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Another Rebuke to Kennedy & Cronies

[ 0 ] April 20, 2007 |

The amazing Lynn Paltrow (a mentor and friend of mine), founder and executive director of National Advocates for Pregnant Women, has cranked out a strong rebuke to the Supreme Court’s holding in Gonzales. She focuses on how Kennedy’s decision, while claiming to value life above all, totally devalues the women who give life. It’s up at The American Prospect. Here’s an except. But go read it all.

And yet the Bush administration is actively supporting policies to limit poor children’s access to state child health insurance programs. In short, the Court’s decision in Gonzales v. Carhart — and Bush’s professed support for it — reinforces the sense, once again, that only the unborn deserve protection in this country. Not by ensuring universal health care, paid maternity leave, or an end to workplace pregnancy discrimination — only by restricting pregnant women’s access to health care.

Also at AB&B.

No Chance

[ 0 ] April 19, 2007 |

I’m frankly baffled by Ilya Somin’s claim that there are plausibly five votes to strike down the PBA Act on Commerce Clause grounds. The most obvious problem with his argument is that it entirely ignores the Raich decision, under which the Commerce Clause issue presented by the Act is plainly insubstantial. Obtaining an abortion is much more clearly a commercial transaction than growing medical marijuana for personal use, and given the dearth of abortion providers in the country abortion is certainly an interstate market. The idea that Scalia and Kennedy, both strongly personally anti-abortion, would switch votes given a more favorable set of facts is implausible in the extreme. It is true that the Court’s personnel has changed, but the two Justices who left the Court were two of the three dissenters in Raich. At best, Roberts and Alito would be treading water, but both are demonstrably hostile to reproductive rights and lack Thomas’s commitment to grand theory, so this strikes me as unlikely in any case.

The only other chance, then, would be if some of the Court’s liberals would act as unprincipled hacks; I don’t think there’s any reason to assume that, as they’ve been entirely consistent on Commerce cases. (Certainly, Stevens’ and Ginsburg’s brief questions at oral argument–which seemed to be much more about tweaking conservatives than about advancing a position–aren’t good evidence.) Similarly, the fact that Scalia joined Thomas’s concurrence means nothing, since it didn’t advance any position on the merits. Thomas, as far as I can tell, is the only likely vote to strike, and there’s no chance at all that there would be five.

Dept. of Corrections

[ 0 ] April 19, 2007 |

This blogger picked the Cleveland Indians to win the AL Central. He did this despite the fact that they were going to be using Joe Borowski as a closer and were managed by Eric Wedge. Lawyers, Guns & Money regrets this egregious error.

Where are the Men? Right Here, Baby . . .

[ 0 ] April 19, 2007 |

“Why can’t we get laid?”

Nathaniel Blake and Derb have diagnosed the Rooseveltian weaknesses of the American Boy, who has been softened by our culture into a cowardly mound of goo. Some people are outraged that Blake and Derb would, from a great distance, chide the living and the dead in Norris Hall for neglecting their obligations to generate good screenplay material. I don’t think, however, that any of this quite captures the thrust of their arguments.

Now, I understand that while many prepubescent boys fantasize about being rescued by a helicopter, others like Blake and Derb pass their days in quiet, semi-erect reverie, devising scenarios to win the hearts of girls — girls who would not otherwise stoop to spit on them — by saving them from masked bandits, rabid wolves, or perhaps an ululating swarm of Arabs. “Someday,” they think to themselves, “I’ll get my chance. Then they’ll see.” And with that, they go back to practicing their defiant sneers and snappy one-liners in the mirror. “Let’s roll” has been taken, but they’re pretty sure they’ll think of something really, really cool when the time comes.

Well, Nathaniel Blake and John Derbyshire weren’t fortunate enough to be among the students being showered with bullets at Virginia Tech earlier this week, and so they couldn’t show off their outstandingly manly characters and totally off-the-hook kung fu skills — the combination of which would have entitled them to a gracious whirl of fellatio from all the women whose lives they might have selflessly protected. Having missed that opportunity, however, the boys can only remind the world that they would have done things differently. Maybe that will be good enough for a hand job behind the bleachers. Who knows? It’s worth a shot.

And so Blake, jostling for position and reduced to humping his own hand, observes that

[s]omething is clearly wrong with the men in our culture. Among the first rules of manliness are fighting bad guys and protecting others: in a word, courage. And not a one of the healthy young fellows in the classrooms seems to have done that.

Rather than dismiss this as nothing more than heartless tongue-clucking, we have to see Blake’s words as a kind of desperate wingnut mating call. “I’m an alpha male! My seed is strong and vital!

Then, like a rutting panda, Blake stands on his head an pees against the wall, proving that he is indeed the most prodigious male in the area.

