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Supreme Court to Hear Case on Affirmative Action in Academia
If you thought the Supreme Court threw up some dust overturning Roe v. Wade, wait until this autumn when they look at overturning Grutter v. Bollinger. The Supreme Court will decide whether race-conscious admissions programs at Harvard and the University of North Carolina are lawful.
The two cases which might overturn Grutter, Students for Fair Admissions Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina have been consolidated into one entity which asks three questions: can race be a factor for admission, has Harvard violated Title VI of the Civil Rights Act by penalizing Asian American applicants by engaging in racial balancing, overemphasizing race and rejecting workable race-neutral alternatives, and whether a university can reject a race-neutral alternative because it would change the composition of the student body, without proving that the alternative would cause a dramatic sacrifice in academic quality or the educational benefits of overall student-body diversity.
In short, can race continue to be an admission factor?
Grutter upholds affirmative action in academic admissions, saying race can indeed be a factor in deciding who to admit alongside things like tests and previous grades. In 2003, after being denied admission to University of Michigan Law School, white student Barbara Grutter sued, alleging the school discriminated against her on the basis of race in violation of the Fourteenth Amendment’s right to equal protection, as well as Title VI of the Civil Rights Act of 1964. She claimed despite her high test scores she was rejected because the Law School uses race as a “predominant” factor, giving applicants belonging to certain minority groups a significantly greater chance of admission than students with similar credentials from disfavored racial groups like whites and Asians.
Precedent was not on her side. The earlier case of Bakke was seen as binding precedent establishing diversity as a “compelling state interest,” and that the Law School’s use of race was narrowly tailored because race was merely a “potential ‘plus’ factor.” In short, race as a type of bonus for an application was allowed, though race as the predominant criteria for admission was not. The Court found the Law School’s “narrowly tailored use of race” in admissions decisions furthered a compelling interest in the educational benefits that flow from a diverse student body and is not prohibited by the Equal Protection Clause. What some came to call “reverse discrimination” was allowed within certain boundaries because its goal of a more diverse student body and broader access to higher education was a compelling state interest.
The idea behind Grutter (a kind of mission statement for America these days) is disparities between groups in things like admissions are always the result of discrimination, the U.S. is irredeemably racist, racism is everywhere, invisible power structures of structural oppression are equally ubiquitous and need to be dismantled, meritocracy is a myth, color-blindness is misleading concept, and a focus on individual rights (such as Barbara Grutter’s) distracts from the more important struggle against systemic racism.
The problems are many, even if you accept most of America’s Racial Mission Statement. Primarily, space at all academic institutions, and especially at the top tier ones, is limited and to disproportionally allow in one group usually means excluding another. That is why Students for Fair Admissions Inc. v. President & Fellows of Harvard College has amici groups which believe Harvard is violating the Civil Rights Act by penalizing Asian American applicants in favor of blacks. These include Chinese American Citizens Alliance, the Jewish Coalition for Religious Liberty, The Asian American Coalition For Education, and The Asian American Legal Foundation. Also included is the Coalition for TJ, a group representing Northern Virginia’s super magnet-school Thomas Jefferson High, which just won a suit recently declaring the school’s race-based admissions policy illegal.
The tide may be turning even ahead of the Supreme Court. In addition to the win for a return to merit-based admissions at Thomas Jefferson High, the San Francisco School Board recently returned the admissions policy at Lowell, the city’s most prestigious public high school, to the merit-based system that it had used for more than a century. New York City’s most sought-after high schools, including Stuyvesant, held on to their merit-based system even as the mass of high schools otherwise switched to a lottery.
If Grutter is overturned and loses hold of stare decisis, that would end 45 years of precedent saying race could be used as one factor among many in evaluating applicants. The universities argue race-based decisions are lawful, and serve an important national interest.
College admission has a long, sordid history chock-a-block with discrimination. Kenneth Marcus, assistant secretary for civil rights at the Education Department in the Trump administration, said Harvard’s treatment of Asian students was reminiscent of its efforts to limit Jewish enrollment. “Just as Harvard in the 1930s thought that Jewish students lacked the character to make them good Harvard men,” he said, “so today they often view Asian students as lacking the appropriate character.” One defender for affirmative action in admissions almost seems to confirm his opposition’s point, saying “Race-conscious admissions policies are a critical tool that ensures students of color are not overlooked in a process that does not typically value their determination, accomplishments and immense talents.”
Like Roe, Grutter, and earlier, Bakke, represent efforts by the Supreme Court to remake society through judicial opinion. With Grutter, the Court took it upon itself to again endorse the use of race as an admissions criteria by claiming the nation had a compelling interest in racially diverse higher education even at the risk of failing to provide access equally to groups like Asians and Jews. The irony of displacing one group to favor another is not lost, that the solution to discrimination is more discrimination, that all blacks are helpless and foreclosed; such is the thinking of racists, that one skin color carries with it some merit that is worth rewarding even at the expense of other colors.
Apart from the socio-political impact, the issue is not a small one. According to documents filed with the Supreme Court, a significant reversal of current racial-forward standard could shrink the percentage of black students admitted to Harvard by more than two-thirds. Some 7.58 percent of blacks who applied to Harvard were admitted. For whites only 4.89 percent of applicants were admitted. Asians trailed Hispanics 5.13 to 6.16 percent. Despite the higher enrollment percentages, SAT scores for blacks were significantly lower than whites. Harvard’s policies roughly quadrupled the likelihood an African American applicant would be accepted relative to a white student with similar academic qualifications, while multiplying the likelihood of admissions 2.4 times for Hispanics. Most African Americans fell into the bottom 20 percent of all applicants to both Harvard and UNC, but they were admitted at the highest rate for almost every performance decile.
