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A Chill Wind Blows

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Will Roe survive? If Trump can be held to one Supreme Court appointment, yes. If not, though, it’s over, and the only question is whether Roberts summarily executes the reproductive rights of American women or tortures to death:

Admittedly, previous Supreme Courts that were even more dominated by Republicans refused to overrule Roe. But this was not some kind of conscious decision by Republican elites; rather, it was due to a series of flukes and political calculations that no longer apply. Consider the nominees of Ronald Reagan and George H.W. Bush, who were all essential to Roe’s partial survival. Sandra Day O’Connor, who was known to be a moderate on abortion, was nominated by Reagan to fulfill his promise to nominate the first female Supreme Court justice at a time when there were few viable candidates—a tradeoff no Republican president would make today. Kennedy was on the Court only because the Senate rejected Reagan’s first choice, the fiercely anti-Roe Robert Bork. David Souter was the product of idiosyncrasies within the first Bush administration—most notably the influence of two prominent New Hampshirites who admired Souter—and his liberal record on the Court means that no Republican president will ever nominate someone like Souter again (and if they did, a Republican Senate would reject the nomination).

If Reagan had just nominated Bork while he still had a Republican Senate, Roe almost certainly would have been overruled in 1992, when the Court instead upheld a constitutional right to abortion in Planned Parenthood v. Casey. If Trump gets at least two Supreme Court justices confirmed, this luck will run out.

As his dissenting vote in this year’s Texas abortion case makes clear, Chief Justice Roberts does not believe in the constitutional protection of a woman’s reproductive rights. And it is entirely possible that at the first opportunity he will author a decision overruling Roe. Still, a more likely possibility is that he will use the same fake-minimalist approach he’s used in areas such as campaign finance and voting rights, incrementally undermining the foundations of precedent before going in for the kill shot. Rather than loudly announcing that he’s overruling a precedent, he treads carefully, ruling on the issue at hand and setting up a later attack. The classic example is him planting the idea that the Voting Rights Act had to comply with a newly minted “equal sovereignty of the states” restriction, in a deceptively unanimous 2009 opinion—then using it to gut the Voting Rights Act four years later.

If he chooses the latter route, he can use the roadmap set out by his predecessor and former boss, William Rehnquist. In the late 1980s, Rehnquist tried to effectively overrule Roe without explicitly doing so, proposing the replacement of Roe’s trimester framework with a standard allowing the states to pass any law that “reasonably furthers” a state’s interest in protecting fetal life. (“As you know, I am not in favor of overruling Roe v. Wade,” Justice John Paul Stevens responded at the time, “but if the deed is to be done I would rather see the Court give the case a decent burial instead of tossing it out the window of a fast-moving caboose.”)

Since Planned Parenthood has already replaced Roe’s clear trimester framework with the more nebulous “undue burden” standard—in which abortion opponents must prove that a given restriction does not place an undue burden on women seeking an abortion—Roberts’s task for attacking Roe is even more straightforward. He can simply find that no abortion regulation, including those as extreme as the ones recently passed in the Ohio legislature, constitutes an undue burden.

And, of course, his good friend Sam Alito will be there to help craft doctrines that make it enormously difficult to bring facial challenges to abortion regulations.

It’s also worth noting that there’s yet another reason for Democrats to maintain a laser focus on making Trump as unpopular as possible: Anthony Kennedy. Presumably, the only way Breyer or Ginsburg is leaving the Court with Trump in the White House is in a wooden box. But if Trump is normalized as just another Republican president and is reasonably popular, it’s more likely that Kennedy will resign and allow someone from his party to replace him.

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  • Crusty

    “Presumably, the only way Breyer or Ginsburg is leaving the Court with Trump in the White House is in a wooden box.”

    And that’s only after her clerks pull a weekend at Bernie’s for as long as they can.

    • Snarki, child of Loki

      Works better with Thomas, when he’s in “silent” mode.

      • dl

        lol. justices can wear shades on the bench if they want, right?

    • CrunchyFrog

      Probably won’t work for RGB – too interactive. I’m thinking a “Dave” approach here.

      OTOH, Clarence Thomas is perfect for a Weekend at Bernie’s scenario. In fact, it may already be happening and we’d have no way of knowing.

      ETA: Missed Snarki’s comment before I posted.

      • Crusty

        She puts out a statement that she’s been inspired by Thomas’ approach, also has an eye condition that requires wearing sunglasses all the time, there ya go.

  • NewishLawyer

    I doubt Roe will survive whoever Trump appoints to the Supreme Court.

    The big issue is whether the Republicans can find a way to make a federal ban on abortion in a post-Roe world.

    Obviously lots of red states are enacting radically oppressive, unconstitutional, reactionary, and sexist abortion restrictions. However, I know that California has liberalized their abortion laws as the rest of the country seemingly moves to the right on the issue. A few years ago, Jerry Brown signed a law that allowed nurse practioners to perform abortions.

    http://www.latimes.com/nation/la-na-abortion-california-20141023-story.html

    Has any other blue state made a similar liberalization on their abortion laws?

