68 Comments

“maybe it’s your fault for creating such a slippery baby”. I don’t get it. I’m sure it refers to something but I don’t know what cultural reference I’m missing. At least I got the Talking Heads reference.

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I could be wrong, but I think we're dropping into this epic in medias res, as English teachers like to say, after the narrator has dropped his interlocutor's baby.

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That was certainly my interpretation. The narrator has dropped a baby and rather than apologizing is looking to blame someone else. Dark? Yes.

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Thanks for THE best piece I've read about the abortion issue and the Supremes-perfection!

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I always enjoy the wide range of Eric's vocabulary. It's going to be a challenge to work "panjandrum" into a sentence but I'm sure going to give it a good try.

Also, I would like to extend a hearty middle finger to the "sanctity" of the Supreme Court. Great perspective on the abortion battle. Pay attention people! We've got to vote in every single election.

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I recall him once using the term "solons of Springfield" and believe me, I stole that and used it.

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Understand that the denial that rights exist includes ALL unenumerated rights that indeed includes the right of self defense, voting, interracial marriage, etc, every single one as shown by Alito's statement in the leaked opinion:

"The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision"

Replace "abortion" with any other supposed right and search the constitution for it and if it is not explicitly stated, states can deny it and the conservatives on the SCOTUS can deny it with the same argument. Conservatives deny inherent rights and therefore deny the Ninth Amendment that ironically was written by James Madison to protect all unenumerated rights!

Understand that conservatism simply denies inherent rights, such as the right of a woman to control her own being that includes abortion without any state interference until the fetus' brain develops the capacity for mind.

Women have NO rights in the mind of Republicans and conservatives and must be controlled to force them to live in accordance with god's will and that will be their drive for all other rights that liberalism brought us because we believe in inherent rights. Vote Republicans out of office to protect our rights.

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Republicans and conservatives are the enemy:

https://nymag.com/intelligencer/2022/05/can-republicans-stop-out-of-state-abortion-patients.html

They do not accept the concept of rights, only privilege at the discretion of the powerful.

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Do you have a dirigible in your backyard that you’re trying to mobilise with all your hot air? Go back to your back issues of The Nation and damning your white privilege and chill out.

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Eric, You may be right about Republican politicians preferring Roe as a simple target. But the pro-life people have always looked way beyond that. Overturning Roe is only instrumental to the real work, which they are more than eager for. When it comes to firing up anti-abortion grass roots energy, this is just the starter’s gun.

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I agree. The hard-core pro-life people started talking about a 'life begins at conception' standard well over a decade ago. As I have said before, this is the fundamental philosophical and legal issue which needs to be addressed and resolved by the Congress. The pro-choice legislators have to decide what stage of development a person exists and write it into law.

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Right on with your Roe analysis -- well said! A couple of quibbles, though:

I think it likely that a law codifying Roe nationwide would be held unconstitutional by this Court as not within Congress's interstate commerce power. Few are talking about this. Here's one article:

https://www.washingtonpost.com/politics/2022/05/04/roe-overturned-congress-abortion-law/

I don't see it working. Therefore, I don't see it worth ending the filibuster. Your view is that they will abolish the filibuster in a second when they have the chance regardless, so we might as well do it now. My view is that that they didn't do that in the very recent past when they had the chance and Trump was telling McConnell to do it, and so I wouldn't be so sure of that, and that the filibuster will be an important defense for us when they take power, as they surely will eventually.

I guess I have no serious opposition to Democrats' advocating for a nationwide codification of Roe anyway.

On the broader point, though, I bristle at assigning zero political value to consistency and norm-following. It's a dog fight, they've made it a dog fight, so let's fight like dogs -- no other choice. I get that, and I certainly endorse that approach in cases like gerrymandering and campaign finance, where one side's unilateral disarmament would be merely stupid. (It's not inconsistent to say, I don't like the rules, I want to change the rules, but, until we do, we have to play by the rules. Ask them why they won't agree to change them, because we will.)

