Laurence Tribe on why the Dobbs decision was wrong—and based on religion

September 1, 2022 • 11:00 am

Laurence Tribe, a Harvard Law School professor once thought to be a future nominee for the Supreme Court (too liberal, I guess), has written a comprehensive attack on the Dobbs decision of the Court—the decision that overturned Roe v. Wade.  Tribe is an expert on American Constitutional law (in fact he wrote the definitive book on the subject), so he knows his onions. And his critique of the majority decision is devastating, showing that it’s not only politically based and rests on shaky legal arguments, but allso rests firmly on Christianity.

It’s a long article, and not always an easy read (Tribe isn’t a master of lucid prose), but it’s well worth perusing, for it’s quite convincing that Alito’s majority argument for overturning Roe (“there’s nothing in the Constitution conferring a right to abortion”) is bogus.

The article, despite being in the New York Review of Books, is free; click below to read it.

I’ll just put what I see as Tribe’s main points in bold below. Indented bits are (usually) quotes from the article.

The Ninth Amendment reserves unnamed rights as protected by the Constitution, and the Fourteenth Amendment  protects deprivation of “life, liberty, and property without due process of law.” These together protect the right to abortion. 

Here’s the Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

And the Fourteenth (section 1; the “Liberty Clause”): “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Tribe’s take:

That “the Constitution makes no express reference to a right to obtain an abortion,” a point made as though it were some sort of discovery, in no way establishes that the Fourteenth Amendment’s protection of “liberty” from government deprivation “without due process of law” excludes control over one’s own body, not to mention the course—indeed, continuation—of one’s life. On the contrary, the Ninth Amendment’s explicit instruction that the “enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” rules out any claim that the Constitution’s failure to list the right to bodily integrity among its “enumerated” protections excludes that right from those “retained by the people.”

. . . Conspicuously absent from Dobbs is any coherent legal analysis—or anything that deserves to be called “analysis” at all—of why someone’s right to avoid compelled pregnancy, involuntary childbirth, and forced parenthood is not an essential part of the “liberty” protected by the Fourteenth Amendment (and perhaps even of the freedom from “involuntary servitude” protected by the Thirteenth). As a result, it’s the Alito opinion in Dobbs, and not Justice Harry Blackmun’s opinion in Roe, that is “not constitutional law and gives almost no sense of an obligation to try to be.”

Put simply, Dobbs is a fiat issued by five justices simply “because they could.”

As for the Ninth not conferring any right to abortion,

Although many observers criticized Alito’s leaked draft opinion for failing even to mention the Ninth Amendment, the opinion as finally released was almost defiant in its dismissive treatment of that amendment’s rule of construction.

The only thing the Court says about it in Dobbs is that “the abortion right” is not itself “founded…in the Ninth Amendment’s reservation of rights to the people.” But that is a wholly irrelevant observation and confuses the category of “rights” with the category of rules about how to read a text dealing with rights. Nobody has ever seriously claimed that the “abortion right,” or indeed any substantive right, could possibly be “founded” in a rule about how to read the Constitution. The Ninth Amendment is not the “foundation” of any group of rights but a directive about how constitutional decisions about rights are to be made. Searching for rights in it is akin to searching for actual pieces of lumber in a manual on how to build a house.

And a bit more, concentrating on Kavanaugh’s decree that the court would leave each state to decide for itself, and invoking a nonexistent “right to interstate travel” as being in the Constitution:

Explaining why the Liberty Clause should prioritize, say, the freedom of speech or of religion, or the right to bear arms for self-defense, or the right to exclude the military defenders of the nation from one’s home “in time of peace” over the no less basic freedom to determine what is to become of one’s own body would be no mean task. After all, those rights are protected from infringement by the states not because the text of the Constitution requires it. The Bill of Rights restricts only the federal government. The states cannot infringe those rights because the Supreme Court has said they are fundamental rights whose infringement, like the right to abortion before Dobbs, would violate the Fourteenth Amendment’s Liberty Clause.

Particularly puzzling is Justice Kavanaugh’s insistence, in his separate concurring opinion, that the Court’s decision to let each state decide for itself whether and to what degree to protect the right to end a pregnancy will leave individuals who live in states where abortion is criminalized entirely free to travel to other states to obtain abortions without penalty. How does he know that? Because, he says, of “the constitutional right to interstate travel.” But no such right is expressly mentioned in the Constitution, any more than is the right to control what goes on in one’s own body. Both rights are at best implicit in the Constitution, not enumerated anywhere in its text. This is not to denigrate the existence or significance of the right to interstate travel, a long-settled part of what knits the states into an inseverable Union, or to undermine its protections for those helping women escape the clutches of states that ban abortion and make criminals of all those who facilitate it. It is simply to expose the glaring inconsistency in Justice Kavanaugh’s analysis, without whose vote there would have been no majority to overrule Roe.

This whole kerfuffle shows the deficiencies of “originalism”: that judgments should be made based on what’s explicitly stated in the Constitution or what would have been understood when it was written.  There are simply too many things that have changed since the Constitution was written, things that could not have been anticipated by its authors.

The Court’s insistence that Roe had “no sound basis in precedent” is bogus.  


To support the idea that Roe and the 1992 reaffirmation of its core holding in Casey had no “sound basis in precedent” and could thus be safely overruled without causing damage to the fabric of the law or undoing the web of other decisions on which people had come to rely, the Court in Dobbs simply listed a series of rights, as though it was self-evident that they bore no similarity to the right to decide whether and when to terminate a pregnancy. These included the rights “to marry a person of a different race,…to marry while in prison,…to obtain contraceptives,…to reside with relatives,…to make decisions about the education of one’s children,…not to be sterilized without consent,…and in certain circumstances not to undergo involuntary surgery, forced administration of drugs, or other substantially similar procedures,” as well as the right “to engage in private, consensual sexual acts” and “marry a person of the same sex.”

