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.
And if Alito is lying about Lochner? What then?
Susan Collins will be very, very concerned. And disappointed, too!
She'll probably write a sternly worded email and send it to her drafts folder.
Nope; she made her pearl-clutching public.
https://www.nbcnews.com/politics/congress/sen-collins-completely-inconsistent-gorsuch-kavanaugh-support-overturn-rcna27099
He is lying. Just like he lied when he said Roe was settled law. All of the courts opinions based on privacy are likely to be overturned at the first available opportunity.
Telling how every time the conservatives on the court come to an obviously egregiously partisan decision, they say the decision should not be construed as precedent.
Kevin, I think you are grasping at straws. After the Trumpified SCOTUS rips up Roe v. Wade, they'll go after Obergefell v. Hodges (same-sex marriage), Loving v. Virginia (interracial marriage) and Griswold v. Connecticut (contraceptives).
Some of them have already said as much.
41 states same sex marriage is legal: so who cares
interracial marriage: my view it should be banned, but it's against individual rights to interfer.
contraceptives: this is bigger than abortion and men play a larger role. Women try and trap men with kids
Problem with libtards is thinking classical bourgeois patriarchy is only thing that exists. They don't realize socialism burst from patriarchal foundations of The commons of r1b/r1a Eurasian foundation. Your outdated notions are pathetic.
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You want to ban interracial marriage, but you think OTHER people have outdated notions?
JFC.
Don't. Feed. The. Troll. He lives for your hatred, tears and middle fingers, like Freddy Krueger or the Emperor in Star Wars. Just ignore his sad demented ass until he finally dies in real life.
Not sure they will go after Loving but I agree with you that Griswold, Lawrence, and Obergefell are on shaky grounds after this decision. Kevin does appear to be devoted to finding an optimistic straw to grasp here.
Griswold would be a disaster for them.
It’s really the red states that will be setting the agenda. There does seem to be a Republican mini-swell of agitation against “race mixing.” Whether that translates into a revival of restrictions on interracial marriage is a little unclear, not the least because the Virginia statute incorporated a lot of technical points and definitions (particularly about racial classification) that were running all through the Virginia statute books but are presumably no longer there. And also there were a lot of shared cultural understandings about race and identity that were unspoken but which provided necessary context to the anti race mixing prohibition.
But my assumption is that should a law criminalizing interracial sex including the necessary definitions get passed by a red state, I think there’s a very high likelihood that it would be upheld by this court. The one thing that might save Loving is its foundation in marriage as a fundamental right and its grounding in what little remains of the 14th amendment.
Similarly, I doubt whether the court will reach out for a case on contraception but if there’s a trend of red states banning it, then the court will eventually have to deal with that, too. My prediction is that it would be upheld under this case’s rationale regardless of any attempt to limit its scope.
I think there’s
I would assume they'd stop short of interracial marriage. I mean only a fringy part of the rightest of fringes would openly oppose that. If the GOP were smart* they'd try to make some inroads into the African American church communities by going after gay marriage but stopping with the racism that some of the base adore.
* Say what you will, they have a better sense of their bases innermost desires than the Democrats seem to.
I agree -- this is bait and switch. They're promising it's not going to make any difference to the others and then, abracadabra, they're using the rationale in this decision to kill all those others that were going to be "excluded" or "unaffected".
Surprise!!!
And then move onto Engle v. Vitale and Brown v. Topeka.
Oh, the knives are out for Engle already.
Have you heard of any republican speaking out against interracial marriage anytime recently? Who is it you think would push to overturn Loving?
Roe permitted the state to impose forced birth after viability (absent a health reason), so there was never a unrestricted right to abortion. Alito's decision just leaves the line-drawing to state legislatures rather than the Supreme Court.
Until the next unified Republican federal government outlaws abortion nationally, which Alito will think is fine and dandy.
Dude, they could have banned abortions years ago. Politics is why they didn't
You just don't think when you post.
Yep. And if a GOP-controlled Senate has to ditch the filibuster to ram it through, they will do so in a nanosecond.
Then when they lose power.......Your point is dead. The GOP thought in January 1929 they would never lose power.....shit happens, the world turns.
Assuming they haven't gotten to the point where elections are merely a charade. That is clearly on their agenda in some states, others will follow.
So it's perfectly all right - with you! (& presumably all gd rapists) that women & girls will be denied rights over their own bodies in "just" some states.
Our rights - all of them that are basic rights - should be guaranteed in the UK United States.