In the upcoming decision the Court has a chance to realign itself and college admissions with American thought; a 2019 survey found 73 percent of Americans said colleges and universities should not consider race or ethnicity when making decisions about student admissions. Justice Kentaji Brown Jackson will not recuse herself from these cases, despite having been involved with them in the lower courts. She will join liberals Kagan and Sotomayor largely unsupported by both the public and their Court colleagues in standing up for continued affirmative admissions. The next class at Harvard and other sought-after schools may look very different from the one which starts this fall ahead of the Supreme Court’s decision.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Marbury v. Madison v. Joe Biden v. Abortion
Joe Biden doesn’t have the the guts to do what people are suggesting he do, be the first president to stare down a Supreme Court ruling and refuse to abide by it. It wouldn’t matter anyway.
Abortion in American should never have been allowed to turn into the judicial and moral circus that it is here and nowhere else on earth. Women even under Roe faced 50 different sets of rules and laws, abortion clinics tried to hide what they did, religious child help centers tried to pretend abortion was an option they offered, and the scene was full of protesters and clinic escorts and dozens of other things which separated a woman from her doctor and possibly her clergy in a regulated environment in which to make a very difficult decision. But that was the world we created out of professed concern for women and for the unborn. It was a system which said the fight would never really end, just change as the Supreme Court changed and saw things differently from 1972 to Roe and Doe in 1973 to Dobbs in 2022 to…
The clarity of Dobbs is unfair to the mess which followed: the Court was very clear, abortion regulation was to be decided on the state level, not the quasi-federal level of Roe and Doe. You know how that works; New York allows third trimester abortions when necessary and Ohio prohibits any abortion past fetal heartbeat, even in cases of rape or incest, and so forth. Dobbs was not intentioned to set off a round of how can we detour around what the Court really said and give abortions in National Parks.
The biggest change since Roe is chemical abortions. Already pre-Dobbs over 50 percent of all abortions were done chemically, with the mother taking one or two medicines to provoke a miscarriage. While typically done under professional supervision (miscarriages can result in dangerous bleeding, and incomplete miscarriages can be fatal to the mother) a single pill taken by a woman on her own will in most cases provoke a safe miscarriage. This is what will replace the horrible “coat hanger” abortions of the pre-Roe days according to many advocates.
If America is good at anything, it is smuggling drugs across state lines, and so certainly “abortion pills” will be readily available to many woman in non-abortion states, albeit illegally the same way other drugs smuggled across borders are illegal and occasionally even prosecuted. In the crudest of practical terms, it is unclear how many women will not have access to an abortion post-Dobbs. However, Biden is being pushed to do something more. He is being pressed to refuse to abide by the Supreme Court.
Joe Biden’s White House is considering executive action to make abortion pills accessible nationwide despite state laws restricting the drug. The administration may seek to use executive power granted under the Public Readiness and Emergency Preparedness (PREP) Act to declare a public health emergency to allow abortion providers and pharmacists to distribute chemical abortion pills, even in states where abortion is heavily restricted.
Senators Cory Booker and Elizabeth Warren, along with 16 of their colleagues, urged Biden to take such action in a July 13 letter. “While it is impossible to immediately undo the damage inflicted by the Supreme Court’s repeal of Roe v. Wade, the Biden-Harris Administration must use every tool within its power to fight back,” the letter said. “We urge you to declare national and public health emergencies over Americans’ access to reproductive care.” Technically, powers available under the PREP Act would shield doctors, pharmacies and others from liability for providing abortion pills to people across the country. The exact same law was just used with broad popular support to shield manufacturers of Covid drugs and treatments from legal liability in order to get vaccines deployed expeditiously. The use of such law to expand presidential power past a decision by the Supreme Court to the exact contrary, however, would be devastatingly controversial.
If Biden were to take such a decision, it would put him in immediate legal conflict with those states that choose to regulate chemical abortions and more importantly, the Supreme Court itself, which just ruled this was a states’ right to do, not a Federal one. No president has ever previously directly denied the Supreme Court. Nixon resigned rather than follow or resist the Court’s order to hand over incriminating evidence during Watergate. While many worried Trump would refuse to obey the Court in this situation or that, in the end the Cassandras were wrong, again, and the fight never happened.
The first draft of America circa 1789 or so did not grant the Supreme Court this power of review. Marbury v. Madison, arguably the most important case in Supreme Court history, was the first U.S. Supreme Court challenge to apply the principle of “judicial review” — the power of federal courts to void acts of Congress in conflict with the Constitution and declare other government actions “unconstitutional.” Written in 1803 by Chief Justice John Marshall, the decision played a key role in making the Supreme Court a separate branch of government on par with Congress and the executive.
The actual facts surrounding Marbury are irrelevant to the abortion discussion. Relevant, however, is even though the instant case found Secretary of State James Madison had acted unconstitutionally, the underlying matter was resolved without a head-to-head conflict between the executive and judicial and the doctrine stood. With Marbury a new tool in governance, there exist only three ways to fight back against a Supreme Court decision: Congress can pass a new law (in this case legalizing abortion across the states), the Constitution itself can be amended or the Court can overturn itself, as it just did with Dobbs.
That means should Biden try for option four, executive action, his quest will be Quixotic. Sitting in some Texas government official’s outbox is no doubt a completed challenge to any such action ready to file, meaning a lower court would almost immediately stay Biden as things got sorted out (that is what happened to some of Trump’s early immigration legislation, the so-called Muslim Ban, giving the false impression of early victory to progressives angrily hanging around airports in that instance.) The challenge to Biden would quickly find its way back to the Supreme Court, which would correctly uphold itself. The same result is likely should Biden try some sort of clever end-around, such as abortion clinics on Federal land. The use of PREP would also invite a legal challenge over the point of public health emergencies, and post-Covid utterly politicize what’s left of public faith in public health.
