Kevin Drum

Since court expansion is in the news, here's a quick historical note about "The Switch in Time That Saved Nine."

When FDR took office and began putting together the New Deal, he he knew that his presidency faced a Supreme Court with a solid conservative majority. In particular, it featured the "Four Horsemen," a clique of economic die-hards who almost never supported federal or state intrusion into the workplace. However, despite FDR's fears, nothing much happened during his first few years, perhaps because even the Horsemen understood the emergency posed by the Great Depression.

But in 1935 that changed. The Court sent down a flurry of decisions gutting various federal laws, the most important of which were a handful of provisions of the National Industrial Recovery Act, a cornerstone of the New Deal. FDR fumed, but NIRA was scheduled to expire soon anyway so he said little publicly. He then went on to win a landslide reelection on November 3, 1936.

Secure in this demonstration of his popularity, FDR began thinking about how to bring the Court to heel. Working in secret—which would prove to be a mistake—he eventually formulated a plan that would add a justice for every justice over 70. This would give him a reliable liberal majority.

FDR announced his plan on February 5, 1937. On March 29 the Court handed down its decision in West Coast Hotel v. Parrish, a case concerning a minimum wage law in Washington State. And guess what? One of the conservatives who often voted with the Horsemen switched to the liberal side and upheld the minimum wage. That vote change was the "switch in time," and since it doomed FDR's scheme it was said to have "saved nine."

But wait. Modern historians mostly agree that this isn't what actually happened. The Supreme Court held its conference on West Coast Hotel on December 19, 1936, nearly two months before FDR announced his court plan. That was when the vote switch happened, and since nobody knew at the time what FDR was up to, his threat to pack the court obviously had nothing to do with it.

The next big set of New Deal cases are referred to collectively as the Labor Board Cases. All of them were decided in the government's favor, but the conference for those cases was held on February 27, by which time it was pretty clear that the court packing scheme was already doomed. It's unlikely that FDR's threats influenced the vote.

And there's one more thing: the 1935 cases that so disturbed FDR were almost all unanimous. There was no reactionary minority thwarting the will of the people, it was the entire Court. Even the most liberal members agreed that certain features of the New Deal had simply gone too far.

The bottom line here is that the Court almost certainly revised its thinking all by itself. FDR's threats to its integrity had little or nothing to do with it. And a few months later one of the Horsemen retired and a couple of the others started to vote more liberally. FDR had the Court he wanted, and he would have gotten it even if he had done nothing.

POSTSCRIPT: And what's the lesson for today? I'm not sure there is one. It shows that threats didn't have any effect on the Court, but I don't think anyone believes that threats would have any effect on today's ideologues anyway. If you're going to pack the court, the only way to do it is to actually do it.

Aside from that it's just an interesting historical tidbit.

The New York Time informs me that the latest craze among our youth is the "0.5 selfie"—so named because you tap 0.5 on your smartphone to engage wide angle mode and produce a distorted picture.

But that's nothing. Behold the old-school 0.2 selfie. No smartphone required.

UPDATE: This report is probably wrong. More here.

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The Associated Press reports that about 1.7 million voters switched to a different political party in 2021:

Over the last year, roughly two-thirds of the 1.7 million voters who changed their party affiliation shifted to the Republican Party. In all, more than 1 million people became Republicans compared to about 630,000 who became Democrats.

Why so many new Republicans?

Ben Smith, who lives in suburban Larimer County, Colorado, north of Denver, said he reluctantly registered as a Republican earlier in the year after becoming increasingly concerned about the Democrats’ support in some localities for mandatory COVID-19 vaccines, the party’s inability to quell violent crime and its frequent focus on racial justice....“It’s more so a rejection of the left than embracing the right,” said Smith.

....39-year-old homemaker Jessica Kroells says she can no longer vote for Democrats, despite being a reliable Democratic voter up until 2016....“The party itself is no longer Democrat, it’s progressive socialism,” she said, specifically condemning Biden’s plan to eliminate billions of dollars in student debt.

I don't know if this is typical, but it jibes with my personal experience. Among people who are a little fuzzy about their party ID, many of them find the Democratic Party scarier than the Republican Party. Given the state of the modern GOP, that's quite an indictment.

The modern Republican Party has two main branches. The first is the social conservative branch, which cares about abortion, guns, sex, and so forth. The second is the business branch, which cares mostly about things like taxes and regulations.

Likewise, there are two main branches of conservative legal theory. The first is originalism, which says the Constitution should be interpreted in the way the framers originally understood it. Social conservatives rely heavily on originalist interpretations of the Constitution for obvious reasons: the Constitution was written more than 200 years ago, at a time when virtually everyone was socially conservative by modern standards. Originalism is almost guaranteed to produce socially conservative results.

