As an accomplished lawyer and long-time political commentator here, it's disappointing that you resorted to mockery by invoking hyperbolic comparisons.
In his concurrence with today's Dobbs ruling, Justice Thomas wrote: '[...] in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.'
(For non legal nerds, those cases are concerned with birth control, sexual privacy, and gay marriage respectively.)
You're surely also aware of legislative and electoral pitches to substantially restrict birth control. I don't think I'm being hyperbolic by simply mentioning the existence of ultra-conservatives and observing that they have some political influence. When one of the nine Supreme Court justices indicates a willingness to revisit multiple landmark cases only a foolish person would ignore the possibility.
It’s worth noting that Clarence Thomas may not actually disagree with any of the rights found in those cases. Thomas has been a long time critic of the use of the due process clause for the finding of substantive rights, and he adhered to the view that these rights should be found under the privileges and immunities clause that has fallen into disuse. He says as much in his opinion, but nobody quotes that part because it’s not a headline grabber. It’s in the same paragraph as the sentence you quote. Thomas has held this view for literally decades.
I'm less preoccupied with what Clarence thomas believes in his heart of hearts than what litigation strategies will be used to exploit his arguments, especially given the emergent trend of states passing 'trigger' legislation pendant on future court decisions. Thomas has indeed held his views for a long time, but then candidates for judicial office (including several who sit on the SCOTUS bench now) have been assuring us that Roe v. Wade was settled law for decades as well.
Mind, I also thing the Democrats are at fault for not erecting a legislative framework to put privacy and other rights on a more solid footing when they've had the legislative initiative.
I’m not a lawyer, so correct me if I am wrong, but wouldn’t challenges to those cases have to come from outside the court for the court to reconsider them?
If that is the case there needs to be some motivated and deep pockets out there to craft up a law that is designed to challenge those norms, then it needs to get passed in some legislative body and signed into law within a state. The law will need to read in such a way that would motivate an aggressive attack from a party with deep pockets and get it all the way up to the SCOTUS where it might get picked up or might not.
I honestly think that those issues simply do not have the same levels of passion behind them that abortion did. The general populace just doesn’t care enough to make them worth the effort. Abortion beyond the first trimester of pregnancy had significant opposition across the political spectrum and that opposition grew week over week beyond that first trimester. Birth control, gay marriage, sexual privacy…they simply do not evoke the same levels of passion beyond a few fringe ultra religious right-wing groups.
What you regard as broad spectrum passion is (in my view) the product of sustained organization, not spontaneous grassroots opposition. Crafted legislation that gets passed and is then (perhaps by design) the subject of a test case is not such an unusual thing.
Consider for example the recent wave of prophylactic legislation forbidding the teaching of 'critical race theory' in k-12 schools, although CRT as such is a kind of structural analysis that has gained adherents among legal sociologists, mostly at the post-grad level. The anti-CRT laws are mostly an attempt to shape school curriculums that mention race by legislative fiat, and provide a cause of action to fire teachers who indoctrinate students with (or perhaps merely expose them to) opinions that are out of step with the popular consensus.
Certainly, this is no overnight process. But a few years ago, people who said Roe was likely to be overturned were dismissed as alarmist. Fringe positions become mainstream by degrees, and those who don't pay attention to them often underestimate the intensity and speed of such changes.
Consider Mark Burns, an ultra-conservative pastor and regular candidate in South Carolina who recently came in second in the Congressional House primary, with 11,000 votes (about 25% of the total). He holds some rather extreme views, and while he lost this time he might continue to improve his electoral standings in future.
> As an accomplished lawyer and long-time political commentator here, it's disappointing that you resorted to mockery by invoking hyperbolic comparisons
It’s not a hyperbolic comparison. I’m simply observing that other highly educated people (like the folks who thought I was about to be dragged to an internment camp) have built up conservatives as such a boogeyman, they don’t have a solid grasp on what’s within the realm of political reality and what isn’t. I detected the same hyperbole in your post.