    Assuming a post-Roe world, is there a test case where right-wingers try and bring a Fed Court case against a state that maintains legal abortion like California?

    • Joe_JP

      Assuming a post-Roe world, is there a test case where right-wingers try and bring a Fed Court case against a state that maintains legal abortion like California?

      I can see some attempt being made to block abortion itself but don’t see it actually working. Scalia et. al. never suggested abortion was not a matter of state discretion. A few conservatives and libertarians even suggested the national so-called “partial birth” abortion law breached state rights.

      Some limits along the margins might get some traction, but an attempt to broadly interfere with state discretion here seems to me a bridge too far both pragmatically and as a matter of principle for some segment of the right. They would settle with leaving it to the states, even if a segment would be upset.

      ETA: An issue here will be abortion pills and sending them across state lines. Telemedicine also will be more and more important.

      • StellaB

        They can only block legal abortion. Abortion itself is going to stick around.

        • Yes. And the fact that abortion may be legal in California is meaningless to a woman living in Kansas who can’t afford a holiday in California.

      • pillsy

        I don’t think it will be politically possible for them to pass a federal abortion ban, but the alleged right-wing commitment to federalism sure as hell won’t stop them from trying.

        • mds

          I don’t think it will be politically possible for them to pass a federal abortion ban

          You presume that the filibuster will indeed stick around, then? Because once they have a SCOTUS majority for it, the only thing stopping a modern Republican Congress from passing one of their existing boilerplate fetal personhood bills is Senate Democrats + maybe one or two Republican senators. Maybe.

          • pillsy

            I do. I think the filibuster will be too useful to scrap.

    • CP

      I expect a weapon of choice will be denying federal funding to blue states and counties unless they do what they’re told by the feds. On a lot more than abortion, too.

      • Domino

        Unless I’m mistaken, wouldn’t the law mostly be on the cities and States side? The Fed can’t threaten to withhold funds for things in a coercive measure, unless it’s in a very specific way (why Fed funding for highway can be revoked re: drinking age, as it ties in to drunk driving)

        Don’t the Feds have a very limited scope in how they can threaten to withhold funding?

        • Mark Field

          Don’t overestimate the extent to which current case law will constrain the Justices.

        • CP

          Well, can’t they do exactly that, withhold highway funds for other things the way they currently do for the drinking age?

          (Also what Mark Field says, of course).

          • Domino

            Ah, so looking it up, the Court established a five-point rule when it comes to these decisions. Would laugh when this goes to court and the Republicans will argue against State’s rights.

            Just another example of what they truly are.

    • SatanicPanic

      Could they make it a felony and start prosecuting doctors? IANAL, sorry if I’m asking a stupid question.

    • Dilan Esper

      I doubt Roe will survive whoever Trump appoints to the Supreme Court.

      I have a very good record on this issue (I told Scott long ago that Kennedy would vote to strike down abortion restrictions that affected substantial numbers of adult women, which he eventually did in the Texas case), and I will say flatly that as long as AMK and the 4 liberals are on the Court, Roe itself is safe. There will continue to be attempts to chip away at the edges, but there’s 5 safe votes against any national abortion ban.

      I will also say that if Congress passed a statute (as opposed to a state ban), Thomas would also likely concur in the result based on commerce clause grounds (he indicated this in Gonzales v. Carhart), so there’s actually probably 6 votes against a federal ban.

      • Joe_JP

        he indicated this in Gonzales v. Carhart

        SCOTUS reached out to decide things before and not quite sure why — if he actually was serious, they could not have addressed the Commerce Clause “problem” there. Voices in Reason, Cato & National Review all flagged that. But, like DOMA, again which serious “federalists” flagged as problematic, whither Thomas? Medicinal marijuana only takes his claim of consistency so far here.

        Thomas very well might think a total ban goes too far though his usual strong positions on federalism should cover Congress getting involved in lesser cases too. His brief and bland (compare his tone in other opinions) comment doesn’t seem to me very principled taken his actions as whole.

        • Dilan Esper

          He didn’t think the issue was squarely presented in Carhart. In the case of a national abortion ban, the issue will squarely be presented.

    • Mark Field

      The ultimate goal of the hard core anti-abortion activists is to ban abortion nationwide. One argument they make is that abortion violates the 5th and 14th Amendments because it deprives a “person” of life without due process of law.

      Whether this standard gets adopted depends on who gets appointed. I suspect that even if this is the eventual goal, there will be a pseudo-federalist ruling as a half-way station.

      CP suggests a possible legislative option as an alternative. I could see them taking that route, but it’s easier to let the Court take the political heat.

      • rea

        One argument they make is that abortion violates the 5th and 14th Amendments because it deprives a “person” of life without due process of law.

        Doesn’t work–no state action–the government doesn’t abort.

        You’d have to argue that not making abortion prosecutable as first degree murder is a denial of equal protection, or some such nonsense.

        • Mark Field

          The argument is that state law permits the abortion (or facilitates it, or some such claim). Thus, for example, a statute protecting doctors against a murder charge is “state action”.

          I’m not saying these are good arguments under existing law. I’m just pointing out where motivated reasoning takes them.

