Six Weeks: The Tactics of Sammy Alito’s Abortion

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Last night, Politico published a February 10 draft opinion in the Dobbs case, authored by Sam Alito, that overturns Roe and Casey entirely. I’ll leave it to experts to analyze the opinion. For my purposes, it matters only that it is legally and historically shoddy (meaning, Alito didn’t even care about making a convincing argument before taking away constitutional protections), and that it would also permit states to roll back protections for gay rights, contraception, and privacy generally.

I’d like to talk about tactics.

This leaked draft opinion, while not unprecedented, is almost that momentous. But the leak of the draft will in no way affect abortion access after June in any case. Since the oral argument, there was never a doubt that Casey, at least, was going to be effectively overturned. The only suspense, then, and now, concerned the scope of rights the Supreme Court eliminated and how John Roberts will vote.

The most hackish five justices support the Alito argument. And — in CNN reporting that is almost as important as the Politico leak — John Roberts would have voted to uphold Mississippi’s sharp restrictions on abortion in any case.

CNN legal analyst and Supreme Court biographer Joan Biskupic reported late Monday that Chief Justice John Roberts did not want to completely overturn Roe, meaning he would have dissented from part of Alito’s draft opinion, likely with the top bench’s three liberals.
That would still give the conservatives a 5-4 majority on the issue.

Roberts is willing, however, to uphold the Mississippi law that would ban abortion at 15 weeks of pregnancy, CNN has learned. Under current law, government cannot interfere with a woman’s choice to terminate a pregnancy before about 23 weeks, when a fetus could live outside the womb.

CNN’s report suggests this leak more likely came from Roberts’ chambers than the most likely other source, Stephen Breyer’s. The most logical explanation for the leak is that Roberts is trying to get his colleagues to adopt a less radical opinion. And if that’s the purpose, it might have the desired effect, both by making it clear what a shit-show the original Alito opinion will set off, but also by exposing the opinion itself to the ridicule and contempt it, as written, deserves.

But that doesn’t change the fact that in one way or another, the national protection for access to abortion is gone by the end of the SCOTUS term next month.

So those who support equality for women (and LGBTQ rights, and privacy generally) should consider this leaked draft as an opportunity to use the next six weeks — assume the final opinion will be released in mid-June — to lay the groundwork for what comes next. Symbolically, those who support equality for women (and LGBTQ people) now have about as long as many states will permit abortions to do something to protect the right to abortion (and to marry who you love) going forward.

It’s not clear how overturning abortion access or the early release of this opinion will affect politics going forward. I can certainly see it driving the plurality of Republicans who support such a radical stance. I can also see this decision being decisive in defeating some anti-choice Senate candidates and maybe, because this was released before the run-off, the remaining anti-choice Democrat, Henry Cuellar. Gavin Newsom has already talked about adding abortion to California’s constitution, and California might not be the only such state. Perhaps it is not too late to find a way to put reproductive rights on the ballot as a referendum (though I assume it is). Certainly, this is way to make abortion support a litmus test for state-wide elections.

Certainly, this decision raises the stakes of Brett Kavanaugh’s lies in his confirmation and Clarence Thomas’ implication in his wife’s participation in a coup attempt.

Democrats are talking about abolishing the filibuster to pass abortion rights, but there’s no indication they have 51 votes to pass it. Maybe this would change things?

But there are other ways to mobilize what is a solid majority (including most large corporations) in the United States to undercut this decision, and possibly to change the tenor of politics in this country. Americans believe that women and gays (at least) should be treated as equals. A radical minority disagrees.

Use the next six weeks to figure out how to isolate them as a radical minority.

Update: Noted that this opinion will just end national protections on abortion access.

Update: Roberts is ordering an investigation, suggesting he is not aware of the leaker’s identity. Others have made persuasive arguments that this is from one of the radicals, attempting to keep the five vote majority.

SCOTUS Is Changing The Definition Of American Citizenship

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In this post I discussed the Republican plan to rig SCOTUS by selecting SCOTUS nominees who would reliably vote their way on issues important to their base and their donors. They’ve succeeded. In this post I give a brief sketch of their goals for each group, the means of enforcement, and the impact on the nature and benefits of American citizenship.

1. Donors. There is an oligarchy inside our democracy, as I have been saying for over a decade. It dominates the Republican donor class. Oligarchs want the freedom to do anything they like with their money and the assets they control. They want the freedom to do whatever they think will make them richer. And they really hate the idea of taxation and all forms of redistribution of wealth. Their current goal is to weaken the ability of the federal agencies to regulate, because that reduces the value of their assets.

The first steps were legislative. The Administrative Procedures Act governs the way agencies make rules. Republicans and corporatist Democrats fiddled with it to make it harder for agencies to act quickly, and to increase the cost to the agencies of rule-making. Then the Office of Management and Budget was added as an additional check closer to the President.

Until recently the primary use of the courts was delay. Corporations and their front groups challenged every rule they didn’t like. Courts took these filings seriously, and allowed lawyers to spend years in costly litigation. Gradually courts created a new layer of rules that brought delay and increased costs of regulation. But even that wasn’t enough.

Right-wing lawyers have been arguing that there is no Constitutional basis for administrative agencies, and thus no basis for rules made by agencies. This led to the non-delegation doctrine which limited the power of Congress to delegate authority to agencies. The current version is called the major questions doctrine, which says Congress has to be very specific about what it delegates if there is a big effect. It essentially gives SCOTUS the power to overrule any agency action it doesn’t like by saying Congress wasn’t explicit. As an example, SCOTUS used the shadow docket to strike down a CDC rule extending the nationwide moratorium on evictions in Alabama Assn. Of Realtors v. Department of Health and Human Services, link here. The Court said the cost to landlords was so great that Congress had to explicitly give the agency poser to make such broad rules.

We get a similar result in National Federation of Independent Businesses v. OSHA. In another case on the shadow docket, a 5-4 majority declared that the number of people affected by a workplace safety requirement that people be vaccinated or tested weekly was really big, and only Congress could make such a big decision.

