James.galbraith

If anything, we aren't panicked enough about what the right has planned.

[What the Alito draft tells us about a possible future for same-sex marriage.]

When I was a college senior researching the origins of Griswold v. Connecticut (1965), there was a story making the rounds that one of Justice Scalia's clerks had walked into his chambers and asked the Justice, "What are you going to do about Roe v. Wade?" Scalia was said to have replied: "Roe? That's easy. The real question is, 'What are we going to do about Griswold?'" That summer the rumor proved accurate in at least one respect. Justice Scalia penned a concurrence in Webster v. Reproductive Health Services (1989), arguing forcefully that Roe should be overruled.

What Scalia would have done about Griswold was always a far more theoretical question. States were not falling over each other to ban condoms, IUDs, or the pill. The penumbras-and-emanations test was widely mocked, but the 1987 Supreme Court hearings of Robert Bork had demonstrated that the result in Griswold could not be seriously questioned by a nominee.

Now that the reversal of Roe appears imminent, the question of what the Supreme Court will do next arises once more. Attention is focused mostly on the precedents involving gay rights, like Obergefell v. Hodges (2015), the same-sex marriage decision, and Lawrence v. Texas (2003), which recognized a right of private adult sexual intimacy. These involve matters, like abortion, not specified in the text of the Constitution.

While there are many such "unenumerated" constitutional rights--like those to rear and educate a child, to live with relatives, to resist forced sterilization and medical treatment, and to marry a person of a different race--doubts expressed about their continued vitality seem designed mainly to save Roe by warning of the theoretical consequences of overruling it. There is no significant constituency or movement clamoring to suppress these rights and there is no serious prospect the Court will do so.

On its face, the draft majority opinion in Dobbs disclaims any intent to undermine existing unenumerated rights beyond the abortion precedents of Roe and Planned Parenthood v. Casey (1992).

The Solicitor General warns that overruling [Roe and Casey] would "threaten the Court's precedents holding that the Due Process Clause protects other rights." [Listing Obergefell, Lawrence, and Griswold]. That is not correct… And to ensure our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in the opinion should be understood to cast doubt on precedents that do not concern abortion.

Draft op. at 62. Many have fretted that the author of the Dobbs draft, Justice Alito, is not to be trusted because he dissented strongly in Obergefell. But Alito is not writing for himself here. Indeed, this passage seems to have been written with an eye on keeping the majority from splintering into discordant concurrences. A harder and purer opinion might not get the signatures of Justices Barrett, Kavanaugh, or Gorsuch. This consideration should ease genuine concerns about aggressive use of the decision immediately to undermine rights to same-sex marriage and private sexual conduct.

Moreover, to justify cabining its decision in this way, the draft opinion points to what it terms a "sharp" and "critical moral distinction" between abortion and all of the other unenumerated rights: abortion "destroys" a "potential life." Draft op. at 32. Even very strong opponents of same-sex marriage grasp this distinction. With a notable exception, few of the amici siding with Mississippi called Obergefell or Lawrence into question.

The possible risks to Obergefell and Lawrence do not really come from overruling Roe, which is why Dobbs does not present an immediate or direct threat to them as precedents. Instead, the long-term perils emanate from two other sources. The first and deepest is the determined resistance of a certain subset of religious conservatives. Unlike with abortion, however, the vast majority of Americans have moved on.

The second risk is what we might come to call the Dobbsian mode of substantive constitutional-rights analysis (which is really a redux of Washington v. Glucksberg (1997)). Tell us, the draft opinion instructs, where are these specific rights in the text? Don't give us talk of "liberty," for that means too many things to too many people. If you can't do that, where are affirmative protections for such specific rights in the granular history and traditions of the nation before the dawn of the 21st century? In other words, the draft opinion offers very little in principle that secures a right to gay marriage or homosexual sex. Gone are paeans to autonomy, dignity, and the mystery of the universe. That sort of judicial rhetoric will go the way of penumbras and emanations. In the Dobbsian world, "new" rights don't stand a chance.

On the other hand, for those who support constitutional protection of same-sex marriage, the Dobbs draft salvages some important elements of stare decisis analysis. It would allow a future Court to write an opinion concluding reluctantly that, even if it was wrong (provided it was not "egregiously wrong"), Obergefell must be preserved because so many gay couples and the families they lead have concretely depended upon it for long-term planning. And Lawrence must be preserved because, if they can marry, same-sex couples must also be allowed to have sex.

The post Will Dobbs Be a Ticket Good for this Right Only? appeared first on Reason.com.

The likely fall of Roe will roll back access for millions. It will also strike at the heart of American democracy.

For decades, abortion has been treated as a fringe issue in American politics.

Sure, it made headlines when a new law passed or a new decision was handed down, and it was always deeply important to activists on both sides — as well as to many ordinary people, regardless of politics, who wanted to end a pregnancy.

For much of the 2000s and 2010s, though, abortion was routinely sidelined in presidential debates. It was compromised away when Democrats wanted to enlarge their tent by welcoming more socially conservative candidates and voters. Activists have campaigned for years to get politicians to even bring up abortion in speeches — President Joe Biden himself did not use the word until more than 200 days into his term, and then only in a written press statement, according to the abortion rights group We Testify.

In Democratic circles, especially, abortion has often been banished to the sidelines — it’s been seen as a social issue, or a “women’s” issue, as opposed to the kind of pocketbook matters that voters supposedly really care about. This kind of thinking has permeated media, too — “This Is A Story About Abortion, No One Will Read It,” Marie Solis wrote at Jezebel in 2020, detailing the way she and other reporters on the beat struggled to “get readers to care” about an issue that is intimately connected to economic, racial, and social justice, but often seemed all too easy to ignore.

Republicans, meanwhile, have taken advantage of this vacuum. Since the 1980s and especially since 2010, conservative politicians have made restricting abortion an explicit priority, and while Democrats have generally voiced support for reproductive freedom, they’ve rarely been as committed to upholding abortion rights as Republicans have been to dismantling them. That’s likely one of the reasons Republicans have been so successful in rolling back access to the procedure across large swaths of the country.

Now, at least for the moment, abortion is the center of attention on the left. A leaked draft opinion overturning the landmark abortion decision Roe v. Wade, written by Supreme Court Justice Samuel Alito and published by Politico on May 2, has captured the attention of Republicans and Democrats alike, inspiring protests around the country and wall-to-wall news coverage.

The overturning of Roe, now a near certainty, will lead to a loss of access more widespread than any single state law. Abortion will likely become illegal in 22 states, and 41 percent of women of childbearing age will see their nearest abortion clinic close, according to an analysis by the New York Times. The moment abortion rights supporters have been dreading — and abortion opponents have been eagerly awaiting — for the past 40 years has finally arrived.

The draft opinion is also momentous because it exposes how wrong it always was to consider abortion some kind of niche concern. A wholesale overturning of Roe as outlined in the Alito opinion won’t just allow states to ban abortion within their borders; it will also open the door for state officials to pursue legal action against abortion providers in other states, something some have already pledged to do. This situation — states pitted against each other over a major civil rights issue — has frightening parallels in American history.

It happened under slavery, when fugitive slave laws allowed authorities to return escaped enslaved people to their enslavers, even if they were on free soil. It happened, too, under Jim Crow, when Southern states enforced segregation in schools and throughout public life, sometimes in violation of federal law.

“When we see states trying to interfere with people being able to leave to get to freedom — oh, my goodness, we’ve seen that before,” said Michele Bratcher Goodwin, a law professor at UC Irvine and the author of the book Policing The Womb: Invisible Women and the Criminalization of Motherhood. “When we see the kinds of policing of people’s bodies and the surveilling of people who are trying to get to freedom, we’ve seen all of that before.”

That kind of policing and surveillance ultimately led to civil war. It’s too soon to say where the fall of Roe will lead, but one thing is certain: Today, abortion politics strikes at the heart of American democracy. The draft opinion heralds an uncertain future in which LGBTQ rights, the right to contraception, the legitimacy of the Supreme Court, and federalism itself are all in jeopardy. Anyone who still thinks of abortion as a side issue is about to be proved very wrong.

Abortion has been sidelined in liberal politics since the 1970s

The marginalization of abortion in Democratic politics is at least as old as Roe v. Wade. The 1973 decision, which established a constitutional right to an abortion, may have given liberals a false sense of security, Goodwin said. “There was a confidence that the United States was a country that would not roll back, and that would not reach back to its worst tendencies.”

It wasn’t just Roe. Americans had also seen the recent gains of the civil rights movement, including the Voting Rights Act and integration of schools, after brutal and sometimes bloody fights. There was “this sense that we can breathe now in the 1970s,” Goodwin said, “that now we can say we’ve learned from these horrors of the past and that we will not take lightly what respecting equality truly means under this flag.”

