Friday, May 06, 2022

Abbott v. Scary Brown People

 Bullshit:

"The challenges put on our public systems [are] extraordinary," Abbott said. "Texas already long ago sued the federal government about having to incur the costs of the education program... And the Supreme Court ruled against us on the issue about denying, or let's say Texas having to bear that burden."

"I think we will resurrect that case and challenge this issue again, because the expenses are extraordinary and the times are different than when Plyler v. Doe was issued many decades ago," the governor added.

First, let's go to the syllabus version of Plyler v. Doe:

Held: A Texas statute which withholds from local school districts any state funds for the education of children who were not "legally admitted" into the United States, and which authorizes local school districts to deny enrollment to such children, violates the Equal Protection Clause of the Fourteenth Amendment.

(a) The illegal aliens who are plaintiffs in these cases challenging the statute may claim the benefit of the Equal Protection Clause, which provides that no State shall "deny to any person within its jurisdiction the equal protection of the laws." Whatever his status under the immigration laws, an alien is a "person" in any ordinary sense of that term. This Court's prior cases recognizing that illegal aliens are "persons" protected by the Due Process Clauses of the Fifth and Fourteenth Amendments, which Clauses do not include the phrase "within its jurisdiction," cannot be distinguished on the asserted ground that persons who have entered the country illegally are not "within the jurisdiction" of a State even if they are present within its boundaries and subject to its laws. Nor do the logic and history of the Fourteenth Amendment support such a construction. Instead, use of the phrase "within its jurisdiction" confirms the understanding that the Fourteenth Amendment's protection extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State's territory. Pp. 457 U. S. 210-216.

(b) The discrimination contained in the Texas statute cannot be considered rational unless it furthers some substantial goal of the State. Although undocumented resident aliens cannot be treated as a "suspect class," and although education is not a "fundamental right," so as to require the State to justify the statutory classification by showing that it serves a compelling governmental interest, nevertheless the Texas statute imposes a lifetime hardship on a discrete class of children not accountable for their disabling status. These children can neither affect their parents' conduct nor their own undocumented status. The deprivation of public education is not like the deprivation of some other governmental benefit. Public education has a pivotal role in maintaining the fabric of our society and in sustaining our political and cultural heritage; the deprivation of education takes an inestimable toll on the social, economic, intellectual, and psychological wellbeing of the individual, and poses an obstacle to individual achievement. In determining the rationality of the Texas statute, its costs to the Nation and to the innocent children may properly be considered. Pp. 457 U. S. 216-224.

(c) The undocumented status of these children vel non does not establish a sufficient rational basis for denying them benefits that the State affords other residents. It is true that, when faced with an equal protection challenge respecting a State's differential treatment of aliens, the courts must be attentive to congressional policy concerning aliens. But in the area of special constitutional sensitivity presented by these cases, and in the absence of any contrary indication fairly discernible in the legislative record, no national policy is perceived that might justify the State in denying these children an elementary education. 

(d) Texas' statutory classification cannot be sustained as furthering its interest in the "preservation of the state's limited resources for the education of its lawful residents." While the State might have an interest in mitigating potentially harsh economic effects from an influx of illegal immigrants, the Texas statute does not offer an effective method of dealing with the problem. Even assuming that the net impact of illegal aliens on the economy is negative, charging tuition to undocumented children constitutes an ineffectual attempt to stem the tide of illegal immigration, at least when compared with the alternative of prohibiting employment of illegal aliens. Nor is there any merit to the suggestion that undocumented children are appropriately singled out for exclusion because of the special burdens they impose on the State's ability to provide high-quality public education. The record does not show that exclusion of undocumented children is likely to improve the overall quality of education in the State. Neither is there any merit to the claim that undocumented children are appropriately singled out because their unlawful presence within the United States renders them less likely than other children to remain within the State's boundaries and to put their education to productive social or political use within the State. Pp. 457 U. S. 227-230.

This case rests on the equal protection clause of the Fourteenth Amendment, so it's not a matter of "unenumerated rights" or "substantive due process."  

Though there were "extensive findings" in the trial court that illegal immigrants were an economic burden on the state, I would challenge that.  Texas has two primary sources of funding for the government:  a sales tax paid by anyone who buys any consumer good in the state; and a property tax levied by school districts directly on land owners.  Which means even tenants pay property taxes, because the landowner pays taxes.  The tax burden therefor, for “illegal immigrants” I would argue, is minimal to non-existent.  Whether "illegal immigrants" are poor or rich is of no matter; directly or indirectly, like every resident of Texas, they pay state taxes.  Being a non-citizen does not relieve you of paying sales tax or even paying rent.  And a landlord who doesn't factor property taxes into the lease is going to lose that property to someone who does.

My base critique of the State's position, however, is the argument that people in this country "illegally" are not "within the state's jurisdiction."  Which literally makes no sense, because then they are either "outlaw" in the old common law sense of the term, and can be treated like personal property or, worse, like not human beings at all; or the State cannot command their return across the border they crossed without permission once they set foot on this side of that border.

