The Roe Countdown

[ponderingturtle]

Nah, Obergefell, then Loving.

I think they will just go for a twofor.

 

[JoeMorgue]

Gay Marriage will be next. Republicans still are butt hurt about losing that one.

 

[cosmicaug]

The draft contends that Roe v. Wade was wrong to restrict the power of state legislatures in private matters. Does that same reasoning also apply to the decisions in Griswold v. Connecticut or even Loving v. Virginia?

Those are clearly next up for attack.

A difference here is that Loving vs. Virginia predated Griswold & Lawrence vs. Texas by quite a bit & was not premised on an inferred right to privacy.

 

[JoeMorgue]

A difference here is that Loving vs. Virginia predated Griswold & Lawrence vs. Texas by quite a bit & was not premised on an inferred right to privacy.

None of that matters. The Republicans want symbolic victories over the Left combined with a "We can do anything we want" message. Actual legal decisions are not really the point.

Abortion, gays, women, blacks... they'll get their turn without worry or care about precedent or greater scope.

Hell if they can find a way to make the Death Penalty mandatory watch them do it, really round out the trifecta of big issues they are on the losing side of.

 

[ponderingturtle]

In the case of Loving v. Virginia, it definitely does not.

Sure it does, there is no explicitly stated right in the constitution to be able to marry anyone you choose to, so the state can step in and put what restrictions it wants on it. It isn't like any cases other that Roe were cited in this decision so it works for pretty much anything.

 

[Ziggurat]

Yeah because it's totally liberals who storm government buildings when political decisions don't go their way.

That's precisely what's being advocated here. And my point is that this would be a very, very bad development. Do you disagree?

 

[TurkeysGhost]

"Liberal agenda"? We were talking about threats of violence to coerce the Supreme Court. You managed to straw man yourself. Impressive.

Either that, or you're admitting that threats of violence ARE the liberal agenda.

I was mostly referring to normal Social Contract stuff. Populations can refuse to be governed by unpopular laws if they choose, often the most effective strategies are nonviolent. Mass demonstrations and refusal to cooperate in the normal operation of society is ideally what you'd want to see in this kind of situation, though I wouldn't shed any tears for minor property damage and disorder that often accompanies such spirited protest. The populace can inflict quite severe blows without drawing a single drop of blood, if they are animated enough.

Undoubtedly this would spiral into violence, but it would be the state and/or right wing paramilitary types initiating it as usual.

The use of stochastic terrorism is something that you usually see with minority, authoritarian movements that have no hope of ever actually amassing broad popular support. You know, like your average right winger that decides to shoot up an abortion clinic.

ETA: I don't think you understand me at all if you think I'm suggesting that liberals are anywhere cool enough to even consider doing anything like direct action. If anything, their response will be to quell immediate anger and try to siphon off energy into donation/election schemes that promise a lot and deliver little.

 

[ponderingturtle]

On further review, I would like to revise and extend my remarks.

I could easily see it being restricted, in the sense of certain methods being banned, or limitations placed on sale. Griswold overturned a complete ban on contraception. I can't imagine any state ever passing a complete ban, but I can see states restricting their use in some ways. The obvious case is any variant of a "morning after" pill, or any method aimed at preventing implantation of a fertilized egg. I could see some states passing such laws, and I think this court would uphold those laws if the states passed them.

ETA: Ninja'd by The Don

Don't you pay attention to the officials running for election in your own state, they are targeting Griswold

https://www.detroitnews.com/story/news/politics/2022/02/21/michigan-gop-ag-candidates-criticize-1965-ruling-against-contraceptive-ban/6879175001/

""Each of the radical Republicans running for Michigan AG want to overturn the right for married couples to use contraception without being prosecuted," Nessel tweeted."

 

[crescent]

I reading some speculation regarding the mechanics of the Supremes' voting process and the motive for the leak. There is speculation that the leak might have been done as a way of "locking in" the vote (which has not yet actually occurred, there has been no actual decision made yet). The line of reasoning goes that Alito had a majority of the court tentatively line up but was worried that the more left-leaning side of the bench might still be able to craft a dissent effective enough to peel off a vote or two.

So leak the "vote", that way the cat is out of the bag and the justices might be less likely to change the "vote" (which has not yet actually been made yet anyway).

I don't buy that line of reasoning - the right to an abortion has strong public support. Intense public pressure could have the opposite effect of what the "leak to lock in the vote" logic proposes, it could result in pressure to change an SC Justice mind or two.

If that second scenario comes true (justices change their minds before any sort of formal vote), that would sow distrust, or at least be used as an excuse to claim that SC has lost integrity:

Andy McCarthy:

If this story is true, the Court should issue its opinion right away. Otherwise the disgraceful leak wins. I would say that if my side lost. If we lose the integrity of the Court’s process, we lose the Court. That should be intolerable to all of us who live the country.

I don't buy that line of logic either. If the SC has not issued the final opinion, then the decision has not yet been legally made. There is a point where it may be too late for a justice to change his/her opinion, but that step in the process has not yet been reached.

My guess is that the leak might have been sort of semi-unintentional. This is a big thing, any naive staffer might have just found to too much to sit on and just had to tell someone.

Or a left leaning staffer leaking because they thought that public pressure could change a mind or two before its not too late. But then again, the Ginny Thomas theory also seems pretty viable.

 

[JoeMorgue]

That's precisely what's being advocated here. And my point is that this would be a very, very bad development. Do you disagree?

I'm insulted that you think I'm going to fall for you pretending that's the point.

 

[angrysoba]

Gay Marriage will be next. Republicans still are butt hurt about losing that one.