The gains of the 1960s and early 1970s quickly began to erode. In 1976, Congress enacted the Hyde Amendment, which bars federal funding for most abortions, thus putting the procedure out of reach for many low-income Americans. In 1984, President Ronald Reagan put in place the Mexico City policy, also known as the “global gag rule,” which bars organizations abroad that receive US foreign aid from performing or even discussing abortion. Later, in the 2000s, a steady march of state-level restrictions shut down clinics across the South and Midwest, making abortion access more and more difficult for people who couldn’t afford to drive hundreds of miles or spend thousands of dollars on a plane ticket.

Abortion was becoming a right that only the privileged — usually middle- and upper-class white women — could access. Those women did not rise up en masse to defend abortion access for others. There was a “failure to see that we all haven’t made it,” Goodwin said. “And when we all haven’t made it, the overall rights become vulnerable.”

Moreover, abortion was allowed to fall by the wayside in the Democratic Party. Beginning in the 1980s, Republicans began campaigning on an anti-abortion platform as a way to appeal to socially conservative voters, including Catholics. Democratic politicians generally supported abortion rights, but did not always push back vociferously on restrictions. The Hyde Amendment, for example, became a political third rail that many liberal candidates avoided touching for fear of upsetting centrists — overturning it did not become part of the Democratic Party platform until 2016, a full 40 years after it was first enacted.

Even then, abortion was often framed as something outside the mainstream of American politics, a social issue that could be easily separated from more important economic issues — even though the ability to decide when and how to become a parent has profound effects on birthing people’s finances and the entire economy.

In 2017, for example, Sen. Bernie Sanders and some Democrats endorsed Heath Mello, a Democratic candidate for mayor of Omaha, despite his past support of anti-abortion bills. While Sanders himself supports abortion rights, he said such compromises might be necessary “if we’re going to become a 50-state party.” It was part of a larger debate, that often went beyond Sanders himself, in which abortion was sometimes cast as an issue of “identity politics” that Democrats couldn’t afford to focus on if they wanted to win working-class voters. (In fact, it’s not at all clear that embracing anti-abortion candidates is a reliable strategy to win working-class votes, and a majority of Americans support Roe v. Wade.)

Sometimes abortion just didn’t get talked about at all. In 2016, activist Renee Bracey Sherman started the hashtag #AskAboutAbortion to encourage moderators at presidential debates to bring up the subject. She and others who participated in the campaign were frequently disappointed, as debate after debate went by without substantive discussion of the issue.

This inattention has been mirrored in media, where abortion coverage was often siloed at so-called women’s interest publications. Major media outlets rarely dedicated even a single reporter to the issues of reproductive rights and justice. Even reporters at publications like Jezebel that paid more attention to the topic often struggled to interest readers outside of brief flurries of activity around specific bans. In 2020, Solis recalled pitching her editor a piece about a new restriction on medication abortion, only to be told “that it was a good idea, and important to cover, but difficult to get anyone to read about. Even on a site like Jezebel, where a large swath of the audience is ostensibly interested in the topic, a reported piece on abortion was likely to get little engagement.”

Some of this was probably post-Roe complacency. Some of it was generational — as Solis noted, Gen Z and younger millennials, especially people of color, have often felt disconnected from an abortion rights movement that has long centered the concerns of white women. And some of it comes from prejudices rooted deep in American society, even on the left.

In America, there has been “a lingering disregard for the equality and the personhood of women,” especially Black and brown women, Goodwin said. Now that disregard has led us straight to the end of Roe.

Forty million women of reproductive age live in states that are likely to ban abortion when Roe is overturned. Those most impacted will be people who lack the money or other resources to travel to another state for the procedure — namely low-income Americans, especially Black people, Indigenous people, and other people of color. “Black and brown folks have been sounding the alarms for years and none of it was hyperbole,” Rep. Ayanna Pressley (D-MA) said in a statement on the draft opinion. “We know that our most vulnerable communities will bear the disproportionate brunt of any decision to restrict and deny access to abortion care.”

The opinion also has enormous implications for the future of American law. In a matter of months, nearly half of the United States will ban something that is seen by millions of Americans — and that has been protected for over 40 years by the US Constitution — as a crucial human right. Those states will also seek to extend the bans beyond their borders. Texas is already doing this, including an extradition provision in a recent restriction on medication abortion that would allow the state to prosecute residents elsewhere who send the pills into Texas.

Abortion opponents in Texas also hope to find ways to restrict abortions that Texans receive out of state. “All options are on the table,” John Seago, legislative director of Texas Right to Life, said in an April interview. “Our legislature is very motivated, and they’ll continue to be motivated even post-Roe.”

The larger legal implications of such efforts are immense. No one knows exactly what will happen when a state like Texas tries to prosecute abortion providers in a state like California, or what the courts will do if and when such prosecutions are challenged. Such a situation, however, eerily echoes divides between free and slave states prior to the Civil War, and between Southern and Northern states under Jim Crow.

The parallels become even more pronounced when you recognize that the populations most affected by the fall of Roe, especially Black Americans, were also those who had their rights stripped from them under slavery and Jim Crow, Goodwin pointed out. And some of the same states that enacted Jim Crow legislation are those seeking to ban abortion today. Those states also “still happen to have legislatures that are predominantly white, and overwhelmingly male,” Goodwin said. “They haven’t significantly changed.”

Interstate conflict over slavery, obviously, eventually gave rise to war. When states enshrined racial discrimination in law and practice under Jim Crow, it took a mass movement led by Black Americans — in which many were killed — to wrest back victories like Brown v. Board of Education and the Voting Rights Act. Even after Brown, President Dwight Eisenhower had to call in the National Guard so that nine Black students could go to school in Arkansas.

It’s far from clear what’s going to happen when half of US states ban abortion. What we know is that, as misguided as it always was to think of reproductive rights and justice as side issues, it’s now impossible to do so. If history is any guide, these issues are going to cause conflicts that shake the federalist system to its core.

Civil rights issues shouldn’t have to threaten the union or precipitate clashes between federal and state authorities to grab the attention of white, middle-class Americans, but that could very well be where we’re headed. Those who have had the luxury of not paying attention may not have it much longer.

A GOP primary candidate only needs to surpass 30 percent of the vote to avoid a runoff in North Carolina.

Behold the ugly nexus of reactionary capitalism and right-wing nationalism.

When the Supreme Court formally overturns Roe v. Wade, abortion will be banned in Louisiana thanks to a 2006 trigger law putting such a ban in place as soon as the court allowed. But that’s not enough for some Louisiana Republicans—they’re pushing a bill that would not just criminalize abortion but treat it as homicide.

The state House Appropriations Committee moved the bill forward on a 7-2 vote despite one of the lawmakers voting in favor admitting that it was unconstitutional, and despite the imminent Supreme Court decision allowing Louisiana’s trigger law to go into effect. “We can't wait on the Supreme Court,” said the bill’s author, despite the fact that the wait for the Supreme Court is likely to be a matter of weeks.

RELATED STORY: From contraception to LGBTQ rights—Alito’s draft opinion on Roe opens the floodgates

For years, people warning that Republicans really did want to overturn Roe v. Wade and that Republicans really did want to criminalize abortion have been mocked as partisans dishonestly seeking advantage or condescended to as alarmist, but here we go: The Supreme Court is poised to allow states to ban abortion, and Republicans in one state are moving forward with a bill that would allow abortion providers and their patients to be prosecuted for murder.

Co-founder of Sister District, Gaby Goldstein, joins The Downballot to discuss what Democrats in the states are doing to protect abortion rights

A bill criminalizing abortion in this way could also criminalize in vitro fertilization and some forms of birth control—already, many of the people most loudly opposed to abortion describe some forms of contraception, including IUDs and emergency contraceptives, as abortifacients. And even if miscarriage is not technically criminalized, in a world where abortion is a crime, miscarriage will become a highly suspicious event, particularly for already vulnerable people.

And this isn’t a case where the one fringe Republican who all the other Republicans kind of wish would go away introduced a bill that everyone is ignoring. This passed out of committee and it wasn’t even close.

Meanwhile, in the wake of the leaked Supreme Court draft striking down Roe, Republicans are still trying to portray people worried about what comes next as dishonest or hysterical or both. The National Republican Senatorial Committee is circulating a memo, obtained by Axios, calling on Republicans to “Forcefully refute Democrat lies regarding GOP positions on abortion and women's health care.” Those so-called lies? That Republicans want to take away contraception. That Republicans want to take away mammograms. That Republicans want to “throw doctors and women in jail.”

And yet. In addition to this Louisiana bill calling for doctors and women to be thrown in jail for one of the most serious crimes there is, just a couple months ago, all three Republicans running for Michigan attorney general said that Griswold v. Connecticut, the 1965 Supreme Court opinion striking down bans on contraceptives for married people, was wrongly decided. As for mammograms, it’s not a common claim in the context of abortion that Republicans are trying to take them away, and while Republicans aren’t yet specifically targeting them, that would fall under the more general category of Republicans making any and all health care difficult to obtain. The Affordable Care Act requires most insurance plans to cover mammograms and other preventive care with no out-of-pocket costs for the patient, and we know Republicans feel about the Affordable Care Act.

