The Least Dangerous Branch?

The apparently eminent demise of abortion rights has reignited an old debate.

The report that the Supreme Court is overturning Roe v Wade, the nearly half-century-old ruling establishing a Constitutional right to abortion, has renewed the age-old debate about the role that institution plays in American politics. Alexander Hamilton, arguing for the need for a federal judiciary in Federalist No. 78 (published May 28, 1788), wrote:

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

Still, its power was substantial:

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

This is true even if we assume only the best intentions of the President and the Congress. They will naturally strain against the Constitution’s limits on their power in order to enact policies that they believe best serve the people.

[T]he courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

It’s noteworthy that this power is nowhere mentioned in Article III, which lays out the powers of the judiciary, and that even many of the Framers opposed vesting it. As every schoolboy knows, Chief Justice Marshall declared in Marbury v Madison (1803) “a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.” While it would be half a century before the Court overturned another act of Congress, the precedent has stood ever since.

In the 219 years since, the courts, and especially the Supreme Court, have issued innumerable high impact decisions, all of which were controversial at the time and a handful of which (Dred Scot, Plessy, Korematsu) live in infamy. And, as has been discussed countless times, the public perception over the last half-century or so is that the Supreme Court is the central decider of our most important social issues, making judicial appointments central to our politics. This culminated with an outrageous but perfectly understandable power play by the Republican Senate to refuse to even hold hearings on the appointment of Merrick Garland to replace the late Justice Antonin Scalia, holding the seat open for ten months in the hopes that a Republican President, not the Democrat Barack Obama, would be elected and fill the seat.

You know the rest: Donald Trump won the 2016 election, despite getting 2 million fewer votes than his Democratic opponent, and appointed Neil Gorsuch to fill the seat. He was able to swap relative moderate Anthony Kennedy (a crucial vote for keeping some semblance of the Roe precedent alive) with the much younger and more radical Brett Kavanaugh. And, adding insult to injury, liberal lion Ruth Bader Ginsburg died less than two months before the 2020 election and Amy Comey Barrett was rammed through in record time.

That’s a long-winded setup for the liberal backlash that has ensued since Justice Alito’s draft opinion repudiating Roe. Vox‘s Ian Millhiser sees it as the latest exhibit in “The case against the Supreme Court of the United States.”

If the Court does what Alito proposed in his draft opinion, and overrules Roe v. Wade, that decision will be the culmination of a decades-long effort by Republicans to capture the institution and use it, not just to undercut abortion rights but also to implement an unpopular agenda they cannot implement through the democratic process.

And the Court’s Republican majority hasn’t simply handed the Republican Party substantive policy victories. It is systematically dismantling voting rights protections that make it possible for every voter to have an equal voice, and for every political party to compete fairly for control of the United States government. Justice Alito, the author of the draft opinion overturning Roe, is also the author of two important decisions dismantling much of the Voting Rights Act.

This behavior, moreover, is consistent with the history of an institution that once blessed slavery and described Black people as “beings of an inferior order.” It is consistent with the Court’s history of union-busting, of supporting racial segregation, and of upholding concentration camps.

Moreover, while the present Court is unusually conservative, the judiciary as an institution has an inherent conservative bias. Courts have a great deal of power to strike down programs created by elected officials, but little ability to build such programs from the ground up. Thus, when an anti-governmental political movement controls the judiciary, it will likely be able to exploit that control to great effect. But when a more left-leaning movement controls the courts, it is likely to find judicial power to be an ineffective tool.

The Court, in other words, simply does not deserve the reverence it still enjoys in much of American society, and especially from the legal profession. For nearly all of its history, it’s been a reactionary institution, a political one that serves the interests of the already powerful at the expense of the most vulnerable. And it currently appears to be reverting to that historic mean.

I’m old enough to remember the Warren Court and the widespread sense that the Supreme Court had effectively become a sitting constitutional convention, routinely substituting its relatively liberal preferences for those of the people’s elected representatives. And even the modern court, filled as it is disproportionately with Republican appointees, was well ahead of the country—and, certainly, the Congress—on gay marriage and transgender rights.

Still, Millhiser is fundamentally right. While I’m more willing than he is to forgive past Justices for being creatures of their time, the very nature of the institution is conservative. Hamilton was among the most enthusiastic supporters of his day for a powerful central government and his advocacy for a strong judiciary was cutting edge as well. But a judiciary that does what he expounded in Federalist 78 is inherently conservative in that it is supposed to reconcile the actions of elected policymakers with the boundaries of a document written in 1787 and only amended at the margins in the intervening 233 years.

