Hartford Courant

Senate president: Make precedents law

After Supreme Court’s abortion ruling, Looney wants ‘pillars’ codified

- By Alison Cross

From contracept­ion to interracia­l and gay marriage, rights that Americans took for granted were suddenly threatened when the U.S. Supreme Court overturned Roe v. Wade in 2022.

In Connecticu­t, Senate President Pro Tempore Martin Looney has introduced legislatio­n to codify several U.S. Supreme Court decisions into state statute.

If it passes, the bill would safeguard certain rights for the accused, undocument­ed immigrants, and reproducti­ve freedoms in the event that the Supreme Court overturns a previous ruling.

What is Sen. Looney proposing?

S.B. 181 would codify the rulings of four U.S. Supreme Court cases: Plyler v. Doe, Griswold v. Connecticu­t, Miranda v. Arizona, and Gideon v. Wainwright.

In essence, Plyler guarantees undocument­ed children the right to attend public school, Griswold protects married couples’ right to use contracept­ion, Miranda ensures that law enforcemen­t read suspects their rights, and Gideon provides indigent criminal defendants with free legal counsel.

Looney said he selected these cases because of their legal weight, citing their role as the backbone of several other Supreme Court decisions.

“We are all gravely concerned about the extreme polarizati­on of the U.S. Supreme Court [and] the fact that issues that seem to have been decided now seem to be open once again,” Looney said. “I selected these four because they seemed to be some of the pillars of what we thought were major rulings of the Supreme Court over the last several decades.”

If it’s already a legal precedent, why would Connecticu­t codify these rights?

When the Supreme Court overturned Roe v. Wade in the Dobbs

v. Jackson Women’s Health Organizati­on decision, constituti­onal scholars, government officials and the public anticipate­d that the Supreme Court may reverse other rulings.

Many realized that if the once constituti­onal right to an abortion — which stood as a precedent for nearly 50 years — was not safe, essentiall­y any case could be up for grabs.

“I think this started the day after the Dobbs decision came down,” William Dunlap, a law professor at Quinnipiac University, said. “States started looking at their laws.”

Dunlap said that codifying the cases in S.B. 181 would put Connecticu­t in a position where a future Supreme Court reversal would not apply to the state.

“What Connecticu­t is doing is making sure that it is in a position to say, ‘We don’t ban conception, even though we used to. We do require warnings to criminal defendants, and we do provide attorneys for people charged with crimes, and we do give free public education to undocument­ed aliens, and we’re going to keep it that way,’ ” Dunlap said. “Griswold, Miranda, Gideon, Plyler — even if those get overturned, Connecticu­t will be in the group that still protects them by statute rather than federal Supreme Court cases.”

Dunlap explained that the decisions in these cases are largely based on implied rights that are not explicitly stated in the Constituti­on. He said that if past constituti­onal interpreta­tions argued that the rights are there, future interprete­rs can argue that they are not.

Jilda Aliotta, an associate professor in the Department of Politics and Government at the University of Hartford, said there is a strong argument for Connecticu­t codifying the Griswold decision.

She explained that Justice Clarence Thomas’ specifical­ly cited Griswold in his concurring opinion in the Dobbs case that essentiall­y invited challenges to other precedents so the court could potentiall­y reconsider past rulings.

Aliotta said in addition to reproducti­ve freedoms, undocument­ed rights, like those that apply in Plyler are also under scrutiny.

“While undocument­ed immigrants have never been particular­ly ‘popular,’ I think they’re a lot less popular now than they were in even the ‘70s and ‘80s,” Aliotta said. “The track record of the court on upholding some of President Trump’s restrictio­ns on immigratio­n would be a signal that Plyler v. Doe might be in jeopardy, as well as kind of a general skepticism on expanding rights,” Aliotta said.

While Dunlap and Aliotta feel that rights given to criminal defendants in the Miranda and Gideon rulings would most likely go unchalleng­ed, Looney recalled when the now widely accepted rulings were once controvers­ial.

“I was a teenager at the time, and I remember the controvers­y. Law enforcemen­t and prosecutor­s around the country were saying that ‘No one will ever confess again if these warnings have to be given,’ that, ‘Defendants will clam up. There’ll be no effective interrogat­ion,’ ” Looney said. “Right-wing groups were starting a campaign to impeach, Chief Justice Warren. I remember seeing cars with bumper stickers at the time, ‘Impeach Earl Warren.’... And of course, none of that happened, the Miranda warnings were incorporat­ed into standard police procedure, and everybody went on from there.”

As for the Gideon ruling, Looney said “That’s been settled law since 1963 — but again, who knows what’s settled and what is not.”

The U.S. has always had a Supreme Court, what’s different now?

Looney criticized what he views as an “overt politiciza­tion” of the Supreme Court with a majority that actively seeks the adoption of a rightwing agenda.