This is the next step. Probably all the people who said that Roe wasn’t really in any danger will also line up to say that criminalizing abortion isn’t really going to happen. But this week, we know how to assess their judgment of what’s possible.

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Fight back! A list of a few reproductive justice organizations you can support today

If SCOTUS kills Roe, many states are poised to swiftly enforce abortion bans, sweeping restrictions

With the leaked decision to overturn Roe v. Wade and send our country back to the era where we burned witches at the stake for staring at people, a famous old stand-up bit by the late, great, George Carlin is doing the rounds again. It’s a piece about the “pro-life” movement, aka the “anti-abortion” movement, the Christian conservative movement that has continued on in our country for decades and has now successfully dragged our society’s discourse back hundreds of years. Carlin takes on all of the language used and how just the smallest bit of analysis exposes how incoherent, how hypocritical, and ultimately, how clearly false all of the right’s rhetoric around abortion really is.

Carlin talks about the right-wing concept of “conception of life.” How the “fertilized egg” is supposedly a child. After riffing on how problematic and untrue that is, Carlin makes the point that the majority of a person’s “fertilized eggs” end up being flushed out during the menstrual cycle, “So basically what these anti-abortion people are telling us is that any woman who's had more than one period is a serial killer.” He also reminds everyone that Catholics are some of abortion’s biggest opponents, and also one of the biggest opponents of homosexuals and homosexuality. “Well who has less abortions than homosexuals? Leave these fucking people alone for Christ's sakes. Here is an entire class of people guaranteed never to have an abortion and the Catholics and Christians are just tossing them aside—you'd think they'd make natural allies.”

Christine Pelosi talks about the Supreme Court's leaked decision on Roe v. Wade, and what Democrats are doing now, on Daily Kos’ The Brief podcast

Carlin pokes a bit more at the hypocrisy of the church in this regard, and then zeroes in on the phraseology used by the so-called “pro-life” movement. Specifically, Carlin wants to understand the term “sanctity of life.”

CARLIN: Well I mean, life is sacred? Who said so? God? Hey, if you read history you realize that God is one of the leading causes of death. Has been for thousands of years.

In fact, Carlin argues, so many different religions have used “God” to justify killing others that killing might be considered part of His brand. But beyond all of that, beyond the preaching about the “sanctity of life,” Carlin wants to know: Where do we practice what we preach? Which brings us back to the anti-abortionists:

CARLIN: Boy these conservatives are really something aren't they? They're all in favor of the unborn. They will do anything for the unborn, but once you're born you're on your own. Pro-life conservatives are obsessed with the fetus from conception to nine months. After that they don't want to know about you. They don't want to hear from you. No nothing. No neonatal care, no daycare, no head start, no school lunch, no food stamps, no welfare, no nothing. If you're pre-born you're fine. If you’re preschool you're fucked!

Then Carlin moves on to when conservatives remember you’re alive: when you get to military age and they can send you off to kill and be killed. “These people aren't pro-life, they're killing doctors. What kind of pro-life is that? They'll do anything they can to save a fetus but if it grows up to be a doctor they just might have to kill it.” And finally, Carlin, at his greatest, synthesizes it down to the essence: “They're not pro-life. You know what they are? They’re anti-woman.”

You can watch the entire eight-minute chunk below. Enjoy.

Warning: some bad language and adult content.

The 2024 election begins as a high-stakes staring contest.

President Joe Biden and former President Donald Trump have both told aides and confidants that they’re more likely to run for the White House next cycle — and confident in their chances of winning — if the other runs, too. But as each camp gears up for a rematch of the bitterly contested 2020 contest, there remains a small hiccup: Neither is inclined to take the plunge first.

It’s a game of political chicken that — as described by more than a half dozen advisers to the two men — has largely frozen the field among Democrats and Republicans alike, raising questions about the future health of two parties being led by a pair of candidates who, by that Election Day, would have long ago celebrated their 75th birthdays.

“It’s a very unusual situation where there are people in both parties who would likely clear the field, and for the first time in modern history we might not have a very competitive primary on either side,” said Alex Conant, a Republican strategist who was a senior adviser on Sen. Marco Rubio’s presidential bid. “So it’s hard to think of what that would look like other than it being a brutally long election campaign.”

Inside the White House, for now, it’s all systems go for 2024. An official decision has not been made and may not for some time, according to three administration officials not authorized to discuss private deliberations. But Biden has repeatedly said he plans to seek reelection, and White House aides and Biden advisers are taking initial steps to mount a bid, believing he has a strong record and would overcome intraparty concerns about his age — on Election Day 2024 he will be just shy of 82 — and shaky poll numbers.

He has little choice to say otherwise; an admission that he was making himself a lame duck would dramatically curb his political power. Some Democrats have expressed private hope that Biden will make his final decision soon after this November’s midterms, giving the party plenty of time to prepare for what would likely be a wide-open primary if he opts not to run.

But presidents often wait until after the midterms to declare a reelection candidacy, in part because of the campaign finance restrictions that doing so would bring. On a personal level, moreover, acting promptly is not a Biden strength, sparking fear within the party that an announcement could be delayed until deep into 2023. The one factor that could hasten a decision and all but certainly ensure that Biden runs again: if Donald Trump says he will, too.

The current president has had repeated conversations with allies that he would need to run again to prevent Trump from reclaiming the Oval Office. Like he did in 2020, Biden views Trump as an existential threat to American democracy. And like he did in 2020, Biden thinks he’s the only one who can beat him. He plans to more aggressively target Trump as the midterm season approaches — both as a means of turning around his party’s standing for the midterms but also to set up a contrast for the future.

“This MAGA crowd is really the most extreme political organization that's existed in recent American history,” Biden said on Wednesday.

But Trump is in no hurry to move first. He has hinted strongly that he will run again, but advisers don’t expect a decision until much closer to the midterms. Barely a year since leaving office in disgrace, Trump has enjoyed reclaiming his perch atop the GOP and playing kingmaker in the primary season — as reinforced by J.D. Vance’s victory Tuesday in the Ohio Senate GOP primary. But he has not committed even privately to running himself. And he has admitted that he is hesitant to announce soon, because once he does he would be restricted in how he could utilize and coordinate with certain political committees tied to him.

Even his closest allies are left to read the tea leaves. Trump’s enthusiasm to hold rallies, his flirtations with a 2024 run in media interviews, and his super PACs’ deep coffers, advisers say, are all signs he is likely to run again. But he also remains obsessed with relitigating 2020 more so than taking concrete steps to prepare for 2024. Relatedly, they add, he would likely jump into the fray if assured that Biden was running too.

“Biden running helps shape his decision. I think it’s an opportunity to avenge a loss and right a wrong, whereas if there was a younger candidate, I don’t know how motivated he’d be,” said a former adviser to Trump.

The potential rematch would have only one historical parallel. In 1888, President Grover Cleveland’s reelection bid was toppled by Benjamin Harrison. But four years later, Cleveland defeated Harrison in their rematch, becoming the only president to serve two non-consecutive terms.

Trump’s pollster, John McLaughlin, said his firm’s surveys show that the 45th president is favored to walk in Cleveland’s dusty footsteps. An April nationwide poll of likely voters by McLaughlin & Associates showed Trump with 50 percent support compared to Biden’s 43 percent. Other national polls have shown a tighter race, but polling this far out is functionally pointless in predicting a race.

“If they keep attacking him, he’ll run,” McLaughlin said. “If they keep trying to attack him and his supporters — Trump’s the type of person where if you tell him he can’t do something and if you personally keep attacking him, he’s going to try to prove you wrong.”

But some Trump allies believe he may ultimately opt against a run, either for health reasons or, if Biden’s poll numbers rebound, because he doesn’t want to risk a second loss, even though he has yet to acknowledge the first defeat.

So far, a slew of prominent Republicans have begun making overt moves to run in 2024. Whether they will abandon their own White House dreams if the former president were to run again is another matter entirely.

Former Vice President Mike Pence, former Secretary of State Mike Pompeo and Sens. Tom Cotton (R-Ark.) and Ted Cruz (R-Texas) are among those who made appearances in early voting states, and some have started securing top political consultants. Former U.N. Ambassador Nikki Haley has hinted she’d mount a bid but wouldn’t run against Trump if he decides to enter the race. Arkansas Gov. Asa Hutchinson has suggested he may run even if Trump does. And there is Florida Gov. Ron DeSantis, who has emerged as an heir-apparent to Trump and the populist MAGA movement.

