supreme court essay titles

86 Supreme Court Essay Topics

🏆 best essay topics on supreme court, 🔎 easy supreme court research paper topics, 👍 good supreme court research topics & essay examples, 🎓 most interesting supreme court research titles, 💡 simple supreme court essay ideas.

• The Riley v. California Supreme Court Case Brief
• Supreme Court Decision Research Paper
• Texas vs. Johnson: Landmark of US Supreme Court
• Supreme Court Case Matal v. Tam and The First Amendment
• The United States vs. Trump Supreme Court Case
• Breyer on the Supreme Court’s Fundamental Role
• The Impact of Supreme Court Decisions on the US Economy
• Analysis of Roe v. Wade Supreme Court Case Study Since the Supreme Court’s Roe V. Wade ruling in 1973, around one out of every three pregnancies has resulted in abortion that’s why it is one of difficult and contentious problems.
• The U.S. Supreme Court Election System The elections of the US Supreme Court members are politicized and ideologized, which is incompatible with democratic values and contrary to the Constitution.
• The Loving v. Virginia Supreme Court Case Analysis Loving v. Virginia was a case decided by the Supreme Court of the United States that legalized interracial marriage nationwide.
• Ricci v. DeStefano: Supreme Court Case The paper discusses the Ricci v. DeStefano court matter. A group of African Americans could not get a promotion which they filed as racism in the workplace.
• Supreme Court’s Abortion Ruling Sets Off New Court Fights The article discusses the Supreme Court’s decision to ban abortions and give states the right to decide on their local level whether they want to prohibit it or not.
• The Supreme Court in Lifetime Appointment A lifetime appointment to the Supreme Court is not a beneficial approach for the modern age, and it cannot effectively prevent undue influence over the Justices.
• How the US Supreme Court Affected Japanese Americans Some Japanese Americans refused to relocate to internment camps during World War II, and they also challenged government orders to do so in court.
• The Supreme Court and the American Constitution The paper looks upon Constitutional provisions and Supreme Court’s rulings and discusses the impact they had on American life.
• “Miranda v. Arizona” Supreme Court Ruling The Supreme Court landmark case “Miranda v. Arizona” was decided in 1966. The ruling pertains to the fifth and sixth constitutional amendments.
• Whren v. the United States, 517 US 806 – Supreme Court 1996 Whren’s motion says that the search of the car in which he was a passenger by officers in an unmarked car was a violation of the 4th Amendment.
• The Brown vs. Board of Education Case: Supreme Court Decision This paper will analyze the Supreme Court’s decision in the Brown vs. Board of Education case and discuss its implications for civil rights.
• Historical Controversies of Supreme Court Justice Selection The selection of the new members of the Court is a complicated process that includes confirmation procedures from the President and the Senate.
• Abstract Life Story Build upon Supreme Court Justice Sonia Sotomayor’s Biography This essay will describe the author’s abstract life story, based on Sonia Sotomayor’s achievements the author tends to approach, complimenting it with evidence of uniqueness.
• Supreme Court’s Marbury v. Madison (1803) Case Marbury v. Madison remains a landmark and relevant ruling today for the Supreme Court because the ruling established the doctrine of judicial review.
• Supreme Court Ruling on Affordable Care Act This paper describes the majority opinion of the United States Supreme Court about the ACA. The paper also discusses personal views on the constitutionality of the ACA.
• Loving vs. Virginia: The Supreme Court Case Loving vs. Virginia 388 U.S. 1 (1967) is a historic decision of the U.S. Supreme Court. It was a controversial one that pushed along reform in the United States.
• “Supreme Court Justices Question…” Article by R. Rubin The reviewed article is titled “Supreme Court Justices Question IRS Shield in Tax-Shelter Case,” and it was posted in The Wall Street Journal on December 1, 2020, by Richard Rubin.
• “Trump Administration Asks Supreme Court to Strike down Affordable Care Act” by Stolberg “Trump Administration Asks Supreme Court to Strike down Affordable Care Act” by Stolberg narrates the ultimate goal of the President Donald Trump government.
• Supreme Court Judgeship Appointment Process This paper examines the appointment process and confirming a Supreme Court justice comprising of two main steps – nomination by the President and confirmation by the Senate.
• Lifetime Appointment for the Supreme Court Justices This proposal is motivated by assuming that current Supreme Court Justices are much older and have held office much longer than before.
• Overturning Supreme Court’s Decision on Evenwel v. Abbott and Trump v. Hawaii Evenwel v. Abbott and Trump v. Hawaii are Supreme Court cases in which America’s highest ability to use cumulative population when redistricting and Trump’s immigration policy.
• The Notion of the Supreme Court The following paper is the establishment of a correlation between the Supreme Court and the public as it is supposed to appear in terms of legal considerations.
• Thurgood Marshall and His Supreme Court Justice Thurgood Marshall was born in 1908 in Baltimore, Maryland to William Marshall who worked as a railroad porter and mother an elementary school teacher.
• American Congress, President, and the Supreme Court In performing duties, Congress must keep in mind the interests of the people to ensure that the policies they make serve the best interest of the public.
• The American Supreme Court: Series of Evolution The American Supreme Court has gone through a series of evolutions over the years. Most of these evolutions have been on their composition, size and responsibilities.
• The United States Supreme Court Overview Congress and Justices of the Court are empowered by the constitution to develop the authorities and operations of the entire Judicial Branch of government.
• Supreme Court Decisions on First Amendment “Bill of Rights “is the first ten amendments made to the American constitution. However, the First Amendment is considered to be the most pivotal.
• Supreme Court in Brown v. Board of Education Case The decision of the Supreme Court in “Brown v. Board of Education“ has given the way for the desegregation of white and black in schools.
• American Democracy and Landmark Supreme Court Cases This essay ponders the key values of American democracy and describes landmark Supreme Court cases that have contributed to the formation of the political system.
• Life Terms and Limits of the Supreme Court Justice The paper concludes that the life terms practice should not be changed as it is integral to the existing political system and corresponds with the purpose of the Supreme Court.
• The US Supreme Court Jurisdiction Evolvement The U.S. Supreme Court represents one of the three branches of power that ensures the effective work of the system of checks and balances.
• Judicial Activism on the Supreme Court of Canada The article “Measuring Judicial Activism on the Supreme Court of Canada” encompasses the available empirical and quantitative evidence on judicial activism.
• Patent on Genetic Discoveries and Supreme Court Decision Supreme Court did not recognize the eligibility of patenting Myriad Genetics discoveries due to the natural existence of the phenomenon.
• Supreme Court: Miranda vs. Arizona Miranda v. Arizona is among the most notable Supreme Court cases that were decided in the second half of the twentieth century.
• History of the U.S. Supreme Court The U.S Supreme Court came into existence as per the requirement of the constitution. The USA constitution required that a supreme court is enacted to provide judicial power.
• The Supreme Court Justice Warren Earl Burger’ Biography This research paper covers the life and times of the Supreme court Justice Warren Earl Burger. This research paper is based on a literature review.
• Supreme Court’s and Habeas Corpus War on Terror Since the principles, which the war on terror is based by, are entirely against the postulates of habeas corpus, these postulates should be integrated into the process of combating the terrorists.
• Supreme Court Justice: Homosexual Marriages The question of homosexual relations and untraditional marriages remains to be open for a long period of time. It is hard to make all people choose the same position and stick to it all the time.
• The Supreme Court of the United States: Analysis The Supreme Court is the guardian of the Constitution, protecting its supremacy against the laws of the Centre or the State which conflict with or contravene with its provisions.
• Supreme Court Ruling Bans Bible Reading in Public Schools
• U.S. Supreme Court and the Impact of Sentencing
• The Supreme Court Has a Big Role in American Politics
• Federal Government and Supreme Court Issues
• Supreme Court Can’t Make a Firm Decision About Capital Punishment
• The Supreme Court and Its Effects on the Balance of Power Between Federal and State
• Social Change and the U.S. Supreme Court
• U.S. Supreme Court and the Banking and Credit Union Conflict
• Australian Court Hierarchy and the Supreme Court
• Supreme Court Decision Making and the U.S. Constitution
• The Structural Layout and Functions of The Supreme Court
• Watergate Presidential Immunity Supreme Court
• The Supreme Court’s Role in National Government
• The Purpose and Powers of the United States Supreme Court
• U.S. Supreme Court Institutional Legitimacy
• The Supreme Court as a Strategic National Policymaker
• Influence of Amicus Curiae Briefs on the Supreme Court
• Legal and Political Science Approaches to Predicting Supreme Court Decision-Making
• The Supreme Court and the Meiklejohn Interpretation of the First Amendment
• The Influence of Jurisprudential Considerations on Supreme Court Decision-Making
• Eighth Amendment: Framers Intent and Supreme Court Jurisprudence
• Supreme Court Federal State Power
• The Relationship Between the Supreme Court and Parliament in Light of the Theory of Moves
• Supreme Court Cases Concerning Constitutional Civil Liberties
• Civil Rights and the U.S. Supreme Court
• Appointing vs. Electing Judges to the Supreme Court
• Minors Rights Supreme Court
• Universalizability and Philippine Supreme Court Cases
• Does the Supreme Court Abuse Its Power?
• School Desegregation and the Supreme Court
• The Two Eras That Made the Supreme Court the Most Influential
• Criminal Justice and Leading U.S. Supreme Court Cases
• The Fourteenth Amendment’s Equal Protection and Affirmative Action as Seen in Three Supreme Court Cases
• Supreme Court Ruling Favored Safe and Legal Abortions for Women
• United States Supreme Court and Its Sociopolitical Significance
• The Limits of a Scientific Jurisprudence: The Supreme Court and Psychology
• Lower Court Influence on Supreme Court Opinion Content
• The Dynamics of Public Support for the Supreme Court
• The Uncertain Protection of Privacy by the Supreme Court
• Ideological Values and the Votes of Supreme Court Justices

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StudyCorgi . "86 Supreme Court Essay Topics." May 10, 2022. https://studycorgi.com/ideas/supreme-court-essay-topics/.

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These essay examples and topics on Supreme Court were carefully selected by the StudyCorgi editorial team. They meet our highest standards in terms of grammar, punctuation, style, and fact accuracy. Please ensure you properly reference the materials if you’re using them to write your assignment.

This essay topic collection was updated on January 9, 2024 .

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93 Supreme Court Research Topics & Essay Examples

📝 supreme court research papers examples, 💡 essay ideas on supreme court, ❓ supreme court research questions.

• Gay Marriage and the U.S Supreme Court Law essay sample: The same-sex marriages created implications regarding procedural elements in the American criminal justice system due to the tax matter that formed the basis.
• Supreme Court and the Federal Court System Law essay sample: The US Supreme Court is the highest court on the land charged with the responsibility of interpreting important questions about the constitution.
• Antonin Scalia, an Associate Justice of the US Supreme Court Law essay sample: Scalia was an Associate Justice of the United States Supreme Court from 1986 to 2016, his career life began at an international law firm located in Cleveland.
• Legal Brief: U.S. Supreme Court Ruling in Maryland v. Pringle Law essay sample: According to the research, there were found 5 plastic baggies with a substance that was identified as cocaine.
• Supreme Court of the United States: Marbury v. Madison Law essay sample: The case Marbury v. Madison was one of the most important cases in American law history since it introduced the power of judicial review.
• Freedom of Speech and Related Supreme Court Cases Law essay sample: Some examples from history were when the Court, in the case of Brown against the Board of Education, decided that the division of education institutions by race is not fair.
• Supreme Court Case: Terminiello v. Chicago Law essay sample: In Terminiello v. Chicago case, the appellant was Father Arthur Terminiello and the respondents were Chicago, Illinois courts, Robert H. Jackson, and the Chicago police.
• Supreme Court on Native American Adoption Law Law essay sample: This paper discusses the Indian Child Welfare Act of 1978 and the controversy surrounding its constitutionality, which led to lower court decisions declaring it unconstitutional.
• The Roper v. Simmons Case Analysis Law essay sample: Whether the execution of a person who was 17 years old when he executed a murder is prohibited under the Eighth and Fourteenth Amendments?
• Florida v. Harris and Florida v. Jardines Cases Comparison Law essay sample: The cases of Florida v. Harris and Florida v. Jardines share some similarities. However, several peculiarities create a definite distinction between the two.
• The Charkaoui v. Canada Supreme Court Case Law essay sample: The Supreme Court of Canada issued a decision in Charkaoui v. Canada about the legality of procedures for determining the proportionality of a security certificate.
• Dobbs v. Jackson Women's Health Organization Decision by the U.S. Supreme Court Law essay sample: After careful consideration, most judges decided that abortion is not a constitutional right and that no individual is given authority to regulate access to the matter.
• The Miranda vs. Arizona Case Decision Law essay sample: This paper discusses the case of Miranda vs. Arizona on whether the Supreme Court made the right decision in reversing the judgment.
• District of Columbia v. Heller: Rights to Possess Arms Law essay sample: District of Columbia v. Heller was one of the most significant decisions made by the U.S. Supreme Court that influenced individuals’ rights to possess arms.
• The Bush vs. Gore Case in the Supreme Court Law essay sample: If the Supreme Court is to rule over a case such as Bush vs. Gore, the ruling issued should not form part of the precedence to rely on when providing judgment.
• Hernandez v. Texas Case: Discrimination Charges Against Indigenous Peoples Law essay sample: The case Hernandez v. Texas, which occurred on May 3, 1954, defined how the American legal system handles discrimination charges against indigenous peoples.
• Change in Role of Supreme Court Over Time Law essay sample: The Supreme Court is the most powerful in the country and hears all issues and disagreements relating to other American laws and the Charter of Rights and Freedoms.
• Immigration Law: The Biden v. Texas Case Law essay sample: The recent Supreme Court decision in the case of Biden v. Texas, 597 U.S., was a hallmark for immigration laws in the U.S
• The Role of the Supreme Court in Shaping Legal Precedent
• Key Landmark Decisions of the Supreme Court
• The Supreme Court and Parental Rights Termination
• Judicial Review: Understanding the Supreme Court’s Power
• U.S Supreme Court vs. Constitutional Right to Carry a Handgun
• The Evolution of the Supreme Court: Past to Present
• Supreme Court Nominations: Impact on Legal Landscape
• American Political System and Supreme Court Reform The United States of America is one of the oldest democracies in the world. It is an election-driven and representative federal democracy.
• Balancing Act: The Supreme Court and the Constitution
• The Supreme Court in the Judiciary System of the USA
• Socio-Political Importance of the US Supreme Court
• The Significance of Supreme Court Dissents
• Supreme Court Jurisdiction: Boundaries and Scope
• The Supreme Court’s Role in Safeguarding Civil Liberties
• Supreme Court and the Separation of Powers Doctrine
• The Supreme Court and the History of Reconstruction The article focuses on the connection between the views of historians on Reconstruction and Supreme Court jurisprudence.
• Legal Interpretation: Methods Employed by the Supreme Court
• Selecting Judges for the Supreme Court: Appointing vs. Electing
• The Most Important Bankruptcy Supreme Court Cases
• Supreme Court Scrutiny: The CSI Effect and Its Jurisprudential Implications
• The Politicization of Supreme Court Confirmations
• Presidential Appointments of Supreme Court Justices
• Supreme Court and the Bill of Rights: A Historical Perspective
• The Supreme Court’s Impact on Social Change
• Supreme Court and Federalism: Examining State vs. Federal Powers
• The Constitution and the US Supreme Court The Supreme Court has created a significant collection of judicial opinions, or precedents following the Constitution.
• Discussing Justice Term Limits on the Supreme Court
• The Supreme Court’s Methods of Interpreting the Constitution
• Judicial Independence: The Supreme Court as a Check and Balance
• Supreme Court and Electoral Law: Key Cases and Issues
• The Influence of Public Opinion on Supreme Court Decisions
• Supreme Court Dynamics: Balancing Judicial Activism vs. Judicial Restraint
• The Supreme Court’s Role in Resolving Constitutional Conflicts
• Supreme Court and Due Process: Protecting Individual Rights
• Antitrust Policy and Mergers: The Wealth Effect of Supreme Court Decisions
• The Role of the Supreme Court in Ensuring Equal Justice
• Examining the Supreme Court Appointments: Life-Long Impact Appointing a Supreme Court Justice is an significant process for the government of the United States because it holds tremendous power over the future development of the state.
• Supreme Court and the Evolving Definition of Free Speech
• Judicial Activism vs. Judicial Restraint: Supreme Court Perspectives
• The Approval Process of Supreme Court Justice
• The Supreme Court of the U.S This work describes the history of the formation of the US Supreme Court, its basic legislative framework and the current court format.
• Supreme Court and Religious Freedom: Key Cases
• The Supreme Court’s Influence on Criminal Justice Policies
• Supreme Court and Technology: Navigating the Digital Age
• The Supreme Court’s Role in Defining Marriage Equality
• What Is the Crucial Role of the Supreme Court in Upholding the Constitution?
• Should Supreme Court Justices Have Term Limits?
• How Does the Supreme Court Employ Various Methods in the Interpretation of Legal Matters?
• What Is the Purpose of the Length of the Term for a Supreme Court Justice?
• In What Ways Has the Supreme Court Evolved From Its Inception to the Present Day?
• How Do Supreme Court Nominations Impact the Overall Legal Landscape?
• Why Are Dissents Considered Significant Within the Context of Supreme Court Decisions?
• In What Ways Does the Canadian Supreme Court Differ From the US Supreme Court?
• How Do Supreme Court Decisions Give Power to the States?
• What Are the Jurisdictional Boundaries and Scope of the Supreme Court’s Authority?
• Are US Supreme Court Justices Politically Biased?
• How Does the Supreme Court Navigate the Delicate Balance of Powers Between Branches of Government?
• What Methods Does the Supreme Court Use to Interpret Legal Matters?
• Should the Number of Supreme Court Justices Be Increased?
• What Is the Minimum Age to Be a Judge of the Supreme Court?
• How Does the Supreme Court Contribute to the Development of Legal Precedent?
• What Is the Historical Perspective of the Supreme Court’s Involvement in Upholding the Bill of Rights?
• How Many Members Are in the Supreme Court?
• Can the Supreme Court Make a Decision That Violates the US Constitution?
• What Is the Main Function of the Supreme Court?
• How Has the Supreme Court Interpreted the Second Amendment?
• In What Ways Has the Supreme Court Contributed to Social Change Through Its Decisions?
• Which US President Also Served on the Supreme Court?
• How Does the Supreme Court Impact Electoral Laws, Citing Key Cases and Issues?
• What Are the Landmark Judgements of the Supreme Court of India?
• How Does the Supreme Court Ensure Due Process and Protect Individual Rights?
• Does the President Have Power Over the Supreme Court?
• What Influence Does Public Opinion Have on the Decisions Rendered by the Supreme Court?
• Should Supreme Court Justices Be Elected Instead of Appointed?
• What Is the Difference Between the High Court and the Supreme Court?

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LawBirdie. (2024, February 14). 93 Supreme Court Research Topics & Essay Examples. https://lawbirdie.com/topics/supreme-court-research-topics/

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LawBirdie . "93 Supreme Court Research Topics & Essay Examples." February 14, 2024. https://lawbirdie.com/topics/supreme-court-research-topics/.

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Constitutional Topics

Kennedy v. bremerton school district.

597 U.S. __ (2022)

Dobbs v. Jackson Women’s Health Organization

597 U.S. ___ (2022)

Roman Catholic Diocese of Brooklyn v. Cuomo

592 U. S. __ (2020)

Our Lady of Guadalupe School v. Morrissey-Berru

591 U.S. __ (2020)

Espinoza v. Montana Dept. of Revenue

Carpenter v. united states.

585 U.S. ___ (2018)

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission

584 U.S.__ (2018)

Obergefell v. Hodges

576 U.S. ___ (2015)

Zivotofsky v. Kerry

Town of greece v. galloway.

572 U.S. 565 (2014)

Shelby County v. Holder

570 U.S. 529 (2013)

National Federation of Independent Business v. Sebelius

567 U.S. 519 (2012)

Citizens United v. Federal Election Commission

558 U.S. 310 (2010)

District of Columbia v. Heller

554 U.S. 570 (2008)

Lawrence v. Texas

539 U.S. 558 (2003)

Bush v. Gore

531 U.S. 98 (2000)

Printz v. United States

521 U.S. 898 (1997)

Washington v. Glucksberg

521 U.S. 702 (1997)

United States v. Virginia

518 U.S. 515 (1996)

United States v. Lopez

514 U.S. 549 (1995)

Employment Division v. Smith

494 U.S. 872 (1990)

Texas v. Johnson

491 U.S. 397 (1989)

Morrison v. Olson

487 U.S. 654 (1988)

Hazelwood School District v. Kuhlmeier

484 U.S. 260 (1988)

South Dakota v. Dole

483 U.S. 203 (1987)

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.

467 U.S. 837 (1984)

Lynch v. Donnelly

465 U.S. 668 (1984)

Harlow v. Fitzgerald

457 U.S. 800 (1982)

Regents of the University of California v. Bakke

438 U.S. 265 (1978)

United States v. Nixon (The Tapes Case)

418 U.S. 683 (1974)

Frontiero v. Richardson

411 U.S. 677 (1973)

Roe v. Wade

410 U.S. 113 (1973)

Wisconsin v. Yoder

406 U.S. 205 (1972)

New York Times Co. v. United States (The Pentagon Papers Case)

403 U.S. 713 (1971)

Brandenburg v. Ohio

395 U.S. 444 (1969)

Tinker v. Des Moines Independent Community School District

393 U.S. 503 (1969)

Terry v. Ohio

392 U.S. 1 (1968)

Katz v. United States

389 U.S. 347 (1967)

Loving v. Virginia

388 U.S. 1 (1967)

Miranda v. Arizona

384 U.S. 436 (1966)

South Carolina v. Katzenbach

383 U.S. 301 (1966)

Griswold v. Connecticut

381 U.S. 479 (1965)

United States v. Seeger

380 U.S. 163 (1965)

Reynolds v. Sims

377 U.S. 533 (1964)

New York Times Company v. Sullivan

376 U.S. 254 (1964)

Sherbert v. Verner

374 U.S. 398 (1963)

Gideon v. Wainwright

372 U.S. 335 (1963)

Engel v. Vitale

370 U.S. 421 (1962)

Mapp v. Ohio

367 U.S. 643 (1961)

Sweezy v. New Hampshire

354 U.S. 234 (1957)

Brown v. Board of Education of Topeka

347 U.S. 483 (1954)

Youngstown Sheet & Tube Co. v. Sawyer (Steel Seizure Case)

343 U.S. 579 (1952)

Terminiello v. Chicago

337 U.S. 1 (1949)

Everson v. Board of Education of Ewing Township

330 U.S. 1 (1947)

Korematsu v. United States

323 U.S. 214 (1944)

West Virginia State Board of Education v. Barnette

319 U.S. 624 (1943)

Wickard v. Filburn

317 U.S. 111 (1942)

Thornhill v. Alabama

310 U.S. 88 (1940)

Erie Railroad Co. v. Tompkins

304 U.S. 64 (1938)

United States v. Carolene Products Co.

304 U.S. 144 (1938)

West Coast Hotel Co. v. Parrish

300 U.S. 379 (1937)

Crowell v. Benson

285 U.S. 22 (1932)

Stromberg v. California

283 U.S. 359 (1931)

Olmstead v. United States

277 U.S. 438 (1928)

Whitney v. California

274 U.S. 357 (1927)

Gitlow v. New York

268 U.S. 652 (1925)

Pierce v. Society of Sisters

268 U.S. 510 (1925)

Abrams v. United States

250 U.S. 616 (1919)

Schenck v. United States

249 U.S. 47 (1919)

Lochner v. New York

198 U.S. 45 (1905)

United States v. Wong Kim Ark

169 U.S. 649 (1898)

Plessy v. Ferguson

163 U.S. 537 (1896)

Chinese Exclusion Case—Chae Chan Ping v. United States

130 U.S. 581 (1889)

The Civil Rights Cases

109 U.S. 3 (1883)

Strauder v. West Virginia

100 U.S. 303 (1880)

Reynolds v. United States

98 U.S. 145 (1879)

Minor v. Happersett

88 U.S. 162 (1875)

Bradwell v. The State of Illinois

83 U.S. 130 (1873)

The Slaughter-House Cases

83 U.S. 36 (1873)

Dred Scott v. Sandford

60 U.S. 393 (1857)

McCulloch v. Maryland

17 U.S. 316 (1819)

Marbury v. Madison

5 U.S. 137 (1803)

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Background Essay: The Supreme Court and the Bill of Rights

Guiding Question: How has the Supreme Court decided cases in controversies related to the Bill of Rights?

• I can identify the role of the Supreme Court in protecting civil liberties.
• I can explain how the Supreme Court’s role has changed over time.

Essential Vocabulary

During the last 60 years, the Supreme Court has become perhaps the central defender of civil liberties, or freedoms that government is not allowed to restrict, in the United States. This role has been a relatively recent development that marked a distinct change from the Founding, when the Court mostly addressed government powers. The evolution of this role for the Court has greatly expanded popular expectations of enjoying individual rights. However, it has also been fraught with numerous difficulties, both for the constitutional order and for the Supreme Court itself, as it has become the center of controversy about rights.

Limited Government and the Supreme Court

The original Founding understanding of the Bill of Rights was that it limited the powers of the federal government to violate the rights of the people. When originally ratified, the Bill of Rights only applied to the national government, not to state governments. State governments had their own bills of rights to protect their citizens. This reflected the constitutional principle of federalism, or the separation of powers between state and national governments. The Supreme Court endorsed this Founding view that the Bill of Rights applied only to the national government in the case Barron v. Baltimore (1833).

Moreover, this also represented the principle of limited government, one of the foundations of protecting liberties. The national government had certain enumerated and implied powers that the three branches—legislative, executive, and judicial—exercised in making, executing, and interpreting the law. Enumerated powers are those listed explicitly in the Constitution. Implied powers are those that government has that are not written in the document. The national government could not exceed these powers to violate the liberties of the people. To further this protection, states had their own bills of rights. The Declaration of Independence asserted that the ultimate protection of the people’s liberties is the overthrow of a tyrannical government after a long train of abuses.

The role of the Court was to hear all cases arising under the Constitution. After the case of Marbury v. Madison (1803), the Court’s role expanded to include determining the constitutionality of governmental laws and actions. However, there was debate over whether or not the other branches also had the responsibility of interpreting the Constitution.

It is important to note that although the Court could rule a law or action unconstitutional, it was not necessarily the final word on the Constitution. In a speech critical of the Dred Scott v. Sandford (1857) decision, Abraham Lincoln quoted Andrew Jackson, saying, “The Congress, the executive and the court, must each for itself be guided by its own opinion of the Constitution.” Lincoln was arguing that the Court’s authority and just precedents , or earlier laws or rulings, should be respected, but the Supreme Court was not necessarily the final word on the meaning of the Constitution and could make errors, as it did in Dred Scott . All the branches must interpret the document in the exercise of their constitutional powers for the ends of liberty, equality, and justice.

