RBG was, and remains, a feminist icon. It is supremely ironic, therefore, that no woman, and nobody on the left, is more responsible for the demise of Roe than she was.
This happened in two ways. First, and most obviously, she declined to retire at a time when Obama could have appointed her successor. Second, her critique of the reasoning behind Roe, if not its result, weakened its intellectual foundations and emboldened the right. It had plenty of merit, but disastrous results.
The Court’s decision in the praying football coach case depended, not on any novel interpretation of the Constitution, but on its interpretation of the facts. You can draw two inferences from that: first, the case will have limited precedential value; and second, it never should have been heard by the Supremes at all. The lower court’s view of the facts should have prevailed.
At least it’s better than spinning history.
The great weakness of Roe was the absence of a clear connection between abortion rights and any text in the Constitution or legislative history. The strengths of the opinion were its relevance to life in modern America and a plausible tie to a series of Supreme Court precedents involving state power and the family. The Dobbs opinion is Roe’s mirror image; its obvious shortcoming is its failure to adequately distinguish abortion from the other family law cases, including, but not limited to, Griswold. Saying that taking away life is a “moral” issue unlike any other may make sense to a lay person, but to a constitutional lawyer, it is a cry of desperation. In that sense, both the dissenters and Thomas are right; logically, it should be all or nothing.
Alito also tells us, in a lordly, condescending way, that his thought process is above politics. His unwillingness to follow the Thomas concurrence proves the untruth of that statement. The only reason to distinguish Dobbs from Griswold is the impact on public opinion.
Alito goes to a lot of trouble to try and demolish the argument in favor of the viability standard. This really was unnecessary to his opinion, which suggests that he wasn’t content to win a legal argument; he wanted to destroy viability as a legislative standard, too. That, in turn, tells us that his opinion was motivated more by his religious beliefs than by any purely legal reasoning.
Finally, for all of the length of the various opinions, the scope of disagreement is relatively small. The dissenters do not base their argument on the existence of abortion rights at the time the Fourteenth Amendment was adopted. There are really two issues in Dobbs: the first is whether rights allegedly protected by the Fourteenth Amendment were frozen in 1868 or can continue to evolve as attitudes and conditions change over time; and the second is whether the standards for disregarding stare decisis were met. Both of these issues will continue to plague the Court as the judicial counterrevolution continues.
To the surprise of nobody, Florida Republicans are agitating for a special session to consider legislation reducing the period in which abortions are legal from 15 to 6 weeks. Will DeSantis go along?
From his perspective, this is a tricky issue. On the one hand, he has always been ready to feed red meat on culture war questions to the base; why would he change now? On the other hand, he is comfortably ahead in the polls; this would add a new element of uncertainty to the campaign. In addition, he can’t be completely certain that the Florida Supreme Court would uphold a six-week limit in light of previous precedents and language in the state constitution protecting the right to privacy. Finally, while his other culture war gambits on CRT and the like are broadly popular, eliminating abortion rights is not. It would be a big risk.
If I were DeSantis, I wouldn’t do it; I would let the Florida Supreme Court rule on the 15-week limit and go from there. My guess, however, is that he will ignore my advice. Looking forward to the presidential primaries, either in 2024 or 2028, he will want to avoid looking soft on abortion relative to the even harder right.
As I noted in my last post, several social conservative commentators hope the GOP can be convinced to provide more government support for women with unwanted pregnancies in order to alleviate suffering, provide equity, and (not least) build support for the anti-abortion position in the general public. Could that happen?
To answer that question, you need to consider the DNA of the GOP. The Republican Party is a swaggering, testosterone-crazed daddy party. It believes in strength and the cult of self-reliance, and views anyone who asks for government help as a pathetic loser who just wants to lounge in the hammock of dependency. It likes to blow stuff up. It doesn’t build, protect, and nurture; it kicks ass and takes names.
With that in mind, what do you think the GOP will do?
Given the strength of the forces against them after Roe, Ross Douthat thinks the victory of the anti-abortion side is quite remarkable. He’s right. So how did it happen?
