Roe v. Wade is history

June 24, 2022 • 11:09 am

Here’s the headline that we were fearing but expecting, especially given the earlier leak, but I suspect most of us are still depressed by it.

You can find the Court’s decision in Dobbs et al. v. Jackson Women’s Health Organization et al. here (Alito wrote the majority opinion).

And click below to read the NYT article:

The vote was, as we knew it would be, 6-3, and you can find the decision here. What will happen now is that each state will make its own ruling, and states may even take steps to prevent its residents from going out of state to get an abortion.

A quote from the NYT:

The decision, which echoed a leaked draft opinion published by Politico in early May, will result in a starkly divided country in which abortion is severely restricted or forbidden in many red states but remains freely available in most blue ones.

Chief Justice John G. Roberts Jr. voted with the majority but said he would have taken “a more measured course,” stopping short of overruling Roe outright. The court’s three liberal members dissented.

It’s a horrible day for America and especially for American women.  I will make just three points and let the readers discuss this.

1.)  Most Americans agree with Roe v. Wade. Of course, that doesn’t bear on its constitutionality, but you can make an argument that the right to privacy allows the government to legalize abortion. Here’s what CNN said an hour ago:

In a May CNN poll conducted immediately after the leak of the Supreme Court’s draft opinion, Americans said, 66% to 34%, that they did not want the Supreme Court to completely overturn its decision. In CNN’s polling dating back to 1989, the share of the public in favor of completely overturning Roe has never risen above 36%.

Just 17% of Americans in the CNN poll said they’d be happy to see Roe vs. Wade overturned, with 12% saying they’d be satisfied, 21% that they’d be dissatisfied, 36% that they’d be angry, and 14% that they wouldn’t care. Most Democrats (59%) and nearly half of adults younger than 35 (48%) said they’d be angry. And a 59% majority of Americans said they’d support Congress passing a law to establish a nationwide right to abortion, with just 41% opposed.

2.) For a laugh, read what the 6 conservative justices who killed this precedent said during their hearings when asked about it. To a man and woman, they either equivocated or invoked stare decisis, i.e., respect precedent. They were lying; they knew how they would one day vote to overturn it. But of course you are expected to lie if you want that black robe.

3.) Some of the laws made by the red states, like the one already in force in Louisiana, will not allow abortions even in cases of incest or rape: a palpably immoral decision. Only Ceiling Cat knows the various restrictions that the Republicans have in store for controlling women’s reproduction.

We’ll all have more to say about this in the coming days, usually involving cursing Roberts et al. but now just react, vent your spleen, or whatever. It’s 6-3 against real progress from now on.

Oh, and then there’s this for “originalist” Thomas:

123 thoughts on “Roe v. Wade is history

    1. The House can impeach them. It’s the same procedure as a presidential impeachment. So, the can be impeached in the House but won’t be convicted in the Senate.

    2. It’s happened but once in the 234-year history of this constitutional republic — Justice Samuel Chase in 1805. He was acquitted by the senate.

      1. Yeah, He should at least recuse himself from any ruling regarding Jan 6. Any non-SC Judge should. Are SC Justices above the rules?

  1. Could any lawyers reading comment on why this wasn’t contested based on the religious freedom guaranteed by the First Amendment combined with the Ninth and Tenth Amendments? Every argument against abortion rights is based on religion — it seems that restricting those rights is clearly in violation of the First Amendment.

    On a separate note, I’m surprised they released this opinion on a Friday. There might be less potential for violent protests if it were released on a Tuesday.

    1. The ruling says only that the constitution says nothing about abortion (which, to be fair, it doesn’t, nor does it say anything about “bodily autonomy”, nor, for that matter, does it actually declare a “right to privacy”).

      I don’t see how that declaration can be construed as a violation of the first amendment.

      1. Where personhood begins is necessarily a religious/philosophical view. To enshrine conception as the beginning of personhood into law is therefore foisting a religious view upon everyone and therefore violates the Establishment Clause.

              1. Nope, such a law doesn’t run afoul of the First Amendment, or nope, the current sextet of theocrats won’t find that it does?

        1. That’s quite thin ice you’re pogo-sticking on. Some (many, most? I don’t know ; not my continent.) states have effective rules for the end of personhood, as practised in decisions about turning off life support systems. Still contentious, and strongly argued over, particularly at the religious lunatic end of the wingnut spectrum. But there’s at least the potential for applying similar criteria (variations on “undetectable higher brain activity”) at the other end of life. How that would map onto weeks of development of the embryo, I’m not sure, but it would bring a pretty early limit, once they decide a suitable (to their ends) criterion with no obvious religious justification.
          Or, of course, they could just make “old age and disintegration” the only criterion for cessation of end-of-life care. There will be wingnuts arguing for that – there probably are already.

      2. The Constitution DOES say those things when the SC says it contains those things. And the SC HAS said it contains those things.

        There is no way to present this court ruling as anything other than a rogue radical court ignoring established precedent and national sentiment in order to further an activist religious philosophy by removing – for the first time – rights from the people.

