Blogger Robert Hubbell brings clarity and reason to the abortion debate. The Court’s decision overturns a precedent that had been in place for 49 years. Both Justices Gorsuch and Kavanaugh pledged to Senators that they would not overturn roe. They lied. What now?
Hubbell writes:
There is much to discuss after the Supreme Court’s brutal ruling in Dobbs v Jackson Women’s Health, but the most important question is, “What are we going to do about it?” We have several effective paths forward and must pursue all simultaneously.
First, Alito claims he is returning the decision of reproductive freedom “to the people and their state representatives.” Let’s ignore (for the moment) Alito’s smoldering bad faith and thinly veiled contempt for the rights of women. We need to flip state legislatures to repeal antiabortion legislation and capture statewide executive offices that can veto legislation abortion bans. While this path is not an answer in every state, it can make a difference in states where the GOP margin of control is thin.
Second, we must demand that Congress pass legislation codifying Roe. That means gaining a 54-seat majority in the Senate, carving out an exception to the filibuster, and retaining control of the House. Will national legislation be challenged? Sure! Will the Supreme Court invalidate it? Possibly, but it is worth the effort.
Will national legislation be challenged? Sure! Will the Supreme Court invalidate it? Possibly, but it is worth the effort.
Third, we must break the Supreme Court. Democrats should expand the Court to thirteen justices. This path also requires holding the House, gaining a 54-seat majority in the Senate, and carving out an exception to the filibuster. Expanding the Court requires only a majority vote in both chambers of Congress and signing of the bill by the president. Will Republicans expand the Court to nineteen? Maybe. But what Republicans might do in the future shouldn’t deter us now. Will tit-for-tat expansions of the Court undermine its legitimacy? It is far too late for that.
Fourth, reproductive choice must be on the ballot in every race. Republicans have finally achieved what they wanted—no right to abortion and no exceptions for rape or incest. We must make every Republican running for every office in the land own the GOP position on abortion in its ugliest manifestation. The outcome in Dobbs is opposed by a strong majority of Americans and should provide a basis for a sweeping Democratic victory in 2022.
Finally, the right to same-sex marriage, same-sex relations, contraception, and other privacy-based rights must be on the ballot in every race. Justice Clarence Thomas’s concurrence declared war on those rights and invited reactionary legislatures to pass laws to serve as test cases. We would be foolish to assume that the other members of the reactionary majority will not follow his lead, given a chance.
None of these approaches will be easy or provide a complete answer. Readers have already sent emails that preemptively identify the problems with some of these approaches and dismiss their chances of success. But these are the paths available to us. We can choose to pursue them or do nothing. We must pursue them relentlessly until we have regained control of every branch of government, including the Supreme Court. Only then can we reverse the ruling in Dobbs and preserve other liberties grounded in the same right to privacy that supported reproductive rights for a half-century.
We are the majority, and American democracy presumes majority rule while protecting the rights of the minority. Republicans are attempting to reverse that presumption by seeking to impose permanent minority rule with no protection for the rights of the majority. That cannot stand. It will not stand. But it is up to us to restore the natural balance to democracy. It is not enough that we vote with greater passion or conviction. We must motivate those who did not believe this day would not come or who were not paying attention. We can do that—if we act with greater passion, conviction, and urgency.
The ruling.
Alito’s final decision is a judicial insult. In a single blow, he has demoted American women to second-class citizens. It is filled with venom and contempt in addressing a contentious issue on which people of good faith can disagree. He refers to physicians as abortionists when they seek to save a woman’s life or terminate a pregnancy forced on a teenager by a rapist. He misrepresents, minimizes, and dismisses the burdens and risks of pregnancy. He substitutes his Catholic dogma for judicial analysis.
Alito’s final version of his opinion changed little from the draft leaked last month. As such, it retains the dishonesty and intellectual sophistry of the “deeply rooted tradition” analysis contained in the draft—an analysis that deliberately misrepresents the American tradition relating to abortion. See Aaron Tang in The Los Angeles Times, Op-Ed: The Supreme Court flunks abortion history.
But most ominously, Alito’s “deeply rooted” analysis signals Alito’s intent to attack other privacy-based rights, such as same-sex marriage. Alito dissented in the Court’s decision recognizing same-sex marriage, Obergefell v. Hodges. Alito wrote in Obergefell, as follows:
To prevent five unelected Justices from imposing their personal vision of liberty upon the American people, the Court has held that “liberty” under the Due Process Clause should be understood to protect only those rights that are ‘deeply rooted in this Nation’ s history and tradition.’ And it is beyond dispute that the right to same-sex marriage is not among those rights.
There it is: Alito’s analysis in overruling Roe v. Wade does not stop with reproductive rights. It reaches to same-sex marriage. He said so in his dissent in Obergefell. And Justice Thomas made that explicit in his concurrence in Dobbs:
In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.
Griswold recognized the right to use contraceptives of choice; Lawrence recognized the right to enter into a same-sex relationships; and Obergefell recognized the right of same-sex couples to marry. Justice Thomas notably omitted a right based on “substantive due process precedents”—the right of members of different “races” to marry, a right first granted in Loving v. Virginia in 1967. If the Court reverses Loving v. Virginia, Thomas’s marriage to Ginny Thomas would be illegal in some states.
For a longer discussion of the threat to other rights, see Mark Joseph Stern in Slate, The Supreme Court decision overruling Roe v. Wade puts marriage equality in immediate jeopardy.
It will take weeks to understand the implications of Justice Alito’s decision, but a good place to start is with Ian Millhiser’s analysis in Vox, The Roe v. Wade abortion decision, explained.
Finally, for a discussion of self-inflicted damage to the Court’s legitimacy, see Dahlia Lithwick, in Slate, Roe v. Wade overturned: The Supreme Court will pay for abortion decision.
The corruption and illegitimacy of the Supreme Court.
As currently constituted, the Supreme Court is illegitimate and corrupt. It is illegitimate because two justices appointed by Trump resulted from norm-busting “rules” made up by Mitch McConnell on the fly. Gorsuch sits in a seat stolen from an Obama appointee, and Barrett sits in a seat that belonged to the incoming president.
The Court is corrupt because Gorsuch, Kavanaugh, and Barrett lied to the Senate about their pre-determined intent to overrule Roe v. Wade. And it is corrupt because Justice Thomas has refused to recuse himself from cases in which his wife assisted in an attempted coup.
The trust of the American public in the Court has plummeted to an all-time low of 25%. It will decline further if the January 6th Committee proves that Ginny Thomas funneled information about Court deliberations to John Eastman. It will fall further if the Committee demonstrates that Justice Thomas knew of and condoned his wife’s insurrectionist activities.
Jennifer Rubin succinctly summarizes the death blow to the Court’s legitimacy in her column in WaPo, The Supreme Court eviscerates abortion rights and its own legitimacy. Per Rubin,
The hypocrisy and intellectual dishonesty of the court’s right-wing justices lead to the conclusion that they have simply appointed themselves super-legislators free to impose a view of the United States as a White, Christian and male-dominated society despite the values, beliefs and choices of a majority of 330 million modern Americans.
The court’s decision may result in women’s deaths. But it has certainly killed off what is left of the court’s credibility. And for that, there is no solution in sight.
Concluding Thoughts.
On a day like today, it does not feel right to end on an optimistic note. Rather, we should acknowledge the anger, frustration, fear, and grief that tens of millions of women in America are feeling after the ruling. There will be a time to rally and rejoin the fight for the dignity and equality of women—a fight we will win.
But today, we should acknowledge what women have lost and give them the time and space to absorb and recover from a once-in-a-generation shock. As they do, everyone in their lives should let them know we are at their side every step of the way. Walk along in silence and listen. Nothing can be “fixed” today, but we can begin the long journey back in the coming days.
Bravo, Mr. Hubbell!!!!
“It is far too late for that.”
Yes. Exactly right.
This decision is a template, a boilerplate. It is meant to be. It is the first shot of what this Extreme Court intends to be a revolution.
Well, OK then. Game on.
Above all, the wall between religion and government must be restored. The Supreme Court is now broken — Trump and his Cult have broken it along with the other pillars of democracy they tore down — it cannot remain a Supreme Church, the missionary arm of one small sect of one religion.
What leads you to believe that failing to identify the sect is in the best interest of the nation?