The Supreme Court, Incorporation, and the Bill of Rights from the Twentieth Century to Today

The due process clause of the 14th Amendment led to the incorporation of the Bill of Rights, which meant that the Supreme Court applied the Bill of Rights to the states. During the first half of the twentieth century, the Court incorporated the Bill of Rights selectively in a few cases. For example, it extended the First Amendment right of free speech against state violation in Gitlow v. New York (1925) and freedom of the press in Near v. Minnesota (1931).

The popular understanding of the Court as the protector of individual rights became widely accepted during the Warren Court (1953–1969) and after. Many of the decisions were controversial because Americans viewed the issues involved differently. Some Americans questioned whether the Court was the appropriate branch to define rights or whether it should be left to the other branches of government or the amendment process. The Court also controversially overturned the laws and common values of states and local communities for one uniform, national standard.

The Court expanded the application of the Bill of Rights (incorporated) to the states in several areas and protected civil liberties in new ways. For example, the Court banned school-sponsored prayer and Bible reading in public schools in Engel v. Vitale (1962) and Abington School District v. Schempp (1963), respectively, for violating the establishment clause of the First Amendment.

The Court protected the rights of students in local public schools in other ways. In Tinker v. Des Moines (1969), the Court decided that students had the right of free speech to protest the Vietnam War under the First Amendment. The students had worn black armbands to protest the war despite a warning not to, and the school suspended them.

The Court protected the rights of the accused in major cases during the mid-1960s. The Court stated that criminal defendants are entitled to an attorney in Gideon v. Wainwright (1963). The Court excluded, or left out, illegally seized criminal evidence under the Fourth Amendment in Mapp v. Ohio (1964). In Miranda v. Arizona (1966), the Court decided that police officers must provide a “Miranda warning” informing accused people of their rights before questioning them about a crime.

The Court also made key decisions on moral issues that were fiercely debated in American society. In Griswold v. Connecticut (1965), the Court asserted that a “right to privacy” exists and is implicit in several amendments of the Bill of Rights. Therefore, the Court declared a state law banning birth control unconstitutional. The decision was a precedent for the use of the right to privacy argument in Roe v. Wade (1973), which established a right to abortion.

In recent decades, the Court helped protect gay rights. In Lawrence v. Texas (2003), the Court invalidated state laws banning homosexual acts. In Obergefell v. Hodges (2015), the Court made gay marriage a right when it required states to recognize the same-sex marriages of other states.

The Supreme Court has left a mixed record regarding its decisions related to the Bill of Rights. On one hand, Court rulings have protected what seem like reasonable and fundamental individual liberties. On the other hand, the Court has made rulings on cultural, social, and moral disputes that often did little to resolve the wider debate over the issues and maybe even fueled division among Americans. In recent decades, for better or worse, Americans have increasingly looked to the Supreme Court as the protector of civil liberties and the final word on the Constitution.

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Supreme Court - Essays

The origins and legacy of justice marshall's "new rule" of conquest in johnson v. m'intosh.

Patricia Engle (January 2004)

 (1)    Johnson v. M'Intosh is a title dispute over a land parcel of some 12,000 acres in present-day southern Illinois.  The case, decided by the U.S. Supreme Court under Chief Justice John Marshall in 1823, turned on the question of whether or not Indians had the right to transfer land title by sale to private citizens.  Like many cases that determined the rights of U.S. aboriginal peoples, the litigants were non-native whites.  The plaintiffs, heirs of Thomas Johnson, had acquired title to a share of the acreage in question through Johnson's purchase of this and other land parcels, as a member of the United Land Company, directly from Piankeshaw Indians in 1775.  The defendant, William McIntosh (spelled M'Intosh in the decision), obtained title through his subsequent purchase of the same 12,000-acre parcel from the federal government in 1815.  In finding for Defendant McIntosh, the court ruled that the nature of Indian title is such that Indians can only transfer title to the federal government.  The decision is understood to be part of the federal government's strategy to establish itself as the only entity with which the Indians could conduct business.  Johnson v. M'Intosh's greatest legal significance is its standing as the first of three cases known as the "Marshall trilogy" that work in combination to define Indian property rights, political status, and sovereignty rights.

(2)     Joseph C. Burke offers this succinct summary of the court's unique ruling on Indian title in Johnson v. M'Intosh :

The United States held the ultimate right to the soil; the tribes retained the right of possession with the limitation that they could sell only to the United States.  Marshall suggested that the right of the United States might be compared to a "seisin in fee" and the Indian right to a "lease for years." (138)

As Eric Kades has pointed out, the effect of the decision was to establish the federal government as a "monopsony," creating a single-buyer market ("History" par. 123) for the purpose of driving down the price of Indian land even further than it had been:  "By preserving a unitary entity to deal with the Indians, Marshall's opinions [in the trilogy cases] helped the United States to continue to buy Indian land cheaply" ("Dark Side").  Scholars have tended to view Marshall's ruling in M'Intosh as a foregone conclusion, a mere administrative codification of federal policy and national ambitions.  Robert A. Williams, Jr., for example, has characterized Marshall's decision in M'Intosh as a "fait accompli" (308), since Marshall's "judicial task was merely to fill in the details and rationalize the fictions by which Europeans legitimated the denial of the Indians' rights in their acquisition of the Indians' America" (312).

(3)    Whether or not the court's establishment of the federal government as the holder of "ultimate" title to Indian soil was legal or proper, M'Intosh is relied upon by Indians and Indian law scholars alike for the "half a loaf" it retained for Native Americans: recognition that certain vestiges of tribal sovereignty, particularly with respect to self-government, remained intact.  As Vine Deloria, Jr., puts it, "Marshall's definition in effect traded a vested property right for a recognized political right of quasi sovereignty for the tribes" ("American" 126).  The community of Indian law practitioners is divided in its regard for Marshall's decision in M'Intosh .  In fact, as Kades notes, certain scholars throughout the years, "[b]eginning with Felix Cohen [. . .], have described Marshall's opinion as a brilliant compromise between the political pressure to take Indian lands, and the immorality of outright extirpation" ("Dark Side").  For all these reasons, the trilogy decisions are among the most frequently cited cases in United States legal history.

Argument for Rhetorical Significance

 (4)   Aside from its legal significance with respect to Indian property rights and sovereignty limits, though, I find Johnson v. M'Intosh of critical historical value because it exposes hidden and unstable prejudices in United States American ideology, literally in their making.  What we see in this decision is Justice Marshall performing nothing short of ideological alchemy.  He "marshals" together all the ingredients of medieval conquest discourse theretofore used to justify removal of native peoples from their U.S. homelands and, recognizing that none, singly or in tandem, truly pass legal muster, applies to them the pressure of manifest destiny to transform them into a "new and different rule" of "conquest."  That "new and different rule" served to dispossess native peoples of their lands, decimate their numbers, and extinguish many native cultures as well, while skewing core dogma of U.S. democracy with faulty premises of superior entitlement.  Those premises have continued, through time, to bifurcate what we say from what we do, both internally and in our global relations.  Furthermore, inasmuch as the trilogy decisions established doctrines inconsistent with treaties, postures, and pronouncements that the legislative and executive branches of the government had represented up to that point in time, they set dangerous precedent for judiciary caprice, which we are seeing reach crisis proportions today.

 (5)    Accordingly, I invite the reader to approach the Johnson v. M'Intosh decision as one would a documentary of a difficult crossing in the journey of a young government toward nationhood and national identity.  What I argue is that M'Intosh and the trilogy document two parallel tracks of boundary expansion that were simultaneously occurring in the United States after the colonies achieved independence from Great Britain: at the same time that native territorial boundaries were being breached and pushed continually westward, the moral boundaries of nascent U.S. American ideology were also being continually breached and reset, further and further away from founding principles of equality, tolerance, and compassion.  The good news is that the slippage did not go down easily or uncontested.  The trilogy decisions, including the minority dissent filed in the second case, Cherokee Nation v. State of Georgia , and the concurring opinion in the third, Worcester v. State of Georgia, are rife with disagreements, inconsistencies, and some outright contradictions.  To the extent that the justices' disagreements may reflect inherent, continuing, and growing unrest about the treatment of Native Americans in the United States and the ancillary damage done to the nation's founding principles, reparations and course changes still remain possible.  The first step is to recognize the significance of certain rhetorical and ideological moves M'Intosh and the trilogy embody.  The particular aspects of M'Intosh I propose to probe are Justice Marshall's treatment of medieval doctrines of "discovery" and "conquest," the nature of the "new rule" of conquest he forges from these traditional land-seizing justifications, and certain ideological dynamics between M'Intosh and the other two cases in the trilogy with respect to human rights and national interests.

Discovery Doctrine Endorsed on Principle

 (6)    Despite some pro forma equivocation on its plausibility and rationality, Justice Marshall agrees that the "doctrine of discovery" granted various European powers rightful entitlement to certain pieces of North America "discovered" under their commissions to be either empty or occupied by non-Christian, non-agricultural peoples, which Marshall finds had been historically considered to mean the same thing:  "[N]o distinction was taken between vacant lands and lands occupied by the Indians."  On his first pass, Marshall upholds discovery rights on principle:

On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire.  Its vast extent offered and [sic] field to the ambition and enterprise of all; and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendancy.

Further in the decision, he reiterates:

Although we do not mean to engage in the defence of those principles which Europeans have applied to Indian title, they may, we think, find some excuse, if not justification, in the character and habits of the people whose rights have been wrested from them.

And elsewhere:

This opinion conforms precisely to the principle which has been supposed to be recognized by all European governments, from the first settlement of America.  The absolute ultimate title has been considered as acquired by discovery [. . .].

Certainly, Marshall does more than simply review the history and practice here; he vigorously defends it, pointedly upholding the medieval premise that the primacy of Christianity and Western "civilization" justifies seizure of lands from non-Christian peoples.  Accordingly, he finds Great Britain's New-World claims, passed on to the newly independent United States, legal and binding in U.S. law.  The federal government's title, he ruled, was subject only to the fatally tenuous, as the later Cherokee case would prove, "Indian right of occupancy."

(7)    As Williams argues, Marshall's endorsement of the discovery doctrine on principle in M'Intosh facilitated not only the material dispossession but also the cultural extirpation of native peoples, on the basis of a doctrine which, at its heart, is inherently and inescapably biased and oppressive:

Perhaps most important, Johnson's acceptance of the Doctrine of Discovery into United States law preserved the legacy of 1,000 years of European racism and colonialism directed against non-Western peoples. [. . . ] While the tasks of conquest and colonization had not yet been fully actualized on the entire American continent, the originary legal rules and principles of federal Indian law set down by Marshall in Johnson v. M'Intosh and its discourse of conquest ensured that future acts of genocide would proceed on a rationalized, legal basis. (317)

Williams' placement of racism in discovery's wake supports my sense that race, class, and other manner of social oppression became embedded in U.S. ideology by the manner in which the Indian lands were taken.  Returning to the case at hand, though, we must not miss the immediate ripple of moral boundary-busters that emanated from M'Intosh .  The state of Georgia, for one, wasted no time in putting to use the "gift" that the M'Intosh decision clearly constituted to a state seeking seizure of title to Indian-occupied land.  Georgia began, in 1824, actions culminating in its 1828 Indian Removal Act (Washburn 27), the subject of the second case in the Marshall trilogy (1831), which resulted in the driving of some 16,000 Cherokees, in all, from their ancestral homelands in the south across the Trail of Tears to Oklahoma (Deloria, "American" 129).

(8)    Although M'Intosh does not give individual states the right to extinguish Indian title, reserving that unique power to the federal government, Georgia knew that obtaining federal approval was just a move away.  Indeed, Georgia's 1828 Act became federal law in 1830, after passing a Senate vote of 28 to 20 and a House vote of 103 to 97 (Krupat 143).  Justice Marshall's belated attempt to halt the Cherokees' removal by declaring Georgia's actions "repugnant to the constitution, laws, and treaties of the United States" in the third case of the trilogy, Worcester v. State of Georgia , was for naught.  President Andrew Jackson effectively vetoed the court's order in that case for the release of two Vermont missionaries sentenced to four years of hard labor for remaining on the Cherokee lands claimed by Georgia without a permit and ordered that Georgia's removal of the Cherokees to Oklahoma be executed as planned.

(9)    Thus, the Supreme Court's truncation of Indian title in M'Intosh , followed by its nullification of Indian legal rights in the second case by declaring the Cherokees neither citizens nor foreign nations and therefore unable to advance a complaint in the legal system, can be seen as having triggered the Georgia-Jackson coalition and the enactment of an epic American tragedy that even the Supreme Court could not stop.  Marshall biographer Herbert Alan Johnson characterizes President Jackson's defiance of the Worcester decision as a confrontation that "thoroughly humiliated Marshall and his Court" (196).  However, the role that M'Intosh played in constructing what Arnold Krupat calls "the story" that justified Indian removal in the 1830s cannot be overlooked.  In Krupat's view,

[. . .] Indian removal could finally be written into law and enforced in the 1830s because by that time, a certain story about America and about "civilization" had become sufficiently acceptable that it could be used as ideological justification for "certain sequences of causes and effects," for the policy of [ . . . ] "expansion with honor." (133)

In this sense, the justifications Marshall articulated for the federal government's title rights to Indian land in M'Intosh — as much as the case decision itself — worked like the evil magic described in Leslie Marmon Silko's Ceremony , "set in motion" by a sorcerer's spell to send whites "swarming like larva / out of a crushed ant hill" (136) to dispossess natives across the United States.  Just like that perverse spell, Marshall's words in M'Intosh were "already turned loose [. . .] already coming [. . .] can't be called back" (138).

(10)    It is important to note that the "front" presented by the legislative and executive branches of the federal government prior to M'Intosh had by and large been one that sought to court the native chiefs in peace and friendship, a fact Marshall acknowledged in the denigrated Worcester decision, as will be discussed hereinafter.  Such good-government/bad-government strategies, coupled with the discursive skips and shifts evident among the trilogy cases themselves and in their relation to legislative and executive policies that followed in their wake, were consistent with the way Old World empire expansion had been conducted.  The Marshall decision in M'Intosh signaled that the business of empire would proceed in the New World in the same way but on a larger scale, with greater speed and legal backing.  Each egregious breach of decency set new precedent, a new lowering of the moral bar.  M'Intosh's endorsement of the discovery doctrine on principle dropped the bar low and long enough to release imperialist greed into the United States legal system.  

Discovery Doctrine Endorsed on Basis of Practice

(11)    If endorsement of the discovery doctrine on principle were not enough, though, Marshall also affirms the validity of its New-World application on the bases of historical precedent and the native people's acquiescence:

However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear; if the principle has been asserted in the first instance, and afterwards sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it; it becomes the law of the land, and cannot be questioned. [. . .] However this restriction may be opposed to natural right, and to the usages of civil nations, yet, if it be indispensable to that system under which the country has been settled, and be adapted to the actual condition of the two people, it may, perhaps, be supported by reason, and certainly cannot be rejected by Courts of justice.

Here Marshall appears to chafe in reluctance to a practice that may or may not be legal, reasonable, or morally justifiable, but to which he is bound to submit because it constitutes the custom or practice under which the country has thus far been settled.  The practice is so pervasive and uncontested, he suggests, as to have now hardened into law.  In my opinion, this position is indefensible for several reasons.

(12)     First, the doctrine of discovery only applied to European powers, not the indigenous peoples over whose lands the monarchs were competing.  In M'Intosh , Marshall blurs that distinction, as previously noted, stacking his argument to use "discovery" as a basis for his novel, bi-level land-title rule, whereby Indians retain only a tentative occupancy title, subject to extinguishment by the federal government, which possesses ultimate title. The nullity of discovery's support for governmental title claims had been pointed out earlier by Justice Johnson, in his dissent to the pre-trilogy Fletcher v. Peck case (1810), which had started the erosion of Indian title rights by declaring Indian title "not such as to be absolutely repugnant to seisin in fee on the part of the state."  Justice Johnson had disagreed then with the majority's finding that both the Indians and the state of Georgia could claim title right to Indian soil:

[I]numerable treaties formed with [Indians] acknowledge them to be an independent people, and the uniform practice of acknowledging their right of soil, by purchasing from them, and restraining all persons from encroaching upon their territory, makes it unnecessary to insist upon their right of soil.[. . .] What, then, practically, is the interest of the states in the soil of the Indians within their boundaries?  Unaffected by particular treaties, it is nothing more than what was assumed at the first settlement of the country, to wit, a right of conquest or of purchase, exclusively of all competitors within certain defined limits. ( Fletcher v. Peck )

(13)    In his 1832 Worcester decision, finally, Marshall reins in his expansive interpretation of  "discovery" in this regard, placing it more in conformance with Justice Johnson's arguments twenty-one years earlier:

This principle, acknowledged by all Europeans, because it was the interest of all to acknowledge it, gave to the nation making the discovery, as its inevitable consequence, the sole right of acquiring the soil and of making settlements on it.  It was an exclusive principle which shut out the right of competition among those who had agreed to it; not one which could annul the previous rights of those who had not agreed to it.

Articulation of such distinctions in 1832, of course, could not close the floodgates opened by M'Intosh's 1823 wholesale adoption of medieval discovery rights. In fact, given the pattern of events that Marshall had seen flow from M'Intosh in those nine years, his pronouncements in support of Cherokee treaty and land rights in the 1832 Worcester case can be seen as gratuitous and self-serving, though Marshall biographer R. Kent Newmyer suggests he may have approached Worcester with an eye to "soften the impact of M'Intosh , and to harmonize the law of the land with his personal feelings about Native Americans" (qtd. in Kades, "History" par. 126).

(14)     Second, Marshall's position that the discovery rule had been settled by acquiescence and precedent in the United States is shamefully gratuitous for two reasons: 1) the treaties and verbal agreements the federal government had been forging with the Indians since first contact made no such representations of the government holding ultimate title to tribal lands, by virtue of the discovery doctrine or any other such dream-law; and 2) the Indians had no voice recognized by U.S. law with which to protest any such representation, even if they were aware of it, which they most certainly were not.  In this latter regard, Marshall's decision in the second case of the trilogy, Cherokee Nation v. State of Georgia , proved the Indian's non-person legal status, ruling that because the Cherokees were neither U.S. citizens, nor a foreign nation, nor citizens of a foreign nation, they had no legal right under the Constitution to bring their complaint of eviction from ancestral homelands, in violation of a federal treaty, to the U.S. Supreme Court.

(15)     Kades employs Hirschleifer's principle of "muscular economics" to describe the manner in which the federal government coldly and efficiently expropriated tribal lands and, in this connection, cites Johnson v. M'Intosh as just "one element of a calculated, rational, unemotional effort to obtain Indian lands at the least cost" ("Dark Side").  Cost efficiency, Kades surmises, dictated Marshall's reasoning to an extent that necessarily excluded all moral and humane considerations:

This analysis rejects the kindness imputed to Marshall by the benevolent school and the truculence imputed by the malevolent school.  The working assumption is that such a sweeping national policy to transfer wealth must be understood, at bottom, in terms of selfishness (economics), not benevolence or malevolence (morality or lack thereof). ("Dark Side")

Certainly, the silence and invisibility of native peoples themselves from the trilogy cases prove that the U.S. government in its infancy stages had mastered from the British the fine art of "shunning" indigenous peoples into non-person status in order to justify seizure of their land. The pattern employed in the Crown's 17th century Ulster plantation project in Northern Ireland is replicated here in cool precision: suspension of legal rights, the outlawing of the culture, and the galvanizing of settlers against the indigenous "others."  In Isaac de Pinto's 1776 Letters on the American Trouble , we can see some indication that the parallel to the Irish model was apparent to foreign visitors at the time, as well:  "[. . .] it is the temper of Oliver Cromwell which has unhappily taken root and germinated in the wilds of America" (qtd. in Pagden 37).

(16)    The Ulster plantation parallels the U.S. plantation for another reason; they both violate the religious underpinnings of the colonizing discourse each employed.  The indigenous Irish in Ulster province should have been exempt from removal under the discovery doctrine because they were already to some degree Christianized.  Their removal on the basis of England's "discovery" and "conquest" rights makes as much sense as dispossessing the deeply spiritual Native Americans from their United States homelands to make room for a new government founded on freedom of religion.  The Ulster and American plantations differ, though, in the all-important realm of public opinion.  The oft-quoted observations of Alexis de Tocqueville summarize the nature and effect of the new level of "humanity" United States Americans had grafted onto Old World models of plantation:

The Spaniards by unparalleled atrocities which brand them with indelible shame did not succeed in exterminating the Indian race and could not even prevent them from sharing their rights; the United States Americans have attained both these results with wondrous ease, quietly, legally, and philanthropically, without spilling blood and without violating a single one of the great principles of morality in the eyes of the world.  It is impossible to destroy men with more respect to the laws of humanity. (qtd. in Krupat 144)

Sir Francis Bacon enunciates the lethally subtle distinction that occurs when "plantation" is undertaken on occupied soil: "I like a Plantation in a pure soil; that is where People are not displanted to the end, to Plant others.  For else it is rather an Extirpation than a Plantation" (qtd. in Pagden 79).  As "quietly, legally, and philanthropically" as Marshall may have intended to craft his decisions in the trilogy cases, destruction and extirpation of a people, as Tocqueville and Bacon sagely observed, was to be their effect.

(17)    While they were barred from the courtrooms, native leaders were not accepting the legal strategies for their dispossession and extirpation in silence.  This excerpt from the testimony of an unidentified Indian leader during a hearing with land commissioners in 1793 speaks volumes on how the federal government's pronouncements of their diminished rights were received by native peoples:

Brothers:  We never made any agreement with the King nor with any other nation, that we would give to either the exclusive right of purchasing our lands; and we declare to you, that we consider ourselves free to make any bargain or cession of lands, whenever, and to whomever we please.  If the white people, as you say, made a treaty that none of them but the King should purchase of us, and that he has given that right to the United States, it is an affair which concerns you and him, and not us; we have never parted with such a power. (qtd. in Kades "Dark Side")

Again, the parallels to Old World models of conquest are compelling.  The Supreme Court's 19th century declarations of government entitlement to Indian land title, made in hearings conducted without the Indians present or even involved, are tantamount to the 16th century Spaniards' practice of reading off the Requerimiento, in Spanish, to inform New World natives who understood not a word of Spanish of their rights as a "conquered" people.

Why Focus on the Discovery Doctrine is Significant

(18)    Because the discovery doctrine does not, by principle or practice, constitute a defense for a governmental claim to ultimate title of Indian lands, the best explanation for Justice Marshall's endorsement of it is probably that which Deloria and Wilkins suggest.  It was not the idea of a cabal of mid-Atlantic businessmen buying Indian land that concerned the court but rather the possibility that European powers could still strengthen their New World holds through land-purchase alliances with Indians inside and surrounding the United States:

The Revolution resolved the question of political independence only for the Americans.  It did not affect the posture of other European nations toward Indian tribes.  After the war the British conducted several treaty councils with the tribes of the Ohio and Great Lakes country. [. . .] The Spanish quickly made treaties with the strong southeastern tribes, most notably the Creek and Choctaw, and in 1785 made an important treaty with the Comanche, which had to be conducted at several locations in the Southwest because the tribe controlled nearly one thousand miles of territory considered by the Spanish to be their borderlands.  Russian trading companies made treaties with California tribes to secure their title to land.  And following the Mexican Revolution in 1820, the new Mexican government immediately began making treaties with tribes who resided primarily in the area later settled by the United States, and continued to do so until the 1870s.  (9-10)

Sight should not be lost of the stature of those mid-Atlantic businessmen, however.  Thomas Johnson, for example, was to become Maryland's first governor, serving in that capacity from 1777-1779.  Later, he would himself serve as a U.S. Supreme Court justice.  Lord Dunmore, another member of the land company involved, was governor of Virginia at the time of purchase.  Clearly, Marshall's concentration on the discovery rule and his decision in M'Intosh that Indians could only transfer land title to the federal government are moves to "marshal" control of Indian land title into the hands of the federal government in order to keep European powers out and, as Kades says, to drive Indian land prices down.  Marshall's finding, in the second case of the trilogy, that the Cherokees did not constitute a foreign nation pinioned native peoples finally and securely under the thumb of the federal government.  However, as Deloria and Wilkins note in the excerpt quoted above, native leaders did continue to make treaties with outside concerns for some years after the trilogy cases were decided.

Doctrine of Conquest Endorsed

(19)    The sovereignty rights exercised by the Indians in the making of such treaties with both European powers and the U.S. federal government coupled with Tocqueville's previously mentioned observation about the relatively bloodless manner in which the Indians were being removed from their lands brings into focus the second principle of medieval crusade discourse adopted by Marshall in Johnson v. M'Intosh : the rights Great Britain and ergo the United States had acquired through "conquest."

 (20)   In M'Intosh , Justice Marshall relies heavily upon the principle that the federal government acquired the right to Indian soil through its "conquest" of native peoples:

Conquest gives a title which the Courts of the conqueror cannot deny, whatever the private and speculative opinions of individuals may be, respecting the original justice of the claim which has been successfully asserted.  The British government, which was then our government, and whose rights have passed to the United States, asserted a title to all the lands occupied by Indians, within the chartered limits of the British colonies.  It asserted also a limited sovereignty over them, and the exclusive right of extinguishing the title which occupancy gave to them.  These claims have been maintained and established as far west as the river Mississippi, by the sword. [. . .] It is not for the Courts of this country to question the validity of this title, or to sustain one which is incompatible with it.

In his recitation, shortly after this passage in M'Intosh , of the history of conquest of native peoples in the United States, Marshall refers to the "[f]requent and bloody wars, in which the whites were not always the aggressors"; the outcome he reports is that "European policy, numbers, and skill, prevailed."

(21)    As Tocqueville's observations suggest, though, the "sword" was not the prevalent strategy employed by either the Crown or the United States to dispossess native peoples of their land.  The fact is, as Kades notes, that wars were the exception to the rule:

The pattern of European land acquisition in New England, purchases punctuated by rare conquests, repeated itself across the rest of the continent.  The United States paid over $800 million for Indian lands.  According to Congress, the United States exercised the right of conquest only once [referring to a forced 1862 relocation of Indians in Minnesota, in which the Indians received the proceeds of the sale of their land] and then half-heartedly. ("History" par. 17) 

In his 1831 Cherokee Nation v. State of Georgia decision, dismissing the Cherokee's protest of Georgia's Indian Removal Act, Marshall acknowledges that Indian lands had generally been acquired through voluntary cession:

Though the Indians are acknowledged to have an unquestionable, and unquestioned right to the lands they occupy, until that right shall be extinguished by a voluntary cession to our government [. . .].

Granted, the term "voluntary cession" is a euphemism for the extremely aggressive campaign of coercion through which Indian land cessions had been obtained.  As Burke explains,

In theory, the Government treated with the tribes as sovereign nations, purchasing only the lands they chose to sell and guaranteeing forever their title to the land they chose to keep.  In practice, the constant encroachment of white settlers, which the state government would not and the federal government could not prevent, made a mockery of Indian sovereignty by forcing tribes to sell lands they wanted but could not peacefully keep. [. . .] Because the Indians, under pressure, usually sold the lands that the settlers demanded, the President, the Congress, and the Supreme Court could maintain the formal position that cession had been voluntary. (150)

The slippage from the "conquest" defense is significant, however, in that it reveals Marshall's struggles, through the course of the trilogy cases, to construct a "spin" about past land title acquisitions capable of supporting future encroachments at an even more vigorous pace.

