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The Problem With the “Minimalist” Critique of Roe

[ 20 ] September 25, 2014 |

Ruth Bader Ginsburg recently reiterated her support for the Roe-was-a-mistake thesis:

Would today’s abortion battles be as bitter if the Supreme Court had decided Roe v. Wade differently? Last night, in a speech at the anniversary dinner for the International Women’s Health Coalition, Supreme Court Justice Ruth Bader Ginsburg said no.

“I think if the court had gone step-by-step as we did in the gender equality cases, the court and the public would have reacted in a more positive way than it did,” Ginsburg said. “It established a target. Roe v. Wade, that case name is probably the best-known case of the second half of the 20th century. And a movement focused on ending access to abortion for women grew up, flourished, around that one target. Nine unelected judges decided that one issue for the nation.”

Ginsburg, who was first in her class at Columbia Law and led the ACLU’s Women’s Rights Project before becoming a judge, was careful to say she thought the heart of the ruling in Roe was correct — that the Texas law, which made all abortions illegal except those to save the pregnant woman’s life, was unconstitutional. But, she said, the court’s decision to issue a sweeping judgment establishing the right to abortion in all 50 states was a strategically poor one and led to modern-day political battles over reproductive rights.

“There might have been a backlash in any case,” Ginsburg said. “But I think [because of Roe] it took on steam.”

Longtime readers will know that I’ve critizied this theory in both shorter form and interminable form. But I’d like to focus in particular on the particular problem with the argument that the Court should have just said the Texas law was unconstitutional and said nothing more in order to minimize backlash. (Cass Sunstein made the same argument in Balkin’s Roe book.) The obvious problem with this is that a “minimalist” Roe is impossible. The Texas statute might have been substantively extreme but more than 30 states had an essentially identical statute which would also have been struck down by a “minimalist” opinion. It’s true that a “minimalist” opinion would have given more room for these states to pass new abortion regulations. But 1)political battles over abortion in many states followed by litigation…does not sound like a formula for minimizing political conflict to me, and 2)unless the Court was to consistently intervene not only would this approach lead to at least as much anti-abortion right mobilization, but it would also have protected reproductive freedom less effectively. Ginsburg’s proposed alternative is all downside and no upside.

This related observation is important too:

The decision in Roe, too, “was as much about a doctor’s right to practice medicine” as it was about a woman’s right to abortion, she pointed out. “The image was the doctor giving advice to the little woman, not the woman standing alone.”

This is true as far as it goes — Casey does a much better job of linking abortion rights to gender equality than Roe does. To me, the lesson is that the effect of legal rhetoric (as opposed to the bottom-line judgments of courts) is massively overrated. As Filipovic points out, whatever their grounding Roe protected reproductive rights very effectively and Casey didn’t. In this context, what the Court does is just much more important than how it justifies its actions.

After Holder

[ 80 ] September 25, 2014 |

For me, the key lesson as always is that the Cossacks work for the Czar.

Of the leading candidates, I’m rooting for Patrick — his civil rights record really is very strong.

How Far Up The NFL’s Rectum Can ESPN Get?

[ 76 ] September 24, 2014 |

Apparently, very far indeed.

I’ll also guarantee that if Simmons had used similar language to criticize a player who claimed not to use steroids or something, nobody at the Worldwide Leader would have considered suspending him for a second. (Which, of course, they shouldn’t, because really.)

“Mixed feelings, Buddy. Like seeing Derek Jeter going off a cliff…in my new Maserati.”

[ 68 ] September 24, 2014 |

It’s Yankee elimination day! And, yet, it is for me a highly sour and unpleasant one, given that the Mariners have somehow managed to get outscored 42-10 — by the Astros and Blue Jays! — in four games with the season on the line. I must note in particular one historic accomplishment. For all the talk of St. Jeter’s wretched final season, Kendrys Morales has somehow managed to accumulate the most negative value in the major leagues in a mere 381 plate appearances. It’s not easy to be nearly two wins worse than a shortstop with .610 OPS in a hitter’s park and atrocious defense in 2/3rds the at bats, but Morales has pulled it off. A stunning achievement. (Was he DHing and hitting cleanup last night? I think you know the answer to that!) I wonder whether the Mariners’ regular DH next year will be Yuniesky Betancourt or Jeff Francoeur.

Anyway, congrats again to fans of the A’s and Royals; if two other teams had to win the wildcards, that’s the two I’d pick at least.

With the loss, Most Valuable Commenter Howard has also officially lost our charity Planned Parenthood bet, but everyone can still donate anyway…

“He’s sewage poured into a suit”

[ 31 ] September 24, 2014 |

Somehow, I missed Marchman’s epic assessment of Lanny Davis at the time. Fortunately, it’s still fresh!

