Today I want to follow up on what Daknikat wrote yesterday about the Supreme Court and abortion rights. Thanks to all the Bernie Bros and Hillary Haters, we ended up with Donald Trump in 2016, and he was able to appoint three right wing nuts to the Supreme Court.
We could have had the first woman president, and she could have nominated three liberals to the court. But misogyny and anti-Clinton propaganda won Trump enough electoral votes to take the White House even though he lost the popular vote. Now women will face the consequences.
Mark Joseph Stern at Slate: The Supreme Court Is Taking Direct Aim at Roe v. Wade.
On Monday morning, the Supreme Court announced that it will reconsider the constitutional prohibition against abortion bans before fetal viability. This decision indicates that the ultra-conservative five-justice majority is prepared to move aggressively against Roe v. Wade rather than tinker around the edges of abortion rights. The court will take on state laws that seek to outlaw abortion at early—and perhaps all—stages of pregnancy. It seems likely that the justices took this case for the express purpose of overturning Roe and allowing the government to enact draconian abortion bans that have been unconstitutional for nearly half a century.
Dobbs v. Jackson Women’s Health Organization, the case that SCOTUS took up on Monday, is not a subtle threat to Roe. It is, rather, a direct challenge to decades of pro-choice precedent. In 2018, Mississippi passed a law forbidding abortions after 15 weeks. This measure had two purposes: to restrict abortion, yes, but also to contest Supreme Court precedent protecting abortion rights. In Roe and later decisions—most notably Planned Parenthood v. Casey—the Supreme Court held that the Constitution forbids bans on abortion before the fetus has achieved viability. Since there is no doubt that, at 15 weeks, a fetus is not viable, even with the most heroic medical interventions, Mississippi’s law was clearly designed as a vehicle to let SCOTUS reevaluate (and reverse) Roe.
The lower courts understood this plan. Judge James Ho, a very conservative Donald Trump nominee, all but endorsed it when the case came before the 5th U.S. Circuit Court of Appeals. Ho urged the Supreme Court to overturn Roe—while acknowledging that, as a lower court judge bound by precedent, he could not uphold Mississippi’s abortion ban. Now the justices have vindicated Ho by accepting Mississippi’s invitation. (The court will hear arguments in the case next fall and issue a decision by the summer of 2022.) It is not difficult to guess what will happen next. But it is worth pointing out three reasons why the Supreme Court appears poised to seize upon Dobbs to eviscerate the constitutional right to abortion.
How do we know the conservatives on the Court are planning to reverse Roe v. Wade?
First, there is no split between the lower courts on the question presented in Dobbs. The Supreme Court typically takes up cases that have divided courts of appeals so the justices can provide a definitive answer that applies nationwide. Here, however, no court has claimed that, under current precedent, a state may outlaw abortions at 15 weeks. Even Ho had to admit that binding precedent “establishes viability as the governing constitutional standard.” There is no reason for the Supreme Court to hear Dobbs unless it wants to abolish this standard, which has been the law of the land for almost 50 years.
Second, Mississippi gave the justices several options for a more limited ruling; its petition to the court included a question that would’ve let the court modify the standard for abortion restrictions without overtly killing off Roe. But the justices rejected that alternative and agreed to consider the central question in the case: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.”
This action suggests that the conservative majority is no longer interested in gradually eroding abortion rights until they are, in reality, nonexistent….
Third, and relatedly, Barrett’s impact on this case cannot be understated. Just last summer, the Supreme Court struck down laws targeting abortion clinics in Louisiana by a 5–4 vote, with Chief Justice John Roberts joining the liberals (with qualifications) to affirm the bottom-line rule that states may not place an “undue burden” on the right to abortion before viability. Less than three months later, Justice Ruth Bader Ginsburg died, and Trump put Barrett—a foe of abortion rights—in her seat. By doing so, Trump shored up a far-right five-justice majority that, by all appearances, is committed to ending Roe.
Greg Stohr of Bloomberg via The Washington Post:
Read the whole thing at the WaPo.
According to The New York Times, anti-abortion activists are celebrating: ‘A Great Sense of Inspiration’: Anti-Abortion Activists Express Optimism.