But merely noting, as the Court did, that those rights did “not concern abortion” obviously fails to establish that they are not analogous to the right to reproductive autonomy. It is thus difficult to take seriously the statement by the Dobbs majority that its repudiation of the right to abortion will not ultimately serve as a precedent to rescind some or all of these seemingly similar rights, especially given the explicit statement in Justice Thomas’s concurrence that they are without foundation and that future litigants should attack them on the basis of Dobbs.

Tribe adds that justices in the Dobbs majority have expressed opposition to other rights, such as the right to marry guaranteed by Obergefell v. Hodges, and those “rights”, too, are endangered. Though the majority opinion says that the Dobbs decision is a one-off, “limited to the present circumstances”, that’s probably not true. As the minority opinion notes, ““Either the mass of the majority’s opinion is hypocrisy (“duplicity”, as Tribe calls it), or additional constitutional rights are under threat. It is one or the other.”

The Court’s ruling that states can ban all abortion as one option is explicitly a religious view, and thus violates the First Amendment. 


Whatever anyone might have thought in 1868, when the Fourteenth Amendment was adopted, it has since become clear that “conception,” as I wrote in 1973 when defending Roe v. Wade, is “a complex and continuous process” of cell division followed by chromosomal recombination and in no sense “an objectively definable event”:

Although none [can] deny that the developing fetus, and indeed the unfertilized ovum, represent[s] “potential human life,” and while all [can] agree that the infant at birth [is] fully and independently a human being and entitled to treatment as such, the question of when the mysterious discontinuity [is] crossed—when the embryo or fetus “bec[omes] fully human”—[cannot] be discussed in secular terms at all. In fact, the only bodies of thought that have purported in this century to locate the crucial line between potential and actual life have been those of organized religious doctrine.

The attribution of metaphysical and legal status to a developing embryo from some particular point in time represents not a discovery of an empirical datum about reality but a choice, all but invariably grounded in one or another religious tradition or teaching, about what signals the creation of an individual human soul.

And this means that state rulings that “personhood” or “fetal rights” begin at conception are also religious views and abrogate the First Amendment (remember that members of other religions have insisted that the Dobbs decision violates their rights).  Here’s something Tribe wrote in 1973 to defend the decision in Roe v. Wade:

Although none [can] deny that the developing fetus, and indeed the unfertilized ovum, represent[s] “potential human life,” and while all [can] agree that the infant at birth [is] fully and independently a human being and entitled to treatment as such, the question of when the mysterious discontinuity [is] crossed—when the embryo or fetus “bec[omes] fully human”—[cannot] be discussed in secular terms at all. In fact, the only bodies of thought that have purported in this century to locate the crucial line between potential and actual life have been those of organized religious doctrine.

And what he writes now:

 It is little wonder that justices who view every instance of conception as a holy event would be inclined to treat the “moment” a new life is present in a woman as the moment from which any state is entitled to criminalize the termination of that life. It is but a short step from such a view to the dogma that the “moment of conception” marks the point at which any state may be constitutionally obligated to treat that life’s termination, whatever the reason, as a terrible crime. The Dobbs “compromise” making it a matter for each state to determine is no more consistent and stable than the 1857 Dred Scott compromise making the status of slaves and their descendants a matter for states to decide.

It is a fair inference from the First Amendment’s ban on “establishment of religion” that the Constitution should not be hijacked by any primarily religious movement or by a political movement that exploits religion as a Trojan Horse. Yet Dobbs followed—and embodies the approach of—a series of Supreme Court decisions systematically eroding the sometimes-maligned “wall” of separation between church and state. The current Court’s unmistakable determination to breach that barrier to government endorsement of particular religious beliefs reached its apex this past term in a ruling that treated a government employee’s “proselytizing on government property during a public school function” as “private, personal and quiet” when it was anything but, and was indeed highly coercive.

The theocratic movement to advance religiously based governance—the antithesis of genuine religious freedom—has installed as the law of the land the essentially unreasoned position advanced in Dobbs, replacing the compromise between life and liberty embodied in Roe and Casey with the absolutist claim that the presence of a potential life instantly and automatically transforms a woman’s body into a vessel that governments are free to regulate as they see fit. This is unlikely to be the final step on the treacherous path the Court has chosen.

These three arguments in tandem (particularly the last one) make a compelling case that not only is the right to abortion not specifically in the Constitution, but didn’t need to be to be Constitutional, fpr similar rights have been affirmed as Constitutional despite their similar status to the “right to abortion.” As a strict First Amendment person, I also find the religious argument compelling. The Dobbs decision implicitly affirms a religious view. That view is not unique to Christianity, but it’s still religious, and privileging religion over nonreligion is itself unconstitutional.

The Dobbs decision was wrong from the get-go, and Tribe’s article is the most cogent one yet to show us why. Given the youth of the conservative justices, it’s likely that equally wrong decisions will follow, giving bogus Constitutional justification.

At the end, Tribe mentions a speech recently given by Alito mentioning the notion that “religious liberty is worth special protection.” Nope, it’s not, for secular liberty, with its philosophy not based on the concept of a “soul,” is worth just as much protection. One cannot base laws on ideas that are manifestly bogus, like a soul, and rest solely on unevidenced religious views.

The solution? Tribe notes that he reluctantly thinks that the court should be enlarged to thirteen judges, but he also recognizes that this is not politically feasible. As for me, I see no solution at all. Mitch McConnell, as well as RBG, who refused to retire, have produced this shameful situation.

h/t: Darrell

The leaked Roe decision: culture war or theocracy?

