SCOTUS Could Overturn Roe

Oral arguments on the biggest abortion case in decades will be heard today.

NPR’s Nina Totenberg (“Supreme Court considers whether to reverse Roe v. Wade in historic arguments“):

An epic argument at the U.S. Supreme Court on Wednesday: At issue is whether to reverse the court’s nearly half-century-old Roe v. Wade decision and subsequent decisions declaring that women have a constitutional right to terminate a pregnancy.

Until now, all the court’s abortion decisions have upheld Roe‘s central framework — that women have a constitutional right to an abortion in the first two trimesters of pregnancy when a fetus is unable to survive outside the womb, until roughly between 22 and 24 weeks.

But Mississippi’s law bans abortion after 15 weeks. A separate law enacted a year later would ban abortions after six weeks, and while the six-week ban is not at stake in this case, the state is now asking the Supreme Court to reverse all of its prior abortion decisions and to return the abortion question to the states.

This is not the first time the court has been asked to reverse Roe. The last major challenge to abortion rights was in 1992 in a case called Planned Parenthood v. Casey. So it’s worth listening to what three justices said back then in reaffirming what they called “the central holding of Roe.”

Justice Sandra Day O’Connor spoke first from the bench: “Our obligation is to define liberty of all, not to mandate our own moral code.”

Justice Anthony Kennedy was next: “Our cases recognize the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”

And last was Justice David Souter: “The factual premises on which it rests are no different today from those on which the ruling rested initially … so to overrule in the absence of the most compelling reason … would subvert the court’s legitimacy beyond any serious question.”

Those justices, all appointed by Republican presidents, were centrist conservatives, but today’s Supreme Court supermajority of six justices, without exception, are all dramatically more conservative, and all have records opposing abortion rights.

CNN’s Joan Biskupic (“Roe and Casey: The two abortion precedents the Supreme Court may overturn“) adds:

At the heart of the Roe decision was protection for the woman’s abortion decision before viability (when a fetus can survive outside the womb), which the justices estimated in 1973 at about 28 weeks. The court in 1992 said advances in neonatal care had brought that down to about 23 weeks of pregnancy, which is roughly where physicians draw the line today. The disputed Mississippi ban would prohibit abortion after 15 weeks — plainly shattering the viability line.

The Casey decision affirmed the core abortion right and underscored adherence to precedent, the concept known as “stare decisis.”

The court said in 1992 that retaining precedent was especially important for cases that, despite being politically divisive, had not been altered by new facts or changes in law. In Planned Parenthood v. Casey, the justices held fast to Roe’s cutoff line of viability, saying that “viability marks the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions.”As the remade Supreme Court, with three new appointees of former President Donald Trump, considers the fate of Roe v. Wade, it will inevitably weigh the principles of Casey, when the justices highlighted institutional integrity and legitimacy.

She notes the party breakdowns of the Roe and Casey courts:

Roe v. Wade was decided on January 22, 1973, by a 7-2 vote. It was a product of a time when justices defied partisan lineups. Justice Harry Blackmun (an appointee of President Richard Nixon) wrote the opinion. The only dissenters were Justices Byron White (an appointee of President John F. Kennedy) and William Rehnquist (a Nixon appointee).

[…]

Planned Parenthood of Southeastern Pennsylvania v. Casey was decided on June 29, 1992, by a 5-4 vote to affirm the central holding of Roe v. Wade giving women a right to end pregnancies before viability.

Justices Sandra Day O’Connor, Anthony Kennedy, and David Souter joined forces to write the opinion. Rehnquist, White and Justices Antonin Scalia, and Clarence Thomas dissented. A part of the decision, upholding specific Pennsylvania abortion restrictions, came down to a separate 7-2 vote, from which Blackmun and Justice John Paul Stevens dissented. (The only remaining member of that 1992 court is Thomas.)As in 1973, the bench was less defined by party politics. The only one of the nine who had not been appointed by a Republican president was White.

As has been discussed here ad nauseam, our parties have sorted and polarized over the past few decades. Indeed, the “Casey” in the latter case was Pennsylvania Governor Bob Casey, a moderate Democrat who opposed abortion. While those folks still exist, they’re incredibly rare, as primary electorates simply reject outliers.

There are no more Sandra Day O’Connors or David Souters on the Supreme Court and, absent some radical reform in the way we select Justices, there won’t be again. On the Republican side, in particular, decades of bitter disappointment in Justices who “turned” while on the bench, becoming relatively liberal in their voting patterns, led to the creation of the Federalist Society, which now grooms and vets potential appointees. One of the few ways in which Donald Trump was a “typical Republican President” was that he nominated highly qualified folks to the Supreme Court, all of whom had the Federalist Society stamp of approval.

Still, while there is genuine reason to fear for the future of abortion rights in much of the country, overturning the broad framework of Roe and Casey—that women have a fundamental right to control their bodies but that the states have rights to protect the lives of unborn children at the point of viability and that a careful balance must be struck between the two—is by no means a foregone conclusion.

SCOTUSBlog’s Amy Howe (“Roe v. Wade hangs in balance as reshaped court prepares to hear biggest abortion case in decades“):

The justices are likely to be divided in their ruling, and even the decision to take up the case was a significant one that apparently generated internal debate. Mississippi’s petition for review was first distributed for the justices to consider at their conference on Sept. 29, 2020, but the justices did not grant review until May 2021.

The posture in which the case reached the Supreme Court is also noteworthy. Unlike other abortion cases in recent terms, in which abortion providers came to the Supreme Court after lower courts had upheld laws making it more difficult for doctors to perform abortions, in this case the state came to the Supreme Court after lower courts struck down the ban on abortions after the 15th week of pregnancy. The justices could have turned the case down, perhaps over a dissent by one or more of the conservative justices, but the decision to hear the case on the merits means that there were at least four votes to hear the case; it also suggests that those justices feel confident that there are at least five to uphold the law.

One of those key votes is likely to be Justice Brett Kavanaugh, who in his 2018 confirmation hearing described Roe as “settled as precedent” and noted that it had been “reaffirmed many times,” while he characterized Casey as “precedent on precedent.” Last year, in Ramos v. Louisiana, the court ruled that the Sixth Amendment establishes a right to a unanimous jury that applies in both federal and state courts, overturning a prior ruling from 1972. Kavanaugh wrote a concurring opinion in which he outlined how, in his view, stare decisis applied to the case. He stressed that, “to overrule a constitutional precedent, the Court requires something ‘over and above the belief that the precedent was wrongly decided.'” He focused on what he described as three “broad considerations”: whether the prior decision is “egregiously wrong”; whether it has caused negative consequences, either in the law or in the real world; and whether people have relied on the prior decision, so that overruling it would upset their expectations. Although Kavanaugh’s opinion focused on the unanimous-jury question, it was no doubt written with future cases, particularly abortion cases, in mind.

