Dobbs: Kavanaugh Concurrence

One minor debate going on is who exactly assigned the opinion. Roberts concurred in result, but not in the overruling Roe/Casey. Some, but not the joint dissent, handwaves the difference. The majority is not just a minor change from Roberts' position. It is shades of Justice Brennan not assigning a death penalty case because he strongly disagreed with the plurality only finding the specific law a problem. 

And, why would he assign it to Alito of all people?  If you are going to overturn Roe without being a total ass about it, when dealing with something like this is sensible, Kavanaugh or Barrett makes some sense.  Barrett knows how to sound reasonable and professional.  Kavanaugh seems more forced about it.  Gorsuch always lays it on a bit too thick and his originalist sentiments make him too Thomas-y.

Barrett (unlike in the gun case, where she tossed in a brief professor-type concurrence) decided to sit this one out. Kavanaugh, who Collins is full of shit to be so "shocked" about, did write a concurrence. He was in "I'm so reasonable, let me explain" mode.  I will let you off the hook and not post a picture of him.  But, if it wasn't clear, I find this whole thing fucking bullshit.  A basic part of this is HOW DARE THEY.  But, 2016 (and January 2021) has a lot of ugly consequences. 

Anyway, Thomas' concurrence is short (under seven pages). Kavanaugh takes twelve pages.  Since he along with Roberts (see the gun case) are likely "swing voters" here, the concurrence is fairly important.  There is also a matter of how reliable the whole thing is.  The travel comment is strongly written, leading Kate Shaw (Strict Scrutiny Podcast / Chris Hayes' wife) to think it is likely to stick. Her co-hosts were doubtful.

If Roberts, like he did in the gun case, went along with the majority, he might have signed on to this Kavanaugh concurrence. Now that the opinion is here, it is somewhat academic to imagine if there is any anti-abortion law that Roberts would not agree with but Kavanaugh would.  Perhaps, something of the sort of SB8, that screws up normal judicial rules.

I write separately to explain my additional views about why Roe was wrongly decided, why Roe should be overruled at this time, and the future implications of today’s decision.

This is again typical O'Connor/Kennedy sort of thing to try to frame a majority opinion and explain why a "centrist" type is going along. Such people are not just ideologues, mind you, they are just looking at this reasonably.  It is clearly his view of himself at this point. 

And, putting aside the "it's the law, we just have to see how it falls" (which Kavanaugh joined) Alito remarks, finessing societal reaction like this is part of the game, so to speak.  That is a basic assumption regarding respect for how Chief Justice John Marshall handled things in Marbury v. Madison. That is, a judicial, in a form of that word, approach that carefully addressed public and institutional realities. 

The issue before this Court, however, is not the policy or morality of abortion. The issue before this Court is what the Constitution says about abortion. The Constitution does not take sides on the issue of abortion. The text of the Constitution does not refer to or encompass abortion.

Usual stuff -- abortion is a matter of deep dispute and there is no reason for the courts to step in. The Constitution is "neutral" on the question.  This is false. I have spent decades talking about this and in "Joe's Constitution," I spend a chapter running down the multiple constitutional provisions involved here.  A basic point here is that enslaving people is something the Constitution does not allow.  

(The Constitution is "neutral" -- to be clear -- on the result, just as it is "neutral" regarding whether someone needs to believe a certain idea or religious belief.  The very right, the very equal liberty, to make these decisions and all that entails, is something the Constitution is not neutral on.)

The concurrence is striking in that it tosses in some conservative shibboleths (to use Mark Tushnet's term).  Some might not expect this sort of thing from this guy:

The Constitution does not grant the nine unelected Members of this Court the unilateral authority to rewrite the Constitution to create new rights and liberties based on our own moral or policy views

This is the usual strawman (straw-bro?) bullshit.  There is no need to "rewrite" things here.  "New" rights are not being created out of whole cloth.  The right to choose allows individuals to choose their own moral views, with clear religious liberty aspects.  The "policy views" are based on constitutional principles.  There is a strong debate on what they are.  But, it is not just justices relying on their "own" views.

As I see it, the dispositive point in analyzing American history and tradition for purposes of the Fourteenth Amendment inquiry is that abortion was largely prohibited in most American States as of 1868 when the Fourteenth Amendment was ratified, and that abortion remained largely prohibited in most American States until Roe was decided in 1973.

One thing covered in the discussions of this case is the complexity of how "largely prohibited" abortion was in 1868.  The same can be said for its prohibition afterward.  Lawrence v. Texas comes to mind.  For instance, there was a general opposition to targeting women themselves in enforcing anti-abortion laws.  A telling point that is just one reason why abortions occurred in large numbers during this period.

Abortion was legal in various ways during this period. Also, one reason why we have constitutional rights is to serve as checks against legislative violations.  The Thirteenth and Fourteenth Amendments were ratified to override many current policies and the decades afterward were filled with state laws that were later found to violate its terms.  

Finally, why the laws were in place is a rather important matter. Medicine significantly developed.  Times changed, and a growing understanding that women should have control of their own health care arose.  Such things reflect other cases where courts determine that merely because something was illegal did not mean constitutional rights were not present.  

The Court in Roe erroneously assigned itself the authority to decide a critically important moral and policy issue that the Constitution does not grant this Court the authority to decide.

How? It can't just be that some disputed moral issue was involved. The courts (see Tocqueville) decide greatly disputed moral issues.  How did it "distort" its role?  How is Roe different, for instance, from Griswold?  Other than pointing out that Casey did not end the big debate, I see no ... NONE ... discussion about this.  It's just his ipse dixit. 

Be sure, tossing in his usual weasel, he has "deep and unyielding respect" for the Casey plurality.  I'm sure you are quite supportive of your predecessor.  Not sure how far Souter or O'Connor (if she was competent) would want to toss you though.  

I emphasize what the Court today states: Overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents. 

Like the majority (and Thomas to the degree he claims abortion is unique), Kavanaugh assures us that contraceptives, same-sex marriage, interracial marriage, and so on won't be threatened. On some level, that is somewhat reassuring, and I don't think Roberts or Kavanaugh really want to go as far as some make out is liking. Can we stop with the "Loving is next" stuff?

But, Roe reflects the basic principles of these precedents.  It is hard to believe Dobbs (especially given some of its language that is far from so easily cabined) will be so limited.  A basic thing that is clearly next is just what "abortion" entails, including IUDs, abortion pills, and so forth. And, what about in vitro fertilization or stem cell research?

And, why exactly is same-sex marriage different?  The Chief Justice strongly dissented in that decision.  It was 5-4.  It was a greatly disputed moral matter. There was a long history of non-recognition of same-sex marriage.   The dissent's "well, we want to believe you but" replies as much as those from those specifically affected (GLBTQ) have bite.

For example, may a State bar a resident of that State from traveling to another State to obtain an abortion? In my view, the answer is no based on the constitutional right to interstate travel. 

There will be -- as noted last time -- a slew of legal questions to determine in state and federal courts.  Not even "will no longer decide the fundamental question of whether abortion must be allowed" is likely to be true unless "fundamental" does a lot of work. As the dissent notes, what about if it is necessary to protect health?  Mind you, every pregnancy is a health risk.  Would a ban be even "rational" then?

I surely think you cannot block a person from traveling to another state to have an abortion (or any number of things).  Move beyond the burden in place from having to travel.  But, it is far from clear how the courts will finally determine various issues here. For instance, can a state penalize a doctor licensed in said state for providing abortion services elsewhere?  

(The linked article -- also cited by the dissent -- provides various complexities about how a state might penalize out-of-state action.  And, what exactly -- as it notes -- will "interstate" quite mean?  What if you call a clinic for an appointment or help someone go there? Is this "in" a state and something the state can criminalize as aiding and abetting an abortion?)

And, he tosses in an unlikely concern about states penalizing people for abortions before Dobbs. That would clearly violate the Ex Post Facto Clause.  But, any "liability"  (see SB 8) is less clear.  That clause from the 1790s only applied to criminal behavior.  It would be a question of procedural due process to determine.  Anyway, even that, seems not really a major concern. 

greatly respect all of the Justices, past and present

Sure you do.  You just assume they are blatantly violating their judicial duties, including the "constitutional principle of judicial neutrality."  

The concurrence ends:

The Court today properly heeds the constitutional principle of judicial neutrality and returns the issue of abortion to the people and their elected representatives in the democratic process.

The "issue of abortion" will remain subject to a range of legal disputes.  The state of California regulated crisis pregnancy centers and the Supreme Court struck down as unconstitutional a reasonable disclosure law.  Tell me again how ...