But stretching that logic to positions on issues and rhetoric surrounding them -- to embrace hypocrisy on the theory that nobody will punish you for it, to become, in the most extreme case, Trumpist trolls except of the left -- strikes me as a mistake that will yet further alienate persuadable voters. So: instead of pushing for a nationwide codification of Roe that is likely to be overturned if successful and seen by many as overreach, I think it would be great now to require Republicans to go on record on the narrower issue of protecting interstate travel to receive abortions where it's legal. Ask them, in other words, to commit to their supposed federalist idea and hammer them when they don't -- create the specter of nationalizing the most conservative view, show up their extremism. That works better when you're not so extreme yourself, it seems to me.

Second quibble, I don't really get this: "It’s become just another grubby, agenda-driven political body, only one with suffocating power populated by members who never have to answer to the electorate." "Grubby" suggests corrupt, disreputable, etc. Why? Because there's a conservative majority? Conservatives have been saying something similar these past 60 years when decisions have not gone their way. Now that they're not going ours, all of sudden the court "become[s]" ideological in a dirty way, a way indistinguishable from politics? I don't buy it. As you acknowledge, Roe's reasoning was not exactly rock-solid. They think that was the decision indistinguishable from politics but shielded from democratic accountability and that was the real outrage. I don't think either decision is an outrage. They reflect two differing and yet both plausible, respectable views about what the Constitution requires and the extent to which it protects individual liberties not listed.

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Speaking only for myself, I think that SCOTUS has become hopelessly political, and this Roberts court is irredeemably tainted by politics, mainly because of the way that justices' have been selected and approved by the Senate.

Mainly the last three justices.

Those three taint Roberts *and* his court, and have made this court disgracefully political.

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Yeah, but that's not really about the Court itself; it's about the selection process. I don't understand how that makes the institution illegitimate. The Court consists entirely of plausible, non-crazy justices. Thomas is the most radical, but he's not one of the last three.

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Oh, it is about the court, for sure. Yes.

Republicans are the reason that the court is political, and republicans are the ones who deliberately delegitamized it.

And illegitimate it is. Untrusted by the American people. And court cases - this is a good example - decided not based on the law, or the Constitution, but on the personal ideologies of the justices.

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"Decided not based on the law, or the Constitution, but on the personal ideologies of the justices." But those are just words, and just exactly the same words they use when the shoe's on the other foot. Indeed, they've been using those same words for decades. They think the last 50-60 years (or even more in some cases) of constitutional law have largely involved replacing neutral jurisprudence with liberal political preferences. And their arguments in that regard aren't crazy, as much as you might like to pretend they are. It's just not so clear cut as you would have it. Constitutional rights are vague, especially implicit ones, and abortion is a hard case -- good arguments on both sides. There's a lot of room for interpretation.

They are constrained, by having to justify their reasoning using legal materials and methods, the professional imperative to apply those materials and methods consistently, by precedent (though only to a point, and that goes for both sides), by a fear of perceptions of illegitimacy (which is what worries Roberts), by only deciding cases that come up and lacking power to make new law, by the political branches' power to nominate, appoint, and impeach, and by, ultimately, destabilizing nuclear options like court-packing or "reform" and the like.

My view is that this system has worked pretty well. Accused criminals have genuine due process rights under it, and all of us have strong rights as against governmental authorities under it. We have a very strong right, uniquely strong among modern democracies, to engage in very unpopular expression under it. Gay people can get married under it. And, yes, their professional ethos will end up protecting our democracy when it comes down to it, as they did in 2020 (even Trump-appointed judges laughed his bogus claims out of court) and, I think, would have prevented an actual coup if, say, those handful of people (like Pence or the Georgia secretary of state) had acceded to Trump's outrageous requests to find votes and so on.

