Roe v Wade Overturned: Read the Dobbs Decision For Yourself
While not a surprise due to the now-infamous “leak” of the first draft, the Supreme Court has officially handed down their Dobbs Decision: Roe v Wade and Casey have been struck down.
The Supreme Court overturned Roe v. Wade on Friday, holding that there is no longer a federal constitutional right to an abortion.
The opinion is the most consequential Supreme Court decision in decades and will transform the landscape of women’s reproductive health in America.
Going forward, abortion rights will be determined by states, unless Congress acts. Already, nearly half of the states have or will pass laws that ban abortion while others have enacted strict measures regulating the procedure.
“Roe was egregiously wrong from the start,” Justice Samuel Alito wrote in his majority opinion. “Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.”
In a joint dissenting opinion, Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan heavily criticized the majority, closing: “With sorrow – for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection – we dissent.”
The opinion represents the culmination of a decades-long effort on the part of critics of abortion seeking to return more power to the states. It was made possible by a solid six-member conservative majority – including three of Donald Trump’s nominees.
Chief Justice John Roberts did not join the majority, writing in a concurring opinion that he would not have overturned Roe but instead would have only uphold Mississippi’s law banning abortions after 15 weeks.
The final opinion was strikingly similar to the draft written by Alito that was leaked earlier this year. It repeats his scornful language towards the original Roe v. Wade decision that enshrined abortion rights.
Read SCOTUS Dobbs Decision for yourself here:
dobbs decision
Well, at least we have a tradition arguing that the Supreme Court is not final because it is infallible, it is merely infallible because it is final.Report
It is the right Constitutional reasoning; what happens next in terms of laws and policies for women, children and families is important, especially for those of us on the Pro-Life side. As I’ve written previously, I have concerns that ‘winning’ the legal battle with the current cultural fault lines in place may cause the next phase not to go well. But, with regards legal and constitutional theory, I shed no tear for the end of Roe and Casey.Report
Depriving citizens of liberty is never the right constitutional reasoning. Vacating Roe recriminalizes abortion in numerous states, which is a deprivation of liberty.Report
I see your liberty argument and raise it with a 14th Amendment liberty/due process argument in defense of the baby in utero. Ultimately we have conflicting liberties and an insufficient philosophical theory of justice and how to reconcile conflicting goods/liberties.
This isn’t a ‘constitutional right’… whether or not it becomes legal in general or in some particular states is to be determined. But removing the legal regime of Roe/Casey did not usher in an a converse ‘constitutional ban’; a point that both Kavanaugh and Roberts make explicit.Report
When a Republican congress passes a full national ban and its signed into law by a republican president, who will have standing to litigate that? Its a deflection at best.
And as to the in utero being – it can’t survive outside the womb prior to 20-24 weeks, which means its not a person and has no rights. That’s natural selection, which doesn’t really care about liberty or philosophies of justice.Report
If it is merely a baby in utero, would you be okay with the woman making it ex utero at any time and allowing God to take over with whether it survives or not?
I mean, it’s a baby… babies are born early all the time.Report
Is there a particular rock or altar you have in mind for this ritual?
A more interesting question might be whether external uterus’ (once they become fully viable) become part of the solution or part of the problem. Not sure yet.Report
A doctor could simply perform a scheduled C-section at any time and welcome this baby human American into the world. What would your argument be against that?Report
My argument? Against ritual infanticide? None, I’m just going to let you write as much as you want in favor of it.Report
Ritual infanticide? No no… just welcoming these beautiful babies to God’s green earth as soon as possible!
If He chooses for them to enter eternal peace early, who are we to argue?Report
Stuff like this makes me legitimately embarrassed to be seen with other supporters of abortion rights. I disagree with Marchmaine on the object-level question of whether abortion should be legal, but he’s absolutely right on the meta-level issue. The Constitution is a real document covered in actual sentences composed of words with specific meanings. It’s not just whatever you or I want it to be.
Furthermore, this insistence on demonizing those who disagree by pretending that the actual point of contention is personal liberty or “a woman’s right to choose,” rather than whether a fetus has a right to life, is childish.
Think about this logically. Should the Supreme Court strike down laws requiring car seats on the grounds of personal liberty? Why not? Because not using one endangers a child who is too young to have a say in the matter, right? So why are you okay with laws that bar parents from even moderately endangering their children, but opposed to laws that literally allow mothers to kill their children? Because you think children who have born should have the right to life and children who have not been born should not, right? I agree, but many people do not, and that’s the real point of contention.
When you talk about “a woman’s right to choose,” pro-lifers hear “a woman’s right to choose to murder her unborn children.” You can see how they might not be terribly impressed by this rhetoric, right?Report
I don’t care. They show no compassion for my daughters. They show no compassion for the children poor women are forced to bear because they can’t get abortion services. They obstruct every other attempt to implement sensible birth control distribution and education and insist on ONLY educating teens about abstinence. They have shown themselves to be unconcerned with anything beyond their own desire for control.
Which they have no right under the Constitution to inflict on any woman, my daughters included.Report
Humans don’t have a right to life.
Me needing your blood to survive doesn’t obligate you to give it, much less empower the gov to force you to do so.Report
But that wasn’t the question before the court. And I’m not sure how that question could ever come before the court?Report
I think the dirty little secret is that a lot of pro-choice legalists think the Constitutional reasoning of Roe was very problematic. Granted many of these would anchor these issues (somehow) in the equal protection clause or simply preserve some form of the status quo for sake of stability.
OTOH, the Roe dissenters recognized that the Constitution protects the mother’s life and health, but did not have occasion to ever set forth the due process requirements under that framework. In an alternative world in which the SCOTUS went down that path, I suspect that the nature of the interest and their narrow time frame would necessitate a broad protection. It would be similar to free speech protections which go beyond the speech itself, but address the chilling effect of restrictions. In this alternate world, the end result might be pretty close to a narrow application of Casey, like Roberts offers today.Report
To be sure… it was an ‘open secret’
Mostly this ruling resets the clock to 1973… what happens next will be determined by policy/laws/regulations and political consequences.Report
Like the anti-abortion crowd would be satisfied by the correct reasoning.Report
Do you trust the state legislatures to set the new rules sensibly? I don’t see much sign of that. I’d call women dying from ectopic pregnancies or sent to prison because of miscarriages worse than “not going well”.Report
Well, not New York or California no… but we live in a Republic.Report
Heh.
How about Louisiana or Texas?Report
I think the Texas ‘bounty’ law is bad law and bad for the political community of Texas.
Not sure what Louisiana is planning, are you referencing something specific?
Also, I looked at the ectopic issue when it was a talking point some time ago and posted at length (with LINKS!) that none of the talking points pointed to laws that prevented any procedure having to do with them. If you have something specific there too, I’d be happy to look at it.
But in principle, I’m not aware of a single position within the pro-life movement that sees and ectopic pregnancy as anything other than a medical situation that requires attention and remedy. In fact, many state statutes I looked at specifically exempted ectopic from the category of pregnancy.Report
There was already a case of a Texas woman who could not get the surgery needed after a miscarriage in-state, because no provider would perform something that resembled an abortion.
The Louisiana legislature has debated a bill that would imprison woman for having an abortion, though it hasn’t passed yet. That would inevitably lead to women who had miscarriages being suspected of a crime.Report
Links?
Again, within the pro-life movement, there’s no issue with miscarriages and treatment for women; it’s perfectly common for a DNC after a miscarriage and no-one is going to take any sort of stand against that.
Those are the sorts of things that if the law is poorly written or construed even the pro-life side will back changes to fix that.
I’d be surprised at any law that imprisons women; that’s been a long standing point in the movement – women are not the legal target. Besides the moral/political fall out, there’s no need when the state can regulate Medical Practitioners and Pharmaceutical dispensaries.
There’s no ideological target on miscarriages, that’s pretty much fundraising fodder for the left.
Will a state (other than NY and CA) pass bad laws that need fixing? I reckon so.Report
This what I reference below, where the only way to enforce an unpopular law is to create a thicket of intrusive and draconian laws.
How does the state separate miscarriages from self induced abortion?
Only through a process of highly intrusive, and ultimately arbitrary decisions made by government agents.Report
Are you a liar or just someone who has no idea what is going on?
https://www.bbc.com/news/world-us-canada-59214544
Notice this was _before_ today.Report
Must I pick only one? I choose all.
In the case you link, it’s not an abortion case at all; she’s being tried for manslaughter under child endangerment laws owing to the fact that:
“In March 2021, the medical examiner released the results of the autopsy on the fetus that Poolaw had miscarried, as reported by KSWO. Tests of the fetus’ then-still-developing liver and brain were positive for “methamphetamine, amphetamine and another drug”
She wasn’t seeking an abortion and ‘hiding’ it as a miscarriage – which some are arguing for/worried about.
Nor was she singled out for having a miscarriage and prosecuted ‘as if’ it were an abortion.
There was a potentially mitigating factor that the baby also had a congenital condition which also could have caused the miscarriage. Can’t say why the jury – who was presented with that information – did not find it compelling.
You may or may not want child endangerment laws for women who willfully endanger their children with Meth or in other ways; but that’s the category of law you’d be objecting to.
Appreciate the link.Report
Is drinking while pregnant illegal? Will it become illegal? Do you think it should be?Report
Also…. What about…
Smoking?
Eating sushi?
Eating deli meats?
Strenuous exercise?
Eating steak tartar?
Using a hot tub?
Cleaning out a cat’s litter box?
Ingesting caffeine?
Consuming unpasteurized milk products?
I mean, these all increase the risks of adverse pregnancy outcomes.
Should we outlaw them? I mean, to protect the babies.Report
Would I? No. Are there cases you’d like to link where women are prosecuted for cat litter miscarriages? I’d be happy to review and see if that was really the case and agree with you that it’s absurd if it was.
Would you ever draw any line at all for child endangerment? How about for a 1-day old infant? Is it possible for a mother/parents to put their dependent children at risk ever? Have you ever had to call child protective services as a mandatory reporter?Report
Called CPS? Not personally but supported a teacher who did as her supervisor.
I’d draw the line at child endangerment laws at… children. A fetus isn’t a child. It’s a fetus.
But if you think a fetus is a child deserving of protection, than I’m asking where you draw the line.
Early C-sections? Bare knuckle boxing? Drinking?
How far should we go in restricting women’s freedoms to protect their fetuses?
While we’re at it… prenatal care is hugely important for a healthy pregnancy. Should we require fathers to financially support the pregnant woman’s health care?
Let’s get down to brass tacks. You want to protect these kids, you claim. How far are you willing to go? Any farther than restricting women’s freedom?Report
Kazzy you guys are citing advocacy journalism that isn’t even relevant to Abortion.
The article states in the first line: “Brittney Poolaw was just about four months pregnant when she lost her baby in the hospital in January 2020.”
In January 2020 Brittney Poolaw could have legally gotten an abortion in TX.
Statistics on 2020 TX:
“A majority of Texas abortions, 84 percent, occurred before nine weeks post-fertilization (approximately 11 weeks of gestation). Six percent were performed between nine and 10 weeks post-fertilization, and four percent were reported between 11 and 12 weeks. Three percent of Texas abortions occurred between 13 and 14 weeks post-fertilization, one percent between 15 and 16 weeks, and another one percent from 17 to 20 weeks. There were eight abortions reported between 21 and 24 weeks post-fertilization (23 to 26 weeks of gestation); no abortions were reported at 25 weeks post-fertilization or later.”
She could have aborted the baby.
