Supreme Court has voted to overturn abortion rights, draft opinion shows

[The Minsky Moment]

The fact that the American right is going on about the evil leftist who must've done it sets up the expectation that it was done by a right-wing actor.

I don't have any particular insight or evidence, but it fits the general pattern.

Maybe but it doesn't seem like anyone has a real clue.

I think it is as simple as the right wing media and pols taking advantage of the informational void to push a clear if factually baseless narrative, secure in the knowledge that responsible media will take no position.  We've known since Goebbels that in the world of propaganda and political messaging, the side with less integrity has a structural advantage.

[Sheilbh]

Also I think the media - especially the American media - is susceptible to reporting a big fight about process and norms, rather than substance.

[Sheilbh]

Really interesting thread from Matt Sitman:

Matthew Sitman
@MatthewSitman
I've been reading about the anti-abortion movement for KYE, especially as it relates to the broader conservative movement and their place in Republican politics, and what's so striking is how undeterred they were by the headwinds they were facing
In 1972, 68% of Republicans thoughts abortion was a private matter between a woman and her doctor; it wasn't until Reagan's second term that, in public polling, Republican voters became more anti-abortion than Democratic ones
Rather than seeing public opinion as inert, and the point of politics as appealing to views that simply were "given," they conceived of their task as changing the terms of debate, moving people to their side, and winning and using power to get their way
One thing I did not know is that Kellyanne Conway was pretty much the go-to Republican pollster on abortion, especially in terms of messaging aimed at women, in part bc she got her start doing ad/marketing work for women's products

It is a really striking example of a minority opinion building a base of support to legitimise itself. Then, because it's a minority opinion, they focused on the courts as the institution most resistant to democratic pushback and majority opinion. As well as states as the forum to push this because it's not a winning issue at a national level.

Over decades they built the intellectual framework to repeal Roe through lots of obiter and law review articles. As well as the role of the Federalist Society in providing a pipeline of non-controversial true believers for the bench as well as a forum for conservatives, law students, law academics, judges, professionals etc to mingle.

And they kept testing - with laws that hugely restricted the access to abortion at a state and strategic litigation - until they now have a court that will back them.

People talk about do the Democrats need to get dirty like the right, is it just comms - and I think it's this stuff they need. I think it was done for a bad cause here - but imagine that style of approach on an issue with majority support over years, such as gun control or campaign finance reform. The infrastructure but also just the ambition doesn't seem to exist in the Democrats.

[Berkut]

Not just abortion. That same strategy got them to repeal the 2nd Amendment as it was written and created a new one, not to mention redefined corporations as people.

[Admiral Yi]

People talk about do the Democrats need to get dirty like the right, is it just comms - and I think it's this stuff they need. I think it was done for a bad cause here - but imagine that style of approach on an issue with majority support over years, such as gun control or campaign finance reform. The infrastructure but also just the ambition doesn't seem to exist in the Democrats.

All that stuff is pointless.  What matters is holding the White House and the Senate when there are vacancies.

[Sheilbh]

All that stuff is pointless.  What matters is holding the White House and the Senate when there are vacancies.

Yeah that's necessary. But it's not enough - Ed Meese said after Casey that it was the biggest failure of the Reagan administration and I think Republicans were burned by Nixon appointees, Souter and O'Connor.

I think that was when they realised they really bought into the Federalist Society as a way of vetting and preparing true believers on the issues they care about, who could credibly get past the Senate (maybe with some Democrat backing). It's part of why Republicans pushed back so strongly against Harriet Miers - she had no links with the Federalist Society, no conservative record. She was a Bush judge which was no longer enough.

[grumbler]

Agree with Sheilbh.  Right-wing success in seizing the courts has a lot more to do with an effective grand strategy than with transient legislative majorities.  As the Coney Barret nomination under a strict deadline showed, the Heritage Society has already named the next few USSC Justices, just waiting for the chance to advance them.

[Admiral Yi]

All that stuff is pointless.  What matters is holding the White House and the Senate when there are vacancies.