Many of these rights were swimming against the tide of popular opinion. It's been a powerful and beneficial force in our history. I'm not ready to chuck it all just as soon as the ideological balance shifts, as, after all, is likely to happen over the course of any institution's history. The thing to do is to make sure we have Democratic presidents and a Democratic Senate so that we can appoint the next one and the next one after that.

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Jake, thank you for your thoughtful reply. It was well-stated but as a wiser man than me said earlier, "a couple of quibbles, though."

"They are constrained, by having to justify their reasoning using legal materials and methods..."

My view is that they started with a decision based on their ideologies, then searched for the "legal materials and methods" to justify their ideologies. But let's be real: these federalist types have had their justifications lined up for decades and they were just waiting until they had five justices to implement them. At the first chance they got, BAM. Done.

And certainly accused criminals get solid protection from due process. But lots of American's don't enjoy "strong rights as against governmental authorities" and women in America are about to lose one of those rights: the right to make medical decisions based on their own situations, and in consultation with their doctors and loved ones, without interference from government officials.

I do expect that other Americans' rights will be whittled away based on this decision.

"The thing to do is to make sure we have Democratic presidents and a Democratic Senate so that we can appoint the next one and the next one after that."

That is a fact and no quibble there at all, at all.

Have a good weekend Jake.

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"[T]hese federalist types have had their justifications lined up for decades and they were just waiting until they had five justices to implement them." That's absolutely right. I'm not sure that makes it illegitimate in a way that distinguishes it in some sort of neutral, objective way from any controversial decision. One could after all accuse liberals of arriving at their answer first and their reasons second too.

In indeterminate cases, it's hard to disentangle motivated reasoning from objective reasoning. A good clue is where a judge reaches a result through their method that they don't personally like. Scalia used to point to his decision holding laws against flag burning unconstitutional as one such.

They tend to think that their approach -- textualist, originalist -- constrains judicial discretion more than the liberal approach and that it's superior for that reason. I'm not saying they're right. I'm just saying that the instinct we have to dismiss their decisions as obviously illegitimate while ours are obviously perfectly correct is unfair and a gross oversimplification. It assumes a level of bad faith among conservative jurists that doesn't match my experience. I think these habits of mind -- seeing the other side, even its most responsible manifestations, as not just wrong but evil or corrupt or some other bad thing that goes beyond the substance of the dispute -- are bad ones to cultivate.

Cheers.

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Were you complaining when the liberal ideologues ruled the roost?

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When SCOTUS was expanding rights for all American citizens?

Nah, I didn't complain back then.

Were you complaining back then? 🤣

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First, you answered my question with a question. Bad John N. Second, yes, I was objecting to the Court's expansion of 'rights' beyond the Constitution's language. You point is what?

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An interesting opinion, as usual, by Eric. But I think his final paragraphs come closest to addressing the immediate issue. If Democrats want to continue to claim that they are the party of pro-choice then the current House should pass a bill that defines when a 'person' legally begins existence and prohibits interference prior to that time. The Senate should then introduce the bill and force a vote. Then they can legitimately run on a specific issue that is unambiguous to voters and candidates can be asked specifically their position.

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Schumer is now saying the Senate will vote on legislation next week to codify a woman's right to an abortion into Federal law. It'll get everyone on the record, but will accomplish little else.

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Seems like the most relevant information for the voters that believe it is the most important issue. It will at least be something that candidates have to specifically address and might sway some contests.

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I read the bill that passed the House last year and that Schumer will bring to the Senate. The bill is significantly broader than Roe and more permissive than the Illinois law and I think is also more permissive than many pro-life supporters would want. It puts all of the relevant issues on the table but seems better designed for political raging on both sides than for creating a centrist compromise. I hope it at least moves in the right direction.

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I believe it's called the Woman's Health Protection Act.

