“Breyer retire!” The monopoly of the progressive movement in the mainstream media has greatly harmed the understanding of Constitutional principles in our society. The “Breyer retire” craze is fueled by an unhealthy alliance of politics and an ignorance towards one of the essential fabrics of our Constitutional system.

While Justice Stephen Breyer, a President Bill Clinton appointee, and noted progressive jurist should not be confused for a conservative jurist on the bench, he has had a judicial career worthy of respect and distinction. The talking heads in the media and legal circles now are pressing for his retirement and fear a redux of the “Ginsburg Mistake”. The mistake commonly referred to is the fact that Justice Ruth Bader Ginsburg chose not to retire under former President Barack Obama and instead battled many health issues throughout the administration of President Trump which led to Trump’s appointment of Amy Comey Barrett upon her death shortly before the November 2020 election.

Supreme Court justices have life tenure and while some may disagree, there is a compelling argument that this is one of the most essential components within our system of government. Supreme Court justices, therefore, have the power whenever they deem fit to retire or may opt to serve their lifetime in office. The Constitution simply places the requirement of “good behavior” as attached to their tenure. This is a necessary defense mechanism to preserve our governmental system despite the many ideas and movements that permeate society and threaten its intrinsic operation. It puts forth an effective system of gradualism and counter-weight to those tides in order to preserve Constitutional principles in our nation.

The recent movement to entice Justice Breyer to step down is rooted in the deep push for a monopoly of social egalitarianism that has dangerously come to pass in our nation, but has no basis in authentic Constitutional principles. Those in the progressive legal academy in collaboration with the media prioritize preserving abortion rights and the recognition of same-sex marriage and its related LGBT issues at all costs. The mere suggestion of a conservative president raises alarms that these rights will be threatened with the appointment of more justices that adhere to a constitutionalist philosophy.

In fairness, we present a defense here of the Supreme Court as an institution while acknowledging that it has played a role contributing to this politicization moment by having chosen to adjudicate the abortion, marriage and lifestyle issues that are best left to local governance. Substantive commentary on these individual issues can be found in prior articles as here we are simply focusing on the concept of how society should view the Supreme Court.

Next term the Supreme Court will be deciding a potential new blockbuster case on abortion rights. This case has already begun to make waves on both sides of the aisle and it is sadly such a divisive topic in our nation today. At present, the Supreme Court stands at a 6-3 majority of justices appointed by Republican presidents. While it is fair to say that the Supreme Court has grown gradually more conservative on several issues including religious freedom and Second Amendment, it has also shown the effective mechanism of our Constitutional system in the process.

For example, the constitutionalist vision that the late President George H.W. Bush had when he made the appointment of Justice Thomas nearly three decades ago has carried over to today with every opinion Justice Thomas pens that stems from his comprehensive understanding of Constitutionalist principles. On the progressive side, President Clinton’s view of Constitutional interpretation has continued to advance to the modern day in Justice Breyer’s opinions on issues such as administrative law and the role of government agencies among other progressive interests. While it is not fair to say that the President should be ordering opinions on certain issues, it is perfectly reasonable that the President would have the respect for the jurist to contemplate independently while appreciating the jurist holds certain philosophies over others. It is the beauty of our system that an administration may be out of power, but their philosophy on constitutional interpretation will live on even if an administration of another prioritized philosophy is governing. It strikes a balance in the structure of our nation’s system of government.

When we as a society infringe on the Constitutional framework and in the process challenge the independence of the institution of the Supreme Court based on an ignorant “anti-trust” principle of our Constitutional structure, it will only lead to unrest.

The actions to forcibly suggest Justice Breyer retires are unfair to him and to the structure of the Supreme Court. It sets a precedent to cave to the masses and demeans the Supreme Court to nothing more than a political theater, bowing to the whims of a society that gleefully ignores the fabric and intent of our Constitutional system. It is safe assumption that Justice Breyer would come out on the side of any replacement President Joe Biden would put forth on the issue of abortion. This does not mean, however, that his discretion as dictated to him by right under the Constitution to make a decision as to the length of his tenure on the Supreme Court should be forcibly abdicated.

The common politics counter-argument of the media and activist talking heads considers the actions Senator Mitch McConnell took to not take up the confirmation process of a jurist to replace Justice Antonin Scalia during the end of President Obama’s term. They willfully ignore the provision of the Constitution that provides the senate with “advice and consent” power over addressing Supreme Court vacancies. Senator McConnell made clear to President Obama to not make an appointment as the election neared, while that decision may be the subject of debate, it does not change the fact that the Constitutional right existed to make that decision. President Obama then in fact made his decision to name now Attorney General Merrick Garland as the appointment. Both branches exerted their rights- the President appointing and the senate expressing its dissatisfaction and not taking action. The confirmation was not processed as it did not gain consent from the senate as the President was duly advised.

Our society must learn to appreciate the structure of the Constitution and the purpose it serves. We need to hold ourselves to a higher standard than ignorance derived from a disordered drive to codify social egalitarian principles and thus contribute to the political unrest of our nation. The Justice Breyer saga is but one example of the willingness to disregard our structure and reduce the judiciary to nothing more than an extension of societal “anti-trust” and destructive societal sentiment. It is about time we demanded better.

The U.S. Supreme Court recently issued a unanimous opinion in the matter, Fulton v. Philadelphia that pitted the city of Philadelphia against a Catholic foster care agency over the agency’s position to not certify unmarried and same-sex couples for foster care services as it would not have been in accordance with the teachings of the Catholic Church. The city of Philadelphia then proceeded to discontinue referrals to the agency and demanded that a new foster care contract with the city, include certification of these couples. In a 9-0 decision, the Supreme Court sided with the Catholic foster care agency and ruled that the basis in which the city asserted its position stemmed from a contractual non-discrimination requirement of the Fair Practices Ordinance. The construct of the ordinance as applied to the Catholic adoption agency violated the Free Exercise Clause of the First Amendment.

Roberts Majority Opinion

In his majority opinion as we predicted in December, Chief Justice Roberts declined to contemplate overturning a hotly debated precedent case, Employment Division v. Smith that held neutral laws of general applicability do not violate the Free Exercise Clause. Here, Chief Justice Roberts did not find it necessary to revisit Smith because the ordinance was not a neutral law of general applicability as it contained in the ordinance a clause stating that it was the discretion of the commissioner to allow for exemptions. By allowing for that mechanism, the very nature of the ordinance was then deemed to not be generally applicable because it considered the existence of potential undefined exemptions. The commissioner had declined to incorporate religious interests under the exemption. Roberts found that where such a system of individual exemptions exist, the government may not refuse to extend that system to cases of religious hardship without a compelling reason. Roberts than elaborates that no compelling reason existed and was careful to point out that as applied to the Catholic agency, the city’s actions were unconstitutional. He also highlighted that the Catholic agency never sought to compel its beliefs on other agencies, but rather simply sought to practice the tenants of its own faith while servicing the children of Philadelphia.

While Chief Justice Roberts took a narrow approach to the issue, one could appreciate his contesting of the Philadelphia ordinance on its face and making clear that it was not bound in any form of neutrality or general application. One could argue that the steps the city took by not granting the exemption despite it having the discretion to could have been approached from a place of animus. It challenges the very premise of the facade in some anti-discrimination laws that they are meant to consider the interests of traditional protective classes.

The Catholic church’s position on several hot button issues in society today is not clouded in mystery it is very much understood and sadly often attacked by various factions. Philadelphia was well aware of this yet still chose to burden the free exercise of the agency’s faith centered mission. Furthermore, the facts of this matter did not present any situation where in fact a same-sex couple had sought certification from the Catholic agency. There are many agencies with similar services offered in Philadelphia that these couples have likely approached for foster care services. This matter could be considered as a targeted attack on faith interests and it was reassuring that the decision in favor of the Catholic agency was unanimous.