So, while I see many of President Franklin Roosevelt’s New Deal policies as reasonable, if not essential, given the dire circumstances of the Great Depression, the Supreme Court was surely right in saying over and over that they violated the Constitution. And, alas, while the theoretical answer is to pass amendments to reconcile the needs of the times with the fundamental law, the practical reality is that doing so is next to impossible because it requires the support of two-thirds of both Houses of Congress and the assent of three-quarters of the state legislatures.

The Intelligencer‘s Jonathan Chait uses the news to call for “An End to the Liberal Romance With Courts.”

Americans — liberals in particular, and boomers especially — have been suffering from a misplaced faith in the Supreme Court as the guarantor of rights and liberties. The right to abortion will not be secured by the occupants of a gleaming marble building. It will be the work of politics — activism, persuasion, and voting — that will control its fate.

For most of its history, the Supreme Court was a nakedly reactionary institution. The Court destroyed civil-rights laws in the 19th century and progressive economic legislation in the 20th, right up until midway through the New Deal. The Constitution, as interpreted by the Court, created rights for social and economic elites that Congress could not touch.

In the second half of the 20th century, the Court reversed its historic character and began handing down liberal rulings. Roe v. Wade was the apogee of the Warren and Burger Courts, and the era imprinted the image of a liberal Court on the public mind.

Even as control of the Court has passed into the hands of conservatives, who have turned it back into its historic role of creating conservative rights — to pollute, to carry weapons almost anywhere, to thwart a Medicaid expansion — rather than liberal ones, the old impression has endured. Last fall, a Gallup poll found Democrats and Republicans approved of the Court equally, while a Marquette University poll found it had slightly higher approval among Democrats — an extraordinary assessment of a body controlled by six conservatives, half of whom were chosen by Donald Trump.

Roe v. Wade has become affixed in the public conscience as a synonym for the right to abortion. But one can support the right to abortion without believing that right is protected by the Constitution. (I personally believe people have the right to abortion and all essential medical services, but I don’t think the Constitution is the source of the right either to abortion or to health care generally.) After Roe, the fight for abortion rights will revert to an openly political struggle. The Court is not ending the abortion debate. It is throwing it open.

This has been my position for as long as I’ve cared about such things—more than four decades. It is, alas, not that simple. While I still fundamentally believe that the political process, not unelected judges, should make public policy decisions, I’ve come to realize that our political system is much less representative than we’d like to believe. Further, even if our system were truly democratic, it’s problematic, to say the least, to subject the rights of the least powerful among us to the wishes of the majority.

My friend and co-blogger Steven Taylor has written countless posts here and elsewhere about the unrepresentative nature of our system. Most obviously, the Great Compromise gives outsized power in the Senate to the small states, which are disproportionately rural and Republican. The House does this in a modest way because each state is given at least one Representative and, because Republicans are both more eager and in a better position to gerrymander districts in their favor. And, because we filter our Presidential elections through the bizarre mechanism of the Electoral College, these irregularities are transferred to the Executive, such that we’ve had two Republican Presidents in recent memory that lost the popular vote. This is all compounded by the fact that most elections essentially uncontested, such that the winner is effectively chosen by the rabid ideologues that vote in that party’s primary.

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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. Roger says:

    I’m old enough to remember the Warren Court and the widespread sense that the Supreme Court had effectively become a sitting constitutional convention, routinely substituting its relatively liberal preferences for those of the people’s elected representatives.

    I knew you took an early interest in politics, but you were damned precocious if you remember the workings of a court that ended in 1969 when you were, what, four years old? I suspect what you remember is the right wing commentators you followed as a young man, years after Earl Warren was gone, bitching about Warren and the rights they say he made up (I would say recognized) in Brown v. Board of Education, Loving v. Virginia, Brady v. Maryland, New York Times v. Sullivan, Miranda v. Arizona, and other cases that have been the bedrock of our jurisprudence for half a century that now are at risk.

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  2. Jay L Gischer says:

    I’m a bit older than James. My father, whose memory I hold dear, voted for Barry Goldwater. I never heard him complain about the Warren Court in any fashion, though. I did from time to time see the protest – an “Impeach Earl Warren” sign in the background of a political cartoon. I didn’t quite get the point though, because, for instance, Miranda seemed to make a lot of sense to me.

    My sense, both at the time, and now, was that by complaining about Warren making up rights you got to avoid arguing that those rights were invalid, and I think that was going to be a heavy lift in the environment of the 60’s and 70’s.