The abrogation of Roe makes the Constitutional law of the US the same as Italy and still more liberal than Germany. Even if some states ban abortion, that just makes them like Ireland until a few years ago, or Poland now. The EU has some very religious places with extremely restricted abortion rights, and others with more liberal rights, and most in a mushy middle. Why isn’t that situation workable in the US?
Some of the other privacy cases might be on the chopping block too. You don’t have to be an “ultra conservative” to think substantive due process is a bunch of malarkey. That was my first reaction when I learned about it in law school a decade ago.
But say Griswold goes away. So what? Most European countries don’t have a similar right to contraception, yet contraception is legal there. 90% of Republicans support legalized contraception. Obergefell and Bostock are on firmer footing. But even then half of Republicans support same-sex marriage. Almost 80% support employment rights for LGBT people. The politics isn’t the same for those other issues.
Abortion is different because Roe was both legally infirm, and drew the Constitutional line in the wrong place. I’m not aware of any country that recognizes a right to abort an 20 week fetus without a medical reason, even if some countries like Canada allow it. Roe drew the line 10 weeks past where most civilized nations draw the line, and that made it a political target in the way contraception isn’t. Almost 30% of Republicans disagree with their party that abortion should be generally illegal at all stages. But even among most of those people it’s difficult to muster up a defense of Roe.
highly educated people [...] have built up conservatives as such a boogeyman, they don’t have a solid grasp on what’s within the realm of political reality and what isn’t. I detected the same hyperbole in your post.
I don't know whether your analytic powers are less good than you imagine them to be, or you're being strategic; but given that you now write as if such an outcome had been obvious and inevitable all along, I'm not inclined to rely on your estimates.
Even if your interpretation is correct, that's just one justice writing a separate and solo concurring opinion.
And that justice comes from a different generation than the other 5 who voted to overturn, so there's even less reason to assume the others share his views.
I am sorry you had to deal with hysterical people, but I’m just taking Thomas at his word when he says a court overturning Grisewald, Lawrence and Obergafel and would be prudent. It’s not the same thing at all.
Also, as an aside, we have internment camp like settings for brown asylum seekers and have mistakenly deported American citizens to them on multiple occasions, but this is an ongoing issue that Trump did not fix, rather than one caused by Trump.
Given your history on the issue[1][2][3], I don't think its reasonable to trust your judgement on how the court will vote.
I think it's worth keeping in mind that either you were disingenuous years ago, or you yourself have moved to the right over time as well, as not only do you badly mispredict the court (and even mispredict how extreme Thomas would be [5]!), assuming it would have a stronger respect for precedent than it did, but also you yourself seem to have changed from a supporter of roe[4] to, well, whatever you are now which seems to be someone who is willing to quote contradictory statistics in order to claim that Roe's 24 week line has less support than it does (per [6] and [7], both sources you've quoted to claim that most Americans want more restrictions than Roe show that >60% overall and 30% of conservatives support the line Roe defines).
If the conservative majority on the court is willing to overturn a ruling supported by 60-65% of the population, what's to say they won't revert a much weaker precedent with only 70% popular support? You seem to be highly content to be a boiled frog.
I said Robert’s wouldn’t overturn, and I was correct. I said Kavanaugh was a maybe. I got Gorsuch wrong. The Mississippi law was written to give the Justices an out at 15 weeks, but I didn’t anticipate how hard the Solicitor General would push to defend the full scope of Roe. In my opinion that was a tactical error.
In the 9 year old post you cite, I said Roe was wrongly decided, but I didn’t think it was necessary to overturn it. Nothing I said today is inconsistent with that.
As to your point about Thomas, you cite a comment correcting a misreading of Thomas’s concurrence in the Kim Davis case. I said nothing about how “extreme” he is or wasn’t. Also, that has no bearing on Roe. Anyone could have told you Thomas would vote to overturn Roe.
You say I’m wrong about support for second trimester abortions, but neither of your sources actually asks about second trimester abortions.
