Tag Archives: law

The Court’s problems run deeper than Roe

https://www.inquirer.com/opinion/cartoons/supreme-court-packing-amy-coney-barrett-confirmation-hearing-20201022.html

On September 10, the New York Post ran the headline “Chief Justice John Roberts defends Supreme Court legitimacy“. His speech the previous evening at a conference of judges in Colorado inspired discussions on several news networks around the question: Is the current Supreme Court legitimate?

I was reminded of this passage from the 1948 political novel All the King’s Men.

It was one of those embarrassing questions like “Do you think my wife is virtuous?” or “Did you know I am a Jew?” which are embarrassing, not because of anything you might say for an answer, the truth or a lie, but because the fellow asked the question at all.

The problem isn’t so much how anyone might answer the question of the Court’s legitimacy, but that we have to answer it at all. It didn’t used to be up for debate; but now it is. The Court has done that to itself.

Polls show the Court’s approval rating at record lows. Court-packing — expanding the Court [1] so that new justices can be appointed — had been off the table politically since FDR tried it in the 1930s. But in a Marquette Law School poll taken earlier this month, 18% strongly favored increasing the number of justices, and 33% somewhat favored it, adding up to a slim majority. With some demographic groups, court-packing was fairly popular:

Expanding the court was favored by larger majorities of a number of groups: 63% of Black respondents, 61% of Hispanic respondents, 60+% of those ages 18-44, 60% of women and 56% of those making less than $30,000 per year.

These kinds of numbers matter, not because Congress is likely to take up a court-packing proposal, much less pass one, but because the whole idea constitutes a blasphemy against the mythology of the Court. The Supreme Court is supposed to be a kind of priesthood, whose lifetime appointments remove them from the hurly-burly of worldly concerns. In his confirmation hearing in 2005, Roberts waxed idealistic:

Mr. Chairman, I come before the committee with no agenda.

I have no platform.

Judges are not politicians who can promise to do certain things in exchange for votes.

I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench. And I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability. And I will remember that it’s my job to call balls and strikes and not to pitch or bat.

So what’s Roberts’ defense of the Court now?

Simply because people disagree with opinions, is not a basis for questioning the legitimacy of the court

But the problem isn’t just that the Court’s reversal of Roe — or its rulings on guns or voting rights or campaign finance or the separation of church and state — aren’t popular. The Court’s legitimacy problem runs much deeper.

The law changed not because anything changed in the world, but because new justices joined the Court.

It’s not unheard of for the Supreme Court to reverse a precedent that has stood for many years. Plessy v Ferguson, for example, established the separate-but-equal principle in 1896, and was reversed by Brown v Board of Education in 1954. But the contrast between the Brown and Dobbs reversals is striking.

The Brown reversal was unanimous, not a 5-4 decision where the three most recently appointed justices made the difference. The arguments in Brown represented a change in tactics from those in Plessy. And the world had changed around Plessy: The Brown decision cited recent psychological research on the effects of segregation on Black children; the federal government submitted a brief about how racial discrimination was hurting the United States in the Cold War competition in Africa and Asia; Black soldiers had fought for the US in two world wars; and the supposed inferiority of Black people had been challenged in sports by athletes like Jesse Owens, Joe Louis, and Jackie Robinson.

But what created the Dobbs decision was the appointment of new justices. Donald Trump had run on the promise that his judicial nominations would be “all picked by the Federalist Society“, which opposed abortion rights. He fulfilled that promise: He made three appointments, all of whom voted to overturn Roe.

Squaring that record with Roberts’ confirmation-hearing idealism requires a lot of unconvincing verbal gymnastics: True, Gorsuch, Kavanaugh, and Barrett didn’t get votes in the Senate by promising to overturn Roe. (Quite the opposite, they secured the final votes they needed by promising to respect precedent, which they did not do.) The political process was more roundabout: Trump promised to let the Federalist Society pick his judges, and Gorsuch, Kavanaugh, and Barrett sent the Federalist Society sufficient signals to convince them that they would overturn Roe.

So yes, they are politicians who got their positions by (indirectly) promising to do certain things. They were put on the Court to pitch and bat, not to call balls and strikes. That fact was widely known, and anti-abortion legislatures intentionally teed up laws that would allow the new justices to overturn Roe.

The Court’s conservative majority is due to political shenanigans in the Senate.

When Justice Scalia died, President Obama nominated Merrick Garland to replace him. Garland had a spotless record that left Republican senators no excuse to vote against him. So instead Majority Leader Mitch McConnell just refused to recognize that Garland had been nominated at all, ignoring the Constitutional directive to advise and consent on nominations, giving the excuse that the Garland nomination was too close to the 2016 election. That argument went out the window, though, when Ruth Bader Ginsburg died, and Barrett’s nomination was raced through the Senate so that she could be seated in time for any 2020 election controversies.

The exchange below is instructive: Al Franken says the Garland/Barrett hypocrisy “destroyed the legitimacy of the Court”. Republican Alice Stewart argues that the Garland maneuver is what happens “historically” when the Senate is controlled by a different party than the White House. And Franken refuses to let that lie pass: “When has it ever happened before?” he demands, and won’t stop asking the question, because Stewart can’t answer. It had never happened before.

The Court’s conservative majority is the result of minority rule.

The Founders strongly believed in the sovereignty of the People, but they left two major loopholes in the Constitution that have opened the door to minority rule: the Electoral College and the Senate. The Court’s current majority could not exist without both of them.

Trump’s three justices would never have been appointed if the Electoral College in 2016 had not reversed the decision of the voters: Hillary Clinton beat Trump nationally by nearly three million votes. [2] Worse, Mitch McConnell’s Senate majority did not represent a majority of the American people.

For the last thirty years, Republican Senate majorities have relied not on the support of a majority of American voters, but on using small-state victories to overcome large-state defeats. Since 1990, there has been only one six-year election cycle (i.e., the period during which all Senate seats come up for election) when Republican Senate candidates got more votes than their Democratic opponents. It hasn’t happened since the 1994/1996/1998 cycle. [3]

In other words, if the Senate represented the American people, Mitch McConnell would never have been majority leader.

Under a majority-rule constitution, a Democratic-majority Senate would have seated Merrick Garland, Hillary Clinton would have nominated Ruth Bader Ginsburg’s replacement to a Democratic-majority Senate, and Justice Kennedy would be hoping to live long enough to see a Republican president. Liberals would have a 5-4 majority, counting the sometimes-liberal Kennedy as part of the conservative 4.

http://thecomicnews.com/edtoons/2019/0703/gerry/01.php

The Court actively participates in a minority-rule vicious cycle.

It would be one thing if happenstance (such as who dies when) had created the conservative Court majority, and that Court went on to make impartial principled rulings about elections.

But conservative justices on the Court have been actively promoting the minority rule that installed them. Justice Roberts, for example, wrote the 5-4 opinion that gutted the Voting Rights Act, and has continued to chip away at what remains of it. [4]

That opinion has allowed Republicans to pass voter suppression laws in swing states like Georgia and Wisconsin, which might well decide which party controls the Senate next year. Roberts’ ruling could make the difference that puts Mitch McConnell back into a position where he could block a Biden nominee if some member of the Court’s conservative majority should happen to die or retire unexpectedly.

It’s a vicious cycle: A Court approved by minority rule extends minority rule.

The Roberts Court has put its thumb on the electoral scales in a variety of other ways, consistently favoring Republicans. It has refused to ban gerrymandering, arguing the absurd point that the voters should take action against the very gerrymandering that makes their votes irrelevant. It has opened the spigots of corporate campaign donations and dark money, which overwhelmingly flows to conservative candidates.

Again, we can see the results: Democrats currently lead in the generic congressional ballot polls by an average of 1.3%. And yet Republicans are favored to control the House. Why? Because Democrats have to win by 3-5% to gain a majority of seats.

Compare two recent “wave” elections. In 2018, 53.4% of voters supported Democratic House candidates, compared to 44.8% who supported Republicans. Those votes gave Democrats a 235-199 majority.

In 2010, 51.7% voted for Republican House candidates compared to 44.9% for Democrats. The resulting Republican majority? 242-193.

Fewer Republican votes yield more Republican seats. That’s a problem for people who believe in democracy, but not for the Roberts Court. The more Republican seats, the better.

It could soon get worse. The Court has decided to hear Moore v Harper, a case which raises the once-absurd “independent state legislature” doctrine. Under this theory, rules for federal elections are set by state legislatures, and no one can overrule them: governors can’t veto and state supreme courts can’t find that they violated the state constitution.

When you consider that some state legislatures are so gerrymandered that they aren’t really democratic institutions any more [5], giving them total control of federal elections is a recipe for permanent minority rule.

The Court has an ethics problem.

The only ethics code that applies to the justices is the vague “good behavior” standard in the Constitution. Each justice makes his own decisions about conflicts of interest and whether to recuse from a case. The current justices are abusing that lack of standards.

The most egregious recent case is Clarence Thomas, who rules on cases where his wife has an interest.

But also, a federal panel in 2018 dismissed 83 ethics complaints against Brett Kavanaugh, not because they weren’t serious, but because “there is no existing authority that allows lower court judges to investigate or discipline Supreme Court justices.” And we have since discovered that the FBI investigation into Christine Blasey Ford’s sexual assault accusation against Kavanaugh was rigged to find nothing.

Unpopularity is just the beginning.

Any judge has to be ready to bear the heat of making an unpopular decision, if that’s what the rule of law requires. But when changes on the Court immediately lead to changes in the meaning of the laws, the public is right to be suspicious.

And when those changes on the law are based on a minority’s ability to change the Court without ever changing the minds of the electorate, that’s a problem. Vox’ Ian Millhiser sums that problem up:

The Dobbs decision is the culmination of a decades-long effort by Republicans to capture the Supreme Court and use it, not just to undercut abortion rights but also to implement an unpopular agenda they cannot implement through the democratic process.

Worse, the Court is abusing its power to change the democratic process itself, and so is rewarding the party that installed it.

That — and not a few unpopular decisions — is the source of the Court’s legitimacy problem.


[1] Many people think the number of justices is set in the Constitution, but it isn’t. Article III says simply:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

leaving the details of the Court totally up to Congress. The actual number of justices has changed many times. The original court had six justices. The nine-justice court was established in 1869, and has stayed at nine ever since.

The objection to court-packing is obvious: It sets up the possibility of a tit-for-tat cycle, where new justices are approved whenever a new party takes power. But accepting that argument leaves a question unanswered: The Court has already been packed. What should be done about that?

[2] Some people add Justice Alito to this total, because he was appointed by George W. Bush, who lost the popular vote to Al Gore in 2000. However, Bush nominated Alito during his second term, after winning the popular vote in 2004. You can argue that if Gore had been elected in 2000, Bush couldn’t have been re-elected in 2004. But that argument takes us a little too far down the alternate-history rabbit hole. Gore might have lost his re-election bid in 2004, and the Republican who beat him might have appointed someone like Alito.

[3] The Senate that confirmed Amy Coney Barrett in 2020 is a good example. During the 2014/2016/2018 election cycle (when the senators serving in 2020 were elected), Democratic Senate candidates got 50.3% of the votes compared to the Republicans’ 43.3%. But that minority of votes netted the Republicans a 53-47 majority.

[4] It’s impossible to read Roberts’ 2013 Voting Rights Act decision as a legal argument; it’s a political argument, pure and simple. Here’s my summary at the time:

The VRA was vaguely justified in 1965 and is vaguely unjustified now, because “things have changed”. If I were a congressman, I would have no idea how to revise the VRA so that it passes constitutional muster. If Congress does revise it, lower court judges who rule on it will just be guessing about its constitutionality. It will have to go back to the Supreme Court before anyone knows whether it’s really a law again, because there are no standards in Roberts’ opinion by which a revision can be judged.

[5] According to a report by the Schwartzenegger Institute:

59 million Americans live under minority rule in their U.S. state legislatures following the 2018 elections. Minority rule is defined as the party with the minority of votes in the most recent election nevertheless controlling the majority of seats in the state legislature subsequent to that election. Six U.S. state legislatures were drawn by legislatures or partisan-leaning committees that resulted in minority rule following the 2018 elections. These states are Michigan, North Carolina, Ohio, Pennsylvania, Virginia, and Wisconsin

Note that all six of those states were Republican legislatures ruling over a Democratic electorate.

Three Supreme Court decisions with long-term consequences

https://claytoonz.com/2022/06/26/scotus-erode-us/

Scrapping abortions rights got the headlines. But don’t ignore the Court’s assault on gun regulations and the separation of church and state.


Late June tends to be a big time for the Supreme Court. Like freshmen who have put off writing their term papers until the last minute, the Court typically unleashes a flurry of decisions just before leaving town for the summer.

The end of this term has been more significant than most. Last week, three major decisions were published, along with several lesser decisions. The Dobbs decision reversing Roe v Wade was immediately consequential, as abortion has already effectively become illegal in a number of states, with more to follow soon. But it also laid the groundwork for future decisions reversing a number of rights: the right to marry someone of the same sex or a different race, to access contraception, or to choose (with your consenting partner) your own sexual practices.

The week’s other two decisions had fewer immediate consequences, but similarly looked like the first steps down a long road. Carson v Makin directly affects only a few families in rural Maine, but announces the Court’s intention to drastically redraw the line between Church and State. NY State Rifle & Pistol v Bruen tosses out a New York gun regulation that has stood for a century, but similarly calls all gun regulations into question.

Let’s take them one by one.

Abortion. Justice Alito’s majority opinion striking down Roe v Wade has barely changed since I wrote about the draft that leaked out in May. So I won’t repeat that material, but instead will focus on the concurrences and dissents from other justices.

Justice Alito’s majority opinion tried to minimize the consequences of this decision, which on the surface only [only!] reversed Roe, but also created a blueprint for throwing out all the substantive-due-process rights. Justice Thomas, on the other hand was explicit about where he wants the Court to go next:

in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is “demonstrably erroneous,”, we have a duty to “correct the error” established in those precedents. After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated.

https://www.washingtonpost.com/opinions/2022/06/24/first-domino/

Thomas forgot to mention one other substantive-due-process case: Loving v Virginia, which makes his own interracial marriage legal. (I can see how that might start a difficult conversation: “Sorry, honey, but we were never really married.”) Given the anti-miscegenation laws that existed when the 14th Amendment passed in 1868, it’s hard to see how Loving survives the kind of historical analysis the Court did this week in both Dobbs and Bruen.

Leaning the other way, Justice Kavanaugh not only ignored future reversals, but tried to gloss over the radical nature of this one:

On the question of abortion, the Constitution is therefore neither pro-life nor pro-choice. The Constitution is neutral and leaves the issue for the people and their elected representatives to resolve through the democratic process in the States or Congress—like the numerous other difficult questions of American social and economic policy that the Constitution does not address.

The obvious implication of that statement is that Kavanaugh would not overrule Congress if it did codify reproductive rights. However, given how duplicitous Kavanaugh has already been on this issue, I wouldn’t count on him following through if such a case reached the Court.

He also waxed philosophical:

The Constitution does not grant the nine unelected Members of this Court the unilateral authority to rewrite the Constitution to create new rights and liberties based on our own moral or policy views.