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  3. James Joyner says:

    @Roger: Yes, fair enough. I’ve amended that sentence to read “I’m old enough to remember the widespread sense, created under the Warren Court and continued into the Burger Court. . .”

    the right wing commentators you followed as a young man, years after Earl Warren was gone, bitching about Warren and the rights they say he made up (I would say recognized) in Brown v. Board of Education, Loving v. Virginia, Brady v. Maryland, New York Times v. Sullivan, Miranda v. Arizona, and other cases that have been the bedrock of our jurisprudence for half a century that now are at risk.

    By the time I was paying attention in the late 1970s, nobody respectable was much complaining about Brown or Loving. And I’m not sure I heard much complaint about NYT v Sullivan until the last few years. But, yes, the various “soft on crime” charges and the sense that criminals were “getting off on technicalities” was very widespread in the South, especially.

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  4. Sleeping Dog says:

    …no state—not even my erstwhile home, Alabama—would do so now.

    I’ll venture that you are speaking too soon, in the deepest recesses of the religious right, talk of going after birth control has sprung up since TFG’s SC appointments.

    More importantly, as Jonathan Last pointed out yesterday, for the first time since Jim Crow, what state you live in will have a significant impact in the kind of life you can lead.

    Both political parties are interested in controlling peoples’ lives. In many places, the Democrats, for instance, want to prevent you from using plastic grocery bags. Democrats forced restaurants to put the number of calories in a dish on restaurant menus. You may recall that in New York City Democrats even wanted to control the maximum size of a soda you could buy. Quelle horreur.

    And the Republicans want to exert control over Americans’ lives, too. They want to be able to control the presidency on an ongoing basis with a minority of the popular vote. They want to impose their own rules on how voting may happen, how votes are counted, and even whether or not governmental bodies may choose to reject the results of vote counts. They want to control what the CEOs of private businesses may or may not say in public. They want to criminalize abortion.

    So, you know, both sides I guess? ¯\_(ツ)_/¯

    Since neither party is terribly hospitable to libertarian sensibilities, we are entering a period in American life where the state you live in will matter quite a lot in terms of your day-to-day life. If you live in a Democratic state, you will have to deal with various bits of nanny-ism that may or may not annoy you. Your local government might mandate composting. Your House rep might announce her pronouns at a town hall. Some women in your state might get abortions.

    If you live in a Republican state, what can be said in your child’s classroom may be dictated by the angriest MAGA Karen. You might have to wait in line to vote for several hours. Your state legislature might have the power to decertify the results of an election.1

    For a long time the difference between living in Texas or New Jersey, Florida or California, was one of degrees. You had to take into account the relative tax rates, the climate, the quality of schools, the concentration of jobs.

    That era is waning and we are entering a period in which the state you live in will determine more fundamental aspects of your rights as an American citizen.

    Perhaps he overstates his case, but if so, not by much.

    Presently, four justices have expressed they are open to the argument that state legislatures can overrule the voters choice in presidential elections. That seems to me awfully dangerous.

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  5. CSK says:

    I recall driving through the south with my grandfather when I was nine and seeing IMPEACH EARL WARREN billboards lining the highways. At that age, I had no idea who Earl Warren was–nor, probably, what “impeach” meant. But I vividly recall the billboards. There were none up north.

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  6. Jay L Gischer says:

    It has just occurred to me that under Alito’s formulation one could easily roll back Heller, which finally, after 2 centuries of other understanding, selectively incorporated the Second Amendment. In fact, the historical treatment was that states and particularly municipalities could, and did, control firearms. Dodge City in the days of the cattle drives, for instance, outlawed possession of firearms within the city limits.

    Honestly, the reasoning here is dead awful.

    I mean, all the jurisprudence that has followed in consequence of the 14th Amendment isn’t exactly mentioned in the 14th Amendment. All the “strict scrutiny” and so on.

    The other thing I find remarkable is that if Alito wants to hold out abortion as distinct from all that other stuff, shouldn’t he be arguing that the state has a compelling interest in fetuses, because they are persons? Of course, that brings with it a whole new set of issues.

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  7. Just nutha says:

    @Sleeping Dog: The things you’re describing are predominantly going to affect the not Dr. Joyners, the not crackers, and the not Sleeping Dogs. If you’re not poor, not black, not “foreign” you’re life will be fine. And that’s why the plan works.

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  8. Just nutha says:

    @CSK: We had the occasional “Impeach Earl Warren sign up in the PNW. But it wasn’t common here.