And who gets to decide if a decision is too big? Not Congress. Not the President. Not the elected representatives of the American people. Nope. SCOTUS gets to decide. In these cases the big beneficiaries are the donor class and the anti-vax Trumpists.

2. The religious fanatics. During the pandemic SCOTUS gutted the CDC rules on attendance at super-spreader events, asserting that Churches had to be treated like grocery stores. Here’s a more neutral discussion on ScotusBlog. These cases were also part of the general attack on agency rules dealing with the death and misery caused by Covid.

Of course, for the religious fanatics, the most important cases are attacks on Roe v. Wade. In the first set of cases, SCOTUS just couldn’t figure out how to stop that blatantly unconstitutional Texas bounty law. So they left it in place, seriously impacting abortion clinics in Texas.

The frontal assault is Dobbs v. Jackson Women’s Health Organization, which seeks to limit abortions to 15 weeks, or to get rid of Roe altogether. The case was argued late last year. Here’s a summary from SCOtUSBlog. A decision is expected in June, 2022, and everyone expects a big loss for citizens.

3. Cementing the outcome. It would be possible to get different outcomes if Congress actually represented the will of the majority. To make sure that doesn’t happen, state legislatures draw districts that favor the party in power in the state. In Rucho v. Common Cause, a 5-4 majority of SCOTUS said that partisan gerrymandering “is incompatible with democratic principles”, but sadly courts can’t do anything to protect democracy.

Even racial gerrymandering is fine because it’s always too close to an election, as the Court held in a bunch of shadow docket cases involving obviously racially gerrymandered districts. Here’s a discussion of the problem.

Another challenge to democracy is the idea that state legislatures can make election rules without the checks and balances of their state constitutions, including their governors and courts. This is called the independent state legislature doctrine. I love the idea that this garbage jurisprudence calls itself “doctrines”.

Each of these cases essentially means that we don’t live in a democracy, that the votes of millions of us don’t matter, and in turn, that government controlled by a minority of rich people and religious fanatics cannot be replaced by a majority of voters.

This may breing to mind the principle “one man one vote”, an idea laid out in Baker v. Carr, and the related cases of Reynolds v. Sims and Wesberry v. Sanders. Here’s the thing. Computerized map-drawing has made it so that everyone gets an equal vote, but some votes are more equal than others.

4. Citizenship. I went to law school in the early 70s, so most of the important cases we studied in Constitutional Law were Warren Court cases. I learned to think of them as giving practical effect to the rights and privileges of being a US citizen. For example, everyone has a right to counsel in a criminal case under the Sixth Amendment. Until 1963 everyone with money had that right, but those who didn’t have money didn’t have that right. Then in Gideon v. Wainwright, SCOTUS made that right a reality for every American. In the same way, everyone had a right not to incriminate themselves. That was meaningless until Miranda v. Arizona made it clear that people must be informed of their rights, including their right to have a lawyer present during interrogation.

Another group of decisions made it clear that there were limits on the ability of states and the federal government to control people’s private lives. Griswold v. Connecticut said states can’t regulate birth control for married people. Cases like this limited the ability of government at all levels to intrude on our private lives.

As a result we gradually gained a full panoply of rights as American citizens, rights which could not be infringed by federal, state and municipal governments.

In this post I cited constitutional scholars across the ideological spectrum saying that originalism and textualism were the conservative backlash against these and many other so-called liberal decisions of the Warren Court. The six conservatives now ruling over us plan to gut those decisions. They were all selected for that purpose. In the future, we will have very few meaningful rights as American citizens. The bulk of our rights will be set by states, many of which are gerrymandered so that a minority can decide what you can and cannot do.

That’s not my idea of America.

This Is Not How You Wield Power: Toxic Punditry’s Lack of Self Awareness

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[NB: check the byline, thanks. /~Rayne]

This is complete and utter bullshit:

We all know asking Justice Clarence Thomas to recuse himself is merely pissing into the wind. Congressional Democrats are obligated to ask this of him but they know Thomas is corrupt and won’t give the demand a second thought.

What’s bullshit, though, is MSNBC’s Mehdi Hasan and Ayman Mohyeldin ripping into House Speaker Nancy Pelosi about a request by Democrats to Thomas for his recusal on cases related to the January 6 insurrection.

We all know as well the real problem is that Thomas should be removed from the Supreme Court. Pelosi was absolutely correct saying that Thomas should never have been approved as a SCOTUS jurist to begin with. His failure to report his spouse’s income appropriately — particularly Ginni Thomas’s income from her nonprofit — during the lead up to the 2010 Citizens United v. FEC decision was unacceptable, as was his meeting with the Koch brothers.

But the House had absolutely nothing to do with Thomas being approved in the first place. The Senate is responsible for review of nominees to the Supreme Court and their approval.

We all know, too, that the House may impeach jurists, but they cannot be removed without a two-thirds vote for conviction by the Senate.

And in this case, a Senate which is only nominally held by Democrats. They couldn’t convict and remove Trump twice after impeachment for the same reason — an inadequate number of Democrats in the Senate.

Where is this power that Hasan and Mohyeldin think Pelosi has as House Speaker when she cannot remove Thomas? Why are they insisting she launch a war she can’t win? (We can see how that works out for Putin in Ukraine.)

All these two boneheaded pundits (and others making the same argument like them) are doing is misogynist pontificating when they know it’s the Senate which can force the issue and only if there were two-thirds of the Senate willing to vote to convict Thomas for his continued corrupt practices.

Yet you don’t see pundits like Hasan and Mohyeldin going after Senate Majority Leader Chuck Schumer. Nope.

Why is that?

~ ~ ~

They’re literally filling empty air time with useless crap which only serves to damage the public’s opinion of House Democrats — the portion of government which has most reliably served the needs of the people during the Biden administration while the Senate obstructs its efforts.