And as for John Derbyshire, his motives are even more transparent. After all, what better way to score with a young woman in her physical prime than to rush a guy who only “[has] two handguns for goodness’ sake!” Damn. The thought of Derb rushing a crazed gunman, taking harmless .22 slugs to non-vital regions of the body . . . well, that gives even a weakling American male like myself strange feelings I don’t quite understand.

Against Unilateral Disarmament

[ 0 ] April 19, 2007 |

It may not come as a shock that I agree with Matt’s conclusion that Roe was correctly decided on the merits. (For those who haven’t seen it, I lay out a three-part case for Roe here, here, and here.) Matt makes another important point about the pro-choice anti-Roe crowd who base their claims not so much on doctrinal analysis as a general claim about whether courts rather than legislatures should decide “cultural issues”:

The primary motive for this, I think, is that people find it odd that such a controversial issue as abortion rights should be decided primarily by the courts. They also feel, intuitively, that it’s weird to leap so suddenly from one stance to another. I tend to agree that this is odd. The oddness, however, is right at the heart of the institution of judicial review as practiced in the United States. I’m of the opinion that this institution isn’t a great idea and that many other countries have found more satisfactory institutional mechanisms for the relationship between courts and legislatures. There’s no question, however, that strong judicial review is the system we actually have and reproductive freedom advocates have every reason to press our case vigorously through America’s actual institutions rather than act in some make-believe universe where the United States has a generally majoritarian set of political institutions.

Like Matt, I am skeptical of judicial supremacy as a normative matter, and I certainly don’t believe that it’s necessary for liberal democracy. But Roe has to be evaluated within the set of institutions the United States actually has, not the one some analysts wish we had. (Moreover, it should be noted that given the Madisionian legislative framework abandoning judicial review would not create reliably more “majoritarian” outcomes.) Liberals shouldn’t unilaterally disarm. And within this framework, Roe is a logical application of long-standing precedents that prevents bad legislation that is often arbitrary in form and in application, and it should be defended vigorously.

The Risk of Legislative Deferral

[ 0 ] April 19, 2007 |

Great point here by Brad Plumer. It’s hard to take Harry Reid’s criticism of the Supreme Court’s appalling decision yesterday seriously given that he voted for it in the first place. It’s a dismaying abrogation of responsibility to score cynical political points by voting for legislation that is not only bad but arbitrary and hope that the Courts will bail you out. (One can say something similar about George Bush signing campaign finance legislation he believed to be unconstitutional.) Not only because the courts have significant discretion that may cause the tactic to blow up in your face, but because it’s inherently wrong. All political branches are bound by the Constitution, and the legislators should not pass (and Presidents should not sign) legislation they consider unconstitutional.

Most (& Least) Surprising Source of Criticism of Yesterday’s Decision

[ 0 ] April 19, 2007 |

Most: It pains me to link to them. Fox News (via Broadsheet):

“Congress is practicing medicine and the Court has decided to let it, in direct conflict with its own precedent. Five members of the Supreme Court have decided that Congress knows more about obstetrics and gynecology than the doctors in the American College of Obstetrics and Gynecology do,” says Susan Estrich for, hold onto your jaw, Fox News.

Not surprising: It was Susan Estrich. Still surprising, she was on Fox (balanced for once?).

Least surprising criticism? Dahlia Lithwick. She’s not a surprise, but damn she’s good.

With a stirring haiku about how “respect for human life finds an ultimate expression in the bond of love the mother has for her child,” the justice interpolates himself between every one of those mothers and every child she might ever bear. Without regard for the women who feel they made the right decision in terminating a pregnancy, he frets for those who changed their minds.

The core of Lithwicks’ article is Kennedy’s focus on the trope of the indecisive woman, who, in her half-witedness (as women are wont to be), gets an abortion and later regrets it. Lithwick rightly takes Kennedy to task for this paternalistic — not to mention faulty — assumption:

It’s hard to fathom why Kennedy has so much more sympathy for the women who changed their minds about abortions than for those who did not. His concern for Inconstant Females might be patronizing in any other jurist. Coming from him, it’s brilliantly ironic. Kennedy is, after all, America’s Hamlet. The man who famously worried that “sometimes you don’t know if you’re Caesar about to cross the Rubicon or Captain Queeg cutting your own tow line,” will long be remembered as the living incarnation of agony and indecision, And today he seamlessly rewrites his Stenberg dissent as a majority opinion that blasts his earlier Casey vote to its core.
I’m no psychologist but in light of today’s Gonzales opinion one has to wonder: Is all of Kennedy’s tender concern over those flip-flopping women really just some kind of weird misplaced justification for his flip-flopping self?

(cross-posted at AB&B)

Why Are These People So Happy?