Her colleague Ellena Erskineread all the amicus briefs in Dobbs so you don’t have to” and provides a fine synopsis with links.

The site also presents an opinion piece by George Mason law professor Helen Alvaré titled “A ‘right’ without constitutional foundation” that both roughly parallels my own view of the reasoning in the cases but whose preferred outcome I disagree with. (One suspects SCOTUSBlog will also publish a defense of the Roe precedent but it’s not up as I write this.)

Roe is perhaps the best case of “judicial activism” or “legislating from the bench.” While these terms are mostly used to mean “opinions I disagree with,” the fact of the matter, as Alvaré articulates, is that the reasoning essentially made up a Constitutional right out of whole cloth, with little regard to a hundred-plus years of history. And the trimester framework, which was abandoned in Casey for a more defensible “fetal viability” standard, simply had no Constitutional basis whatsoever.

But, contra Alvaré, I believe that overturning the broad principle behind Roe at this juncture would be more harmful than restorative. First, as a matter of public policy, it would mark the only occasion I can think of where something that has been viewed, for almost half a century now, as a fundamental right was suddenly taken away. While the practical impact of this would be modest for those of means, who could simply travel to the nearest state where abortion is legal, it would be devastating for those for whom that’s not a viable option. Second, and likely more importantly in terms of the decision itself, it would further politicize the Court and delegitimate it as the arbiter of the Constitution.

The Casey court was already much more politicized than the Roe Court. Still, a number of conservative Justices who not only personally opposed abortion but thought Roe was improperly decided nonetheless declined to overturn it, citing stare decisis. Our entire common law system, they reasoned, is based on judges adhering to precedent and that, absent some change in the facts or the law, overturning such an important decision less than two decades later would undermine the system.

We’re now almost thirty years past Casey and fifty past Roe. While that’s less than the time that elapsed between the odious decision in Plessy v Ferguson (1896) and its overturn in Brown v BOE (1954), that’s the very definition of “settled law.” And, unlike the made-up-out-of-whole-cloth “separate but equal” doctrine, overruling this precedent would diminish, rather than enhance, freedom. Further, the facts, in terms of the broader culture and associated public attitudes, had radically shifted between Plessy and Brown in favor of change whereas there’s more support for abortion rights now than there was in 1973.

The only Justice who avowedly doesn’t care about stare decisis is Thomas, who argues that the only thing that matters is getting the Constitutional interpretation right. Chief Justice Roberts will be its fiercest defender in the deliberations. We’ll see who, other than the three* Democratic appointees (Breyer, Sotomayor, and Kagan) he can bring along. He only needs one.

_____________________

*I originally forgot Breyer for some reason.

FILED UNDER: *FEATURED, Law and the Courts, Supreme Court
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. HarvardLaw92 says:

    The fact that there are five conservative Catholics on this court (and a sixth who was raised as one / might as well still basically be one), but not a single mainline Protestant, is no accident.

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  2. SC_Birdflyte says:

    Well, I suppose the litmus test for all future questions of constitutional rights is, “What does Mississippi want?” That should make it much easier to decide court cases.

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  3. OzarkHillbilly says:

    Balkanization: Dobbs in Seven Steps

    Tomorrow the Supreme Court will hear argument in Dobbs v. Jackson Women’s Health Organization. Many observers have offered predictions about how the case will turn out. My guess is that the Court majority will uphold the Mississippi law (which bans most abortions after 15 weeks) in seven steps:

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  4. OzarkHillbilly says:

    @HarvardLaw92: I was 14 when I got the F out of the Catholic Church. I left it for a reason.

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  5. HarvardLaw92 says:

    @OzarkHillbilly:

    I admit to being of two minds in that regard. I’m a Jewish kid who was basically educated in the entirety by Jesuits, so there are aspects of the RCC for which I have a great deal of respect, but we’re also not talking about Jesuits here. We have basically installed the Congregation for the Doctrine of the Faith as a court. I hope to be surprised, but I’ll admit that a large part of me expects to be disappointed.

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  6. Mu Yixiao says:

    NPR had another segment looking at Justice Barrett might rule. It’s… not exactly what you might think at first glance (e.g., not a shoe-in).

    The whole thing is worth a read (or listen), but a couple points really stood out to me.

    BAZELON: I think we see a deeply conservative justice and also one who is a tactician and a strategist. So what we’ve seen with Justice Barrett is that she has been most willing to move the law to the right when she can do so quietly,

    and…

    KELLY: When you say you see a tactician, a strategist at work, a strategy in the service of what? I mean, explain that.

    BAZELON: Well, the best example of this was a case last term called Fulton v. City of Philadelphia, and this was a case that, in short, pitted LGBTQ rights against a Catholic social service agency’s claim of religious freedom.

    Justice Alito, a very conservative justice, wrote a long, sweeping opinion that would have really changed the law in a way that would have made it much easier for plaintiffs like the social services agency to win. And Justice Barrett was not willing to sign on to Justice Alito’s opinion. She said, wait a second. Maybe in the future, that will make sense. But we don’t have to make a huge change to rule in favor of the religious plaintiff here. And I want to see what kind of arguments come down the pike, what kind of legal standard we should impose for the future. And she talked about lower court judges and how, when the court makes a big change that upends the status quo but doesn’t give clear guidance about what standard to apply instead, that kind of leaves lower court judges holding the bag.

    Those surprised me.

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  7. OzarkHillbilly says:

    @HarvardLaw92: What is it said of Jesuits? That they are the only Catholic Order that is allowed to question the existence of God? Or some such?

    I have a number of friends who were educated by Jesuits. For some reason or other they are all free thinking, even the relatively religious among them.

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  8. MarkedMan says:

    led to the creation of the Federalist Society, which now grooms and vets potential appointees

    I think you are doing a lot of handwaving in explaining what the Federalist Society is. It is a secretly funded organization whose leadership is also, to some extent, secret. There are credible reports that they are almost entirely funded by the Billionaires Boys Club and it is entirely reasonable to accept that as true, since the Society refuses to reveal its funding. Basically, the Republican Party has given the keys to the judicial car to the Kochs and the Mercers and similar malignant billionaire dabblers, and we have no real idea what the actual (as opposed to the claimed) criteria they have for judges.

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  9. Mu Yixiao says:

    @OzarkHillbilly:

    I have a number of friends who were educated by Jesuits. For some reason or other they are all free thinking, even the relatively religious among them.

    Jesuits are primarily scientists and teachers. They’ll freely say “There is no proof of God–but we believe.” Benedictines are similar, but not as engaged in the science part.