Anti-abortion activists across the country expressed optimism on Monday that they might be on the cusp of achieving a long-held goal of the movement: overturning Roe v. Wade, the 1973 Supreme Court decision that extended federal protections for abortion.
The Supreme Court announced on Monday morning that it would consider in its next term a case from Mississippi that would ban abortion after 15 weeks of gestation, with narrow exceptions….
It is the first abortion case under the court’s new 6-3 conservative majority, and activists expressed hope that this case would be the one to remove federal protections for the procedure. Such a ruling would give the right to regulate abortions at any point in pregnancy back to the states, many of which in the South and Midwest have imposed tough restrictions.
“There’s a great sense of inspiration across the country right now,” said Mike Gonidakis, president of Ohio Right to Life. “This is the best court we’ve had in my lifetime, and we hope and pray that this is the case to do it.”
In a statement, Marjorie Dannenfelser, president of Susan B. Anthony List, a national anti-abortion organization, called the court’s move “a landmark opportunity to recognize the right of states to protect unborn children,” and noted that state legislatures have introduced hundreds of bills restricting abortion in this legislative season.
At The Daily Beast, Emily Shugerman writes that Biden is being criticized for not doing enough to protect abortion rights: Abortion Is on SCOTUS’ Radar—and Biden Is Getting Heat.
Abortions rights advocates cheered when Joe Biden was elected, heralding his win as a “seismic shift” and a “welcome change.” Now, with the nationwide right to an abortion on the line, they’re getting a little impatient.
On Monday, the Supreme Court announced it would take on a Mississippi case that has the potential to overturn Roe v Wade, the 1973 decision making abortion legal across the country. If that happens, nearly half of the U.S. would move to prohibit the procedure, according to the Center for Reproductive Rights.
Advocates see the decision to take on the case as a massive threat to abortion rights—and one Biden may not be taking seriously enough.
“He turned his back on people who have abortions as soon as he got into office,” said Renee Bracey Sherman, executive director of the abortion advocacy group We Testify. “What happened this morning at the Supreme Court is what happens when you turn your backs on us and ignore the restrictions we’re facing every single day.”
Pressure on Biden to act more decisively began mounting April 29, when more than 140 organizations called on the administration to prioritize changes to U.S. sexual and reproductive rights law recommended by the United Nations. The day before, nearly 60 women’s rights organizations—including Planned Parenthood and NARAL, which spent tens of millions of dollars to help elect the president—sent a letter to the administration asking them to increase funding for abortion and remove “unnecessary barriers” to access.
“The Biden-Harris administration and Congressional leadership must prioritize these policies for women and women of color,” they wrote, in a letter calling for multiple changes on behalf of American women. “We need to build back better for women and create lasting political, social and economic change.”
Click the link to read the rest.
There is much more news, and I’ll post more links in the comment thread, but to me this is the biggest issue right now. Women are on the verge of losing the rights we have been fighting for since the late 1960s.
As always, treat this as an open thread.
Good Morning Sky Dancers!
Before you do anything today follow the link on this Twitter from Congressman Adam Schiff. Then ask yourself, is Felonious Trump “self impeaching?”
Here Comes the Sun!
There’s nothing I cant think of more today than the bright rays of sunlight pouring into a den of thieves.
The Daily Beast calls these tweets “damning”.
Democratic committee chairmen released a stunning cache of text messages late Thursday night detailing exchanges among senior U.S. diplomats as they went to great lengths to play along with President Trump’s campaign to pressure a foreign government to launch an investigation into his political rival.
The texts laid bare, with great specificity, a coordinated effort among State Department officials and Trump attorney Rudy Giuliani to compel the new Ukrainian government of Volodymyr Zelensky to publicly commit to investigating a firm tied to former Vice President Joe Biden’s son, thereby making foreign aid contingent on the Ukrainians helping Trump’s re-election efforts.
By September, that effort so alarmed the recently appointed chargé d’affairs at the U.S. Embassy in Kyiv, Bill Taylor, that he called it “crazy” and spiraling toward a “nightmare scenario.” Another Trump appointee, U.S. Ambassador to the European Union Gordon Sondland, insisted Taylor was “incorrect” about Trump dangling a “quid pro quo” before Zelensky—the same quid pro quo that Sondland and his colleagues, from Trump on down, had spent months orchestrating.