Most recently you said there were three votes (acb, Thomas, alito), and before that you said kav was "probably" not going to overturn. I don't think it's wrong to hold you to that. Either you were downplaying compared to what you really thought, or you're creating a justification now. I'm really just asking that you take a minute to reflect on that.
From the npr link:
> Allows abortions, but only up to the time there is viability outside the womb, at about 24 weeks
Has support from 30% of republicans and 40% of democrats. The remaining Democrats generally want less restrictions. That's consistent with 60%+ support for second trimester abortions.
Your Forbes link also mentions 47% support (and only ~40 percent against) elective abortion until viability, which may be well into the third trimester!
And I have a difficult time believing that "all or most of the time" doesn't include the second trimester.
I'm not relying on polling of roe. I'm relying on your polls! I agree that there's inconsistency here, but it's not cut and dry like you claim.
> As to your point about Thomas, you cite a comment correcting a misreading of Thomas’s concurrence in the Kim Davis case. I said nothing about how “extreme” he is or wasn’t. Also, that has no bearing on Roe. Anyone could have told you Thomas would vote to overturn Roe
My mistake, I thought that thread was about the draft opinion. But I'm not talking about roe, but revisiting Obgerfell, which between Thomas, alito, barret, and one of the others probably does get cert! And I can see Roberts ruling against it now since dobbs splits the precedent (I'm not saying thats likely, I'm just saying it's believable).
> In my opinion that was a tactical error.
For whom? Like it's obviously harmful, but it's correct jurisprudence and supports the federalist strategy of dismantling as much federal civil rights law as possible. Like I have a very hard time finding the consistent values you work from, since apparently this was an error despite you agreeing with the ruling in a technical sense and in a meta-political sense (in that whatever your opinion on abortion, you believe abortion law being defederalized is good for the social fabric). And it's obviously what Republicans, if not conservatives, want. Who is it a tactical error for, and why?
No. The answer is mostly that I've seen Rayiner discuss Roe before in years prior, and had a weak inkling recollection that his statements had changed. An HN search for "rayiner roe overturn" I think it was got to things pretty quickly.
For what it's worth (mostly in response to other comments), I don't think he's being disingenuous here, I think there's just a deep disagreement about values. In another thread, he says:
> As a foreigner, what I admire most about Americans is their ability to dispassionately accept the results of legal procedures. I truly think that’s what is responsible for the success of America and England before it. We have people who have high minded principles and notions of justice in Bangladesh. That’s not special. What we lack is a populace that will accept even monumental decisions contrary to what they wanted and move on. And that’s what I fear is being eroded.
Charitably, I think, this is "Americans are willing to accept the rule of law", which is perhaps true. Uncharitably, it's something like "Americans are privileged and/or apathetic enough that even as the law wildly vacillates, they don't care to act when their rights are impugned."
I also don't think it's true, given the long history of protest and sometimes violence in response to legal proceedings (Shay's Rebellion, the Civil War, anti-Abortion violence and murders in the '90s and today, etc.). But even taking it as true, I think there's a requirement that to respect the (appellate) judiciary we need to respect that the system is at least somewhat apolitical. I don't mean that judges aren't conservative or liberal, they obviously will be, but the actions of the Federalist Society, which preaches and advocates for a very particular judicial philosophy is, to many, a violation of the social contract that allows us to respect the court.
I think it's easy for someone who is a lawyer, especially an appellate lawyer to have "the institution" go to their head, to an extent. And I think that's what I'm seeing here: what the court is doing must be justified not in particular because rayiner agrees with it (though he does), but because the court cannot be questioned. He takes it as a given that the institution must be respected by virtue of what it is. I don't buy that, I think the institution needs to earn its legitimacy, and when you have justices doing what is charitably described as misleading Congress and the American people, and uncharitably described as perjury, well, it's difficult to see why the office remains deserving of respect.
> Charitably, I think, this is "Americans are willing to accept the rule of law", which is perhaps true.
Yes, that’s what I mean.
