What Federal Courts?

It's been interesting watching the longer-term fallout of the shift of the Supreme Court to a conservative majority. Obviously the earlier courts gave us Roe v. Wade, and even a Reagan appointee ended up writing Casey vs. Planned Parenthood, which were hallmarks of right moral thinking among the sophisticated and academic class. 

As recently as 2010 philosopher Martha Nussbaum wrote a book that was partly an extended letter to the Supreme Court to overturn bans on gay marriage, addressing and rejecting an earlier British claim by Lord Patrick Devlin. Devlin claimed that, in democracies, popular opinions and moral feelings were an obvious and proper source of moral legislation. He appealed to the opinions of the ordinary man in the street (to use our metaphor; his metaphor was the very similar 'man on the Clapham omnibus'). To tell the people that they couldn't legislate their moral sense that, say, sodomy was immoral and thus illegal was to tell them that they couldn't really have a democracy: it meant the elites (like Nussbaum, to be fair) set some questions out of range of democracy.

Nussbaum's argument is summarized at Goodreads (likely quoting her book jacket; I don't happen to have a copy of the work on hand, and am discussing all this from memory) as follows:

Nussbaum argues that disgust has long been among the fundamental motivations of those who are fighting for legal discrimination against lesbian and gay citizens. When confronted with same-sex acts and relationships, she writes, they experience "a deep aversion akin to that inspired by bodily wastes, slimy insects, and spoiled food--and then cite that very reaction to justify a range of legal restrictions, from sodomy laws to bans on same-sex marriage." Leon Kass, former head of President Bush's President's Council on Bioethics, even argues that this repugnance has an inherent "wisdom," steering us away from destructive choices. Nussbaum believes that the politics of disgust must be confronted directly, for it contradicts the basic principle of the equality of all citizens under the law. "It says that the mere fact that you happen to make me want to vomit is reason enough for me to treat you as a social pariah, denying you some of your most basic entitlements as a citizen." In its place she offers a "politics of humanity," based not merely on respect, but something akin to love, an uplifting imaginative engagement with others, an active effort to see the world from their perspectives, as fellow human beings. Combining rigorous analysis of the leading constitutional cases with philosophical reflection about underlying concepts of privacy, respect, discrimination, and liberty, Nussbaum discusses issues ranging from non-discrimination and same-sex marriage to "public sex." Recent landmark decisions suggest that the views of state and federal courts are shifting toward a humanity-centered vision, and Nussbaum's powerful arguments will undoubtedly advance that cause.

Anthony Kennedy penned the opinion she passionately advocated for in that piece, another Reagan appointee. 

How far the court has fallen in elite and Democratic Party opinions since it became conservative -- insofar as it is, which is unreliably so even where Republicans have appointed the justices. First in Virginia and now in Texas, Democrats with sudden majorities are moving to directly defy the will of the courts.

After the Supreme Court issued the Heller and the Bruen decisions, Federal courts of Appeal have found in both the 4th and 5th circuits that bans on gun ownership by those 18-21 are unconstitutional based especially on Bruen's logic. Now Virginia is in the 4th Circuit, and Texas is in the 5th. Texas is moving, as Virginia did, to institute several state bans on exactly this thing that both the Supreme Court and the relevant Federal Court of Appeals to their state have said is unconstitutional. 

Presumably this will be provide a number of lawsuits from groups like the Firearms Policy Center and Gun Owners of America, whose briefs will be able to cite these opinions. Still, it's striking that their response to losing in court and watching their laws struck down is just to pass the same law again.