As an aside, despite the noise, there is no likely path toward prohibiting interstate travel for abortions, say a pregnant woman driving from Texas to New Jersey and thus nothing there for Biden to worry over. Crossing a state border for abortion services is not likely to become illegal. Apart from the Constitution’s unambiguous support for interstate commerce, the House recently passed legislation affirming interstate travel for abortion, and no state has any opposing law on its books. And of course no one from Ohio is arrested for gambling coming home from Vegas, either.
Criminalizing activities done out of state, or preventing interstate travel, is basically prevented by the Constitution’s Privileges and Immunities Clause, which holds a citizen of one state is entitled to the privileges in another state, from which a right to travel to that other state is inferred. There’s also Bigelow v. Virginia which dealt directly with the issue of out-of-state abortion. The Supreme Court concluded “a state does not acquire power or supervision over the affairs of another state merely because the welfare and health of its own citizens may be affected when they travel to that state… It may not, under the guise of exercising internal police powers, bar a citizen of another state from disseminating information about an activity that is legal in that state.”
That a gesture like declaring a PREP emergency accomplishes nothing practical does not mean it would not appear politically attractive to Democrats as they head into what promises to be a very rough midterm election. Biden, however, does not seem like the kind of guy who wants to go down in history as the only president to thumb his nose at the nation’s highest court, and all that for no actual gain. Biden knows any action he could take would simply be struck down by the very court that put him in this place. It is called “checks and balances,” Joe, look it up, and it works well in these cases.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Negotiations Continue on Guns and Abortions
We don’t really negotiate much in the U.S. and so we’re bad at it. Even when we are forced to “haggle,” we employ rituals, like the salesperson at a used car dealership “checking with his manager” on our offers, or the dance between real estate agents that goes along with buying a house. Car offers come back from the mysterious manager as impossible, and offers on a house are just refused, no chance to talk because two layers of agents stand in the way. That’s why we cannot find any common ground on abortion and gun control. We do not know how to be reasonable.
The American style of negotiating is to demand everything and settle for nothing less. So we’re taught to make our first offer the final offer (it works a little different when the issue is simply money, then we ask for an outrageous amount and “bargain down” after the other side offers an equally outrageous small amount. Starting anywhere near your actual price is considered a sign of weakness.) We don’t like gray areas and we don’t like to feel we’ve lost out on something. So being asked to support something on its face reasonable like allowing two people in love living together in a home they co-own to marry means buying into a whole LGBTQIA2+ agenda that somehow includes forcing kids to listen to drag queens read stories aloud about sexually ambitious caterpillars and their same-sex tadpole pals. Seeking restrictions on abortion ends up cruelly forcing rape and incest victims to carry to term.
We do the same thing in broader swathes, when reporters who misuse pronouns or support the Harry Potter author are not just sidelined or argued with, but canceled, deleted, defunded, disenfranchised, literally thrown down the memory hole to just take their opinion and go away, leaving only your opinion standing. The presumption is even on the most ideological of arguments there is a clear right and wrong only. We have evolved speech to match this mindset, things like “my way or the highway,” “all or nothing,” and “in or out.”
Back in the day when I worked for the State Department every summer embassies abroad had to ask for funding for summer hires to help us catch up on clerical work. There was only so much money around and not everyone could get all they wanted. At first I did what was standard, ask for ten people knowing I only needed five, with all sorts of silly justifications I had to eventually walk back. One year I played it different. I wrote in detail what five people would do, what would not get done with only four, and why six would be a waste of personnel. That year and the ones that followed were the easiest ever; Washington and I jumped right to the meat of the problem and nobody was forced to belittle the other on the road to negotiating a compromise.
That’s what did not happen recently in overturning Roe v. Wade. Though Roe was poor jurisprudence and Constitutionally hilarious, it was the product of negotiation. First trimester abortions were basically allowed, second term were generally allowed, and third was more or less up to the states. Roe produced a workable solution to a very complex problem, uniquely American as it combined religious, moral, and Red and Blue thought into what was often falsely presented as a binary decision — abortion was legal or not. The compromises in Roe were far from perfect or widely accepted, simply the output of a beleaguered Court willing to talk about something the rest of America would not.
The problem was Roe’s supporters and opponents almost from day one set about trying to take a compromise solution and make it an absolute. States latched on to their freedom to dictate third semester rules by gleefully promoting gory end term abortions where a viable baby was aborted. There can be good medical reasons to consider this, but the issue was not presented that way, it was “a woman’s right.” Same on the other side. Clever legal tricks were deployed so that, sure, you can get a first trimester abortion, only not where clinic regulations and hospital affiliations were manipulated to make it near impossible to meet the standards. As was intended. No one was going to sit back and allow compromise to stand.
The Court itself is not immune; in combination with the gutting of Roe (another all or nothing type decision) Judge Clarence Thomas opened the door to ending Federal law allowing for same sex marriage. If you can’t have all the rights you should have none of them he seems to be saying to the Left. Specifically, Thomas was threatening Griswold v. Connecticut, a 1965 decision that declared married couples had a right to contraception; Lawrence v. Texas, a 2003 case invalidating sodomy laws and making same-sex sexual activity legal across the country; and Obergefell v. Hodges, the 2015 case establishing the right of gay couples to marry. How again are those directly related to the hyper-complex issue of abortion?
More importantly, has anything changed in society that requires a new look, something gone amiss? No, the only thing that has changed is a different side now holds a majority on the Court and wants to run with it. They have no more interest in compromise than the demonstrators massing around Justices’ homes in hopes of harassing them into compliance with the mob, or AOC on TV screaming people are going to die.
