Obviously, congressional gridlock in general is not a good thing for the country, but hey sometimes is has an upside.
Author Page for Scott Lemieux
We were talking yesterday about Harris v. McRae. Stevens’s dissent always repays re-reading:
The federal sovereign, like the States, must govern impartially. The concept of equal justice under law is served by the Fifth Amendment’s guarantee of due process, as well as by the Equal Protection Clause of the Fourteenth Amendment. When the sovereign provides a special benefit or a special protection for a class of persons, it must define the membership in the class by neutral criteria; it may not make special exceptions for reasons that are constitutionally insufficient.
As I mentioned recently, Jill Lepore had an article in the New Yorker arguing that reproductive rights have fared less well than gay and lesbian rights because Roe rooted the former in privacy rather than equality. As longtime readers will know, I strenuously disagree with this line of argument. To summarize:
- To the general public, how Blackmun justified the holding in Roe is irrelevant, because essentially nobody who doesn’t have a professional obligation to do so reads Supreme Court opinions. Only a tiny fraction of the public could tell you the rationales of Roe or Casey.
- To the audience that does read Supreme Court opinions, again, it’s irrelevant. Nobody who believes that the Constitution protects a woman’s reproductive rights is going to change their mind because they would have written Roe differently. Nobody who thinks that the Constitution doesn’t protect a woman’s reproductive rights would be persuaded by any rationale. No case would have come out differently had Blackmun rooted the holding in Roe in the equal protection clause rather than the due process clause.
- The proof of the pudding is in the eating. On point one, Roe is at least as popular with the public as legal pre-viability abortions. On the second point, a woman’s right to choose has in fact become much more closely linked with gender equality…but, as we saw all too vividly earlier this week, has also become much less secure.
Counterfactuals are famously foolish, not to mention futile. Still, it’s hard not to ask: If the Nineteenth Amendment had been a broadway in constitutional law, instead of a dead end, and if, beginning with, say, Trubek v. Ullman, reproductive-rights cases had proceeded from arguments for equality, rather than for privacy, would Justices Scalia, Alito, Kennedy, Thomas, and Roberts still have been able to rule in favor of Hobby Lobby?
As Mark Graber observes, the idea that equality is a winning argument and privacy is to pitch arguments to a Supreme Court liberals wish he have had rather than the actually existing one. To swing voters like Lewis Powell and Anthony Kennedy, privacy is more likely to be a winning argument than gender equality. I find Lepore’s argument about Hobby Lobby particularly curious given Kennedy’s concurrence. Kennedy explicitly acknowledged — as Alito’s opinion instructively refused to — that Congress had a compelling interest in protecting women’s equality, and yet found that the religious freedom of employers trumped the equality rights of female employees anyway. I’m at a loss to understand how rooting a woman’s right to choose in the equal protection clause could have changed Kennedy’s vote. And, certainly, gender equity claims would have no appeal to Samuel “Concerned Alumni of Princeton” Alito or the U.S. v. Virginia dissenter Antonin Scalia.
The regulatory scope the Supreme Court gives to states on abortion matters enormously, but how precisely the Court justifies its holdings is of trivial practical importance. Reproductive freedom is a particularly good illustration of this truth.
…Irin Carmon has a good question:
@LemieuxLGM what about Harris v McRae?
— Irin Carmon (@irin) June 11, 2015
Harris, as some of you know, was the case that upheld the Hyde Amendment.
As I would look at it, Harris is a perfect illustration of Graber’s point. Three members of the Roe majority — Powell, Stewart, and Burger — flipped on the Hyde Amendment. The lesson here is that the country-club Republicans who have controlled Supreme Court outcomes since the first term of the Nixon administration find privacy arguments much more compelling than equality arguments. By 1980, after all, the doctrinal tools were there had either Powell or Stewart wanted to strike down the Hyde Amendment on equal protection grounds. Craig v. Boren, which subjected gender classifications to heightened scrutiny, had been on the books since 1976. For that matter, Eisenstadt v. Baird — the bridge between Griswold and Roe — was decided on equal protection grounds. Powell and Stewart had plenty of doctrinal justification available had they wanted to strike down the Hyde Amendment; the four dissents present numerous alternative paths rooted in Supreme Court precdent. They didn’t vote to strike the Hyde Amendment because they didn’t want to. Roe being decided on equal protection grounds wouldn’t have compelled Powell or Stewart to hold the Hyde Amendment unconstitutional any more than it required Kennedy, O’Connor and Souter to accept the trimester framework rather than the “undue burden” standard. You can always find ways to distinguish or set aside inconvenient precedent, which is one reason why the grounds of Blackmun’s opinion in Roe just don’t matter very much.
