Sidebar: A Seismic Moment

Sidebar, delivered to our subscribers Thursdays at 2:30 p.m., is a newsletter from The Constitution Project at POGO. Sign up here to receive it weekly.

SUPREME COURT

Like so many people, we’re still digesting the draft opinion by Justice Samuel Alito that would overturn Roe v. Wade. It’s a seismic development on many levels, and we’ll be picking up the pieces here in Sidebar and throughout our work at POGO for a long time.

For now, here’s what we think: Before and after we joined POGO, The Constitution Project has taken positions on a number of controversial issues, from capital punishment to Guantanamo. We have not often spoken on abortion. In part, this was because Roe v. Wade was settled law. In part, it was because we tried to bridge divides between the political parties, and abortion was one of the issues where that was most difficult.

But the core of our work has been to promote a reading of the Constitution that prioritizes people, something that the Supreme Court all too often fails to do. In our vision, the Constitution shields the American people from abuse and discrimination, empowers them to participate in democracy, and ensures that government institutions are accountable to them.

The legal theory in the draft opinion is fundamentally at odds with this: It is a full-throated endorsement of the Constitution as a tool of regression. Its reach will go far beyond abortion and open the door for rolling back a host of rights that the Supreme Court doesn’t believe are “deeply rooted in this Nation’s history and tradition.” Our country has a deeply rooted history and tradition of excluding many, even most, of its people from the Constitution’s protections. The list of fundamental rights that we take for granted now, but were first recognized by the Supreme Court after 1950, is too long to do justice to in this newsletter.

While the court has telegraphed this mindset for a long time now, it is still shocking to see it fully articulated. For our part, we are as committed as ever to safeguarding — not removing — constitutional protections.

Some history

As a number of articles this week have eloquently pointed out, fixating on what the Constitution meant in 1787 is misguided. For one thing, as Jill Lepore writes, the framers of the Constitution did not mention women at all. For another, law professor Peggy Cooper Davis argues convincingly the post-Civil War amendments to the Constitution were designed to guarantee all Americans some fundamental control over their bodies and their families with their promises of due process and equal protection. But those promises remained unfulfilled for decades due to the ongoing exclusion of women from public life and white supremacists’ successful efforts to end Reconstruction, both of which were enabled by the Supreme Court. This only changed during what Alito dismissively refers to as “the latter part of the 20th century.”

JUDICIAL ETHICS

Still on the agenda

On Tuesday, the Senate Judiciary Committee’s courts subcommittee held a hearing on judicial ethics reform, echoing last week’s hearing on the House side. Since it happened just hours after the Alito draft was disclosed, it’s understandable the revelation was on senators’ minds during the hearing. But we hope that lawmakers will avoid the trap of viewing ethics reform as a response to how the court rules in that or any case. As we’ve repeatedly emphasized, ethics reform isn’t about singling out or punishing the justices — it’s simply an effort to make sure the Supreme Court, like the other branches of government, has some basic standards of conduct in place.

SURVEILLANCE LAND

Abortion clinic data for sale

Vicereported this week that SafeGraph, a highly controversial data broker, has been selling location data collected from cell phones that tracks visits to clinics providing abortion services. The data, while nominally anonymized, shows where people started their trips, how long they stayed, and where they went after leaving the clinic. This is highly personal information in any circumstance, but it would take on new significance in a post-Roe environment where abortion laws vary state by state. After the story broke, SafeGraph announced it will no longer sell that data.

CDC bought location data for COVID tracking

Meanwhile, Vicealso reported that the CDC bought hundreds of thousands of dollars’ worth of location data from the same vendor — SafeGraph. The purchase was expedited to inform the agency about the spread of COVID-19, but documents show the agency intended to use the data for a wide range of purposes, including measuring the impact of “public policy” on the Navajo Nation. Both these stories add to the stack of reasons for Congress to regulate the sale of location data, both to the government and to private entities.

No warrant, big problem

Last Friday, the Office of the Director of National Intelligence released its annual report on the Foreign Intelligence Surveillance Act (FISA) and national security surveillance. Part of FISA, Section 702, allows intelligence agencies to intercept communications without a warrant if the target of the surveillance is a foreigner, but the surveillance is still allowed if the other person in the conversation is a U.S. citizen. We’ve been ringing the alarm bell for years on a “backdoor search loophole” that allows law enforcement agencies to access those communications even though they were obtained without a warrant. Now we’re starting to see just how big a problem this is. The report contained previously undisclosed information on a truly massive number (as in 3.4 MILLION massive) of FBI queries for Americans’ communications obtained without a warrant.

JANUARY 6

Another win for the committee

In a Sunday night ruling, a federal judge rejected the Republican National Committee’s effort to block a subpoena from the January 6 House committee seeking information about its email program between the election and the insurrection. The ruling added to the list of judicial opinions vindicating the committee’s structure and legislative mandate.

In addition, the committee asked three more members of Congress — Representatives Andy Biggs (R-AZ), Ronny Jackson (R-TX), and Mo Brooks (R-AL) — to provide information. The committee stopped short of issuing subpoenas, meaning the representatives are free to refuse (which Brooks quickly did). But the requests underscore the continuing question of how much help sitting members of Congress provided the insurrectionists.