May 5, 2022 • 10:45 am

Jennifer Rubin, a centrist op-ed columnist for the Washington Post, just produced a piece about the leaked Supreme Court abortion decisions. According to reader Steve,  the piece is

“One of Rubin’s best, IMO. She brings the key issue front and center, viz. white evangelical Christian supremacy.”

Click the screenshot to read:

Rubin first discards the notion that betokens a “culture war”:

The livid reaction from progressive advocacy groups and Democratic politicians across the country about the potential evisceration of abortion rights — and possibly others protected by the 14th Amendment — should tell the media this is not simply about “culture,” nor is it a “war.” It’s a religious power grab by justices who, according to at least two female Republican senators, dissembled under oath about their intentions regarding Roe. The Senate Judiciary Committee should hold hearings and call GOP Sens. Susan Collins (Maine) and Lisa Murkowski (Alaska) to testify. If those senators were really duped, they should consider advocating for extreme measures, including impeachment and a filibuster exception to codify Roe.

Well, that’s a distinction without much of a difference, for one could conceive of it as a “culture” war if evangelical religion is a form of “culture” (it is), and a “war” is a “battle for power” (it is). But to think that Collins and Murkowski were duped by justices Gorsuch and Kavanaugh assumes that these Senators were sufficiently stupid to believe the assertions of conservative nominees for the Court. Alternatively, one could suggest that those justices—and Barrett—really were keeping an open mind about Roe and could have changed their minds about abortion after they got on the bench.

The latter hypothesis is insane, and the former unbelievable. The most parsimonious hypothesis is that Collins and Murkowski were playing to their audience as “liberal” Republicans, and knew exactly what they were doing.

But put that aside, for Rubin makes a larger point that rings true:

It’s important to identify the nature of the threat to Americans to understand the reaction that would likely follow a ruling along the lines Alito laid out. A Supreme Court decision that would criminalize abortion, eviscerating the ambit of privacy and personal autonomy afforded by the 14th Amendment, would expand governmental power into every nook and cranny of life — from a doctor’s office in Texas treating a transgender child, to intimate relations in a bedroom in Georgia, to a pharmacy counter in Ohio. Will government dictate a set of views that have not had majority support for decades?

The right-wing justices and their supporters appear ready to reject one of the Founders’ core principles: that religion shall not be imposed by government edict.

Other Republicans have given away the scheme. In his 11-point plan, Sen. Rick Scott (R-Fla.), the head of the National Republican Senatorial Committee, declares: “The nuclear family is crucial to civilization, it is God’s design for humanity, and it must be protected and celebrated. To say otherwise is to deny science.” Put aside the utter incoherence (is it God or science?): The senator is explicitly calling for state power to be used in the service of his religious beliefs.

And it’s no slip of the tongue. As would a number of Supreme Court justices, Scott would impose religious views while refusing to admit his views stem from a particular religious perspective. “Abortion kills human children,” Scott pronounces. “To deny that is to deny science.” Actually, he wants to mandate conduct based on the religious view that humanity/personhood starts at conception.

I appreciate that if you think abortion is murder, you can be impelled to make your religious views into law. But there are many religious and secular people alike who see nothing sacred that begins when a sperm unites with an egg. The zygote isn’t sentient, doesn’t feel pain, and so on. The view that zygotes are “human children” is like saying an acorn is an oak tree. The only difference is that zygotes and not acorns are thought to have souls. The Supreme Court’s decision is an implicitly religious one.

Rubin again pronounces that “This is not about ‘culture.’ It is about appropriating state power to enforce theocratically driven positions.” She keeps saying this again and again, as if the folding of the draft decision into the “culture war” narrative is a gross and harmful mischaracterization by the press. But really, Americans aren’t dumb enough—even those who voted for Trump—not to know that, at bottom, this is a religiously based decision.


In sum, the media’s “culture wars” shorthand is an evasion, a refusal to recognize that what is at stake are the rights and lives of those without the resources or power to defend themselves (e.g., travel out of state for an abortion). The Supreme Court is poised to roil the very essence of our constitutional tradition and strike at the heart of a pluralistic democracy. Let’s call it what it really is: state-enforced theocracy, or, if you prefer, religious authoritarianism.

DUHHHH!  I can’t say whether this is one of Rubin’s best columns, as I don’t read her often, but she’s belaboring the obvious.

What this decision should do is inject new energy into secularism via organs like the Freedom from Religion Foundation and the ACLU (if the latter has any energy left after its fervent wokeism). The highest law in the land is now mediated by a pack of evangelical Christian conservatives, bent on enforcing their religion on the rest of us.

I am starting to wonder if the Court will eventually overturn the “settled law” that deems it unconstitutional to teach creationism and its gussied-up cousin, Intelligent Design, in the public schools. I used to think that really was settled law, but now I’m not so sure. Next to abortion, the issue of evolution is small potatoes. But overturning the Dover and Epperson v. Arkansas cases, among many others, would be a step back into the dark ages: a repudiation of settled science in the name of religion.  (All creationists are, at bottom, motivated by faith.)

I now think it’s only a matter of time before some benighted but devious Southern state passes an “equal time” or “pro-ID” law. Before that happens, let this statement, made 97 years ago by Clarence Darrow during the Scopes trial, be our clarion call:

“If today you can take a thing like evolution and make it a crime to teach it in the public school, tomorrow you can make it a crime to teach it in the private schools, and the next year you can make it a crime to teach it to the hustings or in the church. At the next session you may ban books and the newspapers. Soon you may set Catholic against Protestant and Protestant against Protestant, and try to foist your own religion upon the minds of men. If you can do one you can do the other. Ignorance and fanaticism is ever busy and needs feeding. Always it is feeding and gloating for more. Today it is the public school teachers, tomorrow the private. The next day the preachers and the lectures, the magazines, the books, the newspapers. After a while, your honor, it is the setting of man against man and creed against creed until with flying banners and beating drums we are marching backward to the glorious ages of the sixteenth century when bigots lighted fagots to burn the men who dared to bring any intelligence and enlightenment and culture to the human mind.”