Roe doesn’t address this as the law isn’t about aborting a baby but child endangerment.
Here’s a Guttmacher chart of states that consider Drug Abuse during Pregnancy Child Abuse – Prominent Blue or Purple States without significant Abortion restrictions include:
Arizona
DC
Illinois
Minnesota
Rhode Island
Virginia
There’s a non-Abortion category for Child Abuse in Utero that’s law in states many might consider simpatico to Abortion.
https://www.guttmacher.org/state-policy/explore/substance-use-during-pregnancyReport
I’m not citing anything other than facts. You want to protect these “in utero babies”… how far will you go to do so?
And how early is too early for a C-section? Why would you draw the line there?Report
No, I’m reviewing a link that purported to show how Abortion laws will harm women having miscarriages.
And pointing out that this is not an abortion law and that several States which are pro-Abortion see similar actions as Child Abuse.Report
I agree with Marche, you are not chasing the rabbit you think you are chasing.
In short, the state generally does not prosecute women for potentially hurting their unborn children, they wait until they have proof that the mothers unlawful actions resulted in harm to the fetus.
It’s a bit of a grey area IMHO, but it’s not crazy law, and it’s been around for a while.Report
So I’ll circle back to where I started… if these are babies in utero, would anyone be breaking any law if they took action to birth that beautiful baby early and it subsequently died?
The argument that it is a life and a human and has rights AND that one person and one person alone is solely responsible to take or avoid action for a certain period of time doesn’t really jibe. If someone thinks that does, make a coherent argument to that effect.
“But the baby will die!” is not an argument in favor of squaring that circle.Report
First, I’m one of the people who people who feels that the rights of a child begin to vest when the child is not dependent upon the bodily functions of another. The state can’t force a person to donate an organ or tissue to save a life, it sure as hell can’t force a person to host a life inside them.
That said, if I do choose to donate a kidney, I can’t demand it back at a later date. Once the kidney is out, I’m short a kidney.
So there is a claim one can make that being pregnant is, at some point, being willing to host a life. A woman, at some point, makes a choice to carry a baby to term, and once that choice is made, the revocability should be limited (i.e. abuse*, rape, incest, safety of the mother).
When that point is reached is, IMHO, up for debate (I think 16 weeks is too early, but 27 weeks is getting pretty late in the game).
Now, the case at DavidTCs link assumes, I think, that the woman knew she was pregnant, and had not sought an abortion, so was intending to keep the baby, then took too much meth and killed the baby.
This would be on par (I think) with having a baby, then throwing the baby in a dumpster.
Now here is where what the law in question says is important. If the law has no requirement that the woman knows she is pregnant, then the law is wrong. If you can be convicted of killing a baby you didn’t even know you were carrying, we have a real problem.
However, if the woman does know she is pregnant, then we need to establish if she intended to carry the baby to term or not. One would assume you ask around, see if she visited any abortion providers, made any appointments, talked to anyone about ending the pregnancy, etc.
If she planned to abort, then any real duty of care is pretty much null & void, same as if she was unaware.
If she hadn’t decided yet, or had decided on having the baby, then one can argue that a duty of care is attached, at least until a concrete decision to abort is made, or the clock runs out.
*ETA I put abuse in here for cases of DV where a woman is afraid to abort because her partner will beat her if she does – she should get a larger window to make that choice.Report
Thing is… most of the laws I see being enacted/proposed/advocated for make none of the distinctions you describe. They all seem to say that once the sperm meets the eggs with any amount of proof of such, the woman is bound to carry it to term and any action to avoid that is a criminal act by someone.
Which, I think, you and I agree is wrong.
But…
At some point during a pregnancy, these same folks would say a C-section is an acceptable course of action. Or inducing labor via medicinal intervention. So if those acts aren’t inherently wrong… if forcing an “in utero baby” to become ex utero via medical intervention isn’t inherently wrong… than at what point do they become wrong? Because those same folks would say that “delivering” a blastocyst via C-section was murder and a crime.
So… where’s the line? And, if there’s a line… why? Why is it okay to ex utero an in utero baby at week X but a crime at week X-1?
It must be because there is something different about the “baby” between those points in time.
Or… will we simply say Pitocin can be given at any stage of pregnancy, outcomes be damned?
How can we say a woman can take a medicine on Day X but not Day X-1?Report
I would say “Survivability” is the watch word, but then I would.Report
It makes more sense if you view the fetus as a person and the woman as simply a life support system.Report
Yes yes, why view the woman as a person.Report
https://www.npr.org/sections/health-shots/2022/05/10/1097734167/in-texas-abortion-laws-inhibit-care-for-miscarriages
The lawsuit angle is creating all sorts of legal uncertainty, and I find it incomprehensible that the Supreme Court didn’t act immediately to set at least that part of the law aside.Report
I suspect that they swatted away the Texas law knowing this was coming.Report
Thanks for the link – as I note above, I think the Texas ‘Bounty’ Law is bad law.
Further, I agree that any changes to laws ought to be managed and phased such that ‘uncertainty’ is minimized – that’s just good governance and, often, a conservative principle about law/change/governance – nevertheless, not a principle followed by many (if any) legislative or regulatory bodies.
And, in reading the article everyone in it (once you get past the lede) acknowledges that even the [bad] bounty law doesn’t apply to their concerns… but they are airing their concerns owing to the ”uncertainty” – which, fair enough — but the way the article is framed requires one to read “all” the quotes at the bottom to understand that this is not what the law does.
Eventually the article cites the legislative director for Texas Right to Life:
“”It is a pro-life position to allow physicians to make those life-and-death decisions,” Seago said. “And that may mean in certain circumstances protecting the mother in this situation and the child passing away.”
I agree that there’s no virtue in ambiguity nor should legislation be intentionally crafted to create uncertainty. But even reading through the article, I don’t think the Doctors being cited are really all that uncertain:
“Ogburn, who noted that he was speaking personally and not for the medical school, worries that fears about the Texas laws have already delayed care.
“I wouldn’t say this is true for our practice,” he said. “But I have certainly heard discussion among physicians that they’re very hesitant to do any kind of intervention until they’re absolutely certain that this is not possibly a viable pregnancy””
Reading backwards, the article is referring primarily to this:
“”The challenge is that the treatment for an abortion and the treatment for a miscarriage are exactly the same,”
[…]
“The other miscarriage treatment is a procedure described as surgical uterine evacuation to remove the pregnancy tissue — the same approach as for an abortion.”
But this is just not a proper characterization of the issue. We know from first hand experience that a strongly Pro-Life OBGYN will recommend and perform a DNC after a miscarriage; it isn’t the surgical method that makes it and abortion or a surgical dilation/evacuation it’s the status of the baby in the womb.
Which is precisely what I said above and cite in the article itself from the legislative director — treatment for women undergoing miscarriages is not a target or impacted.
So sure, if there’s ambiguity in the new laws regarding ordinary care for miscarriages and/or other treatments, then by all means legislatures should clear them up.
But if it’s really just articles by advocates attempting to pretend there’s ambiguity where there isn’t… well then I hope they aren’t using women as a prop for their advocacy by not providing care they legally can.
Again, thanks for the link… always helpful to discuss actual statements than ever expanding hypotheticals.Report
So according to your argument, if a woman in Texas of any of the other red states takes mifepristone and induces an abortion, she is free and clear.
Because hey, it looks just like a miscarriage, right?
Except, you realize that they are rushing to pass laws to prevent this very thing.Report
You and I of course differ on the right policy outcome, and while I’m not sure these kinds of hypotheticals are the best way to advocate my nominal side, I think it’s fair to say you criminalize with the police, prosecutors, and criminal justice system you have, not the one you want. None of the really outrageous possibilities have happened yet because up until yesterday they couldn’t, and even then these changes in law take time to work their ways through the system and the culture.
I have to imagine for example that back in the 60s and 70s when the real war on marijuana got under way no one foresaw police dressed and armed with military gear and weapons kicking in doors in the middle of the night, shooting dogs and sometimes people, and doing massive property damage and engaging in all maner of overkill and dubious practices over low level possession and distribution. And yet we very much got there and and stayed there for a long time.
Now I get that the ethical and moral questions of abortion are going to be different than for consumption of whatever intoxicating substance. But the day to day decisions in many places really are going to be in the hands of the local cop trying to make numbers, and the local prosecutor with maybe good but maybe also not good motivations and incentives, not by philosophers troubled by profound questions of personhood and when life begins.Report
Yes, I agree which is why on this very site I have said numerous times that from a policy/governance point of view, the pro-life family and health policies should precede the legal changes.
I’m explicitly a politics is downstream from culture guy and argue all the time with righties (and lefties for that matter) who just want to grab the levers of power and make changes.
I’ve said elsewhere and even in this thread that I don’t think ending Roe now at this juncture will necessarily lead to pro-life outcomes – mostly because of what I note above.
And totally agree that this weird sort of whack-a-mole of NPR and Advocacy [ahem] misinformation is unhelpful, but out of respect for folks here and this community I’m happy to decode from the pro-life side, within reason.
I’m not obligated to defend wackadoodles and if they make wackadoodle proposals, I’m ok saying they are bad proposals or laws. I’ve said bad laws enacted by Pro-Life folks are bad laws – when they are bad laws.
My crystal ball is as bad as everyone else’s here, but I’ve been pretty consistent in pointing out that the most likely outcome in the US is an EU abortion regime that makes things Safe/Legal/Bureaucratic and Invisible … most likely between 12-16 weeks.
And behold, Republican Governor Youngkin proposing 15 week abortion law. Majority leader McCarthy saying (for now) he’d support at 15-week abortion law… the laws that were passed in some of the states when Roe was safe? I bet some become 15-week abortion laws. Not tomorrow, maybe not for a couple/few election cycles.
But yes, my pessimistic take is that the Republican Party bamboozled again by it’s stakeholders caught the car before they invested in the roads.Report
I heard about the Youngkin proposal on the radio yesterday and am curious how it goes. Virginia seems like the right jurisdiction to implement the obvious compromise.Report
Well said.Report
TX Right to Life lists as one of its legislative victories the passage of SB 8 (https://texasrighttolife.com/how-did-the-pro-life-priorities-fare-in-the-87th-legislature/), which has the lawsuit as its enforcement mechanism. it seems as though Mr. Seago is talking out of both sides of his mouth. Giving anyone in the state standing to sue for a suspected abortion is certainly going to give doctors pause.
There is a doctor quoted at the bottom of the article who has had pharmacists refuse to fill her misoprostol prescriptions. “It’s hard to form a relationship to say, ‘Hey look, I’m not using this for an elective abortion,'” she said. “‘I’m just using this because this is not a viable pregnancy.'”
I don’t think we’re allowed to handwave uncertainties of the people in the doctor’s offices, especially when they’re willing to go on the record as having them.Report
The fundamental question many providers will face is whether even doing things theoretically within the bounds of the law is worth periodic nuisance lawsuits or a night in jail based on a county cop’s interpretation of where the line is. That’s going to have an aggregate impact on what people are willing and able to do over time.Report
Just as the writers of the law intended. The TX heartbeat law really lays bare how little faith the pro-life cause has in its message.Report
This reminds me of conversations I’ve had with Oscar where he talks about what responsible gun owners believe. The issue isn’t what the traditional pro-life movement believes; it’s what the MAGAs who run the red states will do. Today in Texas, any idiot can sue a doctor for performing a D&C because said idiot thinks a miscarriage was faked, and that’s going to have a chilling effect on needed health care.Report
A reminder that this is how _all_ these vague laws work. They are all used to attack people doing ‘bad things’ and stay nowhere near the actual bounds of the law.
