U.S. Supreme Court: Post-Ginsburg Edition

I don't think Stern is doomposting though, tbh.

Soon, so many more kids will be up for adoption...but not by LGBTQ people.

One interesting news story that I feel hasn't been covered enough and might become a much more common scenario in the decade(s) to come are foster children who age out of the foster program and, at age 18, basically get the social safety net cut out from under them.

what purpose are his posts serving?

xp

People will still get abortions, as they did before Roe. It's just that people will also die from them.

xpost - Reporting? I mean, most of that thread, prior to his predictions about the future, was summarizing the questions and commentary from the justices.

I mean, dire prediction part aside, I found his thread to be helpful since I wasn't in a position to watch it live.

ScotusBLOG is reporting and base analyzing, and doing so in a more comprehensive and helpful way. Stern has already drawn conclusions and told us it's all over, we're fucked

I mean, if I was a betting man, I wouldn't feel confident betting "no" on the overturn, but we all thought ACA was dead in 2012 as well the day before the ruling was issued. So much so that Boehner gleefully issued a snarky "there will be no spiking of the ball when we win" message.

This situation is different for obvious reasons but he left out several statements in his Tweet thread that ScotusBLOG included

otm

Worth also noting that the entire premise of the conservative movement -- from Viguerie's mail-in campaigns to the Federalist Society itself -- hinges on the overruling of Roe. More even than opposing any kind of universal health care.

Sorry I guess I was looking more at his thread overall, which I found helpful as the first thread I encountered this morning that was giving pretty much real time updates. I agree that his dire predictions at the end are unhelpful and, after reading some further analysis as I've had time, unnecessary. More saying that the whole thread wasn't doomposting.

xxxpost yeah this framing is somewhat different than MJS's:

What Kavanaugh is tacitly alluding to here is the argument by some abortion opponents that fetal life is protected under the 14th Amendment -- a view that, if adopted, would essentially make abortion unconstitutional. Kavanaugh suggests he is not receptive to that view.

— SCOTUSblog (@SCOTUSblog) December 1, 2021

My son is adopted, and I can't even comprehend the amount of emotional strife it caused for his birth mother to do such thing - carry a baby to term, deliver it, and two hours later hand him over to two people who she met four months earlier. Forcing someone to do that by law is absolutely fucking horrifying.

It was pretty hard for her the first few years after that, but now she's got another son, has a steady girlfriend and job, and is one of the most vehemently pro-choice people I know.

^ a reality that never obtrudes itself into the lives of the pro-lifers

FWIW, Stern deleted that "Roe is definitely going to be overturned" tweet.

I don’t remember specifics but I feel like I’ve found him to be hyperbolic and unreliable in the past. Anyway maybe absolutist insta-reactions aren’t totally necessary for a case that won’t be decided for 6 months.

In other words, by the time the court issued the final opinion in January 1973, viability was not dicta but rather an essential element of the decision. Chief Justice Roberts may not like viability — as clearly he doesn’t, observing to Julie Rikelman, the lawyer for the Mississippi clinic challenging the state’s ban on abortion after 15 weeks of pregnancy, that “viability, it seems to me, doesn’t have anything to do with choice” — but he was flatly wrong to suggest that it was an unconsidered aspect of Roe v. Wade. Linda Greenhouse column in NY Times

https://www.cbsnews.com/news/supreme-court-texas-abortion-law-clinics-can-challenge/

The Supreme Court on Friday said a legal challenge brought by abortion clinics in Texas against a state law banning most abortions after about six weeks of pregnancy can move forward.

The court sided with providers in allowing them to pursue a challenge against some of the defendants named in its suit, namely "executive licensing officials" who take enforcement actions against the clinics if they violate Texas' abortion law. The abortion clinics' earlier efforts to block enforcement of the law had been unsuccessful because the ban's unique design insulated it from federal court review.

In a separate unsigned opinion, the Supreme Court dismissed a challenge to the Texas law brought by the Justice Department.

scotus is a fucking joke

Select members of scotus getting saucy in this vax mandate hearing.

Ohio's lawyer arguing at the Supreme Court against OSHA vaccine-or-test mandate for workers is arguing remotely today because he tested positive for the virus as part of the Supreme Court's own test mandate for lawyers. Confirmed via @tomhals

— Lawrence Hurley (@lawrencehurley) January 7, 2022

lol J0n3s D@y alumn.

https://slate.com/news-and-politics/2022/01/supreme-court-covid-vaccine-mandates.html
Lithwick and stern writing together article

A majority of the justices on the Supreme Court may not see COVID-19 as an emergency. But they do see it as an opportunity. This unprecedented pandemic, the deadliest in American history, has forced the executive branch to act swiftly and creatively at each stage of the crisis. Facing an often-deadlocked Congress, President Joe Biden has drawn on old statutes to establish new regulations to stop the coronavirus from spreading and killing more people. Yet in so doing, he has given the Supreme Court’s Republican-appointed justices a chance to hobble his whole agenda. And during oral arguments over Biden’s vaccine mandates on Friday, these justices made it painfully clear that they will also seize this moment to grind down the federal government’s ability to perform even its most basic functions as well

Jerome Frank:

The fact is, and every lawyer knows it, that those judges who are most lawless, or most swayed by the “perverting influences of their emotional natures,” or most dishonest, are often the very judges who use most meticulously the language of compelling mechanical logic, who elaborately wrap about themselves the pretense of merely discovering and carrying out existing rules who sedulously avoid any indication that they individualize cases.

