Since everywhere I turn, people are going on and on about this (I had to do a good bit of clicking to find stories that weren’t about this on my NPR phone app today) — even though it hasn’t actually happened yet — I’ll offer a few random thoughts about it:
First, why the leak? What exactly happened, and why? My first thought, of course, was that a pro-Roe clerk leaked it for any one of a number of reasons — to cast an aura of illegitimacy upon the decision by having it revealed unconventionally; to damage the court overall by tossing a grenade into the system of trust and discretion that has always been observed by those who work there; to try to exert direct and indirect pressure on justices to amend the decision by causing such a splash; and so forth. Or for that matter, someone on the other side thought, “This is going to be so huge that we should let people get used to the idea first.” But there doesn’t have to be a political angle. Someone might have simply been unable to keep a huge secret. Some people are like that. In any case, I hope Roberts can get to the bottom of it and make it amply clear such a thing is not ever to happen again. And of course, this is to be the end of the career of the perpetrator.
Democrats need to calm down. As you know, one of a number of reasons why I’m not a Democrat is this issue. It’s not simply that we disagree; it’s that they tend to be so rigid and adamant on the subject. The fury at any opposition to their position is over-the-top. And predictably, Democrats are saying a lot of foolish things, because they’re upset right now. As I have said every election year for the last few decades, the last thing we need this year is to have an election that is all about abortion. It’s also the last thing Democrats need. They need to stop talking like they absolutely don’t want a single person who disagrees with them on this to vote for them. Because if they keep it up, not a single one will (more or less). And Trumpism will be triumphant. I just wish I could get them to understand one thing: As adamant as their own base is, almost every word they utter to please that base alienates others who might have voted for them. If they could see what I see as a strongly pro-Biden Catholic, all this would be obvious. We wouldn’t even be talking about Trumpism, or whatever you want to call the insanity that has gripped the GOP, if it weren’t for the fact that — against all reason — about half of Catholics voted his way, because of the position that Democrats take on abortion. If not for that, and Trump’s willingness to exploit the situation, no Trumpist would ever be in hailing distance of an electoral victory.
What will happen next, legally? This is a subject I generally try to avoid because I believe far too much public conversation tries to make predictions, and we don’t know what’s going to happen. But to touch upon the subject — one of the ways some Dems are reacting is to say other Kulturkampf issues will now go the other side’s way — same-sex marriage and the like. Because, you know, that’s the way they think. Ones and zeroes. It seems more rational to think that issues actually related to the legal underpinnings of abortion would be on the line. Such as the imagined right to privacy that Griswold gave us. But we’ll see.
What will happen next, politically? Well, it’s going to be awful. In every state, and nationally. (Even though it will become more of a state issue, do you think people on the national level are going to quiet down? They will not.) And it will be ugly, and it will go on and on, and no one will have the energy to expend breath on things we might be able to get people to agree upon, because they’re too busy shouting about the things that divide us the most. Of course, things have been this way for awhile.
I’ll stop now. I’m not even going to go into the substance of the draft decision, because I’m satisfied to wait and see the final decision. But I thought I’d provide a place for y’all to talk about it.
If you want someone who HAS taken more of a look at the substance of the draft, I refer you to what attorney and former state Rep. Hunter Limbaugh (who I believe holds the distinction of being the only attorney who has ever cross-examined Brad Warthen in court) wrote today on Facebook:
I hope Roberts can get to the bottom of it and make it amply clear such a thing is not ever to happen again. And of course, this is to be the end of the career of the perpetrator.
(EDITED) Voters have a right to know what the court is thinking so they can make informed decisions before the primaries. I absolutely detest this secrecy crap from our government. No good comes from hiding something this important from the public. I’d give the leaker a medal. A true profile in courage.
“Never believe anything in politics until it has been officially denied.”
If not for that, and Trump’s willingness to exploit the situation, no Trumpist would ever be in hailing distance of an electoral victory.
You’re on a (nonsense) roll tonight. Democrats would have no chance if they suddenly embraced the anti-choice agenda. Democrat have a decidedly pro-choice base that is very passionate. All an anti-choice Democrat would do is lose WORSE. Doug Jones won in very red Alabama because he go his base out.
Poll after poll after poll shows strong support for retaining Roe. Biden would have certainly lost had he be anti-choice.
Note the language Bud uses. See how he thinks in terms of absolutes. You’re either loudly, angrily in favor of abortion “rights,” or you’re “antichoice.”
And yet, the world isn’t like that. There are as many different positions on this, and every other issue, as there are people.
But the more we frame things as being about ones and zeroes, the farther we get from any ability to deal effectively with difficult issues…
one of the ways some Dems are reacting is to say other Kulturkampf issues will now go the other side’s way — same-sex marriage and the like. Because, you know, that’s the way they think. Ones and zeroes. Conservative Justice Samuel Alito, who authored the draft opinion, also specifically criticizes the landmark civil rights cases that legalized marriage equality, Obergefell v. Hodges, and that legalized private consensual sex, Lawrence v. Texas.
Damn Brad. After you got it so right on the death penalty you are falling on your face with this one. We absolutely do need to be concerned. Rather than ones and zeros nonsense maybe we should focus on what the extreme right is saying. From Huffpo:
Conservative Justice Samuel Alito, who authored the draft opinion, also specifically criticizes the landmark civil rights cases that legalized marriage equality, Obergefell v. Hodges, and that legalized private consensual sex, Lawrence v. Texas.
Referencing those two cases, Alito eerily says that, like abortion rights, “None of these rights has any claim to being deeply rooted in history.”
Brad, one very small comment. I won’t get into the politics of the abortion but this was much more than simply “keeping a secret”. Some one released the actual document. That means some one with access to the document, some one provided access to sensitive information, some I’ve trusted, released this document. And this wasn’t simply word of mouth, the document was provided (either hard copy or electronically) to a source outside the Supreme Court. My guess is this document leak required some real effort beyond just telling a friend a secret.