I don’t think Trump installed Roberts.Or Alito. He didn’t invent bowing-down to the Federalist Society. We need to look a little deeper under the rock.
George HW Bush picked Thomas.
George W Bush picked Alito and Roberts..
Trump picked Gorsuch, Kavanaugh, and Barrett.
Camel, back, you do the math …
Slight expansion of Diane’s comment. John Danforth recommended Thomas to Bush and endorsed Hawley before backtracking after Jan 6. Don’t let the “respectable” GOP members fool you. They are the same.
Trump’s lawyers who filled the courts with conservatives were Don McGahn (University of Notre Dame) and Pat Cipollone (Covington Catholic H.S. and Fordham Catholic University), The law firm that hired McGahn after he left Trump, was selected by the Archdiocese of Washington to represent their interests in opposition to the pandemic restrictions on religious institutions (2020). Leonard Leo (9 kids) received an award from a Catholic organization for his work with the Federalist Society. One of Cipollone’s 8 kids worked for Laura Ingraham’s show. Laura credits her conversion to Catholicism to Pat Cipollone.
The overturn of Roe can’t be divorced from conservative Catholic political power.
Thank you, Jon. Precisely.
The Supreme Court was broken long before Trump.
They all but installed Bush the Dumbya in 2000, for Lard’s sake.
People need to wake up and see the institution for what is , not for what they want it to be.
No matter what your opinion of Alan Derschowitz might be, read his book Supreme Injustice: How the High Court Hijacked Election 2000″, which makes it clear that the Supreme Court has been inflicted with a (most likely) terminal illness for two decades at the very least.
If there is a woman in your life who needs hospital care and there is any possibility that she is still within a child bearing age, tell her not to go to a Catholic hospital.
An internet search of Catholic hospital ectopic pregnancy will explain why.
From what I can determine, the number of Supreme Court justices was not specified in the Constitution. Instead, it finally became ‘tradition’ after 1869, when one justice represented a little over 4 million people. However, our ‘originalists’ in today’s court surely are not averse to ignoring ‘tradition’ and going back to the original document (watch for slavery).
If the Supreme Court had expanded at the same rate as the population, we would now have about 80 members of the Court, and it would be far more reflective of our diverse population. So, let’s expand to 80 (instead of 13). And, of course, let’s make sure that the ‘original’ separation between Church and State be used to exclude anyone who would impose particular religious beliefs on the entire population.
Finally, there needs to be a way to expel Justices who lie during their Senate confirmation, and strict rules that Justices MUST recuse themselves in cases that involve a personal benefit or loss for their families. Not doing so should bring immediate expulsion.
That Thomas did not recuse himself from cases brought by Trump’s goons would be criminal if we had, in fact, a justice system, instead of, as SomeDAM calls it, a “Just Us” system.
Please note that I have since made a modification to that
Just- asses”
I’m sure it’s probably not original, but it certainly fits the Current majority
To be perfectly clear, our “Just-us” system is headed by “Just-asses”
Speaking of asses, Senator John Cornyn just tweeted in response to Obama’s comment about Dobbs, “Now do Plessy vs Ferguson/Brown vs Borad of Education.”
I wish I were making this up.
The Repugnican Party is now the party of extremists.
The Republican party is beginning to make the Taliban look moderate.
The whole idea of “judicial review” (ruling laws unconstitutional) upon which the current Supreme Majority are now gutting everything (right and right) in sight also does not exist in the Constitution but was created out of whole cloth by Chief Just us Marshall in 1803.
If these lying dissemblers ..I mean Just-asses actually believed in Original intent, they would have nowhere near the almost absolute power they now hold to effectively dictate what millions of women can and cannot do with their own bodies.
I don’t think it is any exaggeration to say that the Supreme Court is completely out of control and has little if anything in common with its original limited role as the head of the court system.
True about Marbury v. Madison, but I’ve never understood how a Supreme Court could function if it didn’t have the power to adjudicate disputes about whether laws are constitutional.
If the current majority actually subscribe to original intent (particularly the current interpretation that if it’s not explicitly written in the Constitution, it is not Constitutional ) they will relinquish that power, which, by and large has been inconsistently applied (at best) and oft abused throughout much of the Supreme Court’s history , at any rate.
Maybe a statute of limitations on judicial review would be workable.
Precisely what that period is would have to be determined by Congress, but surely if a law has withstood challenge for half a century it should become off limits to judicial review and what is effectively at that point arbitrary overturn.
At least that would prevent a bunch of partisan hacks from overturning a law like Roe that has become part of the fabric of our society and upon which people plan their very lives in many cases.
Of course, that is supposed to be the purpose of stare decisis but just depending on the “respect” of Supreme Court Justices and nominees for that principle (on their assurances that “yes, I respect that” during confirmation hearings, for example) is clearly not working.
Even if people were honest in supporting it (which they are NOT, in many cases where they claim to support it) the principle is so poorly defined as to be utterly useless in practice.
And even in cases where “established precedent” is fairly clear, there is no guarantee that an individual justice will follow it because they are not bound by law to do so (and anything they said in their confirmation hearing is meaningless from a practical standpoint — to say nothing of the fact that these folks are usually very evasive in the way they answer questions)
I take back what I said about 50 years being sufficient because Plessy v Ferguson stood for over 50 years before it was overturned.
So statute of limitations probably would not work.
Then again, if the original Plessy decision had not been made law, the Court would not have had to later overturn it.
The arbitrariness of some of these decisions is reason to question the system.
SD(H)P, just adding my two cents here because I spent a lot of time in my undergraduate years and when I was teaching on Marbury and feel like this is one of the few things I actually understand, or at least have an informed opinion. And then I got to live it for a little bit. While it could easily be argued that you are technically correct about characterizing the decision “created out of whole cloth”, it’s a very technical view, not one, I think grounded in what the opinion was about. It’s kind of like focusing on one scene of a three act play, if you will.
Remember the facts of the case are pretty straightforward. Marbury, a Federalist appointed to the federal bench in a flurry of last minute signings by John Adams, demanded to have his position after the Jefferson administration decided not to grant it. When he went to court to seek redress and it reached the Supreme Court, it is vital to remember the context of the time and what and how it was decided and has been, until recently, a bedrock principle of American governing.
The United States was a young nation, one unsure of its continued existence by the time this case reached Marshall’s Court. There was not only a wrangling of factions in the political arena, within the structure of the federal government, it was still very much in doubt what role each branch would play in governing the nation, which might be dominant. Just a few years before, Washington warned about factions in government in his farewell address. At that time, the fight was between the executive and legislative branches. Although the judiciary was envisioned as a coequal branch of government by the Framers, they pretty much left it up to Congress and president to figure out its role, which was relatively minor until the Marbury decision.
Marshall saw the case as a vehicle to assert judicial authority while others thought as a Federalist, his potential ruling in favor of Marbury would politicize and further marginalize the role of the judiciary. In a sense, Marshall’s reading of the law was the first real example of the Court inferring a right or duty of the Framers’ intent. The fact that it was enforced without the use of an army and that all involved accepted the decision was essential to establishing the Court as a legitimate and accepted source of political judgment and power.
Understanding the seminal importance of the Marbury decision on American jurisprudence, it makes Thomas’s concurrence to Alito’s opinion, “Substantive due process conflicts with that textual command and has harmed our country in many ways. Accordingly, we should eliminate it from our jurisprudence at the earliest opportunity.” A logical thread connects the concepts behind judicial review and substantive due process, which make Thomas’s view even more stark. Whereas Marshall’s opinion set the foundation for a jurisprudence that was more responsive to each generation while remaining connected to the Framer’s intent. By eliminating the concept of substantive due process, the Alito/Thomas majority, that foundation is pulverized. The law will be whatever those in power say it is as well as whatever behavior they decide is discretionary for whoever is exercising it. Things like sentencing guidelines, professional training, the very notion of habeas corpus (!!!!), and any other procedure will now be ad hoc judgments based on winners and losers rather than judicial consistency.
In essence, they are arguing that there are no judicial underpinnings based on precedent of selective issues. This flies in the face of the documented views of the Framers that the Constitution is a living document not chained to any one era. Even Ulysses Grant observed, more than 70 years after Marbury that “The framers were wise in their generation and wanted to do the very best to secure their own liberty and independence, and that also of their descendants to the latest days. It is preposterous to suppose that the people of one generation can lay down the best and only rules of government for all who are to come after them, and under unforeseen contingencies.” Judicial review is not a relic of the past. It is the essence of our legal system and that’s why reactionaries hate it.
