Monday: Hili dialogue

May 9, 2022 • 6:45 am

Sadly, my gastrointestinal malaise, while abating, is still with me, making me weak and tired. Bear with me for a few days (the doc says this will be over very soon) while I recover my strength and ability to write. As always, I do my best.

Welcome to a new week—a week very likely to see Dorothy’s brood of ducks jump off my windowsill. We have made all possible preparations, but Duck Tending is an anxious job at best. It’s Sunday, May 9, 2022: National Shrimp Day (at least it’s not on the Sabbath, as shrimp ain’t kosher!).

Hili: I’m a pacifist.
A: Me too, as long as nobody is breaking down the doors.
(Photo: Paulina R.)
Hili: Jestem pacyfistką.
Ja: Ja też, jak długo nikt nie wyważa drzwi.
(Zdjęcie: Paulina R.)

Paulina is a great cat photographer. Here’s a new shot she took of Kulka in the trees:

And here’s Karolina (you should know by now that she and her mom are refugees from Kyiv, staying with Andrzej and Malgorzata). Karolina’s probably looking for cats to hassle!

It’s the usual news: Russia, on its WWII Victory Day, made no new announcements about the war in Ukraine.  There is one article (not an op-ed) in the NYT, “If Roe falls, is same-sex marriage next?“, raising a Chicken Little alarm that the Supreme Court will begin dismantling every moral advance of the last several decades. The rationale for this speculation?

The opinion, by Justice Samuel A. Alito Jr., provided conflicting signals about its sweep and consequences. On the one hand, he asserted, in a sort of disclaimer that struck a defensive tone, that other rights would remain secure.

“To ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right,” he wrote. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

On the other hand, the logic of the opinion left plenty of room for debate.

It said a right to abortion cannot be found in the Constitution or inferred from its provisions. The same could be said, using the draft opinion’s general reasoning, for contraceptiongay intimacy and same-sex marriage, rights established by three Supreme Court decisions that were discussed at some length in the argument in December.

Now I despise the conservatives on the Court as much as anyone, but, as Alito said, invoking other decisions not based on the Constitution, like the old practice of sterilizing people without their consent, abortion poses moral questions not pose by same-sex marriage (i.e. to a devout Christian, abortion is murder and same-sex marriage is not).  I’m worried about other upcoming decisions of the Court involving guns, the death penalty, and evolution, but not same-sex marriage. If that were ruled unconstitutional, many marriages would be dissolved to no obvious end, and I don’t think the court, religious as it is, would go that far. If you feel otherwise, I’ll bet you $50.

Speaking of which, from Facebook:

It’s difficult for a majority of members of the Supreme Court.

A photo sent by reader Tom.  There’s no sense asking why the cat is doing this, because it’s a cat!

And a meme from David:

This dog tries the “mirror test”, but doesn’t pass it:

 A tweet from Titania:

From Barry:

From Simon:  do wait till the end. What a mean man to remove his beach towel!

From Ginger K.:

Tweets from Matthew. First, a newborn orangutan. How sweet!

A stalwart child:

And a sleepy Java sparrow (Padda oryzivora). Google traslation: “The second son who gets up early at 5 am. Get up early and play with Java sparrows. I’m sleeping happily in my son’s hands.” That is, the early bird gets the bird!

49 thoughts on “Monday: Hili dialogue

  1. Alito might not personally want to rule against SSM or other precedents, but it is a sure bet that various conservative states will cite his upcoming opinion to challenge them. And then he’s going to stick SCOTUS in the very bad position of either having to issue transparently hypocritical and inconsistent positions, or overruling various civil rights “not historically in the constitution” every time a conservative state makes a state law against them.

    Frankly, I expect Thomas, Goresuch, and Barrett would be perfectly happy with the latter, so they only need 1 more to force SCOTUS into this position.

    IOW I think Alito has his head in the sand about the legal sh*tstorm he’s about to release. Although, the court system being relatively slow compared to legislation, it will be a slowly gathering 2-10 year sh*tstorm.

