Supreme Court Overturning Roe (Probably)

POLITICO has obtained what purports to be the 1st draft of the opinion.

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

The Supreme Court has voted to strike down the landmark Roe v. Wade decision, according to an initial draft majority opinion written by Justice Samuel Alito circulated inside the court and obtained by POLITICO.

The draft opinion is a full-throated, unflinching repudiation of the 1973 decision which guaranteed federal constitutional protections of abortion rights and a subsequent 1992 decision - Planned Parenthood v. Casey - that largely maintained the right. “Roe was egregiously wrong from the start,” Alito writes.

“We hold that Roe and Casey must be overruled,” he writes in the document, labeled as the “Opinion of the Court.” “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

The opinion is clearly marked “1st Draft,” so is not final. The report acknowledges this:

Deliberations on controversial cases have in the past been fluid. Justices can and sometimes do change their votes as draft opinions circulate and major decisions can be subject to multiple drafts and vote-trading, sometimes until just days before a decision is unveiled. The court’s holding will not be final until it is published, likely in the next two months.

Still, as written, it achieves what conservatives have been clamoring for since at least the 1980 election: a complete repudiation of Roe and a return of the matter to the several states.

The immediate impact of the ruling as drafted in February would be to end a half-century guarantee of federal constitutional protection of abortion rights and allow each state to decide whether to restrict or ban abortion. It’s unclear if there have been subsequent changes to the draft.

No draft decision in the modern history of the court has been disclosed publicly while a case was still pending. The unprecedented revelation is bound to intensify the debate over what was already the most controversial case on the docket this term.

The draft opinion offers an extraordinary window into the justices’ deliberations in one of the most consequential cases before the court in the last five decades. Some court-watchers predicted that the conservative majority would slice away at abortion rights without flatly overturning a 49-year-old precedent. The draft shows that the court is looking to reject Roe‘s logic and legal protections.

The initial vote was reportedly 5-4:

The three Democratic-appointed justices – Stephen Breyer, Sonia Sotomayor and Elena Kagan – are working on one or more dissents, according to the person. How Chief Justice John Roberts will ultimately vote, and whether he will join an already written opinion or draft his own, is unclear.

Alito follows the conservative line, with which I agree, that Roe was an incredibly poorly written decision and that it only survived in Casey because conservative Justices who agreed that Roe was wrong believed deference to precedent and the public’s faith in the Court demanded that the core policy be upheld even though the reasoning was all but abandoned.

Roe‘s “survey of history ranged from the constitutionally irrelevant to the plainly incorrect,” Alito continues, adding that its reasoning was “exceptionally weak,” and that the original decision has had “damaging consequences.”

“The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions,” Alito writes.

Alito approvingly quotes a broad range of critics of the Roe decision. He also points to liberal icons such as the late Justice Ruth Bader Ginsburg and Harvard Law Professor Laurence Tribe, who at certain points in their careers took issue with the reasoning in Roe or its impact on the political process.

Alito’s skewering of Roe and the endorsement of at least four other justices for that unsparing critique is also a measure of the court’s rightward turn in recent decades. Roe was decided 7-2 in 1973, with five Republican appointees joining two justices nominated by Democratic presidents.

For the record, I agree with the conservatives in Casey—even more so in 2022 than in 1992. Roe rested on an equally flimsy 1965 decision, Griswold v Connecticut, that invented a right of privacy out of whole cloth. While there is plenty of precedent for overthrowing decades-old decisions (Brown‘s 1954 overruling of the “separate but equal” doctrine established in 1896’s Plessy v Ferguson is the most obvious example) I can’t think of one where the result was the abandonment of rights. Brown moved us in the direction of personal freedom whereas this ruling (Dobbs) takes away a freedom, however controversial, established half a century earlier.

While I am by no means a legal scholar, I have been deeply interested in Constitutional interpretation going back four decades. I read Bob Woodward’s The Brethren while still in high school and was fascinated by the machinations that went into the process of crafting decisions. One thing that stood out to me, in particular, was Chief Justice Warren Burger’s shrewdness in exercising his prerogative to assign opinions. Because he voted last, he would often shift sides, voting with the majority, in order to have the opinion written more narrowly.

In that light, I’m frankly surprised that Roberts allowed Alito to write this decision. If the Court is going to overturn Roe, it would be far better for the ruling to be 6-3 rather than 5-4 and, especially, to be less triumphalist. This will be the most controversial decision since Roe—arguably, since Brown. Why have it be a victory lap rather than a conciliatory acknowledgment that having this issue constantly litigated hasn’t worked?

As an interesting side note, a Washington Post report observes “The original Roe v. Wade decision also was leaked to the press.”

The apparent leak to Politico of an initial draft of a Supreme Court opinion overruling Roe v. Wade and Planned Parenthood v. Casey has been greeted with astonishment about not only the sweep of the ruling but also the fact that a draft opinion was leaked at all. Some commentators claimed that this was unprecedented in the history of the Supreme Court.

Neal Katyal, the former acting solicitor general, tweeted that if the Politico story is true, this is “the first major leak from the Supreme Court ever.” He called it the equivalent of the Pentagon Papers.

While it may be the case, as Politico states, that “no draft decision in the modern history of the court has been disclosed publicly while a case was still pending,” it is not true that rulings have never been given to journalists before the announcement of the decision by the court. In fact, the result in Roe v. Wade itself was leaked by a Supreme Court clerk to a Time magazine reporter in January 1973. The issue of Time, with an article titled “The Sexes: Abortion on Demand,” appeared on newsstands hours before the decision was announced by Justice Harry Blackmun.

The Supreme Court clerk who leaked the story, Larry Hammond, told me about it when I interviewed him for my book “January 1973: Watergate, Roe v. Wade, Vietnam, and the Month That Changed America Forever.”

Hammond clerked for Justice Lewis Powell and played an important role in convincing Powell that the “viability” standard (when a fetus could live outside the womb) was the most supportable line to draw in determining when a state may not regulate a woman’s right to an abortion. Powell privately convinced Justice Harry A. Blackmun and ultimately a 7-to-2 majority to adopt the viability standard, and that has been at the heart of Roe and later Casey, which now appear to be on the verge of being reversed.

A HuffPost story predicts “Where Abortion Will Likely Be Illegal If SCOTUS Overturns Roe.” Or, at least, transcribes a prediction:

The Guttmacher Institute, a research organization focused on advancing reproductive health policy, has identified 26 states that are likely or almost certain to ban abortion in the case of a Supreme Court decision overturning Roe, which established in 1973 that states could not place excessive burdens on patients seeking the procedure.

“If this opinion truly is reflective of the final decision of the majority of the U.S. Supreme Court Justices … we are just days away from more than 26 states banning access to abortion services, essential and safe health care that has been a constitutional right for nearly 50 years,” Jodi Hicks, president and CEO of Planned Parenthood Affiliates of California, said in a statement.

Twenty-two states already have laws or constitutional amendments in place that would allow them to ban abortion as soon as the Supreme Court makes it possible. The latest state to join those ranks is Wyoming, which passed such a law in March.

None on the list will come as a surprise. Not mentioned in the piece: it’s really hard, if not next to impossible, to get an abortion in those states now.

Finally, as often noted in the comments section here, simply reversing Roe will not be enough for many anti-abortion activists. As another Washington Post report has it, “The next frontier for the antiabortion movement: A nationwide ban.”

Leading antiabortion groups and their allies in Congress have been meeting behind the scenes to plan a national strategy that would kick in if the Supreme Court rolls back abortion rights this summer, including a push for a strict nationwide ban on the procedure if Republicans retake power in Washington.

The effort, activists say, is designed to bringa fight that has been playing out largely in the courts and state legislatures to the national political stage — rallying conservatives around the issue in the midterms and pressuring potential 2024 GOP presidential candidates to take a stand.

The discussions reflect what activists describe as an emerging consensus in some corners of the antiabortion movement to push for hard-line measures that will truly end a practice they see as murder while rejecting any proposals seen as half-measures.

The report declares that achieving this goal would require getting 60 votes in the Senate but it’s much more likely that a majority bent on doing this would simply rid us of the filibuster. More importantly, it would require a Presidential signature and, thus, a Republican President.

Politically, this would be an incredibly dumb move. It’s one thing to ban abortion in Red states, where it’s nominally the will of the majority. Trying to do so nationwide would surely be even more mobilizing than the prospect of another Trump presidency.

FILED UNDER: 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. Lounsbury says:

    Perhaps this is my ignorance, but if the US Constitution on this is silent as this draft leak (purported, some of that language seems highly unlikely in style for such a Court document, although not the underlying substance – if it is a real draft…. well… the Democratic activists have rather more of a point about that Supreme Court than one thought), it would seem to me the legislative path, at the State and National levels is perfectly open.

    And rather than playing Court games that have become too dear to the US Left, provide a broad organising reason for grass roots politics (if this right has as much political support as the Democrats reason).

    National Ban

    Politically, this would be an incredibly dumb move. It’s one thing to ban abortion in Red states, where it’s nominally the will of the majority. Trying to do so nationwide would surely be even more mobilizing than the prospect of another Trump presidency.

    Of course the ideological rarely think this way (that is on political pragmatism) but should they launch that, it might just save the Democrats from their identarian political malpractice.

    The US south, what a queer and unique cultural creature….

    ReplyReply
    3
  2. drj says:

    Alito follows the conservative line, with which I agree, that Roe was an incredibly poorly written decision

    And that makes it OK how?

    Taking away established rights and increasing human suffering (for partisan purposes, no less) because some i’s weren’t properly dotted half a century ago is perfectly fine with you?

    Wow.

    But what makes it even worse is that I’m pretty sure you can’t even explain why Roe was wrongly decided. In truth, “Roe is poorly written” is up there with “a Republic not a democracy” and “no morality without religion.” In other words, a conservative shibboleth without real meaning.

    I mean, look at this:

    Roe rested on an equally flimsy 1965 decision, Griswold v Connecticut, that invented a right of privacy out of whole cloth.

    Are you seriously pretending that the Framers intended the Bill of Rights to be exhaustive, that if a right isn’t explicitly mentioned that it doesn’t exist?

    Hamilton, among others, would like a word with you.

    ReplyReply
    29
  3. DK says:

    @Lounsbury:

    it might just save the Democrats from their identarian political malpractice.

    Will anything save Republicans from their own white grievance identity politics?

    ReplyReply
    20
  4. DK says:

    Some good pieces cited here by Prof. Joyner.

    Roe rested on an equally flimsy 1965 decision, Griswold v Connecticut, that invented a right of privacy out of whole cloth.

    The conservative misinterpretation of the constitution for their own partisan political purposes is flimsy.

    Privacy as civil right is strongly suggested by the combined power of the 1st (religion is private), 3rd (home is private), 4th (privacy from intrusive search), 5th (right to keep incriminating information private), 9th (yes, non-enumerated rights do exist), and 14th (states cannot end-around to violate privacy and due process) amendments.

    “Made-up out of whole cloth” is what conservatives have done over the past two decades, insisting the 2nd Amendment protects almost any imdivual’s right to own any firearm they want, which contradicts the intent, spirit, and words of the 2nd Amendment.

    ReplyReply
    26
  5. James Joyner says:

    @drj:

    Taking away established rights and increasing human suffering (for partisan purposes, no less) because some i’s weren’t properly dotted half a century ago is perfectly fine with you?

    Nope. Read the post.

    I’m pretty sure you can’t even explain why Roe was wrongly decided. In truth, “Roe is poorly written” is up there with “a Republic not a democracy” and “no morality without religion.

    I’ve written about this many times, most recently back in December. That post cites a SCOTUSBlog post by Helen Avare that lays out the case more thoroughly.

    Are you seriously pretending that the Framers intended the Bill of Rights to be exhaustive, that if a right isn’t explicitly mentioned that it doesn’t exist?

    Madison originally opposed a Bill of Rights precisely because it would have that impact. but my position is that matters not addressed in the Constitution are mostly left to the several states and, more generally, to the political process. Ginsburg lamented that Roe was actually harmful because the politics were going in the right direction organically.

    ReplyReply
    5
  6. DK says:

    In that light, I’m frankly surprised that Roberts allowed Alito to write this decision.

    Reporting indicates this three-month-old draft shows a only 5-3 majority, indicating maybe Roberts was still negotiating when it was written, no? When it all shakes out, the final opinion could very well be 6-3, with Roberts in the majority and writing a softer majority opinion — with Alito’s reactionary theocratic vomit offered as a disagreeing concurrence.

    Or maybe Roberts has made it to Damascus and views forced birth as so toxic and wrong he wants no part of it at all. Maybe he will issue his own blistering RBG-style dissent? Stranger things have happened.

    ReplyReply
    1
  7. DK says:

    @James Joyner:

    Ginsburg lamented that Roe was actually harmful because the politics were going in the right direction organically.

    RBG saying Roe was strategically unnecessary does not equal her saying Griswold and Roe were both wrongly decided on merit.

    ReplyReply
    24
  8. Jen says:

    @DK: Thank you, I came to say something similar but it probably would not have been as clearly put.

    It is curious, I think, to claim that privacy is not a right when there are already protections in the Constitution. Griswold getting overturned is of course the objective, along with gay marriage. If there’s no right to privacy, heck, let’s see Trump’s tax returns. Finally.

    ReplyReply
    12
  9. wr says:

    Schumer and Pelosi have already correctly said that several of the justices lied about Roe to get on the court. (I would have preferred the more appropriate phrasing — “perjured themselves.”) The next step is for Biden to say that if this ruling holds, then the Supreme Court has declared itself not a court at all but a super-legislature run by Republicans, and his administration will no longer be bound by anything they say.

    ReplyReply
    11
  10. DK says:

    @wr: The impulse is understandable.

    But rather than expect Biden to help the GQP and their reactionary, extremist, illegitimate Apartheid Supreme Court further blow up the system and undermine our representative democratic federal republic, maybe Americans could…just vote for Democrats?

    I mean, Hillary warned us. Maybe it’s time to listen? #ButHerEmails

    ReplyReply
    12
  11. DK says:

    @Jen: Well, you know modern “conservatives.” They don’t actually believe there’s no right to privacy. They do believe the law protects the right to privacy, but only for that which the right wants to be private.

    ReplyReply
    9
  12. drj says:

    @James Joyner:

    I’ve written about this many times, most recently back in December. That post cites a SCOTUSBlog post by Helen Avare [sic] that lays out the case more thoroughly.

    As I pointed out back then, Alvaré is clearly and unmistakably full of shit.

    but my position is that matters not addressed in the Constitution are mostly left to the several states and, more generally, to the political process.

    This is so wrong, it’s not even funny.

    Back in 1997, even a conservative SCOTUS majority explicitly admitted that non-enumerated Constitutional rights exist. Of course, there is also such a thing as the 9th Amendment.

    How can you hold an opinion about the unconstitutionality of Roe if you don’t even understand the principle of non-enumerated constitutional rights?

    Serious question.

    ReplyReply
    9
  13. James Joyner says:

    @DK:

    Privacy as civil right is strongly suggested by the combined power of the 1st (religion is private), 3rd (home is private), 4th (privacy from intrusive search), 5th (right to keep incriminating information private), 9th (yes, non-enumerated rights do exist), and 14th (states cannot end-around to violate privacy and due process) amendments.