Do you think they will go for federal bans or make each of these things "states rights"?

Arguably the latter is worse given that States Rights Started The Civil War^TM

 

[Meadmaker]

I for one am glad for the leak. Rather than being blindsided by the actual ruling, it allows for discussion and protest before the fact.

I tend to agree.

Although, it is a dangerous precedent. It's mostly a good idea not to see what's going on in advance, because in some cases there might be some actual uncertainty in a justice's mind. Could one of them change his mind. I've always wondered about the inner workings of the court. At what point do they actually cast their vote on a case, and when is it set in stone? I really have no idea.

From the outside, it's clear. When they pass out the papers, it's done. Before that, it doesn't exist. I don't know if it is still "passing out the papers", or if today it is done via hitting "publish" on the web site. I remember when Webster was being decided (or maybe Casey? I think Webster) I happened to be watching live and someone literally came out of the building carrying a box and was mobbed by reporters trying to grab a copy. I don't know if that's still how they do it today.

Anyway, though, that clear line is, mostly, a good idea. However, leaking it in this case is kind of a good thing, in my opinion. The very personal nature of the case, the immediate impact, all of that makes me think it's a good idea for people to know that this is on the way.

Now, the extremely interesting situation would be if, after all is said and done, a couple of justices actually changed their mind and when the real opininon comes out, Roe is upheld. However, I think that's a purely hypothetical scenario. I think Roe certainly will be overturned. It will be interesting, to legal scholars, to compare the draft version and the final version, to see any differences. For most people, though, what they care about is the bottom line, and the bottom line will be that Roe v. Wade is in the history books.

And I think the nature of this decision is such that it's good to have some warning that it's coming.

 

[Beelzebuddy]

That's precisely what's being advocated here. And my point is that this would be a very, very bad development. Do you disagree?

I'm given to understand from Madison Cawthorne's hearings (referencing Reconstruction-era rulings) that advocating for insurrection is a perfectly legal and American thing to do. Why are you so insistent that being an American is a very, very bad development?

Do you think they will go for federal bans or make each of these things "states rights"?

First the one and then the other. Do you think "leaving it up to the states" to ban will slow down a federal ban later? Integrity only matters when a Democrat does it.

 

[JoeMorgue]

Do you think they will go for federal bans or make each of these things "states rights"?

Arguably the latter is worse given that States Rights Started The Civil War^TM

*Shrugs* Could go either way. The "We can do what we want" message is what is really important and that's going to be in the text instead of the subtext more and more as time goes on.

 

[The Don]

Do you think they will go for federal bans or make each of these things "states rights"?

Arguably the latter is worse given that States Rights Started The Civil War^TM

They'd like a federal ban, but I'm not sure they'll be able to achieve it.

In my view it will be States' rights but States could choose not to recognise marriages which are not legal in their jurisdiction hoping that corporations will then do the heavy lifting for them in states where things they don't like are legal. A company based in a state where gay marriage is illegal cannot be forced to provide benefits to a same sex spouse in a state where gay marriage is legal.

 

[Suddenly]

The 14th amendment being codified into the constitution (as a direct consequence of the failure of a "states right" approach to government leading to bloody civil war) is a fact that conservative jurists prefer to ignore or view narrowly to the point of being without meaning.

There is an interesting and compelling case to be made that in the Civil War it was the union that were the rebels rather than the confederacy. That the union victory and the 14th amendment essentially created a new government, and since then history has been mostly southern conservatives trying to undo that revolution and return to the more oligarchic, less democratic, and less centralized government intended by the "founding fathers."

It would be nice for the "pro-Union" side to recognize this as then they would stop giving any credence to what the original framers intent was and instead recognize that Abraham Lincoln and the rest of the reconstructionist Republicans and their allies are the real "founding fathers" of what is now the United States. It's interesting to contemplate an alternative timeline where this is so...

 

[Ziggurat]

I was mostly referring to normal Social Contract stuff. Populations can refuse to be governed by unpopular laws if they choose, often the most effective strategies are nonviolent.

How relevant is that here? Blue states will keep abortion legal regardless of what the court says. Red states are only going to make it illegal where those laws are popular within the state.

 

[angrysoba]

First the one and then the other. Do you think "leaving it up to the states" to ban will slow down a federal ban later? Integrity only matters when a Democrat does it.

I don't know.

But I don't think it comes down to integrity at all, but political strategizing.

For example, "states's rights" makes sense to a party that wants to pander to the evangelicals of the south, but also the more urbane (talking relatively, here) northerners.

If they pick up votes by banning abortions and gay marriage in the south, but allowing both in, say, northern states and Florida, then surely they are more likely to do that.

 

[cosmicaug]

How relevant is that here? Blue states will keep abortion legal regardless of what the court says. Red states are only going to make it illegal where those laws are popular within the state.

He thinks the GOP is focusing on following the mandates of what the general population wants. How adorable!

 

[The Don]

I don't know.

But I don't think it comes down to integrity at all, but political strategizing.

For example, "states's rights" makes sense to a party that wants to pander to the evangelicals of the south, but also the more urbane (talking relatively, here) northerners.

If they pick up votes by banning abortions and gay marriage in the south, but allowing both in, say, northern states and Florida, then surely they are more likely to do that.

It'll be interesting to see how that plays out.

There are true believers on both sides and I don't think that the Democratic Party would be willing to adopt an anti-abortion stance in certain states even if it might gain them votes. Some in the GOP are driven by a desire to, as they see it, save the lives of innocent unborn children regardless of the political cost or benefit. Others are more cynical (or pragmatic if you prefer) to consider such matters on a state by state basis.