As Justice Scalia explained, Roe “destroyed the compromises of the past, rendered compromise impossible for the future, and required the entire issue to be resolved uniformly, at the national level.” 

The Supreme Court allowed the states discretion on how to regulate abortion, including as applied to waiting periods, who performs them, parental involvement, medical regulations of a varied type, how exactly to frame informed consent, and more.  No, it did not allow states to enslave people by forcing them to be incubators.  See, Amendment 13.  

And, it is so very rich that the same people who support the reduction of voting rights talk about tossing things back to the people themselves.  Plus, this result came via minority rule, mixed with other skullduggery. Normal practices put in place a Supreme Court that upheld Roe.  

I'm not inclined to go all the way like those who attack the Court as a historical institution, but talking about the one in place now, the general sentiment when people like Kavanaugh talk in this fashion is STFU.  And, yes, we should not merely accept them ala Breyer being so pleased with the response to Bush v. Gore.  The start of a solution is often a change in mindset.

Dobbs: Thomas Concurrence

I join the opinion of the Court because it correctly holds that there is no constitutional right to abortion. Respondents invoke one source for that right: the Fourteenth Amendment’s guarantee that no State shall “deprive any pen of life, liberty, or property without due process of law.”

The importance of reproductive liberty to women's equal place in society, which is a matter of equal protection (with some 19A mixed in), is a significant aspect of the dissent. It also is cited in Planned Parenthood v. Casey. And, there is a section in the respondents' brief entitled "The Right to Decide Whether to Continue a Pregnancy Before Viability Remains Critical to Women’s Equal Participation in Society."

Either way, the Due Process Clause at most guarantees process. It does not, as the Court’s substantive due process cases suppose, “forbi[d] the government to infringe certain ‘fundamental’ liberty interests at all, no matter what process is provided.”

There has been a lot of scholarship regarding this point.  Whatever he thinks some Plato-like forms version of the Constitution supposedly guarantees, it has been generally accepted from at least the mid-19th Century (probably before) that there is some substantive aspect of due process of law.  Trying to overturn over a hundred years of precedent might be his cup of tea, but it's on some basic level ridiculous.  

The Court’s abortion cases are unique, see ante, at 31–32, 66, 71–72, and no party has asked us to decide “whether our entire Fourteenth Amendment jurisprudence must be preserved or revised"

The dissent explains how they are not "unique" in various respects. The Catholic Church, for one, does not think "potential life" suddenly is not an issue when birth control is involved. As Justice Stevens noted in Thornburgh, it is basically questioning begging to separate things at the fertilization line.  And, no other "unique" aspect is present, including such things as it being illegal or something at the relevant time.

That said, even if the Clause does protect unenumerated rights, the Court conclusively demonstrates that abortion is not one of them under any plausible interpretive approach.

And, going after "substantive due process" won't stop abortion rights as seen by the opinions in Griswold (reference to the 9th Amendment and penumbras of enumerated rights), even aside from the equal protection aspect.  So, for example, Justice Thomas in the past was willing to accept that there was a fundamental right to raise children as one sees fit. The right not to have children has been defended from that overall principle. 

What exactly is wrong with "substantive due process"?  Justice Douglas in his concurrence in Doe v. Bolton denies he was using it.  He argues that the right to privacy is necessary to protect the enumerated "liberties" found in the Bill of Rights.  For him, substantive due process was problematic since it is an open-ended means of judicial policy making.  At the end of the day, how much sunlight is between Harlan and Douglas on this point is unclear.

First, “substantive due process exalts judges at the expense of the People from whom they derive their authority.”

The fact Thomas quotes an opinion by Justice Byron White, who concurred with Griswold and was willing to accept unenumerated rights in various cases, is telling.  Thomas citing this is rather amusing. He appeals to various sources to overrule current majorities.  That's okay though.  

Second, substantive due process distorts other areas of constitutional law. For example, once this Court identifies a “fundamental” right for one class of individuals, it invokes the Equal Protection Clause to demand exacting scrutiny of statutes that deny the right to others.

Again, this just moves the problem.  If someone supports a "privilege or immunities" approach or the Ninth Amendment, there will be unenumerated rights for which a higher degree of scrutiny, using various criteria (including vagueness concerns), will be involved.  

Third, substantive due process is often wielded to “disastrous ends.”

He cited Dred Scott here as if that opinion rested on substantive due process.  Again, there is nothing unique about SDP here, and it is hard to find a right that will be applied to that route that cannot be another route. So, for instance, people think the gun ruling was disastrous.  He would use the privileges of national citizenship route instead of substantive due process. 

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I think the dissent is generally good but does not provide a comprehensive summary of how various constitutional rights and liberties, with a slew of cases to back it up, add up to (among other things) the right to choose an abortion.  It summarizes some precedents that do so.  And, it's okay. The joint dissent had enough to do.  The material is out there.  

The majority assures us it is just cutting off abortion, but as the dissent notes, there are many more lawsuits to come. A federalism fight about abortion pills is perhaps one of them.  Thomas' concurrence is a warning about the additional stuff that might be on the chopping block.  

But, the idea that the reason is that the Supreme Court will suddenly not protect substantive due process (or the basic underlining principle of unenumerated rights) is a lot more dubious. The overall principle has been around in some form since the Founding.  The reference to privileges and immunities alone shows it still will be with us for some time.

Dobbs: Roberts Concurrence

ETA:  My councilwoman with a well-timed hearing on crisis pregnancy centers.  If they ever pass more regulations or something, be careful, given the Supreme Court already had that horrible 5-4 ruling selectively allowing them to mislead the public by striking down basic disclosure rules.

We believe that THE CHIEF JUSTICE’s opinion is wrong too, but no one should think that there is not a large difference between upholding a 15-week ban on the grounds he does and allowing States to prohibit abortion from the time of conception.

Such is what the dissent says in response to the twelve-page concurrence in judgment of Chief Justice Roberts. The majority spend more time on it. It argues neither side in the case asked for the more limited decision he settled on. It also argues that the solution is not really principled. No halfsies, dude.

It is appropriate to give short shrift to a path not taken, especially when the official law of the land as handed down by the Supreme Court involves much more.*  We are not (except vaguely) open to hearing internal debates. There might have been one to try to give Roberts' opinion at least one more vote, which failed.  A twelve-page opinion that significantly changes Court precedent itself seems somewhat thin.  As if was not a full effort. 

Regardless, I think the concurrence is worth comment, especially since it probably voices the opinion of many "compromise" types.  And, even though the dissent covers a lot of ground, it does provide an approach not fully covered. Again, this does not mean much here, since the Court just went all the way.  Still, I think it warrants discussion, and probably a few pages on his viability discussion could have been tossed into the dissent.

We granted certiorari to decide one question: “Whether all previability prohibitions on elective abortions are unconstitutional.”

Yes.  In some other case, the state's decision to "go big" once they had that fifth vote might have even led to a "DIG" since the case was not granted for that purpose.  The approach here by the YOLO [as the dissent notes, a Court "not restrained but aggressive, not modest but grasping"] Five encourages abuse of the litigation process.  Breyer flagged that in the gun case -- a fact-laden matter was not allowed to be carefully litigated in the trial court.  

[The question is being applied to a 15-week ban with limited exemptions. So, it is still somewhat open-ended. A "yes" answer doesn't even necessarily help the state, some set of abortions between 15 weeks as applied here and all elective (what exactly does that mean?) abortions before viability existing.  

And, what exactly is a "prohibition"?  Not being able to have an abortion at all?  A sorta safety period that might bring in a few pre-viables? Roberts's test surely is more open-ended than 15 weeks.]

Roberts pushed back on the majority and noted that the state very well (to be clear, as a backup plan) argued that the 15-week ban could be upheld on narrower grounds.  That is somewhat coy, of course, since the state spends most of the time going big.  The proper approach here, if anything, would have been the Citizens United reargument approach, with a question on the wider issues, at least on overturning the viability line. 

viability line "never made any sense"

Roberts points out that the original challenged laws did not draw the line at viability and neither side set forth that as the line.  But, the proper line was a matter of dispute, the final decision necessarily discussing proper purposes and what test to apply.  

The viability line was a result of that.  Roberts takes a shot at the "rigid" trimester scheme, which is old news since Casey disposed of it.  The viability line did "make sense."  You can disagree with it, but upending fifty years of doctrine warrants an honest ("no sense" is not it) accounting of why the old rule is wrong and a new rule is better.  Stare decisis there warrants a strong accounting.  