Which obv is exactly why "originalism" is such bullshit. The left needs to do more to challenge not just the idea of originalism, but the idea that it's a serious intellectual position at all rather than just a cover story for right-wing agendas.

Some of the discussion of the Friday Covid mandates cases has unfortunately gotten bogged down by right-wingers pointing out that Sotomayor made some factual errors in discussing the number of Covid cases. Gorsuch also offered misleading numbers on the flu vs Covid and was only justice to not wear a mask.

WASHINGTON (AP) -- Supreme Court blocks vaccine-or-test rule for US businesses, but allows vaccine mandate for most health care workers.

they telegraphed that one

To be fair, from what I read by labor law scholars, this use of OSHA was very aggressive. A more liberal court probably would have allowed it, but it was never a slam dunk that it was a legitimate use of its authority.

Public health has been a state authority for pretty much ever — which is why even some conservative-leaning federal courts have upheld state mask mandates etc.

I mean, mandates imposed at the state level.

yeah obv I agree with what Biden was trying to do but it's such a workaround that I would've been surprised had it held

but that's the kind of fuck-you-let's-do-this attitude I wanted: get enough people vaccinated as possible until the inevitable SCOTUS muffling.

There is also language suggesting that OSHA could come back with a narrower mandate for employees who work in "particularly crowded or cramped environments." Not sure SCOTUS would uphold it, but they're conspicuously leaving the door open. https://t.co/ZDFVkzP0X2 pic.twitter.com/WETNR5hxeJ

— Mark Joseph Stern ***FAIR COLAs FOR SLATE*** (@mjs_DC) January 13, 2022

I saw some insist this was not a workaround and was a properly delegated power to OSHA. Plus, if Biden waited to see if Congress could pass a bill more explicitly giving OSHA pandemic power, that would never happen in a 60 vote Senate.

David Dayen at the American Prospect keeps touting countless things the Executive branch can do via agencies and executive orders, but Biden is not as brave on most of these items as we want. But yeah as Alfred said, give it a shot and make the Court tell you you’re wrong

Is there good data at this point on what vaccines actually do to prevent spread, as opposed to severe illness? Also, since most vaccinated people are pretty safe from severe illness themselves, it's hard to see what the particular occupational hazard is from an unvaccinated person. I'm all for getting as many people vaccinated as possible in whatever way possible, but it seems like the goal of that is to prevent death and prevent hospitals from getting overwhelmed, not protecting vaccinated people who work with the unvaccinated. So I can see why it's not exactly part of OSHA's mandate. NB: did not read the decision yet so IDK what the basis actually was.

Which obv is exactly why "originalism" is such bullshit. The left needs to do more to challenge not just the idea of originalism, but the idea that it's a serious intellectual position at all rather than just a cover story for right-wing agendas.

That's painfully obvious when you study their opinions. Moreover, the whole idea that we can know the precise meaning of words used hundreds of years ago, let alone the minds of the drafters, is a chimera.

Law journals have been full of liberal critiques of originalism for decades. That means exactly dick squat. Only having a majority on the court matters.

True enough, but the left/liberals have lost that battle for the foreseeable future. IMHO, we need to start looking to the future and thinking long-term. That's what the Federalist Society did, and look how that turned out.

I suppose it would be helpful to instill more ideological uniformity and discipline among future liberal judicial nominees. Set policy priorities and make sure everyone on the list shares them. You still need to win elections to get them confirmed though.

I don't know about uniformity, but certainly more of a focus on clerkships and judgeships, and more engagement with the political process.

Most law grads are moderate to liberal and there is already a massive focus on getting clerkships.

That wasn't my experience, but I did graduate from law school more than two decades ago.

@man alive: https://www.reuters.com/legal/government/biden-finishes-2021-with-most-confirmed-judicial-picks-since-reagan-2021-12-28/

Originalism only works as a doctrine because conservatives promote a mindless cult of deifying the Founding Fathers and their work as embodying a collectively inspired wisdom. Likewise, many christian churches promote the myth that every word of the Bible was dictated by God through miraculous divine inspiration. It's a myth that strongly appeals to conservative minds. Arguing won't dispel its power, because its power is emotional.

You're not going to reach the cultists, but I think there are non-cultists to whom the basic idea of "originalism" sounds commonsensical, and they've never heard it seriously challenged. And fundamentally I don't think it's true that you can't have impact over time with simple messages repeated over and over. (See "$15 an hour," e.g.)

Simple message in this case being, "There's no such thing as originalism, it's just a code word for far right extremism." Calling things "code words" makes people feel like they're onto something, they can see through the bullshit, etc.

It's a myth that strongly appeals to conservative minds.

Maybe so, but the smart ones know it's bullshit.

They also know it works to their benefit, so they use it and love it.