          • Just_Dropping_By

            I don’t doubt that is an argument some people would make, but I think even most Federalist Society types would balk at that because it effectively makes the 5th and 14th Amendment a source of positive rights.

            • Dilan Esper

              Ramesh Ponnuru and several other right wingers who comment on legal issues have supported the 14th Amendment argument.

              Having said that, this doesn’t mean that there are a lot of right wing JUDGES that support it. That sort of thing actually takes a generation and the explicit inculcation of the position through groups like the Federalist Society.

        • Srsly Dad Y

          Don’t forget that the Equal Protection Clause entitled GWB to the presidency of the United States!

          A bit more seriously, imagine if a state excluded from its murder laws the killing of children under 1 year old. That could easily fail rational basis EP review (which is always and everywhere a sham, but that’s another story) without a finding that toddlers are a protected class. All the RWers need to do within the abstract rhetoric of con law is roll that hypothetical backward … children under a month old, under a day … fetuses … et voila, irrational state action against fetuses. The trick OF COURSE is in what you call “murder” and whether you deem fetuses “people” “equal” to born children, but rational basis review is always like that, it always buries the substantive issues beneath rhetoric about treating like people alike.

  • Joe_JP

    That cite to Dred Scott v. Sanford by Kansas recently arose in a state case that challenged a claim that the state constitution protected abortion rights. State constitutional provisions there already have had some bite, including in a few cases for funding, and will have even more now.

    “For today, at least, the law of abortion stands undisturbed. For today, the women of this Nation still retain the liberty to control their destinies. But the signs are evident and very ominous, and a chill wind blows.”

    – Justice Blackmun

  • Murc

    Will Roe survive? If Trump can be held to one Supreme Court appointment, yes.

    Trump should be held to zero.

    We filibuster everyone he sends up to the right of Merrick Garland. That seat is ours. Not his or the Republicans.

    Maybe they nuke the filibuster over that. Fine. We can’t actually stop that. But make them do it.

    Any Democratic Senator who votes to confirm anyone Trump sends up for the currently vacant seat should be regarded as a traitor and treated suchly. Even leaving aside that defending reproductive rights is one of the issues that is core to our identity, we are owed that seat. If another one comes open? Yeah, okay, sure, maybe we can be reasonable. Maybe. But not on this one.

    If not, though, it’s over, and the only question is whether Roberts summarily executes the reproductive rights of American women or tortures to death:

    It is going to be the latter.

    Roberts is a judicial tree-girdler, a legal second-story man. He wants the results, he just doesn’t want his fingerprints all over them. Scalia didn’t, and Alito doesn’t, care about how history views them outside of what 2050 Federalist Society douchebags are going to be saying in their hagiographies. Roberts kind of does, enough to want to tread softly when possible. He’ll smash and grab if he has to, but only as a last resort.

    • jim, some guy in iowa

      “judicial tree-girdler”

      I like that- as a phrase, of course

      • Murc

        Tree-girdling has a long history as an act of vandalism. It is largely forgotten these days, because forestry and felling rights are not the big deal they used to be, but its an apt metaphor for any situation in which somebody wants to kill something but wants it to happen slowly and with difficult to discover proof. I like using it, because I am a giant language hipster.

        Sidebar: the legalities surrounding the felling of trees, and the surreptitious methods developed by people to do so when they didn’t possess the legal right to just take an axe to them, are actually fascinating. For example, in the 16th-19th centuries, a tree tall and straight enough to act as the mast of a warship was an immensely valuable economic object, protected from unauthorized felling by the state with severe criminal sanction for doing so. Folks developed creative ways to be able to claim with a straight face “no, really, it fell over in a windstorm.”

        • jim, some guy in iowa

          yeah, in this case the phrase does exactly the job intended

          interesting about the legal aspect. Stuff I should know, considering how much of the farm is wooded

    • Scott Lemieux

      Agree that Dems should force them to nuke the filibuster at least.

      • AMK

        Not on the first nominee (that is, the Scalia replacement). The filibuster isn’t meaningless….without it, what’s stopping, say, the national voter ID law?

        • rewenzo

          A. They may only nuke the filibuster for Supreme Court nominees. Up until now, efforts to get rid of the filibuster have been proceeding incrementally.

          B. Practically speaking the filibuster is only going to last so long as the Republicans can get their way without nuking it. If they want a new national voter ID law, and the filibuster is in the way, bye bye filibuster.

          C. As an aside, the filibuster is bad and should not exist.

          • Snarki, child of Loki

            D. The filibuster allows R’s to wimp out on passing their more horrible policies, while deflecting the blame to D’s. Make them OWN IT.

          • AMK

            A. Good point

            B. Nuking it still takes political capital that will be easier for them to find on a SCOTUS Justice; harder on divisive legislation like a national voter ID bill.

            C. I disagree. We already have the House to serve as a pure majority-rules parliamentary style body. The Senate is supposed to give the minority some real leverage.

            D. With a GOP President, the GOP “owns” everything as far as the general public is concerned. Vote tallies in the Senate and parliamentary procedure don’t matter on that front.

