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The Supreme Court and Abortion, Past and Future

[ 0 ] October 9, 2008 |

From the standpoint of a supporter of reproductive rights, Ann Bartow brings a pessimistic perspective while Neal Devins is more optimistic. I have agreements and problems with both arguments.

I do disagree with Bartow that the five votes to overturn Roe “are already there.” In particular, I don’t agree with her claim that Kennedy “has been moving against abortion over time.” I don’t see how his position has changed at all. The plurality opinion in Casey created (as Devins notes) a regime of legal-but-regulated abortion; Carhart II isn’t inconsistent with that. And while bans on “partial-birth” abortion are idiotic, they also have less impact on access to abortion than the waiting periods and parental involvement requirements upheld in Casey. Particularly when you consider his very strong endorsement of the right to privacy in Lawrence, I think the odds that Kennedy would be the fifth vote to overrule Roe are nil.

In addition, I also disagree with the essentially functionalist account of Casey advanced by both Bartow and Devins. Both see Casey as a product of social and political forces that perhaps caused the median justices to vote against their true preferences. But the upholding of Roe was very much contingent; with exactly the same political and cultural context it could well have been overruled. Had Reagan just nominated Scalia and Bork in reverse order, or Bush I had nominated Ken Starr rather than Souter, Roe would be gone. And I think this mattered a little more than Devins assumes. It’s true that majorities favor abortion rights, but a number of state legislatures would have almost certainly passed abortion bans had the Court permitted them.

At any rate, I do agree with Devins that Roe is probably safe in the short term, and certainly isn’t immediately threatened should Obama win. On the other hand, I don’t agree with him that a court with a more conservative median vote would reject abortion regulations that push the envelope. Roberts and Alito might not want an opinion overruling Roe explicitly, but I don’t think they will ever vote to find an abortion regulation unconstitutional, and as Carhart II proves the current “minimalist” court will go to ridiculous lengths to pretend it’s not overruling precedents it clearly is. Moreover, politics can change quickly, and given the relative ages of the pro- and anti- Roe forces on the Court there’s unlikely to be much margin for error for quite a while. The 2008 election really does matter, and a substantive right to abortion will not be on safe ground for quite a while after that. Casey did mirror (for better or worse) national median opinion quite well, but the Court could have plausibly have gone against it before and could do it again.

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Canadian Election Blogging!

[ 16 ] October 9, 2008 |

Calgary Grit projects another Conservative minority. A majority had seemed possible to me, but according to this data the Tories just can’t pick up enough seats in Quebec, and strategic voting is likely to decrease the final Conservative margins.

Big News Revealed!

[ 3 ] October 9, 2008 |

When told that that John McCain’s campaign (R.I.P.) will have BIG BIG news, I think it can only mean one thing: the release of the Whitey tape!

Thanks Again Salon!

[ 35 ] October 8, 2008 |

Shorter Verbatim Camille Paglia: “Many others listening to Sarah Palin at her debate went into conniptions about what they assailed as her incoherence or incompetence. But I was never in doubt about what she intended at any given moment. On the contrary, I was admiring not only her always shapely and syncopated syllables but the innate structures of her discourse — which did seem to fly by in fragments at times but are plainly ready to be filled with deeper policy knowledge, as she gains it (hopefully over the next eight years of the Obama presidencies). Even if she disappears from the scene forever after a McCain defeat, Palin will still have made an enormous and lasting contribution to feminism. As I said in my last column, Palin has made the biggest step forward in reshaping the persona of female authority since Madonna danced her dominatrix way through the shattered puritan barricades of the feminist establishment.”

And now, the punchline:

“(The value of Ivy League degrees, like sub-prime mortgages, has certainly been plummeting. As a Yale Ph.D., I have a perfect right to my scorn.) People who can’t see how smart Palin is are trapped in their own narrow parochialism — the tedious, hackneyed forms of their upper-middle-class syntax and vocabulary.”

Yes, if only we could all adopt the lucid, simple syntax and vocabulary of Camille Pagilia. Who has a Yale Ph.D. Buy her crappy book!

Nickel Summary

[ 11 ] October 8, 2008 |

Obama did his job (very well if you go by the instapolls.) Even if the numbers soften, in the big picture it’s a major victory. If you’ll forgive the analogy that I became fond of after being in the host city for the 1988 Olympics, he needed a Katarina Witt performance. That is, given his position if he didn’t make any major mistakes he’s the winner. And he didn’t. And to amplify what I said in the debate thread, Brokaw’s performance was poor-too-awful, but with one key caveat: the (generally poorly worded or poorly chosen) questions were about important substantive matters. He didn’t launder any questions about Ayers or other trivia in the manner of Stephanopolous. The standards for such things is so debased I can live with a moderator who doesn’t produce many interesting answers but at least doesn’t drag the debate into silly mudslinging.