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  10. HarvardLaw92 says:

    @OzarkHillbilly:

    I think that really traces back to the founding principles laid out by St. Ignatius himself at the beginning. The foundation of the entire order lies with discernment, self-examination, etc. within the larger concept of spirituality. Pretty much from day one, their existence has been centered on an idea of thinking about G-d and how one ultimately would arrive at the choice of self-abandonment to him/her. The key term there is choice and the key principle is thought – one can not possibly make an informed choice without having thought about it and considered it in depth. It’s not a large leap from that position to becoming what Mu noted them above as being – scientists and teachers. In a word, thinkers.

    In a church that’s IMO derived from the principle that “what we say is the only truth, and you must blindly & obediently accept it as factual”, the Jesuit philosophy has been borderline heresy from the start 😀

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  11. Kathy says:

    The human fetus is the most precious creature. it must be made to be born, regardless of the wishes of the woman incubating it, so it can be ignored while it grows up in poverty and malnutrition, until it can mature into a mínimum wage job or die in a school shooting like God intended.

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  12. Scott says:

    Second, and likely more importantly in terms of the decision itself, it would further politicize the Court and delegitimate it as the arbiter of the Constitution.

    I, cynically, also believe this to be true. There is strong and growing belief in the country that, contrary to current mythology, the Supreme Court is just another supra legislative body. I believe that most Justices (especially Roberts) would like to preserve its authority. Radicals like Thomas and Alito are far right radicals who would tear it all down.

    Chief Roberts does not want to be consider the Roger Taney of our times nor would he like to see the next logical step in our madness: the questioning of Marbury v Madison establishing the Supreme Court’s place in our system of government.

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  13. grumpy realist says:

    Guess we’ll have to learn the lessons of Prohibition all over again.

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  14. MarkedMan says:

    @HarvardLaw92:

    In a church that’s IMO derived from the principle that “what we say is the only truth, and you must blindly & obediently accept it as factual”,

    There is a huge array of Catholics all over the world, and I can only speak to my experience being raised a Roman Catholic in Chicago and attending 12 years of Catholic schools. I never saw much of the blind obedience side of things. My nuns were… actually I don’t know the order. My priests were a mixed bag of orders and were about as varied in the ways they were f*cked up as you could imagine given the toxic soup they were bubbling in. The brothers in my High School were Marist, and for the most part were practical, thoughtful, intelligent and sincere. If I were to take a guess it would be that they felt their primary goal was to educate us with sound academics and ethics and their secondary goal was to serve as an example of the Religious.

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  15. gVOR08 says:

    @Mu Yixiao: I’ll have to go read the whole NPR piece you link. The quote says Barrett and Alito have an agenda, but differ on tactics. Which is to say they’re both consciously activist judges.

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  16. HarvardLaw92 says:

    @MarkedMan:

    All of mine were Jesuits, but my experience was the same. I was speaking more in the context of the Curia, most especially the Congregation for the Doctrine of the Faith I mentioned earlier. All of that “you must accept & obey dogma” garbage they tend to produce. Hence the being of two minds comment.

  17. OzarkHillbilly says:

    @Mu Yixiao: @HarvardLaw92: I’m pretty sure that if I’d gone to a Jesuit high school, I would have fared much better than I did in the over crowded public school I went to. Having 5 siblings, it just wasn’t in my parents’ financial cards.

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  18. Mu Yixiao says:

    @gVOR08:

    The quote says Barrett and Alito have an agenda, but differ on tactics. Which is to say they’re both consciously activist judges.

    Yes. But I was fascinated by the “tactics” aspect–that Barrett doesn’t want to rock the boat. She’s playing a long game of small changes (with, it seems, a “boiling the frog” approach). Which is risky from both sides.

  19. HarvardLaw92 says:

    @OzarkHillbilly:

    At the time, I was (to put it mildly) less than pleased with my parents for having sent me there. Let’s face it – being a Jewish kid in a school filled to the brim with nascent Catholics wasn’t always that pleasant of an experience. You’re the primordial combination outsider / heretic by default just as a consequence of existence, and kids are cruel even under the best of circumstances. In retrospect, it was probably the greatest thing my parents ever did for me, so much so that we did the same with our kids.

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  20. gVOR08 says:

    Don’t think overturning Roe is the endgame. As soon as they overturn Roe they’ll outlaw abortion in red states. Apparently in several states those laws are drafted and ready to go. But. That returns the matter to the states. If abortion is murder, it’s murder in NY and CA as much as in MS. And Roe has been hugely valuable to GOPs as an issue. As a victory it will be less so.

    If Roe is overturned, as soon as the dust settles they’ll move federal legislation to outlaw abortion. And Mitch McConnell will be happy to have Ds filibuster it. Then they’ll move for a Constitutional Amendment. It would look like forceful action to the base. If it got to the states for ratification it would drive a lot of state level activism. And it would have little chance of ratification, keeping the issue alive.

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  21. Michael Reynolds says:

    The problem, bluntly, is women. Women don’t fight very hard for their rights. In the last 50 years, look what gun-loving men have accomplished politically. Look how effective the Jewish lobby is with just 2% of the population. Women are 52% of voters, a majority, and not a gerrymandered majority, no, they’re the majority in virtually every political district in the country. There is no such thing as the ‘women’s vote’, unlike the Black vote. If there really was a women’s vote, and if women as a whole were engaged, reversing Roe would be disaster for the GOP. If.

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  22. OzarkHillbilly says:

    @HarvardLaw92: Speaking as one who has been an “outsider” my entire life, I really can’t imagine what it was like being “a Jewish kid in a school filled to the brim with nascent Catholics.” That’s just a whole ‘nother level of outsiderdom.

    My Jesuit educated friends are mostly “outsiders” too, and I have always been more than a little jealous of their experience in HS. They were actually learning as opposed to being processed as I was.

    2
  23. gVOR08 says:

    @Mu Yixiao:
    @Michael Reynolds:

    If there really was a women’s vote, and if women as a whole were engaged, reversing Roe would be disaster for the GOP. If.

    I read the whole, very short, NPR piece that Mu linked to. This stood out to me.

    KELLY: That it’s not just men telling a woman what to do with her body.
    BAZELON: Yes – that it’s women also or at least one woman saying this is good for women.

    Bazelon was speaking of optics. It wouldn’t have anything to do with what is good for women. What it would really mean is that one fundie Catholic woman joined Catholic men in telling non-Catholic (and many non-fundie Catholic) women what to do with their bodies. But I suspect Bazelon is right, that Barrett’s participation would soften it in the minds of a lot of people.

    Come’s back to the discussion of how do Ds get lightly engaged voters to see just how nuts Rs have become.

    1
  24. CSK says:

    @OzarkHillbilly:
    When my best friend friend Laura and I were in elementary school, a classmate named Linda said to us: “Nyah, nyah, you’re no good; you’re not Catholic.”