I’ve read various legal opinions on the merits of Alito’s argument. Some are supportive as the part mentioned above and some are poking holes in it, especially as it relates to some of Alito’s reasoning in past rulings. Alito is seen as the most partisan judge on the right side of the court- I think that is arguable with Thomas sitting there.
I agree this is a gift to Democrats in many ways. I think this could get some off the sidelines and back into the voting booth. It seems many people that have voted Republican in the past voted on the issue of abortion only. Will that matter as much anymore? If it doesn’t, as Kathleen Parker wrote yesterday, Republicans might not have much of a chance to win the Presidency if the issue falls away.
But for everyone except poor women, this decision won’t have much of an impact. Poor women won’t have a choice at all.
People like me will be able to access abortion services for family members if needed. That’s always been the case. Nothing has really changed except now it might take a plane ticket or a long drive.
The effort now will shift- as it already has- to organizations that raise money for poor women to travel.
The number of abortions have already fallen off because pregnancy rates have fallen off so dramatically with younger people.
“Poor women won’t have a choice at all.”
That is untrue except in the case of rape and incest.
Maybe we should focus on educating poor women on the negative consequences of risking pregnancy to reduce the number of abortions. There’s only one way to get pregnant in the case of consensual sex. There’s one way to prevent it 100% — hopefully I don’t have to explain the biology to you. There are also a myriad of ways (free — by tracking periods, cheap – condoms or for poor women access to free birth control) to greatly reduce the risk. Unprotected sex by poor women that leads to choosing an abortion to deal with the result of a decision is not a “woman’s health” issue, it’s a responsibility issue. Sure, retain access to abortion — but let’s not make it about trying to defend the rights of poor women.
No. I was correct that poor women won’t have a choice. Especially those that are raped- and poor women are indeed raped. In fact, many of them face a higher probability of being raped.
Plus, we’ve educated men and women about the consequences of sex for centuries, and like it or not, educating men and women about sex doesn’t always work like you think it should. That’s because people are human beings. That not only applies to poor people.
That also applies to the likes of a former Anti-Choice republican in Congress who paid for his mistress to get an abortion- or a former Republican Tennessee lawmaker who paid for his mistresses to get an abortion in Atlanta while he was trying to outlaw the procedure in Tennessee.
Criminalizing the process of abortion and doctors that perform such procedures means that doctors in those states won’t be willing to perform the procedure in a hospital, surgery center, or clinic under any circumstances. Many medical providers don’t provide that service know no matter the particulars of why they want an abortion.
Many states in restrictive states already only have one center that is willing to perform abortions- in some restrictive states only 1-2 medical providers are willing to provide one now.
Some of those states have already closed training programs for providers that would perform abortions. A report just a few weeks ago on PBS described that abortion procedures are no longer taught at Oklahoma’s 2 medical schools. The report described the process: A doctor who wants to learn about a procedure would be linked up with an outside doctor to learn about the process and procedure. In Oklahoma, that’s not possible.
Idaho passed a law that said no state school could teach anything related to an abortion procedure to any medical student.
The result of that is women in those states have to travel to other locations to obtain an abortion or talk to a medical provider that has experience performing one to review all possible options.
Poor women, without significant help, will not have that choice to receive or discuss that option with a trained, experienced provider.
People in my family, and those like them, will be able to obtain abortion services with a plane or car trip.
“Because, you know, that’s the way they think.”
That’s an insult to thinking people. Because all the commentary by thinking people that I’VE heard so far (and I’m talking about experts in law) is that Alito’s argument does indeed open up pathways to overturn other important precedents. And the break with the ’73 and ’92 rulings, along with other recent decisions, points to a likelihood that the Court’s reactionary majority is not only ready but eager to overturn other established precedents. And then there’s the commentariat: Jennifer Rubin, for example, who has never identified as a Democrat, writes “It’s important to identify the nature of the threat to Americans to understand the reaction that would likely follow a ruling along the lines Alito laid out. A Supreme Court decision that would criminalize abortion, eviscerating the ambit of privacy and personal autonomy afforded by the 14th Amendment, would expand governmental power into every nook and cranny of life — from a doctor’s office in Texas treating a transgender child to intimate relations in a bedroom in Georgia to a pharmacy counter in Ohio. Will government dictate a set of views that have not had majority support for decades? Let’s call it what it really is: state-enforced theocracy, or if you prefer, religious authoritarianism.”
The paragraph on Democrats is similarly biased. One could just as well demand that Republicans give up their general opposition to abortion. Also, the appeal of Trump or Trumpism cannot be limited to any single position, no matter which demographic is involved.
The anti-abortion side once applied the motto “Choose Life,” a recognition that there are grounds for moral choice on this issue. But they abandoned toleration and instead have pushed to eliminate moral reasoning and moral choice altogether and declare only one choice moral. In doing so, they set loose a storm of moral outrage that will undermine what they seek to achieve. Same as when abortion was outlawed in the past. Though in the process contributing to increased hardship among the least among us. Scarcely a very moral stance.
For myself, I will join any effort to transport women in need north toward freedom.
The Supreme Court seeks to set back the clock. We will break their clock.
In the meantime, here is some information to share:
I said “that’s the way they think.”
You deemed that an insult, and then went on to demonstrate that yes, indeed, people do think that way.
Right now, a lot of emotions are being felt — by all sorts of people, including the usually calm Jennifer Rubin.
Look at those assertions:
Whoa. Calm down a bit. Every one of those assertions is extremely questionable, and calls for extended explanation as to why the writer would reach such a conclusion.
But we don’t get that. What we get is people on one side saying “Damn right!” And people like me asking “say WHAT?”
And we have habits of thought that make it hard even to have a conversation. For instance, right now someone reading this is thinking — and perhaps shouting — Of COURSE it would “criminalize abortion,” by removing the protection for the practice that Roe created!
No, what it would do is remove that protection — that completely illogical and unreasonable protection, which granted individual people the power to decide whether other people (oops! here we go off on a tirade about how the unborn are not “people”) will live or die, without any semblance of due process.
What would happen after that would be a legislative matter, as it always was before Roe. And that process of debate, in venues across the land, will be heated and horribly unpleasant, as I said above….
