News Analysis: Missouri’s hard-right legal arguments may be backfiring in Supreme Court

By William H. Freivogel

Sixteen months ago GJR published A citizen’s guide to the U.S. Supreme Court losing legitimacy. In the wake of the 2022 Dobbs decision overturning Roe v. Wade, public approval had sunk to the lowest level since the New Deal. It remains there in the most recent Gallup polling despite Chief Justice John G. Roberts Jr.’s attempts to address ethical criticisms and shore up the court’s legitimacy. Here are recent developments.)

The hard-right legal arguments that Missouri, other red states, top conservative lawyers and Trump attorneys are making in the U.S. Supreme Court may be backfiring by dividing the conservative wing of the court and pushing more centrist conservatives toward the liberals.

In recent cases two or more of the conservative justices have expressed skepticism toward arch-conservative arguments that could ban abortion drugs, expand gun rights, open the door to false and dangerous social media posts, support former President Donald Trump’s election denials and permit states to intrude into federal immigration matters.

It’s too early to draw firm conclusions, but doubts expressed by Chief Justice Roberts and Justices Brett M. Kavanaugh and Amy Coney Barrett during oral arguments may reflect a moderation of the sharp shift to the right that seemed unstoppable after the Dobbs decision overturned Roe v. Wade two years ago. 

A floating middle of two or three moderate justices may be taking the place that moderate conservative justices such as Justices Anthony M. Kennedy, Sandra Day O’Connor and Lewis Powell played over the past half century.

After the Dobbs abortion decision, the press and analysts described a conservative juggernaut taking hold on the court. But last year – setting aside the decision ending race conscious college admissions – the court appeared to pull back. Lee Epstein, the former Washington University professor now at USC, commented that “the most conservative and aggressive court in modern history” seemed to have “moderated.”

Epstein is the national expert on Supreme Court voting trends and compiles an annual report along with Andrew Martin, the Washington University chancellor. That report found that Roberts and Kavanaugh were in the majority in divided cases more than any other justice – 86 and 90 percent respectively – while conservative Justice Clarence Thomas was in the majority in the fewest close cases, 55 percent. 

The post-Dobbs prediction that Thomas and Justice Samuel A. Alito Jr. were taking control of the court from Roberts, began to seem overstated. The surprising victory for voting rights in an Alabama redistricting case last June was especially dramatic, as Roberts and Kavanaugh joined the liberals in a decision expanding Black voting strength in the South.

So far, recent actions and arguments in Supreme Court cases, several involving Missouri, reinforce this trend: 

Mifepristone

Last week Erin Hawley, the wife of Sen. Josh Hawley, R-Mo., ran into skepticism in the mifepristone case from all of the court’s justices except for the two most conservative  — Justices Thomas and Alito. Hawley, who clerked for Roberts as did her husband, faced intense questioning that sometimes left her off balance. She argued that protecting the consciences of seven anti-abortion doctors required that the court cut off the medical abortion drugs from all American women who use them — 640,000 last year. The drugs can end a pregnancy within 10 weeks of conception, have been found safe and effective by the Food and Drug Administration and are used in the majority of abortions.

Justices across the spectrum had difficulty with the lopsided scales of justice that Hawley was proposing. Justice Ketanji Brown Jackson called it a “significant mismatch” between the claimed harm to the seven doctors’ consciences and the remedy of denying health services to hundreds of thousands of women – particularly in light of a federal law allowing the doctors to claim a right of conscience exemption from abortion procedures. Justice Neil Gorsuch, a Trump appointee, questioned turning the complaints of a “a handful of individuals” into “a nationwide legislative assembly.”

Missouri Attorney General Andrew Bailey tried earlier this year to intervene in the case on Hawley’s side, but the Supreme Court turned him down. Last summer, the Missouri Supreme Court quickly and unanimously rejected Bailey’s attempt to inflate the cost estimate of an abortion-rights petition circulating in the state. Bailey claimed the cost of the initiative would be in the billions of dollars. The scathing opinion by the state’s high  court was issued just two days after argument, showing how perturbed the court was with Bailey’s delay of the petition process. The opinion stated that nothing “gives the attorney general authority to question the auditor’s assessment of the fiscal impact of a proposed petition.”

False and dangerous social media posts

In early March, Missouri and Louisiana claimed that the Biden administration caused the greatest violation of the First Amendment in history by pressuring social media companies to take down false and dangerous posts about Covid-19, vaccination safety, election denial and national security. Missouri had won in the lower courts, but the Supreme Court put those lower court decisions on ice and now appears ready to rule against Missouri and Louisiana.

