A lot of the tradecraft of covert operations was used as they stealthily crept up to and captured the Supreme Court and now instructed in what it is that they wish to get done. And so I think once people have those two thoughts in mind that this is a captured court, not a conservative court, and that the manner in which it is captured is akin to an intelligence type covert operation, then you can begin to think about what the solution is. Once you’ve identified the illness, you could begin to think about the cure.
If you want to understand the magnitude of the problem of the captured SCOTUS, you need look no farther than the next case on the docket for the SCOTUS:
As Hila Keren points out repeatedly in that episode, the principal that should be at the heart of this case is that the marketplace must remain open, not subjected to every single little objection that can be thrown up by various believing parties who come to the marketplace and want their beliefs to be honored without question while participating in the market.
The SCOTUS shouldn’t even be hearing this case because there is no real case to be heard here. There is no one who wants a website made by the plaintiff because the plaintiff doesn’t even offer that service in the first place. It is a case crafted to be heard by this SCOTUS; a SCOTUS that has been put in place by the very same people who crafted this case. This entire scheme is improper and should be derailed before these people make a mockery of our entire system of justice.
…and then the article behind the headline went on to equate Roman infanticide with modern medical abortion practices. Went on to equate the Jewish tradition of life beginning with the first breath with the Christianist demand that we treat every fertilized egg as equivalent to a fully grown human being. Worse than equating apples and oranges, this is more like equating fruit and fish.
These delusional people simply cannot grasp the fact that there is no good reason to believe that a clump of cells inside another person is itself a person that is more important than the person it is inside of.
Rather than being an extreme belief any other opinion aside from deciding for herself on a woman’s right choose represents the denial to women of the same rights that men possess. It really is that simple. If women are people equal to men, abortion is their choice to make.
If there are other, greater, concerns that should take precedence over the woman’s rights, it falls to the believer to prove that these concerns actually exist. Every attempt to prove that these concerns are real have historically failed.
Which is why Alito was forced to fall back on his false history of abortion always being illegal as a basis for overturning Roe. Make no mistake here, Alito lied throughout that opinion. Nearly every conclusion he reaches is false because it is based on that lie.
Women, through the tireless work of midwives down through the centuries, have managed the knotty problem of unwanted pregnancy all on their own. That is the real tradition here, not the illegality of abortion (or the delusion of Roman infanticide conducted by the men of their time being the same as abortion, the laughable comparison made in the Hill opinion piece. -ed.)
The extreme position is the one that Christianists have forced on American women with the reversal of Roe. Women will continue to do what they have always done; decide for themselves whether they will have a child or not. The extremity will be measured in how many women’s lives will be lost because of the delusional beliefs about life in the uterus.
The author of that Hill opinion piece is accusing everyone who doesn’t think life begins at conception of murder. That is the unstated subtext of the article. This is demonization. The author is setting up the readers that agree with him to see their opponents as less than human. Is trying to make it easier to kill US when the violent insurrection that they are fomenting comes into being. This isn’t about the sacredness of human life, this is about the rightness of their beliefs and their willingness to kill for them.
No, if we truly value LIFE, if we truly believe it to be SACRED, then before it even begins we as a people and as a nation must bend every effort to ensure not only its survival, but that it thrives to reach its full potential.
I observed that “the dog didn’t want to catch the car” in A Vaginal Dred Scott, noting that overturning Roe was going to cost the Republican party dearly in coming elections. This has proven to be truer than the equally observable fact that Donald Trump is a loser as a businessman, a politician and a television star. Trump actually picked a few winners in key races to endorse in the 2022 midterms, even as it became clear in the election returns that election deniers were almost universally being rejected.
Trump and his big lie are out of favor; but the more vividly illustrated truth of the election was that women want the right to determine their own futures independent of government supervision. Abortion will be made available again across the expanse of the United States. That was the result that was clearly illustrated in states where abortion was on the ballot. This battle will cost lives; but it will be won by women, eventually.
The Roe in our culture is not the Roe of 1973 Supreme Court decision or the 1992 Supreme Court decision. So if the Supreme Court is telling you, “Hey, guys, this is over, you can go home now, we’re not going to talk about abortion in the Constitution anymore.” History tells us that that’s not going to work.
It will surprise you not at all to hear this comes up in almost every chapter, but some woman says “it just needed to be done” and I didn’t sit around workshopping it for three months, I just did it.
I went ahead and sprang for the book. I’ll get back to you on listening to the book through my podcast app. Not sure how I’m going to like that. As of December when I checked this entry and then archived it, I still haven’t gotten past chapter two of the book. It’s not that the book doesn’t hold my interest, it is that the chapters are listed as articles in my podcast app and I simply have too many other podcasts that I’m not listening to that I go to first instead of listening to the book. Won’t be doing this (buying a book to stream like a podcast) again.