The Supreme Court has already overturned Roe v. Wade!

May 3, 2022 • 8:00 am

I must rush off the boat, but must note this disturbing occurrence. Read Jean sent me a NYT article noting that the U.S. Supreme Court has already written the draft of an opinion that would overturn Roe v. Wade’s decision about abortion. This draft was obtained by Politico, and the link to that draft is in a New York Times article that is giving updates.

From the NYT:

WASHINGTON — The Supreme Court has voted to strike down the landmark Roe v. Wade decision that has guaranteed the right to abortion for nearly a half-century, according to a leaked draft opinion from February published online Monday night by Politico.

In the draft opinion, written by Justice Samuel A. Alito Jr., a majority of the court voted to overturn Roe, according to Politico. Justice Alito called it wrongly decided and said the contentious issue, which has animated political debates in the United States for more than a generation, should be decided by politicians, not the courts.

“We hold that Roe and Casey must be overruled,” Justice Alito writes in the document, labeled the “Opinion of the Court,” referring to a second decision that reaffirmed Roe. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

The draft posted by Politico is consistent with the Supreme Court’s published opinions in ways large and small, including structure, length, typography and how legal citations are rendered. Its assertive and sometimes slashing tone reads very much like other major opinions from Justice Alito.

The release of the 98-page document is unprecedented in the court’s modern history: Early drafts of opinions have virtually never leaked before the final decision is announced, and never in such a consequential case. And early drafts of opinions often change by the time the decision from the court is announced.

Shortly after the article was published Monday night, Politico’s editor in chief, Matthew Kaminski, and its executive editor, Dafna Linzer, sent an email to newsroom employees emphasizing its authenticity. In the memo, Mr. Kaminski and Ms. Linzer said that the article underwent “an extensive review process,” describing it as “plainly news of great public interest.”

Asked for reaction to the apparent leak, a Supreme Court spokeswoman said the court had no comment. . .

There’s a lot more at the site.

We all knew this decision was coming, and I haven’t yet read the whole draft, but if this is issued as is, the problem of abortion will devolve to individual states, and you know what that means. I had clung to a thread of hope that the court would abide by stare decisis, but that is not to be—precedent means nothing to this ultraconservative court.

I can’t help but think that a court like this would, besides loosening gun control even further, also be capable of overturning another precedent: preventing the teaching, on First Amendment grounds, of creationism in the public schools.


Amy Coney Barrett and her membership on the board of anti-gay Christian schools

October 22, 2020 • 1:00 pm

We all know that there was nothing that Amy Coney Barrett could have said in her Senate hearings that would have barred her from taking up a Supreme Court seat with the enthusiastic approval of the GOP. And no, I don’t think her expressed religious views should be ignored completely—not if a reasonable person could think that they would affect her rulings as a Justice. If someone really believes that there is a God-given behavior or morality that cannot be violated, can we really trust them to put aside a deeply held religious faith, like Barrett’s, and vote for a law that contravenes God’s will? I think we have enough doubt about Barrett’s behavior and previous statements to call her legal objectivity into question.

But of course it doesn’t matter. She’s ready to warm RBG’s empty chair.

As if we needed another reason to be scared about Barrett and the conservative court rolling back decades of social progress, the Associated Press has a long piece detailing Barrett’s three-year history as a trustee of three private Christian schools with an explicitly anti-gay policy. No gay teachers can teach there, and no kids from same-sex partnerships can learn there.

According to the courts, these policies aren’t illegal, as the schools Barrett supervised were private and religious. But it doesn’t speak well about how she’ll rule in cases involving gay rights, especially because she refused to answer, during the hearings, whether she agreed with the Court’s ruling in Obergefell v Hodges, the case that legalized same-sex marriage. That case was decided 5-4, but would now be decided, based on the Court’s upcoming composition, against same-sex marriage.

Click on the screenshot to read; it’s a long piece but well worth reading.

I’m going to quote instead of paraphrase as I’m busy squabbling with misguided Trump sympathizers and Biden critics in the comments on my previous post, and I also have ducks to feed.

Supreme Court nominee Amy Coney Barrett served for nearly three years on the board of private Christian schools that effectively barred admission to children of same-sex parents and made it plain that openly gay and lesbian teachers weren’t welcome in the classroom.

The policies that discriminated against LGBTQ people and their children were in place for years at Trinity Schools Inc., both before Barrett joined the board in 2015 and during the time she served.

The three schools, in Indiana, Minnesota and Virginia, are affiliated with People of Praise, an insular community rooted in its own interpretation of the Bible, of which Barrett and her husband have been longtime members. At least three of the couple’s seven children have attended the Trinity School at Greenlawn, in South Bend, Indiana.

The AP spoke with more than two dozen people who attended or worked at Trinity Schools, or former members of People of Praise. They said the community’s teachings have been consistent for decades: Homosexuality is an abomination against God, sex should occur only within marriage and marriage should only be between a man and a woman.

Interviewees told the AP that Trinity’s leadership communicated anti-LGBTQ policies and positions in meetings, one-on-one conversations, enrollment agreements, employment agreements, handbooks and written policies — including those in place when Barrett was an active member of the board. Trinity Schools Inc. is a tax-exempt non-profit organization that receives some financial support from government-funded tuition voucher programs, according to its federal tax returns.

The AP tried to dig deeper, but were rebuffed by the White House, while people who know Barrett are also scared:

The AP sent detailed questions for Barrett to the White House press office. Rather than providing direct answers, White House spokesman Judd Deere instead accused AP of attacking the nominee.