Texas v. Lawrence, for example, _supposedly_ was about sodomy, about the police that just, uh, somehow happened to catch a gay couple in sodomy. Huh. That’s actually a little weird, isn’t it? So…what was the couple doing?
Wel, one of the police claimed it was oral sex, one anal, and I don’t know if you know the positions of those, but they’re pretty different and easy to distinguish when you think about it. The other two cops said they didn’t see any sex at all! One of the cops that said they did see sex claimed it continued for a full minute while the police screamed for the couple to stop. (Which makes it extremely weird the other two claim they didn’t see it!)
For the record, one of the arrested men was Black. And not on drugs, or mentally incapacitated in any manner.
I want you to imagine a Black man continuing to have sex with a partner after the police burst into his bedroom and demanded he stop? Does this seem even _conceptually_ possible to you as the behavior of a Black man in Texas in 2003? As opposed to ‘my hands are up, do not shoot me’.
No, what actually happened is that the police burst into the house, discovered a Black man in the bedroom of a white man, and decided to charge them with a crime…and just straight-up lied about seeing it. (Like, I won’t say that they had _not_ broken the law, I’m fairly sure they did, but there is literally no evidence of it.)
People say ‘Get the government out of the bedroom’, but the problem isn’t even that. It’s ‘Stop giving the government ammo to make up crimes’.
This is how it always works. Crimes against non-privileged people, especially people that society has decided to _specifically target_ with laws, are not, like, landmines that can be carefully avoided. Police will just _lie_ and people get arrested even when the exact letter of the law is followed, or at least can’t be observed being broken.
Some actual info, although there’s more out there: https://www.thedailybeast.com/the-real-story-of-lawrence-v-texas-revealed-in-flagrant-conductReport
The dog has officially caught the car.Report
This.Report
Sadly I’m not so sure. Democrats are notoriously bad at making hay out of these sort of things, and with the cascade of trigger laws now falling into place, the real impacts to women nationally may not be seen until after the election.
One does have to wonder what will happen now, since overturning Roe as the driving force for the GOP’s judicial approach for 40 years. I don’t sense they really have a what’s next, which means SCOTUS will be free to overturn all sorts of things.Report
which means SCOTUS will be free to overturn all sorts of things
Wickard, baby. Wickard.Report
Should get an idea of how fast and far they’re looking to go next week when they release West Virginia v. EPA. People have pointed out that there have been two cases this term where they found for the government agency, but basically said there was only one way to read the statute and carefully left out any mention of Chevron.Report
United States v. ReynoldsReport
Ugh. I hate that case.Report
It’s just a foil…Report
Thomas’ concurring opinion tells you what’s next.Report
Indeed. Maddeningly.Report
Can someone give a layman’s summary?Report
To wit:
Thomas is nakedly saying he intends to overturn civil rights, especially for gay, lesbian and transsexual persons, as well as contraception. He doesn’t reference Loving since it would cause a few problems for his personal marital situation, but clearly he intends to drive the Court to only support enumerated rights.
The disaster of that is almost too large to comprehend.Report
If I’m reading it correctly (unlikely) he doesn’t believe in due process…?Report
There is “procedural due process” and “substantive due process”.Report
Can someone break THAT down for me?Report
Um, I am not a lawyer and you’ll need someone to *REALLY* break it down but, in a nutshell:
The 14th Amendment says (among other things):
(Emphasis added)
So what the hell is “due process”?
There are, apparently, two or three kinds.
For substantive Due Process,
The “right to privacy”, for example, comes out of substantive due process.
(The maybe third kind is due to “Incorporation”. The Constitution says that there are limits on the Federal government that are not, necessarily, limits on the states. “Incorporation” can make a limit on the Feds also be a limit on the States.)Report
It’s worth reminding people that without the ERA being passed (Or, rather, it being passed but us all pretending it wasn’t.), without substantive due process, _women_ are not protected in any manner.
Right now, sex is a ‘protected class’, which is court speak for someone protected by at least intermediate scrutiny. I.e., because laws have traditionally discriminated against people based on sex, any laws that do that have to ‘further an important government interest by means that are substantially related to that interest’. They get held to a higher standard. (This is actually what decided Obergefell, _not_ the privacy stuff. State governments could not come up with an important government interest as to why they allowed women to marry men, but disallow men to do that. It has nothing to do with privacy _or_ sexual orientation, it’s literally ‘if women can marry this person, men can, and vis versa’.)
Thomas clearly wishes to completely remove this concept, making it where laws that discriminate based on sex do not require any real justification at all. (Technically, they would require a ‘rational basis’ test, but that is trivial to meet.)
Which means there would be nothing is stopping a state from, for example, barring women from having bank accounts or driving.
Now, when we’re talking about state law, there are a _few_ Federal laws that inhibit this. States cannot discriminate within the fields of education or housing or employment. But obviously Federal law can be changed to not even have this.
This has all sorts of other implications, too. Basically, it removes all protected classes that are not explicitly listed in the constitution, which is…race. That’s it, that’s the only one. States would be able to discriminate based on age, or county of origin, or disability, or…whatever they want, unless there’s a specific constitutional clause (Or Federal law, but what are the odds conservatives will ever make such a new law?) saying ‘You cannot use this trait to discriminate’.Report
And in reality, you could probably discriminate by race in there, too, because race is just a made-up collection of things and if the court no longer cares about ‘Have people historically used this to harm people?’, you can just pick something else that is _almost_ race.
For the obvious example, states could literally just discriminate based on skin color or the historic origins of someone’s parents. Currently, that would get struck down instantly, because that is clearly a ‘proxy’ for discrimination by race. (The thinnest proxy ever, considering it’s what people actually _mean_ by race)
A court _with_ substantive due process would say ‘Uh, no, because regardless of what you call it, that’s exactly what was used in the past for unjust discrimination, and hence you need a REALLY good reason for this law.’
But a court without the idea of substantive due process could do that. As long as the laws do not literally specify the discrimination by the names of races, I don’t see what would stop it.
I mean, it won’t happen, because Thomas is Black and the ultimate example of IGMFY, but a future court could.
…hell, you could get around Federal law about discrimination based on sex, too. Just discriminate based on genitalia…after all, the courts _already_ struck down the constitutional concept that might stop the government from legislating about those.Report
Which means there would be nothing is stopping a state from, for example, barring women from having bank accounts or driving.
Of course there is, namely the fact that such a law would be wildly unpopular, especially given that the majority of voters are women. Not to mention all the men who don’t want to oppress women or at least don’t want to drive their wives everywhere. There’s also nothing in the Constitution barring states from doing the same to men. But they don’t, because there’s no demand for it.
Of all the stupid, terrible, oppressive laws state governments could pass, only a tiny percentage are prohibited by the Constitution.
Basically, it removes all protected classes that are not explicitly listed in the constitution, which is…race.
In point of fact, the only mention of race in the Constitution (aside from “Indians not taxed” in regards to apportionment) is in the Fifteenth Amendment, which prohibits denying people the right to vote on account of race. The Nineteenth does the same for sex, which means that sex and race have exactly the same protections.
The Equal Protection Clause doesn’t mention race or sex, so you could argue for sex- or race-based protections based on a textualist interpretation, but from an original intent perspective this is dubious given that sex-based legal restrictions were widely accepted at the time and not struck down in the wake of the passage of the 14th Amendment.Report
The same thing that bars laws doing that to women bars laws doing that to men. The protected class is sex, not women.
It is really absurd to argue that there is _no_ demand for something that we had to pass a law to stop in _1975_. That was 45 years ago.
The _average_ Senator is 65, which means they literally grew up in a world where women could not get bank accounts without permission of their husbands. Plenty of them are even older.
And there’s no difference between hypothetical oppression of everyone that isn’t going to happen as long as people have the right to vote, and actual specific oppression that has happened in this country’s history?Report
Procedural Due Process are the steps the government needs to do to take away your life, liberty, and/or property. Trials basically. The result does not need to be correct but the process needs to be fair and non-arbitrary. Scalia famously scoffed at the idea that an improper or incorrect guilty verdict was reason to do anything about a death sentence. As long as the process was good, the decision was sound.
Substantive Due Process are rights that are not explicitly mentioned in the Constitution but are gleaned from the Due Process and/or other clauses. The Constitution does not mention a right to contraception access, abortion, privacy, etc. but the Courts have determined such rights exist because of implications in the 14th and other Amendments. Thomas has always hated Substantive Due Process.Report
I can’t get past the inherent paradox in the idea of substantive due process. A thing is either procedural or substantive. There are ways you can arrive at a protection of, say, privacy without having to invent substantive due process.Report
I would put it this way: The 14th Amendment has three major components:
(1) First, it prohibits states from abridging any of the privileges and immunities of citizenship. This was supposed to establish national citizenship with a body rights attributable to it. For example, an established privilege of citizenship has long been the right to marry another citizen.
(2) States cannot deprive any person of life, liberty, or property, without due process of law. The Ambrose Bierce version of this is that the State can take any person’s life, liberty and property so long as he is given a meaningful opportunity to pay a lawyer to put the State to the maximum effort.
(3) A State cannot deny to any person equal protection of the laws. This is the non-discrimination principle, the state cannot discriminate on the basis of race, gender or similar factors.
In 1873, the SCOTUS interpreted the privileges or immunities clause in such a narrow way that it immediately became dormant and removed from the Constitution. (Slaughter-House cases)
I don’t think anything I’ve written is controversial. I don’t think anybody defends the Slaughter-House cases these days. What Thomas has long believed is that substantive due process arguments are an inartful and non-transparent reinstatement of the privileges or immunities clause. He would prefer to overrule the Slaughter-House cases and deal with non-procedural issues directly as opposed to continuing the fiction of non-procedural process claims. So far, no other current Justice AFAIK has agreed to undertake this endeavor. Today’s majority opinion recognizes the issue, but states that it is immaterial here.
I think Burt wrote a piece on this and if I find it, I’ll link to it.Report
I think this is pretty close to right, and 30-odd years ago I thought it was a big deal. After all, the name “substantive due process” sounds kind of silly, even though it has a very long history. So maybe what we have is a “wrong clause” problem. I wouldn’t mind seeing it fixed, but I can’t see any Justice’s vote on any issue coming out any differently if we did fix it, They would all say the same stuff in slightly different language.Report
I mean, he demonstrably does _not_ believe that. He might assert that, but he does not believe it, or he would have dissented on the _other_ side and said “There is a right to medical privacy as it is a privilege granted by the ‘privileges and immunities’ clause.”.
All his claims about ‘This is being done under the wrong clause’ are utter nonsense…he clearly doesn’t want it done AT ALL.Report
“The most striking feature of the dissent is the absence of any serious discussion of the legitimacy of the States’ interest in protecting fetal life. This is evident in the analogy that the dissent draws between the abortion right and the rights recognized in Griswold (contraception), Eisenstadt (same), Lawrence (sexual conduct with member of the same sex), and Obergefell (same-sex marriage). Perhaps this is designed to stoke unfounded fear that our decision will imperil those other rights, but the dissent’s analogy is objectionable for a more important reason: what it reveals about the dissent’s views on the protection of what Roe called “potential life.” The exercise of the rights at issue in Griswold, Eisenstadt, Lawrence, and Obergefell does not destroy a “potential life,” but an abortion has that effect.”
