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Taking Abortion Rights Seriously

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And about time:

In a 5-3 opinion written by Bill Clinton-nominee Stephen Breyer and joined by Kennedy and the Court’s other Democratic nominees, the Court forcefully acknowledged this reality. “The surgical-center requirement also provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions, and constitutes an ‘undue burden’ on their constitutional right to do so,” concluded the majority.

Breyer’s argument that the Texas statute constituted an “undue burden” is straightforward and unanswerable. First, the regulations were not meaningfully related to protecting the health of women. All of the evidence suggests that abortion was already a very safe procedure in Texas, and the state also provided no evidence that these regulations would meaningfully improve safety. Texas, as the majority observed, could literally not name a single case in which the admitting privileges requirement would have allowed a woman to attain better post-surgical care. The health justifications offered by Texas, in other words, were obvious shams, and the Court refused to pretend otherwise.

The other half of the equation — whether the statute made it substantially more difficult for women to obtain abortions — was equally easier to answer. Eight of the state’s abortion clinics closed in the months between the law’s passage and its effective date of application, and 11 more closed the day the law took effect. Making women drive very long distances to obtain abortions is obviously a very substantial burden, and it was one that Texan women outside of a few urban centers would face.

Indeed, if evaluated as a health regulation, the Texas law is massively counterproductive. As Justice Ruth Bader Ginsburg observed in her brief concurrence, “When a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners… at great risk to their health and safety.” If Texas wanted to protect the health of women in the state, it would want to ensure that women have easy access to licensed abortion clinics, rather than pushing them to the unregulated black market.

If a law that makes it much more difficult for women to obtain an abortion and does not have any serious health justification does not constitute an “undue burden,” then the phrase has no meaning. In striking down the offending provisions of HB2, the Court acknowledged this basic reality.

Another striking indication of how specious Texas’s justifications for its law were is how little of the 60 pages of the dissenting opinions, written by Justices Clarence Thomas and Samuel Alito, actually defend the law as not constituting an “undue burden.” Rather, both Alito and Thomas focused on technical, jurisdictional arguments that would have prevented the Court from hearing the case.

For anyone familiar with Alito’s body of work, this shouldn’t be a surprise.

The thing is that presidential and Senate elections matter a lot.

I’ll have another piece coming out explaining Kennedy’s evolution on the issue. I’m glad that for the second time in the last 7 days he can’t go along with where the Republican Party now is.

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  • K

    so if i understand what you think even tho the constitution doesn’t say anything about abortion states cant regulate it at all and eve tho gun rights have their own amendment it ok for obama to force every one to fork over their guns. i don’t like abortion but i also think that government shouldn’t ban but it should be ok for states to like say that only trained doctors can preform abortion if i dont ban abortion you shouldn’t take away my guns.

    • nacorwin

      Sorry for feeding the trolls…

      I think you do not understand the post nor the court. States can regulate abortion. They can not make restrictions that are a substantial obstacle to access and don’t make the procedure any safer. There is an amendment about guns in the constitution. It explicitly uses the phrase “well regulated” in it. Obama probably can’t force everyone to fork over their guns, nor has he ever tried. Lastly, I suspect that a sincere law saying that only qualified doctors can preform abortions would be constitutional.

    • trollhattan

      Iff ewe cant spul yew cant applicate gunz, so know ghuns fore yoo.

    • DAS

      if i understand what you think even tho the constitution doesn’t say anything about abortion states cant regulate it at all

      I am not an historian, but as far as I know the ninth amendment was specifically put in the constitution to rebut the argument you’ve just made.

      and eve tho gun rights have their own amendment

      A well regulated militia? How does that work?

      • A well regulated vagina being necessary to the operation of a free woman, the right to an abortion shall not be infringed.

        This would obviously mean ALL abortion regulations are unconstitutional obviously right?

        • This vagina kills fascists! (beadazzled vajayjay coming to a bedroom near you.)

          • Snarki, child of Loki

            Where do we sign up?

          • mds

            This vagina kills fascists!

            Not quickly enough, unfortunately.

            (beadazzled vajayjay coming to a bedroom near you.)

            (1) HOT. (2) I believe it is acceptable to use the condensed form “vajazzle.”

