Tuesday, May 03, 2022

Tuesday Morning Quarterbacking

We're going to bookend part of this discussion with Joe Scarbrough. It's a bit of a mess becasue some of this came in late last night, and more is coming this morning. And Scarbrough's response is interesting, to say the least:

"Well, I mean, for the Supreme Court, in a word, illegitimacy," Scarborough said. "You know, the court has always been guided by the law, but it's also been keenly aware that it is the only unelected branch of American government. They needed to not appear to be openly contemptuous of public opinion. That would be especially true today, given the GOP's might-makes-right approach to the sacking of Merrick Garland's nomination or the elevation of Donald Trump's final pick."

Scarborough pointed out that four of the five justices voting with the majority had been appointed by presidents who had lost the popular vote, including one who was nominated by Trump after then-Senate majority leader Mitch McConnell refused to hold hearings for Barack Obama's last choice for nearly a year.
 
"Look at this picture from Madeleine Albright's funeral," Scarborough said, showing a photo of President Joe Biden sitting alongside Barack Obama, Bill Clinton, Hillary Clinton and Al Gore. "The five Democratic politicians on the front row won the most votes in the presidential elections of 1992, 1996, 2000, 2008, 2012, 2016 and 2020. Yet, a half century of constitutional rights supported by over 70 percent of Americans -- let me underline that again. People lying to you on other channels will never say this, over 70 percent of Americans support that constitutional right. It'll be swept away by the presidents not in this picture and the presidents who were outvoted in each one of those elections over the last three decades."

"Now Americans will rightly conclude that their voices and their votes no longer matter," he added. "So what are the implications for the court, for the law and for American democracy?"

One of the implications, as Jeff Greenfield noted on CNN, is that the leaked draft opinion opens the door to a Federal law allowing abortions.  But there are at least two discussions happening after this leak:  one on the consequences of overturning Roe; and one on what the future looks like. The third should not be the story of the leak, but rather the argument presented in this draft opinion.

Alito is right in that draft: the word “abortion” doesn’t appear in the Constitution. Neither does “privacy.” Yet the Court does recognize a privacy interest in the 4th amendment which prevents governments (federal or state, via the 14th Amendment) from listening to your phone calls without a warrant. The word “telephone” doesn’t appear in the 4th amendment, but there you are. There also isn’t anything in legal history about the privacy of phone calls.  But maybe since those cases are more than 50 years old, they’re sacrosanct. I guess.

Alito’s argument is “privacy I like: good! Privacy I don’t like: bad!”

Which is not really much of a legal argument.

I have no idea what the political landscape to the mid-terms looks like. But I agree with Axelrod: The people who caught the car got a lotta ‘splainin’ to do.  Scarbrough asserts that 70% of the American people support abortion access.  This will probably be put to the test in November:
That brings us back to Scarbrough, later in his own show:

"This takes us right now to the top of the show, where Jon Meacham, presidential historian Jon Meacham, talked about the real problems with the way the Supreme Court has been handled by the Republican majority over the past five, six, seven years," Scarborough said. "It is a might-makes-right approach. You actually had Republicans making up a Senate rule, a Senate custom so they wouldn't have to even give Merrick Garland a hearing. You then had, a couple years later -- that was at the end of Obama's term, so they could stop his selection. Then at the end of Trump's term, they threw that aside, further illegitimizing the process. Now they won't give Joe Biden's nominee a hearing."

Scarborough said GOP actions had left Democrats with no other choice than to expand the Supreme Court, which he said had plenty of historical precedent.

"This is my concern, because I love the institution of the Supreme Court and what it's meant to Madisonian democracy through the years," he said. "It has been very disappointing, very deeply troubling because Republicans have so politicized this process that I fully expect Democrats, when they have the opportunity, to do what Washington did and what Adams did and what Jefferson did and what Andrew Jackson did and what Abraham Lincoln did and what Republicans did after Lincoln died, and change the size of the court. I mean, again, if precedent doesn't matter constitutionally, political precedent won't matter. They'll do what founding fathers, Abraham Lincoln, Andrew Jackson and Republicans after Lincoln's death did -- they'll just expand the size of the court."
 
Republicans would have no standing to object, Scarborough said, because they had politicized the court and undermined its legitimacy.

"You see, that's where they've led us," he said. "Then at that point -- and this is something John Roberts knows, I pray to god that it's something that Brett Kavanaugh understands. At that point, when the Supreme Court loses its legitimacy, I mean, my God, Madisonian democracy is undermined, and I say this regardless of my views on this particular issue. What the Republicans have done over the past five, six, seven years regarding the Supreme Court has led us to this point."