  25. drj says:

    Roe is perhaps the best case of “judicial activism” or “legislating from the bench.” […] the fact of the matter, as Alvaré articulates, is that the reasoning essentially made up a Constitutional right out of whole cloth, with little regard to a hundred-plus years of history.

    I truly, truly don’t understand this argument.

    It seems clear to me that if a state were to, say, outlaw vasectomies, it would be a clear violation of the 14th Amendment’s due process clause.

    How is it a legitimate state interest to potentially force people into parenthood against their will?

    The only difference with having an abortion is that, in such a case, we’re already in the embryo/fetus stage, which means that the state could potentially have a compelling interest in protecting the right of the unborn fetus.

    In which case we’re talking about the balancing of rights rather than claiming that one party (the mother) doesn’t have any.

    (As an aside, I obviously believe that the rights of a women should trump the rights of a pre-viability fetus. A basic understanding of biology and fetal gestation makes it exceedingly easy to reach this conclusion.)

    But regardless of how that balancing of rights would ultimately go, how can a legal scholar claim that a right to abortion would be “without Constitutional foundation?”

    Helen Alvaré is the Robert A. Levy Endowed Chair in Law and Liberty at Antonin Scalia Law School, George Mason University.

    “Endowed Chair” = paid by external funds rather than the university

    “in Law and Liberty” = laws for thee, liberty for me

    “at Antonin Scalia Law School” = FOX News for the pseudo-intellectual

    Makes total sense now.

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  26. Scott F. says:

    @Michael Reynolds:

    There is no such thing as the ‘women’s vote’, unlike the Black vote. If there really was a women’s vote, and if women as a whole were engaged, reversing Roe would be disaster for the GOP.

    Women are not monolithic on Roe v. Wade.

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  27. HarvardLaw92 says:

    @OzarkHillbilly:

    It was a mixed bag, to be honest about it. I’ve come to see in retrospect that experiences like that force one to either meet the challenge or fold in front of it. I look back now and smile a little when I realize that I still associate the word “why” with Jesuits. It wasn’t even so much a matter of education as instilling the urgency of thinking, about everything. With them, it was always “why do you think that is the case?” or “what led you to making that conclusion?” Your viewpoint wasn’t ever off limits -to their credit, I never had a single teacher who ever categorized me as “the Jewish kid” or made me feel like an outsider for not sharing their beliefs – but woe to the lazybrains who couldn’t defend or explain how he reached it.

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  28. HarvardLaw92 says:

    @drj: GMU got caught pretty much red-handed allowing donors to directly influence / affect faculty hiring decisions

    1
  29. Just nutha ignint cracker says:

    @CSK: If it helps balance things for you, one of my friends in elementary school was Catholic, but, even though he was a friend, I knew that he was “going to hell” because Catholics aren’t “really” Christians. There are people brought up with strong exclusionary beliefs in every cultural cohort.-

  30. Richard Gardner says:

    This morning (8AM PST) my main NPR station (news) had preempted the news (Morning Edition) with full-on Supreme Court coverage. Just what I don’t want to hear all day. I shifted to another NPR station (news and jazz) that had the Supreme Court on live stream if you wanted to listen but was following their regular programming schedule. Interesting what they think is important to their listeners, or rather what they want to force onto their listeners.

    1
  31. OzarkHillbilly says:

    @HarvardLaw92: I still associate the word “why” with Jesuits. It wasn’t even so much a matter of education as instilling the urgency of thinking, about everything. With them, it was always “why do you think that is the case?” or “what led you to making that conclusion?” Your viewpoint wasn’t ever off limits -to their credit,

    That pretty much mirrors what my friends have said. And yeah, “woe to the lazybrains who couldn’t defend or explain how he reached it.”

    2
  32. CSK says:

    @Just nutha ignint cracker:
    Oh, I know. Catholics take orders from a scarlet monster in Rome, and so on…One of the sidelights of the George Zimmerman investigation occurred when he noticed a detective wearing a cross. He asked her if she were a Catholic, and she replied, “No, I’m a Christian.” It’s all bullshit.

  33. Just nutha ignint cracker says:

    but the decision to hear the case on the merits means that there were at least four votes to hear the case; it also suggests that those justices feel confident that there are at least five to uphold the law.

    Or that they’re not concerned with upholding the law* in this case.

    *Within the context of how the phrase works within the context. Any or all of them may be unconcerned with upholding the law in the larger societal context also, but I was not commenting on that question. And have no opinion on it either.

    1
  34. MarkedMan says:

    @HarvardLaw92: Yep. I think we are on the same page. The whole “Vatican Mafia” thing has always struck me as bizarre but fortunately also very far away.

    1
  35. Michael Reynolds says:

    @Scott F.:

    Women are not monolithic on Roe v. Wade.

    True. Which makes me wonder why the issue is so often presented as a man vs. woman issue, men trying to control women’s bodies. It’s bullshit. It’s women trying to control other women’s bodies, but have you ever seen that on a protest sign?

    The left has a WW2 problem of its own. Just as not every war is WW2, not every social issue is civil rights. We keep trying to frame everything that way, as oppressor and oppressed.

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  36. OzarkHillbilly says:

    @CSK: Once I left the Catholic grade school at 6th grade, the closest thing to anti Catholic prejudice I experienced was the question of, “How many kids are there in your family?”
    “6.” (actually 7 but little brother James Matthew died hours after birth)
    Inevitably followed by the statement/question of “Your Catholic, aren’t you?”

    Which I took no insult from because, well, it was true.

    It was years after I embraced my atheism before I noticed any prejudice against me on that count. Even now it is just of the shunning kind, which tbh bothers me not at all. I have no desire to be around anyone so close minded.

    2
  37. CSK says:

    @OzarkHillbilly:
    I’ve had an odd array of experiences. Going by my surname, one might assume I’m Roman Catholic, but as I’ve said several times, I wasn’t raised in any religion. Some–but not a lot–of anti-Catholic sentiment has been directed at me. On the other hand, I’ve had Catholic friends ask me, “Gee, how did you miss out?”

    I am an outsider in my generation, given that the vast majority of my cohorts were brought up to pay at least lip service to some religion.

  38. Michael Cain says:

    @gVOR08:

    As soon as they overturn Roe they’ll outlaw abortion in red states. Apparently in several states those laws are drafted and ready to go.

    In several red states those laws are still/already on the books. They are simply held in abeyance so long as Roe/Casey are in force. The ones that completely ban abortion would still be in abeyance if the decision is that 15 weeks replaces viability as the time determinant.

    2
  39. Raoul says:

    We should not forget what got us here- the death of RGB, the a most overrated justice who could have ensured her legacy by retiring as an octogenarian while having one of the deadliest form of cancers (90% fatality) and instead died while ridiculously imploring the sitting president not to nominate her successor. Her act of hubris will lead to countless botched abortions deaths. That’s her legacy.