And wow, did y’all see the headline on that column? “Let’s throw out the term ‘culture wars.’ This is religious tyranny.”
Wow. Did she write that, or approve that? (It’s hard to say, in these post-print days.)
I’d like to think not, because I’m a Jennifer Rubin fan. Of course, there’s no one on the planet I’m going to agree with all the time. And sometimes, I’ll be very much at odds even with the thinkers I admire most. (Once or twice, I even disagreed with Joe Riley about something — which, if you know me, is perhaps startling.)
But we’re going to see a lot of this sort of thing in the coming days. And it’s going to be very, very unpleasant….
I listened to Duke University Law Professor Neil Siegel today offer a number of counterpoints to Alito’s argument. Very good response.
Of course he doesn’t have a vote. But it was refreshing to hear a law professor offer counterpoints to Alito’s legal theories.
and yes, he did mention that Alito’s reasoning and logic did open up the vault for others to challenge things that Americans take for granted these days – if Alito remained consistent- which isn’t always the case with him.
and of course Alito and Thomas have also ruled things “unconstitutional” even when Congress (the people’s representatives) passed legislation.
So it has much more to do with what Alito agrees with – not if Congress or a legislature passes a bill.
That’s why I always say the court has Democrat justices and Republican justices.
Ruben is both passionate AND correct. The court is doing all the things she said. The court is taking the extreme position. Sometimes people overstate a point of view. Not this time.
Just heard a comment on Sirius radio –
“The court sure is upset at a violation of their privacy. I bet the irony doesn’t occur to them.”
I read that right wing hack Jonathan Turley said this was “the loss of innocence” for the court which will NOW be viewed as a political actor.
oh-Turley also just realized that politicians are prone to not being truthful. Clearly a new revelation for him.
Wow. Talk about a distinction without a difference. Of course this will criminalize abortion. Several states have trigger laws that automatically criminalize the act AS SOON AS ROE IS STRUCK DOWN. This is about as extreme as any court ruling in history. It takes away a fundamental, well established right that may not end at Roe. It’s worth noting this ruling will be passed by 4 justices appointed by presidents who didn’t win the vote of the people. Welcome to Gilead!
Could Griswold v. Connecticut fall as well?
because the word ‘contraception’ or ‘birth control’ doesn’t appear in the Constitution.
There are a number of right wing politicians that don’t like the idea of contraception (at least for other people. They are often ok with it for their own families).
With Griswold, the relevant word is privacy.
And no, that’s not in the Constitution. The justices saw a “shadow” of such a right…
So you would ban women from using contraception?
You want politicians to debate whether women can use contraception?
What? Good Lord…
I’m talking about the imagined constitutional right to privacy, not to birth control…
You can have a debate about birth control if you like. My concern is that whatever the original topic being addressed in that case (could have been any topic, really), when it got to the Supreme Court, it went to a rather crazy place — finding new rights in the “penumbrae” of the Constitution…
Bill of Rights, Article IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Unenumerated rights: rights that are not expressly mentioned in the written text of a constitution but instead are inferred from the language, history, and structure of the constitution, or cases interpreting it.
Examples include the right to travel freely in the country, the right to attend religious schools, and the right to be presumed innocent in a criminal case until proven guilty beyond a reasonable doubt.
Yep, and we should always be open to discussing such things.
What we should NOT do is shut down the democratic process for 50 years with an absolute “right” that is not enumerated.
See, that’s the thing. We can all claim to see things in the Constitution, and advocate strongly for these things. But with Roe, one side was declared the winner, and the discussion ended.
I have no problem if such a decision is based on something like free speech, which is clearly enumerated. I do have a problem if we do that with something from the shadows, something inferred…
You can see that, right?
*All* unenumerated rights are inferred. For example, the presumption of innocence is not mentioned in the Constitution but is inferred from the Fifth, Sixth, and Fourteenth Amendments, specifically the due process clauses of the Fifth and Fourteenth Amendments. However, “due process” is *not* defined in the Constitution nor in the amendments in which it appears. It took Coffin v. United States (1895) to establish this as a legal right and was based on the history of the principle of the presumption of innocence in English and American legal doctrine.
All this to say that, just because “it is not in the Constitution” does not necessarily mean it is not a “right.” You can certainly argue against the Court’s reasoning in Griswold, but not that the absence of privacy in the Constitution dos not mean it could not be a right.
Good points, James, filled with lucid, intelligent, well thought-out objections to my points. We need more of that.
As a communitarian rather than a libertarian, I tend toward thinking more about responsibilities than rights. But lately I’ve been thinking about them a lot — and doing so a bit defensively, since the author of Sapiens is so dismissive of them.
Basically, he asserts that there is no such thing as “rights.” But those of us who cherish our rights shouldn’t be offended, because he holds that God doesn’t exist, and that nothing from liberalism through socialism is real. They’re all fictional constructs created by man. Like money, and the notion of personal property.
That said, he seems to consider them essential to human beings living together, especially in such large numbers as those in which we have gathered since inventing agriculture.
And while I fully believe that God exists, the way he describes these other things is kind of a thoughtful way of understanding their roles in society.
Our “rights” exist only to the extent that we agree, collectively, to recognize and honor them.
And of course that involves respecting and honoring and cherishing the institutions — such as the court — that tell us what the rights are. Which is why, as opposed to Roe as I am, I have recognized it as the law of the land, and deplored the bitter circuses we’ve experienced whenever there has been a court vacancy. Because we all need to respect the court, without which, ultimately, we have no rights.
It’s also why I deplored what McConnell did with Merrick Garland. And it’s why I deplore this leak, which is enormously destructive to the dignity of the court. It’s why I’m so creeped out by the mean, nasty, ugly things being said about the court by my friends on the left this week.
Because we need the court, and we need a consensus that it is worthy of respect. Without that, we will have no rights…
I believe it’s time to seriously consider secession as a matter worthy of serious discussion and consideration.
I am not necessarily opposed to it. I do believe it is a matter of time and I had rather it happen in with some order, rather than little or not order.
Americans, maybe now more than ever, have vastly different values. The differences are overwhelming and are only increasing.