I’ll be interested to see if Kavanaugh stands by this position the next time a corporate personhood case comes before the Court. The Constitution says nothing about corporations, and yet conservative judges have had no trouble reading between the lines to find “new rights and liberties” for these wealthy and immortal beings.

As I predicted in March, Chief Justice Roberts concurred in upholding Mississippi’s ban on abortions after 15 weeks, but not in overturning Roe completely.

Our abortion precedents describe the right at issue as a woman’s right to choose to terminate her pregnancy. That right should therefore extend far enough to ensure a reasonable opportunity to choose, but need not extend any further—certainly not all the way to viability. Mississippi’s law allows a woman three months to obtain an abortion, well beyond the point at which it is considered “late” to discover a pregnancy.

That’s typical Roberts, as you’ll see below in the Carson case. He also would destroy Roe, but do it over a period of years by pecking it to death. In this dissent, he makes a doctrine out of that approach:

If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.

Going back to the corporate personhood example, Roberts didn’t recommend this kind of restraint in Citizens United.

The Court’s three liberal justices — Breyer, Kagan, and Sotomayor — wrote a common dissent. Interestingly, they agreed with Thomas that abortion rights are tied to all the other substantive-due-process rights.

The lone rationale for what the majority does today is that the right to elect an abortion is not “deeply rooted in history”: Not until Roe, the majority argues, did people think abortion fell within the Constitution’s guarantee of liberty. The same could be said, though, of most of the rights the majority claims it is not tampering with. The majority could write just as long an opinion showing, for example, that until the mid-20th century, “there was no support in American law for a constitutional right to obtain [contraceptives].” So one of two things must be true. Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid-19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.

The dissent challenges the legitimacy of ignoring stare decisis to reverse the Roe and Casey precedents.

No recent developments, in either law or fact, have eroded or cast doubt on those precedents. Nothing, in short, has changed. … The Court reverses course today for one reason and one reason only: because the composition of this Court has changed. Stare decisis, this Court has often said, “contributes to the actual and perceived integrity of the judicial process” by ensuring that decisions are “founded in the law rather than in the proclivities of individuals.” Today, the proclivities of individuals rule.

It attacks Alito’s history-alone reasoning. If “liberty” means exactly what it did in 1868, that has a lot of unfortunate consequences, particularly for women.

The Court [in Casey] understood, as the majority today does not, that the men who ratified the Fourteenth Amendment and wrote the state laws of the time did not view women as full and equal citizens. A woman then, Casey wrote, “had no legal existence separate from her husband.” Women were seen only “as the center of home and family life,” without “full and independent legal status under the Constitution.” But that could not be true any longer: The State could not now insist on the historically dominant “vision of the woman’s role.”

https://theweek.com/political-satire/1014636/open-carry

Guns. In Bruen, Justice Thomas writes for the six conservative justices. Thomas is the justice whose thought process seems most alien to me, and here he loses me early on:

In keeping with Heller, we hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.

Heller is the 2008 case in which Justice Scalia invented an individual right to bear arms, independent of any notion of “a well-regulated militia”, as if the Founders just threw that phrase into the Second Amendment on a whim.

Judges and legal scholars before Scalia had laughed at this interpretation, which had not figured in any previous Supreme Court decision since the beginning of the Republic. In 1990, retired Chief Justice Warren Burger, who had been appointed by Richard Nixon and at the time was not anyone’s idea of a liberal, called such an interpretation of the Second Amendment “a fraud on the American public“. John Paul Stevens, who wrote the primary dissent in Heller, called it “the Supreme Court’s worst decision of my tenure“.

And then we get to “the Second Amendment’s plain text”. I have explained previously (and at length) why I don’t think the text of the Second Amendment means anything at this point. (Briefly, the Founders’ vision of the role of the militia bears no resemblance to any institution that currently exists: not the National Guard, and certainly not self-appointed yahoos who run around in the woods wearing camo. History just went a different way. The Second Amendment, basically, is a signpost on a road not taken.) So the idea that the Second Amendment has a “clear text” that “covers” something in today’s world — that’s just wrong. If we can’t repeal it and start over, the most sensible approach would be to ignore it.

Anyway, Heller is the archetypal “originalist” decision: It does some grammatical sophistry that has basically nothing to do with the issues the Founders actually cared about, and then — surprise! — deduces that the Founders agreed with the author.

This is what Thomas is building on.

Thomas follows the statement above with:

The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”

The regulation in question in this case is New York’s state law that requires gun owners to have a license, and which denies licenses for people to carry guns outside their homes unless they “demonstrate a special need for self-protection distinguishable from that of the general community.” The two New Yorkers bringing suit claim that it should be up to them to decide if they need a gun for self-defense, not up to the state.

Thomas then has to judge whether this regulation is “consistent with the Nation’s historical tradition of firearm regulation”. But he then edits that history in a very convenient way: Pre-colonial English history is too early to matter (though it wasn’t when assessing abortion laws in Dobbs). Gun regulations in the Wild West come too late. Even colonial and federal-era history can be swept away with the proper hand-waving.

Thus, even if these colonial laws prohibited the carrying of handguns because they were considered “dangerous and unusual weapons” in the 1690s, they provide no justification for laws restricting the public carry of weapons that are unquestionably in common use today.

And two post-Civil-War cases in Texas “support New York’s proper-cause requirement”, but they can be dismissed as “outliers”. When the Kansas Supreme Court upheld a “complete ban on public carry enacted by the city of Salina in 1901”, its decision was “clearly erroneous”. And the New York law Thomas is overturning was passed in 1911. (Justice Breyer’s dissent correctly sums up Thomas’ historical analysis as “a laundry list of reasons to discount seemingly relevant historical evidence.” The dissent in Dobbs makes fun of how Thomas’ cramped view of history in this case contrasts with Alito’s expansive citation of sources back to the Middle Ages in Dobbs. Thomas, naturally, signed on to Alito’s opinion, and his concurrence did not correct Alito’s historical analysis.)

Thomas’ whole historical method ignores the possibility that early American legislators believed they had a perfect right to regulate firearms, but didn’t see any special need at the time. (Breyer: “In 1790, most of America’s relatively small population of just four million people lived on farms or in small towns. Even New York City, the largest American city then, as it is now, had a population of just 33,000 people. Small founding-era towns are unlikely to have faced the same degrees and types of risks from gun violence as major metropolitan areas do today, so the types of regulations they adopted are unlikely to address modern needs.”)

And so, having adopted Heller’s interpretation of the Second Amendment and eliminated any conflicting examples from consideration, Thomas reaches his conclusion.

At the end of this long journey through the Anglo-American history of public carry, we conclude that respondents have not met their burden to identify an American tradition justifying the State’s proper-cause requirement. The Second Amendment guaranteed to “all Americans” the right to bear commonly used arms in public subject to certain reasonable, well-defined restrictions. Those restrictions, for example, limited the intent for which one could carry arms, the manner by which one carried arms, or the exceptional circumstances under which one could not carry arms, such as before justices of the peace and other government officials. Apart from a few late-19th-century outlier jurisdictions, American governments simply have not broadly prohibited the public carry of commonly used firearms for personal defense. Nor, subject to a few late-in-time outliers, have American governments required law-abiding, responsible citizens to “demonstrate a special need for self-protection distinguishable from that of the general community” in order to carry arms in public.

Justice Breyer’s dissent raises the central failing of Thomas’ dogmatic approach.

The question before us concerns the extent to which the Second Amendment prevents democratically elected officials from enacting laws to address the serious problem of gun violence. And yet the Court today purports to answer that question without discussing the nature or severity of that problem.

In other words, Thomas loses himself in estimating how many angels could dance on a pinhead in the 1790s, without any concern for what is happening today. (Alito’s concurrence berates Breyer for even daring to consider the present-day problem the law in question is trying to address.) Breyer finds that “decisions about how, when, and where to regulate guns [are] more appropriately legislative work”, and that judges should show “modesty and restraint” in overruling legislatures who take on that work. And he raises this key question:

[W]ill the Court’s approach permit judges to reach the outcomes they prefer and then cloak
those outcomes in the language of history?

I think we know the answer to that one.

https://www.reformaustin.org/author/nick-anderson/

Church and State. Because John Roberts doesn’t sign on to decisions like Alito’s reversal of Roe, he has gotten an image as the “moderate” on the Court. I don’t think that’s exactly true. Roberts is every bit as radical as the five who signed Alito’s opinion. He just moves towards his extreme goals in a stealthier, more step-by-step fashion. Roberts is like the thief who doesn’t strip your whole orchard in one night; but he leaves a hole in the fence and keeps coming back.

Campaign finance is a good example. Roberts didn’t destroy Congress’ ability to control political contributions in one fell swoop. He ate away at it over a period of years.

His majority opinion in Carson v Makin is similarly one of a series of cases that eats away at separation of church and state. On the surface, this decision doesn’t do much: A handful of families who live in rural areas of Maine will be able to get state support to send their children to conservative Christian schools, in spite of the Maine legislature’s attempt not to fund such schools. (And even they won’t get support for the schools they want, because Maine’s law also disqualifies schools that discriminate against gays and lesbians.)

To get that tiny result, though, Roberts blows a big hole in the wall between church and state. New cases will be coming through that hole for years to come, and the principles established in Carson will funnel more and more public funding to the Religious Right.

Here’s the background: Some rural areas of Maine have so few students that it’s not worth supporting a public high school. Instead, some of them contract with high schools in neighboring districts to take their students. But some don’t even do that. If you live in one of those, you can get tuition reimbursement from the state to send your children to a private high school that meets certain requirements. One requirement is that the school be “nonsectarian”. That condition was added in 1981, after the state attorney general ruled that paying tuition to a sectarian school would violate the Establishment Clause of the First Amendment.

Maine has a fairly narrow definition of “sectarian”. It’s OK for a school to be founded by or associated with a church or other religious organization. But public money was banned from going to a school which

in addition to teaching academic subjects, promotes the faith or belief system with which it is associated and/or presents the material taught through the lens of this faith.

The two families that brought suit against this policy live in Glenburn (population 4,648) and Palermo (1,570). They want Maine to help them pay tuition to schools that clearly are sectarian. For example, one of the schools, Temple Academy, has as its mission statement:

Temple Academy exists to know the Lord Jesus Christ and to make Him known through accredited academic excellence and programs presented through our thoroughly Christian Biblical world view.

It goes on to pledge

To provide a sound academic education in which the subject areas are taught from a Christian point of view.

To help every student develop a truly Christian world view by integrating studies with the truths of Scripture.

So Temple is not like a nominally Catholic or Baptist school where students of other faiths might opt out religion classes or worship services. Students who attend any classes at all are being indoctrinated in a conservative Christian worldview, and part of every teacher’s job is to promote a particular version of Christianity.

Also, the Maine law is not like a voucher program, where the legislature delegates choice of schools to parents, understanding that some parents will choose sectarian schools. Maine’s legislature tried NOT to fund religious indoctrination; but Roberts’ decision says that it MUST.

This is new, and it is radical.

Justice Breyer’s dissent (Breyer, who is retiring and will be replaced next term by Ketanji Brown Jackson, is going out with a bang) is a good introduction to how the Court has historically interpreted the First Amendment, which bars any government “establishment of religion” but also guarantees individual citizens “free exercise” of their religious faith. Breyer says that these two clauses are “often in tension” but express “complementary values”. Quoting previous Court decisions, Breyer imagines what motivated the amendment’s two religion clauses.

Together they attempt to chart a “course of constitutional neutrality” with respect to government and religion. They were written to help create an American Nation free of the religious conflict that had long plagued European nations with “governmentally established religion[s].” Through the Clauses, the Framers sought to avoid the “anguish, hardship and bitter strife” that resulted from the “union of Church and State” in those countries.

“Conflict” is a bit of an understatement here. In England, the Anglican/Catholic/Puritan struggle dominated the 1600s, resulting in the beheading of Charles I, a long civil war, and the Glorious Revolution of 1688. On the Continent, the Thirty Years War killed at least 4.5 million people. The Founders knew this history and desperately wanted to avoid repeating it.

Previous Courts held that the tension between the two religion clauses created “play in the joints”. In other words, states had room to navigate between them. One state might choose to draw the line in a different place than another.

States enjoy a degree of freedom to navigate the Clauses’ competing prohibitions.

Roberts started taking that freedom away when he wrote the majority opinion in the 2017 Trinity Lutheran case, where Missouri was forced to include religious schools in a grant program to make playgrounds safer. Breyer can live with that outcome (in 2017 he wrote a partial concurrence), but doesn’t think that decision forces this one.

Any Establishment Clause concerns arising from providing money to religious schools for the creation of safer play yards are readily distinguishable from those raised by providing money to religious schools through the program at issue here—a tuition program designed to ensure that all children receive their constitutionally guaranteed right to a free public education. After all, cities and States normally pay for police forces, fire protection, paved streets, municipal transport, and hosts of other services that benefit churches as well as secular organizations. But paying the salary of a religious teacher as part of a public school tuition program is a different matter.

It’s striking that in this case (as in the gun case above) it is Breyer and the liberals, not Roberts (or Thomas) and the conservatives, who are defending states rights.

We have never previously held what the Court holds today, namely, that a State must (not may) use state funds to pay for religious education as part of a tuition program designed to ensure the provision of free statewide public school education.

The cases Roberts cites as precedents, Breyer says, don’t justify this shift from permission to requirement.

In the majority’s view, the fact that private individuals, not Maine itself, choose to spend the State’s money on religious education saves Maine’s program from Establishment Clause condemnation. But that fact, as I have said, simply permits Maine to route funds to religious schools. It does not require Maine to spend its money in that way.

This particular decision may not affect many Americans. But Breyer sees clearly where Roberts is headed.

What happens once “may” becomes “must”? Does that transformation mean that a school district that pays for public schools must pay equivalent funds to parents who wish to send their children to religious schools? Does it mean that school districts that give vouchers for use at charter schools must pay equivalent funds to parents who wish to give their children a religious education? What other social benefits are there the State’s provision of which means—under the majority’s interpretation of the Free Exercise Clause—that the State must pay parents for the religious equivalent of the secular benefit provided? The concept of “play in the joints” means that courts need not, and should not, answer with “must” these questions that can more appropriately be answered with “may.”

And doesn’t Roberts’ policy implicitly favor more popular religions?

Members of minority religions, with too few adherents to establish schools, may see injustice in the fact that only those belonging to more popular religions can use state money for religious education.

After all, who but Christians will be able to find a market for religious schools in rural Maine? This is a problem I have had with the conservative view of “religious freedom” all along: In practice, it only gives rights to conservative Christians — or, completely by accident, to other religious groups who happen to agree with conservative Christians on a particular issue like abortion or homosexuality.

So it may be amusing to imagine how this ruling might someday be used to make Evangelical taxpayers support a Muslim madrassah, or some other school they would abhor. But I question whether such a thing will ever happen. This Court’s sectarian majority believes in special rights for Christians. It will find ways around extending those rights to anyone else.

Here’s how Sherry Kolb put it in “Are Religious Abortions Protected?“, where she examines the argument (raised in a recent lawsuit filed by a Florida synagogue) that a Jewish doctor may feel religiously obligated to perform an abortion in situations where a state has banned them.