[ 0 ] April 19, 2007 |

For some reason, the forced pregnancy lobby doesn’t understand the well-established contrarian analysis that upholding arbitrary abortion regulations is actually a good thing for reproductive freedom:

Elated and emboldened, anti-abortion activists in state after state are planning to push for stringent new limits on second- and third-trimester abortions in the hopes of building on their victory Wednesday at the Supreme Court.

By a 5-4 vote, the justices upheld a federal ban on a procedure critics call “partial-birth abortion,” which involves partially delivering the fetus, then crushing its skull. The ruling included strong language asserting the state’s “legitimate, substantial interest in preserving and promoting fetal life.”

Advocates on both sides of the abortion debate predicted the ruling would spur a flood of legislation.

“We’re moving beyond putting roadblocks in front of abortions to actually prohibiting them,” said Troy Newman, president of Operation Rescue, a national anti-abortion group based in Wichita, Kan. “This swings the door wide open.”

He and other strategists said they hope to introduce legislation in a number of states that would:

– Ban all abortion of viable fetuses, unless the mother’s life is endangered.

– Ban mid- and late-term abortion for fetal abnormality, such as Down syndrome or a malformed brain.

– Require doctors to tell patients in explicit detail what the abortion will involve, show them ultrasound images of the fetus and warn them that they might become suicidal after the procedure.

– Lengthen waiting periods so women must reflect on such counseling for several days before obtaining the abortion.

Wait–some people think that the Supreme Court permitting wider state latitude to regulate abortion (for some classes of women) makes the greater regulation of abortion more likely? That doesn’t seem very logical! Hopefully Ben Wittes will talk some sense to these people.

Four Things To Remember When Reading Gonzales v. Carhart

[ 0 ] April 18, 2007 |

As an antidote against the inevitable chorus of fake moderates arguing that today’s abortion case is no big deal, four things to keep in mind as you ponder today’s decision:

  • Don’t take assertions by the Court about whether they’re overturning precedents or not at face value. What matters is the substance of the ruling, not how the Court characterizes past precedents. (The Court went out of its way to avoid saying that they were overturning Plessy in Brown, and then applied it as if it meant exactly that.) Moreover, the Roberts/Alito strategy of quietly gutting precedents–epitomized in this case–is much worse for those who oppose their legal goals than the Thomas/Scalia willingness to overturn precedents directly and honestly. The result of this type of case is a sharp restriction in the reproductive freedom of women without the political benefits of an outright reversal.
  • Making it much harder to successfully strike an abortion statute on facial grounds, as the Court has just done, may seem like a mere technicality but is a big deal. I explain why here. Not only will this change in the standard applied by Casey make litigation to protect a woman’s reproductive freedom much more expensive and difficult, but it will have the perverse effect of making the fact that abortion regulations almost invariably have much more impact on poor, rural women an argument in their favor.
  • The next time someone claims that overturning Roe would “send the issue back to the states,” make sure to point out that they don’t have any idea what the hell they’re talking about.
  • And finally, let’s also remember the underlying gender assumptions of those who support the power of the states and the federal government. Ann has already noted this powerful passage in Justice Ginsburg’s brilliant dissent: “Revealing in this regard, the Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from ‘[s]evere depression and loss of esteem.’ Because of women’s fragile emotional state and because of the bond of love the mother has for her child,’ the Court worries, doctors may withhold information about the nature of the intact D&E procedure. The solution the Court approves, then, is not to require doctors to inform women, accurately and adequately, of the different procedures and their attendant risks. Instead, the Court deprives women of the right to make an autonomous choice, even at the expense of their safety. This way of thinking reflects ancient notions about women’s place in the family and under the Constitution ideas that have long since been discredited.” Given Alito’s assumption that the state has the same interest in regulating married adult women as it has in regulating children, that he would vote to uphold this ban isn’t exactly shocking.

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[ 0 ] April 18, 2007 |

Steven Hayward, Senior Fellow at the Pacific Research Institute and Weyerhauser Fellow at the American Enterprise Institute, has a documentary out that claims to refute the “overall pessimism” in Al Gore’s An Inconventient Truth.

As always, the source matters. The Pacific Research Institute is one of dozens of groups receiving money each year ($175,000 from Exxon since 1998) to “discredit” global warming in much the same way creationists attack evolution — by claiming that it is “just a theory,” by using inconsistencies to undermine an complex body of scientific research, and by accepting money from powerful groups whose interests are contrary to the entire notion of empirical validity and intellectual honesty.

Redbeard had a fine thumping of the awful Times piece on this film, but it’s worth reminding ourselves again that Hayward and friends are contemptible hacks. Two years ago, Hayward offered this gem in the National Review Online:

It is a great myth that SUVs are greater polluters. True, they use more gasoline, but they now have the same emissions standards as all other automobiles, so replacing your old clunker with a new SUV will actually help clean up ozone smog in America. Because they use more gas, they do emit more carbon dioxide, but remember, carbon dioxide is not a noxious pollutant, but plant food.