  2. As with abortion, it would not surprise me if the conservative, religiously saturated court overrules itself and declares that the legality of same sex marriage is a state, not federal matter. If this should happen, most of the same states that will ban abortion will also ban future same sex marriages. I can’t see them dissolving current same sex marriages. Nevertheless, I would expect a mass exodus of same sex married couples to states where they would be welcomed. Only such couples where it would not be financially feasible to move would stay. We must remember that the religiously controlled states view gay relations as a sin, although perhaps not to the degree of abortion.

    1. According to Gallup polling, acceptance of same-sex marriage is at 70% overall and indeed is 55% among Republicans (73% for independents and 83% for Democrats). It’s also at 84% for young adults overall and 72% overall for middle-aged adults. The only demographic still against it is elderly Republican voters.

      I thus find it implausible that: “most of the same states that will ban abortion will also ban future same sex marriages”.

      Note that, while there have always been activism against Roe v Wade and abortion, there is no real campaign against same-sex marriage these days.

      1. IMO, the idea that same sex marriage (or contraception, etc.) isn’t controversial enough in Gallup polls misses the point. Opposition to abortion services is also a minority position. But authoritarian theocratically-inclined politicians and judges are not constrained by public opinion. They are on a mission from God. They don’t care what percentage of voters supports their sanctified crusade or not.

        1. There’s a big difference between polls on same-sex marriage: a steady upward trend to 70% acceptance today, and polls on abortion: pretty much level over time, and pretty much a 50:50 split, e.g.:

          “Americans still split between “pro-choice” (49%) and “pro-life” (47%)” link.

          Now, one could indeed likely build a ~ 70% coalition of people who would “go along with” abortion-on-demand up to some limit, after which it would be medical-necessity only — and people should indeed try to build that coalition and pass those laws.

          1. Again, you are missing the point. 70% of Americans think abortion decisions should be left to women and their doctors. But that doesn’t matter. Theocrats and authoritarian Republicans have manipulated the political/legal system to advance their causes in opposition to majority opinion. Abortion is only the point of their spear. If there were a referendum on access to abortion the forced-birth side would lose. But that’s not how public policy is made in the USA.

            1. What you are saying illustrates the sad fact that the American political system is semi-democratic at best. It is possible that a distinct minority can take over away from the citizenry what a majority considers fundamental rights.

            2. I don’t think that I’m missing the point. Even Republicans pay attention to voter opinions (they do, after all, have quite a good track record of getting elected). And the current opposition to abortion is stronger, a larger fraction of the population, more vehement, more entrenched, more long-standing — whereas opposition to same-sex marriage is petering out (while opposition to inter-racial marriage has already petered out).

              1. You seem unaware of things like gerrymandering. In Wisconsin, where I live, they get less than a majority statewide but control more than 60% of the legislature.

              2. In the first chapter of Garry Wills’ seminal book “Nixon Agonistes” (1970) the author makes the point that voters prioritize issues in multiple ways. This has at least two implications with respect to abortion. First, opinions on one issue, like Roe, is not a particularly strong predictor of voting behavior. Second, it has long appeared to me that the hard core antiabortion constituency (those who vote largely based on the one issue) is larger than the hard core pro choice one, and the Republicans have been more than willing to pander to them (the Democrats, on the other hand, tend to avoid the issue, preferring more amorphous ones like “the economy”). Add in a good dose of gerrymandering and voting restrictions, and you have a formula for minority rule.

            3. From the linked poll:
              “Even among people who say that abortion should be illegal in all or nearly all cases,. . . 41% say the decision should be between a woman and her doctor.”

              Ah, the wisdom of crowds.

            4. Any national random-sample poll will be composed largely of Californians, New Yorkers, Texans, and Floridians. But abortion is a state matter, by law (assuming as always the leaked decision is accurate and does not change—certainly hope not—from intimidation of Justices by the Left.) So to say majority opinion is being thwarted by anti-abortionists in, say, Louisiana, Arkansas, Mississippi, or Alabama, you have to know what percentage of residents of those states think abortion should be more liberal than those states currently allow. Do you know?