Despite appearances to the contrary, this Court is not especially friendly to Free Exercise claims. … Its rulings instead reflect its friendliness to conservative Christianity and, accordingly, to Judaism and Islam where the ask is minimal or the traditions happen to be the same. Christians can violate the anti-discrimination laws for religious reasons because they are Christians. The sooner we come to understand that the Court is all about Christianity rather than some capacious vision of religious liberty for all, the sooner we will begin the process of finding solutions to our modern-day theocracy problem that do not ask the Court to behave with integrity or consistency.

Repeating myself about guns

https://theweek.com/political-satire/1013894/the-web

The only change since the last time I covered this issue is that more people have died.


From your cousin on social media to TV talking heads and syndicated columnists, everybody who comments on current events is facing the same conundrum: What do you say when nothing has changed since the last time you spoke out? There are no new insights to offer, no arguments that didn’t prove to be futile last time.

And yet, how can you stay silent? Silence is complacency that can even be interpreted as consent. Ten-year-olds get massacred in a public school? Grandmothers get killed for shopping-while-Black? Asians get shot at a church luncheon? It happens. This is America. Things that don’t happen anywhere else happen here, sometimes one right after another. And in spite of all the other countries that have responded to horrifying mass killings by taking effective action, nothing can be done here. This is America.

This week, I’ve decided to be open about the fact that I have nothing new to say. December 14 will be the tenth anniversary of the Sandy Hook massacre of 20 six- and seven-year-olds. April 20 was the 23rd anniversary of Columbine. So I’ve had decades to compose my thoughts on mass shootings and gun control. There’s very little I can write that I haven’t written before.

So rather than repeat everything as if I just thought of it, I’ve decided to post a guide (and partial update) to my previous posts on guns. [1]


My most serious look at America’s gun problem was “How Should We Rewrite the Second Amendment?” in 2019. Google, in its great algorithmic wisdom, recommended that post to people interested in the Second Amendment, netting me more than 18,000 page views and 300 comments, almost all of them negative.

The gist of my essay was that we argue so vociferously about the Second Amendment because it no longer has any recoverable meaning relevant to current issues. From the Supreme Court to that loud guy at the bar, anybody who “interprets” the Second Amendment and “applies” it to today’s world is really just making stuff up. We yell our own particular interpretations so loudly because interpretation is all we have at this point. To the extent that we can discern the “original intent” of the Founders at all, it’s completely tangential to anything happening today.

So I proposed that we replace the Second Amendment with a new amendment to capture what we really want out of guns in this era. The core of my rewrite was:

Congress shall make no law preventing individuals from securing adequate means to defend their homes and persons, or preventing state or local governments from equipping police forces adequate to enforce their laws and ensure public safety.

I gave the federal government explicit permission to regulate interstate transportation and sale of guns, while granting states the power to regulate guns within their borders.

In the face of the pushback, I wrote a sequel the next week to summarize and address my critics’ points. In retrospect, I’m surprised how much good humor I maintained after all that abuse.

https://billingsgazette.com/news/opinion/guest/ask-the-judge-how-the-second-amendment-was-written/article_b11e679d-d42e-5e75-943a-9549c5d06b1d.html

Militiaman

As for what the Constitution doesn’t say about guns, see my 2018 post “Three Misunderstandings about Guns and the Constitution“. In particular, the Second Amendment was never intended to facilitate an armed uprising against the federal government.

The “well-regulated militia” it envisioned was supposed to make a large federal standing army unnecessary, not to fight against one. Militias, in the Founders’ vision, would enable state and local governments to maintain public peace and enforce their laws without begging the feds for help. Because of the militias, the federal army would only be needed in case of war with a foreign power like Britain or Spain, and otherwise would be a tiny force that wouldn’t tempt an unpopular president to stage a coup.

Not a militiaman

One reason why I later proposed rewriting the amendment was that all the ships in the Founders’ harbor sailed long ago. The outcome the Founders wanted to avoid when they wrote the Second Amendment is already here: We do have a large standing army with forts all over the country, as well as various kinds of federal police from the FBI to DEA to Treasury to TSA to ICE. We can still argue about whether any of that was a good idea. But one way or the other, here we are.


In 2016 I observed that “Our gun problem IS a terrorism problem“. Given our lax gun laws, complex 9-11-style plots aren’t necessary. Also in 2016, “The Asterisk in the Bill of Rights” pointed out how Second-Amendment rights really only belong to White people.


But perhaps my best gun post is “Guns are security blankets, not insurance policies” from 2015. This looks at the psychology of the gun issue, building on a tweet from cyberpunk novelist William Gibson:

People who feel safer with a gun than with guaranteed medical insurance don’t yet have a fully adult concept of scary.

One reason the gun debate goes nowhere is that the two sides aren’t really discussing the same issue. Gun-control advocates are looking at a public-health problem: Guns kill tens of thousands of Americans every year. What can be done to lower that total?

If that’s how you frame the issue, you look at numbers and graphs and examine how reforms have worked in other countries.

But most pro-gun arguments are story-based, because gun advocates are addressing something else entirely: Sometimes a dark fantasy gets stuck in your head and you can’t get it out. What do you do about that? Armed intruders invading your home, your daughter getting raped in the park, roaming street gangs killing people at random — those images can disrupt your peace of mind, no matter what the statistics say about their probability. Some policy change that experts predict would cut rapes in half, for example, doesn’t really help you deal with the what-if in your brain.

That’s what a gun is for. It’s a magical talisman that enables a counter-fantasy you can invoke to dispel whatever dark fantasy might be plaguing you. Home invaders? You’ll win a shoot-out with them. Your daughter? She’ll manage to get the gun out of her backpack and plug the guy before he can take it away and shoot her instead. (And the gun will never haunt her imagination on days when she’s feeling suicidal.) Gangs? You, the neighbors, and your AR-15s will form an impromptu urban warfare platoon to take them out.

Will any of that work in reality? Hardly ever, as ABC demonstrated with this gun-training exercise. But realistic thinking misses the point. If the problem lives in your personal fantasy world, a fantastic solution works just fine.

That’s why even the most common-sense gun reforms get bogged down in improbable scenarios. As in this argument against limiting the size of gun magazines: “Criminals don’t always act alone. It is often necessary to have enough ammunition to hold off multiple assailants.” Often? Would that be “often in the author’s experience” or “often in the author’s dark fantasies”?

We’ve seen that division play out this week. Gun-control advocates are looking at statistics, like how the number of gun deaths in a state correlates with the number of guns.

Meanwhile, the NRA’s mouthpieces float action-movie ideas that may help you overcome your paralyzing my-child-gets-killed-at-school nightmare, but are totally disconnected from reality.

Texas Attorney General Ken Paxton’s arm-the-teachers suggestion is a good example. Maybe a teacher with a gun gives his particular school-shooting fantasy a happy ending. But until she retired a few years ago, my sister was an elementary school teacher in the real world. Try as I might, I can’t picture her outshooting an attacker who has an assault rifle, body armor, and the element of surprise.

But maybe Paxton is imagining something more like Kindergarten Cop, where Arnold Schwarzenegger is an LAPD detective who goes undercover as a teacher. No doubt that movie character would fare much better against a shooter than my sister would. Which raises the question: What if we stopped recruiting teachers from wimpy liberal arts colleges and instead hired, say, ex-special-forces operatives (without raising pay, of course)? Or maybe it would be more cost effective to train the kids to defend themselves, in a scenario something like Spy Kids, or maybe Home Alone.

I’m sure that would work. I feel better already.



[1] I’m not the only person to take this approach. The Atlantic is doing the same thing. So is James Fallows. So is cartoonist Nick Anderson.

Who’s to blame for overturning Roe?

https://www.timesfreepress.com/cartoons/2022/may/07/overturned/5402/

There’s plenty of blame to go around.


The two featured posts today look at the leaked Alito opinion overturning Roe v Wade through two very different lenses. The other post goes through the text of the opinion and examines its claims and arguments. This one considers the question: How did we get here?

In particular, whose fault is it that women in about half the states are going to lose their right to bodily autonomy, and their ability to plan their lives?

Let’s start with those most directly responsible.

Justices Alito, Barrett, Gorsuch, Kavanaugh, and Thomas. Or, as Stephen Colbert described them: “four old dudes and a woman who thinks The Handmaid’s Tale is a rom-com”.

Sometimes when we start assessing secondary blame, we lose sight of the primary blame. (Yeah, you shouldn’t have left your keys in the ignition, but the main reason your car got stolen was that some thief stole it.) Let’s not do that here: Roe is being overturned because five Supreme Court justices are putting their personal religious opinions above their duty to respect established precedents.

Now, as Justice Kavanaugh rationalized during the oral arguments, it’s not unheard of to reverse a precedent, and reversals have been some of the Court’s best decisions.

But a reversal is typically done after the Court has tried and failed to make the precedent work. That’s what happened, for example, when Brown v Board of Education (1954) reversed the “separate but equal” doctrine of Plessy v Ferguson (1893). In a series of cases from 1938 to 1950, the Court ordered students admitted to previously segregated white schools because the separate educational path provided for Black students was not really equal. In Brown, the Court drew a conclusion from that experience: Separate-but-equal schools were unworkable, because states with segregated schools would never provide a truly equal education to Black students.

But (in spite of what Alito claims, which I discussed in the other post) nothing about Roe and Casey has proven to be unworkable. The only major thing that has changed since Roe was decided in 1973 and upheld in 1992 is the composition of the Court. Alito, Barrett, Gorsuch, Kavanaugh, and Thomas are overturning Roe because they want to.

What’s more, they were all deceptive about this in their confirmation hearings. It’s arguable that they did not “lie”, depending on how tightly you define that word. (Thomas, I would argue, clearly did lie, though his lie may not be provable. It is simply unbelievable that, even though he was in law school when Roe was decided, he never participated in a discussion about it.) When asked about their approach to the Roe precedent, all five gave lawyerly answers that, in retrospect, were designed to deceive. If they could be cross-examined somewhere about their statements (which they can’t be, short of an impeachment hearing), all would have to say something similar to Bill Clinton’s “It depends on what the definition of ‘is’ is.”

And we already knew that Brett Kavanaugh lied repeatedly during his confirmation.

It is ironic, in my opinion, that these five deceivers are now trying to claim the moral high ground. They do not deserve it.

Donald Trump. It isn’t just that Trump appointed Gorsuch, Kavanaugh, and Barrett. It’s that he turned the Court over to the anti-abortion Federalist Society. Judges up and down the court system were selected by Leonard Leo, and rubber-stamped by Trump

Mitch McConnell. The reason Trump got to appoint three justices in four years is that McConnell played shenanigans in the Senate.

When Antonin Scalia died 11 months before the end of President Obama’s term, Obama nominated Merrick Garland to the Court. This was in no way a radical choice: Garland was already the chief judge on the most powerful appeals court in the country; he had been confirmed for that job by 73 senators; he was widely regarded as a moderate; and at the age of 63, he would probably only hold the seat for about 20 years, rather than 30 or 40.

In short: Obama was bending over backwards to be reasonable.

McConnell knew he could not present a valid reason not to confirm Garland, so he simply refused to hold hearings or bring the nomination to a vote, which is the process the Constitution calls for. The reason he gave was that an election was coming up, and the American people should have a chance to weigh in on this decision. (They did: Hillary Clinton got millions more votes than Donald Trump, but Trump got to make the appointment, who turned out to be Neil Gorsuch.)

McConnell also pushed Brett Kavanaugh’s nomination, and rubber-stamped the sham investigation of the sexual assault charge against him. When Ruth Bader Ginsburg died two months before the 2020 election, McConnell completely reversed his 2016 rhetoric about giving the American people a voice, and rammed Amy Coney Barrett’s nomination through in record time to give Trump his third justice.

https://www.reformaustin.org/political-cartoons/mitch-mcconnell/

The anti-democratic structure of the Senate. If the Senate were a democratic institution, Mitch would never have been majority leader to begin with, because the GOP would not have achieved a Senate majority any time in the last 24 years.

Here’s how that works: Every state gets two senators, no matter how many people it has. So Wyoming gets one senator for every 140,000 registered voters, while California gets one for every 11 million registered voters. In other words, it takes about 70 California voters have as much influence on the Senate as one Wyoming voter.

Sounds fair, right?

But you might be thinking: “Sure, blue California is under-represented compared to red Wyoming, but red Texas is also under-represented compared to blue Vermont. So maybe it all washes out.”

It doesn’t wash out. If you run the numbers, the last time Republican senators got more votes (over a complete 6-year Senate election cycle) than Democratic senators was 1994-1998. But in the 24 years since 1998, Republicans have held a Senate majority for 12 years: half the time.

In 2016, for example, when Mitch McConnell was using his Republican “majority” to keep President Obama from appointing Merrick Garland, sitting Democratic senators had gotten 50.7% of the total six-year Senate vote, compared to the Republicans’ 44.1%.

In a democratic country, Mitch wouldn’t have been majority leader at all, and Merrick Garland would be on the Court instead of Neil Gorsuch.

Similarly, during the Trump and Bush years, a democratic Senate would have had a Democratic majority. Bush probably could have gotten Alito and Roberts through anyway, because in those rose-colored days senators were not as partisan about the Court. (Alito was approved 58-42, and Roberts 78-22.) But Gorsuch, Kavanaugh, and Barrett would not have been confirmed.

Next, you might be wondering how we got such a skewed Senate. Historical accident, right?

No. Republicans in the late 1800s intentionally packed the Senate by admitting new states with tiny populations. As historian Heather Cox Richardson explained to Bill Moyers:

After 1888, when we get the installment of Benjamin Harrison in the White House, he loses the popular vote by about 100,000 votes. But he’s installed thanks to the Electoral College. The Republicans under Harrison between 1889 and 1890, they let in six new states in 12 months. That was the largest acquisition of new states in American history since the original 13 and it’s never been matched again. They let in North Dakota, South Dakota, Montana, Washington, and then Idaho and Wyoming to go ahead and make sure that they would continue to control the Senate, and the Electoral College. And they’re not hiding this. They actually go onto their media which is their equivalent of the Fox News channel at the time and say, by letting in these states, we’re going to hold onto the Senate for all time and we’re going to make sure we hold onto the White House for all time.

So if you’ve ever wondered why one Dakota wasn’t enough, that’s the reason: Republicans were packing the Senate. The Senate remains skewed in their favor to this day.

It’s almost impossible to unmake states, and hard to imagine passing a constitutional amendment to give larger states more senators, so the easiest way to change the Senate to better reflect the voting public would be to grant statehood to Puerto Rico and D.C., which presumably would elect four Democrats to the Senate. (If Democrats wanted to imitate Republicans, they could give statehood to East and West Puerto Rico, each of which could have a population roughly equal to the two Dakotas put together.) That won’t happen, McConnell says, because eliminating the Senate’s Republican bias would be “full-bore socialism“.

