A few thoughts on the abortion ruling
“A few thoughts on the abortion ruling,”
There’s no longer any room to pretend that the Supreme Court is a mere non-political referee interpreting the law in a vacuum. If it ever was that, it’s now just another locus of political power, like the House, Senate, and presidency, a utensil for imposing the will of whichever ideology or group manages to secure control of it. At present, that control rests with the forces of theocracy.
Biden has re-affirmed that he does not support increasing the number of justices to remedy the situation, even (presumably) if the Democrats were to hold the House and win an enlarged Senate majority making such action possible. I’m guessing a few million Democrats who were on the fence about whether to vote this year just decided not to bother. Why would they, if even a Democratic supermajority would remain committed to not doing anything to actually fix the problem?
The Electoral-Vote politics site suggests several actions Biden could take to protect abortion rights, even before the election. Most of these strike me as requiring much more imagination and chutzpah than this administration has so far displayed. Biden has handled the Ukraine crisis and other foreign-policy matters superbly, but in general seems timid and conventional on the domestic front.
I do have to wonder whether the people berating the Democrats for not “codifying Roe into federal law” at some point in the last few decades realize that court rulings trump legislation. The Supreme Court could easily strike down such a law as unconstitutional on whatever grounds it could discover or invent. This problem will persist as long as the theocratic majority on the Court does.
The Supreme Court’s power to overturn legislation which it judges to be unconstitutional — judicial review — does not actually exist in the Constitution. The Court has simply asserted that power since the early nineteenth century, and gotten away with it ever since, so that it is now an entrenched and integral part of the way our system of government works. To abrogate that power now, as some have suggested, would be a revolutionary upheaval. Yet there is clearly a problem here which needs to be addressed. With impeachment a de facto dead letter since it would now be impossible to get two-thirds of the Senate to agree to remove a justice, the Supreme Court is unaccountable. There are many constraints on a president who abuses his power, as we saw during the Trump years, but there are none when the Supreme Court abuses its power.
If you actually read the Constitution, it seems clear that the founders intended Congress to be pre-eminent. The present situation, in which the president is an exalted quasi-royal personage and Congress is the mere handmaiden of (or obstacle to) his agenda, is a crass perversion of the way the system was supposed to work. Least of all were we meant to have de facto sweeping powers to upend the status quo vested in a few unaccountable judges. While Roe v Wade itself overrode the states’ “right” to restrict abortion, it seems clear that the protection of such an extremely basic form of personal freedom would be consistent with the Constitution’s overall spirit of excluding government meddling from citizens’ personal lives, to say nothing of the separation of church and state — a legitimate exercise of the Court’s power to strike down unconstitutional laws. Nor can “originalism” justify the prohibition of abortion. During the period when this country became independent, abortion was commonplace and accepted. It’s not credible that the founders would have endorsed banning it just because it has become a taboo of certain branches of Christianity.
Realistically, however, we will be in the post-Roe environment for some time to come. Faced with such a huge setback to individual freedom, we can either go with the ever-present moan-groan-doom-gloom crowd and declare ourselves defeated, or we can fight back with whatever tools are available (I call this the “woe vs raid” choice). Here are some useful tips and links for women in red states; I’ve included other such information in my link round-ups as I run across it, and will continue to do so. Anyone else who has any kind of platform should do the same. Every little bit helps to spread the word about whatever options women have for exercising their freedom in defiance of unjust laws.
I have confidence that American women will continue to control their own destiny. I think this will take many forms. Obviously out of state travel will be a major factor, and I imagine that new clinics will start up near state borders to minimize drive time. I can also envision clinics on the Mexican border and perhaps in boats 12 miles off shore.
But the main trend going forward will be the increase of self administered abortion, using either the two pill regime or misoprostol only. The pills will become easier to obtain. Some women might decide to obtain them when they visit a blue state for another reason. Or friends and family members will obtain them and pass them on.
The American women I know are resourceful and tough and I don’t think six religious zealots are going to determine the trajectory of their future.
I expect you are right for tens of millions of women who can afford to avail themselves of those options and avoid being found out by the police state. But millions more can’t afford the travel, don’t have the access to the pills or will be caught, tried, convicted and imprisoned in the service of right wing sharia law. So statistically, you’re right, but the misery visited on millions of women in red states is still very real.
Even in New England, huge swathes of the population have never left their home state.
Believing that people in those blocks of red states will find it easy to swing by a blue state pharmacy to pick up some RU486 just in case is not sensible. I also think that the Supreme Court has made it clear that as soon as they have a shot at it, morning after pills like other contraception is more likely to become illegal in red states than to become more easily available.