The above quote is from the majority opinion, written by Alito. Philip’s passage was from Thomas. Thomas has never respected precedent. It’s telling that the only references in Philip’s passage were to other Thomas opinions.Report
I was asked to summarized Thomas’ dissent regarding what else he wants to go hunting for and over turn and I found the key passage addressing that. Not sure why that means you have to stir the pot . . . .Report
I guess that was more a reply to Chris’s “Thomas’ concurring opinion tells you what’s next.” but I didn’t realize it. Thomas’s opinion never tells you what’s next; it tells you what Thomas wishes was next.Report
Because the other GOP justices respect settled law. Remember.they said that in their confirmation hearings.Report
Lawrence is not about ‘sexual conduct with member of the same sex’. It is about all private sexual conduct, period. The specific _case_ involved two men, but the law being struck down barred _everyone_ from oral and anal sex. The law was prejudicially enforced mostly only against homosexual men, but it, in theory, applied to everyone.
Interesting that the people who signed onto that opinion are dumb they doesn’t even know that.
Also the idea that Griswald could not be argued to be about ‘potential life’ is somewhat baffling.
About the only thing that managed to get correct is that Obergefell is not based on those rights at all.Report
And as for Eisenstadt , it’s where we get this quote from:
“If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”
Eisenstadt very explicitly was decided on the grounds it was the right of people to ‘destroy’ potential life. (Whatever it means to destroy something that _potentially_ exists.)
It’s hilariously stupid how the court called it ‘potential life’ despite the fact they clearly wanted to call it ‘life’, rendering their position completely incoherent because contraceptives, very clearly, destroy ‘potential life’.Report
It’s always fun to cite Thomas; but the majority ruling addresses this in the summary and the body:
—
The Solicitor General suggests that overruling Roe and Casey would
threaten the protection of other rights under the Due Process Clause.
The Court emphasizes that this decision concerns the constitutional
right to abortion and no other right. Nothing in this opinion should be
understood to cast doubt on precedents that do not concern abortion.
Pp. 63–66.
—
Of course just like congress, the current court can’t simply bind a future court… so who knows. Maybe even Dobbs is overturned.Report
There’s a meme that’s been going around about how conservatives are raaacist, featuring a picture of the conservative dream SCOTUS: 9 Thomases.Report
The Democrats are weak at retail politics, and the contradictions in the coalition often make it difficult to exploit less obvious though nevertheless very real contradictions on the right. And to your point there is going to be some horrendous collateral damage for women all over the country.
However, I also think this marks the end of a cause that unified a lot of otherwise pretty disparate groups and interests on the right. The fact that it happened without any of the cultural wins alluded to by Marche makes me suspect the long term consequences will be irreparable fracture among a number of important groups on which the modern GOP has come to rely, and maybe even take for granted.Report
Play Warren games, win Roberts prizes.Report
Well said.Report
Yep.Report
The Republicans know what they want to do next. They will go after Griswold, Obegerfell, and Lawerence. They will also institute a national abortion ban next time they get the Federal trifecta. Prayer in public schools if they can. Finally, they will engage in outrageous cheating at the state level to secure permanent minority rule as the Texas GOP outlays in their plank,Report
This would be funnier if the dog didn’t think it could drive.Report
Another tragic day for women and girls everywhere. Another decision rolling back the multi-cultural democracy that we are still trying to build. And another reminder that old, conservative white men will not cede power willingly.Report
But, her emails.Report
Frankly if I were Merrick Garland, I’d drop all my January 6th indictments today, all the way up to Trump and then go on vacation.Report
A pity for women in red states. The Pro-lifers have won the easy part of their struggle- Pro-choicers have always been a bit out front over their skis with the Roe and Casey status quos- the luxury of the fence sitting vocally pro-life, foundationally pro-choice faction of the population is coming to an end. Choices will finally have to be made.Report
The red state part of it will only last so long. They’ve got the court indefinitely, they’re going to win both houses this year, and they’re going to win the presidency in 2 years, unless the Democrats wake the fish up, which I have no faith they’ll do. And when they have all 3, there’s no way they’re not going after a federal ban, and unlike Dems, they’d almost certainly get rid of the filibuster to do it. And it won’t just be abortion: they’re coming after everything.Report
Yes they are – and many of us including you have been warning of that for some time. If they get all three they intend to roll back the New Deal and the Civil rights movement. After that who knows.
But make no mistake, this is not even close to over.
No wonder Mitch McConnell was willing to compromise on weak gun control legislation to try and win back suburban white women.Report
I have a lot of doubts that the right, as currently currently constituted, has the internal ideological coherence to make a run at the New Deal reforms. Recall they couldn’t even muster 50 votes to repeal the ACA and their voting base has steadily moved populist on economics ever since.Report
They didn’t repeal the ACA because they didn’t have 60 for cloture. Ditch the filibuster for a national abortion ban and that’s a moot point.Report
Umm no, they had a bill to gut it through reconciliation and they couldn’t get the 50 votes they needed.Report
I have my doubts that Cocaine Mitch the plutocrats poodle would scrap the filibuster, which is a deeply useful weapon for the plutocratic right, over attempting a federal ban on abortion but whoever comes after him will likely be much more populist right and slightly less in the pocket of the wealthy so it’s entirely possible in the mid to long term.Report
He’s already ditched it every time he found it inconvenient. And frankly if they get all three branches back in 2024 they will conclude they get to rule permanently. Once that happens there no longer a need for it.Report
That was for judges which is an area that yields huge gains for his plutocrat paymasters and thus is an area that Mitch reasoned losing the filibuster was worth it. Losing the filibuster for legislation would be an incredible boon for liberal/populist legislating in the mid to long term.Report
Mid-term, I don’t see McConnell’s successor, whether its Cornyn or Thune, all aboard scrapping the filibuster either.Report
The rights paymasters like legislative paralysis and don’t give a fig about pro-life causes- the filibuster is an enormous instrument of legislative paralysis. I’d view scrapping the filibuster as a sign that the money men on the rights grip is slipping even more.Report
+5 Insightful.Report
Fair, but blowing up the filibuster also requires the 49th and onward votes to give up a lot of power and notoriety. Look at Manchin and Sinema right now or McCain, Collins, and Murkowski before them. If you get 50 true enough believers, probably, sure, but I have doubts on getting to that part even in this political environment. The incentives just aren’t there yet.Report
I think you underestimate what the base will now expect. Their grumbling, for decades, has been that Republicans, at the federal level at least, have not kept their promises on abortion. There will be open rebellion, in the sense that every single Republican who doesn’t vote to do whatever it takes to do it will be primaried from their very energized right, if they have the ability to ban it nationally and don’t.Report
“Maybe we should leave it up to the states” might be a good compromise against the maximalist position.
In the short term, anyway.Report
And Republicans compromise when exactly on issues they are passionate about?Report
I guess it depends on how you read the last three or four decades.Report
It’s a compromise with people who’ve shown they have no interesting in compromising. Might as well compromise with a the bear as it mauls you by saying, “Hey, just eat my legs, OK?”Report
Eh, I honestly think that there was a compromise available there for a while with the whole “European” solution that could have gotten ~70% of people to grimace and nod leaving the ~30% of people to scream at each other.
Woulda coulda shoulda.Report
Roe is the compromise that has at least 60% of people nodding.
How’s that compromise working out?Report
This is a weird issue, politically, because while the majority of people want abortion to be legal, one party is led by the people who, though they may not be the folks who have for years stood outside of Planned Parenthoods praying and shaming (at least on nice, sunny days), are still the people whose views on this issue are the same as, and in fact have been heavily influenced by, the folks who have for years stood outside of Planned Parenthoods praying and shaming. They wouldn’t have been happy with any compromise, and they’ve shown repeatedly they’ll go to any lengths: lying, manipulating, even murdering. And now they’re driving the car.Report
while the majority of people want abortion to be legal
Yeah, but they’re not fans of weird edge cases being legal.
Which is why I brought up the European thing.
For what it’s worth, I’m not arguing that what happened today is settled law and ought to remain settled forever.
It strikes me as one hell of an over-reach and will result in the pendulum swinging back and swinging back *HARD*.Report
I mean, weird edge cases aren’t really legal here, or at least in most places. We already had that compromise. And you see where it got us.Report
Oh, so they were kinda legal?
That’s not the kind of compromise that I was trying to communicate that I thought would have worked.Report
The “weird edge cases” of third trimester abortions have always been legal for extreme medical need – i.e. the life of the mother. They are not common, not remotely, and the law after Roe generally accounted for them.
We had a compromise. The Right has now burned that down. In service of maintaining their won power by pandering to a vocal minority.Report
Yeah, you’d think that a symbolic ban of the non-extreme medical need ones would have been easily agreed upon.
“Nobody does this thing that you’re wanting to ban? Pffft. Sure.”
And yet and yet and yet.
Ah, well. The pendulum swings.
(Honestly, I am shocked that this happened. I never thought that it would. Never in my lifetime. Social Conservatives just don’t win victories.)Report
So you thought the leaked draft was a work of fiction?
Come on Jaybird – get your head back into the game. Social Conservatives have spent 40 plus years setting the playing field for this outcome. They intend to follow it with overturning gay marriage, and the right to contraception, and then what’s left of the New Deal and and the Civil Rights era. They have made their position plain for a LONG time.
Why do you STILL refuse to believe them?Report
It wasn’t that I didn’t believe that they wanted this.
I just believed that they were too inept to actually accomplish it.
Huh. The long march through the institutions works. (Let’s hope they don’t notice for stuff like schools.)Report
If you really believed that first sentence then you clearly were not paying attention to the outcome of the second as it has played out, particularly in the last decade.
.And they have noticed for schools. Its how we got school boards loaded with GGOP and QANON parents who are ready to implement the Don’t Say Gay bill.
Oh, and you might want to rethink your stances on marijuana legalization being your price to support Democrats, because I see no GOP politician who will ever support that, since keeping it criminalized is an excellent way to ramp up urban population oppression.Report
Oh, I heard about the leak but I didn’t know whether the leak was accurate or what.
Some people argued that it was obviously a leftie that leaked it in outrage.
Some people argued that it was obviously a rightie that leaked it in order to do a trial balloon of sorts and maybe see if it resulted in acceptable chaos or unacceptable chaos.
Some people argued that it was subtly a rightie leaking it to make it looks like the lefties leaked it and thus undermine the clerks.
I didn’t know if the draft was going to be like the version that actually showed up. Maybe Roberts would have flipped or something.
I see no GOP politician who will ever support that
Looks like I don’t have to worry about DNC politicians supporting it either.
Lemme know when your solidarity extends to my issues too.Report
I have always been in support of legalization, since it would remove a pernicious force from our urban and black communities by killing off the ill named War on Drugs.
The DNC funded Senate largely agrees with you and with me. Seems you haven’t noticed:
https://thehill.com/homenews/senate/3476119-momentum-builds-in-senate-for-major-cannabis-bill/Report
I’m not asking for banking support.
I’m asking for rescheduling/descheduling.
“Well, what if we only busted *BLACK* people?”
“No. You misunderstand what I’m asking for.”
“What about only busting Black people and LatinX people? No whites or AAPI!”
“No.”
“What if we went for a change in banking policy?”
I understand that negotiating a compromise is important to you but I am not interested in possible compromises at this point.
Lemme know when your solidarity extends to my issues and I will extend my own to yours.Report
Again I want it decriminalized. completely. Always have.