Also, admitting Puerto Rico and D.C. would let a lot of Hispanics and Blacks cast meaningful votes, so that’s a non-starter.

https://claytoonz.com/2022/05/03/goodbye-to-womens-rights/

The Electoral College. Like Benjamin Harrison, Donald Trump was never elected by the American people; he was installed by the Electoral College. In 2016, he got 46% of the vote, almost 3 million votes less than Hillary Clinton’s 48%. But his 46% produced 304 electoral votes to Clinton’s 227.

A less extreme miscarriage of democracy happened in 2000. That election has often been described as “close”, but it really wasn’t that close: Al Gore got half a million more votes than George W. Bush, so there was no doubt who the People chose. But after Florida was adjudicated in his favor (the vote in Florida really was close), Bush’s fewer votes turned into a 271-266 Electoral College win. (Sixteen of those electoral votes come from the aforementioned Montana, Idaho, Wyoming, and the two Dakotas. If they were all one state, it would have 5 million people, or 9 electoral votes; Bush loses.) Bush went on to appoint Justice Alito and Chief Justice Roberts.

Minority-vote presidents aren’t an accident; that’s what the Electoral College was designed to do: make some Americans’ votes count more than others. So in 2016, a few thousand voters in Wisconsin, Michigan, and Pennsylvania overruled much larger majorities in states like California, New York, and Illinois. If you’re a Californian, your vote just doesn’t matter as much as a purple-state vote. Sucks to be you.

Why did the Founders curse us with this unjust system? In a word: slavery. Votes in slave states were supposed to count more than votes in free states.

In 1787, the slave states wanted federal power comparable to their full populations (including slaves), but for obvious reasons they didn’t want to give the vote to slaves (or women, or men who didn’t own enough property). In school, most of us learned about one result of this desire to wield power in the name of people whose rights you totally deny: the 3/5ths Compromise. In setting the number of representatives a slave state got in Congress, its slave population would be included, but at a 40% discount.

That settled the House. The Senate was already undemocratic, so no problem there. But that left the presidency: If presidents were elected by the People, states that let more people vote would have more influence on the outcome.

Can’t have that, so the Electoral College was born. Each state got one electoral vote for each senator or congressman. So no matter how few people a state let vote, its influence on the presidency was guaranteed.

As Shakespeare had Marc Antony say: “The evil that men do lives after them.” Slavery ended with the 13th Amendment in 1865, but the blatant injustice of the Electoral College lives on. Women can thank it for the loss of their bodily autonomy.

https://ifunny.co/picture/evangelical-christians-actual-aclump-of-children-cells-gedxH7mc8

Theocrats. There are people who honestly believe that an ovum acquires a complete human soul the instant it bonds with a sperm. That sounds nutty to me (and it’s completely non-Biblical, so don’t tell me it’s the “Christian” position). But your religion is your own; it doesn’t have to make sense to me.

Where I lose patience is the point where people decide that their theological speculations give them the right to interfere in other people’s lives. You can believe whatever you want about fetuses and souls and abortion. But if you’re not the pregnant woman, what happens to the pregnancy is not your decision. And if no pregnant woman is asking for your advice, your opinion doesn’t matter.

The gullibility of purportedly pro-choice senators. Susan Collins isn’t the only one, but she is definitely on the poster.

My favorite Susan Collins joke describes how she gets lunch in the Senate cafeteria: She studies the menu for half an hour, and then orders the same thing as Mitch McConnell.

That’s pretty literally what happened during the Kavanaugh confirmation. Collins was one of the last senators to commit to Kavanaugh, who was confirmed 50-48. (Collins and Democrat Joe Manchin were the deciding votes.) For weeks, her agonizing decision process had us all speculating about what she would do. In the end, though, after all that dithering, she voted with Mitch McConnell, just as she had on the deficit-busting billionaire-boosting Trump tax cut, and as she did on Trump’s first impeachment. (She said Trump had learned “a pretty big lesson” from being impeached, and predicted that “he will be much more cautious in the future”. She voted to convict on his second impeachment, and says she’s “very unlikely” to support him in the 2024 Republican primaries. But in the general election? She leaves it open. Maybe failing to overthrow democracy on 1-6 taught him something.)

During her speech advocating Kavanaugh’s confirmation, Collins recounted her conversations with the nominee.

Our discussion then turned to the right of privacy, on which the Supreme Court relied in Griswold v. Connecticut, a case that struck down a law banning the use and sale of contraceptives. Griswold established the legal foundation that led to Roe eight years later. In describing Griswold as “settled law,” Judge Kavanaugh observed that it was the correct application of two famous cases from the 1920s, Meyer and Pierce, that are not seriously challenged by anyone today. Finally, in his testimony, he noted repeatedly that Roe had been upheld by Planned Parenthood v. Casey, describing it as “precedent on precedent.” When I asked him would it be sufficient to overturn a long-established precedent if five current justices believed it was wrongly decided, he emphatically said “no.”

Kavanaugh had obviously lied numerous times during is confirmation hearings, but Collins took his affirmations of Roe’s status at face value. Now she describes Kavanaugh’s apparent vote to overturn Roe as “completely inconsistent” with what he told her, but she accepts no responsibility for being such a stooge.

https://www.reddit.com/r/PoliticalHumor/comments/68x91p/but_her_emails/

Pro-choice voters who refused to vote for Hillary Clinton. Who could have foreseen that electing Donald Trump might risk ending abortion rights? Well, everyone, actually. This is from an AP article written in May, 2016:

Scalia’s death was a shock, but the next few years are almost certain to produce more vacancies. Justice Ruth Bader Ginsburg is 83, Justice Anthony Kennedy turns 80 in July and Justice Stephen Breyer will be 78 before the end of the summer. A Trump nominee in any of those seats would cement conservative domination of the court for years, if not decades. By contrast, a victory by the Democrats in November probably would lead to the most liberal Supreme Court in a half-century. …

Advocates on both sides of the abortion debate were quick to react in ways that pointed to the importance of the presidential election. “Donald Trump’s list of potential Supreme Court nominees are a woman’s worst nightmare. Their records reveal a lineup of individuals who would likely overturn Roe v. Wade if given the chance, gutting what’s left of abortion access in this country and heaping punishment on women,” said Ilyse Hogue, president of NARAL Pro-Choice America. On the other side of the issue, Susan B. Anthony List President Marjorie Dannenfelser said Trump’s list was especially strong and stood in contrast to judges Democratic front-runner Hillary Clinton would choose. “There is no question Clinton would only nominate judges who stand in lock-step with the abortion lobby and would strike down even the most modest abortion limits,” Dannenfelser said.

But here’s what Bernie-supporter H. A. Goodman was writing in November, 2015 in a Salon article “Hillary Clinton is on wrong side of everything: Stop telling me I have to vote for her because of the Supreme Court“:

Ruth Bader Ginsburg is fine and the New York Times writes that she has “no interest in retiring.” Justice Scalia isn’t stepping down from the U.S. Supreme Court soon and will only contemplate retirement when he “can’t do the job well.” Anthony Kennedy is in “no rush” to leave the Supreme Court. Justice Breyer has no plans to step down but will “eventually” retire one day.

The paranoid legions, frightful of voting their conscience and actually upholding our democracy, can rest assured that all four Supreme Court justices mentioned are still capable of lasting four more years.

It turned out that Scalia didn’t last six months. But even after his death reminded everyone that you never know, here’s an article advocating that gay progressives vote for Jill Stein, because even if those votes did happen to cost Hillary the election, “Trump would be an acceptable setback for the ultimate greater good.”

Many are quick to point out that this election is actually about who gets to nominate Supreme Court judges and I agree that it is better to elect a candidate who would nominate liberals to these positions.

But anyone who knows politics knows that all of the potentially vacant seats are currently occupied by conservatives, so in the worst case scenario, after Obama nominates, liberals will still have a 5-4 advantage.

That worked out great, didn’t it? Obama would choose Scalia’s replacement, Ginsburg would live forever, and Kennedy was already a “conservative”, so nobody needed to worry about a Federalist Society extremist replacing him. Supreme Court? Not a problem.

Every pro-choice American who has treated abortion as a secondary issue. For nearly fifty years, pro-choice politicians have hidden behind the Supreme Court, and pro-choice voters have let them do it.

Now that Roe is being overturned, Democrats are beginning to work on protecting abortion rights through federal legislation. But given their narrow majority in the Senate and a few Democratic senators’ unwillingness to end the filibuster, they will be unable to pass that legislation.

But Democrats have had Senate majorities about half the time in recent decades, and for about six months during the Obama administration, they had a filibuster-proof majority. Roe could have been codified then. Or the filibuster could have been eliminated long ago, when the party had a few votes to spare, and then Roe could have been codified.

Even if they could not pass legislation, they could have made Republicans vote it down again and again. They could have challenged those legislators to explain that vote to their constituents.

But it was easier to rely on the Court. As a result, after the Supreme Court’s protection of abortion rights ends, there is no second line of defense. Abortion rights are already gone in Texas, and will vanish in many other states in June.

It didn’t have to be this way.

What Alito wrote

https://www.ajc.com/opinion/mike-luckovich-blog/54-mike-luckovich-going-going-gone/PW5FT437ZJENHNII5YQRL2STFM/

A summary of his arguments, and how they might be used to take away other constitutional rights.


A week ago, Politico released a leaked draft of Supreme Court Justice Samuel Alito’s opinion overturning Roe v Wade. Politico claimed this was to be the majority opinion, representing not just Alito, but supported by Justices Thomas, Gorsuch, Kavanaugh, and Barrett as well. The draft dates from February, and we do not know what revisions may have been made since. The decision on the case (Dobbs v Jackson Women’s Health) is expected to be released before the Court’s current term ends in June.

The case concerns a Mississippi law that bans abortions after 15 weeks, in violation of the existing Supreme Court precedents. The Court has three basic options:

  • Respect the Roe and Casey precedents by invalidating the Mississippi law.
  • Create a loophole that allows the law to take effect, and chips away at abortion rights in general, but does not overturn Roe in its entirety.
  • Overturn Roe, allowing states to regulate or ban abortions as they see fit.

This is how I summarized the situation in March:

So it’s clear which approach Roberts will favor: Don’t make headlines by reversing Roe, but chew away at it by creating a loophole for Mississippi, maybe by changing the definition of “viability”. The language of such a decision could subtly invite states to push the boundary further, until a woman’s right to control her own pregnancy would have little practical meaning. Roe would continue to stand, but like a bombed-out building without walls or a roof, would protect no one.

That probably won’t happen, though, for a simple reason: When Barrett replaced Ruth Bader Ginsburg, Roberts lost control of the Court. He is no longer the swing vote, so he loses 5-4 decisions when he sides with the Court’s three surviving liberals.

And I warned that reversing Roe would not be the final chapter of this saga.

Roe doesn’t stand alone. It is part of a web of substantive due process decisions on a variety of issues. Reversing Roe will send ripples through the whole web, putting all those rights up for grabs.

So here we are. Unless something inside the Court has drastically changed since February, the constitutional right to abortion, which has existed for 49 years, will vanish sometime in June, and a number of other rights will be in doubt, including the right to use birth control, for consenting adults to choose their own sexual practices, and for two people of any race or gender to marry.

What does Alito’s ruling do? Alito has written an unambiguous reversal of Roe.

We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision. … Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences.

Unenumerated rights. No one claims that the word “abortion” appears in the Constitution. But there are several places where a judge might find implicit protection for rights not specifically listed:

  • The Ninth Amendment, which says “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This recognizes the existence of rights beyond those the Constitution mentions, but provides little basis for identifying them.
  • The Equal Protection Clause of the 14th Amendment, which guarantees “any person” within the jurisdiction of the states “the equal protection of the laws”. Judges at many levels have, for example, rooted same-sex marriage here — same-sex couples are guaranteed the equal protection of the marriage laws — but Justice Kennedy’s majority opinion in Obergefell gave equal protection a secondary role.
  • The Due Process Clause of the 14th Amendment, which says that no one can be deprived of “liberty” without due process of law. Abortion and the related privacy rights have been rooted here, in a doctrine called “substantive due process”, which I described in March.

Another place to look for an unenumerated right is in Supreme Court precedents themselves. Under the doctrine of stare decisis, the Court will usually stand by a previous decision, even if the current justices believe the case was wrongly decided. For example, corporate personhood arises from a bad decision the Court made in 1886. It continues to be upheld despite the fact that the word “corporation” does not appear in the Constitution.

His arguments. Alito dismisses the equal-protection option like this:

[I]t is squarely foreclosed by our precedents, which establish that a State’s regulation of abortion is not a sex-based classification and is thus not subject to the “heightened scrutiny” that applies to such classifications. The regulation of a medical procedure that only one sex can undergo does not trigger heightened constitutional scrutiny unless the regulation is a “mere pretext designed to effect an invidious discrimination against one sex or the other.”

Due-process rights not otherwise mentioned in the Constitution, Alito writes, have to pass what is called the Glucksberg Test:

[T]he Court has long asked whether the right is “deeply rooted in [our] history and tradition” and whether it is essential to our Nation’s “scheme of ordered Liberty.”

He concludes that the right to abortion does not pass this test.

Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. Zero. None. No state constitutional provision had recognized such a right. Until a few years before Roe was handed down, no federal or state court had recognized such a right. Nor had any scholarly treatise of which we are aware. …

Not only was there no support for such a constitutional right until shortly before Roe, but abortion had long been a crime in every single State.

Much of the opinion’s 98 pages consists of a long history lesson about state laws and common law cases.

Alito also addresses the possibility that a right to abortion is part of a broader right to privacy, which does pass Glucksberg.

Casey described it as the freedom to make “intimate and personal choices” that are “central to personal dignity and autonomy”. Casey elaborated: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

Alito also dismisses this justification in what is by far the weakest part of his argument, consisting mostly (in my opinion) of question-begging and because-I-said-so.

Our nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated. … This attempts to justify abortion through appeals to a broader right to autonomy and to define one’s “concept of existence” prove too much. Those criteria, at a high level of generality, could license fundamental rights to illicit drug use, prostitution, and the like.

What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abortion destroys what those decisions call “potential life” and what the law at issue in this case regards as the life of an “unborn human being.” None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion. They are therefore inapposite. They do not support the right to obtain an abortion

And finally he dismisses stare decisis.

In this case, five factors weigh strongly in favor of overruling Roe and Casey: the nature of their error, the quality of their reasoning, the “workability” of the rules they imposed on the country, their disruptive effect on other areas of the law, and the absence of concrete reliance.

I found this part bizarre. Alito’s first two factors just reiterate that he disagrees with the original decision, which is a precondition for stare decisis being relevant at all. (If you agree with a precedent, you don’t need a doctrine to tell you to follow it.) His examples of the “unworkability” and “disruptive effect” of the Roe framework (as adjusted by Casey) are mostly examples of state legislatures persistently attempting to find loopholes that allow them to harass women seeking abortions, and engaging in bad-faith efforts to sneak harassment in as health regulations, building codes, and other Trojan horses.

Would Alito find gun-right decisions (like Heller) “unworkable” if blue states persistently harassed gun owners and forced courts to keep striking down bad-faith laws by the dozens year after year? I doubt it.

And as for “reliance”, I look at my own reliance on Roe (which I explained ten years ago): My wife and I planned our life together around the assumption that we would not have children. We took precautions to prevent pregnancy, but ultimately we could not have fully trusted our plans if abortion had not been an option.

