Consequences matter

For all that has been written about the Supreme Court term that ended on June 30, there has been little attention to a stunning pattern. The liberal dissenting justices consistently emphasized the real-world consequences of the rulings, while the conservative majority never acknowledged them.

For example, in New York Rifle and Pistol Association v. Bruen, the Court struck down a century-old New York law that required a person to show cause in order to receive a permit to have a concealed weapon in public. Justice Stephen Breyer's dissent began by describing the problem of gun violence in the United States: "In 2020, 45,222 Americans were killed by firearms. Since the start of this year (2022), there have been 277 reported mass shootings - an average of more than one per day." He pointed to studies that laws, like New York's, limiting concealed weapons in public make a difference in reducing gun deaths. For example, a study that examined the 33 states that adopted laws requiring issuance of concealed weapons permits between 1981 and 2007 found that the "adoption of those laws was associated with a 13%-15% increase in rates of violent crime after 10 years."

The majority opinion by Justice Clarence Thomas did not discuss this and, in fact, dismissed any concerns about the need for regulating concealed weapons. He wrote: "the Second Amendment is the very product of an interest balancing by the people and it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms for self-defense." Justice Samuel Alito wrote a sarcastic concurring opinion, criticizing Justice Breyer's focus on gun violence: "Why, for example, does the dissent think it is relevant to recount the mass shootings that have occurred in recent years? Does the dissent think that laws like New York's prevent or deter such atrocities? Will a person bent on carrying out a mass shooting be stopped if he knows that it is illegal to carry a handgun outside the home? And how does the dissent account for the fact that one of the mass shootings near the top of its list took place in Buffalo? The New York law at issue in this case obviously did not stop that perpetrator."

This same pattern was repeated in an important administrative law case, West Virginia v. Environmental Protection Agency. The issue was whether the EPA has the authority to regulate greenhouse gas emissions from coal-fired power plants, a major source of climate changing pollution. Justice Elena Kagan, writing for the three dissenters, stressed the peril to the planet from climate change. Her dissent began: "Climate change's causes and dangers are no longer subject to serious doubt. Modern science is 'unequivocal that human influence' - in particular, the emission of greenhouse gasses like carbon dioxide - 'has warmed the atmosphere, ocean and land.' The Earth is now warmer than at any time 'in the history of modern civilization,' with the six warmest years on record all occurring in the last decade." She described the effects of climate change in terms of "more frequent and intense hurricanes, floods, and other extreme weather events, drought, destruction of ecosystems, and potentially significant disruptions of food production. She said that "by the end of this century, climate change could be the cause of 4.6 million excess yearly deaths."

What did Chief Justice John Roberts' majority opinion say about these consequences? Nothing. The Court held that federal agencies can act on "major questions" of economic and political significance only if there is clear direction from Congress. The Court concluded that it did not exist here.

And in Dobbs v. Jackson Women's Health Organization, again it was the dissent that focused on the consequences of overruling Roe v. Wade. The joint dissent of Justices Breyer, Sonia Sotomayor, and Kagan lamented the impact of ending a constitutional right to abortion: "Some women, especially women of means, will find ways around the State's assertion of power. Others - those without money or childcare or the ability to take time off from work - will not be so fortunate. Maybe they will try an unsafe method of abortion, and come to physical harm, or even die. Maybe they will undergo pregnancy and have a child, but at significant personal or familial cost. At the least, they will incur the cost of losing control of their lives." These consequences obviously did not matter to the majority that overruled Roe.

Why this consistent difference between the conservative majority and the liberal dissenters? Conservatives who applaud these decisions would say that the majority was following a neutral judicial methodology for interpreting the Constitution and federal laws and rightly ignoring the consequences.

I would strongly disagree with this approach and any judicial method that ignores the real-world consequences of judicial decisions. But I actually don't think the conservative justices are ignoring the consequences; rather they are focusing on different consequences based on very different value choices, but rarely acknowledging that is what they are doing. In the Second Amendment case, Justice Alito, in his concurring opinion, said: "And while the dissent seemingly thinks that the ubiquity of guns and our country's high level of gun violence provide reasons for sustaining the New York law, the dissent appears not to understand that it is these very facts that cause law-abiding citizens to feel the need to carry a gun for self-defense. No one apparently knows how many of the 400 million privately held guns are in the hands of criminals, but there can be little doubt that many muggers and rapists are armed and are undeterred by the Sullivan Law."

In West Virginia v. EPA, the majority gives precedence to the interest of power coal-fired plants in not being regulated over the interests of society in regulating greenhouse gas emissions. The pro-business conservatives used the major questions doctrine to limit the power of agencies to regulate businesses.

In Dobbs, the Court's majority opinion responded to the dissent's concerns with the effects of overruling Roe and declared: "The dissent has much to say about the effects of pregnancy on women, the burdens of motherhood, and the difficulties faced by poor women. These are important concerns. However, the dissent evinces no similar regard for a State's interest in protecting prenatal life." The majority, too, cares about consequences, but its choice is to give priority to the fetus.

The lesson from all of this is that all of the justices, whether they openly admit it or not, are making value choices as to what consequences matter. Judicial opinions would be far better if both sides recognized this and did not pretend that the decisions are the result of a neutral methodology. In case after case last term, the Court came to a conservative result. It is not because the views of the Framers of the Constitution and the contemporary Republican platform are identical. The conservative justices, no matter how much they try to make it seem otherwise, are reading their conservative values into the Constitution, just as they accused liberal justices of doing in earlier times.