            • rewenzo

              C. I disagree. We already have the House to serve as a pure majority-rules parliamentary style body. The Senate is supposed to give the minority some real leverage.

              I’m generally of the mind that all parliamentary bodies should be majority-rules bodies. A legislature that exists to empower minorities seems like more trouble than it’s worth.

              What’s making me hesitate here is that Congressional elections already over-represent the minority by making it much easier for Republicans to win majorities in the Houses. So if you scrap the filibuster, a minority of voters will elect a majority of representatives and senators, and govern without restriction.

              My response to this is:

              (1) Republican ideas are bad and the Republican administrators are incompetent. If we can’t have power, let us at least allow the Republicans more rope to hang themselves. Hopefully, greater accountability follows, and we return to the majority.

              (2) When we return to the majority, reform Congressional elections so that both parties have a fair shot.

              • delazeur

                I’m generally of the mind that all parliamentary bodies should be majority-rules bodies. A legislature that exists to empower minorities seems like more trouble than it’s worth.

                That’s a bit of a weird argument to make about the Senate. It was created specifically to over-represent minorities.

                • rewenzo

                  Yeah, the Senate is bad because it over-represents electoral minorities. I don’t like the idea of making it worse by also requiring a supermajority before it can do anything.

        • Murc

          This seems like a roundabout way of saying you don’t consider this issue important enough to have a showdown over.

          Which is fine (you’re wrong, but that argument isn’t risible) but actually make that argument.

          • Scott Lemieux

            No — the Democrats should of course to anything they can to stop a Trump Supreme Court nominee. I just don’t think there’s any way it will ultimately succeed.

            • Murc

              I was addressing AMK, Scott, not you. I am in accord with your views.

          • AMK

            Sure…in my personal hierarchy of bad things, abortion reverting to the states (half of which already make it next to impossible) is not nearly as bad as national voter ID legislation that disenfranchises tens of millions of people and makes it impossible for us to ever win national elections. But obviously that ranking is debatable.

      • Rob in CT

        +1.

  • yet_another_lawyer

    Presumably, the only way Breyer or Ginsburg is leaving the Court with Trump in the White House is in a wooden box.

    Good news Scott, there’s no reason to think the composition of the Supreme Court will change any time soon. As H.A. Goodman was kind enough to share with us in November 2015:

    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.

    So Ginsburg will probably still be around as a fun 91 year old when President Ivanka takes over in 2024.

    • Shalimar

      Maybe I’m being presumptuous, but Justice Scalia has possibly passed the point of no longer being able to do the job well.

      • yet_another_lawyer

        Views differ! We can debate it at the next Law Review Symposium.

      • rea

        He’s a much better justice and legal scholar now.

    • D.N. Nation

      Last I read Carl’s Jr/HArdee’s GOODMAN, he was saying that Julian Assange was being framed for rape. Not sure where Har-Dee-Har-Har is heading intellectually, but I’m pretty sure chemtrails are discussed there.

  • Snarki, child of Loki

    It seems that suffocating Scalia in his sleep wasn’t quite an “undue burden” on TX women’s access to abortion.

    I, for one, look forward to the continuation of that standard.

  • Philip

    Does anyone else remember a few months ago when all the obnoxious internet leftists decided Ginsburg was a NEOLIBERAL SELLOUT because she said something kinda dumb but perfectly in line with being, you know, in her 80s, about people refusing to stand for the national anthem?

    • Thom

      “All the obnoxious Internet leftists,” the B-side of “All the Young Dudes.”

    • D.N. Nation

      “YOUR HEROES ARE IMPERFECT,” they exclaimed, all the while excusing every single Sanders misstep down to the atomic level.

      • Dilan Esper

        I don’t see a single relevant Sanders misstep. He ran a tough but fair campaign against Hillary, attacking her (as she should have been attacked) over the speeches but not over the e-mails, trying to win the primary which was his absolute right to do (and which Obama did 8 years ago).

        Then, after having lost, and after a decent interval (which he was completely entitled to due to his strong performance), he endorsed Hillary and campaigned for her, and asked his supporters to vote for her.

        Bernie Sanders is a hero. Hillary supporters who bash on him are scapegoating.

        • D.N. Nation

          “YOUR HEROES ARE IMPERFECT,” they exclaimed, all the while excusing every single Sanders misstep down to the atomic level.

        • Rob in CT

          I’ll quibble. I really think the “it’s rigged!” argument was harmful. It’s something that Trump clearly thought was helpful to him, as he kept bringing it up. It fit in so perfectly with “Crooked Hillary.”

          I think overall Bernie is a good egg and I don’t regret voting for him. But “hero” ? Seriously?

          • Domino

            I’ll quibble. I really think the “it’s rigged!” argument was harmful.

            Look, I supported and voted for Bernie in the primary. I think he lost fair and square (Hillary getting a heads up to expect a question on lead in the water when they had a debate scheduled in Flint didn’t alter the primary in any way), but Bernie had a legit point re: the DNC and the primary.

            I’m not bitter he lost (that townhall he did with Chris Hayes was fascinating, in that it showed (to me at least) the limits of his appeal), but if you didn’t want him to use that argument, then the DNC should’ve not been doing what they could to favor Hillary.

