Barrett v. Jackson - When the Law Trumps Justice

Why the recent SCOTUS decision in Trump v. CASA, INC highlights the difference between legality and justice, and how far we continue to stray from the Constitution's founding principles.

Jul 01, 2025

In this essay I am going to explore the Supreme Court’s recent decision in the case of Trump v. CASA, INC., providing some background on the case, and then diving into why I agree more with Justice Ketanji Brown Jackson’s dissent, over the majority opinion written by Justice Amy Coney Barrett, and the disturbing implications of the majority’s ruling.

Trump v. CASA, INC.: A Quick Background

For those not following the story, the Supreme Court, in one of its typical end of session “mic drop” moments, decided through its Republican majority that significant limits were needed on the ability of lower courts to issue nationwide (or universal) injunctions that would stay the effects of a law or Executive Order until the constitutionality of such a law or order was determined. There is a logic to it, and a limiting principle that I support to an extent.

The Supreme Court (SCOTUS) basically said that injunctive relief should only apply to the plaintiffs who are suing, and that lower courts, with some exceptions, did not have the power to issue nationwide injunctions that covered individuals who were not party to the suit. There were two exceptions that would preclude the need for each individual citizen of the United States from having to sue the United States individually to seek injunctive relief. In one case, if a person is a member of a recognized class that is suing for relief, and a lower court grants it, then anyone in that class would receive relief. The other case is when a state sues the federal government and seeks relief. A lower court judge could grant relief to all people residing in that state.

While that is common sense, there are a few problems I have with the decision.

Barret v. Jackson: Legality vs. Justice

My issues with Justice Barrett’s Majority Decision

As Justice Ketanji Brown Jackson pointed out in her dissent, what if the Executive issues an order to do something blatantly illegal and fundamentally unconstitutional, something that impacts the rights of all citizens, such as the administration’s birthright citizenship Executive Order (the underlying case in Trump v. CASA INC.)? What happens to all those who suffer harm under a blatantly illegal order who do not have the resources to sue individually or who do not fall within one of the exceptions? Under the SCOTUS decision, unless a plaintiff is party to the suit, then they are subject to an Executive Order even though Executive Orders are not law, and even when the Executive Order is clearly recognized as illegal and unconstitutional. Under the Supreme Court’s ruling, citizens who do not have the resources to sue individually, who do not fall under a recognized class, or who do not reside in a state that has sued, could be harmed by illegal or unconstitutional Executive actions until such time as the Supreme Court issued a nationwide injunction.

I think this is a legitimate concern, but in that I differ significantly with Justice Amy Coney Barrett, who wrote the majority opinion. I am not a lawyer, and she is both a lawyer and a legal scholar. I respect her greatly as a jurist, and I also respect the fact that she knows far more about the law than I ever will. Still, I am troubled by her criticism of Justice Jackson’s dissent.

Justice Barrett effectively accused Justice Jackson of being lazy, not knowing the law, and fearmongering. Those criticisms seem unjust and harsh to level at another Supreme Court Justice, but I particularly take issue with calling Justice Jackson alarmist, as I think the evidence we see every day, through the issuance of dozens of blatantly illegal and unconstitutional Executive Orders that are immediately challenged in the courts, supports Justice Jackson’s concerns.

I do not know how to reconcile Justice Barrett’s position that we should not be alarmed with the reality we live in. In her defense, Justice Barrett has a responsibility to the law that I do not. To fulfill that responsibility she must be as exacting and academic as needed to ensure the decisions she makes are founded on the Constitution and established precedent. I have no doubt that her opinion is solid on the law, that she would easily blow away the Constitutional argument I make below as being facile and not grounded in centuries of law and precedent.

While I am not a lawyer, I am, like Justice Barrett, a public servant of long standing, one who has sworn an oath to protect and serve our Constitution. I have spent the last 40 years in service to our Constitution. I appreciate the rigor and strength of Justice Barrett’s argument, but I think it misses the forest for the trees. I think it is weighted too heavily toward precedent, and not enough toward the Constitution and the ideas of our Founders at a time when we desperately need grounding in core Constitutional principles.