    2. Regarding violent protests, I really doubt the conservative justices give a shit about that; they’ve already been shown to be radical and reckless. Someone else’s problem, and they all have tight security details (now).

      1. I wonder what the protests will look like if some future Court overrules District of Columbia v. Heller. At least as boisterous, I expect, except the protestors will all be strapped, or engaged in open carry.

    3. “Every argument against abortion rights is based on religion.”

      Not so. There is nothing inherently religious in the belief that fetuses are human beings. That human beings have souls might be considered a religious tenet, but that’s a separate issue.

      1. Ummm . . . why are atheists and agnostics at the top of the list of “faith categories” that don’t oppose abortion, while religious groups can go way behind them? See here:

        I’d like your explanation if you think that “there’s nothing inherently religious in the belief that fetuses are human beings”. I’m waiting. . .

        1. “I’d like your explanation if you think that ‘there’s nothing inherently religious in the belief that fetuses are human beings’. I’m waiting. . .”

          The key word in my observation is “inherently.” I consider the belief that fetuses are human beings to be a philosophical rather than a religious belief. The fact that many or even most religions subscribe to it doesn’t make it religious per se, since some atheists (e.g., also oppose abortion on the ground that fetuses are human beings with human rights. That’s all I meant.

            1. But it needn’t, not at the level of the law. We say a “child” becomes a human being when it has been fully delivered alive. Therefore abortion cannot be homicide (unless the fetus was injured, was born alive, and then died as a result of the injury.). But our law could just as easily say the child becomes a human being at any other clearly definable moment. “Viability” wouldn’t do, too vague, but ultrasound evidence of pulsatile blood flow through the fetal heart would do. The legislature could just so legislate. The individual legislators might be motivated by religion, or the views of their constituents, or the dictate of their party leader—the last being the principal motivator in Canada. Practically it doesn’t matter.

              The doctor willing to do an abortion need not care how the legislature came to decide when the ball of cells became a human being. She just needs to know up to what point she is allowed to abort, and after what point she isn’t.

              Our law doesn’t say a newborn human being has a soul. It just says that killing one is a crime. It could say the same about fetuses with heartbeats. But even when abortion was illegal, the crime wasn’t murder, because a fetus wasn’t—isn’t—a human being. The offence was simply procuring an abortion. They law doesn’t have to accord with any coherent morality or rights framework. We just have to obey it….unless the Supreme Court says we don’t.

              1. This is why the ultimate goal of the anti-abortion-rights movement in the US is a constitutional amendment conferring “personhood” on fetuses. If such an amendment were to be ratified, abortion would perforce constitute murder, since fetuses would be entitled to equal protection of law under the 14th Amendment.

      2. A belief that fetuses are human beings is a perfectly reasonable basis for a woman to choose to forgo an abortion and carry her pregnancy to term. It provides an inadequate basis to foist such personal views on pregnant women who do not share them.

        1. “It provides an inadequate basis to foist such personal views on pregnant women who do not share them.”

          Of course I agree with you, Ken. After all, I’m practically a dyed-in-the-wool libertarian.

      3. I beg to disagree. From a non-religious perspective there is no sentient being involved. So no reason to allow to bans on abortion. It is the religious that confer souls to fetuses, so yes it is very much religion driven.

        1. But most of fairly-secular Europe and Scandinavia has laws along the lines of abortion-on-demand up to some limit (12 to 24 weeks) and then not allowed after that except when medically mandated. So plenty of non-religious people do give status to late-term foetuses. (Though few non-religious people give status to early-stage embryos.)

          1. Yes, it is based on the realisation that becoming a person is a process. Of course, these limits on the reasons for allowing abortion are also kind of arbitrary, but they leave a lot of leeway. However, the idea that a soul enters the foetus at conception is a concrete wall. I note that some decades ago several denominations considered the ‘quickening’ (the moment the woman can feel the embryo moving) as the time of ‘ensoulment’ (not to mention the Biblical breath).
            I think there is no denying that opposition to abortion is primarily religiously driven.

          2. That could have happened in the States if the pro-choice faction had decided to demonstrate that abortion is not murder (many arguments which would work, at least in court if not in church) rather than casting it solely as a “my body my choice” issue (which for many of them somehow doesn’t apply when pornography or prostitution are involved).

      4. But the purported “fact” that fetuses have souls is, at root, the only argument the anti-abortionists can make when they argue that abortion is not allowed after the moment of conception. There is no other way to put it, not “potential,” not “pain and suffering” (no fetus before 24 weeks has a nervous system to feel pain, and no human in history has any conscious experience of life in the womb. If “pain and suffering” is what it’s about, then why should we not worry about the tremendous pain and suffering of hogs that are raised in hideous confinement for their entire lives?

        Because, the anti-abortionists believe, but won’t say, a hog doesn’t have a “soul” or is somehow otherwise “less than” humanity. They mean it doesn’t have a “soul.”