Finally, kos makes a good point here; the snap polls combined with the blogosphere make it much more difficult for situations like 2000 — where a contemporaneous Gore victory among actual debate viewers was turned into a retrospective loss by the media (and not just the right-wing media) — much more difficult.

Debate

[ 0 ] October 7, 2008 |

Discuss away if you’re so inclined…

[from davenoon]: I, for one, am glad to know that John McCain won’t be appointing Tom Brokaw as Treasury Secretary. And that he might be thinking of Meg Whitman, who described Sarah Palin as underqualified to run eBay.

[from scott] Shorter John McCain: My friends, I will not articulate any policies, my friends. I will talk about other politicians making other agreements, my friends. I will then lie about my tax policies and my opponent’s “that one’s” tax policies, my friends. Tip O’Neill was from Massachusetts, my friends…I also seem to be confusing the other Democratic candidate’s health care plan with that one’s, my friends.

[djw] Two things: 1. Brokaw is passive-agressive and whiny. 2. This health care discussion is boring, but if people actually manage to pay attention, this shouldn’t be any good for McCain.
Obama: McCain will destroy employer-based health care. McCain: Obama will try to make your employers give you health care.

[from davenoon] Eighty minutes in, and not a single question about Obama’s terrorist pals. Is this because Tom Brokaw is a useful idiot for the terrorist-loving left, or because no one gives a fuck?

[from scott] As bad as he’s been Brokaw has at least avoided meta-questions about tactics. But that “Evil Empire” question has to be one of the dumbest in history…

[from davenoon] Obama missed the last question badly: the correct response was “There are known knowns. These are things we know that we know. There are known unknowns. That is to say, there are things that we know we don’t know. But there are also unknown unknowns. There are things we don’t know we don’t know.”

[from scott] What the hell — did McCain refuse to shake Obama’s hand? I rewinded it on TiVo and it looks like he just told Obama to shake his wife’s hand…did I miss something?…Josh has video. That’s still what it looks like to me…

…as a commenter noted, they apparently shook hands after the debate; it was only visible live on C-SPAN (which, if I had been thinking, I would have been watching.)

Precedent

[ 15 ] October 7, 2008 |

A commenter protests in re: my assumption that the media will, as it always does, forgive John McCain his appalling campaign:

The media loved McCain for certain traits, traits that he’s abandoned in his pursuit of the Presidency. He’s never getting that back.

The obvious problem here is that the presence of traits such as “honor” in John McCain was always entirely imaginary. Since the idea that he was an honorable campaigner was always a media myth made up out of whole cloth, there’s absolutely no reason the media won’t re-attribute these traits to McCain after the campaign. “Look at that hang-dog expression! He’s learned his lesson!”

Spackerman reminds us of the most obvious precedent — his celebration of the Confederate flag during his (run-by-racists) 2000 primary campaign in South Carolina:

Remember in 2000 when McCain refused to call for the removal of the Confederate flag from the South Carolina statehouse? It was a blatant play to the ugliest aspects of American politics, an unsubtly coded attempt to identify himself with white resentment. But what was even more astonishing was what happened after he lost the GOP primary. Here’s CNN from April 19, 2000:

“Former GOP presidential candidate John McCain called for the removal of the Confederate battle flag from atop the South Carolina Statehouse on Wednesday, acknowledging that his refusal to take such a stance during his primary battle for the Palmetto State was a “sacrifice of principle for personal ambition.”

This was pretty widely hailed as a triumph of straight talk. McCain admitted such transparent cynicism! What a breath of fresh air! Now, there’s another way of looking at this moment. One that a less, frankly, white group of trail reporters might have picked up on: despite finding the flag personally offensive — because it is a symbol of racial subjugation; and treason in the interest of white supremacy — McCain didn’t mind exploiting it. He didn’t mind aggravating the most noxious division in America if it served his ambition.

To state the obvious, if you know that the Confederate flag is a symbol of treason in defense of slavery and lawlessness in defense of apartheid and just go ahead an exploit it anyway, this is much, much worse than someone who at least sincerely believes that it’s a symbol of “heritage” or some such. And yet, countless journalists took his self-promoting apology seriously. So why should another round of lying and race-baiting present a problem for his immediate reputation?

Silly Atrios

[ 17 ] October 7, 2008 |

I regret that I must disagree with Atrios when he said that “conservatives can’t whine that their hilarious vision [in An American Carol] was censored by the evil liberals.” Sadly, this underestimates the ability of modern conservatives to ride the waaaabmulance. I particularly treasure the idea that it’s likely evidence of “fraud” if there are “image or focus problems.” That would certainly be compelling to anyone who hasn’t seen a movie in an American theater since the Carter administration. The rest of us would be suspicious of a vast right-wing conspiracy if screenings of the movie generally involved decent prints shown in focus…

I hope the eight or nine people who go to see the movie also report it if theaters are serving cold, grossly overpriced popcorn.  You’d better believe that’s a liberal conspiracy!