I also have the following issues with Justice Barrett’s criticism of Justice Jackson.

While Justice Barrett criticizes Justice Jackson for not considering precedent, I find that a specious argument from someone who joined the majority decisions in Dobbs and Loper Bright. The Dobbs decision that overturned Roe on abortion and the Loper Bright case were both examples of broad decisions that upended decades of legal precedent.

Also, I must ask the question, does Justice Barrett not read the news? Does she not know that the Executive Branch, under President Trump and following the game plan of Project 2025, is engaged in a full-on assault of the Constitution and seeks to establish a “Unitary Executive” (a tyrant) and turn this country into a bigger version of Viktor Orban’s Hungary? Justice Jackson’s concerns are not imaginary or alarmist, they are based on the reality she sees every day. The underlying case at issue in Trump v. CASA, INC., which everyone recognizes is clear violation of the 14^th Amendment’s birthright citizenship clause, is just one of many examples of Executive Orders that have been issued by this President which are unequivocally illegal, unconstitutional, and harmful to citizens of our Republic.

Law vs. Justice

What I would have wished for in Justice Barrett’s opinion was less focus on the law, and more on justice, which is the tack that I think Justice Jackson took. There are many situations in which something can be both perfectly legal and yet also fundamentally unjust. The two-thirds clause that was baked into the Constitution, the “separate but equal” doctrine from Plessy v. Ferguson, the U.S. internment camps that imprisoned American citizens of Japanese descent that was upheld by Korematsu v. United States – all of these were both perfectly legal, fundamentally unjust, and as we later came to realize, completely at odds with the founding principles of our country. In all of these cases, the letter of the law profoundly contradicted the spirit of our fundamental law, the Constitution. Yes, I have no doubt that Justice Barrett’s opinion is perfectly legal; I doubt that it is just.

I absolutely agree with the words Robert Bolt, in his play A Man for All Seasons, attributes to Thomas More, when More says that he would give the Devil the benefit of law “for my own safety’s sake!” That said, the fundamental and ancient underlying principle is Justice. Yes, as Justice Barrett says, the law must be followed, but how is Justice served when we sit back and let the Executive inflict harm upon the citizens of the United States as we wait for what are, effectively, procedural issues to play out? The underlying principle of the Constitution is to constrain and bound the power of the State, so how does allowing the State to commit illegal acts against its citizenry jibe with the Founder’s vision for our Republic? To me, Justice Barrett and the majority’s opinion leans far too heavily toward the interest of the State and the law over that of the People and the Constitution.

An “I’m not a lawyer” view on nationwide injunctions by lower courts

Maybe I cannot, as my youngest would say, “English well,” or perhaps I just don’t get what Article III of the Constitution is trying to tell me, but here are some excerpts from that Article:

Article III Section 1: The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.
Article III Section 2: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority…

What these sections tell me, is that the judicial power is vested in the Supreme Court but also in the inferior courts (lower courts) that Congress has established and that the judicial power of these courts extends to all CASES listed, to include “Controversies to which the United States shall be a Party.” There is nothing in the Constitution that, as far as I can tell, limits the power of lower courts to decide on matters of national import or that they must constrain their decisions locally. Yes, I will concede that later laws and precedents may say otherwise, but is the clear wording here become so unimportant that it no longer has any force or weight? If so, then we have strayed far from what our Founders would have wanted and have done so without doing the hard work of amending the Constitution or writing a new one to codify that new view foundationally.

At least by my reading of the Constitution, lower courts have extraordinary judicial power. Article III Section 2 further goes on to define what makes the Supreme Court different, stating that:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

As stated above, there are certain cases that are a matter for the Supreme Court alone and the Supreme Court is the ultimate court of appeal. Beyond that, though, I always thought the power of lower courts to issue nationwide injunctions was wholly supported by the rights we the People have ceded to the Judiciary in the Constitution. Certainly, people only seem to complain about nationwide injunctions when they don’t want them to apply to their partisan policy, but they have generally supported them when it blocks the other party’s partisan policy.