            • Rob in CT

              He lost fair and square but he had a legit point that the primary was rigged against him? That makes no sense to me.

              I think he had good points to make and he made them. Much of his campaign was focused on those points. The process stuff towards the end – which became a thing when he was clearly losing – was, IMO, bullshit and harmful (and I might be inclined to blame that on Devine, though obviously he worked for Bernie not the other way ’round).

              Obviously we’re not going to agree on this.

              • Domino

                He lost fair and square but he had a legit point that the primary was rigged against him? That makes no sense to me.

                The DNC clearly put it’s thumb on the scale for Hillary. I’m saying even if they didn’t, Hillary had enough support that Bernie wouldn’t of been able to beat her in the primary.

                Are there actually Hillary supporters who don’t think the DNC didn’t favor Hillary in the primary? Not trying to imply you’re saying that, but I don’t see how someone can look at what transpired and think Sanders was treated the same way Clinton was.

                • BartletForGallifrey

                  Are there actually Hillary supporters who don’t think the DNC didn’t favor Hillary in the primary?

                  Yes, because:
                  1) The people who work at the Democratic National Committee preferring the Democratic candidate is not actually that surprising or outrageous.
                  2) The people who work at the Democratic National Committee preferring the Democrat ≠ the Democratic National Committee “putting its thumb on the scale,” whatever it is you think that means.

          • CP

            I have no idea whether the “it’s rigged” thing was a misstep or not. Speaking as someone who had no real opinion either way until late in the campaign, it pissed me off because it was so transparently “I’m going to start whining about the rules now that I’m losing.”

            If you want to make an argument that the Democratic primary shouldn’t have superdelegates or whatever and that it should be “one man one vote,” that’s fair enough, I suppose. I’m even open to being convinced that it should be open primaries, though I’m skeptical. If you’re whining about superdelegates and closed primaries while completely ignoring the undemocratic nature of the caucus system (which, of course, he was doing better in), then you’re pretty clearly full of shit.

            • Dilan Esper

              Everyone who ever made an it’s rigged argument always focuses only on the stuff that hurts them.

              Is a coach not permitted to argue with the referee over a blown call because the referee blew another call earlier in the game in the other direction?

              Are Al Gore supporters not allowed to argue that disputed ballots be counted in Florida because they didn’t speak up about military ballots that favored Bush?

            • Superdelegates are a good thing. What would have happened if Edwards had won the primary and then the news about his affair had come out? That’s why we have superdelegates.

        • CrunchyFrog

          Sanders didn’t get that his economic policy-based messages weren’t sufficient for voters of color. If he’s got that before he started his campaign he might have even won.

        • MPAVictoria

          He is also the single most popular politician in the country right now.

          • efgoldman

            He is also the single most popular politician in the country right now.

            Backup QB is also popular when the team loses.
            And so is the manager the team didn’t hire.

          • BartletForGallifrey

            People who aren’t running for things are always more popular. (See also: Clinton, Hillary, 2009-2015ish.)

    • liberal

      RBG isn’t a neoliberal sellout. She is, however, a narcissistic monster. Nothing prevented her from stepping down shortly after Obama took office except her absurd ego.

      • dl

        unnecessarily edgy, but underlying point is correct

      • Joe_JP

        Yes, this is the more popular liberal complaint.

        Nothing prevented her from stepping down shortly after Obama took office except her absurd ego.

        Stevens and Souter retired first. This alone is “something” since justices like to tier retirements as a sound matter of judicial administration. So, “shortly” would mean “three years” in or something.

        Another thing was that she was quite able to do the job. Again, “absurd ego” alone didn’t make this so. Or, not to retire for political reasons, which life tenure itself is set up to avoid, including as a matter of judges institutionally more inclined to not do it.

        Overall practice has not been to retire years before you are unable to do the job for political reasons either. Marshall didn’t retire in the Carter years, e.g., even if he already wasn’t in the greatest health.

        Finally, RBG reasonably thought Clinton would win. Not just “absurd ego” made her think this.

        • dl

          it’s a disaster she did not retire when the Dems had the Senate, and her statement that (paraphrasing) “Obama could not nominate anyone as good as I am” is delusional, sorry. You can make the case that “strategic retirement” is unseemly, but I’d rather deal with that unseemliness (did Souter get any blowback even?) than the maelstrom that will probably now come.

      • Philip

        Edit: damn, LGM comments swallow emoji. Imagine a twitter sarcastic chin stroke emoji here.

      • Dilan Esper

        I suspect Ruth Ginsburg has done more for the cause of liberalism and civil rights than anyone who comments on this blog, myself included.

        Calling her a “narcissistic monster” is really uncalled for. (In addition to just utterly failing to understand how judges see their roles.)

        • BartletForGallifrey

          I suspect Ruth Ginsburg has done more for the cause of liberalism and civil rights than anyone who comments on this blog, myself included.

          And every bit of it can and will be rolled right back.

          No, much as I love Ruth–and I’m a Jewish girl whose number one issue is reproductive rights, so that would be “A Whole Fucking Lot”–I’m on Team Shouldhaveretired.