The other side of the argument is that this is ancient Rome, and only citizens get the full benefits of the law here.  An interpretation directly contrary to the plain language of the 14th Amendment (and not really an argument raised in the Court, because it is both non-legal and a non-starter). As the Court quotes from the argument for the 14th Amendment prior to its passage by Congress:

"The last two clauses of the first section of the amendment disable a State from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty, or property without due process of law, or from denying to him the equal protection of the laws of the State. This abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another. . . . It will, if adopted by the States, forever disable every one of them from passing laws trenching upon those fundamental rights and privileges which pertain to citizens of the United States, and to all person who may happen to be within their jurisdiction."*

I also like this simple acknowledgement of the humanity of the schoolchildren entangled in this baldly political decision (the law withholding funds from schools that did admit illegal immigrant children):

"[V]isiting . . . condemnation on the head of an infant is illogical and unjust. Moreover, imposing disabilities on the . . . child is contrary to the basic concept of our system that legal burdens should bear some relationship to individual responsibility or wrongdoing. Obviously, no child is responsible for his birth, and penalizing the . . . child is an ineffectual -- as well as unjust -- way of deterring the parent." 

And the last bit pretty much takes a sledgehammer to the State's argument that "illegal" children are different, and less deserving (which is Abbott's argument, too):

 Finally, appellants suggest that undocumented children are appropriately singled out because their unlawful presence within the United States renders them less likely than other children to remain within the boundaries of the State, and to put their education to productive social or political use within the State. Even assuming that such an interest is legitimate, it is an interest that is most difficult to quantify. The State has no assurance that any child, citizen or not, will employ the education provided by the State within the confines of the State's borders. In any event, the record is clear that many of the undocumented children disabled by this classification will remain in this country indefinitely, and that some will become lawful residents or citizens of the United States. It is difficult to understand precisely what the State hopes to achieve by promoting the creation and perpetuation of a subclass of illiterates within our boundaries, surely adding to the problems and costs of unemployment, welfare, and crime. It is thus clear that whatever savings might be achieved by denying these children an education, they are wholly insubstantial in light of the costs involved to these children, the State, and the Nation.

VI

If the State is to deny a discrete group of innocent children the free public education that it offers to other children residing within its borders, that denial must be justified by a showing that it furthers some substantial state interest. No such showing was made here.

The only "substantial state interest" Texas could show is that they didn't want to spend the money.  That's the only argument Abbott is raising, too.  If he could, indeed, get the Court to reverse Plyler, it would throw out stare decisis in a way even the most obtuse commentators on Dobbs could not ignore.

Then again, just watch 'em. 

Rie came from Texas, as did Lawrence, as did Plyler. Might  I suggest you pay a bit more attention to the second most populous state in the union? Abbott’s trying hard to out-Trump DeSantis. Doing a pretty good job of it, too.


*Yes, of course, we had Jim Crow laws anyway. You can thank the Supreme Court for that. Which the Court changed 58 years later (and forget declarations that Brown will be overruled. It was hollowed out in the last century. It is now far more honored in the breach than in the keeping.). Not enough, though, that we didn’t need the Civil Rights Act. And considering what this Court did to the VRA, I wouldn’t be surprised to see it gut any codification of Roe, so long as Thomas and Alito hold out and stay on the bench.
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Substitute “Theology” For “RICO”

Or “religion.” Either one.

(No, I don’t have anyone in mind. I think I’ve read one too many stories about MTG and her “bigger” God. Or it’s just that there’s as much stupid out there about religion (which I know something about) as there is about RICO (which I know next to nothing about). Anyway…)
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To Quote Samuel Johnson:



"Thus do I refute him!"
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Thursday, May 05, 2022

I’m Just Going To Say It

Gregg Nunziata is as dumb as a box of 🪨.

There. I feel better. Thank you.

Staying with Professor Vladeck
Actually what’s revealing is the assumption that Dobbs, and the other cases it mentions, are almost purely political. That’s not a legal argument, chum. And this is just whistling past the graveyard: Once you "undo" Roe, it’s a straight line to Griswold, and many other applications of the Constitution to state laws. Which is actually the basis of Alito’s draft: that the issue of abortion should return to the states. Why shouldn’t contraceptives and marriage and sexual practices (“sodomy”) follow suit?

And this is how it will happen:
Can states ban possession and use if abortifacients which are legal under Federal law for that use? Can they ban receipt of them through the U.S. mail? Or just possession? And the fundamental distinction with Griswold is what?

Besides, all that energy that was put into overturning Roe for 50 years is going to need a new target. Having finally won, it’s not going to just go away.

Or will the courts just consult the latest polls to decide what’s “traditional” and what isn’t? If that’s not political, what is?
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Let's Talk About "Unenumerated Rights"

The draft Dobbs opinion isn't really about substantive due process, except as it picks up some language related to that doctrine and tosses it airily about. What it really rests on is the idea of "unenumerated rights" because, as Alito points out, "abortion" is not mentioned in the Constitution.  It is, in other words, talking about substantive due process; but only to pay lip service to it.  Mostly Alito's opinion is about "originalism."  Which I contend is a wholly insupportable legal theory which has no place in serious legal analysis. One would like to think that was true, but the argument it mocks is the point of the satire. What isn't mentioned is not thereby excluded, and Alito's appeal to the myth of the "intent of the Founders," or of the drafters of the 14th Amendment, is the real problem.
Obergefell, says the author of the Dobbs draft, rests on an "unenumerated right."  I'm sure substantive due process will save that right; right?