To me, it just stands to reason that lower courts would have national injunctive power, at least in cases that have fundamental constitutional concerns like the birthright citizenship Executive Order case underlying Trump v. CASA INC. The Constitution applies to all citizens, so if there is an action that potentially infringes on the rights guaranteed citizens by the Constitution, then we all belong to the “class” called “the People.” Any injunctive relief to protect our rights should apply to us all, regardless of the level of court that provides that relief.

Favoring the Executive on these matters is not, as Justice Barrett would argue, exchanging an imperial Executive for an imperial Judiciary. It is about recognizing the primacy of the Constitution and about taking the conservative position, which is to default to the protection of the rights of the citizenry over the interests of the State, especially when the State’s interest is widely recognized as an illegal, unconstitutional, and harmful exercise of partisan political power.

Why issue such a broad ruling?

SCOTUS could have ruled narrowly. They could have ruled solely on the question before them – whether in this birthright citizenship case, nationwide injunctive relief by a lower court applied or not. In the majority opinion, the Court even says “On multiple occasions, and across administrations, the Solicitor General has asked the Court to consider the propriety of this expansive remedy [nationwide injunctions].” It is puzzling, given the underlying case about birthright citizenship is one that the government is sure to lose, that SCOTUS would choose this case to issue such a broad principle, especially given the Supreme Court has been given multiple opportunities to address this issue in the past.

By choosing to unnecessarily act expansively, just as they did in previous cases, such the Presidential immunity decision and the decision to void Colorado’s exercise of the 14^th amendment to keep President Trump off the ballot in that state, SCOTUS has once again chosen to strengthen the Executive at the expense of both the Legislative and Judicial branches and to the detriment of the People. What is most concerning and disturbing is that SCOTUS has made this decision during a time when the majority in the Legislative branch have chosen to become little more than an extension of the Executive branch and at a time when the Executive branch is actively engaged in a project to expand Executive power and turn our Republic toward autocracy.

Some examples, which you may find offensive or ridiculous, illustrating Justice Jackson’s point.

One of the best arguments in favor of Justice Jackson’s position that I have read was a piece written by

Jeff Maurer

, as part of his I Might Be Wrong blog, entitled “What if Trump Issues a Writ of Prima Nocta?” I will warn folks up front that there are parts of Jeff’s post that are crude, but it is also very humorous and thought-provoking. I apologize if it offends, but it seemed appropriate to refer to it, because through an extreme example and humor Jeff Maurer perfectly illustrates the point Justice Jackson made about the threat to our rights that the Supreme Court’s decision in Trump v. CASA, Inc. has made considerably worse.

Like Justice Jackson, Jeff’s question is “What kinds of things could happen, given an acquiescent Congress and a slow judicial system, fail to prevent a clear violation of their rights under the Constitution by the Executive?” Jeff’s central concern is: Just how much damage could the Executive do before our checks and balances actually checked and balanced, especially given the fact that one of our checkers and balancers, Congress, has decided the Executive can do whatever it wants? Here are some imaginary examples:

In case you don’t have time to read it, Jeff’s example, envisions President Trump claiming the ability to deflower women on their wedding night, a practice called prima nocta. How many women would be violated before the Supreme Court finally said “Mr. President, you must stop, that is clearly unconstitutional!”? (As Jeff points out, Congress won’t save us – “Congress should stop him. Such an outlandish move should be grounds for impeachment, but remember: Congress didn’t convict Trump of impeachment after he sat back while a mob tried to possibly murder them….[If] Congress didn’t remove Trump for that…they probably won’t remove him for anything.” I agree.)
OK, if Jeff’s example is too extreme and disturbing for you, what about these imaginary Executive Orders:
- All guns (or all guns belonging to Democrats) will be confiscated.
- Military forces of the United States can quarter themselves anywhere they please, at any time, without the consent of the property’s owner.
- All those saying anything critical of the President will be remanded to a detention and reeducation camp.
- Those designated “enemies from within” by the President, to include political figures, media figures, election officials, and anyone else the President so designates will be taken by the military and transported to Guantanamo Bay.
- Citizenship is dependent on swearing an oath of personal loyalty to President Trump.
- The House and Senate are adjourned by Executive Order and directed to only reconvene at the President’s direction. Any attempts to convene without the President’s approval will result in the arrest of any Congressperson who attempts to violate the order and they will be remanded to the CECOT prison in El Salvador.
- All EPA regulations are null and void and will no longer be enforced. Corporate America and our fellow citizens are free to contaminate our nation’s air, water, and lands to their heart’s content.
- Disaster relief will only be provided to states and individuals that swear fealty to the President.

One more scenario

How about one more, this time a more detailed scenario?

The President signs an Executive Order at 1AM stating that children naturalized through adoption are no longer citizens and are subject to immediate deportation as they are deep planted sleeper cell agents of foreign governments that pose a clear and present danger to the citizens of the United States. To prove that no one is above the law, ICE agents at 1:15AM burst into the home of Justice Amy Coney Barrett and her husband. These agents seize the Barrett’s two naturalized Haitian born children, put them on a plane by 1:45AM, and deport them to war torn South Sudan, rather than Haiti. They give them to a kindly looking woman who says, in a language neither child understands, that she will care for them like her own, which is good enough for the federal agents, who turn around and leave without gathering any information about who now has custody of the Barrett’s Haitian born children. That deportation to a third-party nation is permissible given the Supreme Court declined to stay a nationwide injunction preventing deportations to third-party nations, even third-party nations that are unstable and dangerous, a decision that Justice Barrett agreed with.

ICE simultaneously does the same thing to adoptive, naturalized children from 100 other families across the country.

How long before Justice Barrett can get a lower court to issue a stay on her children’s deportation? If the plane is in the air on its way to Sudan when the stay was issued and ordered to return, would the government turn it around or bring the children back? (Probably not.) How long before all the other families injured by this travesty of justice get their own individual stays in 100 different lower courts? Do these 100 families ever find out who each other are so they can form a class and challenge the deportations as a single class vice through 100 separate court cases? What if some lower courts don’t issue a stay, but some do? So many questions…so much harm.

Am I just being alarmist?

I could come up with lots of other examples, some of them far more horrible, that are based either exclusively on statements President Trump has made or actions other autocrats have taken on the road to turning their countries from democracies to autocracies. The question raised by the SCOTUS decision is – without the ability of lower courts to issue nationwide injunctive relief, how many citizens would be harmed, perhaps permanently and irrevocably harmed, until they either expended the resources to sue on their own behalf to protect what they thought was a fundamental right, were subsumed within a class, their states advocated on their behalf, or SCOTUS got around to acting on a case similar to theirs? (That latter option is not necessarily a guarantee, as SCOTUS could rule narrowly as to who is eligible for relief.)

OK, for those who think I am the one being alarmist, which is a fair concern, let me answer a few questions:

Are any of the scenarios above likely to happen? No, I don’t think so.

Are they possible? Absolutely.

Did we consider these scenarios possible under any other President? Perhaps I lack imagination, but I never did. Even with President Obama’s DACA and President Biden’s student loan forgiveness Executive Orders, which I felt clearly violated the Constitution, I never saw those as threats leading us toward an autocratic form of government. In those cases, I shared the Republican view that nationwide injunctive relief, issued by lower courts, was justified, necessary, and appropriate to stay the effects of these Executive Orders until Congress or the Supreme Court could weigh in. I also counted on the fact that the Congress was not just another Department under the Executive Branch.