But if we have to start at banking I’m fine with that. And if you get the DNC on board for that part its easier to get them for the rest.Report
I DON’T WANT IT DECRIMINALIZED
You people deserve what you get.Report
But what about DST?Report
“But what about DST?”
Also not a constitutional right.Report
Of course it isn’t. Nobody said it was. It was the second item on Jaybird’s two-item list.Report
Through and over.Report
Indeed. Can you imagine American Christian madrassas?Report
The 20% who care about this care enough to vote on it. The 80% who were happy with the status quo were not willing to vote on it.
So the 20% who support outlawing are hard and the 80% only give soft support.Report
Why? Why do you keep insisting on this when it is obviously not true?Report
Because much like Jay intoning that he didn’t know what the draft Roe decision was, this gives North comfort that things aren’t possibly as bad as they are and can’t get worse.Report
You misunderstand: I knew what it was… but I didn’t know whether it was accurate and, if it was accurate, whether it would remain accurate.
That’s different from “I didn’t know what it was”.Report
No one else here, on either side of the issue, suffered from that problem.
What does that tell you?Report
Eh, I’ve never really been a fan of “you realize that you’re not conforming” criticisms.
Certainly not when it came to reaching conclusions.Report
I’m not often stunned, but I would be stunned to see McConnell suspend or overturn the filibuster to pass an abortion ban. Like, I was less stunned by Trump winning or 9/11, but more stunned by the Berlin Wall coming down.Report
Ditto. But you and I seem to think less of McConnell than my more progressive brethren.Report
This particular subject puts me in a peculiar position in that all of you folks to the left of me are simultaneously stating that you have a higher opinion of Mitch Mcconnell and the GOP than I do and yet also act like my having that lower opinion than you do means I’m somehow either soft on the right or am deluding myself for my own comfort. This seems nonsensical to me- I’m the one saying that the GOP and its leadership are mercenary employees of soulless right wing money men and you’re the ones saying the GOP and its leadership would sacrifice things for a principle (in this case the pro-life principle).
I do not agree. Mitch Mcconnell has, through my entire adult life, exercised himself only to enhance, preserve or improve the GOP’s electoral power, to cut taxes and regulations for his plutocratic paymasters or to block action by the Democratic Party. The filibuster has been integral to how he’s gone about business for all those years. Let us, also, be clear that this filibuster he’s been using isn’t some stick he found on the garden path sprung whole from the forehead of Senate history like Athena from the forehead of Zeus. No, the filibuster as it’s used today is an invention of Mitch McConnell. He took up the old legislative maneuver and has utterly revamped it into the instrument of gridlock it is today. The filibuster isn’t just some maneuver- it’s something he created painstakingly over decades of professional effort. It would be admirable if it were not so incredibly deleterious to the well being of the republic and if he were not such a reptile blooded monster at the head of a decaying party that’s lost its fishing mind.
So, when you say that Cocaine Mitch McConnell would obliterate the filibuster- his creation, the weapon he personally has honed and used for decades to considerable effect, I have misgivings. When you say he’d obliterate this weapon he created, not to achieve power for himself or his party nor to seize some huge payout for the plutocrats he has always labored in the service of, I wonder at your reasoning.
You’re assert that Mitch McConnell would destroy his filibuster to achieve pro-life principles and pass a federal abortion ban. I say that he has no such principles and would never do such a thing unless there was some incredibly huge payout or power grab for him to achieve.
And then you say I’m the one who’s being dewy eyed and soft about the GOP? Please.Report
I have to agree with you.
For years, the Republicans have used ‘conservative judges’ to win elections.
Now they can use ‘Federal abortion ban’. And it’s in McConnell ‘s best interests if they are never _quite_ there, drat.
McConnell does not care about abortion. He is not pro-life or pro-choice, he has no opinions. Because McConnell is a soulless husk of a person that is custom-crafted to take donor money and create policy for them, and then turn around and use that donor money to get more Republicans elected so they get even more donor money.
There is literally no ‘there’ there. There is nothing there at all. No desires, no morals, no _anything_.
No, he’s not going to give up the fillibuster unless he’s paid an absurd amount to do so.Report
The people who were willing to murder the Republican Vice President wouldn’t hesitate to do the same with the Senate Majority Leader.Report
Ah, see, there’s your first mistake: Assuming Mitch McConnell has any desire to remain alive, or that he would allow any such hypothetical desire to impede his work of turning donor money into policies back into donor money.Report
On this you and I are in complete agreement David, well said.Report
This is the same cult of savvy thinking that said the Roe would never ever be overturned because then the Republicans would have nothing to offer the rubes who vote for them. Now Roe is overturned. The reason it wasn’t overturned previously isn’t because the Republicans wanted something to offer the rubes. It was because reversing Supreme Court precedent is really hard. There were always just enough voters to preserve Roe but because the Supreme Court now has six against Roe, it is gone. If a series of lucky accidents got them their sooner, Roe would have been gone a long time ago now.
The rubes are now the majority of the Republican forces in Congress by a long shot. Both the House and the Senate is filled with fire breathing true believers in the Republican caucus. Cynical operators like McConnell are a minority. January 6th also demonstrates that they are willing to force the issue if necessary. A Republican Trifecta means Federal Abortion Ban. End of story.Report
Literally no one in this discussion has implied that Republicans will not overthrow Mitch McConnell and then remove the filibuster. Maybe they will. That would be interesting.
Mine and North’s claim is explicitly this: Mitch McConnell, the individual person, will not remove the fillibuster because Mitch McConnell is a donor-operated marionette with no will of his own, and removing the fillibuster would weaken his ability to do things that his donors want. And his donors do not actually care about abortion enough to do that.
I personally think _enough_ of the rest of the GOP is like that to stop it, and thus this overthrow cannot happen. But such a thing is not impossible.
It is also possibly, hypothetically, that one of McConnell’s donors _do_ care about abortion enough to pay enough to get him to cannibalize the system he set up. It would have to be a pretty big payout, but he is getting up there in age, so maybe he’d do that on the way out the door if he intends to leave.Report
He doesn’t have to remove the filibuster entirely, just make a carve out.Report
No way he can pull off a carve out. The filibuster is down, now, to exclusively legislative matters. Nick it any more and it’s done. Same thing happened on the judicial side: as soon as one side made a carve out the other side deflated it to nothing.Report
“Only the judges we want to appoint but not the judges the other side wants to appoint” didn’t work well.Report
I think you gloss over the age factor. Mitch is 80. His current term ends in 2027, meaning he will not be up for election until 2026, at age 84.
If they get the Presidency and both sides of Congress in 2024, I would have zero surprise if he blows up the filibuster, pushes through every conservative wet dream, and then rides off into the sunset. Who needs donors when he can just collect exorbitant speaking fees as the rightwing Godking so many will hail him as in this scenario?Report
It’s possible, certainly, but if he does then so much the better as it’ll become enormously easier to simply undo it all. The filibuster is much more of a benefit to the right than the left. If the right blows it up then great.Report
Mitch is also willing to make exception to the Filibuster when it suits his bidding like he did with Gorsuch. The Republican base will not be satisfied with just reversing Roe. This still allows reproductive freedom in the Blue states. They are engaging in increasingly radicalized behavior in every state. Their next policy wish is going to be a National Abortion Ban and if the the Republicans have the trifecta, they will be expected to deliver. The Democratic Senators will make an attempt to filibuster it but McConnell knowing the political winds is not going to stop in the way of it.Report
And if the Republicans don’t deliver, what are their voters going to do? Vote for the baby-killers instead?Report
Primary. Which they’ve been doing for a while now. If the recent Texas convention doesn’t show you how quickly they’ll turn on their own, I don’t know what would.Report
Chris gets it right.
https://www.cnn.com/2022/06/24/politics/republican-reaction-abortion-congress/index.htmlReport
The GOP has been hating but going along with their plutocrats on this matter for decades getting nothing. You think that now that they’ve gotten something major they’ll revolt? I doubt it.Report
Polling indicates that the GOP might be able to Aiken and Trump itself even with high gas prices and inflation. Fetterman is comfortably ahead in PA. Walker is no longer a sure thing in GA. But people here seem to prefer the moral superiority of not compromising and voting D so….Report
Yes.
This and the other rulings, plus the revelations of the Jan 6 committee, and the actions of Republicans in states around the country make it very clear.
There are really only two choices facing the American citizens- The Democratic Party wants democracy and the rule of law, the Republican Party wants authoritarianism and a hierarchical society where some have privileges, some don’t, and rights don’t really exist.
It doesn’t matter what flaws the Democratic Party has, or how much disagreement one has with their methods or policies. Wherever the Republicans are allowed power, democracy and the rule of law is under threat.Report
I’ve always been a Dem voter myself. The first test of this comes in November. If the electorate just yawns over the demise of abortion rights that’ll be quite disconcerting.Report
I wouldn’t describe it as a yawning, but a reshuffling of priorities.
If people care more about gas prices or food prices than abortion rights, they’re going to vote for the candidate that makes the best promises for gas prices or food prices.
If gas prices and food prices aren’t in the forefront of anyone’s mind, it’ll be easier to make the argument about abortion.Report
That’s PRECISELY what North meant, and what Republicans are hoping for.Report
See, I don’t see saying “The most important thing for me right now is being able to afford food” as “yawning about abortion rights”.
We want people yawning about food prices.
If they aren’t yawning about food prices, a lot of stuff follows. One of them is being impervious to questions like “but don’t you *CARE* about abortion rights?”Report
The problem with your approach – and what worries me in general about right leaning political types – is that the focus on transitory bread and butter will allow significant harm to be done to communities in the country who aren’t conservative white men. Once that damage is done it will be much much harder to undo.Report
Well, if the people who aren’t conservative white men don’t have to eat food, we should be golden.Report
Some people read Bonhoffer not as a cautionary tale, but as a roadmap.Report
Oh, for an electorate that realizes that no politician, of any party, can do jack sh*t about commodity prices.Report
I think, for that, we’d need a truce of sorts against stuff like “blaming the president for current economic woes”.
No more “The president’s policies caused this!”
It’d have to be a steady drumbeat of “The current president had nothing to do with this.”
In good times or bad.Report
You’re right, but who’s going to stop first?Report
I look at it a bit differently. I think the forces for whatever is going to happen in November are already pretty fixed and the only thing that could change them would be a big drop in food and energy prices. The most this, the January 6 hearings, etc. are going to do is slow GOP momentum.
The real tell will be 2024 after we’ve had time for the really crazy stories to start bubbling out of states with full on bans, women actually dealing with absurd disruptions to routine healthcare, etc.Report
Food and energy prices will always be the 800 lb gorilla but it’s also an area Biden has pretty marginal control over. He could ink a lot of free trade bills and continue letting the Fed do what they need to do to rein in inflation but otherwise his ability to directly impact inflation is pretty small.
But if the demise of abortion rights doesn’t, at least, cause the GOP to underperform relative to expectations this year that’d be a pretty dire indicator.Report
Biden IMO needs to play the long game. His focus should be making sure inflation is an afterthought by 2024. Only then will this be a good issue, provided he and the bulk of the party are still able to do the Clinton safe, legal, and rare thing.
I will admit that I already think the GOP is going to underperform due to its ongoing identity crisis. I guess if I’m wrong I will owe someone a coke.Report
Sure, but free trade is rather out of vogue right now and biden is already letting the Fed raise rates with solid support. What more could he do?Report
Probably not much beyond avoid temptations like a holiday on the gas tax.Report
My hot take is that this the abundance of contraceptive options along with the general trend line of Americans having less sex led to a natural decrease in abortions, which then led to it falling off the forefront of the general American consciousness, which -then- led to the Court giving the green light here when they couldn’t back at Casey or Roe. Abortion isn’t nearly as big an option for birth control as it was in 1972, and Americans have been voting accordingly.
