SCOTUS Really Might Overturn Roe This Time

The SCOTUS announced today it will hear Dobbs v. Jackson Women’s Health Organization, a case about a Mississippi law that outlaws elective abortion after 15 weeks’ gestation. There is real concern that this could be the Big One that overturns Roe v. Wade, mostly because now that Amy Comey Barrett is on the court, the conservatives don’t need Chief Justice John Roberts’s vote to make a majority.

It’s also the case that the law being challenged in Dobbs is more straighforward than some of the recent laws the court failed to overturn (mostly because of Roberts). For example, last year the Court failed to overturn a Louisiana law that applied burdensome regulations to abortion providers to discourage them from performing abortions. Roberts voted with the liberals on that one.

But Dobbs simply puts a gestational limit on elective abortion at 15 weeks. The Roe v. Wade guidelines allow states to ban elective abortions, but not before the gestational age at which a fetus might be viable (then as now, 23 weeks). After that, the states must provide exceptions for “life and health of the mother,” and physicians had some discretion about what that meant.

There is a little fudging in the medical literature about the 23-week threshold for viability, but 15 weeks is way outside fudging range. As I understand it, if the Court allows the 15-week limit to stand, Roe is overturned. And if Roe is overturned, a whole lot of states will ban all or most abortions overnight. It may be that the justices could uphold the 15-week ban but include language in their decisions that salvages some parts of Roe, but I wouldn’t expect them to do that.

I personally think this comes under the heading of “be careful what you wish for.” The most recent polls I could find found a significant majority, about two-thirds, of Americans support Roe. Multiple polls have found the percentage of Americans who want abortion outlawed in all or nearly all circumstances to be in the neighborhood of 24 to 27 percent. Abortion has been an effective wedge issue for Republicans because those against it are really against it; they are strong single-issue voters. The rest of the electorate has other priorities.

But Republicans might be setting themselves up for a significant national backlash if Roe is overturned. Maybe that’s what it’s going to take to get some peace on this issue — let the fanatics have their way and let them get slapped down for it.

Some states may accept an abortion ban for a while, but we’ve seen in other places that banning abortions opens many cans of worms that the fanatics haven’t thought out. The Mississippi law makes exceptions for post-15 week abortions for “medical emergency or in the case of a severe fetal abnormality,” but people are going to disagree about what constitutes an emergency and which fetal abnormalities are severe enough. If any. States that ban abortions will soon find themselves dealing with a black market in abortion pills and the return of back-alley abortionists.

It has to be said that there are some civilized nations that have banned elective abortions even earlier, at twelve weeks’ gestation. But in most of those same countries (for example, Denmark) women can get their elective first-trimester abortions free of charge, courtesy of the public health system, and without any hassles. It works for Denmark.

See also: Do see Dear White Christian Pro-Life Friends, a series of open letters by Brian D. McLaren, who identifies himself as a pastor and “public theologian.” He does a masterful job of summing up the recent history of the anti-abortion movement and its effects. Worth reading. See also Abortion Law: Why Cruelty Is the Point from May 2019.

The Roberts Court, April 23, 2021
Seated from left to right: Justices Samuel A. Alito, Jr. and Clarence Thomas, Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer and Sonia Sotomayor
Standing from left to right: Justices Brett M. Kavanaugh, Elena Kagan, Neil M. Gorsuch, and Amy Coney Barrett.
Photograph by Fred Schilling, Collection of the Supreme Court of the United States

Another Anthony Kennedy

First-term President Obama made a surprise reappearance today and announced the nomination of a “centrist” SCOTUS pick, Merrick Garland. Some guy at Salon wrote,

It’s easy to understand why. Garland is the epitome of a bland choice: a centrist, impeccably credentialed white man. In choosing him, Obama passed over several more interesting and/or liberal picks, and nominated someone whose judicial history suggests he might actually move the court to the right on criminal justice issues. In an election year, at a time when Democrats are fervently pitching themselves as the party of a changing, increasingly diverse nation, when the nominee could have been the potential embodiment of a leftward transformation on the court, Garland is a deflating sort of pick.

In other words, he sounds like another Anthony Kennedy to me. We’re squandering a court pick for this?

This is from ThinkProgress:

The former prosecutor also has a relatively conservative record on criminal justice. A 2010 examination of his decisions by SCOTUSBlog’s Tom Goldstein determined that “Judge Garland rarely votes in favor of criminal defendants’ appeals of their convictions.” Goldstein “identified only eight such published rulings,” in addition to seven where “he voted to reverse the defendant’s sentence in whole or in part, or to permit the defendant to raise a argument relating to sentencing on remand,” during the 13 years Garland had then spent on the DC Circuit.