Same for gun control, the other recent Supreme Court decision. In New York State Rifle v. Bruen, the Supreme Court again swung widely. The existing law, basically saying the right to bear arms in the 2A did not automatically mean a right to openly carry arms in public, had been misused by anti-gun states. In Hawaii, for example, every single open carry permit had to be approved personally by the chief of police. Multiple chiefs over a period of recent years found no reason to approve even a single permit and in the past 22 years there have been four open carry permits issued in Hawaii; all or nothing, as if somehow not one applicant in recent memory was capable of safely openly carrying a weapon. So the response from the now-conservative Supreme Court was to do away with provisions governing carrying a weapon. The counter-response from those states who are anti-gun, such as Hawaii, is to promise to jerry-rig their laws with outrageous training requirements or exorbitant fees to somehow get around the Court’s perceived free-for-all, and to cite recent mass shootings (which had nothing to do with handguns or open carry laws) as fear-inducing excuses. Nobody sees any of the middle ground of reality.
And that is why the Supreme Court’s rulings on abortion and gun carry law resolve nothing. In the extreme progressives will simply wait it out until it is 1973 again, and the Court will have turned over to a more liberal group of jurists who will reinstate black to replace white or vice-versa. The real answer on abortion, a rough and robust debate in Congress followed by a set of compromises, or an equally rough and robust debate at the state level, will never come. Americans are not very good at negotiating and so usually pay more at the car dealer than they should. The same problems plagues us on much more serious issues regarding abortion and the Second Amendment and that ends up costing us a lot more.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Democracy is Doing OK
It was the July 4 holiday which brought out the worst of it, those claiming our democracy is in danger, failing, or in some cases, failed. But the holiday was just an excuse for our daily dose of doom. The blight of articles followed a familiar path, starting with some event (January 6 was the clear leader) and explaining how it was the start of fascism, comparing it one of the few historical examples allowed quotable by progressives, usually something to do with the Reichstag, and then growing that image to say, Trump standing over Lady Liberty, that kinda grin on his face.
Actually, our democracy is doing just fine. Things are working more or less exactly as they are supposed to.
The runner up to January 6 as the last gasp of democracy is the recent set of Supreme Court decisions. Centerpiece is the overturning of Roe v. Wade, a sign of democratic failing because it fully strips women of their rights and shows the Court has no respect of precedent and could overturn anything. Usually this means the end of same-sex marriage as another Democratic emote-o-point, but in some screeds reaches as far as banning inter-racial marriages and contraception. Any day now!
Slow down, kids. If you go too fast you’ll miss the scenery, in this case things working about normal. Perhaps it is necessary to remind our “democracy” is sort of like sharing crayons in kindergarten, sometimes you have to use the yucky brown one and let the other kids use the preferred red and orange. Progressives, with a lock hold on the Supreme Court for many decades, never mind the media, advertising, entertainment, and academia, grew too used to getting their way, too used to defining democracy as “expansion of rights that I favor and shrinking of those you favor.” So expanding the Bill of Rights automatically meant ignoring the Second Amendment and dilating the 14th to loop in abortions. It was easy to see it all as progress when for the most part it was just you always getting more of what you wanted.
But a real democracy shares nicely, and as voting patterns (remember when Ohio used to be a well-contested purple state? Florida always up for grabs? John King zooming the CNN Magic Map practically into voters’ backyards?) and national moods change so does the makeup and decisions of the Court. Remember back in 1896 when the Court decided in Plessy v. Ferguson separate rail cars for whites and blacks were equal enough as required by the 14th Amendment, that race was constitutionally a way to judge people? The upshot was constitutional sanction to laws known as Jim Crow (the name comes from a popular minstrel character of the time) designed to maintain racial segregation by means of separate public facilities and services.
Then in 1954’s Brown v. Board of Education the Court ignored a whopper of stare decisis and ended separate but equal as an unjust albeit long-held societal standard. Race was not constitutionally a way to judge people. Nobody is keeping score but it was 59 years of separate but equal, and 49 of Roe. People said a lot of things in 1954 when the Brown decision was handed down, but it is hard to find a genre of “end of democracy.” Indeed, enforcing Brown, even to the point of deploying Federal troops to do so under the Insurrection Act everyone was afraid of on January 6, is often cited as a high point of democracy. WHen tested, the system worked.
January 6 should be a semi-holiday, like 9/11, something worth noting every year as an example of democracy working exactly as intended. Let’s look for the undemocratic element: 1) American holds an election and not everyone agrees who won (nothing new, where do you think all those complex presidential election rules came from but past instances of disagreement?) 2) Lawful protests take place at the Capitol; 3) When a minority of protestors start trespassing, law enforcement steps in and after one terrible fatality on the ground in Ashli Babbitt, the crowd disassembles. 4) Delayed a bit, the Vice President ignores any background noise and simply carries out his Constitutional duty in the ceremonial certification of electors selected earlier. With the possible exception of the cops gunning down the unarmed Babbit, everyone did their duty, and another peaceful transfer of power took place. No tanks on the White House lawn.
To create the same climate of fear progressives more or less successful maintained during the four years of the Trump administration without blaming Joe Biden for some of the highest inflation and gas prices, and lowest stock vitality in years takes some clever word play. It exists in abundance. The Supreme Court judges (the bad ones!) become right wing extremists, not jurists. Their decision on Dobbs is based somehow on only rights that existed in 1868, and so forth. Taking away the EPA’s unilateral power to make climate change rules without full and open debate and returning that authority to Congress is somehow twisted to be both undemocratic and a sign of the apocalypse. Even Left Wing Extremist Sotomayor (exaggeration is fun!) wrote of Dobbs that the majority decision “undermines the court’s legitimacy” as if such a thing happening in a democracy — the majority carrying the day — was something extraordinary and particularly rare in its evil. But just saying things are true does not make them so.
Of course George Soros had to weigh in since we’re talking about the threat to our democracy. “There is only one way to rein in the Supreme Court: throw the Republican Party out of office in a landslide. That would allow Congress to protect through legislation the rights that had been entrusted to the protection of the Supreme Court. It is now clear that doing so was a big mistake. Congress must act.”
