I wish more people saw the world through a pragmatic, Libertarian lens as do you.
In California, we have the Legislature telling retailers to stock a special aisle with gender neutral toys and criminalizing calling someone according to their biological sex. Regardless of what one thinks of gender-neutral toys (I could care less) or pronouns (out of politeness I call people what they prefer to be called), the government has no damn business micromanaging retailers or policing speech.
On the other side of the spectrum, we have Red States telling women what to do with their bodies, regulating what books people can read, and leveraging the State to impose fundamentalist Christian beliefs on everyone. For many, they dream of turning the United States into a Nationalist Christian version of Iran. Again, I have nothing against Christianity, and I admire Jesus (whose teachings are actually fundamentally at odds with the Christian Nationalists), but the State is not your brother's keeper.
These forces are joined at the hip, as you recognize. Maybe even Alito and Sotomayor realize that taking sides in this essentially religious war between two versions of the "non-negotiable sacred" spells the end of the Court's legitimacy. Well, maybe not Alito.
Your statement about Red states regulating books people can read is factually untrue. That right-of-center elected officials decide what books are and are not appropriate for *children* in taxpayer-funded public school libraries - or even taught as part of K-12 curricula - rather than unelected leftist teachers and administrators, is simply not remotely anything like “regulating books people can read”.
You have either fallen prey to leftist media fake news, or you are deliberately propagating said fake news.
If you want to challenge my assertions above, please provide specifics of cases where a Red state is regulating what books adults can read. I’ll settle for even one in the last 10 years.
You are correct about both “Don’t say gay” and about most “voter suppression” laws, I agree. And further, the fact that the leftist media doesn’t treat any of these issues (or many others) fairly, but in fact lie and manipulate, is why I don’t trust said media any more (and find Richard’s claims about the leftist media being relatively fair and honest and overall “better” to be one of his worst takes ever).
But there is at least a *thin* patina of truthfulness in the leftist claims about what is going on with those two efforts by GOP officials (even if in the second case, it is to minimize the chance of fraud, it *is* indeed done with the intention of helping the GOP win more elections).
But the claims of “book banning” and “regulating what books people can read” are just Orwellian when it comes to deciding what books are in taxpayer-funded public school libraries and public school curricula, and claiming that that is in ANY sense “book banning”. Where for me, the other two (correct) complaints you cite are “merely” misleading, rather than Orwellian.
Though reasonable people can surely differ on this last point.
Precisely what "fundamentalist Christian beliefs" are being imposed? Other than abortion, where it's certainly possible to make a secular argument for banning abortion, I don't see any fundamentalist beliefs being imposed by state mandate. OK, a few people want to put the Ten Commandments in places where they don't belong. I don't like that, but, at some level, so what?
So far as I can tell, "Christian Nationalism" is a leftist bugaboo and MSNBC talking point that isn't an actual movement. Effectively nobody wants to implement The Handmaid's Tale by government mandate. There are indeed a few crackpots who want to implement Biblical Law -- Christian Iran in the US -- but they are not a serious political force.
Other people have already addressed it, but the bit about books is massively overblown. I think it's perfectly reasonable to believe both that the government ought not censor Genderqueer or ban its publication, but that it's not appropriate reading for third-graders. And you know what? We ALL think some books shouldn't be in school libraries. Libraries can't stock every book; they have to make some choices. Do you think the local middle school should have the complete works of the Marquis de Sade on the shelf? Why not, you censorious prude?
Christian Nationalism a leftist bugaboo?? You obviously haven’t spent any time on sites like Andrew Torba’s. Gab or pay any attention to politicians like MTG. Here’s some reading for you. It’s a growing movement and no it’s not a fever dream from The Guardian or some other leftist rag.
Christian Nationalism: A Biblical Guide For Taking Dominion And Discipling Nationshttps://a.co/d/4vqHqNl
You are right; I don't spend time on Gab. And neither does anyone else. Torba is a crackpot figure, and the fact that he has a self-published pamphlet on Amazon does not make him less of one.
I don't know that MTG is a Christian Nationalist (I do know she's a Crossfitter, which is worse), but she's far less influential among Republicans than members of The Squad are among Democrats.
I said it was a fringe movement. And you responded by -- citing fringe figures.
You're shifting goalposts. People support a meaningless declaration that the US is a Christian Country. OK, fine. It's wrong, and it's stupid. But meaningless declarations do not a theocracy make. Any more than having "In God We Trust" on our coins makes us a theocracy.
I never said that there is an American theocracy. I said many right wing Republicans “dream” of one. This poll shows that this is in fact the case. I’m not much for internet tit for tat, but it is you who is shifting the goalposts. Have a good day.
I just want to see the law adjudicated by people who disregard their personal feelings about the matter at hand (whether it be support or animus). As noted, today was a win for the rule of law, and a necessary and overdue loss for tribalism. I concur that we need more days like today.
"Dobbs" was not conservative justices "imposing their will"; rather, they were undoing activist-liberal justices having done just that. Abortion is a state issue, and no reasonable reading of the Constitution could have you believe otherwise... Unless you're strongly attached to the issue and want to have it your way by hook or by crook.