And, once more with feeling, it has bugger all to do with substantive due process.
I would just like to recaption this to: 5 justices handling stare decisis:
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There’s Nothing “Substantive” About Dobbs

I understand the validity of this argument, as far as it goes. The problem is, at least in this Twitter thread, it doesn’t go very far. Substantive due process may be the legal doctrine associated with a valid and thoughtful legal analysis, but that’s not what this leaked opinion was. This was a screaming rant barely disguised as a Supreme Court opinion. Lawrence O’Donnell said the references to a 17th century jurist were so ugly they would have to be withdrawn. Like arguing there is actually a substantive due process argument here, that rescission would just be putting lipstick on a pig.

And don’t think the politicians who are also lawyers aren’t hearing the dog whistle:
Those cases will be an "invitation for the Court to invalidate other rights."  Frankly, once they have started, what's to stop them?

Curious historical note: the case Abbott is referring to is one out of Texas (Plyer v. Doe.  John Plyler was the Superintendent of Schools for Tyler ISD at the time of the suit.  He was also the Superintendent when I was in school at Tyler ISD.  I knew his son.  Not at all his fault the school district was sued.  Policy is set by the school board; or, in that case, state law.). Roe came out of Texas, too (you're welcom). Will the Court overrule Plyler? Eh, probably not. But it won’t be because it’s “deeply rooted” in our national traditions.  The Court is wiping out Roe because 5 Justices hate it. But they are also opening the floodgates. The naked politics of Dobbs is going to encourage the naked politics of more legal challenges, especially this year (Paxton and Abbott are up for re-election). Substantive due process doesn’t have shit to do with it. Replace "stare decisis" with "substantive due process," and how is that analysis substantively (!) altered?

And no, the states won't go further than Dobbs allows: Yeah, that runs up against Griswold; but then, it's just an excuse to challenge Griswold, right? Does anybody seriously think where wouldn't be five votes to overrule Griswold, too? Especially since it first established the "right to privacy" that supported Roe? Aye, as Hamlet observed; there's the rub.
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These Are The Women Seeking Abortions

As has been pointed out, the issue isn’t the babies, or we would already have universal healthcare and childcare.

This is about a pernicious ideology in which people don’t matter.

Those women below the poverty level are invisible and voiceless.

Ideas don’t matter. Things don’t matter. People matter.
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"That's SO Fetch!" 🛸

I don't think she even wrote the tweet. Which can only mean 78% of Texans are really, really poorly informed. Or that polls are for shit. Or both. I'd go with "both." Not all the trolls are on Twitter. Or are named "Elon Musk." I don't think Mitch is gonna make "fetch" happen. Not that he won't keep trying. Now if Democrats would just say something about the GOP MAGA crowd..... What? You don't know who he means? Or if he doesn't name-drop Trump, Biden doesn't mean it? Trump just want you to spell his name right.  I kinda like it that Biden doesn't make it seem all that personal, which Trump would, frankly, adore.  That's right in Trump's wheelhouse. Politico isn't being (particularly) obtuse.  But they aren't saying anything I haven't already said (you're welcome!):

In the meantime, the most urgent question is who will conduct the investigation. Roberts appointed the current marshal, Gail Curley, last year. She oversees a staff of 260 court employees, which includes the court’s police force, tasked with protecting the justices and grounds. But that internal police force has limited investigative capability. It’s primarily geared toward overseeing operations within the Supreme Court building and providing physical security for justices, employees and visitors.

Curley could request assistance from the FBI, which has the resources to aid any internal probe. But that step itself would depend on how deeply the justices want another branch’s investigators poking around into their private communications.

Then there's some clabber-gabble by William Barr darkly hinting a grand jury may be necessary (what crime it would investigate is still the question, eh, Billy boy?).  Yeah, the Justices would love for THAT to happen to them; and their families.

The scope of the Roberts-authorized investigation is unknown. A probe of the small and clubby staff of the Supreme Court would put every justice in an uncomfortable position, exposing them to questions about their phone and email records in ways that justices are rarely, if ever, confronted. And any thorough investigation is likely to also sweep up the families and close associates of justices and clerks.

“If there’s a serious investigation of who leaked, am I right that it likely includes not only all the clerks and Court staff that would have access to the opinion, but also the Justices and their families?” wondered Orin Kerr, a law professor who has argued before the Supreme Court. “Could be pretty wide-ranging.”

Here's where I remind you, as Politico won't, that Roberts is not the boss of the other justices; and Curley serves entirely at the pleasure of the Court,  She is guaranteed not to do any kind of intense investigation, and the FBI isn't coming in without permission and clear guidance on what they can, and cannot, do. They will never get either.

One last time (no promises!), with feeling:

“If a justice intentionally did it, I think that justice could be impeached and removed from office,” he said. “If a clerk did it, they could be dismissed and there might be implications at the bar.”

That's why I don't think a clerk would do this.  Or any employee who had access to the opinion.  Did a Justice do it?  They're invisible and bullet-proof.  No one is going to impeach them, and no one is going to find out.

And [Dean of the law school at UCal Berkeley Erwin] Chemerinsky raised concerns that the investigation itself could be damaging to the high court.

“My concern with the leaks investigation is that it is unclear whether any law has been violated, it is unlikely to be successful, and so interferes with the working of the Court,” he said. “I do not like leak investigations and wish they would not do this.” 

The only investigation is going to be conducted by Curley.  And it won't find anything.

Put money on it. 

In the meantime, we're keeping the elephants aliens away.