Now we’ll leave aside the part about Congress not acting on abortion, same sex marriage, inter-racial marriage, contraception, the EPA, and a lot of other supposed threats to democracy for decades, including when Democrats held majority power in both houses, the Court, and the Executive.
But Soros still sees a problem: “When it comes to organizing a landslide victory against the radicalized Republicans, opponents face almost insuperable obstacles. Republicans have not only stacked the Supreme Court and many lower courts with extremist judges. In states such as Florida, Georgia, and Texas, they have enacted a raft of laws that make voting very difficult.”
We’ll take Texas as an example. You can register to vote there online, which does not seem too hard given anyone who can borrow a cell phone and do it from a parking lot. You do have to present one of seven forms of ID to register and to vote, including a drivers license, a handgun permit, military ID, or others. You can’t have a decent adult night out without one of those, and several are issued by the Federal government well outside the hands of racist old Texas. In certain circumstances a utility bill or a cashed check can suffice. Not clear what’s so hard; 17 million people in Texas are registered so far, which sounds like alotta democracy is working just fine. Now, showing the same photo ID (and a vax card) just to sit down and eat a burger, that has some undemocratic overtones to it…
Soros aside, no one clings to the “democracy is dying” meme like a convert named Max Boot. Covering the gloom beat for WaPo, Boot warns “we’re in danger of losing our democracy.” He is stirred by Americans coming together to support Ukraine’s “fight for freedom” (better there then on the beaches of Santa Monica, eh Max?) “But it is dismaying,” he writes, “to see that there is no similar consensus on defending democracy at home.” The solution is simple, vote for Democratic candidates only, even if you don’t agree with them, because what could be more democratic then being told who to vote for and asked to not think about your choice. “Panic,” Max writes, “…is sometimes warranted.”
Boot supports one of the most undemocratic things possible, to demand the end of democratic institutions when their call has not gone your way. Don’t like Dobbs? Support packing the Supreme Court (what happens when Republicans regain power and re-pack it?) Don’t care for the electoral system? Demand the Constitution be damned and the popular vote given precedence. Max Boot, again, declares with the straight face of someone who must have failed eight grade civics class “There is no justice in a political system that gives Republicans six of nine Supreme Court seats even though a Republican has won the popular vote for president only once in the past 30 years. So, too, there is something deeply amiss with a Senate that gives California (population 39.3 million) the same number of seats as Wyoming (population 581,348).” “The Founders never envisioned such an imbalance between power and population,” wrote Boot in a multi-Pulitzer-winning newspaper.
Um, they actually did. It was the Founders who created our proportional representation system precisely to balance the power of big states and small ones.
Keep in mind there is a reason progressives are trying to keep people in a state of fear. Fearful people are easy to manipulate; you need only scare them to the point where they demand relief, and then provide them the way out as the final solution. A standard trick of any demagogue. “Democrats need to lean into the politics of fear,” says the NYT. So it is a natural extension of “Trump is Putin’s boy” to “let’s have a war against Putin.” Or from “some states ban abortion” to “next is a national abortion ban enacted by a Republican Congress.” Historically fear has driven any number of crusades and Crusades. The solution of course is not to be drawn in, to stop and ask yourself if something is true (“it’s hard to vote in Texas”) and react out of intellect and not emotion. Heck, if half of Germany would have thought through the Reichstag fire and not bought into fear mongering, George Soros, et al, would need a whole new go-to bad guy as they try and pre-defeat Trump in 2024.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Five Important Things About the Abortion Decision
— Abortion rights are guaranteed by the Constitution.
In 1973 the Supreme Court handed down a judicially creative interpretation of the 14th Amendment to the Constitution in the case Roe v. Wade to claim abortion was like other privacy-based rights (such as the right to contraception, right to same-sex marriage, right to adult sexual acts with consenting partner, and right to interracial marriage); that is, unenumerated rights, rights inherent in the Constitution but not listed by name like the right to free speech and the right to bear arms.
— So that’s it. The current decision is illegitimate. Abortion is constitutional!
The Supreme Court in its decisions creates precedents, meaning judgement they’re supposed to follow in the future. That’s the doctrine of stare decisis. But the Court is also allowed to revisit itself and overturn what it felt was a bad decision. Some of these are famous, for example, Plessy v. Ferguson, which said separate but equal was the law of the land, leading to black kids going to one school and white kids going to another supposedly equal school. Plessy held stare decisis for nearly 60 years, until the case of Brown v. Board of Education in 1953 overturned it. Like Roe, society was structured around Plessy and decisions were made keeping with it, until it was no longer the law of the land. Today almost everyone sees Plessy as something that discriminated against blacks, but that does not change the principle, just how we feel. Bottom line: respect for precedent does not preclude the Supreme Court from overturning its past rulings, even if that means big changes like societal desegregation.
— I’m still stuck on how the 14th Amendment could say something to one group of justices, but not to another group of justices.
Because the Constitution was written mostly in the 18th century, a lot could not be anticipated by the Founders. So the Supreme Court exists to interpret the meaning as one of its jobs. The 14A was ratified in 1868 and extended civil and legal rights to everyone, specifically formerly enslaved blacks, granted citizenship to all persons born or naturalized in the United States, ensured rights to those in states where discriminatory laws were in place, and said the right to due process of law and equal protection of the law applied at both the federal and state levels of government. The 14A says “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The Court found in 1965 in that text the right to privacy, specifically the right of married couples to get contraceptive advice from their doctor. The Court said that even though the Constitution did not explicitly lay out a right to privacy, “We deal with a right of privacy older than the Bill of Rights, older than our political parties, older than our school system,” so it there without needing to be written out like with free speech or bearing arms. This is where the 2022 Dobbs decision draws its line “the inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions.”
Then in 1973 amid a national debate over abortion, the Court found a woman’s right to an abortion was implicit in the right to privacy. At the same time it also acknowledged the state’s interest in protecting the “potential of human life” and so Roe’s trimester-based system for abortion restriction was created. As with same-sex marriage, since the right was in the Constitution, America needed a Federal-level decision on how that would be broadly carried out, with a compromise of leaving room for states’ interpretation.