One more comment on judicial review: Just as the Framers never envisioned an individual like the Idiot ever becoming president and having large swaths of elected officials give up on constitutional history so quickly. The same could be said about the Judiciary. The idea of the current majority and how it disregards all legal decorum is something the Framers (and to be honest, none of us until the past 30 years) was unimaginable. As many contingencies as they considered, these were two that haven’t been on the radar screen until this century.
Greg, thanks for the background.
But unfortunately, it doesn’t change anything from a practical standpoint because unless one uses judicial review judiciously (based on an honest interpretation of the Constitution and relevant laws), it can (potentially) be used to produce any outcome one desires.
That is precisely what we are now seeing where the majority are essentially fitting the legal interpretation to their (religious) ideology.
I think a lot of what we have seen recently are indications that there are a lot of very serious flaws in the Constitution — maybe even fatal ones.
Saying that “no one could have foreseen that” doesn’t make the flaws go away or even make them any less serious.
In my opinion, a Court that has the power to interpret laws any way they wish — which is basically what judicial review opens the door to — simply has too much power.
I certainly don’t know what the solution is but I think something quite obviously has to be done to ensure that no Court (no matter how corrupt and ideologically motivated) can again do what this Court just did.
Without restrictions, judicial review (laws fit to the Constitution) can easily become ideological review(laws fit to an ideology)
The Constitution was (supposedly) designed specifically to prevent any one individual (or relatively small group of individuals) from gaining too much power.
If you assume that “people will never behave in a way to subvert the process”, then you have already undermined your design.
Making such an assumption is a very serious flaw, not only with the Supreme Court, but also with the President. The success of the impeachment and conviction process depends on the assumption that a significant fraction the Senate not be effectively in the pocket of the President, but this Senate demonstrates beyond any doubt that that assumption need not be true. That’s a serious flaw and it remains to be seen if it will turn out to be fatal.
What it comes down to is that you must assume that people WILL behave in a manner to try to subvert the system and come up with a design that prevents them from running roughshod even under the worst case scenario.
The Framers of the Constitution might have tried (and history books tell us that that is precisely what they did and that ” the design is brilliant”) but have my doubts.
These flaws are not going away on their own and the worst part is, the people who would subvert the system recognize the flaws and are already exploiting them.
I don’t think most people have any clue just how close we just came to have a dictator for life.
If it had not been for a very few individuals in Trump’s administration who refused to go along with his plan, it would have been curtains.
The fact that that did not happen depended completely on the character of the individuals who stood in Trump’s way.
It wasn’t the Constitution that prevented it, that’s for certain.
The Framers — and we — dodged a bullet.
Next time, we probably won’t be so lucky.
I gitcha, SD(H)P. I understand and sympathize with your views, and you may well be the correct one considering contemporary times. But for better and a lot of worse, the Constitution has held together, I’d say up until Bush v. Gore. Ever since then, we’ve seen more than two hundred years of judicial history shunned and mangled in less than two decades.
As a general rule, I don’t support term limits for representatives. In short, I think it takes the burden of voters to monitor their government(s). Obviously we have failed that miserably, so I get the support for term limits. But I also fear losing institutional history. It’s that difficult balance of evolving tradition and corruption fed by time and experience.
And that I think brings us to our final, slight disagreement. Until recent years–I mentioned this on another post a short time ago–American humans did an imperfect, but passable job of maintaining respect for self-governing. Whether one agrees with this or not, no matter how inequitable it may be, it is inarguable that we are living the in the most prosperous, most potential-filled, and comfortable nation in the history of mankind. But we are now more aware of how fragile our society actually is. The faith most of us had in the inevitability that no matter how bad it got, Americans’ constitutional moorings would eventually right the ship of state. We now know that was as delusional as the idea of American exceptionalism.
Here’s an analogy
Consider an airplane design that works fabulously 99.9% of the time.
Now suppose it contains a flaw that can potentially cause the plane to crash, but only in that 0.1% of the time under a very specific, very unusual set of circumstances.
Does one ignore the flaw and hope the circumstances never arise?
Boeing did that with their 737Max with predictable outcomes (2 crashes and several hundred dead)
That’s how I view judicial review, only I’d have to say that with any given Court, the chance of a crash (use of judicial review for some reason other than that for which it was intended– ideological goals, power etc) is significantly greater than 0.1%
And for this Supreme Court, we know it’s virtually 100%.
You know, juries must reach a consensus.
Why not the Supreme Court?
Surely, if a law or previous Supreme Court ruling is truly unConstitutional, all 9 members of the Court (who are all supposed to be experts on the Constitution and the relevant laws) ought to be able to reach that conclusion.
If they can’t ALL agree, it is sure sign that they are basing their decision on something other than the Constitution and facts of the case and they should certainly not be overturning decisions that have withstood fifty years of challenges if they can’t ALL agree, in any case.
And if they could not reach consensus, the lower court ruling would simply stand.
Not only would this make overturns less likely except in the cases where they are actually legitimate, it would put a significant damper on the ideological infighting between the justices and obviate the need to change the number of justices.
This is so obvious that surely someone must have considered and written at great length about it.
The advantages are clear.
Why not do this?
I am sure it would take longer to reach decisions if they had to be unanimous, but I actually think that would be a good thing.
And if the members have to stay cloistered like a jury until they reach a verdict, it would be an added incentive to work together.
It would also force them to reach common ground and a common opinion instead of the current system of majority rule, winner take all, with the loser getting the booby prize of getting to write a dissenting opinion.
Consensus ruling would also eliminate what is undoubtedly the most absurd aspect of the current court: the pretense that it is operating under democratic rules. Just because a majority of justices vote a certain way doesn’t mean the process is “democratic”.
And the majority on the Supreme Court certainly does not represent the majority of the US population by any stretch of the imagination.
Consensus ruling would be a gigantic win for conservatism. It would mean that the U.S. Supreme Court would be powerless to do anything about state laws and practices that violate the U.S. constitution as long as there were just one holdout vote on the Supreme Court. It would also place immense power in the hands of lower federal courts, and lead to regionalism where one’s constitutional rights were completely different depending on which area of the country one was in. Federal appellate courts would become mini-Supreme Courts that governed in parallel over their respective regions.
Consensus ruling would have meant Roe v. Wade never would have existed. There never would have been such a thing as a constitutional right to abortion. States (subject only to federal appellate court oversight) would have been free for the last 50 years to determine their own abortion laws without regard to the U.S. constitution.
Other things that would not exist if consensus ruling were the norm: the idea of “one man, one vote” (Wesberry v. Sanders, Baker v. Carr, Reynolds v. Sims); the idea of a “right to privacy” (Griswold), which was the basis for cases finding a right to contraception, a right to have homosexual sex, a right to marry someone of the same sex, etc.); the exclusionary rule that says evidence obtained in violation of the constitution cannot be used in criminal proceedings (Mapp v. Ohio); Miranda warnings (Miranda v. Arizona); and a long list of other rights that did not exist until the Warren Court said they existed. (You get the idea—any non-unanimous Supreme Court decision would never become law.)
You e convinced me that consensus decisions wouldn’t work.
But that brings us back to the central issue that the Supreme Court has too much power — power never granted by the Constitution — to unilaterally decide the constitutionality of laws passed by states.
If the Supreme Court must have the power to decide the Constitutionality of laws (if there is no other way), why isn’t that power stated explicitly in the Constitution? Surely the Framers would not have overlooked something that was absolutely critical.
You simply assume that there is no way that could be accomplished unless it was done by the Supreme Court.
But there is certainly no reason that Congress and the Justice department could not do that and I suspect that is precisely what the Framers intended — NOT that the Supreme Court do it.
And with regard specifically to the abortion issue, Congress could have long ago made it moot by passing a law legalizing abortion nationwide, so to imply that there would never have been a right to abortion without the Supreme Court decision is simply not true.
“You simply assume that there is no way that could be accomplished unless it was done by the Supreme Court.
But there is certainly no reason that Congress and the Justice department could not do that and I suspect that is precisely what the Framers intended — NOT that the Supreme Court do it.”