This is not something special about us. Around the nation, women are planning their lives and careers based on the belief that they will not have to carry a fetus, give birth, or raise a child until they decide to do so. In a very real sense, women are not equal to men in a world without abortion.

More critically, since any form of birth control can fail, women whose lives will be in danger if they get pregnant will have to give up sex if abortion is not available.

So Alito’s assertion that there are no “reliance interests” in Roe is just absurd. He doesn’t rely on Roe, so he thinks no one does.

The problem with “deeply rooted in this Nation’s history and tradition”. You know what definitely is “deeply rooted in this Nation’s history and tradition”? Sexism, racism, and bigotry of all sorts. If “liberty” is going to be defined by what that word meant when the 14th Amendment passed in 1868, then only straight White Christian men will ever have unenumerated rights protected by substantive due process. Justice Kennedy acknowledged as much in his Obergefell opinion:

If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied.

Jill Lepore went further in The New Yorker:

There is nothing in [the Constitution] about women at all. Most consequentially, there is nothing in that document—or in the circumstances under which it was written—that suggests its authors imagined women as part of the political community embraced by the phrase “We the People.” There were no women among the delegates to the Constitutional Convention. There were no women among the hundreds of people who participated in ratifying conventions in the states. There were no women judges. There were no women legislators. At the time, women could neither hold office nor run for office, and, except in New Jersey, and then only fleetingly, women could not vote. Legally, most women did not exist as persons.

… Women are indeed missing from the Constitution. That’s a problem to remedy, not a precedent to honor.

Think about the common-law authorities Alito cites, and some of their other opinions. In addition to opinions about abortion, for example, Sir William Blackstone’s Commentaries on the Laws of England also includes this assessment of a wife’s personhood:

By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing; and is therefore called in our law-french a feme-covert; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture.

And Thomas Hale, who, in addition to sentencing two women to death for witchcraft, also had a lasting impact on the law unrelated to abortion, which became known Hale’s Principle:

but the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.

Lepore notes the opinions that Alito does not cite:

Alito cites a number of eighteenth-century texts; he does not cite anything written by a woman, and not because there’s nothing available. “The laws respecting woman,” Mary Wollstonecraft wrote in “A Vindication of the Rights of Woman,” in 1791, “make an absurd unit of a man and his wife, and then, by the easy transition of only considering him as responsible, she is reduced to a mere cypher.” She is but a part of him. She herself does not exist but is instead, as Wollstonecraft wrote, a “non-entity.”

So Alito’s litany that prior to the 20th century abortion rights can be found in

no state constitutional provision, no statute, no judicial decision, no learned treatise

is much less impressive when you realize that no woman had any input into these documents. I find it hard to argue with Lepore’s conclusion:

To use a history of discrimination to deny people their constitutional rights is a perversion of logic and a betrayal of justice.

How should we justify unenumerated rights? History is a fine tool to use when judging what unenumerated rights the Constitution implicitly guarantees to individuals and groups who were enfranchised and empowered at the time (such as straight White Christian men). But in order to keep those rights from further enlarging the unfair advantages those individuals and groups already have, we need to combine those historical findings with a generous respect for the equal protection of the laws.

Justice Kennedy recognized just such a conjunction of prinicples in Obergefell:

The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always co-extensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right.

For example: Do men have a traditional right to bodily autonomy, even when someone else’s life is at stake? Of course they do. American law has never forced a man to, say, donate a kidney to someone who will die without it. That would be absurd. But if a woman can be forced to risk her own lives to save the life of a fetus, does she enjoy the equal protection of the laws? I don’t think so.

Many of the same men who would force a woman to give up months of her life or even risk death for a fetus also believe that the Constitution protects them against the comparatively trivial inconvenience of a vaccine shot that might save not just their own lives, but the lives of the fellow citizens that they might otherwise infect. This is not equality under the law.

And about that history … A number of authors suggest that Alito’s reading of the history of abortion is biased. One of the more amusing examples of the historical acceptance of abortion in America is Ben Franklin’s abortion recipe, which he published in 1748 as part of a textbook.

And a brief prepared for this case by the American Historical Association contradicts Alito:

The common law did not regulate abortion in early pregnancy. Indeed, the common law did not even recognize abortion as occurring at that stage. That is because the common law did not legally acknowledge a fetus as existing separately from a pregnant woman until the woman felt fetal movement, called “quickening,” which could occur as late as the 25th week of pregnancy. This was a subjective standard decided by the pregnant woman alone and was not considered accurately ascertainable by other means.

Are other rights at risk? Alito explicitly denies that his reasoning leads to the end of other rights associated with substantive due process:

As even the Casey plurality recognized, “abortion is a unique act” because it terminates “life or potential life”. … And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.

While it is true that lower courts cannot directly quote Alito’s ruling to support eliminating other privacy rights, anti-abortion extremists also describe the pill, Plan B, and IUDs — and basically all birth control other than barrier methods — as “abortificants”. If states can ban abortion, they can ban these as well.

A bill currently advancing through the Louisiana legislature would define personhood as beginning “at fertilization”, which would make the use of an IUD attempted murder. This law would probably pass muster with Alito, who says that abortion laws going forward need only pass a rational basis test, the loosest possible legal standard.

And nothing stops these same five justices from walking the same path for a different issue on a different case. Consider what Alito writes about a right to abortion:

Not only are respondents and their amici unable to show that a constitutional right to abortion was established when the Fourteenth Amendment was adopted, but they have found no support for the existence of an abortion right that predates the latter part of the 20th century — no state constitutional provision, no statute, no judicial decision, no learned treatise.

This statement is equally true if you replace “abortion” with “same-sex marriage” or “interracial marriage” or “sodomy”. Why would the radical conservative justices not make that substitution in some future case?

Vox’ Ian Millhiser points out that Alito has already made a similar argument against same-sex marriage.

Though Alito’s Dobbs opinion largely focuses on why he believes that the right to abortion fails the Glucksberg test, there is no doubt that he also believes that other important rights, such as same-sex couples’ right to marry, also fail Glucksberg and are thus unprotected by the Constitution. Alito said as much in his Obergefell dissent, which said that “it is beyond dispute that the right to same-sex marriage is not among those rights” that are sufficiently rooted in American history and tradition.

Every issue, when you come down to it, is “unique” in some way. If criminalization in 1868 shows that a right does not exist, then clearly the right of consenting adults to choose their own sexual practices, for example, is not “deeply rooted in this Nation’s history and tradition” or “implicit in the concept of ordered liberty”. Neither is the right to marry the person of your choice.

This is where it matters that Alito and his fellow conservative justices made so many misleading and deceptive statements during their confirmation hearings. Could Alito’s statement that he does not “cast doubt on precedents that do not concern abortion” be one more deceptive reassurance that will only last until the five radical justices find a more convenient opportunity to take away other rights that contradict their conservative interpretations of Christianity?

Harvard Law Professor Mary Ziegler thinks it probably is:

The Court can draw whatever distinctions it likes and dodge the cases it doesn’t. But the draft of Dobbs v. Jackson Women’s Health Organization stresses that states were criminalizing abortion. True enough. But in the late 19th century, Congress passed the Comstock Amendment, which criminalized contraception. States criminalized same-sex intimacy.

The draft suggests that abortion is different because of the state’s impact on fetal life. This language — and the draft’s historically questionable narrative about the doctors who originally pushed to ban abortion — will encourage antiabortion leaders to ask the conservative justices to declare that a fetus is a rights-holding person under the Fourteenth Amendment — and that abortion is unconstitutional in blue as well as red states.

If this is where a final opinion ends up, the Court has painted itself into a corner — and maybe by design. Whether abortion is different or not, the Court will not likely send this back to the states for good. It will simply invite conservatives back for the next round.

In short, anyone who trusts Alito’s statement, and so believes that birth control (Griswold), same sex marriage (Obergefell), interracial marriage (Loving), and homosexuality (Lawrence) are secure, is a fool.

We know who Samuel Alito is, and he is not trustworthy.

Where Does the Religious Right Go After Roe?

https://politicalcharge.org/2021/09/04/the-weeks-best-cartoons-texas-abortion-ban/

Suppose the Supreme Court reverses Roe v Wade this term. Then what?


The Dobbs case. The Supreme Court has already heard arguments on Dobbs v Jackson Women’s Health Organization, a case centering on a law Mississippi passed in 2018. That law bans all abortions after 15 weeks, in direction violation of the 24-week standard the Court laid out in Roe v Wade in 1973 and affirmed in Planned Parenthood v Casey in 1992. This is the first major abortion case to hit the court since Amy Comey Barrett’s arrival gave conservatives a 6-3 majority. A ruling is expected before the Court’s current term ends in June.

Based on the justices’ general philosophies, and on their comments and questions during the hearing on this case in December, most observers expect the Court to uphold Mississippi’s law. The question is how they will do it: Will the conservative majority leave the framework of Roe and Casey in place, but find a loophole that lets Mississippi’s law stand? Or will it fulfill the decades-old dream of the Religious Right and reverse Roe and Casey outright, essentially declaring that those decisions were mistakes?

If you’ve been following Chief Justice John Roberts over the years, you know that big reversals are not his style, particularly in cases where a majority of the public disagrees, as it does here. Roberts has a partisan Republican agenda, but he likes to keep it just below the public’s radar, and he is wary of sparking a left-wing backlash that could benefit Democrats. The last thing he wants is to make the Court itself a central issue in the 2022 midterms, or to reawaken talk of packing the Court with enough new justices to overcome the conservative majority installed by presidents and Senate majorities that didn’t represent a majority of voters.

So it’s clear which approach Roberts will favor: Don’t make headlines by reversing Roe, but chew away at it by creating a loophole for Mississippi, maybe by changing the definition of “viability”. The language of such a decision could subtly invite states to push the boundary further, until a woman’s right to control her own pregnancy would have little practical meaning. Roe would continue to stand, but like a bombed-out building without walls or a roof, would protect no one.

That probably won’t happen, though, for a simple reason: When Barrett replaced Ruth Bader Ginsburg, Roberts lost control of the Court. He is no longer the swing vote, so he loses 5-4 decisions when he sides with the Court’s three surviving liberals. That’s what happened in September when the Court refused to grant an injunction stopping Texas’ six-week abortion ban from taking effect. The Court did not rule on the validity of the law, so Roe was not overturned. But it refused to enforce Roe, so abortion is effectively banned in Texas for the time being. (And other states are passing similar laws.) Like many observers, I read that refusal to act as a tacit acknowledgement that Roe is doomed: Why should the Court bother to enforce a precedent they’re going to reverse soon anyway?

Justices Alito and Thomas have made no secret of their desire to reverse Roe. The three Trump appointees (Barrett, Kavanaugh, and Gorsuch) all refused to commit themselves during their confirmation hearings. But the conservative movement that backed them intended for them to reverse Roe, and it will feel betrayed if they don’t.

Getting through Senate confirmation tends to encourage boldness that wasn’t apparent during the hearings. In 2018, for example, Brett Kavanaugh convinced swing-vote Senator Susan Collins of his reverence for precedent, which Collins interpreted to mean Roe. But by the time Dobbs was argued last December, Kavanaugh was singing the praises of reversals.

If you think about some of the most important cases, the most consequential cases in this Court’s history, there’s a string of them where the cases overruled precedent. Brown v. Board outlawed separate but equal. Baker versus Carr, which set the stage for one person/one vote. West Coast Hotel, which recognized the states’ authority to regulate business. Miranda versus Arizona, which required police to give warnings when the right to — about the right to remain silent and to have an attorney present to suspects in criminal custody. Lawrence v. Texas, which said that the state may not prohibit same-sex conduct. Mapp versus Ohio, which held that the exclusionary rule applies to state criminal prosecutions to exclude evidence obtained in violation of the Fourth Amendment. Giddeon versus Wainwright, which guaranteed the right to counsel in criminal cases. Obergefell, which recognized a constitutional right to same-sex marriage.

In each of those cases — and that’s a list, and I could go on, and those are some of the most consequential and important in the Court’s history — the Court overruled precedent. And it turns out, if the Court in those cases had — had listened, and they were presented in — with arguments in those cases, adhere to precedent in Brown v. Board, adhere to Plessy, on West Coast Hotel, adhere to Atkins and adhere to Lochner, and if the Court had done that in those cases, you know, this — the country would be a much different place.

Given that Kavanaugh was the new justice considered most likely to follow Roberts’ lead, sometime in June we can expect a 5-4 decision reversing Roe, as part of a 6-3 decision upholding Mississippi’s law. The Religious Right will erupt in celebration, as a half-century quest reaches a successful conclusion. Like the Ring of Sauron melting into the flames of Mount Doom, Roe will be gone forever.

But what then? Is that the end of the saga, or will there be sequels? Maybe the Religious Right will be like the dog that final catches the car and doesn’t know what to do next. Maybe they’ll hold a victory party and then break up, like a caravan that has crossed the desert and finally reached its destination.

Or maybe not. Maybe the Religious Right and the Court’s conservative radicals still have places to go.

The legal roots and branches of Roe. Conservative rhetoric makes Roe a prime example of “legislating from the bench”. In this way of telling the story, seven justices in 1973 thought a right to abortion was a good idea, even though the Constitution doesn’t mention it. So like a small, un-elected, lifetime-tenured legislature, they voted to establish that right. Of course they had to construct some hocus-pocus argument to hide their usurpation of legislative power, but really they conjured abortion rights out of thin air.

That’s not how it happened. Roe was part of a long process that included several decisions before it and several after, most of which had nothing to do with abortion. And just as Roe wasn’t conjured out of thin air, it can’t vanish in a puff of smoke either. Whatever logic reverses it will have far-reaching consequences that may take decades to play out.

Roe, along with several other important decisions, arises out of an interpretation of the 14th amendment, one of the three post-Civil-War amendments that freed the slaves and defined their place in American society. (A series of terrible 19th-century Supreme Court decisions undercut those amendments, opening the way for the former Confederate states to disenfranchise Black voters and replace slavery with Jim Crow. But that’s a topic for another day.) In particular, the 14th amendment says:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

It’s not hard to figure out what it means to deprive someone of life or property, but lawyers have been arguing ever since about the definitions of liberty and due process. A narrow definition of liberty might just mean staying out of jail; a broad definition might extend to living the way you want to live.

And if some state is telling you that you can’t live the way you want to live, how much process are you due? Maybe due process just means that a state has to dot all its i’s and cross all its t’s before it starts dictating your major life decisions. Or maybe some decisions are so central to a life of liberty that states need really good reasons to interfere in them. And maybe some are so important that a state can’t limit them at all.

The idea that the 14th Amendment’s due process promises more than just a procedural standard is known as substantive due process. Fundamentally, this notion is neither liberal nor conservative. Roe is rooted in substantive due process, but so are arguments against vaccine mandates. (Contra Senator Cornyn, though, Dred Scott was not a substantive due process case.) Conservative courts from the Progressive Era to the early New Deal used substantive due process to throw out liberal reforms like limited work-weeks or a minimum wage: Telling workers they couldn’t work long hours for low wages was seen as such an egregious violation of their liberty that no process was deemed sufficient. (The Court at the time did not appreciate the irony of using an anti-slavery amendment to justify working long hours for low wages. Obviously, those decisions are not in force today.)