Roberts argues basically the only thing Casey offered was that it was "workable" and notes that he has an alternative.  He argues the important thing is a reasonable choice to have an abortion; "so long as a real choice is provided," it is okay.  Pregnancy tests generally (or some such qualifier) allow you to determine you are pregnant by six weeks. Most abortions occur in the first trimester.  Fifteen weeks is plenty of time.  

Sort of a weak argument. What about various cases where early discovery of pregnancy does not occur, especially for teens with less reliable cycles and judgment calls?  What of those abortions for purposes of fetal abnormalities?  What of a range of delays? When is the appropriate line? Is it fifteen weeks? Or some time earlier?  

Roberts minimizes the value of the "workability" reason in Casey for upholding the line, but that is a basic value of a line like viability.  Basically, a range of things do occur before viability to make an earlier line problematic.  If a right to choose is granted -- and for now Roberts grants it -- changing the line is problematic.  And, the state does not carefully provide exceptions to deal with this either.

Also, a basic issue here -- cited in Roe too -- is that it is the point where a fetus can survive outside the womb.  As Casey noted: "realistic possibility of maintaining and nourishing a life outside the womb."  The dissent quotes this, though it does not quote the wider discussion on why the viability line was chosen. Both the Casey plurality and Blackmun provide it.  

The viability line is a relic of a time when we recognized only two state interests warranting regulation of abortion: maternal health and protection of “potential life.” Roe, 410 U. S., at 162–163. That changed with Gonzales v. Carhart, 550 U. S. 124 (2007). There, we recognized a broader array of interests, such as drawing “a bright line that clearly distinguishes abortion and infanticide,” maintaining societal ethics, and preserving the integrity of the medical profession. Id., at 157–160. The viability line has nothing to do with advancing such permissible goals.  [Also cites fetal pain.]

It is unclear how true all of this is.  The "infanticide" line -- putting aside how useful a so-called partial birth abortion ban is there -- seems to be part of a "potential life" debate.  Also, there was and remains a compelling interest against "infanticide."  What does that add to things?  We still have to determine what an "infant" means, the counteracting interests of the life and health of the woman, and so forth. 

Multiple opinions also did not deny that basic medical regulations are inappropriate.  And, Casey could be interpreted to be basically about determining if there is a substantial effect on abortion rights and "legitimate" state interests.  Something like "societal ethics" is ridiculously overbroad. Anyway, the other decision did not overrule Casey, so it is unclear what difference that makes. 

In short, the viability rule was created outside the ordinary course of litigation, is and always has been completely unreasoned, and fails to take account of state interests since recognized as legitimate. 

The rule was crafted as a constitutional doctrinal line as is done in many cases. Justice Blackmun covered this in Casey etc.  It was not "completely" unreasoned.  In fact, it has various things going for it. Before you overrule it, it should be subject to careful full argument.  Not handled on the side while most of the argument was spent on the merits of Roe v. Wade overall.  

So, the concurrence leaves something to be desired. It would have removed the viability line (weakly saying why) with some hazy replacement where a mass of state interests (including general social ethics) go against some right to choose with probably six weeks as the bare minimum (maybe).  

Roberts says his is the path of reasonableness, not as extreme as either end.** But, defending the status quo is pretty reasonable for a judge.  Roberts does seem to (though joining the gun ruling, selectively) accept in fashion this philosophy from the dissent regarding changing constitutional analysis:

Instead, the Framers defined rights in general terms, to permit future evolution in their scope and meaning. And over the course of our history, this Court has taken up the Framers’ invitation. It has kept true to the Framers’ principles by applying them in new ways, responsive to new societal understandings and conditions.

This is a basic principle that should be continuously defended.  We need to apply the Constitution as current times inform us.  Yes, we can talk about things like fetal pain based on current knowledge.  What that tells us is far from clear and to me won't settle on Roberts's ground.  But, a full, open, directly addressed, approach there would at least have been more honest.

And, I agree with the opening quote, though a few years from now, the difference might not be much between Roberts and the rest.  But, the law should develop over time. As someone noted on Twitter, a Court in a hurry is dangerous.  Some wanted to get the end over with, so in that fashion, they were glad the majority won out.  I'm not really in that camp.

[Roberts cites John Hart Ely Jr.'s famous critique, which was not limited to the viability line.  The dissent was probably negligent to not remind the majority and Roberts that Ely later PRAISED Planned Parenthood v. Casey.]

Finally, having read the dissent more closely now, I have yet to see any allusion to the leak.   

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* Cooper v. Aaron, involving defending Brown v. Bd. (desegregation) provided a strong view of the Court's power:

[Marbury] declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land and Art. VI of the Constitution makes it of binding effect on the States "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

There has been pushed back on just what this means.  It is unclear how "supreme in the exposition of the law" Marbury v. Madison intended to assert.  The Cooper opinion ended thusly:

The principles announced in [Brown] and the obedience of the States to them, according to the command of the Constitution, are indispensable for the protection of the freedoms guaranteed by our fundamental charter for all of us. Our constitutional ideal of equal justice under law is thus made a living truth.

Again, that is pretty strong, and it is unclear what force it should have in every case.  Is Dobbs really "indispensable" in this sense?  

It is one thing for a state to blatantly ignore the Court (though we were with SB8 apparently that doesn't mean much at times).  But, the meaning of the Constitution is applied in many ways.  

The rhetorical force given the events is fairly unsurprising.  As a basic principle, it is open to abuse.  

** This reminds me of this passage from the dissent:

The Justices who wrote those words—O’Connor, Kennedy, and Souter—they were judges of wisdom. They would not have won any contests for the kind of ideological purity some court watchers want Justices to deliver. But if there were awards for Justices who left this Court better than they found it? And who for that reason left this country better? And the rule of law stronger? Sign those Justices up.

I wonder what Souter and Kennedy (bothered by the house protests) are thinking today.  Souter also was part of the majority in the court of appeals that was overruled in the Maine religious schools funding case.  One of these days, O'Connor will be in the news, the obituary pages. 

Betty Jo Has Her Baby

The MeTV early Saturday morning run of Petticoat Junction has reached Betty Jo having the baby as well as the end of the line for the mom. The actress was sick with cancer the previous season so "away" a lot, but came back at the end. It was sadly short-lived, and other than use of her voice reading a letter, only an obvious double (we don't see her face) has what amounts to a cameo role. 

The baby episode was overall fun.  I think Betty Jo's belly is a tad too big; they probably should have toned down the baby bump a tad. She married her on air hubby in real life around this time, but it doesn't look like the actress in real life had any children.  

Overall, the episodes with the third sister without the mom around to me lose some of the old charm, though there still are some fun ones.  Also, it just seems weird to have the mother "away," even after everyone knows the actress had died.  (The permanent fill-in will come next week, a lady doctor.)  Given the tone of the show, I can understand not dwelling on it, but they can have things happen off screen, especially for the final season.  

[They eventually took her name off the credits and changed the theme song to have Joe Carson running the hotel and the woman doctor staying there. So, it was pretty blatant in that sense. Wikipedia now notes: " In the 1950s and '60s, it was almost unheard of for a main character on a television show to die, particularly on a situation comedy."  Note the qualifier.]

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I couldn't really get into multiple books lately, but did manage to finish a recent John Grisham (I read a couple of his old novels) short story collection, Sparring Partners.  Quick, easy reading; not that nourishing.  Sometimes, it is good just to finish a book.

The two longer  (about 120 pages each) ones were easy enough to read (broken into little sections of at most a few pages each), but the characters were not really that interesting. The first has an old character of his, but he isn't the primary concern in the story.  The shorter middle story (about a young person about to be executed) was the best.  It focused on the one character and I personally cared about him a lot more.  

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I have noted that Friends has for the last few years been comfort food for me.  I don't know if I watched it weekly when it was first on, but recall being annoyed at the Chandler/Monica marriage proposal two-parter (it was forced), and stopped watching.  

I checked out the 9th Season DVD [the new 25th Anniversary version; not sure what more is provided though the color looks brighter] to see the Christiana Applegate episode. For whatever reason, it is skipped over in the usual Nickelodeon rotation.   The DVDs also provide extras and stuff edited out, especially when there were "supersized" episodes.

She's very good though for whatever reason neither the commentary track or her later interview (10th season DVD) mentions her earlier work with the "Joey" actor on Married ... with Children and his short lived spin-offs.  The season and series sorta dropped off permanently around mid-9th season, but there remains some fun stuff.

I don't like whole Rachel Likes Joey subplot (many don't), but one thing that stands out is Joey's reason/excuse for kissing Rachel in the season finale in the Bahamas (does someone pay for Phoebe? what about her passport issues?).  He sees Ross kiss Charlie, who was going out with Joey. But, Joey/Charlie broke up, and the kiss was only after Ross was told by Charlie. 

