Constitution. Roberts has demonstrated repeatedly, including in his decisive vote upholding Obamacare, that legitimacy is more important to him than ideology. 

Lee Epstein, the former Ethan A. H. Shepley Professor and Distinguished Professor at Washington University, is the nation’s leading expert on Supreme Court voting patterns. She says that last term’s marquee decisions overturning Roe and protecting the right of people to have guns outside the home, were predictable. But she adds that Kavanaugh, the new middle of the court, is unpredictable.

In a Slate interview this fall she put it this way: “It’s hard to believe that people didn’t see this (Dobbs) coming. Obama is president for eight years; he gets two appointments. Trump is president for four years; he gets three appointments, and he moves the center of the court toward Brett Kavanaugh, away from the chief justice. So, yeah, I told you so. There’s a lot of predictability here, and abortion and guns—not at all surprising.”

But she adds, “there’s another side to this story, and that’s from the data side. If you look at the data from last term, this doesn’t look like a really socially, culturally extreme court. And that’s what’s a little perplexing about last term …right now, there’s a side to this court that looks, kind of, standard issue Roberts Court.”

There was above average unanimity, with 50 percent of the decisions unanimous compared to the average of 33 percent in recent decades. And there weren’t a lot of 6-3 conservative-liberal splits. Just 15 percent of the decisions came out that way.

In the cases that got the most attention, last term’s decisions didn’t look much different than previous terms, she says. “Look at the 2020 election challenges. Look at the Trump tax records, Obamacare, the cheerleader case…NCAA, the student athlete case…. This was not a total blowout for the Democratic side, which to me was a little unexpected…So, I’m going to push back a little bit on that point, the term looks different; actually it doesn’t look that much different.”

The mystery is Kavanaugh. “If you look at the data, he’s normally, not always, but normally with the chief and why he didn’t join the chief here (in Dobbs) is perplexing to me.”

It’s as if there were two courts operating at the same time. A Trump Court where the three Trump appointees join Alito and Thomas as they did in Dobbs. And then there’s a Roberts court where Kavanaugh comes along with the chief justice and joins the Democratic appointees in a more moderate decision.

A signal of whether a Roberts/Kavanaugh middle bloc will check the more conservative justices could be the decision in Moore v. Harper, the “independent state legislature” case that was argued before the Supreme Court for three hours on Dec. 7. The case will determine how far state courts can go in overturning state legislatures on election rules. 

The Republican controlled state legislature in North Carolina drew a congressional redistricting proposal that could have resulted in Republicans controlling 10 of 14 U.S. House seats in a state roughly equally divided between the parties. The state supreme court said this was a blatant partisan gerrymander and experts drew a new map that resulted in a 7-7 split in the 2022 Midterm elections.

The state legislature argues that the state supreme court could not interfere in its redistricting plan because the Constitution says, “Times, Places and Manner” of congressional elections “shall be prescribed in each State by the Legislature thereof.” Common Cause and the Justice Department countered that past Supreme Court precedents have always recognized that legislative redistricting must comply with state constitutions and the state supreme court enforces those constitutions.

Rick Hasen, the nation’s leading expert on election law, blogged the oral argument Dec. 7 in which it appeared the court was divided into thirds. The three most conservative justices – Thomas, Alito and Gorsuch – are ready to adopt the independent state legislature theory and cut out state supreme courts. The three Democratically appointed justices – Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson – oppose it. Chief Justice Roberts and Justices Kavanaugh and Barrett looked for a compromise that would allow state supreme court involvement unless its decision was extraordinary.

If a conservative center blocks the conservative right’s attempt to adopt the independent state legislature theory, then the court may appear more moderate.

A vibrant democratic response to Dobbs

One of the main criticisms of Roe from the time it was decided in 1973 was that it took the issue of abortion out of the democratic process at a time when a growing number of states were recognizing abortion rights. From 1967-73, four states repealed abortion bans and 13 others expanded abortion access in situations where a mother’s life or health was at risk or in cases of rape and incest.

The late Justice Ruth Bader Ginsburg favored abortion rights but criticized Roe because “it seemed to have stopped the momentum on the side of change.” 

Because abortion rights advocates could always fall back on the courts and the constitutional right recognized in Roe, they didn’t have to work as hard in the political arena. Meanwhile, Republican opponents of abortion rights built a powerful voting bloc that led to Republican presidents naming conservative, anti-abortion judges to the federal courts.

Justice Kavanaugh, in his opinion in Dobbs, said the decision “restores the people’s authority to resolve the issue of abortion through the processes of democratic self-government established by the Constitution.”

In the weeks after Dobbs, 12 states put abortion bans into place.

But arguably, the strength of the abortion-rights vote in the 2022 midterm election in helping Democratic candidates and passing abortion rights referenda illustrates that Dobbs revitalized the abortion rights supporters in the democratic process.

In five states, abortion was on the ballot – Kentucky, Michigan, California, Vermont, and Montana. In all five, voters supported protecting abortion access. In three, California, Michigan and Vermont, they voted to put abortion rights in the state constitutions.

Dobbs may have unlocked the vibrancy of the democratic process in regards to abortion with the result that more states voted to protect these rights in the 2022 elections. Congressional passage in December of a law protecting same-sex and interracial marriage is another sign of the Dobbs backlash in the democratic process. The legislation was fueled by reaction to Justice Thomas’ Dobbs concurrence calling for the court to reconsider other cases built on privacy, including same-sex marriage and contraception, although he didn’t mention interracial marriage, also partly based on privacy.

Winning in the democratic arena in some states doesn’t help those in states where abortion remains illegal. A majority of states ban or restrict abortion now, whereas  abortion was available as a constitutional right in all states before Dobbs. Supporters say a woman’s right to control her body should not be subject to a vote at the ballot box and for that reason is properly a constitutional right protected by liberty in the 14th Amendment.

 Previous crises of legitimacy

The Supreme Court has had crises of legitimacy before. The crises have resulted from one of four situations:

 –Packing the court: A meddling Congress or president or both have repeatedly changed the number of justices on the court to try to affect decisions.

– Deciding a close presidential election: The court has twice become entwined in determining the results of a close presidential election, as it did in 1876 and 2000, taking actions that seemed to critics to be more political than principled.