I do grow weary of having to explain to non-lawyers that the Supreme Court didn't "ban abortion" ... It returned the power to allow, forbid, or regulate abortion to the States (which is the textually correct answer, as you say).
You're off about the fundamental meaning of these decisions, though. FDA v. Alliance isn't a decision about pregnancy or abortion rights, it's a decision about standing - it reinforces the (very) old principle that a plaintiff must claim to have suffered an injury traceable to the defendant in order to bring suit. It's a victory for that principle - I haven't read the lower court's decision, but it seems odd that it found standing in the first place - and the principle is sound, but it doesn't guarantee the right to access mifepristone. The legislature could still pass a law against it or the FDA pull it from the shelves. The decision's impact on access to the drug or abortion rights is incidental.
I suppose if you squint you could see your way to arguing that "activist" judges (typically associated with the Left) might want to expand standing jurisprudence so that they could more easily legislate from the bench, but that's a stretch; although maintaining division of powers is one of the purposes of requiring a plaintiff to have standing to bring suit, standing isn't really a contentious issue. The law is pretty well settled. "Standing" doesn't really track left or right, so you can't hammer this into a compromise between liberal and conservative members of the court.
If it's settled and non contentious and judges don't really legislate from the bench, how did such an absurd argument by the doctors get all the way to the supreme court to begin with?
I didn’t say it was settled that judges don’t legislate from the bench. That’s a political opinion. You can’t really “settle” that. The standards for determining standing are largely settled. It’s complicated and there are edge cases, but the law hasn’t changed much in a long time.
Sure, but I was reacting to your claim that the law is settled (apparently lower court judges don't agree), and it's a stretch to claim that this occurred so the left could more easily legislate from the bench. Also that it's not contentious. Yet what other explanation is there for how this got all the way to the supremes? This is the highest court in the land, almost by definition if something got there it's contentious.
Thank you for the article and it’s honest analysis. It’s been my belief during these past few years of divisiveness in our public, the media and within the three branches of government, that the Supreme Court has done pretty well under the circumstances. We don’t live in a perfect place. No government ever created by man has preformed better than our democratic republic. Our freedoms offer so much opportunity, if we can understand the these freedoms come with great responsibility. With all the hyperbole that goes on within our society today, it is a blessing that our Supreme Court of our three branches usually gets it right……today was one of those days.
There's a frustrating convergence between academic theory and dumb populism in jurisprudence--legal realism has taken over both, the idea that laws barely matter and judges just do whatever they want on the object level with post hoc rationalizations.
This is despite frequent evidence to the contrary, judges considered dyed in the wool partisans routinely crossing the aisle on the object level for greater consistency with some meta level principle. Famously Scalia said, of communist flag burning protestors, "if it were up to me they would all be in jail, but I am not king." He voted to exonerate them.
Legal realism is somehow the dominant American theoretical paradigm and mostly seems like cope.
People lose cases and just immediately blame judicial capture for the decision? Maybe if you don't understand the law it's a skill issue.
It's worse than just "Legal Realism;" it's the idea that the law should be used to advance left-wing social change. On the left, love of "judicial restraint" and "the rule of law" came only after the Warren Court was well and truly gutted.
Supreme court partisanship is like journalistic partisanship in that it's mostly about what they choose to cover and only secondarily about what they write. Taking some softball cases with - as you say - obvious answers doesn't convince me there's any serious effort to compromise. Especially with Alito recently surreptitiously recorded saying "one side or the other is going to win." But at least they seem to care about keeping up appearances, which is the first step.
Also, it gets much less coverage but I thought Roberts' reply on the surreptitious recording was perfect. He's someone really admirable for sincere commitment to our institutions, and his reward is to be hated by partisans on both sides.
Considering US Supreme Court generally handles 100-150 cases a year and we only hear about a handful is a pretty good record. I don’t know how many cases they turn down in any year, and I won’t get into a conversation about what is a softball case and what isn’t. However, it is my opinion that of the three branches, the Supreme Court does its duty with much less partisanship than the Executive and Legislative branches. I won’t even respond to journalistic partisanship, except to smile and chuckle as I write this. I do agree with your comment on Roberts reply. And not sure what “keeping up with appearances means?”
Well, yes, the Court does its duty with much less partisanship, because the other two branches were *designed* to be partisan! Or rather, to deal with the reality that human beings will form partisan interest groups.
The Courts are not supposed to be partisan. They are not supposed to make laws. They are supposed to be umpires calling balls and strikes. IMO this court has gotten better at returning to this, and paring back prior judicial activism, better than any court in decades.
One of the things that's worth noting is that the Supreme Court was legally correct in all four cases. Laws against abortion may be unwise or wrong or unlibertarian, but they are not proscribed by the text of the written Constitution. Those doctors did not have standing as a legal matter, simply because they don't like the abortion pill. The Constitution, which does not speak to abortion, does speak to racial discrimination -- it forbids it, and the language of the Constitution does not allow "benign" racial discrimination. It categorically forbids racial discrimination. (Yes, I am aware that Harvard is a non-state actor and not governed by the Fourteenth Amendment, but the language of Title VI tracks the Fourteenth Amendment, and they've been interpreted congruently.). As for the Starbucks case, absent a clear statutory provision to the contrary, there's no reason for a different standard for injunctions.