            • On the other hand, “beadazzled” is Old Church Dyslexic for “bead-assled”, which reminds one of Professor McElroy’s e-mail faux pas, which makes one giggle. Perhaps.

        • Docrailgun

          St. Scalia would clearly say that the two phrases aren’t connected to one another, but he wouldn’t like it.

    • You’ve gotten red herring in your straw man you silly person.

    • cpinva

      “so if i understand what you think even tho the constitution doesn’t say anything about abortion states cant regulate it at all and eve tho gun rights have their own amendment it ok for obama to force every one to fork over their guns.”

      what you claim to “understand”, isn’t what the majority of people on this site, including the headliners, actually think, at least not that they have publicly stated on this site. since you provide no evidence for this “understanding”, it’s somewhat difficult, if not impossible, to have any idea what might have prompted your “understanding”. please provide cites, that you feel support your assertions as to the beliefs of those commenting on this site. they will be evaluated and analyzed, and a determination made, as to whether or not they meet a basic standard of truth, with respect to your claims.

      as well, the constitution doesn’t make any mention whatever of computers/cars/planes, and yet it’s been determined, by this same court, that the gov’t has both a right and a responsibility to provide laws and regulations, with respect to their production/use/disposal. funny how those authors managed to build into the document a way for the government to keep up with the current times. smart guys.

      • so-in-so

        It is K, you could have stopped at the word “think”.

      • muddy

        Cites? He doesn’t live in a horrible urban area, how dare you!

    • JMP

      ewe kneed two learn too right gooder

  • Joe_JP

    Good to draw a line in the sand, even if too much is allowed.

    https://rewire.news/legislative-tracker/law/texas-omnibus-abortion-bill-hb-2-2013/

    Only part of the law was at issue here. More battles to fight. Let’s win the Senate back.

    • Origami Isopod

      even if too much is allowed.

      Yes, indeed, we’ve allowed the fetus-humpers far too much control over women’s bodies. That is what you’re saying, yes?

      • Joe_JP

        I’m making a general point too, but yes, as to abortion rights, isn’t protected enough. But, it is good that some line in the sand was drawn today by the Supreme Court of the United States. Waterboarding labeled torture/illegal would be another such moment.

        • Scott Lemieux

          And it’s not a minor exception, either. It’s going to be very hard for states to justify TRAP regulations now, and a majority of circuits are now controlled by Democrats. It’s not quite the restoration of the trimester framework but it’s a big deal.

          • ThusBloggedAnderson

            I’m a shade less optimistic. Breyer kept stressing that Texas had *no* evidence, and that their legislature made *no* findings.

            What will happen when a less shameless TRAP law comes up, one that gives Kennedy something to seize upon? Here’s hoping a couple more Dem appointees make that an easier question to answer.

            • Joe_JP

              I think his stance is most realistic in regard to lower courts applying the opinion. We basically saw Kennedy’s reaction to somewhat less egregious TRAP laws (though perhaps this was helped by an avoidance mechanism — don’t know how many were appealed) by the paucity of cases taken after Casey.

  • K

    i want a judge on the court who wont beat up on gays or force religion on people but who also doesn’t raise my taxes or take away my guns. the problem is that hillary and trump have both commited lots of crimes they’re going to put judges on the court who wont sent them the jail. we need a president who doesn’t hae a history of committing crimes.

    • dr. fancypants

      When was the last time a judge raised your taxes?

      • DAS

        I’m guessing when Justice Roberts decided the ACA was a tax.

    • Captain Oblivious

      I think anyone who doesn’t know how to use the shift key and insert a period at end of sentences is objectively too stupid to be allowed to own a gun.

    • cpinva

      “i want a judge on the court who wont beat up on gays or force religion on people but who also doesn’t raise my taxes or take away my guns.”

      since judges, by definition, have no legislative authority, they wouldn’t be the ones doing this, that would be your elected representatives. were I you, I would want to take a very close look at those wanting to represent you, from the local to the national level, before deciding who to vote for. sure, it will require some work, but you’ll feel more confident going into that voting booth come Nov.

  • K

    why does that picture say getty is it connected to the gas stations to used to be getty but are now called marathon.

