U.S. Supreme Court: Post-Ginsburg Edition

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.

You are delusional. They could end the filibuster tomorrow and it would make zero difference.

everyone's right. all the thing are right, at the same time, and yet, nothing is right. 50 votes in the senate is technically the tools to end it. there are a very _ VERY _ tiny % of americans who understand that the democrats technically hold the majority in the senate, and really understand what that means (as compared to the house, and that the house and senate are both required, the schoolhouse rock stuff). and of that group, there is a very, _VERY_ tiny % that understands what Manchin and Sinema did, what the filibuster even is, and how it works. "what they did" and "how it works" being that Manchin and Sinema, the two of them, refused to end the filibuster, and that this means that they can't pass ANYTHING in the senate, because 60 votes, though not in the consitution, is the filibuster's threshold

i believe all of that is true? everyone is right, from the people screaming at manchin to everyone who just thinks "wait, didn't the democrats win the senate and the house in the last election? that real close one? shouldn't they be able to pass whatever they want?"

well, i guess, if they can stay absolutely unified in the face of real, violent, ugly, racist, misogynistic, theocratic christian crony capitalist rule.

turns out they can't! they only got 95% (48 of 50 senators), and that's not enough! we have the tools to end this NOW and yet 2 of the 50 tools have little mouths that speak and they refuse to help and they're really, really fucking racist

The majority of Americans support abortion rights and the Democratic Party controls both legislative chambers and the presidency and yet they’re seemingly powerless. This is an insane situation.

oh, and just to keep the captain obvious train going, the fun new task is to convince a nation of _COMPLETE IDIOTS_ that the way for democrats to "actually" be useful is to elect just a smidge more than 50% of the senate, this time, so that maybe just maybe they won't completely fuck their constituents if the timing is right, the ass kissing is right, and the people voting are set up in a way that they will personally benefit for the rest of their lives and be in a higher class than the people the occasionally pretend to represent

everyone has been right. hilary clinton was right to call them deplorables, the deplorables were correct to grunt back at her

You are delusional. They could end the filibuster tomorrow and it would make zero difference.

― we only steal from the greatest books (PBKR), Tuesday, May 3, 2022

why would it make zero difference? they could finally get something done

----

also, leaking this early means that when it actually "happens" the response will be diluted. if you know there's going to be an intense reaction, an early leak lets it gradually dissipate over a few months instead of all on one day. i don't know who leaked, liberal or conservative wing, but that's the effect.

yes

You are delusional. They could end the filibuster tomorrow and it would make zero difference.

― we only steal from the greatest books (PBKR), Tuesday, May 3, 2022

why would it make zero difference? they could finally get something done

― Dan S, Tuesday, May 3, 2022 9:24 PM (five minutes ago) bookmarkflaglink

Because 48 or 49 is not enough to pass legislation?

Gonna take a break and watch Heartstopper again tonight.

fuck it, i'm going with cocoon 2 tonight

fuck it all

I think they have 50 votes for a lot of legislation

maybe not everything we're hoping for

If Democrats somehow got the 50 votes to nuke the filibuster, they'd also theoretically have the 50 to codify abortion into federal law.

Can't imagine Sinema and Manchin finally crossing the aisle on filibuster but then saying 'oh no abortion is a bridge too far'.

Besides, I think gullible goofuses Collins and Murk would cross the aisle on abortion after being left holding the bag.

But it's moot as the filibuster is going nowhere and there's no way any pro-choice legislation clears 52 yay votes

I think they have 50 votes for a lot of legislation

Like what, list it out for us.

I mean if you're talking about lowering the highest tax bracket, sure.

COVID–19 National Memorial Act

JUST KIDDING!!!

"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

― Dan S, Tuesday, May 3, 2022 7:35 PM (fifty minutes ago) bookmarkflaglink

The general welfare clause has literally never been taken as a source of any specific power other than in connection with the collection of taxes/duties/imposts/excises. In other words, Congress has the power to tax so it can fund federal stuff that is good for defense and general welfare, but that doesn't grant it the power to do things for the general welfare that it doesn't otherwise have the power to do.

who's decided that

https://en.wikipedia.org/wiki/General_welfare_clause#United_States

"but that doesn't grant it the power to do things for the general welfare that it doesn't otherwise have the power to do"

I'm wondering why has it only been taken in connection with the collection of taxes/duties/imposts/excise

it says it in the sentence you pasted in and i quoted back to you

Because that's literally what the sentence says lol xp

I wonder if you could do it by passing some kind of far-reaching federal abortion regulation scheme under the interstate commerce clause and then arguing that federal preemption applied so states couldn't regulate abortion anymore, or at least certain aspects of abortion.

Interstate commerce tie-in could be that tons of people travel out of state to get abortions.

xp it also says "and provide for the common defense and general welfare of the United States"

i don't know what to tell you, bud

Dan S do you understand what the word "to" means?

"The Congress shall have power to lay and collect taxes, duties, imposts and excises, [in order] to pay the debts and provide for the common defense and general welfare of the United States."

Does that help make it clearer?

honestly, when it comes down to words like "to", "the", "by", and "for", the meaning of words gets incredibly confusing imo

it would be cool, we'd have a way better country if they could just pass laws to promote things that are good. it doesn't matter though, they are not gonna use the spending clause to make states allow abortion. just read this and go to sleep. https://supreme.justia.com/cases/federal/us/483/203/#tab-opinion-1957222

There's another question on my mind too - which is if we accept that congress has the power to enshrine the right to abortion, doesn't that mean a conservative congress (which, guess what, we're about to have!) has the right to ban it federally?

xxp I'm not sure that clears it up for me but I respect you guys, I guess it's about paying debts. I'm not a lawyer but I believe that you know what you're talking about, just don't really understand