In other words, for all the tendency to see every court case as a political act, the Court actually followed the best reading of the law in all four cases.
Good post. This is as good an opportunity as any to say that one gripe I have with your blog is that it frequently seems to reify the liberal/conservative dichotomy. Posts will often have brief, two-sentence reminders that the two major coalitions are not fundamental, that they change over time, etc. But the reminder will be preceded and followed by many paragraphs about "both sides" with lots of red and blue graphs. I realize that the two-party system prevails, and that it would be hard or impossible to find more nuanced graphs and data. Nonetheless I think my complaint stands: sometimes long stretches of your writing seemingly slips into the standard single-axis narrative, which chafes. Unfortunately, I don't have any specific posts in mind, just this general impression.
As much as I despise abortions, I have no problem with people taking mifepristone. If they take the prescribed dosage, they won't get pregnant. If they don't get pregnant, they won't need an abortion. Better to let them use it before they need the abortion. The best case would be if women used protection and/or didn't have sex before marriage.
You're loading a lot into the phrase "don't get pregnant." The egg is fertilized. Some people would define that as "being pregnant." The drug stops pregnancy from developing further. I agree it should be legal, but women who take it are, in fact, pregnant.
Nice information, but I am not really twigging to your analysis. If right versus left makes very little sense, then what is the sense of right/left compromise? I don't see the justices actually doing that at all.
The “compromise” is getting closer to judges not making law from the bench, and being truer to the Constitutional value of liberty/freedom from government tyranny (whether said tyranny be from leftists or rightists).
More towards classical liberalism/“libertarianism”, less towards the desires of populists on the left and on the right who seek to impose their will on others.
I disagree with Richard on a few things, but I agree with him 10,000% on this well-made point.
I don't look at it as, here's a point for the Left or Right, and these cases are a good example. They're wins for individual rights. Your right to own property and work with people you choose to pay; your right to use a treatment if you don't choose to have kids.
I understand the Left Right thing but think about how bogged down it gets in practice. The Left supports your rights when it has to do with sexual freedom, otherwise they will dictate to the letter what you can or can't say, hire, work for, how long you work, how much you can keep. The Right supports your right to keep your money (or at least gives lip service to it), but then has religious compulsions it wants to force down on you in the name of tradition. The right is sometimes synonymous with Conservativism, which makes things even more complicated - some want to preserve the Founding of 1776, but that is a dying breed. Most now seem to long for an imaginary post WW2 era of national harmony (with an uncomfortable wink at the racists), I've heard this called Front Porch Conservativism.
My point is, viewed the a certain way, legal wins that benefit the individual benefit *everyone's* freedom. These don't come at the expense of anyone - Conservatives don't actually suffer harm from the choice other people make not to have kids (as the court pointed out). A work relationship is based on consent; you can't force people to trade with you and then claim you care about rights, and if enshrined in law it actually does (by definition) limit your own rights. Individual rights properly defined are generally to everyone's benefit.
Some of today's right wing populists and "post-liberal" thinkers manage to combine the worst of both worlds -- they want to restrict both sexual and economic liberty.
“ it’s probably not a coincidence that the greatest enemies of liberty on the right are Catholics.”
In this otherwise really good piece, I was all set to get annoyed with Richard for throwing in this not-really-fact-based dig… but *then* I realized it is in stark contrast to his contention that Trump, MAGA and the Alt-right are the great enemies of liberty on the right (in fact, so much so that they are even greater threats than the Biden Administration). Hmmmm…
@RobKurzban and Jason Weeden have noted that the reason the US has wokeness but also scant labor protections and scant public goods is because Democrat and Republican politicians are mostly rich and when rich people compromise with each other each gives up what they care less about. So we get social liberalism and economic conservatism while the average voter, irrespective of party, is less economically conservative than Republicans and more socially conservative than Democrats. Class/self Interest predicts views on both more than party does. Caplan argued with this, but i think Kurzban and Weeden owned him on this issue.
What is this "economic conservatism" of which you write? Yes, we've had a few tax cuts. But have you seen the Federal Register recently? There's been almost no success in paring down the massive regulatory state.
Question: if you don't like promiscuity, why don't you advocate just directly making it illegal? That seems much simpler than "I don't like sluts therefore we need to force women to give birth to retarded children."
Uh… i’m not on two wheeler’s side - AT ALL - but this second comment is not a very good argument.
In fact before abortion was legalized American society was indeed less promiscuous.
You can argue cause and effect, and reasonable people may or may not agree. Many will disagree whether or not it is a bad thing. But in terms of the correlation, there is simply no denying that before abortion was legalized American society was substantially less promiscuous.
Andy, I suspect that untangling causation here is very complicated.