☄️🚀🛸 

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“Proving” Is Not Spelled With An “H”

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"Xians In Name Only"

Hey, he gave 'em the Supreme Court votes to overturn Roe. What the fuck do they care what else he says?

And in other Trump news:
So, did Trump put his thumb on the scales at just the right time, or did Thiel buy the race for Vance? Polling means bupkis. MSNBC reported this morning some candidate who was "surging" close to the end of the race didn't even place third in the end; out of a field of five. So, was it Trump? Or Thiel? Opinions vary; evidence is not to be found; or really even considered. Because we'll ask the polls, or blame the election day voters, because...why? We have polls? We have election results and we know to the person who voted early, and who showed up on election day? No, it's because we have polls, and the polls can't be wrong, only slightly out of date (all those pesky voters who show up at the polling place and ruin our predictions!). Let's go back to this: Really curious how well that's gonna work out.
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Disco Died, And All That Energy Had To Go Somewhere

I distinctly remember my uncle being in town (from California) and taking me with him to the store to by a CB radio for his car for the long drive back. CB's were selling like hotcakes, and the young clerk enthused that they would soon be standard equipment on cars, like AM/FM radios.

I'm pretty sure some new models that year came with installed CB's as an option.  That was also about the time CB's became as popular as Nehru jackets and harvest gold and avocado green as decorative color choices.

History is always weirder than you think it is.  And yes, you always had to be there.  Punks!
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Wednesday, May 04, 2022

What A Week, Huh?

So, basically... This decision is entirely and nakedly political. The very opposite of what a court opinion should be.

Forget about the “death of democracy.” The absolute politicization of the Court: that’s the enduring and damning crisis of our time.
Sadly, this is behind a paywall, so I can’t read it. I just add it to show great minds think alike (or, more accurately, even a blind pig (hello!) finds the occasional acorn).
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Definition, Not Context, Is All (Part I of II)

 The author of the leaked draft opinion, Justice Samuel Alito, makes the standard conservative argument against abortion rights. "The Constitution makes no reference to abortion," Alito writes, "and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be 'deeply rooted in this Nation's history and tradition' and 'implicit in the concept of ordered liberty.'" Alito continues: "The right to an abortion does not fall within this category."

But there is at least one big way in which the unenumerated right at issue in Dobbs may very well fall into this category. Namely, the right to terminate a pregnancy may be justly seen as a subset of the right to bodily integrity. And the right of bodily integrity has a very impressive historical pedigree indeed. In fact, as the legal scholar Sheldon Gelman detailed in a 1994 Minnesota Law Review article, the right to bodily integrity may be traced back to the Magna Carta. That makes it one of the many rights "retained by the people" (in the words of the Ninth Amendment) that were imported from English law into the Constitution.

The "category" asserted by Alito's opinion is completely one of his making, as arbitrary as critics of the reasoning (but not the result) of Roe said Roe's "right to privacy" was. There have been, over the decades, several critiques of Roe arguing it would have been better grounded in equal protection or other settled constitutional provisions.  Roe is pretty much grounded, instead, in Griswold.  Alito's opinion makes it clear it doesn't matter how Roe is grounded; it is the result he finds abhorrent, and he will not let it stand.  As I've said before, this is simply tossing stare decisis in the shredder.

Let me just stop and offer a definition of stare decisis. It refers to "things already decided."  It is a doctrine meant to control the common law, when much of the law of England rested (and still does; the American relationship to English common law is complicated, but we don't really have the full tradition of common law in this country) on court opinions.  The courts, in order to create both stability and uniformity (and an expectation of justice, in that you would be treated as they were treated before you), employed the doctrine of being guided by "things decided already."  Of course, change the facts, change the outcome; but something already decided was considered "settled," and the only question was, how do those things decided apply to these facts? 

Alito's opinion treats that doctrine like a dirty kleenex which must be discarded the better to reach the right outcome.  Which is the biggest problem with it, although not the only one.  It is an opinion (so far, at least), rooted in "We're the Supreme Court, bitches!  And we say so!  What're you gonna do about it?"

Even Scalia would blanch.

The idea of bodily integrity may seem vague and amorphous and something "invented" by a law professor; but in law school we learned about the Rule Against Perpetuities.  I only vaguely remember it because I never really came up against it (for my client, or against them) in practice.  It's a rule of property law, and it holds that the law abhors the perpetual ownership of property in the hands of one family or group.  In other words, the basic trend of property law is towards the breaking of ownership and control (usually related to real property, which until the Industrial Revolution was the source of economic and so political power).  Was this true?  Was it a Rule?  Well, consider that the common law was built on discerning what rule the court used previously on a similiar set of facts, and trying to apply that rule to the facts before this court.  That's essentially stare decisis.  Rules were discerned based on interpreting prior cases.  The Rule Against Perpetuities was written by a legal scholar after a lifetime examining cases on property ownership and how long property should stay in the hands of one group of people.  Basically it's a rule against the accumulation of power.  Sort of like 'checks and balances," which, ironically, are also not mentioned in the Constitution.  Yet it's a doctrine even the courts rely on in legal opinions.

The constitutional right at issue in Dobbs only fails the "deeply rooted" in history and tradition test (a test wholly invented by the Supreme Court, by the way) when the Court defines the right narrowly. But when the right is defined broadly—defined as a subset of the venerable and longstanding right of bodily integrity, in other words—then the right passes the test.