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  40. Neil J Hudelson says:

    @Just nutha ignint cracker:

    I went to a tiny, tiny podunk* high school–graduating class, 37 people, 35 of which had been classmates since pre-K. I’ve never counted, but I’m pretty sure my hometown paradoxically has more churches than people, which is how one day in 8th grade two guys came to blows because one guy’s redneck preacher who never graduated elementary school said he had it on God’s authority that the members of that other church ran by a redneck preacher who never graduated elementary school are definitely going to hell.

    Gather 5 believers in a room, and at least 3 of them will be sure the other 4 people are damned, unredeemable sinners.

    1
  41. Scott F. says:

    @Michael Reynolds:

    The left has a WW2 problem of its own. Just as not every war is WW2, not every social issue is civil rights. We keep trying to frame everything that way, as oppressor and oppressed.

    It really depends on where you sit.

    If your village in Yemen just got flattened, you don’t really care whether the ordinance came from the opposing force in an international war to end all wars or a minor skirmish in a sectarian civil war. Others far away will debate whether this war is worth the damage it is doing in the grand scheme of world politics, but the villagers lives are in total crisis. I don’t think I’m in a position to tell them they are making too much of it.

    I’m a white, cis-gendered male living in California. I don’t think I’m in much a position to tell the women of Mississippi or Texas that they are making too much of what is happening at SCOTUS today. But, it looks oppressive from where I sit.

    5
  42. Michael Reynolds says:

    @Scott F.:
    Obviously it’s oppressive, but it’s not patriarchal oppression, and if one keeps misidentifying the enemy, one fails to achieve victory.

    The fact is that abortion is a religious freedom issue, fundamentally, with two religious groups – Catholics and evangelicals – trying to shove their dogma down the nation’s throat. Have we ever positioned the abortion issue that way? Nope. How have we defined the issue? In tired feminist tropes. There is a steady 10% difference between men and woman in polling on abortion, and that does not paint a picture of patriarchy. The much stronger correlation is to religion, not gender. Between mainline protestants and Catholics, the gap is 20%. Between mainstream protestants and evangelicals it’s a 29% gap. But when the protests come will we see signs denouncing the RC or the Southern Baptists? Nope. It’ll be that darned patriarchy again.

    And BTW, your sex, race and location do not deprive you of reason or the ability to analyze facts. Nor do they deprive you of the right to have and express an opinion.

    10
  43. grumpy realist says:

    @Neil J Hudelson: One of the funniest religious catfights I ever ran across was of a wee Protestant sect which had moved to the backside of Canada to isolate itself from the sinful world, then had a “religious schism” (which seemed to be more of a pissing contest between the two guys highest in the organization), resulting in a split…..and then each half promptly excommunicated each other.

    (Authority is a mirage unless you have actual force to back it up. Moral authority is even more of a hallucination.)

  44. Just nutha says:

    @Neil J Hudelson: Ayup. That’s been my experience. Or avoiding “others” altogether.

  45. Mister Bluster says:

    @Richard Gardner:..rather what they want to force onto their listeners.

    What are you whining about? You state that you have an easily accessible alternative yet you act as if there is a gun to your head.

    2
  46. Moosebreath says:

    “Roe is perhaps the best case of “judicial activism” or “legislating from the bench.””

    Sorry, but Shelby County vs. Holder still holds the number 1 spot, as it ignored both the literal words of the Constitution granting Congress the power to make laws on the subject and the actions of a nearly unanimous Congress within the prior decade to overturn a law held Constitutional 4 times over nearly 50 years.

    “We’ll see who, other than the two Democratic appointees (Sotomayor and Kagan) he can bring along. He’ll need two.”

    Last time I checked, Breyer was still on the court, so Roberts needs to bring only 1 more. I still think it’s unlikely.

    1
  47. Daryl and his brother Darryl says:

    America became less free today, because of self-proclaimed freedom loving Republicans.
    SCOTUS is a partisan joke.
    Sedition is now legal because the DOJ is afraid to fight it.
    The future of this country is measured in months, maybe years, certainly not decades.

    2
  48. Daryl and his brother Darryl says:

    Has Susan Collins resigned in disgrace, yet?

    4
  49. drj says:

    @Michael Reynolds:

    Obviously it’s oppressive, but it’s not patriarchal oppression […] The much stronger correlation is to religion, not gender.

    You realize we’re talking about highly patriarchical religions, yes? That hold highly patriarchical ideas about sex and sexual purity. And also posit that woman is the origin of all human sin?

    But when the protests come will we see signs denouncing the RC or the Southern Baptists? Nope. It’ll be that darned patriarchy again.

    The US being what it is, I’m not entirely sure that anti-Christian protests are the best way to win hearts and minds.

    Looking at other countries, people trying to get rid of some of the more outmoded elements of the majority religion, without attacking said religion directly, is usually how widespread social progress was made.

    I guarantee you there would have been no Obergefell v. Hodges (not yet, in any case) if self-identifying Catholics or mainline Protestants couldn’t somehow reconcile supporting gay marriage with their faith.

    So maybe blaming the patriarchy isn’t all wrong.

    6
  50. gVOR08 says:

    My brother, the Reverend, for a few years lived in a small town in Minnesota. I mean small. Current estimated population 129. But with a larger farm population coming into town. He served something like seven Lutheran churches on a rotating basis. As he told the story, A group of off the boat Norwegians would arrive, all from the same county in Norway and bringing their preacher with them. They would then get crops in, build homestead shacks, and build a church. Each spring another group would arrive, each with their own pastor and build their own church a few miles down the road from the last church. They’d disown a kid who married someone from the Lutheran church three miles from their Lutheran church.

    My brother’s big accomplishment was facilitating the merger of two or three of the congregations. He later got some better gigs and retired in a larger metro. Ten years or so ago the congregation he joined after retirement had a bitter split over gay marriage. But the kids are allowed to intermarry, even to Catholics. I guess things slowly get better.

    2
  51. MarkedMan says:

    @Just nutha ignint cracker: I knew that there were non-Catholics in my school, but it was abstract knowledge except for my one close friend who was Greek Orthodox. I honestly don’t even remember thinking about it, or it coming up as a topic of discussion around me, but that was just me.

  52. Mike in Arlington says:

    I’m convinced that they’re not just after Roe (well, Casey), but they’re gunning for Griswold v Connecticut. That’s the case that established the “right to privacy” based on the “penumbra” of rights in the Bill of rights. More specifically, SCOTUS decided that a state law banning the sale of birth control to a married couple ran counter to the constitution.

    It took another case to invalidate another law banning the sale of birth control to an unmarried woman. I was going to state that was hard to believe, but it really isn’t hard to believe at all.