There's no question that the US underwent a so-called "Sexual Revolution" in the sixties and seventies, and this resulted in less stigma for promiscuous people (particularly women) and also less stigma for unwed mothers. When I was in college, the sort of people who would never sleep with someone before marriage were considered to be oddball religious types. At the same time, at least for females, sleeping with just anyone was frowned upon and stigmatized.
I suspect that The Pill and other forms of reasonably reliable contraception were, to a large extent, responsible for this. I mean, The Pill was huge -- there's even a Loretta Lynn song about it! Let's face it: people like having sex. Evolution made us like it. But it comes with real costs -- the risk of pregnancy. If you reduce the chances of pregnancy, you reduce one very real cost of sexual activity. Reducing costs mean you get more of the thing whose cost was reduced.
Was legal abortion a part of that change? I'd guess yes, but that it's not the only thing, or even the main thing. However, both the Morning After Pill and abortion drugs do serve as backups to contraceptive failures or failure to employ contraceptives. In this sense, they probably, at the margin, enable some promiscuity. At a minimum, the movement to decriminalize abortion was intertwined in the whole "Sexual Revolution" thing.
I don’t even have a strong opinion on this particular subject (causation / correlation here).
My response to Alexander was based on the fact that his argument is illogical, unfactual, ineffectual (to the point it seemed he was *trying* to make with his other comments) and just wrong.
The Court did NOT ban abortions.
Even states that have instituted abortion bans in the last 24 months have done little (not nothing, but little) to prevent women who want them from having early term abortions.
But it is in fact the case that back when abortions were illegal our society was less promiscuous.
The fact that personally I am a radical centrist on this one issue, and find total bans abhorrent and allowing late term abortions even more abhorrent, has nothing to do with the truth of the points above.
You are correct. The Court did not ban abortions. It left states free to regulate abortion in a variety of ways, mostly (though not entirely) constrained by the federal judiciary. I say mostly because I suspect that even today's Court would strike down some abortion laws.
I think we agree on the correlation/causation issue on the sexual revolution. My instinct is that it was The Pill that was the primary driver, but I concede that's a guess.
And we agree on the abhorrence of late-term abortion and the lack of wisdom of total bans. (I would say that total bans are bad policy, not abhorrent, but we're close.)
So hey, we agree. Obviously you are a very sensible person.
😄 yes we agree. I even accept your point that total bans are not “abhorrent”. Though I think they are very bad policy, quite independent of the fact that they are loser policies nationally at the ballot box for those of us who hold generally libertarian or right-of-center positions.
I respect the social conservative position on abortion as principled, yes. But I don’t think it should be law when it comes to early term abortions, let alone abortifacients.
"You can argue cause and effect, and reasonable people may or may not agree. Many will disagree whether or not it is a bad thing. But in terms of the correlation, there is simply no denying that before abortion was legalized American society was substantially less promiscuous."
You could also look at what's happening post-2022.
And see what? Very little change, if any, because in practice fairly little change in actual access to abortions for American women who want to get one.
What’s happened in the last two years “post-2022” demonstrates… somewhere between absolutely nothing and close to nothing, if the question is promiscuity in the culture.
If the question is electoral politics, as Pete notes above, it *does* demonstrate that complete abortion bans are a loser for the GOP at the ballot box.
Who would have ever guessed that on this one topic it is DJT who is just about the only politician who has the sane middle ground position!?!?
Incorrect. The Supreme Court refused to strike down state laws. It said nothing about whether the federal government could ban it or legalize it nationwide. Most of the pro-life movement wants to ban it nationwide. This was foreseeable before Dobbs, btw:
It's true that a lot of pro-lifers want to ban abortion nationwide. However, lots of Republicans have noticed that abortion is actually an electoral loser for the Pro Life side. Maybe not in Idaho or Alabama, but certainly in most of the US. Both Ohio and Kansas -- both of which have gone for Republicans recently in Presidential elections -- voted by referendum to keep abortion legal.
Republicans are starting to understand that, at the national level, abortion is electoral suicide.
That you make a true statement - “Most of the pro-life movement wants to ban it nationwide” - does not at all make the statement “The Supreme Court returned the legislation of abortion to its proper place, the states” incorrect.
That said, I could conceive (pun intended) of a future Supreme Court banning state laws allowing most late term abortions on the obvious grounds that they are murders, and I could even conceive (though it seems less likely) of a Court ruling state laws banning all forms of early term abortions, especially abortifacients, as against the Constitution.
But Roe was always a terrible ruling of activist judges, and even if you want to claim that the federal government could make abortion laws, the Supreme Court is not the legislative branch, and had no business legislating abortion as it had done for almost 50 years.
I wish more people saw the world through a pragmatic, Libertarian lens as do you.
In California, we have the Legislature telling retailers to stock a special aisle with gender neutral toys and criminalizing calling someone according to their biological sex. Regardless of what one thinks of gender-neutral toys (I could care less) or pronouns (out of politeness I call people what they prefer to be called), the government has no damn business micromanaging retailers or policing speech.
On the other side of the spectrum, we have Red States telling women what to do with their bodies, regulating what books people can read, and leveraging the State to impose fundamentalist Christian beliefs on everyone. For many, they dream of turning the United States into a Nationalist Christian version of Iran. Again, I have nothing against Christianity, and I admire Jesus (whose teachings are actually fundamentally at odds with the Christian Nationalists), but the State is not your brother's keeper.