“Because Democrats and the media are unable to attack Judge Barrett’s sterling qualifications, they have instead turned to pathetic personal attacks on her children’s Christian school, even though the Supreme Court has repeatedly reaffirmed that religious schools are protected by the First Amendment,” Deere said in an email.

Nearly all the people interviewed for this story are gay or said they have gay family members. They used words such as “terrified,” “petrified” and “frightening” to describe the prospect of Barrett on the high court. Some of them know Barrett, have mutual friends with her or even have been in her home dozens of times. They describe her as “nice” or “a kind person,” but told the AP they feared others would suffer if Barrett tries to implement People of Praise’s views on homosexuality on the Supreme Court.

Should we be scared that Barrett will roll back progress when she gets on the Court? You’re damn right we should. If I don’t miss my guess, she will be worse than Thomas and Scalia combined. If you think God hates gays, are you going to go against his will if Obergefell gets re-litigated? (I doubt it will: that decision was so wide-ranging and affected so many people then surely stare decisis will hold.) But as far as future gay rights cases go, fuggedabout it. And that goes for other issues too, including abortion, gun legislation, and so on.

Barrett’s history—now including her being a trustee of anti-gay religious schools—combined with her previous pronouncements, not only make her unfit as an “objective” justice, but justify having asked her about how her religious views will impact her rulings. She said, as expected, that they won’t, but we all know that was a nudge nudge, wink wink.


Supreme court approves execution with a substantial likelihood of causing agony (vote, naturally, was 5-4)

April 7, 2019 • 2:30 pm

This is what we’re in for the foreseeable future: a Supreme Court whose conservative majority, while concerned with preserving the life of every fetus, sends criminals to their deaths with impunity, even when those deaths are horribly painful. As the article below in The Atlantic relates (click on the screenshot), Justice Neil Gorsuch, who heretofore had kept his opinions on capital punishment private, joined the 5-4 Supreme Court majority (5-4 is temporary; it will be 6-3 before too long unless we elect a Democratic President in 2020) in the case of Bucklew v. Precythe, a ruling you can see here. The opinion was in fact written by Gorsuch, with the other four conservative justices (including Kavanaugh) concurring. The dissenters were, of course, Ginsburg, Kagan, Sotomayor, and Breyer.

Russell Bucklew, facing execution in Missouri for murder, rape, assault, escape, and other crimes, appealed because he has a disease called cavernous hemangioma, which in his case produces fragile blood-filled tumors in his head and mouth. He can’t sleep lying down lest he choke on his own blood, and it’s possible, even likely, that a lethal injection, the standard procedure in Missouri, would cause insupportable pain by rupturing his blood vessels.

Courts have ruled that if an inmate challenges the lethal-injection procedure, it’s up to him to suggest an alternative procedure that would be less painful. Bucklew’s lawyers argued that stipulating such alternatives in his particular case would be unconstitutional, as it’s unknown whether any alternative procedure would be less painful than lethal injection. (Bucklew had in fact suggested that death by nitrogen gas inhalation might be less painful than lethal injection, and nitrogen inhalation is indeed authorized as an alternative method of execution in Missouri, though it’s never been used in the U.S.)

But Gorsuch et al. didn’t buy it. In an astounding ruling, they demanded that Bucklew not just specify the use of nitrogen (remember, it’s already approved by the state as an alternative method of execution), but do a lot more. From the ruling:

First, an inmate must show that his proposed alternative method is not just theoretically “‘feasible’” but also “‘readily implemented.’” Glossip, 576 U. S., at ___–___ (slip op., at 12–13). This means the inmate’s proposal must be sufficiently detailed to permit a finding that the State could carry it out “relatively easily and reasonably quickly.” McGehee v. Hutchinson, 854 F. 3d 488, 493 (CA8 2017); Arthur v. Commissioner, Ala. Dept. of Corrections, 840 F. 3d 1268, 1300 (CA11 2016). Mr. Bucklew’s barebones proposal falls well short of that standard. He has presented no evidence on essential questions like how nitrogen gas should be administered (using a gas chamber, a tent, a hood, a mask, or some other delivery device); in what concentration (pure nitrogen or some mixture of gases); how quickly and for how long it should be introduced; or how the State might ensure the safety of the execution team, including protecting them against the risk of gas leaks.

Why is that stuff Bucklew’s responsibility? It’s the State of Missouri’s responsibility, since it approved nitrogen as an approved method of execution! Author Epps also singles out two other barbaric aspects of the majority ruling:

Gorsuch’s opinion has two even more important malignant flaws. For at least 60 years, the Supreme Court has consistently held that the ban on “cruel and unusual punishments” is not limited to the ideas prevalent in the 18th century (when crimes were sometimes punished by hanging, whipping, branding, and even mutilation). Instead, in a 1958 case called Trop v. Dulles, the Court said that “the words of the Amendment are not precise, and … their scope is not static”; instead, it “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” This is a hugely important precedent, invoked dozens of times since then. It has led to such decisions as forbidding execution for rape (employed in the South into the 1960s) and execution of those who commit crimes as children or who become mentally ill while waiting to die. It is nothing less than vital to protecting American society from the growing clamor for barbaric treatment of the powerless.

But the majority opinion pretended that Trop did not exist, instead turning to a repellent discussion of how much it hurt to be hanged in the 18th century (rather a lot, apparently) and whether drowning in your own blood is really all that much worse.

In the next section of the opinion, Gorsuch suggested that the real problem with death-penalty jurisprudence is those pesky people who just won’t get aboard the gurney. The Court’s inconvenient involvement in death cases, he wrote, could be reduced if the federal courts begin “invoking their equitable power to dismiss or curtail suits that are pursued in a ‘dilatory’ fashion or based on ‘speculative’ theories.”