If you detect a pattern in the two examples here, you’re not wrong. In his shitty book Crisis Tales: Five Rules for Coping with Crises in Business, Politics, and Life, Davis brags about how he was able to help the NFLPA deal with claims that the famously impotent house union hadn’t done anything to help retired players suffering from mental illness. What did he do? He set up a website that depicted them as whiny leeches. At another point, during the fight over the Employee Free Choice Act, legislation that would have strengthened unions by making it easier for them to organize, he represented the CEOs of union-busting Whole Foods and Starbucks, who had conceived a compromise that would have gutted all the valuable machinery of the proposal while still allowing something bearing its name to pass. When George W. Bush had to make appointments to a Privacy and Civil Liberties Oversight Board, Lanny Davis came right to mind.

Davis is everywhere. Wherever there’s a fight to turn government into a weapon against citizens, he’ll be there. Whenever an institution needs to assail the vulnerable, he’ll be there. He’ll be there in the way dogs eat shit. He’ll especially be there if it involves people in foreign countries.

It’s all that good.

“The Process Becomes Part of the Punishment”

[ 9 ] September 24, 2014 |

When the framers of the Sixth Amendment declared that “the accused shall enjoy the right to a speedy and public trial,” they knew what they were doing. But if nobody is willing to enforce it…

Math And Its Well-Known Liberal Bias

[ 176 ] September 23, 2014 |

The very, very, very Serious Paul Ryan is still going on about the deficit. He’s also proposing massive upper-class tax cuts, and arguing that his budget will somehow the avoid savage cuts to programs to the poor the two policies would make inevitable if we’re supposed to take the initial premise seriously. How can he reconcile this? DYNAMIC SCORING!

Ryan has found himself caught between his career-long obsession with cutting taxes for the rich and the problem of what happens to the revenue that would be lost. During the 2012 campaign, he swept aside the problem by couching his plan as “tax reform,” promising not to cut taxes for the rich. Ryan’s new plan is just to go ahead and cut taxes.

He tells Klein, “Those of us who live in the tax system want to lower everybody’s tax rates.” If you lower everybody’s tax rates, then everybody will be paying less in taxes, and then the government will have less revenue, right? That’s where Ryan’s solution comes in: He plans to press the government budget agencies to adopt the optimistic assumption he prefers, which is that cutting tax rates for the rich creates faster economic growth. Ryan spent much of the Bush years assailing what he called “static scoring,” which is the standard budget practice of measuring the fiscal impact of tax cuts as if they do not contain magic pixie dust.

As Danny Vinick has noticed, Ryan has announced his intention to change the rules. Ryan reaffirmed that plan in his interview with Klein: “I’d like to improve our scorekeeping so it better reflects reality,” he said. “Reality” is Ryan’s description for a world in which Bill Clinton’s punishing tax hikes on the rich hindered the economy, which was restored to health when George W. Bush cut taxes.

If only there was a state that enacted massive upper-class tax cuts, only that because it’s a state it couldn’t just use the George W. Bush approach of just running massive deficits when tax revenues came in under expectations. Then we could see if tax cuts produced so much dynamic economic growth that they actually increased revenue. Sadly, we’ll never know.

In related news, the Republican health care is “nothing but the 2009 status quo ante.”

good Sunflower State roundup from DeLong.

This Insight Brought To You By Ambien and Tito’s Vodka

[ 22 ] September 23, 2014 |

Shorter Rick Perry: Our state’s new regulations requiring abortion clinics to meet the standards of surgical centers in order to shut them down would have prevented Joan Rivers’s death in an licensed ambulatory surgery center.

Imagine If Those Greedy Players Were Getting Paid!

[ 26 ] September 23, 2014 |

In addition to the comedy, I’d just like to note that (presumably non-premium) Michigan football tickets have a face value of 75 smackers. But don’t kid yourself, when professional owners take money from the players, they’ll totally slash ticket prices, scout’s honor!

Alinsky! Alinsky! Alinsky!

[ 78 ] September 22, 2014 |

[Relevant background.]

Stanley Kurtz is excited about the Hillary Clinton/SAUL ALINSKY connection, and did I mention that it involved Saul Alinsky?

Alinsky’s original quarrel with the young radicals of the 1960s, which Hillary alludes to in her letter, was over the New Left’s tendency to make noise rather than get things done. Working effectively, Alinsky believed, requires ideological stealth, gradualism, and pragmatic cover. In his day, Alinsky took hits from more openly leftist ideologues for his incrementalist caution, as Obama and Hillary do now. Yet he was no more a centrist than his two most famous acolytes are today.


During her time in Arkansas, Hillary may seem to have moved to the center. The Rose law firm, after all, was nothing like Treuhaft, Walker, and Burnstein. It was an establishment law firm representing the most powerful economic interests in the state. With the help of Dick Morris, moreover, Hillary took on the Arkansas teachers’ unions from the right as she led Bill’s education initiative during his final governorship. In retrospect, all of this was largely pragmatic positioning. When Hillary finally got to the White House and assumed the co-presidency, she veered sharply back to the left on a whole range of issues, especially Hillarycare.

