Monday, May 02, 2022

Yeah, That's Not The Headline Here

I'm gonna call bullshit on the first sentence of that tweet. It's a completely unsupportable statement and a gross exaggeration. Roe is almost 50 years old. How it undermined the rule of law is beyond me. The second sentence, however, even though derived from the first, is sounder. Especially if the published opinion retains almost any of the language reportedly in this draft. 

And the first indication of how much this decision to overturn Roe undermines the rule of law, is that this draft opinion has been leaked.  That wasn't done because Alito has become the second coming of Benjamin Cardozo or Learned Hand.  He's not even O.W. Holmes here,  This reads more like a love note to Clarence Thomas. Oh, and mid-term predictions like this: Just evaporated. Never make mid-term predictions 6 months out. You never know what will happen; like someone leaking a Supreme Court draft opinion on Roe. Believe me, this one is gonna be bad: I have to pause to point out Rehnquist didn't think much of "rights" in general, because it was not "deeply rooted in (legal) history" (which is what Alito means; or he should).  Rehnquist prefered the fixity of property rights in English common law, because in the origins of common law property was what mattered.  Those with property had "rights," those without, didn't (and so only landowners could vote under the "Founder's version" of the Constitution.)  People had no rights in common law because they were subjects of the Crown.  Tort law is where rights for individuals began, but that hardly equates to our modern concept of civil rights.  It's a mug's argument, in other words.  Alito doesn't like it, and he gets to decide, you don't.  Which is not how the Court is supposed to function, but why bother with legal fictions when the majority rules, right?  Even if it's a minority of 5 ruling over a majority of American citizens.

And it isn't really the outcome that bothers me; it's the naked aggression of raw power.  This is not legal reasoning, it's "Fuck all y'all!  What're ya gonna do about it?"  Roe was deliberated over for months; Warren worked the Court on Brown until he could get a unanimous opinion (it took a long time).  Alito is raising his middle finger to everybody who ever disagreed with him.

"Generations" is obviously an ill defined term.  Roe has been the law of the land for nearly 3 generations, Griswold for almost four.  Not long enough, because?  Because Alito doesn't like it, that's why.  If it's not old enough, it's not good enough.

I suppose it's a good thing the 13th Amendment and 14th Amendments are in the Constitution.  The Roberts Court has already all but repealed the 15th.

What's going to be interesting now is how much this draft opinion is rewritten between now and publication. I would bet good money that it will be. But it also sounds like this is the opinion Alito has been waiting his whole life to write. And that is not a good thing. Because the excerpts make it sound more like the first draft of a very angry law review article than like the Olympian reserve one usually associates with Supreme Court opinions; especially ones that upend this much fundamental law (if Roe falls, what protects Griswold? Or practically anything handed down by the Warren court? There are lines in this draft that sounds like Alito and Co. are taking a blow-torch to precedent because "WE'RE THE SUPREME COURT, BITCHES!!" You really have to understand that, or you don't understand this situation at all. I think that argument can be made. I don't think it's going to play out in the public reception of the published opinion, though; even if Alito's inflammatory language is greatly toned down. It won't fool the opponents of this decision, won't please the supporters (who will think the Court went "soft"), and what most people will know is: the entire country is now Texas. And you don't even get Tex-Mex and BBQ as consolation prizes.

The damage this does to the institution of the Court may well be massive.  "Generations" is a very thin screen to hide behind.
  Yeah, that's not gonna happen. Much more likely. I would lose my money. I don't think anybody's gonna give a shit what Elon Musk tweets about for a while.

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