(22)    By the third decision, the 1832 about-face Worcester , Marshall seems to have relinquished M'Intosh's defense of war-based conquest rights completely, as he observes that "defensive war alone seems to have been contemplated" and "[t]he power of war is given only for defence, not for conquest."  The stress cracks from straddling legal and world-opinion forums were now beginning to show.

(23)    Perhaps the most compelling testimony, however, to the fact that land title had historically been transferred through purchases and treaties, not conquest, comes from the Cherokee Nation itself, in its December 18, 1829, written memorial to Congress, prior to the Cherokees' fruitless appeal to the Supreme Court:

In addition to that first of all rights, the right of inheritance and peaceable possession, we have the faith and pledge of the United States, repeated over and over again, in treaties made at various times. [. . .] If we were but tenants at will, why was it necessary that our consent must first be obtained, before these Governments could take lawful possession of our lands?  The answer is obvious.  These Governments perfectly understood our rights—our right to the country, and our right to self Government. [. . .] The undersigned memorialists humbly represent, that if their interpretation of the treaties has been different from that of the Government, then they have ever been deceived as to how the Government regarded them, and what she has asked and promised.  Moreover, they have uniformly misunderstood their own acts. (rpt. in Krupat 170-72)

Likewise, this passage from their November 5, 1829, memorial establishes that the Cherokees'  relationship with Great Britain prior to the colonies' independence had most certainly not been within the constraints of conquest:

It is evident from facts deducible from known history, that the Indians were found here by the white man, in the enjoyment of plenty and peace, and all the rights of soil and domain, inherited from their ancestors from time immemorial, well furnished with kings, chiefs, and warriors, the bulwarks of liberty, and the pride of their race.  Great Britain established with them relationships of friendship and alliance, and at no time did she treat them as subjects, and as tenants at will, to her power.  In war she fought them as a separate people, and they resisted her as a nation.  In peace, she spoke the language of friendship, and they replied in the voice of independence, and frequently assisted her as allies, at their choice to fight her enemies in their own way and discipline, subject to the control of their own chiefs, and unaccountable to European officers and military law.  Such was the connexion of this nation to Great Britain, to wit, that of friendship, and not allegiance, to the period of the declaration of Independence by the United States  [. . .]. (rpt. in Krupat 164-69)

Accordingly, the doctrine of conquest, to the victor go the spoils, did not quite match the history of Euro-Indian relations in the United States.  Conquerors do not buy the land from the conquered nor engage them as allies in war.  Marshall rose to the challenge of converting purchase into "conquest" by bumping out a "new and different rule" of conquest to justify the federal government's claims on Indian land title.  

Justification for the "New and Different" Rule of Conquest

(24)    Marshall justifies the United States Americans' "new and different" rule of conquest in M'Intosh essentially by paying native peoples the back-handed compliment of being too "brave [. . .] high spirited [and] fierce" to conquer by any legitimate means.  The way conquest is supposed to work, he says, is that,

The old and new members of the society mingle with each other; the distinction between them is gradually lost, and they make one people.  Where this incorporation is practicable, humanity demands, and a wise policy requires, that the rights of the conquered to property should remain unimpaired; that the new subjects should be governed as equitably as the old, and that confidence in their security should gradually banish the painful sense of being separated from their ancient connexions, and united by force to strangers. 

Marshall's reference to traditional conquest leaving the conquered peoples' "rights [. . .] to property [. . .] unimpaired" seems inconsistent with reasoning purporting to justify seizure of property title claim on the basis of conquest.  Nonetheless, note that the manner in which Marshall supports his "new rule" of conquest launches him back into the discovery-rule defense:

But the tribes of Indians inhabiting this country were fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest.  To leave them in possession of their country, was to leave the country a wilderness; to govern them as a distinct people, was impossible, because they were as brave and high spirited as they were fierce, and were ready to repel by arms every attempt on their independence.

Again, Marshall is relying on the Western, medieval principle that non-Christian, non-agricultural peoples could legally and should morally be removed from their land and spiritually rehabilitated.  The Europeans, he finds, had no choice but to forge a new, albeit cowardly, way of conquest that the new United States government was bound to follow:

The law which regulates, and ought to regulate in general, the relations between the conqueror and conquered, was incapable of application to a people under such circumstances.  The resort to some new and different rule, better adapted to the actual state of things, was unavoidable.

Here is where the truly virulent damage of M'Intosh was injected into the United States legal system — and hence, our national ideology — for here, Marshall is codifying a "new rule" of justifiable deceit.

(25)    Unlike the valued and time-honored words that Justice Marshall enshrines in M'Intosh to support extinguishment of the Indians' human rights — words like "discovery," "conquest," and "civilization" — the words framed in those innumerable treaties negotiated with the native peoples assuring them security and sovereignty within their territories "forever," along with the allied friendship of the federal government, were cheap, disposable, and temporary.  For example, Justice Thompson's dissent to the Cherokee Nation v. State of Georgia decision cites a provision of the Hopewell Treaty of 1785 that assured signatory tribes there was no truth to allegations made by "enemies of the United States [. . .] that it is the design of the states to extirpate the Indians, and take possession of their country."  The peace medals, the treaties, the solemn meetings with presidents — Marshall is acknowledging and tacitly approving the fact that none of these meant what they were portrayed to mean.

(26)    In Worcester , Marshall gives greater recognition to the strategy of subterfuge through which native peoples were now being determined by the highest court of the country to have been "conquered":

Fierce and warlike in their character, they [the Indians] might be formidable enemies, or effective friends.  Instead of rousing their resentments, by asserting claims to their lands, or to dominion over their persons, their alliance was sought by flattering professions, and purchased by rich presents. [. . .] Not well acquainted with the exact meaning of words, nor supposing it to be material whether they were called the subjects, or the children of their father in Europe; lavish in professions of duty and affection, in return for the rich presents they received; so long as their actual independence was untouched, and their right to self government acknowledged, they were willing to profess dependence on the powers which furnished them supplies of which they were in absolute need, and restrained dangerous intruders from entering their country: and this was probably the sense in which the term was understood by them.

At this point, Marshall's "history" of Euro-Indian relations conforms more precisely to what the Cherokees describe in their Memorials, but, of course, the damage is done.  

The Legacy and Significance of the "New and Different Rule"

(27)    The legacy of M'Intosh , on its own and in the context of the trilogy cases, is of the veritable "forked tongue."  The "new and different rule" Marshall approves is that saying one thing and doing another is a sanctioned expedient for furthering national interests.  With the new rule come ancillary principles of exclusion and oppression, and a model for a privileged, bi-level application of law.  Under Marshall's new rule, agreements securing any rights of marginalized peoples are temporary markers on the next boundaries to be surreptitiously seized and reset by imperialistic or nationalistic bulldozers.  Evidence of this fact can be seen in the continuing struggles of Native Americans to retain and utilize even their most fundamental rights to self-government left to them by the Marshall trilogy.  Continued judiciary erosion of those rights prompted hearings before the Senate Committee on Indian Affairs in February 2002.  Professor David Getches of the University of Colorado was among the legal scholars who testified to petition congressional intervention:

Indian rights and Indian sovereignty are essential in a government-to-government relationship that goes all the way back to the founding of the nation.  If the Court understood this and appreciated this grounding in original intent, Indian laws could be put back on track by the Court itself, but this seems unlikely.  The Court's primary mission has little to do with Indian law.  It will be up to Congress to reverse this trend. ("Hearing")

As Committee Vice-Chairman Ben Nighthorse Campbell said at the close of those hearings, in response to Getches' testimony, with a succinctness that can only come from aged exasperation,

[. . .] when I hear comments like yours [. . .] I do get mad [. . .] at [. . .] the way we have treated Indians in the history of this country.  It seems to me that they should have two sets of rights: that of being Native Americans as given in the treaties and that they inherit being an American, like any other American.  Yet, we see a constant erosion of their rights on both sides of that equation.

(28)    Thus it seems that the cultural bias of white, Christian supremacy embedded in U.S. ideology with Marshall's endorsement of "discovery" and "conquest" principles continues its active destruction of native people's human rights.  It must be noted that any implied characterization of the Indians' demise as inevitable due to some perception of inferiority on their part is belied by the events of record in the trilogy cases.  Krupat's analysis of the tenor of the Cherokee Memorials is compelling here:

The Cherokee memorialists will not allow their dispossession to be seen as savagist ideology would have it, as inevitable or necessary, neither God's will, nor Nature's law. Rather, should they be "translated" west of the Mississippi, such an outcome would be the result of no more than the force of American imperial power. (161)

Indeed, the political savvy and eloquence of the Cherokee leaders, apparent in those excerpts from their Memorials previously quoted, deeply affected Justice Joseph Story, who co-signed Justice Thompson's dissent to the majority opinion authored by Marshall in the Cherokee case.  Some measure of Story's regret regarding the government's treatment of the Cherokees can be seen in this excerpt from a January 13, 1832, letter to his wife:

At Philadelphia, I was introduced to two of the chiefs of the Cherokee Nation so sadly dealt with by the State of Georgia.  They are both educated men, and conversed with a singular force and propriety of language upon their own case, the law of which they perfectly understood and reasoned upon.  I never in my whole life was more affected by the consideration that they and all their race are destined to destruction.  And I feel, as an American, disgraced by our gross violation of the public faith towards them.  I fear, and greatly fear, that in the course of Providence there will be dealt to us a heavy retributive justice. (qtd. in Lubbers 65)

Examination of this passage shows Story falling prey to the all-too-human tendency to at first shift culpability (to the "State of Georgia"), only to be crushed, within the same breath, by the recoil of such suppression, since the "gross violation of the public faith towards them" rests, as he says, with all Americans.

(29)    Greed wrote the "new rule" of conquest Marshall endorsed in Johnson v. M'Intosh .  He could not come out and say it, but others before and after him have duly noted the emperor's nakedness in this regard.  As Pagden suggests, our national origins lie in our European ancestors' melding of Christianly avaricious desires:

[The American colonies] had been created out of a seemingly insatiable European need for precious metals, and an ambition, which the Ancients could scarcely have understood, to change the religious beliefs of their autochthonous inhabitants. (11)

Certainly, the blurring of "gold" and "God" in medieval discovery and conquest discourse was not overlooked by all people of the times, though.  In his In Defense of the Indians , for example, the 16th century Dominican friar Bartolome de las Casas excoriates Spain's use of forced conversion of native peoples to Christianity, pursuant to the discovery rule, as a means to seize their lands:

All this drags innumerable souls to ruin and blocks the service of spreading the Christian religion by closing the eyes of those who, crazed by blind ambition, bend all their energies of mind and body to the one purpose of gaining wealth, power, honors, and dignities.  For the sake of these things they kill and destroy with inhuman cruelty people who are completely innocent, meek, harmless, temperate, and quite ready and willing to receive and embrace the word of God.  (26)

Long before the trilogy cases, greed had become sacralized in the foundations of United States American ideology.  In this respect, Williams is right; M'Intosh is a "fait accompli" formality.  Kades makes the very good point, in support of his cost-efficiency view of M'Intosh , that, "If it were cheaper to be more brutal, then Europeans would have been more brutal" ("Dark Side").  However, from the history of Euro-Indian relations Marshall uses to justify his "new and different rule," we can see that Marshall, at least, had concluded the native peoples could not have been defeated, at least when their numbers were strong, on brute force alone.

(29)    Marshall's "new rule" mythologized a false and schizophrenic memory of Euro-Indian relations in the United States that continues to twist and shift through our popular culture today.  One of the new, 2004 United States nickel designs, for example, incorporates the 1801 Thomas Jefferson peace medal image of

[. . .] two hands clasped in friendship — one with a military uniform cuff, symbolizing the American government, and the other with a silver band adorned with beads and a stylized American eagle, representing the Native American community with whom the United States sought good relations.  ("New Nickels")

That handshake, the international symbol of partnership and good will between respected equals, was interpreted by Marshall as a justifiably deceptive measure toward New World conquest and land seizure.  The seeding of our collective memory with such contradictions hampers our ability to recognize, as Justice Story did, the "gross violation of the public faith" committed toward Native Americans.  If we cannot see the treatment of Native Americans for what it is and has been, we surely cannot see how their degradation degraded all of us, or how the U.S. government's endorsement of deceit and treachery in furtherance of national interests "set in motion," along the lines that Silko's Ceremony suggests, an almost hypnotic suggestion of self-perpetuating avarice in our national ideology.

(30)     Pagden sees the United States' ambitions for global democracy as the third wave of the Imperium Romanum-turned-Imperium Christianum ideology (24) that fed our originary colonizing discourse:

The modern United States still pursues very much the same political ideology with respect to their relationship with the rest of the world.  If the European settlers exported to America one notion of a civitas, sustained and enforced by a corresponding vision of a Christian imperium, their descendents have created a universal order based upon another, but no less encompassing, conception of civility: democracy, an ideology which is quite as pervasive, and certainly as demanding as its ancient (and its Christian) ancestors.  (199)

The internal manifestations of our present-day "Imperium Democraticum," as it were, are no less "pervasive," "demanding," or exclusionary.  As Pagden says, the model for U.S. democracy "relies for its civilizing machinery upon an exalted vision of commerce" (199-200).  Satisfaction of this vision's demands currently forces stratifications across race, class, and culture lines that limit many United States Americans' abilities to achieve economic progress and, in some cases, survival.  Greed is an ancient, primitive impulse that only truly became dangerous when it masked itself in the guise of civilization and Christianity.  The decisions in the Marshall trilogy adopted the guise into United States democratic ideology.  Until we can see and begin to rectify the guise's first harm to the Native Americans, we cannot begin to arrest its continuing damage to our culture and restore our founding, democratic principles toward fulfillment of their original promise. 

Works Cited

Burke, Joseph C.  "The Cherokee Cases: A Study in Law, Politics, and Morality."  Native American Law and Colonialism, Before 1776-1903 .  Ed. John R. Wunder.  New York:  Garland, 1996. 136-67.

Casas, Bartolome de las.  In Defense of the Indians .  Ed. & Trans. Stafford Poole.  DeKalb:  Northern Illinois UP, 1974.

Cherokee Nation v. State of Georgia.  30 U.S. 1.  U.S. Supr. Ct. 1831.  Lexis-Nexis. 23 Sep. 03.

Deloria, Vine, Jr.  "American Indians in Historical Perspective."  Native American Law and Colonialism, Before 1776-1903 .  Ed. John R. Wunder.  New York: Garland, 1996.  123-34.

Deloria, Vine, Jr., and David E. Wilkins.  Tribes, Treaties, and Constitutional Tribulations .  Austin: U of Texas P, 1999.

Fletcher v. Peck.  10 U.S. 87.  U.S. Supr. Ct. 1810.  Lexis-Nexis. 11 Sep. 03.

"Hearing Before the Committee on Indian Affairs.  United States Senate, One Hundred Seventh Congress, Second Session on Concerns of Recent Decisions of the U.S. Supreme Court and the Indian Tribal Governments in America."  27 Feb. 02.   U.S. Government Printing Office.  24 Oct. 03.  < https://purl.access.gpo.gov/GPO/LPS20968 >.

Johnson, Herbert Alan.  "John Marshall."  The Justices of the United States Supreme Court:  Their Lives and Major Opinions .  Vol. 1.   Eds. Leon Friedman and Fred L. Israel.  New York: Chelsea, 1997. 181-99.

Johnson v. M'Intosh.  21 U.S. 543.  U.S. Supr. Ct. 1823.  Lexis-Nexis. 21 Oct. 03.

Kades, Eric.  "The Dark Side of Efficiency: Johnson v. M'Intosh and the Expropriation of American Indian Lands.  U of Pa. Law Review 148 (Apr. 2000):1065-1190.  Lexis-Nexis. 23 Sep. 03.

---.  "History and Interpretation of the Great Case of Johnson v. M'Intosh ."  Law and History Review   19.1(Spring 2001): 67+.  11 Sep. 03. < https://www.historycooperative.org/journals/lhr/19.1/kades.html >.

Krupat, Arnold.  Ethnocriticism:  Ethnography, History, and Literature .  Berkeley: U of California P, 1992.

Lubbers, Klaus.  Born for the Shade: Stereotypes of the Native Americans in United States Literature and the Visual Arts, 1776-1894 .  Amsterdam: Rodopi, 1994.

"New Nickels in 2004."  The United States Mint.  12 Nov. 03. < https://www.usmint.gov/mint_programs/index.cfm?action=nickel_series >.

Pagden, Anthony.  Lords of All the World:  Ideologies of Empire in Spain, Britain, and France c. 1500 – c. 1800 .  New Haven: Yale UP, 1995.

Silko, Leslie Marmon.  Ceremony .  New York: Penguin, 1977.

Washburn, Wilcomb E.  "The Moral and Legal Justifications for Dispossessing the Indians."  Seventeenth Century America:  Essays in Colonial History .  Ed. James Morton Smith. New York: Norton, 1972.  15-32.

Williams, Robert A., Jr.  The American Indian in Western Legal Thought: The Discourses of Conquest .  New York: Oxford UP, 1990.

Worcester v. State of Georgia.  31 U.S. 515.  U.S. Supr. Court. 1832.  Lexis-Nexis.  23 Sep. 03.

Supreme Court in the United States Essay

The Supreme Court is a very important organ of the judiciary in the United States and other countries around the world. The Supreme Court plays a critical role in the interpretation of state laws and serves as the final court where appeals are determined. Apart from interpreting all the congressional enactments, the Supreme Court plays a significant role in the policy making process. The Supreme Court ensures that all policies and state statutes are formulated in accordance to the constitution.

All federal statutes must be interpreted and expounded by the Supreme Court to ensure that they do not violate the constitution. The rulings and decisions made by the Supreme Court are final and this demonstrates the high power that the court wields. The legislature and the executive arms of government are normally put in check by the Supreme Court by ensuring that they conform to the United States constitution.

The Congress and the president of the United States play a critical role in governance and policy making and can end up violating the constitution voluntarily or through misinterpretation. The Supreme Court has the power to dismiss the decisions made by other courts as long as it remains within its mandate. The policy making process is a very elaborate process that requires checks and balances. All policies should conform to the U.S constitution and anything contrary to that is a violation of the constitution.

The Supreme Court has the power to oversee policy formulation and implementation to ensure compliance with the constitution. Policy making is normally associated with political disputes and the Supreme Court comes in to solve the disputes through constitutional interpretation. The Supreme Court adopts other powers to ensure that it does not interfere with other arms of government. The Congress formulates policies which are supposed to be enforced by the president.

The Supreme Court only comes in when polices conflict with the constitution. The Supreme Court can request the Congress to make some amendments to a policy to ensure that it complies with constitutional requirements. The Supreme Court therefore plays an oversight role in the policy making process.

Constitutional interpretation is the fundamental role of the Supreme Court even if other stakeholders may have reservations. The Supreme Court applies the law in the resolution of various disputes and this is what determines national policies. The fact that the Supreme Court decisions and constitutional interpretations are final means there is no way the country can end up having unconstitutional policies.

Judicial review can only be conducted by the Supreme Court depending on the cases brought before it. All the laws and policies formulated by federal governments must be reviewed by the Supreme Court. Policy disputes between states are very common in the U.S and the Supreme Court plays a very important role in resolving such conflicts. It is the role of the Supreme Court to ensure all the laws and policies formulated at the federal level conform to the U.S constitution.

In conclusion, the Supreme Court plays an oversight role in policy formulation and implementation. The decisions made by the Supreme Court determine the majority of national policies.

The Supreme Court ensures that all the policies that are formulated by the central and federal governments do not violate the constitution. The Supreme Court has the jurisdiction to approve and dismiss policies based on constitutional interpretation. The Supreme Court is not meant to interfere with the functions of other arms of government but to guard the constitution.

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The Supreme Court of the United States is the court of last resort in the United States. Many cases that the Court reviews concern the U.S. Constitution, and the Court's decisions have far-reaching implications for the citizenry and the history of the United States. This guide is designed to give some background information and suggest resources for further research on the history of the Court , the Justices of the Court , and the Court's practice and decisions .

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Documenting Legal Works in MLA Style

Gaining familiarity with the legal-citation practices used to document legal works may be impractical for student writers and sometimes even for scholars working in nonlegal fields. Nonspecialists can use MLA style to cite legal sources in one of two ways: strict adherence to the MLA format template or a hybrid method incorporating the standard legal citation into the works-cited-list entry. In either case, titles of legal works should be standardized in your prose and list of works cited according to the guidelines below.

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Those working in law are introduced to the conventions of legal citation during their professional training. Legal style is a highly complex shorthand code with specialized terminology that helps legal scholars and lawyers cite legal sources succinctly. It points specialists to the authoritative publication containing the legal opinion or law, regardless of the version the writer consulted.

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Titles pose the greatest challenge to citing legal works in MLA style. Since MLA style keys references in the text to a list of works cited (unlike court filings, which cite works in the text of the brief, or academic legal writings, which cite works in footnotes ), writers should, with a few exceptions (noted below), standardize titles of legal sources in their prose and list of works cited. Following the MLA Handbook , italicize the names of court cases (70):

Marbury v. Madison

When you cite laws, acts, and political documents, capitalize their names like titles and set them in roman font (69):

Law of the Sea Treaty

Civil Rights Act

Code of Federal Regulations

When a legal source is contained within another work—for example, when the United States Code appears on a website that has a separate title—follow the MLA Handbook and treat the source as an independent publication (27). That is, style the title just as you would in prose—in italics if it is the name of a court case, in roman if it is a law or similar document; even though the legal source appears within a larger work, do not insert quotation marks around the title:

United States Code. Legal Information Institute , Cornell Law School, www.law.cornell.edu/uscode/text.

For more on titles in legal citations in MLA style, see “Tips on Titles,” below.

Commonly Cited Sources

A few examples of using MLA style for commonly cited legal sources follow.

United States Supreme Court Decisions

United states supreme court dissenting opinions, federal statutes (united states code), public laws, federal appeals court decisions, federal bills, executive orders, state court of appeals, unpublished decisions, state senate bills, constitutions, international governing bodies.

Where you read the opinion of a United States Supreme Court decision will dictate how you cite it in MLA style. Legal-citation style, in contrast, points to the opinion published in the United States Reports , the authoritative legal source for the United States Supreme Court’s decisions, and cites the elements of that publication.

For example, the case Brown v. Board of Education is commonly abbreviated “347 U.S. 483” in legal citations: 347 is the volume number of United States Reports ; “U.S.” indicates that the opinion is found in United States Reports , which is the official reporter of the Supreme Court and indicates the opinion’s provenance; and the first page number of the decision is 483. (The American Bar Association has published a useful and concise overview of the components of a Supreme Court opinion .)

Regardless of the version you consult, you must understand a few basic things about the source: that it was written by a member of the United States Supreme Court on behalf of the majority and that, when you cite the opinion, the date on which the case was decided is the only date necessary to provide.

Following are examples of works-cited-list entries in MLA style for Brown v. Board of Education . The entries differ depending on whether the information was found on the Legal Information Institute website, published by Cornell University Law School, or on the Library of Congress website.

Legal Information Institute

The works-cited-list entry includes

• the government entity as author
• the name of the case (“Title of source” element)
• the year of the decision; it would also not be incorrect to include the day and month if it appears in your source
• the title of the website containing the case (“Title of container” element)
• the publisher of the website
• the website’s URL (“Location” element)

United States, Supreme Court. Brown v. Board of Education . 17 May 1954. Legal Information Institute , Cornell Law School, www.law.cornell.edu/supremecourt/text/347/483.

Library of Congress

The Library of Congress site allows researchers to link to or download a PDF of the opinion from the United States Reports . To locate the case, the researcher must know the volume number of the United States Reports in which Brown v. Board of Education was published. A works-cited-list entry in MLA style would include the author (the government entity) and the title of the case, as well as the following information for container 1:

• United States Reports (“Title of container” element)
• vol. 347 (“Number” element)
• the date of the decision (“Publication date” element)
• page range (“Location” element)

Container 2 includes the name of the website publishing the case and its location, the URL. The publisher of the site is omitted since its name is the same as that of the site.

United States, Supreme Court. Brown v. Board of Education . United States Reports , vol. 347, 17 May 1954, pp. 483-97. Library of Congress , tile.loc.gov/storage-services/service/ll/usrep/usrep347/usrep347483/usrep347483.pdf.

Sometimes, Supreme Court justices write dissenting opinions that accompany the published majority opinion. They are part of the legal record but not part of the holding—that is, the court’s ruling. If you cite only the dissent, you can treat it as the work you are citing:

Ginsburg, Ruth Bader. Dissenting opinion. Lilly Ledbetter v. Goodyear Tire and Rubber Co. United States Reports , vol. 550, 29 May 2007, pp. 643-61. Supreme Court of the United States , www.supremecourt.gov/opinions/boundvolumes/550bv.pdf.

In MLA style, it will generally be clearest to create an entry for the United States Code in its entirety and cite the title and section number in the text, especially if you are referring to more than one section of the code.

If an online search directs you to the web page for a specific section of the United States Code, it would not be incorrect to cite the page for that section alone. For example, if you want to use MLA style to document title 17, section 304, of the United States Code—commonly abbreviated 17 U.S.C. § 304 in legal citations—title 17 can be treated as the work and thus placed in the “Title of source” slot on the MLA template, or if you cite the United States Code in its entirety, title 17 can be placed in the “Number” slot.

Your entry will once again depend on the version you consult. Below are examples from various websites.

website for the United States Code

On the website for the United States Code, you would likely determine that the United States House of Representatives is the author of the code. The United States Code is the title of the source, and since the source constitutes the entire website, no container needs to be specified: the source is self-contained, like a book (see p. 34 of the MLA Handbook ). The site lists the Office of the Law Revision Counsel as publisher, so you would include that name in the “Publisher” slot, followed by the date on which the code was last updated, and the URL as the location:

United States, Congress, House. United States Code. Office of the Law Revision Counsel, 14 Jan. 2017, uscode.house.gov.

The body of your text or your in-text reference must mention title 17 and section 304 so the reader can locate the information you cite. It would not be wrong to include chapter 3 as well (title 17, ch. 3, sec. 304), although a discerning researcher will note that section numbers (304) incorporate chapter numbers (3), making “chapter 3” unnecessary to include.

If you do not include title 17 and section 304 in the text, you must include that information in the works-cited-list entry:

United States, Congress, House. United States Code. Title 17, section 304, Office of the Law Revision Counsel, 14 Jan. 2017, uscode.house.gov.

A nonspecialist would not be able to determine from the Legal Information Institute site that the United States House of Representatives is the author of the United States Code. A basic citation would include the title of the code as displayed on the site, the title of the website as the title of the container, the publisher of the website, and the location:

Government Publishing Office website

The website of the Government Publishing Office (variously referred to as the Government Printing Office) displays each statute heading (or “title”) as a web page:

You can treat title 17 as the work and the United States Code as the title of the container, as follows:

Title 17. United States Code, U.S. Government Publishing Office, 2011, www.gpo.gov/fdsys/pkg/USCODE-2011-title17/html/USCODE-2011-title17.htm.