Yes, states should & do determine some laws, but we cannot become the supposed loose confederation of states that some still claim it always was.
And I have seen & heard enough to believe that the dishonest people who value THEIR rights above all will ultimately deny the rest of us the "right to privacy" that it is absurd to deny - especially while some are still whining about their freedoms being abrogated.
Wish we were living in the era of Typhoid Mary & quarantines (not the kind being employed in China).
Your point is irrelevant. You just don't like the decision. Considering women are more antiabortion than men, further shows your ignorance.
You are an all around bigot (no one thinks that trump is a "hew boy" or respects Jews; he tries to emulate his idol, Hitler).
And I'm not ignorant enough to believe your insults & blatant lies - especially not about what the majority of women think about this subject.
Musk loves individuals like you, maybe you should spend more time on Twitter. You've insulted enough people here.
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Please don't feed the racist, anti-semitic semi-literate troll. It only leaves its droppings to get attention.
Yes, I have known that for a long time. But he attacked me; I otherwise do my very best to avoid interacting with him due to his venomous views.
I'm sure you're aware of this, but, he wants your attacks. He wants any kind of attention. You're free to give him what he desires, I guess...
I don't usually bother. But it appears that he was more annoying to more on that thread today than usual. Dunno, I realize that he's just a troll out to get a rise out of others, but he's do much more offensive than most of the juveniles online...
Anyway, after some thought, I may have confounded him, although not with one of my favorite Arabic phrases. My Spanish ones would be too easy.
Hitler was a jew
Don't feed the troll. There's absolutely no point in it.
I appreciate that you have strong feelings, but nothing about the poster you respond to suggests there's a shred of good faith about him.
But of course.
And my "feelings" are no stronger than those of most people I have known - many of them activists, not solely online. I am simply appalled by the person spewing insults & the absence of an ignore button or any rules & moderation - not that I don't appreciate Kevin Drum's free & hopeful opinions!
They were already denied rights over their bodies under Roe post-viability. The new decision just allows the states to draw the lines anywhere between conception and birth. New York has already decriminalized it regardless of the stage of gestation.
Again "just" is precisely what is not comprehended as the problem - ever-changing & disparate political decisions, many mostly by men - instead of our full rights over our bodies. You have not experienced anything like that encountered by many women of my generation.
Alito, Kavanaugh lie about everything. Not to mention that this decision alone will kill many women, especially younger or poorer women. It also puts in jeopardy the health care of women with difficult pregnancies. I don't know how any doctor in a state like Texas will be able to deliver safe obstetrical care--basically for anyone.
And how will they teach obstetric care in medical school?
"We are going to skip this procedure, and this one, and this one. You have to let the patient die."
Well that will be the law
A few counter points, Kevin Pangloss:
1) Pretty certain Alito claimed to respect Roe as the settled law of the land during his confirmation hearings, so he's pretty obviously a liar.
2) Alito says due process only applies to rights that are well established in American history and tradition.
3) Alito also says that stare decisis should only apply to case law that's at least years old.
So yeah... whatever b/s/ Alito might spout about "this only applies to abortion," the Federalist Five are gonna be going after Obergefell, Lawrence, Loving, Griswold... and that 50-year rule will suddenly turn into a 75- or 100-year rule when they start going after the Warren Court due-process precedents.
* that's at least 50 years old.
"...in practice there's no telling if he'll stick to his word, but it's something."
Give it up, bro. You never fail to go the extra mile for Republicans, searching for some sign of good faith in their malevolence. There is no good faith. I watched a number of those justices swear under oath in front of the Senate and the entire nation that they regarded Roe as "settled law." They lied then. They're lying now. You lying to yourself if you think what they say now will be any restraint on what they do next time. They'll do whatever the hell they want. It's getting late to be that gullible. There is no time for wishful thinking. The war on our rights is on. We need Zelenskys, not Chamberlains.
This is an extremely optimistic interpretation. Just because Justice Alito says that the current decision doesn't affect other rights - for now - doesn't mean the Supreme Court has promised to protect those rights if an opportunity arises to overturn them.
"... our conclusion that the Constitution does not confer such a right does not undermine them in anyway."
That's really sloppy phrasing, particularly for a conservative.
The Constitution does not confer any rights, which in American legal theory exist prior to and independently of any government. At most, the Constitution recognizes rights, but it does not confer them.
This is also consistent with the Ninth Amendment, which reads, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
(Note that elsewhere in Alito's ramblings he violates the Ninth Amendment by insisting that because no right to abortion can be found in the Constitution, the Constitution therefore denies and disparages it.)