To be clear, Garland’s record does not suggest that he would join the Court’s right flank if confirmed to the Supreme Court. He would likely vote much more often than not with the Supreme Court’s liberals, while occasionally casting a heterodox vote. Nevertheless, as Goldstein wrote in 2010 when Garland was under consideration to replace the retiring liberal Justice John Paul Stevens, “to the extent that the President’s goal is to select a nominee who will articulate a broad progressive vision for the law, Judge Garland would be a very unlikely candidate to take up that role.”

Nancy LeTourneau at Washington Monthly wrote,

There are some on the left who are expressing disappointment that President Obama didn’t chose a nominee with a more progressive legal record. But those folks don’t understand this President’s commitment to pragmatism as a strategy. For those who prefer battle analogies, he prefers to defend the high ground.

Yeah, the high ground and $5 will get you a 20 pierce Chick McNuggets, I understand. I don’t want the high ground; I want another Ruther Bader Ginsburg. Now now now!

If the Republicans ain’t gonna hold hearings anyway, what’s the point of trying to appease them? Paul Waldman and Charles Pierce both think this is a smart political move, and maybe it is, but I don’t like it.

 

He’s Got This

Do read Andrew O’Hehir today:

According to numerous scholars who have weighed in since the death of Justice Antonin Scalia over the weekend, historical and constitutional precedent indicates that the president of the United States is elected for a four-year term, and does not stop being president until he or she, um, actually leaves office. That’s a hot take on a controversial topic, I know! It’s nearly as confusing as the question of who was president at the time of the 9/11 attacks, which Marco Rubio seems to think took place during some extended Bill Clinton prequel to “The Hangover,” while George W. Bush wore funny costumes and did non-alcoholic Jell-O shots and kept forgetting he had taken the oath of office.

Spotted on Twitter: “Am I now allowed to argue that Senators up for reelection this year are lame ducks who don’t deserve a vote on SCOTUS nom?”

After news of the death of Antonin Scalia, even the professional pundits expressed no surprise that Republicans let not a nanosecond pass before they promised to obstruct whomever the President nominated.  As O’Hehir says, paralysis is the new norm. But I think they’re still clueless about what President Obama might do about it.

I keep reading opinion pieces — and not just by conservatives — that the President ought to nominate someone very safe and moderate. Are they not paying attention? At this point the President could nominate the corpse of Robert Bork and the Right would still call him unacceptable. Any nomination made by President Obama will be unacceptable to them, by virtue of being President Obama’s nomination.

So why self-compromise? And, I suspect, the President will not self-compromise. I think he’s gone past that now. He will nominate whomever he damn well pleases, and then he will sit back and let the Right tear itself apart over it.  Because some of them will notice eventually that obstructionism doesn’t always work in their favor.

Concurrent Head Explosions

What with end of the month deadlines and temple activities, I haven’t been able to spend as much time writing about this week’s events as I’d have liked. And by all accounts the President’s eulogy for the Rev. Clementa Pinckney was amazing, and I haven’t had time to see it.

The reaction of the Right to the week’s events is predictably unhinged. However, it appears none were more unhinged than that of Don Antonin Scalia, in his dissenting opinion. According to Josh Marshall,

For all the blaze of history and march of freedom this week, no doubt for me the highlight was Justice Scalia’s invoking John C. Calhoun’s “concurrent majority” theory on behalf of denying marriage equality to gay men and women.

I’ll have to read the opinion to see if this was implied or explicit. Right now it’s damn early in the morning for insightful analysis, but basically Calhoun’s “concurrent majority” was the theory that sanctified the Nullification Crisis back in Andrew Jackson’s administration. It’s basically a way for minorities to force their will on elected majorities.

Charles Pierce:

Today, in his dissent from the opinion establishing marriage equality across the land, Short Time really outdid himself.

Not surprisingly then, the Federal Judiciary is hardly a cross-section of America. Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count).

They’d have voted his way if he were Randolph Scott.

What else have you heard today?

Update: More hilarity.

At Politico, Fredrik DeBoer informs us that The Left is already planning its next move, which is to legitimize polygamy. ” …the marriage equality movement has been curiously hostile to polygamy, and for a particularly unsatisfying reason: short-term political need,” he writes. Yeah, that’s got to be the only reason The Left is curiously hostile to polygamy, because you know we gravitate to stuff like that like ants to a sandwich.

Bobby Jindal wants to get rid of the Supreme Court. He may have been joking; it’s hard to tell. Ted Cruz is not joking, however.

