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

[alfred russel]

They did not pack the court, because they figured out a better way to take control of it - they just refused to let Dems appoint judges.

A republican led senate has approved a lot of democratic appointees in the past 49 years.

If the republicans did not get rid of the filibuster, they made that choice because they decided the best way to maintain power is to not get rid of it, not because they care about its integrity.

My personal perspective is the filibuster is terrible and undemocratic, I wish it would go away, but the reason McConnell etc. didn't is because it has some support in the republican caucus and they probably didn't have the votes (assuming McConnell wanted it gone). And that was likely because some people made the calculation that the benefit of blocking things when out of power outweighed ramming things through when in power. Ie, they actually did maintain it because they cared about its integrity.

If they did not gerrymander the Dems into non-existence, it is because they lacked the power to do so.

I bought into the line that the results of the census moving house seats to red states and the republican reputation for gerrymandering was going to result in republicans taking control of the house in 2022 even if every vote stayed the same as 2020. But the results of redistricting are that democrats actually pick up a net of 6 safe seats. Republicans control more of the redistricting process: the reason they didn't push gerrymandering harder is complex but a large part is likely that gerrymandering makes seats more competitive and incumbents are disinclined to do that. Whereas in the fewer places they controlled democrats were more motivated out of fear of what republicans were about to do to them.

[The Minsky Moment]

I agree with AR that the effects of gerrymandering are marginal and in some cases ambiguous.

A bigger problem is that the interaction of geography and political identification has conferred a growing structural advantage in the Senate on the GOP.  And since the Senate controls approval of appointments that has translated into a bias pulling all appointments to the right.

[Solmyr]

[Sheilbh]

I mentioned it in the Climate Change thread, I was not aware of it until recently and it sounds really terrifying, basically shackling government's ability to regulate. It attacks not just what has been done but also what can be done in the future. It feels truly as if the Judicial branch is out of control and is the one that dictates official activities. What does it matter that Congress or the President do if the courts will thwart and reinterpret it in the most reactionary way possible?

Yeah that's the challenge. I think there is an argument for shackling the administrative/regulatory state. I think the traditional conservative narrative (and criticism) of this vastly growing Federal bureaucracy under the control of the executive is broadly true. Similarly I think there's merit in the argument that this is ultimately legislating through administrative/regulatory law on issues that should be decided by the legislature.

The problem, the bad faith bit and, I think, the GOP's strategy has been to weaponise the protections for minority political rights that are larded through the US system to make it almost impossible to legislate. In response to that the role of the courts and the executive has expanded so they're doing more law-making than they should but those are also both counter-majoritarian institutions (ultimately all courts are by definition and for the executive there's the electoral college). So you basically make the legislature non-functioning, then you restrict the executive's power to make administrative/regulatory law and you have a court with incredibly powerful judicial review powers - the GOP can, to a large extent, govern without winning an election for the next few decades and chances are they will win elections in that time.

I really wonder what will it take, once it's clear that Roe v. Wade is only the first of many reactionary judicial decisions, for Biden (or the Dems as a whole) to get his act together and actually do something about it, not just banale calls for voting. I guess it might depend on the result of the mid terms.

I don't know. I think - and this is where my criticism of the Democrats does come in - part of it is actually a call to vote and organise but I think the Democrats need to get back to fighting in every state at the state level. I think this is really key in Republicans being able to damage Roe through a thousand cuts but also to create those laws that will get appealed all the way to the Supreme Court (laws that are carefully crafted by the right-wing legal infrastructure to make specific arguments or attract the attention of judges schooled in and still socialising in that legal infrastructure):

Remember when the imperative of conservative judicial thinking was certainty and incremental change?  You know the things the majority said they would apply during their confirmation hearings.

Again I think this goes to the conservative legal movement. They learned with Bork what would happen if they nominated someone with genuine originalist views and a history of writing about them both academically and as a judge. I think part of the role the Federalist Society and the networking of judges and clerks etc in that milieu plays is to enable people to build credible careers up to a nomination and coach them to get through nomination hearings - without creating controversy that might cause (as in Bork's case) 52 Democrats and 6 Republicans to vote against you.

Of course. Certainly the last three all said straight out that Roe was settled law.