In 1992, the trimester system was reviewed in Planned Parenthood v. Casey. The justices reaffirmed a woman’s right to abortion but gave states more leeway in regulating it as long as the states did not create an “undue burden.” For example, some states legally implemented a 72-hour waiting period and mandatory counseling
In 2022 Dobbs v. Jackson the Court changed its mind. It said abortion was not a Constitutional right, and thus the Constitution does not prevent state legislatures from banning abortion. Since abortion is not a Constitutional issue, they concluded, and because the issue is contentious, it requires states’ debate and create their own laws.
— So can’t the Court now go back and do away with our rights to contraception, same-sex marriage, interracial marriage, deciding variously that those are not unenumerated rights?
Technically yes, in reality hardly likely. While Justice Thomas wrote separately that other “substantive precedents” decided by the Court should be re-examined, no other justice agreed. More importantly, Justice Alito, who wrote the 2022 opinion, specifically cited those rights and said the instant decision had nothing to do with them. Among other reasons, abortion stands alone in that the government has an interest in protecting the “potential of human life.” And even Justice Thomas did not place interracial marriage (Loving v. Virginia) on the chopping block, even though it has many of the same judicial roots as the other unenumerated rights. Justice Alito wrote plainly “None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion. They are therefore inapposite. They do not support the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way.” That would make citing Dobbs as precedent to overturn say same-sex marriage nearly impossible.
— So blah-blah, bottom line is the Supreme Court says women cannot have abortions.
The Court did not make abortion illegal. Instead, the Court said abortion (already regulated by Roe’s trimester system) would instead be regulated by each state individually. This is to acknowledge the lack of consensus in America on what is morally right. Seven states, for example, have no plans to change their laws and allow for up to third trimester abortions, among the most liberal globally. These include populous states like California and New York with huge metro areas, so that a majority of women will live in states where surgical abortion is accessible (the majority of abortions even pre-Dobbs took place in Blue states.) Other states, such as Mississippi, which pre-Dobbs had only one abortion clinic, have made the procedure illegal though at little overall change. Some 13 states will make abortion illegal, and the change to women in those areas who cannot travel may be more significant. The point is for each state to consider what is right for itself.
Potential harm to women will be mitigated by “abortion pills,” which did not exist in 1973 and will help eliminate so-called coat hanger abortions (there is no case in America of a woman being prosecuted for seeking an abortion since 1922.) Even before the recent decision, over 42 percent of abortions were “medical abortions,” by pill. While there is no way to downplay the significance of Dobbs, it does not create a black or white landscape for reproductive rights its critics try and paint.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Who is to Blame if Roe is Overturned?
With bad things accumulating like Ukrainian mud around Democrat midterm chances, nobody seems to be talking about the elephant in the room. Its name is Roe, and if national abortion rights are overturned, it could help destroy the Democratic party. A Supreme Court decision is expected soon.The signs of significant change are clear. Texas is already effectively restricting abortions after six weeks (Idaho passed similar legislation.) Florida restricts most abortions after 15 weeks. If Roe is gone, 26 states are expected to ban or limit abortion. Four states support the Mississippi law the Supreme Court is now reviewing in Dobbs v. Jackson Women’s Health Organization. The Mississippi law is a direct challenge to Roe v. Wade, the landmark 1973 Court decision which made abortion a woman’s right through the second trimester. The Court will likely announce this spring a decision to overturn or significantly weaken Roe, clearing the way for each state to create its own restrictions. It will also signal the end of an era dominated by Democratic party social policy.Politically the loss could be part of a death spiral for Dems. “Protecting Roe” has been a central Democratic talking point for decades and if that protection fails, especially under a Democratic president and with Democratic House, it will not go down easy. The decision may have as much effect on the midterm elections, and possibly 2024, as any other factor. A lot of Democratic support from educated women is tied to abortion rights, as well as many progressive votes in general. With the party already losing/lost working class voters and many Hispanics, they cannot afford to jettison too many more blocs. And somebody is going to be blamed.The most likely gambit by the Dems will be self-destructive, to scold voters, saying if the dumb rednecks hadn’t elected Trump we would not have three new conservative judges on the Court. Scolding and mocking voters was a signature of Hillary’s campaign and look where it got her; “deplorables” is forever an American election meme now. And even if the Democrats were to 3-D print a viable candidate for 2024 out of soy-based beef substitute, it is unlikely he could bring enough new blood to the Court (only Justice Breyer was the obvious candidate to retire) to change the balance quick enough to rally Roe. So the most obvious Dem slogan, elect us and we’ll repack the Court with liberals, is at best a solution decades away even if everything goes well. There is no will to expand the Court outside of the NYT Op-Ed pages.Dems will not mention it, but the real blame lies in 50 years of Congress refusing to codify Roe’s judicial creative writing into actual law that could withstand a conservative court. Over the decades the Democrats when in the majority treated abortion, as they did same-sex marriage for many years, as a third rail. They supported it but would never risk the votes by actually touching it. It will beg the question in many Blue voters’ minds of why bother to elect Democrats at all. The Democrats of course don’t see it that way; “I think the country hasn’t seen the rage of women speaking out,” said Representative Jackie Speier. Representative Pramila Jayapal said “I think it’s going to mobilize people to go to the polls. You will see an outcry like you’ve never seen before.” Righteous anger? Maybe. But Democrats will have quite a battle convincing these angry voters that yes for sure this time promise they’ll actually do something to protect abortion rights other than talk about losing them and holding Handmaidens Tale watch parties.The other question Democrats will need to confront is what do Americans really want? In a nationwide survey, 56 percent said they would support restricting abortions after 15 weeks, what the Mississippi law at the center of Dobbs aims to do. Hispanic voters, who Democrats are already losing, are divided on the issue of abortion and vote