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  9. Sleeping Dog says:

    @Just nutha:

    That goes without saying, the poor and minorities always bear a greater share of the burden, but the comfortable and upper classes are at risk when any agent of the state has been empowered to enforce a law at their discretion.

    That Alito’s rational will, predictable, fall disproportionally on the poor and minorities is further evidence of its venalness.

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  10. Scott F. says:

    Further, even if our system were truly democratic, it’s problematic, to say the least, to subject the rights of the least powerful among us to the wishes of the majority.

    To be fair, if our system were truly democratic, “the least powerful among us” would be the majority, as we live in a country where the power rests with a select few who have the money to buy our politicians.

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  11. gVOR08 says:

    It’s (gay marriage) simply ingrained now in a way that abortion wasn’t.

    Huh??

    Regardless, Tribe’s larger point is surely right. There’s nothing stopping a Court that is willing to simply disregard precedent from making wholesale changes to the way the country is governed.

    I’ve been warning in these threads that “Originalism” is DESIGNED to overturn precedent. I’ve also been warning that the people who funded the Federalist Society don’t care about abortion or gays except as election tactics. They care deeply about what they see as the Regulatory State. They’re going to gut financial, health and safety, and environmental regulation of corporations. We’re going to lead shorter, poorer lives because of these five and a half Federalist Bozos.

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  12. Kurtz says:

    @Jay L Gischer:

    My sense, both at the time, and now, was that by complaining about Warren making up rights you got to avoid arguing that those rights were invalid, and I think that was going to be a heavy lift in the environment of the 60’s and 70’s.

    This is a good point.

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  13. Kathy says:

    I’ve personal policy to not visit authoritarian countries. For instance, I have had several opportunities to visit Cuba which I’ve declined.

    My US visa expired last March. I’m not in a rush to renew it.

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  14. Kurtz says:

    @gVOR08:

    They care deeply about what they see as the Regulatory State.

    The phrase “unelected bureaucrats” comes to mind here. They love that phrase. But it doesn’t extend to the unelected judges that have become the organization’s raison d’etre.

    The worst thing about it is that if an unelected bureaucrat exceeds their authority, there are multiple avenues available to constrain a bureaucrat’s authority separate from the judicial branch.

    The one most keeping to the spirit of the Constitution would be legislation. Indeed, it is far easier to constrain the power of a regulatory agency via legislation than it is to impeach a judge.

    Unless of course . . .

    As revealed by McConnell’s fear of expansion of the Child Tax Credit, often those bureaucrats are implementing programs that hold broad public support. That tends to make his job too difficult.

    One part of @Sleeping Dog‘s quote of Last’s piece struck me as slightly off. The GOP has one pure “libertarian sensibility,” the firm belief that businesses ought never be regulated, because they effectively regulate themselves via market forces.

    I mean, not only has this faith been shown as badly misplaced, but the same urge to consolidate power applies to both individuals and groups in government and private actors.

    But that deference to business may be changing, if DeSantis is truly becoming the standard bearer for the party. But he is the walking, iron tongued embodiment of the danger posed by Social Conservatism.

    Some may disagree with that sentiment, one I’ve expressed a few times here. In my view, Social Conservatism is the most pernicious threat to freedom and liberty, because it seeks to narrow the scope of individual behavior. Usually in accordance with some specific set of religious beliefs. It’s even more galling, because those folks will gladly wave a pocket Constitution in another’s face about some other issue as if it doesn’t also contain some phrase about establishing religion.

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  15. Mikey says:

    @Kathy: A personal question–and in no way am I demanding an answer, it’s wholly up to you–did you grow up in an English-speaking country? You live in Mexico but your writing is native-English-speaker fluent.

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  16. Moosebreath says:

    “It’s more likely that Obergefell’s gay marriage ruling, decided 5-4 with Ginsburg as the deciding vote, could be overturned but it strikes me as unlikely. It’s simply ingrained now in a way that abortion wasn’t.”

    Have you ever met a religious conservative? Hating on gays and opposing abortion seem to be the only things written in their Bible (never mind that Jesus never spoke about either).

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  17. Sleeping Dog says:

    @Kathy:

    Before I retired, I had the hankering to visit Cuba and see it before it was turned into a luxury resort. This was at the end of Obama’s admin. By the time I retired, TFG was in office and it became very difficult with a return to travel restrictions.

    It would have been interesting to see the country as it mostly was in the 50’s, tattered and worn of course.

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  18. Kathy says:

    @Mikey:

    No, born and lived in Mexico my whole life.

    I had one very good English teacher*, lots of practice, and I read almost exclusively in English.