I see people doing threads of things they said about Roe in their nominations and how they lied - I don't quite get it myself. It looks to me like almost all of those statements are just statements of fact rather than any indication of how they'd rule, but I'm not sure if I'm missing something?

If I'm stood next to a house with a can of petrol and a set of matches it's not a lie if I say "that house isn't on fire", it just doesn't necessarily mean anything about my future intentions.

I think a lot of people laughed at evangelicals for supporting Trump, but maybe that was wrongheaded? This was probably #1 on their agenda for 50 years, and was a part of every republican platform between roe v. wade and trump. But looking at USSC justice nominations by republican president, none of them appointed a majority in favor of completely overturning (I could be making a mistake somewhere):

Yeah I think this goes to the argument that actually it was McConnell's presidency in many ways. If you look at the things Trump was talking about - isolationism, pulling out of NATO, pulling out of Afghanistan, build the wall, infrastructure week it was an incredibly ineffective presidency. If you look at traditional Republican priorities (especially for McConnell) over the last 30 years or so - appointing judges and cutting taxes for the rich - it was very effective. That's part of why I think it might not be Trump but DeSantis who comes next.

The other point is that I think this goes against an argument around "moderate Republicans" - it seems likely to me that a President Romney would appoint if not Kavanaugh, Comey Barrett and Gorsuch to the court then very similar appointees.

Out of curiosity, who are the two right wing milquetoasts? Roberts and Gorsuch/Kavanaugh?

I wouldn't say Gorsuch is milquetoast. My impression is he's slightly more interesting than any of the other Republican appointees - I don't think he's just a purely partisan hack in the way that I think, say, Alito or Kavanaugh are. Similarly I think Roberts is just an institutionalist and wants to push the same agenda as Alito etc, but in a way that doesn't undermine the legitimacy of the court - so substantively gut Roe, but formally say it's a decision that still stands.

I think Gorsuch is ideologically committed to his intellectual/legal approach, which can lead to unusual results - such as Bostock on protection of LGBT people under civil rights laws. I read that and as someone from a textual, pretty literalist legal tradition Gorsuch's ruling made a lot of sense to me - and it seemed to really annoy (I think) Alito dissenting because it reached the wrong result. I also understand that Gorsuch has a very interesting line of cases on Indian law emerging - basically he reads agreements made with native communities literally and thinks they should be applied which seems to be a revolutionary principle.

That probably indicates one of the longer-term effects of this court. If you are arguing in front of the court you're probably looking for a very strong textualist argument to attract Gorsuch's attention as it might lead him in an unexpected direction.

[Syt]

Seen a number of variants on that feeling. It's all about "self responsibility" before conception and after birth. Should not get pregnant if you can't afford a kid. Should have used contraception (but you have top pay it out of pocket). Should have abstained, actually (which is what the only thing we will teach you in school). Shouldn't have worn that outfit that turned on your creepy uncle. Should have brought a gun to school. Should have taken the third minimum wage job, etc.

Interestingly, my middle sister welcomes the ruling (already deriding potential protesters as rioters and looters; mono would be proud), while he daughter and my oldest sister see it as a blow to women's rights. Not that it will stop them from voting for whoever is on the ballot with an "R" next to them (if they even bother to vote).

My niece shared this post:



Personally, I think that each case is different and any hard & fast rules to abortion laws because each case is different. Society should provide the resources that women and, unless rape etc., men can make the decision that is right for them in their life situation, and provide the support and care they require, whether they decide to abort, to give the child up for adoption, or to keep it, even if as single mom. I would (pure gut feeling tbh) set the limit to abortion to until the fetus is viable outside the womb (with allowance for medical conditions).

As an example where overly restrictive laws can lead, this story from Malta:

https://www.france24.com/en/live-news/20220624-relief-crushing-grief-woman-denied-malta-abortion-treated-in-spain

A pregnant American woman who suffered heavy bleeding while on holiday on Malta but was denied an abortion has flown to Spain where she is "out of harm's way", her partner said Friday.

Andrea Prudente, 38, and Jay Weeldreyer, 45, were told their baby had no chance of surviving, but doctors refused to intervene despite her fear of deadly infection due to Malta's total ban on terminations.