Alito Concurrence

It should also be noted that with regards to the highly debated topic of the status of the Smith matter, Justice Alito penned a heated and lengthily concurrence that disagreed with the Court’s decision to not take up addressing its status as active precedent. He discussed the history and tradition of the Catholic church in servicing adoption and foster care entities. He then addressed the majority opinion’s reasoning and warns that a broader ruling was required because the city has room to evade the narrow ruling if it revokes the exemption power clause from its ordinance. He focuses on the Smith precedent as incompatible with the Free Exercise Clause and spends a significant amount of time discussing the original understanding of the Free Exercise Clause during the early days of the nation with further examples of Supreme Court case law that call into question the premise of Smith.

Justice Alito would likely vote to overturn Smith and replace the core of that opinion with a form of the prior standard that was present in Sherbert v. Verner that stated when adjudicating the Free Exercise cases the Court must assess whether a law that imposes a substantial burden on the exercise of religion was narrowly tailored to serve a compelling government interest. It can be argued that this provides a higher standard than Smith’s neutral law of general applicability framework when assessing whether a government’s actions burden the free exercise of religion.

He also discussed Wisconsin v. Yoder in which the Court in 1972, pre-dating Smith, found that a state law compelling education to age 16 violated the free exercise rights of Amish parents. The state, while having a strong interest in compulsory education did not show with particularity how it would be adversely affected with granting the Amish parents an exemption for them to follow their teachings and have their children leave school following 8^th grade. In the present facts, this reasoning could have been applied if it considered that there is a strong interest in anti-discrimination and placing children in foster homes. Here, however, the religious entity did not compromise this mission and take steps to restrict the care of the foster children in the community. It did not offer a form of certification based on its faith beliefs, but at no point did it discourage certification from other foster home services in the local community that allowed for unwed couples or same-sex couples to proceed in the foster care process. The greater government interest would not have been compromised with a religious exemption. The anti-discrimination principle as related to foster care was sustained and the city would have been unable to show a particularized harm based on a basic exemption to a religious provider.

A Free Exercise of Tension

With the community having access to this care, the religious entity would not have to be concerned with a law burdening its Free Exercise when relying on the Sherbert standard. While this standard would seemingly work under these facts, it does not however, put to rest counter-arguments. If there was a situation where there were no secular foster care agencies in the community and only a Catholic agency, this could prove to be worrisome under the Sherbert standard. Would then the government’s greater interest for foster care prevail over the faith interest? It raises complications.

Smith could then be seen as perhaps a workable remedy. It could be argued that in this situation the community law could not in fact be considered a neutral law of general applicability. If there is a Catholic adoption agency acting as the sole foster care agent in the community, an anti-discrimination law passed which included sexual orientation as a protected class would then in fact clearly indicate animus towards a religious entity and any decision to not grant an exemption would further this understanding. A tension, therefore, does exist within the demonstrated methods of Free Exercise interpretation.

Conclusion

The Supreme Court unanimously ruled in favor of the Catholic foster care agency without overturning Smith in the Fulton matter. Chief Justice Roberts made some strong points in the majority opinion focusing on the narrow application of the facts as presented and core of Philadelphia’s actions. Justice Alito also made strong points with assessing other paths to reform the present Free Exercise jurisprudence when looking on a larger scale in his concurrence. One also appreciates his heavy focus on historical context to inform his perspective. Overall, under these facts, the Chief had good arguments that worked in principle here, but Justice Alito’s willingness to return to Sherbert should not be discredited and may prove a stronger basis with ever increasing litigation against faith entities moving forward in society. The Smith framework may prove outdated with the nature of the Constitutional conflicts on the basis of faith that our nation currently faces today, but time will tell as further Free Exercise lines of cases continue to develop.

The United States Supreme Court recently granted certiorari on the case, Dobbs v. Jackson Women’s Health Organization. It will address a Mississippi law that was passed that banned abortions after the 15^th week of pregnancy except in cases of health emergencies or fetal abnormalities. The federal district court invalidated the law shortly after enactment and the Fifth Circuit Court of Appeals upheld the district court’s decision. It maintained that the state had an interest in regulating abortion prior to viability in adherence to the undue burden standard, but a full ban on abortions was not permitted. The Supreme Court will address if the ruling remains intact or if there will be a new standard that will be applied to state abortion regulations moving forward. For any meaningful reform, the Supreme Court will need to address the prevailing undue burden standard articulated in Planned Parenthood v. Casey that assesses the timing of the state’s interests in regulating abortion.

In Roe v. Wade, the Supreme Court ruled a woman has a right to an abortion, thus overturning state laws that prohibited the practice entirely and state laws that had prohibited the practice with exceptions for cases of rape and the life of the woman. The Supreme Court relied on the Due Process Clause of the Fourteenth Amendment as the basis for its reasoning with an emphasis on maintaining the broader right to privacy that was generated in Griswold v. Connecticut. Per the Roe court, a woman had bodily autonomy to decide whether or not to undergo an abortion. The Court also instituted a framework of when the state would have a valid interest in regulating the fetus. The framework was as follows: in the first trimester, the state could not regulate abortions; in the second trimester, the state could reasonably regulate with regards to maternal health and in the third trimester, abortions could be banned by the state except in cases that consider the life and health of the mother.

The last major case that presented a strong challenge to the right to abortion was Planned Parenthood v. Casey. This matter was decided in 1992. This case upheld Roe v. Wade and the constitutional right to abortion. It is well-known for altering the Roe standard by providing that the state can regulate abortions from the point of fetal viability and subsequent as long as an undue burden is not imposed on the woman. The trimester framework from Roe would no longer apply moving forward.

With Justice Amy Barrett on the U.S. Supreme Court, there is now an opportunity to revisit the extent of abortion rights. Justice Clarence Thomas has written in prior opinions about his intent that the Court should re-examine the Roe precedent. As medical science has progressed, even those not holding a persuasive faith tradition should consider the activity of the fetus in the womb. If the Supreme Court decided to allow further opportunities for the state to regulate abortion, it could begin the process of making productive reforms and move towards restoring it to its pre-Roe status as a primarily state regulated practice.

It is plausible to consider that the question of abortion itself should never have been a matter considered by the U.S. Supreme Court. Much of the issues that are common concerns for the pro-choice movement such as in cases of rape and the health of the mother were addressed in state laws prior to Roe. While one could argue that abortion itself should not be recognized in any form per the laws of this nation as it denies personhood and the existence of a separate biological life distinct in DNA, several states did take the middle ground with carving exceptions. In either path, democracy was permitted to resolve the issue and the degree of divisiveness, willful ignorance and misinformation was not as dominating as today. This issue defines Supreme Court nomination hearings, fundraising efforts of politicians and it has also become very corporatized when campaign donations and profits generated from samples for scientific testing are also considered. It has forever tarnished our institutions and has permitted the government to draw itself into conflict with religious conscience rights.

With the current trajectory of the Supreme Court, however, it is doubtful that the Dobbs v. Jackson Women’s Health Organization opinion will be wide-ranging and broad. The Roberts court, while having a few landmark decisions, has tended to approach controversial issues with an incremental approach. There are also difficulties posed in the present political climate as court packing demands by the radical left have resounded.

Overall, it is possible that the Supreme Court will uphold the Mississippi law, but carefully narrow it so as to not generate further controversy with a broader approach. A decision reforming the timeframe and degree of the state interest in life based on the new developments in science, however, would be welcome progress with the potential to further expand into the future as heartbeat bill litigation starts to appear in courts. We will continue to monitor this litigation in the coming year with oral arguments in Dobbs set to begin in October and likely a full decision rendered by the Supreme Court in June 2022.