        1. CBE, do you think a human’s life, then, is no more worthy of protection than a hog’s because neither have souls? This is a defensible position—I’m not mocking it—but it would be a minority position in cultures that eat meat.

          Hogs aside, atheists believe killing newborn children is wrong (except during famines.). We say we don’t need God and souls to respect the lives and liberties of persons/human beings. So what happens at birth that turns a non-human that can be killed with impunity into a human that can’t? For me it’s easy: our law says exactly that. But what if you are trying to make new law? Why would an atheist necessarily pick birth as the point when killing becomes homicide? Why not earlier? Or later? Practicality for ease and consistency of enforcement? Or because once born, no other person has a competing life/integrity interest? (My own preference fwiw.)

          Abandoning the soul, scientifically obvious as that is, doesn’t avoid the practical problem of when life becomes something that the state must start protecting. And the legislature has to define it is a way that makes conduct unambiguously lawful or not lawful.

    4. Maybe the timing was aimed at distracting from the current hearings on the Trumpistas, Wouldn’t surprise me.

      1. The Supreme Court’s term runs from the first Monday of October through the end of June or first couple days of July. (The justices are always gone by the July 4th holiday.) There’s invariably a flurry decisions released near the end of the Court’s term, usually including the most controversial cases on the Court’s docket. So I don’t think there’s anything suspect about the timing of the release of this decision.

        1. Hence not suspect, I accept your authority in these matters, Ken, let us call it ‘convenient’ instead. In Hugh’s defence, I can understand that some, if not many, become mildly paranoid in the present political climate in the US. One would for less.
          (And note, more generally, it does not automatically follow that just because you’re mildly paranoid, they’re not after you).

  2. Further evidence that the US is mostly not a democracy, and has in large part already been taken over by an insurrection. Two issues—gun control and abortion—are both overwhelmingly popular but laws governing them have moved in the opposite direction, dictated by a radical minority.

    1. I was just contemplating this. Why can the majority not rule in the US? The only thing I came up with is that conservatives are motivated largely by fear. Fear of change in the status quo. While liberals are motivated by the possibilities of change to improve life. But fear is a more basic human emotion and therefor drives stronger action to achieve it’s political ends. I may be wrong.

      1. The Founders didn’t want majority rule, they wanted to establish a government that would protect individual liberty. In this case, SCOTUS has done the opposite by forcing one religious viewpoint on everyone.

        That’s not a good reason to turn to the tyranny of the majority, though. We should be fighting for more freedom, not less.

        1. Except the fact that the founders clearly did not care about individual liberties for certain classes of people. I definitely think that it is important to protect individual liberty, but I don’t think invoking the founders’ intent is a strong argument for why we should protect individual liberty.

        2. In this case, SCOTUS has done the opposite by forcing one religious viewpoint on everyone.

          What they’ve actually done is pass the issue to state legislatures. That’s pretty much the opposite of “forcing one viewpoint on everyone”.

        3. The constitution’s framers believed that there are inalienable rights beyond the purview of majority rule. Matters not implicating such inalienable rights are subject to majority rule via a representative democracy.

          Today’s Republican Party is opposed to majority rule not to protect inalienable rights, but to maintain its grasp on political power for power’s sake despite its own unpopularity. Hence, its ruthless gerrymandering, voter-suppression measures, manipulation of congressional parliamentary procedures, dependence on anti-majoritarian institutions, and tolerance for an attempted coup.

        4. I don’t think that’s accurate. The Founders had different ideas about it much like people still do today. As it turned out the issue was initially up to the States and most of them started out by having their state legislatures choose electors. However, that changed quickly and by the early 1800s almost all States selected their electors via popular election, as Hamilton and some other Founders thought should be the case.

          The differences between the Founders were a tension between the ideas that the choice of government leaders and their decisions should reflect the will (or sense) of the people, that certain rights should be protected from a tyranny of the majority, and fears that the public could easily be misled.

          Like most things about our government the Founder’s intent seems to have been to try and arrange some “checks and balances.” Majority rule, but with some features to try and prevent bad things that they feared could happen. To make things more complicated, the Founder’s didn’t reach consensus on all these issues, they reached compromises.

    2. The problem is that the Court is supposed to determine what laws are constitutional or unconstitutional, not what’s most popular. But in this case one can make a case for constitutionality of abortion. Their argument for concealed carry in New York was made on grounds of the Second Amendment.

      1. That’s correct, and to be fair the blame rests more on the legislative branch than the judicial, which has refused to codify abortion into law. In my above statement I was referencing the entire conservative movement, not just the judges, who are working to impose their repressive views on the majority.

        It’s also correct that the US Constitution doesn’t provide for majority rule, except in stating that the government can only rule by the consent of the people. In some cases, particularly in protecting minority rights, it’s necessary for the government to overrule majority sentiment, and that’s what the Bill of Rights was designed to do. But in the case of abortion, the conservatives had to invent an oppressed minority by designating an egg as a person from the moment of fertilization. That is a religious opinion being imposed on the majority.