“As I said on the phone, I think it’s crazy to withhold security assistance for help with a political campaign,” Taylor said in a message dated Sept. 9, 2019, referring to the White House decision to mysteriously withhold nearly $400 million in military assistance that Ukraine needs to fight back against Russian forces waging war against the country in the east.
The Washington Post reported that Trump ordered the funds withheld nearly a week before his July 25 phone call with Zelensky, the contents of which were presented in a memo released last week by the White House.
With the Ukrainians alarmed over having their military aid from Washington suddenly frozen, Taylor grew urgent. “The message to the Ukrainians (and Russians) we send with the decision on security assistance is key,” he texted Sondland. “With the hold, we have already shaken their faith in us. Hence my nightmare scenario.”
The letter, which included the text messages, was written jointly by the chairmen of the House committees on intelligence, Oversight and Reform, and Foreign Affairs, and was circulated publicly following a marathon deposition on Capitol Hill from one of the pressure campaign’s key participants, the Ukraine envoy Kurt Volker, whom Secretary of State Mike Pompeo pushed into resigning last week.
“These text messages reflect serious concerns raised by a State Department official about the detrimental effects of withholding critical military assistance from Ukraine, and the importance of setting up a meeting between President Trump and the Ukrainian president without further delay,” the chairmen wrote. “He also directly expressed concerns that this critical military assistance and the meeting between the two presidents were being withheld in order to place additional pressure on Ukraine to deliver on the president’s demand for Ukraine to launch politically motivated investigations.”
As to the “self-impeaching” question, here’s some thoughts on that from Susan Glasser at The New Yorker. Today’s headlies are filled with takes on the calls from Trump on the White House Driveway for both Ukraine and China to investigate the Bidens. Glasser documents the Orange Snot Blob’s further descent into madness. We need to get rid Felonious Trump and all his thugs.
In the ten days since the House of Representatives launched its impeachment inquiry, President Trump has spoken and tweeted thousands of words in public. He has called the investigation a “coup” and the press “deranged.” He has demanded that his chief congressional antagonist, the California representative he demeans as “Liddle’ Adam Schiff,” be brought up on treason charges. He has attacked the “Do Nothing Democrats” for wasting “everyone’s time and energy on bullshit.”
There have been so many rationales coming from the President that it’s been hard to keep them straight. “How do you impeach a President who has created the greatest Economy in the history of our Country, entirely rebuilt our Military into the most powerful it has ever been, Cut Record Taxes & Regulations, fixed the VA & gotten Choice for our Vets (after 45 years), & so much more,” he complained via tweet last week, in a less-than-accurate recap of his Administration’s record. He called the charges against him a “hoax” and, quoting his lawyer Rudy Giuliani, said that he was “framed by the Democrats.” He has blamed the “#Fakewhistleblower” and the “fake news” for the impeachment investigation, which has now replaced the Mueller investigation in Trump’s rhetoric as “the Greatest Witch Hunt in the history of our country.” Trump has also insisted, over and over again, that there was nothing at all wrong with his July 25th phone call with the President of Ukraine. The call—in which he asked for the “favor” of having Ukraine investigate his 2020 political rival, the former Vice-President Joe Biden, even as he was holding up hundreds of millions of dollars in U.S. military aid—triggered the impeachment inquiry in the first place. But Trump says it was “perfect.”
On Thursday morning, Trump appeared to dispense with excuses altogether, no longer even bothering to contest the charge that he leaned on Ukraine to investigate Biden and his son Hunter. How do we know this? Because Trump did it again, live on camera, from the White House lawn. In a demand that is hard to interpret as anything other than a request to a foreign country to interfere in the U.S. election, Trump told reporters that Ukraine needs a “major investigation” into the Bidens. “I would certainly recommend that of Ukraine,” the President added, shouting over the noise of his helicopter, as he prepared to board Marine One en route to Florida. He also volunteered, without being asked, that China “should start an investigation into the Bidens,” too, given that Hunter Biden also had business dealings there while his father was in office. Trump, minutes after threatening an escalation in his trade war with China, suggested that he might even personally raise the matter of the Bidens with the Chinese leader, Xi Jinping.
