A couple of nights ago, I watched the filmed version of Heidi Schreck’s play What the Constitution Means to Me. It’s a highly recommended, thought provoking piece of theatre, a mostly one woman show in which Schreck recounts her experience as an adolescent participating in Constitution-themed American Legion speaking contests to win scholarship money. Through the run time of the play, Schreck talks about how the Constitution has affected her, both in terms of family history and in terms of her own experience. She brings up Roe v. Wade (this was filmed in 2020, before the Dobbs decision), her having had an abortion, the abuse that some women in her family had endured, and the immigrant experience of her ancestors.
The Supreme Court case she talks about that struck me the most was from 2005, Town of Castle Rock v. Gonzales. It was a 7-2 decision, with only Justices Stevens and Ginsburg dissenting; a couple of the “good” Justices (Breyer and Souter, along with O’Connor) voted with the majority. Here are the facts of the case, as laid out the Wikipedia article on the case:
During divorce proceedings, Jessica Lenahan-Gonzales, a resident of Castle Rock, Colorado, obtained a permanent restraining order against her husband Simon, who had been stalking her, on June 4, 1999, requiring him to remain at least 100 yards (91 m) from her and her four children (son Jesse, who is not Simon's biological child, and daughters Rebecca, Katheryn, and Leslie) except during specified visitation time. On June 22, at approximately 5:15 pm, Simon took possession of the three girls in violation of the order. Jessica called the police at approximately 7:30 pm, 8:30 pm, and 10:10 pm on June 22, and 12:15 am on June 23, and visited the police station in person at 12:40 am on June 23. Prior to the second call, Simon had called Jessica and stated that he had the daughters with him at an amusement park in Denver, Colorado. However, since Jessica had allowed Simon, from time to time, to take the children at various hours, the police took no action. At approximately 3:20 am on June 23, Simon appeared at the Castle Rock police station and was killed in a shoot-out with the officers. A search of his vehicle revealed the dead bodies of the three daughters, who were determined to have been killed prior to arrival at the police station. There was no cause of death found, nor was there a time or place of death.
Schreck’s description of the facts 48 minutes into the play is more detailed — unlike the Wikipedia description Schreck tells us the oldest daughter was ten years old and that Gonzales used a semi-automatic weapon to murder his daughters. As Schreck points out in the play, much of the oral argument involves a debate between a couple of the Justices over the meaning of the word “shall”. At 51 minutes into the show, Schreck plays an excerpt from oral arguments, where Scalia asks a question:
I thought we were just talking here about state law as to whether shall means shall.
Do you think that it's a matter of state law whether, if it does mean shall, it creates a property interest for purposes of the Federal Constitution?
The attorney for Castle Rock, who is arguing that the town’s police department wasn’t liable to arrest Simon Gonzales despite a Colorado state law that would have required them to, responded:
Needless to say, the name in the caption rang a bell, even if it probably wouldn’t have rung much of one to an audience in 2020. Yes, we’re talking the same guy who’s about to get disbarred in California and may end up doing time in the Peach State pen. If it did ring a bell for anyone, it was because of a Newsweek op-ed article that was my first introduction to him, one in which he argued that Kamala Harris is ineligible to serve as President or Vice President because of his cockeyed theory on birthright citizenship (the linked article notes that Eastman’s piece was heavily used by racists on social media).
A couple of points are in order here. It should be pointed out that Eastman began his argument with SCOTUS by acknowledging that the case was tragic. It should also be pointed out that, as Sir Thomas More points out in Robert Bolt’s A Man for All Seasons, even the Devil should have benefit of the law and thus a vigorous and ethical advocacy, and that extends to police departments who don’t give a damn about things like domestic violence or the welfare of pre-teen girls.
It should also be pointed out that John C. Eastman managed to convince seven members of the United States Supreme Court that “to protect and serve” amounts to an empty slogan and that longtime Chicago Mayor Richard J. Daley may have been kinda right when he said that “the policeman is here to preserve disorder” (or at least not be obligated to do anything). He also managed to convince those seven members of the Court — one that had noted RV fan Clarence Thomas but not witch hunting enthusiast Sam Alito - that “shall” is kind of an empty word.
In other words, John C. Eastman, soon to be former Esq. and possibly soon to be jailbird, was on at least one occasion an effective lawyer. The case is a horrible one, one that tramples on a mother’s grief and waves away the tragedy of the deaths of three young girls, but John Eastman persuaded seven members of the highest court in the land that none of that mattered.
Town of Castle Rock v Gonzales is a case that echoes down the nearly two decades since it was decided: a couple of years ago we saw police officers do nothing to stop a school shooting in Uvalde, Texas.
“Shall” doesn’t mean anything, anyway. Just ask John Eastman.