The path from the 14th Amendment to Roe goes like this: Substantive due process implies that each person lives inside a sphere of personal liberty, which cannot be violated by governments for any but the most serious reasons, if at all. (Vaccine mandate cases, for example, revolve around whether a pandemic killing almost a million Americans sufficiently justifies invading the personal sphere of anti-vaxxers.)

Prior to Roe, that personal sphere was found (in Skinner) to contain a right to procreate even if the state would like to sterilize you, (in Loving) to include a right to marry someone of any race, and (in Griswold) to encompass a married couple’s right to use birth control. (Justice Douglas wrote: “Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.”)

After Roe, the personal sphere grew (in Lawrence) to include the right of consenting adults to choose their own sexual acts, and (in Obergefell) to allow same-sex couples to marry.

In short, Roe doesn’t stand alone. It is part of a web of substantive due process decisions on a variety of issues. Reversing Roe will send ripples through the whole web, putting all those rights up for grabs.

Conservative understand this, and welcome it. This week, at Ketanji Brown Jackson’s confirmation hearing, Senator Cornyn of Texas pushed Jackson to disavow substantive due process entirely.

Justice Jackson, … you’ve suggested that policy making isn’t in your lane and you strive to be apolitical, something I applaud. But why isn’t substantive due process just another way for judges to hide their policy making under the guise of interpreting the Constitution?

He went on to rail against the Obergefell decision on same-sex marriage. And Senator Braun of Indiana had this exchange with the Indianapolis Star:

Question: Would you apply that same basis to something like Loving v. Virginia, the Supreme Court case that legalized interracial marriage?

Answer: When it comes to the issues, you can’t have it both ways. When you want that diversity to shine within our federal system, there are going to be rules and proceedings, they’re going to be out of sync with maybe what other states would do. It’s a beauty of the system, and that’s where the differences among points of view in our 50 states ought to express themselves. And I’m not saying that rule would apply in general depending on the topic, but it should mostly be in general, because it’s hard to have it on issues that you just are interested in when you deny it for others with a different point of view.

Question: So you would be OK with the Supreme Court leaving the question of interracial marriage to the states?

Answer: Yes, I think that that’s something that if you’re not wanting the Supreme Court to weigh in on issues like that, you’re not going to be able to have your cake and eat it too. I think that’s hypocritical.

And Senator Braun is correct: Unless the argument used to reverse Roe is very precise and subtle — and I’ve seen no sign that any of the conservative justices combines the skill and will needed to write such an opinion — it will also be an argument for reversing a long list of rights Americans have come to rely on.

Those rights will not go away immediately when Dobbs is settled in June, but red-state legislatures will recognize the Court’s invitation to pass laws violating them. And once those cases reach the Supreme Court (which may take several years), the conservative bloc will see no option other than to make a decision compatible with their reversal of Roe.

After all, as Brett Kavanaugh explained to Susan Collins, the Court has to respect precedent.

The Court and the Vaccine Mandates

https://theweek.com/political-satire/1009010/sorry-novak

The law gives way to power and politics.


As expected, the Court nuked the Biden administration’s workplace vaccine-or-test mandate, while upholding a mandate for health care workers. The heart of the 6-3 majority’s negative opinion was this argument:

The question, then, is whether the [Occupational Safety and Health] Act plainly authorizes the Secretary’s mandate. It does not. The Act empowers the Secretary to set workplace safety standards, not broad public health measures. …

Although COVID–19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.

Got that? The majority doesn’t claim that Covid isn’t a hazard at work, but that you might catch Covid lots of other places too. So if you could pick up black lung disease at the supermarket, OSHA wouldn’t be able to regulate that either. The Atlantic’s Adam Serwer labels this logic “laughable”.

OSHA regulates many, many hazards that are also present outside the workplace. The fact that you can die in a fire in your apartment is not an argument against regulating fire hazards in factories or offices.

Fires, falling down stairs, handling sharp objects, etc. are all “hazards of daily life”. But while Americans can mitigate the risks we face at home, we’re mostly at the mercy of our employers at work. That’s why we need OSHA. The Breyer/Kagan/Sotomayor dissent explains:

OSHA has issued, and applied to nearly all workplaces, rules combating risks of fire, faulty electrical installations, and inadequate emergency exits — even though the dangers prevented by those rules arise not only in workplaces but in many physical facilities (e.g., stadiums, schools, hotels, even homes). Similarly, OSHA has regulated to reduce risks from excessive noise and unsafe drinking water—again, risks hardly confined to the workplace.

People like me. Let me bring this down to a personal level: My wife and I, being over 65 and having a few other complicating factors, have been very careful about minimizing our Covid risk. We haven’t caught Covid “at home” because we don’t let a lot of people into our home. We haven’t caught it “during sporting events” because we have been staying away from sporting events. And we haven’t caught it at work because we’re retired.

Until the current Omicron surge, our friends and family had almost entirely escaped infection too. How? Partly by being sensible people who take science seriously, but also because those who weren’t retired were almost all in white-collar jobs that allowed them to work from home. (I’d love to see some statistics breaking down Covid risk by education or job category.) The ones I worry most about are the few who have in-person jobs that require interacting with the public.

In short, the workplace isn’t the only place Americans can catch Covid, but it’s the primary source of unavoidable risk.

Now, if you are somebody who thinks Covid is a scam, or if you’re just “done” with trying to avoid it, the Court’s ruling makes perfect sense: You’re interacting with unmasked untested unvaccinated people all the time, so what’s the problem if you meet a few more at work? But for those of us still trying not to get sick — and especially for service-industry people who have been considering when it will be safe to re-enter the job market — this ruling is a major blow. The Court has said that our government is powerless to help us.

What the laws say. The majority’s logic is tenuous on its face, but the best argument against the Court’s opinion is to read the bleeping law, which the dissent reproduces:

OSHA ’s rule perfectly fits the language of the applicable statutory provision. Once again, that provision commands — not just enables, but commands — OSHA to issue an emergency temporary standard whenever it determines “(A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.”

Strangely, though, Chief Justice Roberts and Justice Kavanaugh flipped to the other side of the argument in a similar case decided the same day: In a 5-4 decision, the Court let stand a different Biden administration vaccine mandate — affecting 10 million people rather than 84 million — on health care workers.

Reading that opinion (which is unsigned, but probably written by either Roberts or Kavanaugh), it’s hard to see the difference between this and the more general mandate. The regulating agency has changed (HHS rather than OSHA), and the agency is implementing a different set of laws, but the main difference is that in this case Roberts and Kavanaugh decided to take those laws seriously.

Both Medicare and Medicaid are administered by the Secretary of Health and Human Services, who has general statutory authority to promulgate regulations “as may be necessary to the efficient administration of the functions with which [he] is charged.”

One such function—perhaps the most basic, given the Department’s core mission—is to ensure that the healthcare providers who care for Medicare and Medicaid patients protect their patients’ health and safety. Such providers include hospitals, nursing homes, ambulatory surgical centers, hospices, rehabilitation facilities, and more. To that end, Congress authorized the Secretary to promulgate, as a condition of a facility’s participation in the programs, such “requirements as [he] finds necessary in the interest of the health and safety of individuals who are furnished services in the institution.”

It wouldn’t be hard to use these paragraphs as a template and fill in “OSHA” and “workers” in place of “HHS” and “Medicare and Medicaid patients”. (If anything, the law is clearer in the OSHA case.) But Roberts and Kavanaugh couldn’t support such a revision. For some reason, the “core mission” of HHS matters in a way that the core mission of OSHA doesn’t.

Vox’s Ian Millhiser observes that the two opinions are “at war with each other”, and the “The Court is barely even pretending to be engaged in legal reasoning.”

Politics. Probably the Chief Justice’s thinking has more to do with protecting the Court’s image than upholding the law.

Roberts hates to make sweeping decisions whose judicial activism would be obvious to the public. Instead, he prefers to chip away at the federal power or individual rights that he wants to destroy, in decisions that are supposed to seem moderate individually, even as they stack up to create radical change. So he invented with a novel way to uphold ObamaCare while simultaneously undercutting precedents about the Commerce Clause and allowing states to opt out of Medicaid expansion. He left the Voting Rights Act in place while tossing its main enforcement mechanism. He’s been uprooting campaign finance laws bit by bit rather than declaring outright that Money is sovereign (which is clearly what he believes).

And so in these two cases, Roberts cuts the vaccine-mandate baby into a small piece and a large piece. He does what he wants with the larger piece, while letting the law govern the smaller piece to show how moderate he is.

Expect something similar in June when the Court rules on abortion: The other five conservative justices will want to reverse Roe v Wade outright. But Roberts will want to put loopholes in Roe to allow most (but probably not all) of the Roe-violating state laws to stand, while claiming that he technically “upheld” Roe rather than reversed it.

The question then will be whether he can persuade Kavanaugh, as he did this time.

Biden’s next steps. If the Court’s complaint about a broad mandate is that it’s not occupationally specific or tied to specific risks, OSHA could respond by breaking its mandate into occupation-specific chunks or detailing a more complex set of standards that would apply to all businesses, not just those with more than 100 employees. Apparently, it already drafted such a rule, but hasn’t issued it.

OSHA’s path forward to protecting workers from Covid-19 is clear. First, the agency should take the previous OSHA standard out of the desk drawer, dust it off, update the data, make any tweaks to ensure it fits the court’s new suggestion that it be risk-based and send it over to the White House. The standard should cover all workers in higher risk jobs, not only those employed by large employers.

That might or might not work, depending on whether the Court decides to play Calvinball and make up new rules as it goes.

The radicals. One related issue I speculated about last week was whether the Court would base its vaccine-mandate rulings on a “nondelegation” argument that would hamstring not just OSHA, but federal regulating agencies generally. The six-justice majority in the OSHA case (the usual conservative bloc) hints at such sentiments, but never actually invokes them.

But Justice Gorsuch’s concurrence with that ruling, joined by Thomas and Alito, does. The OSH Act can’t authorize the vaccine requirement, Gorsuch writes, because it is a general delegation of power from Congress, not a specific response by Congress to the pandemic. The power-granting subsection the dissent quoted can’t be applied because it

was not adopted in response to the pandemic, but some 50 years ago at the time of OSHA’s creation

It’s not hard to see where this line of thinking goes: Antitrust law can’t apply to markets that were inconceivable when the Sherman and Clayton Acts were passed more the 100 years ago. The Clean Air Act is more than 50 years old; clearly the EPA can’t invoke it to ban pollutants nobody knew about then. How can the SEC regulate complex financial derivatives that the laws don’t specifically mention, and that change faster than new laws can address? (Of course, this logic will never be applied to the Second Amendment, whose authors could not possibly have foreseen AR-15s.)

In this current age of obstruction and filibuster, the ultimate result of nondelegation would be the end of federal regulations across the board. Not because anti-regulation politicians took their case to the voters, won elections, and repealed OSH, the Clean Air Act, and the rest of our regulating laws, but because unelected judges (many chosen by presidents who lost the popular vote) made the entire system of regulation unworkable, independent of whatever the American people might have wanted.

A majority of the Court isn’t there yet. But three justices are.

A Dozen Observations about Abortion, Texas, and the Supreme Court

https://www.arkansasonline.com/news/2021/sep/03/opinion-john-deering-cartoon-about-texas/

As you undoubtedly already know, the Supreme Court refused to interfere with the new Texas abortion ban, which took effect Wednesday. In brief, the law bans abortion after a “heartbeat” is detectable in the embryo, which happens (not really, but sort of, more below) at around six weeks. That’s usually before a woman knows she’s pregnant, so most pregnant Texas women will not, at any point in the process, have legal options other than carrying their fetus to term.

What makes this law different from dozens of other anti-abortion laws (that routinely get voided by the federal courts) is its method of enforcement: Abortion is illegal, but not criminal. No one is arrested or sent to jail. But private citizens can sue people (other than the pregnant woman herself) who perform or “abet” a post-heartbeat abortion. If they win, they get attorneys fees plus $10,000.

That enforcement method makes it tricky for a federal court to block the law. Ordinarily, a court would enjoin state officials not to enforce a law that violates established constitutional standards, but here Texas can say: “We don’t enforce it. Private citizens and the state courts enforce it.” Five conservative judges (three of them appointed by Trump) decided to take advantage of that loophole. So the law stands and abortion is effectively banned in Texas.

Much has been written about this situation in the last week, so rather than add another article to the stack, I want to organize what’s already out there. That’s why this post is a list of short observations rather than a single essay. In each case, I’ll point you to other sources that do the elaboration.

Let’s start with some basic references.

The law itself (Senate Bill 8) is here. It’s written for lawyers, and I don’t recommend reading it unless you’re really getting down into the weeds.

The Supreme Court’s rejection of the request to intervene is only 12 pages, and is much more readable. The majority’s statement is barely more than a page. Chief Justice Roberts wrote a three-page dissent. Justices Breyer, Sotomayor, and Kagan also wrote dissents, each of which was co-signed by the other two. So the Court published roughly ten times as much material explaining why it shouldn’t have done this than justifying why it did.

Slate has a good FAQ about what the law covers and how it might be interpreted. Some of the issues will depend on what judges do, and even if the law is technically on your side, you still will have to respond if someone sues you.

The bill is named the Texas Heartbeat Act, but a six-week embryo doesn’t have a heart.

LiveScience.com explains:

Rather, at six weeks of pregnancy, an ultrasound can detect “a little flutter in the area that will become the future heart of the baby,” said Dr. Saima Aftab, medical director of the Fetal Care Center at Nicklaus Children’s Hospital in Miami. This flutter happens because the group of cells that will become the future “pacemaker” of the heart gain the capacity to fire electrical signals, she said.

NPR goes into more detail:

“When I use a stethoscope to listen to an [adult] patient’s heart, the sound that I’m hearing is caused by the opening and closing of the cardiac valves,” says Dr. Nisha Verma, an OB-GYN who specializes in abortion care and works at the American College of Obstetricians and Gynecologists.

The sound generated by an ultrasound in very early pregnancy is quite different, she says.

“At six weeks of gestation, those valves don’t exist,” she explains. “The flickering that we’re seeing on the ultrasound that early in the development of the pregnancy is actually electrical activity, and the sound that you ‘hear’ is actually manufactured by the ultrasound machine.”

Healthline.com says that at six weeks, an embryo is “about the size of a grain of rice”.

You might be wondering why anti-abortion activists lie so blatantly about this rather obscure point of biology (or perhaps how they can call themselves Christians while they do). Similarly, they make bogus claims about a fetus’ ability to feel pain at 20 weeks. Neither of these thresholds have any legal significance. (After all, farm animals have heartbeats and feel pain, but they are killed by the millions without any political backlash.)

What activists are trying to suggest with heartbeats and suffering is the presence of a human soul, which many of them say enters the embryo at conception. (In National Catholic Reporter, Michael Sean Winters writes: “That heartbeat should strike the consciences of anyone with an open mind about the morality of the issue.” Sorry, but that shot just goes right past me; I am neither engaged nor shamed by it.)