– Infamous decisions: Some of the most infamous court decisions in history have inflicted long-term damage to the court’s reputation. The 1857 Dred Scott decision denying Blacks constitutional rights led to the Civil War. Another was Lochner v. New York in 1905 during the Gilded Age of capitalist excess. The court elevated the right of contract over a law setting a 10-hour workday for bakers.

– Forceful presidents: Some of the most influential presidents in history – Jefferson, Jackson, Lincoln and Franklin D. Roosevelt – maintained that they could independently interpret the Constitution and were not bound by a contrary Supreme Court interpretation. As FDR put it, the Constitution is a “layman’s document, not a lawyer’s contract.”

After President John Adams lost the 1800 election to Thomas Jefferson, Adams’ Federalist Party tried to add new federal judges to be appointed by Adams as a lame duck – the so-called Midnight Justices. It also reduced the size of the Supreme Court from 6 to 5 to deny Jefferson a court appointment. 

Jefferson’s party promptly reversed direction on the size of the court and in 1807 bumped the court up to seven to give Jefferson another appointment. Plus, the appointment of the Midnight Justices backfired because it led to the famous Marbury v. Madison decision establishing the Supreme Court as the arbiter of what the law is.

Jefferson and Jackson, two powerful Democratic presidents, quarreled with the Chief Justice John Marshall, the great Federalist chief who authored Marbury and other key decisions establishing federal actions, including the constitutionality of the Bank of the United States.

Both Jefferson and Jackson thought the president and democratic majorities in Congress and state legislatures should take precedence over constitutional decisions of the court. Jefferson’s views on state power led to the dangerous Nullification doctrine that eventually led to Southern secession and Civil War.

Congress gave Jackson two additional justices to increase the court to nine. Jackson appointed them and Congress confirmed them as the president was going out the door of the White House.

Lincoln gained prominence by attacking Chief Justice Roger Taney’s Dred Scott decision, which had read Blacks out of the Constitution. The Lincoln-Douglas debates were all about the Dred Scott decision. Two years later, Lincoln was president and the Civil War had started before he made it to Washington.

Lincoln, as president, ignored Taney’s decisions during the Civil War that would have required the president to abide by habeas corpus – the power of the court to free a prisoner. Also, Lincoln issued the Emancipation Proclamation on Jan. 1, 1863 even though most legal experts think he didn’t have constitutional authority to do it on his own. He wasn’t so sure himself.

Congress added a 10th vote for Lincoln to increase Republican control of the court, but after Lincoln’s assassination the Republican Congress reduced the court to seven so that President Andrew Johnson could not appoint Southern sympathizers  who would block their Reconstruction laws intended to give political rights to freed Blacks.

Congress increased the number of justices to nine giving President Grant two new appointments in 1869 – an action that led directly to overturning a Supreme Court decision denying the government the authority to issue paper money – greenbacks. The two new justices turned a 4-3 decision against greenbacks into a 5-4 majority authorizing them to pay off Civil War debt.

In the election of 1876, Supreme Court justices were deciding votes in a compromise that elected Rutherford B. Hayes – the loser in the popular vote. As part of the compromise, Hayes agreed to withdraw federal troops from the South. That allowed segregationists to disenfranchise Black voters for decades into the 20th century.

For the next half century or more, the Supreme Court was no friend of Blacks, women or workers. At the same time that the court was blocking attempts to use Reconstruction amendments and legislation for the purpose they were intended – extending rights to free Blacks – the court found a way to use those amendments to benefit the economic prospects of the industrialists of the Gilded Age.

In Lochner v. New York, 1905, the court held that the 14th Amendment passed after the Civil War protected contract rights for the benefit of employers. Lochner came to stand for this entire era of Supreme Court decisions striking down minimum wage and maximum hour laws. In Lochner, the court ruled that New York’s law setting a maximum 60 hour work week for baker’s was unconstitutional. 

Key elements of President Franklin D. Roosevelt’s New Deal were struck down by the Supreme Court at a time of national emergency during the Depression – laws such as the Agricultural Adjustment Act and National Recovery Act. The court ruled that FDR and Congress violated the freedom to contract by regulating business and labor.

When FDR won by a landslide in 1936, winning all but two states and electing a heavily Democratic Congress, he sought to pack the court. He said the elderly court, where the average age was 71, was suffering from a judicial “hardening of the arteries.” He wanted Congress to allow him to appoint six new justices, one for each justice over 70.

Chief Justice Charles Evans Hughes opposed the plan but soon he and Justice Owen Roberts began approving New Deal laws, including the Social Security Act and the National Labor Relations Act. The flip flop was dubbed the “switch in time that saved nine.” FDR still pushed for his justices but lost a Senate vote after the chief sponsor died after a hot July debate on the Senate floor.

The verdict of history was so final that no president has since proposed packing the court by adding multiple justices.

Today’s crisis of legitimacy is the most severe since the court’s challenge to the New Deal and FDR’s failed court-packing.

The Biden commission finds no solutions

Liberal and progressive forces, in anticipation and then reaction to Dobbs, have proposed ways to undo the Trump/McConnell court packing, which they say violated accepted constitutional norms. President Joseph Biden appointed a commission that reviewed alternatives and did not make a final recommendation in a report issued a year ago.

Law school critiques have called upon progressives to give up their long-held reliance on the Supreme Court to protect rights from abusive majorities.

Brad Snyder, a professor at Georgetown University Law Center, argued in Politico that the Warren Court had misinterpreted Marbury v. Madison and seized unconstitutional powers in enforcing civil rights decisions. He would seize the tools of conservative legislators from the Warren era to bar the court from hearing appeals on abortion, affirmative action, campaign finance, gun rights and voting rights. 

“It is not too late to put the genie of judicial supremacy back in the bottle and to return policymaking and constitutional enforcement where it belongs – with the American people and their elected representatives,” he wrote.

Samuel Moyn, a professor of history and law at Yale, agreed, arguing that, “the fact that the Supreme Court has seldom protected important rights flies in the face of the court’s self-image and contradicts a romanticized view of the institution that arose during the mid-20th century” due to Brown and Roe. Moyn too thinks Congress should use jurisdiction stripping legislation.