Reputational Hits

[ 0 ] October 7, 2008 |

Ezra presents an optimistic perspective about whether McCain’s “dishonor before death” campaign will damage his reputation, at least if he loses. I’m not as sure.

In the long-term, I’m inclined to agree that (especially if Obama’s presidency is generally regarded as successful) McCain’s disgraceful campaign will be seen as the last gasp of Nixon’s Southern Strategy as a successful tool for the GOP. (I also think that it would eventually come to be seen that way even if he won, especially if he proved to be an unpopular one-termer.) In the short-term, though, I’m not sure. Given that even writers appalled by McCain seem to see his behavior as some sort of betrayal of McCain’s fundamental nature, my guess is that most of them will forgive him just as they’ve done so many times before. McCain will apologize, claim that Obama made him do it, serve some BBQ, and journalists will start swooning again.

The New Supreme Court Term

[ 4 ] October 6, 2008 |

Adam Liptak has a useful roundup, noting that the Court does not have any “blockbusters” comparable to last year’s Second Amendment, death penalty, and war powers decisions. There are, however, some cases that indicate the likely direction of the Roberts Court and why many of his holdings will matter more than you might think. In particular, it’s important not to focus excessively on whether the Court explicitly announces the overturning of precedents. There are two examples that are instructive:

  • Standing. “In Summers v. Earth Island Institute, the court will consider who has standing to challenge environmental regulations.” As we’ve already seen with respect to church and state issues, by narrowing standing rules the Court can nominally keep important precdents on the books but make it exceptionally difficult to actually enforce them by declaring that most people don’t have standing to challenge potentially unconstitutional state actions. Moreover, this narrowing of standing rules is likely to be a one-way ratchet; plaintiffs advancing claims that conservatives find sympathetic are unlikely to see their ability to bring suits affected. These cases seem technical, but substantially affect the substantive rights of individuals as well as areas like environmental policy.
  • Pre-emption. Wyeth v. Levine, concerns only implied pre-emption and is perhaps the most important business case of the term. Wyeth, a drug company, seeks to overturn a Vermont jury award of more than $6 million to Diana Levine, a musician who lost much of her right arm in a medical disaster caused by the injection of a Wyeth anti-nausea drug. Wyeth argues that it cannot be sued because it had complied with federal safety standards.” Again, business cases of this sort tend to attract less attention, but making it more difficult for states to punish corporate malfeasance in the courts is a potentially very important outcome. For several of the court’s conservatives, their alleged commitment to “federalism” will clash with business interests, and (especially for Roberts, Alito and Kennedy) I know how I’m betting. Also look for Breyer, at a minimum, to vote with Wyeth.

Another trend Liptak brings up: “The court will also return to an emerging theme of the Roberts court, which has repeatedly turned back general, or “facial,” challenges to laws in favor of more focused, or “as applied,” attacks.” Again, this seems tehcnical, but in any number of areas — including aboriton — it will make the enforcement of rights more difficult. Given the formal “minimalism” of the Court, many of its important decisions will fly under the radar — but that doesn’t mean they aren’t important.

Back to the Blog

[ 19 ] October 6, 2008 |

With his beloved Rangers having opened their season in Prague, this seems like as good a time as any to note that world’s most dangerous professor Michael Berube has returned to his own blog. As happy as I am to have him back, however, I’m appalled that he could compile a list of bad cover songs that excludes Linda Ronstadt’s reading of “Sail Away.” (And while this doesn’t count because I only saw it live, Sting’s “Purple Haze” deserves a mention.)

Pre-Emptive Hackery

[ 1 ] October 6, 2008 |

To no non-wingnut’s surprise, Yoosta-Bee has-been David Zucker’s latest film Michael Moore is teh Fat Heh Indeed! has been a commercial and critical fiasco. So if you’re the kind of person for whom the failure of a liberal movie represents not a lack of interest in a particular film but massive public support for the Bush administration combined with a pent-up demand on the part of the public for Mallard Fillmore: The Movie!, what are you to do?

Well, if you’re Glenn Reynolds, you can start by exhorting your audience to shell out money to watch this crap. But then — perhaps realizing the magnitude of the dud you’ve been shilling for — you can then start making excuses, talking about how nobody goes to movies anymore and how it’s all about DVD sales. How the fact that some people prefer watching movies at home can explain the movie’s dismal performance relative to other movies is, needless to say, not explained. (We can also safely assume that as soon as Reynolds needs to for the umpteenth time claim that Hollywood is in deep trouble because of its alleged excess of liberal movies, box office figures will suddenly become relevant again.)
I’m looking forward to Reynolds’s upcoming post explaining how if you look at it properly The Right Brothers are more popular than Kanye West…

…also note the comparison with Religulous.

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