    Every now and then, some republicans will explicitly state that Griswold was wrongly decided and they want that overturned. And if you do hear someone mention Griswold, that’s what they’re referencing.

    Invalidating laws forming administrative agencies and the regulations those agencies promulgate is also on their hit list and should scare us just as much.

    6
  53. Jay L Gischer says:

    @Daryl and his brother Darryl:

    Has Susan Collins resigned in disgrace, yet?

    No, but she is very concerned. I mean, several of these people told her in one-on-one conversations that Casey was settled law. Really they did.

    5
  54. Jay L Gischer says:

    @drj: I don’t think it is that hard to frame abortion differences as differences between Christians.

    The question is one of “does a fetus have a soul?” This cannot be answered empirically, it’s a matter of belief, one way or another. And most evangelicals, in the 1960’s thought that the passage in Deuteronomy that spelled out the punishment for striking a pregnant woman and causing a miscarriage (It stipulates payment, not stoning) shows that abortion is not murder, and thus a fetus does not have a soul.

    So, framing it as “one Christian belief versus another” would probably work pretty well. I agree that atheism doesn’t sell well.

    2
  55. Kathy says:

    Not all women oppose patriarchy, and not all men support it.

    5
  56. Mister Bluster says:

    I was too young to vote in the 1968 election. I was two months shy of 21. My first ballot for President USA was for George McGovern four years later. That was a vote against Tricky Dick and the Viet Nam war. I knew George didn’t have a chance.
    Ever since then I have been a one issue voter for which I have taken much flack over the years. I always voted for Democratic Presidents as I know who appoints Justices to the Supreme Court and that a Court appointed by Democratic Presidents will not undermine Roe v Wade.
    I am not optimistic about the sitting US Supreme Court however I cannot predict the future and refuse to be depressed about the outcome of the current situation.
    I will always vote Democratic in future elections.
    I will bump over 74 in 33 days. Don’t know how many more ballots I will have the privilege to cast.

    3
  57. gVOR08 says:

    @Mike in Arlington:

    Invalidating laws forming administrative agencies and the regulations those agencies promulgate is also on their hit list and should scare us just as much.

    Should scare us more. I’ve seen no evidence the Billionaire Boys Club care about abortion except as a tactic. Or guns. Regulation, on the other hand, is a subject near and dear to their hearts. The real reason for standing up the Federalist Society.

    3
  58. drj says:

    @Jay L Gischer:

    The question is one of “does a fetus have a soul?”

    Until at least the 19th century, Catholics believed (see e.g. here) that the soul entered the body when the woman felt the fetus’s first movements.

    And look where they are now.

    Which major Christian denomination currently believes that abotion prior to quickening is OK?

    None. Because, ultimately, it’s about sex and control.

    4
  59. Mike in Arlington says:

    @gVOR08: Yeah, unregulated and unchecked capitalism run by the rapacious twits who own and control most of the capital today fills me with dread.

    1
  60. Michael Reynolds says:

    @drj:
    Blaming the patriarchy deprives women of agency. No one has a gun to any woman’s head demanding they stay in the Roman Catholic church. Just as no one has a gun to a woman’s head forcing her to vote Republican. Women are not politically analogous to minorities. They aren’t a gerrymandered 13% like Black voters, they are the majority in basically every single political district in the country.

    For 50 years now we’ve had choice and yet we’re still blaming the patriarchy for the current failures? Did the patriarchy of the RC suddenly grow more powerful? Are there more or fewer women in powerful political positions now as opposed to 50 years ago? The male vs. female paradigm is nonsense as applied to abortion, and it is condescending and infantilizing to women.

    Pro-choice voters grew complacent and lazy and when roused spouted weary and irrelevant 1970’s feminist tropes in response. Doing the same thing and expecting different results. . .

    As for making it about religion? That’s precisely what the anti-abortion folks have done and to great effect.

    10
  61. Kurtz says:

    @Mu Yixiao: @gVOR08:

    I kind of think the distinction here brightens the line a bit between right wing and conservative, even if it would still be rather dim. Without knowing Barrett’s specific concerns, it can be read as a guard against unintended consequences of sweeping change.

    Other options:

    Young, newest Justice on the court behaves deliberately to strengthen her shoulders before trying to bear massive weight.

    She wants to learn the nuances in an institution that is unique even among the rest of the judiciary.

  62. Kurtz says:

    @Mike in Arlington: @gVOR08:

    Yeah. I made a similar point a while back expressing my skepticism about whether the the GOP (not the voters) want Roe overturned. It’s too valuable as a voting issue.

    2
  63. Blue Galangal says:

    @Michael Reynolds: I think one factor being missed in this absorbing discussion is race. White women vote for Trump/white supremacy/the GOP and all the Christo-fascist and patriarchy values that go along with it. White women as a group have always played along with the white male patriarchy because they get a whole lot out of it. There’s a reason it’s always a white woman crying to 911 about the scary Black guy birdwatching, or the scary Black kids selling bottled water, or the scary Black family barbecuing in the park. White women know they have the economic security to go get those abortions in Canada just like they did pre-Roe, so they don’t really care about other women. The history of second wave feminism in the US is that sisterhood is a lie.

    And I say this as a white woman. As a group, we’re not a group, and we suck. We enable the patriarchy, we enable white supremacy, we enable Christo-fascism and we should stop blaming men and the patriarchy for the stupid, selfish choices we make because our privilege is more important to us than other women/our daughters/our granddaughters.

    12
  64. MarkedMan says:

    Based on the reporting over at TPM, it’s a done deal. The Republican justices went all in against Roe, with only Roberts trying to clutch a fig leaf.

    2
  65. Kurtz says:

    @Michael Reynolds:

    Blaming the patriarchy deprives women of agency.

    Your positions on identity issues lack nuance. The arguments about patriarchy and institutional racism are based on analysis of subtle expressions of power that accumulate.

    I understand that the notion of agency is important to you. But your conception of agency seems to be closer to a religious conviction than a position based on empirical observation of how people form beliefs and take action.

    See @HL draw a distinction between Jesuits and other Catholics above. I think it’s a mistake to see rationality and deliberation as a naturally occurring faculty rather than a developed practice.

    3
  66. grumpy realist says:

    @MarkedMan: Hope all the red states have got the money stashed away for the increased amount they’ll have to pay out to NICUs if they want to maintain life-support for severely disabled infants. Many of whom will know nothing but a life of continuous pain which they must suffer for the religious beliefs of the community. $10 million here, $25 million there–soon that adds up to real money.

    1
  67. dazedandconfused says:

    @Michael Reynolds:
    The stridently pro abortion rights like to portray it as men forcing women to have their babies, the stridently anti abortion rights like to portray it as hacked up 9 month fetus parts in a bloody trash can. Both believe their own BS and judge themselves righteous.