Today, our society faces challenges. Many divisive issues have taken the forefront of the national debate including economic policy, the role of government and culture war issues. In the twenty-first century, the American people have increasingly relied upon social media as their news source. It has its positives and negatives. It is much easier to access information, however, it takes away from the initiative to seek out further information and challenge one’s self with substantive truths. The role of the education system must bridge this gap, but sadly it continues to fall short. The rhetoric of informed debate, no matter if you are on the right or left helps grow the intellect of the nation in a manner to prioritize matters of reason over emotional “cancel” initiatives that ignore comprehensive dialogue. The conclusion and outcome driven agenda conveniently skip over the reasoning process that is critical to the development of sound intellect and exchange of knowledge. As a result, we have a divided society filled with misinformation guiding masses behind hollow false premises rich in click bait but light on informed truth.

           Institutions of higher learning have largely abdicated their responsibility to adequately educate the young minds that will serve as the future. It begs one to wonder- will the future be served with reasonable interests and comprehensive dialogue to bridge differences or continue on this emotional path that leaves a fiery path of ruin, an intellectual crisis? This issue has gripped the entire nation. In recent years, speakers have been cancelled at university campuses for perceived societal injustices that are politically incorrect and facilitate dialogue on major issues. Professors have been removed from their positions for holding views that critically assess historical interpretations of the pre-origin and origin of this nation. There is not a sustained appetite for academic freedom and a true marketplace of ideas.

            A recent example has recently occurred in New York at St. John’s University. Students had sought to organize a Turning Point USA Chapter on campus, but have been obstructed in the recognition process by the campus student government. The decision against enactment was based in part on debatable media rhetoric that mercilessly attacked major national Turning Point USA figure Charlie Kirk and inaccurate allegations that members of Turning Point were part of the January 6 riot at the capitol. Sentiment seeking to justify the decision was based on alleged opportunities for division on campus on heated issues that Turning Point allegedly promotes. Per the Turning Point mission statement, its goal is to “educate students about the importance of fiscal responsibility, free markets and limited government.”[1] This is not a militant organization nor should be classified as one. Relying on resources from bias left-wing articles as support for a misguided student government decision, while at the same time incorporating defamatory and inaccurate language about one of Turning Point’s major national leaders is wholly unacceptable.

            The students at St. John’s are just seeking for their voice to be recognized on campus and for an opportunity to promote their message in a respectful way. Currently, on campus St. John’s recognizes the Roosevelt Institute, an organization that promotes left leaning values and principles. While it would not be acceptable if right leaning student government leaders sought to “cancel” or obstruct recognition of this student group based on its perceived disagreeable and controversial views, the same courtesy should be shown in the present situation by left leaning student government leaders and their approach to the recognition process of Turning Point USA at St. John’s University.

           The university setting should be a place of a respectful debate and dialogue on major issues that will help shape the compass of students as they approach their professional lives. In the professional landscape, no matter what career one pursues they are bound to encounter those of different philosophies. Respect for differing viewpoints in the university setting is preparation for this critical step in professional and personal growth.

          President Ronald Reagan visited St. John’s University on March 25, 1985 and gave an address to the students. One quote really stood out and we would be wise to consider it today. President Reagan gracefully articulated that “we’re a people who’ve discovered anew what a deep foundation freedom is and how we cannot live without drinking deep from it.”[2]

Let us not leave our students and our future leaders thirsty.

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[1] https://www.tpusa.com/ourmission

[2] https://www.reaganlibrary.gov/archives/speech/remarks-students-and-faculty-st-johns-university-new-york-new-york

The New Jersey Reproductive Freedom Act is a proposed law that would strengthen the right to abortion in New Jersey and improve access to the practice by codifying the elimination of various bureaucratic procedural hurdles. It would, however, have a detrimental impact to religious entities and interests with compromising conscience protections. This piece will cover some aspects of the bill that standout and should be cause for further critical reflection.

We begin with New Jersey state and federal case law that has served as a precursor for this proposed legislation.

Case Law

State

In Right to Choose v. Byrne, 91 N.J. 287 (1982) the New Jersey Supreme Court considered the question of the validity under the New Jersey Constitution of a statute that prohibits Medicaid funding for abortions “except where it is medically indicated to be necessary to preserve the woman’s life.” N.J.S.A. 30:4D-6.1 (1981). Medicaid paid for the costs of all childbirths and abortions to save the life of the mother but, because of the statutory prohibition, it did not pay for those therapeutic abortions needed to protect the health of the mother or for elective, nontherapeutic abortions. The court would, however, eliminate this barrier and ruled: “N.J.S.A. 30:4D-6.1 violates equal protection of the laws under the New Jersey Constitution by limiting funds to abortions medically necessary to preserve the mother’s life. We construe that statute to require Medicaid funding of all abortions that are medically necessary to preserve the mother’s life or health.”

In Planned Parenthood of Central New Jersey v. Farmer, 165 N.J. 609 (2000), the plaintiffs challenged a state statute that conditioned a minor’s right to obtain an abortion on parental notification unless a judicial waiver is obtained, but had imposed no corresponding limitation on a minor who sought other medical and surgical care related to pregnancy and her child. N.J.S.A. 9:17A-1;  §§ 1.2 et seq.  The New Jersey Supreme Court ruled that the classification created by the Legislature burdens the “fundamental right of a woman to control her body and destiny,” Right to Choose v. Byrne, 91 N.J. 287, 306, 450 A.2d 925 (1982), without adequate justification and cannot be sustained against plaintiffs’ equal protection challenge.

An unmarried, pregnant minor was now able to give consent to hospital, medical, and surgical care related to her pregnancy or child, without the need to notify her parents.

Federal

In Planned Parenthood of Central New Jersey v.  Farmer, 220 F.3d 127 (3rd Cir. 2000), the Third Circuit reaffirmed the ruling of the lower New Jersey federal district court in Planned Parenthood of Cent. N.J. v. Verniero, 41 F.Supp.2d 478, 504 (D.N.J.1998) which invalidated the New Jersey Partial-Birth Abortion Ban Act of 1997.

New Jersey’s partial-birth abortion statute prohibited “an abortion in which the person performing the abortion partially vaginally delivers a living human fetus before killing the fetus and completing the delivery.”  N.J.S.A. § 2A:65A-6(e).   The Act purported to define the phrase “vaginally delivers a living human fetus before killing the fetus” to mean “deliberately and intentionally delivering into the vagina a living fetus, or a substantial portion thereof, for the purpose of performing a procedure the physician or other health care professional knows will kill the fetus, and the subsequent killing of the human fetus.”  N.J .S.A. § 2A:65A-6(f). The Act provided a single exception whereby this otherwise banned procedure may be used:  namely, when the procedure “is necessary to save the life of the mother whose life is endangered by a physical disorder, illness or injury.”  N.J.S.A. § 2A:65A-6(b). The Third Circuit deemed it unconstitutional due to it being (1) void for vagueness; and (2) placing an undue burden on a woman’s constitutional right to obtain an abortion.

These cases are very important as it now relates to the proposed New Jersey Reproductive Freedom Act. The court decisions to invalidate the Partial-Birth Abortion Ban Act of 1997 specifically with regards to parental consent and the vaginal time frame of banning an abortion would now be codified. This would provide a bulwark in the statutory law governing abortion in this state despite the outcome of a potential future U.S. Supreme Court decision that could return the issue of abortion to the states as was the practice pre-Roe and that could encourage further fetal protections.

Some New Jersey Reproductive Freedom Act Points

Some other major points under the New Jersey Reproductive Freedom Act are provided as follows:

“The State: 

(1)   explicitly guarantee, to every individual, the fundamental right to reproductive autonomy, which includes the right to contraception, the right to abortion, and the right to carry a pregnancy to term;

(2)   enable all qualified health care professionals to provide abortion services in the State;

(3)   require all insurance carriers to provide coverage both for abortion care and for a long-term supply of contraceptives”

…..

