Your Rights Guaranteed Only by the Supreme Court

Propublica has a great story, “Supreme Risk: An interactive guide to rights the Supreme Court has established — and could take away“(6.1.2023), enumerating a long list of rights that are the results of Supreme Court actions but not supported by actual laws passed by Congress and signed by a President. The article also includes information on which of the 9 justices have already expressed doubts or contrary opinions about each one.

Guess which Justice is the most frequent naysayer?

From the article:

  • Right to have police advise you of your rights
  • Right to be free from warrantless police searches
  • Right to be free from grossly disproportionate punishment or sentences
  • Right of minors to be free from extreme sentences
  • Right not to have hearsay used against you at trial
  • Right to be free from state-sponsored displays of religion
  • Right to be free from prayer in public schools
  • Right not to have one’s tax dollars fund religious activity
  • Right to protections against defamation claims
  • Right of the cognitively disabled not to be executed
  • Right to an effective lawyer in criminal cases
  • Right to state-appointed lawyer in criminal cases
  • Right of public-sector employees not to pay union fees
  • Right to near-unlimited political spending by individuals, corporations and labor unions
  • Right to keep guns at home for self-defense
  • Right to carry a handgun in public
  • Right to same-sex marriage
  • Right to vote without severe burdens
  • Right to public pretrial proceedings
  • Right to be free from certain methods of execution
  • Right to be free from laws that risk chilling free speech
  • Right to be free from regulatory takings
  • Right to procedural due process
  • Right to free education for undocumented immigrants
  • Right to specificity in criminal law
  • Right of prisoners to basic necessities
  • Right to a representative jury pool
  • Right of religious employers to discriminate
  • Right to equal protection under federal law
  • Right to interstate travel
  • Right to contraception
  • Right to same-sex intimacy
  • Right to sex equality in public education
  • Right of public school students to speech and privacy
  • Right to equal representation
  • Right of prospective jurors to be free from discrimination
  • Right to have a jury decide certain factual questions in criminal sentencing
  • Right to discovery of defendant-friendly evidence

I wouldn’t argue that all of these should be reflexively turned into Federal statutes. But it seems to me that the Congress should get busy. This list represents a significant risk to much of what we think of as basic to American public and political life, not to mention much in our private lives.

You’re Right!

If you guessed that Justice Clarence Thomas was the most frequently cited naysayer. Here is how the ProPublica story described Thomas’s ideas about the “Right of public school students to speech and privacy”

On four occasions over the past 15 years, Justice Thomas has argued that, at school, students have no constitutional rights. In Thomas’ reading of the 18th- and 19th-century record, school officials with students in their care acted not as government employees but as stand-in parents. This bestowed on them essentially the same authority over students as parents had over their children. Schools, therefore, are free to censor student speech, to invade students’ privacy and even to practice corporal punishment to keep students in line.

This is an example of the originalist thinking that seems to abound. I wonder if Thomas senses any irony in the fact that under an originalist interpretation of the Constitution he would not be on any court in the land, not even a lawyer. He would simply be a member of ….”three-fifths of all other Persons.” – the framers notorious system for counting enslaved people without mentioning the word.