These forces are joined at the hip, as you recognize. Maybe even Alito and Sotomayor realize that taking sides in this essentially religious war between two versions of the "non-negotiable sacred" spells the end of the Court's legitimacy. Well, maybe not Alito.
Your statement about Red states regulating books people can read is factually untrue. That right-of-center elected officials decide what books are and are not appropriate for *children* in taxpayer-funded public school libraries - or even taught as part of K-12 curricula - rather than unelected leftist teachers and administrators, is simply not remotely anything like “regulating books people can read”.
You have either fallen prey to leftist media fake news, or you are deliberately propagating said fake news.
If you want to challenge my assertions above, please provide specifics of cases where a Red state is regulating what books adults can read. I’ll settle for even one in the last 10 years.
You are correct about both “Don’t say gay” and about most “voter suppression” laws, I agree. And further, the fact that the leftist media doesn’t treat any of these issues (or many others) fairly, but in fact lie and manipulate, is why I don’t trust said media any more (and find Richard’s claims about the leftist media being relatively fair and honest and overall “better” to be one of his worst takes ever).
But there is at least a *thin* patina of truthfulness in the leftist claims about what is going on with those two efforts by GOP officials (even if in the second case, it is to minimize the chance of fraud, it *is* indeed done with the intention of helping the GOP win more elections).
But the claims of “book banning” and “regulating what books people can read” are just Orwellian when it comes to deciding what books are in taxpayer-funded public school libraries and public school curricula, and claiming that that is in ANY sense “book banning”. Where for me, the other two (correct) complaints you cite are “merely” misleading, rather than Orwellian.
Though reasonable people can surely differ on this last point.
Precisely what "fundamentalist Christian beliefs" are being imposed? Other than abortion, where it's certainly possible to make a secular argument for banning abortion, I don't see any fundamentalist beliefs being imposed by state mandate. OK, a few people want to put the Ten Commandments in places where they don't belong. I don't like that, but, at some level, so what?
So far as I can tell, "Christian Nationalism" is a leftist bugaboo and MSNBC talking point that isn't an actual movement. Effectively nobody wants to implement The Handmaid's Tale by government mandate. There are indeed a few crackpots who want to implement Biblical Law -- Christian Iran in the US -- but they are not a serious political force.
Other people have already addressed it, but the bit about books is massively overblown. I think it's perfectly reasonable to believe both that the government ought not censor Genderqueer or ban its publication, but that it's not appropriate reading for third-graders. And you know what? We ALL think some books shouldn't be in school libraries. Libraries can't stock every book; they have to make some choices. Do you think the local middle school should have the complete works of the Marquis de Sade on the shelf? Why not, you censorious prude?
Christian Nationalism a leftist bugaboo?? You obviously haven’t spent any time on sites like Andrew Torba’s. Gab or pay any attention to politicians like MTG. Here’s some reading for you. It’s a growing movement and no it’s not a fever dream from The Guardian or some other leftist rag.
Christian Nationalism: A Biblical Guide For Taking Dominion And Discipling Nationshttps://a.co/d/4vqHqNl
You are right; I don't spend time on Gab. And neither does anyone else. Torba is a crackpot figure, and the fact that he has a self-published pamphlet on Amazon does not make him less of one.
I don't know that MTG is a Christian Nationalist (I do know she's a Crossfitter, which is worse), but she's far less influential among Republicans than members of The Squad are among Democrats.
I said it was a fringe movement. And you responded by -- citing fringe figures.
Some “fringe movement”. It’s most Republicans now.
https://www.politico.com/news/magazine/2022/09/21/most-republicans-support-declaring-the-united-states-a-christian-nation-00057736
You're shifting goalposts. People support a meaningless declaration that the US is a Christian Country. OK, fine. It's wrong, and it's stupid. But meaningless declarations do not a theocracy make. Any more than having "In God We Trust" on our coins makes us a theocracy.
I never said that there is an American theocracy. I said many right wing Republicans “dream” of one. This poll shows that this is in fact the case. I’m not much for internet tit for tat, but it is you who is shifting the goalposts. Have a good day.
I just want to see the law adjudicated by people who disregard their personal feelings about the matter at hand (whether it be support or animus). As noted, today was a win for the rule of law, and a necessary and overdue loss for tribalism. I concur that we need more days like today.
"Dobbs" was not conservative justices "imposing their will"; rather, they were undoing activist-liberal justices having done just that. Abortion is a state issue, and no reasonable reading of the Constitution could have you believe otherwise... Unless you're strongly attached to the issue and want to have it your way by hook or by crook.
I do grow weary of having to explain to non-lawyers that the Supreme Court didn't "ban abortion" ... It returned the power to allow, forbid, or regulate abortion to the States (which is the textually correct answer, as you say).