    The existence of multiple specific protections for privacy would seem better evidence that there’s no general right to privacy. Otherwise, why list them separately? And, remember, the Bill of Rights was written because of fears of central power, not that of the states. Until the 1920s, when the Court stated selectively incorporating parts of the Bill of Rights to the states via the 14th Amendment, there was no thought that they applied to the states.

    ReplyReply
    3
  14. James Joyner says:

    @drj:

    a conservative SCOTUS majority explicitly admitted that non-enumerated Constitutional rights exist. Of course, there is also such a thing as the 9th Amendment.

    Mostly with respect to the concept of “due process.” But also there’s such a thing as the Common Law. So, to take an obvious example, nowhere in Article III is the power of judicial review mentioned. It was widely understood to be an inherent power of the courts.

    ReplyReply
    4
  15. James Joyner says:

    @DK:

    RBG saying Roe was strategically unnecessary does not equal her saying Griswold and Roe were both wrongly decided on merit.

    In the same link, she disagrees with the reasoning behind Roe, arguing that it was physician-centric rather than woman-centric. Regardless, I was using her in support of my position that it would have been better to reach political consensus rather than have the “right” conferred by the judiciary.

    ReplyReply
    6
  16. DK says:

    @James Joyner:

    The existence of multiple specific protections for privacy would seem better evidence that there’s no general right to privacy.

    Or maybe it would indicate an implied right to privacy is so pervasive and fundamental to liberty, and so often under assault, that it touches nearly every aspect of American life required frequent reinforcement. This should have been settled by the 9th Amendment, but goverment keeps meddling in our private lives without legitimate compelling interest.

    Until the 1920s, when the Court stated selectively incorporating parts of the Bill of Rights to the states via the 14th Amendment, there was no thought that they applied to the states.

    The thought occurred as early as the 1860s, when the 14th Amendment was ratified, explicitly by letter saying that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law…”

    The Court has had to reiterate it in the 1920s and 1950s and 1960s and 1970s because states continue to assault freedom. And now, sadly, they have a dangerously reactionary and incompetent court majority to endorse this kind of fascism.

    ReplyReply
    21
  17. DK says:

    @James Joyner:

    It was widely understood to be an inherent power of the courts.

    Privacy is widely understood to be inherent to freedom.

    ReplyReply
    16
  18. MarkedMan says:

    @James Joyner:

    James Joyner:

    The existence of multiple specific protections for privacy would seem better evidence that there’s no general right to privacy. Otherwise, why list them separately?

    The Constitution:

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    ReplyReply
    13
  19. MarkedMan says:

    @James Joyner:

    Regardless, I was using her in support of my position that it would have been better to reach political consensus rather than have the “right” conferred by the judiciary.

    This comes dangerously close to the Libertarian position that the Civil War was unnecessary and immoral because eventually slavery would have been uneconomical.

    ReplyReply
    15
  20. DK says:

    @James Joyner:

    In the same link, she disagrees with the reasoning behind Roe…

    She’s disagreed with the way the decision was written, that its primary focus was on privacy not on human rights.

    But she still did not, to my knowlege, say Griswold, Roe, and Casey were wrongly decided, and that Roe should not have mentioned privacy at all. Just that it was strategically counterproductive for women’s rights and written by men who did not center women’s rights.

    ReplyReply
    12
  21. drj says:

    @James Joyner:

    Mostly with respect to the concept of “due process.”

    The right to privacy as formulated in Griswold (and by extension Roe) goes back to the due process clause in the 14th Amendement. So what’s your point?

    It was widely understood to be an inherent power

    So inherent powers are OK, but inherent rights aren’t? How does that work? More importantly, how does this support (rather than contradict) your point?

    It seems like you’re grasping at straws.

    ReplyReply
    11
  22. James Joyner says:

    @drj: There had not prior to 1965 been an inherent right to contraception nor prior to 1973 to abortion; they were made up, essentially out of whole cloth, by SCOTUS. Judicial review had been part of the Common Law tradition for a very long time before Marbury v Madison.

    ReplyReply
    2
  23. Beth says:

    @James Joyner:

    The existence of multiple specific protections for privacy would seem better evidence that there’s no general right to privacy. Otherwise, why list them separately? And, remember, the Bill of Rights was written because of fears of central power, not that of the states. Until the 1920s, when the Court stated selectively incorporating parts of the Bill of Rights to the states via the 14th Amendment, there was no thought that they applied to the states.

    This garbage reasoning is awfully close to my conservative friend’s belief that the 14th Amendment only applies to Black men. If this reasoning is correct everyone who isn’t a White or Black man has no rights because they are enumerated enough or originalist enough or have enough Ordered Liberty for the fash.

    Do we need the equal rights amendment to guarantee women have 1st amendment rights? Do we need an amendment to say that the 14th actually applies to everyone?

    Can the government simply execute Queer people because, hey, that’s what they would have done in colonial Virginia or 17th century London? He’s my nightmare, will my marriage be forcibly terminated because my partner and I don’t meet some ideal of straightness?

    Seriously, do we have a modern, multi-ethnic, multi-gender, multi-religious, accepting, open country. One that has, incidentally, done such things as populate another planet with robots. Or do we have a 18th century theocracy ruled by fascist white men?

    ReplyReply
    18
  24. JohnSF says:

    Question from a dumb British person who is not a lawyer:
    Are the majority in this opinion saying that the courts cannot, and will not, protect any rights not set out in the Constitution and Amendments?

    Because if so, you are basically throwing out the entire basis of Common Law, are you not?
    A pretty radical step, I’d have thought.

    ReplyReply
    19
  25. Sleeping Dog says:

    Now we’ll see if the grand predictions from some quarters of the Dem party, that reversal of Roe will cause a huge wave of support for Dems and other pro choice pols. Given that legislators in TX, ID and other states that have recently passed highly restricted or have outlawed abortion, haven’t paid an apparent political price, I’m doubtful.

    Reports from Maine are claiming that Susan Collins is concerned.

    ReplyReply
    4
  26. Lounsbury says:

    @DK: Well, insofar as of yet that is not yet political malpractice given the actual electoral structure of the USA, but rather exploitable political tactics, the rejoinder is rather a pathetic Tu Quoque type fallacy bit of sophistry. Perhaps in the long-run it will be political malpractice although given the observable evolution of working class voting amongst latino voters, the “demographics is destiny” bet of the identarian Left in USA looks to be one of dubious real odds. On the sub-national electoral structure USA has, they are not committing yet political malpractice (which is not the same as saying they are doing anything morally good).

    Of course you are likely struggling with a confusion of Moral Rightness with political tactics for electoral wins.

    Of course it is fully possible the Trumpist faction will push too far into White Supremacist discourse and cut off wider appeal, but in meantime the narrow identarian focus of the US Left is handing them unearned wins.

    @James Joyner:

    Regardless, I was using her in support of my position that it would have been better to reach political consensus rather than have the “right” conferred by the judiciary.

    Perhaps it may be pragmatically observed (as your use of quotes will doubtless rather provoke the dramatic declarations prone Left commentariat) that a right sans quotes confirmed by judiciary outside of the political process is more unstable than one reached through a legislative or similar process.

    The two can work together in common law of course.

    ReplyReply
    1
  27. Beth says:

    @JohnSF:

    Are the majority in this opinion saying that the courts cannot, and will not, protect any rights not set out in the Constitution and Amendments?

    Am a Lawyer, and yes they are claiming there are no rights unless they are specific enumerated.

    And as far as they are concerned the common law that the U.S. inherited got frozen in stone in 1776.

    Edited to clarify that Republicans believe there are no rights unless enumerated.

    ReplyReply
    7
  28. Lounsbury says:

    @Sleeping Dog: Skepticism indeed seems merited as the wave is not likely to be nationally distributed – or evenly.

    This is the continuing lesson about the USA I have learned to keep in mind but which even Americans seem to constantly elide, the really structurally and imporantly culturo-political sub-structures in USA with your very important regional variations.

    There probably will be a wave of reaction in support but not in the areas where abortion has ‘organically’ been outlawed already. I am guessing it will be very sub-nationally structured. Perhaps though to still potential benefit for the Democrats in those ‘purplish’ areas of MidWest, NorthEast if the understanding of them as comparatively (to the US south that seems to vehemently drive this subject) more socially liberal in this specific area is correct.

    ReplyReply
    1
  29. Lounsbury says:

    @Beth: That language seems radical, if it survives in the final decision, one should think it is a poison pill that will be their eventual undoing.

    ReplyReply
  30. Not the IT Dept. says:

    James, the triumphalist tone is 99% of the whole damn point. Rubbing the noses of the baby-killers in the dirt is the point.

    ReplyReply
    6
  31. Beth says:

    @Lounsbury:

    It is radical, and anyone shocked by it hasn’t been paying attention to Justice Alito. He’s an intense radical. I have no reason to doubt that Justice Thomas agrees with him whole heartedly.

    As @Not the IT Dept.: points out, the point of this is to be triumphant. The Chief Justice is irrelevant now. His little cowardly incrementalism is done. The fascists Alito and Thomas are driving the bus and this is them telling us.

    ReplyReply
    14
  32. Jen says:

    @DK: Then they should have no problem with a national gun ownership database, right? Quickly followed by a database of corporate farms that have engaged in animal abuse practices, and a full accounting of who is contributing to 501(c)4s.

    If there’s no right to privacy, let’s get some sunshine on some other areas.

    ReplyReply
    11
  33. MarkedMan says:

    @Lounsbury:

    Well, insofar as of yet that is not yet political malpractice given the actual electoral structure of the USA, but rather exploitable political tactics, the rejoinder is rather a pathetic Tu Quoque type fallacy bit of sophistry.

    This takes the prize. I’m not sure what for, but some kind of prize for sure.

    ReplyReply
    10
  34. Jen says:

    @Sleeping Dog: Women will have to start dying, and their family and friends will have to be open about WHY they died, for this to even start to dent the consciousness of Americans, Dems included.

    I remember reading about Roe in one of my con law classes, and one offhand sentence really stuck with me: that the most ardent proponents of Roe were doctors, who said that women stopped dying virtually overnight. Time creates amnesiacs. As a society, we’ve forgotten. This is a big yawn-fest to most Americans, not because they don’t care, exactly–they just don’t realize who this affects because no one talks about it from a personal perspective.

    Sununu finally signed the “fatal defects” exception bill, after a stream of women who had very much wanted pregnancies–and who had to make life-changing decisions–go through his office to tell their stories.

    It shouldn’t have to be that way. People shouldn’t have to lay bare their worst medical nightmares for someone to give a sh!t.

    Re: Susan Collins–I’m sure her brow is furrowed.

    ReplyReply
    7
  35. Sleeping Dog says:

    @Lounsbury:

    The short version, it doesn’t matter if Roe’s overturn drives turnout for Dems in CA and MA.

    The states to watch for Senate races, are PA, WI & NH, which would be competitive anyway and Ohio, which is considered likely R, but the margin is close enough that if Roe has an effect, it could deliver it to the Dems.

    One should always remember that betting on turnout and promoting the same, often drives opposition turnout as well.

    Moscow Mitch isn’t happy this morning, he really doesn’t want the pressure to ban abortion nationwide on Congresses plate.

    ReplyReply
    5
  36. Sleeping Dog says:

    @Jen:

    Unfortunately, it will take news coverage that reports abortion related deaths with the same attention that is given to random street murders. We know that the families will not be forthcoming in the numbers to make a dent. Besides Faux and Sinclair will never report on abortion related deaths.

    ReplyReply
    5
  37. DK says:

    @Lounsbury:

    Of course you are likely struggling with a confusion of Moral Rightness with political tactics for electoral wins.

    You seem to be struggling with the reality that the radical right extremist white identity politics of the GQP just caused the White House, Senate, House, Arizona and Georgia to flip blue in a space of four years.

    It’s rather pathetic how readily the minds of pompous establishmentarians are totally controlled by conventional Beltway wisdom, and by the white male media’s preferred narrative of “Everything is doom for Democrats, and Republicans are always winning.”

    But a supermajority of Latinos still vote Democratic. So do 90%+ of black voters. Republicans have still won the presidential popular vote only once in the past thirty years. And their elderly base continues to age and pass on, while two historically-diverse and historically-liberal youth generations age into power.

    Go off tho.

    ReplyReply
    9
  38. Scott says:

    Most of what I immediately thought of has been said. It is clear that some Supreme Court justices perjured themselves. Here’s what I think will happen.

    Individual states will rush to outlaw or legalize abortion.

    States will also take all those privacy rights that have been propped up by Griswold and:
    1) Legalize or ban same-sex marriage
    2) Legalize or ban birth control
    3) Legalize or ban various kinds of sexual behavior
    4) Define when life begins. Right wing states will state life begins at conception thereby banning most assisted reproductive techniques.
    5) Those states banning all those rights will pass laws to punished by imprisonment the commissioning of those banned acts.

    It is going to be a free for all that will tear this country apart. Maybe even violently. The current culture war was just skirmishes. This will be bloody and violent.

    ReplyReply
    8
  39. CSK says:

    @Jen:
    How interesting. I have a good friend whose father was a doctor. While he was otherwise politically conservative, he too was an ardent proponent of the right to an abortion.

    ReplyReply
    3
  40. DK says:

    @Beth:

    I have no reason to doubt that Justice Thomas agrees with him whole heartedly.

    If the chief justice is not in the majority, I believe it’s Thomas as senior justice deciding who writes the majority opinion.

    I know he and Alito are ideologically tight, but would he really rather pick Alito to author the screed enslaving women with forced birth, over the soothing papist maternalism of Amy Coney Barrett?

    ReplyReply
    2
  41. OzarkHillbilly says:

    @DK: IOKIYAR.

    ReplyReply
    1
  42. Michael Reynolds says:

    Are you telling me that the much-abused and despised old liberal Democratic establishment created rights for women, gays and transgender people, and all of those rights are being dramatically rolled back despite all the progress we’ve made in renaming schools, arguing about pronouns, inventing hashtags and defunding cops? Who could have guessed? Who could have predicted that the rising progressive generation could manage in the course of less than a decade to lose everything?

    I’m sorry, am I ‘hippie bashing?’ I see @wr calling for Biden to go rogue on the Supreme Court, and that’s certainly a rational, practical response: yes, let’s toss out the Constitution that should solve the problem. What a perfect example of the abject cluelessness and insufferably stupid political messaging of progressives.

    What do we have to show for AOC and all those young ‘uns who thought Nancy Pelosi was an old relic who should be pushed aside to accommodate the rising tide of righteous triumphant youth? Would it be absolutely nothing? We are getting our collective asses kicked on every front, by a relatively small minority, but hey, tell me again what an asshole I am for warning that we were – let me check my notes – that’s right, getting our collective asses kicked.

    This is a decade of political malpractice and yeah, I blame progressives. All lip, no fight. This is Bull Run, and we are losing to inferior forces, throwing away our muskets and running. Will that be enough to finally focus minds on doing what works and not just what makes us feel virtuous? I doubt it. But I’m sure we’ll reap a bumper crop of memes.

