Brent Nyitray
Fairlington Blade
Let the mutherfuker burn!
jnc4p
Kevin S. Willis
Michigoose
lmsinca
markinaustin
Memetrics
novahockey
quarterback
ScottC
yellojktVital Statistics:
| Last | Change | |
| S&P futures | 3,831 | 31.82 |
| Oil (WTI) | 106.38 | 1.84 |
| 10 year government bond yield | 3.09% | |
| 30 year fixed rate mortgage | 5.82% |
Stocks are up this morning on no real news. Bonds and MBS are flat.
The S&P Flash Composite Purchasing Managers Index showed the economy slowed pretty dramatically in June. PMI Indices are based on questionnaires given to business executives, so they are a little more timely than some of the government statistics.
Service industries fared a little better than manufacturers, which is starting to see evidence of demand destruction. New orders contracted for the first time since July of 2020. Pricing pressures show no sign of abating however. Business confidence numbers fell to the lowest in over a decade.
It is possible that we are on the cusp of “bad news is good news” as far as market sentiment – where economic weakness is interpreted as good news for stocks and bonds because it means the Fed may ease up on the brakes. We aren’t there quite yet, but it feels like we are close.
Regardless of the PMI data, the Fed Funds futures are still a lock for 75 basis points in hikes at the next meeting.
New Home Sales rose 10.7% MOM to a seasonally adjusted annual pace of 696,000 units. This is still down over 5% on a YOY basis. The Street was looking for 587k, so this is an upside surprise. Note that April’s number was exceptionally low, so perhaps some sales got pushed to May. Regardless, housing still remains a bit of a drag on the economy.
The University of Michigan Consumer Sentiment index slipped in June to 50. This is a big decline from May, and it confirms the lousy initial reading. This is the lowest reading on record for the index. It is down an astounding 41% on a YOY basis.
Filed under: Economy |
All Things in Moderation 
SCOTUS did it!
6-3 With Roberts concurring in judgment but not opinion.
Click to access 19-1392_6j37.pdf
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Not an apple cart worth upsetting IMO, but abortion isn’t an issue i care about all that much.
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With the issue returning to the states, hopefully we can all stop caring about it that much.
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Well the left isn’t doing themselves any favors in their responses.
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Hah, you might not care but I’m afraid the SC awakened a sleeping giant! Anyone look at Thomas’s words re other rights that could be taken away………….can’t help but wonder who might decide that inter-racial marriage isn’t in the Constitution either???????????? Hey we fought for the vote and we’ll continue to fight for our autonomy! Be careful what you wish for here!
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If I had to choose between overturning Roe v Wade or overturning Wickard v Filburn I’d choose Wickard.
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McWing:
If I had to choose between overturning Roe v Wade or overturning Wickard v Filburn I’d choose Wickard.
Unfortunately Wickard wasn’t on the table. But after reading Thomas’s concurrence, I wouldn’t be surprised if our greatest living justice is trying to get us to a place where it could be.
Baby steps!
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Well, hopefully we’ll get a correct ruling on W.V./EPA and the, fingers crossed, we’ll overturn Chevron Deference.
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I don’t think he’s saying the rights could be taken away so much as they do not exist from a legal standpoint and precious decisions have just made up the “rights” to achieve a desired outcome, rather than insisting the legislative branch do what it’s supposed to do and write laws.
Also I would argue it isn’t “taking away right as” to allow states to limit or manage or regulate things at the staye level.
But irrespective of the desirability of gay marriage or contraception, desiring a “right” to these things doesn’t make the decisions that established them good legal decisions with a sound basis and I’m positive that’s where Thomas is coming from, not a burning desire to outlaw condoms.
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KW:
But irrespective of the desirability of gay marriage or contraception, desiring a “right” to these things doesn’t make the decisions that established them good legal decisions with a sound basis…
Quite correct, but unfortunately in the progressive mind, desiring something seems to be pretty much the only basis required for a legal decision to be deemed “good”.
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Also what are we wishing for here? To have legislatures legislate and courts adjudicate?
I’d rather these things be decided rationally and correctly than to have a bunch of Republicans who will do nothing elected to office because SCOTUS decided to preserve bad jurisprudence for political reasons.
I don’t think it’s a positive to hold doing the right thing hostage to how it will impact a bunch of grifters’ electoral prospects.
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Also interracial marriage and gay marriage are very different things.
Unless you have a basis for saying races should be treated differently, which originalism and textualism just won’t give you.
Gay marriage is fundamentally different. There are biological sexes and they are actually different. Traditional marriage exists for specific biological and practical reasons. Saying it’s now not what it has always historically been is substantively different than trying to say red haired people can’t marry blonde haired people because it’s icky.
Interracial marriage is not practically or legally imperiled by the court overturning Obergefell. And I think it should be overturned.,
There is a remedy to a loss of this newly created right: federal legal recognition of same sex marriage as marriage and the legal equivalent of heterosexual marriage.
The federal government has the right to recognize any sort of union it pleases. Commerce clause should allow them to obligate insurance companies and all sorts of service companies to recognize the same, I would think. So any loss of this new right discovered in the penumbras can be codified into law. Where no penumbras or emanations need to be involved.
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lms:
Hah, you might not care but I’m afraid the SC awakened a sleeping giant!
A “sleeping” giant?!? I don’t know what country you’ve been living in, but here in the US the pro-abortion lobby and its supporters have been one of the most politically active, obnoxiously loud, and influential movements of the last 50 years. For goodness sake, it has literally transformed the way that Supreme Court Justices have been selected and approved. Sleeping? Absurd.
Anyone look at Thomas’s words re other rights that could be taken away…
All Thomas was saying is that the notion of “substantive due process” has literally no Constitutional grounding, it was invented in order to be able to assert “rights” where none exist, and it should be eliminated. And he is correct.