The bill also makes clear that a fertilized egg, embryo, or fetus shall not have independent rights under the laws of the state of New Jersey. The bill would also amend the existing law pertaining to autopsies and medicolegal death investigations to eliminate the requirement that a medicolegal death investigation be conducted in a case where a fetal death occurs without medical attendance. A final major component of the bill, is potentially broadening the nature of the medical provider that would be legally permitted to perform abortions which raises similarities with the New York abortion law passed a couple years ago.

NJ Reproductive Freedom Act Imposes Burden on Religious Interests

The NJ Reproductive Freedom Act imposed a significant burden on faith interests.

Per the text of the NJ Reproductive Freedom Act with clarifications:

A religious employer may request, and a hospital service corporation, pre-paid prescription service organization, individual health insurer, carrier, group health insured, health maintenance organization (*we will call X) shall grant, an exclusion under the contract for the coverage required by this section if the required coverage conflicts with the religious employer’s bona fide religious beliefs and practices.  A religious employer that obtains such an exclusion shall provide written notice thereof to subscribers and prospective subscribers, and “X” shall provide notice to the Commissioner of Banking and Insurance in such form and manner as may be determined by the commissioner.  The provisions of this subsection shall not be construed as authorizing “X” to exclude coverage for care that is necessary to preserve the life or health of a subscriber.  

In sum, a religious employer may request an exclusion, BUT, in requesting exclusion it is facilitating coverage with notice to the subscriber, potential subscriber and Commissioner of Banking and Insurance. This notice would then allow for some form of the contraceptive/abortifacient service requested by the subscriber to be provided even if not directly from the religious employer. The concepts of notice and facilitation themselves arguably can compromise religious conscience decisions as presented here.

Furthermore, the clause regarding “preserving the life or health of the subscriber” also raises issues. The “life or health of the subscriber” is not adequately defined. One must consider who will in fact be determining that “preservation of life” concept and how many medical professionals must agree that these steps are “necessary”.  This clause may be ripe for abuse. One must also consider that some faiths do not hold in their tenants any exception for an abortive procedure. The conscience and religious interests conflict with the law and are never fully resolved. In sum, there are not adequate facilitation protection interests in this bill. Faith entities would still be involved through notice with the coverage of a contraceptive/abortive procedure with or without an interest concerning the life of the mother.

How the U.S. Supreme Court has Considered Contraceptive and Abortifacient Challenges

The U.S. Supreme Court has dealt with related issues in the Burwell vs. Hobby Lobby matter and the Litter Sisters of the Poor litigation, in both of those situations stemming from the conflicts caused by the Affordable Care Act (ACA).

In sum, Hobby Lobby concerned a challenge by closely-held corporations that objected to providing some forms of abortifacient and contraceptive coverage to employees on the basis of religious beliefs. The court found that there was a least restrictive means of implementing the government’s interest in offering the coverage that would not substantially burden religion. The court applied its reasoning under the Religious Freedom and Restoration Act (RFRA) and the mandate to provide the contraceptive coverage as provided under the ACA was invalidated as to closely held businesses expressing their religious objections.

In sum, the Little Sisters of the Poor litigation has also dealt with fallout from the ACA. In this matter, the seminal issue was the requirement under the ACA of religious non-profits to complete a form, thus offering notice to the federal government of their intention to not provide contraceptive coverage and requesting an exemption. The federal government’s grant of the exemption, however, would enable it to find another provider for coverage even if not specifically the Little Sisters of the Poor. The Little Sisters of the Poor believed that they, therefore were part of the facilitation process that would be against their beliefs.

The Supreme Court has addressed this matter in a procedural context by focusing on legal flexibility of agencies in issuing regulations on the substance of wider or more narrow exemptions. Factually, the case is most similar to the issues potentially stemming from the New Jersey Reproductive Freedom Act, however, the Supreme Court has largely to this point not offered a definitive ruling on the core of the issue this matter presents. If the New Jersey Reproductive Freedom Act becomes law, it would be a good opportunity for suit to be brought in the hopes the Supreme Court would then issue more clarity. Defining the nature of facilitation and how bound up in substance it is to burden enumerated First Amendment Free Exercise protections would go a long way towards settling an understanding of this conflict.

Conclusion

The New Jersey Reproductive Freedom Act would codify the trend of controversial court decisions involving the state of New Jersey both at the state and federal level. One could argue that the substance of these decisions was not the soundest legal framework especially as we have come to understand more about the science of fetal life in the womb. This bill should invite debate and our leaders would be wise to listen to the arguments because on the surface it appears as a hasty response to the potential of the U.S. Supreme Court returning more of the issue of abortion to states (pre-Roe) or at the very least issuing a ruling on greater fetal protections. The New Jersey Reproductive Freedom Act does not address comprehensive scientific advancements that have surfaced since the time Roe v. Wade was decided. In addition, it presents the opportunity for further conflicts with faith entities as they wish to exercise their enumerated right to Free Exercise.

The stories of the late U.S. Senator Joseph McCarthy and the Red Scare have been widely discussed and often panned by several in historical commentary. They center around the growing communist influence within the confines of the U.S. government and several pillars of American life in the late 1930s through the 1940s and culminating with the senate hearings of the early 1950s that mainstreamed this concern. Often McCarthy is described as fanatical and way out of line for his accusations and allegations of suspected perpetrators. Some of his frequent targets included those in various agencies in government; the military and American social life. After the strain from the hearings Senator McCarthy succumbed at the young age of 48 in 1957. He battled a variety of medical problems, some that were aggravated by the stress and anxiety of the hearings.

In this piece, however, we offer a brief reconsideration of McCarthy and the anti-communist crusade that he stood for based on providing some empirical facts researched from first-hand accounts such as the work McCarthy[1] by Roy Cohn (who served as chief counsel to McCarthy during the hearings) and The Autobiography of Roy Cohn[2] by Sidney Zion. This reflection will add to the commentary and debate on the McCarthy legacy and hopefully will encourage the reader to reflect on contextual issues that are often ignored in modern discussion. We will largely focus here on a few elements of the Army-McCarthy hearings, a major episode that contributed to the present understanding of his legacy.

A main criticism of McCarthy has been his combative and bombastic style during the Army-McCarthy hearings in which he communicated his accusations. It unsettled several members of Congress and the media were eager to assist in clouding his image by presenting him in the light of a relentless zealot that sought to take no prisoners. In the modern day, we have seen similar criticisms appear when considering the legacy of former President Donald Trump. The substance is often ignored or diluted by a harsh reaction to communicative style. McCarthyism has now become a punchline word in the dictionary and today just uttering the name Trump has frequently become synonymous with the rising “cancel culture”.

In regards to McCarthy, however, one must first ask the question- how did this begin? A rising popular senator from Wisconsin who was very close with the Kennedy clan had defeated a popular incumbent and later decided to stake his career on this risky and controversial initiative. In McCarthy, his chief counsel to the hearings, Roy Cohn who ironically would later advise a young Donald Trump, stated it all began with an FBI contingent concerned about the national security of the nation met with Senator McCarthy and provided him with information on communist operatives working in the U.S. that had been vetted and investigated by the FBI in the 1940s. J. Edgar Hoover, longtime head of the FBI had begun this initiative at the direction of President Franklin D. Roosevelt. This FBI contingent, however, was unsatisfied at the persistent stalling and often minimizing the importance of addressing the issue, and sought to find a leader in Washington willing to mainstream and shed light on the problems. Prior to McCarthy, other senators had chosen to not seriously address the situation out of fear for their political careers. It took some convincing as McCarthy did not begin his senate career focusing on the issue. Once he thoroughly found himself studying and immersing himself into the intelligence, however, he decided to proceed. As chair of the Senate Permanent Subcommittee on Investigations, he was in a position to use resources and thoroughly conduct an investigation into this issue. Little did he know the firestorm that would be set off that would draw him into conflict with both sides of the aisle and a Republican administration headed by President Dwight D. Eisenhower.