A survey published in September 2021 by the University of Virginia Center for Politics, for example, found that 41 percent of Biden voters and 52 percent of Trump voters at least “somewhat agree” that “the situation in America” makes them favor blue or red states “seceding from the union to form their own separate country.”
So now it’s 1861?
No, it’s 2022
Dr. Arthur Caplan talks with Michael Smerconish about his idea that it’s time to discuss secession
This is a pretty good example. Part of assumption of innocence involves the so-called Miranda warning, which conservative jurists have been hollowing out since it came to be. The problem in the US with what are effectively coerced confessions by many accused is then, at least in part, a result of the chipping away at Miranda protections and therefore, more broadly, the presumption of innocence. It shows how discarding unenumerated rights can have very serious repercussions.
I watch a lot of Brit cop shows, and their version of the warning always intrigues me:
Not quite a generous as the Miranda. There’s more pressure to speak up and tell what you know. But it seems fair…
I said it was an insult to “thinking people” – Dems or non-Dems, like Rubin, doesn’t matter.
In any case, you really ought to pay less attention to tone and more to substance. Because there are others who are saying – not as forcefully, perhaps — much the same thing as Rubin. People can be thoughtful AND forceful. Here’s someone saying much the same things as Rubin in more legalistic language – as befits the author, a professor of law:
(A taste: “Alito is not so subtly denying legitimacy to decisions that encompass a progressive conception of liberty. Americans should be prepared not just to see Roe v. Wade obliterated — but also other constitutional rights put up for grabs.”)
Fretting over tone more than substance is a lot like saying we should just close our eyes and all the bad stuff will go poof. It’s the child’s approach to problem-solving.
“Americans should be prepared not just to see Roe v. Wade obliterated — but also other constitutional rights put up for grabs…”
That makes perfect sense if you actually believe that abortion is a constitutional right, rather than a mistake by the court. I don’t believe it’s a constitutional right, because I’ve read the Constitution.
Same with the “right” upon which it is based: privacy. Privacy is a fine thing, and civil people respect other people’s. But it’s not a constitutional right.
Our society has been obliged to function as though those things WERE rights for a lot of years now, and that’s as it should be, because our system sets the Court as the entity that interprets the Constitution. It’s been that way since Marbury, and I think Marbury got it right. It helped establish a workable system.
But sometimes the court does get things wrong, such as with Dred Scott and Plessy. And until we have a new ruling that undoes them, we have to live with them…
And I’m sure if you read your car owner’s manual from cover to cover you would consider yourself a mechanic — eager to pontificate on the “mistakes” of certified mechanics.
No, I wouldn’t. I meant what I said. I’ve read the Constitution, and it’s not there.
I have enormous respect for the “certified mechanics” on the Court. I always have. I don’t regard them as servants of my political views. I want them to interpret the law based on the law, not based on what I want or what Ken wants. I don’t dismiss them as “liberal” or “conservative” automatons, the way so many of my fellow Americans across the political spectrum do.
And overwhelmingly, I think the justices we’ve had on the Court over the years take that duty to rule according to law and not to politics very, very seriously. I look at ruling after ruling and am impressed.
But I wasn’t impressed by the discovery of a shadow of a right in Griswold. Which would have been OK, if we hadn’t had mighty palaces of political thought constructed since then on the basis of that penumbra.
Today, many intelligent people whom I admire — such as Barack Obama — actually place that supposed right on a level with the clearly stated rights in, say, the First Amendment. I find that appalling, and extremely harmful to our system. Something I explained in this column back in 2008.
Ken, I know you don’t think so, but I’ve spent a great deal of my life thinking very carefully about these things, and engaging in good faith in debate with people who disagree with me, and doing my best to discern these issues as well as I can. I haven’t just read the manual. And it’s OK, really, if I don’t reach the same conclusions you do. I have that right — in fact, I have the obligation to think what careful consideration leads me to think. I regret that you don’t respect that…
“the discovery of a shadow of a right”
There are other unenumerated rights that courts have upheld in the past as well. Take care when you start chipping away. You really have no idea where you may end up.
“I’ve spent a great deal of my life thinking very carefully about these things”
Give yourself an A for effort, then. But you get a failing grade for both your argument and your conclusion. Your statement that you find Obama’s view here “appalling” shows just how appalling your own reasoning is.
“Take care when you start chipping away.”
Oh, I will. I always have…
Not with all due consideration and care, you don’t.
Well, I certainly try. This blog is evidence of that. I engage issues, and engage them and engage them. I’ve devoted absurd amounts of my life to that.
Most people just go with their gut and don’t bother trying to explain it.
That’s fine. They have lives to lead, and I appreciate that. But I’ve never been able to just let things go like that…
You have the right to express your opinion, of course. No one questions that.
Therefore, you have the right to oppose abortion and to express that opposition.
What you do not and should not have is the right to express your opposition by banning others from expressing a different view by having an abortion.
So, no, I do not respect your support of a ban.
Well, that’s good, because what I’ve seen the last couple of days is a lot of people not respecting other people’s rights to a different opinion.
Of course, on this issue, I’ve been seeing that for 50 years, which is why I’ve always cringed when the subject comes up, because it poisons everything around it. It becomes impossible to discuss other things that we MIGHT be able to agree about.
And the last two days, I’ve witnessed the bitterness of those 50 years concentrated and intensified…
Very depressing, for a guy who values civil discourse…
I’ve always told anyone that opposes abortion that I agree with them that I don’t “support” abortion.
I would counsel and plead with anyone, given the chance, to encourage them not to undergo an abortion if they are doing so for non medical reasons.
But I won’t use the power of the government to force someone to carry a baby to term against their will.
I won’t do that because I think it’s morally wrong to do so.
I also understand that someone in such a situation is often desperate and desperate people will seek desperate actions that could cause even more harm.
and I’ll never support a government system where only poor women don’t have the choice of an abortion and women and families with money do have the option.
My daughter will always have the right to choose an abortion if she makes that decision for herself.
Nothing will stop that reality and there is nothing- not one thing- anyone can do about it.