This "deeply rooted" test smacks of Scalia's "originalism," though it also partakes of the more familiar "what the Founding Fathers intended."  Which is ahistorical bollocks of the highest order.  The founding fathers didn't intend so much as they reached compromise so everyone would sign on.  So the Missouri Compromise and the 3/5ths rule, and only white male property owners had the vote, and the "Bill of Rights" only applied to the federal government (until the 14th Amendment, and then only by court decisions.). The rule against extending Constitutional amendments to override state law wasn't all that deeply rooted in "tradition and history," even if it was justified as "implicit in the concept of ordered liberty."  Even then, the most important extensions of those amendments came under the Warren Court, which only preceded the Burger Court and Roe by a few years.  Alito's argument is far, far out on a very weak branch, indeed.  But they're the Supreme Court!  What're ya gonna do about it?

How, then, should rights be defined?  Broadly, to encompass as many people as possible?  Or narrowly, to serve the interests of those in power (or on the bench, which amounts to the same thing) at the moment?  Roe (and Casey) defined the right of bodily integrity very broadly, indeed.  Alito wants to define it so narrowly it effectively ceases to exist.  The leak of the opinion is certainly unprecedented in Supreme Court history.  But defining an accepted and relied upon right completely out of existence is unprecedented, too. 

Which unprecedented event should we pay the most attention to?

It's all a matter of definition.  Which matters more?  The islands, or the sea?  Clearly the sea, which is larger and more important to the integrity of the islands.  But which represents the control which government imposes, and even provides?  Which, in other words, is the nurturing force?  Do islands rise from the sea?  Or does the sea surround the islands?

I am reminded of the words of the political theorist Stephen Macedo, who, while debating the late Robert Bork in 1986, offered this memorable description of the American constitutional system: "When conservatives like Bork treat rights as islands surrounded by a sea of government powers, they precisely reverse the view of the founders, as enshrined in the Constitution, wherein government powers are limited and specified and rendered as islands surrounded by a sea of individual rights."
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All Alito Really Wants Is To End Abortions Because He Doesn't Like Them (Part II of II)

That's the crux of the argument right there. Alito isn't even seriously trying to ground Dobbs in the law. Instead he's trying to shore up fragments against what he sees as society's (or at least the law's) ruin. That's not even vaguely sound legal reasoning. It's certainly much, much weaker than the reasoning criticized in Roe (and somewhat replaced by Casey, which is why no critic of abortion talks that much about Casey). Extra points for "The definition of reactionary." I could see my daughter's heartbeat on a sonogram monitor very shortly after we were sure we were pregnant. She didn't yet have muscles or bones to move, but she had a muscle that could beat. Did she already have a soul? Was she already alive? Yes, to the latter question; but she was also wholly dependent on her mother's womb for that life. Such measures are a terrible benchmark for determing when, and when not, an abortion can occur.

Roe rested it on the third trimester because the fetus could survive outside the womb at that point, with extraordinary medical technology available. None of that technology in 50 years has significantly changed the third trimester as the dividing line between viability inside and outside the womb.*  It's still a question of which interest society must hold paramount: the woman's, or the fetus's? In a nation with no national healthcare or universal access to publicly funded child care, we certainly, as a society, lose interest in both mother and child after birth. But before that, the fetus is paramount? What logic is that, pray tell?

*Yes, we do have magical technology which pushes back on that boundary.  But who has access to that technology?  It ain't all of us everywhere.
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Trippin' on Tweets

This only matters if Democrats take the House and Senate in 2022 and pass a law codifying Roe on the federal level. Texas is the second most populuous state in the union, with one of the most restrictive abortion laws on the books (and a "trigger law" ready to go if Roe is overruled). I'm not sensing any real groundswell for repealing SB8. It's not even on anybody's radar. National numbers only apply to national issues. If we leave it to the states, we get a patchwork of laws that take us back to criminalizing contraception possession and interracial marriage (gay marriage was just a non-starter, so it was never a criminal issue). Oh, and the days when sex was criminalized because any sex that didn't involve penis meets vagina was "sodomy." Under Texas law, anyway. I don't mean all those cases suddenly fall (although I think there's a real interest in seeing that happen), I mean we return to the patchwork where one state says a fundamental human right is legal, the next state says we'll bury you under the jail if you try those preversions here!

Divided country?  Buddy, you ain't seen divided!
These are strictly federal issues. They could be labeled "reactionary," I guess; because they may well be a reaction to Dobbs, which is expected in June or July. Just in time to REALLY influence the midterms. We live in hope. Keepin' it classy! (Matt must like 'em barefoot and pregnant) Or: the rat bastards will always be with you. Conduct yourselves accordingly. It's a badly-reasoned decision and an appalling exercise of judicial power, so let's talk about how we already know what the reasoning behind it is! Let's certainly not talk about how you supported Roe because it had been the law for 20 years (but 50 years is not long enough?): But, the leak! CJ Roberts has no authority over the other 8 justices. He cannot censure them, remove them from the bench, force them to recuse themselves, or punish them in anyway. The CJ is first among equals in title only. If Thomas wants to sleep through oral arguments and and throw food during the discussions among the justices afterwards, there is literally nothing Roberts can do about it. And the Supreme Court Marshal? Has no investigative authority, and Roberts knows it. The Justices can protect their clerks by telling the Marshal to take a long walk off a short pier. Or simply by saying their clerks are busy and don't have time to answer stupid questions. Will we find out who leaked this document? I doubt it, because I'm pretty damned sure only a Justice would have the balls to do it. A Supreme Court clerkship is the sine qua non of pre-law firm work. It's a golden ticket to a better career than most lawyers ever even dream of. Nobody is going to risk that to leak a full draft opinion of the Court. Nobody. Period. EOD.

