10-04-2022

… HCR this morning mostly about the mounting trouble for various actors on the far right and the challenge to democracy… the noose closing around 45’s neck and the violence he seeks to sponsor to distract and prevent… it is a race to see if he becomes president before he is jailed, in which case he would never be jailed… the Oath Keepers go on trial… Moore v Harper was heard by SCOTUS… the conservative judges are flirting with giving states absolute rights to determine elections… the so called “independent state legislature” doctrine is being determined… 45 has been definitively tied to withholding documents from the government by a witness… Herschel Walker continues to melt down…

In an interview tonight, Trump accused the FBI or the archivists from the National Archives and Records Administration of planting or removing documents in order to frame him, saying that NARA is “largely radical-left run.”

… read with interest Zeba Blay’s review of Blonde… her main complaint is that it fetishize Monroe’s pain to no good purpose and that the movie was boring… H agreed with that assessment… i did not… i thought it effectively showed the appalling behavior of patriarchal males while not pandering to that behavior with highly erotic (to most people) scenes… to the extent that nudity and sex were in the film, and there was lots of both, it wasn’t very titillating, at least not to me… still, one needs to pay attention to women on the subject because they know things men will never know about being a woman in a patriarchal society…

… Sidelined No More: Reading List of Fiercely Political Women… so many books one could read… so little time… the article makes an extensive argument that women still are not taken seriously when they write about politics seriously and offers up a selection of books by women authors past and present…

Among the Washington Post’s columnists, who mostly cover politics, 57 are men and 26 are women. In the last two months, the New York Times’s opinion pages published 77 political analyses by men and only 29 by women. Half of those women-authored pieces had a male co-author.

Male domination of writing on politics in America is most extreme in the conservative press. In the National Review, 90% of the recent political analyses were by men, and the quarterly Claremont Review of Books—which prides itself on being the intellectual heart of the American right—has gone two and a half entire years without publishing a single feature essay written by a woman.

The problem isn’t, or isn’t only, a moral one. Readers are denied something by this exclusion. Sometimes women have an especially intimate way of writing about politics that’s both close-up—examining the psychology and the erotics of power—and carries an interesting objectivity and distance, thanks, perhaps, to their own history of being distanced from the political sphere.

… relative to HCR’s post above is J. Michael Luttig’s piece in The Atlantic arguing that the “Independent State Legislature” theory is bunk…

If the Court concludes that there is such a doctrine, it would confer on state legislatures plenary, exclusive, and judicially unreviewable power both to redraw congressional districts for federal elections and to appoint state electors who quadrennially cast the votes for president and vice president on behalf of the voters of the states. It would mean that the partisan gerrymandering of congressional districts by state legislatures would not be reviewable by the state courts—including the states’ highest court—under their state constitutions.

That as many as six justices on the Supreme Court have flirted with the independent-state-legislature theory over the past 20 years is baffling. There is literally no support in the Constitution, the pre-ratification debates, or the history from the time of our nation’s founding or the Constitution’s framing for a theory of an independent state legislature that would foreclose state judicial review of state legislatures’ redistricting decisions.

The state supreme court’s decision under the North Carolina constitution is conclusive under that constitution, and it is only reviewable by the federal courts and the Supreme Court of the United States thereafter for a determination of whether that decision violates the federal Constitution.

All of which goes to confirm that the Constitution neither contemplates nor permits federal constitutional commandeering of the states’ constitutions and their judicial processes. Rather, it contemplates and provides only for federal judicial review of the state supreme courts’ state constitutional decisions by the U.S. Supreme Court for consistency with the United States Constitution.

… we will know next summer how bad the current iteration of SCOTUS is… there is, unfortunately, reason to be concerned…

Heather Cox Richardson, June 30, 2022

This is so depressing…

In the one term Trump’s three justices have been on the court, they have decimated the legal landscape under which we have lived for generations…

For me, this week was all about Roe V. Wade. Alito’s leaked draft memo brought forward an enormous amount of commentary across all my news feeds and, being a moderate liberal who has always believed that women should have access to abortion, I zeroed in on that commentary.

Before I get into the articles I read about Roe V. Wade and the Alito draft document, I should articulate my own stance. Abortion should be available, safe and rare and by rare I do not mean draconian restrictions. At the same time, I do not believe there should be a completely unfettered right to abortion. I do believe that there should be a gestational point beyond which an abortion can only be performed in special circumstances, where the mother’s life is threatened for example. I also believe that pregnancy resulting from rape and incest should always be an exception to whatever laws there are limiting or prohibiting abortion.