Even the NYT editorial board considers his actions to be self-impeaching. Trump seems to think if he admits it enough in broad daylight that we’ll become immune to the idea that it’s illegal. Or perhaps he thinks–like Nixon–it’s not illegal when the President does it.
Federal law expressly states that it is illegal for “a person to solicit, accept, or receive” anything of value from a foreign national in connection with a United States election.
Yet there stood President Trump outside the White House on Thursday, openly soliciting help from a foreign government for his re-election prospects by declaring to the assembled press that “China should start an investigation into the Bidens.” This, of course, after Mr. Trump has already become subject to an impeachment inquiry after implicating himself in a scheme to seek foreign help for his campaign in a conversation with the Ukrainian president, Volodymyr Zelensky.
This might seem self-defeating — “self-impeaching,” even. A United States president urging a foreign government to investigate his political rival would seem to be flagrantly violating the law, along with American notions of fair play and decency.
But this president is a master at what Senator Daniel Patrick Moynihan called defining deviancy down. One baldfaced presidential lie, once exposed, is an outrage; a thousand such lies is a statistic.
Today, horrible legislation signed by the Democratic Louisiana Governor will be heard by a Supreme Court that may go directly for Roe. V. Wade. This is from Robert Barnes of WAPO.
The law is almost identical to a Texas law that the Supreme Court struck down in 2016. But in that case, now retired justice Anthony M. Kennedy joined the court’s four liberals to form a majority. Since then, President Trump has added two new justices who were enthusiastically supported by antiabortion groups.
Hospitalization after an abortion is rare, all sides agree, and the lack of admitting privileges by the doctor who performed the procedure is not a bar to the woman getting needed medical care. Roberts was one of the dissenters in the 5 to 3 decision.
Mark Joseph Stern–writing for Slate– believes that the 2020 court will take a hard right to “launch a conservative revolution.” I’m not surprised the American Women will be its first victims as white men start asserting their property rights over every one that’s not them.
After Brett Kavanaugh joined the Supreme Court in October 2018, most of the justices seemed eager to do whatever they could to keep SCOTUS out of the limelight. Less than two weeks earlier, Christine Blasey Ford had declared on live TV that Kavanaugh sexually assaulted her as a teenager; Kavanaugh, in response, accused Democrats of orchestrating a “grotesque character assassination” driven by “pent-up anger about President Trump” and “revenge on behalf of the Clintons.”
The Supreme Court’s legitimacy rests in large part on the perception it is a nonpartisan institution, but Kavanaugh joined the bench engulfed in a toxic cloud of political rancor. In the year after the ugly confirmation hearing, the justices mostly kept their heads down, ducking many controversial cases for no apparent reason. They decided only two bona fide blockbusters, throwing partisan gerrymandering claims out of federal court and blocking the census citizenship question. Meanwhile, they dodged cases about Dreamers, abortion, religious freedom, and discrimination, effectively deciding not to decide.
But the Supreme Court has amassed far too much power to avoid any contentious issue for long. As Congress remains deadlocked and the White House melts down, SCOTUS has become the only fully functioning branch of the federal government. It has taken on the role of policymaker, obligated to resolve many of the battles that engulf the political branches. Republicans understand this fact, and it is a key reason why they fought so hard for Kavanaugh’s confirmation. With lawmakers paralyzed, momentous disputes wind up at the Supreme Court. And now, thanks to Kavanaugh’s vote, many of these battles will be decided by a 5–4 conservative majority.
A slew of potentially earthshaking cases has already piled up on the court’s docket for the upcoming term. Multiple transformative decisions will come down in June, thrusting the court into the middle of the 2020 presidential campaign. And the full impact of Kavanaugh’s appointment will become clear as the court is dragged further to the right. This jurisprudential bloodbath will heighten the stakes of the 2020 race, amplifying the power of the president and the role of the judiciary in the most explosive political fights of the day.
I just need to remind you that three of these judges do not belong on the court. There’s not enough sunlight in the world that will change that.