Or you can treat the United States Code as the title of the source and title 17 as a numbered section within the code, by placing title 17 in the “Number” slot on the MLA template:

United States Code. Title 17, U.S. Government Publishing Office, 2011, www.gpo.gov/fdsys/pkg/USCODE-2011-title17/html/USCODE-2011-title17.htm.

Below are examples of how to cite other common legal sources in MLA style.

United States, Congress. Public Law 111-122. United States Statutes at Large , vol. 123, 2009, pp. 3480-82. U.S. Government Publishing Office , www.gpo.gov/fdsys/pkg/STATUTE-123/pdf/STATUTE-123.pdf.

United States, Court of Appeals for the Second Circuit. Moss v. Colvin . Docket no. 15-2272, 9 Jan. 2017. United States Court of Appeals for the Second Circuit , www.ca2.uscourts.gov/decisions.html. PDF download.

It is customary to title court cases by using the last name of the first party on each side of the v . You may also wish to shorten a long URL, as we have done here .

United States, Congress, House. Improving Broadband Access for Veterans Act of 2016. Congress.gov , www.congress.gov/bill/114th-congress/house-bill/6394/text. 114th Congress, 2nd session, House Resolution 6394, passed 6 Dec. 2016.

United States, Congress, House, Committee on Education and Labor. The Future of Learning: How Technology Is Transforming Public Schools . U.S. Government Publishing Office, 16 June 2009, www.gpo.gov/fdsys/pkg/CHRG-111hhrg50208/html/CHRG-111hhrg50208.htm. Text transcription of hearing.

After a president signs an executive order, the Office of the Federal Register gives it a number. It is then printed in the Federal Register and compiled in the Code of Federal Regulations. Executive orders usually also appear as press releases on the White House website upon signing.

United States, Executive Office of the President [Barack Obama]. Executive order 13717: Establishing a Federal Earthquake Risk Management Standard. 2 Feb. 2016. Federal Register , vol. 81, no. 24, 5 Feb. 2016, pp. 6405-10, www.gpo.gov/fdsys/pkg/FR-2016-02-05/pdf/2016-02475.pdf.

Minnesota State, Court of Appeals. Minnesota v. McArthur . 28 Sept. 1999, mn.gov/law-library-stat/archive//ctapun/9909/502.htm. Unpublished opinion.

Wisconsin State, Legislature. Senate Bill 5. Wisconsin State Legislature , 20 Jan. 2017, docs.legis.wisconsin.gov/2017/related/proposals/sb5.

If a constitution is published in a named edition, treat it like the title of a book:

The Constitution of the United States: A Transcription . National Archives , U.S. National Archives and Records Administration, 28 Feb. 2017, www.archives.gov/founding-docs/constitution-transcript.

The Constitution of the United States, with Case Summaries . Edited by Edward Conrad Smith, 9th ed., Barnes and Noble Books, 1972.

References to the United States Constitution in your prose should follow the usual styling of titles of laws:

the Constitution

But your in-text reference should key readers to the appropriate entry:

( Constitution of the United States, with Case Summaries )

If the title does not indicate the country of origin, specify it in the entry:

France. Le constitution. 4 Oct. 1958. Legifrance , www.legifrance.gouv.fr/Droit-francais/Constitution/Constitution-du-4-octobre-1958.

Kyoto Protocol to the United Nations Framework Convention on Climate Change. United Nations, 1998, nfccc.int/resource/docs/convkp/kpeng.pdf. Multilateral treaty.

United States, Senate. Beijing Treaty on Audiovisual Performances. Congress.gov , www.congress.gov/114/cdoc/tdoc8/CDOC-114tdoc8.pdf. Treaty between the United States and the People’s Republic of China.

Swiss Confederation. Bundesverfassung der Schweizerischen Eidgenossenschaft. 18 Apr. 1999. Der Bundesrat , 1 Jan. 2016, www.admin.ch/opc/de/classified-compilation/19995395/index.html.

United Nations, General Assembly. Universal Declaration of Human Rights. Resolution 217 A, 10 Dec. 1948. United Nations , www.un.org/en/universal-declaration-human-rights/. PDF download.

Writing for Specialists: A Hybrid Method

A writer using MLA style to document a legal work for a specialized readership that is likely to be familiar with the conventions of legal documentation may wish to adopt a hybrid method: in place of the author and title elements on the MLA format template, identify the work by using the Bluebook citation. Then, follow the MLA format template to list publication information for the version of the source you consulted.

For example, to cite the United States Code using the hybrid method, treat the section cited as the work. As above, you can omit the title of the website, United States Code , since the code constitutes the entire website and is thus a self-contained work.

17 U.S.C. § 304. Office of Law Revision Counsel, 14 Jan. 2017, uscode.house.gov.

If you are citing a court case, begin the entry with the title of the case before listing the Bluebook citation. In the hybrid style, cite Brown v. Board of Education as found on the Legal Information Institute website thus:

Brown v. Board of Education . 347 U.S. 483. Legal Information Institute , Cornell Law School, www.law.cornell.edu/supremecourt/text/347/483.

Other sources (public laws, federal appeals court decisions, etc.) can be handled similarly.

If using the hybrid method, do not follow the handbook’s recommendation to alphabetize works that start with a number as if the number is spelled out. Instead, list works beginning with numbers before the first lettered entry and order numbered works numerically.

TIPS ON TITLES Styling titles when you document legal sources in MLA style may be challenging. Below are some guidelines. Standardize titles of legal sources in your prose unless you refer to the published version: as the MLA Handbook indicates, italicize the names of court cases, but capitalize the names of laws, acts, and political documents like titles and set them in roman font. When a legal source is contained within another work—for example, when the United States Code appears on a website with another title—follow the MLA Handbook , page 27, and treat the work as an independent publication. That is, style the title just as you would in prose—in italics if it is the name of a court case, in roman if it is a law or similar document; even though the legal source appears in a larger work, do not insert quotation marks around the title. In the names of court cases, use the abbreviation v. consistently, regardless of which abbreviation is used in the version of the work you are citing. To determine the name of a court case, use only the name of the first party that appears on either side of “v.” or “vs.” in your source; if the name is a personal name, use only the surname. To shorten the name of a court case in your prose after introducing it in full or in parenthetical references, use the name of the first-listed nongovernmental party. Thus, the case NLRB v. Yeshiva University becomes Yeshiva . If your list of works cited includes more than one case beginning with the same governmental party, list entries under the governmental party but alphabetize them by the first nongovernmental party: NLRB v. Brown University

NLRB v. Yeshiva University

Refer to the nongovernmental party in your prose and parenthetical reference, alerting readers to this system of ordering in a note .

Special thanks to Noah Kupferberg, of Brooklyn Law School, for assistance with these guidelines.

30 Comments

Laurie nebeker 08 august 2017 at 02:08 pm.

My eleventh-grade English students write research papers about Supreme Court cases. In the MLA 7th edition (5.7.14) there was a note about italicizing case titles in the text but not in the list of works cited or in parenthetical references. Has this changed for the 8th edition? Also, you've given examples about formatting SCOTUS rulings, but most of the resources my students use are articles about the cases from news sources, specialty encyclopedias, etc. Should case titles be italicized when they appear within article titles? Thanks!

Your e-mail address will not be published

Angela Gibson 09 August 2017 AT 07:08 AM

You are correct to note this change. To make legal works a bit easier to cite, we now recommend that writers italicize the names of court cases both in the text and the list of works cited. When the name of a court case is contained within another work, style the title just as you would anywhere else. Thus, a SCOTUS ruling in the title of a news article would appear in italics. Thanks for reading; I hope this helps!

Nia Alexander 31 January 2018 AT 06:01 PM

How would I cite the 2015 National Content Report? It contains information similar to that of a census.

Angela Gibson 01 February 2018 AT 07:02 AM

There is an example here: https://style.mla.org/citing-tables/.

Nathan Hoepner 12 February 2018 AT 01:02 AM

One of my students wants to use the Versailles Treaty (officially, "Treaty of Peace with Germany"). The Library of Congress has a pdf copy posted. Should he list the treaty in his sources with the URL, or, since is just a copy of the official treaty, just list title, date, and "multilateral treaty"?

ben zuk 17 March 2018 AT 06:03 PM

how would I cite Supreme Court case from Justia?

Patricia Morris 27 March 2018 AT 10:03 AM

Can you give an example for citing the Occupational Outlook Handbook, published by the U.S. Bureau of Labor Statistics?

Michael Park 03 May 2018 AT 12:05 PM

How do i cite a introduced bill into congress

ML Chilson 04 November 2018 AT 05:11 PM

How do I cite a pending case that is still at the trial court level, including citation to the briefs that have been filed by the various parties?

Blah 08 November 2018 AT 11:11 AM

how do you cite a complaint in mla format

Marlow Chapman 10 December 2018 AT 08:12 PM

How would one cite a Title (specifically Title VII) from the Civil Rights Act of 1964?

Angela Gibson 11 December 2018 AT 05:12 PM

How you cite it will depend on where you access it. Some points: following the MLA format template, your entry will start with the title of the law. This will either be Civil Rights Act or Title 7 (see the discussion of Federal Statutes above for considerations about which title to begin your entry with). Your in-text citation (whether in prose or parentheses) should direct the reader to the first element in your works-cited list (in other words, the title).

Jeff Jeskie 04 February 2019 AT 08:02 AM

How do my students properly list the Supreme Court cases that are linked on the Exploring Constitutional Law site by Doug LInder at UMKC Law School site?

http://law2.umkc.edu/faculty/projects/ftrials/conlaw/home.html?

Patricia Moseley 14 February 2019 AT 10:02 AM

I need help. My 8th grade history class is answering questions on the US Constitution and citing their answer.

There are five rights in the First Amendment, which include freedom of religion, freedom of speech, freedom of the press, the right to peaceably assemble, and the right to petition the government for a redress of their grievances (U.S. Constitution).

Is this in-text citation done correctly? Also, are the amendments spell out or does one use the Roman numeral in text?

Thank You!!!

Angela Gibson 15 February 2019 AT 10:02 AM

If U.S. Constitution is the first element in the works-cited-list entry, the in-text citation is correct. Spell out ordinal numbers (First Amendment), but use numerals for numbers of count (Amendment V) and, by convention, use Roman numerals for divisions of legal works that use them.

Ella 05 December 2019 AT 08:12 PM

How would you cite a state supreme court case?

Ana 06 December 2019 AT 09:12 AM

How would I cite an Act? More precisely, I want to cite The New York State Dignity for All Students Act. How would I do it on in-text citations and on the work cited page? Thanks!

Amanda 17 April 2020 AT 05:04 PM

How would I cite a tribal constitution? Do I use the date of the original publication or the most recent amendment or resolution?

most are found on their tribal government websites so would i treat it like this:

(italicized) Title of Document: Subtitle if Given (italicized) . Edition if given and is not first edition, Name of Government Department, Agency or Committee, Publication Date, URL. Accessed Day Month Year site was visited.

yet, I still do not know what date to use. Or should i just cite it from a print publication or Nat. Archives so I can use the example given in your list above?

Angela Gibson 20 April 2020 AT 09:04 AM

Cite the version you're looking at and use the date of access if it's the only date you can provide.

Marissa 25 October 2020 AT 05:10 PM

How would you cite The Declaration of Independence?

Jennifer A. Rappaport 26 October 2020 AT 08:10 PM

Thanks for your question. Please consult Ask the MLA: https://style.mla.org/category/ask-the-mla/

Carol Holyoke 19 January 2021 AT 10:01 PM

Could you please tell me how to cite the Declaration of Independence? Do I put it in the Works Cited List?

Angela Gibson 20 January 2021 AT 09:01 AM

It is generally a good idea to create a works-cited-list entry for the version of the document you are transcribing a quotation from (e.g., see our example for the Constitution). Create your entry just as you would for any other source--follow the template of core elements and list any relevant elements that apply.

Diane 23 February 2021 AT 07:02 PM

How do I correctly cite a Congressional public law In Text? I can only find how to cite in works cited pages. Thank you!

Rowena 28 April 2021 AT 09:04 AM

If I quote sections from a piece of legislation does it need to be italicised as well as quotation marks?

Charlotte Norcross 15 November 2021 AT 11:11 AM

How do I correctly cite the congressional record from a specific session? Thanks!

Carl Sandler 02 February 2022 AT 02:02 PM

I am submitting a report to an attorney consisting of investigative findings related to an automobile accident. Some of the information in my report will be technical in nature and other information will be in the form of my opinion(s) based on conclusions drawn from deposition testimony of witnesses and persons knowledgeable of the event. Considering the report will be read by both legal professionals and others not of the legal profession, what approach and format (with examples, please) should be used to cite deposition testimony and also Exhibits presented during the taking of the deposition? I am familiar with Bluebook style of legal citations, however not all persons reading my report would have this same understanding.

Lev 18 April 2022 AT 11:04 AM

Dear MLA Editor: When citing court cases in another language (French), should I keep the title of the case in the original language, translate it, or provide a translation in brackets? The same question goes for the name of the docket number, court, date of publication, and other elements. The MLA manual does not offer any guidance on this! Thanks in advance for any help.

Heidi 27 April 2023 AT 10:04 AM

What is the proper way to reference a recently filed lawsuit (a pending case) in legal writing (letters and memos)? Thanks!

Jennifer Washington 13 February 2024 AT 11:02 PM

How are state educational codes shaping standards for textbooks and materials cited in-text and on works cited?

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What Stephen Breyer gets wrong about the Supreme Court’s ‘civility’

The public’s trust in the Supreme Court has plummeted , as the conservative supermajority decisions have already stripped Americans of rights and threaten more of the same. But in a new essay published Wednesday in The New York Times , former Supreme Court Justice Stephen Breyer suggests a more pressing concern for the high court and the country: Are the justices friends?

For all Breyer’s anecdotes, the core of his essay is still emphasizing the humanity of justices who are more than willing to de-emphasize the humanity of others in their decisions.

Breyer suggests that differences of opinion between the justices, “important as they are,” must “remain professional, not personal.” This was the case while he was a justice, he writes, and “this meant that we could listen to one another, which increased the chances of agreement or compromise.” Such congeniality is a template for a divided nation, Breyer argues — without going into detail about the actual disagreements between the left and the right on matters like race, gun safety and voting rights.

The retired justice’s piece is filled with anecdotes about the various justices he served alongside ribbing each other and finding connection despite their policy differences. It would all be charming — if it weren’t for the obscene amounts of power those nine justices wield, no matter how chummily they do it. Instead, the sentiment of Breyer’s writing manages to combine that of a disgruntled retiree’s sepia-tinged remembrances and an overly earnest Facebook post. For all Breyer’s anecdotes, the core of his essay is still emphasizing the humanity of justices who are more than willing to de-emphasize the humanity of others in their decisions.

In a sense, this is nothing new for the former justice. It hearkens back to his former traveling debate with the late Justice Antonin Scalia, a lion of the conservative originalist movement in the courts. It was their way of demonstrating that strenuous debate over the law doesn’t equate to being enemies who use political calculations in their rulings. “Judges make terrible politicians,” Breyer told a Senate hearing back in 2011 alongside Scalia, arguing that there was little room for making political calculations in their rulings. “We have to make decisions based on reason. That’s it.”

It’s a sentiment that was worthy of a side-eye even at the time, and has only gotten less convincing as the court’s composition has shifted away from the center. Placing civility and agreeability over differing views is a hallmark of the centrist line of thought, using the appearance of goodwill to disguise the depth of division between two positions. Politics is the art of being able to determine the law, and the law is the codified result of a society’s politics. That is never more the case than when decisions of vast importance before the Supreme Court are decided based almost entirely on the political considerations of the justices in the majority.

The gulf between Breyer’s hopes and reality was on display in the momentous 2022 decision to overturn Roe v. Wade’s abortion protections.

The gulf between Breyer’s hopes and reality was on display in the momentous 2022 decision to overturn Roe v. Wade’s abortion protections. In a Times article from this past December on the behind-the-scenes maneuvering ahead of that opinion, Breyer is described as someone who “was sometimes dismissed by other liberals as an overly optimistic institutionalist who underestimated the ambitions of the conservative majority.” It emphasized though his “strong ties with justices on the right” that he hoped could be used to find some kind of consensus on the Dobbs case.

He was deeply mistaken. Unlike the Casey decision in 1992 , there was no consensus that could be forged when the end goal — striking down Roe — was predetermined before the court had heard a single word of the oral arguments. It didn’t matter how many hockey games they’d attended together, or rounds of golf had been played among them. The callous disregard from the majority for the people its decisions affect makes it hard for Chief Justice John Roberts’ complaints about criticisms of the court to find much traction. It’s also why the recent joint appearances of Justices Amy Coney Barrett and Sonia Sotomayor to promote civil debate in the face of polarization, which Breyer’s essay praised, are sure to do little to instill greater trust in the court’s decisions.

The most generous explanation is that Breyer’s intended audience isn’t the average reader of The New York Times, but his former colleagues still serving on the bench. Even if that’s the case, I’m skeptical that reminding them of the good times they’ve shared will do much to affect the actual decisions that are made. If those pleasant memories couldn’t sway his conservative colleagues when Breyer was actually voting on opinions, there’s little reason for them to listen to him now.

Hayes Brown is a writer and editor for MSNBC Daily, where he helps frame the news of the day for readers. He was previously at BuzzFeed News and holds a degree in international relations from Michigan State University.

Opinion What we have learned about the Supreme Court’s right-wingers

Supreme Court observers frequently refer to its right-wing majority of six as a single bloc. However, differences among those six have become more apparent over time. Justices Samuel A. Alito Jr.’s and Clarence Thomas’s extreme judicial activism, partisan screeds and ethics controversies put them in a category unto themselves. Meanwhile, Justice Amy Coney Barrett has demonstrated surprising independence.

Watch Justice Barrett.

Not all Republican-appointed judges are the same. In Trump v. Anderson (concerning disqualification under Section 3 of the 14th Amendment of four-times-indicted former president Donald Trump), for example, Barrett, along with Justices Elena Kagan, Ketanji Brown Jackson and Sonia Sotomayor, criticized the maximalist majority opinion, which held that not only could state courts not determine disqualification but that Congress had to act before any candidate could be disqualified from federal office.

Like the so-called liberal justices, Barrett was disinclined to address “the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced.” The court decided too much, she agreed. Her complaint with the so-called liberal justices was primarily tonal. (“This is not the time to amplify disagreement with stridency.”)

Likewise, in United States v. Texas (considering the stay on enforcement of Texas’s S.B. 4 immigration law ), Barrett, along with Justice Brett M. Kavanaugh, offered the U.S. Court of Appeals for the 5th Circuit an opening to take up the case promptly, which it did, rather than wade into a procedural fight over a stay in a case concerning Texas’s constitutionally suspect law.

As Supreme Court expert Steve Vladeck put it , “The Barrett/Kavanaugh concurrence went out of its way to nudge the Fifth Circuit — noting not only that the Fifth Circuit should be able to rule on the stay pending appeal ‘promptly,’ but that, ‘If a decision does not issue soon, the applicants may return to this Court.’” In essence, Barrett said the Supreme Court would not meddle in a circuit’s administrative business. But if the 5th Circuit actually allowed this constitutional monstrosity to proceed, she would have a different view.

And in Moore v. Harper (the independent state legislature doctrine), Barrett joined in the chief justice’s majority opinion, along with the three Democratic-appointed justices, to bat down the radical notion that state courts have no role in determining alleged violations of state election laws (provided they did “not transgress the ordinary bounds of judicial review”).

Beyond her opinions in high-profile cases, Barrett also sought to repair the court’s reputation damaged by right-wing partisanship. She has started appearing alongside Sotomayor publicly to insist that the court’s ideological combatants are more collegial than they might appear. Perhaps she is.

Barrett is no Sandra Day O’Connor (a true swing justice). Barrett was just as extreme on Roe v. Wade as the other right-wingers. Nevertheless, her efforts to carve an independent niche on the court should not be ignored.

On the other hand, there is no limit to what Justices Alito and Thomas will do.

In contrast to Barrett, no right-wing theory or activist invitation is too wacky for Alito and Thomas to entertain.

During oral argument on Danco Laboratories v. Alliance for Hippocratic Medicine (considering the Food and Drug Administration’s approval of mifepristone), Alito and Thomas took up the right-wing infatuation with the Comstock Act , passed in 1873. Alito, alone among the justices, seemed anxious to speed past the very real “standing” issue to ruminate about a means of banning abortion nationwide.

The Comstock law, which has not been enforced in about a century, bans sending “every article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion .” (Also, certainly unconstitutionally, it bans a large category of vaguely defined pornography.) Thomas and Alito seem ready and willing to deploy the law in a way it has never been applied: namely, to states where abortion is otherwise legal, thereby threatening the availability of medical abortions nationwide.

The Post reported , “Some experts and Biden officials fear Alito and Thomas are planning to write a separate opinion focused solely on the Comstock Act, arguing that the law remains viable and providing legal cover to a future administration that seeks to invoke it.” Even if Alito and Thomas do not carry the day, the Hill reported , “access to abortion pills could still very much be at risk if Alito and Thomas succeed in soliciting a Comstock-focused challenge in the future,” abortion rights defenders fear. A future Republican administration might well start trying to employ the law to throw abortion providers in jail.

Fishing for a hook to extrapolate the Dobbs v. Jackson Women’s Health Organization ruling into a nationwide ban on medical abortions epitomizes these justices’ radical disregard for precedent and brazen judicial activism. Indeed, Alito and Thomas increasingly seem like stalking horses for the far-right agenda, be it on guns, abortion or voting.

The Supreme Court’s credibility

Numerous polls show the court’s approval has cratered , likely a function of its ethics scandals, partisan rhetoric and aggressive reversal of precedent. In other words, judicial imperialism and disdain for ethical rules that apply even to members of Congress are unpopular with voters.

Increasingly partisan Thomas and Alito no longer bother to conceal their contempt for ethical restrictions , congressional oversight or judicial temperament . They have repeatedly failed to disclose luxurious gifts (with no sign of remorse) and remain adamant that they will accept no outside oversight.

After a firestorm of protest over financial disclosure lapses, Chief Justice John G. Roberts Jr. released ethical guidelines so weak that they lack an enforcement mechanism. Worse, the guidelines are so porous that they posed no barrier to Thomas sitting on cases involving attempts to overturn the 2020 election that his wife supported.

Unless the rest of the court decides to restrain Thomas and Alito, concerns about ethical lapses and misalignment with contemporary American values will deepen, heightening demands for congressional responses (e.g., mandatory ethics, term limits, court expansion). If that happens, Alito and Thomas will be largely responsible.

• Opinion | A Trump dictatorship is increasingly inevitable. We should stop pretending. November 30, 2023 Opinion | A Trump dictatorship is increasingly inevitable. We should stop pretending. November 30, 2023
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Read the Florida Supreme Court’s Ruling on the Abortion Ban

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The Florida Supreme Court overturned decades of legal precedent in ruling that the State Constitution’s privacy protections do not extend to abortion, effectively allowing Florida to ban the procedure after six weeks of pregnancy.

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Supreme Court of Florida No. SC2022-1050 PLANNED PARENTHOOD OF SOUTHWEST AND CENTRAL FLORIDA, et al., Petitioners, VS. STATE OF FLORIDA, et al., Respondents. No. SC2022-1127 PLANNED PARENTHOOD OF SOUTHWEST AND CENTRAL FLORIDA, et al., Petitioners, VS. STATE OF FLORIDA, et al., Respondents. April 1, 2024 GROSSHANS, J. The Florida Constitution guarantees "the right to be let alone and free from governmental intrusion into . . . private life.” Art. I,

§ 23, Fla. Const. In this case, we are asked to determine if there is a conflict between the rights secured by this provision and a recently amended statute that shortens the window of time in which a physician may perform an abortion. See ch. 2022-69, § 4, Laws of Fla. (codified at section 390.0111(1), Florida Statutes (2022)). The parties have presented thoughtful arguments as to the scope of this provision, which has traditionally been referred to as the “Privacy Clause." Those legal arguments on the Privacy Clause's meaning are, in our view, distinct from the serious moral, ethical, and policy issues that are implicated in the subject matter of this case. Our analysis focuses on the Privacy Clause’s text, its context, and the historical evidence surrounding its adoption. After considering each of these sources and consistent with longstanding principles of judicial deference to legislative enactments, we conclude there is no basis under the Privacy Clause to invalidate the statute. In doing so, we recede from our prior decisions in which-relying on reasoning the U.S. Supreme Court has rejectedwe held that the Privacy Clause guaranteed the right to receive an abortion through the end of the second trimester. See generally In re T.W., 551 So. 2d 1186 (Fla. 1989); N. Fla. Women's Health & - 2

Counseling Servs., Inc. v. State, 866 So. 2d 612 (Fla. 2003); Gainesville Woman Care, LLC v. State, 210 So. 3d 1243 (Fla. 2017). For this reason, petitioners are not entitled to the temporary injunction granted by the trial court, and we approve the outcome reached by the First District Court of Appeal below.1 I This case involves a constitutional challenge to an amended Florida statute prohibiting abortions “if the physician determines the gestational age of the fetus is more than 15 weeks." § 390.0111(1), Fla. Stat. (2022); ch. 2022-69, § 8, Laws of Fla. (providing effective date of July 1, 2022). This prohibition does not apply if any of the following occurs: (a) Two physicians certify in writing that, in reasonable medical judgment, the termination of the pregnancy is necessary to save the pregnant woman's life or avert a serious risk of substantial and irreversible physical impairment of a major bodily function of the pregnant woman other than a psychological condition. (b) The physician certifies in writing that, in reasonable medical judgment, there is a medical necessity for legitimate emergency medical procedures for termination of the pregnancy to save the pregnant woman's life or avert a serious risk of imminent substantial and 1. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. (express-and-direct conflict). - 3

irreversible physical impairment of a major bodily function of the pregnant woman other than a psychological condition, and another physician is not available for consultation. (c) The fetus has not achieved viability under s. 390.01112 and two physicians certify in writing that, in reasonable medical judgment, the fetus has a fatal fetal abnormality. § 390.0111(1)(a)-(c). Prior to this change, the statute had restricted only late-term abortions. ² After this new law took effect, seven abortion clinics and one medical doctor (collectively Planned Parenthood)³ sued the State and others. Planned Parenthood alleged that the statute violated the Privacy Clause, which was added to the Florida Constitution in 1980. Located within the Declaration of Rights, the clause provides in full: 2. Specifically, the statute said, "No termination of pregnancy shall be performed on any human being in the third trimester of pregnancy unless one of [two] conditions is met." § 390.0111(1), Fla. Stat. (2021) (emphasis added). 3. The eight plaintiffs are Planned Parenthood of Southwest and Central Florida; Planned Parenthood of South, East, and North Florida; Gainesville Woman Care, LLC; A Woman's Choice of Jacksonville, Inc.; Indian Rocks Woman's Center, Inc.; St. Petersburg Woman's Health Center, Inc.; Tampa Woman's Health Center, Inc.; and Dr. Shelly Hsiao-Ying Tien. - 4