I have also had personal experience with having to make a decision on pregnancy termination. I was in a marriage that was falling apart when we discovered my then wife was pregnant. Because of the rather miserable state of our marriage we made the very difficult decision to abort the pregnancy. I don’t regret the decision, but it lingers with me as a significant and sad part of my personal history. A friend once told me that she was pretty sure that “abortion is violence.” There is no doubt about that. It’s violence to everyone involved. Yes, abortion should be as rare as we can make it without completely denying it as an option.

I first learned of the leaked draft opinion from Heather Cox Richardson in her May 02 post.

Tonight, news broke of a leaked draft of what appears to be Supreme Court Justice Samuel Alito’s majority decision overturning Roe v. Wade, the 1973 Supreme Court decision establishing access to abortion as a constitutional right.

Then there was this admiration for the opinion post on Reason.com.

It is a tour de force. Justice Alito meticulously dissects, and forcefully responds to, every conceivable position in favor of retaining Roe and Casey. I could teach an entire law school seminar class on this opinion.

In the months leading up to the leak I began to wonder why there wasn’t more protest, more anger, more activism around what the likely outcome of the courts deliberations on Dobbs would be. Why there hadn’t been more effort to protect a woman’s right to an abortion. This Pro Publica article addresses that very issue.

I have been aware that the Roe V. Wade decision was thought by many to be on shaky ground, including Justice Ruth Bader Ginsberg, who felt the ruling was too broad and not focused on the rights of women as it should have been.

This article in Reason.com crystalized my thinking on what the real issue is.

In it’s somewhat glib “awe, it’s not so bad approach,” the article tells us that there will only be a 10 to 15 percent decline in abortions as women will still have options. There’s the abortion pill, available on line (some states are trying to curtail this) or travel to another state where abortion is more available (some states are moving to declare abortion murder, which does not bode well for the women who leave the state with gestating fetus and return without one). But then, the author identifies a core problem with returning legal management of abortion to the states when they admit that women with means will always be able to get safe abortions if they want them while working class and working poor women will struggle to do so. This, to me, is a pivotal issue. If this opinion turns out to be essentially the ruling the court delivers, then the consequences of society’s legislation of abortion will fall unequally on the citizenry with a disproportionate bad falling on women of limited means.

With the above in mind, this article in The Atlantic about declining mobility in the United States, that is, the ability of people to vote with their feet, seemed significant.

I can’t say what my complete feelings are about this ruling should it turn out to be close in scope to the final one. It’s clear to me that a lot of women are going to suffer because of it. But it also seems that the legal arguments supporting the current situation are not solid and perhaps the silver lining of all this is to get a chance to do it over and do it in a more lasting way.

Democrats walk on eggshells around Breyer as GOP plans another blockade for any Biden Supreme Court pick, Edward-Isaac Dovere and Manu Raju, CNN, December 19, 2021

… the idea that there might be a supreme court vacancy in 2021 just came on my radar screen through this article on Reason.com about Biden’s potential impact on the federal court system (it’s been relatively substantial so far)… and, of course, its Justice Breyer… according to the article linked above…

Breyer has told several people who’ve made unofficial efforts to push him to retire that he thinks the confirmation process shouldn’t be political, according to people told of those discussions, and Democrats worry he’d remain as an act of resistance to show he’s not bowing to politics.

… and…

Privately, multiple Senate Democrats complain that Breyer seems to have let his ego overtake him and he is not being realistic to how radically Supreme Court confirmation politics has changed in the last five years.

… please let’s not make the same mistake as we did with Ginsberg… ego has got to give way to doing what’s right for future generations… current SCOTUS is awful… it would become more than tragic if conservatives get another seat to fill…

What i read today…

… my reading this morning has been principally around the Supreme Court decision handed down yesterday that allowed Texas’ anti-abortion law, S.B. 8, to remain in effect…

Letters from an American, December 10, 2021, Heather Cox Richardson

This case is about far more than abortion. It is about the federal protection of civil rights in the face of discriminatory state laws. That federal protection has been the key factor in advancing equal rights in America since the 1950s.