A commenter observed that I didn’t really address the substance of a Jon Chait post about what would happen should the Supreme Court wreck most of the health care exchanges. Fair enough! So while I stand by everything I argued in my longerform about the question, a few additional points:
- To be clear, it’s entirely plausible that the Court going the full Moops it will be, on net, a political negative for the Republican Party. The fact that the Democratic message is clear, the fact that it will be a Republican Congress and Republican statehouses who refuse to do anything — these are real factors. There are also real countervailing factors: the president tends to get disproportionate credit/blame for any results of federal policy that happen under his watch, and blaming Obama for anything to do with “Obamacare” is also a simple and potentially effective message. Nonetheless, I’m willing to assume arguendo that the Court reversing in King will make the political situation worse for Republicans ceteris paribus. I also agree that congressional Republicans are enormously unlikely to pass a Potemkin, poison-pill laden “fix” even though it’s in their political interest to do so.
- But in terms of policy and electoral results, that’s not the end of the story. There are similarities with this argument and the argument that overruling Roe v. Wade would be excellent.news.for.the.Democratic.Party. Overruling Roe would indeed be unpopular, but elections are not referenda on individuals issues. Parties can do unpopular things and take unpopular positions and still win. The vast majority of Republican public officials and the federal and state level will not pay any price for the Supreme Court doing their dirty work, and votes to fix the hole the Supreme Court created will also potentially expose a Republican to a primary challenge. It would be almost impossible for any political blowback to cost Republicans the House or most of the state governments they control. Given this, it’s hard to see how such Republicans will be compelled to act. There may be some exceptions in Republican-controlled blue states with state exchanges. The biggest potential effect is on the Senate elections — not trivial, but only under some pretty precise circumstances would a backlash be the crucial variable handing the Senate to the Democrats.
- Chait draws a comparison with the government shutdown and the debt ceiling round 2, where the GOP was force to cave. But there’s a big difference. Those disputes, for Republicans, were about means, not ends. Republicans don’t favor defaulting on the debt or shutting down the government per se; they don’t do these things when Republicans control the White House, and the people who pay their bills really don’t like them either. They’re only useful if they provide leverage; if they’re not providing leverage and are doing political damage, they have no reason to continue to pursue them. This is different — taking away health care subsidies and damaging the ACA are, in themselves, victories for the GOP. There would have to be a lot of political damage for Republicans to back down soon. Federally, and in most affected states, I just don’t see it happening anytime soon.
Yesterday, the Fifth Circuit upheld the Texas near-ban on abortion. So either Kennedy is going to have to agree to give Casey some actual content, or admit that Roe is effectively overruled:
In 1992, the supreme court’s decision in Planned Parenthood v Casey nominally upheld Roe v Wade, but it replaced Roe’s clear rules with a holding that abortion regulations, even in the first trimester of pregnancy, were unconstitutional only if they constituted an “undue burden”. As applied by federal courts, the Casey standard has been a disaster, allowing states to pass increasingly restrictive rules.
The three judges who wrote the fifth circuit opinion – all nominated, you’ll be shocked to discover, by George W Bush – make good use out of the extent to which the supreme court has undermined Roe in the name of saving it. The opinion is appalling if you care about the equality and autonomy of American women, but it’s not stupid. It’s written in a way designed to appeal to Anthony Kennedy, the only member of the Casey majority still on the court, and the swing vote in abortion cases.
Casey’s biggest sin was ruling that Pennsylvania’s 24-hour waiting period was constitutional. As the fifth circuit opinion observes, the Casey decision acknowledged that the regulation would be “particularly burdensome” for poor rural women and conceded that it would have “the effect of increasing the cost and risk of delay of abortions.” And yet, justices still found that it was not an undue burden. The road between this and So what if women in west Texas have to drive 150 miles to find an abortion clinic? is shorter than it should be.
This reasoning doesn’t guarantee a supreme court ruling in favor of HB2 – the Texas regulations are more restrictive in their cumulative impact than the waiting period and the other regulations upheld in Casey. But Casey put a loaded weapon in the hands of opponents of safe, legal abortions, and the fifth circuit has now pointed it squarely at the reproductive freedom of American women.
So the access many American women will have to safe abortions will now rest on the most conservative member of the Casey triad. What could possib-lie go wrong?