              It could well be that residents of those states are majoritanly content with their laws. If so, you will have to come up with some other reason than “thwarting majority opinion” to explain the backwardness of those states.

              1. “abortion is a state matter”

                If Republicans take control of the senate and house the next time we have a Republican president, it will no longer be a state matter. Similarly, if Democrats gain enough control of Congress (unlikely) to pass federal legislation, it will also cease to be a state matter. There is no comfort in “a state matter” for those of us who favor abortion rights.

      2. According to those same Gallup polls, ~75% of the US public opposes “no legal abortion”, supporting either full legal access (IIRC, 20-30%) or access with some restrictions (the plurality). So why would you find it implausible that the right-wing tail will wag the moderate conservative dog on these issues, given that in red states it is already doing so?

        I mean you do understand gerrymandering, right? By manipulating district boundaries, most red states now have legislatures and representatives that are far to the right of their constituents, because it is the GOP primary winners that win these elections, and in the GOP primary, the winning strategy is to go right. In these states, what your average citizen thinks about gun control, abortion, and SSM doesn’t matter, because election and reelection is based on winning over the vote of the far right.

        I would bet you money that, should the final Roe ruling be similar to the draft that’s been released, then in the next two years from that opinion at least one red state is going to challenge Obergefell citing Alito’s logic. Do you really think I’m wrong about that?

          1. Well let’s see if GB James and Jerry hash out the details of their bet, and if James’ position is sufficiently similar to mine, I might get in on that action…and suggest you join Jerry on his side of it too. 🙂

      3. Maybe but what about when the GOP attaches banning same-sex marriages to owning the libs and Dems? Then I’m not so sure it is safe from attack. Of course, a lot of what happens with same-sex marriage will be determined by whether overturning Roe hurts GOP’s performance in the midterm elections.

      4. According to Gallup polling, acceptance of same-sex marriage is at 70% …

        Yeah, well, according to polling, 64% of US Americans don’t want Roe v. Wade overruled either, and you can see how that’s working out.

        Your fundamental misapprehension here is in thinking that Republicans give a shit about majority rule — or that “Republican” still functions as a political party. The GOP no longer has a party platform or a coherent set of policy proposals. It is for guns and god (and, among its donor class, yooge tax cuts for fat cats), and it is against abortion. Beyond that, it is merely a media platform for trolling the Libs and taking potshots at anything Joe Biden or congressional Democrats wish to accomplish (as well as a brand acquired and wholly owned by Trump Inc.).

        Republicans know that their policies (such as they are) and their personalities are unpopular with the American people. The GOP has lost the popular vote in eight of the last nine presidential elections and routinely gets millions of votes fewer nationwide in congressional elections (even when it gains seats). Its leaders are concerned only with grasping and hanging onto political power for political power’s sake, through ruthless gerrymandering, voter suppression measures, its inherent advantage in the anti-majoritarian US senate, gaming the antiquated electoral college system, and manipulation of parliamentary procedures (such as those used to keep SCOTUS nominee Merrick Garland from getting so much as a meeting with congressional leaders for nine months in 2016, and then, four years later, ramming Amy Coney Barrett onto the Court just ahead of the 2020 presidential election even before Ruth Bader Ginsburg’s corpse was cold).

        So in trying to determine the likely course of action of the GOP, I would pay no more attention to popularity polls than Republicans themselves seem to do.

        1. You forgot one: Connecting issues to defeating the Dems. If the Dems are for it, the GOP are against it and the Dems must be defeated or the world will come to an end.

    2. I think, but that is just an opinion, that the denying of access of women to safe abortion is a greater issue than same sex marriage from several points of view.
      First there are the numbers, many more women seek abortion than gays seek marriage.
      Second, denial of access to safe abortion will result in serious mortality. Denial of same sex marriage much less so.
      And thirdly, forced birth would, IMMO, devastate the life of a woman even more than the denial of marriage would affect a gay couple. (No I didn’t say the latter is insignificant).
      The crux is Roe vs Wade, I just hope USians see that, and how the US came to that.
      The only potential silver lining I see is that the outrage at overturning Roe will be sufficient to overcome the gerrymandering later this year.