You say this about privacy a lot. If we don’t have a right to privacy, which I strongly believe we do, then we pretty much have no rights at all. Isn’t our right to vote based on the principle of privacy? Shouldn’t we have the right to private consensual sex? Or do you want to bring back buggery laws? Aren’t HIPPA laws based on privacy? Does the government have the right to search your home without a warrant? That’s a firm no based on the bill of rights. But that is merely an extension of privacy more broadly. The list is endless. But clearly privacy is a right. But now that privacy right is tragically being eroded. And yes this also has a religious component. Big brother is watching. Ironically this leak that Brad is so (wrongly) worried about is defended on the basis of a privacy argument. Laughable that they get so worked up about a privacy concern while sanctimoniously getting in a snit about a very minor violation of their own private deliberations.
Everything you mention should be considered on its own merits, not on the basis of an assumed right to privacy.
The greatest right in the Constitution is the right to conscience. You get to think what you think, and I get to think what I think. And we get to proclaim those thoughts to the world.
You get to make an argument that that is based in a fundamental right to “privacy.” But I disagree…
Privacy is a good topic to discuss here on the blog. If we could separate it from the fact that it is used to underpin abortion, maybe we could have a good discussion about it.
The last couple of decades — not because of some oppressive government, because of a technologically empowered private sector — has pretty much stripped us of whatever privacy we had, to an extent none of us could have imagined a generation ago.
Me, I’m just glad to have the power to close the door when I use the bathroom. There’s not much privacy left beyond that…
The Penumbra argument made by Justice Douglas in Griswold is very persuasive.
I think you are wrong.
I prefer what law professor Steve Vladeck of the University of Texas says about privacy and the court to what you say
Question: Some people might be surprised to think of the notion of privacy as kind of an exotic legal idea. But could you explain where the idea of privacy comes from?
Answer: The Griswold opinion in 1965 basically stands for the idea that a bunch of textual references in the Constitution demarcate the border of what we might call the “zone of privacy,” the area past which we don’t let the government go.
We don’t let the government control our medical choices, we don’t let the government control our educational choices. And part of what’s tricky here is that a lot of the area that Griswold says is protected by this on the privacy is stuff we would never think the government would try to regulate. And so we don’t have cases saying the government can’t do this because the government would never do this.
But then we get to the border cases, the marginal cases, where we have government intervention: in Griswold, it was about restricting access to contraception; in Roe it was about restricting access to abortion. In other cases, it was about restricting what language your children could be educated in. And in all of those contexts, the Supreme Court said, “No. There’s a point past which the state really can’t go.” That’s the hook that Justice Alito’s draft opinion really is criticizing. And it’s why when he says this draft opinion is only about abortion, that might be true, in fact, but it’s not really true in theory.
The privacy matter is only part of the foundation of Roe. The other is the matter of individual liberty.
You should be aware that in your keenness to strike down Roe, you show a willingness to lay many protections flat. You would cut down every legal construct to get at your Devil. This isn’t reasoning, moral or legal. This is zealotry.
Here we see examples of where Brad sees your view and my view as extremist
and I see his view as extremism.
Our basic values are different. He doesn’t share or want to share our values – and I don’t share, nor want to share, his values.
He doesn’t want to live like I do with my views- and I do not want to live like he does with his views.
It’s an irreconcilable position.
Neil Siegel of Duke University Law School mentioned on Sirius radio today instances where Alito hasn’t stuck to the idea of “originalism’ in his opinions- including in this current term.
He also told a story about Scalia. He was helping Scalia at a conference once and Scalia said something to the crowd about being an “Originalist” but then turned to Siegel who wanted to point out something- Siegel then pointed out several specific instances where Scalia had diverged away from the original meaning of the constitution and relied on “tradition” in his opinions and Scalia responded something like ” well, I guess i probably should come up with a better word to describe myself” referring to originalism
Siegel’s point was that even those that self describe themselves as originalists have a habit of venturing off that “firm foundation” when they need to to achieve the political goal they are pursuing.
A new Underground Railroad in the making. We can only hope.
It’s already in place. It will just expand.
There are already people supplying women with travel and housing services to get to locations where they can safety access abortion services. That will just expand now- probably see abortion providers popping up near airports in a few dozen states.
As I have had said many times, this doesn’t stop abortion. It especially doesn’t stop it for women who have a little bit of money. In fact, in some cases it makes some more determined than ever to make sure women get to make their own choice.
Yes, some of the links I provided above go to sites that provide online consultations followed by abortion pills delivered through the mail.
I suppose in Texas the mail carrier could be sued.
How would they know?
When is the last time your mail carrier knew what you were getting in a small, unmarked box?
I can’t think of a single time in my 50+ years.
Since the mail service is provided by the federal government, that would mean having state inspectors or law enforcement hauling federal employees off to jail. After opening the mail to inspect it for “illegal” substances under state law. But in a world free of privacy protections like the one Brad Warthen wants to live in, that may be fine.
Brad might be fine with state inspectors opening mail or boxes and checking for abortion pills, but I suspect most people won’t accept that.
I heard a report today that demand for abortion pills is skyrocketing.
We also hear that some women in TX are crossing the border into Mexico to get pills from fly-by-night vendors with no medical training. This opens the floodgates for unregistered and even untested medications. This is PRECISELY the kind of thing that Roe aimed to end, by providing for legal and therefore safe procedures.
“Floridians, Texans, everyone: Republicans want to control your life. They want to make it harder to vote, punish you for criticism/free speech, criminalize healthcare, sue teaches who give accurate racial history, take trans kids away from parents. This isn’t “culture.” It’s tyranny.”
Going back to my first point, about the leak itself, I liked George Will’s column this morning:
Yep, there I go again, liking something that quotes (although without quotation marks) Yeats’ “The Second Coming“…
“and should be forever odious”
Someone should write a song using that in the lyrics. I would, but I don’t know how to be melodious.
I can rhyme, though…
George Will is an elitist jerk. The leak issue is just not a problem. In fact it’s a good thing. The Supreme Court can only be held accountable if it work product is open for review. Voters have right to know BEFORE the vote. The Supreme Court is not above reproach. They are a political outfit. Nothing more.