Yeah that's necessary. But it's not enough - Ed Meese said after Casey that it was the biggest failure of the Reagan administration and I think Republicans were burned by Nixon appointees, Souter and O'Connor.

I think that was when they realised they really bought into the Federalist Society as a way of vetting and preparing true believers on the issues they care about, who could credibly get past the Senate (maybe with some Democrat backing). It's part of why Republicans pushed back so strongly against Harriet Miers - she had no links with the Federalist Society, no conservative record. She was a Bush judge which was no longer enough.

Sure,Republicans have a history of their appointments going wet after they're confirmed.  Democrats have not had the equivalent problem.  So a Democratic Federalist Society is a fix to a problem that doesn't exist.

The problem that does exist is controlling the White House and the Senate when there are vacancies.

[The Minsky Moment]

Sure,Republicans have a history of their appointments going wet after they're confirmed.  Democrats have not had the equivalent problem.  So a Democratic Federalist Society is a fix to a problem that doesn't exist.

I think that mis-states the problem.
The issue really wasn't backsliding by conservative judges who had somehow become tainted by DC.  The problem was that the hard right wanted to push for a conception of the Constitution and constitutional interpretation that had no support in the mainstream, either to the left or right.

The first step was creating a historical mythology that saw the Warren Court as some kind of out-of-control radical left-wing institution.  In reality, the vast majority of people have rightfully come to understand the central holdings as common-sense, a basic part of our constitutional furniture.  The right to counsel in criminal cases.  Basic protections against coerced confessions. Invalidation of "miscegnation" laws. At one point there were controversial concepts to some, but it is hard to see now what the fuss was about.

Under this mythology, O'Connnor becomes a "liberal" and Kennedy a "left loberal" etc.  When in reality someone like Kennedy always was well within the mainstream of conservative jurisprudence. He did not change. What changed were the demands of an ideologically charged right-wing jurisprudence that was not satisfied with gains made in conversative opinions of the Burger and Rehnquist courts, but sought a radical transformation of the entire constitutional architecture. 

And it is in that context that the second step was put in place - strict ideological gatekeepers for ALL judicial appointments at ALL levels.  This reached its apotheosis under Trump, where significant numbers of grossly unqualified candidates were appointed solely on the basis of passing an ideological litmus test. Gatekeeping not designed to ensure conservatives are appointed but to keep mainstream conservatives like Roberts and Kennedy OUT.

[Admiral Yi]

Take it up with Shelf Joan.  It's his brief.

[Sheilbh]

I agree with Minsky.

The left will need something very similar because there is no area of politics more likely to normalise a change and become small c-conservative than lawyers and courts. It's in their institutional make-up - they will give it respectability.

So if the goal is to push back on things like an individual right to bear arms, the free speech rights of corporations, the narrowing of the concept of privacy to exclude abortion (with a clear hint that they're willing to consider challenges to gay marriage and sodomy laws), then it's going to be a similar project.

I think everything in the conservative tale of the Warren/Burger court is going to happen from an incredibly reactionary position (and to an extent what are the right-wing institutional machine, the Federalist Society, the media except what they fear the left are doing or have already done).

Given their age and political nous - I'd be surprised if Thomas doesn't retire if Trump wins again - they probably have the time to do quite a lot. I think people who don't think they'd get rid of gay marriage or Lawrence are a bit like people who thought that saying "Roe is settled law" would mean they would try to get rid of it - and there'll be other wide-ranging stuff, in particular, I think they will gut the regulatory state. The right have been really up-front about what they're trying to do.

[Admiral Yi]

And I disagree.  Democratic justices don't need vetting, or affirmation, or a more confidence in their opinions, or a legal framework; they need more votes.

[Zanza]

What's the argument against just naming a handful more Supreme Court justices now?

[Sheilbh]

What's the argument against just naming a handful more Supreme Court justices now?

It would politicise and damage the legitimacy of the court.

[Admiral Yi]

What's the argument against just naming a handful more Supreme Court justices now?

Breaking the taboo makes it easy for the other side to do the same.