You're off about the fundamental meaning of these decisions, though. FDA v. Alliance isn't a decision about pregnancy or abortion rights, it's a decision about standing - it reinforces the (very) old principle that a plaintiff must claim to have suffered an injury traceable to the defendant in order to bring suit. It's a victory for that principle - I haven't read the lower court's decision, but it seems odd that it found standing in the first place - and the principle is sound, but it doesn't guarantee the right to access mifepristone. The legislature could still pass a law against it or the FDA pull it from the shelves. The decision's impact on access to the drug or abortion rights is incidental.
I suppose if you squint you could see your way to arguing that "activist" judges (typically associated with the Left) might want to expand standing jurisprudence so that they could more easily legislate from the bench, but that's a stretch; although maintaining division of powers is one of the purposes of requiring a plaintiff to have standing to bring suit, standing isn't really a contentious issue. The law is pretty well settled. "Standing" doesn't really track left or right, so you can't hammer this into a compromise between liberal and conservative members of the court.
If it's settled and non contentious and judges don't really legislate from the bench, how did such an absurd argument by the doctors get all the way to the supreme court to begin with?
I didn’t say it was settled that judges don’t legislate from the bench. That’s a political opinion. You can’t really “settle” that. The standards for determining standing are largely settled. It’s complicated and there are edge cases, but the law hasn’t changed much in a long time.
Sure, but I was reacting to your claim that the law is settled (apparently lower court judges don't agree), and it's a stretch to claim that this occurred so the left could more easily legislate from the bench. Also that it's not contentious. Yet what other explanation is there for how this got all the way to the supremes? This is the highest court in the land, almost by definition if something got there it's contentious.
There's an even more pessimistic take on the standing issue here: https://sethabramson.substack.com/p/why-a-unanimous-supreme-court-decision. I wouldn't be happy about this decision at all. It's not a blow for liberty, it's a rehearsal for the opposite.
If “pessimistic” means leftist take, then sure…
Thank you for the article and it’s honest analysis. It’s been my belief during these past few years of divisiveness in our public, the media and within the three branches of government, that the Supreme Court has done pretty well under the circumstances. We don’t live in a perfect place. No government ever created by man has preformed better than our democratic republic. Our freedoms offer so much opportunity, if we can understand the these freedoms come with great responsibility. With all the hyperbole that goes on within our society today, it is a blessing that our Supreme Court of our three branches usually gets it right……today was one of those days.
Great post.
There's a frustrating convergence between academic theory and dumb populism in jurisprudence--legal realism has taken over both, the idea that laws barely matter and judges just do whatever they want on the object level with post hoc rationalizations.
This is despite frequent evidence to the contrary, judges considered dyed in the wool partisans routinely crossing the aisle on the object level for greater consistency with some meta level principle. Famously Scalia said, of communist flag burning protestors, "if it were up to me they would all be in jail, but I am not king." He voted to exonerate them.
Legal realism is somehow the dominant American theoretical paradigm and mostly seems like cope.
People lose cases and just immediately blame judicial capture for the decision? Maybe if you don't understand the law it's a skill issue.
It's worse than just "Legal Realism;" it's the idea that the law should be used to advance left-wing social change. On the left, love of "judicial restraint" and "the rule of law" came only after the Warren Court was well and truly gutted.
Supreme court partisanship is like journalistic partisanship in that it's mostly about what they choose to cover and only secondarily about what they write. Taking some softball cases with - as you say - obvious answers doesn't convince me there's any serious effort to compromise. Especially with Alito recently surreptitiously recorded saying "one side or the other is going to win." But at least they seem to care about keeping up appearances, which is the first step.
Also, it gets much less coverage but I thought Roberts' reply on the surreptitious recording was perfect. He's someone really admirable for sincere commitment to our institutions, and his reward is to be hated by partisans on both sides.
Considering US Supreme Court generally handles 100-150 cases a year and we only hear about a handful is a pretty good record. I don’t know how many cases they turn down in any year, and I won’t get into a conversation about what is a softball case and what isn’t. However, it is my opinion that of the three branches, the Supreme Court does its duty with much less partisanship than the Executive and Legislative branches. I won’t even respond to journalistic partisanship, except to smile and chuckle as I write this. I do agree with your comment on Roberts reply. And not sure what “keeping up with appearances means?”
Well, yes, the Court does its duty with much less partisanship, because the other two branches were *designed* to be partisan! Or rather, to deal with the reality that human beings will form partisan interest groups.
The Courts are not supposed to be partisan. They are not supposed to make laws. They are supposed to be umpires calling balls and strikes. IMO this court has gotten better at returning to this, and paring back prior judicial activism, better than any court in decades.
One of the things that's worth noting is that the Supreme Court was legally correct in all four cases. Laws against abortion may be unwise or wrong or unlibertarian, but they are not proscribed by the text of the written Constitution. Those doctors did not have standing as a legal matter, simply because they don't like the abortion pill. The Constitution, which does not speak to abortion, does speak to racial discrimination -- it forbids it, and the language of the Constitution does not allow "benign" racial discrimination. It categorically forbids racial discrimination. (Yes, I am aware that Harvard is a non-state actor and not governed by the Fourteenth Amendment, but the language of Title VI tracks the Fourteenth Amendment, and they've been interpreted congruently.). As for the Starbucks case, absent a clear statutory provision to the contrary, there's no reason for a different standard for injunctions.