    *He also was Mexican. I never thought to ask him where he learned English.

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  19. Gustopher says:

    While I find this over-so-slightly histrionic, he’s not wrong. It’s possible, I suppose, that this Court will simply overturn Griswold and, with it, the right to use contraception. But, while Connecticut (the party to the case) and many other states had banned the use of birth control by 1965, no state—not even my erstwhile home, Alabama—would do so now.

    Back when Hobby Lobby was in the news, I remember quite a bit of chatter on the right about how many forms of birth control were abortifacients as they prevented a fertilized egg from implanting.

    What surprised me wasn’t that this chatter was wrong (in many cases it isn’t — that’s how an iud works), but that they were willing to start laying the groundwork to attack birth control entirely.

    They will go there.

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  20. Kathy says:

    @Sleeping Dog:

    Is there any reason you can’t fly to Mexico City or maybe Cancun and then to Cuba?

    I suppose there may be pandemic restrictions for Cuba, but the rest seems easy enough.

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  21. Mu Yixiao says:

    @Kathy:

    The flight isn’t the issue. It’s the potential $250,000 fine and/or 10 years in prison. 🙂

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  22. Kurtz says:

    @Kathy:

    I wondered if you were born in the States or educated here. Your command of English is better than many, if not most Americans.

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  23. Gustopher says:

    Regardless, Tribe’s larger point is surely right. There’s nothing stopping a Court that is willing to simply disregard precedent from making wholesale changes to the way the country is governed.

    This basically throws out the foundation of English Common Law, which our constitution was built on and incorporates.

    Not just limits it to 1787, but throws it out entirely — abortion, after all, was legal in the colonies, and many snake oil salesmen had a remedy to “restore the menses”

    The “Originalists” are using a mythological version of 1787 to justify their policy preferences. It’s basically like a Medieval historian going back to the source, “Game of Thrones.”

    Even aside from various “rights” that previous Courts found hiding in the shadows of the Bill of Rights,

    This would be Common Law again, where there is a tradition of rights and precedent that was taken for granted.

    My loose understanding is that England doesn’t have a constitution, they have a bunch of precedents and random documents Whose meaning has evolved over time (the rights in the Magna Carta are now applied to all, not just noblemen, etc). The US has a constitution bolted on top of that laying out the structure of the government, and the Bill of Rights that effectively says “and here is where we are changing Common Law”.

    Of you throw out common law, or restore it to a fantasy version you end up with a very truncated set of rights — just the things that the founding fathers were annoyed by on a given date.

    It’s limiting you diet forever to what happens to be on your shopping list on a random Tuesday. If you didn’t need butter then… no butter for you, ever, but don’t worry, the milk is safe and protected.

    there are strong signs that this collection of Justices may overturn the very foundations of the Administrative State. Grounded in the Constitution of 1787, they have a plausible case for doing so.

    Most Americans would be shocked and deeply bothered by a return to 1787’s version of states, real or fantasy 1787. But that’s where this leads.

    But it would be dangerous, indeed, making governing a modern continental superpower next to impossible.

    Makes you wonder if that’s the point.

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  24. Argon says:

    Weird how they don’t seem all that interested in blocking the death penalty.

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  25. Gustopher says:

    @Kurtz: And she notices autocorrect issues before posting too!

    (Why is “Whose” capitalized in my comment? I swear, autocorrect just learns random words that might have been used to start a sentence in the past should be capitalized. Soon I’ll be randomly capitalizing Words like some 18th century Writer. Not going to look at my comment any more before I find something else)

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  26. Sleeping Dog says:

    @Kathy:

    What Mu said.

    There are some ways around the restrictions, most are some sort of educational tour. Tours make me cringe, my plan was to go down for a couple of months, rent a place in Havana and use it as a base to travel around the island.

    I began collecting information, but after TFG election tossed it. Sort of hoped that Biden would return to the Obama policies, but he doesn’t seem to want to poke that wasp nest.

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  27. Mu Yixiao says:

    @gVOR08:

    It’s (gay marriage) simply ingrained now in a way that abortion wasn’t.

    Huh??

    70% of Americans support gay marriage. Depictions of homosexuals in entertainment and media are much more realistic and sympathetic than they used to be. For the vast majority of Americans homosexuality–and same-sex marriage–simply isn’t a big deal.

    Abortion is still something that people hide. Having (or having had) an abortion is not something that people talk openly about.

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  28. Kathy says:

    @Sleeping Dog:
    @Mu Yixiao:

    Well, see, I didn’t know that.

    It seems extreme, even considering roots in the Cold War.