"We've seen a draft which we hear ... is most likely going to end up being the net result where the United States Supreme Court is going to overturn a constitutional right that has been in place for 50 years, supported by over 70 percent of the American people," Scarborough added. "That's not conservative, that is radical, it is dangerous. It undermines what I believe is the institution that separates this constitutional republic and this Madisonian democracy, this form of government we have, from every other government on the globe. These are troubling times."
"Madisonian democracy" has been through worse (Dred Scott, Plessy, Lochner, to name just three; aside from the civil war, Reconstruction, Jim Crow, the battle over civil rights).  And I don't fear expanding the Court because I'm not married to the idea that the "Founding Fathers" (a fatuous phrase) or "We've always done it this way!" are grounds for resisting change when change is needed.  But this analysis is almost on all fours with my own.  Republicans led the effort to make this happen, and frankly, I'm ready to make them reap the whirlwind.

We'll see if that happens.

Interestingly, some people still want to make this be about the leak.  There is the predictable "Look, over there!  Leaker!  Leaker" distraction defense:

"This unprecedented leak is concerning, outrageous and a blatant attempt to manipulate the sacred procedures of the U.S. Supreme Court. Those responsible should be held accountable. My prayer is that Roe v. Wade is overturned and that life prevails," said Alabama Gov. Kay Ivey, a Republican.
Unsurprisingly, Democratic governors are determined to protect abortions in their state, Republican governors are cheering for the return of states rights.  Steve Vladeck this morning thinks this leak will change the final opinion of the court:
But I'm not sure that's a foregone conclusion; not with the obvious relish with which Alito wrote this first draft. Alito doesn't want to just overrule Roe; he wants to dust off and nuke it from orbit. His disdain for the 1973 ruling is palpable. On the other hand, this kind of unprecedented leak could indicate the Court majority itself realizes its on shaky ground.  The Alito draft is long on invective and short on legal reasoning (thought long, again, on legal bluster).  It's a foregone conclusion in search of jusification.  It tugs at a thread that will unravel court decisions going back to Brown (in history if not in connected legal reasoning), and there really isn't any reason for it not to.  But even the fanatics (Barrett, Thomas, Gorsuch) on the Court seem to realize that's a bridge too far, that they can't do this in the full light of day.  Reports are that Roberts wants to uphold the Mississippi law in question without overruling Roe.  Like Holder, in other words, he wants to gut the statute but still leaven enough for the taxidermists.  Following that metaphor, Alito's opinion doesn't even want to leave the bones.  He wants to sow the ground with salt so nothing will ever grow there again; if he can help it. That may be the opinion of Thomas and Barrett and Gorsuch, too; but do they dare state it in broad daylight?  Do they dare stand and pronounce it proudly?  I don't think so.  And I think that's because they know that, while they are convinced their hearts are pure and their motives noble, they also know the limits of their power.  They want this to be so; but they also don't want the responsibility for making it so.  Because they know it is a decision that will not be universally applauded, and in fact may be rejected, and result in consequences like expanding the Court, or even calling into question the Court's use (and abuse) of it's role as arbiter of the Constitution.  They are aware, in other words, that they won't be hailed as saviors.  Which may be another reason Alito's draft opinion is so belligerent.  He's daring the body politic to disagree with him.  But he also knows he has the last word; and, as Hamlet said, "Aye, there's the rub."

Still, Vladeck thinks the leak, which is unprecedented in Supreme Court history, is important:
Still: no. No, that’s the opinion.The opinion is "the" story.  It’s the precipitant of everything else.

On the subject of "leaks," Vladeck notes this bit of judicial history: But that's hardly equivalent to releasing a full copy of a draft opinion. And there is this, too: But can the Court release one, without acknowledging the legitimacy of the leaked document? (NPR is at pains this morning to aver they cannot verify the legitimacy of the leaked draft.) I mean, is the Court likely to go from stately silence to suddenly issuing press releases about "fake news"?

Last night we had this, which points to the kind of shitshow the Court is not going to happily wade into:
Yeah, lotta experts in Twitter; with no expertise at all. Exactly. The leak is troubling, the opinion is monstrous. That puts last night in perspective. This just puts Greenfield in perspective: And this puts the leak in perspective: Meanwhile, what we need is another history lesson, one about electoral politics, not Supreme Court leaks: And speaking of consequences: "Particularly among poor women in the South and Midwest” is precisely my concern. And may be precisely where abortion becomes the issue of the mid-term elections.
Exactly.

Closing remarks:
Satire; and seriousness.
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