Certainly abortion pills will become illegal in red states, if they aren’t already. But that will be difficult to enforce. Women will mostly order them from out of state, and interference with the mail is a federal felony, regardless of state laws (which wouldn’t apply anyway since regulating interstate commerce is a federal competence). Even in cases where women need a surgical abortion and thus need to leave a state, what are they going to do, stop and search every car crossing the state line and administer pregnancy tests to every women they find?
Such work-arounds won’t enable women to defy these unjust laws in every single case, but they will probably be effective in the large majority of cases.
Thanks for keeping it real.
at the risk om making it unreal (really.) I am not sure myself what the reality here is. To start with my favorite fantasy, I think a Constitutional amendment is the best response to the current S.C. Difficult at the best of times, almost unthinkable when the Eneemy controls so many congressmen and state legislatures. but a “Constitutional Convention” of the people might put enough pressure on those institutions to pass an Amendment by regular constitinal order, or to awake enough people to their own power, and the needs of the times (not 17th Century times) to change the state legisltures and the federal congress.
That said, let me try to reming people that we were fine with SC making the law when it was Brown v Board, or Roe v Wade. (in addition) we need to try to think that the people who belive abortion is murder have a “right” that is at least arguable to want the law to “defend the innocent” or some such. I am not sure where we draw the line. I am less sure about the rights of oil compnies to drill wherever they want, or the rights of “business” in general to destroy the planet in the name of more money, but we can’t even get the Democratic Party to do anythigng (“do” anything) about that. And as for voter suppression, well, I believe paper ballots cast and counted in front of witnesses is the solution to that, but I am not so sure even honest elections result in justice and mercy, much less sanity.
Just to [try to] be clear, I absolutely believe women have a right to make their own decisions about their own bodies free from “government” (“our”, even “my”) interference. I believe elections should be transparent as possible..favor a voting day holiday, and rely on “friends and neighbors” to get people to the polls who would otherwise find it difficult. I also believe the people or their government have an absolute duty to protect “the environment” from destruction by money-interests. I am against abusing people for any reason, but specifically on account of color or national origin, etc. not so worried about defending them from statues.
anyway, i know what i am getting at here, and it shocks me that i get opposition from people who think i am hurting their feelings for the fun of it.
You did not hurt my feelings one bit, mostly because of complete agreement with you on my part. Obviously, either amendments or convention to upgrade US Constitution is a bridge too far until such time as the flood waters rise enough to scare the poop out of the vast majority. Then and only then will we get any real action. That is I imagine why the Great Depression was so great. It made people both scared and angry which was enough to make politicians scared.
Abortion rights is not the biggest problem we have right now, but anything about sex gets attention quicker than polar bears and wildfires on the left coast. The Right decided to go ahead with this now only in part because they had the majority, but the bigger part of it is that Roe reversal is more exciting than January 6th and particularly sets the stage for the midterm elections with a better look for Republicans among their tribe.
I don’t worry about hurting your feelings too much. but there are people who are morbidly sensitive about having their opinions disagreed with, and i have never learned the art of protocol mode upward if you are a Heinlein reader.
Yes, you are correct in that the only things that really offend me are a gun in the face or a board swung at my head. I only read early Heinlein such as Stranger in a Strange Land and The Unpleasant Profession of Jonathan Hoag, but not Starship Troopers or anything from The Moon is a Harsh Mistress on. So, I did not grok your reference, but we are water brothers, you and I.
Speaking of water, here in central VA we appear to have found that rain that they are missing out west.
reference was to farnhams freehold, not his best. but not his worst. i preferred the stuff for kids, but didn’t read most of it until i had kids of my own.
we had plenty of rain in nw oregon but not enough snow, which is what will hurt us. real drought is south east of us. why i learned to say out west back east.
the newspaper i read at the time of his obituary called him a right winger or whatever word they used back then for more right than “conservative.” surprised me. i got my earliest liberal values from him. even inluding his gruff voice about some liberal talky-talkies.
well, maybe i got my liberal values earlier from my mom who never talked politics or religion, voted Republican in Chicago but hated racism and stupidity…and irresponsibility. thing is, “liberal values” are american values. took a lot of hard work to make them radical socialist leftist democrat values, and make stupidity and racism “patriotic.” some of that hard work being accomplished by the liberals themselves.
The Supreme Court has always been a political body. I think the difference today from courts of the recent past is that the political lines are so harsh. Brown v. Board and Roe v. Wade were both decided by basically Republican Justices but Republicans of a different order than the current crop. When the parties were less severely divided, Justices of both parties were able to form coalitions. The most liberal court of modern times was the Warren court and Earl Warren was throughly Republican (whose nomination was lamented by Eisenhower as his biggest mistake.).