There are two reasons that dwarf the rest. First, Roe was vulnerable from the start, as even left-leaning legal commentators were unpersuaded by its legal analysis. It always sounded more like the deliberations of a group of legislators than a legal opinion. Second, the relatively small group of truly “pro-life” activists made a number of Faustian bargains to win over the rest of the Republican Party. They allied themselves with the PBPs and most of the Reactionaries in exchange for support for business tax cuts, reactionary judges, increased inequality, and racist, misogynist, and even insurrectionist rhetoric and actions. In the end, it was the Reactionaries that put them over the top.
Douthat hopes against hope that the GOP can be persuaded to become much more pro-family in order to deal with the social problems that will inevitably result from the end of abortion. I will explain in my next post why that cannot, and will not, happen. Other parts of his column, however, deserve a response here:
According to Larry Summers and others, history tells us that a recession is inevitable, the level of job vacancies notwithstanding. Are they right?
No, because inflation is being driven by highly unusual circumstances: cost increases due to persistent supply chain problems and the Ukraine war; and demand fueled by a mountain of private savings accumulated during the pandemic. As I’ve noted many times before, the Fed can’t do anything about either of those phenomena; it can only bring down inflation by crushing asset prices and, presumably, consumer confidence.
If the supply chain problems ease over time and spending from savings continues at a relatively high level, a recession can be avoided; the history cited by Summers is not really an adequate guide here. Will that happen? I don’t know, and neither do you.
The Alito opinion in Dobbs tells us that the Court has just returned the abortion issue from the legal system to the political arena, as it was in 1973. Are we just returning to the world as it existed before Roe?
No, because circumstances are far different. The extreme right has been energized. In 1973, there were no vigilante laws, no extraterritoriality issues, and no proposals for a national ban on abortion. All of these ideas are very much on the table today. As a result, instead of a low-key issue that motivated a handful of true believers, abortion is at the heart of a national culture war.
It isn’t going to be pretty.
ROLLING BACK OUR RIGHTS
There’s a fire starting in my heart.
Reaching a fever pitch, it’s bringing me out the dark.
After Dobbs, I can see you crystal clear.
Go ‘head and sell me out; take all that I hold dear.
See how I’ll fight with every one of you.
Don’t underestimate the things that I will do.
_______________
There’s a fire starting in my heart.
Reaching a fever pitch
And it’s bringing me out the dark.
_________
What you call “pro-life’s” an empty slogan.
It’s just a pretext for keeping women down.
What you call “pro-life” makes me less human.
I’ll just keeping saying:
We used to have it all.
Rolling back our rights.
You think wisdom comes with balls.
Well, forget it. I’ve just begun to fight.
__________
Parody of “Rolling in the Deep” by Adele.
Roe is rubbish, says Alito in Dobbs. It’s crap law, based on crap history. I can’t reasonably accuse those people of being culture war partisans, since most of them were appointed by Republican presidents, but I can certainly call them morons. And I will–over and over again.
While the substance of Alito’s opinion is subject to debate by reasonable people, the shrillness of his tone is deplorable. I will add that Scalia’s opinion in Heller, which Alito joined, is definitely crap law based on crap history, and that the Court has now made it worse.
There are two messages here. First, history–particularly history that is 200 years old–is rarely unambiguous, so placing too much reliance on it in your jurisprudence is a mistake. Second, arrogance will receive a response in kind at some point in time. Don’t be surprised if a future Supreme Court uses the same scornful tone on Heller that Alito employed in Dobbs.
It’s 2023. The GOP has control of both houses of Congress. A huge fight over the debt ceiling is looming. Both sides know the Republican leadership is going to take hostages, because that’s what Republicans do. The only question is, what will the ransom be?
McCarthy and McConnell, pressed by a restless base and their extremist members, come up with a brilliant idea. Why not demand a nationwide ban on abortion as the price for not destroying the nation’s credit? Force the Democrats to either give up their signature culture war issue–without eliminating the filibuster–or run in 2024 with asset prices plunging and the economy in chaos. Sure, it would be bad for the country, but so what? Politics is about gaining and exercising power, not doing good for the American people.