The time has come, therefore, to recognize that the problem lies not with the lawless rulings of individual lawless justices, but with the lawlessness of the Court itself. The decisions that have deformed our constitutional order and have debased our culture are but symptoms of the disease of liberal judicial activism that has infected our judiciary. A remedy is needed that will restore health to the sick man in our constitutional system.

Rendering the justices directly accountable to the people would provide such a remedy. Twenty states have now adopted some form of judicial retention elections, and the experience of these states demonstrates that giving the people the regular, periodic power to pass judgment on the judgments of their judges strikes a proper balance between judicial independence and judicial accountability. It also restores respect for the rule of law to courts that have systematically imposed their personal moral values in the guise of constitutional rulings.

In other words, we’ll make sure we can keep ’em on a leash with a little political demagoguery.

Ron Dreher: This is a sign that democracy is dying.

Bill “Always Wrong” Kristol has picked up the “peak leftism” ball and is running with it.

It’s the summer of 2015, and the left is on the march. Or perhaps one should say—since the left presumably dislikes the militarist connotations of the term “march”—that the left is swarming. And in its mindless swarming and mob-like frenzy, nearly every hideous aspect of contemporary leftism is on display.

Oh, you ain’t seen nothin’ yet, Bill.

Does the GOP Fear the Fallout from King v. Burwell? (Updated)

SCOTUS will hear the King v. Burwell case on March 4. This is the case in which it is alleged that states that did not set up their own exchanges under the Affordable Care Act cannot offer federal subsidies to people buying insurance through the federal exchange. The New York Times editorial board says of this,

On Wednesday, the Supreme Court will hear oral arguments in one of the most anticipated cases of the term: King v. Burwell, a marvel of reverse-engineered legal absurdity that, if successful, will tear a huge hole in the Affordable Care Act and eliminate health insurance for millions of lower-income Americans — exactly the opposite of what the law was passed to do.

Even an idiot ought to be able to understand that the primary point of the exchanges is to facilitate people buying individual health policies that can be subsidized. I suspect even some Republicans realize this.

The suit is based on one ambiguously worded sentence in the ACA. In a subsection of the law dealing with tax credits, the ACA describes exchanges “established by the states.” The authors of the bill say this was a vestige of the original assumption that the states would set up their own exchanges. It wasn’t anticipated that so many would refuse to do so. But the Burwell challenge hangs on  those four words — established by the states.

The challengers did not innocently happen upon these words; they went all out in search of anything that might be used to gut the law they had failed to kill off once before, on constitutional grounds, in 2012. Soon after the law passed in 2010, Michael Greve, then chairman of the Competitive Enterprise Institute, which is helping to finance the current suit, said, “This bastard has to be killed as a matter of political hygiene. I do not care how this is done, whether it’s dismembered, whether we drive a stake through its heart, whether we tar and feather it and drive it out of town, whether we strangle it.”

After the challengers found the four-word “glitch,” as they initially called it, they worked backward to fabricate a story that would make it sound intentional. Congress, they claimed, sought to induce states to establish exchanges by threatening a loss of subsidies if they did not. (Not coincidentally, the challengers also traveled state to state urging officials not to set up exchanges, thus helping to create the very “crisis” they now decry.) Of course, if Congress intended to introduce a suicide clause into a major piece of federal legislation, it would have shouted it from the mountaintops and not hidden it in a short phrase deep inside a sub-sub-subsection of the law. So it is no surprise that no one involved in passing or interpreting the law — not state or federal lawmakers, not health care journalists covering it at the time, not even the four justices who dissented in the 2012 decision that upheld the Affordable Care Act — thought that the subsidies would not be available on federal exchanges.

So, the purpose of Burwell is to kill Obamacare, and if SCOTUS decides for the plaintiffs, it might very well succeed. The Kaiser Family Foundation estimates that if the states without their own exchanges lose subsidies, 13,402,890 Americans who ought to be insured by 2016 will lose out. And the entire law could quickly unravel for everyone, as the health insurance industry is thrown into chaos. I understand roughly 9 million people would lose their insurance almost immediately.

The immediate fallout from a decision for the ACA challengers would, therefore, be chaos and devastation, and the long-term consequences potentially even worse. The ripple affect could impact just about everybody, and probably not in a good way.

 This past week Republicans in Congress seemed almost frantic in demanding the Obama Administration reveal their “Plan B” to the world. What will they do to save the ACA if the subsidies are struck down in so many states? And the Administration has said, over and over, there is no Plan B. If the subsidies are lost, there’s not a whole lot that can be done to salvage anything.

