I imagine that this week is going to be abortion always and everywhere unless a meteor hits Kyiv or something. However, even though you might not be in the mood for good news about Justice Alito's latest tactical nuke on the progressive movement, there is a small bit of good news in his opinion that may or may not be obvious on first reading.
It's this: Alito, in his anxiety to put together a majority, made it very, very clear that his decision is about abortion and nothing else. Worried about the general right to privacy that Roe is based on? Don't be. Worried that the Court's conservatives plan to turn back the clock a century or so? Don't be. Here are his words on Lochner v. New York, a 1905 decision that restricted the right of states and the federal government to regulate working conditions governed by contracts between workers and their employers. Although Lochner was overturned decades ago during the New Deal, many modern conservatives have voiced hopes of having it at least partially re-enacted. In his discussion of substantive due process, Alito tells them to forget it:
On occasion, when the Court has ignored the “[a]ppropriate limits” imposed by “respect for the teachings of history,” it has fallen into the freewheeling judicial policymaking that characterized discredited decisions such as Lochner v. New York. The Court must not fall prey to such an unprincipled approach.
Alito also name-checks the cases that have been specifically used as precedent to support the right to an abortion:
Casey relied on cases involving the right to marry a person of a different race; the right to marry while in prison; the right to obtain contraceptives; the right to reside with relatives; the right to make decisions about the education of one's children; the right not to be sterilized without consent; and the right in certain circumstances not to undergo involuntary surgery, forced administration of drugs, or other substantially similar procedures. Respondents and the Solicitor General also rely on post-Casey decisions like Lawrence v. Texas (right to engage in private, consensual sexual acts), and Obergefell v. Hodges, (right to marry a person of the same sex).
....What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abortion destroys what those decisions call “potential life” and what the law at issue in this case regards as the life of an “unborn human being.”...They are therefore inapposite. They do not support the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in anyway.
None of this makes up for the loss of abortion rights. But it's at least something that in order to overturn Roe, Alito felt like the only way to make it acceptable was to soften the blow by clarifying that he didn't support a steady trawl through Supreme Court precedent, overturning every progressive decision along the way that might somehow be related to Roe. It's not much, and in practice there's no telling if he'll stick to his word, but it's something.
For a contrary reading, see http://www.dorfonlaw.org/2022/05/a-few-brief-reflections-on-leak.html
I agree with this completely. This situation came about solely because of Republican ruthlessness and disrespect for our democratic norms. I agree the constitution had nothing whatsoever to do with this decision.
The question now is what are the Democrats going to do about it besides sending out fundraising appeals?
And the big bad news is that Gorsuch and Kavanaugh lied through their teeth during their confirmations, and that now they're in for life, will continue to drive a coach and four through the norms and precedents of the last century.
(One of the few good things about using centralised services like Disqus et al is that it's possible to block people. This saves a lot of time and reduces a lot of stress.)
Over here in the UK, a British constitutional lawyer argues that the danger of Alito's argument is that it is tightly argued to the extent that even a law passed by Congress may be insufficient to be overruled - that only a constitutional amendment would be adequate, and that's essentially impossible.
Not that the UK is going to be very far behind in following, mind. Our current Health Secretary is remarkably vague about supporting abortion rights here - and again, it's solely the mad 15-20% that he is appeasing.
That will lead to nullification.
Kevin, you are, as always, a sap. Of course they will go after gay marriage and contraception. Only a dope like you would believe Alito.
Alito has an easy out - just concur with the reasons for decision by one of the other Trump Republican judges that reverses Obergefell etc. No need for him to give any reasons of his own. Being a Supreme Court judge means you never have to justify your illogical or inconsistent reasons for decision, and they can never be appealed.
They don't have the votes
I'm sorry to say that this harsh statement rings true. Alito cares nothing for consistency, only results. He will toss aside his reasons when necessary.
Unless the draft is reworded, the issue of the privacy not being enumerated in the Constitution is going to jeopardize Griswold, Obergefell and Lawrence. The Christian dominionists are not going to stop with Roe.
They don't have the votes. It's why abortion is the go to issue. Christian dominions are anti-white.
I'm afraid that only you and Susan "Gaslighter" Collins believe your analysis.
I think Kevin is being optimistic. If Alito really was concerned, he could have more narrowly attacked Roe. He didn't. He can claim it is a narrow decision all he likes, but the arguments he uses to overturn Roe are exactly the same as was cited in support of Obergefell, Lawrence, and Griswald. Heck, Lawrence cited directly to Casey which is now overturned.
Who knows, maybe Alito believes this, maybe not. Once pandora is out of the box, though, it's no longer up to him.
Alito stick to his word? Gorsuch? Kav? Barrett? They all lied during their confirmation hearings, under oath. LOL. Collins is "concerned". Wake up! https://www.motherjones.com/politics/2018/09/five-times-brett-kavanaugh-appears-to-have-lied-to-congress-while-under-oath/
Let me give you an example of exactly what I've been talking about here for years. I just received an email from Biden's campaign apparatus and another from, essentially, the Democratic Party exhorting me to give them money because of the impending Supreme Court decision overturning Roe v. Wade. At the same moment, news came across the wire that Biden won't introduce legislation to overturn the decision and neither will he advocate for changing his beloved filibuster to overturn the decision.