They may describe this theological speculation as “Biblical”, but in fact it is not, as I’ve explained before. In Catholic circles, this teaching was virtually unknown before the 1600s, and it didn’t become orthodox among conservative Protestants until after Roe. For Evangelicals, the politics motivated the theology, not the other way around.

In any case, one American’s theology does not bind other Americans, because the Founders very explicitly did not set up a theocracy.

Complete bans on abortion are not popular now, and never have been.

Gallup has been asking about abortion for nearly half a century, and the numbers have been remarkably stable. Less than 1-in-5 Americans believe abortion should be “illegal in all circumstances”, and that’s been true consistently since 1975. The split between those who want abortion legal in “any circumstances” or “certain circumstances” bounces around a bit more. Even that may not represent an actual change of opinion, but could correspond to a change in the circumstances that came to mind when the question was raised.

On the specific question of overturning Roe v Wade, public opinion has long supported leaving Roe alone. In 1989 the public was against overturning Roe 58%-31%, and the most recent survey was 58%-32%.

I sum up my reading of public opinion with a quip. Most Americans, whether we are conservative or liberal, have exactly the same opinion about both abortion and guns: “I am appalled by the sheer number of them in this country, and wish there were fewer. But if my family gets into some extraordinary situation and decides that we need one, I don’t want the government to stand in our way.”

The court majority is acting in bad faith.

The majority purports to be stymied by the complexity of the situation: No one knows exactly who will decide to enforce the Texas law, so how can they craft an injunction?

it is unclear whether the named defendants in this lawsuit can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention.

Will Wilkinson points out the obvious:

you know that the conservative majority would not affirm this principle in general. There is zero chance that Alito, Gorsuch, Kavanaugh, Barrett and Thomas would offer the same deferential treatment to a formally identical California law designed to frustrate citizens’ 2nd Amendment rights by incentivizing civil lawsuits against anyone who gives away or sells or in any way aids or abets the possession or ownership of a firearm.

Justice Sotomayor’s dissent is blunt and direct:

It cannot be the case that a State can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry.

But of course, it’s not the case in general. This is a one-time-only principle that applies solely to abortion.

https://twitter.com/mluckovichajc/status/1433774563502985218

A decision this consequential shouldn’t happen through the shadow docket.

Essentially, the Court has reversed Roe v Wade: Texas has made nearly all abortions illegal; the Court has refused to protect a woman’s previously recognized constitutional right; and now other red states are scrambling to pass their own bounty-hunter law.

It is certainly within the Court’s power to reverse previous precedents and thereby reinterpret the Constitution. But the typical way for a reversal to happen is through the regular docket (known to lawyers as the “merits” docket): A case challenging the precedent works its way up through the federal courts. Through that process, the lower courts develop a body of publicly available evidence and reasoning. Then the Supreme Court hears lawyers for both sides argue the case, and interested third parties submit briefs supporting one side or the other. The justices withdraw for weeks or months to consider it all, and then a decision is announced, supported by a written majority opinion (which may be critiqued by dissents from judges outside the majority). When Brown v Board of Education reversed Plessey v Ferguson in 1954, that was the lengthy process it went through. (The original lawsuit was filed in 1951.)

A case challenging Roe is already on the Court’s calendar for this term. We should get a decision by June at the latest. If a majority wants to reverse Roe — and apparently it does — that is the proper way to do so.

One key virtue of the regular process is transparency: The Court’s power may be mostly unchecked, but when it does something, we at least know what it did and why. Five justices can’t just say “Do this” and go home; they have to spell out the new interpretation in enough detail that lower courts and the various levels of state and federal government know what the law is now. The Court’s reasoning is available for legal scholars to examine and criticize, and Congress knows exactly what it must do if it wants to achieve a different outcome.

But the Court also has what is called the “shadow docket”. Wikipedia explains:

Shadow docket decisions are made when the Court believes an applicant will suffer “irreparable harm” if the request is not immediately granted. These decisions are generally terse (often only a few sentences), unsigned, and are preceded by little to no oral arguments. Historically, the shadow docket was used only rarely for rulings of serious legal or political significance, but since 2017 it has been increasingly utilized for consequential rulings, especially for requests by the Department of Justice for emergency stays of lower-court rulings.

So, for example, you might ask the Court to intervene if a law was about to go into effect that would remove one of your previously recognized constitutional rights. If, say, you had to give birth to your rapist’s baby because all the abortion providers in your state had to turn you away, you might reasonably claim to face irreparable harm. The no-longer-viable clinics might also reasonably claim irreparable harm.

By not acting, the Court is basically announcing: “Not so fast about thinking you have a constitutional right.” It has made women’s rights evaporate without any kind of transparent process. Or maybe that’s not the Court’s intention at all. Who can say, when the majority barely wrote a page of explanation?

Chief Justice Roberts, who is usually thought of as one of the conservative justices, complained about this lack of process:

I would grant preliminary relief to preserve the status quo ante—before the law went into effect—so that the courts may consider whether a state can avoid responsibility for its laws in such a manner. … We are at this point asked to resolve these novel questions—at least preliminarily—in the first instance, in the course of two days, without the benefit of consideration by the District Court or Court of Appeals. We are also asked to do so without ordinary merits briefing and without oral argument. … I would accordingly preclude enforcement of S. B. 8 by the respondents to afford the District Court and the Court of Appeals the opportunity to consider the propriety of judicial action and preliminary relief pending consideration of the plaintiffs’ claims

Translating from the legalese: If we don’t know what to do, we should freeze the situation as best we can until we have time to figure it out. But the other five conservative justices rejected that reasoning.

The Senate’s hearings on recent Supreme Court nominees have been a charade. The nominees lied, and the senators who credited those lies were either naive or complicit.

Numerous examples are possible, but the most ridiculous one was the 45-minute speech Susan Collins gave defending her vote to confirm Brett Kavanaugh. For eight paragraphs she addressed “the concern that Judge Kavanaugh would seek to overturn Roe v. Wade”, assuring the country that the constitutional right established in Roe “is important to me”, and extolling Kavanaugh’s reverence for long-established precedents.

Naive? Complicit? Hard to say.

The 6-3 conservative majority is the result of a system rigged to over-represent White rural voters. The Court’s current conservatism does not and never has represented the will of the American people.

Supreme Court justices are nominated by the president and confirmed by the Senate. Both of these institutions are rigged in favor of White rural voters.

Three of the current justices (Gorsuch, Kavanaugh, and Barrett) were nominated by Donald Trump, who was chosen by the Electoral College in defiance of the American people. (Trump lost the popular vote to Hillary Clinton by 2.8 million votes, but won a 304-227 victory in the Electoral College.)

Sometimes Roberts and Alito are included on this list of minority justices, because George W. Bush also lost the popular vote in 2000. However, they were nominated in Bush’s second term, after he won re-election democratically.

Recent Republican majorities in the Senate have also not represented the American people. The principle that each state has two senators means that blue (and racially diverse) California’s 39 million residents have the same power as red (and almost entirely White) Wyoming’s 581 thousand. Combined with the successful attempt to stack the Senate by admitting tiny Northwestern states in 1889-1890, Republicans have a consistent structural advantage: For the last quarter-century, Republican senators have neither represented a majority of voters nor received a majority of votes, and yet they have held the majority of Senate seats about half the time.

This includes the term when Mitch McConnell refused to consider President Obama’s nomination of Merrick Garland, as well as the next term when McConnell and popular-vote-loser Donald Trump awarded that Court seat to Neil Gorsuch.

Senate Republicans use their artificially inflated numbers, together with the filibuster, to make sure the system stays rigged in their favor by denying statehood to (largely Black and urban) District of Columbia and (Hispanic) Puerto Rico.

Now that abortion rights have actually been lost, the Republican dog has caught the car.

Somewhere in Islands in the Stream, Ernest Hemingway describes a bridge that is much desired but (precisely for that reason) can never be completed: As long as the bridge is in the future, corrupt politicians can raise funds to build it. But if it is ever finished, the money will dry up.

For decades, anti-abortion politics has been a similar scam, as David Frum explains:

Pre-Texas, opposition to abortion offered Republican politicians a lucrative, no-risk political option. They could use pro-life rhetoric to win support from socially conservative voters who disliked Republican economic policy, and pay little price for it with less socially conservative voters who counted on the courts to protect abortion rights for them.

That dynamic played out most clearly in 2016, when Trump dominated the anti-abortion vote, while pro-choice people assured each other that they could stay home or vote for Jill Stein.

But now, after years and years of warnings and an ever-increasing set of hoops women have had to jump through, abortion rights really are vanishing, even for women who are privileged in every way other than gender. If you live in a professional-class suburb of Dallas, and if your U of T freshman daughter gets roofied at a frat party and comes home pregnant, she either carries the baby to term or your family has to break the law — and maybe get sued.

If this possible impact on their lives means that the complacent majority will get riled now, the jig is up. That’s why national Republicans haven’t been spiking the football to celebrate an achievement they’ve been promising for decades.

Congress could fix this, if Democrats thought women’s rights were more important than the filibuster.

The Texas abortion law would be undone if Congress passed the Women’s Health Protection Act, which reinstates the protections of Roe v Wade nationally. Speaker Pelosi believes she can get the bill through the House. It’s unclear whether all 50 Democrats in the Senate would vote for it. But a handful of Republicans also claim to be pro-choice — here’s a chance to redeem yourself, Senator Collins — so the bill should get a majority, if it comes to a vote.

But it won’t come to a vote, because of the filibuster. A woman’s right to choose is yet another price the country must pay for Senator Manchin’s and Senator Sinema’s attachment to this time-dishonored Senate tradition, because the WHPA clearly can’t muster a 60-vote supermajority.

The Department of Justice could also do something.

Law professor Lawrence Tribe explains: It turns out the country has previously faced the problem of states turning a blind eye to (or even encouraging) vigilantes trying to intimidate Americans out of exercising their constitutional rights. In that previous era, Congress responded by passing the Ku Klux Klan Act of 1871, which is still on the books.

Section 242 of the federal criminal code makes it a crime for those who, “under color of law,” willfully deprive individuals “of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.” … In addition, Section 241 of the federal criminal code makes it an even more serious crime for “two or more persons” to agree to “oppress, threaten, or intimidate” anyone “in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same.” This crime may be committed even by individuals not found to be acting “under color of law” but as purely private vigilantes, as long as they’re acting in concert with others.

Tribe believes that using the KKK Act to protect abortion rights in Texas would be “in tune not just with the letter but the spirit the law”. He asserts that we have now reached the point where “the need to disarm those who cynically undermine constitutional rights while ducking all normal avenues for challenging their assault on the rule of law becomes paramount.”

Ordinary people can monkey-wrench the enforcement process.

A campaign to spam websites asking for tips on Texas abortions is taking off. We’ll see if this is just a snap reaction or if it has staying power.

If any pro-life folks think women’s-rights defenders are playing dirty, let me point out that so far no one is using the kinds of tactics the pro-life movement has long used against abortion clinics. No one is bombing their offices or threatening their workers with violence, because (unlike the pro-life movement) the pro-choice movement doesn’t have a terrorist wing.

As satisfying as monkey-wrenching might be, though, it probably won’t make much difference. Even if monkey-wrenchers make vigilante lawsuits harder to assemble, abortion clinics and other support services are already being shut down by the threat of such lawsuits, even if suits have not yet been filed.

Texas has made rape a viable reproduction strategy.

If you are a man who is unable or unwilling to convince any woman to bear your children voluntarily, you can still win the evolutionary battle to pass on your genes by committing enough rapes. Eventually you may wind up in jail, but your descendants will thank you. They will also thank the Evangelical Christians who paved the way for you.

Cleaning Up After Trump

https://www.inquirer.com/opinion/cartoons/donald-trump-justice-department-bill-barr-20200217.html

Voting Trump out of office stopped the bleeding, but the Republic isn’t out of danger yet.


The Boston Globe ran an important series this week: “Future-proofing the Presidency“. Over four years, the Trump administration shredded the laws, institutional norms, and political norms that we had previously trusted to protect the Republic from a corrupt or power-hungry president.

The fact that the voters managed to throw Trump out after four years should only comfort us up to a point. Because of the Trump precedents and the roadmap his administration provides, the next unscrupulous president — who could be Trump himself in 2025 — will begin his assault on democracy with a head start.

The Globe series proposes reforms to turn norms into laws and give teeth to the laws Trump ignored. The specific problems it diagnoses are: financial conflicts of interest, nepotism, immunity from prosecution, ability to shield co-conspirators, and power to obstruct congressional investigations. And the reforms it recommends are

  • require presidents to divest from all businesses and investments that could pose a conflict of interest
  • require presidents to publish their tax returns
  • require an explicit congressional waiver before a president can appoint a relative to office — even if that relative foregoes a salary
  • strengthen protections for government whistle-blowers, and extend those protections to political appointees
  • root congressional subpoena power in legislation, so that subpoenas served to the executive branch can be enforced more easily and quickly
  • allow a president to be indicted while in office, but delay the trial until the presidency ends
  • pass a constitutional amendment voiding a president’s power to pardon personal associates

The series concludes with “The Case for Prosecuting Donald Trump“. Congress’ impeachment power is broken, and can no longer be trusted to hold presidents accountable.

If Congress had played the role the Founders envisioned, by removing Trump from the presidency after his criminality became clear in the Ukraine affair, that might have been enough of a deterrent to scare future presidents straight. But lawmakers didn’t.

So now there is only one way left to restore deterrence and convey to future presidents that the rule of law applies to them. The Justice Department must abandon two centuries of tradition by indicting and prosecuting Donald Trump for his conduct in office. …

The reluctance to prosecute presidents is deep-rooted, and extreme caution does make sense. (The last thing that the country needs is for Trump to be charged, tried, and then acquitted.) But it cannot be the case that there is no line — no hypothetical act of presidential criminality that would not rise to the level of seriousness that merits setting aside our qualms. And if one accepts that there is a line, it’s hard to imagine Donald Trump didn’t cross it.


Two other of this weeks’ news stories underlined the importance of The Globe’s proposed reforms: We found out that the Trump administration subpoenaed the phone metadata of two Democratic members of the House Intelligence Committee, and the transcript of Don McGahn’s testimony to Congress was released.

The two lawmakers in question — Adam Schiff and Eric Swalwell — were outspoken administration critics that Trump frequently attacked on Twitter. (“Shifty Schiff” was one of his playground insult names.) Swalwell became a Democratic presidential candidate. At the time, the Intelligence Committee was engaged in an investigation of Trump’s collusion with Russia.

Not only were they targeted, but so were their family members, including their children. What’s more, a gag order has kept Apple from revealing its cooperation until recently, so the congressmen did not know they were under this kind of scrutiny, and neither did House Speaker Nancy Pelosi.

“President Trump repeatedly and flagrantly demanded that the Department of Justice carry out his political will and tried to use the Department as a cudgel against his political opponents and members of the media,” Rep. Schiff told Recode in a statement. “It is increasingly apparent that those demands did not fall on deaf ears.”