  • Jameson Quinn

    Yet again: call the D senators from class I and II and encourage them to use the #jan3HighNoon gambit to fill the vacancy. It’s a long shot but totally worth it.

    And the petition.

  • rewenzo

    Kennedy was on the Court only because the Senate rejected Reagan’s first choice, the fiercely anti-Roe Robert Bork.

    For all the shit Kennedy gets, the world we live in is much better because he’s much better than Bork. Borking Bork was totally the right call.

    Which is why that Colby Cosh article which basically blamed the Scalia-replacement fiasco on Joe Biden and the Senate Democrats for having the temerity to reject a Supreme Court nominee was so infuriating.

    • Scott Lemieux

      Yeah, sure, Mitch McConnell totally would have graciously allowed Barack Obama to replace Scalia had only Senate Dems not rejected Bork. Totally plausible.

      • CrunchyFrog

        How DARE they:
        1) Hold hearings on Bork
        2) Ask him mean questions about his writings – like “What did you mean when you wrote…?”
        3) Hold a vote in committee
        4) Allow him a vote in the full Senate despite the committee rejecting him
        5) Allow him a non-filibustered full Senate vote.

        And even worse:
        6) Allow Clarence Thomas to be confirmed 52-47 without even a hint of a filibuster

        The MSM now defines the verb “to Bork” as meaning: unfairly reject a nominee via distortion of his viewpoints by quoting them verbatim.

      • rea

        The senate rejected Bork on the merits after hearings. The senate refused to even consider Garland, with its leadership rejecting the notion that Obama had the right to nominate a judge. They had no particular objection to his positions on the merits. Bork was rejected because his views on jurisprudence were extreme and nonmainstream. That could hardly be said of Garland.

    • Murc

      Colby Cosh! I haven’t thought of him in years. How is that Tory bastard doing?

      • rewenzo

        Like all Tory bastards, I assume he is doing well.

        • runsinbackground

          I wish I could be a Tory bastard. Being poor and having a sense of shame is such a drag!

  • CrunchyFrog

    The quandary for the GOP is that once abortion is outlawed at the national level they lose the main motivation that’s been getting a large part of their base to vote in national elections. Take away abortion as an issue and the Dems win the Presidency and the Senate both. Although we talk about tribalism, etc. – and I talk about it as much as anyone – for a decent-sized minority of wingnuts abortion is the issue that’s kept them in the tribe, or at least kept them motivated to vote for the tribe.

    There doesn’t seem to be any single person or group controlling the levers of the GOP these days, in stark contrast to the Rove years, but if there were the logical thing for them to do would be to finally close the abortion issue nationally (by moving it to the states) only after they’ve rammed through national voting laws that their SCOTUS would uphold to assure a GOP vote majority for the foreseeable future.

    • Snarki, child of Loki

      No, once the GOP outlaws abortion, they’ll move on to outlawing birth control. Then on keeping those hysterical wimminfolk from voting and owning property.

      • D.N. Nation

        ha! great minds.

      • Thom

        The lovely letters to the editor of my local paper (suburban Texas, near Austin) keeps invoking the “wisdom of the Founding Fathers” in their defense of the Electoral College. The logical conclusions of keeping to said wisdom are more than a bit scary. As Mike Cooley says in “Surrender Under Protest,” “tradition is the mission.”

        • BartletForGallifrey

          keeps invoking the “wisdom of the Founding Fathers” in their defense of the Electoral College.

          I hear that a lot from *liberals*.

          I generally respond by pointing out that those guys were so wise they thought I couldn’t vote, and, oh yeah, owned people.

    • D.N. Nation

      I’ve always thought that dropping the abortion-as-jangling-keys issue by “winning” it would be long-term disaster for the GOP for reasons you’ve expressed, but recent years have left me thinking that once they “win” on abortion, contraception will be next. And after that, a general war on privacy. We chuckle at “you must bang in the missionary position” measures passed in ye olden times that never got properly deleted from state law books, but I think it’s safest to assume with wingnuts and fundies that nothing’s off the table.

      • Snarki, child of Loki

        Jinx!

      • rea

        Backwards. The most obvious way to overturn Roe is to conclude that there is no constitutional right to privacy.

        • mds

          Yeah, but they probably don’t want to go after Griswold until after they’ve locked down the Roe aftermath. And they don’t need to worry about bringing up penumbras or anything; just make up some complete horseshit and put it in an opinion with lots of footnotes to letters to the editor in East Fuckwit Daily News, plus some of their own previous irrelevant dicta. These are people who managed to turn the Fifteenth Amendment into a dead letter based on fuck-all, after all.

      • Just_Dropping_By

        While I’m certain there are some GOP members who would see moving on to banning contraception to the next step, there’s no way that effort draws anywhere near the support that banning abortion does given the lack of gruesome visuals and emotional appeal.

        • Philip

          They’ll just keep on using the same images for Plan B because they’re dishonest hacks and it was never about truth for most of them.

          • malraux

            And as plan b is just a variant packaging of contraceptive pills, you ban the underlying drug, which just has the effect of removing birth control.