Things may be just as uncertain on the Democratic side of the ledger. If Biden opts against seeking reelection, the field may not clear out for Vice President Kamala Harris, who has yet to find her political footing in the role. Two 2020 candidates, Sens. Elizabeth Warren (D-Mass.) and Cory Booker (D-N.J.), each have held recent high-profile events on hot button election topics.

If Biden opts to seek a second term, a serious primary challenge would be unlikely.

"Everything is frozen until after the midterms. I expect Biden to run, I hope he runs. And I think if there is a credible primary challenger against Biden there is almost a certain Trump victory,” said Paul Begala, former senior adviser to President Bill Clinton.

Historically, incumbent presidents have a losing track record if someone from their own party poses a significant challenge: Gerald Ford in 1976, Jimmy Carter in 1980, and George H.W. Bush in 1992 all held off their primary opponents but emerged wounded and later would lose the general election.

During the 2020 campaign, there was some idle chatter in Biden’s campaign of making a one-term pledge, becoming a “transitional” president who would rid the nation of Trump and then usher in a new era of Democratic leaders. But those ideas were dismissed even before Biden took the oath of office.

Still, some allies and Democrats privately worry that Biden may not be able to handle the rigors of another campaign.

A bone he broke in his foot while playing with his dog in late November 2020 still occasionally bothers Biden, resulting in a slower and shorter gait. And the White House has largely abandoned using the Oval Office for press events in part because it can’t be permanently equipped with a teleprompter; Biden aides prefer the fake White House stage built in the Old Executive Office Building next door for events, sacrificing some of the power of the historic backdrop in favor of an otherwise sterile room that was outfitted with an easily read teleprompter screen.

And if Biden were to run again in 2024, it almost certainly would be a more rigorous campaign than the one he previously mounted. The outbreak of Covid kept Biden in his Delaware home for much of the 2020 general election campaign, sparing him the wear and tear of relentless travel.

As for Trump, the issues are not related to physical health so much as psychological conditioning. He wants to run, those who know him say, but wants to be sure he will win.

"I always said that he would run if Biden is under 44 or 43 [percent] but if Biden is at 46, 47, he will pass,” said Bryan Lanza, a GOP strategist and former Trump campaign official. “Right now he is at 41 so I have to say yes right now — there has to be a dramatic turning out in Biden numbers for him to pass."

Does Justice Alito’s draft opinion hint at future rollbacks on marriage equality, birth control, and other issues?

After Roe, what’s next for this Supreme Court?

That’s a question on a lot of people’s minds as the dust settles from Monday’s Politico story, prompted by a leaked draft opinion by Justice Samuel Alito, that the Supreme Court is poised to overturn Roe v. Wade.

A ruling of this magnitude is not just about the short term, however. Although Alito took pains in his opinion to state that the rationale for striking down Roe is limited to just the abortion issue, the willingness to disregard decades of settled law has certainly prompted speculation on what else might be in the Court’s sights. Is it possible that the legal foundation for other rights — like marriage equality, for example — will be targeted next by the conservative-dominated Court?

To get some answers, I reached out to nine legal experts and asked them to step back from the news and look ahead to where the emboldened Supreme Court majority may be taking the country. Their full responses, edited for clarity and length, are below.

Melissa Murray, law professor, New York University

Although Justice Alito insisted that the draft opinion’s antipathy for settled precedent was limited to abortion, the opinion was littered with casual references to Lawrence v. Texas, a 2003 decision decriminalizing same-sex sodomy; Obergefell v. Hodges, a 2015 decision legalizing same-sex marriage; Griswold v. Connecticut, a 1965 decision that legalized contraceptive use; and Loving v. Virginia, the 1967 decision legalizing interracial marriage.

More ominously, in a passage emphasizing judicial restraint, Justice Alito underscored that “respect for a legislature’s judgment applies even when the laws at issue concern matters of great social significance and moral substance.” It doesn’t take a clairvoyant to get the gist of this. What issues, beyond abortion, are leavened with “great social significance and moral substance”? Marriage, contraception, and the panoply of “heart and home” rights that scaffold our intimate lives.

Like the abortion right, these rights are implied from the 14th Amendment’s guarantee of liberty and the notion of constitutional privacy. And like abortion, they will come under fire as conservatives cast about for their next constitutional crusade.

Ciara Torres-Spelliscy, law professor, Stetson University

Justices who comprise the conservative majority on the Supreme Court have long been hostile to the right to privacy that was articulated in Griswold v. Connecticut, which protects the right to use contraception. Strict textualist justices claim the word “privacy” is not in the Constitution and thus the right to privacy does not exist.

This is the same rhetorical move that Justice Alito makes in his leaked opinion overturning Roe v. Wade. He claims that because the word “abortion” is not in the Constitution ... consequently the right to abortion does not exist.

The problem for our modern society is that many rights we care about have been protected as progeny of Griswold. This decision also gave us Loving v. Virginia, which invalidated an anti-miscegenation law, as well as Windsor and Obergefell, which articulated a right to marriage equality for same-sex couples.

After this [opinion], Loving, Windsor, and Obergefell are all on constitutionally thin ice. And the frustrating thing is Justice Alito’s ignoring the Ninth Amendment, which protects Americans’ unenumerated rights. As Roe recognized 49 years ago, the right to abortion is protected by the Ninth Amendment.

Or at least it did until this opinion becomes the law of the land.

Diane Marie Amann, law professor, University of Georgia

“Now let’s do guns.” Those words jumped to mind on reading the leaked draft that Roe v. Wade must be overruled because its reasoning is “remarkably loose” (a telling phrase in an opinion that would strip away the right to end unwanted pregnancies).

It was not until 2008 and 2010 that the Court held, for the first time in its two centuries, that “the right of the people to keep and bear arms” means that every person may possess a firearm — and that this is the very kind of “liberty” which the draft would deny to pregnant persons. Judicial sparring leaves those gun cases wide open for critiques that they are, to quote the draft’s deprecation of the abortion precedents, “egregious,” “wrong from the start,” and “disruptive,” with “damaging consequences.”

But rather than revisit those holdings, a justice endorsing the views of this draft likely will question invocations of “liberty” in matters of a more personal nature. At risk are intimacy, marriage, and forming of families — basic human dignities that recent Court decisions reaffirmed for queer and straight persons alike.

This draft purports to follow “deeply rooted traditions” on “liberty” that arose no later than 1788 — not the Constitution’s greatest moment. Its 13th Amendment did not outlaw slavery for another 77 years. Fully 132 years passed before its 19th Amendment gave voting rights to those whom this draft targets: women.

In overturning Roe by resorting to a time when women were allowed no status in America’s public sphere, the draft puts that very status in jeopardy.

Tom Ginsburg, law professor, University of Chicago

The nuclear option for American democracy would be to overturn Arizona State Legislature v. Arizona Independent Redistricting Commission, the 2015 case that affirmed the constitutionality of non-partisan commissions for congressional redistricting, some version of which is found in 13 states.

Political scientists have affirmed that when redistricting is undertaken outside the legislature, elections are more representative and responsive to changes in public opinion. But the 2015 case was decided on a 5-4 vote, with Anthony Kennedy in the majority. Roberts dissented and so one must worry that the current GOP-appointed majority will insist on a literalist interpretation of the Constitution.

Ultimately such a reading might even allow state legislatures to substitute their own set of electors for those chosen by the voters, which was proposed in the Arizona legislature after January 6. Overruling Arizona Redistricting would be a body blow to American democracy and the tradition of state-level experimentation. Perhaps unlikely, but the stakes are enormous.

Ric Simmons, law professor, the Ohio State University

Justice Alito’s draft decision is well-argued and is consistent with the originalist philosophy now dominant on the Court. The only weak part of his argument was his claim that this decision will have no effect on other precedents that also rely on similar legal principles.

Many of these precedents — such as the right to contraception — are now indeed going to be re-examined and perhaps overruled because of this decision. However, the decision in Obergefell that guarantees a right to same-sex marriage is likely to be safe. Even if that decision now rests on shaky legal ground, the Court will still consider the principle of stare decisis [which basically means that the Court will defer to legal precedents].

Justice Alito argues that the argument for stare decisis is not especially strong for Roe, because its holding — with ambiguous terms and shifting standards — was unworkable, and there were no strong reliance interests in the case — that is, people had generally not organized their lives in irrevocable ways because of the right to abortion. Obergefell is very different: its holding is extremely simple and workable and, most importantly, hundreds of thousands of couples have now relied on the ruling in order to marry and start families. Thus, overruling Obergefell would be a much greater challenge to the principle of stare decisis.

It is also important to note that even if some of the prior decisions establishing constitutional rights are overturned, that does not mean that there will be an appetite in the state legislatures to ban such practices. We know this will happen with abortion laws because the country has never reached a consensus on the abortion issue. But it is unlikely that many — if any — states will now rush to ban contraceptives, or even ban same-sex marriage, given the high level of consensus that the country has reached on those issues.