And indeed, you can sense the petulance of these death-mongers in the Court’s opinion, which suggests that it’s indeed time for Bucklew to mount the gurney, even if it results in cruel and unusual punishment:You know my view on capital punishment: I oppose it because it offers no alternative over life in prison, with or without parole: it’s neither a deterrent nor does it allow for rehabilitation or keeping criminals sequestered (compared to jailing them). It’s retributive punishment. And if a convicted person is later found to be innocent, having killed them can’t right the wrong. In this case the execution is doubly wrong, for it’s likely to be cruel and unusual punishment, and yet the Court refuses to even consider means of execution that are less painful.  The majority is without empathy. At long last, gentlemen, have you no decency?

h/t: Ken

In the case of Trump v. Roberts, Trump is right

November 22, 2018 • 9:00 am

John Roberts, the Chief Justice of the U.S. Supreme Court, has been serving for 13 years, and is a judicial conservative nominated to be Chief Justice by George W. Bush. This week Roberts pushed back against a comment that President Trump made; the story is reported in the New York Times article below (click on screenshot):

The story can be told briefly. Roberts is not prone to making public statements, but made one when Trump suggested that federal courts are politicized. From the Times:

Chief Justice John G. Roberts Jr. defended the independence and integrity of the federal judiciary on Wednesday, rebuking President Trump for calling a judge who had ruled against his administration’s asylum policy “an Obama judge.” [JAC: this was not a Supreme Court judge.]

The chief justice said that was a profound misunderstanding of the judicial role.

“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” he said in a statement. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”

. . . Later in the day Mr. Trump responded to the chief justice’s statementon Twitter. “Sorry Chief Justice John Roberts, but you do indeed have ‘Obama judges,’” Mr. Trump wrote, “and they have a much different point of view than the people who are charged with the safety of our country.”

Leaving aside the slur that Obama judges aren’t charged with the safety of America, which is bogus, Trump’s claim has some merit. Roberts’ assertion that the court is not politicized, and that the justices’ views have nothing to do with who appointed them, was meant to defend the courts’ integrity. But it’s wrong. Supreme Court judges vote pretty reliably in concordance with their ideological biases.

It’s a palpable fact that the Court is highly politicized, and generally votes predictably—along the lines of the Justices’ judicial ideologies and philosophies. And it is no coincidence that those philosophies align with those of the Presidents who appointed them. What President would appoint a justice who wasn’t on the Prez’s end of the political spectrum?

Here are the present nine justices with a indication of whether they are generally conservative or liberal in their rulings, as well as a note about who appointed them:

John Roberts. Votes conservative, appointed by George W. Bush

Clarence Thomas. Votes conservative, appointed by George H. W. Bush

Ruth Bader Ginsburg. Votes liberal, appointed by  Bill Clinton

Stephen Breyer. Votes liberal, appointed by Bill Clinton

Samuel Alito. Votes conservative, appointed by George W. Bush

Sonia Sotomayor. Votes liberal, appointed by Barack Obama

Elena Kagan. Votes liberal, appointed by Barack Obama

Neil Gorsuch. Has voted conservative (also as a circuit court judge), appointed by Donald Trump

Brett Kavanaugh. No record yet but will, based on his record, certainly vote conservative, appointed by Donald Trump.

Yes, the court is surely politicized, and yes, there are “Obama judges” who vote liberal versus “Trump judges” and “George Bush” judges who vote conservative. This is the case and has nearly always been the case, and Roberts is wrong to pretend it isn’t true.

Nowhere is this politicization clearer than in the case of Bush v. Gore in 2000, when the very Presidency was decided strictly along Left-Right lines. Further, every lawyer I know who argues First-Amendment issues in federal circuit courts knows that those courts, one step below the Supreme Court, are also politicized. Many times progressive lawyers, for instance, try to bring cases before circuit courts known to have a more liberal bent.

We may be amused or even heartened by this contretemps between two conservatives, and even take Roberts’ side in the dispute, but Trump happens to be more correct than Roberts.

Look at it this way, flailing about randomly, Trump is occasionally going to be right. As the saying goes, “Even a blind pig can find an acorn.”


Some last thoughts on Brett Kavanaugh

October 6, 2018 • 1:00 pm

Well, it’s a certainty that Brett Kavanaugh will be confirmed today as a Supreme Court Justice, and the only thing more depressing is the thought that Donald Trump might be reelected in 2020. But let’s not dwell on that.

Today is supposedly my day off, so posting will be light; I call your attention instead to two articles. The first one is the New York Times’s editorial on Kavanaugh that, of course, mourns his impending nomination. Despite my claim that the paper is becoming increasingly Authoritarian Leftist, it still publishes some good stuff, and this editorial is one of them. Click on the screenshot below to read it:

I’ve given my opinion before, which is that Kavanaugh, even without the accusations of sexual assault, was a man unqualified to be on the court because of his extreme opinions (of course, that’s true of people like Scalia and Thomas as well).

After his appearance before the Judiciary Committee, my opinion was strengthened in four ways. First, although it’s a real judgment call, I think he was guilty of sexual malfeasance. Second, even if he wasn’t, he showed himself to be a liberal-hating hothead who, in my view, doesn’t have the temperament to be a Justice (also true of Clarence Thomas). Third, Kavanaugh’s disdain for the Left, which has surely been exacerbated after his grilling by the Committee, makes it a certainty that he’ll vote against every progressive case that comes before the Court. He is not a man of measured and thoughtful opinion. Finally, even if the sexual assault charges can’t be decided with certainty or even near certainty, other facts suggest that Kavanaugh perjured himself repeatedly. That’s a crime, and I wish they could impeach him for it. That, however, is unlikely to happen.

Kavanaugh’s appointment is just one more disaster that afflicts us in this Presidency. It is not a good time for the Left, and, vis-à-vis the judicary, won’t be until after I’m dead.