  3. The only Justice to be impeached was Associate Justice Samuel Chase in 1805. The House of Representatives passed Articles of Impeachment against him; however, he was acquitted by the Senate.
    The Constitution places the power to determine the number of Justices in the hands of Congress. The first Judiciary Act, passed in 1789, set the number of Justices at six, one Chief Justice and five Associates. Over the years Congress has passed various acts to change this number, fluctuating from a low of five to a high of ten. The Judiciary Act of 1869 fixed the number of Justices at nine and no subsequent change to the number of Justices has occurred.

    1. Using those dates, the population has increased almost by a factor of 9 since the number was fixed. Perhaps appointing 70-80 justices is the only solution…

  4. Actually, the vote to overturn Roe was 5:4, not 6:3. Chief Justice Roberts concurred in the judgment only: he would uphold the Mississippi law but not overrule Roe. His reasoning tracks his questions during oral argument. “Viability” is not a necessary part of Roe/Casey, so he applies to “undue burden” test to *all* restrictions on abortion. The Mississippi ban at 15 weeks does not impose an undue burden because it leaves women “adequate time” to decide to have an abortion.

    1. Such opinions are usually counted as 5-1-3.

      Where at least five justice join the majority opinion, it becomes binding precedent.

      1. Sorry, Prof. Sherry, I posted the above comment before recognizing your name.

        You and I previously had a bit of a polite disagreement regarding the likely outcome of Dobbs on this site in this sub-thread.

        1. What an interesting sub-thread! How did I miss that?
          I note that “Because the conservative Justices don’t want to overrule Roe before the 2022 midterm elections, because that would create a backlash that would likely end Republican chances of taking back either the House or the Senate” did not take persistent high inflation and petrol prices (the things that really matter /s) into account.
          Hindsight is easy, of course, as is ascribed to many: “Predicting is difficult, especially the future.”
          Note, I still think your argument made very good sense, Suzanna. I still hope you are/were right about the backlash itself.

  5. I note that the ethically-challenged Thomas said nothing about Loving v. Virginia while producing his hit-list of rights to be overturned.

    1. I think the right to interracial and same-sex marriage can be independently upheld under the 14th Amendment’s Equal Protection clause.

      Then again, if this Court gets its way and overrules Lawrence v. Texas, it might be a felony for same-sex couples to consummate their marriages (or for straight couples to engage in anything but a quick hump in the missionary position with the lights out for procreative purposes only).

  6. I see that Thomas didn’t say that the Court should undo Loving v. Virginia, the decision that overturned the last state laws banning interracial marriage. By coincidence, Thomas is in an interracial marriage. If I were a cynic, I’d say that Thomas supports states’ rights . . .when they conform to Catholic doctrine.

    1. William Boecklen posted his comment above as I was writing mine.

      After contraception, divorce will be next.

  7. I support the policies determined by RvW, but not the means by which it was achieved. It should have been a Constitutional Amendment, or at the very least, federal legislation. I don’t expect the amendment to be implemented any time soon, though. I wonder at what point there was sufficient government support for the amendment.

      1. Enforcing reproductive rights via amendment of the US Constitution would have been better than Roe. It would have required 3/4 states’ agreement to repeal the amendment, much harder to pull off than getting 5 ideologically motivated justices on the Supreme Court. It also would have been on firmer legal ground than the substantive due process right to privacy jurisprudence. It probably would have failed like the Equal Rights Amendment. But I wish it had been tried.

        1. There is no need to amendment the Constitution to legalize abortion. All you need is just a) all states pass laws make it legal in each state, or b) the congress passes a law to make it legal in the whole country.

          1. All you need is just a) all states pass laws make it legal in each state, or b) the congress passes a law to make it legal in the whole country.

            Such laws are subject to repeal anytime the majority changes hands in a legislature or congress. The constitution, OTOH, is essentially forever. (It’s been amended but 27 times in the US constitution’s 234-year history — 10 in one fell swoop a couple years after the constitution itself was ratified, three in the aftermath of the Civil War, the last one of real substance 103 years ago when women were granted the right to vote, and not yet once in the 21st century).

            1. Such laws are subject to repeal anytime the majority changes hands in a legislature or congress.


              But can there be a situation in which the support for the ratification of an amendment is marginal? If so, wouldn’t an amendment be vulnerable to repeal as well? I’m not talking about repeal within a year, but within about a decade. (It is a genuine question; I don’t know, and I want to find out.)

              1. In the nation’s history, there’s been but one instance in which a constitutional amendment was repealed by subsequent amendment — when the 21st amendment repealed the 18th amendment’s imposition of Prohibition (ending a failed 14-year experiment that vastly strengthened the hand of organized crime in this country).

                The requirements in Article V of the US constitution that amendments be proposed by two-thirds majorities in both houses of congress and ratified by three-quarters of the states (or at a constitutional convention requested by two-thirds of the state legislatures) was designed to prevent such flip-flopping.