Roberts doesn't want this investigated, because he's afraid of what he might find.  If a Justice did it, what then?  Impeachment?  No Justice has been removed in the history of the Constitution.  This is not going to do it.  All the revelation would do is poison the Court even further, turning it completely into a bottle of scorpions.  It would also probably promote legislation to increase the size of the bench.  My guess is the Justices are pretty sure who is guilty.  Making it public won't "cleanse" anything.  And they don't want to hang it on some innocent clerk or employee, for the same reasons.  Without smoking gun evidence, the person who leaked it will be the victim of a witch hunt (sorry!) and a kangaroo court.  What due process will they get?  What equal protection?  GUILTY!, and you're out!  Yeah, that's a good outcome for the highest court in the land.

Better to pretend it leaked itself, and move on.  Which is what will happen.  The better solutions are in the second tweet, above.  The leak itself is actually completely immaterial.
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Nope.

The question is not: "Should we allow abortions, considering how icky medical procedures can be to lay people."  Or even "...considering how much fetuses look like babies!"

The only question for government is:  should women have the choice?

This is not the same choice as:  Should I be free to kill my children?  Or abuse them?  Or beat them, starve them, torture them?  It's not the same issue as that, at all.

The only issue is:  does society have an interest in promoting the rights of the unborn over the woman carrying that child?

I defy you to find another scenario in human life where we force that burden on an individual.  The state will take my child if I can't care for it.  The state will provide care for, even bury, my family members if I refuse to take the responsibility.  The state cannot require me to perform any actions that are not contrary to law, because of the 13th Amendment.  I cannot even be required to perform the terms of a contract I have freely entered into.  I can be fined (sued, essentially) for my failure to perform; but the State cannot force me to perform (which is not even an issue of the 13th Amendment, but of very old common law to which Justice Alito is so devoted).  If I refuse to care for my family members, I will be a social pariah; but I won't be a criminal.

But if a woman chooses to have a specific medical procedure based on her own decision and determination of her needs, she may well be sent to jail, and according to Alito & Co., that's just dandy.  A far better result than leaving Roe standing as constitutional law.

Compassion is a fine and private thing.  It is not something governments are much known for, as anyone who has been to a tax office, to renew a driver's license, or to pay for a car registration in person (thank the lords and the low creatures for the internet!) can attest.  They may be efficient (or inefficient), but they don't have to be nice about it, and you can't make them be.  Compassion is certainly the best way through difficult life decisions like abortion.

But "The only way through is with compassion" has nothing to do with the law.  Politicians who pronounce grandly on the evils of abortion cry crocodile tears for the unborn.  The moment they are born, the politicians pack their tents and decamp to the next non-yet emptied womb.  Their "compassion" ends when the fetus has exited the birth canal.

As my daughter puts it, a fetus is a parasite.  It cannot survive except by living off the life of the host.  When we should protect that parasite from harm is an open and reasonable question.  After 6 or 8 weeks is extreme; up to the moment of birth is probably too extreme, too.  Somewhere in the middle balances both societal interests and individual interests.  Call that "compassion," if you will.

My compassion is for the living, here and now.  The dead don't need my tears; the unborn don't need my undue consideration.  Shall we charge women as criminals who drink and smoke during their pregnancy?  Shall we criminalize miscarriages, as a DA in south Texas tried to do recently? Where do we draw the line between abortions obtained in a clinic, and abortions induced by drugs, or by nature?  Shall we prosecute miscarriages and effectively force the woman to prove it was nature, not Big Pharma?  Do we really want to expand the "War on Drugs" that far?

Yes, I can discuss the private decision to have an abortion.  Sen. Murray on MSNBC just now said the decision is between a woman and her doctor and her religion (I think she threw in 2 other categories there, but I've lost them to short-term memory failure already).  Back when I was a practicing pastor, I could have (but never did) faced that issue with a church member.  How I would have counseled them would depend on their circumstances.  I would not say abortion is murder and a sin and God condemns it.  Neither would I say "Be free to do that you want!  No consequences!  Tra-la-la-la-la!"  I certainly wouldn't want to have to help them raise busfare to New Mexico.  Abortion is a hard enough decision without making it one you must leave the state to avoid prosecution.

Where is the compassion in criminalization? 

I haven't read the Atlantic article, but what is the point in seeking out a "third way"?  Passionate anti-abortion advocates, the kind who picket (or even bomb) abortion clinics and do all they can to get law passed outlawing abortion any way they can manage, are not interested in compromise.  I am.  Leave women to make their own choices, then counsel them (individually, not as "women") as you see fit and as they seek your counsel.  Otherwise, it's no more your business than whether or not they have plastic surgery or have a kidney stone removed.  You may not like the law allowing abortion.  I don't like the law allowing executions.  You learn to live with what you cannot control.
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The Plumbers

And if it's not the leak, it's the Dead Hand Of History: There's a good (for Twitter) discussion here: But except for the conclusion: I still think of it as just the Dead Hand Of History. Never thought I'd use this outside of reference to the ekklesia, but the reasoning here seems sound even if the language is very specifically religious:

Grant that thy Church may be delivered from traditions which have lost their life, from usage which has lost its spirit, from institutions which no longer give life and power to their generation; that the Church may ever shine as a light in the world and be as a city set on a hill.