In an essay with Ryan D. Doerfler of Harvard, Moyn goes on to argue that the Constitution is “broken.” It should be made more “amendable,” the nation should be “packed” with more states and the role of the Senate should, as a co-equal branch, be altered. All tall orders. The professors admit that in trying to fix the broken Constitution, Congress would be “pretty much openly defying the Constitution.” For that reason, it would have to prevent the court from reviewing its fixes.

Jennifer Rubin, an influential columnist for the Washington Post, recently called for term limits on justices or adding new justices. At least, she said, there should be ethics reform, she wrote.

Congress clearly has the power to increase or decrease the number of justices on the court and to alter the court’s appellate jurisdiction. One of the proposals considered by the Biden commission would expand the court to 13 as a response to Republicans breaking with constitutional norms in their refusal to consider Garland and then quickly confirming Barrett under similar circumstances.

But history’s verdict on FDR’s court packing effort provides a roadblock to this proposal. Packing the court to bring about more favorable results, itself, undermines the court’s legitimacy and its role as a check on other branches of government and to abusive majorities.

As the Biden commission put it in a quote that Rubin left out of her column of support: “For opponents of Court packing, the historical condemnation of the 1937 Court packing plan illustrates what they regard as a fundamental principle of American constitutional government…the 1937 reform has long been regarded as one of the most disgraceful assaults on the Supreme Court in American history.”

Another proposal considered by the Biden commission was term limits for justices. But those ideas run into the language of the Constitution which states justices shall “hold their offices good behavior” – in other words for life unless they do something impeachable.

Other proposals considered by the commission included reducing the power of the Supreme Court by stripping some jurisdiction. The Constitution expressly permits Congress to determine the appellate jurisdiction of the Supreme Court – in other words, the appeals that it can hear.

Limiting the appellate jurisdiction of the Supreme Court has more often been a tool of conservatives than liberals. 

In 1996, the Antiterrorism and Effective Death Penalty Act (AEDPA) withdrew the Supreme Court’s appellate jurisdiction to review decisions by the federal courts of appeals in death penality cases.

The Detainee Treatment Act of 2005 tried to strip all federal courts of jurisdiction to consider habeas corpus petitions from noncitizens detained as enemy combatants in the war on terrorism. But the Supreme Court ruled that law violated the Constitution’s provisions that limit the suspension of habeas corpus to cases of rebellion or invasion. 

The Warren Court’s decisions integrating public schools and ending mandatory state prayer in public schools led to a plethora of proposed constitutional amendments to take power away from the Supreme Court and turn it over to Congress or the states. 

“Impeach Earl Warren” billboards were erected around the country by the right-wing John Birch Society.

The Supreme Court responded emphatically to the attack on its authority in the Cooper v. Aaron decision of 1958 requiring Arkansas officials to abide by the law after the Little Rock 9 disturbances. The court cited the Constitution’s Supremacy Clause and Marbury v. Madison establishing the court “as ultimate interpreter of the Constitution.”

By the beginning of the Reagan administration, dozens of bills had been introduced to strip the courts of jurisdiction over busing, school prayer and abortion.

Biden’s commission commented: “​​As this historical overview demonstrates, debates about the proper role of the Supreme Court are as old as the Constitution.”

It’s even older, given Alexander Hamilton’s observation in Federalist 78 that “nothing can contribute so much to [the judiciary’s] firmness and independence as permanency in office,” a quality he regarded as “an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.” 

The bottom line is that none of the reforms proposed by progressives and Democrats is moving forward and there is no prospect they will given the verdicts of history and the absence of a democratic majority supporting them. The major surgery they propose would raise new and different legitimacy questions.

William H. Freivogel is a professor and former director of the School of Journalism at SIUC. He is the publisher of Gateway Journalism Review.

TV stations could not refuse to run Eric Greitens’ political ad showing him with an armed tactical squad in hunt of “Rino” Republicans, as long as he paid for the air time.

No matter how objectionable, defamatory or wrong a federal candidate’s TV ad may be, the Communications Act of 1934 has a “no-censorship no-liability rule”, says Mark Sableman, a partner at Thompson Coburn and media expert.  

“The stations can’t censor or refuse to run the ads, even if they’re libelous or otherwise objectionable, but the stations also cannot be liable for having broadcast them,” he added in an email.

Greitens is a Republican candidate for a U.S. Senate seat in Missouri.

Different rules apply to other media. In print, publishers have full discretion about whether to run a political ad, but also have potential liability.

Internet companies are protected from liability by Section 230 of the Communications Decency Act. They also have the right to edit or not run the ad. Facebook decided to take down the ad, while Twitter kept it up while adding a warning. “This Tweet violated the Twitter Rules about abusive behavior. However, Twitter has determined that it may be in the public’s interest for the Tweet to remain accessible.” 

“I am Eric Greitens, Navy Seal,” Greitens says as the ad begins.  “And today we’re going Rino hunting. Shotgun in hand he follows a faceless tactical team as it breaks into an empty house as flashbangs detonate. “Join the MAGA crew. Get a RINO hunting permit. There’s no bagging limit, no tagging limit, and it doesn’t expire until we save our country.”

In reality the Greitens ad never was intended to run on TV as a paid ad, so no station was required to run it. Instead Greitens put it on the Internet and got tons of free publicity, without spending a campaign dollar on air time. Twitter reported 3.7 million views as of Tuesday evening.

Greitens, former governor of Missouri, told KCMO that critics were taking the ad too seriously, adding, “It is entertaining to watch the full outrage of all of the liberal and RINO snowflakes around the country and around the state,” he said. “The people who are most upset by this are the RINOs. They’re the ones who came out right from the beginning and joined forces, as they’ve always done, with the mainstream media to come out and to attack us.”

Greitens’ ad is protected speech under the First Amendment. It falls short of illegal incitement and courts are especially protective of hyperbolic speech.

Greitens wrote on Facebook, “Facebook CENSORED our new ad calling out the weak RINOs. When I get to the US Senate, we are taking on Big Tech.”

He did not address whether his hunting-RINOs ad was appropriate in light of the recent rash of threats of physical violence against politicians and government officials, ranging from low-level election officials to Supreme Court justices.