      1. I agree, darelle. The Repubs definitely know how to play the long game and so have caught the Dems flatfooted.

      2. The overruling of Roe v. Wade is the rightwing’s first culture-war victory after a series of losses dating back to the Sixties. It will undoubtedly whet their appetite for additional cultural revanchism.

    1. I’m sure many Americans are contemplating getting the f*&! out of here. Though it’s never as easy as it seems. I’m betting the biggest moves will be left-leaning people moving out of red states…especially those states that are hell-bent on becoming mini-theocracies.

    2. Appreciate the sentiment, Stephen. Have they been accepted to immigrate here, or is it just something you are contemplating?

      1. Ah, just something we’re contemplating, a dream at this point…”Oh, Canada! We stand on guard for thee.” 🇨🇦 (I learned your national anthem from attending many Chicago Blackhawks games in my younger years. 🏒)

        1. Ah. To immigrate as permanent residents you’ll need job offers or a credibly financed plan to start a business. Failing either of those, a suitably large capital sum that you can leave invested in Canada over and above what you need to fund your living expenses. We need that anyone seeking to immigrate will cheerfully produce more than they consume and particularly not be a drain on our tax-funded health care system. We specifically discourage older non-working people by setting the capital bar high enough to exclude all but the wealthy old who tend to be healthier. If your working children get “landed” first, they can sponsor their parents by bonding for anticipated health costs.

          Two minor quirks that many Americans find rancorously controversial. The census asks about citizenship, has for a century, and photo ID is universally required to vote.

          Few Americans actually do emigrate to Canada. We find it extraordinarily difficult to recruit American talent because of higher taxes and higher cost of living than in all but the most expensive American cities. I think the last bunch that crossed the border for political reasons would have been draft dodgers and deserters during the Vietnam War seeking asylum. That route is long closed by a Safe Third Country agreement. And home is home even when it seems hard to recognize.

          Bon aventure!

    3. I’m moving my family to Canada …

      If climate change warms things up a bit up there, I just might join you.

      I’ve grown accustomed to life down here in the subtropics. 🙂

      1. I’d like to, but, per Leslie’s reply above, practical considerations will probably prevent me from doing so 🥴

  8. This decision, totally unsurprising but still shocking, is reminiscent of Dred Scott (1857). In both cases, the Court was dominated by justices that did not represent the will of the majority of the populace. Dred Scott was a milestone on the way to civil war. It widened the sectional divide as this case will split the nation more on cultural and ideological issues. The nation is torn asunder with little prospect of reconciliation. Mutual hate and contempt is the norm. This decision may spark massive civil disobedience of the ruling and possibly violence by those that want to enforce the decision by gunpoint. One can only despair when there is no light at the end of the tunnel.

    1. Huh? Why would gunpoint be required to enforce the now operable state laws against abortion? No doctor will do abortions where they are illegal.* I don’t see where the guns have to come out. The Left can Burn, Loot, and threaten Murder all they want. That won’t pluck up the courage of a gynaecologist in Baton Rouge to do abortions as civil disobedience. I hope you aren’t inciting violence. That will not go well.

      You might want to listen to Phil Ochs singing “A Small Circle of Friends” before forecasting the apocalypse over this.
      * Dr. Henry Morgantaler actually did abortions openly back when they were illegal as an act of civil disobedience. He went to prison. After a long legal battle the Supreme Court of Canada declared our law unconstitutional (under similarly sketchy reasoning as Roe) and he was freed. But he at least had the prospect of vindication by our highest court to keep him going. A conviction of an American abortionist now under settled law would be unappealable.

        1. I think a Louisiana doctor convicted of performing abortion would find the law fully and firmly settled.

          1. In the pre-Roe days — especially in the days before New York state legalized abortion through the 24th week of pregnancy in 1970 — it was common for somebody to know somebody who knew a doctor who was willing to perform an abortion on the q.t. (The alternative, of course, was for a pregnant woman to take her chances with a non-professional back-alley practitioner.)

            The film I mentioned elsewhere in these comments starring Anamaria Vartolomei, Happening, provides a pretty good feel for what those days were like (albeit set in France rather than the US).

            1. Haven’t seen the movie. Set long before my time. A most likely female obgyn with two kids to raise today would have to tell her, “Your problem, M’mslle. I cannot let you make it mine. I didn’t fuck you. I cannot mother my children from prison and I cannot provide for them when I lose my licence because there is nothing I know how to do that pays anything close to medicine.”

              Of course there were doctors who would do a favour to a family. I always wondered how they got started. Like espionage perhaps. Do one for a nice envelope of cash from grateful parents, then the next one comes with the unspoken threat to out you for the first one. (Or spoken if you’re a bit thick and didn’t realize the hook was being set.). Then you’re the abortion doctor for the country club and for the sororities their daughters join. Throw in a few pregnant under-age mistresses and you can do OK, rationalize that it allows you to work in a free clinic pro bono a couple of days a week. If a girl comes in septic, mutters your name while delirious and questions are asked, “a quiet word if you will, Chief. He’s one of ours.”