There are ways to restrain and/or reconfigure the court but nothing is likely to happen without a significant Democratic majority in Congress and elimination of the filibuster. Biden says he opposes expanding the court but supports a Federal statute requiring availability of abortion and waiver of the filibuster to accomplish it. Neither attitude is of any practical consequence because of the makeup of Congress. Should Congress significantly shift, one can easily imagine Biden’s attitude “evolving”.
In the meantime it is fervently to be hoped that the decisions of this court will motivate the people holding majority opinions to vote to accomplish the things they favor and defeat those they don’t. As Obama succinctly put it, “Don’t boo, vote!” Would that they had.
What is the point of your Eisenhower remark? Ike sent troops to enforce the Warren Court’s Brown v Board decision. The quote you refer to is not well attested, nor can we be sure what it meant in context if ever actually uttered.
I can’t see what the remark has to do with your thesis.
Earl Warren was a conservative California governor & previously CA attorney general when Eisenhower appointed him Chief Justice, and Ike apparently expected him to remain conservative on the Supreme Court. Warren did not.
The Warren Court presided over a major shift in American constitutional jurisprudence, which has been recognized by many as a “Constitutional Revolution” in the liberal direction, with Warren writing the majority opinions in landmark cases such as Brown v. Board of Education (1954), Reynolds v. Sims (1964), Miranda v. Arizona (1966) and Loving v. Virginia (1967). … Warren also served as Governor of California from 1943 to 1953, and is the last chief justice to have served in an elected office before nomination to the Supreme Court. Warren is generally considered to be one of the most influential Supreme Court justices and political leaders in the history of the United States. … (Wikipedia)
Warren, also, as governor of California, supported the detention of Japanese American citizens. People are complicated.
The point was that Eisenhower could not control the behavior of “his” justices. He did send the troops because he couldn’t let the federal government look powerless. He didn’t like the situation presented by Brown. I thought the remark was well attested and since I’m not looking for a new degree I’m not going to research to satisfy your quibble.
The further point is that the Republicans of the day worked with the Democrats instead of constantly resisting them. Every issue wasn’t a power struggle.
it wasn’t a quibble. it was a question. i’m glad to learn that R’s and D’s worked so well together. It was not intuitively clear That Eisenhower (R) calling Warren (R) his biggest mistake was evidence of the parties working together. I wonder if Ike was worried that forcing integration too fast would lead to a backlash that would bring down democracy seventy years later?
We have a power struggle today because one faction has succeeded in seizing the levers that make permanent power possible. Interesting [to me anyway] is that that faction was said by Eisenhower to be “stupid and few.” They are still few.
I would never suggest anyone do any research on my account.
It was a quibble in the sense that it is clear that Eisenhower was unhappy with the decision but that the Justices, Democrat and Republican, worked together regardless of his attitude unlike what goes on today.
I did some research anyway; enough to confirm Eisenhower’s unhappiness with the decision and, indeed, his Kansas racism. As you can tell, I’m not a fan. The basic point remains the ability of the Justices of those days to work collaboratively from time to time, as, indeed, did the Congressional factions.
A case in point would be Lyndon Johnson’s Civil Rights Act working with Republicans against the interest of the southern Democrats.
Bottom line: those days seem to be gone forever.
it’s okay by me. sometimes i have to ask people what they meant.
I think Johnson’s Republicans was the last time the Republicans could be thought of as a respectable party…even if mostly wrong on “business” issues. It’s also worth remembering that up to Johnson’s time, most southerners were Democrats..probably mostly from inertia since Jackson’s time, but also because they hated Lincoln. After they became Republicans the Republicans became them.
iow, i have no reason, or basis, to disagree with your point.
I have encountered Ike’s “biggest mistake” remark about Warren more than once, but also agree with JackD that Ike made bigger mistakes than that. He gets a break from the Left because of his stance on the military industrial complex and also because the Left has historically been soft on FIRE and Wall Street as a part of their globalist POV. When Ike signed the Republicans 1954 tax reform bill, then he effectively created financialization, corporate consolidation, and legislative capture by large corporations which inevitably lead to an end to private labor unions political power, Reagonomics, trade deficits, and financial deregulation.
you and I suppose Jack know more about these thing than I do. It makes me think of the picture of JFK that Gore Vidal kept on his wall to remind him to never again fall in love with a politician. If I have any reason to love Ike it’s because he called the enemies of Social Security “stupid.” Which is beter than what Carter, Clinton, Obama, and Biden have done.