To paraphrase what

Tim Miller

said in the run up to the 2024 election, we used to live in a world where there was a zero percent chance that we would consider any of the scenarios discussed above as even remotely possible. In electing President Trump, we have traded that certainty for a world in which there is a greater than zero percent chance of scenarios like the ones noted above occurring. Worse still, on multiple fronts – birthright citizenship, impoundment, targeting of individuals and institutions, talk of using the military on “enemies from within,” unwarranted firings of federal employees, violations of due process, etc. – scenarios like those discussed above are already in play.

The scenario with Justice Barrett’s children – that would have been unthinkable to me six months ago. Literally, I would have never come with anything remotely so horrific. After a lifetime living in the America I thought I knew, an America where I was raised to memorize Emma Lazarus’s “Give me your tired, your poor,” poem The New Colossus, I would have never envisioned an America where naturalized children, citizens, were ripped from their parent’s arms, but I have no problem imagining that now because we live in America where:

Our President has openly challenged birthright citizenship.
Masked federal officials conduct raids in the middle of the night to round up suspected illegal immigrants.
People complying with the law so they can stay in this country are swept up at visits to ICE offices and courts.
People in our country legally are deported or have court orders preventing their deportation violated.
U.S. citizens, children of illegal immigrants, are deported.
People are deported without due process, flown to brutal prisons or dangerous countries they have no association with, and judicial orders to make the government comply with the law are stonewalled and treated with disrespect and contempt

So, yes, my Justice Barrett scenario is horrific, and very likely highly implausible and unlikely, but given the above, it is certainly possible. That is the America given to us by President Trump and his supporters, a Republic still, but one in which a scenario involving the spiriting away of a Supreme Court Justice’s adoptive children, a scenario I would have once called impossible or ridiculous, is now a scenario where I must honestly say “yeah, that could happen.”

An Appeal

As has happened far too often in the last 40 years, I opened or listened to a news story about a Supreme Court decision thinking one thing about how the United States works, an understanding based on over 35 years of service to the Constitution as a veteran and civil servant, only to find that the Supreme Court’s majority told me that I was wrong.

Trump v. CASA INC. is one such case, but some previous examples include:

Bush v. Gore – Where I first realized (foolish, I know, since I was 34 at the time) that the arguments about partisan bias on the Supreme Court were not only legitimate, but that Justices might cherry-pick precedents to obtain the answers to foregone conclusions, vice do a balanced and objective reading of the Constitution and all relevant legal precedents to obtain the fairest answer possible. Yes, the vote recount in Florida was chaotic and bitter, but in my view the Constitution says we defer to the States on matters of election administration unless a particular State’s administration of elections is violating the Constitution or federal law.

While most Justices agreed that the inconsistent standards followed in each Florida county were violating the Equal Protections clause of the Constitution, I think our nation would have been better off had the remedy proposed by the SCOTUS minority – that the issue be sent back to Florida so that a uniform statewide recount standard could be applied – would have been a fairer approach than just stopping all recounts. I certainly think sending it back to Florida to resolve would have been more consistent with the Constitution and the view of our Founders.

The fact that the authors of the majority opinion warned that it was a narrow opinion (that it should not be used as precedent); that the opinion was decided by one vote; and that all five Justices in the majority were from the same party as the candidate who won the election caused a lot of harm to the Court’s reputation due to the perception that the decision was less about the law and more about politics.

Citizens United v. Federal Election Commission – in which I discovered that our created things – corporations (to include the political parties) and money – had the same rights and attributes as the People. I believe People are fearfully and wonderfully made by God, created in His image and endowed with certain inalienable rights. I also believe that we are fallen and corrupt. So, our creations, by their nature, are less than us, and are not worthy of the same rights as the People. No where in the Constitution are the words “corporation,” “money,” or “political party” mentioned, and I believe the implications of the ideas that “corporations are persons” and that “money equals speech,” would horrify our Founders.