    With some things there’s just no common ground, no talking it out.

    5
  68. Jay L Gischer says:

    Well, this is the minority rule Steven has been talking about. White Christians make up 44% of the US. In 1970, they were 80%. That’s a stunning decline, and yet, here we are, enacting their policy.

    5
  69. drj says:

    @Michael Reynolds:

    Blaming the patriarchy deprives women of agency.

    How? Because women supposedly can’t support patriarchical notions and ideas?

    Ever heard of Phyllis Schlafly opposing the Equal Rights Amendment?

    Also what @Blue Galangal said:

    White women vote for Trump/white supremacy/the GOP and all the Christo-fascist and patriarchy values that go along with it. White women as a group have always played along with the white male patriarchy because they get a whole lot out of it.

    As to this:

    Pro-choice voters grew complacent and lazy and when roused spouted weary and irrelevant 1970’s feminist tropes in response.

    There is nothing specifically irrelevant about 1970s feminism. I’d go so far as to argue that the seminal (ha!) text of second-wave feminism, Simone de Bauvoir’s The Second Sex is (for the most part) still pretty relevant today.

    Her main point is that women are made, not born. In other words, that feminine destiny is imposed on women by a fundamentally patriarchical society.

    Ever seen a one-month-old baby with a pink headband? That’s a cue for anyone around on how to treat the kid.

    At some point, shit like that will get internalized.

    Sorry (not sorry) if that makes you feel uncomfortable.

    4
  70. EddieInCA says:

    @Michael Reynolds:

    This. I’ve always stated that US women haven’t fully realized their power yet. If they did, we’d live in very different times.

    England: Thatcher.
    Germany: Merkel
    Belgium: Sophie Wilmès
    France: Edith Cresson
    Finland: Sanna Marin
    Australia: Julia Gillard
    New Zealand: Helen Clark, Jacinda Adern
    Sweden: Magadalena Andersson
    Portugal: Maria de Lourdes Pintasilgo
    Denmark: Mette Frederiksen
    Greece: Katerina Sakellaropoulou

    Fvck, even India: Indira Ghandi

    USA: All white men, except one. Someone tell me how the USA is leading the world….

    6
  71. SC_Birdflyte says:

    If the Mississippi law is upheld, and anti-abortion activists are emboldened to push for a full repeal of Roe v. Wade, the law of unintended consequences could come into play. In that case, I expect Texas to lead the way in repeal, but it might be interesting to see what companies decamp from the Lone Star state under pressure from their female employees.

    1
  72. grumpy realist says:

    @SC_Birdflyte: Oh, it will get sufficiently hilarious when a state trying to define life as from conception starts to discover that indeed, the devil is in the details. Try to say “abortion not allowed except in cases of incest and rape”, and surprise! you get a lot of more cases of rape reported. Try to insist that “oh, that’s only for cases of CONVICTED rape” and you end up looking like a jerk. (Also stupid because there’s no way a rape case would be done within 9 months of the purported crime.)

    3
  73. Kathy says:

    @grumpy realist:

    There’s an easy out:

    Jehovah, the chief Christian god (as I understand it), is perfect and all-powerful. This must mean he’s perfectly efficient. Now, they wouldn’t waste their time by monitoring the development of each human fetus and inserting souls at the right time. That would be inefficient (have you seen the size of the Universe?)

    Therefore they’d resort to time-saving measures, and simply insert a soul in every human ovum. Of course, this means allowing any ovum to be flushed out the body is murder. Women must therefore have unprotected sex every day while not pregnant, as Jehovah demands.

    Think about miscarriages, it adds complications and makes the Christian god look terrible (yeah, “look” terrible).

  74. Just nutha ignint cracker says:

    @drj:

    The US being what it is, I’m not entirely sure that anti-Christian protests are the best way to win hearts and minds.

    That’s probably a good point, but frankly with Reynolds, as soon as I see the word “religion” I just skip to the next comment (I do that with “progressives” now, too). He’s got a choir. He’s preaching to them. I’m not a member. Nothing there worth considering.

    5
  75. grumpy realist says:

    @Kathy: There’s also the fact that if “life==zygote” you have to do some real fancy footwork to explain why you aren’t charging women who have had miscarriages with accidental manslaughter…

    Heck, if it’s a woman who has problems carrying to term and tries again after the first miscarriage I don’t see why you don’t charge her with reckless manslaughter….

    (Get a publicity-hungry DA in one of the southern states, find a minority teen with something unpleasant in her background like drugs or theft, and yeah, I can see that happening. There are already cases of women who have suffered miscarriages being accused of “fatal endangerment” for doing drugs–even if the drugs had nothing to do with the miscarriage.)

  76. Just nutha ignint cracker says:

    @MarkedMan: Understand something. I was the classmate among my peers who belonged to the hyper-separatist sect (our denomination broke fellowship* with one of our churches because it removed “Baptist” from its name), so none of these types of thoughts/topics ever arose unless I brought them up. My natural reticence and anti-social tendencies served me well in this way as I was never hanging anywhere that such topics might have arisen.

    *Roughly equivalent to excommunication. We didn’t use the term because, as non-conformists, we didn’t keep track of who were communicants and who were not.

  77. Scott F. says:

    @Michael Reynolds:
    I self-identified not to deprive myself of the expression of my opinion, but to humbly acknowledge that the limits of my experience have informed my beliefs and my values. (As life experience does for all people.) And my experience has taught me that mansplaining to women that they’ve misidentified the enemy is rarely productive.

    Sometimes it is better to listen.

    5
  78. Scott F. says:

    @EddieInCA:
    Shirley Chisholm
    Carol Moseley Braun
    Hillary Clinton
    Carly Fiorina
    Elizabeth Warren
    Amy Klobuchar…

    It ain’t been for lack of trying. Makes me think there might be systemic cultural obstacles in play.

    3
  79. Just nutha ignint cracker says:

    @Kurtz: I can understand that. She has to be open to the possibility that if things progress the way they are going now, she may well be the last woman nominated to the Supremes during her lifetime. That’s a heavy load.

  80. DrDaveT says:

    @Jay L Gischer:

    The question is one of “does a fetus have a soul?”

    No, it isn’t. Many (most?) pro-lifers have no problem at all with the government killing, or causing to be killed, or allowing to die, various people with souls. The presence or absence of a soul in the fetus has little to do with the practical question of whom it is permitted to kill, or to let die, for what purposes.

    4
  81. Just nutha ignint cracker says:

    @dazedandconfused: “The stridently pro abortion rights like to portray it as men forcing women to have their babies, the stridently anti abortion rights like to portray it as a hacked up 9 month fetus parts child in a bloody trash can. Both believe their own BS and judge themselves righteous.”