But rightie media are not accepting this. The Administration is hiding Plan B. HHS denies it is preparing Plan B. The Administration won’t say it is preparing Plan B. (Actually, it plainly says there isn’t one and none are in the works.) But there must be a Plan B! How could there not be a Plan B? Of course there is a Plan B, and congressional Republicans demand to know what it is.

Smart money says all this posturing is trying to signal the Court that the actual fallout of a decision for the challengers wouldn’t really be that bad; the Administration has a Plan B! Also, when the dominoes start crashing and people find themselves cut off from health care again, they are prepared to point to the White House — See? They should have had a Plan B. It’s their fault.

Republicans also have proposed a Plan B, although no one who knows anything about health care insurance thinks it will work. And a whopping majority — 64 percent — of Americans think that if SCOTUS rules against the subsidies, Congress immediately should step up and reinstate them. Which Republicans in Congress have no intention of doing.

Which makes me think that at least a few Republicans are genuinely nervous that a ruling in their favor could bite them, hard. Deep down, a few of the less demented among them may really want the White House to jump in with a Plan B and save their butts.

Update: Here’s something interesting — a GOP senator is proposing that if the subsidies are struck down, Congress should extend them for 18 months.

The loss of subsidies for millions of people would also put the Obama administration on the offense for the first time to protect its signature healthcare law.

A White House crusade against the GOP would mean a firestorm of accusations that the party is taking away care and endangering lives  – building up for the 2016 election.

To avoid that situation, some Republicans are floating a stopgap that would keep the subsidies in place temporarily.

Sen. Ben Sasse (R-Neb.) promised this week that he would introduce legislation that creates a “temporary model to protect those harmed by ObamaCare” in which people could still receive financial help for their healthcare costs for 18 months after a court decision.

Startin’ to sweat a bit there, dude?

Senate Finance Committee Chairman Orrin Hatch (R-Utah) hinted at a similar proposal earlier in the week, promising “a short-term solution” until a Republican can enter the White House.

By some coincidence, 18 months from the likely date of the decision — end of June, 2015 — would possibly take us just past the 2016 elections.

More Elusive Than Bigfoot

The King v. Burwell case, to be argued in front of the SCOTUS in March, was deliberately crafted to take down the Affordable Care Act. So why is it the crafters couldn’t find better plaintiffs? Jeffrey Toobin writes,

The case is based on the claim that the Obama Administration policy of allowing those who received tax subsidies to buy insurance on the federal exchanges—which cover the thirty-four states that don’t have state-run exchanges—violates the terms of the Affordable Care Act itself. If the plaintiffs succeed in making their case, eight million people are estimated to lose their health insurance, and the A.C.A. itself could subsequently unravel.

But the King case, like any case, can only proceed if the plaintiffs have standing—that is, if they can claim an “injury in fact” from the Obamacare law. Thanks to two recent, excellent pieces of journalism, in Mother Jones and the Wall Street Journal, we now know a great deal about the four plaintiffs. Two are veterans of the Armed Forces and can receive health care through the Department of Veterans Affairs; accordingly, they have no reason to seek the tax subsidies under the law. The other two plaintiffs may make too little money to qualify for the tax subsidies, and, furthermore, one who claimed to be a Virginia resident listed a motel that prohibits long-term stays as her address. In short, the provisions of the Affordable Care Act in question in King v. Burwell may be irrelevant to all four plaintiffs—which would mean that they lack standing to challenge it.

Toobin says that conservative justices for many years have dismissed various challenges from liberals on the grounds that the plaintiffs did not demonstrate the law posed an “injury in fact” on them, and thus they lacked standing.

During the George H. W. Bush Administration, a coalition of environmental and conservation groups sued to stop new federal regulations that limited the application of a section of the Endangered Species Act. Chief Justice Roberts, then the Deputy Solicitor General, persuaded the Supreme Court to throw out the case because the plaintiffs would not suffer direct harm from the new regulations and lacked standing to bring the case. In Lujan v. Defenders of Wildlife, the court held that a “generally available grievance about government—claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large—does not state an Article III case or controversy.”

I understand they don’t hear cases brought by spotted owls, either. A pity.

The Administration’s lawyers didn’t bring up the issue of standing in their brief, which means they either were asleep at the switch or they’d rather not have the case dismissed in a way that would allow the Right to try again.

This also begs the question of why the Right can’t find better plaintiffs. I occasionally read posts or comments from someone who has a legitimate-sounding story of being worse off because of Obamacare, but somehow the examples the Right chooses to feature never stand up to scrutiny.

Appeals Court Reinstates Same-Sex Marriage Bans

Yesterday a federal appeals court in Cincinnati reversed lower-court decisions that voided same-sex marriage bans in Kentucky, Michigan, Ohio, and Tennessee.

I believe this is the first genuine break in the streak of court decisions that have struck down same-sex marriage bans. Just yesterday I ran into a list of 22 states in which either federal courts or state supreme courts had voided such bans. The site Freedom to Marry keeps an updated account of where marriage equality stands in the states. Same-sex marriage currently is legal in 32 states, and courts had cleared the way for marriage equality in several other states.

Lyle Denniston at SCOTUSblog has the most detailed account of yesterday’s decision, by the Sixth Circuit Court of Appeals, I’ve seen so far. The primary difference between yesterday’s decisions and the previous ones is that the Sixth Circuit upheld the states’ sovereignty on matters of marriage, and said federal courts had no bearing to countermand a state decision on marriage. The Sixth also said there is no right to marry. And this sets up an interesting contrast in legal thought.

As I understand it, some of the judges who have struck down the bans view marriage as a right of U.S. citizens that states cannot infringe. Others (see especially Judge Richard Poster’s very readable argument) basically say that the states’ reasons for banning same-sex marriage are irrational and blatantly discriminatory. Judge Posner wrote,

To return to where we started in this opinion, more than unsupported conjecture that same-sex marriage will harm heterosexual marriage or children or any other valid and important interest of a state is necessary to justify discrimination on the basis of sexual orientation.

As we have been at pains to explain, the grounds advanced by Indiana and Wisconsin for their discriminatory policies are not only conjectural; they are totally implausible.

The Sixth Circuit decision directly disagrees with Posner on some points. Posner said that “tradition” per se carries no weight, that delaying to change laws because there may be some unforeseen bad consequence to the law is not a valid excuse, and that there is no evidence children are harmed by being raised by same-sex parents. The Sixth apparently disagrees with all of those points, saying the states have a legitimate role in protecting children and that states have a right to “wait and see’ what happens elsewhere before enacting a change themselves. Also unlike Posner, the Sixth denied there was any evidence the law was based on animus to homosexuals.

Of course not. And jokes involving the President and watermelons are not racist. Sure.

Lyle Denniston writes that the Sixth also denies that homosexuals are a “discrete class deserving of special constitutional protection as historic targets of discrimination.”

The most obviously flimsy part of this decision is that it also denies that states have any obligation to recognize same-sex marriages of other states, which seems to me to fly right in the face of the Full Faith and Credit clause of Article IV Section 1.

Several articles today say that this decision almost certainly sets up a Supreme Court test. Justice Ruth Bader Ginsburg had already said awhile back that if the Sixth upheld the bans, bring it on, dudes. Well, not those exact words. How the Court might decide is uncertain, especially after the U.S. v. Windsor decision that struck down the Defense of Marriage Act (5-4, Usual Suspects with Kennedy swinging toward the liberals). I can see Justice Roberts having to decide which outcome would stir up the bigger hornets’ nest.

Update: Kenneth Jost, an adjunct professor of law at Georgetwon, rips the Sixth Circuit Court’s decision apart, and says the badly argued decision may prove to be a “blessing in disguise” for advocates of marriage equality.

The Court Ladies Are Pissed

Adam Liptak at the NY Times:

In a decision that drew an unusually fierce dissent from the three female justices, the Supreme Court sided Thursday with religiously affiliated nonprofit groups in a clash between religious freedom and women’s rights.

The decision temporarily exempts a Christian college from part of the regulations that provide contraception coverage under the Affordable Care Act.

The court’s order was brief, provisional and unsigned, but it drew a furious reaction from the three female members, Justices Sonia Sotomayor, Ruth Bader Ginsburg and Elena Kagan. The order, Justice Sotomayor wrote, was at odds with the 5-to-4 decision on Monday in Burwell v. Hobby Lobby Stores, which involved for-profit corporations.

“Those who are bound by our decisions usually believe they can take us at our word,” Justice Sotomayor wrote. “Not so today.”

The court’s action, she added, even “undermines confidence in this institution.”

Preach it, Sister Justice Sonia! See SCOTUSblog for more detailed explanation. Sister Justice Sonia wrote a 15-page dissent that probably is still smoking. See also Corporations race into Ginsburg’s ‘minefield’ to claim post-Hobby Lobby religious exemptions.

By Their Tweets Ye Shall Know Them. People who are celebrating the Hobby Lobby and subsequent decisions do seem to have one thing in common, which is huge disgust at female sexuality. No surprise.