              But abortion was always disreputable, lower caste work. They don’t want you for their private physician. If you get busted they don’t want to have to find a new one. Don’t even think of dating their daughters like other society doctors get to do. Pretty soon all you do is abortions, sort of like the OxyContin doctors whose practices are all addicts and dealers. They wish they could get out but they can’t, until one day it blows up in your face. The country club says, “MacMillan? Never heard of him.”

      1. Luckily the ‘medical abortion’ has meant abortion has become safer over the last decades. I foresee a flourishing black market in Mifepristone and Misoprostol. The latter (it being ‘underground’), of course, without good medical follow-up, makes it less safe again. But infinitely safer than coat hanger, knitting needle or douche bag.

  9. Their ultimate plan is a nationwide ban on abortions. I put part of the blame for this decision on Obama, who rolled over and let Mitch McConnell steal a Supreme Court seat. How ironic that states could also ban interracial marriages again.

    1. If the SC bans interracial marriages, Clarence will be in a quandary, I’d think. As would Ketani.

    2. We were all (well most of us) convinced that a Democratic candidate would win in 2016. I don’t particularly blame Obama for miscalculating. I still think the counting was ‘fishy’ in 2016. In four states, the exit polls showed a win for HRC, but the final result showed Trump to be the winner, in 3 cases well outside the MoE and in the fourth just within.

      Not to mention the more than a million voters purged (mainly ‘minority’ voters) by CrossCheck, discarded ‘provisional’ ballots, and a Russian smear campaign against HRC. If an election was stolen, it was the 2016 one, not the 2020 one.

  10. Many aspects of the US political order—e.g., the outsized role of the 9 black robes, the increasingly anti-democratic nature of the Senate, the unwieldy and undemocratic electoral college system—are all due to its deification of a single 18th century document. This in turn reflects the fact that the US political order was achieved by revolution—that word so adored on the pop-Left—rather than by incremental, evolutionary change. Of course, incremental, evolutionary change has occurred steadily since 1787—the Roe v. Wade ruling was an example—but these changes are always limited by, and sometimes subject to reversal by, appeal to that revolutionary holy document written on parchment by 39 men wearing wigs, breeches, and waistcoats.

    1. There is no doubt that the Constitution (the 1787 document and the shortly enacted thereafter first 10 amendments) is along with the Declaration of Independence a cornerstone of the nation’s foundational myth, viewed by probably a majority as nearing holy status, some going so far as Rusty Bowers stated in his testimony to the January 6th committee as divinely inspired. In fact, it was nothing more than the result of political deals made by the states that allowed the country to remain united (in a limited way) as it replaced the unworkable Articles of Confederation. It is now an archaic document that the country is burdened with in need of substantial revision. But, how so? This is the rub. There is no consensus on how it should be revised or replaced. If there were a new constitutional convention, the end product could be worse than what we already have. Thus, we are foredoomed to limp along with a document that serves to divide us rather than unite us. It is interpreted to justify anything (as the Bible) and emblematic of a country disintegrating.

    2. … that revolutionary holy document written on parchment by 39 men wearing wigs, breeches, and waistcoats.

      The ur-drag queen story hour? 🙂

  11. Having read Justice Thomas’s opinion concurring in Alito’s majority opinion, we can take some small solace that Thomas did not keep the writing of the majority opinion for himself (as he was entitled to do, as the senior-most justice in the majority). I assume this was because Thomas recognized that an opinion expressing his intemperate views might not have been able to attract the votes of four other justices to join that opinion, such as to make the opinion binding precedent in future cases.

  12. I guess at this point there are no illusions that America is actually a group of “United States”. There will be theocratic states and secular states. I hope politicians (like Biden) will stop pretending that there is any hope of reaching across the aisle in any meaningful way; it just makes the politicians saying such things look naive and out of touch. Instead, Biden et al. need to keep hammering that if Americans want real meaningful change, they’re going to have to elect more Democrats that are willing to abolish the ridiculous and anachronistic filibuster. Because I’m pretty sure that if Moscow Mitch gets the gavel back with another equally split Senate, he won’t hesitate to abolish the filibuster. Fun times.

    1. I’d blame Manchin and Sinema more than Biden, who would probably be happy to see the filibuster tossed.

      1. I agree…I don’t blame Biden for Manchin and Sinema. I’m saying we need to elect more dem Senators to make Sinema and Manchin obsolete. And I hope Biden keeps making this point.

        1. I blame voters who had the chance to send Sara Gideon, Theresa Greenfield, Cal Cunningham, and Jamie Harrison to the Senate, but didn’t. I donated to all of them! Boo….

  13. I wept and grieved the day the decision was leaked, so my emotions are not high today since this was expected. Nevertheless it is truly a day of infamy. I want to remain optimistic about my country, but I can’t feel it now. Many women will be endangered and our union will be further split apart by this decision.