HEAR OUR PRAYER, O LORD.

I understand the need to ground legal opinion in what has come before (the whole basis of stare decisis as a method of providing stability in the law, even as facts and even expectations change), but this cult of originalism has reached it's nadir.  If the law (read: Constitution) is not alive but instead dead and a corpse we must carry, why do we burden ourselves with it?

Not old enough to be "original," obviously.  Although if Alito likes it, then it's okay.  It's all about what pleases five people. And that’s the real problem.
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Theologalisms

Sad, but true. And then there are Xians like me, who think salvation is misconstrued and a gross distortion of the teachings of Jesus and Paul. But maybe that’s just me. Yup. And all of history existed just to create us. Yay us! History is lucky to have us. That’s the easy part. It’s all about interpretation, and most people are only exposed to atonement soteriology, which is not the only way to understand Xianity. See? Doesn’t that clear everything up?

Theology is a necessary evil.
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Tuesday, May 03, 2022

Snipe Hunt

“I don’t know who did it, their motives,” said Sen. Lindsey Graham (R-SC). “I don’t care what your motives were, you did a lot of damage to our country and I don’t know if we can repair this, but we’ll try.”

“This lawless action should be investigated and punished as fully as possible,” McConnell said in a statement. “The Chief Justice must get to the bottom of it and the Department of Justice must pursue criminal charges if applicable.”

“One of the court’s most essential and sacred features was smashed just to buy the outrage-industrial complex a few extra days to scream nonsense about what the court might rule,” McConnell added.

Sens. Mike Braun, Ted Cruz, Josh Hawley and Mitt Romney all called for the matter to be investigated and the leaker punished, even if some of them publicly cheered the ruling written by Justice Samuel Alito.

Sen. John Kennedy (R-LA) called for the Biden administration to investigate, although Sen. Sheldon Whitehouse (D-RI) publicly wondered what law the leaker broke.

“We’re about to find out what our Department of Justice is made of,” Kennedy said. “We have had an unprecedented leak. As despicable as it is dangerous.” 

Watch the donut, not the hole. And somewhere out on the fringes of reason: When Sotomayor writes an opinion that says "Heller was aggressively wrong from the start" and that it must (and will) be overruled, get back to me, mkay? Declining to incorporate the reasoning of Heller in another case, and criticizing some of the reasoning of Heller, is equivalent to withdrawing a constitutional right after 50 years?  Please tell me the last time the Court did this, and then we can talk about Sotomayor's confirmation hearing. Something like 21 states have laws which outlaw abortion entirely the moment Roe is overturned. Try to keep up, will ya? Women in Texas will have to travel to New Mexico (or Mexico) for abortions. Most of them can barely afford to travel across town. (I'm quite sure you have no idea how large Texas is.  If you set out to drive from East Texas to California, by the time you got to El Paso, you'd be halfway there.) But sure, abortion won't be banned across the U.S. Just banned in the second most populous state in the union, and environs (Oklahoma is hard at it; you think Louisiana and Arkansas won't follow suit?). It may come as a surprise that the majority of the country doesn't actually live in the BosWash. Hey! A free market solution! Now we just have to all get jobs with Amazon.....
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A Separate Piece

An actual lawyer and former Supreme Court clerk tells Mitch McConnell to stick it where the sun don't shine, because he doesn't know his ass from a hole in the ground. I pause to interject this is in line with my thinking. The opinion is so extreme that "sanding off the rough edges," as someone on MSNBC said this morning, seems impossible now. Bug? Or feature? Any backing down from it will indicate the Court lacks the courage of its convictions. Especially since this opinion opens the door to undo almost everything the Warren court did.  That alone will justify the leak; and the point of the leak is that the Court can't afford to back away from this diatribe presented as a sage legal opinion.  Consider the reaction of Ted Cruz:

"The reason it was leaked is some, presumably, left-wing law clerk wanted to put political pressure on the five justices that are presumably in the majority right now," he added. "You mentioned an FBI investigation. I hope there is a serious one and I hope whoever is responsible, not only is fired instantly, but is prosecuted and serves real jailtime for violating the confidences of the Supreme Court."

Can the Court afford to amend this opinion after that?  Tone it down so it isn't the dreadful argument that it is?  Kinda hard to see it.  If this is the reaction the leaker was going for, they must be very happy today. And, of course, if you don't think McConnell and Cruz are spouting talking points, I've got some land in coastal Louisiana to sell you.