    • Thom

      This seems like a real question, so I’m going to answer. “Getty Images” is a company that has a bank of photographs available for use under certain (copyright) conditions.

      • Jeff R.

        Getty Images was founded by a grand son of J. Paul Getty. It’s totally separate from the oil company, or whatever’s left of it.

        • N__B

          What about J. Pauline Spaghetti? Where does she figure in this, seeing as how I haven’t heard about her in years.

          • efgoldman

            I haven’t heard about her in years.

            You just read the wrong supermarket tabloids.

    • DW

      The other half of this seems genuine, too, so I’ll add that I thought a majority of the Getty stations were sold to Lukoil, not Marathon.

    • “Getty” is the mark that the Anti-Christ requires on all blog posts about abortion. This rule only went into effect this morning which is probably why you did not know this fact.

    • Scott Lemieux

      This is kind of amazing. Like, there’s apparently there’s literally no “k” comment so rote or off-topic it can’t immediately produce multiple comments.

      • sharculese

        To be fair, K’s descent into Time Cube levels of absurdity is kind of fun.

        • dr. fancypants

          Yeah, K’s comments are so crazy that I don’t even think they should be considered trolling. They’re kind of fun to bat around a bit.

        • wjts

          I’m coming around to the opinion that the K who’s been posting recently is not the real K of secret non-union work clubs that don’t discuss work fame.

  • howard

    so far i have been spectacularly wrong in my guess that roberts would want to vote with kennedy and have some 6-2 decisions where he writes a very narrow opinion, although this probably wasn’t a case where there wsa much chance.

    what i have to wonder – and i’m sure i’m not alone in this wondering – is how it is that kennedy post-scalia seems to have, uh, rethought his priorities? did antonin’s scorn scare him that much?

    • sam

      I saw someone posting on twitter today that scalia’s presence/non-presence wouldn’t have made a difference here because of the vote breakdown, and I had to point out that we just have no way of knowing what sort of persuasive influence behind the scenes a living Scalia would have had on Kennedy – whether it would have caused Kennedy to flip or on some level be much ‘narrower’ in his reading of this decision (and thereby dragging the rest of the court into his narrower ruling in order to score some sort of half-win, a la Casey).

      If nothing else, Scalia was a notorious bully. I think Sotomayor did her level-best in her time on the court to push back on his bullying, loudmouthed tactics by giving as good as he gave, which helped some, but the disappearance of that braying steamroller has just changed the overall dynamics of the arguments.

      • DAS

        I wonder though, would Utah v. Strieff have gone the way it did if Scalia were still alive?

      • catclub

        If nothing else, Scalia was a notorious bully.

        I thought the best known case was that Scalia overdid it and Roberts switched on the ACA because the no side were all assholes. Which suggests to me that these are all grown ups on the court, and bullying may not have helped their side much at all.

      • Scott Lemieux

        I’ll address this in the next piece, but I don’t think it was Scalia. He tried really hard to get Kennedy to overrule Roe during the Casey deliberations and AMK told him to piss up a rope. People tend to confuse “centrist” with “weak-minded,” and also tend to overstate Scalia’s influence on others.

        • sam

          It’s entirely possible I’m overthinking his influence here – and perhaps less about bullying other judges, but perhaps the way he monopolized oral arguments (which is where I think about Sotomayor really giving him pushback) and dominating those arenas with his strawmen.

    • postmodulator

      Another possible lesson Kennedy might have drawn from Scalia: perhaps he is considering whether or not he would like to be remembered for something other than evil when he dies. Aside from ideological lickspittles and Ruth Bader Ginsburg, nobody much had a decent thing to say in memory of Scalia.

      • cpinva

        ” Aside from ideological lickspittles and Ruth Bader Ginsburg, nobody much had a decent thing to say in memory of Scalia.”

        hey, i’ll say something nice about him: it was decent of him to die. the world is a better place for his absence.

        • postmodulator

          Rather proves my point, doesn’t it?

    • efgoldman

      how it is that kennedy post-scalia seems to have, uh, rethought his priorities?

      I said in the other thread that I wonder if Kennedy is contemplating retirement, maybe before the new session in October, and is looking toward history and his legacy.