All rights are a creation of a legal body. Period. The point is not wrong. It's the same as any "right". Rights come and go all the time. You just don't like the decision.
Good catch! I have not yet read the draft ruling, but imagine that it's just as shaky and full of legal holes as other trump court rulings have been.
And yet, there's no way to appeal or reject a SCOTUS ruling, once it comes out. Other than letting the offensive justices die off and replace them with better ones. Say another half century or so.
This is no way to run a democracy.
The opinion will be awful, but what is worse is the Dem/Liberal reaction.
The long arc of history of the US has been what is now obviously a poor, sloppy compromise.
In exchange for the benefits of being a really large country, the urban areas gave away way, way too much power in our political structure to ridiculous rural conservative voters and their uninformed policies.
Long after everyone posting on this boards are dead, if the US is still one country we will be in the same stupid position, the informed super-majority trying to drag an ignorant minority kicking and screaming into whatever century we happen to be in.
These ignoramuses will vote for Trump twice, its really all you need to know. It would be equivalent to a shareholder of General Motors voting to elect a board of directors who are in favor of going back to horses.
I can't believe the surprise and shock, do people really think that these anti-abortion Trumpists are secretly good people who care about public policy?
Trump has dementia. They ain't ever voting for that jew boy again.
Kevin...
Please consider blocking fascist drivel like this last post by SOG.
Kevin doesn't read the comments or doesn't care that trolls exist here to shit on everyone else. Just ignore the troll. It's hard to do, like a crying baby in the room. But unlike a crying baby, SOG (and the other trolls on here) will hopefully die a lot sooner.
Sorry to hear that. Now that I know Kevin doesn't read replies, I won't bother to read what he has to say, either.
But he does read comments & occasionally replies - he has also commented in his subsequent items on issues raised by commenter about previous blog subjects.
He probably
really believes in free speech
his
Sorry- my cat jumped on me for attention
He understandably expects his followers to be mature enough to ignore trolls, however demented & illogical & bigoted, but the last few years have made me, & likely others, tired of tolerating online abuse & of making an effort to avoid seeing or responding to it for fear of doubling our blood pressure.
I canceled my Facebook account & my Twitter account has long been inactive, so at least some of the objectionable stuff doesn't get my attention now.
He'll just re-register under a new name. Do you really think this shit commenting software will allow Kevin to truly ban the troll? Ignore him. Seriously. That's the only thing that works. But this board doesn't have the self-control to refrain from engaging him, so here we are.
At the time the constitution was being debated and ratified, the population and economic discrepancy between the big (now even more heavily urban) was nowhere near as large. The conundrum is that it’s become practically impossible to amend the constitution. It’s essentially impossible to rectify that imbalance in power because the amendment process give small rural states an effective veto over changes to the senate and electoral college.
There’s really no way to achieve a system of majority rule and no way that the Democrats are even going to try. In the near term, where they are formally in office or not, the Republicans would seem to be the permanent ruling party. Where that leaves the majority of Americans going forward is anybody's guess.
Try for what idiot. Democrats have tried for years to run on this type of stuff and it doesn't work. Your post is ignorant and lazy. You ignore history.
"There’s really no way to achieve a system of majority rule and no way that the Democrats are even going to try"
DC could be made a state with a simple majority act of congress. That would add two new urban senators, and address at least some of the skew.
Nope. Fossil fuel states like WV, Idaho, Wyoming and Alaska disbanded back into territories. DC is no state.
That's true. Just as it's also true that there were more than a few other things that the Democrats could have done, if they'd wanted to move closer to majority rule or even just stay in power with a majority of the vote. But, clearly, what's important to them is just fundraising.
The Democratic Party was handed an immense gift in 2018 on the promise of accountably and dealing with the Republican mess. Instead of acting (expand USSC, expand courts generally, add D.C. as a state, accountability) they simply punted and hoped that somebody else would do the dirty work. They've never even gotten Trump's tax returns.
I know it's a tried old saying but, really, if you aren't for yourself, how can you expect others to be for you?
The Democrats should have stuck with Dean's 50 state strategy instead of becoming a tiny tent party of urban progressives under Obama.
I agree with that generally but I’d point out that a great many of the policies that are popular with urban progressives are also very broadly popular. The difficulty with the 50 states strategy was the unwillingness of Democratic politicians to tie themselves to the party rather than triangulating against the party by building their individual “brand” at the party’s expense.