They’re directly contributing to and amplifying the same poisoning of public opinion already performed by right-wing media outlets Fox News, Newsmax, and OAN, grossly distorting the public’s perception of US government.

It’s right there in front of their noses and they don’t see it:

Hello, Sam Stein, who’s with both MSNBC and Politico? You’re not doing a very good job breaking through to the public if they believe the complete opposite of the truth.

Dan Froomkin elaborated on media’s failures with help from Dean Baker; public opinion about employment is particularly telling.

An additional 21 percent didn’t know one way or the other. Only 28 percent said, correctly, that jobs were created. Less than half of those — only 12 percent — knew that it was more jobs created than in any other year in history.

Similarly, only 19 percent said they thought the U.S. economy experienced more job growth than normal in the past year. The plurality – 35 percent – said they thought more jobs were lost than usual, which is of course spectacularly wrong.

Media figures go out of their way to make sure something looks like it’s on fire or bleeding, so much so that it’s a joke.

But sure, keep beating on House Speaker Pelosi because that will effect the change needed as will pissing into the wind.

~ ~ ~

A pre-print study found that it’s not solely the public at fault when it comes to misperception — it’s not purely partisanship which mis- or disinforms their opinions.

A key problem is the business model: audience members’ understanding and opinions could be shaped by exposure to media, if media bought their time.

Unfortunately, cable and broadcast news don’t pay their viewers. They rely on advertising and subscription volume; their programming becomes little more than reductive clickbait fighting for audience attention. They’ll run the inflammatory material which skews public opinion the wrong way because good news is boring.

It makes sense, and yet the answer to running content which is both more attention-grabbing and -retaining to viewers and the ethically responsible content to run is right there under their noses.

Assuming, of course, the media outlets aren’t forcing their pundit-anchor class to promote corporatism über alles.

Why aren’t programs like Hasan’s and Mohyeldin’s contacting every goddamned Senator and putting them on the record one at a time on camera about their position on Thomas’s failure to recuse himself and whether they would vote to convict him if impeached for abuse of his office as jurist?

I’d pay to watch them squirm. I’d pay to watch Senators’ chiefs of staff run away from mics to avoid answering.

I’d pay to watch them ask Josh Hawley, Ted Cruz, and Tommy Tuberville if Thomas should recuse himself on any lawsuit in which they may be named as co-conspirators because Thomas’s wife Ginni sided with Hawley and Cruz on overturning or obstructing the election…and was it obstruction of Congress or overturning an election in which they had been encouraged to participate?

That’d be Must-See TV.

~ ~ ~

The other person who gets off lightly all the damn time to the point every media outlet forgets he exists: Chief Justice John Roberts.

He’s the administrative leader of SCOTUS. Every decision made during his tenure will be attributed to the Roberts’ court.

Clarence Thomas’s unmitigated corruption including the damage to democracy Thomas’s role in Citizen United played is the product of Roberts’ court.

The lack of a self-imposed binding code of conduct is Roberts’ failure. Thomas’s refusal to recuse himself from January 6 cases which may be decided by SCOTUS is also his failure.

The lack of legislation requiring a SCOTUS code of conduct with adequate teeth to ensure enforcement is Congress’s fault, but primary responsibility is that of the Senate. In its absence Roberts could administer his court in a way which enforces judicial ethics.

Why wasn’t Roberts a subject of Hasan’s and Mohyeldin’s critique when Roberts clearly has the power to rein in corruption among his jurists?

~ ~ ~

But the real power to which Hasan and Mohyeldin deliberately turned a blind eye wasn’t Nancy Pelosi’s as House Speaker.

It wasn’t even Chuck Schumer’s, or John Roberts’ power.

That pre-print study says it’s their own. How convenient these media figures with a bully pulpit have a handy favorite punching bag to use as clickbait, redirecting attention away from their own failures as media figures with sizable audiences whose perception they shape.

By the way, you have power, too. You should be exercising it by calling your representative and senators and demanding legislation to implement a code of ethical judicial conduct for the Supreme Court (since Roberts appears unable or unwilling to produce one), and impeachment and conviction of Clarence Thomas for his lack of ethics as a jurist.

Congressional switchboard: (202) 224-3121

Day Four — The Well-Qualified K. B. J.

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[NB: check the byline, thanks. Update(s) if any will appear at the bottom of this post. /~Rayne]

It’s the fourth and final day of U.S. Senate Judiciary Committee’s confirmation hearings on the nomination of Judge Ketanji Brown Jackson to the Supreme Court. Today’s hearing is in progress.

Today’s hearing consists of three remaining panels (Judge Jackson was Panel I):

Panel II

The Honorable Ann Claire Williams
American Bar Association
Standing Committee on the Federal Judiciary

Ms. D. Jean Veta
American Bar Association
Standing Committee on the Federal Judiciary

Mr. Joseph M. Drayton
American Bar Association
Standing Committee on the Federal Judiciary

Panel III Majority

The Honorable Joyce Beatty
United States House of Representatives
State of Ohio – 3rd District

Ms. Risa Goluboff
Dean, Arnold H. Leon Professor of Law, and Professor of History
University of Virginia

Mr. Wade Henderson
President & CEO
The Leadership Conference on Civil and Human Rights

Mr. Richard B. Rosenthal
Captain Frederick Thomas
National President
National Organization of Black Law Enforcement Executives (NOBLE)

Panel III Minority

The Honorable Steve Marshall
Attorney General
State of Alabama

Ms. Jennifer Mascott
Assistant Professor of Law & Co-Executive Director
The C. Boyden Gray Center for the Study of the Administrative State, Antonin Scalia Law School, George Mason University

Ms. Eleanor McCullen
Anti-abortion activist

Ms. Keisha Russell
First Liberty

Ms. Alessandra Serano
Operation Underground Railroad

From the looks of the last three panelists, the GOP senators are continuing to play to the base by hammering Judge Jackson on abortion, religious freedom in public schools, and human trafficking. The last will likely fit with the crap Sen. Josh Hawley et al already tattooed about child pornography.