Yeah, I know we all have important professional lives and personal lives, and it’s a sacrifice to get involved in these civic things that I’m talking about. But there’s joy to be found in that if you dedicate an hour or two a week to do something that is going to make this democracy better, stronger, something of a civic nature. It’s not going to necessarily be easy, but you’re going to feel better about yourself at the conclusion of that week. And in fact, our democracy is going to be stronger. There is joy to be found in this struggle, and that is what people should not forget.
This is what the court has been building over the last several terms is a pretty novel and historically unprecedented approach to the rights secured in the Constitution; which is that there are certain rights which are first class rights or top tier rights; and other rights which, if they exist at all, are really lower level, less important rights.
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We’ve seen a kind of layering, particularly the end of this term, of the vulnerability of women and other people who could be pregnant, seemingly invisible to the Constitution, and the vulnerability of white men being hyper visible to the Constitution and gun rights and religious liberties are going to come to the rescue. This kind of tiering of rights is something new, and it’s certainly not something that the framers, even if that was where we wanted to anchor the meaning of these rights, had in mind, I think, in creating an ecology of rights among all of the rights that are secured in the Constitution, in ways that doesn’t elevate any other over any others.
Katherine Franke James L. Dohr Professor of Law at Columbia University
Why do people listen to us when we decide that the 14th Amendment requires one thing or another thing? Because it’s not necessarily the text. You know the text of the 14th Amendment or any other amendment in the Constitution is so vague. Like “Congress shall make no law” in the First Amendment. Yet Congress makes all sorts of laws that restrict speech or religion. So it’s not just the text, it’s what makes the court’s opinion better than others. And the court’s answer in Casey is it uses the term legitimacy and it says the court’s power lies in its legitimacy, which it defines as “…a product of substance and perception that shows itself in the people’s acceptance of the judiciary as fit to determine what the nation’s law means and to declare what it demands.” And what the court meant by that was; the reason why the court has power is because people think what the court does is engage in principled decision making. And to the extent that the public did not think that the court engages in principal decision making, they wouldn’t take it seriously.
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All of the rules that you are describing, all the precedents that you are quoting is just cover for what we all know you’re going to do because you’re Sam Alito, and so to the extent that the court thinks we’re just going to automatically assume there’s a difference between an opinion like Dobbs and Mitch McConnell’s press release. I think that’s an unwarranted assumption, but it’s a cultural one and it’s a cultural force of the court’s power. And so what I am drawing optimism from at this moment is the extent to which members of Congress and the public are looking at these opinions and saying, you know, it’s not like the Constitution demands these outcomes. It’s not like these are the only outcomes you can think of.
In fact, the court is overruling itself, reaching alternative conclusions. And so we don’t have to live in a system in which children are getting shot every day. And we can’t do anything about climate change. And people are forced to birth when they don’t want to. Like all of these things, we don’t have to live in this system just because the court says so. And so the court is not worried about that, but I think it should be.
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I think one notable thing about the court is for all of its contempt of Congress, almost every decision that it issued this term could be reversed by a simple statute passed by a majority of both Houses. So, Congress could in effect reverse Dobbs by enacting the Women’s Health Protection Act or a stronger version of it. The Supreme Court allowed Oklahoma and every state to regulate tribes by exercising enforcing its criminal law in Indian country. Congress could just pass a law saying, no, that was wrong. Please try again. The court harmed the EPA’s ability to regulate climate change. Congress could enact legislation to say that was a mistaken interpretation of our statute. The court reinforced qualified immunity this term. Congress could abolish qualified immunity and say “if you’re a police officer and you shoot somebody, you can go to court so that they can recover some damages for their loss of life.” Basically, everything the court did this term can in theory be limited by a statute. Even the decisions that reinforce gun rights or religious liberty could be modified by Congress, especially a Congress motivated enough.
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But I think that that risk, the risk that Congress is going to pass bad laws, is a risk that in a democracy we have to take. We have to take the risk that in a democratic legislature, it’s going to enact laws we do not like. Instead, we have this system where we’re so fearful of what Congress might do that we have basically every possible veto we can think of; far more than every other country on the planet in terms of how difficult it is for the national legislature to pass laws. No other country basically requires a supermajority in one house, a second house, in a bicameral legislature, a Presidential veto followed by this Judicial veto afterward, which is just absurd.