In other words, for all the tendency to see every court case as a political act, the Court actually followed the best reading of the law in all four cases.
Good post. This is as good an opportunity as any to say that one gripe I have with your blog is that it frequently seems to reify the liberal/conservative dichotomy. Posts will often have brief, two-sentence reminders that the two major coalitions are not fundamental, that they change over time, etc. But the reminder will be preceded and followed by many paragraphs about "both sides" with lots of red and blue graphs. I realize that the two-party system prevails, and that it would be hard or impossible to find more nuanced graphs and data. Nonetheless I think my complaint stands: sometimes long stretches of your writing seemingly slips into the standard single-axis narrative, which chafes. Unfortunately, I don't have any specific posts in mind, just this general impression.
As much as I despise abortions, I have no problem with people taking mifepristone. If they take the prescribed dosage, they won't get pregnant. If they don't get pregnant, they won't need an abortion. Better to let them use it before they need the abortion. The best case would be if women used protection and/or didn't have sex before marriage.
You're loading a lot into the phrase "don't get pregnant." The egg is fertilized. Some people would define that as "being pregnant." The drug stops pregnancy from developing further. I agree it should be legal, but women who take it are, in fact, pregnant.
Being Pro Life myself I agree with your assessment
Agree on all points and am happy with both rulings.
Nice information, but I am not really twigging to your analysis. If right versus left makes very little sense, then what is the sense of right/left compromise? I don't see the justices actually doing that at all.
The “compromise” is getting closer to judges not making law from the bench, and being truer to the Constitutional value of liberty/freedom from government tyranny (whether said tyranny be from leftists or rightists).
More towards classical liberalism/“libertarianism”, less towards the desires of populists on the left and on the right who seek to impose their will on others.
I disagree with Richard on a few things, but I agree with him 10,000% on this well-made point.
I don't look at it as, here's a point for the Left or Right, and these cases are a good example. They're wins for individual rights. Your right to own property and work with people you choose to pay; your right to use a treatment if you don't choose to have kids.
I understand the Left Right thing but think about how bogged down it gets in practice. The Left supports your rights when it has to do with sexual freedom, otherwise they will dictate to the letter what you can or can't say, hire, work for, how long you work, how much you can keep. The Right supports your right to keep your money (or at least gives lip service to it), but then has religious compulsions it wants to force down on you in the name of tradition. The right is sometimes synonymous with Conservativism, which makes things even more complicated - some want to preserve the Founding of 1776, but that is a dying breed. Most now seem to long for an imaginary post WW2 era of national harmony (with an uncomfortable wink at the racists), I've heard this called Front Porch Conservativism.
My point is, viewed the a certain way, legal wins that benefit the individual benefit *everyone's* freedom. These don't come at the expense of anyone - Conservatives don't actually suffer harm from the choice other people make not to have kids (as the court pointed out). A work relationship is based on consent; you can't force people to trade with you and then claim you care about rights, and if enshrined in law it actually does (by definition) limit your own rights. Individual rights properly defined are generally to everyone's benefit.
Some of today's right wing populists and "post-liberal" thinkers manage to combine the worst of both worlds -- they want to restrict both sexual and economic liberty.
“ it’s probably not a coincidence that the greatest enemies of liberty on the right are Catholics.”
In this otherwise really good piece, I was all set to get annoyed with Richard for throwing in this not-really-fact-based dig… but *then* I realized it is in stark contrast to his contention that Trump, MAGA and the Alt-right are the great enemies of liberty on the right (in fact, so much so that they are even greater threats than the Biden Administration). Hmmmm…
@RobKurzban and Jason Weeden have noted that the reason the US has wokeness but also scant labor protections and scant public goods is because Democrat and Republican politicians are mostly rich and when rich people compromise with each other each gives up what they care less about. So we get social liberalism and economic conservatism while the average voter, irrespective of party, is less economically conservative than Republicans and more socially conservative than Democrats. Class/self Interest predicts views on both more than party does. Caplan argued with this, but i think Kurzban and Weeden owned him on this issue.
What is this "economic conservatism" of which you write? Yes, we've had a few tax cuts. But have you seen the Federal Register recently? There's been almost no success in paring down the massive regulatory state.
Compared to the rest of the world.
"But today the Supreme Court helped make America a slightly freer country"...yah, freer for mega-corp's & strumpets, what a country!
>strumpets
Question: if you don't like promiscuity, why don't you advocate just directly making it illegal? That seems much simpler than "I don't like sluts therefore we need to force women to give birth to retarded children."
Mega-corps and strumpets are people too.
Freedom doesn't just apply to you
Remember when they banned abortion and that made society less promiscuous?
I don't remember that either.
Uh… i’m not on two wheeler’s side - AT ALL - but this second comment is not a very good argument.
In fact before abortion was legalized American society was indeed less promiscuous.
You can argue cause and effect, and reasonable people may or may not agree. Many will disagree whether or not it is a bad thing. But in terms of the correlation, there is simply no denying that before abortion was legalized American society was substantially less promiscuous.