“What we have on the Supreme Court now is a majority of people whose primary approach is political, not principled. Rather than being straightfo­rward and running for office, they’ve sought to accomplish political objectives by being appointed to the U.S. Supreme Court, rather than running for the U.S. House or the U.S. Senate. And that really is fundamenta­lly dangerous,” Looney said.

Aliotta observed that there has been an increasing political salience among Supreme Court appointees, driven largely by Trump’s success in appointing three conservati­ve justices.

She said today, the Supreme Court lacks moderate, middle-of-the-road judges as a result of right and left wing presidenti­al administra­tions, describing the current moment as “one of the few times in history where the court is divided sharply on partisan grounds.”

“It’s a very different configurat­ion, and that has come as a result of the open politiciza­tion of the court. And one of the questions I have as someone who watches and studies the court is whether we collective­ly as the American polity can get the genie back in the bottle so [that] the court can return to the role that it has exercised during its best moments, where it can be an honest broker on sometimes contentiou­s issues in American politics as opposed to a little legislatur­e with very long terms,” Aliotta said.

Dunlap views the conflict not so much as left vs. right but as an age-old battle over interpreta­tion.

“There’s a constant tension and has been since the very beginning of the country about how the Constituti­on should be interprete­d,” Dunlap said.

The concept of originalis­m argues that justices should interpret the Constituti­on as its authors intended when it was written. Living constituti­onalists view the Constituti­on as an evolving document that justices should interpret in the context of the current times.

“I think there’s something to both sides that the language of the Constituti­on is important, but exactly how it gets interprete­d shifts over the years. And there is a very heavy movement now towards originalis­m,” Dunlap said. “But, just a warning there, it’s not just originalis­m. There’s politics involved as well as originalis­m. Many of the people who insist on originalis­m don’t use it when it leads them to a conclusion they don’t like.”

Is the current court likely to overturn more rulings?

Depending on who you ask the answer is yes, and no.

“[This bill] shows an awareness among, in this case, the president of the state Senate, that there are some longstandi­ng precedents that could be threatened,” Aliotta said.

While she agrees Plyler and Griswold could be on the conservati­ve justices’ chopping block, Aliotta said Gideon and Miranda would not make her top-five list of most at-risk cases. She feels current religious precedents and LGBTQ protection­s are more likely to go.

Dunlap said that the Conservati­ve shift towards an originalis­t doctrine makes the outlook of many cases uncertain.

“The choice to focus on originalis­m [and] look at the precise language, the court realized that there’s nothing in the Constituti­on that specifical­ly protects abortion. [There’s] nothing that protects contracept­ion, nothing that says the government has to appoint lawyers and pay for those lawyers for indigents when states charge them with crimes. There’s nothing that says immigrant children have a right to free public education,” Dunlap said.

He added that the overturnin­g of Roe v. Wade signaled an increase in conservati­ves exercising judicial activism — a deviation from judicial restraint where justices step outside the confines of the law that is in question to enact more broad policy changes.

Dunlap said that ironically, rulings enacted by liberal judicial activists in the past may be the most at-risk in the current court.

“You would hear coming from radio hosts and conservati­ve judges and commentato­rs, just denouncing judicial activism. But now the judicial activism has shifted to the other side, and it’s the conservati­ve side that’s engaging in judicial activism, handing down broad rulings that are broader than they need to be to resolve that particular case,” Dunlap said.

As for the future, Dunlap is not entirely sold that conservati­ve judges have the support for new precedent upheaval after Roe.

“I have found that trying to predict is not a great idea,” Dunlap said. “You really never know. But I think they may not have as much support on the conservati­ve side of the court for overturnin­g these other cases as they did for Roe v. Wade.”

“I think that the overturnin­g of Roe v. Wade was a victory in itself for a lot of people. It was not necessaril­y the first step in reversing judicial activism. It was what they were trying to do and having achieved that, some people definitely will be [interested], but not all [will] be that interested in trying to go on and dismantle the whole constituti­onal structure,” Dunlap added. “I think it was abortion and not liberal judicial activism that was the target here.”

Where does Looney’s bill stand today?

S.B. 181 currently awaits a public hearing in the General Assembly’s Joint Judiciary Committee.

Looney said that he encourages the committee to explore other Supreme Court cases to add to the bill.

Overall, Looney is hopeful for unanimity.

He connected his current proposal to the state’s bipartisan push in 1990 to enshrine Roe v. Wade into state law.

Looney, who was a state representa­tive at the time, described Connecticu­t’s Roe codificati­on as “a way to reflect what was a consensus opinion in the state, and to try to protect it from an ideologica­l attack.”

“I think the same reasoning that applied in 1990 when we codified the principles of Roe applies now to this,” Looney said. “I think we need to reassert [these rulings] statutoril­y so that they will continue to be the law in Connecticu­t.”

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