    ReplyReply
    10
  43. Scott says:

    I was in high school prior to Roe v. Wade. I remember the abortion arguments. I remember that the Catholic establishment was against, the protestants were for. I remember the bloody coat hangar articles. This is not going to be good.

    OTOH, the availability of abortion drugs through the mail may make this time different. We’ll see.

    ReplyReply
    2
  44. DK says:

    @Scott:

    This will be bloody and violent.

    Do you really believe this? Maybe I’m being sanguine, but this seems overly pessimistic. Are things really going to get more violent than the current, constant mass shootings, poverty-fueled crime, and white nationalist terror?

    I mean, who’s going to street fight over abortion? Boomer Republicans killing their progressive Zoomer and millennial grandkids? I don’t see it. I just see a lot more yelling on Twitter and Facebook.

    ReplyReply
  45. DK says:

    @Michael Reynolds:

    Who could have predicted that the rising progressive generation could manage in the course of less than a decade to lose everything?

    I mean, how insufferably wedded to right wing lies, hatred of youth, and debunked narratives do you have to be to scapegoat age groups that don’t vote Republican for problems obviously created by the supermajority Republican votes of your own generation?

    Will Boomers ever take responsibility for going into the voting booth and exiting it having left America poorer, more divided, and more under threat all while cutting taxes for themselves?

    ReplyReply
    25
  46. OzarkHillbilly says:

    @Sleeping Dog: Equal rights for women are always trumped by the desire for $$$$$$$$$$$$$$$$$$$$$$$$$.

    ReplyReply
    3
  47. Beth says:

    @DK:

    Oh, he’d absolutely give that screed to Alito. Thomas’s dissents have become that screed. He’s Scalia with less personality and more screech.

    I’m taking this as a victory lap for the Bork/Scalia/Thomas/Alito wing. Kavanaugh, Gorsuch and Barrett were lab grown for this job, they don’t get to write the important stuff. Not when the OG fash daddies are there.

    ReplyReply
    4
  48. Scott says:

    @DK: Protests will have to be put down. People like Trump are already demanding that protesters get shot. Didn’t happen but the demand is there and there will be less barriers for that occurrence. I am 68. I was in 10th grade when Kent State happened. I remember the bad times.

    ReplyReply
    4
  49. Michael Reynolds says:

    @DK:

    MESSAGING.

    How fucking hard is it to understand that we have been painting a picture of ourselves and guess what? No one likes the fucking picture. People do not vote for people they don’t like. If I hear one more time ‘hey, man, no one is actually defunding. . .” I will scream. It DOES NOT MATTER that no defunding occurred, we sent the fucking message. The MESSAGE is what matters. And what is the message we’ve been sending? That we like crime. Duh. And if you don’t understand that, you don’t understand politics.

    We have been outplayed, outfought, outwitted, by morons. That’s how incompetent we are. We didn’t get beat by geniuses, we got beat by idiots. But idiots who commit and who unite and who fight day in, day out.

    It’s funny how progressives love to talk generations and generational failure and heap scorn on those useless old relics like Nancy and Joe, til it’s their turn in the barrel. Millennials and Gen Z inherited freedoms gifted them by Boomers. And they promptly lost those freedoms. That’s the reality. They LOST to absolute pinheads. And now apparently still cannot take responsibility.

    ReplyReply
    10
  50. DK says:

    @Michael Reynolds:

    People do not vote for people they don’t like.

    Which is why Democrats control the White House, Senate and House, not Republicans.

    We have been outplayed, outfought, outwitted, by morons.

    The reality is “we” flipped blue the White House, Senate, House, Arizona and Georgia, on the strength of youth voters.

    It’s funny how progressives love to talk generations and generational failure and heap scorn on those useless old relics like Nancy and Joe, til it’s their turn in the barrel.

    Nancy and Joe only have power because of the percentage of youth votes that went for their party. Both were memed into pop culture folk heroes by youth creative. Progressives have dutifully supported the Biden agenda, but he has been sabotaged by moderates and conservatives.

    Millennials and Gen Z inherited freedoms gifted them by Boomers. And they promptly lost those freedoms. That’s the reality.

    Of course, this an obvious lie. The reality is that any freedoms being lost are being lost because a majority of Boomers and white people keep finding excuses to vote regressive, for Trumpism and Republicans, over the opposition of America’s historically-diverse cohort of youth voters.

    If only millennials and Zoomers could vote, Democrats would have supermajority control of not just the federal government, but statehouses and courts across the land. As our Boomer friends are fewer in number over the next several years, these regressions will be reversed.

    ReplyReply
    10
  51. Beth says:

    @Michael Reynolds:

    This is the most ridiculous boomer shit ever. Sit down grandpa. Handed our rights by Boomers. Garbage. You old asses never let go of power. We’re run by a gerontocracy afraid of the ghost Ronald Regan.

    I thought Ozark did a beautiful job of dispelling this messaging crap yesterday. And in any event, how exactly are we supposed to message our way into something better. We spent years politely saying “hey, maybe the Police shouldn’t kill back people” before we got to defund. Polite didn’t work.

    And how exactly is someone like me supposed to “message” my way to rights when I’m faced with people that want nothing less than the genocide of my people. I’m supposed to stand up and politely beg for scraps that are never coming? FOH

    ReplyReply
    17
  52. DaveD says:

    @Michael Reynolds: Name one police department that got defunded. I’ll wait.

    ReplyReply
    5
  53. DK says:

    @Beth:

    Sit down grandpa.

    Forgive me for lecturing while your rights and humanity are under attack. But easy Beth. Try not to get down in the rhetorical dirt, it’s not worth it.

    ReplyReply
    3
  54. Daryl and his brother Darryl says:

    This decision joins Bush v. Gore in the annals of Judicial Activism.

    ReplyReply
    3
  55. Michael Reynolds says:

    @DK:

    If only millennials and Zoomers could vote, Democrats would control courts and state houses across the land.

    When we old farts were fighting for abortion rights and gay rights do you think we faced no opposition? Funny how we can be blamed as an entire generation, but when it comes to the next generation taking even a scintilla of blame it’s nope, no way, it’s still all the fault of someone else. It simply cannot be the fault of so many extra virtuous 20 and 30-somethings, it’s still Mom and Dad’s fault. I mean, sure, Mom and Dad handed us abortion rights, but it’s their sole job to go on in perpetuity handing us those rights, and anything else we want because. . . Um. . .

    Responsibility? Noooo, that’s always on someone else, someone not protected by the magical virtue raiment of youth.

    We are getting our asses kicked by morons but somehow no fault applies to anyone under the age of 60. It’s dirty old Nancy and Joe, never shining youth. And who, pray tell, is going to recover our lost rights? Is that on the Boomers, too? Or do you think maybe, just maybe, some tiny little iota of responsibility might land on someone else?

    ReplyReply
    7
  56. Daryl and his brother Darryl says:

    @Michael Reynolds:
    You are 100% on this.

    ReplyReply
    4
  57. KM says:

    @James Joyner:

    position that it would have been better to reach political consensus

    Political consensus on a political and human right. How…. very privileged worldview that is.

    Anything else I say would likely get me banned.

    I wonder James just what right you are willing to let the public decide you should have by consensus. How long you are willing to go without it, how must suffering you should deal with will they think about it and how you’ll handle a complete bunch of strangers deciding you don’t deserve it and strip it away due to their beliefs. May fate never put you in the position I woke up in this morning, wherein I was at risk of not having full bodily autonomy by law and thus being not a full human being under the law. May karma never make you regret being willing to put up freedoms you’ve had your whole life to the whims of the fickle public.

    @Scott is right – this will be bloody and violent. Oh, there will be some initial rioting like BLM but mostly we’ll see a return to the 60’s political scene like the Weathermen and Panthers. Action done not by the ballot but the bullet. Being a pol won’t be a safe, cushy job anymore and I wouldn’t be surprised it someone took a swipe at a right-wing SC to “open up a spot.” As we’ve seen, it only takes few angry people to cause a great big mess; 50+% of the population now has a reason to be very mad and very motivated. If voting doesn’t work and peaceful protest & boycotts doesn’t work, there really isn’t any positive avenues left.

    The leak may very well have been by someone smart enough to know Pandora’s Box is about to spill it’s evil all over America and trying to head it off.

    ReplyReply
    6
  58. a country lawyer says:

    Alito has been writing and re-writing this opinion since he came to the Court. It has been sitting in the top drawer of his desk just waiting for that extra vote. Thomas knew it and was happy to reward him with the authorship of the opinion.

    ReplyReply
    2
  59. Michael Reynolds says:

    @DaveD:
    Jesus H. Christ. IT DOES NOT FUCKING MATTER that no PD was defunded. The message was sent. You notice how in the end Trump did not actually shoot demonstrators? Do you dismiss that messaging? Or do you come away with the knowledge that Trump sure as hell would have shot demonstrators if he could? And that Trump is therefore someone you would not vote for?

    I give up. It’s like trying to talk football with someone whose first remark is, “How come they keep running into each other?”

    Bunch of very smart people here who, in many cases, know fuck-all about politics and are determined never to learn.

    ReplyReply
    12
  60. Lounsbury says:

    @DK:

    You seem to be struggling with the reality that the radical right extremist white identity politics of the GQP just caused the White House, Senate, House, Arizona and Georgia to flip blue in a space of four years.

    Amusing reading. Let’s see we saw the usual four-eight year USA pattern of exchanging back and forth the Presidency, although Trump’s gross Pandemic incompetence can be reasonably hypothesized to have cost him dearly. White grievance politics, that is far from being evident to have cost them, really the contrary, it seems to allow them to punch above their natural numbers.

    You have zero margins in House and Senate (as the maths show although I guess the innumerate are insensible to such), and are about to lose them again (ex-the saving Court decision), having substantially underperformed in the ordinary general elections the expected returns to your side at national and state levels.

    So, no, not political incompetence given their baseline numbers, rather performing above expected returns. They have found some judo to turn what could otherwise be locked-out of power situation. That is not political malpractice nor incompetence. Their judo point is nasty and unpleasant, wrong, but it has brought them near-term returns while the Left in USA keep chittering on about generational advantages or identarian bases and future demographics while sticking their fingers in their ears about the structural geographic failure of such demarches (of course the entire generations based analysis is complete and utter bollocks, however Americans of all flavours are so very bought into the nonsense of this).

    ReplyReply
    2
  61. DaveD says:

    @Michael Reynolds: You neglect to blame the same boomers for stealing those hard fought rights away. Millennials and zoomers certainly aren’t pulling the levers of government.

    ReplyReply
    7
  62. Scott says:

    @DaveD: Not the point. If you’re defending, you’re losing. That’s the point. If all you’re doing is crouching and asking them to stop beating you, you’re losing.
    You got to go on the offensive and make the other side defend.

    ReplyReply
    3
  63. Michael Reynolds says:

    One more time, let’s see if this is dumbed down enough:

    1) I favor legislation that would drown all puppies and kittens!
    2) Well, it turns out in the end no puppies or kittens were drowned.
    3) So no one has any reason to think of me as a guy who would drown puppies and kittens.

    Right? See how messaging work? See why it’s a problem? Voters don’t vote on anything but their subjective impressions. This is why, children, we want to be careful about the impression we make. Right? It’s called message discipline. Or just, politics.

    ReplyReply
    10
  64. KM says:

    @DK:

    I mean, who’s going to street fight over abortion? Boomer Republicans killing their progressive Zoomer and millennial grandkids? I don’t see it. I just see a lot more yelling on Twitter and Facebook.

    Older generations have never had a problem killing the younger when they protested injustice and it will be no different now. Greatest Gen and Boomers died during the Civil Rights march, killed by their Lost and Silent elders. Why wouldn’t they turn on the youth themselves like every other generation has done when push comes to shove? They’re no different – human like you and me.

    I think a lot of people are underestimating how *angry* some folks will be – not just by this but right-wing f^ckery over the last few years finally reaching it crescendo. Patience and tolerance is at a low-ebb after having to deal with MAGA for nearly half a decade and then COVID BS on top of the now publicly-acceptable rage fits conservative are throwing. I know libs generally are the more non-violent type but everyone have their breaking point and taking away 50yr rights is probably one of them. Add in that this is only the beginning – they’ll be coming for more and you have recipe for radicalization and political violence from folks who go “no more”.

    ReplyReply
    1
  65. DK says:

    @Michael Reynolds:

    And who, pray tell, is going to recover our lost rights?

    Time. The demise of the gerontocracy and the rising political power of historically-diverse, historically-liberal millennials and Zoomers.

    Tantrum and froth-at-the-mouth about it all you want, but the simple, unassailable fact remains that it’s Boomer votes that are empowering Republican reactionaries.

    Conversely, the victories of Biden and Democrats were powered by record youth turnout. Facts matter, no how much Twitterbrain and and the phony narratives based in Beltway conventional “wisdom” (lol) can’t abide them.

    ReplyReply
    5
  66. Kurtz says:

    @Beth:

    my people.

    Careful there, Beth. Everyone knows that identity politics are toxic. /s

    Say it with me everyone, all politics are identity politics. Whether it’s based on an immutable trait or a chosen/learned identity, that’s all there is.

    ReplyReply
    4
  67. DK says:

    @Lounsbury: Imagine not knowing Trump’s gross pandemic incompetence was intimately rooted in — not separate from — his odious radical right white grievance identity politics.

    Spin it and downplay it however you want, Democrats won in 2020 then turned around and flipped two Georgia Senate seats on January 5, 2021. Trump and Republicans lost. Winning is winning, losing is losing, and razor-thin margin or no, I would not trade places over the last two years.

    ReplyReply
    3
  68. Lounsbury says:

    @DK: Ah the Youth Vote mythologising. Unavailable in the data I recall reading.

    @DaveD: interesting bit of sophistry that goal post moving….

    ReplyReply
    1
  69. Beth says:

    @DK:

    You’re right, Thank you for reminding me.

    That being said, like KM said, waking up and knowing your body and your humanity are not yours to control is a horrible thing.

    The Reynolds “mythology” that the boomers handed the world something that we then destroyed because, what? We didn’t ask them in the right way for our rights? Abortion rights weren’t won by the Reynolds of the world. They were won by the bodies of thousands of dead women. Black civil rights weren’t won by comfortable white people. They were won by Black people getting their skulls crushed in. Queer rights weren’t won by asking straight people nicely for a wedding. They were won by the corpses of our suicide victims, the outcasts from families, and the mouthy ass Trans women demanding to be taken as human.

    These rights aren’t being taken away because we said the wrong thing. They are being taken away and are under assault by comfortable White people who some cases have been lied to, or in some cases like Dr. Joyner, don’t know the joy of being looked at as less than, or like Reynolds whose privilege and stature are threatened by everyone else.

    These rights are also being lost because Boomers refuse to retire. They can’t imagine a world where they are not in control and we have to deal with the decaying nonsense around them. This is Ginsburgs fault, Feinstein’s fault and the rest of them that refuse to turn the reigns of power over. Hell, I bet this is why Breyer finally decided to retire. He saw this and went oh crap.