Here’s an excerpt from the Times:

The Court has had a majority of Republican-appointed justices for nearly half a century, of course, and its credibility has endured, despite controversial decisions like Bush v. Gore, which handed the White House to a Republican president. But the elevation of Judge Kavanaugh represents something new.

The nation is now facing the possibility of three or four decades with a justice credibly accused of sexual assault, one who may well be the deciding vote to overturn Roe v. Wade, or at least make it so hard for a woman to exercise her constitutional right to make her own medical decisions that the ruling is effectively nullified. Thirty to 40 years with a justice whose honesty was tested and found wanting. A justice so injudicious in his manner that thousands of law professors, and a retired Supreme Court justice, opposed his confirmation. A judge is supposed to set personal feelings aside and approach even the most sensitive and emotional matters with a cool disposition and an open mind; Judge Kavanaugh revealed to the country that he was incapable of that.

In saner times, such behavior from a nominee would have sent reasonable Republicans running for the exits. But in the end, only Lisa Murkowski of Alaska had the courage of her convictions. She can go home knowing that she did the right thing.

What can we do? Well, we can whine and seek “self-care,” as HuffPo suggests today. But the first duty we have as liberals is to fricking VOTE in November.

I’m pretty sure that most readers here won’t need that advice, but maybe you can man the phones or help people get to the polls. I’ll be out of the country on election day, but I’ve made sure I got a ballot by mail, and I’ve already sent it in.  Perhaps there’s just a small chance that Democrats will win the House of Representatives. That can stop the worst excesses of Trump, but he retains the power to veto any legislation a Democratic Congress passes (even if it’s also passed by a Republican Senate, which is unlikely). At worst a Republican Congress, President, and Judiciary, at best a stalemate.


Did the Kavanaugh hearings help Trump?

October 2, 2018 • 1:00 pm

As I’ve written before, my feeling, based on what I know and the testimony I heard, is that Brett Kavanaugh was guilty of sexual assault or malfeasance. Now I think he’s guilty not just of lying about that, but lying about many things, and that is perjury and disqualifies him from the Supreme Court. But I would have voted against him because of his extreme ideology before any of the accusations surfaced.

Is the testimony against Kavanaugh by Christine Ford and others absolutely damning, showing beyond a reasonable doubt? No, they don’t. We can’t be even 95% certain that Ford was correct. (I think we can be more certain that he lied about various things).  But do the data make it seem more likely than not that Kavanaugh is temperamentally and ideologically unsuited for the Court? Yes, that’s my judgment. Your mileage will vary. And, as I predicted, I don’t think he’ll make it to the Senate’s voting stage, but if he does, he won’t be approved. Again, I may well be wrong.

No matter what happens, though, I felt that the hearings were an embarrassment for nearly everyone: Democrats, Republicans, and Kavanaugh (Ford at least behaved with decorum). And I have no idea how either the approval or rejection of Kavanaugh will play out in the midterm elections.

But Seth Mandel, in the Atlantic article published yesterday (click on screenshot below), thinks that they’re helping Trump.

I’m not sure I agree, for if the judge is approved it’s going to turn many women on the fence against the GOP, and bring to the polls all those liberal women who didn’t vote in 2016. But let us hear what Mandel has to say. First, note that, like me, he’s against Kavanaugh’s confirmation:

I find Ford’s allegation to be credible, her behavior admirable, her bravery undeniable. But I also understand that there simply isn’t enough corroborating evidence to justify the certainty we’re seeing on either side, and that the 11th-hour leaking of the allegation—Senator Dianne Feinstein had Ford’s letter in her possession through the entire process—reeked of “October surprise” politics. Still, I have advocated consistently that Kavanaugh’s nomination be withdrawn. [JAC: I can’t say that my opinion of Feinstein has been burnished by her behavior at the hearings.]

. . . Christine Blasey Ford has acted honorably, with grace and care far beyond what we should in good conscience demand of a victim of sexual assault. But instead of having her warning quietly passed along, she was forced to offer her story in a grotesque spectacle, against her clear intentions. I have said multiple times that the White House should not advance Kavanaugh’s nomination any further. But those who carefully considered Thursday’s testimonies and concluded they could not in good faith reject his heartfelt denial are not rape apologists. Tarring them as such is a deliberate act to erase the distinctions between Trump and his critics on the right, and to then blame that erasure on the targets of a smear campaign.

Rape apologists? Yes, that’s what the Women’s March said about every Republican who voted to advance Kavanaugh’s nomination. That’s a bit strong, and I wouldn’t characterize every Republican member of the panel in that way—especially Jeff Flake, who made the Republicans get the FBI to investigate. Yet he, too was smeared, and unfairly (click on screenshot below to see the March’s whole thread):

What we are seeing, I think, is a clash of completely polarized ideologies that uses Kavanaugh as an fulcrum. It’s the polarization itself that is the big problem in our country, and it’s largely, but not completely, because of the Republicans and Donald Trump. What should we, as liberals, do? What Mandel doesn’t think we should do is engage in smear campaigns. (My own bête noire is the mantra “Believe survivors”, which is tautological, begs the question in the correct sense of that term, and also contravenes the basic principles of fairness. What we should be saying is: “We will take the claims of accusers very seriously and investigate them thoroughly if the accusers wish it.)

We have two choices. Since the Republicans and Trump are odious, almost beyond belief in their mendacity and stupidity, we could demonize them and lash out at them, which is what we saw last week. The other choice is to TRY to find some common ground, and, in the process, at least behave according to our own principles, and with decency. We should not accost our opponents in restaurants and harass them mercilessly, nor should we call people like Jeff Flake a “rape apologist”. What good do these things do?