Of course, we shall see once the horror stories start piling up again.Report
There’s going to be the high profile horror stories, and there’s also going to be the low key frustration of inconveniencing women trying to get routine care they’ve long taken for granted but now can’t as providers try to navigate byzantine new rules no one knows how to follow. We’re also going to watch law enforcement, prosecutors, and the judiciary embarrass themselves trying to prosecute use and sale of black market mifepristone the way they used to with marijiana, in ways the population has long grown cynical about.Report
Didn’t we already see that in Texas?Report
At OT we think at the speed of political junkies. Whether or not something resonates moves at the speed of the Normie, median voter.
The voters who will determine how this plays out long term are barely aware of it yet, if at all.Report
Yeah, that sounds about right.Report
Until the holly rollers come after Griswold and its successor cases. A lot of them hate IVF too.Report
Thomas certainly intends to go after Griswald.Report
Are there 4 others who agree with him?Report
They already decided that people might think that certain forms of contraceptives are abortion, and the courts should treat that as fact.
Likewise, the opinion repeatedly points out that the constitution does not guarantee a right to an abortion. Which means is basically just throws the right to privacy out.
I know they _tried_ to pretend that it is unique as it has something to do with ‘potential life’, but…see my first paragraph, where they already agree to treat certain conceptions as abortion-inducing. And also…that’s not any sort of legal or constitutional principle ‘potential life’.
The actual next thing they’re going after is Obergefell, though, because they’ll try to remove the intermediate scrutiny test, aka, substantive due process, from sex and gender-based laws.
If that’s not it, it’s Lawrence next, not Griswald. Lawrence only impacts the gays (Well, no it doesn’t, but that’s how it’s enforced), and luckily, they’ve been starting back with massive homophobia recently.Report
I hear these predictions on how they can’t get rid of abortion without going after other sex rights and I translate that into… “we know we can’t get people to vote for pro-choice so we need to say lots of other things are threatened too even though we don’t have waves of politicians running on dismantling those rights”.Report
This would be because Roe, Lawrence, and Griswald are all literally determined by the same constitutional right, a constitutional right that everyone who tried to ban abortion says did not exist.
This decision agreed with that.
Lawrence and Griswald are literally standing on nothing at this point. They were decided on the basis of the right to privacy, and now the court just said such a right does not exist.Report
Wait, you’re saying the folks who are screaming lies about gay teachers grooming children for sex might not be robust supporters of same sex marriage?Report
Say what you will about Jeb Bush, but his court picks would have never done this.Report
The Roberts opinion would have probably been what we got.Report
Thomas was picked by GWHB.
Alito was picked by W.
Jeb (or any other Republican) would have picked from the FedSoc menu.
But otherwise, sure.Report
Well, it’s been coming for a long time.Report
Biden should just nominate like 12 people to the court tomorrow.Report
If you’re looking for a way to proclaim that democracy doesn’t matter, then that’s it. The Right has been working for this for decades and has been following the rules to make it happen.Report
What rules would Biden break by making nominations?Report
None. Technically, Congress determines how many justices there are, not the president, but there’s nothing in place to stop Biden from nominating, and Dems in Congress then choosing to seat, 1 or 5 or a million justices, since Dems still technically hold both houses, and importantly, the senate.
Will they do this? Of course not; Dems will do everything possible to keep the mast upright as the ship sinks beneath them. Hell, not just as the ship sinks, but as the mast itself, by remaining upright, pokes and holds open the hole in the hull that sinks it.Report
Oh, yes, I knew that. And I know you know that. And I am pretty sure Dark Matter knows that. I just wanted to try to see him explain how Biden’s hypothetical actions would be breaking rules while none of what the GOP broke any rules. It’d be fun to watch him try to thread a needle that doesn’t exist.Report
Ah, sorry, I didn’t see his comment.
It’s very weird to say that making changes to a thoroughly undemocratic institution would be a way to show that democracy doesn’t matter.Report
One of the big criticisms that the Evangelicals made in the late-80’s/early 90’s about Roe was that they ran to the courts instead of changing minds in the culture or changing things through laws written by elected representatives first.
To the extent that this is a good criticism, we’re going to find that it applies, 100%, to Dobbs.Report
They have the same complaint about Obergefell. Thomas has their backs.Report
At no point in my lifetime have the evangelicals’ culture enjoyed the support of the majority.
And yet they work tirelessly to establish their minority vision on an unwilling majority.Report
I suppose this is the certainty that comes with thinking you are one of God’s soldiers on earthReport
I don’t think the majority of Republicans are as radical as an Adrian Vermuele or Clarence Thomas.
But, and this is the critical part, they won’t stand in their way. They can always, always be counted on to step aside, avert their eyes and offer aid and comfort to the authoritarian thugs.Report
Because your opinion polls are way more important than elections? We use elections to measure the actual support for various issues.
If you don’t want to use elections to resolve important issues, then what do you suggest we do instead?Report
I’m suggesting the elections that we do have in states like Wisconsin are not really free or fair, but rigged to make it impossible for the people to elect a government they prefer.
When the outcome of an election once in a while is different than popular opinion you can write it off as an anomaly or statistical quirk.
But when the government elected is consistently different than what the majority wants, and always in favor of one party, you need to ask if it is actually a legitimate government.Report
As someone who genuinely, and unapologetically hates the court, and has for decades, to the point that if I had my say we’d abolish it entirely, I think one of the biggest mistakes liberals made was seeing the decisions the court made between Brown and Obergefell on social/civil rights issues (while they continued to be horrible on most others) and convincing themselves that these meant that the court was inherently a rights-protecting institution, shielding the unempowered from the bigoted masses, and not what it actually is, an inherently undemocratic, elitist, and in fact deeply anti-democratic institution with 2+ century history of limiting rights (except for guns). This is, to their credit, something many libertarians tried to warn liberals about, but for many reasons, good and bad, liberals tend to ignore libertarians (and leftists).
The question now is, will this punch in the gut to that naïve idealism force them to change their minds about the court, and see it for what it really is; or will the inescapable cognitive dissonance push them into believing that this is an anomaly, the result of a conservative minority unfairly, and undemocratically, capturing the country’s most powerful institution? The cynic in me is pretty sure the answer is the latter, a belief bolstered by liberals (whom I’m rapidly muting) on Twitter.Report
What do you want to replace the Courts with?Report
Court packing is serious banana republic.
The Right has been attempting to “reform the court and it’s mistakes” for many decades. They’ve been doing it openly and constantly. They’ve had wave after wave of politicians run on doing this.
Like it or not, they’ve been following the existing Democratic norms for resolving contentious issues.
If you throw out that process then it’s gone.Report
Very true. Banana republics do the same thing to though.
Unfortunately they also seem to be setting boundary conditions to prevent democrats doing the things necessary to undue any damage they cause. If that holds, I expect radical actions may well be required.Report
Radical actions because Team Blue lost?
Changing the US’s abortion laws to be more like Europe is so important that we need to court pack, because it’s important that Team Blue never lose?Report
The GOP announce that they would go with a reduced court size until they could get the replacements they wanted. But that’s different!Report
Following the Biden Rule is just totally unfair if Team Red does it. That was only supposed to happen when Red had the Presidency and Blue the Senate.Report
There was no rule. It was a speech.Report
A speech declaring that there was no way Team Blue’s Senate would give Team Red an extra Supreme when they can just run out the clock and get a new President.
Red was elected to move the Court Right, Blue was elected two years later to stop them. Blue’s base would insist on this.
It’s less a rule and more the political reality.Report
Um, no, you don’t get to yammer about ‘Oh, that’s a rule’, when Team Red IMMEDIATELY broke it under the next president.Report
The rule is only if the Senate and President disagree on which way for the Court to be pushed.Report
So you don’t think court packing would be breaking rules? Seriously?Report
no more so then denying hearings and a vote to a qualified nominee more then a year out from a presidential election.Report
Killing a nomination for a Supreme is black letter written into the Constitution as a right/responsibility/duty of the Senate. The exact mechanism isn’t specified, withholding it’s consent by inaction has happened multiple times before even with the Supremes.
If we count the lower courts then I expect we’re into the hundreds of times this has happened.
You not liking it doesn’t make it abnormal, much less rule breaking, much less unconstitutional.Report
Packing the court is also, black letter, written into the Constitution as a right/responsibility of Congress.Report
Unless you’re good with Team Red doing that, it’s the sort of thing that’s best done once, when the court was created. It’s been more than 150 years since we’ve done that sort of thing.Report
OK now that we’ve agreed that changing the size of the Court is rightfully Congress’ right, then yes, I agree that adding more Justices when the flip of power is within sight is shortsighted.
The only solution is to vote for Democrats, always and everywhere no matter what.Report
I think the question raised is, which rules, exactly?Report
Point me towards the rules you think they’d be breaking and I’d be happy to weigh in.
Go ahead… find the needle.Report
So you don’t think court packing would be breaking rules? Seriously?Report
Not any rule I can find. Did you find one?Report
I’ll take this as a no.
Good talk!Report
The rule it would be breaking is the rule of law. I acknowledge that due to an oversight there is no Constitutional prohibition on court packing. But judicial review is very important, and once it’s gone it’s gone. It will just become standard practice to pack the Court every time either party gets a trifecta. Here’s hoping the grown-ups in the Democratic Party hold the line.Report
So, again, there is no rule you can point to…?
I mean, seriously, are you guys even trying? There are PLENTY of arguments against court packing. But none of them are legitimately based on it being against any actual rule.Report
Of course, it is important to note that one *protection* against court packing and a very real problem you identify with it was the filibuster. Adding seats would have been much harder — and in these days, practically impossible — had the filibuster on SCOTUS nominees remained in place. But… someone chose to remove that protection.
The GOP *sacrificed* their ability to *stop* a Democratic President with a Democratic Senate from adding justices when they *chose* to end the filibuster.
That is how the world works: you make choices and must accept the consequences. You do not get to simply reap the benefits and pay no costs.
Mad at the prospects that Biden and a 50/50 Senate could add seats to the court? Blame McConnell and Co.Report
The problem is it’s only a solution until such time as the next Republican trifecta, assuming the filibuster is taken away which we all know it won’t be. So not a solution at all and the same fundamental failure of strategy that got us here, i.e. relying on the the inherent vagaries of maintaining a fragile, 5-4 majority in an intentionally counter-majoritarian institution. It’s a stupid waste of time to even talk about.
The real push should be at state levels. Advocate for ballot initiatives and referendums to amend state constitutions in those states that allow them protecting the right to a discretionary abortion up to 15 weeks. Attack legislation under state constitutions instead of the US constitution. Run moderate pro-choicers for state legislative offices. All of the people out in the streets in places like PA and MI is telling, and per the polls, the numbers should be there in most places for something like complete discretion up to 15 weeks with exceptions after for health or rape/incest.
Yea, a handful of states may never change but you could plausibly establish protection for the vast, vast majority of cases in most of the country. The Kavanaugh concurrence suggests that he (and I assume also Roberts) will vote with the liberals on attempts by states to punish cross border travel for an abortion so the priority should be keeping it legal in strategic places like NC, FL, PA, and MT where you have a fighting chance of doing it and that are accessible by car to states where it will likely be heavily restricted or banned for in the immediate future.