"Medical evacuation got us safely to Spain where Andrea is out of harm's way and finally receiving the medical care and treatment denied her in Malta," Weeldreyer said in a text message to AFP.

Asked how they were feeling, he said: "Relief. And the sudden, smashing waves of grief at losing our little girl.

"We've been so consumed with fear and intense focus on Andrea's safety, that now she's finally out of harm's way, there are cascades of mixed emotions that just come in waves."

In an interview by telephone on Wednesday with AFP, he had condemned the "callous" and "cruel" treatment of Prudente, after she was rushed to hospital during a "babymoon" holiday to the Mediterranean island.

She had suffered heavy bleeding in her 16th week of pregnancy and later her waters broke, with an ultrasound showing a partially detached placenta, he said.

An ultrasound two days later showed no amniotic fluid left, meaning the foetus had "no chance of survival", according to a doctor with campaign group Doctors for Choice, which was involved with the case.

But doctors had refused to intervene, waiting for Prudente to miscarry naturally, for the baby's heartbeat to stop or "for her to have a life-threating infection" that would spur them to act, Weeldreyer had explained.

He feared she would not survive if she developed sepsis, saying they were "playing chicken with the death of the mother".

The couple's lawyer, Lara Dimitrijevic, posted on social media that Prudente was "weak and exhausted, relieved and grieving".

The case made headlines around the world as evidence of the intransigence of the law in Malta, the only country in the European Union to have a total ban on abortion.

Women who have abortions face a maximum of three years in prison, while doctors who help them face up to four years, campaigners say.

Doctors for Choice welcomed the fact that Prudente had been able to finally receive help in Spain, saying she was given abortion pills.

But it said many Maltese women did not have that option.

"Are we really prioritising women's lives, or are we treating them merely as incubators? We can do much better than this as a country," it said.

[CountDeMoney]

I mentioned it in the Climate Change thread, I was not aware of it until recently and it sounds really terrifying, basically shackling government's ability to regulate. It attacks not just what has been done but also what can be done in the future. It feels truly as if the Judicial branch is out of control and is the one that dictates official activities. What does it matter that Congress or the President do if the courts will thwart and reinterpret it in the most reactionary way possible?

Yeah that's the challenge. I think there is an argument for shackling the administrative/regulatory state. I think the traditional conservative narrative (and criticism) of this vastly growing Federal bureaucracy under the control of the executive is broadly true. Similarly I think there's merit in the argument that this is ultimately legislating through administrative/regulatory law on issues that should be decided by the legislature.

The Legislature passes laws and budgets, the administrative ability to enforce them falls under the Executive.  This is US Civics 101. 

West Virginia vs EPA is all about one specific sector (utilities with coal-fired plants) attempting to dodge its regulatory requirements which already fall under the Clean Air Act. There's no larger philosophical argument at play in this case.

[Syt]

Oh, and because I re-watched the BoJack Horseman episode about abortion the other day:







It originally aired in 2016.

[The Minsky Moment]

And I read somewhere that it quotes as part of its historical reasoning to defend its decision the post-English Civil War period. Truly relevant.

It's really weird how big a deal 17th and 18th century jurists are in the US and how basically irrelevant in England. I suppose it's because that is the intellectual context of the founders but it's still odd.

Blackstone had a big impact on early American jurisprudence, probably because his commentaries acted as a comprehensive summary that was relatively easily accessible.

However, into the 19th and early 20th centuries there is continuing interaction between English common law rulings and American rulings especially in tort law with judges citing each other across the pond.  That is, American jurists like Cardozo weren't focused on the state of the law at reception but how the common law was evolving in England based on contemporary rulings in English courts.

This is because jurists in that era had a true and intimate understanding of what the common law was and is - a complex and living social instrument not dead letters fixed to a page like dried butterflies pinned to an exhibit:

The object of this book is to present a general view of the Common Law. To accomplish the task, other tools are needed besides logic. It is something to show that the consistency of a system requires a particular result, but it is not all. The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become. We must alternately consult history and existing theories of legislation. But the most difficult labor will be to understand the combination of the two into new products at every stage.

In citing the old jurists in an effort to fix a determinate meaning of the law in a particular moment in time, that is then to be applied to present controversies, the originalists are invoking common law methods in a manner that contradicts its very essence.  And that is why despite their impressive academic pedigrees and access to modern learning, the justices that make up today's USSC court majority are minnows compared to leading lights of the past.