A Few Points to Consider

In McCarthy’s crusade against communist infiltration, several substantive issues were brought to light. This episode also showcased the efforts of the Eisenhower administration, its allies and the media to release relentless attacks on McCarthy and present him as so far outside the mainstream with his goals that he should not be respected. The following are just a few of the many major areas in which McCarthy was drawn into conflict for seeking transparency for situations in which he believed the United States was at risk.

G. David Schine

G. David Schine was a member of McCarthy team along with Roy Cohn that worked to tackle the growing communist threat. One of his major missions was accompanying Roy Cohn overseas to Europe to investigate U.S state-sponsored libraries and education resources that had promoted communism. This was clearly an interest contrary to the U.S.’s formal anti-communism foreign policy. The media had dogged and sensationalized the work of Cohn and Schine throughout this trip in which they found a large degree of evidence. Cohn provides a comprehensive first-hand account in McCarthy.

Schine proved to be a strong asset to the team and also became a good friend of Cohn, but unfortunately was caught in the middle of the heated conflict between the McCarthy team and the Army during the Army-McCarthy hearings. As Cohn categorized it in his autobiography, Schine would essentially become a “hostage” of the forces acting against McCarthy. For his great work on the McCarthy team, Cohn as Chief Counsel to McCarthy recommended him for a commission in the Army after he was drafted in 1953. It was typical practice that politicians would recommend individuals for this designation from time to time in gratitude for the work they have performed in governmental capacities. As McCarthy and Cohn were putting pressure on the Army to challenge it into providing some insight into intelligence failures and infiltrations in their ranks most notably through the Irving Peress affair which will be discussed later, the Army with the support of the Eisenhower administration and the media detracted with essentially manufacturing the Schine scandal. The Army had sought to pressure McCarthy through Cohn based on allegations of improper pressure exerted for Schine’s commission by Cohn. The relentless attacks during the Schine affair on McCarthy and Cohn were truly a dark point in American history.  Allegations of corruption for seemingly a routine act by a politician were baseless, but detracted the attention from the major issue of the Army’s failure for effective oversight to minimize the communist threat.

Army Failure- The Irving Peress Affair

The Irving Peress affair was one of the major areas of McCarthy’s focus when investigating the alleged communist infiltration in the Army. It centered around Irving Peress, a dentist believed to be a member of the communist movement and who helped facilitate its cause as verified by members of the U.S. intelligence community. Pursuant to policy, Peress was eligible for automatic promotion as a medical professional but was under investigation based on his application responses in which he plead the 5^th Amendment in regards to inquires related to communist and subversion activities. Nevertheless, he was still granted the promotion, thus creating a quandary and further reports and complaints were submitted about his potential communist activities. The Army then resolved to grant him an honorable discharge as a means to remedy the situation, however, McCarthy demanded accountability at the hearings on this bureaucratic failure and sought to assess if this was a systematic issue that required the Army to conduct serious reforms. It came to light later that the thorough investigation conducted by McCarthy and verified by intelligence on Peress was not a red herring, but in fact proved he was connected with communist activity. The Army had very strong allies in the White House and media and had pushed back on McCarthy’s crusade. The Schine affair was part of a wider counter-initiative to discredit McCarthy and Cohn. McCarthy would continue to raise the issue of other security breaches within the Army, but would find himself facing powerful establishment forces that sought to shield these issues from the public.

Ironically, General Ralph W. Zwicker had notified McCarthy of the Peress problem which spurred the investigation that revealed errors on the part of the Army. When pressed on these issues later during the hearings, Zwicker succumbed to outside pressure and refused to commit to this initial position. McCarthy was forced into a difficult position and could not burn his source out of fear that other sources would soon follow, thus compromising further intelligence gathering. More examples of blatant corruption are discussed in Roy Cohn’s works.

Annie Lee Moss

Annie Lee Moss held a position in the government working with Pentagon coding and suspiciously had been promoted from an unrelated cafeteria position. An undercover FBI agent testified to Moss’ communist membership in the 1940s and involvement with communist initiatives before Congress in 1954. Moss had denied these claims. The FBI testimony was corroborated by another witness and there was also a Department of Justice file on her. Politicians and the media painted Roy Cohn as a bully for pressing forward on behalf of McCarthy regarding this investigation during the Congressional testimony.

There were also claims that the FBI agent had perjured herself when testifying as to Moss’ activities. Some politicians even offered employment to Moss if she was to be reassigned or removed from her present position based on her alleged “mistreatment” during the hearings. In 1958, the Subversive Activities Control Board, a committee tasked with investigating communist infiltration and compelling the American Communist Party to register with the government, formally cleared the FBI agent of any perjury allegation as relating to the Moss matter. The board had in its possession considerable documentation supporting the testimony. McCarthy died in 1957 and would not live to see the vindication bear fruit.

Final Thoughts-A Legacy Reconsidered

McCarthy was ultimately censured by the Senate as a result of the fallout from his anti-communist crusade and hearings. His legacy has been sadly remembered in the history books as a sensationalist that fanatically alleged communist infiltration in the U.S. government and other areas of American life. This is an unfair verdict that has persisted for decades. As evidence has developed over time, however, we owe it to ourselves as Americans to revisit his legacy and respect his initiative to bring greater transparency to government. There was evidence of communist infiltration that he chose to bring to light and as provided in first-hand accounts, he was supported by the intelligence community. This prompted him to first tackle the issue.

While he may have exaggerated in some contexts and was a brash communicator, there were indeed several problems with infiltration in the U.S. government during WWII and the post-WWII era. If able, it is highly recommended to pick up copies of McCarthy by Roy Cohn and The Autobiography of Roy Cohn to inform from a first-hand perspective on the backstory of this often misunderstood issue in modern American history.

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[1] Cohn, Roy. McCarthy. New American Library, Inc., 1968.

[2] Zion, Sidney. The Autobiography of Roy Cohn. Lyle Stuart, Inc. 1988.

By: Chris Gomez

The 1920s were a turbulent period of economic growth, excess and then ultimately, calamity. In our history books, the severity of the Great Depression is typically laid at the feet of President Herbert Hoover. Is this scarring accusation correct or a misnomer? We will discuss Hoover’s legacy.

Hoover began his career in politics with his assignment to head the Food Administration during World War I under President Woodrow Wilson. This experience had a profound effect on him and did influence his personal views on humanitarian issues which would later gain him acclaim. He became sympathetic to the idea of the state as an instrument to cure poverty and suffering, but did not disregard his view that a free market system centered on individualism and less government intervention was optimal. Hoover’s tenure as Commerce Secretary began in 1920 under President Harding and later Coolidge. This began a period of overall success for the American economy. This success, however, was not to last as we consider some of the unsound fiscal policy that became prevalent throughout the world. To understand President Hoover and his ensuing policy priorities we must examine the pre-existing economic conditions globally and domestically.

When considering the global conditions, prior to World War I, many countries operated on the gold standard where paper currency was linked to and could be exchanged for an amount of gold. The main benefit of this system was that there were checks on inflation due to the limited ability to expand the supply of money. In order to fund the war effort, several of the countries, with the exception of the U.S., temporarily left the gold standard and let their currencies trade without backing, also known as fiat currency. The ensuing period of the 1920’s saw an attempt by Britain to return to the gold standard at a price economically impossible due to the wartime inflation. The idea was to go back to the legitimacy of the gold standard while forsaking the rule of convertibility and breaking the checks on inflation. Britain was attempting to reassert itself as the number one global superpower by enjoying the immediate economic benefits of inflation while pushing off the long term effects onto other countries. Several central banks of the nations were part of this collaborative effort. This, along with several other issues such as Germany being unable to independently pay its excessive war reparations created economic problems in Europe that would create a cycle of unpaid debt that would also impact the U.S. The global economic picture was beginning to appear bleak.