You might say, “Well, nothing we can do will put even a dent in Republican truculence, so we might as well use their playbook.” I’m not at that point, and doubt I’ll ever be. It’s uncivil and accomplishes nothing. At least being a bit more conciliatory has a chance of working. That doesn’t mean being sympathetic to Kavanaugh, but simply being civil to our opponents and trying our best to convert them. And that’s what Mandel has to say. He ends his piece like this:

In contemporary American politics, persuasion is increasingly abandoned in favor of disqualification. The goal of partisans is often to convince their own side why they must not even listen to the other side.

The result is the eradication of principle from public life. Republicans’ treatment of Merrick Garland—Barack Obama’s nominee who was not even granted a hearing, let alone a vote—was atrocious. Along with others on the right, I said so at the time. But the sheer number of times liberals raise Garland as an answer to the Democrats’ procedural perversions is astonishing—as if what matters is not Kavanaugh’s guilt or innocence, but the satisfaction of partisan bloodlust.

One of the tragedies in all this is that leftists have identified those on the right who have been and are prepared to be their allies—Never Trumpers and others—and prioritized such people for destruction. I have said multiple times that the White House should not advance Kavanaugh’s nomination any further. But those who disagree with me, on principle, are not rape apologists. And labeling them so sends an unmistakable message: You would be a fool to reach across the aisle and work with Democrats to rein in the excesses of your colleagues.

This is what enabling Trump looks like: torpedoing efforts that could incentivize constraining his worst instincts. Such people consider themselves the “resistance” to the president. In reality, they are painting the country Trump. The rest of us can only hope they fail.

The sentences in bold ring true to me. Yes, many Republicans are mendacious and acting not out of principle but out of a misguided adherence to a warped ideology. But not all of them. On my part, I think we have to rein in the hysteria and demonization, while at the same time searching for the truth. I know politics isn’t science, but in science we convince our opponents with the facts, not by calling them jerks. Since nobody knows the facts in the Kavanaugh case, we must make the best judgment we can and recognize that at least some of our opponents are honorable people.

h/t: Grania

Kavanaugh is toast

September 27, 2018 • 5:23 pm

Even without the accusations of sexual assault against Brett Kavanaugh, I would of course have called for a vote against him, as he’s a far right-wing  %)((*&^@ who will tilt the Supreme Court in the wrong direction for decades to come. But after hearing the testimony of Christine Ford and much of the testimony from Kavanaugh today, my feeling is that yes, he’s guilty and lying about it, which means he committed perjury and is absolutely disqualified from the Court. I was also appalled by his demeanor, which seemed unhinged, aggressive, and rambling. That’s reason #3: he is entitled, angry, and lacks the decorum and objectivity of a Justice.

Of course he has a right to be angry if he’s innocent, although I don’t think he is.  But he could have comported himself with a bit more decorum; he did himself no favors today.

None of us know where the truth lies, of course, and an FBI investigation is unlikely to tell us more than we know now. But in fact I already knew enough before the testimony even began today. All I can say is that I hope some Republicans feel a bit like I do, and vote against the man.

That said, let us entertain no hopes that if Kavanaugh goes, as I think he will, Trump will appoint somebody less Rightish. That’s not in the cards. All he’ll do is mandate a more thorough investigation of any Roe-opposing candidate waiting in the wings.

And if Ford is telling the truth, as I think she is, then I feel bad for her and can understand why she wanted to testify against the entitled, beer-swilling git who swaggered about in prep school. Yes, the alleged crime happened several decades ago, but if he’s lying about it now, he’s a perjurer.

But of course you may feel differently. None of us know what really happened; all we can do is say how we feel about the conflicting testimony. And I am consoled by knowing that I would have voted against Kavanaugh from the very first week he was nominated.

There’s nothing to be happy about here, for another conservative loon is just offstage. Correction: I’d be a little bit pleased if some Republicans saw the light.

Woman who accused Brett Kavanaugh of sexual assault comes forward

September 16, 2018 • 2:30 pm

Brett Kavanaugh’s confirmation as a Supreme Court justice would be a disaster for many years to come, ensuring a firmly conservative court for the future—perhaps even the overturning of decisions like Roe v. Wade. But then again, this would be the case for any of Trump’s nominees. I, for one, would prefer more of a centrist, but who can expect that in this age of right-wing American despotism?

Last week reports surfaced that, while at prep school (a private high school) in Maryland, Kavanaugh had sexually assaulted a woman in front of a witness, a far more serious accusation than the verbal harassment reported by Anita Hill during the Clarence Thomas hearings. But until today it seemed, because the woman didn’t come forward and details weren’t fully known, that this wouldn’t derail Kavanaugh’s nomination.

Today, however, the Washington Post names the woman, now a professor in California who has decided to come forward. Click on the screenshot to read the article:

It’s hard to decide what to think about this. On one hand, one has to ask why the woman would make the allegation if it weren’t true. But of course there are false reports. But her therapist from years ago has a record of her describing the incident, as does her husband, who also remembers Kavanaugh’s name. And the woman has passed a lie-detector test.

On the other hand, the supposed witness says he doesn’t recall the event (which of course Kavanaugh denies), and 65 women from the school have signed a letter testifying to Kavanaugh’s respectful treatment of women. The witness, however, is saying “no comment” now, whereas before he denied he saw any sexual assault. And of course plenty of assailants can behave properly to other women at their school.

This is one of those cases in which if the allegations are true, it’s a no-brainer: Kavanaugh is unsuited to the Court, or to be a judge in any court. The difficulty is in determining if the allegations are true. After all, it’s a he-said she-said business at the moment, and without more proof I’m not sure how this should weigh in Kavanaugh’s nomination.

I have no opinion on the matter yet save this: I think this will probably force Kavanaugh to withdraw his nomination (which Trump will furiously defend), and I won’t be sorry if that happens.

p.s. I forgot to add that the woman who has accused Kavanaugh, Christine Ford, should surely be given a chance to testify before the Senate committee vetting his nomination.