“The Supreme Court is not above reproach. They are a political outfit. Nothing more.”
I do not understand the reverence for a group of 9 people who have an incredible amount of control over each of our lives.
They are political actors – Republican judges and Democrat judges. They are politicians in robes and anyone saying otherwise is lying to themselves and everyone else.
I( hope the SC Department of Transportation installs cameras in their offices and allows public viewing of all Zoom meetings. They can only be accountable is their work is open for review. Voters have a right to know before they vote for politicians who implement gas taxes and road taxes. They are not above reproach. They are a political outfit, nothing more.
Well, in fairness, we can watch politicians online and can visit their meetings in person to hear them discuss taxes and anything else.
Can’t do that with SCOTUS because they’ve chosen not to allow it.
Thank God there’s one place in our system where rational conversations can still occur…
If you read some of the opinions of the court and also the writings of court watchers, there is plenty of irrational conversations and less than graceful discussions had between justices of the court.
They aren’t special.
All the more reason to do it in private.
I disagree. I have no issue with the leak. I was glad to see it.
“another subtraction from the norms that preserve institutional functioning and dignity.”
I’m sorry but this is utter drivel. It’s meaningless for many people. Dignity? LOL. That is laughable and ridiculous.
Dignity from a court with a man on it whose wife was trying to overturn an election. Just laughable.
Well, then, our country is laughable.
If the court can’t be respected, then we’ll just have to pull down the curtain on the United States of America.
The court is, of course, fallible. That’s how we got Roe. But you haven’t heard me over the last 50 years saying the court was “laughable” because of that, or Griswold.
The destructive forces in our system have torn at the court ever since, but I’ve never stopped respecting the court. Because I don’t judge important institutions by whether they always do what I want them to do — at least, not on that level.
The one thing I DO want the court to do is make sound decisions on the basis of law. And to eventually, when it makes mistakes, correct them. A lot of people on the pro-Roe side are upset now because they’ve never seen what a flawed decision that was.
We’re invested in this system, or we’ve got nothing. There’s no other, better system in the world. Our system was devised with the understanding that our world is imperfect, and things aren’t ever going to go completely our way. But we CAN have a system that functions without leading to societal breakdown. And it’s worked profoundly well now since the 18th century.
And I respect it profoundly.
So when someone does something to undermine trust in the system, I take it very seriously.
I started writing about the importance of trust, and the problem of its diminishment, in 1995, in one of my earliest columns at The State. For the past 27 years, we’ve watched the problem get much, much worse.
And each time some new thing happens to undermine trust even more — such as this leak from the court — it concerns me a great deal…
It’s not this decision that causes me to laugh at the idea of “dignity” with respect to the court. It’s this decision and many others.
It’s also primarily a court of politicians twisting themselves backwards to make their political points – while screaming at everyone that they aren’t political. It is laughable.
I find the leak perfectly fine. Sorry. I just can’t fake any concern, anger, etc. I hope we have more to be honest in years to come.
and I find the idea that this “leak” hurts any dignity of the institution as patently absurd. It’s like a throw away comedy line from a bad Saturday Night Live skit.
It’s almost the same to me as the hearing a politician whine about how people are making something political (usually teachers) when the politician’s entire life is built around making everything political.
Fat man lookin’ in a blade of steel
Thin man lookin’ at his last meal
Hollow man lookin’ in a cottonfield
Wise man lookin’ in a blade of grass
Young man lookin’ in the shadows that pass
Poor man lookin’ through painted glass
Somebody got murdered on New Year’s Eve
Somebody said dignity was the first to leave
I went into the city, went into the town
Went into the land of the midnight sun
Searchin’ high, searchin’ low
Searchin’ everywhere I know
Askin’ the cops wherever I go
Have you seen dignity
Blind man breakin’ out of a trance
Puts both his hands in the pockets of chance
Hopin’ to find one circumstance
I went to the wedding of Mary-Lou
She said I don’t want nobody see me talkin’ to you
Said she could get killed if she told me what she knew
I went down where the vultures feed
I would’ve got deeper, but there wasn’t any need
Heard the tongues of angels and the tongues of men
Wasn’t any difference to me
Chilly wind sharp as a razor blade
House on fire, debts unpaid
Gonna stand at the window, gonna ask the maid
Have you seen dignity
Drinkin’ man listens to the voice he hears
In a crowded room full of covered up mirrors
Lookin’ into the lost forgotten years
Met Prince Phillip at the home of the blues
Said he’d give me information if his name wasn’t used
He wanted money up front, said he was abused
Footprints runnin’ cross the silver sand
Steps goin’ down into tattoo land
I met the sons of darkness and the sons of light
In the border-towns of despair
Got no place to fade, got no coat
I’m on the rollin’ river in a jerkin’ boat
Tryin’ to read a note somebody wrote
Sick man lookin’ for the doctor’s cure
Lookin’ at his hands for the lines that were
And into every masterpiece of literature
Englishman stranded in the black-heart wind
Combin’ his hair back, his future looks thin
Bites the bullet and he looks within
Someone showed me a picture and I just laughed
Dignity never been photographed
I went into the red, went into the black
Into the valley of dry bone dreams
So many roads, so much at stake
Too many dead ends, I’m at the edge of the lake
Sometimes I wonder what it’s gonna take
To find dignity
Another thing happening right now is that a lot of writers are revisiting the arguments of the last 50 years.
Which doesn’t make them wrong, of course.
Michele Norris — a nice lady who interviewed me years and years ago — had a column today headlined, “The GOP roars about abortion. Then they abandon the children.”
Yep, they do. Of course, that doesn’t make them wrong about abortion. It does make them wrong about failing the children.
Abortion is one of the big reasons I’m not a Democrat. The other thing Michele points to is one of the big reasons why I’m not a Republican.
And as I’ve said so many times before, I really don’t understand how anyone can be either…
I’m against a lot of things that I don’t want the government involved with
I’m against married couples inviting other people into their bedroom because it can destroy lives and families. But I don’t want the government involved with it.