  • K

    nacorwin, in a nutshell the constitution doesn’t say any about abortions at all it does mention the people have a right to keep and bear arms. i dont have a problem with regulations on guns, it should ok for the government to say that guns wont blow up in the hands of the people that are using them thats ok what the government shouldnt do is ban all guns and force people turn the owns they own over. the law in texas didn’t ban abortion it just they could only be performed by doctors who were approved by hospitals and the clincs where abortions happened had to meet certin safety requirements.

    • I don’t think Obama should take everyone’s guns away. I think he should require those who want to own guns to be members of the National Guard, in keeping with the maintenence of a civilian militia to respond to uprisings and such.

      • Pat

        I sincerely believe that weapons of war do not belong in civilian homes. We are all in considerably more danger because civilians are able to buy, and keep at home, guns meant for battle.

        The families of gun owners are particularly at risk.

        • cpinva

          well, if K can buy a civilian version of an M-16 or AK-47, why can’t I buy a civilian version of a 20mm electric gatling gun, for self-defense of course? seems only fair. not to mention, the deer in this area are getting mighty damn aggressive too.

          why is the government violating my non-existent constitutional right to own fully automatic weapons of war?! a community where everyone owns a fully armed F-16, is a community where everyone is polite to each other.

          • efgoldman

            a community where everyone owns a fully armed F-16, is a community where everyone is polite to each other

            Problem is, everyone needs room for a big honking runway, too.
            An Abrams tank or a 105mm howitzer just requires a big garage.

          • liberalrob

            My Iraq-war surplus M-1 Abrams laughs at your 20mm gun. Yeah, the ammo for the 120mm cannon is expensive, not to mention fuel, but it’s the only way I can feel relatively safe from the ISIS hordes that will be swimming ashore any day now.

            • The only person who can stop a bad guy at the mall with an M1 Abrams is a good guy at the mall with an M1 Abrams.

        • I happen to agree with you. But if the gun nuts want to invoke the 2nd Amendment, then let them own their guns as part of a well regulated militia. Otherwise, recognize that the US in 2016 no longer needs the help of a civilian militia to maintain law and order and repeal the damn thing.

        • This has become obvious–its a true hidden epidemic. I read David Waldman’s Gun Fail series over at Kos, periodically, when I’m far enough away from razors to not slit my wrists, and the sheer number of totally avoidable, tragic, injuries and deaths, from gun “accidents” in the home is just staggering. The number of toddlers who shoot themselves, or a relative, boggles the mind. If a new administration did nothing else than authorize the CDC to collect data on gun deaths and injuries (regardless of their status as “accidents”) and we could run a permanent billboard publishing the faces of the dead and the numbers, I think we would be a lot closer to finding a solution.

          • efgoldman

            the sheer number of totally avoidable, tragic, injuries and deaths, from gun “accidents” in the home is just staggering.

            Two possible remedies that don’t involve confiscation and/or licensing:
            – Allow insurance companies to rate homeowner’s policies differently if weapons in the home. (They’re allowed to charge more for, e.g. expensive jewelry, musical instruments, etc.)
            – Have prosecuting attorneys actually charge the firearms owner with (at least) negligent homicide, instead of “they’ve already suffered so much” bullshit.

            • Brad Nailer

              You know what the answer to the insurance issue would be: Registration! First step to the national database! Blah blah blah.

              I’ve been in discussions with 2A people. They just fucking wear you out. Nothing is acceptable to them.

              • efgoldman

                I’ve been in discussions with 2A people. They just fucking wear you out. Nothing is acceptable to them.

                Nothing is acceptable to the Yahoo Forced Birthers or the yabbo homophobes, either, but SCOTUS has set them straight.
                Not real soon, not all at once, but things are beginning – and only beginnng – to turn.

                • Brad Nailer

                  Word.

            • Dr. Ronnie James, DO

              #2 just happened here in Philly, the mom is being charged with 3rd degree murder:

              http://www.philly.com/philly/news/20160625_Sources__Girl__4__believed_to_have_accidentally_shot_self.html?mobi=true

              • los

                the mom is not white.

          • liberalrob

            There’s a Gunfail account on Facebook, too. A lot of people seem to shoot themselves or others while cleaning their guns. A lot of guns seem to get left in restroom stalls. The “responsible gun owner” seems something of a mythological figure…of course we only hear about the failures but there are so many…

        • Dupe

          Boo! I want my LAW, my bazooka, and my M-6 consarnit!!!!