Greitens continues to lead the polls in the Republican primary.

William H. Freivogel is the publisher of Gateway Journalism Review.

Young lawyers chosen to clerk for U.S. Supreme Court justices are the most brilliant law school graduates of their generation. Some go on to serve as justices themselves – Roberts, Rehnquist, Gorsuch, Kavanaugh, Barrett, Kagan, White, Breyer, Stevens.

One remarkable fact about President Trump’s attempt to block the peaceful transfer of presidential power for the first time in the 230 year history of the Constitution is that a remarkably high number of brilliant Supreme Court clerks signed on – John Eastman (Clarence Thomas), Sen. Josh Hawley (John Roberts), Sen. Ted Cruz (William Rehnquist) and D. John Sauer (Antonin Scalia). 

All four backed the unconservative notion that one state – Texas – should be able to get the Supreme Court to toss out the presidential electors of four other states to reverse the election. Eastman even advised Vice President Mike Pence he had the power to refuse to accept certified electors on Jan. 6 and riled up the crowd that marched on the Capitol in support of that objective.

As former Sen. John C. Danforth and other noted Republicans put it in a friend of the court brief in December, 2020, the idea that one state could get federal courts to knock out the electoral votes of other states is “contrary to 230 years of history” and “would make a mockery of federalism and separation of powers.” Federalism and separation of powers are central to tenets of a conservative interpretation of the Constitution.

A notch down from these brilliant former Supreme Court clerks are other well known attorneys who directly represented Trump in court and are facing disciplinary consequences – Rudy Giuliani, Trump’s personal attorney, Sidney Powell, who had represented disgraced former National Security Adviser Michael Flynn, Lin Wood, a noted Georgia attorney, Cleta Mitchell, participant in the infamous call in which Trump attempted to force Georgia Secretary of State Brad Raffensperger to “find” enough votes to flip the state; Jenna Ellis, a Colorado attorney and conservative media commentator; Boris Epshteyn, a former Trump aide who has sought  “alternate electors”; and Joseph diGenova, who was Reagan’s U.S. Attorney in D. C. and said after the 2020 election that a Trump Homeland Security official should be “drawn and quartered. Taken out at dawn shot” for having declared the election free of fraud.

The lawyers are accused of lying to the court and/or in public statements about the election and for arranging for fake electors.

Legal publications such as the National Law Journal, Lawfare and the ABA Journal have covered the legal disciplinary actions well, with Lawfare devoting a special section to Capitol Insurrection.

In a column last month, Lawfare’s highly respected editor, Benjamin Wittes, zeroed in on a judge’s ruling in March that Eastman’s claim of attorney-client privilege failed because the privilege does not cover an attorney’s actions helping a client commit a crime – in other words Eastman’s attempt to help Trump subvert the election. 

Wittes wrote, “It is no exaggeration to say that the history of the United States has never seen an account of a president’s conduct quite so devastating as the first nine pages of Judge David Carter’s opinion of March 28 in Eastman v. Thompson. …

‘Certainly Watergate produced no document about Richard Nixon comparable to it in its combination of brevity, spare factual simplicity, and total evisceration of its subject’s honor and conduct. Nor did Teapot Dome or the Whiskey Ring scandals produce such material concerning Warren Harding or Ulysses S. Grant. Nothing that Lawrence Walsh had to say about Ronald Reagan or that Kenneth Starr wrote about Bill Clinton, both after years of investigation and exposition at great length, remotely approaches it in power.”

The opinion, Wittes says, “leaves the fair-minded reader in no doubt that the events that took place between Joe Biden’s defeat of Trump at the polls and congressional certification of Biden’s victory on Jan. 6 were an all-out effort by the lame duck president to seize and retain power in unapologetic defiance of the law using extra-constitutional means—up to and including violence directed against a coordinate branch of government….the judge certainly appears to be correct that Trump was using Eastman’s legal services in conduct that, as a prima facie matter, violates both 18 U.S.C. § 1512(c)(2) and 18 U.S.C. § 371, the former of which forbids the corrupt obstruction of an official proceeding and the latter of which criminalizes conspiring to defraud the United States.”

Remarkably, even though the federal judge has basically accused Eastman of having aided Trump in a crime – not just any crime but a crime to block the peaceful transfer of power for the first time in American history – Eastman is continuing to press the case by calling upon states such as Wisconsin to decertify their electoral votes for Biden.”

Meanwhile, a new group of liberal lawyers, the 65Project has begun filing complaints against lawyers involved in filing the 65 baseless lawsuits Trump forces pressed without success between the election and inauguration.

There has been little coverage of the group, aside from a detailed article by Jennifer Rubin in the Washington Post. The only other coverage found in a Lexis-Nexis search was by ​​The National Pulse, a website that says “it is delighted to be able to state that we have never had to issue a substantive correction, apology, nor retraction unlike large corporate media entities who rush to publish false stories.” Its story is headlined: U.S. Election Integrity Lawyers Are Being Targeted By a Group Whose Leader Accepted a Chinese Communist Propaganda Junket.” It smears the group as a Chinese front:  “Former Senator Tom Daschle – a board member of a new dark money, left-wing group targeting conservative election integrity lawyers – took a trip to China sponsored by a key communist influence group flagged by the U.S. government for its efforts to infiltrate American politics. The new group, 65 Project, seeks to deter right-wing lawyers from fighting on behalf of election integrity by attempting to disbar and intimidate lawyers who fought for the issue during the 2020 election.”

Action taken against Giuliani, Powell, Wood

The New York courts suspended Giuliani’s law license a year ago, which means his license will likely remain suspended as the years-long disciplinary process plays out. The court decided that Giuliani made numerous knowingly false statements, including: “false statements that there were 600,000 to 700,000 fabricated mail-in ballots [in Pennsylvania]; “false statements that dead people ‘voted’ in Philadelphia in order to discredit the results of the vote in that city;” “numerous false and misleading statements regarding the Georgia presidential election results,” such as false statements related to voting by underage voters, felons, and dead people and false statements concerning Dominion Voting Systems and illegal vote counting; and numerous false statements about illegal voting by undocumented residents of Arizona.”