The GOP will want to leave that shitty taste of zealotry and bigotry in the audience’s mouths as the hearings end. In other words, on brand for the GOP.

You can watch live feed at these sites (not the same links as yesterday’s as the previous links may lead to recordings previous days’ hearings):

Senate Judiciary Committee hearing feed

PBS Senate Judiciary Committee hearing feed on YouTube

C-SPAN feed via YouTube

You can also catch the hearings through these live Twitter threads:

Rewire News Group

Chris Geidner at Grid News

If you know of anyone else covering today’s hearing in Twitter, please leave a comment below. Thanks!

~ ~ ~

Apparently these hearings weren’t really to determine a nominee’s qualifications for a lifetime appointment to SCOTUS or to ensure the public was informed. No, apparently the Senate Judiciary Committee hearings have been little more than social media opportunities, which Sen. Ben Sasse (R-NE) called out.


Sasse also expressed his concern about cameras in the court room, that “cameras change human behavior,” and yet the difference between the video above by C-SPAN versus this by CBS News below tells us cameras tell us things audio and written reporting don’t offer.


Or this photo by Los Angeles Times’ Kent Nishimura:

If you have a Twitter account, every once in a while for grins and giggles you should drop Sen. Ted Cruz (Senate account: @sentedcruz, personal account: @tedcruz) a tweet and let him know what you thought of his performance as a member of the Senate Judiciary Committee, wholly visible on all sorts of cameras.

~ ~ ~

There may be more to come, watch this space for updates.

And Three More Things: Day Three — The Well-Qualified K. B. J. [UPDATE-1]

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[NB: check the byline, thanks. Update(s) at the bottom of this post. /~Rayne]

It’s Day Three of U.S. Senate Judiciary Committee’s four days of confirmation hearings on the nomination of Judge Ketanji Brown Jackson to the Supreme Court. Today’s hearing is already in progress.

Four. Long. Days.

Hearings which are half right-wing bloviating, achieving nothing to further the public’s interests. This is the fourth time this nominee has been through this tedious crap in her lifetime which should surely qualify as inhumane treatment and torture under UNCAT; it should also earn her a sainthood.

You can watch live feed at these sites (not the same links as yesterday’s as the previous links may lead to recordings previous days’ hearings):

Senate Judiciary Committee hearing feed

PBS Senate Judiciary Committee hearing feed on YouTube

C-SPAN feed via YouTube

Yahoo News (includes reporting)

You can also catch the hearings through these live Twitter threads:

Jennifer Taub

Imani Gandy at Rewire News Group 

BuzzFeed’s Zoe Tillman

Heaven help Judge Jackson get through the day without breaking a molar gritting her teeth.

~ 3 ~

Gallup took a poll ahead of these SCOTUS confirmation hearings as it has for past nominees. Judge Jackson has the highest approval rating apart from Chief Justice Roberts.


But do go on and attack her, GOP twits. Make asininely racist remarks about the nominee who has a higher approval rating than your party’s leader ever had as president. Let’s see how that pans out for you over the long run.

~ 2 ~

Meanwhile, outside the GOP’s shit show in the Senate Judiciary Committee hearing, another GOP senator was doing is share to push the nation back to the 1950s.

I don’t have words strong enough for this crap. He just called into question the legitimacy of a seated SCOTUS jurist’s marriage (Clarence and Ginni Thomas) as well as that of the nominee now being grilled.

This is so intensely personal for me; my parents’ marriage wouldn’t have been legal in some states back in the 1950s and I’d be illegitimate having been born before the unanimous SCOTUS decision in Loving v. Virginia, 388 U.S. 1 (1967).

Braun’s states’ rights crap doesn’t target interracial marriage (which has broad support across the U.S.); it targets same-sex marriage and any other personal decisions which may require government-regulated services — like reproductive health. He was literally questioned about Griswold v. Connecticut immediately following the question of interracial marriage and he gave an equally unsatisfactory answer about that.

It’s not just Sen. Hairspray-Abuser-from-Tennessee Blackburn attacking the right to privacy necessary for birth control.

Braun has since tried to backpedal on this which means he’s merely taken off the hood he donned.


Except he really didn’t fully unwind what he said; he backed up over the body, and then rolled forward over it again by clarifying what he meant about states’ rights, and then claiming he didn’t understand the questions.

… The Times of Northwest Indiana reported that Braun “initially limited” his claim that the Supreme Court had usurped states’ rights over abortion in 1973’s Roe v. Wade decision. But when a reporter questioned him on other cases, including Loving v. Virginia, he reiterated his stance.

Braun later clarified his comments, saying in a statement that he “misunderstood” the questions. …

Sadly, he’s a senator until 2025. Indiana, you had better not forget this racist authoritarian crap come general election 2024. In the mean time Hoosiers should be lighting up his phone and telling Braun where he can stuff his racist states’ rights nonsense. Congressional switchboard: (202) 224-3121 or use Resist.bot.

~ 1 ~

I wish I could convey how deeply triggering and traumatic these confirmation hearings have been for BIPOC especially women.


What these hearings tell us is that the white cis-het minority in Congress which retains an illegitimate stranglehold on power demands that any and all competent BIPOC particularly women must submit to belligerence and abuse before they will be allowed to participate in this flawed democracy.

What we are witnessing is the re-normalization of overt racism and misogyny. Yet media has failed to punch up, instead punching down, reinforcing the normalization.


We’re constantly deluged by the left about the lack of accountability for the January 6 insurrectionists and seditionists, and yet the left fails to hold accountable the wholly integrated abusive racist and misogynist behavior the media augments in these same insurrectionists and seditionists.

The Venn diagram is a single circle and the media continues to treat the persons outside it as the objects to be despised and subjugated and oppressed.

The problem isn’t just the GOP senators or the media when constituents fail to do anything at all to express displeasure let alone organize effectively for change.

~ 0 ~

I may have more to add here as today’s hearing continues.

So long as I can keep my blood pressure under control, that is.