Mark Tushnet, law professor, Harvard University

Just to lay out why doctrinally the draft opinion’s approach threatens LGBTQ+ and other unenumerated rights: According to the draft, the only unenumerated rights that get special protection are those that have strong foundations in history and tradition. If a right doesn’t have that foundation, it’s an “ordinary” right that legislatures can override or regulate if they have a “rational basis” for doing so. In the abortion context, the opinion says, the fact that abortion involves what a legislature can believe is a (potential or full) human life provide such a basis.

LGBTQ+ rights don’t have strong foundations in history and tradition and so are “ordinary” rights. The draft opinion says, We aren’t saying anything about such rights because abortion restrictions/regulations deal with the interest in protecting life. But that’s not responsive to the argument that the opinion threatens LGBTQ+ rights because the opinion does imply that such rights can be restricted/regulated if there’s a rational basis for doing so.

Pointing out that there’s a rational basis for restricting/regulating abortion doesn’t tell you anything about what might count as a rational basis for regulating/restricting other unenumerated rights.

Victoria Nourse, law professor, Georgetown University

Some journalists confessed shock at the Supreme Court’s leaked opinion overturning Roe. It should not shock. The “judicial philosophy” or textualist method is well-known. The word “abortion” is not in the Constitution — end of case. Lots of words are not in the Constitution, like marriage or contraception or education or living with your grandmother. Does that mean that a state can bar these things?

Well, I doubt the Court will reverse itself on such things. Textualism is often half-hearted, willing to say “here and no further.” Miranda rights are not in the Constitution, but I doubt the Court will get rid of them; Roe has always been the target of this judicial philosophy.

The much, much bigger problem lies in what effect this philosophy has outside the Court. The Court’s textualism has already led to extreme results. Half of Oklahoma is Indian territory, upending settled criminal law. The president has “all executive” power, which Donald Trump touted as a justification to overturn an election and fail to fund Ukraine — even though “all” is not in the Constitution. (Again, textualism is not consistent, it tends to pick and choose and even add to text).

And then there is the claim that the word “legislature” means that state courts cannot interpret election law, and was the basis for John Eastman’s plan to overturn an election. Textualism is a wolf in sheep’s clothing that has already endangered the Republic. No one should be surprised when Dobbs yields extreme anti-abortion laws in the states. The Court wants to get out of the abortion business, but that business is just beginning.

Aziz Huq, law professor, University of Chicago

In trying to understand what comes “next” after Dobbs, the leaked draft opinion by Justice Alito provides almost no guidance. True, it draws a line between abortion, and other fundamental rights related to intimacy, contraception, and marriage. But its reasons for doing so are embarrassingly bad: Abortion, the draft says, involves “moral” issues — as if forced sterilization and the punishment of private consensual conduct between adults didn’t!

But these token concessions to the practice of legal craft in the draft Dobbs opinion are likely beside the point: Inviting challenges to Roe, and in pressing for a maximalist rather than a minimalist ruling in Dobbs, the conservative Justices have been responding exclusively to cues in the larger conservative political movement. They are indifferent to the general public. Hence, the trajectory that the Court will take — and the dominos that are yet to fall — depend crucially on that larger movement and what it decides.

The last time that the Court was so closely aligned to a sectional movement during a polarized time was the 1850s. The decision throwing the Court’s lot in with that movement was Dred Scott, which eliminated Congress’s power to prohibit slavery in the territories and thus seemed to condemn the United States to being a slave state. Dobbs, in the starkness of its political alignment, is more akin to Dred Scott than any earlier opinion. It is a parallel that bodes ill for all concerned.

Susan Bloch, law professor, Georgetown University

I believe that this abortion decision suggests big trouble for all “right to privacy” cases, including the right to same-sex marriage recognized in Obergefell. The leaked draft opinion says that the right to an abortion in Roe is illegitimate because the Constitution is silent about abortion and that nothing in the text or structure of the Constitution supports a constitutional right to abortion.

The same can be said about the right to same-sex marriage or interracial marriage. The decision in Roe v. Wade energized the political right in 1973. The decision in the Mississippi abortion case — if it follows the leaked draft — better energize the political left. More is at stake than simply the right to an abortion.

Correction, May 5, 2022, 11 am: An earlier version of this story misstated in one instance the result of Loving v. Virginia. In its decision on that case, the Supreme Court struck down bans on interracial marriage.

“Automatic returns” could vastly simplify tax season for millions of people.

For many Americans, doing your taxes isn’t all that complicated. It’s just data entry.

The actual work of doing your taxes mostly involves rifling through various Internal Revenue Service forms you get in the mail. There are W-2s listing your wages, 1099s showing miscellaneous income like from one-off gigs, 1098s showing mortgage interest or tuition payments, etc.

But here’s the thing about those forms: The IRS has them, too. For many people, the IRS has all the information it needs to calculate their taxes, send taxpayers a filled-out return, and have them sign it and send it right back to the IRS if everything looks in order.

This isn’t a purely hypothetical proposal. Countries like Denmark, Belgium, Estonia, Chile, and Spain already offer such ”pre-populated returns” to their citizens. And a new paper estimates that at least 41 percent of American households — some 62 million tax filing units — could have their entire tax returns handled this way with no further intervention necessary.

Tens of millions of unnecessary returns

The paper is by four economists: Lucas Goodman and Andrew Whitten at the Department of the Treasury’s Office of Tax Analysis, Bruce Sacerdote of Dartmouth, and Katherine Lim of the Minneapolis Fed. Half the authors working at the Treasury helps explain the dataset the paper uses: a randomized, representative sample of actual tax returns filed in 2019. The IRS strictly regulates who gets to use this kind of granular tax data (it must be for tax policy work), but it’s a goldmine for those researchers.

In this case, the IRS data let the authors actually generate “pre-populated returns” for taxpayers, based on information the IRS already knew, and then compare those returns to the ones actually filed by taxpayers. If they match, that means a pre-populated return policy could work for that person.

“A pre-populated return is deemed successful if its calculated tax liability is approximately equal to the tax liability actually reported on the 2019 tax return,” the authors explain. This was one of two methods they used; the second sorted through the IRS returns looking for complications that would prevent a pre-populated return from being correctly compiled. That approach tended to produce higher estimates of how many returns could be put together automatically.

The former, more conservative approach found that 41 percent of returns, representing 62 million tax units, could have accurate returns pre-prepared by the IRS in this fashion. (A tax unit could be a single person, a single parent-headed family, a married couple and their offspring, etc. — whoever’s represented by the tax return.) The less conservative approach, counting everyone without complications that might prevent an automatic return, puts the number at 73 million returns, or 48 percent.

Pre-populated returns could also help people who aren’t currently filing taxes. In the US, many people are not required to file an income tax return, usually because they earn too little money to trigger that requirement or because the money they do get is from a partially exempt source like Social Security. But those people often would benefit from filing a return because of benefits like the earned income and child tax credits. Those credits are refundable, meaning that you don’t have to have a positive income tax burden to receive them; the earned income tax credit (EITC) in particular is designed to mostly go to low-income people who don’t earn enough to owe income taxes.

Despite those benefits, some 22 percent of eligible taxpayers don’t claim the EITC in a typical year; by one estimate, two-thirds of those not receiving the benefit didn’t get it because they didn’t file a tax return. The bundling of social assistance programs with a complex tax code places significant burdens on less-wealthy Americans trying to access those programs.

So the authors of the automatic filing paper estimated how many non-filers could get tax benefits under an automatic filing system. They estimate that 7.2 million tax units who aren’t required to file are owed refunds, averaging some $411 each. Those units would be likelier to get their refunds under a pre-populated filing system.

Ending tax returns … for everybody?

For the tens of millions of households for whom pre-populated filing works, it could be a huge leap forward. But 41-47 percent of households is not a majority, and in an ideal world, the other 53-59 percent of tax units would be able to benefit from a system like this too. So what are the barriers preventing them?

The paper’s appendix table A2 estimates the share of returns with different attributes that prevent a pre-populated return from working. The most common, affecting 16.2 percent of returns, is Schedule C or self-employment income: People have a different estimate for their earnings from self-employment or odd jobs than the 1099 forms sent to the IRS indicate. They might have significant business expenses or jobs that didn’t trigger a 1099 form that alter their actual taxes due.

The next most common, affecting 10.9 percent of returns, is itemized deductions. These have become much less frequently done since the standard deduction was increased by the Trump tax bill in 2017, but almost everyone who itemizes claims the charitable deduction or the state property tax deduction. Both of those rely on information that isn’t consistently reported to the IRS, so they can’t be included on pre-populated returns.

Both of those are tricky issues to get around. Especially with the rise of “gig economy” employers like Uber, Lyft, and DoorDash that issue 1099s and treat employees as contractors, more and more low-income people are relying on self-employment income where discrepancies can arise that make auto-filing impossible. You could resolve the itemized deduction issue by eliminating itemized deductions, but I somehow doubt the people whose taxes you’d simplify in the process would thank you for it.