But he and his fellow Democrats want me to give him money. What's the point? It's all one way traffic—give the Democrats money and they'll do absolutely nothing to change things. I'm done with that.
I agree that the filibuster should go and the decision should be overturned, but do you think either has a prayer of passing this Congress? And if not what is the point of the President expending a bunch of time and energy on yet more lost causes? The strategy is not so hard to guess. Elect more Democrats to the House and Senate so that maybe you can do the things that are currently impossible. You seem like an intelligent guy so I'm sure none of this is lost on you. So I'm not sure what your beef is.
We’ve been electing lots of Democrats. They have mostly run on popular and appealing platforms but have utterly failed to deliver. For example, in 2018 the Democrats ran on accountability but did absolutely nothing with the house. Then they got the trifecta and continued to do nothing. It’s 2022 and these losers haven’t even gotten Trump’s tax returns yet, let alone investigated the abuses and criminality of his administration (or the blatant criminality of his businesses, for that matter).
For decades, the appeal for electing more Democrats while excusing their passivity has been exactly as you’ve phrased it. And for decades the Democrats have basically kept their powder dry and waited to fight a fight they could be assured of winning while the Republicans have pushed their ruthlessly pushed their agenda. The result is that they’ve remade the party into the political equivalent of the Washington Generals.
If Democrats are that committed to not using the power they’ve got, what’s the point of squandering resources on them?
You have to turn the US congress into California. 80% majority.
At the federal level, I have seen the Dems pass anything they had the votes to pass.
The only difference is that the Repubs routinely bring up bills that have no chance of passing for the theater of it, but other than that.
I mean, the only reason we are on this thread is some Dem idiots had principled reservations about voting for Hillary. How does it feel now?
I stood in line at a Sanders rally behind a guy who was proclaiming to all how Bernie was the only guy who was any different.
How incredibly naive.
It’s one thing to pick the low hanging fruit but planting seeds and making them grow is another thing altogether. California didn’t just wake up one morning with a larger enough majority to get the job done. There was a lot of campaigning done by Democrats and a lot of punishing Republican mistakes.
The national Democratic leadership and our consultants are lacking in the drive to do anything but fundraising off of Republican atrocities. They expect the people to motivate themselves to vote for a vapid party which is incapable even of fighting for its own survival. It’s a party that expects the media or the referees to carry out sustained political campaigns against Republicans rather than engaging in politics and beating Republicans, especially at the state and local level which they’ve largely conceded to the GOP.
But I think you also reflect a fundamental error in Democratic thinking: the party’s operating principles seem to be to simply be the lesser evil. The party demands loyalty and sacrifice from its base but offers precious little in return. People’s loyalty and support n an election is earned—the party’s base isn’t a bunch of feudal serfs and it has been a fatal error to treat them that way.
There’s a point where even the most committed person gets tired of being taken for granted. Hillary was the worst national presidential candidate in decades. She wanted Trump as the Republican nominee because she knew he was the only Republican she could beat; just as Hillary was the only Democrat that Trump could hope to best. She wouldn’t even demean herself by going to Wisconsin.
Hillary had one job: Her job was to hold the Obama coalition together. She could’ve reached out to them with more than selfies but she assumed, as you apparently do, that the responsibility for winning and stopping someone like Trump is on the voter instead of the politician. That’s how we got Trump.
What power??? Democrats have none. They likely could not pass a straight abortion bill because 6 Senate members and 22 house members wouldn't support it. Are you that dumb????
I read that Collins and Murkowski introduced an amendment to the Womens Health Protection Act bill that would effectively codify Roe v Wade. It is probably too slim of a reed but perhaps those two can be convinced to a carve out of the filibuster for this narrow issue. Then the Dems wouldn't need Sinema and Manchin at all.
It would be an encouraging sign but for Biden’s statement about an hour ago that he (and presumably the party he leads) have chosen the filibuster over reproductive rights.
I agree that the filibuster should go and the decision should be overturned, but do you think either has a prayer of passing this Congress
Of course not. Democrats have only 48 senators.
46, maybe 46.5, depending on how Angus King is feeling.
So you're going to give your money to the Greens instead? Are you auditioning to become their chairman?
The reason why Roe is being repealed is actually quite simple. Since 1973 Republican presidents got to select 12 justices to the Supreme Court and the Democrats only four. And eventually the GOP found five such justices out of that 12 to repeal Roe when before they could not, which only served to radicalize the party in the process and drove them to create the Federalist Society in order to find judges who would repeal Roe which looks like it will happen. The amazing thing, given how contentious the question, is that Roe lasted for this long. So in other words it was sheer dumb luck (plus a little skullduggery in 2000 and 2016).