[Sheilbh]

West Virginia vs EPA is all about one specific sector (utilities with coal-fired plants) attempting to dodge its regulatory requirements which already fall under the Clean Air Act. There's no larger philosophical argument at play in this case.

Isn't the risk - and I could be totally wrong - that while it's about just a technical issue for one utility under the Clean Air Act, the court will ask the bigger question of what's the limit of what an administrative body can decide and what is such serious regulation that it requires legislation? What's the extent of power that Congress has delegated to that regulatory to make rules?

Those are legitimate questions, I think, but I think this court will most likely find that it's very, very limited and for political reasons. While it will apply to these specific rules but the conservative legal movement will then have a precedent to challenge all sorts of other regulations as so grave and serious that they actually require legislation.

[Sheilbh]

In a case for "what ifs", it may have been a mistake for democrats to join with conservative republicans to torpedo harriet miers. The result was Alito getting the nomination. I'm not sure that could have been played much differently, however.

Incidentally found this Erick Erickson anecdote on exactly that interesting:

Erick Erickson
@EWErickson
One of my favorite stories about the Miers nomination was how conservative staffers in the Senate, so pissed off their bosses were even considering her, began leaking unfavorable stuff to the press, including her performance in private conversations, much of which wasn't true.
They ran an aggressive campaign to sabotage the nomination.  What helped them was that when Meirs did have the private conversations and provided documents, she was as bad or worse than they'd been leaking.  Caused the Senate GOP to rapidly shift against her.
But it was a staff driven operation in revolt to Bush that then paved the way for the Senate GOP to revolt against Bush on a host of issues, including immigration.

[alfred russel]

Both parties are so interest group motivated when it comes to the USSC I'm not sure how Schumer could have sold, "yeah she is more conservative than we want and also unqualified, but she is better than the likely alternative so democrats should unite behind her and get her through with some support from bush stalwarts in the GOP."

Legislation used to routinely pass with the more extreme ends of the parties both opposing but with moderate member cross over. No one seems to even try to build centrist coalitions anymore. From a democratic perspective, if they can't get Manchin they give up, not reorient policy so that they lose Sanders and Warren but pick up Manchin/Romney/Collins.

[CountDeMoney]

West Virginia vs EPA is all about one specific sector (utilities with coal-fired plants) attempting to dodge its regulatory requirements which already fall under the Clean Air Act. There's no larger philosophical argument at play in this case.

Isn't the risk - and I could be totally wrong - that while it's about just a technical issue for one utility under the Clean Air Act, the court will ask the bigger question of what's the limit of what an administrative body can decide and what is such serious regulation that it requires legislation? What's the extent of power that Congress has delegated to that regulatory to make rules?

Under this activist court?  Oh yes, they are most definitely going to run with the ball and totally turn this case into a defanging of regulatory agencies by establishing a precedent. This is the bullshit wedge of a case they've been looking for.

Those are legitimate questions, I think, but I think this court will most likely find that it's very, very limited and for political reasons. While it will apply to these specific rules but the conservative legal movement will then have a precedent to challenge all sorts of other regulations as so grave and serious that they actually require legislation.

Thing is--and Berkut mentioned it in the Climate thread--Congress is ALREADY responsible for addressing the legislation of these regulations. They already possess the ability to amend legislation, such as Clear Air Act, through the US Code.

However, the benefit of administrative agencies under the Cabinet and the Executive Office of the President is that Congress and legislation is too slow and too broad: the Clean Air Act was last amended by Congress in 1990.  Do you realize how many environmental aspects and impacts have been discovered since then? Conservatives bitch that half the EPA is lawyers;  well, the other half is laboratories and scientists.  Administrative regulatory agencies possess the subject matter expertise and the institutional flexibility to address issues in the national interest in a timely manner.  Ideologues do not.


But yeah, this is their opening.  Shareholder value good, science bad.

[The Larch]

According to the article I read on the topic (https://www.nytimes.com/2022/06/19/climate/supreme-court-climate-epa.html), W. Virginia Vs. EPA is only the first of a series of cases aimed at defanging the state's ability to regulate environmental law, and it is being done in a coordinated way by a group of Republican Attorney Generals in several states. W. Virginia Vs. EPA is the spearhead, but it won't be the last.