I’m against married people cheating on spouses. I’ve seen it destroy lives and families. I’ve seen it result in at least 1 suicide in my extended family. But I don’t want the government to criminalize adultery.
I’m against smoking. I hate it. It’s killed 3 of my uncles (one when he was 42) and another when he was 63 and awaiting the birth of his first grandchild. It’s killed millions of people. But I don’t want the government to ban people from smoking. I do encourage everyone I know that smokes to not smoke- to quit- that I will help them- I will support them.
But I am not calling a politician and telling him/her to pass a law against it because I fail at convincing someone to stop smoking.
The poor parents who (repeatedly) have children (many times out of wedlock) are the first ones to blame for abandoning the children. They create the problem that the rest of us are supposed to clean up for their mistakes. Having a child while living in poverty is child abuse.
But it’s reality and most of us live in a world of imperfect people who make mistakes and who don’t always make the best decision every single time like a few people do.
and even worse- we have a court that will treat them profoundly differently – worse- than other people with respect to their decisions.
and of course not every poor person having a baby made the choice to have a baby. As stated earlier, some people that don’t have the ability to jump on a plane and fly to seek an abortion chose to get pregnant in the first place. But they will pay the price – in many ways.
My wife asked me yesterday- would this decision impact us with our daughter. I told her “Of course not. It won’t impact us at all” if she found herself raped/molested and pregnant
It will impact some of those younger kids she teaches if they are in the same situation because they won’t have the option to make the best decision for their bodies/themselves. The government made it.
Your wife should be telling her female students that having sex without birth control before they graduate high school is a major life mistake with potential disastrous consequences. It’s interesting that liberals are all for telling kindergarten students about gender identity, transsexuals, and homosexuality but freak out about serious discussions about abstinence. The greatest cause of poverty in the U.S. is young, unmarried women already in poverty having children. All we deal with are the results of bad decisions after the fact whether it be abortions or trying to save these kids who have no structure in the home to support them. The message should be loud and clear: having intercourse when you are unable to raise a kid is a terrible idea.
My wife can’t give her opinion in school about sex. She has a few days to teach the SC health standards and teachers can’t do anything but repeat the approved lessons to students.
No one is telling elementary kids about sex – at least without severe punishment,
I realize this is very hard for you, but people don’t always follow every best practice when it comes to sex or anything else. They just aren’t as smart as you.
Then you are guilty of putting the cart before the horse. FIRST provide for all the protections and benefits you admit are denied the living, THEN work to end abortion. This reversing of priorities is part of the fundamental error of your position.
Well, first you have to let them live. If you let the abortions go ahead, you can’t do a thing to help them…
I haven’t been waiting for anything. I’ve always strongly supported programs that help children, and that help their mothers. As I said, that’s why I’m not a Republican…
And Democrats want the children to be aborted if the right programs aren’t in place. So I’m not a Democrat, either…
Confirmed in error.
I’m sorry, I don’t understand what you’re responding to. Your comment is linked to this comment from me. Were you responding to something else?
Nope, right on target.
There are 3 to 4 clerks for each justice. This equates to 27 to 36 clerks who will become attorneys hanging up their signs and start practicing law. In the end, their integrity and fealty to truth, honor, oath, and confidentiality will be a question unanswered if the leaker is not identified and therefore remove any taint of dishonor from all of the other clerks serving the members of the SCOTUS bench.
The leaker has proven that he or she cannot be trusted and is willing to destroy the integrity of the SCOTUS and everyone else intimately involved by violating something as inviolate as the confidentiality of SCOTUS proceedings as a protection against undue pressure to make a decision in favor of special interests, whether they are liberal, conservative, Democrat, Republican, or any other political persuasion.
A draft is just what it is, a draft, not a final version of a decision. Drafts have been passed around from justice to justice and they have been instrumental in changing opinions and swinging the decision to the other side. Even the most recent villain not named Barrett has sided with the liberals recently. But this is an act of judicial treason by the individual who released the draft to Politico.
Hero? Not no, but “Hell No”?
I’m with you on this, Bart.
This is from a definition/explanation of “stare decisis”. Thought it might be something for the uneducated to read and understand that a SCOTUS decision can be considered “untouchable” if the original reasoning can be legitimately questioned by a later SCOTUS bench. And in the case of Roe v. Wade, per the “draft” language, there is a reasonable questioning of the decision.
“Although courts seldom overrule precedent, the U.S. Supreme Court in Seminole Tribe of Florida v. Florida explained that stare decisis is not an “inexorable command.” When prior decisions are “unworkable or are badly reasoned,” then the Supreme Court may not follow precedent, and this is “particularly true in constitutional cases.” For example, in deciding Brown v. Board of Education, the U.S. Supreme Court explicitly renounced Plessy v. Ferguson, thereby refusing to apply the doctrine of stare decisis.”
Correction: Remove the word “untouchable”. A stare decisis cannot be untouchable or inviolate if a later SCOTUS bench determines the original reasoning can be legitimately questioned.
There is no “right to privacy” contained anywhere in the Constitution. The right to privacy is a social construct initiated by a civil society and generally adhered to by responsible citizens, respecting the privacy of their fellow citizens. However, since the advent of the internet, social media, and the “cancel culture”, privacy has lost any meaning whatsoever. A prime example is the recent creation of a “Disinformation Governance Board” within the DHS and a total gaslighting of the public by Secretary Alejandro Mayorkas. A move approved by the “moderate” POTUS Biden. If you say the wrong thing in public, speech or print, then the government has the power to come after you if the one in charge determines that your comment meets the criteria of “disinformation” according to “their” interpretation, not yours.
Now, who the hell has the hubris to believe this is not something Russia and Nazi Germany wouldn’t applaud? Should some things be brought to the public’s attention? Absolutely. It depends on the nature of the private matter and if it affects the lives of the public in a negative manner. A good for instance is the association with a female Chinese spy by Swalwell. If she was not a spy, it wouldn’t be any of our concern or business. But she was and Swalwell being a member of Congress and access to sensitive information, sharing the same bed engaging in “pillow talk”, then the right to privacy in the matter is a non-starter, it should have been made public and a potential removal from office. And for the obvious retort from individuals here, I feel the same no matter which side of the aisle one sits on.