SCOTUS Watch: Day 3 (RIP Roe)

BREAKING: Arkansas Attorney General Leslie Rutledge has just certified that the Supreme Court has overturned Roe. Abortion is now immediately illegal in Arkansas.

Abortion is now illegal in six states -- Arkansas, South Dakota, Kentucky, Louisiana, Missouri and Oklahoma.

— Megan Messerly (@meganmesserly) June 24, 2022

The day started with a curious split upholding a complicated Medicare funding regulations -- Kagan for the liberals + Thomas and Barrett vs. Kavanaugh for the rest of the conservatives. The case is from November and the dissent is under four pages. 

The majority holds that the "regulation is consistent with the text, context, and structure of the DSH provisions" while Kavanaugh says it is not the "best reading." That doesn't sound enough to strike the regulation. Is this some hidden Chevron deference battle and was settled behind doors? 

The Court has multiple administrative law cases (at least one left) and have not bit the bullet, so to speak, yet though perhaps they are doing so silently.  This is a basic fight, especially given our modern day administrative state and its importance in making policy.  But, the issue will be lost in the weeds today, if anything is worthy of comment there anyhow.

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SUPREME COURT ENDS CONSTITUTIONAL RIGHT TO ABORTION

I was not alone in thinking that the abortion ruling would be dropped next week.  Both Planned Parenthood v. Casey and Webster v. Reproductive Services were handed down at the end of the term.  Roe v. Wade was handed down in January.  But, that was something of a special case, including it being re-argued.  It would have came down late as well. 

There were nine [now seven; they announced a Monday opinion day, but doubt that will be enough]  opinions left, and there were various possibilities.  For instance, there is the coach's prayer case that four members were dying to decide and finally it was worth it with Barrett coming on the Court.  That might make some Establishment Clause news, if somewhat more a matter of clean-up than anything else.  

But, the day after they handed down the big gun rights opinion (Thomas), they decided to hand down the Dobbs opinion. And, other than clean-up and response to other opinions (written after the original), the draft reportedly staid basically the same.  So, basically, the worst possible person, full of scorn, gets to write the opinion overturning Roe v. Wade.  

The SCOTUSBlog headline warrants comment.  I do not think the "right" to choose an abortion is gone as a matter of right. The Fifteenth Amendment was not amended out of existence when the Jim Crow society upheld the power to deny black people the right to vote.  A right that did matter.

The "ends" there was a matter of reality in practice.  There is a difference, an important difference, that should not be ignored.  I'm working on a review of Mark Tushnet's Taking Back the Constitution, and it ends with a push for progressives to promote "popular constitutionalism."  

The idea is the meaning of the Constitution should not be left to the courts.  That is wrongful "judicial supremacy."  Suggesting the "right" to choose no longer exists now is of that caliber.  And, in our system, and in theory overall, there is an important principle about following the rule of law, including what courts decide.  EVEN THERE, defining a legal right for various purposes is not the same as the inherent existence of it.  

One place where this is important is when abortion is a matter of criminal law.  Certain progressive prosecutors and attorney generals have declared that they will not enforce such laws.  We do not know what this will mean. What happens when it becomes known some doctor (or layperson) performed an abortion in one of these states?  

But at the same time, abortion rights advocates are eyeing preemption as a possible solution to protecting access to abortion — specifically, medication abortion, which is increasingly being targeted by state legislatures. The argument holds that, because the FDA is the federal agency solely responsible for regulating drugs, states don't have the power to overrule its approval of abortion medication. The FDA approved mifepristone, one of the abortion pills used along with misoprostol, in 2000, and it's now available in all 50 states.

Merrick Garland reaffirmed the right to that drug among other things in a statement strongly dissenting from the opinion. The Attorney General noted the federal law in place to protect clinic access, the right to travel, and counseling are all still in place.  President Biden in his remarks cited travel as well.  Kavanaugh claims that right is still present.  

Yes, Alito wrote the majority for five.  Thomas wrote a short concurrence underlining his desire to do away with substantive due process while sorta lying about that being the only basis cited by the respondents here.  Equal protection, at the very least, is part of the right to choose, and was cited in Planned Parenthood v. Casey (also overruled today).  

Kavanaugh wrote a relatively short (most of the 200+ pages is the majority and dissent) concurrence to say how reasonable he is.  He puts forth the b.s. that the Constitution is neutral on abortion. The Constitution bans servitude, supports equal protection (of persons), and protects liberty.  Forcing persons (mostly girls and women) to be incubators violate each.  

Roberts concurred in result.  He argues the viability line doesn't make sense (without really doing much to answer the extended arguments used in Casey in particular to defend it) and basically says 15 weeks is enough for women to decide.  It is unclear how that works for special cases, when it is a lot less clear that it is enough (such as if a fetal abnormality is found later).  But, anyway, the case was taken for limited purposes, and he wouldn't have gone all the way today.  

There was a joint dissent. This happens a very few times (recall the dissent in the PPACA Cases) and is a symbolic way to express a united front. The opinion cannot merely be by Breyer surely, since it has footnotes.  

It also has various tones. For instance, "Assume the majority is sincere in saying, for whatever reason, that it will go so far and no further. Scout’s honor."  That's Kagan.  Super Snark.  

Then, there is angry: "It is a history of women seeking illegal abortions in hotel rooms and home kitchens; of women trying to self-induce abortions by douching with bleach, injecting lye, and penetrating themselves with knitting needles, scissors, and coat hangers."  That's Sotomayor.

And, then, there is various things about balancing and precedent and stuff (and maybe even the Appendix -- Breyer likes those) that feels like Breyer. 

One thing my perusal did not  pick up (yet) is talk about how abortion rights really is a matter of religious liberty, including the basic question of "potential life" being religious.  Sotomayor flagged that in the oral argument.  The majority started that way, really, by noting how society splits on the morality of abortion.  Yes, and the state should not compel people to follow one side.   

I have been concerned about abortion rights from the 1980s, when I was a teenager.  The whole thing for me personally is largely theoretical, but my loved ones include people who are directly affected.  So, it really is not merely theoretical, though all my musings here or whatever might make it seem that way.   Anyway, that is who I am -- I have an urge to think things through, make my opinions known, and maybe, maybe, help others a bit while engaging in the development of the matter.

What is next?  Well ...

The 18 states with near-total bans on the books are Alabama, Arizona, Arkansas, Idaho, Kentucky, Louisiana, Michigan, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, West Virginia, Wisconsin, and Wyoming.

and ...

Four other states — Georgia, Iowa, Ohio, and South Carolina — have laws on the books banning abortion after the sixth week of pregnancy, which is before many people who may want an abortion will be aware that they are pregnant.

One or more of those states (we already saw Iowa recently used to be one; we don't know how far it will go now) might have state constitutional provisions that protect abortion.  Michigan, for instance, might be a decent bet there.  It is not clear that all of the twenty-two will hold firm, especially regarding the usual extreme exceptions.   

The majority opinion (surely reliable!) assures us that "only" abortion is involved.  But, what exactly is the reason for that?  Why should "potential life" make abortion different regarding drawing constitutional lines?  

As the dissent and others note, text and history surely would suggest a consistent application would have broad possibilities.  Some assume that we are soon on the road to a national constitutional ban.  Now, that would be something -- Kavanaugh ASSURES US that the Constitution is neutral.  Alito says the matter of abortion is not legislative. 

People note we should not be naive.  But, it is not like any of these people were not open (other than in confirmation hearings, where being open is allegedly unethical) about their position.  The only person somewhat unclear regarding where he might eventually land is Roberts.  I do not think he wants to force New York and California to ban abortion.  

(Mind you, someone like Thomas very well might disagree.  And, we might get some more talk on the matter, one that might very well matter somehow.  If a self-defense argument is eventually made, for instance, it really seems like something that has to be addressed somehow.)

We need not "trust them" though.  Ditto on Kavanaugh's assurance that there is a constitutional right to travel, so states cannot ban people from traveling to have an abortion.  I am not really sure how far that will be taken.  I dealt with this in the past, but the matter simply has not been pressed in all of its complexities.  

The same with the limits of congressional power, including any minimum limit here, even for the abortion drugs cited.  A basic line in the opinion is that "potential life" is special.  So, it would be perfectly logical to allow any sort of drug or device that "destroys" it, even if the evidence of them doing so is unclear and involves merely a fertilized egg.  