I’m not sure what the framers intended — I guess I could go look at the history and maybe there are clues there — but I just can’t imagine any other way to do it that would maintain the separation of powers. It makes sense to me that the judicial branch is best equipped to make decisions about the constitutionality of actions by the other two branches law. And like you suggest later in your comment, judicial review doesn’t leave the legislative branch without a check on the Supreme Court. Congress can pass laws, including laws about the Court’s composition and jurisdiction.
“And with regard specifically to the abortion issue, Congress could have long ago made it moot by passing a law legalizing abortion nationwide, so to imply that there would never have been a right to abortion without the Supreme Court decision is simply not true.”
In theory this is true. Did the votes exist in Congress 50 years ago to legalize abortion nationwide? I don’t know the answer to that. If the answer is yes, then maybe that would have been the better course of action. But again that law could be flipped as soon as the votes to flip it materialized.
In the big picture, I think we have two huge problems. The first one is that we have a bill of rights that is very much open to legitimate disagreements (and illegitimate ones, too) about its interpretation. The second one is that our founding document created the upper, dominant house of Congress (the Senate) as a kind of anti-democratic counter-weight. Imagine, for example, if it was the lower house of Congress that had the power to confirm Supreme Court justices. Things would look very different.
Both of these two problems are here to stay. And there are other big structural problems that probably are here to stay, such as the winner-take-all nature of elections, and the two-party system.
The U.S., like a lot of other Western countries, has a citizenry with a wide range of politics. If you looked at the hypothetical “average” American, you’d probably assume the nation’s politics would be more left/liberal than they are. But the structure of our national government is very conservative (in the sense of slow, incremental, resistant to sweeping changes by anything more than the barest of majorities).
One thing is actually hilarious about the Majority’s newest take on original intent.
I know they have no intention of applying it consistently, but IF they actually did uniformly apply the idea that a right (and presumably power) that is not expressly enumerated in the Constitution does not exist and hence that a supreme Court ruling that granted such a right or power was unconstitutional, they would have to declare Marbury v Madison unconstitutional.
And of course. If they did that, their own power to declare laws and rulings unConstitutional would also cease to exist — poof!
But that would mean willingly ceding power and it ain’t gonna happen.
Congress is going to have to cut them down a few notches if we are to have any hope of saving our democracy.
Sorry, I overlooked this:
“there is certainly no reason that Congress and the Justice department could not do that”
Congress or the DOJ certainly “could” decide questions of constitutionality, but to me that seems like a patently weird way of doing things, especially if the reason for doing it is a concern about too much power residing in one branch of government. Would you really want Alberto Gonzalez or Jeff Sessions deciding whether executive actions of Presidents Bush or Trump were constitutional? Same thing with Congress — do we really want to entrust the same institution that enacts a law with discretion to determine whether the law is constitutional? Seems unsound to me.
Judicial systems operate very differently in continental Europe — I’m not an expert but I always find my self befuddled when I deal with the judicial systems of Germany or France — so maybe there are better approaches out there that I’m not aware of.
There is a comment in another thread that addresses the very issue of intentions of the framers, namely concerns of Thomas Jefferson on Marshalls adoption of a power not granted by the Constitution
https://dianeravitch.net/2022/06/26/mark-joseph-stern-the-supreme-courts-decision-to-compel-maine-to-pay-religious-school-tuition-threatens-public-schools-everywhere/#comment-3387109
On the matter of the Senate: I agree it is very undemocratic and I actually think our government would be much better without it. It seems to do nothing but create division and stand in the way of progress. It is very reminiscent of the House of Lords, which is what it was patterned after.
I don’t pretend to know what the answer is, but I am pretty certain from what I have seen in recent days that a group of 6 people have far too much power and, as far as I can tell from reading what the Constitution actually says and what Jefferson said, far more than they were ever intended to have.
Jefferson actually predicted it would mean the end of democracy .
It might be two hundred years later, but it sure looks like he was right.
Here’s more of what Jefferson wrote on the subject
https://famguardian.org/Subjects/Politics/ThomasJefferson/jeff1030.htm
“there needs to be a way to expel Justices who lie during their Senate confirmation,
Well, let’s see. There goes K and there goes R and there goes G and there goes A and there goes T and there goes CB
Did I leave anyone out?
They should actually call it the Senate Confabulation hearing
No, that won’t fit. That means there was no intention to deceive.
My bad.
The Senate Prevarication hearing
The Liars’ Confirmation Hearing
Senate Prevarication Hearing would prolly be redundant
I think the key is this: the movement to support reproductive rights needs to have a bigger tent than it’s had so far. The tent we’ve had up to now is just not big enough. It has it expand to include a lot of people who vote Republican. It can’t succeed as a movement solely of the left and the Democratic Party. It just cannot.
“has to expand”
Linda
Not everyone views information as “an attack.”
My guess is that the ones who view the presentation of information as an attack simply don’t want to know the truth because it upsets them.
And they aren’t going to listen no matter WHAT you say, so worrying about turning them away is pointless.
You simply can’t convince someone that abortion should be legal who believes that abortion is murder. There is no point in even trying. It’s a lost cause.
Should have been below
Rhetorically, should the “tent” consider a stop to its “pulling of punches?”
The USCCB opposed the ACA, framing it as an assault on religious liberty. One in 6 U.S. hospitals are Catholic. Between 2001 and 2011, Catholic hospitals increased by 16%, while public and secular hospitals decreased. In an article at Scholars Strategy Network, 5-30-2016, we learn that patient care at Catholic hospitals is “limited to fit a USCCB directive.” (The article’s title is, “How Catholic Hospitals Restrict Reproductive Health Services.”)
attacks on the Catholic Church will not make the tent bigger.
Information doesn’t alter behavior nor does it have impact in lessening support for, arguably, the most influential and well-funded anti-abortion organization- got it.
Just curious Flerp- is a reconnaissance mission that reports the enemy has troops within 200 ft., the same thing as an attack?
When orators go on the offense for the enemy of women’s rights and say, “I don’t see a problem using tax avoidance under the guise of charity while denying reproductive and indigent care”, the response should be silence? When another of the enemy’s defenders implies there is no truth to the facts, the response should be silence?
That’s the way to wean more people away from the driving force behind the stripping of women’s rights for 2000 years?
Linda, if you’ve found that you’ve changed a lot of minds by talking about how the Catholic Church is the problem, then by all means keep on with the project. To me it seems like preaching to the choir.
This posted above (WordPress works in mysterious ways)
Linda
Not everyone views information as “an attack.”
My guess is that the ones who view the presentation of information as an attack simply don’t want to know the truth because it upsets them.
And they aren’t going to listen no matter WHAT you say, so worrying about turning them away is pointless.
You simply can’t convince someone that abortion should be legal who believes that abortion is murder. There is no point in even trying. It’s a lost cause.
FLERP and Poet- Did the book, Power Worshippers, have any positive political impact?
Poet
In reference to your final paragraph, can a person adjust and see issues that outweigh the rights of fetuses?
A commenter at the blog tells us that there is a heightened level of conflictual discussion within the American Catholic Church. Assumedly it’s about Church spending on right wing politics or about the Church’s right wing doctrine and encouragement of right wing voting (factors especially true in the central states, although there’s the Bishop of Worchester, Mass). I wonder what provoked the discussion. Maybe, trying to defend the Church began to take its toll on those who want to remain members. It’s possible that after the Bishops or the Directors of the state Catholic Conferences’ visits to the politicians, particularly the GOP, liberal church members will e-mail a minority objection report to the same politicians.
The liberal wing’s arsenal is described as making declarations, volunteering and marches. They might expand their outreach.
If public school defenders want to further their cause, would it assist them if they knew about the well-funded, well-organized campaign for privatization led by the state Catholic Conferences? Maybe they could think of ways to counter it?
Linda– IMHO, a person who views abortion as murder does not think in terms of “the rights of fetuses.” However, unlike SDP, I believe that people who see abortion as murder can and do adjust their position to allow for legal abortion. I suspect there is a sizeable group who would abort their own pregnancy only in the rare instance of fatal complications for mother/ child, yet can wrap their heads around legal abortion. Probably most are pragmatic people who understand abortions will continue, but under conditions more likely to kill the pregnant woman. There are also thinking people who do not place their own religious/ ethical beliefs above those of others, or who recognize that other civilized societies have come to other conclusions. [That would be a smaller group no doubt.]