Personally. I don't think a federal law protecting abortion rights would do any good. Red states opposing the law would push to overturn it. The same five conservative justices trying to eliminate Roe would not support the attempt to limit individual states' rights, in this case the federal government would be exceeding its authority. But, this could also prevent a federal ban on abortion for the same reasons.

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I can't imagine anything that doesn't result in a law suit these days. But I don't think that there is any basis to challenge an abortion statue. Again, the narrower the bill is the better. Winning a claim that the Congress does not have the right to define the meaning of 'person' or regulate the medical industry would unravel the entire Constitution and administrative government. Similarly, states do not have the right to opt-out or supersede federal law. Again, approving this right would unravel all federal law. I may be wrong, then an amendment would be required. Which would be much more difficult to get ratified. If you are correct, then there will at least be half of the states that allow abortion. And I don't see how any state can pass laws that infringe on the laws in other states.

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The Supreme Court is supposed to be apolitical. Their decisions, supporting arguments and dissents are always published. Opening up their deliberations and drafts to concurrent public review does nothing to improve the process. Defending the function, purpose, and structure of the institutions of government is not trivial or a distraction. It is possible to defend the institution and also demand remedy from the Congress.

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Eric, possible error in graf from Adam Serwer, who you quote "... Aside from rights specifically mentioned in the text of the Constitution, Alito argues, only those rights “deeply rooted in the nation’s history in tradition” deserve its protections." But Alito appears to be quoting Wm. Rehnquist: ". . . the Court has regularly observed that the [Due Process] Clause specially protects those fundamental rights and liberties which are, objectively, "deeply rooted in this Nation's history and tradition." And tradition. Makes more sense.

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From my conservative perspective, I am happy that Roe v Wade was finally overturned, as it was premised on an imaginary right that was invented to arrive at the desired ruling. Regulation of abortion is now returned to the states as appropriate. Even 2nd Amendment rights which are explicitly enumerated, are subject to regulation by the states, so long as they do not seek to impair the core rights (as Illinois unconstitutionally did for decades).

Politically, I believe conservatives owe a debt of thanks to the leaker of this drafted decision so that it burst on to the scene now, 6 months before the midterm elections. While there is unquestionably manifestation of outrage in the streets by the hair-on-fire predominantly women furious over this news, does anyone seriously believe that any material percentage of these rabidly proabortion individuals were ever going to vote for any Republican candidates?

The battleground for hearts and minds on the abortion issue is predominantly in the suburbs among moderate voters, and especially women voters. While arguably a significant percentage of them may not be in agreement with this decision, I strongly believe that another 6 months of feeling the pain daily at the gas pump, grocery store and every aspect of life under the Biden Democrats will continue to lead them to vote Republican in November. So I do not believe the Democrats are going to realize any electoral lifeline in this decision despite all the noise it is presently generating.

In closing on a side note, I cannot help but take note of the fact that the avalanche of protestation about women's rights with regard to abortion seems to have caused Democrats to rediscover biological gender identity!

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Well said, particularly your last paragraph. Talk about putting yourselves in a trick bag. When was the last time a transgendered woman had an abortion? Never. When was the last time a transgendered man fathered a child? Never.

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So you are not a man if you don’t father a child? And you’re not a woman if you don’t get an abortion? Post your trans hatred on Truth Social. That’s where it belongs.

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Non sequitur.

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Clueless.

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What am I clueless about, Michael Neubauer?

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Everything, I gather. Do I really have to explain? This is simple judicial necessity.