  3. That’s a great picture of Karolina. I love how she looks like the owl on her shirt. Also, I very much doubt that Hili is telling the truth.

  4. I don’t think it is a “Chicken Little” situation we’re seeing. This is because of the justification used in this decision. If the draft language prevails there is no reason to think that theocratically incited Republicans won’t move against access to contraception, same sex marriage, and other moral horrors they perceive. Asked twice, Missisissippi Governor Reeves refused to rule out doing just that. Louisiana Republicans are moving to define abortion as homicide. Governor Abbott in Texas has indicated a move against the requirement to provide public education for all.

    If “return it to the states because the constitution doesn’t mention it” prevails, there will be many rollbacks of rights in red states around the nation. Which is to say, I’ll take you up on that $50 bet, PCC[E], but we need to define the terms a little more clearly first.

      1. I’ll do that with two additional modifiers. 1) The language of the final ruling on Roe remains the essentially what was revealed in the draft, and 2) make it 4 years. Court processes move kind of slowly and it takes time for things to come into law, be challenged, and make it up through the system to the Supremes.

        (I really ought to hold out for one of a list of several possible reversals because we don’t know which issues will prevail when, but that would make the bet too clunky.)

  5. … abortion poses moral questions not pose by same-sex marriage (i.e. to a devout Christian, abortion is murder and same-sex marriage is not).

    No, it’s simply based on sodomy, an abomination before the Lord.

    I don’t think SCOTUS has any desire to reverse Obergefell v. Hodges, the decision legalizing same-sex marriage, since to do so would sow chaos across the land, given the number of same-sex couples that have been wed (or are planning to be wed) in reliance upon it.

    It bears observing, nonetheless, that in SCOTUS’s 1986 decision Bowers v. Hardwick, which upheld the constitutionality of state sodomy statutes, while such a statute was applied in that case to a couple gay guys (who were caught in flagrante delicto, in their own bedroom, by cops serving an arrest warrant), the Georgia sodomy statute at issue applied on its face to gay couples and straight couples, single and married alike. Many states still have such sodomy statutes on their books, although those statutes are now moribund and unenforceable given that SCOTUS’s decision in Bowers v. Hardwick was reversed in Lawrence v. Texas (2003).

    Lawrence was based on precisely the same constitutional right to privacy as Roe v. Wade and Casey v. Planned Parenthood. Accordingly, the overruling of those two cases vitiates the rationale for Lawrence v. Texas. Will that encourage legislatures to revivify the sodomy statutes some states still have on the books, or to enact new sodomy statutes?

    I wouldn’t put it past the legislatures of deep-red states. That could mean that while same-sex couples could get married under Obergefell, they might be prohibited from consummating those marriages. It could even mean that straight couples, single or married, could face prosecution for, shall we say, “playing the back nine” (if you know what I mean, and I think that you do).

    Were such sodomy statutes to make their way to SCOTUS, I don’t see any way the Court could strike them down consistent with the reasoning of (as opposed some obiter dictum in) Justice Alito’s draft majority opinion in Dobbs v. Jackson Women’s Health Organization. And, although, as I said above, I don’t think the majority of SCOTUS justices have any stomach for overruling same-sex marriage, keep in mind that it takes the vote of only four justices to grant certiorari to hear a case. The way I count, there are probably three justices who would jump at the chance to do so. And the way I count, there are six justices who think Obergefell was wrongly decided. (Keep in mind that Chief Justice Roberts wrote a stinging — for him — dissent from the original Obergefell decision.)

    So, although I think it unlikely, I don’t believe the possibility is entirely off the table, were the Court to have the issue thrust upon it.

    1. And Griswold vs. Connecticut might be in a similar position as Lawrence or Bowers. I.e. where our SCOTUS ultraconservative Catholics might want to avoid the confusion of overturning Obergefell, it would be very much in line with their own personal morals and very much in line with Alito’s Dobbs reasoning to declare that there is no constitutional right to prophylactics in the Constitution, and therefore the legality of them should be returned to the states. Heck, Catholics even think that the pill doesn’t prevent conception, it just prevents implantation. So Alito could even use his same “this is not like marriage, because it kills something” logic.