Linda, I’ve become absolutist about abortion as policy, government has zero role in coming between decisions made by a woman (or any human being, for that matter) either on her own or, preferably but not conditionally, in consultation with medical professionals. In any event, a medical professional will necessarily be involved.
I literally never heard the word or conceived of what abortion was until I was a 10th grade student in a Catholic high school. For most of my life, I felt there was a governmental role if the life of the fetus is viable. But later I realized, there is no woman, anywhere, who wants to have an abortion. These decisions are not made lightly. And neither I nor any policymakers can make such a decision for others, all we can do is make sure it can be done as medically safe as possible. We should continue to educate and make contraception easily available, but no matter how well we do that, there will always be need for abortion services, often by women who would never want one.
Recently a friend sent me a quote by Pete Buttigieg from an undated interview with Chris Wallace that I consider to be the best statement I have ever seen and it strengthens my view that the right to make a decision about an abortion is personal and medical, not one that is political or subject to external policy.
Buttigieg: (re: one percent of all abortion are in third trimester, is he OK with women having that choice?) “So let’s put ourselves in the shoes of a woman in that situation. If it’s that late in your pregnancy, then almost by definition, you’ve been expecting to carry to term. We’re talking about women who have perhaps chosen a name. Women who have purchased a crib, families that then get the most devastating medical news of their lifetime, something about the health or the life of the mother or viability of the pregnancy that forces them to make an impossible, unthinkable choice. And the bottom line is as horrible as that choice is, that woman, that family may seek spiritual guidance, they may seek medical guidance, but that decision is not going to be made any better, medically or morally, because the government is dictating how that decision should be made.”
Greg- your writing would convince anyone I would want to know.
Thank you for taking the time to add your thoughtful and moving argument.
Linda
I may not have been clear. But I actually agree with you, at least with the main gist of your comment
I think there are probably lots of Catholics who are perfectly willing to view information without considering it an attack.
But I would differentiate those folks from people who do view it as an attack.
And in the latter case, as I said, I don’t think anything you say is going to change their view.
Bethree5 says
I believe that people who see abortion as murder can and do adjust their position to allow for legal abortion. ”
I am curious what evidence you have for that because it doesn’t make sense to me.
If someone believes that a person has been murdered, do they really only consider it murder if they did it themselves?
In my opinion, there is an unbridgeable difference between a person who says “I believe abortion is morally wrong and would therefore never have one , but others may view it differently” and someone who says “Abortion is murder”.
The former couches it in personal, moral terms while the latter couches it in a legal, societal terms.
Perhaps there are people who believe abortion is murder but who have the attitude “live and let murder” but I would be very surprised
Not incidentally, if you look at the way this issue is presented by those who want to stop all abortion, it is precisely as “abortion is murder”.
That tells you something.
Namely, that the issue is nonnegotiable.
Live and let murder”
“Live and let murder”
My motto, in short
Don’t tell your sister
How to comport
Thanks Bethree and Poet for the observations. There are those who want us to think that the issue is complex when it is simple. A woman’s body is sacrosanct- her decision. Full stop.
The position of some Catholic hospitals in regard to ectopic pregnancies clarifies the thin needle the Church tries to thread in dispensing with women’s lives.
Makes me wonder if that’s what Paul McCartney had in mind when he wrote “Live and let die”
Simple enough that even people like Thomas and Special K should be capable of understanding it.
Speaking of Special K, Susan Collins is now telling people that he “misled her” in private conversations, assuring her that he “respects precedent, yada yada yada”
Can you believe it, Special K actually lied?
Ha ha ha.
If Colin’s actually believed him, she is as dumb as a bag of rocks.
But I don’t buy it. I think she is just trying to cover her ass because she knows many Mainers will not vote for her if they think she was actually in cahoots with Special K (which she almost certainly was)
The way Supreme Court candidates are chosen and “reviewed” is the primary reason we end up with so many incompetent, lying, weasley Just-asses on the Court.
The court is extremely political because the process that chooses them is completely political. What a surprise.
I tell ya, when I read about the “geniuses” who came up with some of these “brilliant” ideas, it makes me wonder whether they had any brain at all.
If Colin’s were honest, she would focus on the other lies Special K told in his hearing — about what he did with Christine Blasey Ford.
But apparently that doesn’t matter.
Only that he lied about how he would vote on the abortion issue.
I should have said what he did TO Christine Blasey Ford.
With makes it sound like she agreed.
When people talk about “reforming the court”, I am skeptical.
How do you reform a pile of trash?
Won’t happen unless everyone that’s registered to vote, votes. Too many moderate voters don’t vote in primaries, midterms and presidential elections, but extremists almost always turn out in mass and vote.
The extremist lunatics turn out even for the party primaries, and that’s why the extremists often decide who we get to vote for in the general elections so the choices are dismal turning off many moderate voters who then decide to stay home so they don’t miss Dancing with the Stars or the latest major league baseball, basketball, or football game.
This “analysis” is beyond disappointing and an apt example of why Democrats will continue to lose and our system of governing is likely doomed. It begins with “[w]e have several effective paths forward and must pursue all simultaneously” and ends with “[n]othing can be ‘fixed’ today, but we can begin the long journey back in the coming days.” I think that final sentence fits the definition of tired, trite pablum. In between those sentences, I can see a lot of tired rhetoric about what “we must do” and pointing out the problems. Excuse me if I’m dense, but where is the discussion about “several effective paths forward (to pursue) simultaneously”? I see no clear examination of the obstacles to any of the assumptions he makes or how to address them. It’s also very naive. The idea that the cult can be won over on policy ideas is as big a mirage as one can concoct. Building political campaigns around them would be a tragic waste of time, money, and people’s understanding of just what exactly it would take to change the nation’s course. And it ain’t nearly as simple and clear cut as Mr. Hubbell would have us believe.
Think of it as one would make decisions about buying a car. If you’re going to get a [r]epublican car, if you want the anti-abortion feature, then you’re also going to get the standard equipment of “small” government, strong military, anti-gun legislation, pro-Israel, anti-science, and most of all–anti-lib, who are the source of all evil today. You really can’t get any other model. Each one has all the features and it will not run if you take out one of them. In other words, policy arguments do not work. Especially the poorer one gets. The reason poor whites in places like WV vote “against their interests” is because they don’t. It’s because as long as Blacks and the “other” are perceived to remain on a lower place on the societal totem pole, they perceive themselves as winners.
When you go over the Democratic lot, the problem is that there are too many models with too many different features and even those can be customized to fit your views. They complain about the fact that a cigarette lighter is still included rather than assess the overall structure of the car and how it will perform. They will re-cover the seats while the engine runs low on oil and becomes damaged.
The moaning and prescribing the bleeding obvious and considering it to be profound has to stop. We need a realistic assessment of the situation and a consensus among large swaths of the population to accept them unconditionally until we once again have a functioning political system based on philosophical political differences. The Alito/Thomas wing of the cult understands this. While we analyze if the Idiot’s endorsement in primaries matters, we need to be honest and admit it does not. As we saw with Rusty Bowers, they will coalesce around a reactionary agenda designed to legally marginalize certain groups of the population and make them profit centers for the chosen political elite. It doesn’t matter if the candidate is the Idiot, DeSantis, Pence, or Young. The party will come together as efficiently as the Terminator. Will Democrats debate the color of the drapes and consider arguments that make them feel better as also being effective. That’s a losing strategy for Democracy.
Just remember “The death of a thousand cuts begins with a single cut”
That’s Lao Tze
pronounced “Lousy”
We are in an unusual time.
One of the nation’s major political parties is in thrall to a a stupid venal man whose ego is larger than his very large body. We are falling into a pit, at risk of that unprincipled party controlling both houses of Congress. No one knows what to do.
Duane has his Williams, I have my Klemperer, who I consider to be the most important contemporary source of information of how people on the ground experienced Naziism. As a Jew who lived through that era and kept secret diaries, his fascination centered on how Nazis used language to infiltrate and distort public discourse in ways to support and protect, as they defined it, the Party and State.
We know what needs to be done. We need to have a common language when speaking about politics; things have to mean something that is broadly understood. We need to have an accounting that educates; instead of sentencing Jan 6 perpetrators to jail, send them to work and serve under supervision in communities of need. We need to agree on what we see and not allow it to become a matter of perceptual debate; empiricism and common sense have to become political goals.