Sidney Powell and Lin Wood were sanctioned by a Michigan court last summer also for claims about Dominion. The court ordered them and seven other lawyers to pay the fees and court costs and complete continuing legal education courses in the areas of election law and pleadings standards. The court also referred the lawyers to the authorities responsible for disciplining lawyers in Michigan and the other states.

“[T]his case was never about fraud—it was about undermining the People’s faith in our democracy and debasing the judicial process to do so,” U.S. District Judge Linda Parker said, calling it “a historic and profound abuse of the judicial process.” 

Powell asserted that Dominion had provided a “back door” that allowed officials to “take a certain percentage of votes from President Trump and flip them to President Biden.” She claimed the software was designed “to rig elections” and  was a “massive criminal voter fraud.” She also suggested that state officials got kickbacks and bribes to install these systems. 

She said Dominion was “founded by foreign oligarchs and dictators to ensure computerized ballot stuffing and vote manipulation to whatever level was needed to make certain Venezuelan dictator Hugo Chávez never lost another election.”

When sued for defamation, Powell’s lawyer suggested Powell’s public statements were not intended to be statements of fact and should not have been taken seriously. No reasonable person would conclude that the statements were truly statements of fact, Powell claimed.

In another case involving false claims about Dominion, a federal judge last November ordered two Colorado lawyers to pay nearly $187,000 to defray legal fees growing out of their pro-Trump election suit. The two lawyers, Gary D. Fielder and Ernest John Walker, filed the case in December 2020 as a class action on behalf of 160 million American voters, alleging there was a complicated plot to steal the election from Trump. The court concluded:

“As officers of the Court, these attorneys have a higher duty and calling that requires meaningful investigation before prematurely repeating in court pleadings unverified and uninvestigated defamatory rumors that strike at the heart of our democratic system and were used by others to foment a violent insurrection that threatened our system of government.”

The two had sought $160 billion in damages, alleging  a scheme involving Dominion; the tech company Facebook, its founder Mark Zuckerberg and his wife, Priscilla Chan; and elected officials in four states.  

Loopholes in ethics rules

One aspect of the legal ethics issue that has not been covered extensively is the ambiguity about whether a lawyer’s false public statements about an issue of public importance are subject to discipline.

This is especially uncertain when the lawyer is speaking as a public official and is not representing a client – Sens. Hawley and Cruz, for example.

Public officials speaking about important government matters can claim First Amendment protections, even for some false claims, experts say.

Even lawyers who were acting for clients may escape discipline for statements made out of court to the press. 

Andrew M. Perlman, dean of Suffolk Law School, wrote, that, “while representing President Trump’s legal interests (i.e., while acting in their roles as lawyers), Sidney Powell, Rudy Giuliani, and John Eastman made numerous comments outside of court, such as at press conferences, on social media, and on television, that some have alleged were knowingly false but did not necessarily violate any legal responsibilities outside of the rules of professional conduct.

“..The comments by Eastman, Giuliani, and Powell did not violate the rules of civil procedure because they were not made in the form of court filings.”

Lawyers who lie in legal proceedings can be sanctioned for violating rules of civil procedure.

But lawyers who lie to the press on the courthouse steps, can’t be sanctioned under those rules. The only discipline they could face is violating the lawyer’s Code of Professional Responsibility, which is more vague.

Perlman says the only provision that applies is “Comment [6] to the Preamble to the Model Rules, which says that: a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.”

But he concludes:  “In ordinary circumstances, the profession should hesitate to discipline lawyers for discussing matters of great public interest, including (and perhaps especially) with the press. But given the institutional stakes here and assuming the constitutionality of the basis for discipline, the profession should not be reluctant to impose discipline when lawyers knowingly spread misinformation in the course of litigation that undermines the legitimacy of our democracy.”

One final ethical gray area surrounding Jan. 6 was Justice Thomas’ failure to recuse himself from a Jan. 6 case even though his wife, Ginny, wrote 29 texts to former White House Chief of Staff Mark Meadows urging efforts to overturn the Biden win. 

The National Law Journal quoted legal ethics experts who concluded Justice Thomas arguably crossed the line in not recusing himself from a case where he was the lone dissenter to a Supreme Court action turning over Trump records to the House investigating committee.

The ethics experts said Thomas’ failure to recuse himself was an “unprecedented situation,” but also pointed out that justices make their own decisions on recusals under the current rules that guard separation of powers.

William H. Freivogel is publisher of GJR and covered the U.S. Supreme Court for the St. Louis Post-Dispatch. He is a member of the Missouri Bar.

The constitutional promise that the U.S. Supreme Court is about to reinterpret and restrict in its abortion decision is the deepest well of individual freedom, autonomy and privacy in the Constitution. It doesn’t just protect women. It protects everyone.

For that reason, the leaked draft opinion by Justice Samuel Alito raises questions about whether that well of freedom – the liberty protected by due process of law – will continue to protect same-sex marriage, consensual sexual relations by same-sex partners and contraceptives that some view as abortifacients.

Justice Alito, apparently to head off political blowback, ensured in his draft that “our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

Nevertheless, the legal reasoning he used to read the abortion right out of the Constitution is just as applicable to other rights. Alito stated that the only liberty rights protected by the Constitution are those “‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.’”

Clearly same-sex marriage and consensual same-sex relations do not meet that test because no state had legalized same-sex marriage before 2000 and many states criminalized consensual sexual relations between same-sex couples as late as 2003.

Nothing but public opinion could stop the Supreme Court majority from rolling back those rights based on the reasoning in the Alito opinion.

Understanding the implications of the Alito draft, requires a trip through history that is not part of the public debate and requires a deeper dive than most media provide.

Wellspring of freedom and equality

The 14^th Amendment was added to the Constitution as a result of the Civil War. The returning Confederate states had to ratify it to reenter the union. Some legal scholars have called it a second constitutional convention of sorts because of the way it expanded constitutional protection with such capacious words as liberty and equal protection. Before the 14^th Amendment, the Constitution had no protection for equality, despite the inspiring words of the Declaration of Independence.

The key words of the 14^th Amendment provide that no state shall “deprive any person of life, liberty, or property, without due process of law, nor deny any person within its jurisdiction the equal protection of the laws.”