In terms of the domestic context, as Commerce Secretary, Hoover helped promote the deregulation, low tax rates and overall economic freedoms prevalent during the Harding and Coolidge administrations. He also warned of excessive stock speculation in the domestic U.S. and encouraged sound, but not overzealous government policy to monitor the situation. This was a good concept, but unfortunately it was ignored by others in the respective administrations. These administrations failed to adequately address the growing problems that were beginning to take place in the U.S. They did not adequately consider fair regulation of the market system and this would later become a major area of concern. Once Hoover assumed the Presidency, the stock market crash became a reality. The agricultural market in the U.S. was suffering and the years of unregulated stock speculation caught up with the U.S. economy.

In defense of Hoover, he was simply a man in the wrong place at the wrong time. Major global culprits behind the Depression were central banks that helped facilitate unsound European economic policy in addition to overzealous nations placing unrealistic reparation expectations on Germany following World War I. Debts were not repaid and this created an unhealthy economic chain reaction. These factors greatly unsettled the global economic climate. Domestically, there was not fair monitoring of stock speculation during the decade leading up to the crash and the agricultural sector was suffering. In the early stages of Hoover’s presidency, he was greeted with the stock market crash and arguably did not have enough time to fully apply his policy agenda to address it. To claim that he was the cause of the Great Depression, is wholly inaccurate and distorts the historical record. Ironically, as established, in the decade preceding the crash, Hoover was one of the minority voices in two administrations voicing his concern about the direction of the U.S. economy. If his propositions were applied sooner, it may have provided meaningful reforms that may have staved off some of the worst effects of the Great Depression, if not not rebounding from it in a shorter timeframe.

Now let us analyze Hoover’s actions after the crash. Hoover did not create the Depression but a question lingers; did his policies as President make it worse? Overall, the short answer is no they did not, but he was not given enough time to apply all his policy goals which may have shortened its timeframe. Hoover was a man greatly concerned about the effects of overzealous government intervention in the economy believing that it was a gateway toward socialism. Initially, he sought to continue promoting tax cuts as a means to ease the burden on the nation. One of his central focuses was also on state and local governments to work in collaboration with the federal government and private sector to address the economic issues facing the nation. He was adamantly against a central planning big government model to address the issues and post-presidency he would continue to be critical of this philosophy. During his term as he sought to lead the nation out of the Great Depression, he frequently reached out to major business leaders in the private sector and promoted laws that would focus on state centered relief disbursements.

He did, however, sign into law the enactment of the Reconstruction Finance Corporation, a government organization that was meant to invest in railroads, insurance companies and other large businesses as a way to limit the fallout. This was one of his few major legislative initiatives that sought to create a strong federally infused boom to the economy. His (mostly) non-interventionalist policy priorities, however, led to him being ostracized by the people and not re-elected for a second term. After President Franklin D. Roosevelt was elected, the Depression would continue for eight more years leading up to the dawn of WWII. The Roosevelt era would usher in the New Deal and a large scale government infusion into the economy.

Hoover represents an important figure in history. Hoover’s overarching vision was to rebuild the economy with policy encouraging the federal government to serve a collaborative, rather than central role. If he was able to fully integrate this into action, it could be argued that the Great Depression may have been significantly shortened. It could also be argued that Roosevelt’s actions that created a greater expansion of government into economic matters may have slowed the recovery. Hoover saw the New Deal as the road into socialism for the United States and spoke out against the efforts of Roosevelt. Politically ruined as he was, this did not garner much attention but his ideals have survived into today.

Today, the Hoover Institution stands at Hoover’s alma mater Stanford and promotes the ideas of free markets and individualism. It continues to carry out his legacy. Hoover was not a perfect President, yet there is a lot to be gleaned from his policy views and a large sense of unknown regarding what would have become of his policies if they had been given more time to work. His free market goals with an intent to reign in overzealous government intervention were optimal and continue to be considered today. To conclude, Hoover is a misrepresented President and contributed a lot to the intellectual forum that considers sound free market economic policy.

By: James West

Hamilton wrote in Federalist No. 71, “When occasions present themselves, in which the interests of the people are at variance with their inclinations, it is the duty of the persons whom they have appointed to be the guardians of those interests, to withstand the temporary delusion, in order to give them time and opportunity for more cool and sedate reflection.” While many modern progressives would jump at the chance to quote a fictionalized version of Hamilton, it may behoove them to maintain a stricter adherence or understanding of his words.

To say that the fabric of our nation is under attack is not hyperbolic, though the sentiment needs some clarification to make it more well understood. What do I mean by “fabric of the nation?” An answer in two parts: first, Federalism. The delegation of powers and responsibilities between the Federal and State governments in order to ensure a more even-keeled spread of power. This has, of course, been “under attack” – and perhaps even partially destroyed – by the 17^th Amendment and progressive agendas dating back to Wilson. That being said, the philosophical martyr that is Federalism is not the subject of this writing.

The second part of the “fabric of the nation” is the Separation of Powers, the delegation of powers and responsibilities between the three branches of government. It is an unfortunate reality that this foundation of our country’s government has been relegated to, essentially, a footnote in the American education system. We learned the branches, but never why they were separated in the first place, the philosophy behind why they were given the responsibilities they were and the dangers in blurring the lines between them. And so therein lies a major contributing factor as to why our fabric, as described above, is “under attack.” Now, perhaps there is some nefarious agenda to pool power in a massive oligarchical scheme. Perhaps there is a coordinated attack by outside parties to dismantle and disrupt how we operate in order to make us weaker. And, perhaps, there are elected officials and influential policy makers who know the risk of what the say and say it any way, not for a benevolent goal, but for selfish ends. While I am sure there is no shortage of the latter, Hanlon’s Razor presents a simpler explanation: never attribute to malice that which is adequately explained by stupidity. The “attack” is not like a line of missiles aimed at the front line, but more akin to a bear aimed at a screen door when it smells a fresh baked pie. The screen door is collateral damage to the bear’s end, and the bear knows not what it does – only the reward of pie.

With one party heading the Executive Branch, controlling (though less so than a few months ago) the House, and now the Senate, one obstacle poses a threat to the only bastion of objectivity blocking their agenda: The Supreme Court. The knob on the screen door. The pie is the agenda, and the claws and snout with which they rip through the screen like a less-competent Winnie the Pooh is court-packing. To quote a colleague, “I can’t believe we’re actually talking about that in 2020.” And we should not be – court-packing is logically incoherent, futile at best, and antithetical to American principles.

I understand how a “slippery slope” argument could easily become fallacious, and so I hold myself from saying “What are we going to have? A million Supreme Court justices?” But the argument holds that simply adding more justices leads to an incoherent outcome. The problem with court-packing is that it does not solve a problem of “not enough justices,” but solves a problem of “not enough justices that rule how we want, right now.” It is a permanent solution to a temporary problem (“problem” being used loosely). It does not address that there will always inevitably be some sort of inequity within a court – any court – with regard to the judicial philosophy being applied when rendering decisions. The closest mechanism for eradicating that inequity can be found in the Delaware State Constitution, which requires that no more than a “bare majority” – a “one-seat advantage” – may be held by the same political party on any given Delaware court. This mechanism (which made its way to the Supreme Court in December in Carney v. Adams, but was remanded based on standing of the plaintiff) ensures that on a five-member court, for example, there can only be a 3-2 majority. However, therein still lies some inherent inequity in the judicial philosophies of the judges. This inequity is impossible to eradicate, only to swing in the other direction. Like any pendulum, it will inevitably swing back.