    It really IS more graphic (and hyperbolic) than you’ve portrayed it. Fixed it for you.

  82. Just nutha ignint cracker says:

    “it might be interesting to see what companies decamp from the Lone Star state under pressure from their female employees.”

    I having difficulty imagining Lone Star State (or American, at large, for that matter) companies giving a flying f*** about what their female employees think about anything, but it could be interesting either way.

    1
  83. Just nutha ignint cracker says:

    @Kathy: Well, it would be possible for a really smart deity (of any religious persuasion) to set up a system where any child who lived through some set time when neo-natal deaths (such as SIDS) become unlikely (I’ve heard 100 days bandied about as a timing–and of some societies celebrating such timings, too) to automatically get a soul at that point. Saves on soul shrinkage, too, if that’s a concern.

  84. Just Another Ex-Republican says:

    At least in this specific case, I don’t see Roe being explicitly overturned. More likely they do away with the viability test from Casey as they allow more restrictions to be placed on the ability to get an abortion without explicitly overturning the right to have one (death by a thousand cuts approach). Which is where Collins will get her fig leaf–“They didn’t get rid of the right to an abortion, they just reduced the time to 15 weeks instead of 23! My SC nominee support is just fine!”

    Really wish Maine had done the country a favor and voted her out last year. Hell, might not even have to bow to Manchin as much with a single more D vote in the Senate.

    3
  85. Kathy says:

    @Just nutha ignint cracker:

    You’re back to having to monitor the growth of every human infant. Inefficient. Consider the Christian god affects everything in the universe: every proton, neutron, neutrino, quark, gluon, all the dark matter, and all we have yet to find out. And those things are in several places at once. also every planet, every speck of dirt, every grain of and, every drop of water, etc. Not to mention every dog, every horse, every lion, every fish, every plant, every bacterium, every virus, every protein, every amino acid, etc. Human infants are too few to bother with.

  86. OzarkHillbilly says:

    @Michael Reynolds: Blaming the patriarchy deprives women of agency.

    Not acknowledging that a fair number of women have submitted to it denies reality.

    2
  87. MarkedMan says:

    @OzarkHillbilly: Exactly. If only men are responsible for everything bad that happens to women then women are literally second class citizens. That is just the worst kind of special pleading bullshit.

    When I lived in a tiny village of 400 people in west Africa it was women who shamed other women if they hadn’t ground every single tomato seed to paste with a mortar and pestle, an excruciatingly tedious task. There were astoundingly few adult males around to approve or disapprove, but the few who were there, I asked, and they universally didn’t give a shit. Women have power. Women are people. People set up toxic systems. The rest is left as a exercise for the user.

    1
  88. James Joyner says:

    @Moosebreath: Yes, for some reason I forgot Breyer. As to Shelby County, I think the Court got it right. Disparate treatment of states is unconstitutional. The 15th Amendment gave Congress power to make laws to ensure Blacks were able to vote but, as various iterations of the Court ruled in case after case over the years, the section requiring certain states to go through procedures that others did not had to be time-limited. As the Brennan Center describes it,

    On June 25, 2013, the Supreme Court ruled that the coverage formula in Section 4(b) of the Voting Rights Act — which determines which jurisdictions are covered by Section 5 — is unconstitutional because it is based on an old formula. As a practical matter this means that Section 5 is inoperable until Congress enacts a new coverage formula, which the decision invited Congress to do.

    It’s simply unreasonable to take away the Constitutional right of the people of Alabama, say, to draw up legislative districts based on their conduct of a half-century ago. Congress could, however, require states that are showing evidence of racial discrimination in their districting now to get their maps vetted. Or—and don’t think this has been adjudicated but I’m pretty sure I’m right—Congress could require review of the Congressional maps for all 50 states in perpetuity. That they haven’t acted in the eight years since is a legislative, not judicial, failure.

    1
  89. Ken_L says:

    Or we could all just STFU and stop getting emotional until we get the decision!

    Yeah I know, what’s the fun in that?

    1
  90. Barry says:

    @grumpy realist: “Hope all the red states have got the money stashed away for the increased amount they’ll have to pay out to NICUs if they want to maintain life-support for severely disabled infants.”

    They don’t care, and those deaths let them persecute poor women.

    1
  91. Moosebreath says:

    @James Joyner:

    “It’s simply unreasonable to take away the Constitutional right of the people of Alabama, say, to draw up legislative districts based on their conduct of a half-century ago. Congress could, however, require states that are showing evidence of racial discrimination in their districting now to get their maps vetted.”

    Isn’t the decision of whether the conduct of a state shows an intent to discriminate one for Congress and not the courts to make? And when Congress makes such a decision nearly unanimously, should it not be entitled to deference from the courts?

    1
  92. Barry says:

    @grumpy realist: “Try to insist that “oh, that’s only for cases of CONVICTED rape” and you end up looking like a jerk.”

    This assumes that they and their followers are against rape, and I no longer believe that.

    1
  93. Barry says:

    @James Joyner: “…the section requiring certain states to go through procedures that others did not had to be time-limited. ”

    There is a difference between and declaring that the time is now.

    “It’s simply unreasonable to take away the Constitutional right of the people of Alabama, say, to draw up legislative districts based on their conduct of a half-century ago. ”

    Where ‘the people’ means ‘the party in control’ and their conduct is current and ongoing.

    1
  94. Rick DeMent says:

    A bit of a quibble, I would say the greatest act of judicial activism was Santa Clara County v. Southern Pacific Railroad Co.
    |
    It gave us the the ridiculous “Corporations are legal persons precedent” that has led to a major distortion of the rights of groups over individuals that persists until this day.

    A close second is money = speech.

    The abortion is pretty grounded in the idea that decisions between a woman and there doctor is a right based on the same privacy idea that gave us HIPAA laws. Privacy as a right fit easily under the 9th amendment protection against disparagement of unenumerated rights since the 4th amendment is ostensibly about protecting the right to privacy.

    Also I’m loving reading about the Jurists twisting themselves into a knot about why a 15 week ban is constitutional but not the current 24 weeks is not.

  95. Raoul says:

    JJ- the disparate treatment is baked into the 15th amendment so I guess you are saying the constitution is unconstitutional.

  96. Ebenezer_Arvigenius says:

    Isn’t the decision of whether the conduct of a state shows an intent to discriminate one for Congress and not the courts to make? And when Congress makes such a decision nearly unanimously, should it not be entitled to deference from the courts?

    The other way around. The legislative gets to make the generally applicable guidelines (whether “intent to discriminate” is needed and what abstract behaviour fulfils that) but is, as a general rule, prevented from adjugating specific cases. So if a specific behaviour shows “intent” is normally a determination reserved for the courts.