    ReplyReply
    11
  70. DK says:

    @Lounsbury: Record youth voter turnout powered recent Democratic victories. Facts don’t care about your inability to read data.

    ReplyReply
    6
  71. DK says:

    @Beth:

    They were won by the bodies of thousands of dead women. Black civil rights weren’t won by comfortable white people. They were won by Black people getting their skulls crushed in. Queer rights weren’t won by asking straight people nicely for a wedding. They were won by the corpses of our suicide victims, the outcasts from families, and the mouthy ass Trans women demanding to be taken as human.

    Louder, for those in the back.

    ReplyReply
    10
  72. Lounsbury says:

    @DK: “Imagine not knowing Trump’s gross pandemic incompetence was intimately rooted — in not separate from — his odious radical right white grievance identity politics.”
    Wonderful bootstrapping assertion. Quite irrelevant to the political results observed, but for precision, I would say fundamentally unfoudned and rather questionable reasoning, the “rooted in” as there’s really no obvious direct relationship between his operational incompetence and white grievance politics. While one could indeed make a case there are some common end roots perhaps rooted in his own dimness, his failures in the pandemic show now roots in ethnic grievance politics as such.

    ReplyReply
    1
  73. wr says:

    @Michael Reynolds: Hey Michael — India’s in the middle of a heat wave that’s killing people and destroying crops. Putin is threatening the world with nuclear war. Republican legislators are coming out for literally burning books.

    You forgot to mention how all these, too, are the fault of some Swarthmore sophomore on Twitter.

    ReplyReply
    15
  74. Modulo Myself says:

    If there is one liberal to blame it’s Ginsburg for not retiring in Obama’s term. Beyond that, you have the actual money and power of the Democratic Party. They spent 90 million to beat Mitch McConnell. How did that work out?

    Regardless, this isn’t really the fault of liberals. America society is built around deceit, and the Republicans and the Federalist Society and every obvious lie about how Roe v Wade–they are the equivalent of a nice street in a nice southern town where everyone joins a lynch mob at night, and then asks to be understood decades later. What’s new is the utter stupidity of the mainstream in this country. Like not being able to intuit what a feral pig Scalia was, or missing the utter sleaze of the others. It was not the left who based their ideology on falling for the wallet inspector.

    ReplyReply
    5
  75. Lounsbury says:

    @DK: Well then present that data, I don’t recall reading any such numbers demonstrating such an effect. Of course not being in USA, I could well have missed it, should be happy to read.

    ReplyReply
  76. DK says:

    @Michael Reynolds:

    I give up.

    And the world breathes a collective sigh of relief.

    Can we hold you to this? Lol

    ReplyReply
    4
  77. MarkedMan says:

    @Beth:

    This is the most ridiculous boomer shit ever. Sit down grandpa.

    Michael is a cranky guy, but I can’t think of a better example to prove him right. Old people should sit down and shut up and let themselves be educated by their betters. White people should sit down and shut up. Christians too. Who the f*ck is left? Your answer to the injustice of being marginalized is to marginalize 80% of the population and then demand their vote?

    ReplyReply
    6
  78. DK says:

    @Lounsbury:

    his failures in the pandemic show now roots in ethnic grievance politics as such.

    There is actually a wide body of evidence suggesting Trump downplayed the virus precisely because it was first disproportionately killing urban ethics hostile to him, rather than his rural white base.

    ReplyReply
    5
  79. Scott says:

    Interesting. I was going to google something on the Supreme Court and started with “Can a Supreme…” and up popped the suggested fill-in “Can a Supreme Court justice be impeached?”

    The thought is already out there.

    ReplyReply
    2
  80. Roger says:

    @James Joyner:

    So, to take an obvious example, nowhere in Article III is the power of judicial review mentioned. It was widely understood to be an inherent power of the courts.

    This is a marvelous piece of question begging: things that seem natural to me don’t have to be mentioned, because they are inherent and so, of course, are included without being mentioned. I wasted a lot of time in law school learning about Marbury v. Madison if the power of judicial review really was just obviously within the constitutional power of the court. Jefferson, of course, disagreed and the genius of Marshall was that he asserted the power in a case that ruled in Jefferson’s favor so that Jefferson didn’t have the ability to create a constitutional showdown over the issue.

    I don’t want Biden to decide that he doesn’t have to listen to what the Supreme Court says because I think such an approach leads to chaos, but I don’t see a principled way to say that things I like are hidden in the Constitution even though they aren’t explicitly mentioned, but things I don’t like have to be in the document, highlighted, and underlined. Things are going to get uglier before they get better.

    ReplyReply
    7
  81. wr says:

    @Michael Reynolds: “ee how messaging work”

    I think just about everyone in the world understands better than you do.

    You notice what the right has been on about lately? Grooming. And the “fact” that all Democrats are pedophiles.

    I’m sure you’d love to find some way to blame this on AOC, but Republicans don’t actually need Democrats to do or say anything to gin up their outrage machine. They simply invent this bullshit and then their propaganda networks go to work. And soon every right wing troll is screeching about “groomers.”

    To you, I’m sure this is all the fault of Democrats for not proactively coming out against pedophilia. Or for not messaging against pedophilia enough.

    ReplyReply
    12
  82. wr says:

    @DK: “There is actually a wide body of evidence suggesting Trump downplayed the virus precisely because it was first disproportionately killing urban ethics hostile to him, rather than his rural white base.”

    That’s understating the case. It’s not just a wide body of evidence. Jared Kushner said it out loud in exactly those words.

    ReplyReply
    6
  83. Kurtz says:

    I don’t feel well enough today to engage in a flame war, much less a serious discussion so I’m not going to @ anyone. Subtweeting will be just fine.

    To those blaming AOC:

    Right, because when she was still an unknown bartender, Fox News et al had trouble finding someone to put a face to the Democratic Party. I’m trying to think back to whose face they displayed on segments meant to paint the Dems as radical far-Lefties.

    Damn, it’s on the tip of my tounge…

    Oh, that’s right, it was Nancy Fucking Pelosi.

    To all those blaming messaging:

    You know why OTB is great? Because it is the opposite of media punditry.

    So why are all of you intent on presenting and defending pundit-style explanations?

    The fact is, if the repeated polling that suggests most of the big Democratic priorities hold strong popularity, even among Republicans. This shows that messaging isn’t the problem.

    There are structural reasons the GOP has a stranglehold on rural America.

    There are cognitive reasons why individuals consistenly only vote for one party.

    There are a ‘moral’ reasons why an individual will agree with the majority of one side’s platform but pull the lever for the other party. (e.g. Abortion)

    None of those are fixed by messaging.

    Sit down. Absorb Taylor’s posts about representation, FPTP, single member districts, etc. and apply that to your bright messaging ideas.

    Messaging matters at the margins. Marginal gains won’t be enough to win states, because so many of them are 5+ R leaning. Unless you plan on popping bottles when the GOP wins the Kansas Senate race by +4.

    ReplyReply
    13
  84. wr says:

    @MarkedMan: “Old people should sit down and shut up and let themselves be educated by their betters.”

    Talk about grievance politics. Beth wasn’t telling “old people” or “white people” to sit down and shut up. She was telling Michael Reynolds to sit down and shut up. That you turned this into an attack on everyone old and white is worthy of Tucker Carlson.

    And I say this as a guy who is no less white and not much less old than MR.

    ReplyReply
    12
  85. SC_Birdflyte says:

    @Sleeping Dog: I doubt that McConnell would ever let a bill like that come to the floor. It would die quietly behind the scenes.

    ReplyReply
  86. Lounsbury says:

    @DK: Well then cite said evidence – although here you are really talking about some early stage anectdote about the first months of the pandemic and that is at best . Benchmarking USA in Trump era against other Upper Income democracies, the speed of implementation of Covid response in the first months do not look all that different at all.

    So, yes, you have a political belief here, but rather dubious as to foundation and rooted in anectdote in the early stages, not particularly explanatory of his overall failure.

    Trump’s fundamental failures come in practical incompetence over the entire time of the pandemic, which do not objectively look particularly rooted in white grievance for all that his brand of that and his pandemic response may have themselves common roots in his own dim insularity, but that does not bootstrap to explanatory (nor make it evidence, hypotheses on commonalities perhaps, but evidence, no).
    d

    ReplyReply
    2
  87. Scott says:

    @wr: You are just proving Michael’s point right here. Yes, the radical right come up with the offensive talking point and everybody just goes into a defensive crouch. It does no good to deny you’re not a sexual groomer. This is not a debate society. It is not fair. So what are you to do besides whine about how unfair it is and that you don’t groom small children for your own sexual gratification? You have to go on the offensive. You have to be ugly. Unless you just want to be a victim.

    ReplyReply
    3
  88. Neil Hudelson says:

    @James Joyner:

    There had not prior to 1965 been an inherent right to contraception nor prior to 1973 to abortion; they were made up, essentially out of whole cloth, by SCOTUS. Judicial review had been part of the Common Law tradition for a very long time before Marbury v Madison.

    Common law held that abortion was legal up until ‘quickening”–ie, a viability standard.

    ReplyReply
    9
  89. Jay L Gischer says:

    James, your argument appears to ignore the existence of the 9th Amendment. You can say “they made that right up”, but more neutral language would say, “they recognized that right”. It seems perfectly constitutional to me for them to do that.

    I would tend to agree with Notorious RBG on the political effect, though.

    However, if we could have won it then, we can win politically now.

    ReplyReply
    5
  90. DK says:

    @Lounsbury: No, I don’t acquiesce to citation demands from random, irrelevant internet people. I don’t do unpaid labor, and it’s not my job to educate you about my own country. I don’t have to prove anything to you, you’re not signing my paychecks. Educate yourself.

    That said, the evidence was already cited. You are just determined to downplay it because you’ve already decided not to change your mind, no matter what. Not my problem.

    That Trump’s pandemic incomptence started with white supremacist disregard for black and brown lives, and that he then double, tripled and quadrupled down on it ‘because stubborn’ is very explanatory.

    ReplyReply
    5
  91. Scott says:

    @Roger: Back when liberals were in control of the Supreme Court, there was talk in radical right circles about how Marbury v. Madison could be overturned. Unfortunately, as we seen in election law, fringe theories can be brought forth and mainstreamed, if necessary. Constitutional lawyers have the skills to justify anything they want. We rely a lot on good will and norms in this country and we are seeing the results of those who violate them.

    ReplyReply
    2
  92. gVOR08 says:

    Over at Balloon Juice there’s a post mocking conservatives focusing on the impropriety of leaking a draft opinion. The Daily Show tweeted,

    Weird it’s almost like those Supreme Court Justices think there’s some kind of right to make decisions in private

    It’s pointless, but entertaining, to speculate on who and why. Odds are it’s the obvious, a liberal (i.e. not nut job conservative) clerk, or IT flunky, leaked it hoping for a massive counter-reaction. But it could be Roberts, trying to make the 6-3 decision he’s signed onto look reasonable in contrast. Maybe one of the conservatives realized they were about to release a crap decision and wanted to force reassigning it to a smoother, and less triumphalist, liar. There’s speculation Kavanaugh, as well as Roberts, wants a decision pretending to not totally overthrow precedent and this is meant to pressure him into not being the fifth vote for this.

    ReplyReply
    1
  93. Jay L Gischer says:

    So, I’m wondering about consequences. If as has been indicated upthread, sitting justices have lied under oath in interviews with Senators, doesn’t that make reasonable grounds for impeachment of said justices? Of course, they have to find 67 senators to go along with this.

    But really, we have a high standard already, most politicians find a way to not lie under oath. And a Justices of the Highest Court really ought to meet a higher standard than this.

    ReplyReply
    4
  94. becca says:

    Makes me think finding out my grand girls were gay would be a relief.

    ReplyReply
  95. DK says:

    @Jay L Gischer:

    If as has been indicated upthread, sitting justices have lied under oath in interviews with Senators, doesn’t that make reasonable grounds for impeachment of said justices?

    Meh. “I changed my mind” is a valid defense here. It’s a lie, but who’s going to challenge it?

    ReplyReply
    2
  96. Jay L Gischer says:

    I am a Boomer and I don’t appreciate the broad brush.

    I do think it is important, politically, to not be so defensive, but to tell your own story and advance your narrative rather than just shout “No I’m Not!”

    However, that doesn’t have to be ugly. Consider Obama, he did this all the time. For instance, during the campaign, some idiocy was about how he drank wine not beer. His response? “I had a beer last night, where do they get this stuff?” I wouldn’t call that ugly, but it is a clapback.

    ReplyReply
  97. Beth says:

    @MarkedMan:

    Perhaps I was indelicate. I’ll work on my messaging.

    Snark aside. I really like Reynolds. I think he’s a interesting and fascinating guy. I have a lot of respect for him and think he’s a true ally to causes that are important to me. The fact that he is supportive of his daughter tells me a lot about him. I think he’s cool. He also has a couple of hobby horses that he loves to ride that really irritate the crap out of me. Most of the time I can keep my mouth shut. This isn’t one of them.

    To your broader comment, no we can’t write off everyone. But some people (and sometimes ever our allies) need to be told bluntly to shut up. Some people can be reasoned and argued with, most of the time. Some people can be cajoled and worked on. Other people are just lost.

    Your answer to the injustice of being marginalized is to marginalize 80% of the population and then demand their vote?

    No, but sometimes the privileged and the comfortable need to sit down and listen. Women are going to die because of this. Women are going to be imprisoned because of this. Queer people are going to suffer. All because the privileged and comfortable don’t want to make any space for anyone else.

    ReplyReply
    11
  98. MarkedMan says:

    @Kurtz: I think the perfect distillation of how change happens was summed up by Hillary Clinton, recorded on a mobile phone when she was confronted in a corridor by (I think) BLM protestors. I’m going to paraphrase here: “F*ck “hearts and minds”, laws change lives. You want lives changed, work to change the laws.” She was dead on. And how do you change laws? By assembling a coalition of legislators that will do so if pushed hard enough by enough of their constituents. These legislators and constituents don’t have to be like minded, they don’t have to want the laws changed for the same reasons you do, you just have to hold them together long enough to get it over the finish line. Wagging your finger in the face of your temporary allies and lecturing them about how wrong their reasons are is, to say the least, counterproductive.

    There is probably no better illustration of these destructive tactics than those BLM protesters who surrounded Hillary, shouting at her and belittling her. Who is more likely to support their agenda, Hillary or her Republican opponent? But who did they swarm and try to humiliate and tear down? Now, this wasn’t her first rodeo and she wasn’t going to change her positions because her widdle feelings got hurt. But by humiliating her in that way, they damaged her. Totally an own goal.

    ReplyReply
    7
  99. @Michael Reynolds: It is a known fact that dumb hashtags are why each state gets two senators regardless of population. And, without any doubt whatsoever, uttering the words “defund the police” three times conjures a popular vote inversion in the Electoral College.

    Moreover, it was the renaming of schools that caused RGB to not consider a strategic resignation, and when the Lee statue came down, it killed her.

    All of which is to say that while some of your critiques may have merit, your certainty about causality is way off.