      • CrunchyFrog

        I’m with Just_Dropping_By on this. It helps if you know a lot of people who are in that demographic. Contraception has only a tiny fraction of the power of abortion as an issue.

        First, let’s set aside RU-486 as a special case unique from contraception as a general issue.

        Otherwise, opposition to contraception as a religious principle is limited to Catholics only. And the fundies use this as an example of why the Catholics are crazy. Even within the Catholic church rank-and-file there is a big split on this. Catholic women in large numbers have for decades been using contraception against official doctrine and most don’t even bother confessing it anymore. It’s just understood. Just go to a Catholic church, look at the member registry, and count the number of kids per family. Duh. Yeah, the Catholic Herald rants about it, but most of the US Catholic male (of course) leadership has long been dominated by the frothing-at-the-mouth right wingnut pro-war, pro-torture faction. Most individual priests who still have actual flocks don’t push the anti-contraception views at all.

        There are two ancillary issues: opposition to letting girls under 18 have access to contraception amongst the fundies (see also: opposition to sex education) and opposition to *paying* for contraception. But neither of these is a unifying issue like abortion, which is literally seen as mass murder. The sexually repressed wingnuts like to pretend that no one has sex while in fact their kids are having more unprotected sex than anyone else, and they of course see the whole issue as part of the culture wars. But by itself the issue is not a big motivator for voting. And they aren’t against contraception per se – again, go to the churches and count the family members – except for the tiny quiverful movement and a few sects here and there you don’t see families with a dozen children. Even Mormon families that average more kids than the rest of the nation still typically stop at 3 or 4.

        If you’re not close to these people you may think that the sex abstinence types are the same as the anti-abortion types – they’re not. Sex abstinence types are a subset, maybe 60%. For the other 40%, drop abortion as an issue and they lose interest in voting on this topic. For the other 60% they still care, but nowhere near as much.

        The paying-for-contraception thing is almost exclusively a fake issue, hyped with the other anti-Obama fake issues. Hobby Lobby happily paid for contraception for their employee’s health plans before Obamacare – that is, before they were recruited for that lawsuit. There are some corner cases of Catholic charities that actually did exclude contraception from health plans beforehand, but I’ve dealt with the Catholic exception above.

        • D.N. Nation

          Good points all around, but these types are quite good at going from relative apathy to an issue to ALWAYS HAVING BEEN AGAINST IT WITH A FIREY PASSION. Remember, many bible-thumpers once only really cared about keeping themselves segregated; after that (de jure) went away, then they really cared about abortion.

          Don’t trust nobody is what I’m saying.

          • mds

            … Or, what D.N. Nation said, much more pithily.

          • CrunchyFrog

            Not arguing with you on the don’t trust thing. Longer response given below in this thread.

        • mds

          Contraception has only a tiny fraction of the power of abortion as an issue.

          It has growing disproportionate power with the loudest, most mouth-frothing members of the GOP base, however, most of whom are fundamentalist / evangelical Protestants. Yeah, the Operation Rescue types used to be solely about abortion, but many of them have already shifted towards contraception, and eventually that will be a non-negotiable eternal truth for Real True (Protestant) Christians, too. Quiverfull is already a thing.

          I mean, your points about how much more divided the contraception is are good ones, but … can you point out to me which GOP politicians would lose their jobs in the event that Griswold were swept away? Because based upon the whole “I owe the ACA for my life, but I’m voting for Bevin and Trump” phenomenon, Mitch McConnell wouldn’t be one of them. Probably hardly anyone else from a red state, either, if the only alternative is a gun-grabbing pro-gay darkie-lover.

          Now, if they take a contraception ban nationwide, then there probably would be trouble. Which is why they’d likely stick with federalism on that one.

          • CrunchyFrog

            So on the first point, yes I’ve seen the “contraception is the DEVIL!” stuff and the attempted shift towards big families a la quiverful, which I mentioned above. It does exist. My point, though, is that it doesn’t have the same broad appeal as being anti-abortion. There is no way they convert the whole anti-abortion movement to anti-contraception, or even the majority of it. A large number of anti-abortion zealots are sexually active women on contraception.

            So yes, the Operation Rescue leadership will *try* to keep the Republican voting machine operating at full efficiency after the SCOTUS kills off Roe, but a lot of their followers won’t follow.

            Furthermore, even amongst those who will follow along there will in aggregate be less passion about it. It’s one thing to have feverish dreams about saving the lives millions of cute white 9 month old babies, which is what most anti-abortion people actually picture in their heads. It’s another to fight the evils of contraception which is largely abstract, even if the propaganda still tries to use the imagery of 9 month old white babies.

            As to your second point I am certainly NOT saying that take away Roe and an army of these people suddenly switches votes to the Democrats. Instead what I think you’ll see is a big drop in voting rates (fundies vote at one of the highest percentages of any group) and a big drop in passion – meaning reduction in volunteers, etc. If you had to divide the fundies into two voting groups you’d have the rabid Republicans and the skeptical Republicans, and the second group is bigger in most places*. Basically, they vote to save babies but aren’t happy with a lot of other GOP things. I wouldn’t see substantial Democratic votes out of this group for a while as it would take time to unlearn a lot of the propaganda. BUT, the turnout reduction would be real and measurable.