These promises of liberty and equality eventually remade the country. They protect interracial marriage, same-sex marriage, private same-sex sexual relations, a woman’s access to birth control, the right of a prisoner to marry, a family’s decision to bring relatives into their home, a family’s decision to send a child to a parochial school, the right of a public school teacher to teach an unpopular subject such as German and a person’s right not to be forcibly sterilized.

The Supreme Court also has interpreted the liberty protected by due process to incorporate nearly all of the freedoms of the Bill of Rights – the other great wellspring of freedom in the Constitution. Before the 14^th amendment, the Bill of Rights only applied to the actions of the federal government, not the states. So states could willy-nilly violate rights named in the Bill of Rights. And they did.

In the 150 years since the 14th Amendment was ratified in 1868, its most powerful words – liberty, due process and equal protection – have become the constitutional foundation of more individual rights than the rest of the Constitution combined. They also have become the basis of protecting individual privacy, which is not explicitly protected in the Constitution.

In short, a lot of freedom Americans take for granted rests on liberty protected by due process.

19^th century court reads rights out of 14^th Amendment

The expansion of these rights has mostly been in the past 60 years. It certainly did not occur right away. Instead, the Supreme Court read much of the meaning out of the words liberty, equal protection. It said equal protection did not give Illinois women like Myra Bradwell the right to practice law or women like Virginia Minor of St. Louis the right to vote. And it ruled separate but equal was equal enough.

It wasn’t until the more liberal Warren Supreme Court of the 1950s and 60s that legal segregation was eliminated and it wasn’t until Ruth Bader Ginsburg’s landmark sex discrimination cases of the 1970s and beyond that equal protection began ending sex discrimination.

Another part of the Supreme Court’s dark history of interpreting the 14^th Amendment was the so-called Lochner era during the Gilded Age around the 1900s when the Supreme Court said the liberty protected by due process invalidated child labor and minimum hour laws because they interfered with the right of workers and employers to contract freely. Of course, the freedom to contract was actually the freedom of the employers to exploit workers.

Alito, in his draft, points to the Lochner era as an example of why the liberty protected by the 14^th amendment should be limited. This has long been a debating point used by conservative judges to undermine the argument for the constitutional protection of abortion, birth control, same-sex marriage and similar rights.

Alito wrote that, “Substantive due process” – the legal term for protecting substantive liberty rights under the due process clause – can be “treacherous” and lead the court to “usurp” elected officials. He took that quote from a Supreme Court decision in favor of an East Cleveland family who wanted to allow two cousins to live under the same roof even though municipal housing laws made it illegal.

Alito’s draft omitted the court’s language from a few pages earlier in the East Cleveland opinion. There the court cited Roe v. Wade for the settled proposition that: “This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.”

Alito argued in his draft that liberty protected by due process should be limited to those ‘deeply rooted in this Nation’s history and tradition” and ‘implicit in the concept of ordered liberty.”

He said the nation must “guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans enjoy.”

And he ridiculed as too broad the reasoning of the 1992 Casey decision in which two justices appointed by Ronald Reagan and one by George H. W. Bush – O’Connor, Kennedy and Souter – joined liberals in reaffirming the abortion right. That decision was based on “freedom to make “intimate personal choices” “central to personal identity and autonomy. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and the mystery of human life.”

Casey also added an equality dimension that was missing in Roe, stating that control of reproduction was necessary for women “to participate equally in the economic and social life of the nation.”

Women missing

Alito countered with the argument of anti-abortion forces that “modern developments” in society’s attitude toward women make these equality arguments outmoded, arguing that “…attitudes about the pregnancy of unmarried women have changed drastically; that federal and state laws ban discrimination on the basis of pregnancy, that leave for pregnancy and childbirth are now guaranteed by law in many cases, that the costs of medical care associated with pregnancy are covered by insurance or government assistance; that States have increasingly adopted safe haven laws, which generally allow women to drop off babies anonymously; and that a woman who puts her new-born up for adoption today has little reason to fear that the baby will not find a suitable home.”

A controversial footnote that Alito added, quotes the Centers for Disease Control and Prevention  stating that “the domestic supply of infants relinquished at birth or within the first month of life and available to be adopted had become virtually nonexistent.”

Legal commentator Emily Bazelon of The New York Times wrote that Alito’ draft decision was ignoring the reality of a woman’s life. Quoting from an amicus brief by economists, she wrote: “Pregnant people are still denied accommodations at work, despite a 1978 law that’s supposed to protect them from discrimination. Women still experience an economic ‘motherhood penalty.’ And the financial effects of being denied an abortion…are ‘as large or larger than those of being evicted, losing health insurance, being hospitalized or being exposed to flooding’ resulting from a hurricane.”

Linda Greenhouse, the Times’ long-time Supreme Court reporter, wrote in a companion article that she was shocked that women were almost entirely absent in the Alito draft.  It is “astonishing that in 2022 he would use his power to erase the right to abortion without in any way meaningfully acknowledging the impact both on women and on the constitutional understanding of sex equality as it has evolved in the past half-century,” she wrote.

Tricky history

Women were entirely absent at the Constitutional Convention in 1787 and the post-Civil War Congress that wrote the 14^th Amendment.

The 14th Amendment is full of landmines for originalists, like Alito and others in the possible conservative majority, who base their interpretations on the original meaning of the text.

At the time the 14 Amendment was ratified, it did not protect the equal rights of women or the rights of Blacks and whites to live in a racially integrated society with integrated schools, restaurants, hotels and public accommodations. Certainly, the authors of the 14^th Amendment had no notion of protecting interracial marriage – which Lincoln himself had ridiculed during the Lincoln-Douglas debates. And the thought of the amendment protecting same-sex marriage may not have entered the drafters’ minds.

Alito devotes a long section of his opinion to the history of the law on abortion dating back to Medieval times. He claims that at the time the 14^th Amendment was ratified 28 out of 37 states made abortion illegal. But some historians have already challenged that tally. A better number would be 16 out of 37, writes Alan Tang in an opinion article in the Los Angeles Times. A Reuters story picks up Tang’s criticism.