The incoherence of idea of court-packing is supplemented by its futility – as stated above, the result of the endeavor would only be temporary until judges die or retire and new judges are appointed and the pendulum swings again (or worse, that precedent for packing is established and each cycle we add more judges – maybe not a million, but 15? 17?). But moreover, court packing assumes that each judge is going to rubber stamp an opinion and will inevitably rule one way every single time. To the unenlightened, this would assumedly be accurate and happen all the time. Fortunately, it’s not true. Justice Breyer often spoke in his debates and discussions with Justice Scalia however the Supreme Court rules unanimously – *unanimously* –  about 40% of the time. That’s 9-0 opinions, 40% of the time. It speaks nothing of the unexpected 8-1’s or 7-2’s, or even 6-3’s. We’ve been led to believe that the Court ruled 5-4 on everything, with a liberal wing and a conservative wing and one or two swings in the middle, and that that’s way it has to be and should be. The narrative now is that “balance” has been thrown off by the Court’s alleged 6-3 inequity, and that must be resolved. The facts dictate this is an exercise in futility. Not only is there no *guarantee* that the Court will rule 6-3 on the issues, but history suggests that they would not. We have seen that in action – Gorsuch, Kavanagh, and Barrett have issued rulings contrary to Trump’s interests. It’s almost as if they believe they are an independent, neutral branch of government.  

Court packing has no pragmatic end – except one. The threat of court packing is more combustible than the packing of the court itself. That much is historically true – see, FDR’s plan to add a justice every time one reached 70 and would not retire (a switch in time that saved nine, indeed). It was antithetical to American principles then, and its antithetical now. There is always going to be an inequity in the court, but in the same way attempts to remove that inequity are futile, the line is fine between a natural inequity over the progression of time and an inequity as a result of one Executive’s undue influence over a completely separate branch of government. Court packing – especially FDR’s plan – is a complete blurring of the separation of powers. It would grant undue influence from one branch over the other, and it would cause the judiciary to be a tool of the Executive to effectuate the rulings that they want. You may ask, “But James – isn’t that already the case? Doesn’t the President appoint who sits on the Supreme Court, and so the influence is Constitutionally based?” Yes and no. The problem is not the *influence* of the President on the Supreme Court. That influence is always there, just as each branch influences the other as they keep themselves in check (or are supposed to). But packing the Court would lead to an *undue* influence, and influence so great that it can only be called control. Many on the Left already view the Supreme Court as a Plan B Legislature, a way to get things done when the pesky Democratic process just will not move quickly enough. That is not what it is, and it is what it can never be. The sanctity of the Court’s objectivity must be maintained.  

And, of course, the undue influence would be shifted once a President from a different party was elected. The pendulum swings. What makes our country our country, or our Union our Union, has been eroded for decades. Mobs burn and torch small businesses, mobs storm the Capitol building, and the trust in our electoral system is at an all time low. Our division is stark, social media is making it worse, and everyone has opinions, but no one has convictions. After years of calling Trump a fascist and a dictator, the same people will be complacent or supportive of power continuing to centralize and acquiesce in the Executive. Court packing now would be just as if not more dangerous than when it was threatened by FDR. It’s a danger to the Separation of Powers and I implore all to think twice, especially Majority Leader Chuck Schumer, before suggesting it further.

Justice Amy Coney Barrett has recently been confirmed to the U.S. Supreme Court and will likely have a profound impact on Constitutional law for years to come. Prior to being confirmed to the Supreme Court, she served as a judge on the 7th Circuit federal court, was a former Notre Dame law professor and former clerk to the late Supreme Court Justice Antonin Scalia.

She was nominated by President Donald Trump to fill the vacancy on the U.S. Supreme Court left by the death of the late Justice Ruth Bader Ginsburg. Justice Ginsburg was a liberal jurisprudential icon and the addition of Justice Barrett will likely shift the court in a more conservative constitutionalist direction. In this piece we reflect on Justice Barrett’s philosophy and consider a couple of her articles that she wrote as a law professor and a key opinion as a federal judge that gathered attention during her confirmation hearings.

The scholarly articles we will focus on are Precedent and Jurisprudential Disagreement and Congressional Originalism. In these works, she clearly demonstrates a respect for precedential value of prior court decisions, but would not shy away from revisiting them when the correct opportunities arose. She also clearly articulates in her works the distinct roles of the judiciary and legislature when assessing Constitutional issues and the distinct responsibilities of both branches when considering the value of precedent.

The decision we will focus on is her dissenting opinion in Kanter v. Barr which drew a lot of attention during her confirmation hearings. Much like her mentor Justice Scalia, in this opinion she provided an assessment that carefully considered the role of history.

Scholarly Articles

In Precedent and Jurisprudential Disagreement[1], Barrett focuses on an assessment of stare decisis (the method of interpretation of adhering to prior precedent) and how judges should properly consider it in cases and its limits. She opens by explaining that Constitutional cases are more subject to a close stare decisis analysis that could lead to re-contemplating precedent than statutory matters where the concentration is interpreting statutes passed by Congress. 

A goal of stare decisis is to resolve jurisprudential disagreements. A decision to overrule precedent, however, does not come lightly. From Judge Barrett’s view, there is a burden on those willing to overturn precedent to make a compelling and comprehensive case justifying the reasoning. An ideal view does not allow for disruptive action in Constitutional law just by a new majority without thoroughly vetted consideration. Reliance interests must be one of the factors in the decision-making process and requires reflection on the present societal and institutional investment in the prior decisions. A judge should strive to obtain a special justification if so persuaded to challenge the precedent. If there is material uncertainty within the decision-making process on whether to overturn the decision, maintaining the present standard would be the optimal position. She acknowledges, however, that a less extreme approach would focus on choosing to not extend precedent rather than overturning it. This is a more narrow and less controversial view. Naturally, the line of law then would no longer present the dominant standard to facilitate the adjudication of the area.

Judge Barrett is skeptical of the argument, however, that if the decision is made to overrule precedent, it affects the Court’s actual legitimacy. She states:

“I tend to agree with those who say that a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it.”

She does add, however, that consistent upheaval in the law would not be optimal, thus the emphasis on special justifications for challenging precedent. She also cites to our historical understanding of the Supreme Court in that overturning prior decisions is not “out-of-bounds”, but the decision to proceed in that matter can be categorized as “exceptional”.

Overall, when reflecting on Judge Barrett’s view on stare-decisis she takes a tempered, but realistic approach. While she acknowledges that the doctrine presents a compelling factor in Constitutional interpretation and circumstances are limited in which prior decisions should be overturned, she does not totally discount overturning prior decisions. For Judge Barrett, there must be comprehensive support for making this decision after deftly balancing reliance interests with the judge’s chosen method of Constitutional interpretation. A special justification may in fact be present in the appropriate situation and this is consistent with our understanding of the practice of the Supreme Court. Unlike what has been portrayed in some commentary outlets, this is very much a mainstream and respectable way of judging.

In Congressional Originalism[2], Judge Barrett discusses the interpretative theory of originalism and how it is considered by Congress when crafting policy and law. Judge Barrett begins by reflecting on the current meaning and application of the theory. The current interpretive style of originalism focuses on the original public meaning. It would require an assessment emphasizing the textual meaning at the time of ratification as a whole, broader than simply the intent of the framers. There is a concentration on historical context in helping to understand how the law should be interpreted today. Judge Barrett devotes the piece on considering whether legislators in Congress are bound to this interpretative style when passing laws and crafting policy or whether it is something only within the purview of the judicial branch.