The second branch of conservative legal theory is the Law and Economics movement, which applies economic reasoning to the law and relies on things like cost-benefit analysis, calculations of consumer welfare, and financial efficiency. It's important because, surprisingly, the Constitution isn't especially conservative when it comes to economics and regulation: Article I gives Congress plenary authority over taxation while the interstate commerce clause gives Congress broad authority over business regulation (and has almost from the beginning). This means that business conservatives need something besides originalism, and that's where Law and Economics comes in. It took shape beginning in the late '70s, and by now about half of all federal judges have attended one of the two-week seminars on the subject held by the Manne Economics Institute for Federal Judges.

All of this throat clearing is in service of a simple point: both of these legal theories are fairly easy to understand and explain. What's more, to most people they make sense. There are lots of problems with originalism below the surface, but the notion that original intent matters is pretty persuasive if you don't know about those problems. Likewise, it also makes sense that you should understand economic consequences if you're going to make law in the realm of economics.

Now, then, let's compare that to Dahlia Lithwick's defense of liberal lawmaking in a recent interview with Ezra Klein. Apologies for the long excerpt, but it's key to the point I'm going to make:

There’s a really, really robust set of rights that is not in the Bill of Rights. It’s lashed to the sort of liberty interests that are fleshed out with the 14th Amendment.

And this is a set of rights, and it’s so important to understand this, and in some sense, so frustrating the Democrats at those Ketanji Brown Jackson hearings didn’t argue this. They’re actually definitional when you were trying to think about what it meant to emancipate former slaves, because if you were former slaves and suddenly you were free, all of the free speech rights in the world and all of the right to bear arms in the world, even using a militia clause, all of those rights are meaningless if you do not have, fundamentally, bodily autonomy and family autonomy.

And so when you look at the drafting of the 14th Amendment and so much of this history, I just want to point to Peggy Cooper Davis, who has done amazing scholarship. Try to put meat on the bones of what it meant to truly be free. And what they were doing when they were thinking about the sort of liberty interest protected by the 14th Amendment that the rest of the Constitution didn’t get at, it was the idea that if somebody can rape your wife, you are not free. If families could be separated, if your children could be sold into slavery over your objections, you were not free.

If husbands and wives were treated as chattel and they were economic instrumentalities, but they were not, in fact, a family unit, they were not free. And there’s amazing, heartbreakingly beautiful language about trying to enforce that idea that the cornerstone of freedom is the ability to define what a family is, to marry who you love, to raise children as you see fit.

And if this all sounds still like peanut butter and cotton candy, I would just say that the whole line of cases that follows that Myers, Pierce, a whole bunch of cases that have to do with how your children are educated, how they are raised, in some sense, it has its apogee in Loving v. Virginia, the anti-miscegenation case that says you cannot be free if you cannot construct the family that you want to construct.

And all of that becomes this kind of unenumerated rights substantive due process. It’s so fundamental to what it meant to be free, and to suggest that, oh, you know Griswold v. Connecticut was invented out of plain air by these weird hippie justices who wanted to give people the right to use contraception is to ignore all of that framing language and ideology about what the 14th Amendment sought to protect in terms of what your liberty interests were.

Etc.

Unless you're already ensconced in the legal world, I assume you didn't really understand a word of that. Right? And that's not a hit on Lithwick—although she could have done better. The fact is that the liberal theory she's talking about here—using the language of substantive due process and "bodily autonomy"—is neither simple nor persuasive to the ordinary schmoe. Nobody ever explains it well at a layman's level. Conservatives say, "Abortion isn't mentioned anywhere in the Constitution and it was illegal almost everywhere before 1973." In response, liberals stutter and stammer and reel off a few hundred incomprehensible words about a complicated and unintuitive legal doctrine.

So do I have a point to make here, as I promised? Indeed I do: we liberals need to talk prettier. Constitutional law is just one area in which liberals, regardless of whether they're right or wrong, speak in an opaque, convoluted language that ordinary people can barely make sense of. If we want to win the war of public opinion—and in a democracy that's really the only war that matters—we need to do better.

Last night I wrote that liberals need to forcefully address the question of whether a fetus is a human life that deserves the same legal protections as any other human life. Primarily this is because it's the ground on which abortion opponents stand, so it can't be ignored. But it's also key to Alito's decision in Dobbs, something he mentions over and over:

Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called “fetal life” and what the law now before us describes as an “unborn human being.”

....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.”...None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion. They are therefore inapposite.

....It is impossible to defend Roe based on prior precedent because all of the precedents Roe cited, including Griswold and Eisenstadt, were critically different for a reason that we have explained: None of those cases involved the destruction of what Roe called “potential life.”

....The most striking feature of the dissent is the absence of any serious discussion of the legitimacy of the States’ interest in protecting fetal life.

Etc.

Alito claims that he's taking no position on the question of fetal life ("our decision is not based on any view about when a State should regard pre-natal life as having rights or legally cognizable interests") but it nonetheless pervades his opinion. In his view, it's the key thing that makes abortion a vitally local decision.

This reasoning doesn't do much for me. Courts hand down decisions all the time that affect human life either directly or indirectly. Regardless, Alito is right in thinking that most people consider the question of life to be the key to abortion politics. And thanks to Alito's opinion, it's now the key to abortion law as well.