And if that still doesn't convince you support that damned old Democratic Party consider this: of the 14 states that will allow abortions to still take place, all of them are controlled by the Democratic Party. if they weren't, they would banned the practice.
As someone who used to be a third-party activist, all I can say while I understand your angst the bottom line is the structure of American politics allows for just two major parties. One is against abortion rights and the other for it and the Democrats are for them aside from outliers. And if that matters to you but you still what to cut your nose off to spite your face, then all I can say is you better dust off your Jill Stein button and wallow in your irrelevancy.
I think you’re confusing cause and effect. At the congressional level, we lose elections because the party leadership selects candidates who can self-finance or who are centrist instead of candidates who can win. And the Democratic Party also treats incumbents like barons who need to be supported without the party making demands. The fact that the Democrats have been in a downward spiral for decades is the problem, not a reason for increasing support of failed leaders.
At the presidential level, we lose because Democrats aren’t good at politics and are even worse at delivering on campaign promises and are not very good at reforming the institutional basis against them when they’re in power. You’ll notice that the response to this decision on Roe has been to hold a “symbolic” vote rather than to expand the court, admit D.C. as a state, or suspend the filibuster so that the vote on women’s rights because a real vote, rather than just political theater.
And, on the subject of the Democratic Party’s leadership, it worth noting that at this exact moment when we’ve learned that Roe v. Wade is going to be overruled, the Democratic House leadership has chosen to reiterate and strengthen its support for Henry Cuellar, an anti-abortion politician who is also under investigation for being corrupt.
This post by Alex Pareene really expresses a lot of what I’ve been trying to say about the Democrats in ways that are much clear and well thought out than my own writing:
https://theap.substack.com/p/the-institutionalists-dilemma?s=w
Srsly? You're buying that? Alito can say that all he wants but there's nothing stopping anyone from using this decision as a precedent. I expect to see that, and sooner rather than later.
Puh-leeze. They all lied their way into the Court proclaiming that Roe was settled precedent.
And they’re lying now.
As W. Bush so memorably said, “Fool me once, shame on . . . shame on you. Fool me—you can't get fooled again.”
I have to say Kevin, when it comes to taking Republicans at their word no matter what, Charlie Brown could be considered a master at sniffing out when the ball is about to be pulled from him compared to you.
None of this makes up for the loss of abortion rights. But it's at least something that in order to overturn Roe, Alito felt like the only way to make it acceptable was to soften the blow by clarifying that he didn't support a steady trawl through Supreme Court precedent, overturning every progressive decision along the way that might somehow be related to Roe. It's not much, and in practice there's no telling if he'll stick to his word, but it's something.
It doesn't matter whether Altio sticks to his word or not. If Roe can be repealed, so can Oberfell. Hell there are some racists yesterday who want to overturn Brown. You see where this is all going?
Sudden Increase in Searches for Vasectomy Over Past 24 hrs,
https://trends.google.com/trends/explore?q=%2Fm%2F0j33b&geo=US&date=now%207-d#TIMESERIES
"The fact that the Democrats have been in a downward spiral for decades is the problem, not a reason for increasing support of failed leaders."
The Democratic Party which controls the White House, both houses of Congress having captured both of them over the past years. Which has won more votes in seven out of the past eight Presidential elections. Real downward spiral there, no?
Of all the Supreme Court justices and other court judges nominated by Democrats, all of them supported Roe.
So I read Pareen's article like you asked. Here's a section I'm quoting:
"For my entire adult life, beginning with Bush v. Gore, our governing institutions have been avowedly antidemocratic and the left-of-center party has had no answer for that plain fact; no strategy, no plan, except to beg the electorate to give them governing majorities, which they then fail to use to reform the antidemocratic governing institutions. They often have perfectly plausible excuses for why they couldn’t do better. But that commitment to our existing institutions means they can’t credibly claim to have an answer to this moment. “Give us (another) majority and hope Clarence Thomas dies” is a best-case scenario, but not exactly a sales pitch.
Now I would ask him and you too: Then what? What's your alternative?
Yes they are "institutionalists" because yes they believe in these "institutions" I don't think they would disagree that they need to work better. But they're not the answer then what? The streets? Violence? Given up on politics and voting all together because everything doesn't work? I know who would love to the see the Left become so nihlistic and its not their allies.
Many on the Right felt the same way about the Republican Party for a long time (and many still do) but they understood that was the only national political institution that was available to put their programme into action (unless you were a militia type) and thus found a candidate who was popular enough with enough voters and took it over. The Left could do the same but they simply don't have anyone like that (not even Bernie, or AOC) someone who wasn't a politician but has good political and communication skills. Someone like Zilensky. Maybe after Roe is repealed, someone could emerge like that. We'll see. But that to me sounds like a better strategy then wallowing in pity.
Amazing how the Left doesn't blame the party that wants to repeal Roe but the one that actually wants to keep it. If you think you can make it work better, that's fine but from Leftists they're acting like they're past that point. Fine. The Nina Turner for President bandwagon just went thataway.