Sorry for the rant but to me the court packing stuff is loser talk for losers and it drives me crazy when it comes up. There’s ways to mostly win this through normal democratic processes, if we we want to.Report
To be clear, I’m not advocating adding seats. But arguing it is against the rules is just straight BS. That’s my point.Report
Rules =/= Laws.
Court Packing is a massive FU to the legitimacy of the Court.
I think it unlikely that getting rid of democratic norms works out well long term. Like it or not, Team Red followed those norms in getting their 6-3. The Biden rule was BSDI territory (thus the name).
20% of the country wants to ban abortion bad enough to vote on it, the 80% that wants to keep it doesn’t vote on it. Going down the banana republic path with Court packing (while squeaking that Team Red are the authoritarians no less) probably just increases that problem and increases the ability of that minority to impose it’s will.
Roe was an a**pull and wasn’t accepted by the Country. Fighting it out at a state level probably means a lot of states will end up amending their Constitutions (via actual democratic norms) and settling the issue.Report
Ah yes… norms for thee but not the GOP.Report
How many times have hearings been denied?
How many times has the court had other than 9 members?
Which of those two things is more?Report
There have been 37 unsuccessful nominations to the Supreme Court of the United States. Of these, 11 nominees were rejected in Senate roll-call votes, 11 were withdrawn by the president, and 15 lapsed at the end of a session of Congress. (Google)
So at least 15 times and perhaps as many as 26 depending on what we want to call “withdrawn”. Admittedly some of those were “withdrawn because the Prez decided it was a bad choice” and not “withdrawn because there was no way they’d get a hearing”.Report
Dark, the kind of brinkmanship McConnell engaged in may be permitted by the book but it’s bad for the country. Why make excuses for it?Report
Excuses? The GOP Senate wasn’t elected to Flip the Court to the Left, their base would never stand for it, any more than the Left’s base would have allowed Biden to take the Court Right.
Biden pointed that out decades before the issue came up, but the political reality was that even then and it’s gotten worse since then.
And yes, I fully agree that this kind of nasty fighting over the Supremes is bad for the country.
The root of all this is Roe’s a**pull. Now that Roe is back in the hands of the states, maybe we’ll see less bitter fighting over SCOTUS in a few decades.Report
It would not have tilted the court left in any meaningful way. Merick Garland and Brett Kavanaugh voted together 93% of the time on the DC circuit. There’d have been a trade of Scalia for Garland which would then have been balanced by a trade of RBG for Kavanaugh or Barrett.Report
Your second argument acknowledges that your first argument is wrong. If Garland was so different than Scalia, then he wouldn’t have been so similar to Kavanaugh once they were on the Supreme Court.Report
I don’t see how. Most decisions are not 5-4 nor do they break down along the lines of nominating party. The most common decisions are unanimous and a significant majority are either unanimous or heavily one-sided without apparent partisan splits.Report
True. Exactly this. The difference between the most liberal and the most conservative SCOTUS members isn’t that much.
Which means 7% is really huge.Report
I’m not being clear, and that’s my fault.
Garland’s appointment would have kept the court on the same kind of trajectory it had been on through the Rehnquist-Roberts era to that point. Characterizing the maintenance of that status quo as flipping the court left is an inaccurate analysis of where it was. And it’s from that fundamentally flawed place that we get where we are today.Report
At the time it was a 5-4 court in favor of the Right. Scalia was either the most Conservative member or the 2nd most (behind Thomas).
Replacing him with Garland would have been a true flip. Instead we got Gorsuch (leaving things the same at 5-4).
Then we had Kavanaugh for Kennedy (Kennedy was Right albeit soft Right, so still 5-4).
Then we had Barrett for Ginsburg (going from 5-4 to 6-3).
Both sides viewed putting Garland on the court as flipping it because it would have flipped it. If we then talk about “the course it was on” then you need to predict the future. Only the Simpsons predicted Trump’s win and RBG was thought to be immortal.Report
McConnell handled the Garland nomination wrong. I’m happy with the results, but it wasn’t the right move.
If I were a senator, I’d happily vote against any non-originalist judge. I used to believe in deferring to the president, but Sotomayor broke me. McConnell was right, though, that the Senate Republicans couldn’t be counted on to vote down Garland.
I hate the violation of standards. I mean, real standards, not like attending the Washington press corps dinner. I also believe in standards like the Supreme Court following the Constitution.Report
If they’d held a vote and rejected him I’d be inclined to just say ‘well I don’t agree with it but that’s the system and the right response is via the ballotbox.’ The affirmative decision not to do what they were sent there for is the aspect I find objectionable.Report
Agreed. Senate standards are clear: nomination, hearings, rape accusation, vote.Report
There’s no constitutional prohibition on false rape accusations.Report
I don’t approve of that either but nevertheless remain unpersuaded that 2 wrongs make a right.Report
It’s basically a Dollar Auction — every norm violation by one side inspires the other side to retaliate and pretend that that will be the end of it, but it rarely is.Report
I said pretty explicitly that there’s no Constitutional prohibition on court packing, so…no. I’m not trying even a little bit to prove that there is.Report
“The rule it would be breaking is the rule of law.”
Your words, not mine. You could have simply noted the direct and honest truth: there are no rules with regards to how many seats are on the court and changing that number breaks no rules. That is an unassailable fact and pretending otherwise in anyway is, again, just BS.Report
If memory serves, McConnell kept the court at 8 seats for 422 days.
9 wasn’t sacred then so why is it now?Report
Report
Congress needs to pass the Legalize Abortion/Build Back Better/Ban Cigarettes/Fund Kinetic Action In Syria Act NOW!Report
Good news!
Report
They will find that they have few if any tools unless they can somehow construe abortion bans as prosecutable civil rights law violations.Report
Gonna oppose it with vibes, as the kids might say.Report
1. This should be an eye-opener to any “savvy” pundit or would-be “savvy” pundit about the radicalism of the Republican Party and the Reactionary Six on the Supreme Court. However, cognitive dissonance and paychecks being what they are, I doubt it will be. The “savvy” just wanna “savvy.” Also remodel their kitchens and that requires those sweet, sweet Republican daddy dollars.
2. Thomas makes it clear that he wants to gut substantive due process.
3. Nothing is certain and even before this decision, there was polling that indicated that the Republicans were going to snatch defeat from the jaws of victory in the Senate via Aiken and MAGAt psychoness.Report
Worth noting that every single alarmist prediction made since 2000 about Republicans has proved true.
Each step was a small incremental move towards authoritarianism, towards a contempt for the rule of law, toward racial exclusion and misognyny.
Now at last they are able to rip off the mask and scream the quiet parts.Report
Also worth noting-
Unpopular laws aren’t unjust simply because they impose a minority vision on the majority.
They are unjust because they require onerous and intrusive methods of enforcement. Think of the drug war, and how that has distorted and warped all the institutions affected.
All the depredations of the drug war- militarized policing, the intrusive surveillance state, no-knock raids, suppression of speech, the entire apparatus of the law enforcement and judicial system bent and crippled to deliver, not justice but the suppression of freedom.Report
Well since they are not Legitimate Americans(TM), suppressing them doesn’t matter does it?
Which reminds me – Koz is amazingly quiet on his side’s victory here. So it Pinky for that matter.Report
Six comments from me, but people generally aren’t raising interesting issues, so I haven’t had much to say. I mean, “yay”, but that doesn’t contribute much to the conversation. And the one time I replied to you so far, you accused me of stirring the pot.Report
The drug war was pretty popular during it’s height in the 1980s and 90s.Report
Pretty popular right now, for some folks:
Cannabis and the Violent Crime Surge
WSJ
June 6,2022
Rising Marijuana Use Presents Secondhand Risks
WSJ
April 20,2022
And of course, San Francisco drug sales on the street is a regular media panic.Report
We’ve been though this on the other blog. Most people do not like visible disorder and San Francisco has a large Asian immigrant population with an especially strong distaste for visible disorder for cultural reasons. As much as the Anglophone left wants this to be different, it isn’t going to be so ever. Telling voters that they are bad evil reactionaries for not liking visible disorder and they need to learn to deal with it while the slow bore solutions work themselves out is a big political loser in electoral politics.Report
I agree, but I think the number of people who identify the Republican Party as the party of order is dwindling with each act of reckless lawlessness they commit.Report
Crazy: Secondhand marijuana smoke presents public health risks.
Reasonable: Secondhand tobacco smoke presents public health risks AND WE NEED TO BAN IT RIGHT NOW BEFORE IT KILLS AGAIN.
Reading the WSJ article on secondhand marijuana smoke, I do get the impression that the author is pushing me towards believing that secondhand marijuana smoke is a problem, but overall it’s pretty balanced and measured in tone. It says that there’s some evidence of harm from secondhand smoke, and that researchers are looking into it, but that the evidence is currently limited and that there’s also some evidence of benefits from cannabis consumption. It mentions some recommendations for safe storage to keep kids and pets from getting into it. There are no calls to roll back or pause legalization, or even to ban smoking it bars, restaurants, or public places, as has been done with tobacco in many places.Report
The violent crime one is actually pretty bad, though. It cites Alex Berenson (though only in reference to an unacknowledged NYT edit he found), more importantly, it doesn’t take the problem of reverse causality seriously. Maybe people inclined towards antisocial behavior are more likely to abuse drugs.
To be fair, this is written at roughly the same level of intellectual rigor that I expect from NYT or WaPo articles about systemic racism.Report
https://twitter.com/katielannan/status/1540352356553990146?s=20&t=yExz8UbbNQzfA4-W-GH_8AReport
So. I know many Catholics elsewhere, and I like them. I feel as though there are many of y’all here whom I like as well. What I’m about to say is about the Church as an organization, not its membership in general.
All six of the Justices who voted for this are Catholic. I had doubts about Clarence Thomas, so I checked. He is, indeed raised Catholic.
I really don’t like the Church as an organization. It is highly authoritarian, claiming God’s authority for itself. It claims infallibility. And now it hopes to impose its vision of morality by law on the United States.
Because there is no other basis for this. The question of whether a fetus has a soul is at the foundation of this. One could just as easily understand it as a part of the woman it is attached to. It is attached physically, and systemically, and cannot exist on its own. This is a matter of religious belief that is now to be enshrined in law.
This is not about free exercise for Catholics. It’s now about free exercise for everyone else.Report
I don’t think the dispute can simply be reduced to religion. The two dissenters from Roe were mainline Protestants: Rehnquist (Evangelical Lutheran Church in America), and White (Episcopalian). I’m not sure whether Gorsuch is high Protestant or Catholic. Sotomayor is Catholic. None of the Justices were selected at random off a street corner somewhere, the majority were appointed by Republican Presidents, the minority by Democratic ones. Jews feature prominently on the Left of the Court currently, but one can find a number of Jewish legal thinkers at Volokh Conspiracy that (I think) don’t / didn’t support Roe.Report
The American Catholic and Evangelical Protestant churches have effectively merged insofar as the culture war is concerned.
Ironically, it isn’t the Catholic hierarchy that appears to be driving so much as the self appointed laity.Report
Not true at all. The Catholic Church in the US is pro-immigration and strongly supportive of the safety net. The Evangelical movement in the US is currently fragmenting along social issues, but for some reason outsiders haven’t noticed.
As to Doctor Jay’s comment, the mainline Protestants aren’t part of the national conversation any more. They’ve lost their intellectual tradition. The evangelical side of Protestantism has never invested much in that. If you’re talking issues in the US, you’re talking to a Catholic, a Jew, or an atheist.Report
The American Church doesn’t speak or act with one voice.