      1. Follow-up: attacks on Griswold have already started. AZ senate candidate Blake Masters is calling for the overturn of Griswold. From his campaign website: “Vote only for federal judges who understand that Roe and Griswold and Casey were wrongly decided, and that there is no constitutional right to abortion.” My bold.

        [He has that quote in a submenu that has no direct link, but to find it go to his website, expand point “3 Make America Free Again”, then expand point “Protect babies, don’t let them be killed,” and that’s where the quote is.]

        1. Jesus, I know Blake Masters is an empty suit, but I didn’t know he is so dumb as to think federal judges are elected by popular vote.

          Some of these soi-disant “strict constitutional constructionists” have clearly never even skimmed through Article III.

          I hope Mark Kelly beats him like a rented mule (not that I endorse animal cruelty in any respect).

          1. I wouldn’t put it past him to be that dumb, but I think we can charitably assume he means that if elected to the Senate, he would not vote to confirm competent judges Presidential nominees who think Griswold etc. are correctly decided.

  6. I just caution Jerry that he should reserve the right to give odds as necessary to attract action to the other side of the wager. As it is, I think the probability of reversal of those decisions is so remote as to be nonsensical but the bet is not arranged in such a way that I could take the money of all you Chicken Littles, so I have no incentive to bet. Jerry, on the other hand, risks having to pay off an unlimited number of bets should the risibly unlikely come to pass, with no losers except himself to finance the payouts.

    Remember, the bookie isn’t betting on the game, he’s making a bet on the Law of Large Numbers.

    The wild card is that Congress might do something to “codify Roe” or, alternatively, it might enact a national ban when it has the votes and presidential support to do so. I don’t know if the Congress has the Constitutional authority to wade into state-law territory just like that and I suspect neither do any of you bettors. That would change the political dynamic in state legislatures and make the question, and therefore the odds, much different from now.

    Finally, if the Dems pack the Supreme Court with four justices who promise to rediscover a right to abortion, Jerry will comfortably win all the bets no matter what the state legislatures do. A pro-abortion Justice will presumably also be so pro- sodomy, contraception, gay marriage, trans rights, CRT, affirmative action, and gun control. Would the extra four hacks have same the life terms as the current nine?

    1. Relax, I’m sure just like in the 2016 election case, only one or a few people will go to the lengths of setting up an official bet with him, all with his consent.

      I don’t know if the Congress has the Constitutional authority to wade into state-law territory just like that and I suspect neither do any of you bettors.

      Lots of people know and have talked about this. Congress can indeed pass a federal abortion protection law that would apply to all the states, even those states that don’t want it. “Federal laws that apply to all the states” is kinda their job description. Nothing prevents a future conservative Congress from repealing that law though. Also, nothing prevents a state from crafting a test case against it and appealing that test case to the current SCOTUS, where they could rule that this future federal law protecting the right to abortion is unconstitutional.

      Finally, if the Dems pack the Supreme Court with four justices who promise to rediscover a right to abortion, Jerry will comfortably win all the bets no matter what the state legislatures do.

      Well that possibility would be part of the bet. But as much as I am pro-choice, this is IMO a liberal pipe dream. Given Manchin and Sinema in the Senate and the likelihood that the Dems get whooped in the mid terms, I just don’t think the Dems are going to be able to pass such legislation. If they sweep the 2024 Presidency, House, and Senate, call me. Before that, I’d be gobsmacked if a 10th+ justice gets added.

      1. Congressional legislation must be rooted in one of the enumerated powers granted congress by Article I of the constitution. The enumerated power most often relied upon by congress — and congressional power is generally considered to be at its zenith — with regard to its authority to regulate interstate commerce under Article 1, Section 8, Clause 3 of the US constitution.