Andy, I suspect that untangling causation here is very complicated.
There's no question that the US underwent a so-called "Sexual Revolution" in the sixties and seventies, and this resulted in less stigma for promiscuous people (particularly women) and also less stigma for unwed mothers. When I was in college, the sort of people who would never sleep with someone before marriage were considered to be oddball religious types. At the same time, at least for females, sleeping with just anyone was frowned upon and stigmatized.
I suspect that The Pill and other forms of reasonably reliable contraception were, to a large extent, responsible for this. I mean, The Pill was huge -- there's even a Loretta Lynn song about it! Let's face it: people like having sex. Evolution made us like it. But it comes with real costs -- the risk of pregnancy. If you reduce the chances of pregnancy, you reduce one very real cost of sexual activity. Reducing costs mean you get more of the thing whose cost was reduced.
Was legal abortion a part of that change? I'd guess yes, but that it's not the only thing, or even the main thing. However, both the Morning After Pill and abortion drugs do serve as backups to contraceptive failures or failure to employ contraceptives. In this sense, they probably, at the margin, enable some promiscuity. At a minimum, the movement to decriminalize abortion was intertwined in the whole "Sexual Revolution" thing.
We somewhere between mostly and entirely agree.
I don’t even have a strong opinion on this particular subject (causation / correlation here).
My response to Alexander was based on the fact that his argument is illogical, unfactual, ineffectual (to the point it seemed he was *trying* to make with his other comments) and just wrong.
The Court did NOT ban abortions.
Even states that have instituted abortion bans in the last 24 months have done little (not nothing, but little) to prevent women who want them from having early term abortions.
But it is in fact the case that back when abortions were illegal our society was less promiscuous.
The fact that personally I am a radical centrist on this one issue, and find total bans abhorrent and allowing late term abortions even more abhorrent, has nothing to do with the truth of the points above.
You are correct. The Court did not ban abortions. It left states free to regulate abortion in a variety of ways, mostly (though not entirely) constrained by the federal judiciary. I say mostly because I suspect that even today's Court would strike down some abortion laws.
I think we agree on the correlation/causation issue on the sexual revolution. My instinct is that it was The Pill that was the primary driver, but I concede that's a guess.
And we agree on the abhorrence of late-term abortion and the lack of wisdom of total bans. (I would say that total bans are bad policy, not abhorrent, but we're close.)
So hey, we agree. Obviously you are a very sensible person.
😄 yes we agree. I even accept your point that total bans are not “abhorrent”. Though I think they are very bad policy, quite independent of the fact that they are loser policies nationally at the ballot box for those of us who hold generally libertarian or right-of-center positions.
I respect the social conservative position on abortion as principled, yes. But I don’t think it should be law when it comes to early term abortions, let alone abortifacients.
And obviously, you are a very sensible person…
"You can argue cause and effect, and reasonable people may or may not agree. Many will disagree whether or not it is a bad thing. But in terms of the correlation, there is simply no denying that before abortion was legalized American society was substantially less promiscuous."
You could also look at what's happening post-2022.
And see what? Very little change, if any, because in practice fairly little change in actual access to abortions for American women who want to get one.
What’s happened in the last two years “post-2022” demonstrates… somewhere between absolutely nothing and close to nothing, if the question is promiscuity in the culture.
If the question is electoral politics, as Pete notes above, it *does* demonstrate that complete abortion bans are a loser for the GOP at the ballot box.
Who would have ever guessed that on this one topic it is DJT who is just about the only politician who has the sane middle ground position!?!?
Many state governments did.
And even more importantly, to LEGISLATORS, rather than unelected judges!
Incorrect. The Supreme Court refused to strike down state laws. It said nothing about whether the federal government could ban it or legalize it nationwide. Most of the pro-life movement wants to ban it nationwide. This was foreseeable before Dobbs, btw:
https://lionoftheblogosphere.wordpress.com/2018/06/28/abortion-will-never-be-left-up-to-the-states/
It's true that a lot of pro-lifers want to ban abortion nationwide. However, lots of Republicans have noticed that abortion is actually an electoral loser for the Pro Life side. Maybe not in Idaho or Alabama, but certainly in most of the US. Both Ohio and Kansas -- both of which have gone for Republicans recently in Presidential elections -- voted by referendum to keep abortion legal.
Republicans are starting to understand that, at the national level, abortion is electoral suicide.
That you make a true statement - “Most of the pro-life movement wants to ban it nationwide” - does not at all make the statement “The Supreme Court returned the legislation of abortion to its proper place, the states” incorrect.
That said, I could conceive (pun intended) of a future Supreme Court banning state laws allowing most late term abortions on the obvious grounds that they are murders, and I could even conceive (though it seems less likely) of a Court ruling state laws banning all forms of early term abortions, especially abortifacients, as against the Constitution.
But Roe was always a terrible ruling of activist judges, and even if you want to claim that the federal government could make abortion laws, the Supreme Court is not the legislative branch, and had no business legislating abortion as it had done for almost 50 years.