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  29. Kathy says:

    @Kurtz:

    Well, lots of practice.

    Even before audiobooks, I read a lot (though I had to re-read books when I ran short, which was often). Then, too, as I learned English we had US network TV on cable. Add subscriptions to Discover magazine for several years. And not least lots of practice in BBS systems (pleonasm, I know) and then internet message boards, starting around 1990.

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  30. Erik says:

    @Mu Yixiao:

    70% of Americans support gay marriage

    Support, sure, but willing to go to the mat to protect with votes and money and whatever else it takes when Christianists come for it? My confidence is low.

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  31. Mu Yixiao says:

    @Kathy:

    The practical reality is that an American can probably get away with going to Cuba via Mexico or Canada. Enforcement is low, and there are some tricks to use (like having Cuban customs stamp a piece of paper and stapling it to the passport–then ripping it out before getting back to the US). However… Most people don’t want to risk it.

    On a side note: When I was working in China, I found out that European developers were investing up to $4B in resorts along the north coast of Cuba. Our product would have been perfect for beach-side hotels and bars. I passed this information to our foreign sales team, because China can go to Cuba. Potentially millions of dollars in sales for us. And… they were all too damn lazy to pursue it.

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  32. Mu Yixiao says:

    @Erik:

    Support, sure, but willing to go to the mat to protect with votes and money and whatever else it takes when Christianists come for it? My confidence is low.

    Which is separate from the statement that homosexuality is “engrained in our culture”.

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  33. Sleeping Dog says:

    @Kathy:

    Cuba and Cuban policy is a political football in the US. After all we still maintain a porous embargo. A lot of it has to do with the Cuban community in FL opposing any warming of relations. R’s fostered those opinions and Dems didn’t see a lot of benefit in forcing a change.

    During the Obama years, that shifted as younger Cuban-Americans were less adamant and the business community, fearing they would be locked out, wanted a chance to develop in Cuba. One hold up in change happening as many of the restrictions aren’t due to executive order, but law.

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  34. gVOR08 says:

    @Mu Yixiao: About 24% of women have had an abortion. That strikes me as pretty ingrained.

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  35. Jay L Gischer says:

    Well as regards same-sex marriage, there are a whole bunch of people who are married now. This is a practical issue that is an enormous burden toward undoing it. I mean, yes, there are people who would be willing to undo those marriage contracts, but I would guess only maybe one of the sitting justices would want any part of it.

    Even banning sale of contraceptives, which I find a political non-starter, would create fewer practical problems. These are issues that touch probate courts, for instance, and could go on for decades.

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  36. KM says:

    @Mu Yixiao:
    If you think there aren’t still people hiding their sexual orientation in this day and age, I have a wonderful real estate opportunity for you. In fact, the type of people who feel they need to hide because of who they associate or are related to are also going to be likely to hide anything abortion related. There’s a large segment of the population that is *not* friendly to anything other then traditional gender role cis-het folks and it won’t matter if it’s 2022 or 2127 if you’re worried your family might have problems with who you are. Being out is a choice and some people aren’t willing to make it anyone’s business but whomever they are sleeping with.

    As for not talking about abortions, why the hell would they? It’s a private medical procedure. Do you talk to people about your last physical? Do your cousins and neighbors know the details of your last surgery? TMI is what it is. Moreover, anything about sex bothers puritanically Americans so they’re not gonna want details even if they think your body, your choice. 1 in 4 women felt the need to do something and you’ll never know who unless they tell you…. meaning you really don’t need to know for the world to move on, do you?

    Just because something is common doesn’t mean a busybody needs the details for it to matter or be “normal”.

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  37. Mu Yixiao says:

    @KM:

    If you think there aren’t still people hiding their sexual orientation in this day and age, I have a wonderful real estate opportunity for you.

    Never said that, never implied that. Stop with the strawmen.

    There’s a large segment of the population that is *not* friendly to anything other then traditional gender role cis-het folks

    That segment is, according to recent polling, under 30%. The fact that it’s non-zero doesn’t change the fact that homosexuality and SSM are now, overall, an accepted and “ingrained” part of our society.

    As for not talking about abortions, why the hell would they? It’s a private medical procedure. Do you talk to people about your last physical?

    Ummm.. yeah. If I might remind you, I went into detail about my recent heart attack with a bunch of people on the internet! Flat Earth told us all about colon cancer and hundreds of chemo treatments. Hell, I’ll sit and swap “what’s wrong with me and what the doctor said” stories with people I hardly know at the local watering hole.