SECTION 23. Right of privacy.-Every natural person has the right to be let alone and free from governmental intrusion into the person's private life except as otherwise provided herein. This section shall not be construed to limit the public's right of access to public records and meetings as provided by law. With the complaint, Planned Parenthood filed a motion for temporary injunction, asking the trial court to block enforcement of the statute until it could rule on the merits of the constitutional challenge. In part, Planned Parenthood claimed that it was substantially likely to prevail in the lawsuit because it could demonstrate that the statute violates the Privacy Clause. In addition, Planned Parenthood argued that pregnant Floridians would be irreparably harmed absent a temporary injunction because the statute "would prohibit [them] from obtaining essential medical care and force them to remain pregnant and continue enduring the risks of pregnancy against their will." The statute, Planned Parenthood said, would also cause irreparable harm to itself and its staff by subjecting them to potential punitive consequences and interfering with the doctor-patient relationship. The State opposed Planned Parenthood's request for a temporary injunction. It argued that Planned Parenthood lacked - 5

standing to assert the privacy rights of its patients and, on the merits, could not establish any of the four requirements for a temporary injunction, let alone all four.4 After the State submitted its response, the U.S. Supreme Court issued a landmark decision on abortion in a case involving a Mississippi statute. See Dobbs v. Jackson Women's Health Org., 597 U.S. 215 (2022). In that decision, the Court ruled that the federal constitution does not guarantee a right to abortion. Id. at 231, 235-63, 292, 295. Based on this holding, the Court overturned Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992)—cases which had recognized a broad right to abortion under federal law. Dobbs, 597 U.S. at 292, 302 (expressly overruling Roe and Casey). In overruling those decisions, Dobbs "returned to the people and their elected representatives" "the authority to regulate abortion." Id. at 292. 4. Under Florida law, a party seeking a temporary injunction must prove four things: “(1) a substantial likelihood of success on the merits, (2) the unavailability of an adequate remedy at law, (3) irreparable harm absent entry of an injunction, and (4) that the injunction would serve the public interest." Fla. Dep't of Health v. Florigrown, LLC, 317 So. 3d 1101, 1110 (Fla. 2021). - 6

Several days after Dobbs issued, the trial court in this case held an evidentiary hearing on Planned Parenthood's motion for temporary injunction. Planned Parenthood called one witness and offered several exhibits. The State also presented witness testimony and documentary evidence. Deeming Planned Parenthood's evidence persuasive, the trial court entered a temporary injunction. It found that Planned Parenthood had third-party standing and satisfied all four temporary-injunction elements. In finding a likelihood of success on the merits, the court relied on our abortion jurisprudence. See generally T.W., 551 So. 2d at 1191-94 (Privacy Clause encompasses abortion); N. Fla. Women's Health, 866 So. 2d at 639 (reaffirming T.W.); Gainesville Woman Care, 210 So. 3d at 1246, 1253-55 (relying on T.W.). The court concluded that the statute was subject to strict scrutiny under that case law and determined that it either did not serve compelling interests or, in the alternative, was not the least restrictive means of achieving those interests. For the harm factor, the court ruled that both Planned Parenthood and its patients would suffer sufficient harm to support the requested relief. Rounding out its analysis, the court found no -7

adequate remedy at law and that an injunction would serve the public interests. The State appealed to the First District, triggering an automatic stay of the temporary injunction.5 Planned Parenthood asked the trial court and later the district court to vacate the automatic stay. Both courts, however, denied relief. State v. Planned Parenthood of Sw. & Cent. Fla., 342 So. 3d 863, 865-66 (Fla. 1st DCA 2022). As relevant here, in denying Planned Parenthood's motion to vacate, a divided panel of the First District held that Planned Parenthood could not establish irreparable harm as a result of the stay. Id. at 868-69. A few weeks later, the district court relied on essentially that same reasoning in reversing the temporary injunction—again, one judge dissented. State v. Planned Parenthood of Sw. & Cent. Fla., 344 So. 3d 637, 638 (Fla. 1st DCA 2022) ("[T]he non-final order granting the temporary injunction is reversed as [Planned Parenthood] could not assert irreparable harm on behalf of persons not appearing below."); id. (Kelsey, J., dissenting). 5. Fla. R. App. P. 9.310(b)(2) (automatic-stay provision triggered by filing of timely notice of appeal in certain situations). -8

Following these adverse rulings, Planned Parenthood asked us to review the First District's decisions, arguing that they conflict with our precedent. Accepting this jurisdictional argument, we granted review. II Planned Parenthood asks that we quash the district court's decisions and reinstate the temporary injunction. Relying on our precedent, it argues that the right to an abortion is secured by our constitution’s Privacy Clause. The State disputes Planned Parenthood's interpretation of the provision's text and asks us to reconsider our Privacy Clause jurisprudence or, at the very least, the abortion-related decisions. It argues that T.W.—our first case recognizing a right to abortion under the Privacy Clause-is flawed 6. In its brief, the State argues that Planned Parenthood lacks standing to challenge the new law. However, at oral argument, the Solicitor General urged us to decide this case on the merits. Oral Arg. at 50:52-51:06 (“We do think that the Court can assume for the sake of argument that the Plaintiffs have standing here and instead reach the merits. . . . That, I think, is what the Court should do.”). We view these statements as an abandonment of the State's standing argument. Thus, we proceed directly to the merits without passing upon any theory of standing articulated by the parties. - 9

in numerous respects, including that it failed to meaningfully consider the actual text of the provision at issue, failed to consider the history of the provision, and failed to give deference to the statute challenged in that case. Mindful of these fundamental concerns, we agree that our holding in T. W. should be reexamined.7 In T. W., this Court assessed a Privacy Clause challenge to a law that required unmarried minors to obtain parental consent or a substitute for consent to have an abortion. We held the challenged law to be incompatible with the protections afforded by the Privacy Clause, concluding that the right to abortion was embodied within the provision. T.W., 551 So. 2d at 1188, 1192-96; id. at 1197, 1201 7. As our discussion will show, we also emphasize the uniqueness of the competing interests implicated in abortion and the fact that the Supreme Court repudiated Roe and its underlying understanding of privacy. Because these factors relate to T. W. in a particularized way, we do not take up the State's invitation now to revisit the question of whether the Privacy Clause protects only "informational privacy" interests. Our jurisprudence before and after T. W. has understood the Privacy Clause to encompass certain decisional or autonomy rights, and today we do not revisit our precedents outside the abortion context. - 10

(Ehrlich, C.J., concurring specially).8 In the majority opinion, we discussed Roe v. Wade at length and ultimately adopted its definition of privacy along with its trimester and viability rules. See id. at 1190-94. Integral to the majority's analysis, T. W. emphasized recent Florida cases (primarily from the district courts) equating privacy with the right of personal decision-making in the specific context of refusing unwanted medical treatment. Id. at 1192. We also relied on Winfield v. Division of Pari-Mutuel Wagering, 477 So. 2d 544 (Fla. 1985)-a case involving privacy in financial institution records—to conclude that the provision “embraces more privacy interests" and "extends more protection to the individual in those interests, than does the federal Constitution." T.W., 551 So. 2d at 1192. Building on that, this Court made the following broad pronouncement: 8. Three justices, however, concluded that the challenged statute could be given a constitutional construction, though they accepted or assumed that the Privacy Clause conferred a right to abortion. T.W., 551 So. 2d at 1201-02 (Overton, J., concurring in part and dissenting in part); id. at 1202-04 (Grimes, J., concurring in part and dissenting in part); id. at 1204-05 (McDonald, J., dissenting). - 11 -

Florida's privacy provision is clearly implicated in a woman's decision of whether or not to continue her pregnancy. We can conceive of few more personal or private decisions concerning one's body that one can make in the course of a lifetime, except perhaps the decision of the terminally ill in their choice of whether to discontinue necessary medical treatment. Of all decisions a person makes about his or her body, the most profound and intimate relate to two sets of ultimate questions: first, whether, when, and how one's body is to become the vehicle for another human being's creation; second, when and how-this time there is no question of "whether"-one's body is to terminate its organic life. [Laurence H.] Tribe, American Constitutional Law 133738 (2d ed. 1988). The decision whether to obtain an abortion is fraught with specific physical, psychological, and economic implications of a uniquely personal nature for each woman. See Roe, 410 U.S. at 153. The Florida Constitution embodies the principle that “[f]ew decisions are more personal and intimate, more properly private, or more basic to individual dignity and autonomy, than a woman's decision . . . whether to end her pregnancy. A woman's right to make that choice freely is fundamental.” T.W., 551 So. 2d at 1192-93 (second alteration in original) (some citations omitted). This pronouncement was flawed in several respects. T. W. associated the language of the Privacy Clause with Roe's understanding of privacy; but it did not justify how that concept of privacy aligned with our constitution's text—i.e., “the right to be let alone and free from government intrusion into private life." T. W. - 12 -

also did not ask how Florida voters would have understood the text of the provision and how that understanding would be informed by Florida's long history of proscribing abortion. As a result of its analytical path, T. W. did not look to dictionaries, contextual clues, or historical sources bearing on the text's meaning. Instead, overlooking all these probative sources, it adopted Roe's notions of privacy and its trimester framework as matters of Florida constitutional law.9 Compounding these errors, the T.W. majority failed to apply longstanding principles of judicial deference to legislative enactments and failed to analyze whether the statute should be given the benefit of a presumption of constitutionality. Since Roe featured prominently in T. W., we think it fair to also point out that the T. W. majority did not examine or offer a reasoned response to the existing criticism of that decision or consider 9. In his dissent, Justice Labarga emphasizes "that T. W. was decided on state law grounds." Dissenting op. at 90. We agree that T.W. was not applying federal law to the challenged statute. However, T.W. relied heavily on Roe in interpreting the meaning of our constitution's Privacy Clause. Indeed, T. W. cited Roe over twenty times, it accepted Roe's concept of privacy without analysis, and it enacted a viability-trimester system that closely paralleled Roe's, without citing to any Florida precedent supporting that framework. - 13 -

whether it was doctrinally coherent. This was a significant misstep because Roe did not provide a settled definition of privacy rights. Controversial from the moment it was released, “Roe's constitutional analysis was far outside the bounds of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed." Dobbs, 597 U.S. at 268. What's more, Roe "failed to ground its decision in text, history, or precedent.” Id. at 270. This left even progressive legal scholars baffled at how such a right could be gleaned from the constitution's text. Akhil R. Amar, Intratextualism, 112 Harv. L. Rev. 747, 778 (1999) ("As a precedent-follower, Roe simply stringcites a series of privacy cases involving marriage, procreation, contraception, bedroom reading, education, and other assorted topics, and then abruptly announces with no doctrinal analysis that this privacy right is broad enough to encompass' abortion. . . . But as the Court itself admits a few pages later [in the opinion], the existence of the living fetus makes the case at hand ‘inherently different’ . . . from every single one of these earlier-invoked cases. And as a precedent-setter, the Court creates an elaborate trimester framework that has struck many critics as visibly (indeed, nakedly) . . . more legislative than - 14 -

judicial." (footnotes omitted)); see also Laurence H. Tribe, Foreword: Toward a Model of Roles in the Due Process of Life and Law, 87 Harv. L. Rev. 1, 4 (1973) (noting that "[o]ne reads the Court's explanation [of the viability line] several times before becoming convinced that nothing has inadvertently been omitted”). Indeed, just three years after T.W. (and well before Dobbs), the U.S. Supreme Court abandoned Roe's position that the right to abortion was grounded in any sort of privacy right. See Casey, 505 U.S. at 846 (joint opinion) (“Constitutional protection of the woman's decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment."); cf. Dobbs, 597 U.S. at 279 ("The Court [in Casey] abandoned any reliance on a privacy right and instead grounded the abortion right entirely on the Fourteenth Amendment's Due Process Clause."). This demonstrates the tenuous connection between “privacy” and abortion an issue that, unlike other privacy matters, directly implicates the interests of both developing human life and the pregnant woman. In light of T. W.'s analytical deficiencies and subsequent U.S. Supreme Court decisions rejecting the Roe framework on which - 15 -

T.W.'s reasoning depended, our assessment of the challenged statute requires us to examine the Privacy Clause and, for the first time in the abortion context, consider the original public meaning of the text as it was understood by Florida voters in 1980.10 III A We begin by recognizing the standard that governs our review. Because this case requires us to review both “the constitutionality of a statute and the interpretation of a provision of the Florida Constitution," our review is de novo. Lewis v. Leon Cnty., 73 So. 3d 151, 153 (Fla. 2011) (citing Crist v. Fla. Ass’n of Crim. Def. Laws., Inc., 978 So. 2d 134, 139 (Fla. 2008)); see also Florigrown, LLC, 317 So. 3d at 1110. We have long recognized that “statutes come clothed with a presumption of constitutionality and must be construed whenever possible to effect a constitutional outcome." Lewis, 73 So. 3d at 10. We decided two other significant cases involving abortion after T. W., but in those cases, we did not provide additional doctrinal justifications for T.W.'s adoption of Roe's privacy framework. - 16

153 (citing Fla. Dep't of Revenue v. City of Gainesville, 918 So. 2d 250, 256 (Fla. 2005)). Indeed, nearly a century ago, we said: (1) On its face every act of the Legislature is presumed to be constitutional; (2) every doubt as to its constitutionality must be resolved in its favor; [and] (3) if the act admits of two interpretations, one of which would lead to its constitutionality and the other to its unconstitutionality, the former rather than the latter must be adopted . . . Gray v. Cent. Fla. Lumber Co., 140 So. 320, 323 (Fla. 1932); see also Savage v. Bd. of Pub. Instruction for Hillsborough Cnty., 133 So. 341, 344 (Fla. 1931); Chatlos v. Overstreet, 124 So. 2d 1, 2 (Fla. 1960); In re Caldwell's Estate, 247 So. 2d 1, 3 (Fla. 1971); Franklin v. State, 887 So. 2d 1063, 1073 (Fla. 2004); Florigrown, LLC, 317 So. 3d at 1111; Statler v. State, 349 So. 3d 873, 884 (Fla. 2022). And to overcome the presumption of constitutionality, “the invalidity must appear beyond reasonable doubt." Franklin, 887 So. 2d at 1073 (quoting State ex rel. Flink v. Canova, 94 So. 2d 181, 184 (Fla. 1957)); see also Waybright v. Duval Cnty., 196 So. 430, 432 (Fla. 1940) ("[W]e will . . . determine if, beyond a reasonable doubt, violence was done [to] any provisions of the organic law in the passage of the challenged act, and in doing so will not deal with the - 17 -

merits of the measure, that being the exclusive concern of the Legislature."). B Our approach to interpreting the constitution reflects a commitment to the supremacy-of-text principle, “recognizing that '[t]he words of a governing text are of paramount concern, and what they convey, in their context, is what the text means. Coates v. R.J. Reynolds Tobacco Co., 365 So. 3d 353, 354 (Fla. 2023) (alteration in original) (quoting Levy v. Levy, 326 So. 3d 678, 681 (Fla. 2021)) (interpreting statutory text); see also Advisory Op. to Governor re Implementation of Amend. 4, The Voting Restoration Amend. (Amendment 4), 288 So. 3d 1070, 1081 (Fla. 2020) (interpreting constitutional text). The goal of this approach is to ascertain the original, public meaning of a constitutional provision-in other words, the meaning as understood by its ratifiers at the time of its adoption. See City of Tallahassee v. Fla. Police Benevolent Ass'n, Inc., 375 So. 3d 178, 183 (Fla. 2023) ("[W]e give the words of the constitution their plain, usual, ordinary, and commonly accepted meanings at the time they were written.”). In construing the meaning of a constitutional provision, we do not - 18 - 999

seek the original intent of the voters or the framers. Instead, we ask how the public would have understood the meaning of the text in its full context when the voters ratified it. See Amendment 4, 288 So. 3d at 1081-82. To answer this question of public meaning, we consider the text, see Alachua Cnty. v. Watson, 333 So. 3d 162, 169-70 (Fla. 2022), contextual clues, see id., dictionaries, see Somers v. United States, 355 So. 3d 887, 891 (Fla. 2022), canons of construction, see Conage v. United States, 346 So. 3d 594, 598-99 (Fla. 2022), and historical sources, including evidence related to public discussion, see Tomlinson v. State, 369 So. 3d 1142, 1147-51 (Fla. 2023); Dist. of Columbia v. Heller, 554 U.S. 570, 614 (2008). IV With these background principles fixed, we now focus our attention on the Privacy Clause itself. Article I, section 23 is entitled: "Right of privacy." Our constitution, though, tells us that in construing the meaning of constitutional text, we are not to use titles and subtitles. See art. X, § 12(h), Fla. Const. Accordingly, we look at the operative text, which guarantees the right “to be let - 19 -

alone and free from governmental intrusion into the person's private life." Art. I, § 23. As is apparent at first glance, the provision does not explicitly reference abortion at all. Thus, if Planned Parenthood is to prevail, we must find that the public would have understood the principle embodied in the operative text to encompass abortion, even though the clause itself says nothing about it. To this end, the parties have marshaled era-appropriate dictionary definitions of key terms in the Privacy Clause. Based on the dictionaries we consulted, we know that in 1980 the right to be "let alone" could be defined as the right to be left "in solitude," free from outside "interfer[ence]” or “attention." See Let Alone, Oxford English Dictionary 213 (1st ed. 1933) (reprinted in 1978). And the latter phrase "free from governmental intrusion” into “private life”—can convey a similar meaning. “Intrusion” meant “[i]llegal entry upon or appropriation." Intrusion, American Heritage Dictionary of the English Language 688 (1st ed. 1969); see also Intrusion, American Heritage Dictionary 674 (2d Coll. ed. 1982) (same); Intrude, American Heritage Dictionary of the English Language 687 (1st ed. 1969) ("To interpose (oneself or something) - 20 -

without invitation, fitness, or leave."); Intrude, American Heritage Dictionary 674 (2d Coll. ed. 1982) (similar). And the word "private" carried the idea of being "[s]ecluded from the sight, presence, or intrusion of others," the chief example being “a private bathroom." Private, American Heritage Dictionary of the English Language 1042 (1st ed. 1969); Private, American Heritage Dictionary 986 (2d Coll. ed. 1982) (same). These accepted definitions do not seem to us to be natural ways of describing the abortion procedures of 1980. The decision to have an abortion may have been made in solitude, but the procedure itself included medical intervention and required both the presence and intrusion of others. See, e.g., Roe, 410 U.S. at 172 (Rehnquist, J., dissenting) (“A transaction resulting in an operation such as [abortion] is not 'private' in the ordinary usage of that word."); Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 792 (1986) (White, J., dissenting) (noting that even the Roe majority recognized a "pregnant woman cannot be isolated in her privacy” because “the termination of a - 21

pregnancy typically involves the destruction of another entity: the fetus" (quoting Roe, 410 U.S. at 159)).11 Next, we see if contextual clues could offer guidance. Looking at the complete text of the provision allows us to consider the physical and logical relation of its parts, as they might have been viewed by a voter. See Lab'y Corp. of Am. v. Davis, 339 So. 3d 318, 324 (Fla. 2022). 11. The dissent cites Griswold v. Connecticut, 381 U.S. 479 (1965) (invalidating on privacy grounds a state law criminalizing the use of contraception in the marital context), to support the assertion that the involvement of others does not prevent an activity or procedure from being a private matter. Dissenting op. at 67-68 (stressing that the law at issue in Griswold “operate[d] directly on an intimate relation of husband and wife and their physician's role in one aspect of that relation" (quoting Griswold, 381 U.S. at 482)). But the Court in Griswold "only invalidated the section of the state law which prohibited the use of contraception, rather than outlawing the manufacture, distribution, or sale of contraceptives." Alyson M. Cox & O. Carter Snead, “Grievously and Egregiously Wrong": American Abortion Jurisprudence, 26 Tex. Rev. L. & Pol. 1, 16-17 (2022). Indeed, as we noted above, Roe itself acknowledged that abortion was "inherently different" from the situations involved in cases like Griswold. Roe, 410 U.S. at 159. Thus, we do not share the dissent's concern "that parties will rely on the majority's reasoning that the involvement of 'others' in an abortion procedure defeats privacy—in attempts to undermine the broad privacy protections that are extended in the medical context.” Dissenting op. at 68. - 22

The first sentence sets forth the protected right, i.e., "to be let alone and free from governmental intrusion into . . . private life." The second sentence then provides that “[t]his section shall not be construed to limit the public's right of access to public records and meetings as provided by law." Art. I, § 23. By its terms, this latter sentence covers “public records and meetings.” That phrase which relates only to accessing public informationdoes not implicate or apply to the subject of abortion. We do not give great weight to this observation, but we note it here to emphasize that contextual clues do not lend support to a claim that voters clearly understood abortion to be part and parcel of the rights recognized in the Privacy Clause. V Dictionary definitions and immediate context, although informative, do not provide a full picture of the text's meaning. We also consider the historical background of the phrases contained within the operative text. See Tomlinson, 369 So. 3d at 1146 ("[W]hen (as often happens) a word had more than one accepted meaning at that time, we decide which one is the law by looking to the context in which it appears, and what history tells us about - 23 -

how it got there."); Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts 33 (2012) ("[C]ontext embraces not just textual purpose but also . . . a word's historical associations acquired from recurrent patterns of past usage . ."); see also Heller, 554 U.S. at 605 (noting the critical importance in constitutional interpretation of examining “a variety of legal and other sources to determine the public understanding of a legal text in the period after its enactment or ratification"); TransUnion LLC v. Ramirez, 594 U.S. 413, 424 (2021) (relying on historical sources in determining constitutional text's meaning); N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 26-27 (2022) (historical sources integral to Court's holding). A Before examining the Privacy Clause's specific history and public debate, we explore the settled use of the "right to be let alone" in the context of Florida law, cognizant that technical meanings might bear upon the public understanding of the constitutional text. 12 12. In construing constitutional provisions that have an acquired meaning, “[w]e cannot understand these provisions unless - 24

The phrase "to be let alone" carries with it a rich legal tradition. In Cason v. Baskin, we discussed the common-law right to privacy and explained that in substance it was "the right to be let alone, the right to live in a community without being held up to the public gaze if you don't want to be held up to the public gaze." 20 So. 2d 243, 248 (Fla. 1944) (quoting Laurence H. Eldredge, Modern Tort Problems 77 (1941)).¹3 This right “to be let alone,” which was we understand their history; and when we find them expressed in technical words, and words of art, we must suppose these words to be employed in their technical sense." Thomas M. Cooley, A Treatise on the Constitutional Limitations which Rest upon the Legislative Power of the States of the American Union 93-94 (7th ed. 1903). Indeed, “[t]he technical sense in these cases is the sense popularly understood, because that is the sense fixed upon the words in legal and constitutional history where they have been employed for the protection of popular rights." Id. at 94 (emphasis added). 13. We recognize that this phrase “the right to be let alone” is likely sourced from the seminal 1890 law-review article, The Right to Privacy. Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890); cf. Stall v. State, 570 So. 2d 257, 265 (Fla. 1990) (Kogan, J., dissenting) (recognizing significance of this article). The authors of that article elaborated on the "right to be let alone" and free from “intrusion upon the domestic circle." Warren & Brandeis, supra, at 195-96 (borrowing label for this right from a tort treatise by Judge Thomas Cooley). The right, however, “had little to do with the autonomy of an individual to make decisions . . . free from government control." Jeffrey M. Shaman, The Right of Privacy in State Constitutional Law, 37 Rutgers L.J. 971, 990 (2006). It described a "different sort of privacy"-one - 25 -

often used interchangeably with the "right to privacy," was a prominent feature in Florida tort law. See, e.g., Battaglia v. Adams, 164 So. 2d 195, 197 (Fla. 1964) (“An unauthorized use of a person's name in this respect is recognized as a violation of his right of privacy."); Jacova v. S. Radio & Television Co., 83 So. 2d 34, 36 (Fla. 1955) (reiterating that Florida recognized a common-law claim for invasion of privacy and noting that "[when] one, whether willingly or not, becomes an actor in an occurrence of public or general interest,” “he emerges from his seclusion, and it is not an invasion of his right of privacy' to publish his photograph with an account of such occurrence" (quoting Metter v. L.A. Exam'r, 95 P.2d 491, 494 (Cal. Ct. App. 1939))); Harms v. Mia. Daily News, Inc., 127 So. 2d 715, 717 (Fla. 3d DCA 1961) (noting in the tort context that "[t]he "directed to keeping personal information from being exposed to the public, rather than to keeping decision-making within the control of an individual." Id. To Warren and Brandeis, the “right to be let alone" and free from “intrusion" safe-guarded against the publication of private facts. Warren & Brandeis, supra, at 195-96, 207-12. - 26

right of privacy is defined as the right of an individual to be let alone and to live a life free from unwarranted publicity"). 14 Significantly, throughout the decades in which the "right to be let alone" was developed and applied in Florida, two distinct propositions were true in the law and harmonious: first, the right "to be let alone” existed and had a discernable and enforceable meaning; and second, the Legislature had the authority to comprehensively regulate abortion before and after viability. Indeed, from at least 1868 to 1972, abortion was for the most part prohibited in our state. 15 And although litigants, prior to the 14. Florida law in this respect appears consistent with that of other jurisdictions. See W.E. Shipley, Annotation, Right of Privacy, 14 A.L.R.2d 750 (1950) (noting acts of intrusion into one's private affairs may also constitute violations of the right of privacy, such as eavesdropping, examination of private records or papers, or publications of personal material identified with the complainant as would using the complainant's name or likeness in almost any form of distributive publication). 15. See ch. 1637, subc. 3, § 11, subc. 8, § 9, Laws of Fla. (1868) (outlawing most abortions); Rev. St. 1892, §§ 2387, 2618 (same); §§ 782.10, 797.01, Fla. Stat. (1941) (repealed 1972) (same); §§ 782.10, 797.01, Fla. Stat. (1971) (repealed 1972) (same). In 1972, this Court determined that the abortion statute in effect at that time was unconstitutionally vague. State v. Barquet, 262 So. 2d 431, 438 (Fla. 1972). Immediately following that decision, the Legislature passed a more specific law, still banning abortion at all times during pregnancy except in certain limited circumstances. - 27 -

adoption of the Privacy Clause, sought to curtail government action by arguing they had the "right to be let alone," we are not aware of litigants invoking that particular right to challenge abortion restrictions in Florida. We also stress that this “right to be let alone” was modified by a limiting principle: the right did not permit an individual to inflict harm on herself or others. See State v. Eitel, 227 So. 2d 489, 491 (Fla. 1969) (rejecting a challenge to helmet laws based on a right "to be let alone," stressing that "no person is an entirely isolated being" and that “it is impossible for a person to do anything seriously or permanently hurtful to himself, without mischief reaching at least to his near connections, and often far beyond them") (cleaned up). Indeed, our Privacy Clause jurisprudence outside the abortion context recognizes that the right does not authorize harm to third parties. See, e.g., Beagle v. Beagle, 678 So. 2d 1271, 1276 (Fla. 1996) (parents' privacy right to raise their children yields to need to protect children from harm). Because the "right to be let alone" was limited in this way, it is not surprising that when litigants Ch. 72-196, § 2, Laws of Fla. (codified at section 458.22 of the Florida Statutes (Supp. 1972)) (repealed 1976). - 28