Red in notable numbers. Same sex marriage finally became so widely supported that even Democratic candidates in purple areas could safely jump on the bandwagon. Not so with abortion.There are other players the Democrats might want to spread a little blame on as well. In the case of Dobbs now at the Court, their champion Justice Sotomayor failed to lay a legal glove on her opponents. While the conservative and swing justices walked their colleagues through case after important case where precedent was overturned, she whined like a 1L that precedents she supported were untouchable. She chided her colleagues if they overturned Roe the whole Court would lose credibility and take on a “stench.” She spoke like someone running for election in San Francisco, not a sober justice building a case her colleagues would sign on to. She seemed to forget at oral arguments the justices aren’t really talking to the attorneys before them; rather, they’re talking to each other through the lawyer at the lectern. But at least her no doubt snarky dissent will earn her comparisons to the Notorious RBG.Speaking of RBG, perhaps she deserves a dainty teaspoon of blame. Her hubris in a) thinking she would live forever and b) assuming Hillary would be anointed and choose her successor lead directly to Donald Trump’s signature political triumph, turning the Court right. The blood of the martyr Breyer waters RBG’s grave site.Which also suggests Barack Obama, who failed to fight for his Supreme Court nominee Merrick Garland, shares some blame. Claiming Obama could not effectively fight for his nominee because of Republican opposition again begs the question of why bother to elect a Democrat at all if they’re just going to fail and blame the other party for their failure. You’re just not a very good politician if you can only get things done with a super-majority.More broadly, blame should Roe fall lies in part with the feminist movement and the far-left of the Democratic party. They long ago insisted on including the contentious issue of abortion in with the basket of more broadly supported women’s issues, such as equal pay. They then turned away many middle-of-the-road voters and “purple” women by tying abortion rights into all sorts of issues which do not enjoy consensus dealing with LGB and incessantly, trans people. “America’s anti-abortion agenda is also anti-trans” announced one queer media outlet matter-of-factly. “Banning trans people from public life and banning abortion are all about installing a regime of gender roles.” For those whose idea of “a regime of gender roles” means basic biology not same-sex toilets the argument is as non-inclusionary as an NFL locker room.As if to double-down on the idea, many Democrats are ginning up scare tactic ploys, saying if Roe falls same sex marriage is next along with a slate of basic civil rights. This strategy, which insists on pairing the broad political spectrum among gay and lesbian voters with a radical feminist perspective, fails to account for the fact the Roe was a cobbled together compromise using the 14th Amendment to create a “right” to abortion, which really made no one feel things were settled. Cases like Obergefell v. Hodges, which made same-sex marriage legal, and Lawrence v. Texas, which overturned laws criminalizing same-sex relationships, rest on much different and sounder precedent.Any politician seeking to build support instead of acquire virtue points tries to make the tent bigger. Instead, Representative Ayanna Pressley, basically saying hold my beer to Hillary “Deplorable” Clinton, stated “Pro-life laws hurt our lowest income sisters, our queer, trans and nonbinary siblings, black, Latinx, AAPI, immigrants, disabled and indigenous folks. And none of this is happenstance… These bans are rooted in a patriarchy and white supremacy.” And no progressive commentary is complete without the now-obligatory Nazi reference. It was feminister has-been Gloria Steinem who added ahistorically “You know, Hitler’s first official act was banning abortion.” The basic line “all men are pigs and rapists” did not build support for feminist issues in the 1960s, it did not build support for the Equal Rights Amendment in the 1970s, and it is not helping today.In one article of so many on such themes, the writer begins by asking why more men don’t overtly support women in the abortion fight. She then calls any opposing views from hers “Taliban-adjacent,” claims the government is over-represented by men, and cites the need to destroy the patriarchy. She goes on to mock men who claim they understand women’s issues because they have daughters. Hmm, sister, if you don’t see why you’re not building up support among us dudes after that, I can’t mansplain it.The real problem for the Democrats is if the Republicans can claim victory in overturning Roe, they will empower their base in new degrees; a signature victory for many social conservative and evangelical voters was delivered. Those evangelicals who held their noses and supported Donald Trump will have new found reason to look past his gross person; he came through for them on an important issue. In response, “Vote for us, we lost Roe on our watch” is not a very inspiring Democratic campaign slogan.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Sotomayor and End of Roe v. Wade
I don’t know the right answer on abortion. I do know based on the oral arguments recently heard by the Supreme Court regarding Mississippi’s abortion law that our country has problems that cut deeper into our national fabric than the specifics of any abortion law.The out-of-the-box role the Founders had in mind for the Supreme Court, basically a check the other branches of government were consistent with the blueprint laid down in the Constitution, did not last long. Almost from the get-go the Court claimed additional authority for itself to strike down laws (Marbury v. Madison, 1803,) the doctrine of judicial review.In the years since the Court has used its power to wrestle with Americans over how their country should work. The Court once confirmed slavery (Dred Scott v. Sanford, 1857), later pulled a reluctant public by the ear away from segregation (Brown v. Board of Education, 1954 but only after it had earlier endorsed segregation in Plessy v. Ferguson, 1896 ) and trailed public opinion on same-sex marriage only to finally confirm it (Obergefell v. Hodges, 2015.) As for precedent mattering, the underlaying laws supporting slavery and marriage had been in place much longer than Roe‘s 48 years and in their time were more broadly supported.But whether leading public opinion or trailing it, the Court assumed a role unthought of by the Founders, one in the absence of common agreement and/or laws passed by Congress, to decide how Americans would live with one another. Should we be a slave-owning nation? Should our schools be segregated? Should same-sex partners be allowed to marry? In case after case the Court took it upon themselves to determine a solution to a social issue, seeing the need for a nation-wide answer to a contentious question once left to each state.And that leads us to abortion. Abortion exists at the raw edges of human existence. It is a religious issue, it is an issue intimately tied to liberal and conservative politics. It can decide elections. In cases of rape, incest, or