    ReplyReply
    21
  100. MarkedMan says:

    @wr: Not sure if it was Beth, but not too long ago someone in this endless argument quite literally told me that as an old white male I was privileged and should sit down and shut up and be educated by those who know better. “Sit down Grandpa” is just more of the same.

    ReplyReply
    2
  101. @DK:

    Meh. “I changed my mind” is a valid defense here.

    As is: the case we are deciding upon now did not exist at that time, so, you know, things change.

    I get how the “they lied” is a talking point, but it utterly is meaningless. And, really, did anyone think that Alito or ACB, to name two, weren’t willing to find a way to overturn Roe despite whatever obfuscating answer they gave in the confirmation hearings?

    ReplyReply
    2
  102. Fortunato says:

    A chicken in every pot.. .
    a bucket of free abortifacients (Levonorgestrel EC. ‘morning after’) on every street corner.
    Free in every big city bar and small town tavern, just spin that little silver knob on the bathroom dispenser.
    Free at every pharmacy, fast food drive-thru and gas station.

    And..
    A simple amendment to our tax laws requiring every tax-exempt organization in America provide free abortifacients (Mifepristone, up to 70 days after last period) on demand.
    If said tax-exempt org(s) objects, they’re immediately stripped of their tax-exempt status, federal and local.

    It’s long past time Democrats started throwing f–g punches.
    Let the MAGAts wail. Let them take to the streets, guns and bibles akimbo.
    Thanks to Joe Biden and a Democratic Senate and House, America’s police and military have never been more richly funded.

    ReplyReply
    1
  103. DK says:

    @Steven L. Taylor:

    I get how the “they lied” is a talking point, but it utterly is meaningless.

    I mean, yeah, they did lie. However, they can say they didn’t. And as you imply, everybody (except Susan Collins???) knew they were lying and why. We don’t really care. Who hasn’t lied in job interviews?

    But I think “They committed perjury” is a rhetorical device. The court’s critics want to undermine Federalist Society jurisprudence in general. And to damage the election prospects of senators like Collins. And to suggest future Republican SCOTUS nominees cannot be trusted. It’s long game stuff, were it to have legs.

    ReplyReply
    1
  104. @Michael Reynolds:

    know fuck-all about politics and are determined never to learn.

    Well….

    To be clear, as I have tried to explain many times, it isn’t that I m saying that messaging doesn’t matter. But I am saying that the messaging simply does not matter as much as you are asserting, Moreover, while I have no problem with you advocating that Dems ought to behave a different way or to assert that a specific slogan or idea was a mistake.

    What I am trying to point out is that you are simply wrong that the reason we are where they are is because the Dems have allowed progressive messaging to kill them.

    The Dems are where they are because we have structures that empower the minority.

    The minority of Americans gave us Trump. A minority of Americans gave us a 6-3 conservative majority on the Court. If there is a message that needs to get out, it’s that.

    “Defund the Police” didn’t give us a reversal of Roe. The structure of the Senate and the way we electe the President did.

    ReplyReply
    15
  105. Beth says:

    @MarkedMan:

    Lets be clear, I didn’t tell you to sit down and shut up, I told Reynolds. You are the one deciding that anyone said you need to be educated by your betters.

    I’ll make myself extra clear, a lot of old white men, especially those of privilege and power, need to listen and make space for OTHERS. Not betters, not worses, OTHERS.

    That and a whole generation of politicians need to retire.

    ReplyReply
    7
  106. Jen says:

    On a separate note, Chief Justice Roberts has just announced an investigation into the leak. I would think that the circle of people who have access to drafts is likely pretty small.

    Someone felt this was important enough to risk their entire career. I’m not really sure what to make of that. I can’t imagine it will change the outcome, so was the timing critical? I don’t see that as much of an issue either–the Big Decisions are generally handed down in June, so what’s another month or so?

    ReplyReply
  107. wr says:

    @Jay L Gischer: “I am a Boomer and I don’t appreciate the broad brush.”

    The Republican Supreme Court, appointed by Republican presidents and a Republican Senate, just voted to deprive half the country of their constitutional rights. And for some reason, a handful of Democratic commenters here decided that the real fault was whichever set of Democrats they don’t belong to. It’s the progressives. No, it’s the Boomers.

    The fact is, the only fault that can be ascribed to any set of Democrats — other than Manchin and Sinema — is failure to find the right strategy to fight back.

    The real bad actors here are Republicans. And instead of wasting our energy deciding which of our allies is to blame and how we should make sure they never have power, we should be figuring out how we can all hold our noses and work with people who annoy us for the goal we all embrace.

    So Michael — maybe stop whining about those kids who piss you off for a few minutes and think about defeating Republicans. (And saying “we’d be wiping them all out if it weren’t for those damn kids” isn’t actually productive.) Beth — maybe stop using ridiculous generational brushes to claim that everyone born within a certain time frame thinks the same way. It’s a silly as determining political positions by astrological signs.

    Maybe now that we are at a moment of real crisis, when people are going to be dying and be sent to jail for exercising what today is a constitutional right, maybe we could focus on changing things instead of beating up on each other.

    ReplyReply
    7
  108. MarkedMan says:

    @Beth: I appreciate the reasoned reply.

    I think you and I have a fundamental disagreement about the usefulness of the following tactic:

    But some people (and sometimes ever our allies) need to be told bluntly to shut up.

    I think it is almost always counterproductive. And for allies whose interests and concerns only marginally coincide with mine I think it is absolutely destructive. You may think it is worth writing such people off, but I believe that describes 70-95% of most coalitions.

    ReplyReply
    1
  109. @Kurtz:

    The fact is, if the repeated polling that suggests most of the big Democratic priorities hold strong popularity, even among Republicans. This shows that messaging isn’t the problem.

    There are structural reasons the GOP has a stranglehold on rural America.

    There are cognitive reasons why individuals consistenly only vote for one party.

    There are a ‘moral’ reasons why an individual will agree with the majority of one side’s platform but pull the lever for the other party. (e.g. Abortion)

    None of those are fixed by messaging.

    Indeed.

    Absorb Taylor’s posts about representation, FPTP, single member districts, etc. and apply that to your bright messaging ideas.

    I will be immodest and endorse this suggestion 😉

    ReplyReply
    6
  110. MarkedMan says:

    @wr: “The Republican Supreme Court, appointed by Republican presidents and a Republican Senate, just voted to deprive half the country of their constitutional rights. And for some reason, a handful of Democratic commenters here” started to discuss what tactics would better serve to insure that the Republicans didn’t continue to hold such power. And other Democratic commenters told them to shut and sit down. Bluntly.

    Like I said, cranky as Michael is, there is no better illustration of his point.

    ReplyReply
    1
  111. Rick DeMent says:

    @DK:

    Conversely, the victories of Biden and Democrats were powered by record youth turnout. Facts matter, no how much Twitterbrain and and the phony narratives based in Beltway conventional “wisdom” (lol) can’t abide them.

    Sure but to what extent was that driven by Trump? Trump caused a lot of people to get motivated where everything else on the political landscape didn’t. Also, the youth vote stayed home in the NC special election. Polls are showing that the youth vote won’t be there in the midterms. I hear more bellyaching about Biden from the “youth” vote then anyone else. The same people who felt that not voting for Hillary Clinton because she beat Sanders was a good idea. If those are the voters we have to depend on to turn the tide in November we are freaking doomed.

    ReplyReply
    3
  112. @James Joyner:

    : There had not prior to 1965 been an inherent right to contraception nor prior to 1973 to abortion; they were made up

    I understand where you are coming from, but another way of looking at even just that sentence is to replace “made up” with “not recognized by the Court.”

    I would note that, in some ways, all rights are “made up” or, at least, don’t matter unless a government is willing to recognize and protect them.

    ReplyReply
    8
  113. wr says:

    @MarkedMan: “I think it is almost always counterproductive. And for allies whose interests and concerns only marginally coincide with mine I think it is absolutely destructive. ”

    This is really the last time to be telling any of our allies to sit down and shut up. (Well, I’ll make an exception for Michael, who I suspect enjoys and encourages it.) The entire Democratic coalition is united on this. There is no division.

    Yes, there are issues that divide Dems, and often along age or class lines. If Beth thinks Steny Hoyer should stay out of gender issues, that’s just politics.

    But we all agree here. The Supreme Court has just taken away civil rights from half of the American population. They are no longer a court, they are entirely a political organization enforcing reactionary policies based on conservative religions and they must be stopped.

    Let’s all move forward together on this. We can fight about other stuff later.

    ReplyReply
    6
  114. DK says:

    @MarkedMan:

    Like I said, cranky as Michael is, there is no better illustration of his point.

    What point is that? That everything wrong with America is the fault of progressives and rising youth, who are clearly responsible for the end of abortion rights?

    ReplyReply
    2
  115. DK says:

    @Rick DeMent:

    Also, the youth vote stayed home in the NC special election.

    And the old vote voted for reactionary right wing Republicans.

    If they could continue to do that forever, we would be doomed. But we aren’t really, because time does pass and people do not live forever.

    ReplyReply
  116. Beth says:

    @wr:

    Beth — maybe stop using ridiculous generational brushes to claim that everyone born within a certain time frame thinks the same way. It’s a silly as determining political positions by astrological signs.

    I don’t believe that. What I do believe, and I think can be empirically shown, is that a whole generation of people has failed to cede power in any meaningful way and that has caused them put their values over other values, to be haunted by ghosts that aren’t relevant anymore, and to simply cling to power for power’s sake. Why is Diane Feinstein still in the senate? Why did Ginsburg hold on well beyond reason. This is a problem.

    ReplyReply
    9
  117. Kurtz says:

    @MarkedMan:

    Is this in any way responsive to my post?

    I’m not arguing that BLM surrounding Hillary was good tactically. My post should be taken for exactly what it is, specifically the last paragraph.

    The most I can say is that I have a soft spot for radicals,* but that doesn’t mean I endorse every single tactic employed by them. I also do my best to recognize that I am not POC, a woman, or LGBTQIA+. Meaning, I recognize that my opinion can be expressed from a place of relative luxury.

    *Note that I make a distinction between radical (left-wing) and reactionary (right-wing). I may be alone in that. But I want to make sure that is clear.

    ReplyReply
    2
  118. wr says:

    @Beth: “Why is Diane Feinstein still in the senate? Why did Ginsburg hold on well beyond reason. This is a problem.”

    Yes, it is. (Well, Feinstein is. The Ginsburg problem was solved, although not in a good way…)

    But while it’s a problem, it’s not THE problem. THE problem is six reactionary religious freaks destroying civil rights in this country.

    Diane Feinstein should retire — yes. Steny Hoyer should step aside — yes.

    But right now Steny Hoyer and Diane Feinstein (or at least her staff, who apparently does all her work while she stares blankly off into space) are on the same side. Let’s all work together to stop these fascists from outlawing your marriage and even your existence.

    And when the crisis is over, we can deal with these other issues.

    ReplyReply
    1
  119. Tony W says:

    @Steven L. Taylor: Indeed. One could say that integrated education was “made up” in 1954, or that Korematsu “made up” a right to imprison people for their ancestry.

    Courts don’t make things up, rather they apply (often messy and poorly-reasoned) rules to an equally messy world.

    ReplyReply
    3
  120. Mu Yixiao says:

    @DK:

    the simple, unassailable fact remains that it’s Boomer votes that are empowering Republican reactionaries.

    Take a look at the 1/6 crowd. See many boomers there? Wow… the boomers at this Trump rally sure have kept up their appearance. For someone at least in her mid 50s, that woman in red at the lower left sure is a babe.

    ReplyReply
    1
  121. Kurtz says:

    @Steven L. Taylor:

    I would note that, in some ways, all rights are “made up” or, at least, don’t matter unless a government is willing to recognize and protect them.

    Yeah, it may be occasional, but I have seen conservative, Republican internet randos claim they believe in natural rights. But it’s pretty clear that they haven’t really thought the meaning of that phrase out nor how it interacts with the notion of government.

    ReplyReply
    2
  122. DK says:

    @Kurtz:

    I’m not arguing that BLM surrounding Hillary was good tactically.

    Too much is made of this. For one thing, Hillary is a real ally. Ergo, she’s going to stand up for black lives no matter what, confronted inappropriately in a hallway or not.

    She’s not a fake, fairweather ally that’s going to scapegoat youth voters, trash progressives, or use “some rando hurt my feelings on Twitter” as an excuse to rationalize regressivism or to trash BLM, scapegoat youth voters, and smear progressives.

    Hillary is beloved among the Democratic base because her principles don’t budge, thick or thin. The same cannot said for many of our so-called allies.

    ReplyReply
    4
  123. KM says:

    @MarkedMan:
    Dude, let it go. Someone was rude and told you to shut up. Sucks but guess what?

    I might DIE because someone told me my body doesn’t belong to me. A lot of women will and that’s just a fact. America’s maternal mortality is #$^$#%& appalling and only going UP – there’s a pretty good chance a woman you know is going to die a preventable death in the near future. More likely I will be saddled with 9 months of pain, discomfort, unwanted bodily changes and 18 years of stress and financial ruin I didn’t ask for. All because a right I had yesterday will be gone tomorrow.

    Don’t take this the wrong way but constantly noting you were told to shut up in this debate is akin to the person with the splint yelling in a crowded ER of gunshot victims how hurt they are. I’m sorry someone said that to you but maybe read the room and understand your hurt feelings aren’t the number one priority right now. You’re a great poster and seem to be a good man overall. Maybe be an ally and decent person and understand that with all due respect and in the nicest terms possible this isn’t about you. A lot of women are very frightened and concerned their immediate future right now – they need to be our focus.

    ReplyReply
    9
  124. Rick DeMent says:

    @DK:

    If they could continue to do that forever, we would be doomed. But we aren’t really, because time does pass and people do not live forever.

    The point, which you simply will not address, is the youth vote is now, and has always been, fickle and unreliable. I will make you a bet that in one month the polls will be more or less the same regarding the mid-terms. This decision will not move the needle at all.

    Besides the GOP doesn’t have to “do it forever”, just long enough to cement in the republican minority government using the courts, replacing local canvassers, SoS’s, and use the EC advantage bequeathed to them. Not to mention the constitutional process of “throwing election’s to the House of Representatives” which is also in their favor due to gerrymandering which is what will happen in the very next presidential election should a Democrat win the popular vote.

    That is the problem we are looking at. The fault lies with ” the youth” and any left of center voter, who decided to stay home rather then vote for Clinton in 2016 (and an honorable mention to all the Nader voting progressives in 2000 because Gore was just too dull for them)

    ReplyReply
    5
  125. MarkedMan says:

    @DK:

    What point is that? That everything wrong with America is the fault of progressives and rising youth, who are clearly responsible for the end of abortion rights?