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Yes, Michael Neubauer, you have to explain yourself. Or at least common courtesy would require it. You jumped on and encouraged a gratuitous anti-transgender “joke” or put down added by David Leitschuh at the end of his comment about the leaked abortion decision. And your comment was a rather lame effort to support the idea that transgender women are not “real” women and transgender men are not “real”men. Your comment stated, “When was the last time a transgendered [sic] woman had an abortion,” and “When was the last time a transgendered man fathered a child.” In response, I pointed out to you that there are lots of people who are women who have never had an abortion, and lots of people who are men who have never fathered a child. I suggested that your trans hatred would fit in better on Truth Social than it does here. Your response, after being called out for a gratuitous and off topic anti-transgender put down, was to tell me that I am “clueless.” When I asked you what I am clueless about, you couldn’t say, so you used the rhetorical dodge of asking me, “Do I really have to explain?” But, yes, you have to explain to the other readers of the Picayune Sentinel why you posted an off topic anti-transgender screed on a discussion about the leaked Supreme Court decision on abortion. Are you just an anti-transgender bully? Just a jerk? Is that the explanation?

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Except Republicans in many red states are already reaching for more extreme restrictions, laws regarding abortions. I'm sure birth control is next. Louisiana is considering charging women who abort after the moment of fertilization with homicide. You really think this is going away in six months?

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Wendy, I agree the issue itself will remain front and center as each state will consider legislation to restrict or liberalize abortion access. But I do not believe this will move significant votes in November, as the diehard proabortionists are always staunch Dem votes, and the suburban moderates will be much more conscious of the ongoing economic pain, surging violent crime and totally out of control southern border to vote Dem strictly due to this SCOTUS ruling. Just my prognostication.

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No chance on prohibiting birth control. Griswold, though bad, isn't as bad an opinion as Roe.

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"No chance on prohibiting birth control."

It is almost like he's *trying* to be wrong.

https://www.washingtonpost.com/politics/2022/05/08/abortion-tate-reeves-mississippi-contraception/

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Your point is what? See, e.g., Griswold v. Connecticut, 381 U.S. 479 (1965). Are you trying to be stupid?

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I wasn't addressing you. (Pats the little man in the head.) Now run along little man.

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Thanks for the clarification. You're a very entertaining fellow. Oh, and I'm 6' 5".

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Would you endorse a federal statute that prevented states from punishing (whether directly or through private lawsuits) women or those who assist them for traveling outside of their state where abortion's illegal to one where it's not in order to get an abortion?

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JakeH, I would not personally support any federal legislation seeking to limit the states' right to legislate in reflection of their respective citizens. NY, CA and IL will always enact liberal laws, whereas TX, FL & MO will always enact conservative laws. That's democracy.

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No, it's tyranny and not conservative and probably not constitutional. You would endorse extraterritorial jurisdiction, the right of states to regulate their citizens' personal conduct not only within their state borders but everywhere they go? Because that's what some want to do. I'm asking for a modest federal law that would prevent that. States would continue to be able to regulate within their borders under this proposal. I'll give you the benefit of the doubt and assume that you did not really consider what I was asking. Want to try again?

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Maybe you should have post-dated your comment, if that's possible? Roe vs. Wade hasn't been overturned yet.

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You are correct Jean that it is not an official decision until the court formally issues it. I'm just presuming that public demonstration, political noise and even doxing of the SCOTUS justices will not materially change the leaked draft, which has been confirmed as authentic. But we indeed in uncharted waters on this.

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Your transphobia has no place here, and it’s not funny or clever. Some trans men need the freedom to end a pregnancy, and trans people generally tend to be progressive. Because we frequently have to put up with snide comments and put downs like yours, we tend to have compassion and empathy for other people, especially those whose agency other people try to take away.

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Thank you for your reply Joanie. You are entitled to your opinion, but do not have the right or ability to silence me because you disagree with mine.

No biological male has ever been pregnant. You can create all the socio-political gender constructs you wish, but biology is real and cannot be denied.

In addition to the virtues of compassion and empathy, let's also practice tolerance for those we disagree with. Happy Mother's Day weekend!

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I never see the political tweets to vote on. Where are they?

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THere was not a political division this week.