A healthy polity must have a language that accurately conveys its most fundamental principles and differentiates between opposing ideas so that citizens can monitor and influence their representatives. We have lost 45% of the American population and they are irretrievable in the short- to medium- term of at least 10-15 years. Their children matter much more than they do. And we need to explain this over and over again to other 55% why it matters and this is not the time of nitpicking on policy. Right now the system is at stake and nearing life support.
Greg
I think you meant “Duane has his Wilson, not Williams
Noel Wilson
That’s what a couple glasses of wine will do — change a few letters. (And kill a few neurons.)
Recently, at a school reunion, I spoke with a die hard Republican woman, daughter of a farmer. For those who aren’t aware, farmers see themselves as land owners and view labor as lesser, belonging to the Democratic party. In my midwestern town, the influx of G.I. Bill-educated government, professional bureaucrats, upended some stereotypes.The classmate knew of my Democratic views so we talked on the edges of politics. I said, when we were young, truth mattered.
From her expression, the idea was either quaint or novel.
Yes, Wilson, not Williams. Forgot the name but remember the message on fallacy of testing.
I won’t ever forget — even after I die.
Noel Wilson has been embroidered on my neocortex.
It thank Duane for that (I think)
Greg-
Your description is as clear as it gets.
Thank you! It’s amazing what a couple of glasses of good wine on a lazy Sunday afternoon will do at times to clear the mind. With everything going on in the world, I guess this is as close as I’ll ever come to know what it feels like to be in a Wodehouse novel.
It’s Saturday! 😆🍷
With me it’s beer and it’s amazing how a couple six packs can turn a Saturday into a Wednesday.
GregB, I pretty much agree with your assessment of Hubbell’s recommendations. I liked the article mainly for its links to other aspects.
So far, this is the only article I’ve seen that has some robust recommendations for Democrat Party going forward [see #’s 3, 4, 5]: https://www.washingtonpost.com/opinions/2022/06/24/roe-supreme-court-forever-war/
Democrat (sic) Party.
I cannot think of a single legitimate governmental interest in banning contraception. NONE! The only group who is opposed to it is the Catholic Church, and that doctrine is widely ignored by a majority of Catholics. To even attempt to ban any form of contraception is a direct contradiction and assault on the Establishment Clause of the First Amendment since the origin of the idea lies entirely within the realm of a single Christian sect. Obviously this is also blatantly true of all of the groups opposing abortion, there are no secular anti-abortion groups of any significance out there, all are based on Christian dogma. ALL of the thinking that claims abortion is murder originates in the religious sphere, the fact that is has seeped out into other areas of society is of no consequence.
Thanks for your comment, Jon.
Though your argument is a logical reading of the Constitution, logic and the Constitution have nothing whatsoever to do with the Decisions the majority is handing down, which are based purely on religious ideology.
That’s what makes the current situation so dangerous.
These people are not only not subject to reason, but they are also not subject to any legal constraints. They can pretty much make legal interpretations up to fit their purposes. They can make the laws fit their ideology.
Making the laws fit the ideology” turns ” judicial review” completely on it’s head.
It should probably be called “ideology review” to see if the law fits the ideology.
Agree completely, Jon. In fact I find the Griswold case a little mindblowing: in the early ’60’s, CT was still enforcing an 1879 law on contraception? Kudos to the two plaintiffs for bringing it to SCOTUS even tho it only involved a $100 fine each. I remember the early ‘60’s. Everybody– my married parents, other married couples, and all those many people engaging in premarital sex– used condoms and diaphragms. Excepting only (AFAIK) the most observant/ submissive Catholics still using the pulpit-prescribed rhythm method.
I have to imagine that this particular shibboleth is in Thomas’ mind only– yet the other 5 Extreme Justices might go along with him simply because it follows “logically” in their robotlike minds with throwing down the Dobbs gauntlet. And I can imagine the chaotic results. Many states would simply codify Griswold, but the rogue 12-20 would seize the opportunity to outlaw any birth-control method that could remotely, tortuou)sly [using bad science and lies] qualify as abortifacients. (Some might even try banning the barriers of yesteryear!
Ya know, I’m leaning at this moment toward “Bring it.” If Dobbs doesn’t do it, I think overturning Griswold might just “move the needle” in a lot of red states—and quite possibly in the Congress as well.
What does the Catholic Church have to do to convince women they don’t want them? They won’t let their priests cohabit with them. They won’t let them have leadership roles. Women’s lives have less value than that of a fertilized cluster of cells. The Bible doesn’t prohibit rape
unless it’s a property issue for the husband or father.
And, if the woman’s gay, they don’t even want her to teach the kids she’s borne and sent to their schools.
Is there a man, in a similar situation, who would stick to that religion?
In response to your 12 noon comment today, Diane, RE: Dubya’s SCotUS picks:
I think we have observed that Dubya couldn’t adequately pick his nose.
*& please note that I am also “hysterical,”
which I’ll add to all my comments going forward. WordPress doesn’t like me playing w/rbmtk, &, I’m sure, will lock me out, which has happened before. (&, no, the “Happiness” AI didn’t solve the problem–it was back-&-forth, like dealing w/a health insurer, so not worth the time.)
I was reminded recently of what an utter idiot W was when I saw a tape of his being pwned by someone pretending to be Zelensky. W was going on and on with “advice” about conducting the war that was as ignorant as anything one might hear from Jabba the Trump might be. It’s frightening, really, that people of this caliber can end up in the Oval Office.
I hope the writer is right about what we can do. But we are NOT a “democracy.” The framers didn’t close to intend that: Women couldn’t vote; Blacks couldn’t vote, generally; the Senate represents states, not people–and the original Senate was appointed by the states. Each state had 2 votes in the Senate, though some states were/are much bigger population wise. We are a republic–that is a government not ruled by a hereditary ruler, but one elected in some fashion–which almost changed on Jan. 6. As to what we should do, I believe we need a re-orientation of tactics and a re-vitalization of the Democratic Party. We need a coalition of Dems, Dem.-socialists, Green Party folks, etc. We need a recognition of communication realities: Most Americans don’t watch MSNBC & CNN or hearings; millions in “fly-over” land can’t get NPR stations, and don’t have internet, etc. Dems need to use billboards, local radio, canvassing & newsletters, purchasing a station (such as Al Gore had), etc. Fox should be sued, or have their FCC license revoked for failure to broadcast “in the public interest,” as required by the Communications Act. Fox advertisers should be boycotted. Brave folks willing to be arrested should occupy major Fox stations. Women need to consider/adopt a Lysistrata strategy with husbands and mates unless they agree to support a restoration of Roe rights and the ERA. If these tactics seem radical, they are the kind of tactics (excepting Lysistrata) used by Dr. King and his followers. Remember Rosa Parks? They are the tactics used by those of us who organized public school teachers. We risked jail (some were arrested) and ruin to gain bargaining rights; we got our own radio shows and newspaper columns; we printed and distributed quality newsletters. In Ohio, and elsewhere, teachers who had almost no rights in the 1960’s were participating in educational decisions in the “70’s. We created maternity leave, equal pay for grade levels (and thus genders), equal funding for girls’ sports and coaches, public alternative schools, etc. It can be done. But not without great effort. It would require cooperative endeavor, imagination, and courage. I hope enough people are up to the crisis, or we will not even be a republic–or a place worth living. Many friends openly discuss moving to Canada, the “British” Isles, or Europe.
Jamelle Bouie piece today: https://www.nytimes.com/2022/06/25/opinion/supreme-court-constitution.html The main point he makes that I like: many see FDR’s threat to pack the courts as a cautionary tale, but in fact, the threat worked: he eventually got a SCOTUS that allowed most of the New Deal to stand. Put that together with Sargent & Waldman’s [WaPo’s The Plum Line] recommendations for Dem Party response to Dobbs decision [see #’s 3,4,5]: https://www.nytimes.com/2022/06/25/opinion/supreme-court-constitution.html
Hubbell’s link to LATimes on Alito’s wrong take on the history—couldn’t access (paywall). However I subscribe to WaPo where there’s an excellent summary if you have access: https://www.washingtonpost.com/outlook/2022/06/24/dobbs-decision-looks-history-rescind-roe/
For those who haven’t been reading up on this, we’ve already been learning from various sources that– until the mid-19thC (i.e., 80-230 yrs depending on when you start counting)—colonists/ Americans were aborting pregnancies with impunity if they were prior to “quickening” [16-22wks], per Anglo-American common law. There was a rash of anti-abortion laws that were passed 1845-1860. It turns out they followed intense press following of a few cases where poor women died at the hands of incompetent abortionists. But the interesting thing is that few were brought before the courts under these laws, and very few were convicted, and those who were got very light sentences. [Those tried were mostly late abortions, but juries would let them off on the pre-quickening sanctions, which were minor].
Obviously there’s another century of devpt here: I have no info yet on how we progressed from mid-19thC UNenforced anti-abortion laws to the 1960s when it was back-alley or nothing… And still trying to put that together with historical info that evangelists didn’t make anti-abortion their big issue until late 1970s…
But obviously Alito’s claim that abortion is not in our “history and tradition” is BS.
Abortion was obviously not in Alito’s history — unfortunately.
Alito is an ideologue.
Right, Diane, that has become evident. Not a historian; he cherry-picks historical ‘evidence’ to support tortuous reasoning in service to a priori conclusions, making a mockery of the so-called ‘originalist’ school of interpretation.
His legal analysis seems easily picked apart by the most junior of law students (let alone lawyers/ judges with experience), if we can believe comments to many articles. Whatever credibility he may have from previous decisions [if he has any] is destroyed by this one.
What an embarrassment and shame to his office. His nomination by GWHBush was protested by the ACLU as well as then-Sen Obama, John Kerry, Sen Lincoln Chafee (R), NARAL [pro-choice org] and the Women’s Lawyers Assn. He was seen then (2005) as a divisive nominee from the far-right, proposed by a President who was losing favor to its far-right element.
Legal or even analytical competence are ancillary (at best) to the nomination and confirmation process.
Nominees are chosen and confirmed based almost entirely on their ideology.
So it should be no surprise that so many of them are lying, ideological idiots.
In fact, what is really surprising is that some of them are not.
Alito is an Alitologue
An alitocrat
Alito and Thomas are conservative Catholic ideologues. The Roe decision makes that clear and no one should tip toe around a politicized Church that takes away American rights.
I think that there are four varieties of Trumpanzees among politicians, bureaucrats, and judges:
The compromised. Some of the most prominent Trump supporters, including those who have functioned as his high-level operatives, were once sworn enemies–anti-Trumpers. How does one explain the 180-degree flips? Kompromat. These are probably folks who, like Trump himself, are compromised by the dirt that Russian intelligence has on them. Ghouliani? Lady G?
The hypocritical. These are the folks who know what an ignorant POS Trump is but find him incredibly useful. Mitch McConnell was the primo example here. He has always known what a POS Trump is, but he also knew that he could waive any piece of legislation that fat cat donors wanted under Trump’s orange nose, and Trump would scrawl his weird, psycho signature onto it.
The equally ignorant. Lots of these folks. Jim Jordan. Matt Gaetz. Marjorie Taylor Geene. Mo Brooks. Lauren Boebert. Paul Gosar.
The full-on fascist/white nationalist operatives. Bannon, Miller, Sessions, and their ilk.
I think Alito belongs in this last category. He knows full well what he is doing, that the Dobbs decision throws down the gauntlet, is meant to undo American democracy and initiate a fascist revolution.
about kompromat:
“In the special world [created by a kleptocratic fascist leader], everyone’s wealth is deliberately tainted.” –Fiona Hill and Clifford Gaddy, Mr. Putin: Operative in the Kremlin
Why? Because then the leader OWNS YOU. At any moment, he can destroy you utterly.
Something else to do: insist Dems take a hardline against fellow anti-choice Democrats. No more of this “Well, we need people who reflect the values of their communities” garbage. No more Nancy Pelosi saying it’s a big enough tent for everyone. No more Henry Cuellars or Joe Manchins.
Do what the GOP does and demand fealty. Pay attention to what people want and deliver it. Get people, like Nancy and Diane, to retire and make way for newer and younger folks. When someone’s pushing 90 and still in Congress, they barely have a pulse let alone have their finger on the pulse of society. It’s all about the power and the Benjamins.
Stop spitting more vitriol at the younger more left-leaning members of Congress than is spit at the GOP.
This San Francisco Chronicle oped has some more ideas. https://www.sfchronicle.com/opinion/openforum/article/Roe-v-Wade-is-dead-Democrats-need-to-finally-17263534.php
The overall sentiment has merit, with exceptions. I know you meant Diane Feinstein. To be clear, our host is an amazing champion for democracy and without her, there would be a void so great, light might be impossible. Long, live Diane Ravitch!
Ahhh! I knew that the reference was to Dianne Feinstein, who is from many accounts, gaga. Not Lady.
Based on a personal encounter I had once almost 30 years ago, Feinstein scares the hell out of me. There literally is no there there.
We need term limits, but unfortunately, the Supreme Court will never allow them.
Even a much less radical court nixed state attempts to enact them for members of Congress.
https://www.termlimits.com/term-limits-amendment/
Funny how everything seems to circle back to the Supreme Court, isn’t it?
Do you suppose this is how the Framers envisioned our democratic government working?
Ruled by 9 unelected individuals installed for life, making unilateral decisions based on ideology with no possibility for veto?
When it comes to inflicting one damaging blow after another on our democracy, the Supreme Court makes the Senate look like a fly swatter.
People focus almost exclusively on what the President is doing and, except in cases like the overturn of Roe almost not at all on what the Supremes are doing behind the curtain.
And much as people might like to believe it, the “Supreme Problem” did not begin with Trump, but has existed for a very long time and has led to all manner of truly horrendous decisions masquerading as “judicial review” (supposedly deciding whether a law comports with the Constitution).
It can be legitimately argued that the main problem has been there since Marbury vs Madison, when John Marshall decided that it would be a good idea if the Supremes could unilaterally decide which laws were acceptable (under the Constitution) and which not.
To anyone who believes the “Supreme Problem” is traceable to Trump, I would be curious what you think about Dred Scott, or about Plessy , or even about Citizens United.
And incidentally, while it might be argued that judicial review is what allowed the Court to overturn egregious rulings like Plessy, I would just say that if they had never had the leeway to make such decisions like Plessy to begin with, they would never have had to later overturn them.
This is NOT like science where new knowledge overturns old ideas. The very idea that the Supreme Court bases ideas on science and logic is just hilarious. Most of the people on the Court would not know science if they got hit in the head by it at a baseball game.
Unless its method of operation is changed (not just personnel but how they operate and what they are allowed by law to do) — unless its almost absolute power is reigned in –the Supreme Court is going to kill our democracy (if it hadn’t already done so).
“And much as people might like to believe it, the “Supreme Problem” did not begin with Trump, but has existed for a very long time and has led to all manner of truly horrendous decisions masquerading as “judicial review” (supposedly deciding whether a law comports with the Constitution.”
I agree with this. If anyone thinks that the phenomenon of nasty, overly ideological, and under-qualified Supreme Court justices is only a recent one, they need to read a lot more about the history of the Court.
But there is no way around judicial review when it comes to constitutional questions, unless you’re fine with legislatures and lower courts deciding on their own whether laws or practices are constitutional.
I understand that this decision is based on the idea that freedoms not explicitly stated in the constitution should not be considered in jurisprudence. Does this not negate amendment 9?
What does the 9th Amendment mean if not that we should read everything else liberally, as giving scope to freedoms?
In other words, totally with you there, Roy.
Looking for logic in the decisions of the current majority is like looking for the pot of gold at the end of the rainbow.
Doing so will only make you wet and exhausted.
SDP: no pot of gold? Heritic!
Hisitic perhaps
Maybe women will eventually just decide that sexual intercourse is too risky a business in every way, buy themselves a vibrator and call it a day. 🙂
Mamie,
Two other variations on your suggestion.
I saw a cartoon in which a woman holds a sign: “mandatory vasectomies; life begins at ejaculatuon.”
After the gun and abortion ruling, someone said on Twitter: “Now, if a woman gets pregnant and wants to commit suicide, it’s easier to get a gun.”
Hi Diane,
Yes, I’ve thought of those things. But seriously, imagine a world in which government can reach into the privacy of you and your doctor in the medical office and also into your own private bedroom (in terms of contraception and same sex marriage). If I were a doctor, I would be mortified right now. Imagine being unwilling to save the life of your patient for fear of prosecution. I can’t even imagine all the ramifications and situations of this decision and the various state restrictions that are about to come. It’s unconscionable to me. And, to be perfectly honest, I don’t have a lot of hope about this whole thing when I hear girls come in to class and say, “SOMEBODY just said we can’t get abortions now.” Somebody???? I’m not as hopeful as you are in the future generations and their ability and interest in political action. I hope I’m wrong.