UPDATE-1 — 6:35 PM —

Senator Cory Booker saves this horrible day.

Stay strong, Judge Jackson. Like Frederick Douglass in his Fourth of July speech, leave off this process where you began — with hope.

Three More Things: Day Two — The Well-Qualified K. B. J.

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[NB: check the byline, thanks. /~Rayne]

It’s Day Two of U.S. Senate Judiciary Committee’s four days of confirmation hearings on the nomination of Judge Ketanji Jackson Brown to the Supreme Court. The hearing was scheduled to begin at 9:00 a.m. this morning; we are catching it here in progress.

You can watch live feed at these sites (not the same links as yesterday’s as the previous links may lead to recordings of Day 1):

Senate Judiciary Committee hearing feed

PBS Senate Judiciary Committee hearing feed on YouTube

C-SPAN feed via YouTube

Yahoo News (includes reporting)

You can also catch the hearings through these live Twitter threads:

Jennifer Taub

Imani Gandy at Rewire News Group

Amee Vanderpool

Brace yourselves for three more things.

~ 3 ~

Sadly, Senator Lindsey Graham unloaded his hypocritical faux-trage this morning. Ms. Phang expresses sentiments broadly shared about his performance.

Judge Jackson was eminently qualified three times but now suddenly unqualified based on the credentials which helped her earn her previous federal appointments?

Right-wing media outlet had assured their audience yesterday about these hearings:

Oh no, honey — these hearings won’t be a circus. They’ll be a live dramatic production.

What a pity there aren’t awards given for supporting actors in a nomination hearing production.

~ 2 ~

Senator John Cornyn can’t let Graham’s act go unanswered. Nope, he needed to go after the gays because as you have surely noticed our so-called traditional marriages have all ruptured since teh gays were legally able to marry.

Damn it all, I forgot to get a lawyer and divorce my spouse back in 2015 after Obergefell v. Hodges destroyed the institution of marriage between straight people.

SCOTUS didn’t make law though Cornyn wants the GOP base to believe it did.

But this isn’t just about individuals’ rights to marriage which Cornyn is fighting. It’s about individuals’ fundamental human rights of self-determination.

If you’re non-binary especially if you’re trans, you recognize the dog whistle Cornyn’s blowing

~ 1 ~

Meanwhile, the GOP predictably plays the racism card.

Unsurprising, really; the GOP has no real platform, no substance, no policies except thinly masked oppression of more than half the country who are not xenophobic cis-het white Christians. They’re clinging to the lessons their ratfucking forebears taught them:

You start out in 1954 by saying, “N*gger, n*gger, n*gger.” By 1968 you can’t say “n*gger”—that hurts you. Backfires. So you say stuff like forced busing, states’ rights and all that stuff. You’re getting so abstract now [that] you’re talking about cutting taxes, and all these things you’re talking about are totally economic things and a byproduct of them is [that] blacks get hurt worse than whites. And subconsciously maybe that is part of it. I’m not saying that. But I’m saying that if it is getting that abstract, and that coded, that we are doing away with the racial problem one way or the other. You follow me—because obviously sitting around saying, “We want to cut this,” is much more abstract than even the busing thing, and a hell of a lot more abstract than “N*gger, n*gger.”

— GOP political consultant Lee Atwater in an interview with Alexander P. Lamis, c. 1981.

Instead of busing they now talk non-stop about critical race theory (CRT), how it’s being forced on them even though they can’t explain what it is or provide any evidence it’s part of K-12 public school curriculum (it’s not). They don’t shy away from states’ rights now, claiming states have the right to remove content from schools which makes white people feel bad.

It’s overt racism with the sheerest of veils.

The GOP is following the script laid out by Chris Rufo, the guy who created the influence operation built on the university-level coursework offered to law students in which the economics of race and its historic and contemporary affect on laws and democratic society are discussed.

Now CRT is the right-wing’s bogeyman. Rufo literally laid out the approach via Twitter last Thursday:

In short, it’s what the GOP now yells every time it wants to invoke a fear response from its white supremacist base: OMG CRT CRT CRT!!!

~ 0 ~

I can’t believe we have to wade through two more days of this racist and misogynist crap. Nor can I believe we still don’t know who owns beer-loving Justice Brett Kavanaugh.

Three Things: The Well-Qualified K. B. J.

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[NB: check the byline, thanks. /~Rayne]

Confirmation hearings begin today before the Senate Judiciary Committee for Biden’s Supreme Court justice nominee, Judge Ketanji Brown Jackson.

You can follow live feed at:

Senate Judiciary Committee hearing feed

Senate Judiciary Committee feed on YouTube

C-SPAN feed via YouTube

Yahoo News

The hearing is scheduled to begin at 11:00 am and may have already begun at the time this post is published.

You can catch up during the course of the hearing with these Twitter live threads:

Jennifer Taub

Imani Gandy at Rewire News Group 

Amee Vanderpool

Rebecca Pilar Buckwalter-Poza

~ 3 ~

Reject any claims to the contrary: Ketanji Brown Jackson is the most qualified nominee to the Supreme Court. Period.

Justice Thomas (who was hospitalized over the weekend) and Coney Barrett are grossly underqualified by comparison.

The Washington Post’s article is worth your time. If confirmed, Judge Jackson may be the only justice with public school education, but when 90% of American children attend public schools, it’s incredibly valuable to have someone who understands their experience, their needs, and can represent them at the Supreme Court.

~ 2 ~

Predictably, Sen. Josh Hawley, supporter of GOP insurrection and sedition, has trash talked Judge Brown Jackson’s experience as a public defender — a qualification none of the rest of the current justices share. He’s claimed, “Judge Jackson has a pattern of letting child porn offenders off the hook for their appalling crimes, both as a judge and as a policymaker.”

The Washington Post factchecked this and found this claim to merit Three Pinocchios as an outright false claim, finding Hawley took Judge Jackson’s remarks out of context, mischaractered the work of the U.S. Sentencing Commission on which Judge Jackson has served, and twisted Judge Jackson’s record.