I think not going further than what actually happened the last couple days is bad enough. A Court with four (Thomas's ethical problems have been addressed) members that are tainted in the extreme (no wonder public respect is at historical lows) went full YOLO (including rushing along the gun case without an evidentiary hearing) two days back to back on abortion and guns.  

The efforts to defend reproductive liberty and vote for those who do the same are fundamental.  We also just had national gun reform passed today though it is unclear how safe it all is from yesterday's opinion.  But, ultimately we need bigger change, including to deal with a fundamentally screw up Supreme Court.  The people need to "end" some stuff too. 

ETA: This website provides a lot of good data on abortion, including the state of play of the law nation-wide. Now, it will be even more important in certain places to know what the law is and the resources available.  

Dobbs is not final for 25 days, I believe, which matters if it means some more women will have weeks more of access. But, then, there are reports of clinics closing now.  Anyway, a "trigger law" in Texas won't -- as of now -- go into effect in around thirty days. 

SCOTUS: Day 2 (Guns et. al.)

NEW: Per Supreme Court spokeswoman: "Three individuals were arrested by Supreme Court Police, at approximately 9:30 a.m. this morning, in violation of Building Regulation Two: https://t.co/cLUfXSWrEw. The individuals will be transported to the MPD’s Central Cell Block." @fox5dc https://t.co/6MSeBZBstG

— Katie Barlow (@katieleebarlow) June 21, 2022

The morning of the last opinion day, a little remarked [there was not even a separate article in SCOTUSBlog] protest occurred at the Supreme Court. From what I can tell, at least one woman (maybe more) handcuffed herself to the fence (still in place) in front of SCOTUS until the handcuffs were soon cut off.  This was a form of abortion rights protest.  To those who heard about it.  

After the latest school shooting (21 dead), there actually was more than "thoughts and prayers."  A bipartisan bill was crafted in the Senate, the Republican side of the negotiation team including top Republican Senate leader, John Cornyn of Texas. A summary is found here and does not include any bans or twenty-one year old lines.  But, some good stuff.  

As we wait to see if this legislation passes (so far the Senate side seems safe), the Supreme Court handed down the expected 6-3 gun decision out of New York.  Birthday boy, Justice Clarence Thomas, wrote the opinion, joined in full by the conservatives.  Alito concurred to be annoyed at Breyer's dissent.  Kavanaugh (with Roberts) to remind that they still accept various regulations (what ones? remains to be seen, including determining if ones presumptively okay have some other problem).  And, Barrett to briefly note an academic point of some methodology importance.  

The devil is in the details.  This blog is one place where gun details are helpfully provided.  Jake Charles on Twitter flagged how the majority confused things by its methodology, which focuses on "history" and rejected a popular court of appeals two step process (the first to determine if a regulation is basically of 2A concern at all).  The general tenor of the majority seems to put a lot of gun regulations into doubt though some will highlight Roberts/Kavanugh.  But, they concurred in full.  

(One spin is to note the licensing scheme struck down is only in seven states.  But, they are very populous ones.  And, who is to know if the others do not have some poison pill aspect?  Once gun regulations, even in public places -- Heller emphasized the home --  are looked at more suspiciously, there is more of a chance something will be deemed suspicious.) 

My general sentiment is that gun regulation is harder now with more stuff in doubt.  What about the pending national bill?  It would seem okay, but who knows?  Is the "red flag" law regime historically acceptable?  I would be somewhat surprised if the law (knock on wood) does not somehow eventually become a Supreme Court case.  And, if the justices do not find something wrong with the eighty page bill.  

[My current state senator, Sen. Gillibrand, and councilwoman were all very upset; Sen. Biaggi continued her "expand the Court" mantra.] 

Let me add here that I accept there is some sort of constitutional right to own a firearm and some sort of right to carry one outside the home. It's a "liberty" of some sort. New York does not deny this.  Online, a few find this horrible for me to grant, perhaps citing the "militia" language of the 2A.  

This is foolhardy, without going into the confusing about the history.  (One sneered at the idea a black person in 1870 was accepted to have a right to have and carry.  Come the fuck on.)  The general public accepts some sort of basic right to firearms.  The issue is what sort of regulations are acceptable.  You can speak to the choir there all you want, but that is the basic core.  And, making it harder for yourself is not a great idea. 

===

Death Penalty: There were other opinions. Kagan wrote the majority and dissenting opinions in two of them.  A mild surprise actually also involves guns.  

The opinion involves the current execution regime where a person who alleges an execution procedure is unconstitutionally cruel and unusual has to cite an available alternative.  Here, the option suggested is the firing squad, even though Georgia would have to pass new legislation for it to be available there.  The method, however, is available in four states. It is not some fantastical alternative.  That is enough.  

Roberts and Kavanaugh went along with the liberals while Barrett led the dissenters (the whole thing took 22 pages, two decisions/headnotes).  To be clear, the person still has an uphill battle, only getting the chance to make the claim.  The Supreme Court's current majority still is clearly not supportive of finding some procedure illegitimate on the merits, never doing so yet.  

Miranda: As expected, Alito v. Kagan (usual split), the Supreme Court made it harder to get relief when a violation of Miranda v. Arizona occurs.  You still can keep a statement obtained via a violation of the typical warnings out of the trial, but often you will not have a trial.  For instance, someone who pleas guilty who waives such challenges.  

[Someone said online this opinion basically made Miranda voluntary and I pushed back.  I was partially wrong in that the general tone (note author) basically sent the message that Miranda isn't worth much.  This can at the very least encourage a weak application. Note also that apparently exclusionary rules aren't necessary to enforce constitutional rights, but that doesn't mean other means of enforcement will be honored.]

Voting Litigation: A partisan split is present in North Carolina, like in various states, and the first opinion (8-1, Gorsuch v. Sotomayor) allows legislative leaders the chance to intervene in the litigation (here involving voting id laws).  

Rick Hasen at first blush on Twitter suggests he thinks the ruling is reasonable (he's the election guy).  And, Kagan and Breyer's involvement suggests that might be right.  Also, in some other case, a Democrat might benefit from this approach. 

"Panel Ties Trump to Fake Elector Plan, Mapping His Attack on Democracy"

The hearing ending with testimony from Ms. Moss, an election worker who processed votes with her mother, Ruby Freeman, in Atlanta on Election Day. In early December, Mr. Giuliani appeared a state legislative hearing in Georgia and falsely accused her and her mother of taking ballots from a suitcase and illegally running them through voting machines.

Mr. Giuliani’s baseless allegations were amplified by right-wing media outlets and by Mr. Trump, who mentioned Ms. Moss’s name several times during his call with Mr. Raffensperger. After the accusations went viral, Ms. Moss was subjected to racist threats by phone and text and became afraid to leave the house.

The public hearings of the January 6th House Committee have had some powerful aspects. Those already inclined to be into them (such as MSNBC people) are fascinated.  I'm unsure how the average person is reacting though many (and not just black people) were really pissed off watching Wandrea Moss, a (black woman) Georgia election worker, testifying. 

There is power to live hearings and they have been well organized, helped by not having partisan Republicans [such as those in a hearing today on workplace behavior at the NFL using their time to repeatedly complain about Biden not being overseen instead] making a pest of themselves.  It is somewhat unfortunate, since you want hearings not to just be one-sided, but it is so much easier.  Also, it is carefully set up so we don't have each member asking questions and basically grandstanding.

This is why it was so important to have witnesses during the two impeachment trials, even if the chief manager handwaved the lack of them the second time around. We saw personable, civic minded types in the House hearings during the first impeachment. The second impeachment does show what a well put on presentation could entail: it had an excellent video presentation, putting together an extended narrative. 

And, now we are seeing some here, until now basically white Republican guys who if Trump ran again would (more than one said so) vote for the guy again.  A powerful one yesterday was an Arizona legislative leader (Rusty Bowers, an older white Mormon) who first totally denied Trump's claim that he told Trump the election was fraudulent.  And, then he passionately, mixing in both faith and republican duty, explained how he rejected Trump's attempt to get him involved with further the Big Lie. 

An earlier hearing had former conservative federal judge / short lister to the Supreme Court, John Michael Luttig.  He was so deliberate early on that people thought he had a stroke ("stop making fun of a stroke victim!"). Since it was a video presentation, that couldn't just be handwaved, but what he said mattered.  He ended with a warning:

Trump and his allies and supporters are a clear and present danger to American democracy. They would attempt to overturn that 2024 election in the same way that they attempted to overturn the 2020 election, but succeed in 2024 where they failed in 2020. I don't speak those words lightly. I would have never spoken those words ever in my life, except that that's what the former president and his allies are telling us.