Kavanaugh, who served in the George W. Bush White House, said during the oral argument that government press aides “regularly call up the media and berate them.” Justice Elena Kagan, who served in the Obama administration, described her own experience “encouraging the press to suppress their own speech. ‘You just wrote a story that’s filled with factual errors. Here are the 10 reasons why you shouldn’t do that again. I mean, this happens literally thousands of times a day in the federal government.’” Roberts and Barrett appeared to agree.

Still, Attorney General Bailey put an optimistic face on the argument in a public statement released after it concluded: “Today, the United States Supreme Court heard the most important First Amendment case in this nation’s history. I’m proud that Missouri is leading it,” said Bailey. “My office brought this lawsuit to halt the disgusting silencing of millions of Americans by the Biden Administration. We feel confident after today’s arguments, and look forward to reminding the nation that the First Amendment still means something in this country.”

Missouri’s legal ally in the Supreme Court is The Gateway Pundit, the Missouri-based champion of right-wing conspiracy theories for almost 20 years. The publication, run by Jim Hoft and his brother Joe, currently faces a defamation suit in St. Louis for claiming that two Georgia poll workers stuffed ballot boxes in the 2020 election – claims that Congress’s Jan. 6 investigation found to be false and to have subjected the women to so many threats that one had to move out of her home.

Florida and Texas laws on social media moderation

A month ago, the high court considered another conservative challenge to the way social media companies moderate speech online. During an oral argument Feb. 26, a majority of the justices appeared to think the First Amendment editorial rights of the social media companies were violated by 2021 Florida and Texas laws restricting the companies from taking down false posts.

Guns

Last October the Supreme Court turned down Missouri’s emergency appeal seeking to reinstate the Second Amendment Preservation Act. The law prohibits state and local law enforcement officials from enforcing federal gun laws that Missouri claims are unconstitutional, including federal laws requiring registration of some firearms and denying guns to felons.

U.S. Solicitor General Elizabeth Prelogar said the law was “an obviously unconstitutional attempt to nullify federal law.” Missouri Solicitor General Josh Divine, another high octane conservative advocate who was a Supreme Court clerk and has a Federalist Society pedigree,  argued the federal government didn’t even have the right to sue. But a lower court judge ruled that Missouri’s law violated the Constitution’s Supremacy Clause, which provides that the Constitution and federal law take precedence over conflicting state law.

When Divine filed an emergency petition to enforce the law, the Supreme Court turned him down. Justices Thomas, Alito and Gorsuch showed some support for Missouri’s position.

In an argument last fall, the court appeared ready in U.S. v Rahimi to uphold the government’s power to take a gun away from a domestic abuser who had assaulted his girl friend and shot at a witness to the assault. Chief Justice Roberts said to the man’s lawyer, “You don’t have any doubt that your client’s a dangerous person, do you?” Justice Kavanaugh noted that federal background checks included information about domestic abuse and suggested they should. Justice Barrett also appeared to support gun measures targeting domestic abusers.

One reason the case is important is that a decision could chip away at a pro-gun precedent written by Justice Thomas that required a gun law to have a 1791 analogue to comply with the Second amendment. The originalist interpretation of the Constitution, followed by Thomas and most of today’s court, centers its interpretation on the meaning of a constitutional provision when it was ratified. In 1791, women didn’t have rights under the Constitution.

Election denial

Hawley, the Missouri senator, and then Missouri Solicitor General D. John Sauer, two former Supreme Court clerks, lent their reputations as brilliant lawyers to the Trump effort in the courts and Congress to overturn the 2020 election. Sauer and Schmitt filed an amicus brief supporting Texas Attorney General Ken Paxton’s December 2020 election challenge, which was widely viewed as spurious and quickly rejected by the Supreme Court without argument, but which gave credence to the idea that the election had been stolen.  

More recently, Sauer was the lawyer who notably argued that Trump should have nearly absolute immunity from criminal prosecution for acts taken while president. “Could a President order seal Team 6 to assassinate a political rival?” Judge Florence Pan, of the U.S. Court of Appeals for the D.C. asked Sauer during oral arguments late last year.

Sauer hedged and then responded that Trump could only be criminally prosecuted if he were first impeached for the act and convicted in the Senate. The appeals court ruled against Trump’s absolute immunity claim. Trump’s appeal will be heard by the Supreme Court April 25.

Trump himself questioned the legitimacy of the Supreme Court when it turned down his request to keep his income taxes secret. “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!” he said.

Immigration

Missouri and Texas lost a challenge in 2023 to Biden’s decision to end Trump’s “remain in Mexico” policy that required people seeking asylum to remain in Mexico while they awaited a hearing. In a 5-4 decision, Chief Justice Roberts said that the president had the discretion to release asylum seekers in the United States pending hearings. Kavanaugh and the three more liberal justices joined Roberts in rejecting Missouri’s claim.