From that article:

West Virginia v. E.P.A., No. 20–1530 on the court docket, is also notable for the tangle of connections between the plaintiffs and the Supreme Court justices who will decide their case. The Republican plaintiffs share many of the same donors behind efforts to nominate and confirm five of the Republicans on the bench — John G. Roberts, Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett.

(...)

The pattern is repeated in other climate cases filed by the Republican attorneys general and now advancing through the lower courts: The plaintiffs are supported by the same network of conservative donors who helped former President Donald J. Trump place more than 200 federal judges, many now in position to rule on the climate cases in the coming year.

At least two of the cases feature an unusual approach that demonstrates the aggressive nature of the legal campaign. In those suits, the plaintiffs are challenging regulations or policies that don't yet exist. They want to pre-empt efforts by President Biden to deliver on his promise to pivot the country away from fossil fuels, while at the same time aiming to prevent a future president from trying anything similar.

The ultimate goal of the Republican activists, people involved in the effort say, is to overturn the legal doctrine by which Congress has delegated authority to federal agencies to regulate the environment, health care, workplace safety, telecommunications, the financial sector and more.

Known as "Chevron deference," after a 1984 Supreme Court ruling, that doctrine holds that courts must defer to reasonable interpretations of ambiguous statutes by federal agencies on the theory that agencies have more expertise than judges and are more accountable to voters. "Judges are not experts in the field and are not part of either political branch of the government," Associate Justice John Paul Stevens wrote in his opinion for a unanimous court.

But many conservatives say the decision violates the separation of powers by allowing executive branch officials rather than judges to say what the law is. In one of his most famous opinions as an appeals court judge, Associate Justice Gorsuch wrote that Chevron allowed "executive bureaucracies to swallow huge amounts of core judicial and legislative power."

The constitutional dispute is not necessarily political, because Chevron deference applies to agency actions in both Republican and Democratic administrations. But conservative hostility to the doctrine may be partly rooted in distrust of entrenched bureaucracies and certain kinds of expertise.

[The Minsky Moment]

I mentioned it in the Climate Change thread, I was not aware of it until recently and it sounds really terrifying, basically shackling government's ability to regulate. It attacks not just what has been done but also what can be done in the future. It feels truly as if the Judicial branch is out of control and is the one that dictates official activities. What does it matter that Congress or the President do if the courts will thwart and reinterpret it in the most reactionary way possible?

Yeah that's the challenge. I think there is an argument for shackling the administrative/regulatory state. I think the traditional conservative narrative (and criticism) of this vastly growing Federal bureaucracy under the control of the executive is broadly true. Similarly I think there's merit in the argument that this is ultimately legislating through administrative/regulatory law on issues that should be decided by the legislature.

The Legislature passes laws and budgets, the administrative ability to enforce them falls under the Executive.  This is US Civics 101. 

Just so.

The administrative state cannot be shackled without returning to the 1880s. That was the era of Wilson's Congressional Government - when Congress attempted to administer national affairs through closed door congressional committee rooms.  But even after delegating its substance to committee and subcommittee work, Congress simply could not handle the burden of day-to-day administration of a complex modern capitalist society.

For nearly a century and a half, Congress has been passing legislation defining broad priorities and objectives and delegating power to act to the executive.  You can't shackle the administrative state without tearing up much of the corpus of federal legislation.

And let's be clear - conservatives do not have real any objection on principle to the exercise of authority by executive branch agencies, so long as it is agencies they favor like DHS doing things they like.  This is a dispute over politics not principles.

[The Minsky Moment]

On the EPA case specifically:
1) The fact the Court took the case in the first place sets off huge alarm bells given that there is no rule in place for the Court to review.  The Biden administration withdrew the CPP and no rule has been issued.  So for the Court to rule would be to issue an advisory opinion, a big no-no. If the Court issues an opinion other than booting the case on standing or ripeness/mootness grounds, that will be a clear sign this is a hyper-activist court.
2) Chevron deference has been dying the death of a thousand cuts for some time now and faces open hostility from this Court. An disturbing turn of events for an unanimously decided case of such influence.