Yeah, I wish I could be that optimistic. Fool me once, yadda yadda yadda. All these judges said during their confirmations that they would "respect established precedent" and they threw that out the window as soon as they had a bullet proof majority. Here in Texas after the bounty-hunter-abortion-ban law was glossed over by SCOTUS we already had conservative lawyers and government officials slobbering over their plans to bring similar cases against Obergefell and Lawrence to this SCOTUS; I'm sure other red states will do the same. In the last round of confirmations we had our Senator Cornyn asking whether marriage equality shouldn't be reverted to something determined on a "state by state" basis. They have too many dominos in place and it's hard to see they're not going to push their Christofacism as far as it can go.
But thank goodness we've got all the moderate neoliberal straight white dudes out there who can shrug and say "Who woulda thought?" while millions of marginalized lives are destroyed or ended in the upheaval.
Again, 41 states have gay marriage. 5-4 decision. Overturn. Bring it back later???? Does it really matter??? That is my problem with your line of reasoning. You use issues to get out the vote. Vote by state. Rally the "cause".
Preemptive Don't Feed The Troll. He exists purely to feast on your hatred of him. Don't give him the satisfaction.
Hey, I'm murdering unconceived babies even now. Those little guys are potential human life. Since I'm rather attached to my testicles, this is a frightening decision.
Oh, oh lord hahahahaha. Don't be stupid, ha!
Anyhow try to get these justices killed replace them with better and redecide it. So next time you get covid (BA4 or 5), cough on Ginny.
Alito seems to have nuked the underlying principle allowing for Gay Marriage, contraception, etc., then puts in a caveat saying this ruling doesn't affect those precedents. That doesn't hold water.
As for "potential life"....If Alito really believed that argument, then he'd be all in for a lot of government regulations.
So what??? How about nuking a specific law made in 2010 by them.. The supreme court is heading to termination.
No, no, ‘potential life’ must be vigorously protected in law, actual life, not. You’re on your own once you take that first breath.
The conservative will do as the conservative desires. Do not take Alito for his word, as his word is worthless than the paper it is printed on. Might I remind you that conservative SCOTUS has routinely curtailed the scope of power of the regulators (FDA, CDC, EPA, etc.) that might have otherwise benefitted the health of potential life?
Also, it is not without hypocrisy that Alito would chauvinistically place the value of potential life high than that of an existing life.
But as I said, the conservative will do as the conservative desires. He will kill humans to save the unborn. Logic need not apply.
You try to hard
Apropos of nothing, is there any way to shut off "Shades"? He's really creaming in his pants over all these mentions of female parts, and it's stinking up the "Comments" section.
Your pissed because I am giving you the real leftist way. Nobody has rights. It's the tribes and it's clannish background. Abortion is the matter of the commons. It may be restricted at times, it may be liberalized at times. Abortions for certain flaws may be required at certain times. How many retards will be born that should have been aborted??? Abortion is the domain of the commons, the tribe.
Fred Engels believed capitalism and inheritance turned people gay. He may have been right looking at the aristocracy.
he's so moronic and unintelligible that i never bother reading his posts, but they do take up space and make it more annoying to scroll through real comments when he gets riled up. the best solution (since a ban would just bring him back under another troll name) would be up/down voting and comment sorting. i'm commenting at you, kevin!
Yes please, Kevin.
If you have a bit of technical capability then yes because the comments plug-in is written in such a way to support filtering if the admin enables it. I do not see anything that person posts or any responses to them which makes the occasional comment like yours seem a bit strange (only because of the lack of context). I use a chrome extension called TamperMonkey and have the following code snippet in the filter: window.jQuery('.comment-author-spadesofgrey').remove();
FWIW I also resize the main content to be wider.
Kevin is trolling his own site again.
There's zero chance he's moving Maine to try to pull a Kristof for the title Most Pretend-Gullible Senator.
A Tiny bit sounds right.
From the language you quote, Alito is very specifically excluding Lawrence v Texas (what you do consensually in your bedroom is not the government's business) and Obergefell v. Hodges (gay marriage) from the rights he says this decision doesn't undermine. I suspect that's very intentional.
As for Lochner, Alito seems to say it's "freewheeling judicial policymaking" that he dislikes, not the decision itself. Easy to imagine him at the cocktail parties this weekend saying "there are lots of other good things about Lochner, I just don't like that aspect".
These guys always leave themselves an out. We know that.
And yet, the reasoning and constitutional principles underlying those cases (and Griswold) are identical to the rationale of Roe. There’s no principled way to distinguish those cases and Alioto never even tries. It’s just a “throw away” line.