The whole thing -- with so much coming out, there is apparently going to be more hearings than at first expected; reports of editing questions on the fly in the middle of things -- is rather impressive.  As the the poll worker, well, I have and will be a poll worker again.  So, that is somewhat personal. Others might sign up because of her public service.  I was one before it was cool.  

Again, we will see what this all will go, there not being some magic complete justice realistically in the cards.  A basic thing about these hearings is that people still are able to be upset, still have the wherewithal to have faith in the system, and wanting to see people defend it.  That matters.

We will see how strong that sentiment is.  We found out that Sen. Ron Johnson, already a serious tool, was involved in trying to hand fake electoral certificates to presiding officer Mike Pence.  Johnson is up for re-election this year.  Will Wisconsin voters re-elect him? People don't want to call Pence a "hero" and his heroism is clearly very limited.  Voters can do their part in November.  

==

We will get back to our previously scheduled SCOTUS programming soon, especially since they added a Friday Opinion Day.

SCOTUS Watch: Day 1

Order List: Doesn't seem like anything that notable. Action on a New York/New Jersey border dispute. Took a couple cases that so far I have not seen much notice of. Didn't act on something that might be a red flag. Thomas/Alito upset they didn't take a criminal case that could have put someone back on death row. 

(The same "Shoop" is involved in the last opinion disposed of today, refusing to allow use of habeas to provide a transfer order to get testing to make a certain claim. The liberals (Breyer) and Gorsuch (separately) dissent on procedural grounds.)

More Low Temperature Opinions:  The first opinion was disposed of in twelve pages (headnotes, majority, dissent) and involved denial of insurance coverage for outpatient dialysis.  Kagan (with Sotomayor) had a brief, but pretty strong dissent ("common sense suggests" etc., finding the majority patently wrong. So, one more Kavanaugh v. Kagan moment.  

The next opinion (Gorsuch with Thomas/Alito with separate dissents, each handled by a snarky footnote by NG) involved the continuing efforts of SCOTUS to clarify what "crime of violence" means.  Prime material for certain criminal justice lawyers/professors.

And, then Breyer for an unanimous Court found a Washington State workers compensation scheme discriminated against the federal government, violating the Supremacy Clause.  Brief opinion.  

Major/Expected: The last opinion, as expected, expanded previous religious funding to schools rules to require Maine to fund discriminatory religious schools as long as they funded secular ones.  The state has an obligated to fund education and used vouchers to deal with thinly populated areas.  Some other state might not have to deal with that issue.  

Justice Breyer had the main dissent, underlining his concern about avoiding religious divisiveness. Justice Sotomayor, not joining the section that highlights that is somewhat less separatist than she (she dissented in an earlier case Breyer/Kagan joined involving playground funding), dissented on her own, basically with "told ya so."  Sotomayor replaced Souter, who filling in on the 1st Cir., supported the same path below. 

A basic thing that Breyer notes is that precedents should be applied to recognize a "play in the joints" that might in various cases allow funding to religious schools, but not require them.  Justice Byron White, who often dissented in Establishment Clause cases, followed that principle all the way back to Sherbert, which required a religious exemption in unemployment cases (he dissented).  See also his dissent in Widmar v. Vincent.  

James Madison before the First Amendment was ratified opposed use of funding to support religious schools, leading the way to the rejection of such usage.  So this is an old battle.  The opinion leaves open the state to merely fund public schools, but it is unclear why it can not fund public education in this fashion.  The "play in the joints" ability to deal with special needs without needing to carry all of the load will likely apply in other contexts.  

The aftermath of this opinion remains to be seen. But, if the funding will require state funding of discriminatory schools (anti-LGBT or whatever), it would seem to be problematic on state or federal grounds.  So, and Sotomayor flags a possible way left opened, if there is a way to meet state rules for public education funding besides this program, I think they have a constitutional compulsion to obtain it.   

(More on this case can be found here.)

Juneteenth

Juneteenth honors the day when federal troops officially took control of Texas. Months after the surrender of General Lee at Appomattox and the assassination of President Lincoln, the Civil War was basically over by that point. But, under the dictates of the Emancipation Proclamation, official military control of Texas meant the permanent freedom of the slaves that lived there.

I wrote that in a a blog on the "strengths and weaknesses of the Emancipation Proclamation." Juneteeth is not a state and federal holiday, which is observed this year (as seem by the Supreme Court not handing down orders and opinions until Tuesday) tomorrow. 

It first took place 6/19/1865.  The original day is based on the way the Emancipation Proclamation (1/1/63) worked.  Freedom followed the marching Union Army.  When an area of the Confederacy (it was a war measure, so did not applied to loyal border states or areas already in Union control) fell, the freedom promised become official. Texas was the finale, the end of the line of the Confederacy, surrendering the end of May/the beginning of June.  Things were delayed a bit further apparently here.

The day obtained wider meaning.  As President Biden notes:

Juneteenth is a day to reflect on both bondage and freedom — a day of both pain and purpose. 

It is rather fitting and proper that the day became an official holiday last year.  Racism is by far not over and the last administration was in large part advanced by and advanced it.  Racists were key players the 1/6 insurrection and recently were caught trying to attack a Pride Event.  Biden again:

I call upon the people of the United States to acknowledge and condemn the history of slavery in our Nation and recognize how the impact of America’s original sin remains.  I call on every American to celebrate the emancipation of all Black Americans and commit together to eradicate systemic racism and inequity that can never be tolerated and must always be fought against.

Ralph Ellison, the author of The Invisible Man,  long struggled over an unfinished novel, which was posthumously at first published in a shortened from with the title Juneteenth.  I have not read it, but it helped the movement to push for a national holiday.  The book later was expanded into a much longer work.  

I have re-read for a second time at least the posthumously published book The Slaveholding Republic, started by the author of a seminal volume on the Dred Scott Case. The basic premise (which I share) is that the Constitution itself is not inherently a slavery document, but the felt exigencies of antebellum American history and government did make the U.S. a slaveholding republic.  

There was always, a dissenting voice, that grew over time.  The book is not fully comprehensive (things like the black seaman controversies are not covered), but it does cover a lot of ground and is very good.  It makes sense that the author finished a leading historian's Civil War masterpiece and now someone finished his.  

The book was finished in 2001, and ends with the statement  that the legacy of the slaveholding republic "promises to continue well into the future."  From my vantage point, that does seem true twenty years later, including the part where there is a "state of unease and mutual distrust."  And, our Constitution continues to be applied in ways not necessarily compelled, if much more possible given the text and the history arising from it.  

We have a long haul, and unlike Lincoln, I do not think providence necessarily is directing out movements.  Days like this helps us remember and honor.  We have a ways to go, but as in the past, there are grounds of hope and good things happening.  

Anyway, I'm hearing birds again. 

Primary #1

New York finally did away with the unnecessary, waste of money, and likely suppressing already low turnout out split local/federal primaries. And, then the re-districting litigation led them to return this year. I am not sure why exactly New York did not simply have a combined election, just later. Instead, the newly drawn state senate and House of Representatives seats will be up in August.*

The original primary (6/28, early voting starting today) is for governor, lieutenant governor, assembly, and U.S. senator. 

[NY Daily News notes: "The first primary for Assembly and statewide offices — including races for governor, lieutenant governor, attorney general, comptroller, and U.S. Senate — will take place on June 28 with early voting starting on Saturday, June 18."  But, there does not appear to be challengers for the other ones I didn't list either.]

Well, Chuck Schumer doesn't have a challenger. Probably a bad idea not to run against him, prime chance to make your case, but seems Schumer did enough to satisfy his left flank.  My assembly woman is running for state senate, dropping out of the assembly race too late for a replacement (so the party or something decides).  And, no one else is running there. 

For others, there are assembly races, but that leaves the governor race for this voter.  This is not trivial though again it would have made a lot more sense (unless there was some reason not to do so) to have one primary.  I think I will be saying this a few more times before this is all over.  

Anyway, governor turns on the current one, the New York City based liberal (Working Family Party) challenger, and a conservative Democrat (his tool factor includes seeking Cuomo's endorsement).  I was never too enthused about the WFP candidate in general.  My decision is basically based on being happy Cuomo is gone and thinking  Hochul is generally doing a good enough job to support.  

Dave Barry once said the basic job of a lieutenant governor is to wear a suit and to check to see if the governor is dead. A vice president has various ceremonial and other stuff to do, including various meetings on reproductive rights issues.  The New York lieutenant governor is not as important, from what I can tell, though two did become governors in the last fifteen or so years.  