Now this is how you bullshit people with a “poll,” ladies and gentlemen:
The most ideologically hard-core elements of the party have tried to make the case that Republicans should do nothing at all. One libertarian organization commissioned a poll designed to show that voters would not blame Republicans for doing nothing in the face of massive suffering. The poll has an unusually blunt method for producing this result. It asks, in the event the lawsuit is successful, whom voters would blame. The choices are:
“Congress, for poorly writing the law”
“The IRS, for giving out illegal subsidies in the first place”
“States, for refusing to establish Obamacare exchanges”
Notice that, even aside from the loaded terms (“poorly writing,” “illegal”), none of those choices allows voters to blame the current, Republican-run Congress for failing to fix the law. The only “Congress” voters can blame is the old Democratic one that wrote the law in 2009–10. The poll does prove that the public will not blame Republicans in Congress if it is given a fixed menu of choices, of which blaming the Republican Congress is not one.
And, of course, there’s en more glaring omission: the Supreme Court. (Or, as the equivalent question would be worded, “a bare majority of the Supreme Court for willfully misreading the Affordable Care Act and taking subsidies away from more than 6 million people.”) The hack pollsters anticipated John Thune!
You will also be surprised to learn that America’s Foremost Civil Libertarian did a great deal to draw attention to himself while doing not much of anything to substantively improve the statute.
- Erik said most of what needs to be said about this silly NYT thumbsucker. Like Jamelle, though, I was particularly struck by the sentence “she is poised to retrace Barack Obama’s far narrower path to the presidency.” On what planet were Barack Obama’s coalitions “more narrow” than Bill Clinton’s? Is it his higher share of the popular vote? Er, the much higher turnout? Nope — it’s that hardy perennial, “white voters count more than other voters.” This is both wrong and offensive before you get to the massive implausibility of the idea that Clinton would be able to win in West Virginia and Arkansas if she just campaigned there really hard, hard enough to make it 1996 again apparently. (Cf. also that other favorite of American political discourse, “Durr, Al Gore couldn’t even win his own state [drools on self.]”)
- As Jeff Sessions trenchantly notes, if Obama had wanted Obamacare to provide affordable health care to all Americans, he presumably would have mentioned that at some point, or perhaps even put it in the title of the legislation or something. (Relevant context.)
- More of this, please.
- I see that our conservative intellgentsia might be poised to move on from the most important question of out time — “Lena Dunham, hot or not?” — and move on to an equally important question, “Emma Sulkowicz, hot or not?” To save you the trouble, the answer will always be “no,” expressed in the most misogynist way possible. I would also assume that the conservative hacks in question spend most of their spare time doing model shoots for Italian fashion magazines.
- I’m curious as to what will happen with this sad case. Intuitively, it certainly seems as if a psychic bilking someone out of $700K should be a serious criminal offense. And, yet, it’s always a racket, but as far as I can tell it’s not illegal to sell people psychic readings or tarot readings or astrological readings or whatever. Is it just that the frauds are tolerable at a low level but unacceptable beyond a certain level? I honestly don’t know.
- Speaking of lucrative grift, a Dayen must-read about Corinthian College.
I was going to write something longer about this Ruth Marcus column, but Atrios largely beat me to the punch here and here. The obvious problem is that her argument relies on prosecutorial discretion, but then retreats into formalism to become selectively blind to factors it is perfectly reasonable for prosecutors to take into account.
If Marcus was arguing that the FIFA or Hastert prosecutions could not be squared with the letter of the law, I’d have no problem with that. Due process really does apply to everyone. If Jeffrey Skilling is convicted under an unconstitutionally vague statute, his conviction should be thrown out. But that’s not Marcus’s argument. Her argument is that prosecutors should not, in these cases, choose to go after behavior that is in fact illegal under federal law. If that’s the road you’re going down, then it’s entirely reasonable for prosecutors to take particularly bad behavior and consequences into account. The fact that FIFA’s network of bribes and kickbacks produces results like “let’s hold the World Cup in a country where facilities will be built with slave labor, resulting in thousands of deaths” absolutely does matter in this context — if you’re ever going to apply these criminal sanctions, this would seem to be the case. Similarly, using bank reporting laws to indirectly go after a child molester is considerably more defensible than the more typical use of the laws — i.e. indirectly going after people involved in the drug trade. The idea that prosecutors should exercise discretion by declining to pursue particularly egregious offenders is very strange.
Are there too many criminal statutes? Yes. Is mass incarceration a serious problem? Yes. But showing concern for these problems only when rich guys are involved is counterproductive, and it’s even more problematic when said rich guys are guilty of genuinely bad acts with serious material consequences to other people. (This goes triple for Hastert, who bears more direct personal responsibility for the underlying problem than all but a handful of people.) One way to make sure that the problem of mass incarceration will never go away is to apply criminal statutes only to the relatively powerless and not to the powerful. If you don’t think Hastert’s behavior merits an arrest, get rid of the law rather than instructing prosecutors only to use it against less powerful people guilty of behavior that isn’t as bad.