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If I might make a comment about the filibuster: Many people in the media are talking about it as if the only choices are "keep it" or "get rid of it." I want to remind people that the last I heard, one could effect a filibuster merely by phoning in a threat to engage in a filibuster. I want the rule changed to require what's called a "talking filibuster" - you actually have to be physically present in the Senate and TALK about the bill up for discussion. And talk. And talk. And please don't waste others' time by going off-topic and bragging about how your town's high school sports team won the State championship - if that has nothing to do with the bill. Require the talking filibuster before taking up any other proposed changes.

We could classify a phoned-in filibuster threat right there with sabre-rattling. Anyone who's been slashed by a sabre can tell us there's a difference between a sabre rattling and a sabre cutting.

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I very much agree with this. I like the Al Franken proposal to reform the filibuster to require the continuous presence of 41 senators on the floor to block cloture. Instead of requiring 60 votes to end debate, in other words, require 41 to continue it in the face of a called cloture vote at any time the Senate is in session. This would not deprive the minority of the opportunity to block votes, but it would require their sustained and inconvenient commitment, hopefully leading to compromise.

https://www.startribune.com/make-the-filibuster-great-again/600020321/

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Thanks very much for your comment, and the referral to the article! I Saved it, but will have to fix some font characteristics etc. and study it later when I have enough time. I've always liked Al Franken, and didn't think he should have given up his Senate seat without due process. I wonder if I'll think, after I read the article thoroughly, that maybe there could be a way to combine both suggestions.

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Venue and jurisdiction rules governing lawsuits between people and organizations in different states have been fixed for over a hundred years. First, I can't sue you for something that did not directly affect me. Second, I have to sue you in the state where you live or where you committed the tort. Third, I can't sue in state or Federal court for something that is not a tort in that state or federally. A claim that cannot be brought in my state also cannot be enforced in my state. I also think that any state law that attempted to fine or restrict travel across state lines would be unconstitutional. We will have to see if the Texas type intra-state law holds up, but I think it will also ultimately fail.

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I agree with all this and agree that a state law seeking to punish women or their "accomplices" for seeking or receiving an abortion out of state would be unconstitutional. I even have a reasonable expectation that this very Court would arrive at that conclusion. At the same time, it's not entirely clear. There are arguments. For example, such states could argue that steps taken within their borders to secure an out-of-state abortion would be under their jurisdiction and thus punishable. They could even use existing conspiracy laws to advance this argument. They could argue that the crime affects their jurisdiction insofar as it deprives them of a future citizen or something they define as a person already.

Would such gambits work? Probably not. But why not make sure? A federal statute narrowly tailored to shut down this possibility should be -- in a perfect world where people are sane -- a no-brainer. Democrats should be sure, amid their forthcoming congressional theatrics on the issue, to cleanly put Republicans on the record on this specific point.

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A very good idea. It should be broadly written to prohibit any state law that infringes on the ability of a person to make plans for or travel to another state to do anything that is lawful in that state. It should also protect anyone that is lawfully engaged in an activity in their home state from prosecution it they travel into a state where that activity is unlawful. Finally, no warrant or subpoena could be served or enforced, but this would have to be more carefully worded. This would cover all of the many issues that may be political fodder - cannabis, guns, immigration, etc.

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Big props to the Tribune and the Better Government Association on their exciting Pulitzer win for local reporting! I recall reading the compelling story on fire code scofflaws and their horrendous consequences with interest and my usual critical/skeptical eye of local news exposes and thinking, yeah, they really got the goods here.

https://www.chicagotribune.com/news/ct-chicago-tribune-bga-win-pulitzer-prize-fatal-fires-20220509-lxqrtaq34jc5tmtqyzmqdddxwy-story.html

It's too bad that this news comes amid not only ongoing questions about whether the problems it identified will be solved, but also amid the Trib's "tumultuous time," aptly and sadly symbolized by the conversion of its once glorious home into luxury condos and the replacement of its mighty printing plant and current home with a casino. It's encouraging not only to see folks doing such strong, solid work through all that but also to see it rewarded in this way.

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