The Texas Abortion Decision Protects the Traditional Rule of Law

Hard cases make bad law, and bad decisions make more hard cases. Roe v. Wade was a bad decision that has distorted many areas of our law. The Supreme Court created this monster with Roe, but in the Texas abortion cases decided this morning, it found itself caught between two sides trying to evade or rewrite the rules. On the one side was the Texas legislature: The new Texas abortion law, S.B. 8, is a too-clever-by-half attempt to get around Roe’s distortions by creating its own somewhat-novel enforcement mechanism. On the other side were the abortion clinics and the Justice Department’s lawsuit, both of which treated legal abortion as a constitutional interest so powerful that protecting it required the Court to bulldoze longstanding doctrines limiting the powers of federal courts.

How Narrow is the Pathway the Supreme Court Left for Suits Challenging SB 8 and Other Similar State Laws?

As noted in my last post about today’s Supreme Court ruling in in Whole Woman’s Health v. Jackson, the key question for the future is how close a connection state officials must have to enforcement of the law in question before plaintiffs can potentially bring preenforcement challenges against those officials.

SCOTUS Says State Judges and Court Clerks Can’t Be Sued To Block Enforcement of the Texas Abortion Ban

The Supreme Court today held that Texas judges and court clerks cannot be sued to block enforcement of a state law that prohibits abortion after fetal cardiac activity can be detected. But it said the plaintiffs challenging S.B. 8, which took effect on September 1, can proceed with claims against state medical regulators.

Justice Sotomayor’s Flawed History To Promote The Myth of Judicial Supremacy

The United States did not fight a Civil War over the theory of judicial supremacy. But judicial supremacy was a contributor to the Civil War. Of course, I speak of Dred Scott v. Sandford. Chief Justice Taney recognized a new constitutional right based on substantive due process in order to resolve a controversial social debate by placing it beyond the power of the elected branches. Sound familiar? In Casey, Justice Scalia directly equated Roe and Dred Scott.

SCOTUS Rules Extreme Texas Abortion Ban Will Remain in Effect, Though Abortion Providers Can Sue

Today, in what could at best be considered a mixed ruling for abortion rights, the Supreme Court decided that abortion providers may sue some state officials in federal court over an extreme Texas abortion law. But in a huge blow, the court will also allow the law to remain in effect while the case moves forward.

The Most Blistering Lines from Sotomayor’s Extraordinary Dissent in Today’s Abortion Ruling

In an especially gripping section of the 13-page opinion, Sotomayor wrote that Texas’ brazen challenge to federal law “echoes the philosophy of John C. Calhoun, a virulent defender of the slaveholding South who insisted that States had the right to ‘veto’ or ‘nullify’ any federal law with which they disagreed.”

“The Nation fought a Civil War over that proposition,” she argued. “But Calhoun’s theories were not extinguished.”

… moving on to readings other than news…

Carl Jung on How to Live… you make the road by walking…¹

Your questions are unanswerable because you want to know how one ought to live. One lives as one can. There is no single, definite way for the individual which is prescribed for him or would be the proper one. If that’s what you want you had best join the Catholic Church, where they tell you what’s what. Moreover this way fits in with the average way of mankind in general. But if you want to go your individual way, it is the way you make for yourself, which is never prescribed, which you do not know in advance, and which simply comes into being of itself when you put one foot in front of the other.²

Beginning the day…

229.0 lbs

… continuing to wake up between 2 and 3 AM, then fitful sleep until 4 AM, then up and get the day started…

… H’s doctor appointment went well, professional confirmation that they have nothing to worry about…

… watched 12 Dates of Christmas last night… pretty much the same concept as Groundhog Day, except it’s Christmas and the woman is the not very nice person who needs to learn a thing or two…

… HCR this morning is all about a Supreme Court decision handed down yesterday on Texas S. B. 8… it denied, for the most part, federal power to bring lawsuits against state-court judges and clerks… HCR makes the case that this will set federal efforts to protect civil rights back… she warns that the implications are ominous… an article in the National Review makes the case that it was a proper decision… an article in Reason Magazine, while being more neutral in it’s reporting, is in line with the National Review article… articles in Mother Jones are supportive of the dessent of Justice Sotomayor… in general, the ruling is viewed as a narrow win for right-to-an-abortion advocates, but too narrow to provide any good prospect of relief… we apparently still await a private individual to come forward and lodge a lawsuit under the S. B. 8 to get to a case that could determine the law’s constitutionality or lack thereof…

… it is ten days till we set out for Florida and Christmas with M…

… i am feeling like i have finally assembled a set of news sources that give me a balanced view of major news stories…