The coup de grace should fall to the right-wing National Review Online which has also taken issue with Hawley’s claim.

Surprisingly, the NRO piece is worth a read even if its contributor, Andrew McCarthy, doesn’t support Jackson’s nomination (for what are rather thin and transparently partisan reasons). At least you’ll be prepared for Hawley’s bloviating about child pornography when he starts in on the topic.

Hawley creeps me out in so many ways but his weirdly obsessive attitude about child porn seems like a naked appeal not only to the racists who reject the notion of a Black woman SCOTUS justice but the crackpot Q-crowd.

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There has been and will be a lot of nonsensical bullshit thrown around about Judge Jackson’s public defender experience.

Except the premise that all accused should have the assistance of counsel for their defense is fundamental to this nation’s democratic foundation, enshrined in the Sixth Amendment.

What does it say about our nation’s belief in this enumerated right when none of the current SCOTUS justices have been public defenders?

We’ve had a number of community members, especially since the January 6, 2020 insurrection, who have struggled with the application of this right. I’d like to suggest a rather basic but effective educational experience — the premium cable series John Adams featuring Paul Giamatti as Adams. It was produced by HBO and isn’t widely available to stream (check JustWatch) but it’s available to purchase if pricey at Amazon Prime and Google Play. If you want to save some cash, buy just the first episode, Part I: Join or Die (1770–1774), in which Adams defends British soldiers. A dramatization, yes, but effective at making points.

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Apparently there are really four things today, because this one REALLY bugs me. Is Sen. Blackburn really advocating for birth control to be outlawed???


Tennessee, I’m looking hard at you. Why your state re-elected this cretin who believes in Big Government overreach into individuals’ family planning and women’s reproductive health is beyond me.

Reference: Griswold v. Connecticut, 381 U.S. 479 (1965)

~ ~ ~

Call your senators and insist they confirm Judge Ketanji Brown Jackson.

Congressional switchboard: (202) 224-3121 or use Resist.bot.

What Would John Dewey Say About Court Packing?

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In footnote 2 to the first post in this series, I noted that the American philosopher John Dewey rejects what we now call Social Contract Theory. I was taught this theory in school as an explanation of the rationality of the State, and it was reinforced when I read John Rawls’ A Theory Of Justice. Once again I find myself unlearning a principle I never thought to question.

When I say I was taught Social Contract Theory in school I overstate. My teachers in law school occasionally mentioned it without really arguing it out or describing alternatives. I’m certainly no expert on it. This article in the Stanford Encyclopedia of Philosophy gives an overly detailed discussion of contemporary views of the theory. Here’s the article I linked in the previous post from the Internet Encyclopedia of Philosophy which is more readable. As I noted, the social contract approach is dominant in political thinking.

Dewey flatly rejects this idea. I linked to one source for this in the first post. He discusses it in passing in his book Experience and Nature (1925). [1] Dewey discusses the nature of the mind of the individual, and illustrates it with a discussion of what he calls “social compact” theory. [2] Dewey thinks that human beings have changed as our understanding of nature and human nature have grown and changed.

The conception of the individual changed completely. No longer was the individual something complete, perfect, finished, an organized whole of parts united by the impress of a comprehensive form. What was prized as individuality was now something moving, changing, discrete, and above all initiating instead of final. P, 271 (references are to the Kindle Edition.)

He takes up what he calls the social compact, as a way of illustrating this change. He describes it this way:

The [social compact theory] declared that [the state] existed by means of agreements between individuals who willed the institution of civil order. P. 273.

Dewey says that the originators of this idea might have thought that their forms of government came about through war, accidents, personal interests and other natural occurrences, so naturally they were corrupt and warlike. A new arrangement brought about by actual agreements and enforceable covenants would be better. Dewey agrees with one aspect of social contract theory.

… [S]ocial institutions as they exist can be bettered only through the deliberate interventions of those who free their minds from the standards of the order which obtains. The underlying fact was the perception of the possibility of a change, a change for the better, in social organization. P. 274.

Dewey says that once people became aware of this, they began to change social conditions,

Social conditions were altered so that there were both need and opportunity for inventive and planning activities, initiated by innovating thought, and carried to conclusion only as the initiating mind secured the sympathetic assent of other individuals. P. 274-5

He is careful to point out that new innovative ideas don’t become reified until other individual minds come to agreement.

The wrong part of social contract theory is that once people established a form of government, the newly created form became fixed and immutable. The wrong idea is that there is only one right form, and that once it is in place, we don’t have to think about it again. Dewey thinks this idea is derived directly from social compact theory. It makes it difficult to change as time reveals new needs, new problems. It becomes a barrier to change. [3[

What does this have to do with court-packing?

Corey Robin says that the conservative movement has developed a three-legged stool to gain and hold power. He says they rely on the Electoral College, the Senate, and the courts, especially SCOTUS. Each of these is tilts grossly toward the power of the minority. They exploit these ruthlessly to control the exercise of government power. Robin calls this Gonzo Constitutionalism. That seems right.

It isn’t just the Constitution, though. Over the past centuries we have evolved a set of institutions and general theories of government to flesh out Constitutional provisions. Some are simply rules of varying degrees of formality, such as Blue Slips and the filibuster, or at the state level, the convention that redistricting is done only once every ten years following the census. Others are statutory, like the SEC and the Centers for Disease Control. Still others are the result of SCOTUS decisions, like the currently disfavored idea of substantive due process. [4] Robins says that conservatives exploit these, increasing their scope or destroying them as gives them more power.

Robin concludes that the Democrats will have to recognize that the institutions and norms that got us this far are failing because the conservatives have refused to accept them, and to work within their limits. Dewey would add that the point of government is to solve collective problems faced by the public, such as the climate crisis, the pandemic, the ugly disparities in wealth, income and life chances, and the failure to hold elites accountable for their actions. Conservatives deny that these as problems and do not offer any solutions.

