U.S. Supreme Court: Post-Ginsburg Edition

same, alfred! and you reside in florida (if i'm not mistaken) so you've been in one of the epicenters of this whole unfolding - definitely appreciate hearing that from you.

but i guess what i'm really getting at is: i don't know what else to do anymore. just continue with the same things that aren't working?

discouraged and angry. bad combo.

the roar of "this will completely change the mid-terms" from some 'silver-lining' folk I know has irked me because

a) assuming the vote doesn't change when opinion published, several states have either heavily restrictive rules beyond what was previously allowed, or outright bans, set to go into place immediately.

b) that's a MIGHTY big assumption, since although abortion will mobilize many left and some independent voters, even some of the 70% that support abortion aren't necessarily going to vote Democratic just because of that. not everyone is a single-issue voter

c) I'm really not convinced it would be a seismic shift. lots of people feel like their job is done now that Trump's gone.

would be glad to be wrong about all of these, or find out SCOTUS was trolling us, but I have no faith.

the protests have already started. the day the order is issued is when.....things will likely escalate further. they kind of need to. nothing else reaches anybody.

and d) even if things do break towards Democrats, no guarantee we can still codify abortion into law.

it's so fucking stupid. we have the tools to end this NOW and we won't. simple ending of the filibuster and we could move past this.

(This may be wishful thinking because news and memory are short-lived but I think it was a smart move on Biden's part to associate this with rights for all and personal privacy and choice.)

this is more us politics, but what are the chances of the GOP ending the filibuster if they get 50+ members?

a pretty sure bet

maybe romney? just because? but i have to say, i can see manchin voting with the republicans to end the filibuster, being that 50th vote. or sinema. it's fucking crazy but it makes so much sense

But the traditions of the Senate etc.

Manchin has said he ain't touching the filibuster iirc

The motherfucker can go jump in a wood chipper

There isn't enough coal in all of Appalachia for that pustule's stocking

Manchin has said he ain't touching the filibuster iirc

That was last month.

Is this the same Manchin who just cut a commercial for a Republican candidate?

^^^

i think it has like a 2.4% chance of happening, but the way it would happen is that manchin would need to show a sign of true "betrayal" in order to complete the ritual switching of parties

it would be the final sign that yes, he was one of the good white guys

the ritual demands the blood of betrayal

*GROTESQUE SCREAMING*

this is more us politics, but what are the chances of the GOP ending the filibuster if they get 50+ members?

Doubtful in the near term - what's the point in killing the filibuster with a Democratic President? They'll wait until January 2025 and if margins are tight and they need to pass something, shit is toast. Then they'll blame Democrats for talking about it as the reason they had to do it.

yep, that's more of what i meant - not short-term but post-2024

the filibuster is more helpful to republicans than democrats, especially since they have the court

republican legislative priorities tend more toward budgetary items that do not need to get around the filibuster, so there isn't as much incentive for them to ditch it

republican legislative priorities tend more toward budgetary items

maybe in the past... now it's 100% culture war 24/7/365. Cawthorn is fighting for our right to bring loaded pistols on airplanes

we have the tools to end this NOW and we won't. simple ending of the filibuster and we could move past this

I get the frustration, but who is the "we" here? And what specific levers can/should they push, that they are not already pushing? Like, what is the specific and actionable and achievable path to that change? Everyone on my side has been voting, donating, advocating, protesting, writing letters, etc., for decades.

It won't budge the court. And it won't budge the likes of Manchin. If the majority is just a paper majority that you can't actually use, then it may as well not be a majority at all.

xp

They like to talk about culture war stuff, but not necessarily pass laws about it.

uh

visit me in Florida

Talking about at the federal level only, obviously all kinds of stupid stuff is being passed in the states

This is not a rhetorical question: assuming no filibuster, would Congress actually be able to pass a law preventing states from banning abortion? Can congress regulate what laws states can make? And what would be the source of the federal power to enshrine abortion as legal? Commerce clause?

I live in Texas, I'm well aware of this

xp to me

xp That's a great question. I think the answer is, Congress does not have the power, absent constitutional support, from either prohibiting states from banning abortion or banning abortion nationally. I don't think the Commerce Clause gets you there. As to a nationwide ban, I think there are already rumblings on the right about trying, and I wouldn't want to count on this Supreme Court to strike that down.

Wouldn't a federal law legalizing abortion supercede the states? I doubt the democrats have the political will to make it happen, and it would probably be struck down immediately by the SC, but I don't think states can just ban something that is legally enshrined at the federal level.