Indeed, I think there was strategy in Roberts announcing it was a valid draft opinion. He either supports it, or he's trying to keep his Bench from literally exploding into 9 little fiefdoms. I'd think of him as John Boehner trying to ride herd on the Tea Party loonies in the House when he was Speaker; except I really don't have any sympathy for Boehner, and it just underscores my opinion that Roberts welcomes this, even as he has to try to appear more reasonable (or at least less impassioned) than Alito. "Still waters run deep" is not always a compliment. I still wouldn't put it past a justice. The Roe conclusion was leaked by a clerk (most likely), but not the opinion itself. I can more easily see a Justice leaking this nentire opinion, than a clerk doing it on her/his own initiative.  Justices hold office for life.  What're ya gonna do to them?
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Why The Leak Is Not The Issue: Another Object Lesson

"For years the radical left has attacked the institution of the Supreme Court," McConnell said. "Last night it appears their campaign hit a new low. Historically the justices, clerks and staff have prized and protected the court's confidentiality. The justices must be able to discuss and deliberate in an environment of total trust and privacy. Americans cannot receive a fair trial if politicians, pundit, bullies and mobs get a say in court. Judicial independence is vital, but the far left has spent years shamelessly attacking it."

Every word the man says is a lie, including "and" and "the."

"Somebody, likely somebody inside the court itself, leaked a confidential internal draft to the press," McConnell said. "Almost certainly in an effort to stir up an inappropriate pressure campaign to sway an outcome. The radical left immediately rallied around the toxic stunt. The cheerleaders for partisan court-packing applauded what they suggested was the work of, quote, a brave clerk making a last-ditch hail Mary attempt to cause a political firestorm and cause the court to reconsider. Liberals want to rip the blindfold of lady justice, they want to override impartiality with intimidation. They want to elevate mob rule over the rule of law."

He just invents things out of whole cloth, doesn't he? And actually, what he's decrying is what the opinion actually does.  It was funny earlier reading responses that said "Maybe Roberts will force the opinion to be more limited."  And then Roberts admitted this was a valid draft of the opinion.  Yeah, I don't think the CJ is the savior some pundits imagine him to be (why they imagine that is another question.  It's like those who kept waiting for Trump to "grow into" the Office of POTUS.  How'd that work out?)

"One of the court's most essential and sacred features was smashed just by the outrage industrial complex a few extra days to scream nonsense about what the court might rule," McConnell said. "This lawless action should be investigated and punished to the fullest extent possible, the fullest extent possible. I'm certain the chief justices will seek to -- chief justice will seek to get to the bottom of this. If a crime was committed, the Department of Justice must pursue it completely."

And of course:  "LOCK 'EM UP!"

Just so we're clear:  it is not a criminal act to release a draft of a Supreme Court opinion to the public.  It may be highly problematic and even a violation of legal ethics; but it's not a criminal matter.  

However, if you're talking about that, you aren't talking about the decision the Court is going to hand down, are you?  Come, let's talk about the leak some more. Odds of an investigation by the FBI? Zip and none. Once they start asking questions, where do the questions stop? The Supremes will not open their doors on this. Period. I do wonder what authority the "Supreme Court marshal"* has to bring obstruction of justice charges. Seems to me that would depend upon a possible violation of law, and I'm not sure there is one here.  Still, one wonders if Supreme Court clerks and staff have the good sense to follow Popehat's sage advice.  First rule of investigations:  investigators are not your friends.

Let's keep our attention on what matters:



*An update on the office of the Supreme Court Marshal:

In accordance with 28 U.S.C. § 672:

(a) The Supreme Court may appoint a marshal, who shall be subject to removal by the Court, and may fix his compensation.

(b) The marshal may, with the approval of the Chief Justice of the United States, appoint and fix the compensation of necessary assistants and other employees to attend the Court, and necessary custodial employees.

(c) The marshal shall:

(1) Attend the Court at its sessions;

(2) Serve and execute all process and orders issued by the Court or a member thereof;

(3) Take charge of all property of the United States used by the Court or its members;

(4) Disburse funds appropriated for work upon the Supreme Court building and grounds under the jurisdiction of the Architect of the Capitol upon certified vouchers submitted by the Architect;

(5) Disburse funds appropriated for the purchase of books, pamphlets, periodicals and other publications, and for their repair, binding, and rebinding, upon vouchers certified by the librarian of the Court;

(6) Pay the salaries of the Chief Justice, associate justices, and all officers and employees of the Court and disburse other funds appropriated for disbursement, under the direction of the Chief Justice;

(7) Pay the expenses of printing briefs and travel expenses of attorneys in behalf of persons whose motions to appear in forma pauperis in the Supreme Court have been approved and when counsel have been appointed by the Supreme Court, upon vouchers certified by the clerk of the Court;

(8) Oversee the Supreme Court Police.

To carry out these duties, 40 U.S.C. § 6121 authorizes the Marshal to police the Supreme Court building and protect the Justices, employees of the Court, and visitors to the Court. The Marshal also has authority to make arrests in carrying out these duties.

At the beginning of each session of the Court, the 10 a.m. entrance of the Justices into the Courtroom is announced by the Marshal. Those present, at the sound of the gavel, arise and remain standing until the robed Justices are seated following the traditional chant: "The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court!" 

I cannot say that the statute which makes it a crime to lie to an FBI agent (or any federal investigator, presumably) applies to the Supreme Court Marshal, but it doesn't seem the Marshal has any particular law enforcement resposibilities, other than providing security to the Supreme Court.  They can make arrests in carrying out the duties of protecting people and buildings; but investigating leaks?  I think that's a matter of Supreme Court practice, not a matter of federal law.

I really don't think the Justices want an extensive investigation of the kind the FBI, or law enforcement in general, would engage in.  Which is why Roberts sent the matter to the Supreme Court Marshal.  He's one of them (he's an at-will employee they can fire for any reason they like).

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