The Catholic laity is almost evenly split between Republicans and Democrats.
This is why people say the culture war has warped and distorted religious voters.
The coalition needs of the anti-abortion fight has caused the laity to abandon any parts of the Church’s teaching that didn’t align with the political necessity of the anti-abortion party.Report
OK, you said that the American Catholic Church was indistinguishable from Evangelicals on social issues. When I disagreed, you said that the American Catholic Church doesn’t speak with one voice. This doesn’t look like analysis, but more like you’re angry and want to land a punch, so you’re flailing.Report
The thing is, the Court didn’t ban abortion. They correctly ruled that under the US Constitution, abortion is, by default, a state issue. The Court’s job is to uphold the Constitution, not to right all wrongs. The blame for abortion bans falls squarely on the state governments that passed them, and the voters who elected them. Not being a Christian, I have no dog in this fight, but to the best of my knowledge, these are overwhelmingly Protestants, mostly (or at least disproportionately) evangelical.Report
Dr. Hanley over on FB had a chart from a poll that showed a breakdown of support for bans by demographic.
White males overwhelmingly support abortion.
Evangelical christians overwhelmingly support a ban.
Seems the problem is a religious faction has gained an outsized amount of power.
https://m.facebook.com/photo.php/?fbid=2988117691478897
(Not sure if that link will work)Report
Whether their influence is disproportionate depends on how well represented they are in states that are banning abortion. It’s entirely possible for a majority to support abortion bans in certain states even while a majority oppose them nationwide.Report
I’m not sure whether Gorsuch is high Protestant or Catholic.
Neither is he.Report
83 District Attorneys around the country have pledged to use their discretion to refuse to enforce any criminalization of abortion.
Happily my DA, George Gascon is on the list.
Is yours?
https://fairandjustprosecution.org/wp-content/uploads/2022/06/FJP-Post-Dobbs-Abortion-Joint-Statement-Press-Release.pdfReport
Where we are heading: https://uploads.disquscdn.com/images/1afaaf308ab101b2617668659e64773595a845487e9d0027371835129cdc9afd.pngReport
Just to echo my previous comments, I’d say the vast majority of Republicans would find her comments unpleasant and not repeat them.
But, people like her are still welcome in the conservative movement, (and this is the important part) and her comments would not prevent her from filling a policy-making position. And anyone who wanted her removed from a position of power will be accused of “cancelling”.Report
Maybe but this is very close to her openly telling people, it is the fault of the (((ewws))) that the family farm is gone and your daughter went to the big city and is now dating another girl. Plus look at the unhinged rant above and how it is framed. A 27 percent crazification factor in a country of 330 million people is still a lot of people.Report
That is totally deranged.Report
Where we are heading part II, this is called saying the quiet parts very loudly: https://www.washingtonpost.com/nation/2022/06/26/mary-miller-white-life-trump-rally/Report
When I first heard this I thought it was fake, but she’s since claimed she misread the printed speech. Uh huh.Report
What excuse did all the people in the crowd who heard it and cheered, give?Report
CBS News poll: Americans react to overturning of Roe v. Wade — most disapprove, call it step backward
https://www.cbsnews.com/news/americans-react-to-roe-v-wade-overturn-opinion-poll-2022-06-26/
The American public is rendering its initial judgment on the overturning of Roe v. Wade, and most disapprove of the ruling, including two-thirds of women who disapprove.
By more than a 20-point margin, Americans call it a step backward rather than forward for America. And women, by more than three to one, think the ruling will make women’s lives worse rather than better.
Those who approve — and in particular, the three-fourths of conservatives who do — say they feel both hopeful and happy.
…
While the overturning of Roe has elicited strong feelings, it’s not an issue most Americans say has made them any more or less likely to vote in the midterms this year. But for those who report a change in motivation right now, Democrats are more than twice as likely as Republicans to say the Supreme Court’s decision will make them more likely to vote.
And more Democrats are motivated now by the issue than they were before the decision. Fifty percent of Democrats report this decision will make them more likely to vote, up from 40% last month, when overturning Roe was a possibility, but not yet a reality.
Time will tell how this will play out.Report
Might as well make a prediction for the coming week.
The opinion in West Virginia v. EPA will be written by the Chief Justice and will restrict but not overturn Chevron. Further, that climate change is Congress’s problem until such time that they specifically delegate it, with detailed guidance, to the EPA and/or states. Effectively, they will ensure that the US takes no actions on climate change. (In polls, Americans say by a 2:1 margin that the government is not doing enough about climate change.) Gorsuch will write a concurrence much like Thomas’s in the abortion case: that there are a whole lot of other places where agency rule-writing should be reined in, and rules tossed.Report
That sounds very Constitutional.Report
Under the legal principle of “Quia sic dicere”.Report
I love how the court likes to take issues that have been explicitly considered, and passed into law, and say ‘Now that this is impossible to pass again under the current makeup of Congress, pass it again, but very slightly differently.’.
It’s a fun way for conservatives to strike down laws they know they’d get flack for striking down, or even _couldn’t_ strike down, but they can now say the _court_ did it and, just, somehow, the legislature did not ever reissue the laws with slight changes.
They already did it with the Voting Rights Act, and they are indeed going to do it again with the EPA.
For the record: The purpose of the EPA was to depoliticize the environment, it was a deliberate and conscious decision by the legislative branch to take control over environmental protections away from itself and, to a lesser extent, the executive branch, putting them in the hands of a bunch of scientists constrained within a bunch of bureaucrats. They are already an extremely slow and plodding agency, on purpose, and supposed to be completely insulated from politics, operating entirely off the science.
You might disagree with this, but that is the choice that Congress made, and if conservatives wish to unmake it, then CONGRESS needs to vote to unmake it. …oh, what’s that? Conservatives doesn’t have the votes to do that? Well, yeah.
Saying ‘Now do it again, Congress! But use different verbiage!’ is literally just a way to removing power from it in circumstances where there is not the political support to remove it…but also not the political support to add that power back.Report
“I love how the court likes to take issues that have been explicitly considered…”
Yes. I love the concept of judicial review too. It wasn’t explicit in the Constitution but it’s proven to be valuable. Without a supreme executive there’s no way to have a uniform interpretation of laws.
“It’s a fun way for conservatives to strike down laws…”
It’s the only way for anyone to strike down laws, as opposed to vetoing them or reversing them. I think it’d be fun to personally strike down laws, but alas the Constitution doesn’t give me that ability.
The one thing you didn’t comment on is whether the Court’s reasoning in Chevron or the anticipated reasoning in West Virginia v EPA is sound.Report
I have no problem with judical review. I have no problem with laws being declared unconstitional.
What I have a problem with is the courts saying ‘This thing that is happening is indeed constitutional, but the current law, despite having existed for quite some time and being understood to do this thing, and that being the apparent interpretation at the point it was passed…somehow doesn’t mean that anymore and the government must now pass _another_ law.’.
West Virginia v EPA, assuming it goes towards West Virginia, would be absurdly motivated reasoning. Greenhouse gases are clearly within the scope of the EPA as it was created, and the court literally decided that back in 2007. And if Congress wanted that power back, it has has almost a decade and a half to take it back. It has not.
As far as I am aware, there is no argument as to whether or not the Federal government, as a whole, can do what it is doing here…and if there is, I’m fine with _that_ being decided. I mean, I think it clearly is within the scope of the Federal government, but at least that is a reasonable discussion.
What I’m not fine is that conservatives can just randomly break parts of the government by yelling about regulatory agencies doing stuff they’ve always done, things tata courts have literally explicitly said they should be doing based on Federal law, and courts will just say ‘Okay, well, Congress can just delegate that more clearly’ (With the implicit premise that it will _never_ be clear enough, because it _is_ a delegation and at _some_ point decision-making is required by the agency.) resulting in laws just basically disappearing off the books because conservatives will never bother to ‘fix’ things that were not broken to start with.Report
Oh, and somehow it’s only ‘things liberals want to do’ delegations of powers that get challenged this way.
I think that Congress has delegated war-making powers to the US president in actually unconstitutional ways (Unlike the EPA thing which, again, the courts seem to think could be delegated, just maybe hasn’t been delegated enough.), and I think that the US president has, in turn, expanded those powers in ways it is very unclear he has been given the authorization to do so. And these powers keep expanding.
Somehow, the courts seem _fine_ with that.Report
For the Voting Rights Act (your example), the problem was the original law decided who was naughty based on then current data, which the law had no way to update.
50+ years later that morphed into “your grandfather did something so you are assumed guilty”.
Facts change and we find out that slogans mean something different in reality than in theory.
Oh, and when the Court ruled, the VRA had just been renewed with overwhelming support.Report
The situation was not ‘Your grandfather did something so you are assumed guilty’, the situation was ‘These jurisdictions are under probation until they stop trying to break the law’. And only a few of them had managed to stop breaking the law long enough to get out from under probation.
But I point out the argument used by the court wasn’t the VRA ‘unfair’, it was, and I quote, ‘based on 40-year-old facts having no logical relationship to the present day’
Not _unconstititonal_. Not an equal protection issue.
Just that the law is outdated and not based in current facts.
This is what I mean by: The Supreme Court has started throwing out laws it accepts are constitutional, but it just vaguely doesn’t like, with the premise of ‘Congress should pass this law better’, knowing full well that will not happen.
Since the court just decided that the right of privacy was not found in the constitution, I think a fun question would be: Where is the court’s right to strike down _old, perhaps obsolete laws_?
Or maybe we should go with this. I mean, I’m sure excited to see abortion laws that are pre-Roe, all of which are obviously ‘outdated’ in the sense they literally were dead letter for 50+ years and yet no one changed them, being struck down on the grounds _they_ are outdated and rely on old incorrect facts.
Oh, wait, that’s not going to happen.Report
Wait, you realize that no one said Roe was struck down on the basis of incorrect facts, right?Report
When Congress rewrote the law to use current evidence, they found that some of the old states on the list no longer should be on it and some others that hadn’t been on it should now be. Unsurprisingly considering we’re basing guilty or innocence on the behavior of their grandparents, people and cultures had changed. Granted, not always.
Not the law itself, that was fine, it was the naughty list that was never updated. disparate treatment of the states is “based on 40 year-old facts having no logical relationship to the present day”, which makes the formula unresponsive to current needs.
So SCOTUS should ignore that the gov’s official policy is to treat the innocent guilty and the guilty innocent based on their grandparents behavior? Is that a concept we can use in other situations?Report
Excellent analysis from a pro-choice, anti-misinformation perspective on, of all places, Reddit.
On a separate note, I have a question for those who by believe that it was the Roberts Court, and not the Burger Court, that disregarded the law and BSed their way to a blatantly ideological decision on the issue of abortion: If they’re just making stuff up, why stop here? The Equal Protection Clause is right there. All they had to do was rule that allowing abortion is denying fetuses equal protection of the law, and boom! Abortion is banned throughout the country.
It’s a bit of a stretch from an original intent perspective, less so from a textualist perspective, but not nearly as much of a stretch as the myriad rulings involving commerce clause abuse.Report
No, not Reddit! I refuse to go! Talk about establishing an ugly precedent.Report
(By the way, yes, the article was a good review.)Report
That is a way more interesting read then one normally finds on reddit. And I have to admit I hadn’t read Alito’s opinion as using substantive due process to toss a substantive due process argument.Report