Tang points out that at the founding in 1787, common law distinguished between abortions before and after “quickening” – the time about 15 weeks into pregnancy when a woman can feel movement by a fetus. Those states with criminal abortion laws applied them only after quickening. A majority of the states did not criminalize abortion before quickening when the 14^th Amendment was written, Tang wrote.

Law professors also have noted that Benjamin Franklin published a widely circulated book that recommended using the herb angelica to terminate a pregnancy.

The Alito draft allows states to prohibit abortion “at all stages of fetal life.” That language is broad enough to allow legislators to ban all abortions after conception, and it would allow legislators to refuse to recognize exceptions for rape, incest and the health of the mother. 

Missouri’s trigger 

Missouri’s trigger law banning abortion if Roe is overturned has none of these exceptions, only allowing abortion for the life of the mother. The wording also would arguably criminalize contraceptives viewed by legislators as abortifacients. 

After the Alito draft leaked, former Sen. Clare McCaskill tweeted, “In MO the moment Roe falls, law will dictate the following: life begins at conception, all termination of that life…even morning after pill, IUD will be illegal.”

The Kansas City Star wrote a fact check story knocking down parts of McCaskill’s tweet: “No, Missouri’s abortion ‘trigger’ law doesn’t ban Plan B, birth control or IVF, experts say.” It based its conclusion on a Planned Parenthood tweet stating: “Birth control does not meet the criteria for the definition of abortion under MO law. Since birth control prevents pregnancy (and does not end an existing pregnancy), overturning #Roe will not block access to birth control.”

But Saint Louis University law professor Marcia McCormick, who provided St. Louis Public Radio’s Sarah Fenske with a nuanced explanation of the law, pointed out that zealous prosecutors could push the boundaries.

First, the life of the mother exception is exceptionally narrow and includes only imminent death or risk of “irreversible physical impairment of a major bodily function.”  “The doctor has to do more than just believe that death is imminent, or that the serious impairment of a major bodily function is imminent,” McCormick explained.  “That belief has to be reasonable so most other doctors would have to agree.”

Second, even though the law explicitly says the woman involved cannot be prosecuted, only those inducing an abortion, what if the woman herself induces an abortion? “If a woman, for example, induced an abortion herself by taking an abortion-inducing drug, it’s not clear under the statute that she couldn’t be prosecuted,” McCormick said. 

Third, the law could outlaw IUDs and even Plan B, the morning after pill. “Pregnancy is defined as fertilization rather than the implantation of a fertilized egg and some descriptions of birth control say….they may prevent implantation of a ferterlized embryo and if they prevent implantation then that counts as a device that causes an abortion under the definitions in this statute,” said McCormick. “And Plan B, that’s part of the (FDA label) description of how it might work.”

Planned Parenthood is smart to argue on behalf of its patients that birth control isn’t covered, she added, “but that is not necessarily a representation of what someone like our attorney general would argue.” Missouri Attorney General Eric Schmitt already has announced he will immediately move to put the trigger law into effect if Roe is overturned.

McCormick suggested that some parts of the IVF process could come under attack due to the language in the Missouri law. “A creative prosecutor might make arguments about what exactly counts as life based on other definitions in the statute that say that a human being that deserves protection by law is created at fertilization.”

Nor is it clear whether a woman’s constitutional right to contraception would withstand Alito’s reasoning. In Griswold v. Connecticut in 1965, the Supreme Court said a married woman’s right to privacy protected her right to obtain contraceptive information, despite the Comstock law that Connecticut and many other states had passed in the wake of the Civil War – at about the same time as the criminal abortion laws referred to by Alito. 

But in Griswold there wasn’t a majority for where the privacy right comes from in the Constitution. Justice William O. Douglas said it was to be found in the penumbra of several amendments in the Bill of Rights, such as the ban on unreasonable searches. That penumbra opinion has been ridiculed widely, leaving the only basis of privacy in the  liberty protected by due process – the language Alito is narrowing.

To ease fears that the opinion will be extended to contraception and same-sex rights, Alito points out that abortion is a unique situation where a “potential life” is involved and therefore particularly vulnerable to a reinterpretation.

But critics note that there is far less support in history for same-sex marriage and consensual same-sex relations in private than there is for permitting early term abortions.

William H. Freivogel is publisher of GJR and covered the U.S. Supreme Court for the St. Louis Post-Dispatch. He is a member of the Missouri Bar.

Judge Ketanji Brown Jackson never could have expected to be asked that simple question – ‘what a woman is’’ – by Sen. Marsha Blackburn (R-Tenn.) Jackson’s response was by turns puzzled, nervously amused and then lawyerly in saying no. She said she couldn’t define the word without knowing the legal context.

The brief confrontation was one of those moments that can capture the public imagination because suddenly all of the complexities of the Supreme Court are boiled down to one simple question a kindergartner might answer but a brilliant Harvard Law graduate would not.  The exchange quickly became big news on Fox and other right-leaning media sites.

What was missing – as it so often is – was context. In this instance the context is the two-century struggle women have fought to try to gain equal rights – to define what woman means. A struggle that includes this confirmation hearing for the first Black woman nominated to the court.

The story of the legal crusade for equal constitutional rights for women runs counter, however, to the Blackburn’s views on women’s equality and counter to the originalism that Republican senators espouse when interpreting the Constitution.

The men who wrote “equal protection” into the Constitution never meant to protect women and the Supreme Court waited a century before striking down a law for violating the “equal protection” of women.

Thomas Jefferson wrote,  “all men are created equal.” No one in polite society then thought women’s legal rights to vote or own property or work outside the home should be protected. In fact our national belief in equality didn’t make it into the original Constitution.

In antebellum America the rules of coverture – derived from English common law – gave husbands the rights to a wife’s paid and unpaid labor, most of her property and her obedience. Wives couldn’t sue or make contracts without their husbands’ consents, nor could they vote. In the eyes of the law, the “very being or legal existence of the women is suspended during marriage” wrote William Blackstone, the great 18th century legal commentator.

When women gathered at Seneca Falls in 1848, they wrote their Declaration of Sentiments, patterned on the Declaration of Independence, except they declared “all men and women are created equal.” Instead of laying out King George’s tyrannies, it laid out the tyrannies of men, beginning with the refusal to allow women to vote or have any voice in lawmaking.