The same pattern will repeat itself should Hillary be elected president. Hillary has never abandoned her early leftist inclinations. She has merely done her best to suppress the evidence of her political past, from barring public access to her thesis on Alinsky during her time in the White House, to papering over the significance of her internship at Treuhaft, Walker, and Burnstein, to pretending that she turned away from Alinsky after her undergraduate years, when in fact she brought his methods and outlook into the heart of her political work. Her strategic preference for polarization and targeting enemies is well documented from her time in the White House, even, or especially, by sympathetic writers such as Bernstein.

Let’s leave aside the ridiculous idea that Hillary Clinton has some kind of revolutionary goals. Even according to Kurtz’s own analysis, it doesn’t matter. If you’re committed to incrementalism and pragmatism, whether you end goal is moderate liberalism or the public ownership of the means of production, you will govern as a moderate liberal and sometimes to the right of that. Like, er, Barack Obama. But, in conclusion, ALINSKY!

Kilgore has more.

The Winger Cliche Machine

[ 86 ] September 22, 2014 |

Andy McCarthy is amazing:

At National Review, Andrew C. McCarthy criticized “tendentious ‘sports journalists,’ the majority of whom are decidedly left of center, are much less guarded about their hostility to conservatives than their fellow progressives on the political beat.” He gave exactly one example of this: ESPN allowed its own correspondent, Kate Fagan, to speak on the issue. (Fagan also writes for espnW, which McCarthy told us is “where the network focuses on women in sports and, seamlessly, on political and social matters that the Left has successfully branded ‘women’s issues.’”)

Fagan, as the taped interview shows, said the issue was bigger than Ray Rice, and she wanted the NFL to “throw the kitchen sink at domestic violence,” which meant in her opinion going into schools and “talking to young men about dealing with anger about how they treat women: I think that’s where you’re going to see change… going into the school systems and the younger spaces and really reprogramming how we raise men.”

This McCarthy took to mean that “boys would be instructed that differentiating men from women breeds domestic violence,” and that was “how radical ideas — like the Left’s war on boys — get mainstreamed.” He proposed instead that we focus on “the breakdown of the family, the scorn heaped on chivalry, the disappearance of manners, and the general coarsening of our society that result from relentless progressive attacks on traditional values and institutions.” If only boys opened doors for girls again, there’d be no need for this reprogramming! (Other key phrases in McCarthy’s column: “the Obama Left’s agenda,” “ACORN,” “Al Sharpton’s National Action Network,” and “Alinsky-style community organizing.”)

Docked a notch for not mentioning Bill Ayers. Admittedly, the idea that there was no violence against women when patriarchal chivalry was stronger deserves no better than McCarthy’s prose.

The Week In Gregg Easterbrook

[ 39 ] September 21, 2014 |

Magary has already spotted Easterbrook’s argument that a banal last-minute kneel-down “was the most exciting NCAA play TMQ has seen in years.” Amazingly, I don’t even think that was the most ridiculous thing in the column this week. For example:

Then there’s Kaepernick. He is a gifted athlete who has an engaging personal story, and he looks great naked. (In consecutive offseasons, Kaepernick has stripped to pose for magazine covers.) But increasingly it seems he is in over his head as an NFL quarterback.

The nude photograph thing speaks for itself (particularly given the amount of space Easterbrook has spent thigh-rubbing about cheerleaders over the years.) On the football point…in over his head? Look, Kaepernick didn’t have a great game last week, and he makes some of the mistakes one would expect of a young QB. Yes, challenging Richard Sherman on first down with the conference championship game on the line wasn’t a great decision. But we should also remember that he was one throw away from a road win against a team that humiliated one of the greatest QBs in league history on a neutral field two weeks later. He was a top-10 QB last year, and he’s been above-average this year. He’s very good.

Things get worse!

Latest Nutty Sports Contract: Over the weekend Robert Quinn signed a mega extension with about $41 million guaranteed. The Rams want to lock him up, contractually speaking, because he was second in sacks in 2013. But Les Mouflons were mediocre on defense in 2013, and since the start of that season, have allowed at least 30 points on six occasions. If Quinn is a franchise-quality defender, why is the St. Louis defense unimpressive?

Well, first of all, the Rams had the 11th best defense in the league last year and the 7th best in 2012, so the empirical basis for the claim is erroneous. Nobody paid to write about the NFL should use “arbitrary number of games with X points allowed” as a metric, not least because a team’s offense is highly relevant to how many points a team allows. But even if the Rams did have a mediocre defense, so what? Houston had a below-average defense last year; does that mean J.J. Watt isn’t a “franchise player”? The 1983 Giants allowed an above-average number of points-per-game, so that means Lawrence Taylor wasn’t a franchise player? Or maybe in a team player even great players can play on mediocre teams? And this point is entirely obvious? Ye Gods. This is “Jon Hunstman could still surprise you!” level stuff.

Still relevant.

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