    1 in 4 women felt the need to do something and you’ll never know who unless they tell you…. meaning you really don’t need to know for the world to move on, do you?

    Okay… now you’re sounding like this is personal–and about me. It’s not. First of all, I’m pro-choice. Let’s just get that out of the way.

    I have no clue what you mean about me “having to move on”. My response above was to the sentence in the OP that abortion is not “ingrained in our culture” in the same way as gay marriage. And… it’s not. Good, bad, or otherwise, they’re not on the same level of openness and acceptance.

    What we choose to do about any of it is a completely different topic.

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  38. Gustopher says:

    @Mu Yixiao: are you familiar with Florida?

    Big state? Looks like a flaccid penis? Has a city called Miami that has a lot of gays?

    They have a new law that asserts that any depiction of gender, orientation or gender roles in school is verboten and akin to child abuse.

    They will not be enforcing it for cis het folks, but it’s open season on anyone else. If you don’t think gay teachers need to be in the closet, then you’re probably a groomer.

    They aren’t coming after you… yet. They will.

    (95% certain you’ve mentioned something about some vague level of queerness or kink, unless I am confused)

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  39. Beth says:

    @Mu Yixiao:

    I think you’re looking at LGBTQ rights the wrong way. It’s not whether they are ingrained in our culture now (which is highly questionable). The appropriate Alito view is “are they part of our long-standing tradition of ordered liberty”. Meaning, have LGBTQ people been allowed unfettered rights to engage in sex with people of their choice, marry, and control their own bodies from the 17th century (first in England specifically, then here).

    The answer to that is obviously no. LGBTQ rights really only start being real in the 80/90s. Women’s rights have been around longer, but not long enough either. The simple fact is that a minority of people can use the Alito test to wipe out all of their rights.

    For concrete examples, I had three clients call me to ask what they can do to protect themselves from getting forcibly divorced yesterday. Today I personally had a call with my surgery team to BEG to get on the calendar for GCS before the end of the year. They told me no and that they have been fielding panicked calls all day.

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  40. Kathy says:

    There’s a philosophical debate that often spreads to legal reasoning.

    Put simply: is that which is not expressly forbidden allowed? Or is that which is not expressly allowed forbidden?

    I understand this question, in varied forms, was a part of the debate concerning a bill of rights.

    I tend to split on the question. IMO, governments should only be able to do what the constitution expressly allows them to do, although this would be limiting, and as we saw in the case of COVID very inadequate to deal with national emergencies. I can’t help but think the fault is with the constitution.

    The other part is that the people, individuals, should be able to do anything that is not expressly forbidden by law. This is kind of the point of the Ninth amendment.

    In short, government power should be constrained and individual agency should not be.

    The way the US bill of rights is written, most of the “enumerated rights” are assumed rather than expressed, and the government is expressly forbidden from violating them. For instance, the First amendment does not say the people have a right to free speech, but rather “Congress shall make no law (..) abridging the freedom of speech, or of the press,” among other things.

    To me, this clearly demonstrates the rights to free speech and freedom of the press are assumed to exist, and the government cannot make a law to limit or repress them. Same with the free exercise of religion, and freedom of association, all in that one amendment.

    Therefore a right need not be listed in order to exist qua right.

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  41. Kurtz says:

    @Gustopher:

    Speaking of Florida.

    Cape Coral art teacher fired for discussing LGBTQ topics

    Cape Coral art teacher fired for discussing LGBTQ topics
    by Dave Elias 6:18 PM EDT, Tue May 03, 2022

    CAPE CORAL, Fla. — A Cape Coral Middle School teacher claims she was fired because she spoke with her students about sexuality.

    She says her art students then drew flag pictures expressing their own sexuality.

    Mrs. Casey Scott said school leaders made her remove the drawings and throw them out.

    However, the Lee County School District claims she was fired for not following the mandated curriculum.

    “A discussion happened in class and because of that, now I’m fired,” Scott said.

    That discussion centered on student sexuality. She pointed to flags she said were created by students, some of whom identified as non-binary, bisexual, and gay.

    She claims students wondered about her and she revealed she was pansexual.

    “I like anyone despite male, female, non-binary, transgender,” Scott said.

    She is married to a man and she claims some students asked her if they could create art expressing their sexuality.

    She hung the pictures on her classroom door and that’s when school personnel contacted her.

    “They said it would be in the best interest if I got rid of them now,” she said.

    She snapped pictures showing how she got rid of them by placing them in a recycle bin.