Discussion is then provided on the concept of “super precedent” Supreme Court decisions and how Congress should handle them. You may recall this was a common topic during her senate confirmation hearings following her nomination to the U.S. Supreme Court. The defining qualities of super precedents are discussed and an evaluation as to the obligation of the legislators to uphold them or pass laws circumventing them is considered. Super precedents are classified as Supreme Court decisions invoking foundational doctrine and practice that have withstood the test of time. Judge Barrett categorizes them under five characteristics: (1) endurance over time, (2) support by political institutions, (3) influence over constitutional doctrine, (4) widespread social acquiescence, and (5) widespread judicial agreement that they are no longer worth revisiting.

Among the cases that Judge Barrett cited as falling under this standard are Marbury v. Madison, Brown v. Board of Education and the Civil Rights cases. These decisions have become a major component of the fabric of the law and have wide acceptance among the people of this nation. These cases will likely never be challenged and resurface on the Court’s agenda. Focused briefing is required for petitions to the Supreme Court and the Supreme Court has the authority to grant or deny certiorari based on the legal questions presented in a given petition. This undoubtedly presents a thorough filter that will maintain the super precedent. This is the core of how super precedent remains intact, not simply relying on the nature of a stare decisis assessment in the general sense of committing to blindly maintain precedent.

In terms of Congress, legislators can avoid passing laws that would entangle with super precedent by maintaining the presumption that the precedent is constitutional. Judge Barrett was careful to point out, however, that this does not mean the legislature classifies the precedent as an absolute, but rather it is settled in the sense of not requiring policy to address it. While Congress has the authority to reexamine them, by no means are they obligated to or in the case of super precedent, inclined to do so. The super precedent may in fact be contrary to the original meaning and failing to correct it, however, does not necessarily mean that the originalist legislator is in agreement with the flawed interpretation.

As a practical matter an attempt to reconsider, while possible is simply impractical given the circumstances. Just as the Supreme Court would only reconsider in response to a litigant’s petition, so too would Congress be likely to reconsider if pressured by the electorate. The nature of the issues are settled by a vast swath of electorate in cases of super precedent so pressure is unlikely. Judge Barrett, however, makes an able comparison- the judiciary and Congress can be moved (or not moved) by the people. It just depends in what form – whether it is litigants in the context of the court of law or elections when selecting representatives in Congress.

Judge Barrett further explains that the judiciary and legislature are not required by the Constitution to correct every constitutional error that may arise. Congress by its very nature considers political interests when determining when to devote time to address alleged constitutional errors. Until the time arises, questions are deemed settled.  This should not be construed, however, to conclude that Congress should be defying the Constitution, rather the central focus of the view holds that constitutional interpretations are subject to change and Congress has the autonomy to decide when to become entangled in the issues and perhaps apply the originalist view to the law-making process.

Case Law

During Judge Barrett’s confirmation hearings, a great deal of focus drifted towards some of her opinions as a 7^th Circuit judge. We will cover her dissent in Kanter v. Barr[3] here. This one attracted significant attention during the hearings and concerned Second Amendment issues.

In Kanter v. Barr, Rickey I. Kanter pleaded guilty to one count of mail fraud under 18 U.S.C. § 1341. In his business, he submitted foot inserts to Medicare for approval before sending them to podiatrists. They initially failed the approval process.  Later, a new batch of inserts would be approved, however, Kanter had continued to sell the non-compliant inserts with marketing that they were Medicare approved. Kanter, however, had no history of any form of violent or domestic crimes.

Due to his felony conviction, he was prohibited from possessing a firearm under both federal and Wisconsin law. At issue in this case was whether the felon dispossession statutes— 18 U.S.C. § 922(g)(1) and Wis. Stat. § 941.29(1m) —violated the Second Amendment as applied to Kanter. The 7thCircuit ruled that even if Kanter could bring an as-applied challenge, the government has met its burden of establishing that the felon dispossession statutes are substantially related to an important government interest.

Judge Barrett dissented and relied on historical assessments to support her view that there should be a categorization of felons when pursuing a means of depriving them of their enumerated rights. She articulates that Kanter’s status as a non-violent felon should have been persuasive and his conviction of mail fraud bears no relationship to a substantial government interest in curtailing gun violence. She proceeds to cite to historical text in the early colonies that showed laws meant to disarm or keep weapons out of the hands of dangerous criminals. The historical record is inconclusive on removing weapons from all felons just because of the nature of being broadly categorized as a felon.

These legislatures “intended to disarm those who have demonstrated a proclivity for violence or whose possession of guns would otherwise threaten the public safety.” Public safety interests were a primary concern for these legislatures. Judge Barrett concludes that “absent evidence that Kanter would pose a risk to the public safety if he possessed a gun, the governments cannot permanently deprive him of his right to keep and bear arms.”

Judge Barrett is also critical of the majority’s opinion that relied on statistics claiming convictions of nonviolent felons can predict future violence. The majority relied on this to help illustrate the state’s substantial government interest in stopping gun violence. The statistics, however, did not differentiate between the non-violent felons to provide a comprehensive assessment. For example, one could reasonably consider that a Medicaid fraud felon without a prior violent history could be treated differently than a drug felon with a history of domestic violence. It was not proven in the given facts that Kanter showed a propensity with his traits or any pattern of violence to justify being deprived of his Second Amendment rights.

Overall, in the Kanter matter, this dissent invoked memories of Justice Barrett’s mentor Justice Scalia in using a historical approach to advocate for a position. From a pragmatic standpoint, this dissent is very persuasive and looks to further assess the analysis in a fact-specific way by considering the comprehensive background of litigant Kanter. Justice Barrett presents a reasonable method to filter claims that could deprive convicted felons their enumerated Second Amendment rights. The intent is to restrict firearms access to dangerous felons, but we cannot fall into the trap of painting a broad brush in having government overstep its power. It is not necessary given the set of facts presented here of a non-violent felon that did not carry a violent history.

Conclusion

These works are a sample of insight into Justice Barrett’s jurisprudence. We can say, however, with relatively strong certainly that based on our analysis, Justice Barrett will be a judge that considers revisiting precedent from time to time if the right opportunity was presented before the Court. As part of her balancing test, however, she would consider reliance interests and take a fair, methodical and reasonable approach. Also much like her mentor Justice Scalia, she will use history and rely on original public meaning interpretation as tools to formulate her position.

As the Supreme Court presently stands- Justice Sotomayor, Justice Breyer and Justice Kagan are in the left of center camp with Sotomayor the farthest left. Chief Justice Roberts presently comprises the ideological center with having been a deciding factor in recent years in decisions that have benefited both the left and the right. Justice Gorsuch and Justice Kavanaugh, although currently early in their tenures are to the right of Roberts in that order based on a small sample size. Justice Gorsuch has sided with the left on various occasions such as issues dealing with Native America rights and sexual orientation as a protected class. Justice Alito is positioned to the right of Kavanaugh with the most consistent record from his longer tenure and Justice Thomas to the right of Alito. Justice Thomas has taken a far bolder approach to major issues even in dissents and concurrences. He has embraced Constitutionalism in its purest form.

An early prediction for Justice Barrett is that she will fall either in between Kavanaugh and Alito or perhaps even Alito and Thomas. She is an excellent asset to the Supreme Court and we look forward to watching her impact on the further development of Constitutional law in the years to come.

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[1] Amy C. Barrett, Precedent and Jurisprudential Disagreement, 91 Tex. L. Rev. 1711 (2012-2013).

[2] Amy C. Barrett & John C. Nagle, Congressional Originalism, 19 U. Pa. J. Const. L. 1 (2016).

[3] Kanter v. Barr, 919 F.3d 437 (7th Cir. 2019).