It took a Civil War and half a million American deaths to lay the groundwork for the 14^th Amendment and “equal protection.” But for a century that didn’t include women.

Equal doesn’t apply to women

The 14^th Amendment provided in 1868 that, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” and added, “No State shall…deny to any person within its jurisdiction the equal protection of the laws.”

But when two women – one from Missouri and one from Illinois – went to the Supreme Court to claim the amendment’s protection, they quickly found they were not included.

The Illinois Supreme Court had denied Myra Bradwell the right to practice law solely because she was a woman. Her lawyer in the Supreme Court, Matthew Hale Carpenter, harkened back to the Declaration of Independence saying, “In the pursuit of happiness all vocations, all honors, all positions, are alike open to every one; in protection of these rights all are equal before the law.”

There was no lawyer arguing the other side of the case, but Bradwell lost anyway.  As the 1873 opinion put it, “the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.

“The harmony….(of) the family institution is repugnant to the idea of a woman adopting to a distinct and independent career from that of her husband….The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mothers. This is the law of the Creator.”

The next year, the Supreme Court turned away Virginia Minor, who had tried to register to vote in St. Louis in 1872. Chief Justice Morrison Waite, writing for a unanimous court, wrote there was no doubt but that women may be citizens, but there was also no doubt that not all citizens of the United States can vote. It’s up to the states to decide who has that right and Missouri said no.

Even when the Supreme Court seemed to be ruling in favor of women, it did so based on debilitating sex stereotypes. In Muller v. Oregon in 1908, the court upheld a law limiting the workday of women in factories to 10 hours. This came at a time when the court generally ruled that laws limiting the right of contract were unconstitutional under the 14^th Amendment.  The court justified its ruling in Muelle on the weakness of women.

“That woman’s physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence is obvious. This is especially true when the burdens of motherhood are upon her,…and as healthy mothers are essential to vigorous offspring, the physical well-being of woman becomes an object of public interest and care in order to preserve the strength and vigor of the race.

“Still again, history discloses the fact that woman has always been dependent upon man. He established his control at the outset by superior physical strength…As minors, though not to the same extent, she has been looked upon in the courts as needing especial care that her rights may be preserved.”

Even ‘sprightly’ barmaids may not apply

Even after women narrowly won the right to vote in 1920 with ratification the 19^th Amendment, the Supreme Court continued to give women second class status under the Constitution.

As late as 1948, the court upheld a Michigan law that forbade a woman to work as a bartender unless she was the “wife or daughter of the male owner.” Justice Felix Frankfurter jovially noted the “historic calling” of the “alewife sprightly and ribald,” but cautioned that the 14^th Amendment “did not tear history up by the roots.” He added that Michigan could “beyond question, forbid all women from working behind a bar….The fact that women may not have achieved the virtues that men have long claimed as their prerogatives and now indulge in vices that men have long practiced, does not preclude the States from drawing a sharp line between the sexes.”

And in 1961 the court upheld a Florida law that excluded women from jury lists unless they requested inclusion, resulting in almost all all-male juries. The court continued to interpret equal protection in light of a woman’s role in the family, just as it had in Bradwell almost a century earlier. A woman, who had been convicted of killing her husband with a baseball bat after he cheated on her, thought women on the jury would better understand her plea of temporary insanity.

But the court said no. “Despite the enlightened emancipation of women from the restrictions and protections of bygone years, and their entry into many parts of community life formerly considered to be reserved to men, woman is still regarded as the center of home and family life.”

Ginsburg vs. Schlafly

In 1964 Congress passed the Civil Rights Act that included sex discrimination as an afterthought. A Southern legislator added sex to the grounds for discrimination, possibly as a poison pill to defeat the entire act. Some members of Congress laughed, but sex was included in the final law.

Still it wasn’t until Ruth Bader Ginsburg brought Reed v. Reed to the Supreme Court in 1971 that the court ruled for the first time that the 14^th Amendment’s 103-year-old promise of equal protection could strike down a law that discriminated on the basis of sex.

The next decades were a race between two very different women, Ginsburg and Phyllis Schafly from Alton, Il. Ginsburg was taking case after case to the Supreme Court to provide women with equal rights, while Schlafly was convincing state legislators to kill the Equal Rights Amendment for fear of same-sex bathrooms and women in the military. Both women succeeded. The ERA still is not part of the Constitution, but Ruth Bader Ginsburg won almost complete equality by including women as a “person” deserving “equal protection.”

The pinnacle of Ginsburg’s legal victory was the opinion she wrote for the court throwing out the male-only admission requirement of the Virginia Military Institute, a male bastion.

The language that Blackburn quoted in her confrontation with Jackson was from the VMI case. The quote about the sexes not being “fungible” was not actually Ginsburg’s words but a quote from a prior case. 

The senator’s  political point was clear, however: Jackson’s inability to define a woman underscores the “dangers of the progressive education.” 

“Just last week,” she added, “an entire generation of young girls watched as our taxpayer funded institutions permitted a biological man to compete and beat a biologoical woman in the NCAA,” a reference to Lia Thomas, a champion transgender swimmer on the University of Pennsylvania’s women’s team.

Critics pointed out that Blackburn has a long record of opposing laws that Ginsburg had supported as a lawyer or upheld as a justice. Blackburn voted against the Lilly Ledbetter Fair Pay Act of 2009, the reauthorization of the Violence Against Women Act and opposed ratification of the ERA.

Critics also point out that applying the original meaning of 14th Amendment would not have protected women at all.

Jackson finally found a way not to answer the question. She pointed out that the definition of sex in the law was an issue that is likely to come before the court, so she should not express an opinion.

One interesting footnote is that Justice Neil Gorsuch, one of the most conservative justices on the court, wrote the decision in 2020 holding that the word sex – added as an afterthought to the 1964 Civil Rights Act by a Southern segregationist – includes sexual orientation and gender-identity. 

The Senate’s decision whether to confirm Jackson as the first Black female justice is the next signpost on the path toward equality.

William H. Freivogel is publisher of GJR, a professor of media law at Southern Illinois University Carbondale and a member of the Missouri Bar. He covered the Supreme Court as a deputy Washington Bureau Chief for the St. Louis Post-Dispatch.