Yes, and while eight glasses of water a day might be a good idea for maintaining decent health, overhydration can kill your ass. In their attitudes toward war as in their beliefs about ecology, the notion of proportionality is foreign to these people.

We might also look at this. Signed by two dozen industry-funded critics of the “global warming” thesis, this 2002 letter chided Bush about that year’s Climate Action Report, which Bush himself dismissed as a product of “the bureaucracy.” Not satisfied with just bitching about the report, Hayward and others recommended that heads be severed and mounted on pikes:

We therefore urge you to withdraw Climate Action Report 2002 immediately and to direct that it be re-written on the basis of sound science and without relying on discredited products of the previous administration. As production and release of this report demonstrates, pursuing your global warming and energy policies effectively will not be possible as long as key members of your administration do not fully support your policies. We therefore also urge you to dismiss or re-assign all administration employees who are not pursuing your agenda, just as you have done in several similar instances.

No word yet about whether this letter wound up in Gonzo’s hands, but I suppose a good idea is a good idea….

Elections Have Consequences

[ 0 ] April 18, 2007 |

As Bean notes below, the Supreme Court has upheld the Federal “Partial Birth” abortion ban, which as I have argued in detail was 1)inevitable with Alito’s appointment to the Court and 2)very bad. It was, I suppose, inevitable that it would come down while I’m on the road, and I therefore haven’t finished reading the decision yet. In the meantime, I note that almost everything that needs to be said about the constitutionality of these laws was said by Justice Stevens in his concurrence in Stenberg v. Carhart, which the Court (despite its disingenuous claims to be following precedent) effectively overrules today:

Although much ink is spilled today describing the gruesome nature of late-term abortion procedures, that rhetoric does not provide me a reason to believe that the procedure Nebraska here claims it seeks to ban is more brutal, more gruesome, or less respectful of “potential life” than the equally gruesome procedure Nebraska claims it still allows. Justice Ginsburg and Judge Posner have, I believe, correctly diagnosed the underlying reason for the enactment of this legislation–a reason that also explains much of the Court’s rhetoric directed at an objective that extends well beyond the narrow issue that this case presents. The rhetoric is almost, but not quite, loud enough to obscure the quiet fact that during the past 27 years, the central holding of Roe v. Wade, has been endorsed by all but 4 of the 17 Justices who have addressed the issue. That holding–that the word “liberty” in the Fourteenth Amendment includes a woman’s right to make this difficult and extremely personal decision–makes it impossible for me to understand how a State has any legitimate interest in requiring a doctor to follow any procedure other than the one that he or she reasonably believes will best protect the woman in her exercise of this constitutional liberty. But one need not even approach this view today to conclude that Nebraska’s law must fall. For the notion that either of these two equally gruesome procedures performed at this late stage of gestation is more akin to infanticide than the other, or that the State furthers any legitimate interest by banning one but not the other, is simply irrational. See U. S. Const., Amdt. 14.

Upholding ludicrously arbitrary legislation that puts women’s health at risk without furthering any legitimate state interest, while signalling that the “undue burden” standard will be interpreted to uphold virtually any abortion regulation short of a ban sets an extremely dangerous precedent. I’ll have more later.

Oh Justice Kennedy, How You Have Failed Us.

[ 0 ] April 18, 2007 |

The decision is in. The Supreme Court today upheld the late-term abortion ban Congress passed after the Court struck down a similar ban a few years ago. Congress, if you remember, passed the bill after making findings that a late term (falsely labeled partial birth by conservatives) abortion was never medically necessary. Which is BS. Of course. Anyone with half a brain knows that.

But apparently not Justice Kennedy, who provided the crucial fifth vote to uphold the ban and who wrote the friggin’ majority opinion. Given that he’s now the swing vote on the court (since O’Connor stepped down), this does not bode well for women’s rights under the Roberts SCOTUS.

Kennedy wrote in the opinion that the opponents of the act ”have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases.” Which makes little sense to me at first blush. Just because in the majority of cases a law is not unconstitutional as applied means that it does violate the rights of some. Backwards logic if I ever saw it — a failed attempt to justify an obviously political decision that is bound to do damage to the Constitution.

I’m sure Scott will have more.

update: At least Ginsburg’s got some brains:

Ginsburg, in a lengthy statement, said “the Court’s opinion tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists. For the first time since Roe, the Court blesses a prohibition with no exception protecting a woman’s health.” She said the federal ban “and the Court’s defense of it cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court — and with increasing comprehension of its centrality to women;s lives. A decision of the character the Court makes today should not have staying power.”

update 2: Today’s decision brings to bear the real – and devastating – impacts of Justice O’Connor’s retirement.

(also at AB&B)

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