challenged the 1972 abortion statute in this Court, they did not do so based on the "right to be let alone." Instead, they argued a right to privacy grounded in substantive due process under the Fourteenth Amendment to the United States Constitution. See Barquet, 262 So. 2d at 434. B We also acknowledge that the public understanding of the term "privacy" was, to some extent, informed by the U.S. Supreme Court's 1973 decision in Roe v. Wade. Following that decision, the phrase “right to privacy” gained new connotations that, for the first time, included the choice to have an abortion. See Roe, 410 U.S. at 154 ("We, therefore, conclude that the right of personal privacy includes the abortion decision .”). In Planned Parenthood's view, this aspect of federal privacy jurisprudence should control our analysis here. Specifically, Planned Parenthood argues that Florida voters would have internalized Roe's definition of privacy when they voted for the privacy amendment. Indeed, Planned Parenthood has repeatedly asserted that the public understanding of this privacy definition was so engrained by 1980 that even without a specific mention of the term abortion, the Privacy Clause unequivocally - 29 -

included such a right by implication. Agreeing with this argument, the dissent cites case law, newspaper articles, a news clip, and more to support the contention that Americans, and Floridians in particular, would have naturally understood privacy to encompass abortion. 16 Though this argument has some force, we cannot agree with Planned Parenthood or the dissent that the backdrop of Roe conclusively establishes how a voter would have understood the provision. In Roe, the Supreme Court did not consider language comparable to the operative text of Florida's Privacy Clause-that is, the “right to be let alone.” That phrase is found only once in Roe, and that single mention is in Justice Stewart's concurrence quoting Katz v. United States, 389 U.S. 347 (1967), in support of the proposition that there is no federal right to privacy. Roe, 410 U.S. 16. This evidence consists primarily of media coverage surrounding the Roe decision and subsequent evidence that discussed the abortion debate and associated a right of privacy with abortion. We accept that Roe had some bearing on the public's understanding of privacy rights in 1980. But, unlike the dissent, we do not find that it is dispositive. We are unwilling to disregard other probative evidence of public meaning, much of which is focused specifically on the amendment itself. The dissent, in our view, gives little attention to such evidence. - 30

at 167 n.2 (Stewart, J., concurring). So, while the Roe majority may have deemed abortion to be part of a “right to privacy," it would require an analytical leap to say that the public would have instinctively associated “the right to be let alone and free from governmental interference into one's private life" with abortion. E.g., Louis Henkin, Privacy and Autonomy, 74 Colum. L. Rev. 1410, 1424 (1974) (decisional autonomy “is not at all what most people mean by privacy,” which instead concerns “my freedom from official intrusion into my home, my person, my papers, my telephone”). This point is reinforced by the fact that the specific phrase used in the Privacy Clause had a consistent meaning in Florida law and had never once been interpreted to cover abortion rights. And as a final point here, we reiterate that Roe did not settle the scope of privacy rights as Planned Parenthood insists. As we discussed earlier, Roe's privacy-based reasoning was questioned soon after the opinion issued and was eventually rejected in a decision that completely detached abortion rights from the concept of privacy. See Casey, 505 U.S. at 846 (joint opinion). Thus, even if it is possible that voters would have understood the Privacy Clause to protect certain individual autonomy interests, it is by no means - 31

clear that those interests would have included the controversial subject of abortion, which uniquely involves the interests of prenatal life. Consequently, while Roe is relevant to our analysis of public meaning, it is not dispositive. Having considered dictionary definitions, context, and technical meanings that could have informed the original public meaning, we now turn to a critical piece of our historical analysis where we answer the following relevant questions: How did this provision make its way to the ballot, what was the focus of the debate surrounding its adoption, and how were the issues framed for the voters? C The origin of our Privacy Clause traces back to the work of a constitution revision commission in the late 1970s. As part of its work, the commission held public meetings throughout Florida and listened to the public's views and concerns. See Daniel R. Gordon, Upside Down Intentions: Weakening the State Constitutional Right to Privacy, a Florida Story of Intrigue and a Lack of Historical Integrity, 71 Temp. L. Rev. 579, 588 (1998); Transcript of Fla. C.R.C. proceedings at D:003272-73 (Jan. 9, 1978) (discussion of - 32 -

committee's work regarding privacy proposal). Eventually, the commission agreed upon the following language: Every natural person has the right to be let alone and free from governmental intrusion into his private life except as otherwise provided herein. Patricia A. Dore, Of Rights Lost and Gained, 6 Fla. St. U. L. Rev. 609, 650 n.248 (1978) (quoting Fla. C.R.C., Rev. Fla. Const. art. I, § 23 (May 11, 1978)). That proposed amendment, along with roughly 80 others, was submitted to the public as a package deal in the 1978 election. Gordon, supra, at 588. This package, in addition to containing the privacy proposal, also included amendments ensuring access to (1) public records, (2) meetings of non-judicial public bodies, (3) judicial hearings and records, and (4) proceedings and records of the judicial nominating commissions. Gerald B. Cope, Jr., To Be Let Alone: Florida's Proposed Right of Privacy, 6 Fla. St. U. L. Rev. 671, 675-77 (1978). Of note, proposals specifically addressing state abortion rights were rejected by the commissioners and never made it to the ballot. See Fla. Const. Revision Comm'n, Summary of Proposed Revisions to the Florida Constitution 1-2 (Sept. 27, 1977) (available in the Florida State University College of Law Research - 33 -

Center); cf. Mary Ann Lindley, A New Constitution Takes Shape, Palm Beach Post-Times, Apr. 9, 1978, at D1. For our purposes, though, we focus on statements made by commissioners in describing the reason or need for the proposal.17 On this subject, Justice Overton said: [W]ho, ten years ago, really understood that personal and financial data on a substantial part of our population could be collected by government or business and held for easy distribution by computer operated information systems? There is a public concern about how personal information concerning an individual citizen is used, whether it be collected by government or by business. The subject of individual privacy and privacy law is in a developing stage. . . . It is a new problem that should probably be addressed. Transcript of Fla. C.R.C. proceedings D:000020-21 (July 6, 1977). 17. See McDonald v. City of Chicago, 561 U.S. 742, 828-29 (2010) (Thomas, J., concurring in part and concurring in the judgment) (“When interpreting constitutional text, the goal is to discern the most likely public understanding of a particular provision at the time it was adopted. Statements by legislators can assist in this process to the extent they demonstrate the manner in which the public used or understood a particular word or phrase. They can further assist to the extent there is evidence that these statements were disseminated to the public. In other words, this evidence is useful not because it demonstrates what the draftsmen of the text may have been thinking, but only insofar as it illuminates what the public understood the words chosen by the draftsmen to mean.”). - 34 -

Justice Overton was not alone in this respect. Commissioner Jon Moyle (sponsor of the privacy proposal) spoke of government surveillance, technological advances, and society's dependence on such technology—characterizing them as threats to an individual's privacy. Transcript of Fla. C.R.C. proceedings at D:003273, 327678 (Jan. 9, 1978). He also noted that records about private life were becoming more common. Id. at D:003277-81. According to him, states were “very much involved in the business of keeping records about their residents.” Id. at D:003276. But the states, in his view, had not done “their part” in protecting such records. Id. at D:003277. In line with Commissioner Moyle's sentiments, Commissioners Lew Brantley and Dexter Douglass both noted specific government-surveillance efforts as sources of privacy concerns. Id. at D:003325 (remarks of Lew Brantley); id. at D:003336 (remarks of Dexter Douglass). This historical survey is illustrative of the commission's focus in terms of privacy. Various commissioners publicly expressed concern for informational privacy. However, as best as we can tell from their statements, that pressing concern did not extend to abortion. - 35

The proposals failed, and less than two years later, we held that there was no state constitutional right of privacy that would prevent public disclosure of confidential papers prepared by a consultant for an electric authority. Shevin v. Byron, Harless, Schaffer, Reid & Assocs., Inc., 379 So. 2d 633, 639 (Fla. 1980); cf. Laird v. State, 342 So. 2d 962, 963 (Fla. 1977) (no constitutional right of privacy to smoke marijuana in confines of home). Months after Shevin was decided, the Legislature revived the idea of a privacy clause and ultimately agreed on a proposal that said: Every natural person has the right to be let alone and free from governmental intrusion into [the person's] private life except as otherwise provided herein. This section shall not be construed to limit the public's right of access to public records and meetings as provided by law. Editorial, Guaranteeing Our Privacy, Boca Raton News, Oct. 29, 1980, at 6A (setting forth language to appear on 1980 ballot); Patrick McMahon, State Constitutional Amendments, St. Petersburg Times, Oct. 30, 1980, at 22 (noting ballot title). In overwhelming numbers, legislators from both political parties voted to approve it for placement on the ballot. Out of the - 36

138 legislators who voted on it, only 6 did not support the proposal. See Lorraine Cichowski, House Votes to Propose Guaranteeing Right to Privacy, Fort Myers News-Press, May 7, 1980, at 8B; Jim Walker, Senators Clash over Privacy Amendment, Tampa Tribune, May 15, 1980, at 6-A. Of additional note, during the floor debate, there was virtually no discussion of abortion. And when abortion was brought up, the Senate sponsor assured other senators that the proposal would have no effect on that subject. Audio Tape: Proceedings of the Fla. S., Tape 2 at 17:40 (May 14, 1980) (available at Fla. Dep't of State, Fla. State Archives, Tallahassee, Fla., Series S1238, Box 57). As best as we can tell, no commissioner or legislator ever claimed (at least publicly between 1977-80) that abortion was part of the rights guaranteed by the Privacy Clause.¹8 See, e.g., Gordon, 18. To the extent that Planned Parenthood relies on Representative Jon Mills's later statement in the 1990s that he subjectively hoped that the privacy proposal would cover abortion, such reliance is misplaced. See Heller, 554 U.S. at 577 (proper approach to interpretation does not consider hidden or secret meaning "that would not have been known to ordinary citizens in the founding generation”). Similarly, Planned Parenthood and one amicus misplace reliance on how voters handled two later proposed amendments—one in 2004 and the other in 2012. The understanding of voters over 20 years after the privacy amendment offers little value in determining what the voters in 1980 would have understood the privacy proposal to mean. Indeed, at oral - 37 -

supra, at 590 n.148 ("Nowhere did revision commissioners in 1978 refer to abortion . ."). Indeed, Planned Parenthood does not claim otherwise. D Like the history of the privacy proposal, the public debate surrounding the amendment also did not focus on abortion. Once the privacy proposal was approved for placement on the ballot in 1980, the public engaged in significant and robust debate over whether that proposal should be approved. Advocates for homosexual rights, proponents of legalized marijuana use, and various editorial boards advocated in favor of the amendment. Mary Hladky, Commissioners Table Vote on State Privacy Amendment, Fort Lauderdale News, Oct. 1, 1980, at 8B; Mary Lavers, Privacy Amendment Advocated by Kunst, Tampa Times, Oct. 23, 1980, at 10-A; Associated Press, Privacy Amendment Caught in Swirl of Controversy, Sentinel Star (Orlando), Oct. 24, 1980, at 2-C; Editorial, Amendment 2-Vote Yes, argument, Planned Parenthood conceded as much. See Oral Arg. at 22:59-23:02 (“2012 isn't evidence of what [the privacy amendment] meant in 1980.”). - 38 -

Bradenton Herald, Nov. 1, 1980, at A-4; Craig Matsuda, State Questions Are a Mix of Roads, Water, Privacy, Miami Herald, Nov. 2, 1980, at 8E; Amendments, St. Petersburg Times, Nov. 1, 1980, at 12B. These groups presented sweeping views of what the amendment would accomplish. Some, for instance, claimed that the amendment would decriminalize marijuana as well as certain intimate sexual conduct occurring inside the confines of a home. Julius Karash, Psychologist Stumps for Amendment, News-Press Local, Oct. 3, 1980, at B1; Steve Piacente, Gay Rights Activist Speaks for Privacy Act, Tampa Tribune, Oct. 24, 1980, at 2-B. Opponents of the measure included some political conservatives, various law enforcement officers, an association of prosecutors, and the then-serving governor. Prosecutors Condemn Privacy Amendment, Florida Today, Oct. 28, 1980, at 4B; Attorneys' Group Fights Privacy Amendment, Palm Beach Post, Oct. 28, 1980, at B26; Amendments under Attack as Vote Nears, Bradenton Herald, Oct. 29, 1980, at B-5; Graham Hit on Privacy, Florida Today, Oct. 29, 1980, at 6B; Amendment Opposition by Graham Criticized, Palm Beach Post, Oct. 29, 1980, at A11; Lawyer Raps Constitution Revision Plan, Fort Lauderdale News, Oct. 29, 1980, at 17A; Michael - 39 -

Harrell, Advertisement, Fort Lauderdale News, Oct. 29, 1980, at 16A; Amendments, St. Petersburg Times, Nov. 1, 1980, at 12B. Some opponents expressed concern that the open-ended language would permit courts to expansively interpret the amendment. Sensing that growing concern, House sponsors of the privacy proposal weighed in on the public debate. Taking to the newspapers, they reassured the public that concerns about whether the amendment would accomplish sweeping policy changes were unfounded. For instance, sponsors said that the proposed amendment arose from concerns “about technological advances that could enable the government to compile extensive computer files on citizens." Privacy Amendment Caught in Swirl of Controversy, supra, at 2-C; see also Associated Press, Privacy Measure Stirs Controversy, Pensacola News-Journal, Nov. 2, 1980, at 14C. Indeed, one sponsor said that the proposal was "necessary to ward off a growing government whose curiosity about people's private lives also is increasing." R. Michael Anderson, Amendment Guaranteeing Right to Privacy Debated, Florida Times-Union Jacksonville Journal, Oct. 26, 1980, at B-1. That same sponsor characterized the proposal as "quite conservative," predicting that - 40 -

"Florida judges wouldn't use it to overturn many existing laws." Privacy Amendment Caught in Swirl of Controversy, supra, at 2-C. And the other sponsor called expansive views of the proposed amendment “garbage.” See id. Of note, in looking at the extensive discussion surrounding the privacy amendment, little to nothing was said about abortion in print or in public comment. The debate-as framed to the publicoverwhelmingly associated the Privacy Clause's terms with concerns related to government surveillance and disclosure of private information to the public. Consistent with this observation, prolife and prochoice groups did not join in the fray. These groups are not politically bashfulnot now, and not in 1980. If the public understanding of the privacy proposal was that it included a silent-but almost unfettered-right to abortion, we would expect such groups to have engaged in the robust public debate. But based on all sources brought to our attention, we simply see no evidence of that. See James W. Fox, Jr., A Historical and Originalist Defense of Abortion in Florida, 75 Rutgers U. L. Rev. 393, 443-44 (2023) (acknowledging that these groups were silent on this topic; but - 41 -

discounting significance of such fact); cf. Oral Arg. at 13:02-13:39 (counsel for Planned Parenthood acknowledging that silence in the historical record). The dissent downplays the significance of this scope-of-debate evidence. Dissenting op. at 86. Accepting the logic of a law review article, the dissent claims that “[a]bortion would only have been debated if its coverage within the right to privacy were in dispute or were not yet established in law." Dissenting op. at 86 (quoting Fox, supra, at 442-43). We, however, cannot agree with this speculation. A person's understanding of the amendment's purpose would certainly inform whether he or she supported the adoption of the amendment. And, critically, it would inform how that person would persuade others to adopt their position. The debate over the privacy amendment was vigorous, yet there is virtually no evidence that anyone publicly connected the privacy amendment proposal with abortion rights. And as referenced by the dissent, newspapers during this same period were still discussing the controversy surrounding abortion, so it was far from a settled issue. Dissenting op. at 81-82 (noting that "Florida newspapers" in 1980 "covered statements by pro-choice activists and by pro-life activists" - 42 -

involving the abortion debate). We are unwilling to presume, as the dissent does, that abortion was so intertwined with the term "privacy" and so unquestionably accepted by society that its complete absence from the public debate surrounding this amendment should be expected. In sum, the scope of the privacy-proposal debate, both in terms of topics and participants, underscores that the public would not have understood, or assumed, the language of the Privacy Clause to encompass abortion. E Finally, we consider two additional sources of historical evidence, both of which show a contemporaneous understanding that the Privacy Clause did not enshrine abortion rights in our constitution. The first is concurrent legislative action. There were several Florida statutes passed between 1978 and 1980 regulating or restricting access to abortion in substantial ways. See ch. 78382, §§ 2, 4-10, Laws of Fla. (empowering Department of Health and Rehabilitative Services to create rules regulating abortion clinics; setting forth licensing requirement and framework; prohibiting abortion by unlicensed clinics); ch. 79-302, § 1, Laws of - 43 -

Fla. (requiring parental consent for unmarried minors); ch. 80-208, § 1, Laws of Fla. (fetal remains to be disposed of in "sanitary and appropriate manner"; establishing crime for violations of this standard); ch. 80-413, § 1, Laws of Fla. (additional regulations on abortion clinics; imposing standard governing disposal of fetal remains); cf. Amicus Brief of Former State Representative John Grant at 25-28 (noting concurrent legislation on abortionparticularly the abortion law passed during the same session as the privacy proposal). Based on this significant body of abortion regulation—some of which would be struck down as violative of Roe¹⁹ it seems unlikely to us that the Legislature in 1980 would put to the people a proposal crafted to imperil that recent work. The second source of evidence is what legislators of the time expressed with respect to adding a right-to-life amendment to the U.S. Constitution. See Fla. S. Comm. on HRS SM 737 (1978) Staff Analysis 1 (Fla. May 9, 1978) (available at Fla. Dep’t of State, Fla. State Archives, Tallahassee, Fla.); Fla. H.R., H.M. 388, 11th Sess. (Fla. 1979) (available at Dep't of State, Fla. State Archives, 19. See, e.g., Fla. Women's Med. Clinic, Inc. v. Smith, 536 F. Supp. 1048, 1059 (S.D. Fla. 1982). - 44 -

Tallahassee, Fla.); Fla. S., S.M. 118, 11th Sess. (Fla. 1979) (available at Fla. Dep't of State, Fla. State Archives, Tallahassee, Fla.). Of significance here, twenty-seven legislators who voted for the privacy proposal had, within the prior two years, openly supported the adoption of a federal amendment to "protect unborn human[s]” in response to Roe v. Wade. Compare H.R. Journal, 12th Sess., at 318 (Fla. 1980), with H.R. Journal, 11th Sess., at 48 (Fla. 1979); compare S. Journal, 11th Sess., at 21 (Fla. 1979), with S. Journal, 12th Sess., at 313 (Fla. 1980). To us, it seems quite unlikely that so many legislators would have tried to remove abortion rights as a matter of federal constitutional law only to restrict legislative power on abortion just two years later by way of a state constitutional amendment. F We pause to summarize the textual, contextual, and historical evidence we have discussed so far. The Privacy Clause of the Florida Constitution does not mention abortion or include a word or phrase that clearly incorporates it. Era-appropriate dictionary definitions and contextual clues suggest that abortion does not naturally fit within the rights at issue. Reliable historical sources, - 45 -

like the technical meaning of the terms contained in the provision, the origin of the amendment, and the framing of the public debate, similarly do not support a conclusion that abortion should be read into the provision's text. Roe is also relevant to our analysis of the public meaning of the Privacy Clause. But speculation as to Roe's effect on voter understanding does not overcome the combined force of the substantial evidence we have examined above. Thus, we cannot conclude that in 1980 a voter would have assumed the text encompassed a polarizing definition of privacy that included broad protections for abortion. VI We have established the background legal principles that govern our review and analyzed the original public meaning of the Privacy Clause as it relates to the subject of abortion. Now, we must address how those considerations apply here-namely, can Planned Parenthood demonstrate conflict between the challenged statute and the constitutional protections secured by the Privacy Clause? The statute we review prohibits abortions after 15 weeks of pregnancy, subject to certain exceptions. This statute "come[s] - 46 -

clothed with a presumption of constitutionality and must be construed" if possible "to effect a constitutional outcome." Crist, 978 So. 2d at 139. To overcome this presumption, the challenger must establish invalidity (or conflict) "beyond reasonable doubt." Id. Based on our analysis finding no clear right to abortion embodied within the Privacy Clause, Planned Parenthood cannot overcome the presumption of constitutionality and is unable to demonstrate beyond a reasonable doubt that the 15-week ban is unconstitutional. 20 This conclusion brings us into tension with our precedent, primarily T. W. in which we derived a right to abortion from the Privacy Clause's text and invalidated a statute on that basis. 551 So. 2d at 1188; see also N. Fla. Women's Health, 866 So. 2d at 639 (reaffirming T.W.); Gainesville Woman Care, 210 So. 3d at 1253-56, 20. Even if we gave significantly greater weight to Roe's effect on the original public meaning of the Privacy Clause (as urged by the dissent) and gave less weight to the other meaningful sources of evidence discussed above, we would still be left without a definition of privacy and considerable ambiguity as to the breadth of the provision. In that instance, we would reach the same conclusion, because a statute is presumed constitutional unless shown to be invalid beyond a reasonable doubt. Franklin, 887 So. 2d at 1073. The dissent fails to address what effect, if any, this longstanding principle of law should have here. - 47 -

1260 (relying on T.W.). In deciding how to resolve that tension, we again emphasize that T. W. failed to acknowledge the longstanding principle that statutes are presumed to be constitutional. This error led the Court to read additional rights into the constitution based on Roe's dubious and immediately contested reasoning, rather than evaluate what the text of the provision actually said or what the people of Florida understood those words to mean. The decision to extend the protections of the Privacy Clause beyond what the text could reasonably bear was not ours to make. As a result, we removed substantial authority from the people's elected representatives to regulate abortion-a profoundly unique and complicated issue that affects society in many significant ways. Accordingly, for the reasons given above, we find T.W. to be clearly erroneous. Based on our established test for assessing stare-decisis issues, we now ask whether there is a valid reason not to recede from T.W. See State v. Poole, 297 So. 3d 487, 506-07 (Fla. 2020) (outlining a two-part framework on stare-decisis issues). We have said that reliance is a critical consideration. Id. But as noted by the State, the Supreme Court's reasoning in Dobbs shows why reliance does not justify keeping T.W. In conducting a - 48 -

stare-decisis analysis in that case, the Supreme Court stressed that "[t]raditional reliance interests arise where advance planning of great precision is most obviously a necessity.'” Dobbs, 597 U.S. at 287 (first quoting Casey, 505 U.S. at 856 (joint opinion); and then citing Payne v. Tennessee, 501 U.S. 808, 828 (1991)). The Court went on to state that “those traditional reliance interests [a]re not implicated because getting an abortion is generally ‘unplanned activity,' and ‘reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions."" Id. at 288 (quoting Casey, 505 U.S. at 856). Finally, the Court rejected application of a more malleable and undefined form of reliance that focused on the relative social and economic effects of abortion. Id. at 288-89. In its view, this type of reliance was irrelevant to a proper stare-decisis framework. Id. We think that this analysis from Dobbs is in keeping with Poole. Indeed, in Poole, we expressed wariness for tests that are "malleable and do not lend themselves to objective, consistent, and predictable application." 297 So. 3d at 507 (criticizing North Florida Women's Health's multi-factor stare-decisis framework). And in the years since Poole issued, we have not employed the more malleable - 49 -

form of reliance that Dobbs declined to apply—the same sort of societal reliance interests now being advanced by Planned Parenthood. Apart from arguing reliance, Planned Parenthood does not offer any other valid reasons for keeping T.W. Accordingly, because Planned Parenthood has failed to demonstrate a valid reason for retaining T. W., we recede from it. We also recede from Gainesville Woman Care and North Florida Women's Health, which both applied T.W.'s flawed reasoning and offered no additional doctrinal justification for locating a right to abortion in the Privacy Clause. VII We now return to the specific facts of this case. Below, the trial court granted a temporary injunction, finding that Planned Parenthood would likely succeed in its constitutional challenge. Our holding, however, displaces the doctrinal justification for the trial court's decision. Planned Parenthood cannot demonstrate a likelihood of success on the merits of its claim, which alleged that the newly enacted statute was facially invalid under the Privacy Clause of the Florida Constitution. And since Planned Parenthood fails on this prong, it is not entitled to a temporary injunction. - 50 -

Although we do not adopt the reasoning of the First District, we approve the result it reached below. It is so ordered. MUÑIZ, C.J., and CANADY, COURIEL, and FRANCIS, JJ., concur. SASSO, J., concurs with an opinion. LABARGA, J., dissents with an opinion. NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED. SASSO, J., concurring. I join the majority opinion because it correctly holds that the Florida Constitution does not contain a right to elective abortion. I write separately to explain why I believe it is appropriate to reach that decision considering the standing arguments raised by the State in the lower court proceedings and on appeal and as highlighted by Amici in this Court. In doing so, I will start with some observations regarding this Court's standing jurisprudence. I will then explain why I agree with the majority's decision to accept the State's waiver of any standing arguments here. Finally, I will explain why I believe, in the proper case, this Court should reconsider its standing precedent. - 51 -