        This is due in part to our nascent nation’s having abandoned its original Articles of Confederation in favor of the US Constitution in large measure to give the national legislature power to regulate interstate commerce — the absence of which was seen as a major failing of the Articles of Confederation.

        From the New Deal through 1995, congress’s commerce clause powers were treated as essentially unlimited. More recently, right-wing justices have begun to question that power, first in striking down gun-free school zones in US v. Lopez (1995) and then in the litigation over the constitutionality of the Affordable Care Act — although some of these same justices saw fit to uphold the laws outlawing home-grown pot based on congress’s commerce clause authority in Gonzalez v. Raich (2005).

        1. Thank you for that, Ken. I was hoping you would weigh in on the Congressional remedy question because it is way over my head and I’m genuinely interested. Could Congress explicitly over-ride state criminal codes, though, with just the interstate commerce power, even it wanted to? That was the wheat-for-own-use case, wasn’t it?

          The states would surely appeal such a law, as you imply, and the national abortion exemption from state law would be quashed by the same Court that found no constitutional right to abortion.

          1. It pains me to say this, Leslie, since I’ve always held the Supreme Court in high regard. but, given the Court’s current composition, whether a federal statute on abortion would pass constitutional muster under the Commerce Clause could well turn on whether the issue reaches the Court as a statute guaranteeing a national right to abortion or as a national ban on abortion — which is to say, as a bill passed by Democrats or a bill passed by Republicans.

            The Roberts Court is doing damage to its reputation. No one understands that better than Chief Justice John Roberts himself.

            1. Some have suggested that the leak of the draft was done by Roberts himself as a desperate, and low probability, attempt to prevent it from becoming the Dodd decision.

              1. Who knows? But it doesn’t strike me at all to be Roberts’s style.

  7. I just saw John Oliver’s take on the whole Alito business. He recommends some new charities to add to your list: Ineedana dot com, The Brigid Alliance, The Lilith Fund, The Yellowhammer Fund.

    1. Hell, you want some chilling words from Alito about same-sex marriage, look no further than his dissent in Obergefell v. Hodges (which comprise the last seven and a half pages of the decision published here).

      Although, rest assured, Sam Alito has way too much respect for stare decisis to do anything about it now.

      Now, let’s talk about the bridge over the lower East River that’s up for sale.

    2. I checked out the tweet you linked to after posting the above and discovered that it sets out a brief excerpt from Alito’s Obergefell dissent.

      Apologies for the redundancy.

      1. And we also agree that it’s scary. I wonder how many of the other justices would go along with Alito’s theories. I suspect we’ll find out sooner or later.

  8. Same-sex marriage is more-or-less explicitly covered by the 14th Amendment. States have to offer equal protection to everyone. I will say, however, that it is not absolutely protected, in so far as states do not have to offer recognition of marriage to anyone in the first place. There is a libertarian argument that there should be no government recognition of marriage whatsoever, no benefits, nothing. Marriage licenses were first required in the US as a social control mechanism to prevent interracial marriage. So, as long as governments choose to continue offering marriage, it must be available to all adults (except curiously, people who are closely related).

    https://en.wikipedia.org/wiki/Marriage_license#Controversy_in_the_U.S.

    1. It was certainly not the original intent of those who framed or ratified the 14th Amendment that its Equal Protection clause would ensure a right to same-sex or interracial marriage, or even to the desegregation of public schools.

      So arguments based upon it wouldn’t carry any weight with the “originalists” on the current Court.

  9. Good to know about chocolate Easter bunnies. I think I prefer the Easter Bilby, introduced by conservationists in Australia to raise awareness of the bilby, a marsupial mammal being driven out by rabbits (as detailed in your book.)

    I regret to inform you that not only is the bilby endangered, so is the Easter Bilby. Cadbury has stopped making Easter Bilbies! We need to send a message that there’s interest in this. Australian readers: demand your stores stock Easter Bilbies! (Here’s a story from, whaddya know, ABC Radio Darwin, Australia.) https://www.abc.net.au/radio/darwin/programs/breakfast/easter-bilby/13840666

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