Robin says that if the Democrats ever take control of government, they will have to be just as relentless in replacing failed norms as the conservatives are in destroying them. The Democrats will have to create new norms, new institutions, and new ways of understanding our democracy, all of which they will have to enforce remorselessly.

I’ll just add that if Robin’s solution includes court-packing, Dewey would approve. And so would I.

=======
[1] This book is difficult even by Dewey’s standards. It’s a sort of Pragmatist metaphysics. I have hardly scratched the surface, but this part makes sense on its own.

[2] To put this in context, I’m reading from Chapter 6 titled Nature, Mind and The Subject . Dewey describes the views of Plato and Aristotle concerning the nature of the individual. He concludes that they did not look at psychological states. They say that the objects in the world and the patterns they create, and the patterns humans need to recreate them, all are given by nature. The mind of the individual is an observer and learner of those objects and patterns. The artisan follows those patterns to create objects. That is as true of the maker of clay pots as it is of the philosopher looking at human society. I think this means the self is not a subject as we use the term, not exactly a self-driven agent, but simply another kind of object in the world. I could easily be wrong.

He then turns to more modern ideas of the individual.

The idea that generalization, purposes, etc., are individual mental processes did not originate until experience had registered such a change that the functions of individualized mind were productive of objective achievements and hence capable of external observation. P. 270-1, Kindle Edition.

This is a tipping point in our development as a species.

[3] Dewey writes: “The fact that the intent of the perception was veiled and distorted by the myth of an aboriginal single and one-for-all decisive meeting of wills is instructive as an aberration…”. P. 274. So much for John Rawls’ Original Position. Dewey accepted the basic idea of evolution: that there is no purpose to natural evolution, no drive to some perfect state. Purpose comes from people.

[4] Another example is Marbury v. Madison in which the slave-holder John Marshall decided that SCOTUS was the final arbiter of questions of constitutionality. That hasn’t worked out well especially in the protection of our democracy. Consider the absurd holdings in Shelby County v. Holder and Citizens United v. FEC. For serious criticism see The Case Against The Supreme Court by Erwin Chemerinsky.

SCOTUS Nomination: Coney Barrett’s Beeswax and Goose Quills

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Nebraska’s Senator Ben Sasse did this country a solid for once during the third day of Senate Judiciary Committee hearings on Trump’s nominee to the Supreme Court, Amy Coney Barrett.

Sasse asked Coney Barrett, “What are the five freedoms of the First Amendment?”

To which Barrett replied, “Speech, religion, press, assembly… I don’t know — what am I missing?”

Good freaking gravy. If you are a nominee to the Supreme Court, you should not only know the Constitution backwards and forwards, you should understand the history and rationale behind the Constitution and every amendment.

If you are an originalist, you should be able to explain why the amendments were added to the original Constitution.

Coney Barrett is a hack and not worthy of a lifetime appointment to her current federal judgeship let alone the highest court in this country.

She also needs to drop the pretense she’s an originalist in any sense of the word.

Personally, I think she and any other so-called originalist should get back to their roots and walk the talk. Originalists shouldn’t obscure their bigotry against the idea of a living document which reflects the changes to our society. They should demonstrate they actually live their regressivity, give up all the modernity which requires a similarly contemporary understanding of citizens’ rights.

I wish a senator would have asked Coney Barrett if she believes in magic and if she would allow magic to shape her understanding of the Constitution and amendments, to mold the opinions she’ll have as a jurist.

Why magic?

Science fiction author Arthur C. Clarke once said, “Any sufficiently advanced technology is indistinguishable from magic.”

To an original U.S. citizen, a founder and framer of the Constitution, many of the feature of our modern world would look like magic.

Imagine what it would look like to them to push a button to illuminate a room without lighting a fire or casting a spark first, without suffering the guttering stench of a weak tallow candle, made from grass-fed, open-range beef fat slowly rendered in cast iron pots over open hearth fire.

Imagine what it would look like to a colonist to walk into a store filled with clothing made of synthetic fibers created from extracted minerals, in brilliant colors and decorated with all manner of hardware, instead of wearing linen shirts made from flax grown on their own farms and carefully wintered, broken down, carded into fibers before being woven on a loom in front of their cold winter evening fires by the woman of the house. What must the shiny plastic buttons and smoothly operating zippers look like in contrast to their hand-crafted buttons on their weskit and coat made from their slaughtered cattle’s horns.

Imagine their pleasure donning smoothly knit socks of uniform fit and finish, instead of wearing stockings they knit themselves from wool collected from their own sheep, let alone what it must feel like to wear cotton-knit smallwear to prevent chafing of their parts.

Imagine what the original framers felt and meant when they sat down in their linen shirts and woolen socks and hand-cobbled boots to write out their drafts of the Bill of Rights and the subsequent early amendments using well-mended quill pens, harvested from hand-fed, free-range geese like the framers would have dined on, their feathers used for stuffing their pillows.

What would it have meant to insist the government shall restrain itself from making any “law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Expressing one’s self in the public square would have required literal shoe leather or an equine to gain access to that space, or the still-rare education to craft a cogent sentence on parchment or paper which were expensive at the time. So expensive that waste was often reused as lining in footwear or clothing as insulation. The use of a printing press may have made speech more uniformly available and less expensive but who had a press and could use one let alone the money to buy access to one? Speech was not without a significant personal investment.

The same for religion – it is, after all, one of the primary motivations for some of this country’s earliest colonists, to be able to practice religion without persecution by the British Crown or others. Religion like other forms of speech required similar personal investment: access to the space, ability to print, share, and read Bibles and hymnals. Refraining from religion likewise could require investment to leave it behind.

Likewise for petitioning the government. It would require the same personal investment that speech and the practice of religion or its abstention would have demanded from the colonists, with the additional risk of punishment for having the temerity to make demands of an organization as powerful as a monarch. Punishment like being chained and put into the stocks, left out in the elements wearing none of the modern protections we have against sun, wind, and precipitation. Or worse, risk being charged with seditious conspiracy to be sentence to hanging followed by drawing and quartering at the gibbet before the masses.