Dobbs v. Jackson Women’s Health Organization – I am loathe to put this here, since I think the subject of abortion is far too complex, sensitive, intimate, and sacred to adequately discuss in anything other than face to face meetings or long form writings. All I will say is that I felt Roe v. Wade was wrongly decided, but that I also find it shameful that successive Supreme Court nominees, who are now the same Supreme Court Justices who voted to overturn Roe, either disingenuously avoided direct questions about Roe, or swore under oath that Roe was settled law and precedent during their confirmation hearings. I don’t think Roe or Dobbs have done well by the People, but the abrupt turn on such a major issue in both cases, on an issue that has consumed politics for most of my life and was for decades the major distinguishing fault line between the two major and nearly evenly divided political parties in our country, was a disservice to the People. The courts should have consistently sent the issue back to Congress, as such an important issue should have been argued until consensus and compromise was achieved.

Roe and Dobbs are just two of many examples where the Courts should have deferred judgement and sent the matter to Congress to resolve through law or Constitutional amendment. Congress was always meant to be the preeminent branch of government, yet too often Congress has deferred to the Courts and the Executive rather than do its job and fulfill the vision for it that our Founders had.

Trump v. Anderson – where I discovered that the plain words of the 14^th Amendment and the clear intent of our forebears who voted to ratify it are effectively meaningless. Section 3 of the 14^th Amendment, Section 4 of Article 1, and the 10^th Amendment of the Constitution all make it clear to me that States have primacy in the administration of elections, unless their administration in some way violates the Constitution or the law. Section 3 is clear, though, that those who have taken an oath to support the Constitution cannot serve as officers of the federal government if they engaged in insurrection, rebellion, or gave aid and comfort to insurrectionists or rebels. Donald Trump clearly met the criteria established in Section 3, and Colorado followed their state’s process to disallow him from the ballot.

I could see SCOTUS deciding to deny Colorado’s decision to keep President Trump off the ballot in that state if Section 3 of the 14^th Amendment provided no remedy for Colorado’s decision, but the remedy is right there in the plain words of Section 3. SCOTUS should have followed that remedy, which is to turn the matter over to Congress who, with a two-thirds vote in each House, can “remove such disability.” All the arguments about a single state or group of states deciding who could run for President, were specious given Section 3’s criteria for disallowing a candidate are clear and cannot just be arbitrarily applied.

Trump v. United States – in which I learned that the phrase “no one is above the law,” something I had been taught all my life as an absolute corollary to the Constitution, was not true. SCOTUS allowed that the President of the United States is immune from criminal prosecution from any act conducted as part of his or her official duties as President. Not just immune, but anything surrounding those acts is beyond scrutiny by a court of law. SCOTUS made this incredibly broad decision, despite having a relatively narrow question to answer in a case involving President Trump’s multi-pronged attempt to overturn the results of the 2020 election. The majority of the SCOTUS made this decision even though the concept of Presidential immunity is nowhere found in the Constitution and despite the fact that our Founder’s greatest concern was protecting us from autocracy, yet in this decision SCOTUS granted President’s the power of a king.

Closing Thoughts

Through the separation of powers, the Founders sought to protect us from falling into tyranny, yet each of the decisions above, has moved us further from liberty and toward autocracy.1 As many have pointed out, though, some of our Founder’s greatest fears were unchecked factionalism and the demagogue, a populist leader who would use their charisma to fire up the People and cow one or more of the other branches into enabling the rush to tyranny. They stated their fears eloquently:

“When a man unprincipled in private life desperate in his fortune, bold in his temper, possessed of considerable talents, having the advantage of military habits—despotic in his ordinary demeanour—known to have scoffed in private at the principles of liberty—when such a man is seen to mount the hobby horse of popularity—to join in the cry of danger to liberty—to take every opportunity of embarrassing the General Government & bringing it under suspicion—to flatter and fall in with all the non sense of the zealots of the day—It may justly be suspected that his object is to throw things into confusion that he may “ride the storm and direct the whirlwind.” – Alexander Hamilton, Objections and Answers respecting the Administration of the Government
“But should the People of America, once become capable of that deep simulation towards one another and towards foreign nations, which assumes the Language of Justice and moderation while it is practicing Iniquity and Extravagance; and displays in the most captivating manner the charming Pictures of Candour, frankness, & sincerity while it is rioting in rapine and Insolence: this Country will be the most miserable Habitation in the World… Our Constitution was made only for a moral and religious People. It is wholly inadequate to the government of any other.” – John Adams, Address to Massachusetts Militia, 11 October 1798