What’s on your reading and blogging list today? I am assuming more stuff is out there and will be out there. Post what you find down thread! Thanks
Impeach Felonious Trump!
So, the good news is that the rumors of Justice Kennedy’s looming retirement are just rumors. But, the Supremes are taking up a few worrisome cases including the Malignant Mango Mussolini’s travel ban on Muslims. They’re also reviewing a few of those cases where people hide behind religion to prop up their bigotry.
Okay, one at a time now. Kennedy is most likely staying put on the bench.
Look, I love legal gossip as much as — actually, way more than — the next guy. I entered the world of legal media through the back door of judicial gossip, writing a blog called Underneath Their Robes under the pseudonym of “Article III Groupie” (because gossiping about judges by night while appearing before them by day, as a federal prosecutor, is not a good look).
But to be a good gossip, you can’t just spread random rumors. You need to exercise discretion and discernment in what you disseminate — which brings me to the rampant rumors about Justice Anthony M. Kennedy’s supposedly imminent retirement, to be announced possibly as early as tomorrow.
I won’t bury the lede, so here it is: based on reports I’ve received from former AMK clerks who attended his law clerk reunion dinner last night, it is highly unlikely that Justice Kennedy will announce his retirement tomorrow.
The Travel Ban is getting a bit of life. Some of it can go into effect. It will officially be reviewed come fall.
The Supreme Court agreed Monday to allow a limited version of President Trump’s ban on travelers from six mostly Muslim countries to take effect and will consider in the fall the president’s broad powers in immigration matters in a case that raises fundamental issues of national security and religious discrimination.
The court made an important exception: nt.It said the ban “may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.”
In the unsigned opinion, the court said that a foreign national who wants to visit or live with a family member would have such a relationship, and so would students from the designated countries — Libya, Iran, Somalia, Sudan, Syria and Yemen — who were admitted to a U.S. university.
So, what about the case of the baker that refused to bake a cake for gay grooms? Is it religious freedom from the conservative side to enable bigots?
The Supreme Court on Monday said it will consider next term whether a Denver baker unlawfully discriminated against a gay couple by refusing to sell them a wedding cake.
Lower courts had ruled that Jack Phillips, the owner of Masterpiece Cakeshop, had violated Colorado’s public accommodations law, which prohibits refusing service to customers based on factors such as race, sex, marital status or sexual orientation.
There are similar lawsuits from florists, calligraphers and others who say their religious beliefs won’t allow them to provide services for same-sex weddings. But they have found little success in the courts, which have ruled that public businesses must comply with state anti-discrimination laws.
The court granted the case after weeks of considering it. In 2014, the justices declined to revisit a New Mexico Supreme Court decision that found that a photographer violated a state civil rights law when she declined to photograph a lesbian couple’s commitment ceremony.
Since then, the high court has found that marriage is a fundamental right that states may not prohibit to gay couples.
The justices also reversed the Arkansas Supreme Court and said the state must list same-sex parents on birth certificates in the state. To refuse, the court said, is to deny married same-sex couples the full “constellation of benefits” that government has linked to marriage.
Justices Clarence Thomas and Samuel A. Alito Jr. joined Justice Neil M. Gorsuch’s dissent, which said the law regarding such issues is not yet settled and stable.
However, there was also this:
The Supreme Court declined to review a case about the right to carry firearms outside the home, but two justices publicly dissented from their colleagues’ decision not to take up the issue.
The high court said Monday it would not hear a National Rifle Association-supported legal challenge by California resident Edward Peruta, who challenged a state law limiting gun-carrying permits to those showing “good cause” and a San Diego County policy that says concern about personal safety is not sufficient to fulfill the requirement.
Gun rights advocates say the limits violate the constitutional right to bear arms.
However, the case could not muster the votes of four justices, which is the threshold to add it to the court’s docket.
The most notable aspect of the action announced Monday was that President Donald Trump’s newest appointee to the court — Justice Neil Gorsuch — joined conservative stalwart Justice Clarence Thomas in lamenting the court’s decision to dodge the issue for now. Gorsuch’s views on gun-rights issues were not well established by his writing or his earlier decisions as a judge on the 10th Circuit Court of Appeals.