The transcript of Dan McGahn’s testimony to the House Judiciary Committee on June 4 was released Wednesday, in accordance with the agreement that led to that testimony (after two years of legal wrangling that saw the courts refuse to back up congressional subpoenas). The transcript is 241 pages, and the main thing you can learn by reading large chunks of it is that McGahn was indeed a hostile witness. Releasing only a transcript (rather than video) means that his evasiveness will not be appreciated by the general public.

The pre-interview agreement limited questions to

one, information attributed to Mr. McGahn in the publicly available portions of the Mueller report and events that the publicly available portions of the Mueller report indicate involve Mr. McGahn; and, two, whether the Mueller report accurately reflected Mr. McGahn’s statements to the Special Counsel’s Office and whether those statements were truthful

In the early questioning, McGahn frequently claimed not to remember the events in question until his questioner noted a passage in the Mueller Report. McGahn would then respond with something like “what you’ve read in the report is accurate”. He tried hard not to introduce any new information. I also have to wonder if he used the interview’s ground rules to hide relevant conversations with Trump without perjuring himself. For example:

Q: Did you advise the President as to whether he personally could call Mr. Rosenstein about the investigation?
A: I may have at some point in time. Do you have anything in particular? I mean, I was on the job quite a while so —
Q: Understood. I’ll direct you to page 81, bottom of the paragraph.

Like Trump himself, and so many other people in his administration, McGahn seems not to recall a number of events that most other people would think of as memorable.

Q: On June 14, 2017 … The Washington Post reported for the first time that the special counsel was investigating President Trump personally for obstruction of justice. Do you recall your reaction to that reporting?
A: I don’t recall my reaction to it, no. No.
Q: You don’t recall your reaction, as a White House counsel, to learning that the press had reported that the President of the United States was under personal investigation by the special counsel?
A: I don’t recall my subjective impression on the evening of June 14th about a news report. No, I don’t.
Q: Do you recall speaking to the President that evening?
A: I do recall speaking to him, yes.
Q: Can you describe that conversation?
A: I don’t have a crisp recollection of it.

Again and again, McGahn claimed that his memory had been fresher when Mueller questioned him, so he yielded to whatever description was in the Mueller report. That raises an obvious question: Instead of questioning McGahn about Mueller’s summary of McGahn’s testimony, why doesn’t the Judiciary Committee just look at the transcripts of those interviews? And the answer is that they can’t, at least not yet. Like the McGahn subpoena itself, this was the subject of a long legal wrangle, which the Supreme Court put off deciding until after the election. So at the moment, Congress doesn’t even have access to the still-redacted portions of the Mueller report.

After Trump lost the election, the grounds for releasing grand jury records to Congress changed completely, so Congress suspended its pursuit to coordinate with the new Biden administration. In part, McGahn’s appearance was supposed to be a substitute for the grand jury material.

So that’s where the House investigation into Trump’s obstruction of justice has led: McGahn finally appeared, but under rules that allowed him to do little more than point to quotes in the Mueller report and verify that he actually said that.


Meanwhile, Rachel Maddow has been waging an almost nightly campaign for Attorney General Merrick Garland to expose and reverse Trump administration abuses in the DoJ.

About the Schiff/Swalwell subpoenas, she commented:

Given that those officials that knew about this are still in the Department right now, why did it take a New York Time article about this abominable behavior to spark an inspector general investigation today? I mean, this scandal wasn’t known to any of us in the public, but it was known to multiple officials inside the Justice Department. None of them thought to peep about it? …

It is clear that the Justice Department under President Biden does not want the job of investigating and rooting around what went rotten inside their own department under the previous president. But even if they don’t want that job, that is the job they have now. … Wake up, you guys! You’re going to work in an active crime scene, and there’s no other cops to call.

You have to fix this. You’re the only ones who can.

Trump and Bill Barr have provided the next would-be despot with a detailed plan for turning the Justice Department into a sword to attack enemies and a shield to protect corrupt friends. If there are no consequences for what they did, either to them or to the lower-level officials who went along, the danger has not passed.

To Save Democracy, End the Filibuster

American democracy only works if the Senate works.


At the moment the two biggest stories in American politics are the impeachment of Donald Trump and the long-anticipated inauguration of Joe Biden. Both stories, at their root, are about the continuance of democracy.

Biden’s inauguration may be sparsely attended, socially distanced, and observed by enough troops to conquer a medium-sized country, but fundamentally it will be a celebration of the peaceful transfer of power. In spite of a long list of bad-faith challenges, culminating in a right-wing mob attacking the Capitol itself, the American People will get the president they elected.

Trump’s impeachment is in some sense the flip side of that same coin. When a president tries to hang on to power in spite of the People, even to the point of inciting violence against the government he supposedly heads, there must be consequences. One lesson of history is that democracies must be willing to defend themselves. Letting would-be authoritarians walk away and try again only validates anti-democracy propaganda: that democracies are fundamentally weak, and that advocates of democracy secretly admire and envy the self-styled Leader and his followers for their love of country and the courage of their convictions. “If we got away with this,” the anti-democratic forces wonder, “what else can we get away with?”

So count me among those who approve of both these stories. But at the same time, I recognize that each offers our constitutional republic only a short-term salvation. The longer-term problem is the widespread perception that our system is not working, and that it grows more dysfunctional year by year. If Trump is convicted, American fascism might be stuffed back into its box for a few years. And if Biden uses his powers wisely, he may spark a short-term rise in the nation’s self-confidence. Certainly, he should be able to quickly reverse the corrosive effect of the last year, when our president appeared to have lost interest in a plague that killed (and continues to kill) thousands of Americans each day.

But long-term, the health of any democracy relies on public faith in one simple idea: The most effective and most legitimate way to seek change is to convince other citizens to agree with you, so that the public will elect a government that will achieve the changes you seek. Conversely, a democracy is in trouble if its citizens begin to see elections as empty spectacles that change nothing.

Now it only takes 60 votes, but the same principle applies.

Legislative failure. In the past several cycles, Democrats and Republicans have each won wave elections that left the party in control of the presidency and both houses of Congress. But neither produced an FDR- or LBJ-like list of legislative accomplishments. Instead, each managed only one big thing: ObamaCare for the Democrats and the Trump tax cut for the Republicans.

In spite of broad support from their voters, the Democrats couldn’t pass cap-and-trade to fight climate change, ObamaCare’s public option, any significant gun control, or immigration reform. Republicans couldn’t repeal ObamaCare, pass an infrastructure program, or fund Trump’s wall.

Voters on both sides were left wondering: What was all that for?

Admittedly, both parties faced obstacles beyond the Senate filibuster. Obama thought he had more time: His filibuster-proof 60-Democrat Senate didn’t last two years, but only half a year; Republican lawsuits delayed Al Franken’s arrival in the Senate until July, and the next January the Democrats unexpectedly lost the Massachusetts seat vacated when Ted Kennedy died. (Only a parliamentary maneuver allowed ObamaCare to become law.)

Trump’s GOP suffered from a lack of real programs to pass. “Repeal and replace ObamaCare” turned out to be an empty slogan; neither Trump nor any other Republican had a replacement plan, and three Republican senators wouldn’t vote for repeal without one. Trump eventually announced an infrastructure plan, but couldn’t get his own party to buy into it.

Each party suffered from the implacable opposition of the other. It is striking to look back at big legislation of the past. Medicare got 70 votes in the Senate, including 13 Republicans. Social Security got 77 votes (16 Republicans), and the Voting Rights Act got 77 (30 Republicans; the main opposition came from Southern Democrats). The National Environmental Protection Act (which, among other things, established the EPA) passed unanimously. But both ObamaCare and the Trump tax cut were party-line votes.

In part, the polarization of the Senate is due to the polarization of the voters. But the polarization of each party’s special interests is also an important factor. Polls show considerable bipartisan support for giving some kind of legal status to the Dreamers (undocumented immigrants brought into the US as children, many of whom remember no other country), for simple gun-control measures like universal background checks, for limits on medical malpractice lawsuits, and a number of other measures. But base voters oppose them, and so do organizations like the NRA or the National Trial Lawyers. So they don’t pass, to the great frustration of the majority of Americans.

Issues that used to be negotiable have now been cast as matters of principle. Republicans cannot support any tax increase, no matter what concession they might get in exchange. Many Democrats draw a line in the sand on entitlement reform. As recently as 2013, the Senate could pass a bipartisan immigration reform bill. But today that bill (which might also have passed the House if Speaker Boehner had allowed a vote) seems like a relic from a bygone era.

But all these factors come back to how easy it is to block things in the Senate. In a polarized environment with powerful special interests, it’s hard to get 60 votes for even the most popular bills. One of the levers that previously induced senators to compromise was the argument: “This bill is going to pass anyway. You might as well get on board and see if you can win any concessions in exchange for your support.” (This still works for must-pass bills like the ones that keep the government open.) But if the bill is likely not going to pass, why risk the attack ads that a yes-vote might generate?

Filibusters have become the rule, not the exception. The filibuster has existed since a rule change in 1806, which is sometimes blamed on the villainous Aaron Burr. It is not in the Constitution. On the contrary, the Constitution explicitly requires Congress to have supermajorities only for a few highly significant actions: removing a President or other official via impeachment, passing a constitutional amendment, and ratifying a treaty. But the Founders never intended a supermajority requirement to apply to ordinary legislation. In Federalist #22, Alexander Hamilton railed against those who would ask for a supermajority provision:

The public business must, in some way or other, go forward. If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings. Hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good. And yet, in such a system, it is even happy when such compromises can take place: for upon some occasions things will not admit of accommodation; and then the measures of government must be injuriously suspended, or fatally defeated. It is often, by the impracticability of obtaining the concurrence of the necessary number of votes, kept in a state of inaction. Its situation must always savor of weakness, sometimes border upon anarchy.

… When the concurrence of a large number is required by the Constitution to the doing of any national act, we are apt to rest satisfied that all is safe, because nothing improper will be likely TO BE DONE, but we forget how much good may be prevented, and how much ill may be produced, by the power of hindering the doing what may be necessary, and of keeping affairs in the same unfavorable posture in which they may happen to stand at particular periods.

Filibusters were purely theoretical until the 1830s, and fairly rare thereafter. The Senate tended to think of itself as a gentlemen’s club; grinding business to a halt was ungentlemanly behavior. For years, filibusters were reserved for only the most important issues. For example, Southern senators used them to stifle civil-rights legislation, which they saw as a direct threat to the white supremacist society of the Jim Crow states. (Filibustering was, in essence, an alternative to seceding again.) But then the frequency of filibusters took off.

https://www.motherjones.com/kevin-drum/2013/11/charts-explain-why-democrats-went-nuclear-filibuster/

Today, the press simply takes for granted that everything will be filibustered, and routinely reports that it takes 60 votes to get anything through the Senate. For example, the post-Sandy-Hook-massacre effort to get background checks through the Senate failed 54-46, with the 54 voting for it. This was reported as if it were business as usual. Effectively, the Senate now has the supermajority requirement that Hamilton so opposed, with exactly the unfortunate results he predicted.

Spreading effects of Congressional dysfunction. People from both parties (or neither) frequently complain about two other unfortunate trends in American governance: the imperial presidency and the ever-expanding reach of the Supreme Court. Both of these developments are promoted by the dysfunction of Congress.

Increasingly, presidents push the boundaries of executive orders. It’s easy to criticize Trump’s excesses, like the phony emergency he declared in order to redirect money to his border wall. But it’s also instructive to note Obama’s overreaches, like DACA, which protected the Dreamers from deportation and allowed them to work legally, and the DAPA program that would have covered parents of American citizens if the Supreme Court had allowed it.

In Obama’s remarks announcing DACA, he pleaded for Congress to turn a popular cause into a law.

Now, let’s be clear — this is not amnesty, this is not immunity. This is not a path to citizenship. It’s not a permanent fix. This is a temporary stopgap measure that lets us focus our resources wisely while giving a degree of relief and hope to talented, driven, patriotic young people. … Precisely because this is temporary, Congress needs to act. There is still time for Congress to pass the DREAM Act this year, because these kids deserve to plan their lives in more than two-year increments. And we still need to pass comprehensive immigration reform that addresses our 21st century economic and security needs.

He stretched the power of executive orders because the American people supported something that Congress refused to do, or even bring to a vote. This is a common pattern in executive orders: Something needs to happen and Congress is log-jammed, so the president just does it on dubious authority.

Trump’s trade wars followed the same pattern. Tariffs are supposed to be set by Congress, but an obscure and seldom-used clause of a law delegated that power to the president under extreme circumstances. Trump decided those conditions were met and abused this power. But getting tougher on foreign imports was popular, so Congress did nothing to reclaim its prerogatives.

Much judicial overreach is similar. Take, for example, John Roberts’ rewrite of the Affordable Care Act. He was part of a conservative majority that ruled (wrongly, in my opinion) that the law’s insurance mandate couldn’t be justified by previous Supreme Court interpretations of the Constitution’s interstate commerce clause. Roberts, however, recognized that Congress has sweeping constitutional power to tax, so he reinterpreted the mandate’s penalty as a tax, allowing ObamaCare to stand.

In earlier eras, the Court might simply have voided the law, but delayed the implementation of its ruling to allow Congress to adjust. After a simple legislative fix — change the word “penalty” to “tax” — the program would have gone forward. But Roberts knew that in the current era, legislation only passes when the planets align. Voiding ObamaCare for any reason would have meant ending it for the foreseeable future. He wasn’t willing to be the reason why tens of millions of Americans lost their health insurance, so instead he rewrote the law himself.

A similar pattern accounts for the various administrative changes Obama made during the implementation of the ACA. It is common for big new programs to need fine tuning, because nothing complicated ever works exactly as its designers expect. In past eras, Congress would quickly pass such changes, recognizing that they improved an ongoing program. But ObamaCare’s opposition wanted to see it crash, and would not allow any legislative fine tuning. So Obama stretched his executive power to make the program work.

In the Founders’ vision, Congress is the vehicle for channeling public opinion into action. But that channel is blocked, so the other branches of government expand their power to compensate. This is not healthy for democracy: The expanding power of the president tilts us in the direction of an elected dictatorship, while the the Supreme Court’s extended range of action removes power from the political system entirely. But complete inaction in the face of well-recognized problems is also not healthy for democracy.

Stop the decay. The danger in this process should be obvious, because we see it happening all around us: People are becoming more cynical, and losing faith in the power of their vote. If passing, say, Medicare for All requires electing 60 Democratic senators, what’s the point of trying? Even expanding ObamaCare is more likely to happen via a Biden executive order than by an act of Congress. And if you oppose that executive power grab, you will look to the Supreme Court to save you, not Congress.

The filibuster is far from the only anti-democratic provision in our system. The Senate itself allows a collection of small states that represent far fewer than half the country to gain control. The Electoral College makes it possible for a minority to elect the president. Gerrymandering and voter suppression make the House undemocratic.

But the simplest and most direct way to restore the vitality of Congress is to end the filibuster. If you can convince enough people to agree with you to elect majorities in both houses, you should be able to get legislation passed. If that legislation turns out badly, a new majority should be able to get it repealed. That’s what makes elections meaningful.

If elections stop being meaningful, people will not stop seeking change. They’ll just have to promote it through undemocratic means. Eventually, a Caesar will come and sweep the whole jammed system aside. And the People will probably cheer, just as the People cheered Caesar.