> I also don't think it's true, given the long history of protest and sometimes violence in response to legal proceedings (Shay's Rebellion, the Civil War, anti-Abortion violence and murders in the '90s and today, etc.).
It’s relative. Americans are incredibly orderly compared to say Bangladeshis, where there are violent protests after every election.
> I don't mean that judges aren't conservative or liberal, they obviously will be, but the actions of the Federalist Society, which preaches and advocates for a very particular judicial philosophy is, to many, a violation of the social contract that allows us to respect the court.
How is it a violation of the social contract to advocate for reading the Constitution the same way we read any other written document?
How is that worse than say law schools, which vigorously advocate reading the Constitution as loose guidelines to guide elite lawyers in dispensing Justice according to their own world views. That’s exactly what Roe was, seven highly educated white men overturning the will of the people based not on law, but on their personal notions of justice.
> I think it's easy for someone who is a lawyer, especially an appellate lawyer to have "the institution" go to their head, to an extent.
I respect the institution because I’m a foreigner who comes from a country where respect for institutions is conditional. I have a deep veneration for societies where people reflexively trust institution even when they’re in the losing end of a decision. A court could order a British person to jump off a bridge and they’d do it!
And I’m terrified of what I’m seeing in the US. There’s always been unruly mobs, but now elites are egging them on. Your accusations of “perjury” are exactly the problem I’m highlighting. Nobody perjured themselves. They said Roe was precedent, which it is. Precedent can be overruled—and there are clear guidelines for when to do so and Roe fit the bill on a lot of the factors. To say otherwise is to rely on the ignorance of the general public in an effort to delegitimize the institution in their eyes, and that’s irresponsible.
A government that disobeys the will of the people will eventually be replaced by one that does. A functionally unamendable constitution + judicial restraint + a electoral system that grows less representative by the day is not a recipe for democracy, its a recipe for a form of minority rule, and the unrest that comes along with it.
That's not an authoritarian stance, it's a rational, observant one.
> How is it a violation of the social contract to advocate for reading the Constitution the same way we read any other written document?
This is the wrong question. The constitution doesn't matter. It's deeply flawed (whatever your opinion on the second amendment, that what exactly it means is so deeply up for debate, and has been for 100+ years, goes to show that the document is flawed as a legal instrument!), but not going to change without bloodshed.
People respect the rule of law, have faith in their institutions, because they feel represented and respected and empowered. But the reasons for that faith is eroding as we see that so many of our institutions are biased towards conservatives or conservative demographics. It is increasingly difficult to have faith in a democratic institution that doesn't provide equal representation.
Respect for an institution is conditional! It must be! We should not respect a president who does illegal things just because they are the president, we should impeach them! The same is true of a court, it is not reasonable to to respect it if it fails to act consistently and, to many, the courts rulings are inconsistent. Perhaps they make sense to you, a constitutional lawyer who has two or three degrees and decade of ~indoctrination~ education on this particular subject, but to those normal people out here, a group of 9 (or well 6) of the most elite of the elites (lifetime appointments!) sit in their ivory tower and say "you need private guns to deal with unelected tyrants" (to quote a tweet I saw earlier), while rolling back life-saving policies and threatening others.
On the left, you have to do a huge amount of work to get people to vote, not because they don't care, but because they're so disillusioned by their vote mattering, and that sentiment grows truer and truer!
So why is it a violation of the social contract? Because the social contract is a fair and representative government. It is democracy with checks and balances. The less the government does that, the less people are going to want it. And the problem is that the SC is, or was, in a pretty crappy position: the constitution is flawed and encourages this inequality, but no one's going to change it because people (and here I'll absolutely call you out as an example!) venerate it far too much. And the next amendment will be written in blood. So the court can either let constitutional interpretation live and follow the will of the people, and make them feel represented, or it can not make any attempt to represent the people and only represent the law, and there's some merit in that too, but it's going to foment unrest. So the issue you're facing is that the way you want the court to work fails to respect the people, and so they fail to respect it.