Supreme Court precedent has been clear for many years about prayer in public schools: You can't do it in any way that effectively coerces students into participating. Coaches who lead team prayers on the field are very much included in this.

Until now. So pray away, coaches. It's a new day in Supreme Court land.

Just to add to my previous notes, I've read a whole lot of pieces this weekend about how terrible Sam Alito's opinion in Dobbs is; about the misogyny of conservatives; about their ignorance of history; about the Court's lack of democratic legitimacy; about all the other rights that are certain to fall now that Roe is toast; and about bodily autonomy and how it is so in the Constitution.

I'll have more to say about this tomorrow, but what's striking to me is how bad all these columns and essays and think pieces have been. I'm not sure I've read a single one that I'd call lucid or persuasive—and that's despite the fact that my personal view of abortion is about as extreme as it's possible to have.¹

We liberals really need to get our act together. How is it that after 50 years we're apparently still not able to defend abortion in any kind of simple, convincing way that appeals to anyone who's not already on our side?

¹I'm not in favor of any limits on abortion aside from the ordinary regulation applied to any outpatient surgical procedure. In the non-surgical arena, if I had my way abortion pills would be sold over the counter. Nor do I think abortion should be a "difficult" or "agonizing" choice. A fetus isn't a human life and deserves no more legal consideration than your tonsils.² I recognize, of course, that many people disagree with me.

²This is key, and it's a demonstration of the immense polarity in our political life. Conservatives talk endlessly about how abortion snuffs out a human life. That's the whole magilla. But if you read only among liberals, you might not even know this is an issue. We simply don't talk about it.

Why? I don't know how it polls or what effect it has on most people, but it has to be addressed if we want to win the war for public opinion. There are just too many people who care about this and need to hear simple, convincing arguments that a fetus isn't a human life in any reasonable sense of the term. We're cowards if we aren't willing to take that on.

I've long had the notion that center-right voters mostly give Republicans a pass for their rhetoric. Sure, Rs say they want to abolish Social Security, ban abortion, overturn the 2020 election, deport every immigrant, and so forth, but they're just pandering to their lunatic wing. It's the price of entry to the GOP tent, but none of those things ever happen. It's nothing more than idle talk.

Well, one of these things has now happened. Republicans finally got the power to stack the Supreme Court and they did just what their lunatic wing always said they'd do: overturn Roe v. Wade and let states ban abortion. It wasn't just talk after all.

So I wonder what effect Dobbs will have on the kind of voter who checks the box for Republicans because they've always figured their bark was worse than their bite. For moderate types, it should be a wake-up call: If they get the power, Republicans will do exactly what their most extreme members have always said they'd do.

Of course, somebody might have to point this out loudly and persistently. It's too bad we don't have an opposition party ready to step up.

Here in my little patch of Southern California there's been a noticeable recent uptick in mask wearing. But most of that uptick consists of people wearing their masks below their noses, which makes the mask entirely useless.

I wonder what's going on. Have people forgotten that masks have to be pulled up above their noses? Or do they know, but they just aren't doing it?

Has anyone else noticed this?

In the aftermath of the Dobbs decision, some conservatives are talking about passing a national ban on abortion. But I don't think they can do that.

The Constitution gives Congress the power to enact laws concerning certain enumerated topics: bankruptcy, immigration, terrorism, espionage, taxes, counterfeiting, and so on. Generally speaking, however, criminal law is reserved to the states. The exception is for criminal acts that specifically implicate federal interests: murdering a federal officer, for example, or robbing someone on federal property.

So could Congress enact a national ban on abortion? If they can't even pass broad laws against murder or assault, it seems unlikely. This is one reason that current federal abortion law is extremely constrained: The Hyde Amendment prohibits the use of federal funds to pay for abortions and the 2004 Unborn Victims of Violence Act applies to a subset of cases where the underlying crime is a federal offense. Broader applications might be possible using Congress's interstate commerce power—mailing pills across state lines, for example—but that's a long shot.

It's especially a long shot since Sam Alito spent about 20,000 words in Dobbs (a) talking nonstop about state law and its history, (b) giving no indication that the Constitution provides Congress any power over abortion, and (c) specifically denying that the 14th Amendment federalizes either the right or crime of abortion. As for interstate commerce, the current Court has been at pains to rein in the interstate commerce power, not expand it.

This is mere logic, of course, and conservatives on the Supreme Court can just ignore it if they want. Still, there are limits, even for these folks. They just signed onto a huge decision that, in every possible way, supports the idea that abortion is strictly a state issue, not a federal one. They'd have a hard time changing that any time soon.

POSTSCRIPT: Unfortunately, this same reasoning applies to any attempt to "codify Roe." Maybe I'm wrong, but I don't think Congress can do this either. And if they did, the Supreme Court would obviously have no problem striking it down since that would be consistent with the text of Dobbs.