Vaccinations

At the height of the Omicron surge in COVID-19, a 5-4 majority in Biden v. Missouri rejected Missouri’s challenge to the Biden administration rule requiring that health care workers in facilities receiving Medicare or Medicaid get vaccinated unless they had a health or religious exemption. Kavanaugh and Roberts joined the more liberal justices in the majority.

Student loans

One case in which Missouri and other conservative states won in the Supreme Court was the court’s rejection of Biden’s plan to forgive student loan debt, where the court’s six most conservative justices stuck together to rule that Biden had exceeded presidential authority.

Recently Bailey announced he and other red states are challenging Biden’s newest college loan forgiveness plan, which he maintains helps wealthy students. He said, “I’m extremely pleased to see Kansas is leading a multi-state coalition in challenging President Biden’s latest attempt to unlawfully transfer hundreds of thousands of dollars in Ivy League debt onto working Missouri families.” 

Bailey and his predecessor as attorney general, Sen. Schmitt, have also used aggressive legal tactics in making legal threats to local school districts in Missouri.

DEI

Schmitt, while attorney general, challenged school districts around the state on both Covid policies and diversity, equity and inclusion training.

Bailey recently has attempted to link a fight at Hazelwood East High School in which a girl was seriously injured to the school’s DEI policies. 

“I am launching an investigation into Hazelwood School District after a student was senselessly assaulted by another student in broad daylight,” Bailey said in a statement last month. “The entire community deserves answers on how Hazelwood’s radical DEI programs resulted in such despicable safety failures that has resulted in a student fighting for her life.”

There is no evidence that the school’s program had anything to do with the fight. 

Hazelwood School District lawyer Cindy Reeds Ormsby said in a letter to Bailey that his “obvious racial bias against majority minority school districts is clear.

“Do you honestly believe, again, without any official verification or specific knowledge, that the fight on March 8th was a result of a racial issue between the female students that was caused by the HSD belief in the importance of diversity, equity and inclusion for all? What community do you represent as the Missouri Attorney General? Do you represent all citizens of Missouri? Or only the white citizens?”

Transgender care

Bailey’s demands for Missouri hospitals to turn over patient information relating to transgender care triggered two lawsuits last year, one in December by Washington University and the other by Children’s Mercy Hospital in Kansas City. The hospitals maintain that Bailey cannot use Missouri’s consumer protection laws to get private information about transgender patients.

Bailey filed a countersuit claiming that the Biden administration is interfering to block Washington University from turning over the records he has subpoenaed. “We will not let Joe Biden and his federal bureaucrats interfere with our investigation into the pediatric transgender clinic,” Bailey said in a statement. “These documents are critical to exposing that children were subject to irreversible, life-altering procedures without full and informed parental consent.”

A year ago, Bailey used the state’s consumer protection law to propose an emergency rule restricting both kids’ and adults’ access to gender-affirming care. The ACLU of Missouri filed to stop the rule’s implementation, and a judge granted a temporary injunction. Judge Henry Autrey lectured Divine, Bailey’s top lawyer, for the weakness of the state’s case for moving the case to federal court. 

“You can’t just file something in federal court because you want to be in federal court,” Autrey told Divine, who formerly worked for Sen. Josh Hawley and clerked for U.S. Supreme Court Justice Clarence Thomas. “There is this little thing called jurisdiction.”

Bailey ultimately withdrew the rule after the state’s legislature passed a ban on gender-affirming care for transgender youth. Some conservative Republicans, such as Secretary of State Jay Ashcroft, criticized Bailey for going too far in proposing a rule that would affect the medical care of adults as well as children.

Supreme Court clerks making far-right arguments 

A number of the lawyers making Missouri’s hard-right arguments are among the smartest legal advocates in the country, having served in the prestigious role of clerking for a Supreme Court justice.

The Hawleys clerked for Roberts, Divine for Thomas and Sauer for Antonin Scalia. 

Last month, a California judge recommended that another former Supreme Court clerk, John Eastman, lose his law license for his role in Trump’s legal effort to remain in power. Eastman, who clerked for Thomas, played a key role in a plan for states to send pro-Trump slates of electors to Congress and have then-Vice President Mike Pence block or delay the certification of Joe Biden’s election victory.

Retired Justice Stephen G. Breyer released a new book last month warning that the Supreme Court has taken a wrong turn. Liberal critics considered it an infuriatingly gentle rebuke of the court. But in an interview with the New York Times, Breyer was more outspoken about how the court had failed to foresee the toll of overturning Roe. “Are they really going to allow women to die on the table because they won’t allow an abortion which would save her life? I mean, really, no one would do that. And they wouldn’t do that.”

William H. Freivogel is a former editorial page deputy editor for the St. Louis Post-Dispatch and contributes to St. Louis Public Radio. He is a member of the Missouri Bar and covered the Supreme Court. He is the publisher of Gateway Journalism Review.