Other problems, though, might be easier to fix. A significant share of taxpayers had wage income that was different from what their W-2 forms indicated; better wage reporting requirements for businesses might get around that. Difficulties determining what share of pension income is taxable also came up a fair amount, which a simpler pension taxation system might address. As a volunteer tax preparer, I’ve had pension issues come up a lot and our current system is mindbogglingly complex. I love thinking about taxes and, nonetheless, learning the “simplified method” for pension taxation made me want to die.

But even if “only” two out of every five returns can be done by the IRS automatically, it’s worth asking: why aren’t they? Even if “only” 62 million households would benefit, that would still save a huge amount of time and angst every year, and make tax season run much more smoothly.

The IRS estimates that the average non-business filer spends nine hours a year filing their 1040. Even if we assume returns capable of being auto-filled are less complex and only take half as long, that adds up to 279 million hours of life, or nearly 32,000 years of life, not wasted if 62 million filers were able to auto-file their taxes. Sounds nice!

The Republican Party is running a slate of “Big Lie” proponents for every available electable position in every state of the Union. The Colorado GOP has a real whose who of MAGA-supporters including suspected election fraud criminal Tina Peters. Peters is the Mesa County Clerk who broke security protocols and likely the law, by allowing Dominion voting machines under her purview to be tampered with. In between times being arrested, Peters is running for the secretary of state job in the hopes of hijacking the office that is investigating her election malfeasance.

But Peters isn’t the only piece of work running in Colorado on the MAGA-GOP ticket. Republican gubernatorial candidate Greg Lopez wants Coloradans to know that he too believes the election was stolen from Donald Trump, and has also pledged to pardon Tina Peters for all of her crimes, because what’s law and democracy got to do with anything in the GOP platform these days, anyway? Lopez is running against University of Colorado Regent Heidi Ganahl in the GOP primary, the winner will face off against Democratic incumbent Jared Polis.

On Tuesday, Next 9News’ Kyle Clark released his interview with candidate Lopez. Clark decided to ask real questions about Lopez’s apparent hypocrisy about almost everything he says and does, and boy, was the interview a doozy.

The interview opened with a question about the leaked Supreme Court decision set to overturn Roe v. Wade, and Lopez predictably said he agreed that the decision should be left up to the states to decide. When Clark followed that up by asking what that means to Lopez who is running to be the governor of the state, Lopez was vague saying that the state seemed to be making decisions, based on what Coloradans wanted. And while the decisions that have been made have been to try and codify the protection of a person’s reproductive rights, Lopez stayed as vague as a cowardly GOP politician can when asked hard, pre-election questions.

Christine Pelosi talks about the Supreme Court's leaked decision on Roe v. Wade, and what Democrats must do now, on Daily Kos’ The Brief podcast

Clark does a good job here of gently asking Lopez to clarify what the hell his position is in a state that has long supported the reproductive rights of its citizens. Clark then does a little two-step: while the overwhelming poll numbers and the democratically elected legislature have passed and continue to press for laws supporting reproductive rights, he thinks that might be a mirage. He would like to see a “conversation” about taking away abortion rights. Asked if he would like a state-side referendum where Coloradans vote on the subject, Clark quickly walks that wildly unpopular position back and says he would like a “statewide conversation” about what to do with these people and their wombs.

Lopez’s opponent, Ganahl, has already staked out the position that the recently passed and signed law protecting a citizen’s right to choose what to do with their body should be overturned. Lopez agrees but wanted to point out that the big problem is the language that life does not exist in “the womb of a female.” That’s how he put it. He then went on a circular semantic roller coaster when asked whether he would sign “an abortion ban” were he to become governor. After a long-winded pointless response, he said he would sign an abortion ban. That’s all Clark asked.

Clark followed that up with a reminder of the time Lopez was arrested for assaulting his then-pregnant wife.

Everybody deserves a second chance, yada yada yada. That’s fine, but don’t pretend that taking away a person’s right to govern their own body isn’t exactly what it sounds like.

Lopez then went on to make the claim that cutting taxes would be the best thing for Colorado. How would he make up the money in lost tax revenue? He wouldn’t need it, because “30% of the budget is fraud and waste,” and social programs and educational programs were a scam. Clark asked about the large education budget; Lopez pointed to outcomes being lackluster and proof of waste. You might wonder how cutting teachers’ budgets might help to increase the educational outcomes Lopez claims he wants. Easy: Bootstraps!

Lopez literally says that, “By allowing teachers to be creative.” He then goes on to say that the teachers’ unions need to be destroyed in order to free teachers from the oppression of unions. It’s such a gross set of statements about education it is hard to even watch.

From there, Lopez diagnoses the epidemic of fentanyl and opioid addiction with people being soft on crime. That’s it. It’s also because we don’t have a heavily Christian society anymore. “What,” you ask? Exactly. Writing out Lopez's half-statements is sort of like watching a dog with a dog whistle in its mouth trying to play a song.

After pressing Lopez on how having more police on the street to end drug addiction is truly preposterous, Clark wants to know why Mr. Lopez is against mail-in voting—something Coloradans have been doing since well before the COVID-19 pandemic. Lopez starts blathering about how Americans wait in line for a baseball game and how he’s proud to wait in line to vote. Clark then reminds Mr. Lopez that for the last 10 years, he, Greg Lopez, has voted by mail. Personally. Mr. Lopez has voted by mail for the last 10 years.

Lopez says he’s done “both.” And while he was fine using mail-in ballots for the last 10 YEARS, now he believes that “standing in line is more appropriate.” Listen, Mr. Lopez is a piece of shit. This is clear. But if you feel like that language is too strong, Clark reads a quote from Lopez that is a clear homophobic slam against Democratic Gov. Jared Polis, who is gay and married to another man.

“It’s time Colorado had a real First Lady again,” Clark reads. [There’s a good chance Lopez has made this similar statement more than once, but there’s also this version of the statement from a few weeks ago: “I think it’s time we had a real First Lady, don’t you?”] Clark asks Lopez why he “would introduce homophobia into the race for governor.” It is here that you really get to see the true cowardice of a craven Christian conservative.

Lopez: “It's interesting that you would even mention that word, because I didn't use it. I don't know how you connected my words to that sentiment that's the problem.” Let that sit there. This is a “man” who wants to pretend that there are defined gender attributes and God-given types of responsibilities for those genders, and yet by “his” own homophobic and sexist standards, he cannot even be “a man.”

It’s all hogwash of course, as the only gender anyone needs to worry about is whether or not a person has integrity or not. But, Lopez, like many operatives in his political party, only manifests the deepest levels of cowardice, hypocrisy, and lack of integrity. Lopez then follows up his cowardly display by hiding behind his wife, saying something about how long they have been married and how great he thinks she is.

Clark does a good job of telling Lopez that his response is at best disingenuous and everybody watching and everybody at the rally where Lopez gave his homophobic speech knew exactly what he meant. Lopez, on his heels, probably slipping in the metaphysical swamp of hell where he dropped his soul, attempts a weak attack on Clark for misleading the audience.

Like the rest of the country, Colorado has its work cut out in the fight to save our democracy from theocratic conmen like Lopez.

Support Colorado Democrats running against the anti-democracy MAGAness by contributing here

You can watch the whole 20-minute interview below.

RELATED STORY: Colorado governor signs bill guaranteeing the right to an abortion regardless of SCOTUS decision

RELATED STORY: Tina Peters was arrested twice last week. Now she’s running to control Colorado’s elections

GitHub, the code hosting platform used by tens of millions of software developers around the world, announced today that all users who upload code to the site will need to enable one or more forms of two-factor authentication (2FA) by the end of 2023 in order to continue using the platform. The Verge reports: The new policy was announced Wednesday in a blog post by GitHub's chief security officer (CSO) Mike Hanley, which highlighted the Microsoft-owned platform's role in protecting the integrity of the software development process in the face of threats created by bad actors taking over developers' accounts. "The software supply chain starts with the developer," Hanley wrote. "Developer accounts are frequent targets for social engineering and account takeover, and protecting developers from these types of attacks is the first and most critical step toward securing the supply chain." Even though multi-factor authentication provides significant additional protection to online accounts, GitHub's internal research shows that only around 16.5 percent of active users (roughly one in six) currently enable the enhanced security measures on their accounts -- a surprisingly low figure given that the platform's user base should be aware of the risks of password-only protection. By steering these users towards a higher minimum standard of account protection, GitHub hopes to boost the overall security of the software development community as a whole, Hanley told The Verge. "GitHub is in a unique position here, just by virtue of the vast majority of open source and creator communities living on GitHub.com, that we can have a significant positive impact on the security of the overall ecosystem by raising the bar from a security hygiene perspective," Hanley said. "We feel like it's really one of the best ecosystem-wide benefits that we can provide, and we're committed to making sure that we work through any of the challenges or obstacles to making sure that there's successful adoption."