So there are three options.  There is the recently appointed lieutenant governor, who used to be a member of Congress.  Then, there is the Working Family Party option (my choice) as well as the more conservative option.  Normally, Lt. Gov. Antonio Delgado would have the incumbent advantage, but he has barely been there.  So, maybe Ana Maria Archila has a shot, especially for those who want to send a message to Hochul. 

Anyway, there are more early voting spots (when I first did this, I had to walk about twenty minutes;  this year, there is one five minutes away), and you shouldn't have much of a wait.  So, go vote, get your stylus type pen, sticker, and a white "early voter" wrist ban.  And, do your job as a citizen. 

---

* Along with a bunch of others, the redistricting changed some things for me, including moving the table (election district) I would vote at on Election Day.  I am now in Election District 19 instead of District 6.  More importantly, as I said, I am no longer in AOC's district (House) or Alessandra Biaggi's (moving on and my assemblywoman is running for that seat) state senate district.  

(To be clear, on Election Day, the usual practice here is to go to specific tables at the polls that match up with your election district.  Some tables match up with a single ED, others more than one.  And, you are given a general ballot appropriate for that voting place and your party (primary).  But, on early voting days, you don't have to go to your specific polling place. There is a general table and they print out the ballot specific to you.) 

Reproductive Justice in Iowa and NY

As we wait to see just how "final" that draft Dobbs opinion is, other courts are handing down abortion related opinions.

If/when abortion rights are severely diluted in federal courts, state courts will be of particular importance. For instance, a few years ago, the Kansas Supreme Court held that there is a right to choose pursuant to the Kansas Constitution. The right there is stronger than the "undue burden" based right of Planned Parenthood v. Casey, KSC going with strict scrutiny.

The Iowa Supreme Court also secured a stronger right to abortion a few years ago.  It, however, just handed down a decision basically taking it back.  For now, the controlling majority did not decide just how weak the right to choose truly is, in part waiting for Dobbs.  But, the language of the opinion sounds a lot more than just a desire to water down the test some. 

The whole thing is a bit strange.  In 2018, a rather strong 5-2 opinion not only held there was a state constitutional right to choose an abortion, but strict scrutiny over undue burden was the test.  A 72 hour waiting period was a stake and the opinion (by the Chief Justice)  strongly discussed the threats to women.  Now a 24 hour waiting period was at stake.  So, it is not like they had to you know overrule a precedent only a few years old.  But, now a 5-2 Court (and might be 6-1 soon) did just that. 

The opinion disagreed with law professors saying stare decisis should apply.  After all, the old decision was based on a living constitutional approach.  "Does the Iowa Constitution get to “live” until 2018, at which point it must stop living?  The much more Republican (the last Democratic appointed judge is out soon via mandatory retirement) Court is getting feisty.

Of all things, the controlling opinion cites Amy Coney Barrett to discuss stare decisis.  The Chief Justice dissented in a short opinion, quoting her too, relying basically on stare decisis.   (She replaced the author of the opinion being overruled.)  "Current state and federal constitutional abortion jurisprudence is like a game of Jenga, progressively becoming more unstable until it collapses."

The last Democrat dissented with a ninety or so page opinion.  He won't be around when just how bad this is will be decided perhaps 6-1, when he is replaced with some Republican.  A lot of the time is spent covering the usual ground (Meyer, Griswold, etc.).   He also references the over ten state courts that have protected abortion rights under the state constitution.  

It is a good, if fairly standard, summary.  Justice Douglas in Doe v. Bolton provided a somewhat more in depth analysis.  And, there are other cases you can toss in.  The reference to state courts is helpful too, though Tennessee passed a constitutional amendment to override the court's judgment.  And, there is such an amendment pending in Iowa.  One more reason the majority here is a tad impatient.  Let's see how the more Republican laden Florida Supreme Court case does with the pending claim, including one that brings up religious liberty from a Jewish perspective.

He argues: "Despite what some might suggest, Roe did not suddenly emerge the obscure primordial depths. Instead, it was a result of a steady and logical progression of caselaw development, going as far back as the Magna Carta."  Correct. He also offers another state constitutional approach, though I have my doubts this state court would agree.

These state opinions will be more important soon enough.  

===

Meanwhile, some states are passing laws to help protect reproductive justice.  My state senator (for now), Alessandra Biaggi, noted in her weekly email:

This week, Governor Hochul signed a historic package of legislation aimed at expanding and protecting the right to an abortion in New York. The package included the FIRE HATE Act to institute legal safeguards for individuals who travel to New York for reproductive or gender affirming healthcare. This legislation creates a cause of action for unlawful interference with protected rights under New York Civil Rights Law.

While other states are looking to criminalize abortion and gender-affirming care, New York continues to reaffirm its commitment to reproductive justice and serve as an model for the rest of our nation. 

Other legislation in the package includes:  

• Relates to legal protection for abortion service providers   
• Prohibits misconduct charges against healthcare practitioners for providing reproductive health services to patients who reside in states where such services are illegal      
• Prohibits medical malpractice insurance companies from taking adverse action against a reproductive healthcare provider who provides legal care      
• Includes abortion providers and patients in the address confidentiality program   
• Authorizes a study to examine unmet health and resource needs and impact of limited service pregnancy centers
  

Many fear that we will soon have federal limits on the power of places like New York to protect abortion rights in this fashion.  I find it hard to believe that the Supreme Court will soon hand down some ruling constitutionally banning abortion rights because embryos are protected or something. And, the trifecta of federal power trying to stop the close to a million abortions.

But, you know, didn't expect Dobbs.  For now, states do have the discretion. Thank you New York. 

Supreme Court Watch: Day 2

SCOTUS News: We had more opinions on Wednesday, but also continue to have other news. First, there is the continuing story of Ginni Thomas' efforts to overturn the 2020 elections, now with more John Eastman. As usual, this continuing onslaught has a general feeling of "this is bad" without fully being clear how much is there, including how much Clarence Thomas (Eastman was his clerk) is involved. For instance:

The emails show that Thomas’s efforts to overturn the election were more extensive than previously known, two of the people said. The three declined to provide details and spoke on the condition of anonymity to discuss sensitive matters.

The talk has been that there was some pushback on the 1/6 Select Committee to do much about Ginni Thomas, seen as something of a sideshow and perhaps not supported by the two Republicans. The article notes that the committee is deciding what to do though such leaks very well might be a sign of some sort.  What exactly (pressure? dissenting voices? a means to send info without doing formally?) it means is unclear. 

The person who went to Kavanaugh's house apparently well prepared to do mischief (apparently seeing the house defended, he said "nah" ... if it was "suicide by cop," he changed his mind, surrendering peacefully) was indicted for attempted murder.  As the article noted:

Montgomery County police found a black tactical chest rig, a Glock 17 pistol with two magazines, ammunition, a knife, pepper spray, zip ties and duct tape inside his backpack when they arrested him. 

Basically, he planned and otherwise did too much to get off the hook at the last minute.  Meanwhile, the House passed the Senate bill to expand security coverage to the family members of justices.  After a quick passage in the Senate (without dissent), it was held up in the House because Democrats wanted coverage for clerks and such as well.  

After all, as Rep. Lieu noted, one was targeted by name as the assumed leaker of the Dobbs opinion.  A few Democrats (including AOC) did not vote for the Senate bill, but most did.  As a summary notes:

This bill grants the Marshal of the Supreme Court and the Supreme Court Police the authority to protect any member of the immediate family of the Chief Justice, any Associate Justice, or any officer of the Supreme Court if the Marshal determines that such protection is necessary.

There has been complaints that the Senate did this so quickly while gun legislation or something was not passed.  Sure.  Okay.  Fine.  But, once your rightful indignation passes, this sort of legislation, of top members of the third branch of government, after people (including Sotomayor) were threatened or there was a serious threat there, is sound legislation. 

A few did add that the legislation does not address the necessary coverage needed to lower federal courts, including after a family member of one was murdered.  Again, that is valid, and if that is why people from her state specifically didn't vote for it, kudos.  It simply is easier to pass a more restricted bill, especially given current events.  

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Opinions: There was also a second opinion day with a slew (six) cases disposed of on Wednesday.  We are down to 18 opinions left, including probably around six really notable ones (abortion, two religion cases, Remain in Mexico, an EPA case, and let's say at least one more).   Meanwhile, jumping ahead, we already have the first arguments of the October 2022 term.  Fun times.  

One law professor on Twitter basically listed the cases as "not ones you care about" and they aren't the hot button issues. Now, those following a law professor on Twitter are more likely to care about some less exciting Supreme Court opinions.  Also, some of the opinions at least were notable in various ways, particularly doctrinal. 