    “I went over to the recycling bin. I grabbed all their flags and all the kids were staring at me. And I crumbled their flags in front of them,” she explained.

    She was sent home and then received a call from school administrators who informed her that she was being released from her contract.

    She showed us social media posts from students upset over her firing.

    However, the Lee School District showed us complaints from parents who were concerned about the conversation and the artwork.

    The district also released handwritten accounts from students which described they were allowed to draw any type of flag they chose even creating flags expressing who they are.

    The students also verified that Mrs. Scott revealed she was pansexual. A term understood by some students and left others confused.

    I don’t really know what to say about this. Well, I do. But what’s the point?

    ETA: Just want to emphasize that this is a former Middle School teacher. She was not teaching pre-pubescent kids. The Florida GOP attempted to drive home about their legislation–it was about age-appropriate. Of course, some people seem to think anything other than cis/het are inappropriate for all ages.

    Cue Helen Lovejoy. Her real life clones now have veto power over Florida curricula.

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  42. Kathy says:

    This is not evidence. But I did wonder whether the leak of the supremes privacy might not have been a trial balloon of the opinion, to see how far they can take repression, or to gauge how the base will react (as in how enthusiastically).

    Or it may be legitimate.

    And if leaked on purpose, by whom?

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  43. KM says:

    @Mu Yixiao:
    It’s not a strawman. It’s a very real concern for thousands of people in this country right now. You say for the vast majority it’s NBD but more and more, the minority is making a big deal for people to even talk about themselves. Why would abortion be any different? Being gay means they think you’re living in sin but abortion makes them think you’re a murderer. That’s gonna go over great if you bring it up!

    The simple fact is the original assertion that being gay is somehow integrated into society in such a way they don’t have to fear losing the right to marry or worse is just plain false. It’s the same kind of “you’re being paranoid, Roe’s not going anywhere” energy that got us here in the first place. The writing’s on the wall and you’d have to be a fool to think they’ll stop only taking away the one right instead of all the rights they’ve been bitching about for decades. There are ZERO protections if the GOP decides to go for it and with all the “groomer” slurs being thrown around, they’re already laying the groundwork to take action. Forgive us we’re not buying folks telling us things will be fine when we see the fire creeping up the walls…..

    Also, the “you” isn’t personal – that’s how you write a sentence towards a non-specific reader, with “you” and “they”. “You’ll never know” is a well-known idiom and didn’t mean “@Mu personally will never know” but rather the general public won’t know which 1 out 4 women is whom. If you feel it was directed at you…. well, maybe stop to think why that’s where your mind went.

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  44. KM says:

    @Kathy:
    At this point, it doesn’t really matter. A distraction from what really matters.

    The fact is it’s out there and it’s interesting as hell the GOP isn’t crowing about their long-awaited victory. This is their shining moment and NOBODY wants to take credit or bask that they’ve finally done the Lord’s work. The base isn’t out there screaming with joy, the televangelists aren’t praising Jesus for the win and everybody’s talking the leak, not the contents.

    It’s pretty clear this isn’t what they wanted. The question is: because it’s out before an election or because actually getting rid of Roe screws them out of a core tenant and fundraiser?

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  45. Mikey says:

    @Kathy: That’s really impressive. The only other non-native speaker I know with your level of fluency is my wife, but she’s actually lived in the US for nearly 30 years.

    Meanwhile my German has remained somewhere around “drunk toddler” level…lol

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  46. Mikey says:

    @KM: I think they realize they’re about to learn the true meaning of Pyrrhic victory.

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  47. Kurtz says:

    @KM:

    The question is: because it’s out before an election or because actually getting rid of Roe screws them out of a core tenant and fundraiser?

    I surmised here, maybe last year, that it’s possible some GOP professionals didn’t actually want Roe overturned for the reasons you highlight.

    I don’t remember, but knowing the group here, someone probably countered that they would pivot to a national ban. I heard on NPR, in passing, that there had been some talk among advisors about exactly that.

    Wouldn’t surprise me.

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  48. Rick DeMent says:

    I’m trying to understand how a fetus all of a sudden is now granted rights under the constitution. I mean you really can’t use an originalists argument since there was a whole calls of people denied the vote and another class who were only considered as 3/5ths.

    For those who pretend to be squamish about “Legislating from the bench”, this is a whopper.

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  49. Back to the OP: I agree that the structure of SCOTUS is inherently small-c conservative.

    But Alito’s draft opinion isn’t conservative, it is reactionary.

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  50. Kathy says:

    @Mikey:

    It doesn’t seem impressive to me, perhaps because it didn’t feel difficult.

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