Mamie,
CBS released a poll showing that 60% of the public supports abortion; about 33% opposed. My guess is that young people support it most because it was never illegal in their lives. My personal view is that people who oppose abortions should not get one. But they should not impose their views on others.
A friend shared that an earlier pregnancy had left her unable to bear a child safely. Apparently she now must contemplate a second marriage with varying trepidation. Will vasectomy be banned in her lifetime?
And the doctors have very good reason to be afraid because the data exist to track everything they do, every procedure they perform.
And when they are inevitably challenged by the states, the information will necessarily be made available to the prosecution.
A similar situation exists even for the case of someone seeking out and ordering abortion pills online. If they do the search through Google, it will be recorded. If they purchase the pills with a credit card, that will be recorded.
and if they go out of state to get an abortion and bring their phone, the record of where they traveled might be recorded again by a company like Google. And again, any credit card transaction will also be recorded.
And make no mistake, if a state prosecutor wants all this information, they will get it from Google and others — legally, as things now stand.
These days, its very hard to avoid being tracked and monitored, but my bare minimum advice would be to not use any service or product (Google Chrome) from a company like Google in cases like this because they are simply not to be trusted with any of the data. They might even make money off of the data.
Women in child bearing ages face the risk at any hospital they go to. But, the risks are much higher if they have ectopic pregnancies or unviable fetuses (toxic shock syndrome) and go to Catholic hospitals. Jamie Manson at Catholics for Choice wrote about it in an article with keywords, Nun’s excommunication Bishops’ attack on Biden.
Also, if the woman is attending a religious school, her parents won’t have wasted their own money on her education, since they will have received state tuition funds. So she can feel good about that.
Pro-choice? Pro life?
When suicide
Becomes the “choice”
We can’t abide
The “Justice” voice
I want to state at the beginning, that I do not beleive that government has the right to restrict individual liberties without due process. All individuals, including all men and all women, should be allowed to make any decision and do anything they wish that does not harm anyone else or infringe in their rights to do the same. I do not beleive abortion should be illegal, however, the USSC made the right decision overturning Roe. This was a bad decision in 1973, and many on both sides, including the late RBG publicly stated as much.
Having said all that, why is it when the USSC rules against the left, they call the court broken and it must be fixed, expanded, disbanded, or to some just executed? What would the response have been form the left, including the media, had the right said all of this, or done all of this, followed Obergefell v. Hodges? Overturning precedence is not the end of the world as some are claiming. if that were true, Plessy v. Fergusson would still be the law of the land.
Those who are pro-choice (using their preferred pro-nount) argue that this is the exclusive domain of the mother. The Pro-life (their preferred pro-nount) folks argue it is not that simple and there are others involved, including the life of the unborn child. This seems to be where the great divide occurs. What is life and when does it begin?
We have been told for 3 years now to look towards the science for answers about medical questions. To only look at this as a medical issue (the preferred lens from many on the pro-choice side of the debate), and to have a national standard on abortion rights, we must look towards science. While the science community continues to better understand when life begins, they are the best we have to answer this question, outside of the religious doman, which many will not accept as valid. Given the political nature of this debate, it does not seem unreasonable to task a blue-ribbon commission to answer this question (government loves to make up ad hoc groups to solve problems it does not want to handle). Based on their recommendations, it seems possible, if both sides are willing to accept it, to create legislation to have a national standard. It will require compromise on both sides, something we do not do very well lately. I expect that will be proven by the comments on this post.
Short of this, leaving it to the states is the most Constitutionally appropriate answer to this question. Abortion is the most wicked problem facing our society. Both sides are entrenched. There is no way for one side to “win” without the other “losing” and neither side seems willing to compromise. Given the nature of this problem, that is understandable, but then.. what are we to do? if the left packs the court, the right will just do the same when it regains power. At some point, both sides need to lay down their weapons and talk to each other.
I agree with your opening comment, however, the rest of your comment contradicts your opening statement.
“I want to state at the beginning, that I do not beleive that government has the right to restrict individual liberties without due process. All individuals, including all men and all women, should be allowed to make any decision and do anything they wish that does not harm anyone else or infringe in their rights to do the same.”
Why should government have the power to tell women what to do with their bodies? How would you feel if government told men that had to get vasactectonies? Why should government intervene in a deccisuon between a woman and her doctor. I read yesterday about a woman who was very anti-abortion but decided she had to have an abortion because her fetus was developing without a brain. What would you do if you were in her position?
I appreciate your comments but with all due respect I disagree with you. What I was saying is that the government has a responsibility to protect the individual liberties of all. Any effort to restrct those liberties requires due process. Therefore the government does not have a right to restrict the liberties (including life) of anywone without due process.
If you agree with me on this, then you must certainly agree that at the point the unborn child inside a woman is considered a life (has personhood), the government has an obligation to protect that persons liberties. Of course there will be times when the rights of the woman and her unborn child will conflict, or when the unborn child is the result of criminal activity (rape, incest, etc.) In those limited instances (which are rare), in my opinion, the government should be obligated to respect the womans rights over that of the unborn. This is a difficult decision, but represents a reasonable compromise to a wicked problem.
Regarding the story you read about, I have direct experience with a similar situation. A member of my family was pregnant and doctors told the mother and father that the baby had severe brain damage and if carried to term would only live a few weeks. They were strongly encouraged by multiple doctors to abort the child. That child is now in 3rd grade.
Sorry, but I do not believe the state should have the power to compel a woman to give birth to a child she does not want. Viability does not begin at conception. If you think so, then men should be compelled by law to wear contraception devices or to have vasectomies. Women should not have the full responsibility for the actions of two people. If your view prevails, then the state should pick up the bill for child care, nutrition, healthcare for mother and child, and the full expenses of rearing children.
I completely agree with most of your response. I never said viability begins at conception, but viability occurs at some point. I didn’t say when. That was part of my original posting about science. I also accept your point and do not disagree that the government should not compel anyone to do anything. However, at the point of viability, it is no longer just about the woman. There are now 2 people involved, both have (civil) rights. To completely disregard the second life in this equation is political expediency. If that life has no value (no civil rights), why have any limits on when a parent can end that life? Why not extend that right till after birth? Does a child 2 weeks before birth have less value then a child 2 years after birth? or 10 years after birth? That distinction is completely arbitrary if you do not look towards science.
I also completely agree that the male involved has just as much responsibility as the woman in this issue. But with responsibility comes rights and the opportunity to have a voice in this decision. I do not think a man should be able to compel a woman to carry his child, but the father should have some rights. The fact that men are not now held responsible during these times is wrong and contributes to this problem. I also completely agree with you that if the state is going to value life, it has a responsibility to assist in supporting that life when needed. Much of that assistance is already available, but it should be greater. This would also include all you mention along with paid family leave and support for adoption if the mother chooses not to raise the child.
Let’s not forget that abortion is an economic issue.
The fact is: if you are emotionally intelligent and not a hypocrite, then you have to conclude that a society which requires forced birth, has to be socialist. That means you must support a woman who becomes pregnant financially, with pre-natal care, pregnancy leave guaranteeing return to work, etc.
Republicans complain about “socialism”. They won’t implement socialist policies.
In a society that is not socialist, citizens must have the right to avoid economic collapse and medical disaster. And this must be true regardless of income. After all, wealthy women will always be able to get abortion, if that is what they want. But what gives America the right to force birth upon a low income woman who is one paycheck away from economic collapse? And what gives America the right to force birth upon a woman who does not have access to high-quality medical care that can prevent death from ectopic pregnancy, eclampsia, or any other medical problem that can occur during pregnancy? And what gives America the right to force a woman to quit her job, because some employers do not want the drag of a pregnant woman on their enterprise and are not required to offer pregnancy leave?
Despite all your arguments against forced birth, Senator Lindsay Graham introduced a bill to make abortion after 15 weeks a federal crime. His bill is co-sponsored by Senator Rubio. Senator Graham is single, never married. He does not have a womb. He is not a doctor. Where does he get the nerve to tell doctors what they are forbidden to do?