I. Standing is the legal doctrine that defines when a litigant has a stake in a controversy sufficient to obtain judicial resolution of that controversy. The doctrine keeps us in our constitutional lane by ensuring we do not become “roving commissions assigned to pass judgment on the validity of the [State's] laws." See Broadrick v. Oklahoma, 413 U.S. 601, 611 (1973). At the federal level, standing requirements are derived from Article III of the United States Constitution's Case or Controversy Clause. Constitutional in origin, standing is therefore a jurisdictional prerequisite to a plaintiff's right to sue in federal court. See Indus. Servs. Grp., Inc. v. Dobson, 68 F.4th 155, 167 (4th Cir. 2023) ("It is axiomatic that standing is a threshold jurisdictional issue that must be determined before a court can consider the merits of a case." (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 88 (1998))). For that reason, federal courts have the ability, and indeed the obligation, to address standing sua sponte even if a defendant has not raised the issue. See United States v. Hays, 515 U.S. 737, 742 (1995) ("[W]e are required to address [standing] even if the courts - 52 -

below have not passed on it, and even if the parties fail to raise the issue before us." (first alteration in original) (quoting FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 230-31 (1990))); Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco Managed Care, L.L.C., 433 F.3d 181, 198 (2d Cir. 2005) ("Because the standing issue goes to this Court's subject matter jurisdiction, it can be raised sua sponte."). Likewise, the question of standing is not subject to waiver. Hays, 515 U.S. at 742. At the state level, it is different. As it relates to standing, the Florida Constitution is textually distinct from the Federal Constitution because it does not contain an explicit cases and controversies clause. It should go without saying, then, that federal law does not control standing requirements in state courts. See ASARCO Inc. v. Kadish, 490 U.S. 605, 617 (1989) (noting that the constraints of Article III do not apply to state courts, and accordingly state courts are not bound by the limitations of a case or controversy). Even so, this Court has at times reflexively adopted federal standing tests without examining whether the Florida Constitution demands similar requirements. See, e.g., State v. J.P., 907 So. 2d 1101, 1113 n.4 (Fla. 2004) (adopting three-part standing - 53 -

test established by the United States Supreme Court in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)); Alterra Healthcare Corp. v. Est. of Shelley, 827 So. 2d 936, 941 (Fla. 2002) (adopting thirdparty standing test recognized by the United States Supreme Court). We have not done so consistently, though. At times, we have concluded that standing in Florida is less restrictive than at the federal level. For example, in Department of Revenue v. Kuhnlein, 646 So. 2d 717, 720 (Fla. 1994), we said that the doctrine of standing does not exist in Florida "in the rigid sense employed in the federal system." See also Coal. for Adequacy & Fairness in Sch. Funding, Inc. v. Chiles, 680 So. 2d 400, 403 (Fla. 1996) (noting that in Florida, unlike the federal system, the doctrine of standing has not been rigidly followed). Consistent with this observation, we have sometimes applied state-specific standing rules. See, e.g., Johnson v. State, 78 So. 3d 1305, 1314 (Fla. 2012) (holding a litigant has standing if "he or she reasonably expects to be affected by the outcome of the proceedings, either directly or indirectly” (quoting Hayes v. Guardianship of Thompson, 952 So. 2d 498, 505 (Fla. 2006))). Other times we have, either explicitly or implicitly, - 54 -

bypassed a standing analysis altogether. See, e.g., J.P., 907 So. 2d at 1113 ("Because the Second District never determined whether these juveniles have standing to assert the constitutional rights of their parents, we decline to rule on these claims." (footnote omitted)).21 Our inconsistent approach is especially evident in the context of third-party standing. Traditionally, this Court considered as well-settled the rule that one who is not himself denied some constitutional right or privilege cannot be heard to raise constitutional questions on behalf of some other person who may at some future time be affected. See, e.g., Steele v. Freel, 25 So. 2d 501, 503 (Fla. 1946). Eventually, though, we carved out exceptions. For example, in Jones v. State, 640 So. 2d 1084 (Fla. 1994), we determined that criminal defendants could raise the privacy rights 21. Despite the inconsistent application of various tests to determine whether a party has standing to pursue its claims, our standing precedent has been steady in one respect. We have always held that standing can be waived. See, e.g., Krivanek v. Take Back Tampa Pol. Comm., 625 So. 2d 840, 842 (Fla. 1993); Cowart v. City of West Palm Beach, 255 So. 2d 673, 675 (Fla. 1971). However, this is somewhat logically inconsistent, because we oftentimes have adopted federal standards ostensibly derived from the Federal Constitution without adopting the corresponding rule that standing is jurisdictional in nature and therefore not subject to waiver. - 55 -

of the female minors with whom they had sexual relations because the criminal defendants "st[oo]d to lose from the outcome of this case and yet they ha[d] no other effective avenue for preserving their rights." Id. at 1085 (referencing Stall v. State, 570 So. 2d 257 (Fla. 1990), for "vicarious standing" requirements). Later, in Alterra, we applied a federal test to determine when parties can sue on behalf of rights belonging to others. 827 So. 2d at 941-42. The test, as laid out in Alterra, goes like this: a litigant may bring an action on behalf of a third party if 1) the litigant suffered an “injury in fact,” thus giving him or her a "sufficiently concrete interest" in the outcome of the issue in dispute; 2) the litigant has a close relation to the third party; and 3) there is some hindrance to the third party's ability to protect his or her own interests. Id. (quoting Powers v. Ohio, 499 U.S. 400, 410-11 (1991)). But we applied this test in Alterra without explicitly adopting it as doctrine and without addressing our previous application of the Stall standard in Jones. Only a year after Alterra was decided, we again backed away from applying federal standing tests at all in Allstate Insurance Co. v. Kaklamanos, 843 So. 2d 885 (Fla. 2003). There, we reiterated - 56

that the doctrine of standing does not exist in Florida "in the rigid sense employed in the federal system." Id. at 895 (quoting Kuhnlein, 646 So. 2d at 720). This made room for our conclusion that an insured could maintain an action against the insurer for nonpayment of personal injury protection automotive insurance benefits even though the insured had not paid the medical bills in question and the medical provider had not instituted legal action against the insured for nonpayment. Id. at 897. And later, we appeared to cabin Alterra to the employment context in Weaver v. Myers, 229 So. 3d 1118, 1129 (Fla. 2017). In that same case, we also cited favorably the “vicarious standing" test from Jones, a case that preceded Alterra.2² Id. 22. Our doctrinal inconsistency in third-party standing cases is not the only aspect of our standing jurisprudence that has been unclear. For example, as noted above we adopted the three-part standing test established by the United States Supreme Court in Lujan v. Defenders of Wildlife, 504 U.S. 555, in J.P. But a few years later in Johnson, we stated broadly that “standing ‘requires a would-be litigant to demonstrate that he or she reasonably expects to be affected by the outcome of the proceedings, either directly or indirectly.'" 78 So. 3d at 1314 (quoting Hayes, 952 So. 2d at 505). We did so without any reference to our previous adoption of the Lujan test and over the dissenting justices' observation that the moving party would have met that standing requirement. And although we have, with more consistency, adhered to the Rickman v. Whitehurst, 74 So. 205 (Fla. 1917), rule when litigants have - 57 -

II. With that background in mind, I now return to this case. It serves as a prime example of the challenges our doctrinal inconsistencies create for litigants and lower courts. In the trial court, the State argued Planned Parenthood lacked standing to challenge HB 5 because none of the plaintiffs could assert a personal right to privacy—instead, the plaintiffs sought to assert the privacy rights of their patients and/or customers. Working off the Alterra test, the State then argued Planned Parenthood could not meet the requirements for overcoming the general bar to third-party standing. In doing so, though, the State conceded that the second prong of the Alterra test (the close relationship requirement) was satisfied. In response, Planned Parenthood accepted the State's framing of the issue, arguing it could satisfy the Alterra test. This framework carried over to the trial court's order granting the challenged government action, we continue to carve out exceptions without a textual explanation justifying a new exception. See, e.g., Dep't of Admin. v. Horne, 269 So. 2d 659 (Fla. 1972) (citing federal precedent to carve out exception for "ordinary citizens and taxpayers" to pursue constitutional claims in certain circumstances even absent a showing of special injury to themselves). - 58 -

temporary injunction, where it applied the Alterra test and concluded that Planned Parenthood has "third-party standing to bring this suit on behalf of their actual and potential patients." Planned Parenthood of Sw. & Cent. Fla. v. State, No. 2022-CA-912, 2022 WL 2436704, at *17 (Fla. 2d Cir. Ct. July 5, 2022). But, in the First District, the court concluded that it did not need to address Petitioners' standing argument. Instead, the First District decided that Petitioners had not suffered irreparable harm sufficient to support the issuance of a temporary injunction. State v. Planned Parenthood of Sw. & Cent. Fla., 342 So. 3d 863, 867-68 (Fla. 1st DCA 2022). That takes us to the parties' briefing filed in this Court. The State reasserted its argument as to Planned Parenthood's standing to pursue its claims. But as the majority opinion notes, the State essentially conceded the issue of standing at oral argument, urging this Court to reach the merits. So why do we accept that concession? First, as the majority notes, this case has been litigated under the umbrella of this Court's abortion jurisprudence. See, e.g., Gainesville Woman Care, LLC v. State, 210 So. 3d 1243, 1253-54 (Fla. 2017); N. Fla. Women's - 59 -

Health & Counseling Servs., Inc. v. State, 866 So. 2d 612, 620 (Fla. 2003); In re T. W., 551 So. 2d 1186, 1188-89 (Fla. 1989). And our abortion jurisprudence falls into the category of cases where we have, without explaining why, skipped over a standing analysis altogether. As a result, we have neither directly addressed standing nor applied the Alterra test in any of our abortion cases. Instead, to the extent standing was considered, we seem to have collapsed the analysis into the grounds for obtaining a temporary injunction without considering which standing test to apply or whether an abortion provider can meet that test. See Gainesville Woman Care, 210 So. 3d at 1247 (“Petitioners have established a substantial likelihood of success on the merits, one of the requirements of granting a temporary injunction, as well as all other grounds for the entry of a temporary injunction.” (emphasis added)). For that reason, addressing standing alone here would have only added to the inconsistencies in our cases. Second, both parties have asked us to apply the federal thirdparty standing test as applied in Alterra. But as explained above, we have applied that test once. And, for many reasons, I question the wisdom of perpetuating the standard here. For one, I do not - 60

think we should apply federal standards to textually distinct provisions of the Florida Constitution without considering whether that standard is independently justified on state law grounds. For another, reflexively adopting the federal third-party standing test is particularly troublesome because, in federal courts, it has been inconsistently applied and widely criticized. See, e.g., June Med. Servs. L. L. C. v. Russo, 140 S. Ct. 2103, 2142-46 (2020) (Thomas, J., dissenting) (noting the test's inconsistent application, criticizing the characterization of third-party standing as prudential in nature, and concluding that third-party standing is inconsistent with the case-or-controversy requirement of Article III). Finally, and critically, neither party has challenged our characterization of standing as waivable rather than jurisdictional. Similarly, no party has offered an alternative standard to apply in the absence of Alterra or an argument as to whether Planned Parenthood fails to meet any alternative standard. As a result, I believe this Court properly reaches the merits of this case. III. While the State's concession takes care of this case, in future cases we should reconsider our standing precedents. Most - 61

fundamentally, we should consider from where our standing requirements are derived (spoiler alert-it is not the Federal Constitution). For example, is standing in Florida derived only from article V's conception of "judicial power"? See, e.g., Sons of Confederate Veterans v. Henry Cnty. Bd. of Comm'rs, 880 S.E.2d 168, 185-86 (Ga. 2022) (concluding that standing requirement arises from the Georgia Constitution's judicial power provision). Or does the access to courts provision of article I, section 21 have anything to say as to standing? Once decided, we will need to clarify the scope of any standing requirements, such as whether parties may assert both legal and factual injuries or whether only a legal injury will suffice. See, e.g., F. Andrew Hessick, Standing, Injury in Fact, and Private Rights, 93 Cornell L. Rev. 275, 280-81 (2008) (noting that at common law "factual harm without a legal injury was damnum absque injuria and provided no basis for relief"). We will also need to examine whether standing requirements are truly subject to waiver, or instead whether they are jurisdictional in nature. And finally, we will need to provide a principled methodology to help litigants understand which tests to apply when. - 62 -

To decide these and other issues related to standing, we will need the benefit of the adversarial process and thorough briefing. For that reason, and in the proper case, I encourage parties to critically assess these and other standing issues and present argument to this Court should the opportunity arise. LABARGA, J., dissenting. When the United States Supreme Court's decision in Dobbs23 “returned to the people and their elected representatives” “the authority to regulate abortion,” the decision did not force the state of Florida into uncharted territory. Instead, as history reveals and the majority acknowledges, the right to an abortion as a matter of Florida law was decided decades ago following two significant postRoe24 developments: (1) Florida voters' 1980 approval of an amendment to the Florida Constitution expressly providing a right of privacy, and (2) this Court's 1989 decision in In re T. W., 551 So. 2d 1186 (Fla. 1989), holding that Florida's express right of privacy 23. Dobbs v. Jackson Women's Health Org., 597 U.S. 215, 292 (2022). 24. Roe v. Wade, 410 U.S. 113 (1973). - 63

encompasses the right to an abortion. Nonetheless, today's majority decision recedes from decades of this Court's precedent and holds that "there is no basis under [Florida's express right of privacy] to invalidate” “a recently amended statute that shortens the window of time in which a physician may perform an abortion." Majority op. at 2. I strongly dissent. The Right of Privacy Adopted by Florida voters in 1980, article I, section 23 of the Florida Constitution provides: “Every natural person has the right to be let alone and free from governmental intrusion into the person's private life except as otherwise provided herein. This section shall not be construed to limit the public's right of access to public records and meetings as provided by law." Contrary to the majority, I am convinced that in 1980, a Florida voter would have understood that the proposed privacy amendment “included broad protections for abortion." Id. at 46. The right of privacy is no novel concept. More than 100 years ago, former Michigan Supreme Court Justice and noted legal scholar Thomas Cooley described “[t]he right to one's person" as the right "to be let alone." Thomas M. Cooley, A Treatise on the Law of - 64 -

Torts or the Wrongs Which Arise Independent of Contract 29 (2d ed. 1888). When the right "to be let alone" was discussed by Samuel D. Warren and Louis D. Brandeis in their Harvard Law Review article The Right to Privacy, the article primarily discussed the tort of invasion of privacy. See Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890). However, the authors also made the following salient observation: THAT the individual shall have full protection in person and in property is a principle as old as the common law; but it has been found necessary from time to time to define anew the exact nature and extent of such protection. Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the demands of society. Id. at 193. Thus, even in early considerations of the right of privacy, scholars recognized that the right would be one that would evolve over time and it did. During the twentieth century, political, social, and economic changes led to a host of changes in the legal landscape, resulting in an expansion of the right of privacy far beyond a right to be free from unwanted public exposure. Without question, one of the most significant legal developments was the United States Supreme Court's recognition in Roe of an implicit right of privacy - 65 -

guaranteeing the right to an abortion as a matter of federal law. However, the right of privacy in the context of decisional autonomy took hold several years earlier in Griswold v. Connecticut, 381 U.S. 479 (1965) (holding that a state statute prohibiting the use of contraceptives violated the right to marital privacy). It is relevant to the analysis of the public understanding of the right of privacy that Griswold's expansion of privacy to reach decisional autonomy occurred more than seven years before Roe and fifteen years before Florida voters' adoption of the right of privacy as a matter of state constitutional law. The State's argument, that the sole context for Florida's right of privacy is informational privacy, seems to have been a step too far even for the majority. Nonetheless, the majority concludes that the language of "shall not be construed to limit the public's right of access to public records and meetings as provided by law" provides context that "do[es] not lend support to a claim that voters clearly understood abortion to be part and parcel of the rights recognized" under the right of privacy. Majority op. at 23. What is more, it reaches this conclusion despite substantial evidence that - 66 -

overwhelmingly supports the conclusion that the public understood the right of privacy to encompass the right to an abortion. Abortion as a Private Matter Before turning to the public understanding of the right of privacy, I write to address the majority's suggestion that abortion is ultimately not a private matter because “the procedure itself include[s] medical intervention and require[s] both the presence and intrusion of others.” Id. at 21 (citing Roe, 410 U.S. at 172 (Rehnquist, J., dissenting)). The majority acknowledges that an abortion "include[s] medical intervention,” see id., but beyond merely “includ[ing] medical intervention,” Florida’s statutes regulating abortion—then and now-require that the procedure be performed by a physician. See § 390.0111(2), Fla. Stat. (2023) (requiring that a termination of pregnancy be performed by a physician); Wright v. State, 351 So. 2d 708 (Fla. 1977) (pre-1980 decision from this Court upholding the conviction of a registered nurse who performed an abortion in violation of statute requiring that the procedure be performed by a physician). The “others” required to be present and involved in the procedure are physicians and medical personnel. In the interest of - 67 -

patient privacy, medical matters, including countless forms of medical procedures, are broadly afforded confidentiality protections with narrowly tailored exceptions. And notably, the involvement of a physician was not fatal to the privacy issue in Griswold, where the United States Supreme Court said: "This law [prohibiting the use of contraceptives], however, operates directly on an intimate relation of husband and wife and their physician's role in one aspect of that relation.” 381 U.S. at 482 (emphasis added). As a matter of necessity, physicians and medical personnel are routinely involved in a wide range of medical procedures, decisions, and other medical matters. The majority attempts to limit today's decision to the issue of abortion. See majority op. at 10 note 7 ("[T]oday we do not revisit our precedents outside the abortion context."). However, I fear that parties will rely on the majority's reasoning that the involvement of "others" in an abortion procedure defeats privacy-in attempts to undermine the broad privacy protections that are extended in the medical context. - 68

The Public Understanding of Roe v. Wade and the Right of Privacy The majority "acknowledge[s] that the public understanding of the term 'privacy' was, to some extent, informed by the United States Supreme Court's 1973 decision in Roe v. Wade," observing that "[following that decision, the phrase ‘right to privacy' gained new connotations that, for the first time, included the choice to have an abortion." Majority op. at 29 (emphasis added). The majority continues: In Planned Parenthood's view, this aspect of federal privacy jurisprudence should control our analysis here. Specifically, Planned Parenthood argues that Florida voters would have internalized Roe's definition of privacy when they voted for the privacy amendment. Indeed, Planned Parenthood has repeatedly asserted that the public understanding of this privacy definition was so engrained by 1980 that even without a specific mention of the term abortion, the Privacy Clause unequivocally included such a right by implication. Though this argument has some force, we cannot agree with Planned Parenthood that the backdrop of Roe conclusively establishes how a voter would have understood the provision. Id. at 29-30 (emphasis added). The majority concludes that "[c]onsequently, while Roe is relevant to our analysis of public meaning, it is not dispositive.” Id. at 32. I could not disagree more. - 69 -

The majority correctly recognizes the significant impact of Roe but stops short of the reality that Roe, having fundamentally changed the landscape of abortion rights on a national scale by redefining the scope of the right of privacy, was key to the public understanding of the right of privacy. During the seven-year interval between Roe and Florida voters' adoption of the right of privacy, I find it inconceivable that Americans and more specifically, Floridians were not aware that the right of privacy encompassed the right to an abortion. I agree with the petitioners that "the public understanding of [Roe's] privacy definition was so engrained by 1980 that even without a specific mention of the term abortion, the Privacy Clause unequivocally included such a right by implication." Id. at 29-30. In fact, the majority notes the controversial impact of Roe's reasoning, which reinforces that the public would have understood the right of privacy encompassed the right to an abortion. See id. at 14 (stating that Roe "left even progressive legal scholars baffled at how such a right could be gleaned from the constitution's text," and quoting Dobbs, 597 U.S. at 268 (“Roe's constitutional analysis was far outside the bounds of any reasonable interpretation of the - 70 -

various constitutional provisions to which it vaguely pointed.")). Contrary to the majority's position, evidence of the discussion surrounding Roe's reasoning is probative that the public understood the right of privacy to encompass the right to an abortion, and to so conclude does not require the "analytical leap" that the majority suggests it does. See id. at 31. Roe's opponents strenuously disapproved of basing the right to an abortion on the right of privacy; just as strenuously, Roe's supporters agreed with the Supreme Court's analysis. The common denominator is the understanding that the right to an abortion was tied to the right of privacy. The Nationwide Understanding of Roe and the Right of Privacy A decision that triggered pervasive national coverage, Roe was publicly discussed and debated in a way that most judicial decisions-even those decided by the United States Supreme Court are not. Media outlets across the nation reported on the landmark decision. On the day that Roe was decided, Associated Press articles announcing the seminal decision were published on the front pages of newspapers nationwide, many explaining that the decision "was - 71 -

based predominantly on what [Justice] Blackmun called a right of privacy."25 The nightly news programs on the major television networks also reported on Roe to an audience of tens of millions of viewers. The CBS Evening News with Walter Cronkite-a news program with, at that time, a consistent audience of twenty million or more viewers-covered the decision in a segment lasting more than three minutes, noting that “[t]he nine justices made abortion 25. See, e.g., Associated Press, Abortion Law Out, Mexico Ledger, Jan. 22, 1973, at 1; Associated Press, Barry Schweid, Abortion Law Struck by Court, The Courier News (Blytheville), Jan. 22, 1973, at 1; Associated Press, Abortions Allowed During 1st 6 Months, The Daily Chronicle (Centralia), Jan. 22, 1973, at 1; Associated Press, Barry Schweid, Blackmun Cites 'Right of Privacy' Court Bars Restricting Three-Month Abortions, The Index-Journal (Greenwood), Jan. 22, 1973, at 1; Associated Press, Court Strikes Down Abortion Law, The Neosho Daily News, Jan. 22, 1973, at 1; Associated Press, Court Strikes Down Abortion Law, Aiken Standard, Jan. 22, 1973, at 1; Associated Press, Court Strikes Down Texas Abortion Law, The Daily Times-News (Burlington), Jan. 22, 1973, at 1; Associated Press, Barry Schweid, Decision Will Affect 44 States, Del Rio News-Herald, Jan. 22, 1973, at 1; Associated Press, High Court Upholds Medical Abortions, Waukesha Daily Freeman, Jan. 22, 1973, at 1; Associated Press, Key Abortion Ruling by Supreme Court, Santa Cruz Sentinel, Jan. 22, 1973, at 1; Associated Press, Rule on Abortions, The Sedalia Democrat, Jan. 22, 1973, at 1; Associated Press, States Can't Block Early Abortions, The Bismarck Tribune, Jan. 22, 1973, at 1; Associated Press, Supreme Court Upholds Women's Abortion Rights, Fairbanks Daily News-Miner, Jan. 22, 1973, at 1; Associated Press, Texas Law Struck Down, 7-2, The Vernon Daily Record, Jan. 22, 1973, at 1-2. - 72 -

largely a private matter." CBS Evening News with Walter Cronkite, featuring George Herman in Washington (CBS television broadcast Jan. 22, 1973), https://www.youtube.com/watch?v=dccagy905yk (available on the CBS News YouTube channel). Throughout the nation, local journalists also published articles announcing and explaining Roe, as did opinion writers in making their arguments.26 In some articles, even the titles emphasized that the right to an abortion was based on the right of privacy. See, e.g., Supreme Court: Right of Privacy Includes Abortion, The Georgia Bulletin, Feb. 22, 1973, at 2 (calling Roe "one of the biggest news stories of the year"); Chicago Daily News Services, 'Privacy' is Reason for Abortion Ruling, Omaha World-Herald, 26. See, e.g., Bonni McKeown, Abortion's Status in West Virginia: Legal Question Affects Availability, Beckley Post-Herald, June 21, 1976, at 5 (explaining that Roe invalidated most states' abortion laws based on the balancing of the state's interests versus a woman's right of privacy); Washington Post, Editorial, Abortion: 19th Century, The Evening Times (Sayre), Feb. 3, 1973, at 4 (same); Joseph Kraft, Opinion, The High Court Speaks Up for Privacy, The Greensboro Record, Jan. 29, 1973, at 20 (same); Joseph Kraft, Opinion, Ruling Revealed Conservative Court, The Montana Standard, Jan. 28, 1973, at 6 (same); Joseph Kraft, Opinion, The Abortion Ruling, The Roanoke Times, Jan. 27, 1973, at 6 (same); Mary Smith, Abortion Ruling Draws Varied Reactions Here, The Lawton Constitution, Jan. 23, 1973, at 4 (same). - 73 -

Jan. 23, 1973, at 18; Associated Press, 'Right of Privacy' Cited in Action Against States, Reno Gazette-Journal, Jan. 22, 1973, at 1. Roe and its extensive coverage informed legislators and their constituents that the right of privacy under the U.S. Constitution protected the right to an abortion. Far from an issue that faded after one or two news cycles, abortion remained a prevalent issue during the seven years between Roe and the 1980 adoption of Florida's privacy amendment. The three-trimester framework laid out in Roe balanced the state's interests against the mother's right of privacy, and based on that balancing test, abortion laws in multiple states, including Florida, were struck down on federal privacy grounds. See Fla. Women's Med. Clinic, Inc. v. Smith, 478 F. Supp. 233 (S.D. Fla. 1979) (holding unconstitutional, on federal privacy grounds, administrative rules implementing Florida abortion statute); Jones v. Smith, 474 F. Supp. 1160 (S.D. Fla. 1979) (granting, on federal privacy grounds, a preliminary injunction against the enforcement of Florida abortion statute); Coe v. Gerstein, 376 F. Supp. 695 (S.D. Fla. 1973) (holding Florida abortion statute unconstitutional on federal privacy grounds). - 74 -

As courts, legislatures, and the public continued to confront the topic of abortion, the media continued to cover Roe, noting the historical and legal context: “In the famous 1973 Roe vs. Wade case, the U.S. Supreme Court ruled that choosing abortion was part of a woman's right to privacy";27 "The Supreme Court legalized abortions in 1973, basing its landmark ruling on a woman's right to privacy."28 In 1980, only two months before Florida's privacy amendment vote, a United States district court judge struck down North Dakota's new abortion law regulating first trimester abortions, applying Roe and stating that "[t]he decision to obtain an abortion free from governmental interference is a fundamental right founded 27. Kevin M. Russell, Letter to the Editor, Does The Bill Regulating Abortions Deny Women Their Rights?, The Record (Hackensack), June 17, 1979, at 105. 28. Associated Press, Top Court to Decide Abortion Law Rule, Gettysburg Times, Nov. 28, 1979, at 6; Associated Press, Abortion Issue Back Before Supreme Court, The Index-Journal (Greenwood), Nov. 27, 1979, at 8; Associated Press, Abortion Issue Goes Back to High Court, News-Journal (Mansfield), Nov. 27, 1979, at 7; Associated Press, Abortion Issue is Back Before the Supreme Court, Poughkeepsie Journal, Nov. 27, 1979, at 6; Associated Press, High Court to Rule on Abortion Issue, Daily Sitka Sentinel, Nov. 27, 1979, at 2. - 75 -

in the right of privacy implicit in the Constitution." Leigh v. Olson, 497 F. Supp. 1340, 1343 (D.N.D. 1980); Associated Press, Most of Abortion Law Tossed Out, The Bismarck Tribune, Sept. 30, 1980, at 1 (front-page newspaper article in North Dakota quoting the court's decision). Following Roe, pro-choice advocates praised the decision for recognizing a woman's right of privacy, while Catholic bishops and other pro-life advocates spoke out against Roe, asserting that the decision let the right of privacy outweigh the right to life: “In effect, the Court is saying that the right of privacy takes precedence over the right to life." U.S. Bishops Issue Message on Abortion, Panama City News-Herald, Mar. 4, 1973, at 40; Bishops Reject High Court's Abortion Ruling, Issue Pastoral Applications for Catholics, The True Voice (Omaha), Feb. 16, 1973, at 1.29 at 29. See also Katherine Lunine, Letter to the Editor, Preserve Constitutional Rights, The Journal News (Hamilton), Feb. 1, 1977, 4 (showing that pro-choice actors argue that government interference with abortion is limited by a woman's right of privacy); Associated Press, Abortion Ban Voted by House, The Corbin TimesTribune, Sept. 17, 1976, at 12 (same); Associated Press, Betty Anne Williams, Anti-Abortionists Stage Ban Rally in Washington, The Robesonian (Lumberton), Jan. 22, 1976, at 2 (same); Associated Press, 'March for Life' Again Seeks Amendment to Ban Abortion, The Index-Journal (Greenwood), Jan. 22, 1976, at 3 (same); Associated - 76

Ultimately, whether they supported the Supreme Court's decision in Roe or not, Americans in 1980 would have understood that the right of privacy encompassed the right to an abortion. The Public Understanding of Florida Voters in 1980 More specifically, and especially relevant to the present case, Florida media coverage after Roe illustrates that in 1980 Florida voters would have understood the privacy amendment to encompass the right to an abortion. The wealth of primary sources from Florida strongly indicates what voters would have known. Newspapers across Florida began reporting on Roe the day it was decided: January 22, 1973. In explaining the decision, these articles discussed the federal right of privacy as the basis for the right to an abortion. Adam Richardson, The Originalist Case for Why the Florida Constitution's Right of Privacy Protects the Right to an Abortion, 53 Stetson L. Rev. 101, 125 (2023). Like newspapers throughout the nation, Florida newspapers published an Associated Press, Washington Rally Marks Abortion Anniversary, The Times Record (Troy), Jan. 22, 1976, at 3 (same); United Press International, High Court 7-2 Ruling on Abortion Praised, Condemned, Traverse City Record-Eagle, Jan. 23, 1973, at 24 (same). - 77 -