The Founders were clear that for our system of government to work, we needed people with some amount of principle, scruple, and virtue to sit in key positions, as well as the means to deal with factional differences and tendencies toward tyranny peacefully and productively. Former President Nixon had many failings, but he did ultimately turn over the evidence that led to his downfall rather than destroy that evidence.

Our current President is not constrained in the same way Nixon was, and he has surrounded himself with loyalists and partisans who seem bent on enabling him and a vision of authoritarian government that is contrary to the government established in the Constitution. Justice Jackson’s opinion acknowledges this as our reality, whereas Justice Barrett’s does not, or, at the very least, Justice Barrett may consider that reality irrelevant. I think Trump v. CASA INC. and the cases cited above could have been decided in ways that better balanced law, justice, and the need to always respect the Constitution’s guiding principles, which are skewed toward protecting the interests of the People over that of the State.

It is clear to me that we have gone far astray of the country our Founder’s envisioned for us. It is also clear to me that Justice Barrett and the other Justices who joined her majority opinion decided to intentionally ignore the threat our Republic faces from President Trump and his enablers. If the weight of precedent has moved us so far away from the clear words of the Constitution and allowed decisions like Citizens United and the Presidential immunity ruling to be the law of the land, then I say it is long past the time we either amend the Constitution to reflect those new realities, to affirmatively declare them as fundamental law, or, more to my liking, we strike down these rulings through the Constitution’s amendment process or by holding a new Constitutional convention.

We, the People, are the masters of our destiny, and we do not have to take the Supreme Court’s rulings as final, but we do need to do the hard work to create the Republic we want, just as our Founders did. The mere whiff of tyranny should be enough to enflame the hearts of the People to action, and if needs be that action should be every bit as bold and daring as that taken by the Founders when they tossed aside the Articles of Confederation and chose a new Constitution, one that despite its imperfections, has been an inspiration to democratic movements the world over. We owe one another a government of the People, by the People, and for the People, but I fear if we do not work together to forestall the threat posed by this administration and then take the opportunity that gives us to fix our Constitution soon, we will eventually lose the ability to do so.

Sources consulted2

I realize people on both sides of Roe and Dobbs may have a visceral reaction to what I said, and that is why I was loathe to include it. I felt that I would be dishonest if I avoided it, though, as these two cases, more than almost any others, have defined much of our politics, and the rancor in this country, than almost any others. People on either side can make strong, legitimate, impassioned cases about why one decision or the other advanced the cause of liberty and led us away from tyranny, which is why I included it in my list.

I am not here to debate abortion, like the author Wendell Berry, in his piece, Caught in the middle: On abortion and homosexuality, I believe it is matter for more dialog, more listening, and an issue that must be taken from the philosophical, the theological, and the political, and “can be clarified only by imagining a woman to whom an abortion is one of two heartbreaking alternatives.” As Berry also says, we need to acknowledge that the abortion issue may be too complex, too large for the kind of black and white, binary view of the world demanded by custom, the law, and courts. As he put so eloquently

“In making any choice, we choose for the future, and so all our choices involve us in mystery and in a kind of tragedy. To choose to have a baby, to abort a fetus, to save a life, to destroy a life is to make a whole change on the basis of partial knowledge. One chooses in light of what one knows now about the past and thus changes the future inevitably and forever. What would have been, had the choice been different, will never be known.

To reduce this complexity and mystery to a public contest between two absolutes seems to wrong everything involved.”

Trump v. CASA INC.

https://www.supremecourt.gov/opinions/24pdf/24a884_8n59.pdf

A Man for All Seasons - The Devil Speech