Read more of this story at Slashdot.

No more abstractions. Force Republicans to defend the horrifying things they have planned.

Democrats need to offer a bigger response to relentless right-wing insurrectionism and culture-warring.

The extraordinary disclosure of a draft Supreme Court opinion that would overturn Roe v. Wade is giving liberal legal advocates nightmares that go well beyond the right to abortion.

While relegating Roe to the dustbin of history would be painful enough for many on the left, a raft of legal commentators declared Tuesday that Alito’s initial draft in the pending case on Mississippi’s 15-week abortion ban could set off a series of other setbacks to victories dating all the way back to the 1960s in pivotal cases over individual rights.

Liberals now warn that gay marriage, contraception and other rights rooted in a long-established constitutional protection for privacy could be threatened, based on Alito’s writing and reasoning in the draft opinion.

“Take this seriously,” former U.S. Attorney Joyce White Vance wrote on Twitter. “If Roe falls, rights that are further up that branch of the tree are also vulnerable.”

Former Sen. Claire McCaskill (D-Mo.) struck a similar note of alarm, warning that almost any right grounded in concerns about personal privacy was in jeopardy if an opinion like Alito’s becomes law.

“They kicked the ladder out from under the right of privacy in the Constitution,” McCaskill said on MSNBC. “There are a lot of decisions that rest on this right of privacy that springs not just from the Bill of Rights, but also the 14th Amendment and the concept of liberty in this country.”

Alito actually included in his proposed opinion a helpful list of rights arguably undercut by overturning Roe, even as the conservative George W. Bush appointee forcefully insisted that setting aside Roe wouldn’t impact any right other than abortion. The protections discussed in Alito’s opinion range from the right to same-sex marriage the high court declared in 2015 to the right to contraception established in 1965 to the right to engage in interracial marriage adopted by the court in 1967.

After citing 14 such cases, Alito declares them irrelevant to abortion and confidently asserts that yanking Roe from the fabric of American jurisprudence would pose no threat whatsoever to any of those rights.

“They do not support the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way,” Alito writes in the draft opinion published by POLITICO on Monday.

But many on the left simply don’t buy that. Among them is a prominent Delaware attorney: President Joe Biden.

“It would mean that every other decision relating to the notion of privacy is thrown into question,” Biden said in response to questions from reporters Tuesday, just after Chief Justice John Roberts issued a statement confirming the draft obtained by POLITICO is authentic.

“If the rationale of the decision as released were to be sustained, a whole range of rights are in question,” Biden added.

Biden specifically suggested that same-sex marriage could be again outlawed in some states if Alito’s view holds sway at the high court.

“Does this mean that in Florida they can decide they’re going to pass a law saying that same-sex marriage is not permissible, that it’s against the law in Florida?” the president said. “It’s a fundamental shift in American jurisprudence.”

Some court observers contend that Alito’s specific reasoning for dismantling Roe isn’t the only thing in the opinion that imperils other rights. Simply the act of overturning the 49-year-old precedent means that newer rights, like same-sex marriage, could meet the same fate.

“It’s both the reasoning and the very existence of this opinion that leave me completely unpersuaded that this majority would be willing to stop at Roe,” said University of Texas Law Professor Stephen Vladeck.

Vladeck also noted the recurring theme in Alito’s opinion that purported rights that aren’t firmly established in American traditions are inherently more suspect than those with a longer history.

“Even as the draft claims it’s limited to abortion, it’s focused on the pedigree of the right,” Vladeck said, adding that the same rationale “would apply in other contexts where the court has recognized other rights not sufficiently rooted in in American contemporary tradition to mollify the court.”

That would seem to put relatively recent decisions in the crosshairs, particularly Obergefell v. Hodges, the same-sex marriage ruling delivered just seven years ago.

However, some legal experts don’t think the slippery slope is all that slippery in practice because many of the rights Alito cites are no longer terribly controversial.

“There’s no national movement to overturn Obergefell,” said South Texas College of Law Professor Josh Blackman. “There is no jurisdiction in the country that wants to ban interracial marriage.”

Some analysts have dismissed the talk of sweeping impacts from overturning Roe as a classic “parade-of-horribles” argument — a tactic legal advocates use to argue that a decision will have effects that go far beyond the specific issue at hand.

In his draft, Alito seeks to preempt anticipated criticism from liberal justices by declaring that abortion “terminates ‘life or potential life’” and that none of the other rights cited involve such concerns. That may not be strictly true in the realm of contraception, but Alito proposes the court be explicit in declaring its ruling on abortion rights should never be construed to impact other protections.

“To ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right,” Alito writes. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

To some observers, that disclaimer is quite similar to the Supreme Court’s insistence in the case resolving the 2000 presidential election, Bush v. Gore, that the decision there was “limited to the present circumstances.”

Despite that caveat, lower courts have sometimes looked to the case for guidance. A couple of justices have cited it in individual opinions, although the court has yet to do so in a majority opinion.

While the chance of a post-Roe court going on a rampage against contraception or endorsing fresh bans on interracial marriage seem low, the implicit green light offered by overturning the half-century-old abortion decision could be too tempting for some state lawmakers to refuse.

“It’s a theoretical concern for the moment but I live in Texas and it’s not hard to imagine the Texas Legislature not being shy when it comes to pushing the envelope,” Vladeck said. “What a ruling like this does is get all of these politicians in red states to think: ‘What haven’t we done because we thought we couldn’t?’”

Twenty-two states have abortion bans that would become law almost immediately if a leaked Supreme Court decision on abortion rights goes into effect. Many of these state bans contain no exceptions for rape or incest survivors. Not so long ago, such exceptions were regularly included in proposed abortion bans, in part because they’re popular: For decades, about 75 percent of Americans have consistently told pollsters that abortion should be legal in cases of rape and incest. But many of the measures now set to take effect do away with such exceptions.

President Ronald Reagan detested abortion but endorsed exceptions for rape in the 1980s; George H. W. Bush, George W. Bush, and Donald Trump all also indicated their support for the measures. The National Right to Life Committee supported legislation that included exceptions in the 1990s. Even the Hyde Amendment, the federal law that prohibits federal funds from being used to pay for abortions, has long contained these exceptions.

In the past few years, though, the anti-abortion movement has moved in a different direction. In 2019, Alabama legislators passed an abortion ban that lacked rape and incest exceptions. Nine other states—Arkansas, Kentucky, Louisiana, Mississippi, Missouri, Ohio, Oklahoma, Tennessee, and Texas—have passed similar laws. Courts blocked all the laws but Texas’s; if Roe is overturned, it will be a felony for any Texas doctor to perform an abortion for a woman who was raped or impregnated by a family member. In March, Arizona Governor Doug Ducey signed an early-abortion ban without rape or incest exemptions.

[Michele Goodwin and Mary Ziegler: Whatever happened to the rape and incest exceptions?]

It’s rare that a majority of Americans agree on anything, and parties cut against popular opinion at their own risk. Even some Republicans with anti-abortion views might feel squeamish about laws that take such a rigid stance when it comes to cases of rape and incest. Laws like these “probably [have] a cost,” former Republican Representative Tom Davis of Virginia told me. “On the margins, that probably is not the politically wisest course.” But Republicans have plowed ahead anyway, confident that they’re on the right side of this issue not only morally, but politically. Maybe a lack of exceptions for rape is not the poison pill it once was. “We’ve seen state legislatures adopt restriction after restriction and ban after ban, and these legislators remain in power,” Elizabeth Nash, a policy analyst at the Guttmacher Institute, which supports abortion rights, told me. “It doesn’t feel like there are any consequences for them.”

Some abortion-rights proponents argue that to focus on rape and incest exceptions in abortion bans is to miss the point. Obtaining an abortion under a rape or incest exception is difficult. Many states require rape survivors to file a police report to qualify. “These exceptions don’t do the job that people think they’re going to do,” Nash said. But the trend toward blanket abortion bans signals a clear shift in the anti-abortion movement. Banning all abortions, even in cases of rape and incest, is ideologically consistent, the bans’ proponents argue: If abortion is murder, why would murder be acceptable in any instance? “We don’t issue birth certificates in the United States with a ratings system based on how someone was conceived,” Kristi Hamrick, a spokesperson for the anti-abortion group Students for Life, told me. “Clearly crimes must be fully prosecuted, and women [must be] helped. But we mourn as well for the preborn, who also suffer.”