I have my own reasons to not like Ike, but the same reasons would apply to FDR and that’s a can of worms I don’t want to open at this stage in history.
The exchange with Jack helped me at least. It did at least cause me to think that whatever Ike may have said, it’s not at all clear what he meant. I did think of something he might have meant, and alluded to it. But again, no point in pursuing that line of thought here. That made me think of the wise old buffalo who realizes what the stampede is headed for and fights to get in front of the herd to urge them to stop.
I have never been sure if the ‘Ike’s biggest mistake’ trope is a liberal attempt to cast asparagus on Ike, or a hard right attempt to insulate Ike from the asparagus cast at Warren. I do remember the “impeach Earl Warren” billboards. I don’t remember any “impeach Eisenhower” billboards.
As a military professional most of his adult life, Eisenhower stayed out of politics. After WW2 he became president of Columbia University and was courted to run for the US presidency by the GOP AND the Dems. For whatever reason he chose the former. He was not particularly tied to GOP interests, unlike his colleague Douglas MacArthur.
And you are correct when you say the Federal Government in the form of Congress can take action and create laws on issues not specifically mentioned in the Constitution. This issue was resolved when Chief Justice John Marshall was a part of SCOTUS.
Thomas seems to think the power resides with the states to govern and create law. Ultimately, it is with the Federal Government and those abilities do not need to be identified specifically as Scalia and the rest of them seem to thing. This issue was covered one time before early in the 19th century.
In an unprecedented move, Marshall did reply under an assumed name, writing as “A Friend to the Constitution.” Some of the words he wrote are in the next C&P. Marshall does get the point across writing as “A Friend of The Constitution.” Link below.
“A Friend to the Union, by Ken I. Kersch” – Claremont Review of Books I do not know from where Thomas gets his boldness. He lacks the power other than 5 others who agree with the taking of it.
Sorry for the C&P. It is the best way to get the history across.
thanks for the extended Marshall quote. I guess he does not count as a “framer” or “steeped in the traditions.” As for Thomas, he has the power of going along with the states’ rights fanatics, who seem to have forgotten the 14th amendment which established pretty clearly that Federal Law trumps state laws in matters of the people’s rights. States’ rights almost makes sense and sounds fair until you realize it makes the Union meaningless and removes the protection the Federal government offers its citizens from local tyrannies. Even the old kings understood that principle.
It boggles my mind that after WW2 (yes, that war) people would still think that American citizens deserve no rights under federal law, but only so much as local politicians and money interests will allow them, from time to time, as it suits their interests
Thomas has “no” leg to stand on in state’s rights other than his blathering. Go ahead and rescind Marbury. I dare him and the other to do so. They will not because they know they can not.
Like Jack said, the best we can do is turn this into a voting issue and lay it at Republicans feet. These are their Justices and Republicans should bear the weight of the Justices decisions.
Rescind Marbury, and they have no power at all. But wait, wait, doesn’t it have to be specifically set out in the constitution?
No, that is a point Marbury is making. Thomas and the other five are making stuff up. It has to be or should be legislated by Congress.
They have no idea what the Founders had in their minds. One thing they did have was to set forth a foundation which could be interpreted going forward. It was meant to be used to fit the times going forward.
[but i think jack was making a joke. i was going to answer him “not according to the constitution.”]
Right, Coberly; I should have added /S/.
Sigh! There are people who will that little joke Jack. I would love to say such to Thomas
thomas has no leg, but he can lean on the side that’s winning.
it may be a little late to turn it into a voting issue if “they” have control of who votes and how the votes are counted.
i think turning it into a voting issue for real would require something of the scale and seriousness of a constitutional convention. you think cats are hard to herd? ever hear of the great frog roundup?
It might be worth pointing out here that the EPA decision suffers from the same flaw (gaping wound).
It would be practically impossible for Congress to write detailed regulations for all the contingencies an agency is likely to run into in the course of fulfilling Congress’purpose…even if it were not for political gridlock. No business, no army, expects micromanagement to succeed better than delegation of authority. As for “unelected bureaucrats,” what does the Court think the President is? Presidents have a great deal to say about what regulations are enforced. Mostly they don’t, either out of respect for the law, or because they just don’t care that much. But you can be sure the President or the Congress will step in if an agency overreaches its delegated authority.
The Court’s view of this is the view of an ideologue or dictator so constrained in his thinking that he approaches insanity. Or they are just so used to lying and getting away with it they no longer bother with making their judicial reasoning “colorable.”