    No. I’ll claim to paraphrase Michael here (while actually substituting my own opinion which he may or may not agree with): The point is that in any coalition there are those whose anger is constant and who end up taking extreme positions that sound dramatic and fire them up but are counterproductive. The opposition can use that extreme rhetoric to sow doubt into the minds of the average citizen who doesn’t pay much attention but who nonetheless vote. An example of this is “defund the police” which is an incredibly stupid thing to champion. (And no, it doesn’t matter if most, but not all, of the people championing it didn’t literally mean to abolish police departments. The phrase seems to mean exactly that and most people aren’t going to get past that). Given that every group is going to have people who, at times, have more passion then sense, how the rest of the coalition reacts to such extreme rhetoric is extremely important. In this case, I think the best reaction would have been, “My god, we all know that it’s too hard to get bad cops off the force, but eliminating the police is about the dumbest idea I’ve ever heard of. I can’t think of a single Democratic legislator who believes that nonsense.” Instead, all too often, the Dems found themselves trying to explain the extremist positions they don’t even believe in. Make it clear you don’t agree with the plain English interpretation of that phrase and let the ones who don’t want to give it up make their own arguments.

    Now, you may disagree with me, or you may agree but think you should never abandon an ally in any way in the face of enemy fire. And we can have that discussion. Personally, I think Michael is off when he implies that there is a large percentage of people with such extremist positions. But regardless, the effect is the same if there is a large percentage of mainstream Dems, the ones who actually have a chance at getting legislation passed, who are afraid to push back against an ally, any ally.

    ReplyReply
    6
  126. Neil Hudelson says:

    @Mu Yixiao:

    You just sent us a picture with approximately 80% boomers in it and then pointed out one woman wasn’t a boomer. I’m confused at what point you are trying to make. That non-Boomers also support Trump? I don’t think anyone was arguing otherwise. That Trump’s base isn’t predominately olds? Well, I’m sorry, but if that’s your point data (and your picture), don’t support your thesis.

    Take a look at the 1/6 crowd. See many boomers there

    I haven’t seen an exact age breakdown of the insurrectionists, but I have seen studies–the Atlantic has a discussion of one here–that says despite most reactionary movements being quite young, the 1/6 insurrectionists were comparatively quite old, with 1/3rd being between the ages of 35 and 45 (ie, very old millenial to mid-range Gen-Xer) and more than a third being elder Gen-Xer through Boomer.

    But, if we are using the scientifically-accurate method of “random picture I chose that I hope visually supports my thesis” then take a look at this picture.

    All that said, I have no idea what any of this has to do with abortion access.

    ReplyReply
    3
  127. James Joyner says:

    @Steven L. Taylor:

    I would note that, in some ways, all rights are “made up” or, at least, don’t matter unless a government is willing to recognize and protect them.

    @Tony W:

    One could say that integrated education was “made up” in 1954, or that Korematsu “made up” a right to imprison people for their ancestry.

    Sure. I don’t believe in “natural” or “endowed-by-our-Creator” rights; they’re all political constructions. My preference is for them to be written into the Constitution by the legislative process rather than created by judicial fiat.

    Brown was clearly in line with the 14th Amendment while Plessy was a flouting of it. But both were interpretations of the language.

    Korematsu would seem to have clearly been in conflict with 6th Amendment and other fundamental rights. The Court, incorrectly in my view but with a reasonable basis, concluded that Presidents have great latitude during wartime to suspend certain civil liberties for a compelling purpose. I think that’s awful precedent but Lincoln was accorded even greater deference.

    ReplyReply
    3
  128. gVOR08 says:

    @Jen: :

    On a separate note, Chief Justice Roberts has just announced an investigation into the leak.

    And per the Guardian Roberts said,

    To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed.

    Because the leak is the important thing. Fetch Roberts’ pearls, his right to privacy has been violated!! Is there any way to get Roberts to understand that it isn’t the leak that undermines the integrity of the court, it’s the court? Sunshine is the best disinfectant.

    ReplyReply
    3
  129. MarkedMan says:

    @KM:

    Someone was rude and told you to shut up. Sucks but guess what?

    It doesn’t “suck”. My feelings aren’t hurt. If you follow me even a bit you know that I don’t spend a moment worrying about what the cranks on here say. But Beth isn’t a crank. And her “sit down and shut up up you old white man” attitude actuallyis the perfect illustration of driving potential allies away. Is it going to drive me away? Of course not. Beth is passionate, this is an Internet discussion in the comments section of a blog, and if I was the type of person who couldn’t see the context I wouldn’t still be doing this after all these years.

    But if AOC were to say something like that (She wouldn’t, she’s much more savvy and frankly, empathetic than that) it would set the coalition back.

    ReplyReply
    3
  130. Sleeping Dog says:

    @SC_Birdflyte:

    Probably, but in keeping it from a vote, he’ll need to burn political capital that could be saved for another opportunity. Imagine the heat he’ll take with the grandstanders like Cruz, Hawley and god forbid Vance are screaming for a vote.

    It won’t happen till R’s have a governing trifecta, but it will.

    ReplyReply
    1
  131. wr says:

    @MarkedMan: “But if AOC were to say something like that (She wouldn’t, she’s much more savvy and frankly, empathetic than that) it would set the coalition back.”

    And if AOC pulled out a sword on the House floor and decapitated Abigail Spanberger, that would probably set the coalition back as well. But of course she wouldn’t, not being an insane murderer.

    So what’s the point of even bringing it up?

    ReplyReply
    2
  132. MarkedMan says:

    @Kurtz: My bad. Given the argumentative nature of this thread I should have made it clear that I agreed with the linked post and was expanding on it. Your points were all good.

    ReplyReply
    1
  133. KM says:

    @MarkedMan:
    If that drives an ally away in something this important over something so trivial, they’re not really an ally but a fair-weather friend. Wars are lost on such backup.

    Of all the commenters here, how many are male? Does this actively affect your life the way it does mine? It’s extremely hard to have to find out I’m now a second-class citizen but must tiptoe around my “allies” for fear of driving them away with my tone in trying times. That’s not support – that’s conditional acceptance. That’s “I’m on your side if you’re nice to me and give me the respect I think I deserve”, not “we’re in the together to fight the bad thing”.

    Of all the arguments about generational blame, this is really the thing that’s going to doom us. Spend emotional and social resources to appease those who can walk away so they don’t instead of giving the fight 100%. It’s frankly exhausting to know it’s even on the table that being upset over pointless things could take away backup in such an important fight. It’s disheartening to know so many will take such umbrage over a minor insult at best and back away but fine. Whatever.

    Now if you’ll excuse me, I have to go make plans for myself and all the young women in my family in case we need to GTFO or someone has a problem. We don’t have the luxury of harping on “driving potential allies” because they feel slighted – we need to worry about what’s actually going to happen to us. Our allies will be fine.

    ReplyReply
    10
  134. MarkedMan says:

    @wr:

    So what’s the point of even bringing it up?

    I believe the discussion was about tactics, and which ones build a coalition versus which ones tear it down.

    ReplyReply
    2
  135. Jen says:

    @gVOR08:

    …was intended to undermine the integrity of our operations,…

    I could, I think, argue that a conservative who realizes that this would be a successful rallying cry for the midterm elections would have an interest in getting this out there earlier rather than later.

    I do wonder how it is that Roberts doesn’t seem to realize that the cracks in this particular institution have been visible for a while.

    ReplyReply
    2
  136. gVOR08 says:

    @Kurtz:

    Yeah, it may be occasional, but I have seen conservative, Republican internet randos claim they believe in natural rights

    Republicans do believe in God given natural rights. However just which rights are natural is, like all else, subject to redefinition daily in opposition to what liberals want.

    Natural rights are, in my Utilitarian view, silly. To say we OUGHT by nature to have these rights is OK, to say we DO have these rights by nature is ridiculous. But radical Catholics (and modern evangelicals), like, say, several Justices, believe as a given, a normative believe, that the soul is implanted at conception and therefore abortion is murder. They also hold a normative belief that they have a right, nay a duty, to impose their normative beliefs on the rest of us.

    ReplyReply
    1
  137. Hal_10000 says:

    Roe rested on an equally flimsy 1965 decision, Griswold v Connecticut, that invented a right of privacy out of whole cloth.

    The 9th and 10th amendments were written specifically to say that the list of rights in the Constitution are not exhaustive. We are *presumed* to have additional rights and it is the *government* that must justify taking them away from us, not vice-versa.

    ReplyReply
    13
  138. Hal_10000 says:

    “Politically, this would be an incredibly dumb move.”

    Also … have you met Republicans lately? Everything they do is a dumb move. And if this is indeed the decision of the Court, they are going to have their hands full dealing with kinds of insane laws. The laws that allow citizens to cash in on turning in citizens who’ve had abortions — even rape victims. The law that forbid citizens from going to other states to get abortions. The laws that forbid abortion pills. They have opened a huge can of worms here.

    ReplyReply
    7
  139. MarkedMan says:

    @KM:

    If that drives an ally away in something this important over something so trivial, they’re not really an ally but a fair-weather friend.

    Yep. And do you know how much meaningful legislation is passed by a tentative coalition of fair weather friends, of people who only have a tenuous overlap on their interests? My guess is that most of it. Broad, rock solid, coalitions support things that have broad, rock solid public support, like flag day, and saying nice things about nurses. The legislation that changes lives is controversial and the coalition is tenuous almost by definition.

    ReplyReply
    3
  140. DK says:

    @Rick DeMent:

    The point, which you simply will not address, is the youth vote is now, and has always been, fickle and unreliable.

    The fact, which you want to erase, is that Republicans would not win elections if old people and white people and men stopped finding excuses to vote for fascism.

    But this is America. Everyone has to take “personal responsibility” except actual Republican voters, who must always be excused and absolved, while everyone else is blamed and scapegoated.

    ReplyReply
    4
  141. Scott says:

    @KM:

    Of all the commenters here, how many are male? Does this actively affect your life the way it does mine?

    I have a wife and daughter but because I’m a male I can’t care as much? Come on.

    ReplyReply
    3
  142. scott says:

    @gVOR08: I’ve seen the concept Natural Rights bandied about by my Congressman. Of course, his view is his view but if you go to even a simplistic overview of Natural Rights, as in Wikipedia there is no one definition of what constitutes “Natural Rights”.

    ReplyReply
  143. Gustopher says:

    @Beth:

    These rights aren’t being taken away because we said the wrong thing. They are being taken away and are under assault by comfortable White people who some cases have been lied to, or in some cases like Dr. Joyner, don’t know the joy of being looked at as less than, or like Reynolds whose privilege and stature are threatened by everyone else.

    Rights are being taken away because many Americans don’t give a shit. They voted for the people proudly proclaiming that they would roll back rights — either not believing them at their word, or because a reduction in the marginal tax rate for the highest income bracket was the true freedom, or because of shoddy email retention practices, or “both sides are the same”, or they would rather have a beer with the guy who doesn’t drink than John Kerry, or they just didn’t bother to vote at all.

    Which Americans? Too many from across the spectrum.

    And a lot of that can be put onto institutional issues that prevent the federal government from legislating, and votes effectively having no real affect on the outcome of policies. (People just don’t pay attention to states)

    If I had my druthers we would get rid of the filibuster, overturn this ruling, get that overturned the next Republican trifecta, and start building up that feedback loop from elections to policies.

    But right now, our semi-democratic system doesn’t function as a democracy.

    (Also someone was mean on Twitter one day by having weird pronouns — how dare they?)

    ReplyReply
    5
  144. DK says:

    @MarkedMan:

    The opposition can use that extreme rhetoric to sow doubt into the minds of the average citizen who doesn’t pay much attention but who nonetheless vote.

    Okay, but this begs the question of why the extreme rhetoric of Donald Trump, Ron DeSantis, Marjorie Taylor-Greene, Tucker Carlson, Candace Owens, Madison Cawthorn, Lauren Boebert, Greg Abbot, Alex Jones, Mike Lindell, Sam Alito, Laura Ingraham and others aren’t turning off these same “average” voters.

    I mean, police defunding isn’t something that’s actually happening. Forced birth and poverty-fueled red state rising crime are.

    Or, is right wing extremism turning off voters?

    Regardless, that’s not really a paraphrase per se of the person in question. His initial post here today was just hateful demogougery smearing “rising youth” and progressives and blaming them for the end of abortion rights. Why people want to downplay and rationalize his divisive, tiresome hatemongering as mere “crankiness” instead of telling him it’s gross and he needs to be more temperate.

    ReplyReply
    2
  145. charon says:

    I think all this generation blaming – boomers, millenials, whatever misses a key point.

    Back when Roe v. Wade, Brown v. Board, establishment of the EPA, passage of Medicare etc. etc etc. happened, the country was a lot more conservative than now. BUT the most reactionary part of the country was the “Solid South” – solid as in committed to voting Democrat, which enabled Democratic political control over a more conservative country. Now that the old Confederacy are Red States, not so much.

    Plus, the Southern Strategy dropped a lot of religious conservatives into the welcoming arms of the GOP.

    And here we are.

    ReplyReply
    4
  146. Beth says:

    @MarkedMan:

    The legislation that changes lives is controversial and the coalition is tenuous almost by definition.

    History tells me that Trans people aren’t safe in coalitions. We’re a convenient cannon fodder. We will be the price that others pay for comfort. St. Sylvia taught us that.

    Women aren’t safe in coalitions. We’re told that we don’t know what we are talking about. That we’re hysterical. That we’re too loud. Improper. We will be sacrificed.

    Also, in the span of 5 minutes I got a terrified text from a lesbian client asking how to protect their child and their marriage comes under attack. I told her I don’t know. I’m too panicked that my own marriage is under attack.

    Then I heard from the hospital. I sent them a message last night to try and expedite things or at least get a plan together so that I can get surgery before the end of the year. They told me there was nothing to do except talk to the social worker.

    I’m terrified.

    ReplyReply
    5
  147. Just Another Ex-Republican says:

    All too typical that in defeat people turn on each other and look for someone to blame. I’m curious, how many of you have been told to shut the f*** up, blamed for something you totally disagree with, and decided “yep, it was my fault.” I’d guess about zero. Doesn’t matter if it’s Reynolds telling progressives to shut up, the OK Boomer crowd telling others to shut up, or anything else. If people telling MR to shut up is a great illustration of his point, him telling others to shut up is a great illustration of theirs, and both sides should look in a mirror. When it comes to politics, telling your own side to shut up is pretty poor communication, no matter who is doing it.

    I don’t think anyone knows how this will play out. I fear a return to wire hanger back alley abortions and dead women. I fear a media environment where half the population will willingly put themselves in a bubble where they won’t see the horrible impacts. I wonder how things will work out in court when a state where abortion is illegal tries to prosecute a resident who went out of state to where it was legal for the service (whether to another US state, or a foreign country). But I also wonder about abortion pills, the Internet (and anonymity it enables), and private encrypted communications making it easier for a black market to develop and easily spread, especially one that a huge segment of the population would actively support.

    This is a tragedy. Turn your fire on the people actually responsible, not each other. Start working on actual solutions, not shouting how members of your own coalition are at fault.

    Great philosophical points made (I think) about how all rights are essentially made up, and there is really no difference between them being “recognized” and “made up.” I find it another revealing strike at the hollow empty pretense that is Originalism.

    ReplyReply
    10
  148. Kurtz says:

    @MarkedMan:

    I was *really* confused. My bad as well.

    ReplyReply
  149. DK says:

    @Gustopher:

    Rights are being taken away because many Americans don’t give a shit.

    The long and the short of it. Had to QFT.

    Just don’t understand why the American people get let off the hook in so much of today’s political analysis.

    Much has been made of the 1930s German populace’s amoral complicity. It’s past time for Americans to get the same treatment, even despite the glaring electoral college issue.

    ReplyReply
    1
  150. Kurtz says:

    @Hal_10000:

    The 9th and 10th amendments were written specifically to say that the list of rights in the Constitution are not exhaustive. We are *presumed* to have additional rights and it is the *government* that must justify taking them away from us, not vice-versa.

    I had this thought as well when I read the quoted passage.

    ReplyReply
    3
  151. Scott says:

    OK, now that everybody has vented their spleen.

    Origin: This expression uses vent in the sense of “air,” and spleen in the sense of “anger,” alluding to the fact that this organ was once thought to be the seat of ill humor and melancholy.

    So what to do, politically? In addition to the basic right to choose, people running for State and Federal offices should be demanding full referendum on contraception, same-sex marriage, basic right to privacy in home and bedroom, right to assisted reproduction, etc. preferably in state constitutions. Full referendum meaning not leaving it to state legislatures. And make each right vote on individually. Force full visibility on the assault on people private lives. Especially in the Red states, make them own it. Don’t let them escape. My initial thoughts.

    ReplyReply
    1
  152. MarkedMan says:

    @DK:

    Okay, but this begs the question of why the extreme rhetoric of Donald Trump, Ron DeSantis, Marjorie Taylor-Greene, Tucker Carlson, Candace Owens, Madison Cawthorn, Lauren Boebert, Greg Abbot, Alex Jones, Mike Lindell, Sam Alito, Laura Ingraham and others aren’t turning off these same “average” voters.

    But it does. As Steven points out, the number of voters actually in play is small, but they exist. I often point to California, where 15-20 years ago the Republicans were a viable majority, but because of the Party’s increasing extremism, today they are completely out of power at the statewide level. By giving voice and attention to the most extreme elements of the party, they entered a vicious cycle, driving out the more reasonable and attracting the cranks.

    ReplyReply
    3
  153. Kurtz says:

    @DK:

    Just don’t understand why the American people get let off the hook in so much of today’s political analysis.

    I can only speak for myself here, but I think part of it is that it doesn’t have a practical purpose. It turns into, “if x group would just…” And that never really works, IMO.

    ReplyReply
    2
  154. Kurtz says:

    @Just Another Ex-Republican:

    Great philosophical points made (I think) about how all rights are essentially made up, and there is really no difference between them being “recognized” and “made up.” I find it another revealing strike at the hollow empty pretense that is Originalism.

    I think the primary reason individuals find the natural rights framework attractive can be summed up as:

    What the government gives, the government can take away.

    It doesn’t help that the founding documents are rooted in natural rights via Blackstone. (probably)

    Thus, it’s the default.

    ReplyReply
  155. MarkedMan says:

    @Just Another Ex-Republican:

    If people telling MR to shut up is a great illustration of his point, him telling others to shut up is a great illustration of theirs, and both sides should look in a mirror.

    Totally fair

    ReplyReply
    5
  156. DK says:

    @Jen:

    I do wonder how it is that Roberts doesn’t seem to realize that the cracks in this particular institution have been visible for a while.

    I think relevant saying is ‘high on your own supply.’

    I mean, you have to be pretty naïve to take “originalism” seriously as a judicial philosophy, to think you can read minds of strangers dead for 200+ years, when you can’t even *really* know what your best friend was thinking when he sent you an email yesterday.

    Very naïve, to insist you’re being a “textualist” innocently calling balls-and-strikes, while simultaneously rewriting the 2nd Amendment and inventing corporate personhood.

    Very, very naïve to believe preclearance of new state voting laws is unnecessary because racism is over.

    This is our chief justice. A decent and supremely accomplished guy, and obviously highly intelligent. But…street smarts and common horse sense are not his strong suits. Let’s just tell it like it is.

    ReplyReply
    3
  157. gVOR08 says:

    @DK:

    I mean, you have to be pretty naïve to take “originalism” seriously as a judicial philosophy, to really think you can read minds of strangers dead for 200+ years

    Some of them are naive and actually believe this nonsense. Many are not naive, but venal. They know they created Originalism as a game of Calvinball that allows them to reach any conclusion they want. And then claim anything else was, by definition, wrongly decided. They know they designed it as a tool to overturn precedent. IIRC Roberts somewhat preceded the Federalist Society lock on Republican nominations. He may still have some shred of integrity, or at least a desire to appear so. But he’s been overtaken by events.

    ReplyReply
    2
  158. KM says:

    @Scott:
    *sigh* I didn’t say you won’t care as much. I said you won’t be the one to die. Or carry the child.

    It’s different watching a loved one be strapped into the electric chair and being the one hooked up. It’s different having a loved one in a war zone and being on Omaha Beach yourself.

    Empathy =/= experience. It’s not the same. You can walk a mile in my shoes but it will never be you. Again, I’m spending time appeasing someone else – a male – being offended I’m not caring enough about their contributions and how it affects them then me – a female – who has to actually experience it.

    God I need a drink. Today is so depressing.

    ReplyReply
    8
  159. KM says:

    @Beth:
    *hugs and offers a glass*

    ReplyReply
    2
  160. Mu Yixiao says:

    @Neil Hudelson:

    You just sent us a picture with approximately 80% boomers in it and then pointed out one woman wasn’t a boomer.

    I’m seeing 30% of them that are in their 30s (or younger) and another 20-30% that are in their 40s.

    ReplyReply
    1
  161. gVOR08 says:

    Digby quotes a long twitter thread from one Amy Kapczynski who identifies herself as a former SCOTUS clerk and is now a Yale Law Prof. She says she initially assumed this was leaked by a liberal. But on sober reflection as to who benefits, she thinks it was more likely a conservative. First, as led by Clarence Thomas, who’s more likely to ignore the Court’s norms? Second,

    If you work inside the Court, you know that the most concrete impact of the leak is to lock in this opinion essentially as is. Any edits at this point reveal jockeying between Justices, undermine the majority, and Court itself. Embarassing to the majority.

    She also notes that the career impact would be fatal to a liberal, less so to a conservative. I assume she’s saying a clerk who locked in this antediluvian decision would catch a free ride on the Wingnut Welfare train. Whole thing is worth reading, she makes a good case.

    Roberts has supposedly brought in the Federated Bureau of Eyeballs to find the leaker. Precedent says that if it was a liberal, they’ll tell us right away. But if it’s a conservative they’ll wait until December in deference to their sacred (when convenient) principle that they don’t want to influence an election.

    ReplyReply
    5
  162. Mu Yixiao says:

    @Neil Hudelson:

    the 1/6 insurrectionists were comparatively quite old, with 1/3rd being between the ages of 35 and 45 (ie, very old millenial to mid-range Gen-Xer) and more than a third being elder Gen-Xer through Boomer.

    So… 1/3 not boomer. Another 1/3 not boomer. Remaining 1/3 partly boomer.

    But, if we are using the scientifically-accurate method of “random picture I chose that I hope visually supports my thesis” then take a look at this picture.

    Looks like a lot of people in their 30s and 40s, and a couple old people.

    ReplyReply
    1
  163. Neil Hudelson says:

    @Mu Yixiao:

    Perhaps this very disagreement is why random pictures shouldnt be used as a substitute for data.

    ReplyReply
    4
  164. EddieInCA says:

    RBG gambled. Poor women will be paying the price for a while due to RBG losing her bet.

    Democrats chose to pitch “defund the police”, leading to underwhelming 2020 election results.

    I’m 62 and have an exit strategy. None of this will affect me. But I’m sick. I’ve been sick since I posted the news in yesterday’s thread. I genuinely feel ill and hopeless. But not for me. I feel ill for Beth, Kathy, all my married gay friends, all my married trans friends, all my young co-workers who want to choose when they start a family.

    I have a question for the group, though….

    Will corporate America decide to get involved. If Georgia passes a full abortion ban, will Coca Cola, Delta, UPS or any of the large companies headquartered in Georgia face any ramifications from their employees or customers. For myself, I will not work in Georgia if they pass such a law.

    If NC does the same, will Lowes face ramifications?

    ReplyReply
    6
  165. wr says:

    @Neil Hudelson: “Perhaps this very disagreement is why random pictures shouldnt be used as a substitute for data.”

    You’re just out to kill the whole internet, aren’t you?

    ReplyReply
    9
  166. wr says:

    @EddieInCA: And what does Disney do now?

    ReplyReply
  167. Scott says:

    @wr: They go for the tax breaks, wherever they may be, regardless of state laws.

    Or just film everything in British Columbia.

    ReplyReply
    2
  168. drj says:

    @EddieInCA:

    Will corporate America decide to get involved.

    Only if consumers make them.

    (Although I wouldn’t be surprised if legislatures, or even SCOTUS, would somehow try to make this hard/unpleasant. Cf. existing anti-BDS laws.)

    ReplyReply
    1
  169. DK says:

    @EddieInCA:

    Democrats chose to pitch “defund the police”

    This is wildly inaccurate.

    Democrats need to push back forcefully on this kind of right wing propagangda and Fox News disinformation.

    ReplyReply
    9
  170. Beth says:

    @KM:

    Girl same. This is exhausting.

    ReplyReply
    2
  171. Rick DeMent says:

    @DK:

    The fact, which you want to erase, is that Republicans would not win elections if old people and white people and men stopped finding excuses to vote for fascism.

    I’m not erasing it, I acknowledge it. You are the one deluded into thinking that young voters are going to change anything. They won’t, at least not in November.

    But this is America. Everyone has to take “personal responsibility” except actual Republican voters, who must always be excused and absolved, while everyone else is blamed and scapegoated.

    this has nothing to do with anything I said. I never excused Republican voters for anything, I simply acknowledged the reality of Republican voters, gerrymandering, the benefits of the EC, and their willingness to turn a blind eye to criminality when it suits them.

    I do blame anyone who cared about democracy staying home because they where butt-hurt over Clinton winning the primary and doubly ticked over all the people who voted for Biden and are now criticizing him for issues that are not within his power to change and will sit out the mid terms because that is their idea of a good idea.

    ReplyReply
    2
  172. Sleeping Dog says:

    @gVOR08:

    According to the Times, court watchers are fingering someone on the right as the culprit in order to keep the 5 votes for overturning.

    https://www.nytimes.com/2022/05/03/us/politics/supreme-court-leak-roe-v-wade-abortion.html

    ReplyReply
    2
  173. DK says:

    @Sleeping Dog: Makes sense. Recently, someone leaked to the WSJ that Roberts was working hard to flip Kavanaugh, Gorsuch, or Barrett to preserve Roe. Now this draft is leaked to Politico.

    Very possible Thomas or, more likely, hot-headed reactionary Alito himself leaked first to the WSJ, then leaked the full draft to Politico, as perhaps Roberts was edging ever closer to flipping one of the Trump justices. But who knows? Palace intrigue.

    ReplyReply
    1
  174. Sleeping Dog says:

    @EddieInCA:

    Not significantly. It may effect future decisions in locating an office or facility. The expansion to health benefits to cover transportation, but beyond that not much. The equivalent maybe the pressure that came on NC over bathrooms and treatment of trans individuals. But corporate campaigns, no.

    ReplyReply
    1
  175. Sleeping Dog says:

    @DK:

    Yes, someone(s) have been talking to the press. Don’t leave out Ginni Thomas as a suspect. Eventually who is responsible will come out.

    Simply because it could destroy their career, I have my doubts that it is a clerk, unless given explicit instructions by the justice they serve. Even allowing for wingnut welfare, what clerk would want to forego the opportunities that clerking provides. They’ll never be a Federal judge, USDA or high JoD official, and they’ll be radioactive to white shoe law firms and top 100 law schools.

    It was either Ginni, a justice or a non-court employee that is close to a justice.

    ReplyReply
    2
  176. @DK:

    Just don’t understand why the American people get let off the hook in so much of today’s political analysis.

    Speaking for myself (and because I think a lot of people still don’t understand what I am trying to say): I think it is vitally important to recognize that our system simply does not actually measure what the American people want and give it to them.

    Instead, we get a filtered version of what a minority wants (with the choices on the table being the result of an even smaller minority creating the choices).

    ReplyReply
    8
  177. @EddieInCA:

    Democrats chose to pitch “defund the police”, leading to underwhelming 2020 election results.

    Some very sincere questions:

    1. What evidence do you have to support the notion that “defund” was central to the 2020 elections?
    2. Who are the “Democrats” in your sentence (for example, I know it wasn’t the Biden campaign).
    3. What is your basis of comparison to called 2020 “underwhelming”?

    ReplyReply
    7
  178. dazedandconfused says:

    A comment on Alito’s thinking…

    Citing the legal opinions of a guy who sentenced women to be burned alive for witchcraft was rather sloppy. I look forward to it being a question posed to prospective SC nominees in the future. Should be fun.

    ReplyReply
  179. Jen says:

    @Sleeping Dog:

    Don’t leave out Ginni Thomas as a suspect.

    This seems wholly plausible.

    ReplyReply
    2
  180. EddieInCA says:

    @Steven L. Taylor:

    1. House Majority Whip James Clyburn criticized calls to “defund the police” during several media appearances on Sunday, saying that the phrase hurt Democratic congressional candidates and could potentially derail the Black Lives Matter movement.

    Clyburn said on CNN’s “State of the Union” that he’d spoken with the late Rep. John Lewis about the phrase this summer, the two concluding “that it had the possibilities of doing to the Black Lives Matter movement and current movements across the country what ‘Burn, baby, burn’ did to us back in 1960.”

    Clyburn, a prominent student activist during the civil rights movement who has ascended to become the nation’s most powerful Black legislator, has repeatedly denounced calls to “defund the police” as “sloganeering” that harms the overall cause of the Black Lives Matter movement.

    2. Local Democrats in swing districts.

    In the wake of the police killings of George Floyd and Breonna Taylor, uprisings erupted across the country in what may be the largest civil rights movement in U.S. history. One major demand: that local governments redirect funding from police departments toward other public services that actually keep communities safe.

    Last week, former President Barack Obama joined the slew of Democratic Party leaders blaming the party’s down-ballot losses on the defund movement.

    3. Heading into the 2020 election, Democrats were favored to not only capture the presidency but also win back the Senate and retain their sizable majority in the House. Much of that came down to the overall national environment, which appeared to be pretty favorable to Democrats, as they held a 7.3-point lead in FiveThirtyEight’s final polling average of congressional polls.

    Yet even though Democrats did win the presidency — and eventually the Senate — their grip on the House actually slipped, as Republican gains meant the Democrats’ majority fell from a 32-seat advantage1 to just a 9-seat edge after the election.

    ReplyReply
    1
  181. @EddieInCA:

    1. In fairness, that’s not evidence of anything. That’s a couple of politicians’ opinions (prominent though they may be).

    2. Again, that’s not evidence.

    3. That’s a statement of some pundits’ expectations and some hopes. Again, what was the realistic outcome?

    You are simply stating that the election wasn’t as good as you hoped and some people have speculated about the cause.

    ReplyReply
    3
  182. Michael Cain says:

    @Jen:

    I would think that the circle of people who have access to drafts is likely pretty small…. Someone felt this was important enough to risk their entire career.

    Assumes facts not in evidence. If someone comes forward, sure. Meanwhile, government computers get hacked all the time. The SCOTUS started working from home rather abruptly a couple of years ago. This term they have managed to screw up the rather trivial task of public release of opinions on multiple occasions. I see no reason to think the SCOTUS is any better at IT security than the rest of the federal government.

    ReplyReply
  183. Jen says:

    @Michael Cain: I think a random accusation of hacking is a bit more in the “assumes facts not in evidence” camp than a handful of justices and clerks having access, but hey, whatever.

    I will acknowledge that it might not even be someone with a career on the line, as @Sleeping Dog noted above.

    Bottom line is that we have no idea who leaked this, or why. Who benefits?

    ReplyReply
    1
  184. Beth says:

    @Sleeping Dog:

    Don’t leave out Ginni Thomas as a suspect.

    Well, that’s a terrifying thought. Made more terrifying that if she has access to such things and thinks that she could get away with a leak to force someone’s hand. I mean, Thomas has no shame, but really, if it was her he would have to go.

    ReplyReply
    1
  185. reid says:

    @DK: My mother, who is 87 years old and has always voted and still votes Republican, will occasionally (to her credit) complain about how the government isn’t doing anything about climate change. This last time, it took everything I had to calmly say, “The Republicans and oil companies are the ones who block any attempts to address it.” There’s really no reason she should still be voting R.

    ReplyReply
  186. Sleeping Dog says:

    @Beth:

    While many are calling for an investigation, it seems that no law has been broken. If it were Ginni and Clarence conveniently left a spare copy around the house or on his computer. In her little world she’d be a hero and CT is untouchable. Guaranteed lifetime appointment, only vulnerable to impeachment and fat chance of that happening.

    She has an interest, depending on reasoning, a motive and opportunity. Though it would have reached Politico via a 3rd party.

    ReplyReply
  187. EddieInCA says:

    @Steven L. Taylor:

    Okay… You want data.

    1. David Shor has a detailed breakdown which is outlined here:
    https://www.aei.org/op-eds/defund-the-police-cost-democrats-hispanic-and-black-votes/

    Cassandra usually turned out to be right. So has David Shor, the Democratic Cassandra who was fired last June from his job as a poll analyst for the Joe Biden polling firm Civis Analytics for tweeting, after rioting broke out from a Minneapolis suspect’s death in police custody May 25, that violent rioting in 1968 cost Democrats enough votes to lose that year’s presidential election.

    That was a message the woke Twitteratti didn’t want to hear; they wanted to cheer on the “mostly peaceful” (i.e., often violent) riots in cities across the country. But it turns out Shor’s point was well taken. Democrats’ cheers for last summer’s violent riots and their support of “defunding the police” cost Biden precious votes, nearly enough to defeat him despite his 7 million popular vote plurality, especially among non-white voters.

    That’s the conclusion of Shor, who turns 30 this year and is now with the left-wing nonprofit group OpenLabs, based on close study of election returns down to the precinct level and special post-election polling, as relayed in two interviews with New York magazine’s Eric Levitz. And his analysis applies not only to the 2020 election and the particular persona of Donald Trump, but also to elections in years ahead.

    Shor’s analysis of precinct returns has him revising the exit poll slightly. Comparing Biden’s performance with Hillary Clinton’s, he tells Levitz, “Democrats gained somewhere between half a percent to 1 percent among non-college whites and roughly 7 percent among white college graduates (which is kind of crazy). Our support among African Americans declined by something like 1 to 2 percent. And then Hispanic support dropped by 8 to 10 percent. The jury is still out on Asian Americans.”

    “The [strikingly large] decline in Hispanic support for Democrats,” he says, “was pretty broad based. This isn’t just about Cubans in south Florida. It happened in New York and California and Arizona and Texas.”

    Democratic declines were particularly sharp among those with backgrounds in Venezuela and Colombia, who dislike the “socialism” which Republicans charged that Democrats favor. But more generally, unlike in the past, “non-white conservatives voted for Republicans at higher rates; they started voting more like white conservatives.”

    2. Many Democrats across the country pushed “Defund” leading up to the 2020 election. The New York Times has a detailed breakdown here: https://www.nytimes.com/2020/06/26/us/politics/defund-police-protests-democrats.html

    These Top Democrats Go Further Than Biden on Diverting Police Funds

    A month after the killing of George Floyd by the police in Minneapolis ignited a wave of nationwide protests, Democratic Party officials are expressing broad support for significantly reallocating funds away from police departments, with positions that go well beyond that of the party’s presumptive presidential nominee, Joseph R. Biden Jr.

    Interviews with 54 Democratic National Committee members, convention superdelegates and members of a criminal justice task force convened by Mr. Biden and Senator Bernie Sanders found a near-unanimous sentiment that local governments should redirect more money toward social services, education and mental health agencies.

    Very few advocate fully defunding or abolishing the police, as some activists have called for. But they are aligning themselves, as have city councils in Milwaukee, Minneapolis, Denver, Portland, Ore., and other cities, with an increasingly popular movement to drastically rethink the priorities surrounding law enforcement.

    Their views exceed those adopted by Mr. Biden, who opposes defunding but has proposed policing changes and said that federal aid to police departments should be conditioned on meeting “basic standards of decency and honorableness.” They also go further than what the Biden-Sanders task force will recommend to the party’s platform committee and the Biden campaign later this month, according to several members of the group.

    3. The consensus polling had Dems winning many, many races they didn’t end up win. That’s “underwhelming”. Or do you have another word for it?

    Please tell me how this data is wrong. Or is this not enough “evidence” for you?

    ReplyReply
    8
  188. DK says:

    @reid: Awww 87 years young. Hope she has more healthy, peaceful years ahead. God bless her.

    ReplyReply
    1
  189. reid says:

    @DK: Thanks. She’s pretty good, all things considered. Still frustrating at times!

    ReplyReply
    1
  190. Kurtz says:

    @EddieInCA:

    The consensus polling had Dems winning many, many races they didn’t end up win. That’s “underwhelming”. Or do you have another word for it?

    Please tell me how this data is wrong. Or is this not enough “evidence” for you?

    But the same was true in 2016 as well. Polling has always been difficult, but various societal changes over the past two decades have made it much more so. Particularly the last ten years.

    Regardless of that, when the polls miss and one side underperforms, everyone gets to point at whatever thing happened that they said was important as the reason for losing.

    ReplyReply
    3
  191. al Ameda says:

    @DaveD:

    Name one police department that got defunded. I’ll wait.

    Frankly, it does not matter that not one police department was defunded, what does matter is that, as usual, Republicans ran with it and used it to brand Democrats as ‘soft on crime.’ Republicans are always out in front, always playing offense, while Democrats are always on defense – trying to explain that ‘no, we love police’ or ‘no, we’re not pedophiles’ or ‘no we’re not saying that there are racist babies’ or some other weak-ass response to the often-successful Republican effort to brand Democrats as baby killing elitists.

    Democrats are not as motivated to return the favor, to go after Republicans with the same energy and vigor that Republicans have.

    ReplyReply
    3
  192. Gustopher says:

    @EddieInCA:

    Democrats chose to pitch “defund the police”, leading to underwhelming 2020 election results.

    Ignoring the “Democrats chose” part… what part of 2020 is at all relevant? The votes for this were in place before Trump left office.

    Democrats could have run on a platform of Pedantic Pedophilia and Pickling Puppies and it wouldn’t have made a difference. We could have run Bernie, Warren, Buttigieg or Bloomberg, and it wouldn’t have made a difference.

    We could have had Jeffrey Tobin somehow doing zoom campaign appearances while masturbating and it wouldn’t have made a difference.

    Unless you think we could have gotten 2/3rds of the Senate and impeached a couple of Justices, the votes have been there since Barrett was confirmed.

    Maybe we could have elected a giant Praying Mantis who would have eaten the Chief Justice after being sworn in? That could have done it.

    ReplyReply
    5
  193. Kurtz says:

    @al Ameda:

    Democrats are not as motivated to return the favor, to go after Republicans with the same energy and vigor that Republicans have.

    That’s the thing though, right? Going after the GOP results in a cascade of tears. ‘We’re discriminated against because we’re Conservative. We’re discriminated against because we’ re Christian. They hate us. They’re going after our way of life.’

    ReplyReply
    4
  194. Kurtz says:

    @Michael Reynolds:

    One more time, let’s see if this is dumbed down enough

    This doesn’t seem like a good way to persuade people.

    As for the attempt at explaining messaging. We are in a world in which a significant number of Republicans think that Democrats and Tom Hanks eat babies or drink their blood or kidnap them for sex trafficking or whatever it is they’ve come up with now. Somehow, it doesn’t seem likely that a denial would be sufficient.

    Oh, and as far as defund the police, the Biden campaign did exactly what you said. And if some of the comments here are to be believed, that didn’t work in that context either.

    But sure, you dumbed it down enough for us, Michael. Sheesh.

    ReplyReply
    7
  195. michilines says:

    Sadly James, your dry, sterile analysis is predictable. Despite the passion of supporters on each side of this argument, recent experience shows that few people care about the deaths of those already with us. We lost so many people in the pandemic, yet loud voices and the media and seemingly average GOP voters care more about masks than deaths, more about a cluster of cells than living humans. Any deaths attributed to this SCOTUS opinion will fall on deaf ears, just like school shootings, the #1 cause of death of kids being due to guns, and of course the pandemic deaths. It’s not about the Constitution or the law. Look around the country at what GOP governors are doing. They knew this was coming. They were building on this decision before this *leak* and hope to fracture our country all in the name of power. Few care about the lives that will be lost. We know that from the pandemic.

    ReplyReply
    2
  196. @EddieInCA:

    Please tell me how this data is wrong. Or is this not enough “evidence” for you?

    This is a step in the right direction and I will give it a further look. What you have cited is still not exactly the slam dunk that you are presenting it as.

    Keep in mind, my point is not to defend “defund the police” but it is, rather, to push back against the notion that it is ever that case that an election turns on one thing, especially something like “defund the police”—indeed, what you cite heavily conflates the riots themselves with calls to “defund the police”:

    Cassandra usually turned out to be right. So has David Shor, the Democratic Cassandra who was fired last June from his job as a poll analyst for the Joe Biden polling firm Civis Analytics for tweeting, after rioting broke out from a Minneapolis suspect’s death in police custody May 25, that violent rioting in 1968 cost Democrats enough votes to lose that year’s presidential election.

    That was a message the woke Twitteratti didn’t want to hear; they wanted to cheer on the “mostly peaceful” (i.e., often violent) riots in cities across the country. But it turns out Shor’s point was well taken. Democrats’ cheers for last summer’s violent riots and their support of “defunding the police” cost Biden precious votes, nearly enough to defeat him despite his 7 million popular vote plurality, especially among non-white voters.

    Those paragraphs suggest that events of the summer of 2020 were the key issue, and not specifically “defund the police”–indeed, it stands to reason that racially-linked urban rioting would redound to the “law and order” party’s benefit (as well as to the one pushing racist messages, as well the rhetoric of going back to a more peaceful fictional past–you now, MAGA) regardless of whether “defund” became a slogan or not.

    Again, as I have noted to MR, I am not saying messaging doesn’t matter, but I am saying it matters a whole lot less than people assert.

    FWIW, and lest I be misunderstood, I am not saying any of this to defend the behavior or strategy of Democrats, nor because I have a partisan interest in how the party behaves. I am pointing this out to the audience at OTB because I presume that at least one of the reasons they come here is for honest analysis by people who study politics for a living. And I think that the evidence suggests that a simplistic focus on message, especially one slogan, misses the broader picture.

    You know, FWIW.

    (I wish it was so easy, BTW, as just tweaking a message).

    ReplyReply
    4
  197. @Steven L. Taylor: And BTW, I agree that the Dems ultimately didn’t do as well as some polling suggested that they might, but I also think a lot of expectations were fueled by hope as much as anything else.

    But the degree to which “defund” was the culprit is dubious when the riots themselves were more impactful on public opinion and we were in the middle of a pandemic, among other factors.

    I would note that an incumbent president was defeated (the first time since 1992–and the first one term for a given party since 1980–and Bush lost in 1992 after Reagan held office) and several reddish states went purple, which is counter-evidence to the notion that “defund” sunk the Dems.

    ReplyReply
    1
  198. @Gustopher:

    Unless you think we could have gotten 2/3rds of the Senate and impeached a couple of Justices, the votes have been there since Barrett was confirmed.

    This is an excellent point. It is hard to blame “defund the police” for Roe being overturned, since everything that was needed to overturn Roe was in place prior to the 2020 elections.

    The only way to have stopped this outcome post-202o was to, as someone around here suggested, expand the Court (not that Manchin and Sinema would have gone along, among others, perhaps).

    ReplyReply
    4
  199. Assad K says:

    @MarkedMan:

    ‘But if AOC were to say something like that (She wouldn’t, she’s much more savvy and frankly, empathetic than that) it would set the coalition back.’

    AOC is, however, specifically one of the people Michael is blaming for Democrat losses.

    ReplyReply
  200. Assad K says:

    @EddieInCA:

    An Op-Ed from the AEI/Washington Examiner is hardly likely to be praising any aspects of ‘defund the police’.. or criticize anything about the police at all. While their source is David Shor (and always worth noting that cons have hardly been shy about mislabeling people as being ‘liberal’/left) it would be worthwhile to look at the actual poll questions used by Mark Penn, Democrat insider, to support his hypothesis (https://nomoremister.blogspot.com/2022/04/mark-penn-is-push-pollster.html).

    And re: the NYT, why do we regard senior party figures as being totally irrelevant to perception? I think Biden et al have always been pretty forcefully against ‘Defund the police’, not sure what else they could have done. Unlike the Tea Party/Freedom Caucus, the Squad etc have not exactly been blocking legislature.

    ReplyReply
    1
  201. Assad K says:

    To weigh in on how the older generation fought and bled to get abortions legalized.. as far as I can see, it was actually the courts that did it, which is why the courts can take it away. That older generation did not, unfortunately, make it secure with legislation (just to be clear, this is not an OK, Boomer post).

    ReplyReply
  202. Barry says:

    @Assad K: Please note that this also applies to most of the Bill of Rights.

    ReplyReply
    2
  203. Joaquin Carlos Armendariz says:

    @gVOR08: I agree – maybe the ABA could partner with AI designers to develop advanced Constitution outline briefs that use Genetic Algorithms, Fuzzy Logic etc as a resource to use before a draft decision is created for review. Precedent, Logic, Context(social, cultural, scientific, etc.). There are innovative Intelligent Computer Assisted systems that I was aware of from late 70s onward in education/tutoring , machine design, preparing legal briefs, diesel-electric locomotive repair, medicine, etc.. Complexity need not overwhelm logic and common sense and the best way to avoid lethal decisions in all professions, is to use tools that help reduce biases in human inquiry and decision making.

    ReplyReply

Speak Your Mind

*