Everyone has lost their freaking minds over a “draft” that at this point, may or may not be the final decision by the court and are legitimately defending the traitor on the court for his or her “heroic” actions.
Note that I edited that. Bart was citing something someone else had said, so I guess I need to track that down and edit that, too…
Was an actual law violated by the leak? If not the people has zero right to get in such a snit. Really a nothingburger.
Nope. That’s why it’s an internal matter, rather than a criminal one.
Basically, what happened was that trust that has always been there on the court was spectacularly violated. So it’s up to the Court to address it…
I suppose it’s easier for me to understand because if there had been a major editorial position we were about to take on the paper — something that we knew would provoke a tremendous response among readers — and someone released to the world a rough draft before we were ready, and before we had completely the process of drafting our position, I definitely would have felt betrayed by a trusted colleague. The other editors would have felt the same.
Nothing like that ever happened. It would have been outrageous if it had.
When I started this blog in 2005, my readers encountered something unusual. I’m fairly confident that none of you have ever encountered an editor who was as open and frank with you about the editorial process. When we released something major, I’d write columns documenting the process. You saw video of meetings with sources, and everything I could possibly digitize and share with you. Because I wanted you do know EVERYTHING that went into the decision.
But that was after everyone on the board had had his or her say, and the decision was made. To have released an incomplete, unfinished editorial to the world in order to cause an explosive reaction BEFORE the process was complete would have been like throwing a hand grenade into the editorial board meeting room.
And that, of course, is minor league compared to this. But knowing that helps me understand what Chief Justice Roberts is dealing with…
Your explanation convinces me even MORE that the leak was a good thing. First, you verify that no law has been broken. That should be the end of it. I don’t buy into some esoteric notion of tradition. That argument fell flat in the DC statehood argument. It doesn’t work here either. Second, you make a clumsy comparison to a PRIVATE company. The Supreme Court belongs to the people and should be transparent. The court is absolutely not sacrosanct and as such absolutely should not be the final arbiter in this matter. Not one nickel of taxpayer money should be spent trying to investigate this matter. Third, since privacy apparently is NOT a right the court has no special protection based on privacy. They have been hoisted on their own petard so to speak. The notion that the court has some unique position of respect within our system is a ship that sailed a looooong time ago but was torpedoed once and for all when Moscow Mitch pulled his Merritt Garland stunt. They are a political outfit now. And that makes it all the more imperative that we know what they’re doing.
“The court is absolutely not sacrosanct and as such absolutely should not be the final arbiter in this matter.”
Really? Then who should be? You? Me? Some guy I don’t know down the street?
This is our system, and it’s a good one. As I was saying back here, without it, we have nothing. Certainly no “rights,” whatever you or I imagine them to be…
To be clear I was referring to the leak not Roe. Sadly this radical court is the final arbiter of Roe. But this sorry state of affairs screams for reform. Term limits. 18 years should be plenty. A change in the confirmation process to ensure Moscow Mitch can’t get away with his behavior.
Bradley Pierce of the Foundation to Abolish Abortion said state legislatures have the right to ignore the U.S. Supreme Court if they disagree with any high court decision.
“If the Supreme Court ignores the (U.S.) Constitution, you should ignore the court,” Pierce said. “The Legislature has the right to disregard the Supreme Court.”
The Louisiana legislature, dominated by Republicans, is poised to pass a law that will penalize women with a charge of murder for any abortion.
The bill will also criminalize in vitro fertilization and perhaps some forms of birth control.
I agree. I am glad the leak occurred. I find the grandstanding about the breach of dignity laughable.
Sen John Kennedy got schooled yesterday in a hearing by Sen Sheldon Whitehouse when he started talking about investigating the court.
This discussion reminds me of a weird dream I had a while back. I was attending a sporting event of some sort and at halftime I went to the men’s room to use the urinal. While I was standing in line I noticed a woman holding a clipboard viewing the men as they urinated. I asked someone what she was doing. I suggested this does not seem appropriate. He told me it was ok. That was Flo doing research on male urinary streams. I saw her witnessing several men as they urinated, using a laser tool of some sort to take various measurement. Then Flo came up to me and started asking me questions about my age, sex life, sexual orientation, health history and many other invasive questions. I objected strenuously about all of this. I told her in no uncertain terms; I have a right to privacy! This is America and she had no right to ask such questions or observe me at the urinal. She shot back with authority that indeed she had such authority. She explained that since Roe was struck down there is no longer any right to privacy. She had state authority to conduct this research and suggested this was no big deal. After all it was decided with the repeal of Roe that pregnancy is not really difficult in modern times. And if you don’t comply you’ll be subject to a stiff fine (which she found amusing) and possibly jail time. Doesn’t seem so far fetched now.
Uh-oh. Bud’s spent too much time on this blog. Now he’s picked up my habit of having weird dreams and telling people about them… 🙂
I’m sorry if reading this blog has done this to you…
I have these less frequently since I started using a CPAP.
Good! Maybe I should try one…
These will be my last comments on this issue:
1. In spite of strong public support Roe is gone. According to studies that will reduce the number of abortions by about 12%. Time will tell how many women will die because of a lack of safe, convenient access to the procedure.
2. The leak aspect of this story is a nothing burger that should be dropped.
3. We should amend the constitution to enshrine a right to privacy once and for. (No need to issue the usual refrain that this won’t happen. I live in the real world). This is aspirational but now is the time to at least take a crack it.
4. There is a crying need for reform of the court. No Justice should serve more than 18 years. A new justice should be appointed every 2 years. The longest serving justice would be the first to be retired. The senate WILL take a vote within 60 days of the president’s selection. If they don’t the choice is automatically installed. The senate only gets 1 simple majority rejection. After that a 2/3 majority is required for rejection. Let’s end the hearings process. That is a worthless ordeal. No more shadow docket decisions.