An originalist like Amy Coney Barrett, wearing her pink polyester attire and chemical-laden makeup to appear on video, is lying to themselves and us when they cannot see that the society which accesses her nomination hearing across thousands of miles and in asynchronous time and place is not an originalist people, its understanding adapted to new information acquired over the last couple hundred years.

Our lives are filled with what the framers of the Constitution would have thought magic.

Originalists are not up to the task of deciding issues of contemporary law using criteria shaped by goose quills and beeswax seals.

In Coney Barrett’s case, she exercises a bias in her personal life for a single kind of magic – the belief in an invisible creator deity with three avatars. We can see it in her profile, in her experience as a professor at Notre Dame University. But we’re not able to quiz her about that particular believe in magic because her faith in it is protected by the very first amendment to the Constitution, about which she is so ignorant.

She’s so far appeared not only ignorant of the original Constitution and First Amendment, but unwilling to commit to seeing contemporary American life relies on far more kinds of magic than the framers ever imagined.

She’s not even willing to acknowledge scientific consensus on climate change, though the rigorous research behind it is no different than biomedical research into cancer and COVID-19. The framers had little to no understanding at all about epidemiology and disease; our society has changed its awareness with research and review, extending our human lives by 30-40 years. To the founding fathers this would have seemed incredible but it’s our expected modern reality.

When she clings to originalism as an excuse for her decisions past and future, Coney Barrett tells us she’s not up to  America’s present and future demands. Save for her narrow one-god-three-avatar belief, she’s a bigot against whatever perceptions, knowledge, and wisdom shape a sufficiently advanced society indistinguishable from a place of magic.

Americans deserve and need better than Coney Barrett as a federal judge or a Supreme Court justice.

SCOTUS Nomination: Amy Coney Barrett’s 2nd Day Before Senate Judiciary Committee

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That’s a pretty dull head, isn’t it, for what’s at stake, for the price Americans have paid for the GOP’s SCOTUS nominee?

Chris Hayes said it best:

The GOP Senate chose roll over and kiss Trump’s cyanotic slack ass instead of fighting the White House to protect Americans so that it would get the SCOTUS candidate it wanted should a seat open. Now through the GOP’s illegitimate processes they’re going to try to steal another SCOTUS seat for Amy Coney Barrett, who is far more openly bigoted than the other conservative justices.

When Sam Alito was nominated he was quizzed firmly about his association with Concerned Alumni of Princeton, during which he disavowed the conservative group’s racist and sexist perspective. He managed to skate by without the extent of his biases being fully revealed during his nomination hearings.

Coney Barrett, however, not only has a much more open history of bigotry, but she’s tried to hide it. She didn’t disclose that as a professor at Notre Dame University she gave both a lecture and a seminar in 2013 on Roe v. Wade to anti-abortion student groups.

It hasn’t helped matters that Notre Dame has eliminated any video or other digital documentation of her lecture and seminar. It doesn’t appear Coney Barrett has made any effort to recover this material, either, to bolster her own case.

She also failed to disclose her support for a 2006 newspaper ad which called for Roe v. Wade to be overturned. Her name appeared as a co-signer on a two-page anti-abortion ad, which should have been included in the disclosure forms submitted to the Senate Judiciary Committee with her nomination to SCOTUS.

She may also have been hiding the fact she failed to make this same disclosure in 2017 when she was nominated as a federal judge.

Coney Barrett has also been a paid speaker five times for an organization designated as a hate group by the Southern Poverty Law Center. The Alliance Defending Freedom seeks the recriminalization of consensual sex between same-sex partners; ADF also wants to deny transgender persons the same civil rights cis-gender persons possess.

Amy Coney Barrett is a bigot, and openly so.

Her experience as a federal employee doesn’t give us a different impression; her effort to obscure her past is ineffectual as well as deceitful.

I won’t even get into her sketchiness about privacy rights here. That she refused in 2017 to take a firm position acknowledging them suggests she has no problem with the government getting into your bedroom and anything else you consider sacrosanct.

Nor will I go very far into her absurdist believe in originalism.

Is she okay with slavery? The denial of the right to vote to women and Blacks? Does she even believe she has the right to be employed by the federal government because she’s a woman and a mother?

Her personal relationship with religious organization People of Praise and its gendered roles suggests she doesn’t subscribe to equal rights for women after all. Senators may not be able to ask her about her religious beliefs even if she openly embraces prayer as part of her professional life, but her actions and commitments answer the questions they can’t ask.

Coney Barrett is a far-right conservative who doesn’t believe all Americans have equal rights under the law, evidence of which her experience and life choices provide.

She also doesn’t believe the American public is entitled to openness and transparency because she’s withheld information not once but twice.

It’s not reasonable to expect the public to trust Coney Barrett to recuse herself from any case before SCOTUS related to Trump, especially the election and his finances because of her obvious political leanings and her lack of trustworthiness.

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The Democratic congressional caucus should have done a better job of fighting this nomination before it even reached a Senate Judiciary Committee hearing. Adam Jentleson wrote them a roadmap published in The New York Times and it’s as if they never saw it.

I don’t know why the Democratic caucus didn’t pursue the impeachment, conviction, and removal of AG Bill Barr immediately as it would have precedent over the nomination hearings.

In July, Barr testified before the House Judiciary Committee that he didn’t know about threats to Michigan’s governor; he didn’t know much about the armed protests in state capitols on April 30. He either lied about this or he failed to do his job, as the arrests of 13 domestic terrorists — two of whom participated in the April 30 armed protest in Lansing, Michigan — demonstrated there were credible threats meriting federal charges. Apart from slowing down the Senate, there’s ample reason to do this right now before another threat becomes more than chatter and field training.

Whatever wrench is available, Democrats need to throw it in the works to slow down or halt Amy Coney Barrett’s nomination. She isn’t worthy of the empty seat on the Supreme Court.