the health of the mother, it is a moral issue. It is a states rights issue. It is women’s health issue and a societal burden issue. It is a socio-economic issue, with the population of women who seek abortions skewed by economics and race. It is healthcare or murder.The Court tried in 1973 to pry Americans from one another’s throats over abortion via Roe v. Wade. When the case was first heard, 30 states had complete bans on abortion. Sixteen states had full bans except for rape, incest or the mother’s health. Three states allowed most abortions, but only for residents. Only New York allowed abortions for out-of-state women, but capped them at 24 weeks unless the mother’s health was in danger.With Roe the Court took it upon itself to create a kind of compromise out of all that: during the first trimester a state cannot regulate abortion beyond requiring the procedure be performed by a licensed practitioner. During the second trimester a state can regulate abortion if the regulations are reasonably related to the health of the pregnant woman. And during the third trimester, the state’s interest in protecting the fetus outweighs the woman’s rights, so a state may prohibit abortions unless an abortion is necessary to save the life or health of the mother. Roe v. Wade did not legalize abortion per se. What it did was change the way states can regulate abortion.Roe also said abortion was a constitutional right, a claim which forms the basis for many who claim the case was wrongly decided. Critics acknowledge while the Court tried to do its best with an impossible problem, nowhere does the Constitution say anything close to abortion being a right, alongside say freedom of speech or due process. They argue the Court should never have essentially written via Roe the law Congress would not. The basis of the right to abortion seems to rest in the 14th Amendment, which otherwise is concerned with equal protection for freed slaves. This bastardization, which allowed the Court in 1973 to create an abortion policy for the entire nation without any democratic input, may prove the basis for Roe‘s undoing. Even one of the Court’s greatest liberal justices, Ruth Bader Ginsburg, knew Roe was bad law, writing “Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.”Roe‘s other shortcoming is in saying states could not outright ban abortions in the first 24 weeks of a pregnancy. The number was something of a compromise; Justice Harry Blackmun, the author of the majority opinion in Roe, once called the line arbitrary. The question of where to draw the line for abortion, at Roe‘s 24 weeks or Mississippi’s 15 weeks begs the question of why a line exists; aren’t the legal interests (aside from religious/moral ones) basically the same throughout a pregnancy?In subsequent cases, Planned Parenthood v. Casey, 1992 and Whole Woman’s Health v. Hellerstedt, 2016, the Court modified Roe in response to many states imposing laws trying to limit abortions by making the process too complicated, expensive or cumbersome. The Court said in the cases above “such laws could not impose an undue burden,” defined as one having “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”For all that is unclear, three things are clear: 1) Roe always allowed for regulation; it was never abortion without restriction; 2) if the Court can reverse itself on the issues of slavery and segregation it can reverse itself on abortion, and 3) almost no one thinks Roe forever settled the issue of abortion in America. America will ask, and answer, the question anew.The current vehicle for asking and answering is Dobbs v. Jackson Women’s Health Organization, which concerns a 2018 Mississippi law banning almost all abortions after 15 weeks. Its version of regulation is a direct challenge to Roe‘s (Texas’ latest attempt to restrict abortion, SB8, will be heard separately.) The Court heard oral arguments on Dobbs in late November. A decision will be announced in 3-6 months, and will likely have more affect on the midterm elections than any other factor.The Court can decide to keep Roe as it is and tell Mississippi to get with the program, it can accept Mississippi’s version (i.e., no abortion after 15 weeks) and upend Roe, or it could ignore Mississippi’s version and re-write Roe to create new rules for each trimester. Any of the three would be consistent with the way the Court has acted for some 220 years.What is troubling are some of the statements made during oral arguments by the so-called liberal judges, particularly Justice Sotomayor. Sotomayor went as far as to question whether the legitimacy of the Court itself would endure if it overturned abortion rights. “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” She accused Mississippi of moving forward with abortion restrictions only “because we have new justices,” referring to the three Trump appointees, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. “If people actually believe that it’s all political, how will we survive?” Sotomayor continued.The other liberal justices, Stephen Breyer and Elena Kagan, were equally vehement in their support for abortion as a constitutional right. Alongside Sotomayor, they continually claimed that Roe was “settled law” and was thus somehow above being re-examined. It was left for Justice Kavanaugh to point out to any first year law students in attendance the long line of celebrated cases in which the Supreme Court overruled precedents. If the court had adhered to stare decisis in those cases, he says, “the country would be a much different place” (to include segregation and slavery.) Kavanaugh finished his lecture by noting every current member of the Court has voted to overrule constitutional precedents in various past cases.I don’t know the right answer on abortion. Since Congress has steadfastly refused for decades to legislate on the issue, the Court has been left to glean the boundaries among religion, public policy, and individual rights. The compromises and weaknesses in Roe are because of what Congress has avoided doing. Any decisions the Court has made in the past, and the decision they will make in the instant case, will be imperfect. But that’s only the beginning.The deeper problem is the Court has taken such an overtly political, partisan turn. Sotomayor in particular embarrasses herself with a fan-fiction quality take on settled law, and her claim that a decision which does not fit her political beliefs will destroy the legitimacy of the Court. She believes in precedent when she agrees with it and does not believe in it when that suits her better. She has suggested the last president’s appointments to the Court are somehow wrong because their mere presence allows Mississippi to challenge Roe. Americans have been trained to claim anytime a court decision or an election goes against their personal preference that means the system is unfair. Shame on Sotomayor for fanning those flames by suggesting her fellow judges are biased and she alone is not.Sotomayor is a zealot who sees politics above justice. In that sense it is unclear Sotomayor actually understands how the Supreme Court works. If Roe falls, its supporters may wish to re-examine their champion’s role in so poorly defending it.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
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