If there are any “rights” that would be in danger in the absence of substantive due process doctrine, it only shows the folly in establishing them in such a corrupt manner in the first place.
can’t help but wonder who might decide that inter-racial marriage isn’t in the Constitution either?
The interracial marriage issue was not decided on substantive due process grounds. It was decided on equal protection grounds, and unlike substantive due process, equal protection is an actual, real clause in the constitution. There is no controversy about its applicability, and Thomas did not suggest it should not be applied.
Hey we fought for the vote and we’ll continue to fight for our autonomy!
Who is we? And unless you are a lot older than I thought, you were born into a world in which a bunch of men had already granted you the vote, no?
Be careful what you wish for here!
All I have been wishing for is that the Constitution be defended and upheld. And today it was, for a change.
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If I had to choose between overturning Roe v Wade or overturning Wickard v Filburn I’d choose Wickard.
yep
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Correct.
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Is there a one sentence explanation as to why Roberts concurred I’m judgement or do I have to read something? 🙃
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Roberts position was that you could uphold the Mississippi law without overturning Roe. I.e. that it was allowed under existing precedent.
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I’m pretty much pro-choice, going so far as to support mandated abortions under certain circumstances. That said, it’s a States Rights issue. This tweet however, encapsulates a lot of base energy.
https://twitter.com/ColoradoAlexCon/status/1540339256115318785
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Maybe that explains the left’s unhinged hatred of Trump…he was actually effective at advancing core conservative agenda items.
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His administration was, in policy. He was not better than other Republicans at making the case, I don’t think. Kaley McAnaney was better at making the case than he was.
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The left’s unhinged hatred was because he was able to punch them square in the mouth and get away with it. The only other R they hated in the same way was Reagan, for that exact reason.
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I’m also pro-choice but Roe v. Wade was awful law and should never we have been passed.
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Technically it wasn’t passed. Which is part of the point.
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I’d actually say that McConnell did more.
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Laughable.
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They’re starting to come to their senses re Liz Cheney.
https://www.dailykos.com/stories/2022/6/24/2106002/-Of-course-Republicans-are-already-gloating-about-destroying-our-constitutional-rights
Her defeat in November will be epic.
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No, that is not what SCOTUS says, it is what the Constitution says. Have you even bothered to read it?
This is what comes from people who think “Constitutional” means “whatever policy desires progressives might have”.
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Our government representatives. Also: this argument works in reverse. The states should be able to say how guns are regulated but not abortion?
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It’s also worth noting that vaccine mandates are regulating a woman’s body too.
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Hmmm, wouldn’t that be arm rape?
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It’s always different when it’s something they want to force you do. Because reasons!
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I think the left no longer argues from logic – it argues from emotion.
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The constitution says I get whatever I want! I have a right to it!
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This italicized part of the comment is unintentionally hilarious.
Cal Worthington
Jun 24, 2022 at 02:55:26 PM
As Justice Clarence Thomas points out in his concurring opinion, for example, the Court not only can but should dismantle our rights to birth control and marriage equality.
Wouldn’t dismantling “marriage equality” affect Thomas’s marriage? Someone please correct me if I’m wrong.
It appears police in riot gear are also on their way to the court…
And this makes perfect sense. Screw having riot police armed and ready on January 6th when everyone paying attention knew there was a real threat of violence at the Capitol, but by god let’s make sure we protect Supreme Court Justices from angry Democratic lawmakers.
My periodic reminder: two presidents who lost the popular vote appointed five Supreme Court justices to lifetime appointments.
“Lifetime appointments.” This shit needs to be changed.
From the same post as earlier.
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Dismantling marriage equality as they define it would have zero impact on mixed race marriages.
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Lol! Yeah Texas based airlines.
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Make aborted fetus McNuggets!
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SiLenCe Is ViOlenCe
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I laughed.
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I admit to not having the time or inclination to read through all the comments here but I did get the impression……………perhaps mistakenly, that at least a few of you support the rights of women to choose…………..congrats if I read that correctly. We’re back in the hospital with Walter so I’m scarce on time here but just as an FYI, the same way I fought for OBAMA’S health care plan I’ll fight for women. My very best friend from high school nearly died having an abortion in Mexico at 17 years old. I can’t forget that! She went on to have 3 children as an adult and loves them all. If abortion is criminalized…………….women and girls will die…………….
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Prayers for Walter! I hope he recovers ASAP – also, take care of yourself Lms, he needs you, always and especially now. He’s obviously a lucky man.
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Thanks McWing, of all the guys here I disagree with the most…………you’re one at the top of my list, but your wishes for me and Walter mean the most. I hope that makes sense to you………….thanks Buddy! Also I find your questions more probing and less judgemental than anyone else here……………sorry guys…………..LOL
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We’re all praying for you and Walter, please keep us posted if you’re able.
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Yes indeed. I hope things go well.
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Lulu, I do, and I hope things go well for Walter…
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I’m functionally pro-choice, although I don’t have any problem with states saying if you haven’t aborted the incipient child within a few months of learning your pregnant, the window has closed.
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The overturning of Roe does not necessarily mean the immediate criminalization of abortion. And attempts to do so at the federal level are unlikely to be successful, IMO.
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” And attempts to do so at the federal level are unlikely to be successful, IMO.”
Unless they get rid of the filibuster.
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Won’t happen under McConnell. Afterwards maybe.
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Interesting sign of the times. Ben Shapiro chats with Matt Taibbi.
https://podcasts.apple.com/gb/podcast/the-ben-shapiro-show/id1047335260?i=1000567738638
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I’ve been on a cruise so the plan is to try and catch up with all the Shapiro podcasts in order, but I’m looking forward to that.
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One unremarked on reason why Taibbi may have shifted a bit is he’s a parent now.
https://taibbi.substack.com/p/on-the-blowback-to-what-is-a-woman
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lms:
If abortion is criminalized…………….women and girls will die…………….
So then vote to keep it legal. Thanks to today’s decision, you and your fellow citizens will actually have a say in the matter. The Constitution has been upheld, and the people have been empowered. A two-fer! What kind of person would object to that?
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Sorry to hear that Walter is back in the hospital lms. I hope things work out well.
I’m pro choice, but I think from a matter of constitutional law Roe was wrongly decided and therefore it was correct to overturn it.
If, as you surmise, a sleeping giant has been awakened in terms of people voting in favor of candidates who support abortion availability and then enact laws to preserve it, then I’d suggest that would be the best outcome rather than having the issue turn on what a judge or a majority of the justices support at any given time.
Ruth Bader Ginsburg is worth revisiting here:
https://www.washingtonpost.com/history/2022/05/06/ruth-bader-ginsburg-roe-wade/
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So I finally finished reading the dissent. Not surprisingly, I suppose, a large portion of the dissent has nothing to do with making any legal arguments. It is, like Roe and Casey before it, more like the kind of evaluations one would expect from legislators trying to argue for/against a proposed bill.
The best, and most convincing, part of the dissent is it’s dismissal of the majority’s insistence that this decision is distinct from, and has nothing to do with, other rulings that rely on substantive due process doctrine. The dissenters are quite correct to point out that, if Roe was wrong to read a right to abortion into the 14th amendment, then by the same logic both Griswold and Obergefell are also wrong. The majority (except for our greatest living Justice, Thomas) elides this fact, but to be honest I have absolutely no sympathy for the dissenters at all on this point, given that the dissenters themselves employed this tactic of explicitly denying the logical implications of their arguments in one decision, only to turn around and apply exactly that logic when those implications arose. And they did it in the very case the fret about now being under threat.
Recall that, in the precursor to Obergefell, the Defense of Marriage Act case, all three of Breyer, Sotomayor and Kagan signed onto the DOMA opinion claiming that “this opinion and it’s holdings are confined to those couples joined in same sex marriage made lawful by the State”, implying that states would retain the right to decide for themselves whether to recognise same sex marriages. But all three then immediately turned around and used the logic employed in the DOMA case as justification for inventing a right to same sex marriage and compelling states to recognise them in Obergefell.
Interestingly, in his dissent to the DOMA majority, Scalia called them out on their transparently dishonest disclaimer, pointing out that he had heard such false assurances before in Lawrence. And the dissenters yesterday had the unmitigated gall to use Scalia’s prophetic predictions in this case to make their own point about yesterday’s majority. Shameless, all of them.
A few lines from the dissent that I can’t help but comment on:
At the least, today’s opinion will fuel the fight to get contraception, and any other issues with a moral di- mension, out of the Fourteenth Amendment and into state
legislatures.
With regard to contraception, this is pure and unadulterated fantasy fear mongering. There is no “fight to get contraception”, and not because of Griswold. It’s because there is nothing close to even a significant minority in any state that desires to outlaw contraception. Such a thing didn’t even exist when Griswold was decided. They had to orchestrate a situation in order to get someone charged under the Connecticut law in order to even challenge it, because it wasn’t even being enforced.
Whether or not [women] choose to parent, they will experience the profound loss of autonomy and dignity that coerced pregnancy and birth always im- pose.
This is a complete non sequitur. There are no laws that “coerce pregnancy”. That they feel compelled to misrepresent the issue should tell us something.
The majority thereby substitutes a rule by judges for the rule of law.
Truly laugh out loud funny, coming within an opinion defending one of the most egregious examples in our history of judges simply making shit up in order to impose their policy preferences. I mean, seriously?!?
(lms…that is what gaslighting is.)
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” The majority thereby substitutes a rule by judges for the rule of law.
Truly laugh out loud funny, coming within an opinion defending one of the most egregious examples in our history of judges simply making shit up in order to impose their policy preferences. I mean, seriously?!?”
Scott, one of the PL commenters yesterday proposed getting rid of the Supreme Court all together as a response to overturning Roe.
Now, assuming that they meant getting rid of judicial review and not just replacing the current SCOTUS with a new SCOTUS selected by Biden, one wonders if they understand where Roe came from in the first place.
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“The majority (except for our greatest living Justice, Thomas) elides this fact, but to be honest I have absolutely no sympathy for the dissenters at all on this point, given that the dissenters themselves employed this tactic of explicitly denying the logical implications of their arguments in one decision, only to turn around and apply exactly that logic when those implications arose.”
Lack of sympathy aside, this point does make the majority (except as you note Thomas) look like dishonest hacks.
I think it would have been better not to address the point at all vs the way Alito did by listing a bunch of decisions that are supposedly not threatened but in fact rely upon the exact same reasoning regarding substantive due process.
That section by Alito is bullshit. And everyone knows it. The majority shouldn’t have given them the opening.
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jnc:
That section by Alito is bullshit.
Agreed, but so is the doctrine of substantive due process itself. It allows judges to just decide for themselves what “rights” they do and don’t want to read into the Constitution. And once the doctrine is accepted, there’s no particular reasons a Judge couldn’t read, say, gay marriage into it but not read abortion into it. It is completely subjective. Especially the progressive application of substantive due process.
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Yes, but if you are discarding stare decisis on a 50 year old precedent (and an older underlying doctrine) because the decision was so “egregiously wrong”, don’t introduce your own line of bullshit at the same time.
It makes it harder to defend on a “Fīat jūstitia ruat cælum” basis.
They should have let Thomas write the opinion.
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jnc:
They should have let Thomas write the opinion.
I completely agree. I wonder if they needed to go the Alito route in order to keep Kavanaugh or Comey (or maybe even Gorsuch) on side.
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I think this is likely correct. The laundry list of other decisions that would supposedly not be revisited was about keeping some of the other jurists in line.
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Totally.
https://m.dailykos.com/stories/2022/6/22/2105577/-U-S-intelligence-brief-suggests-Putin-is-waiting-for-another-weak-willed-Republican-to-be-president
Obviously Biden is impeding Putin.
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You guys are way too prolific for me as far as your comments……………I’m barely hanging on to reality here. I get the idea that the SC found a reason to overturn Roe, but I don’t think they realize what they’ve unleashed. I also understand that sending it back tot he states works in some way but unfortunately, if you’re a woman in AL or MS, or other conservative controlled states you’ve just been relegated to 2nd class citizens who aren’t moral or smart enough to make your own decisions re your reproductive health. I live in CA…………….I’m obviously not still procreating, my girls are not either, but I worry about the generation of women behind me. If a conservative onslaught of house and senate conservatives control the government in the near future what’s to prevent them from making this a nationwide mandate! Dems are weak and R’s mean business! I guess it doesn’t matter what the public wants anymore!
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lms:
but I don’t think they realize what they’ve unleashed.
What exactly do you think has been “unleashed”?
but unfortunately, if you’re a woman in AL or MS, or other conservative controlled states you’ve just been relegated to 2nd class citizens…
Hyperbolic nonsense.
…who aren’t moral or smart enough to make your own decisions re your reproductive health.
More hyperbolic nonsense. It would be useful if you to made at least some minimal effort to listen to and understand why people who oppose legal abortion do so. It has quite literally nothing at all to do with judgements about anyone being “moral or smart enough” to make their own decisions.
If a conservative onslaught of house and senate conservatives control the government in the near future what’s to prevent them from making this a nationwide mandate!
The very SCOTUS decision that you are now lamenting, that’s what. It explicitly says that as a Constitutional matter, the issue properly resides in State legislatures, not the federal government.
I guess it doesn’t matter what the public wants anymore!
So incredibly bizarre. The very purpose and consequence of overruling Roe is that, for the first time in 50 years, what “the public wants” with regard to legal abortion finally will matter. Yet in your mind, the exact opposite is occurring. It boggles the mind.
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What the public wants is arguably specifically not in the mandate of SCOTUS. The mandate of SCOTUS is to determine “is this constitutional?”
Not what the public wants, not what they think is best personally, not what will make them most popular with the media, but what does the constitution say-if anything.
Also humans generally don’t give a shit what “the people” want. They care what they want. If 50.1% get what they want and 49.9% don’t get they want, it’s hard to say “the people got what they wanted” but that’s what the 51.1% are saying, while the 49.9% people are complaining that it clearly doesn’t matter what they people want—because *they* didn’t get what they wanted.
“The people” don’t ever get what they want because 100% of people don’t want the same thing.
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Lms, I don’t agree with your reasoning but I acknowledge that the passing of Obamacare was a galvanizing event for the right on that dark, horrific day in March, 2010. If overturning Roe is a galvanizing event for the left in general and women in particular, how will that manifest itself in November of this year?
Hope Walt is doing better and that you’re able to get some sleep. Are any of your kids able to give you a spell from being at the hospital? I know they’d do it if you’d ask so don’t be afraid too.
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“I guess it doesn’t matter what the public wants anymore!”
It does, but some things are voting issues and others aren’t. Democrats also seem unwilling to give up their most unpopular agenda items to win larger majorities.
And at the risk of making you feel worse, this is a good piece on how progressive advocacy organizations are destroying themselves over “more woke than thou” tests:
https://theliberalpatriot.substack.com/p/the-democrats-progressive-organization
This says it all:
What I do hope is that the Supreme Court strikes down any attempts by states to enforce their laws outside their jurisdictions.
I.e. Texas should not be able to criminalize the act of driving to another state to get an abortion.
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jnc:
Texas should not be able to criminalize the act of driving to another state to get an abortion.
Agreed. And I don’t see how SCOTUS could allow that.
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We’ll see.
Edit: This is the Post, so it falls under “it could be true” in terms of reliability but still disturbing.
“The political environment threatens to pit state against state. Republican lawmakers in Missouri are considering a proposal to criminalize abortions that take place out of state.”
https://www.washingtonpost.com/business/2022/05/04/abortion-pills-online-telemedicine/
I also think SB8 from Texas should be overturned.
https://en.wikipedia.org/wiki/Texas_Heartbeat_Act
Edit: More details. Based around the Texas law
https://www.politico.com/news/2022/03/19/travel-abortion-law-missouri-00018539
https://www.nbcnews.com/news/us-news/missouri-lawmakers-propose-banning-obtaining-abortion-another-state-rcna20465
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jnc:
I also think SB8 from Texas should be overturned.
I haven’t thought deeply about the legal implications, but my initial impression is to agree with you. As a practical matter, Texas should just repeal the law, since it is not needed anymore to get around Roe.
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I don’t think they will per se—but if they wanted to or had a rationale for doing so, couldn’t congress pass a law forbidding that in regards to healthcare or something (interstate commerce) which I really can’t see SCOTUS finding unconstitutional.
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Do you mean a federal law prohibiting crossing state lines to get an abortion? I suppose it is possible that could be done and rationalised under the commerce clause. As it has been interpreted and applied, the commerce clause empowers the feds to do pretty much anything it wants, which is precisely the problem with existing precedents. But, while crossing state lines to commit a crime can implicate federal law, I am not aware of any example where crossing state lines to avoid committing a crime is regulated by the feds.
And as a practical matter I doubt it could ever happen anyway. First of all, the The R’s would have to hold the presidency and both houses of congress. Then they have to have a veto-proof majority in the Senate…highly unlikely. Then you would need all of that majority to be in favor of such a law…even more unlikely. (R’s are most definitely not universally opposed to legal abortion. Far from it, in fact.) Then you would need a Supreme Court willing to uphold it on commerce clause grounds, which at least on the current Court makeup I don’t think you could get. So I just don’t see it as a realistic threat.
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I was actually thinking the opposite, that the federal government could forbid the criminalization of crossing state lines of “healthcare”, because of broad umbrella of interstate commerce.
What you suggest sounds consistent with precedent as well, but as you say I don’t see that happening—nor being acceptable to states rights pursuits. Which I am close to being.
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“So I just don’t see it as a realistic threat.”
That’s not how they are going about it. They are giving private parties a cause of action to sue anyone who aids or facilitates obtaining an abortion, including in another state, ala SB8.
From Politico:
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Snatching defeat from the jaws of victory.
Politicians love government overreach, so long as it’s the right kind for their side.
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No state should be able to criminalize going to another state to do something legal within that state. I can’t see that standing and politicians advocating such policies should be tossed out of office.
I am biased, being 80s-style pro-choice myself (safe, legal and rare) but I’m getting the sense a certain segment of the far-right, abortion-is-the-only issue folks in the GOP are going to potentially do serious damage to the Republicans here in ways Trump, the Democrats and the overturning of Roe by itself never could.
And the media will give them all the coverage they could ever want, in service of this goal.
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What you are seeing is the same thing that happened to the gay rights/marriage groups once they were successful and won at the SCOTUS.
In order to justify their existence, and ongoing fundraising, they had to shift their focus to something more extreme than their original mission.
In that case, it was the shift to trans rights. For the abortion people, it’s a nationwide ban.
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Ugh. Activists suck.
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Straight. Into. My. Veins.
https://m.dailykos.com/stories/2022/6/26/2106335/-Gorsuch-poised-to-accomplish-his-mother-s-mission-of-undermining-the-EPA-in-upcoming-SCOTUS-ruling
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This comment in particularly ironic.
The kochfamily/devosfamily/scaife/peterson/uilein/simmons/mercer families who own the Supreme Court will get what they paid for.
Supreme Court will Rule Congress does NOT have the authority to delegate their responsibilities. Therefore EVERY Agency and Department are neutered. They can make NO rules. Only Congress can make a rule, thereby ending Congress as a legislative body.
BrianParker14 June 26 · 02:17:26 PM
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McWing:
This comment in particularly ironic.
Moronic was the word that came to my mind.
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Some people like the idea of law-making being delegated to unelected “experts” who then further delegate the process to activists or suffer capture by activist organizations.
I don’t. I see why he thinks Congress being unable to delegate lawmaking to unaccountable and anonymous assholes in the bureaucratic state is a bad thing, but I think it would be the best thing that has happened in American governance since the ratification of the Bill of Rights.
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Mind-reading and psychoanalysis by someone clearly capable of neither.
Not to mention the idea that significant power being taken away from the insanely powerful EPA is not a real thing. They might be lightly constrained, which I get why those who believe in benevolent totalitarianism don’t like but I’m all for as many constraints as can be heaped on the bureaucratic state as possible.
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jnc
What I do hope is that the Supreme Court strikes down any attempts by states to enforce their laws outside their jurisdictions.
I.e. Texas should not be able to criminalize the act of driving to another state to get an abortion.
Hmmmmm, I kind of doubt that this is a viable opinion. I don’t disagree with states having some kind of control over abortion but if you really think this ends with the states then I think you’re naive. I honestly believe the goal is to take abortion out of the hands of states and make it a national mandate if R’s can swing that. Government controlled reproductive rights is the end goal IMO.
It’s a sad day for women and if we look back to the 13th and 14th amendments, I think women have just been reverted back to 2nd class citizens…………..too dramatic?
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“I honestly believe the goal is to take abortion out of the hands of states and make it a national mandate if R’s can swing that”
Sure. But then that law could be challenged and found unconstitutional, potentially. If it passed. Which is not super-likely. And if passed it could be overturned.
But I don’t think it will pass. You have to horsetrade and lose things you really want to make a deal on something like that. You’d have to have exceptions in the case if rape and incest and life of the mother at minimum or it’s a non-starter.
And I think it would have to be more than that. Legitimize Plan B. Broad definitions of “life of the mother”. The requirement for exceptions might eventually lose hard-liners and they’ll never be able to put together a bill that can actually pass. Not house and senate both. And then if it passed it could be challenged and potentially defeated on similar grounds to the overturning of Roe.
And while I don’t know that the ending of Roe has awakened a “sleeping giant”, a nationwide blanket ban on abortion certain would cause a huge backlash.
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lms:
Government controlled reproductive rights is the end goal IMO.
Definitely not. The end goal is government controlled access to legal abortion. The right to reproduce as and when you want has never and will never be an issue.
too dramatic?
No, just too hyperbolic.
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“Government controlled reproductive rights is the end goal IMO.”
For whom would be my question? For the folks here and the votes to overturn on SCOTUS the goal would be to have 9 elected justices stop finding new rights and making up new laws and doing so shoddily. To continue to push against the idea that as long as you like the outcome it doesn’t matter what process is used or abused to reach that outcome.
For some people it might be about controlling reproductive rights entirely (defined as banning all abortion and birth control) but I don’t think that’s man people. For many more it’s likely about preventing abortions entirely, which they see as murder. Which should be an easily understandable position for anybody, even if you don’t agree with it.
I’m all for more federalism. Let the states decide. Then compare results.
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“The right to reproduce as and when you want has never and will never be an issue. ”
Unless Griswold is overturned.
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jnc:
Unless Griswold is overturned.
No, I don’t think that is an issue relevant to Griswold. Griswold was about a law restricting the availability of birth control, not a law either compelling or prohibiting people to/from reproducing. The “reproductive rights” framing is a semantic marketing ploy. It does not reflect reality.
Besides which, overturning Griswold would require passage of a law that prohibited access to birth control, and I don’t see that happening anywhere. As I pointed out the other day, there isn’t even a significant minority, much less a majority, that thinks birth control should be outlawed.
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Under your framing of “reproduce as and when you want”, Griswold is relevant.
Birth control is all about controlling the “as” and the “when”.
Edit: also as an aside, it was an issue from the other direction in the military where the unofficial policy for a woman who became pregnant while serving was to either get an abortion or be discharged.
Ruth Bader Ginsburg thought that was a much better angle to approach the issue from in terms of establishing a constitutional basis for reproductive rights for women.
https://www.military.com/history/how-ruth-bader-ginsburg-helped-end-militarys-policy-of-forced-abortion.html
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jnc:
Birth control is all about controlling the “as” and the “when”.
It is one way, but not the only, or even the most reliable, way. With one single (criminal) exception, the power not to reproduce is always under a person’s control, and no one is suggesting that change.
No one is proposing to either outlaw or compel the behavior that actually results in reproduction. Everyone has, and will retain, the right to reproduce. And anyone who doesn’t want to reproduce will not be compelled to do so by any law. Your “right to reproduce” will be intact.
The “reproductive rights” framing is just abortion propaganda, a euphemism used to distract from the actual issue. With regard to abortion, what is desired by the pro-choice movement is not a “reproductive right”, but rather the right to do something after having already reproduced.
I don’t think the phrase is any more applicable to contraception, unless one is going to contend that no one in the history of the world prior to the commercialization of condoms ever had “reproductive rights”. Personally, I don’t think it makes sense to use the phrase that way.
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As noted previously, I’m taking the abortion argument out of the equation and focusing here on Griswold.
My point is that there’s no other reason to ban contraception other than to control reproduction.
I’m leaving aside banning specific contraceptive devices that may be proven to cause injury to the user that would be covered under normal product defect laws and instead addressing what Griswold actually focused on, the banning of all contraceptive devices.
Now, to take your point, yes they are still allowing reproduction, but I’d argue that by attempting to outlaw the ability to have sex without the risk of pregnancy (which was clearly the point of the Comstock Laws), then that impacts the ability to “reproduce as and when you want” and instead substitutes the state’s view of how and when for the individual’s.
Now, that may well be constitutional, but I don’t want to minimize the impact of over turning it.
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This is where “privacy” is most easily understood as not a mere “penumbra”. The right to be free from unreasonable search and seizure seems more than a procedural due process issue. A statute that says the police can enter your home and arrest you for having sex with condoms makes lawful a search and seizure that seems to nullify the entire protection against unreasonable search and seizure.
Or so it seems to most of us. And what the Founders thought about it is lost to history if it was ever known to anyone.
It isn’t ludicrous to suggest that the BoRs address many privacy concerns, including both liberty and property rights. As these are broad stroke rights, there is plenty of room for interpretation as to how statutes affect them. And I think the Court has been getting eminent domain wrong for a long time. Be interesting to see if this new majority deals with that.
On a related note, I now expect Roberts to plan his resignation soon. He has lost control over his Court and I am sure he would just as soon be doing something else now.
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mark:
On a related note, I now expect Roberts to plan his resignation soon. He has lost control over his Court and I am sure he would just as soon be doing something else now.
Just because a majority of justices disagree with him? Has a Chief Justice ever resigned as a result of being unable to convince any of his colleagues to join him in an opinion?
BTW, it isn’t even clear to me that he does disagree with the majority opinion, as a substantive matter. He was basically saying that we shouldn’t overturn Roe in this case, not that it shouldn’t be overturned at all.
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jnc:
As noted previously, I’m taking the abortion argument out of the equation and focusing here on Griswold.
My original point was to take issue with the whole “reproductive rights” framing of abortion. You then seemed to suggest that it was an accurate framing with regard to contraception. I disagree, for reasons already stated.
My point is that there’s no other reason to ban contraception other than to control reproduction.
Perhaps, but the problem with such a plan is that it wouldn’t achieve the purpose. Banning contraception does not, in fact, give the government any control whatsoever over when people do or do not reproduce. If people want to reproduce, such a ban is not going to stop them, and if they do not want to reproduce, such a ban cannot in itself cause them to.
Look, I am not in favor of, and I would vehemently object to, any (extremely unlikely) effort ban contraception. But I also object to these false appeals to people’s emotions. I think we should understand and argue against opposing positions in good faith, not pretend they are something they are not. Neither a ban on abortion, nor a ban on contraception would be about “controlling” anyone’s body. Bans on abortion are about wanting to protect innocent life, and bans on contraception (in the very unlikely event they were to happen) would be about advancing a radical religious view about the morality of sex (which, again, is one reason why I am confident it will never happen…it is a radical idea rejected by the vast majority of even religious people, let alone a vast majority of the population at large.
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“This is where “privacy” is most easily understood as not a mere “penumbra”. The right to be free from unreasonable search and seizure seems more than a procedural due process issue. A statute that says the police can enter your home and arrest you for having sex with condoms makes lawful a search and seizure that seems to nullify the entire protection against unreasonable search and seizure.”
I don’t see how a meaningful constitutional distinction can be drawn between sex with condoms and using illegal drugs in terms of police powers of the state and local governments here. See also the regulation of conduct in Lawrence.
I’d love it if an actual “right to bodily autonomy” existed in the Constitution, but I don’t believe it does, or certainly isn’t recognized consistently.
I guess my disagreement with Scott is over the implications of that.
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jnc:
I guess my disagreement with Scott is over the implications of that.
I think our disagreement is over how those implications are framed, and perhaps the likelihood of those implications coming to pass, not the implications themselves. I fully agree with your analysis above.
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“Neither a ban on abortion, nor a ban on contraception would be about “controlling” anyone’s body. Bans on abortion are about wanting to protect innocent life, and bans on contraception (in the very unlikely event they were to happen) would be about advancing a radical religious view about the morality of sex (which, again, is one reason why I am confident it will never happen…it is a radical idea rejected by the vast majority of even religious people, let alone a vast majority of the population at large.”
I think it’s both.
In the case of abortion, in order to further the goal of protecting innocent life (to accept the framing given above), anti-abortion laws control the body of the mother for the duration of the pregnancy to the extent necessary to prevent her from terminating it.
Analogous to justifying a vaccine mandate that requires some level of control over a person’s body to prevent the spread of a communicable disease.
Another consideration in terms of a “right to reproduce” is the status of forced sterilization laws.
Also recognize that I’m being pedantic about your use of “as and when you want” in qualifying this which I think is where the crux of the disagreement is.
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jnc:
In the case of abortion, in order to further the goal of protecting innocent life (to accept the framing given above), anti-abortion laws control the body of the mother for the duration of the pregnancy to the extent necessary to prevent her from terminating it.
If that represents “control” of a body, then all kinds of existing laws represent “control” of a persons body. The existence of drug laws, I guess, means that the government controls everyone’s body. Age limitations on use of tobacco or alcohol means that the government controls the bodies of all minors. Prohibitions on selling your own organs means the government controls your body. Maybe you actually believe all those things, but have you ever characterised any of them as “controlling people’s bodies”?
Besides which, in most cases it isn’t the act of receiving an abortion (or using contraception) that is outlawed, but rather the act of providing it that is outlawed. If legal prohibitions on the provision of some good or service that might implicate a person’s body represents “controlling” the bodies of anyone who would otherwise seek that good or service, then the universe of government “control” over all of our bodies has expanded even further.
To me, the whole “controlling bodies” rhetoric is just an appeal to emotion, not a rational characterisation.
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I think it’s about shifting the rhetorical window. And keeping it about women’s autonomy and avoid any shifting towards the conservative side of the argument. Primarily that it’s not about bodily autonomy but the life of an unborn child. To both sides of the issue it’s about entirely different things. So “controlling women’s bodies” will always be the issue on the left, while preserving the sanctity of life and the lives of the innocent and helpless unborn will be the focus on the right.
Hard to meet in the middle on the issue with both sides of the divide are kind of absolutist. Is what it is.
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“but if you really think this ends with the states then I think you’re naive.”
I fear you may be right.
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Brent, the sharp S&P rise seems to have been based entirely on the hope the Fed would not sharply increase interest rates. But the Fed will sharply increase rates, at least once more, so I take the S&P rise to be very temporary. What do you think?
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you mean over the past few days? I think a lot will ride on whether we get any sort of financial contagion out of rising rates. So far, we don’t seem to be seeing anything like that.
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On RvW, I was with the CJ. On strictly judicial construction rules, the case should have been decided, period. Reaching outside the case at hand to address issues not presented is the essence of activism. Like SDO’C and Roberts, I tend toward minimalism, restraint, and incrementalism.
This is natural for anyone who practiced law as a lawyer rather than as a judge because we want to predict what the result of a case will be for our clients. This is difficult when courts go outside the question presented and overturn precedents in their entirety.
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Mark:
Reaching outside the case at hand to address issues not presented is the essence of activism.
I’m not sure it makes sense to characterize the elimination of an activist precedent as itself activism. If addressing issues not presented is activism, then Roe was activism on steroids.
I don’t think anyone who ever supported Roe can sensibly condemn another opinion for being “activist”.
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I think Roe addressed the issue presented, but if it had been limited to Texas’ statute it would have been more focused, I agree. And I would have agreed then, as well.
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Mark:
I think Roe addressed the issue presented
I believe the issue presented in Roe was whether or not Texas’s ban on abortions was constitutional. The issue of viability, trimesters, when a state is allowed to have an interest in regulating abortion, how that interest grows over the time of a pregnancy, and how it must be weighed against the “health” of the mother were not issues before the Court in Roe. But the Court addressed and asserted the existence of a Constitutional imperative on all of them.
And I would have agreed then, as well.
You were actually around back then. Did you? We’ve had a lot of discussions about Roe here over the years, and I only remember you defending it.
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My personal view, at the time, was that the decision was too broad, but I did not disagree with the result. The narrow decision I would have favored would have simply recognized that only persons born have constitutional rights so that giving a fetus a statutory right against its mother was a fiction in violation of equal protection, akin to giving pets rights against persons. However, that would have probably limited the holding to cases that affected the health of the mother, or the cases where the mother was forced to be pregnant by incest or rape or duress. In fact, NOW in Texas asked me to testify to the Lege about abortion and I would not, because I could not sincerely argue for the broadest statute NOW wanted, in the light of Roe.
I should add that Sarah Weddington, who argued the case, was a personal friend of mine as was her husband, also an attorney, with whom I played softball every Sunday. So having a friend who won a huge case in the Supremes certainly dampened my public criticism of its breadth.
Once it had become established law, I saw no compelling reason to mess with it. It had the seeds of its own diminution within it. The Court, instead of making “birth” the moment of when a person was born, assigned “viability outside the womb” as the moment when a person was born. And the time for “viability” was going to inevitably shrink.
There are churchy people who want to make conception the date of the moment the Constitution describes as “born”. That would be glorious for illegal aliens, I guess.
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Mark:
The narrow decision I would have favored would have simply recognized that only persons born have constitutional rights so that giving a fetus a statutory right against its mother was a fiction in violation of equal protection, akin to giving pets rights against persons.
I don’t understand this, on several fronts. First of all, the mere fact that only persons born have constitutional rights does not prevent legislatures from granting statutory rights to not-born persons. Your own example makes the point: we do in fact have animal cruelty laws that protect pets against persons, and no one has argued that they are unconstitutional on the grounds that born persons have Constitutional rights and animals do not. Because, of course, no one thinks that the Constitution recognises a right of born persons to do sadistic things to animals. What matters, of course, is the substance of Constitutional rights, not the mere fact of them.
But beyond that, Roe itself was not even about the granting of statutory rights to persons not born. It was about whether or not states had the Constitutional power to regulate access to a medical procedure, namely abortion. The majority in Roe claimed that the state did not have such a power during the first trimester only because, it asserted, the right to privacy that it had “discovered” in Griswold implied a Constitutional right to abortion, at least until viability. And, under the substantive due process doctrine, the state cannot violate a Constitutional right.
So I don’t think your rationale could possibly have gotten you to the result you say you desired. That isn’t what the case was about.
It had the seeds of its own diminution within it.
It should have, but the ruling in Doe, which was explicitly intended to be read in tandem with Roe, removed those seeds for all practical purposes.
There are churchy people who want to make conception the date of the moment the Constitution describes as “born”.
There are, but it doesn’t seem like something the Supremes would ever embrace. None of the progressives would (unless/until, I suppose, there is a policy desire they have the would require it, and legal abortion is not that policy), Kavanaugh explicitly rejected it in his concurrence, and Thomas, being the most principled originalist, is highly unlikely to embrace such a thing. Alito perhaps only slightly less unlikely. I don’t know about Gorsuch or Coney-Barret, but the chances of a majority taking that position seems absurdly remote. And I would certainly object if they did.
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First of all, the mere fact that only persons born have constitutional rights does not prevent legislatures from granting statutory rights to not-born persons.
Let’s be very clear – elevating the life of a fetus over the life of an expectant mother is state interference with the right to life of a person in favor of a non-person. That is easy. But I think health is a life right as well, in the case law then existing, so that elevating the health of a fetus over the health of a pregnant woman is also an infringement of the right to life of a person in favor of the right to life of a non-person.
I think that is very straight forward. As would be elevating a pet’s right in a way that infirnged on the life or health of a person.
This does lead to a more limited result than Roe. But I think it would have been correct.
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Mark:
Let’s be very clear – elevating the life of a fetus over the life of an expectant mother is state interference with the right to life of a person in favor of a non-person.
Perhaps, but that is not relevant to Roe v Wade because the Texas statute that was overturned did not do that. It explicitly allowed for abortion to protect the life of the mother.
But I think health is a life right as well, in the case law then existing, so that elevating the health of a fetus over the health of a pregnant woman is also an infringement of the right to life of a person in favor of the right to life of a non-person.
Maybe, but that too was not relevant to Roe. Roe’s claim was not that she needed an abortion to protect her health. Indeed, by the time the case was decided, she had already had the baby without any health problems, and she ended up living to the ripe age of 70. Had health been the real concern, then presumably her lawyer, your friend Sarah Weddington, would have used her experience in getting women legal abortions to get McCovey an abortion and protect her health, rather than keeping her pregnant so as to be able to maintain “standing” in order to challenge the law.
It seems that, even under your reasoning, the Court would have had to have reached beyond the immediate case in order to come to the conclusion of which you approve. So your criticism of the Dobbs majority on that “activist” front rings a little hollow to me.
I think that is very straight forward.
If it really were that straight forward, then it is odd indeed that no court in the US recognised it for the first 184 years of the Constitution’s existence. Or the first 105 years of the 14th amendment’s existence, if that is where you think the right resides.
In 1966 the Animal Welfare Act was passed, regulating the way in which animals can be experimented on, even when those experiments are being done as a means of protecting the health of born persons. Do you think those regulations are unconstitutional, and that the case for their unconstitutionality is “straight forward”?
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You are correct in stating that was not the Roe case before the Court. And it is not the case I would have preferred to have been brought at the time. Probably could have raised it the way I wanted to in Dr. Hallford’s criminal defense.
BTW, here is an interesting article from the Jesuit magazine:
https://www.americamagazine.org/faith/2022/06/27/abortion-dobbs-catholic-exceptions-243163
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Mark:
BTW, here is an interesting article from the Jesuit magazine:
Thanks, it was interesting. But the question of how to determine what would qualify under a “necessary to save the mothers life” exception isn’t a particularly unique problem. The law is rife with that kind of indefinite language, requiring prudential judgement all the time. The most obvious analog is the use of deadly force in self-defense.
One can find edge cases that might challenge the application of almost any law, and about which reasonable people might disagree, and sure, it is worth thinking about those edge cases. But the fact that edge cases exist isn’t an argument against the law itself.
BTW, the author says this:
If one’s goal is to maximize the number of both women and children who survive, then crafting these laws will require careful triangulation, calibration, policy expertise and democratic compromise.
Yes, and that is exactly why the issue is best left to legislatures, not Courts.
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I should have guessed that you would know the people directly involved with it. Another reason to write the memoirs.
https://en.wikipedia.org/wiki/Sarah_Weddington
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Seconded. Get to work on those memoirs, Mark!
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Mark, what you say sounds right to me. What would be the correct approach from the outside to get Roe overturned?
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Damn, no W.V. vs EPA today.
Wednesday maybe.
Chevron, we’re coming for you.
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