Stolen Seat Guy (Gorsuch) played a notable role in many of these, including separating himself from other conservatives repeatedly.  The first case, for instance, was Barrett v. Gorsuch (Breyer and Sotomayor joining him up to a point) involving a VA regulation.  One might be sympathetic with the petitioner, but the case turned on clear error.  If you do not give discretion to the agency here, you might not like the result in other cases.

[This SCOTUSBlog summary is interesting in discussing the interpretative approach taken determined the results here, including "canons" involved, and so on.  And, such application does not seem consistent.] 

This is one of those cases where it's best for me to simply understand what happened as compared to assuming I can figure who is correct. As to agency discretion, another notable if less flashy case involved a complicated health care matter.  The recap suggests the unanimous Kavanaugh opinion might be a sign "Chevron deference" is being buried by just ignoring it.

Gorsuch's clear sympathy for Native Americans (though on Twitter, a law professor that specialized in Native American law suggested he was wrong in the double jeopardy case, showing perhaps his competing views clashed there) also showed up in a 5-4 opinion involving the discretion given to Indian gaming.  Roberts dissented along with the older conservatives and Kavanaugh, leaving Breyer one of the few chances to assign.  

As noted by the linked commentary, also flagged on legal Twitter, the voting array reflects another big 5-4 Native American dispute, which has a pending follow-up in the post-RBG era.  Barrett joined this opinion and inside baseball suggests it sends a message she will vote with Gorsuch in the upcoming case.  We shall see there, predictions somewhat iffy.

A general theme in this collection of cases was "we are just doing our job, statutory interpretation," though the end result was disputed.  This as Prof. Victoria Nourse noted on Twitter included when the same interpretation methods were used.  She also flagged Gorsuch's usage of purpose.  Text alone will not get you where you want to go, at the very least, if there is any major dispute on the meanings. 

Sotomayor wrote an unanimous opinion clarifying the rules regarding an important international agreement involving at risk children.   

Alito, not writing one of the religion in school opinions quite yet (I thought the prayer case might drop), wrote an opinion "preempting" to some degree (if not as badly as some feared) a California law involving arbitration.  The result was 8-1 (Thomas didn't like the rule applied and doesn't care much about precedent) though Barrett, Kavanaugh, and (if not as much) Roberts would have decided the result on more limited grounds.  

[SCOTUSBlog's summary notes the section all three don't join is basically gratuitous, but it seems like it was added to make the liberals happy.  The interesting vote there is Gorsuch, who concurred without comment.  The first part cites some "limits" to the California law, but Roberts did not find this problematic, unlike the other two who concurred.]

One theme in this set of cases is that Roberts in various ways did not go along.  He wrote a dissent, only concurred in part, and for the conservatives (if not the two latest) wrote a rare concurrence to a DIG. The Court as a whole did not explain why the case was "improvidentially granted," a "because we say so" result that is normal, if wrong, in such cases.

During oral argument, it did seem the justices (etc.) was not really gung ho about supporting the route taken to challenge the "public charge" rule now that the Administration no longer enforced it.  But, some didn't like the way the Biden Administration went about it, feeling the right procedure was not followed.  Roberts sent a message with his concurrence, but again, not for the Court. 

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Conference: Thursday a day for conference.  Monday is a federal holiday, Juneteenth, so orders will drop on Tuesday.  There are 18 opinions, including some big ones, so I think there will be four more opinion days.  Two are scheduled for Tuesday and Thursday.  I don't think we will have six a day since we had basically five a day (with one non-opinion) with a bunch of B sides.

One thing noted on Twitter was some opposition to the policy of dropping opinions in ten minute increments, which makes more sense when they read the opinions from the bench.  I am okay with sticking with the old way, even though it's just automatic release, in part since it gives me a chance to quickly look at the opinion before the next is dropped.  

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Sotomayor At ACS: Liz Cheney during one of the public sessions of the 1/6 Select Committee labeled the Federalist Society a conservative lawyer organization, which probably would annoy them -- we are libertarian too! we are a non-ideological debating society!  We just happen to be appointed by Republican presidents as judges and stuff. 

The American Constitution Society does a lot of generalizing, but on their "About Us" page eventually notes it "nurtures the next generation of progressive lawyers, judges, policy experts, legislators, and academics."  Like the Federalist Society, they have invited ideologically dissenting guests to various panels though recent videos I have seen are basically one-sided.  Eric Segall seems to be a favorite friendly debating partner for FS, which at some point to me normalizes them.  To the degree they did not do enough to push against Trump, that to me is wrong. 

Fix the Court wants liberal and conservative justices to go to their opposite numbers (said so on Twitter).  I think that's a great idea though would not put (like the tweet) the responsibility fully on their side. It is up to the groups to invite them.  I do think the justices can somehow send a message they would be open.  

Still, it is not apparent they actually refused to do so.  I suppose Breyer or Kagan would be open at least.  And, yes, it does look dubious since these are not just debating societies. They are ideological groups, and federal judges should try to remain somewhat neutral appearance-wise. 

Anyway, it is not surprising that Justice Sotomayor was a special guest at their annual convention.  Federal judges have served such a role in the past.  Sotomayor was in part chosen since she is a good public advocate and she strongly believes it is important for her to do so to inform the public.  She has signed on, especially now that Sandra Day O'Connor is no longer able, to the civics campaign too. 

She also generally, though you might not know it from some of her dissents (her majority opinions, like Thomas, can be dry),* puts a positive face.  She seems from my vantage point a general positive person. She loves, for instance, to go into the audience like she's some talk show host. And, she repeatedly hugs people.  

The report of her remarks  (interviewed by a former law clerk) contains various comments where she puts a positive spin on things, including praising Justice Thomas (this is not surprising with his clear rapport with Breyer and reports court personnel love his personal touch).  We already had that mask controversy where a statement was released and she was shocked there was any suggestion Gorsuch (the one person on the bench not wearing a mask, even though he sits next to her, a diabetic) was somehow at fault.  It was just over the top in my view. He was an asshole.

Anyway, she references the "institutional structure" and notes:

“We have to have continuing faith in the court system and our system of government,” she said, adding that she hoped “to regain the public’s confidence that we — as a court, as an institution — have not lost our way.”

Sotomayor isn't going to discuss ongoing disputes, but like I said when talking about the latest Breyer book, there is a problem there.  It is appropriate that a sitting federal judge does not opine completely on ongoing political matters.  So, these avenues require them to balance on a tightrope of sorts, honing to a fine line at times.  Including somewhat vague and general bromides.  Some, like Alito et. al., do bitch some.

[I know "bitch" is a dubious gender laden word here. A word like "whine" probably works just as well.]

I appreciate that Sotomayor by her remarks does not just handwave the current reduction of respect of the courts.  I also realize she is limited in what she can and will say.  (Ginsburg annoyed some by laying it on thick about Kavanaugh being a fine person. Again, it's a fine line.)   

But, the lack of faith is a result of various deep problems with the current Supreme Court.  And, the public voices and actions she vaguely remarks upon should and in my view must put forth serious changes for the confidence to be regained and/or properly held.  Finally, no matter how nice Thomas is (and on some level seems true), he is part of the problem here, including blatantly crossing ethical lines that warrant him resigning.  

I think Sotomayor is a great asset, but at some point, once you are a member of the Supreme Court, you are institutionally self-interested.  Some this is her overall sense of the world, some of it is that she is a justice of the Supreme Court.  I understand but still it's a bit hard to take sometimes.  The happy face (with enough honesty mixed in to get my respect too) these days is not really the vibe I have. 

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*  She is open about it in public remarks, including here:

“There are days I get discouraged,” she said. “There are moments where I am deeply, deeply disappointed. And yes, there have been moments when I’ve stopped and said, ‘Is this worth it anymore?’ And every time when I do that, I lick my wounds for a while, sometimes I cry, and then I say, ‘OK, let’s fight.’”

And, though I'm wary about the personal nature of judicial opinions sometimes, I am glad she is doing it.  I do think -- and there was signs of this way back when too -- opinions in our country are too personal.  But, there is a place for certain strong arguments.  For instance, she is the last strong supporter of separation of church and state left on the Court.  

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Addendum:  A lot of stuff, and not just opinions.  After a bit of time, we have a few edits of opinions.  One was a single typo; the other also mild edits (e.g., basically "it appears" to "in the view of the parties, it appears.").  Also, we have more urls on page where permanent copies of the pages cited are kept.  

And, an interesting old critique of Marbury v. Madison.