Biden refuses the deal. He tells the GOP that the Constitution requires him to pay the nation’s debts, and that he will continue to do so, whether they raise the debt ceiling or not.
It’s now 11:59. The donor class, which stands to be the big loser if the country defaults, is screaming for relief. Do the Republicans appease them and back down, or do they heed the base and blow everything up? Stay tuned.
The Alito opinion differs from the draft in that much of it is designed to address the dissent, which is unsurprising. The tone of it–angry, slashing, defiant culture warrior–has not changed, and the structure of the argument is very similar. On the most important point–the impact of the decision on Griswold and Obergefell–the final version still unequivocally distinguishes abortion from the other cases, even if the logic behind the decision doesn’t.
Thomas, I as predicted, spiked the football. He wants to overturn Griswold and Obergefell, as well. He doesn’t appear to have any support for that, and his concurring opinion is full of citations to opinions written by . . . himself.
Kavanaugh’s concurrence is much more moderate in tone, probably for political reasons. It didn’t work; Susan Collins has already called him a liar this morning. The most interesting thing about his opinion is his clear statement that any future attempt to criminalize crossing state lines for the purpose of getting an abortion will run afoul of the First Amendment right to travel. That case will undoubtedly be coming to the Court in the next few years.
The Roberts concurrence focuses on judicial restraint. Everyone, including me, expected that.
I will have more posts on the decision from a variety of angles over the next few days.
The Thomas opinion in the New York gun case replaces the two-part test used by all of the Courts of Appeals with a single standard based on a reactionary reading of American history. As of today, the courts can no longer look at the severity of the problem of gun violence, and the appropriateness of any given regulation to address it; it can only examine conditions as they existed in 1791 to determine if analogous regulations were pervasive at the time. With the current Supreme Court, the answer will always be no.
In reality, if not in theory, the Thomas opinion applies a strict scrutiny test to gun ownership. This means that gun owners are entitled to the same degree of protection from discriminatory regulation as historically disadvantaged ethnic minorities. Does that sound like a reasonable reading of American history to you?
I can see it now; the next reactionary project will be to have the judiciary identify white male Christians as a “suspect class” entitled to strict scrutiny protections. They already identify themselves as some sort of an endangered species, so why not go all the way and make it official?
Imagine a steel cage match between these two titans of wannabe autocracy. Who is better for the left? Let’s break it down:
On balance, you would have to give the edge to DeSantis, who would also be less corrupt. Does that make him an attractive candidate to the left? Hardly.
Fourteen years ago, the self-styled “originalist” Justice Scalia ignored the text of the Second Amendment, cherrypicked history, and found that the Constitution provides an individual right to carry guns. Today, Justice Thomas made matters worse by imposing a legal standard on gun regulations that similarly has no basis either in the text of the Second Amendment or in history. Are you surprised?
The gist of this opinion is that gun regulations (even those in effect for over a century) will be judged in the future solely on the basis of whether they are analogous to restrictions in existence in 1791, and that the burden of proving the analogy will be on the government. In this case, the state provided a mountain of evidence relating to gun regulations in England prior to the Revolution, in the colonies prior to the adoption of the Second Amendment, and in American states and territories subsequent to 1791. Thomas, the self-appointed final arbiter of American history, takes on this mountain of evidence piece by piece and finds every bit of it wanting. Circumstances have changed, or the law wasn’t exactly on point, or it was an outlier, or the analogy is too strained, or the law was too old to matter, or the law was too new to matter. None of it was good enough to overcome the presumption operating in favor of guns.
This experience is going to be repeated over and over again, particularly with analogies to 18th century weapons and “sensitive places,” a term not found in the Second Amendment. The lower courts will make its best guess as to whether an analogy works or not, and then Thomas will find that it doesn’t. No gun law is going to survive this kind of biased historical scrutiny unless the Roberts/Kavanaugh concurring opinion is the real majority opinion, which is possible.
I think people should go to the street where Thomas lives armed with AR-15s and tell him his neighborhood is not, historically speaking, a “sensitive place.” When he complains he is being threatened, the left can argue that they are just exercising the Second Amendment rights he values so highly. As to the goose, so the gander.