            (* = the exception are majority Mormon areas. But Mormons and fundies are very different groups of people although they overlap in a lot of areas. Majority Mormon areas have a high degree of community cohesiveness and that means there is a much higher degree of trust in their local elected Republicans.)

            • mds

              My point, though, is that it doesn’t have the same broad appeal as being anti-abortion.

              Being anti-abortion didn’t have the same broad appeal forty years ago, either. Fundamentalist Protestants either didn’t give a shit at all, or expressed varying degrees of support for Roe at the time. Even many of their theologians acknowledged that a zygote wasn’t a full-fledged human being, only to be left behind (hee) by the rapidly shifting immutable Word of God on the subject. Fanatical Protestant dedication to the anti-abortion cause is, as Fred Clark is fond of noting, younger than the McDonald’s Happy Meal. So if their masters tell them that they’ve always been at war with contraception, they’ll pick up on it. Not immediately, but inevitably.

              • CrunchyFrog

                Have to disagree with the conclusion. Everything else is correct – yes, in the 1960s only Catholics were anti-abortion. However you’re assuming every issue has equal pull – that you can substitute anti-contraception for anti-abortion and the whole voting segment will happily go along for the ride. No doubt *some* of them will. I know people like that – their male leader spouts nonsense and they repeat it endlessly without ever reflecting on whether it matches their own experience. Pure authoritarian followers.

                But where I think you’re wrong is that not all anti-abortion voters are pure followers who will mindlessly go along with whatever the fundie leaders say. Not all of them are fundies – you’ll find anti-abortion voters in quite a few religious sects and even quite a few amongst the non-religious.

        • ema

          First, let’s set aside RU-486 as a special case unique from contraception as a general issue.

          RU-486 is an abortifacient; it has nothing to do with contraception. The ECP is a progestin or an estrogen/progestin (same components as the regular OCP, different dosage regimen).

          • CrunchyFrog

            I brought this up because it’s common for people to equate opposition to RU-486 as opposition to contraception. I wanted to explicitly separate the two.

    • JKTH

      It’s not as if any victory is permanent though. They can enact it and say “Elect us or the baby-killers will be back in power.”

      • mds

        Yeah, exactly. Part of the reason we’re in this mess is too many Democratic voters say “Whew! My work here is done” once a political victory is achieved. Or they turn their noses up in the air because the resultant achievement was “tainted” by neoliberalism or whatever stupid bullshit. Modern Republican voters treat every single election at every level of government as total war.

        Hell, the fetus-fondling crowd aren’t currently getting enough credit for their role in Trump’s victory. Never mind (explicit) racism or economic anxiety, Franklin Graham and his peers made it clear that the Supreme Court was on the line. And Trump got yuuuuge evangelical turnout, despite being an irreligious sexually-promiscuous pig turd. Meanwhile, do most Democratic voters even know there’s a vacancy on the Supreme Court?

        • BartletForGallifrey

          too many Democratic voters say “Whew! My work here is done” once a political victory is achieved.

          That, and also I think left-leaning voters, being generally inclined to think the best of people, have a bad habit of looking back on administrations as “not that bad.” Because we want to believe that people can’t actually be as fucking evil as Reagan/Bush/Bush were.

          We also suffer from needing the votes of young people who genuinely don’t remember how bad things can be.

          I know I keep saying that, but I saw it so much this election. I’m young enough to hang out with people who were freshmen in high school when Bush was in office, but old enough (and, I’ve realized, abnormally politically aware at a young age) to remember how bad it was. They just fundamentally don’t get it. I think if they did, they would have turned out for HRC in much bigger numbers.

      • CrunchyFrog

        But don’t underestimate the power of the imagery and of the immediacy. A group of white 9 month old babies – cut and pasted to look like millions of them – all slaughtered every year and being slaughtered as we speak. Extremely compelling. Gets the voters to the polls.

        Compare that to the same imagery saying that “if you don’t vote we’ll go back to this!!!”. Just doesn’t have the same power. It’s not immediate. In fact it starts to look a little ridiculous to the same voters after a while. They don’t *really* think we’ll go back to that any more than a Kynect recipient who voted Trump thinks he’ll lose his health insurance, or a fixed income senior thinks the GOP will really cut medicare and medicaid and social security.

        Maybe 98% of them turnout for the next election after their win. Then it starts dwindling unless some other motivating issue is created. And the GOP will of course try to find some motivating issue, and they may succeed. But the party messaging folks have long understood that abortion was *the* key wedge issue unlike no other, which I’m sure is why they’ve managed to keep the abortion ban dangling but unmet for as long as it has.

  • Rob in CT

    Saw that Kasich signed a 20-week ban in OH. He’s “reasonable & moderate” because he rejected the even more utterly absurd heatbeat bill.

    • Steve LaBonne

      I believe this little dance was planned from the start as a bait and switch i.e. the furor over the heartbeat bill distracted attention from the 20 week bill. Quite Trumpian.

      • Rob in CT

        Yeah, makes sense.

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