          • pianomover

            2/3rds of gun deaths are suicides. Address the mental health issue involved with this. Skip the expansion of no – fly and registration laws.

          • ColBatGuano

            Enjoy my Claymore mines, door-to-door salesmen!

            • efgoldman

              Enjoy my Claymore mines, door-to-door salesmen!

              You joke. My late brother-in-law.

              • Neighbors said that a former resident at the home, who had passed away earlier this year, was a military collector and that the devices were found by a relative going through his belongings.

                Jesus. It sounds like you could well have had another late in-law.

              • Pseudonym

                If Claymores are outlawed, only in-laws will be outlawed?

          • Pseudonym

            What’s an M-6 Consarnit?

    • ema

      the law in texas didn’t ban abortion it just they could only be performed by doctors who were approved by hospitals and the clincs where abortions happened had to meet certin safety requirements.

      Both restrictions are inconsistent with accepted medical practice and provide no benefit to patient care.

      Legal fantasy restrictions are intended to ban abortion, one of the safest and most effective medical procedures available under current law.

      • Pat

        The best part is that the law itself and the strategy behind it were conceived by a right-wing think tank, and Republican state enacted identical laws.

        So all of them have been struck down.

        • cpinva

          another “brought to by ALEC” law.

          • los

            moar koch brothers freedoms and liberties

    • nacorwin

      I think you are being disingenuous calling the conditions in the law “certain safety requirements”. I also think the metaphor with guns is flawed.

      Do you think a law that says that an individual can have guns – as long they have passed the army sniper training course and only shoot the weapon at FBI target ranges – is in keeping with the constitution?

      • sharculese

        It’s K. He’s not “being” anything. He churns this stream of consciousness shit out for attention.

        • Aren’t you being a bit hasty with words like “consciousness?”

          • N__B

            “stream of unconsciousness” is a beautiful phrase.

    • a_paul_in_mtl

      in a nutshell the constitution doesn’t say any about abortions at all it does mention the people have a right to keep and bear arms.

      I suggest you reread the Second Amendment, and ask yourself the following:

      1) Who are “the people”? Does a right belonging to “the people” necessarily belong in unlimited quantities to every person?

      2) What is a “well regulated militia”, and what sort of right of “the people” to bear arms must be respected to allow for such to be maintained?

      • Downpuppy

        All these nutshells remind me that the new Squirrel Girl series eats nuts & kicks butts.

      • Richard Gadsden

        My view is that “the people” is all human beings on earth, and that disarming prisoners of war on their capture would have been unconstitutional but for…

        … The well regulated militia clause. Which means that the militia was necessary to defend the USA against enemies foreign and domestic in 1789. Since this is clearly no longer true; for enemies foreign there is a professional military and for enemies domestic there is a professional police, then the entire amendment goes into suspension.

        The right to keep and bear arms may be infringed because a well-regulated militia is no longer necessary to the security of a free State.

    • a_paul_in_mtl

      “the law in texas didn’t ban abortion it just they could only be performed by doctors who were approved by hospitals and the clincs where abortions happened had to meet certin safety requirements.”

      Right, so if we required that all guns have “safety requirements” such that they could never kill anybody, that would not be tantamount to a ban on guns from your point of view?

      • You can have all the guns you want but bullets will be illegal. Show me where in the 2nd am it mentions bullets?

        • Downpuppy

          Show me where it sez “guns” or “own”

          • liberalrob

            Yeah, it just says the gummint can’t take away your arms (which is an important thing these days). “Bear” is probably a typo (“Scrivener’s Error” in legalese), and they meant “bare”. I’m all for bare arms.

    • Pseudonym

      What kind of guns do you have, K?

      • Pat

        And what’s your address? asking for a friend.

  • EliHawk

    I’m also glad Kennedy let someone other than Kennedy write for once.

    • ThusBloggedAnderson

      This. No fucking concurrence either.

  • Gee Suss

    Scott, I see one typo towards the end:

    With once Supreme Court vacancy…

    • Warren Terra

      If we’re nitpicking, the first line of the blockquote is ambiguous: “In a 5-3 opinion written by Bill Clinton-nominee Stephen Breyer and joined by Kennedy and the Court’s other Democratic nominees” s/b “In a 5-3 opinion written by Bill Clinton-nominee Stephen Breyer and joined by the Court’s other Democratic nominees and Kennedy”

  • I love seeing awful people getting kicked in the balls. More of these, please, Supremes.

    • Manju

      The next Potus really must invite Diana Ross to her inauguration. And seat her next to the….

      • Hogan

        Stop! In the name of love!

        • …before you kick my balls, think it o-o-ver!

    • efgoldman

      I love seeing awful people getting kicked in the balls.

      Isn’t one of those TX Republiklown RWNJ assholes (AG, maybe?) under indictment?

      • liberalrob

        Yes, the Attorney General is indeed under indictment. For securities fraud. This will in no way affect his effectiveness as Attorney General, of course.

        • efgoldman

          This will in no way affect his effectiveness as Attorney General

          True. He’s been really effective wasting taxpayer’s money on lost causes.

          • Colin Day

            Hasn’t Texas been doing that since 1861?

  • Roger Ailes

    Looke like you picked the wrong week to take up autoerotic asphyxiation, Fat Tony.

    • Roger Ailes

      Yes, I know it was 5-3. Still better than 5-4 with a flatuent dissent.

      • efgoldman

        Still better than 5-4 with a flatuent dissent.

        But the outraged sarcasm with no basis in fact would have been EPIC!

  • piratedan

    well… if this law is now unconstitutional in Texas, do we get to watch these dead-enders try and support it where it is enacted elsewhere? South Dakota, Mississippi etc? or does this mean it’s now open for those states to have PP (or another proxy) to have to file suit to have those state laws rescinded?

    • sharculese

      The latter. TRAP laws aren’t a single broad thing, like “no gays getting married,” they’re a bunch of piddly little regulations designed to make running a clinic harder to do. So even though Texas’s law is too extreme, South Carolina’s is theoretically okay, and that has to be litigated.

      The good news is that now any clinic that wants to litigate it both 1.) has precedent they can point to and 2.) can be more confident the Court will be sympathetic to them.

      • piratedan

        tyvm… thought that was the case, as usual, the battle will take time and resources but its still worth fighting.

        • cpinva

          “tyvm… thought that was the case, as usual, the battle will take time and resources but its still worth fighting.”

          and that’s another irritating thing. these are “terminater” laws: they never quit, they have endless amounts of taxpayer dollars to defend them, when one goes down, another one pops up to take its place. the very only way to stop this, is to throw out every single republican from public office, everywhere in the country, and keep them out, forever.

          it’s the only way to be sure.

          • efgoldman

            they have endless amounts of taxpayer dollars to defend them

            Where do all these shitheels hide the costs in their budgets? Could some citizen(s) sue to stop it?

  • Morse Code for J

    The second-worst outcome for this election: Hillary Clinton wins the presidency, but Mitch McConnell remains the Majority Leader.

    • Stan Gable

      I’ve been wondering about him – supposing Clinton wins the presidency, how on earth does McConnell keep his job within the Senate GOP?

      • Denverite

        Who else would want it?

      • Morse Code for J

        McConnell’s an excellent fundraiser and the architect of the GOP’s every-last-yard resistance to Obama; whether it worked or didn’t work, I can’t think of anyone else in the Senate who wants to fight with him and Cornyn over the leadership. He was unanimously chosen for Majority Leader this time. Even Cruz voted for him.

  • Denverite

    Thrilled with the result, but Alito does kind of have a point. If you don’t require a litigant attacking a particular statute to bring all potential claims, it really creates a powerful incentive for the same litigants to attack the statute piecemeal, bringing one lawsuit after another until they can land in a favorable court.

    Of course, it’s really a matter of form over substance because you can always just find an alternate plaintiff.

    • furikawari

      That might make sense if the law is non-severable. But these laws state that every provision, even every word is severable from every other. The plaintiff is attacking several different statutes all passed at the same time.

      I liked Breyer’s dig at this argument: how many times has the Court reviewed the PPACA?

      • Denverite

        I liked Breyer’s dig at this argument: how many times has the Court reviewed the PPACA?

        That seems like a non-sequitur — those were different plaintiffs. To make it akin to what PP did, you’d have to have NFIB bring all of the lawsuits.

        • furikawari

          Yes, you’re quite right there. But I got the feeling of exasperation out of that line, and it seemed responsive to the sudden importance of procedural arcana. Maybe I’m just imagining things.

          • Denverite

            I’m not sure claim/issue preclusion is really “procedural arcana.” The principle that the same plaintiff shouldn’t be able to file lawsuit after lawsuit attacking a particular statute by switching the legal theory every time seems pretty substantive to me.

            Again, though, PP would just recruit another plaintiff if they weren’t allowed to bring the suit, so it probably wouldn’t make a difference in the real world.

    • L2P

      “Same litigants” means even less than that these days. Litigants are often “Taxpayers against this thing,” and they can easily reincorporate as “Even more taxpayers against this thing.” It’s not uncommon for us to be defending multiple lawsuits by entities financed by the same backers, they just weren’t communicating very well.

      I’m not sure preclusion is a particularly strong argument here in any event. When you’re dealing with technical stuff like this, it’s often hard to see how something impacts an activity right away. Even with facial attacks it’s often only over time that the real problems with a statute appear. A plaintiff might see an equal protection problem that is overruled, and then see a process problem that wasn’t easy to see until the statute started being applied.

      But YMMV.

    • ThusBloggedAnderson

      I wonder if Thomas would make the same point about the clinics’ lacking standing in a case where a gun manufacturer/vendor said the 2d Amendment was being violated.

      • Denverite

        This is a good point. I actually do wonder what Thomas would do in that context.

        • ThusBloggedAnderson

          I don’t.

          • Denverite

            I dunno. Thomas is pretty consistent in applying his off-the-wall theories, even when doing so leads to a policy outcome you wouldn’t think that he liked.

    • efgoldman

      it really creates a powerful incentive for the same litigants to attack the statute piecemeal, bringing one lawsuit after another until they can land in a favorable court.

      But isn’t that exactly what the RWNJs do? I think it’s a safe assumption that Alito is sympathetic to them, to say the least.

  • lee24

    I think all of us liberals (especially those of us living in Chicago) owe a huge debt of gratitude to the last honest conservative — Richard Posner. They way he took these bullshit artists down in the Wisconsin case was a thing of beauty. I’m sure it influenced Kennedy.

  • SqueakyRat

    I have a thing about the word “specious.” It used to mean “plausible” or ‘likely on its face” — read Hume or Gibbon if you don’t believe me. Then it started to be used to mean “merely plausible” or even worse, “deceptively plausible.” That’s a type of semantic change that’s happened to other words, I think, though I don’t have another example at hand. But now it’s come to mean “Not even plausible but just plain mendacious.” I think it’s a shame.

    • The Temporary Name

      read Hume or Gibbon if you don’t believe me.

      They write anything recently?

      • SqueakyRat

        No, but some things are immortal: “The various modes of worship, which prevailed in the Roman world, were all considered by the people, as equally true; by the philosopher, as equally false; and by the magistrate, as equally useful. And thus toleration produced not only mutual indulgence, but even religious concord.”

    • Hogan

      His reasoning was specious, and did much to reassure me.

      –P. G. Wodehouse, 1947

      That puzzled me last week (even though it’s Bertie Wooster speaking). It makes more sense now. Thanks!

    • Unfortunately I think that’s exactly the kind of nuance that is unstable in language. Like you said, the meaning has changed several times in recent memory already.

      I think the basic cause is that most people learn words through contextual interpolation, not instruction. As a result, people learn a word like “specious” by seeing it used in a context of “X was a specious argument”, where X is in context clearly a false argument. Thus, “specious” becomes a word used for a false argument. In addition, I think that people generally tend to use their ten dollar words for emphasis, so “specious” is what you whip out when something is REALLY a bad argument.

    • los

      irirregardless, do/don’t you think.

  • Joe_JP

    Among orders today is a denial regarding requiring pharmacists to supply contraceptives without a religious exception. Alito (with Thomas and Roberts — last notable) joining has a strong dissent.

    http://www.supremecourt.gov/orders/courtorders/062816zr_29m1.pdf

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