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.
I'd love to agree with you here, but the experience with Bush v. Gore suggests that you're being overly optimistic here, Kevin. Rehnquist tried his best in 2000 to make it clear that the Court's decision applied in only that circumstance, and should not be taken as precedent. Yet it wasn't too long before other judges started doing just that — and I don't have to stretch my imagination to see how more than a few right-wing judges who hate Griswold, Obergefell, etc. enough to be eager to give it a shot. And given how Alito and his clique of right-wing court clowns just owned up to perjuring themselves in their testimony before the Senate, I wouldn't trust that he is "persuaded" by the cases they make to reverse them.
Don’t know why the right wingers are so upset about the Supreme’s ruling getting leaked. Thought they were pretty adamant the Constitution contained no right to privacy.
😉
This is such pathetic whistling in the dark. This column belong right up there with "Rest east! Now that he has the Sudetenland, Herr Hitler's territorial ambitions should be completely satisfied."
Oh, Kevin, you don't REALLY believe that, do you? Seriously?
Er, one of the esteemed judges he quotes hung women for being....witches.
Yes, yes he did.
Sir Matthew Hale: https://www.jstor.org/stable/1409846
Alito's “respect for the teachings of history" means what, exactly?
His opinion is riddled with wooly concepts lacking sharp definition. And the logic used is sloppy throughout (e.g. banning abortion is okay because there's health insurance and adoption agencies).
Proves my case that the legal profession is way less intellectual than any scientific or technical fields of study and practice. Lawyers are all about language. They went into law because they couldn't cut it in math classes. They are not that smart. They are poets. Entertaining, but not precise or consistent.
Alito is a liar.
Um, 2 points here:
1. Bush v Gore gave the same assertions/caveats, but has, nonetheless been cited some 200 times as precedent in various cases. Jesus, Kevin, it wasn't _that_ long ago and I know you were a blogger at the time, so not sure how you have forgotten that.
2. Alito and the other 4 complete rightwing hacks (and Roberts is at least half a hack) on court are lying sacks of crap with no intellectual integrity or consistency (thus the term "hack").
Jesus, Kevin, have you been spending too much time with Susan Collins or something? Sure, maybe "Alito, in his anxiety to put together a majority, made it very, very clear that his decision is about abortion and nothing else". But that in no way means he won't continue, along with the extremists that control the GOP and SCOTUS, to push further and further. The just staged a fucking coup attempt. You think some vaguely conciliatory language will bind Alito or any of the justices going forward? That's insanity.
Kevin, with respect, this distinction is hot garbage. It relies on the word of a man who straight-up lied to Congress, and it ignores the fact that this court has not conceded any limits on their ability to trash any precedent they don't like--including against the expressed intent of Congress as with the latest VRA decision.
That’s adorable that Sammy thinks he will draw a line that can’t be crossed. This court was designed to roll back the years. It may not cross all the uncrossable lines, but it’s silly to think this court stops here.
It's worth noting again that of 6 conservative justices, 5 of them would never have been appointed except for the fact that the Electoral College did not favor the popular winners in 2000 and 2016. To restate, 5 conservative justices were appointed in a period of 3 decades - 8 elections - in which the conservative Presidential candidate lost every time but once, and that was a reelection of a sitting President who lost the popular vote the first time he ran.
We're still paying for that 2000 election. I hope all those reporters who jeered Gore in New Hampshire and misrepresented him so badly are finally feeling some remorse for their pathetic performance back then and finally understand just a little what has cost us.
Yeah, but 2000 was a historically normal blip. 2016 was not.
Don't Feed The Troll.
Problem with this board is, your traditional Republicans. Much like Kevin. Carter Democrats supports overturning Roe and Ober. No more. New Deal Dixiecrats support contraception. Period as polls show. Putting the band back together will also help in the midwest as well. Political parties are coalitions.
Northern Republicans will have to decide if you want to stay or go independent. You may find you don't have much political clout. When ecological, financial and health care reforms are passed, woe me about "legal abortion".
I know a dixiecrats in northeast Florida registered democrat. Voted Gore, Bush,,Obama,Obama,Trump,Trump. Big into climate change and disability rights.
Fwiw, works for a company I work sales with.
Don't Feed The Troll.
I'm still holding out hope that the leaker was a conservative who is pissed that the current document is the reverse of what's been leaked.
But, thanks to Occam's Razor, I do have to admit that it's more likely that Roe is going away...