It makes it really, really hard, and we do not expect anything to come out of our national legislature, and that’s what I think we need to get rid of. We need to start electing folks who are actually capable of legislating. We need to require that our president and the presidential administration not simply say, well, I guess if the Supreme Court said that this is the rule. So long as the Supreme Court is a Supreme Court, we have to listen to them. But rather like Abraham Lincoln 150 years ago saying, yeah, the court’s the court, but I represent the American people and I’m not going to tolerate this interpretation of our fundamental law. And so there’s obviously a political problem in that.
I certainly do not expect this Congress to legislate. There’s a cultural problem in a sense that most people think the Supreme Court should have the final word on what the Constitution means. But those are the two problems to focus on the political problem of building power through local organizing, through movement building, to demand a legislature that’s capable of legislating, and then a cultural problem of saying, look, Congress or the national legislature, for good or for ill, should have the final word on these questions in a democracy, because leaving it to the court is a terrible idea for a country that calls itself democratic.
Nikolas Bowie, Louis Brandeis professor of law at Harvard Law School
we should be ringing the alarm about this case Moore v Harper I think every day from now until it’s decided because the independent state legislature theory is one of the most radical and autocratic conceptions of democracy that this court has ever been presented with. And it really gives the court an opportunity to roll back some rights that many of us took for granted, including rights rooted in state constitutions.
…as bad as this year has been for individual rights (if you aren’t a white guy) next year could be even worse, especially if we allow the Republicans to retake the House of Representatives and start the steamroll process that will bring back a President Trump in 2024. you have all been warned.
In Bush v. Gore in 2000 John Roberts, Amy Coney Barrett and Brett Kavanaugh argued before the court, using the independent state legislature doctrine, that George Bush should be allowed to become President without the Florida Supreme Court dictated recount, when the margin of his victory was less than 500 votes. The Florida legislature had decided they wanted Bush as President, and that is what the State of Florida should do because the legislature has the last say on that subject.
They are now going to decide a case that they have a demonstrable conflict of interest in, Moore v. Harper. Their decision in this case is already known and because of their conflicts on the subject, should not be allowed to occur. There are things we can do to stop this, but we have to push our Representatives in Washington to do the work that now needs doing.
Congress can strip the court of jurisdiction. It can strip the court of its building. It can strip the court of its summer recess. It can strip the court of its clerks. It can say, if you want to strike down our democratic laws, do so yourselves rather than relying on these 24 year old’s. It can strip the court of its discretionary jurisdiction. It can strip the court of the power to enjoin laws. It can say ‘no more federal courts can enjoin national laws and a nationwide system without a supermajority of the Supreme Court.’ It can change the court’s jurisdiction. It can put the court’s jurisdiction in the D.C. Circuit.
Congress can do all sorts of stuff and in the past, Congress has done so. When Congress was worried about the court invalidating reconstruction, it simply took the case out of the court’s hand and said, ‘Court, you no longer have jurisdiction over these cases.’
The problem we’re facing now is a Congress unwilling to fight back, not a Congress incapable of fighting back. And I think the conflict is something that Congress needs to embrace.
The only way to protect voting rights is by this thing called the Fifteenth Amendment. That Fifteenth Amendment which has been stuck in a locker for most of its life, except for the voting rights act, which John Roberts eviscerated in twenty-thirteen.
That’s it.
If you don’t have people willing to protect the Fifteenth Amendment then you don’t have voting rights. It’s as simple as that.
…I think I got the most volume and some of the most varied feedback I’ve ever gotten for any post I’d ever written before. It ran the gamut from “this is easy to do and Facebook can’t seem to do it, so they must not care” or “Facebook is in bed with X group, their behavior demonstrates this.” to “Any attempt to moderate speech violates my freedom of speech.” When I queued up this episode, one of the first things that the guest says on mic is that she figured that the Facebook Supreme Court was just a way to get Facebook out of the crosshairs for making the decisions that need to be made, content-wise:
…and by the end of the episode I was where Jad was “we have to ban Facebook, don’t we?” But then I thought some more about the varied responses to the tests that were put forward to illustrate just how hard it is to make judgements about what is or isn’t acceptable on social media, and I started to realize that what Facebook will ultimately achieve, if it succeeds, is some form of internet protocol for allowing the greatest amount of speech possible without misleading the populace or allowing for the targeting of segments of the population. I wish them luck with their supreme court experiment. Hope it all works out.
Tangentially, there were two more episodes later in my podcast feed that dealt with the same conundrum. Speech, the freedom and limitations of:
…which reminds me. While #48 about pardons was largely a rehash of the previous pardon episodes of Trumpconlaw, #49 speaks explicitly to the title of this article because:
