Senate president: Make precedents law
After Supreme Court’s abortion ruling, Looney wants ‘pillars’ codified
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.”