They are the most fiercely polarizing issues in American life: abortion and guns. And two momentous decisions by the Supreme Court in two days have done anything but resolve them, firing up debate about whether the court\u2019s conservative justices are being faithful and consistent to history and the Constitution \u2014 or citing them to justify political preferences.<\/p>\n\n\n\n
To some critics, the rulings represent an obvious, deeply damaging contradiction. How can the court justify\u00a0restricting the ability of states to regulate guns\u00a0while\u00a0expanding the right of states to regulate abortion?<\/p>\n\n\n\n
\u201cThe hypocrisy is raging, but the harm is endless,\u201d House Speaker Nancy Pelosi said Friday after the court released its decision on abortion.<\/p>\n\n\n\n
To supporters, the court\u2019s conservatives are staying true to the country\u2019s founding principles and undoing errors of the past.<\/p>\n\n\n\n
The court corrected a historic wrong when it\u00a0voided a right to abortion\u00a0that has stood for nearly 50 years, former Vice President Mike Pence said Friday.\u00a0On Twitter,\u00a0he said the decision returned to Americans the power to \u201cgovern themselves at the state level in a manner consistent with their values and aspirations.\u201d<\/p>\n\n\n\n
Opponents of Roe v. Wade, the controversial 1973 ruling that upheld the right to abortion, say the Supreme Court back then did just what some accuse the majority justices of doing now, adapting and twisting legal arguments to fit political positions.<\/p>\n\n\n\n
Members of the court\u2019s current conservative majority, laying out their thinking in this week\u2019s decisions, have been quite consistent, sticking to the words of the country\u2019s founders and the precedents of history that reach back even further, those supporters say.<\/p>\n\n\n\n
In both decisions, the majority makes the case that if a right is spelled out in the U.S. Constitution, the bar for any government regulation of that right is extremely high. But if a right is not explicit, state and federal governments have greater leeway to impose regulations.<\/p>\n\n\n\n
To those who study the court, though, the reality is more complicated.<\/p>\n\n\n\n
A number agree that, for all the controversy of the rulings, the majority justices at least followed a consistent legal theory in issuing the decisions on abortion and guns.<\/p>\n\n\n\n
\u201cI understand how it might look hypocritical, but from the perspective of the conservative majority on the court, it\u2019s a consistent approach to both cases,\u201d said Richard Albert, law professor at the University of Texas at Austin. \u201cI\u2019m not saying it\u2019s correct, by the way, but from their perspective it is completely consistent and coherent.\u201d<\/p>\n\n\n\n
Consistency, though, cannot mask the fact that there has been a seismic shift on the court since President Donald Trump appointed three conservatives. And that is likely to further muddy public perceptions of an institution that prefers to see itself as being above politics, court watchers say.<\/p>\n\n\n\n
Both decisions \u201ccome from the same court whose legitimacy is plummeting,\u201d said Laurence Tribe, a leading scholar of Constitutional law and emeritus professor at the Harvard Law School.<\/p>\n\n\n\n
The court majority\u2019s decisions on gun rights and the ruling a day later on abortion both rely on a philosophy of constitutional interpretation called\u00a0\u201coriginalism.\u201d\u00a0To assess what rights the Constitution confers, originalists hone in on what the texts meant when they were written.<\/p>\n\n\n\n
Opinions by originalists are often laden with detailed surveys of history, as both these rulings are.<\/p>\n\n\n\n
The bulk of Justice Clarence Thomas\u2019 opinion on gun rights is devoted to history and what it says about the Founders\u2019 intentions when they crafted the Second Amendment and when lawmakers crafted the 14th Amendment on due process in the 1860s. Thomas broached a long list of historical figures, including the English King Henry VIII, who the ruling says worried that the advent of handguns threatened his subjects\u2019 proficiency with the longbow.<\/p>\n\n\n\n
The abortion ruling authored by Justice Samuel Alito similarly delves deep into the past, concluding that there was nothing in the historical record supporting a constitutional right to obtain an abortion.<\/p>\n\n\n\n
\u201cNot only was there no support for such a constitutional right until shortly before Roe, but abortion had long been a crime in every single state,\u201d Alito wrote.<\/p>\n\n\n\n
This week\u2019s two decisions are more legally consistent than critics suggest, said Jonathan Entin, a law professor emeritus at Case Western Reserve University in Cleveland.<\/p>\n\n\n\n
\u201cWe can debate about the meaning of the Second Amendment, but the Second Amendment does explicitly talk about the right to keep and bear arms, whereas the right to abortion access is not explicitly in the Constitution,\u201d he said. \u201cIf that\u2019s where you are going to go, then maybe these decisions are not in such tension after all.\u201d<\/p>\n\n\n\n
Not all observers agree.<\/p>\n\n\n\n
\u201cI think there is a double standard going on here,\u201d said Barry McDonald, a professor of law at Pepperdine University, reviewing the justices\u2019 arguments that both decisions are grounded in a strict reading of the law and of history. That logic is shaky, he said, given the conclusion by many legal historians that the right to bear arms in the Bill of Rights is, in fact, much narrower than the court majority insists.<\/p>\n\n\n\n
Most ordinary Americans, though, will be unfamiliar with such intricate legal theory. Instead, many will size up the court\u2019s actions based on their perceptions of the justices\u2019 motives and the personal implications of the decisions, experts said.<\/p>\n\n\n\n
Many are likely to view the rulings as the direct result of Trump\u2019s appointments and the justices\u2019 determination to carry out his agenda, making the court \u201cmore of an institution of politics than it is of law,\u201d McDonald said.<\/p>\n\n\n\n
Tribe said the court\u2019s majority has embraced an imaginary past and its claims that is only upholding the law are false. The majority justices can assert that they have been legally consistent. But taken together, he said, the decisions on guns and abortion create a whiplash effect from a court that claims to be protecting individual rights, then effectively limited many Americans\u2019 control over their own bodies.<\/p>\n\n\n\n
\u201cI think the decisions point in radically different directions,\u201d Tribe said, \u201cbut the one thing they have in common is they are decided by a new, emboldened majority that knows no limits on its own power and is perfectly willing to toss over precedent in the name of a version of originalism that really doesn\u2019t hold together.\u201d<\/p>\n","protected":false},"excerpt":{"rendered":"
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