I don't think Congress has the constitutional authority to pass a law legalizing abortion nationwide.

Neil Katyal gets the Chotiner treatment:

Right, and I know you are a fan of Coney Barrett. You said she was “brilliant” and a “lovely person” and so on.

Can we go off the record for a second?

I’d rather stay on the record.

[Goes off the record.]

I am trying to reflect on this larger issue of people in the legal community knowing one another and being friends, and I am sure lots of them are lovely people, but that shouldn’t be the focus, and nor should the quality of their jurisprudence. It’s about their political values.

I definitely think it should be the qualities that they bring as a Justice. That should be the only criterion. And it was obviously easier for me since Neil Gorsuch and I weren’t friends. We have served on committees together, and I had appeared before him, but it was an easier thing for me to feel like I was being objective because he wasn’t a friend. I will also say that when I was Elena Kagan’s deputy and conservatives opposed her, and said she wasn’t qualified to serve on the Court, that drove me bananas, because I thought she was one of the most qualified people ever. I think elections have consequences. And what I said about Gorsuch was that I want that same yardstick applied, so if you were upset when people called Elena Kagan unqualified, then you should be upset about the same thing here.

In the Gorsuch piece, you wrote, “I have no doubt that if confirmed, Justice Gorsuch would help to restore confidence in the rule of law. His years on the bench reveal a commitment to judicial independence—a record that should give the American people confidence that he will not compromise principle to favor the president who appointed him.” Do you have more concerns now about the willingness of the Trump-appointed Justices, and obviously Alito and Thomas, to restore confidence in the rule of law and have judicial independence?

I’m worried about the Court right now and its ability to act in a way that upholds our principles. A decision like this draft gravely, gravely worries me because it is as huge a step back for women in reproductive justice as anything in our lifetimes.

As I look back on my Gorsuch endorsement, the thing I really regret is that I had hoped Republicans would behave with more principle.

In 2017?

Yeah, in 2017. When I came forth for Gorsuch, Senator Lindsey Graham came up to me and said what I did was incredibly important for the institution and legitimacy of the Court. And then fast-forward to today, where that same man voted against Ketanji Brown Jackson, when easily the same thing could and would be said about her. So I really regret that there is no principle left, and no bipartisanship left in the United States Senate when it comes to Supreme Court nominations.

I don't think Congress has the constitutional authority to pass a law legalizing abortion nationwide.

― immodesty blaise (jimbeaux),

why not?

or banning it nationwide? (I don't know anything about this)

Why not? Because there is no power in the Constitution for Congress to legislate for the general welfare. The closest you might come, as man alive suggested, is the Commerce Clause, but there is no way this Court would agree with that premise.

So what? Pass it and let John Roberts figure it out.

Many of us have said this for a while about Joe Biden and executive actions. It doesn't matter whether SCOTUS declares them unconstitutional. Stir the shit storm. Force legislators and Americans to focus.

And, with respect, I've rarely heard an argument for why Congress can't pass any law it chooses.

There is a whole very long line of jurisprudence on what kind of laws Congress can and can't pass

Plus the Constitution itself, which clearly lays out a government of specifically enumerated, limited powers.

Again, let the Court decide the question while letting a demoralized base know you're with them.

quoting:

"The first clause of Article I, Section 8, reads, "The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States"

This clause, called the General Welfare Clause or the Spending Power Clause, does not grant Congress the power to legislate for the general welfare of the country, that is a power reserved to the states through the Tenth Amendment"

don't understand how that clause doesn't grant Congress the power to legislate for the welfare of the country. So we are going to have 30+ states that ban abortion and 15 states that allow it? it's hard to imagine

Can I offer a piece of insight for #Philanthropy in this moment? Repro justice organizations that you've paid no attention to for the last decade don't need you to swoop in with a sense of crisis today. Organizers knew/know what's at stake—no need to manufacture urgency. (1/5)

— a "Black-passing" Latina. (@aliciasanchez) May 3, 2022

because of the part that says it "shall have the power to lay and collect taxes, duties, imposts, and excises to...." they could like, deprive states of medicaid funds if they ban abortion but these states have already shown how willing they are to pass up medicaid funds

The taxing clause is a mighty one

we have the tools to end this NOW and we won't. simple ending of the filibuster and we could move past this

This is correct.

who this ‘we’

you got a mouse in your pocket?

The Democratic Party. This is what Joe Biden should be agitating for. It should have been done years ago, having abortion rights hinge on the court was always precarious.