However, on Monday, Gorsuch joined Thomas’s opinion calling “indefensible” the 9th Circuit’s rationale in ruling against Peruta.
“The Second Amendment’s core purpose further supports the conclusion that the right to bear arms extends to public carry,” Thomas wrote. “Even if other Members of the Court do not agree that the Second Amendment likely protects a right to public carry, the time has come for the Court to answer this important question definitively. ”
“For those of us who work in marbled halls, guarded constantly by a vigilant and dedicated police force, the guarantees of the Second Amendment might seem antiquated and superfluous. But the Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense. I do not think we should stand by idly while a State denies its citizens that right, particularly when their very lives may depend on it,” Thomas added.
This one was disappointing.
Well, busybody christofascists are thrilled. Yeah! We get to fund religious indoctrination!
The Supreme Court ruled on Monday that the state of Missouri cannot deny public funds to a church simply because it is a religious organization.
Seven justices affirmed the judgment in Trinity Lutheran v. Comer, albeit with some disagreement about the reasoning behind it. The major church-state case could potentially expand the legal understanding of the free-exercise clause of the First Amendment of the U.S. Constitution. It is also the first time the Supreme Court has ruled that governments must provide money directly to a house of worship, which could have implications for future policy fights—including funding for private, religious charter schools.
Trinity Lutheran is a big case that hinges on mundane facts. In 2012, when Trinity Lutheran Church in Missouri applied for a state grant to resurface its playground, it was ranked as a strong potential candidate for the program. Ultimately, though, Missouri denied the funding under a state constitutional provision that prohibits public money from going to religious organizations and houses of worship. “There is no question that Trinity Lutheran was denied a grant simply because of what it is,” wrote Chief Justice John Roberts in his decision for the majority. “A church.”
The case focused on whether this decision conflicts with the First Amendment of the United States Constitution, and specifically issouri was violating the free-exercise clause by preventing Trinity Lutheran from participating in a secular, neutral aid program. On Monday, the court overwhelmingly agreed that the answer was “yes.”
No good news on the environmental side of things. This is a weird case that hinged more on state v state fighting.
The Supreme Court will not hear arguments in a legal dispute between two states stemming from the 2015 Gold King Mine waste spill, the court announced on Monday.
New Mexico had sued Colorado for its role in the mine spill, which released 3 million gallons of toxic sludge into the Animas River. That river feeds into the San Juan River, which flows through New Mexico.
The state was seeking unspecified damages in its lawsuit, which went directly to the Supreme Court, as is typical for legal disputes between states. In May, the federal government urged the court to dismiss the suit.
The court declined Monday to hear arguments in the case and did not issue an opinion explaining the decision, though Justices Clarence Thomas and Samuel Alito said they would let the suit move forward.
The August 2015 Gold King Mine spill kicked off a flurry of lawsuits over environmental damage and government incompetence.
In New Mexico’s lawsuit against Colorado, New Mexico officials alleged Colorado was “reckless” leading up to the spill, calling it “the coup de grâce of two decades of disastrous environmental decision-making by Colorado, for which New Mexico and its citizens are now paying the price.”
Well, I think that’s about enough for the moment. What’s on your reading and blogging list today?
My intuition was correct. I think Judge Roberts made his choice. His own reputation and that of the Supreme Court was more important to him than his conservative ideology.
The bottom line is that the majority has voted to uphold the ACA. The majority opinion was written by Chief Justice John Roberts, who joined the more liberal justices. I will add details and links as I get them. Please post anything you hear in comments.
The New York Times says the law has has been basically upheld. Their live updates are here.
But I’m hearing on MSNBC that the Court said the states can opt out of the program. That could be a serious problem for the law if it affects the size of the population pool. The mandate is “technically unconstitutional,” but the government can penalize people who don’t buy insurance–through the government’s power to tax. However the law doesn’t actually include a penalty.
It sounds like the issue the states can opt out on is the Medicaid expansion. That could be a big problem.
Washington Post: Supreme Court Upholds Health Care Law, Mandate
CNN International: Where in the world can you get universal health care?
I’ll continue to update in the comments.