Press article quoting Roe's pronouncement that the right of privacy "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." See, e.g., Associated Press, Court Strikes Down Abortion Laws, The Pensacola News, Jan. 22, 1973, at 1; Associated Press, High Court KOs Ban on Abortion, Tallahassee Democrat, Jan. 22, 1973, at 1. Coverage of Roe and of this broad privacy right also made the front pages of newspapers in Orlando and Fort Myers. See Washington Post Dispatch, High Court Nullifies Abortion Laws, Sentinel Star (Orlando), Jan. 23, 1973, at 1; Associated Press, Six-Month Abortions Upheld, Fort Myers NewsPress, Jan. 23, 1973, at 1. In 1980, the right of privacy and its inextricable connection to the right to an abortion continued to permeate Florida news. When Justice Douglas died in January 1980, Florida newspapers reported his legacy with mention of his majority opinion in Griswold as a precursor to Roe. Richardson, supra, at 131; James W. Fox Jr., A Historical and Originalist Defense of Abortion in Florida, 75 Rutgers U. L. Rev. 393, 427-28 (2023). For example, a Miami Herald article noted that after Griswold, "the [United States Supreme] court moved to rule, in 1973, that a woman in early pregnancy has a - 78 -

constitutional right of privacy to choose abortion without government interference." Aaron Epstein, William O. Douglas: Champion of Underdogs, Unpopular Ideas, The Miami Herald, Jan. 27, 1980, at 5-E. Florida news coverage of the United States Supreme Court continued with reports of abortion cases―and their right of privacy issues. In discussing the Supreme Court's 1980 oral arguments in H. L. v. Matheson, 450 U.S. 398 (1981), which involved parental notification of abortion, the Miami Herald reported that “[o]ut of this conflict between a minor's right to privacy and her parents' obligation to care for her has emerged a constitutional issue that was accepted Monday for review by the U.S. Supreme Court." Aaron Epstein, Court Will Examine Parents' Notification for Minor's Abortion, The Miami Herald, Feb. 26, 1980, at 10-A. And explaining the Court's decision in Harris v. McRae, 448 U.S. 297 (1980), which upheld the Hyde Amendment's restrictions on the use of federal funds to pay for an abortion, the Pensacola News reported that the decision "had nothing to do with the legality of abortion itself" because “[t]he Supreme Court legalized abortion in its landmark 1973 decision” in which "the court said a woman's right to privacy - 79 -

makes her decision to have an abortion a matter only for her and her doctor during the first three months of her pregnancy." Associated Press, High Court Rules on Abortions, The Pensacola News, June 30, 1980, at 1. Florida newspapers covered major party platforms, including their stances on abortion. These articles linked the abortion issue with the right of privacy. The Fort Lauderdale News and other Florida newspapers published a syndicated column indicating that although the Republican platform did not yet have a consensus on abortion, the Supreme Court had made its determination in 1973 by, in the author's view, “forging from a ‘privacy right' a scythe to mow down state laws that expressed various community judgments about abortion." See George Will, Opinion, Bridges to Cross; Bridges to Burn, Fort Lauderdale News, July 17, 1980, at 18A; Richardson, supra, at 132 n. 177 (observing that the column ran in Florida Today, Fort Myers News-Press, Palm Beach Post, Pensacola News, Sentinel Star (Orlando), St. Lucie News Tribune, St. Petersburg Times, Stuart News, and Tallahassee Democrat). Covering the Democratic platform, the St. Petersburg Times reported that delegates had voted for a platform statement opposing "government - 80 -

interference in the reproductive decisions of Americans" and "restrictions on funding for health services for the poor that deny poor women especially the right to exercise a constitutionallyguaranteed right to privacy." Charles Stafford, Kennedy Stirs Democrats with Rousing Call to Arms, St. Petersburg Times, Aug. 13, 1980, at 1-A (quoting the statement under the label “ABORTION”). Florida newspapers also covered statements by pro-choice activists and by pro-life activists that demonstrate both groups' understanding of abortion as part of the right of privacy. See Associated Press, Planned Parenthood Waving the Flag, The Tampa Tribune, Oct. 4, 1980, at 7-D (“In recent years we have faced an increasingly vocal and at times violent minority which seeks to deny all of us our fundamental rights of privacy and individual decisionmaking."); Carol Jeffares, Her Love of Life Makes Her Stand, Fight for It, The Tampa Tribune, Sept. 20, 1980, at 5-Pasco ("The abortion law is based on the woman's right to privacy. It says ‘a woman's right to privacy supersedes the fetus's life." "); Richardson, supra, at 132. With inflammatory language, both pro-choice and pro-life letters to the editor in Florida newspapers further demonstrate this understanding. See Joyce Tarnow, Letter to the Editor, Vote Out - 81

Anti-Abortionists, Fort Lauderdale News, Jan. 29, 1980, at 26-A ("The U.S. Constitution guarantees each of us the right of privacy, the right of religious freedom and the right to pursue happiness however we define it. Compulsory pregnancy is a denial of each of these rights."); Hugh Pope, Letter to the Editor, The Tampa TribuneTimes, Nov. 2, 1980, at 2-C (“There cannot be a more compelling reason for intelligent and patriotic Americans to vote Republican than to save lives! Stripped of all its sugarcoated slogans-freedom of choice[,]' [] 'woman's right to privacy[,]' [] etc., etc., abortion is legalized murder.”). The foregoing primary sources from Florida and from across the United States are examples of many. These sources should not be overlooked, and their impact should not be undervalued. In a quest to uncover the original public meaning of the Florida Constitution's Privacy Clause, they reveal that Roe was widely known for its holding and for its reasoning. Thus, in 1980, Florida voters would have understood the right of privacy as encompassing the right to an abortion. I hasten to add that the coverage discussed above, specifically connecting Roe and the right to an abortion to the right of privacy, - 82 -

occurred at a time when Americans relied heavily on print media and national news broadcasts. Florida Courts Acknowledge Right of Privacy Under Roe By the time Florida voters adopted the privacy amendment in 1980, Florida court decisions had repeatedly acknowledged the right of privacy expanded under federal law by Roe. While these decisions did not conclude that a right of privacy existed on state law grounds, they do provide further support that the public would have understood the link between the right to an abortion and the right of privacy. In 1977, this Court stated that “Justice Blackmun's articulation in Roe v. Wade of the limited scope of the right to privacy remains the current state of the law." Laird v. State, 342 So. 2d 962, 965 (Fla. 1977) (emphasis added) (rejecting argument that a right of privacy protected the possession of marijuana in the home). Even the dissenting opinion in Laird observed: "A constitutional right to privacy has been clearly established by the United States Supreme Court in . . . Roe . . . .” Id. at 966 (Adkins, J., dissenting) (emphasis added). - 83 -

In Jones v. Smith, 278 So. 2d 339 (Fla. 4th DCA 1973), cert. denied, Jones v. Smith, 415 U.S. 958 (1974), a case involving the abortion context, the Fourth District Court of Appeal rejected the claim of a putative father that he was entitled to prevent the mother from obtaining an abortion. The district court rejected that argument, saying: The recent decisions of the United States Supreme Court in Roe v. Wade . . . and Doe v. Bolton [410 U.S. 179 (1973)], while dealing with the constitutionality of statutes, set forth what we perceive to be the essential and underlying factor in the determination of this appeal. That factor is the "right of privacy” of the mother. Id. at 341 (emphasis added). Additionally, in discussing the right of privacy, the district court noted an observation made by the United States Supreme Court in Union Pacific Railway Co. v. Botsford, 141 U.S. 250, 251 (1891): “As well said by Judge Cooley, The right to one's person may be said to be a right of complete immunity to be let alone."" 278 So. 2d at 342 (quoting Babbitz v. McCann, 310 F. Supp. 293, 299 (E.D. Wisc. 1970)). Moreover, in Wright, the statute at issue required that an abortion be performed by a physician and at an approved facility. The petitioner, a registered nurse, challenged the approved facility - 84 -

requirement on the basis that under Roe and other federal decisions, the requirement violated the right of privacy. 351 So. 2d at 710. This Court ultimately upheld the petitioner's conviction on the ground that the statute constitutionally prohibited nonphysicians from performing an abortion. Despite concluding that the approved facility requirement was unconstitutional, this Court rejected the petitioner's privacy argument, stating: “The right to privacy in the abortion decision, recognized in Roe . . . as belonging to the pregnant woman in consultation with her physician, gives way to state power to regulate as the embryo or fetus develops." Id. at 710.30 30. Other decisions not involving abortion-related issues also recognized the right of privacy established in Roe. See, e.g., Rodriguez v. State, 378 So. 2d 7, 8 n.2 (Fla. 2d DCA 1979) (“In Roe, the court balanced the fundamental right to privacy of a woman's decision whether or not to terminate pregnancy against state interest to limit that right to safeguard health and potential life.”); Franklin v. White Egret Condo., Inc., 358 So. 2d 1084, 1089 (Fla. 4th DCA 1977) (observing on motion for rehearing that “[t]he right to be free of unwarranted interference with the decision to have children has been identified on numerous occasions by the United States Supreme Court as one of the matters protected by the right of privacy"); Day v. Nationwide Mut. Ins. Co., 328 So. 2d 560, 562 (Fla. 2d DCA 1976) (“The decision to have an abortion during the first trimester has been held to be private and personal to the individual woman. The primary interest, at least in the early stages of pregnancy, is that of the woman and her right to privacy." (citations - 85

Roe and the Privacy Amendment Debate According to the majority, the relative absence of the topic of abortion from the debate over Florida's proposed privacy amendment is evidence that the public did not understand that the right to an abortion was included in the scope of the proposed right of privacy. See majority op. at 41-42 (citing Fox, supra, at 443-44). However, Professor Fox explains why the topic of abortion was not a part of the amendment debate: Abortion would only have been debated if its coverage within the right to privacy were in dispute or were not yet established in law. But as of 1980 the protection of abortion through the right to privacy was the established law. It would hardly make sense for debates about section 23 to invest time and effort re-arguing the reasoning of Roe, let alone arguing that the terms “right to privacy," "right to be let alone," and "free from governmental intrusion" would plainly mean what they already meant in federal law. Fox, supra, at 442-43 (emphasis omitted). Indeed, Roe's extension of the right of privacy to the abortion context so dominated the abortion discussion that it would have been well understood that omitted)). Again, these cases are relevant to demonstrate that after Roe, and before voters adopted Florida's privacy amendment, the right to an abortion as a matter of a right of privacy would have been well understood. - 86 -

the right of privacy adopted by Florida voters included the right to an abortion. In re T.W. [S]tate courts cannot rest when they have afforded their citizens the full protections of the federal Constitution. State constitutions, too, are a font of individual liberties, their protections often extending beyond those required by the Supreme Court's interpretation of federal law. The legal revolution which has brought federal law to the fore must not be allowed to inhibit the independent protective force of state law-for without it, the full realization of our liberties cannot be guaranteed. William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 491 (1977). Indeed, "[t]he citizens of Florida opted for more protection from governmental intrusion when they approved article I, section 23 of the Florida Constitution. This amendment is an independent, freestanding constitutional provision which declares the fundamental right to privacy." Winfield v. Div. of Pari-Mutuel Wagering, 477 So. 2d 544, 548 (Fla. 1985). The amendment "was intentionally phrased in strong terms . in order to make the privacy right as strong as possible." Id. It was in the context of Florida's broad right of privacy that almost thirty-five years ago, this Court held as a matter of state - 87 -

constitutional law that "Florida's privacy provision is clearly implicated in a woman's decision of whether or not to continue her pregnancy." T. W., 551 So. 2d at 1192. T.W. explained: “[W]e have said that the [privacy] amendment provides ‘an explicit textual foundation for those privacy interests inherent in the concept of liberty which may not otherwise be protected by specific constitutional provisions."" Id. (quoting Rasmussen v. S. Fla. Blood Serv., 500 So. 2d 533, 536 (Fla. 1987)). Unfortunately, the majority's decision to recede from T. W. and its progeny constitutes the rejection of a “decades-long line of cases hold[ing] that the Privacy Clause ‘embraces more privacy interests, and extends more protection to the individual in those interests, than [does] the federal Constitution."" Petitioners' Opening Brief at 41 (emphases omitted) (quoting T.W., 551 So. 2d at 1192). The decision is an affront to this state's tradition of embracing a broad scope of the right of privacy.31 31. In 2012, Florida reaffirmed this tradition when voters rejected a state constitutional amendment that would have narrowed protections for abortion rights in Florida by requiring that the protections be no greater than those provided under federal law. Additionally, the amendment would have overruled T. W. and other decisions concluding that Florida protections for abortion rights - 88 -

In deciding to reexamine T. W. and ultimately to recede from T.W. and its progeny, the majority states: "Since Roe featured prominently in T.W., we think it fair to also point out that the T. W. majority did not examine or offer a reasoned response to the existing criticism of that decision or consider whether it was doctrinally coherent. This was a significant misstep because Roe did not provide a settled definition of privacy rights." Majority op. at 13-14. I disagree. T. W. did acknowledge that "the workability of the trimester system and the soundness of Roe itself have been seriously questioned in Webster v. Reproductive Health Services, 492 U.S. 490 (1989).” T.W., 551 So. 2d at 1190. However, this Court correctly exceed those provided under federal law. In a decisive vote, more than fifty-five percent of Florida voters rejected the amendment. See Initiative Information: Prohibition on Public Funding of Abortions; Construction of Abortion Rights, Fla. Dep't of State, Division of Elections, https://dos.elections.myflorida.com/initiatives/initdetail.asp?accou nt=10&seqnum=82 (last visited Mar. 19, 2024). While the petitioners conceded during the oral argument in this case that Florida voters' rejection of the abortion amendment in 2012 was not relevant to the public understanding of the right of privacy adopted in 1980, the 2012 amendment rejection is still relevant to an understanding of Florida's tradition with respect to the right of privacy. - 89 -

observed that “[Roe] for now remains the federal law." See id. As such, this Court was not obligated in T.W. to “examine or offer a reasoned response to the existing criticism of [Roe] or consider whether it was doctrinally coherent." Majority op. at 13-14. It was "three years after T. W." and almost twelve years after Florida voters' 1980 adoption of the right of privacy that “the U.S. Supreme Court abandoned Roe's position that the right to abortion was grounded in any sort of [federal] privacy right." See id. at 15 (emphasis added) (citing Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833, 846 (1992)). Even then, the United States Supreme Court did not abandon Roe's “essential holding." Casey, 505 U.S. at 846. I reemphasize that T. W. was decided on state law grounds and with a clear understanding of the breadth of Florida's right of privacy as discussed in Winfield. To be certain, Roe was fundamental to the public understanding of the right of privacy as encompassing the right to an abortion. However, T. W. did not rely on Roe or the federal constitution to determine that Florida's right of privacy included the right to an abortion. See T.W., 551 So. 2d at 1196 ("We expressly decide this case on state law grounds and cite federal precedent only to the extent that it illuminates Florida - 90 -

law."). Because this Court based its decision squarely on Florida law, there is no basis for upending decades of precedent that give effect to Florida's broad right of privacy. Beyond Today's Decision The impact of today's decision extends far beyond the fifteenweek ban at issue in this case. By operation of state statute, the majority's decision will result in even more stringent abortion restrictions in this state. While not before this Court in the present case, it is an irrefutable effect of today's decision that chapter 202321, Laws of Florida, also known as the Heartbeat Protection Act, will take effect in short order. Chapter 2023-21 amends section 390.0111, Florida Statutes (among other statutes), and with limited exceptions, it bans abortions beyond the gestational age of six weeks. The Act provides that the ban will take effect thirty days after any of the following events: (1) a decision by this Court holding that Florida's constitutional right to privacy does not include a right to abortion; (2) a decision by this Court in the present case allowing the fifteen-week ban to remain in effect; (3) an amendment to the Florida Constitution clarifying that Florida's constitutional right of privacy - 91 -

does not include the right to an abortion; or (4) a decision from this Court after March 7, 2023, that recedes in whole or part from any of the following: T.W., North Florida Women's Health v. State, 866 So. 2d 612 (Fla. 2003), and Gainesville Woman Care, LLC v. State, 210 So. 3d 1243 (Fla. 2017). See ch. 2023-21, § 9, Laws of Fla. Today's decision implicates three of these four events, meaning that the Act's six-week ban will take effect in thirty days. “The document that the [majority] releases [today] is in the form of a judicial opinion interpreting a [provision of the Florida Constitution]. Bostock v. Clayton Co., 590 U.S. 644, 683 (2020) (Alito, J., dissenting). However, I lament that what the majority has done today supplants Florida voters' understandingthen and now that the right of privacy includes the right to an abortion. Conclusion "" The majority concludes that the public understanding of the right of privacy did not encompass the right to an abortion. However, the dominance of Roe in the public discourse makes it inconceivable that in 1980, Florida voters did not associate abortion with the right of privacy. - 92 -

Because of this, and with deep dismay at the action the majority takes today, I dissent. Application for Review of the Decision of the District Court of Appeal Direct Conflict of Decisions First District - Case No. 1D22-2034 (Leon County) Whitney Leigh White, Jennifer Dalven, and Johanna Zacarias of American Civil Liberties Union Foundation, New York, New York, for Petitioners Gainesville Woman Care, LLC, Indian Rocks Woman's Center, Inc., St. Petersburg Woman's Health Center, Inc., and Tampa Woman's Health Center, Inc., Autumn Katz and Caroline Sacerdote of Center for Reproductive Rights, New York, New York, for Petitioner A Woman's Choice of Jacksonville, Inc. Jennifer Sandman of Planned Parenthood Federation of America, New York, New York, for Petitioners Planned Parenthood of Southwest and Central Florida, Planned Parenthood of South, East, and North Florida, and Shelly Hsiao-Ying Tien, M.D., M.P.H. April A. Otterberg and Shoba Pillay of Jenner & Block LLP, Chicago, Illinois; and Daniel Tilley of American Civil Liberties Union Foundation of Florida, Miami, Florida; Benjamin James Stevenson, American Civil Liberties Union Foundation of Florida, Pensacola, Florida, and Nicholas L.V. Warren of American Civil Liberties Union Foundation of Florida, Inc., Tallahassee, Florida, for Petitioners - 93 -

Ashley Moody, Attorney General, Henry C. Whitaker, Solicitor General, Jeffrey Paul DeSousa, Chief Deputy Solicitor General, Daniel William Bell, Chief Deputy Solicitor General, Nathan A. Forrester, Senior Deputy Solicitor General, David M. Costello, Deputy Solicitor General, Darrick W. Monson, Assistant Solicitor General, Zachary Grouev, Solicitor General Fellow, John M. Guard, Chief Deputy Attorney General, James H. Percival, Chief of Staff, and Natalie P. Christmas, Assistant Attorney General, Office of the Attorney General Tallahassee, Florida, for Respondent Brad F. Barrios of Turkel Cuva Barrios, P.A., Tampa, Florida, for Amici Curiae Law Professors Jonathan B. Miller and Hilary Burke Chan of Public Rights Project, Oakland, California; and Matthew A. Goldberger of Matthew A. Goldberger, P.A., West Palm Beach, Florida, for Amici Curiae Current and Former Elected Representatives for Reproductive Justice Kimberly A. Parker, Lesley F. McColl, and Aleksandr Sverdlik of Wilmer Cutler Pickering Hale and Dorr LLP, Washington, District of Columbia, and Meghan G. Wingert of Wilmer Cutler Pickering Hale and Dorr LLP, New York, New York; and Sean Shaw of Swope Rodante, Tampa, Florida, for Amici Curiae American College of Obstetricians and Gynecologists, American Medical Association, and Society for Maternal-Fetal Medicine Miranda Schiller, Sarah M. Sternlieb, Robert Niles-Weed, and Elizabeth McLean of Weil, Gotshal & Manges LLP, New York, New York, Charlotte McFaddin and Caroline Elvig of Weil, Gotshal & Manges LLP, Washington, District of Columbia, and Edward Soto of Weil, Gotshal & Manges LLP, Miami, Florida, - 94 -

for Amicus Curiae Floridians for Reproductive Freedom Angela C. Vigil, Robert H. Moore, and Paul Chander of Baker & McKenzie LLP, Miami, Florida; and Francisca D. Fajana of LatinoJustice PRLDEF, New York, New York, and Emily M. Galindo of LatinoJustice PRLDEF, Orlando, Florida, for Amici Curiae LatinoJustice PRLDEF, Florida Access Network, National Latina Institute for Reproductive Justice, Esperanza United, and A.L. Brian J. Stack and Robert Harris of Stack Fernandez & Harris, P.A., Miami, Florida; and Sarah B. Gutman, Lilianna Rembar, and Caroline Soussloff of Cleary Gottlieb Steen & Hamilton, New York, New York, and Jennifer Kennedy Park of Cleary Gottlieb Steen & Hamilton, San Francisco, California, for Amici Curiae Sanctuary for Families, Legal Momentum, The National Organization for Women Foundation, The Rapid Benefits Group Fund, Women for Abortion and Reproductive Rights, Margaret A. Baldwin, JD, Professor Cyra Choudhury, Professor Donna K. Coker, Professor Zanita E. Fenton, Doctor Kathryn M. Nowotny, PhD, and Jodi Russell Eugene M. Gelernter and Caitlin A. Ross of Patterson Belknap Webb & Tyler LLP, New York, New York; and Courtney Brewer of The Mills Firm, P.A., Tallahassee, Florida, for Amici Curiae National Council of Jewish Women, Religious Coalition for Reproductive Choice, Catholics for Choice, Metropolitan Community Churches, National Council of Jewish Women - Greater Miami Section, National Council of Jewish Women - Palm Beach Section, National Council of Jewish Women - Sarasota Manatee Section, National Council of Jewish Women - Kendall Section, National Council of Jewish Women - Valencia Shores Section, Reconstructionist Rabbinical Association, Women's Rabbinic Network, Moving Traditions, Avodah, Bend the Arc: A Jewish Partnership for Justice, Jewish Council for Public Affairs, Jewish Orthodox - 95 -

Feminist Alliance, Union for Reform Judaism, Central Conference of American Rabbis, Men of Reform Judaism, Women of Reform Judaism, Rabbinical Assembly, Society for Humanistic Judaism, Muslim Women's Organization, Hindus for Human Rights, Sadhana: Coalition of Progressive Hindus, Women's Alliance for Theology, Ethics, and Ritual (WATER), SACRED (Spiritual Alliance of Communities for Reproductive Dignity), Faith in Public Life, and Florida Interfaith Coalition for Reproductive Health and Justice Jordan E. Pratt and Christine K. Pratt of First Liberty Institute, Washington, District of Columbia, for Amicus Curiae National Institute of Family and Life Advocates Alan Lawson, Paul C. Huck, Jr., Jason Gonzalez, Amber Stoner Nunnally, and Caroline May Poor of Lawson Huck Gonzalez, PLLC, Tallahassee, Florida, for Amicus Curiae Former State Representative John Grant Christopher Green, University, Mississippi; and Antony B. Kolenc, Naples, Florida, for Amici Curiae Scholars on original meaning in State Constitutional Law Lynn Fitch, Attorney General, Scott G. Stewart, Solicitor General, and Justin L. Matheny, Deputy Solicitor General, Mississippi Attorney General's Office, Jackson, Mississippi; and Samuel J. Salario, Jr. of Lawson Huck Gonzalez, PLLC, Tampa, Florida, for Amici Curiae Mississippi, Alabama, Arkansas, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Missouri, Montana, Nebraska, North Dakota, Ohio, South Carolina, South Dakota, Texas, Utah, and West Virginia Stephen C. Emmanuel of Ausley McMullen, Tallahassee, Florida, - 96

for Amici Curiae Florida Conference of Catholic Bishops and the Florida Baptist Convention Jay Alan Sekulow, Jordan Sekulow, and Olivia F. Summers of American Center for Law & Justice, Washington, District of Columbia; and Edward L. White III of American Center for Law & Justice, Ann Arbor, Michigan, for Amicus Curiae Charlotte Lozier Institute Christopher E. Mills of Spero Law LLC, Charleston, South Carolina; and Chad Mizelle, Tampa, Florida, for Amicus Curiae American College of Pediatricians Edward M. Wenger of Holtzman Vogel Baran Torchinsky & Josefiak, PLLC, Washington, District of Columbia, for Amicus Curiae American Cornerstone Institute Carlos A. Rey, General Counsel, Kyle E. Gray, Deputy General Counsel, The Florida Senate, David Axelman, General Counsel, and J. Michael Maida, Deputy General Counsel, The Florida House of Representatives, Tallahassee, Florida, for Amicus Curiae The Florida Legislature Kenneth L. Connor of Connor & Connor, LLC, Aiken, South Carolina, for Amicus Curiae Liberty Counsel Action S. Dresden Brunner of S. Dresden Brunner, P.A., Naples, Florida, for Amicus Curiae The Prolife Center at the University of St. Thomas (MN) Patrick Leduc of Law Offices of Patrick Leduc, P.A., Tampa, Florida, - 97 -

for Amicus Curiae American Association of Pro-Life Obstetricians and Gynecologists Mathew D. Staver, Anita L. Staver, Horatio G. Mihet, and Hugh C. Phillips of Liberty Counsel, Orlando, Florida, for Amici Curiae Frederick Douglass Foundation, The National Hispanic Christian Leadership Conference, Fiona Jackson Center for Pregnancy, and Issues4life Foundation D. Kent Safriet of Holtzman Vogel Baran Torchinsky & Josefiak, PLLC, Tallahassee, Florida, for Amicus Curiae Susan B. Anthony Pro-Life America Denise M. Harle of Alliance Defending Freedom, Lawrenceville, Georgia, and Joshua L. Rogers of Alliance Defending Freedom, Scottsdale, Arizona, for Amicus Curiae Concerned Women for America - 98 -

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Plea in Supreme Court seeks use of ballot papers instead of EVMs for elections

The plea has been filed by advocate mehmood pracha, who himself is contesting lok sabha polls from rampur constituency in uttar pradesh..

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• Application moved in Supreme Court to conduct elections using ballot papers
• Advocate Mehmood Pracha files the application
• Plea filed as interlocutory application in pending case

With days left for the first phase of the Lok Sabha elections, an application has been moved in the Supreme Court seeking to conduct all elections in the country using ballot papers instead of Electronic Voting Machines (EVMs).

Advocate Mehmood Pracha has filed the application in a pending petition on EVM and said, "Elections by the use of Ballot Papers and Ballot Boxes is the rule. Hence, all elections have to be held by the use of Paper Ballots and resort to voting machines may be considered by the Election Commission only on a case-to-case basis under exceptional circumstances and that too for justifiable reasons, which have to be delineated in a specific."

The plea has been filed as an interlocutory application in a pending case before the Supreme Court.

"A ridiculous and sometimes dangerous situation/interpretation emerges if one were to read EVM in place of Ballot Paper and Ballot Box, the provisions for counterfoils are another mode of securing the sanctity of voting and of the electoral process, which is not possible and not applicable in the case of EVMs," the plea stated.

The plea further stated that the Representation of the Peoples Act, 1951 as well as the Conduct of Election Rules, 1961 mandate that at every election where a poll is taken, the votes shall be given by ballot in such manner as may be prescribed.