    1. Emily, , I think the SC has declared some kind of war, if not on democracy, at least on women.
      However, I fear that high gas prices (incomprehensibly blamed on Biden) will trump any consideration for women. We are set back many decades

  14. The silver lining in this nightmare cloud is for the Democrats to wisely use it to defend Democratic majorities in Congress and capture control of state legislatures and governorships

  15. Yesterday, Gallup released a poll of Americans’ confidence in SCOTUS. The poll revealed a historic low of 25% confidence…and this poll was taken before today’s decision. I’m sure the 5 junior conservative justices don’t care, but Thomas probably doesn’t want his court to be the most loathed SCOTUS in history. Too bad he can’t do anything about it. What does SCOTUS do when a huge swath of Americans simply don’t accept the legitimacy of the court? I, for one, do not think this SCOTUS is legitimate. And I don’t need a BIG lie to inform me. It’s because Garland was shamefully blocked, Barrett was put on the court less than 2 WEEKS before the 2020 election where the POTUS who nominated her lost reelection, and all of Trump’s justices lied during their hearings (I know that’s something “they do to get a black robe”, but, for me, it doesn’t alleviate the stink of illegitimacy).

  16. “Most Americans agree with Roe v. Wade.”. I don’t think that is accurate at all. I suspect that most Americans support women’s bodily autonomy, including abortion. That is not the same as agreeing with, or even understanding, how the specific arguments in Roe relate to the constitution.

    I do think the best response for individuals is to make sure that our representatives understand that we see this as a civil rights issue. The people with the knowledge and the funds to do so should bring a better case to the court.

    1. “Most Americans agree with Roe v. Wade.”. “I don’t think that is accurate at all.”

      There’s no data that supports this assertion. People who support a woman’s right to autonomy don’t parse over the specific arguments in the decision. After 50 years, Roe has been the law of the land, and that one word encompasses what people interpret as a woman’s right to their bodies- especially when you think of gen xers and millennials on forward. You really think there is a large swath of people out there who don’t equate Roe with autonomy, because of some arcane bits of interpretation? I find that extremely far fetched.

      1. It seems like it is conflating things that are not necessarily equivalent. I think I am with the majority of Americans who feel very strongly that whether someone has an abortion is just none of my business.
        Yet I don’t have an opinion on the validity of the arguments made in Roe. I get that one is symbolic of and a way to secure the other. There are regulars on this forum that can keenly analyze the merits of Roe, but I am not one of them.
        RBG was quoted about Roe in Newsweek- “Roe isn’t really about the woman’s choice, is it?” Ginsburg told the University of Chicago Law School in May 2013. “It’s about the doctor’s freedom to practice…it wasn’t woman-centered, it was physician-centered.”

        I accept that my comment might be interpreted as nitpicking.

        1. Fair enough. For me it comes down to this: yesterday, women in America had autonomy over their bodies in the entirety of the United States, which also means (and it is usually glossed over) they had control of their future; today, millions of women simply became 2nd class citizens because they happen to live in these newly created theocratic-states. The suffering this will cause is simply incalculable. I don’t know why the American-right has a philosophy of cruelty, but it is apparent; I guess it’s not surprising since religion is pretty much synonymous with cruelty.

  17. From a viewpoint outside of the United States, it doesn’t surprise me that Roe vs Wade has been overturned.

    After all, the people supporting the overturn are going to run out of targets for their AR-15s in the future unless more are born. /Snark

    1. I have to add that I am personally against abortion, but recognise that my preferences have no bearing on the decision. It is not my body, and my opinion has absolutely no relevance. In the referendum my country held, I voted for abortion because my opinions had no relevance to the question. When the question arose in my own life, I shut up and simply supported my partner in the decision she made (she’s now a partner of well over 40 years).

      I am a doctor, but during training I realised that my skills were not complete without witnessing the procedure, so I was present in the operating theatre for several of the procedures. I assisted my consultant with everything else that was being done, but merely observed the procedure. Many of my colleagues refused to be present in the operating theatre in similar situations.

      Since becoming a specialist, I have referred several women for the procedure, because it is not my decision to make. The decision is purely that of the pregnant woman; I help her to the best of my ability because my opinion has no relevance to her decision. She has no need to know of my personal opinion, I am merely there to help her.

      And, in about the only belief I have (as opposed to opinion or knowledge), the outlook of myself or any other male has exactly zero relevance to her decision.

  18. Speaking of the legality of abortion, a couple weeks ago I saw a riveting, wrenching, and all-too-timely French film, Happening (“L’événement“), adapted from the semi-autobiographical novel of the same name by Annie Emaux, about a young French intellectual on the cusp of a university education who finds herself pregnant and searching for an illegal abortion in1960s Paris, with an outstanding lead performance by a French-Romanian actress I’d not heard of before, Anamaria Vartolomei.

    May be the best film I’ve seen all year. If you get the chance, it’s not to be missed. Here’s the trailer:

    1. At age 10, Ms Vartolomei starred as the Eva Ionesco character in “My Little Princess” (aka “Not Your Fucking Princess”) with Isabel Huppert as her abusive mother. I am delighted to see that she continues to act.

  19. I am saddened, though unsurprised. In particular by Thomas. There are three (four, maybe) justices that are openly originalist. Two of them vehemently so. They focus on the words, but neglect the framework, in particular when it is convenient to their desires. They contradict themselves, pick and choose in decisions, following this philosophy when it supports their beliefs, ignoring it when it doesn’t.

    I am sad.

    I am saddened that several of them made statements during their confirmation hearings that they now seem to give lie to. Than at least one of them has repeatedly given the impression of conflict of interest. That ignorant hate mongering seems to be a sure ride to office, both at the state and federal level, and mealy-mouth populism combined with fascism have been effective tools to gain power in what had been some of the most advanced societies in the world.

    I am sad.

    But I am old. Not terribly old. Not ancient. But old enough. I have no family left. I have few ties left outside of my professions, and fewer there as each year passes. Yet still, I am sad. Not for my kind, for I have none.

    For I am not amoral and feel kinship to all people and do not want to leave a world unfit for their children, and their children’s children, unsafe, hateful, without hope for even more of humanity than today, without hope for more than even eighty years ago, one hundred years ago.

    I am too old to breathe tear gas again. Or to run when armed drunks attack a gathering that had been peaceful moments before. I can not rise in anger any more, nor can I rise to anger.

    But I can still make my elected officials know my thoughts, and I can vote (for now, at least), and I can still make myself heard in other ways. This tempers my sadness.

    The discussions here have been interesting, slightly broadening, maybe, but haven’t shed light on how to productively fight the intentional destruction of the institutions that supported our society (not just the USA, but much of the world) and the intentional destruction of belief in the viability of those structures.

    Now I will go cuddle the cat that owns my home, as that will be productive.

    1. Your comment touched my heart, Enl. I am also old, although my children are still too financially and emotionally dependent on me to afford myself more than small moments seeking peace with a family pet. Especially when that pet is a parrot who wouldn’t think twice about biting my nose off. 🙂

      I wish for the blessings of peace in your life, my friend, however they may come.

    2. At recent protests, I found myself now being seen as a little old person who might need help if things get out of hand. (My feelings/situation are similar to yours.) So I now walk with the small children, where I could possibly be useful in protecting them.

      I’m long past discussions, I just want to help. Folks in Austin, TX seem to be leading the battle via the internet, publicizing abortion pills availably and instructions:

  20. “God made the decision.” – Donald Trump

    God should have made the decision to miraculously prevent unwanted pregnancies and wanted pregnancies with severely maldeveloped fetuses from occurring, because then there wouldn’t be any (deliberate, unnatural) abortions anymore. By doing so, God would make both conservatives and liberals happy.

    1. God also made the decision for the insurrection of 1/6. And he is giving peace and comfort to those who are now answering for their actions before the 1/6 subcommittee and in criminal courts, at least those who didn’t beg for and receive last minute presidential pardons. It’s comforting to see such saints in true legal peril for their obedience to God, just as the apostle Paul rejoiced when he suffered for his faith.

      May they all suffer for their faith. The more the better.


  21. Sadly a large part of this was made possible by Bill Clinton. I’ve always been staggered that Clinton, who had cunning and savvy to spare, missed the obvious point: the two SC justices he nominated during his eight years were both older than the two nominated by his predecessor, Bush 41, and thus likely to need replacing before them (not just older at the time of their appointment, but older altogether, and thus *even* older at the time of their appointment). That’s just inept, and it’s sheer luck that Souter (one of Bush’s) retired under Obama. That luck sadly ran out with RBG.

    1. Clinton’s two appointees, RBG and Stephen Breyer, served for 27 and 28 years, respectively.

      That may be dumb luck. But it wasn’t dumb luck that Justice Souter retired under Obama. By the time Souter retired, he was considered a stalwart of the center-left, and anathema to the Right. His nomination, and the Right’s near-death experience with Dubya’s withdrawn nomination of Harriet Miers, are the primary reasons that Republican nominees since then have been vetted and re-vetted by right-wing groups like the Federalist Society for ideological correctness, then field-tested on the lower federal bench, before they can pass muster for a seat on SCOTUS.

  22. From a non US view-point it seems incredible that the Supreme Court should be such a politically partisan body. Given that SC judges are appointed for life this gives enormous enduring influence to Presidents who are lucky enough to get to appoint one or more justices during their term in office.

    Separation of judicial and executive functions is a vital part of maintaining the rule of law but the US system seems to weaken that separation at the very top of the judicial system. That said, the present conservative government in the UK – with its large majority in the House of Commons, seems to be intent on undermining our own separation of executive and judicial functions. Dominic Raaab the Minister for Justice and a former practicing lawyer is keen to assign powers to ministers to ‘correct’ decisions of the courts that they do not like/agree with.

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