[Caitlin Flanagan: The dishonesty of the abortion debate]

Forcing rape and incest survivors to carry pregnancies to term is unpopular, but it’s no longer an unusual proposal. One taboo, though, has endured: The anti-abortion-rights movement still seeks to portray itself as advocating for pregnant women, rather than seeking to punish them, and leaps into damage-control mode if its allies suggest otherwise. During his primary campaign in 2016, for example, Donald Trump suggested in a town-hall interview with MSNBC’s Chris Matthews that women should face “some sort of punishment” for obtaining an abortion. Republicans and leaders of the anti-abortion movement pushed back immediately. “No pro-lifer would ever want to punish a woman who has chosen abortion,” said Jeanne Mancini, the president of the March for Life Education and Defense Fund. “We invite a woman who has gone down this route to consider paths to healing, not punishment.” Trump, realizing that he had entered politically iffy territory, retracted his statement. So far, all of the abortion bans that would take effect under the leaked SCOTUS decision seek to punish providers, rather than people who seek out the procedure. But this political third rail may be losing its charge too. Several women have recently been arrested and jailed in cases involving self-induced abortions. “If abortion is murder, then women are hiring the hitmen,” Carol Sanger, a professor at Columbia Law School who studies reproductive rights, told me. “It’s not logically impossible to get to that position.”

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If the draft majority opinion by Justice Samuel Alito disclosed by POLITICO Monday night is any guide, the constitutional right to abortion has only a few days or weeks left to go. The most conservative majority of the Supreme Court that was, already a decade ago, arguably the “most conservative in modern history” has singled out Roe for excoriation and oblivion. But what marked out Roe to this fate, and not many other decisions? It is not the reasons provided in the draft Alito opinion: The explanation for Roe’s demise is to be found not in law, per se, but in the court’s entanglement in our pernicious moment of partisan hyperpolarization and the Republican Party’s inextricable link to anti-abortion politics.

Chief Justice John Roberts has acknowledged the document is authentic, and its style certainly suggests it is indeed by Alito. So, how does his rationale for overturning Roe stack up as a justification for a large, and likely convulsive, change in American society? The reasons flagged by the draft opinion fall painfully short. In fact, their profound weakness highlights precisely why Roe and abortion rights have been singled out. Go down the list of contentious legal questions, and it quickly becomes clear that conservatives do not follow Alito’s approach anywhere else besides Roe.

For instance, the draft majority opinion spills a good deal of ink on the history of abortion regulation in England and the United States (skimming over, as it does it, the considerable periods in which abortion was left to the free choice of women). But precisely this kind of appeal to a history of close regulation can be made in respect to the Second Amendment right to bear arms. As the legal scholars Reva Siegel and Joseph Blocher documented in extensive detail, there is a “centuries” old tradition of common law rules regulating weapons, especially when they are carried into the public sphere. This has not stopped the conservative justices from creating a novel individual right to bear arms and extending that right against both the federal and the state governments.

Next, the Alito opinion spends a good deal of energy shellacking the reasoning of Justice Harry Blackmun’s 1972 opinion in Roe v. Wade. The opinion, says Alito, is “hard to defend” and “egregiously wrong.” But by the very standards that Alito himself brings to bear, there are many opinions that are so “egregiously wrong” that they should be chucked out. And yet they awake nary a peek from our most conservative of courts.

To see this, it is helpful to see why Alito says Roe is wrong. The core of Alito’s argument is the idea that the Roe Court defined the “liberty” protected by the 14th Amendment at too high, and too abstract, a level of generality. It is, in other words, unanchored from the text of the Constitution. But let’s say we took seriously the idea that the court should avoid readings of the Constitution pitched at too high a level of generality, and not anchored in the text of the Constitution. What else would have to go?

The first thing to go would be the Roberts Court’s rulings on the so-called removal power of the president to oust agency heads, which has been used to attack the regulatory state. Next to go would be the court’s rulings that an ambient, unwritten principle of “state sovereign immunity” precludes all sorts of damages claims against the federal government. This despite the fact no such principle is mentioned in the Constitution. Ironically, Alito himself authored one such opinion almost exactly a decade ago. And third, consider all of the court’s campaign finance opinions: They interpret the word “speech” in the First Amendment at a highly abstract level to sweep in not just speaking but spending — a sleight of hand that would have seemed absurd in 1791.

Is the Supreme Court about to throw out its campaign finance jurisprudence, its special solicitude for the government’s purse, or raw presidential power? Don’t get your hopes up.

There’s more, but it’s embarrassing in its meagerness. Abortion, Alito says by way of example, is just different from other fundamental rights — including the right to marry and the right against involuntary sterilization — because it raises a “critical moral question.” The suggestion here is that miscegenation laws and state eugenics programs raise no “critical” moral issue. This is worse than absurd; it’s morally obscene.

The reasons Alito himself gives, in short, for singling out Roe cannot explain the decision to overrule that case. All apply equally to opinions that Alito and colleagues have embraced and enforced with vigor.

So what then is going on? The answer is embarrassingly clear. When Alito cautions against the injection of the justices’ own “ardent views” into the law, he skips over a fateful step. The problem with Roe and the draft Dobbs opinion alike is not that they are tainted with the tincture of the justices’ own views. Of course they are: Just notice Alito’s loaded pejorative talk of “abortionists” if you were doubtful on this score.

No, the problem is that the sole explanation for the disparate anger and disdain targeted at Roe is that that right to abortion has been the ardent target of key factions within the Republican Party for years. And the untimely death of Justice Ruth Bader Ginsburg allowed former President Donald Trump to deploy judicial appointments to deliver Roe’s execution notice in late 2020. When Justice Sonia Sotomayor pointed this out at oral argument in Dobbs, she was only stating what every single participant in the confirmation battles of the last several years well understood, and only the willfully blind could deny.

Indeed, what is striking about the modern Supreme Court is not so much that its members have “ardent views” but that those views reflect the immediate priorities of the Republican Party. Abortion, of course, is central to key religious elements of the Republican coalition, and thus an election issue of singular importance. But to make my point, a non-abortion example may be helpful: Until the Obama presidency, there was broad agreement among both liberal and conservative justices over the idea that courts should generally give federal regulatory agencies a great deal of leeway. But in 2016, the Republican National Committee included in its platform item an attack on such deference. In short order, the legal historian Craig Green has demonstrated, the attack was taken up by conservative think tanks, and then by conservative justices. On this issue, as on abortion, the arguments professed as law have nakedly partisan origins.

The tight linkage between the Republican Party and the conservative faction of the Court is not distinctive to these issues. But it is without precedent in recent American history. Political elites have long sought to appoint fellow travelers to the bench. But the present moment is fundamentally different because of the extraordinary combination of once-in-a-century partisan polarization with the unprecedented growth of an ecosystem of Republican interest groups and academics that have the justices’ ear.

Ironically, one of the reasons that Alito gives for killing Roe is that it had “damaging consequences.” Although the reader is left to guess what Alito thinks he’s talking about here, the very same can and will be said of this Dobbs opinion: It will serve as a proof text that this is no longer the Roberts Court; it serves quite another master.

[Under current Supreme Court precedent, the answer is probably "yes." But that precedent might not hold, thanks in part to Clarence Thomas.]

 

As you probably know by now, a leaked draft Supreme Court opinion indicates there may well be five justices prepared to overrule Roe v. Wade. For a long time, many assumed that if Roe were to be overruled, abortion policy would be "left to the states." That will indeed happen in the short run. But such a state of affairs might not last. Many Republicans have been advocating nationwide bans on abortion, including very sweeping ones that would forbid all abortions more than six weeks into a pregnancy.  For their part, many Democrats, including Senate Majority Leader Chuck Schumer, back nationwide legislation protecting abortion rights.

Would such laws be constitutional? I have written about this issue twice before (see here and here). The bottom line is that current Supreme Court precedent likely would enable Congress to ban most, if not all, abortions if it wanted to. That's because the Court has endorsed a ridiculously broad interpretation of Congress' powers to regulate interstate commerce. But that precedent might be pared back, thanks in part to that unlikely champion of abortion rights, Clarence Thomas.

Here's why current precedent likely supports broad congressional power to restrict abortion:

Under cases such as Gonzales v. Raich (2005), the Supreme Court has held that Congress' power to regulate interstate commerce includes the authority to restrict almost any "economic activity," so long as it has a "substantial effect" on interstate trade. And [in Raich] "economic activity" is defined very broadly to include anything that involves the "production, distribution, and consumption of commodities." That definition allowed the Court to use the Commerce Clause to uphold a federal ban on the possession of marijuana that had never crossed state lines or been sold in any market (even an intrastate one). Nearly all abortions involve the "consumption" and "distribution" of commodities, such as medical supplies. In addition, most abortions qualify as "economic" transactions because doctors, nurses, and others are paid to perform them.

One could argue that a federal law banning or severely restricting abortions isn't "really" aimed at regulating interstate commerce. The true motive would be to restrict abortion regardless of whether it involved interstate transactions or not. But much the same can be said for the marijuana ban upheld in Raich, and other federal laws enforcing the War on Drugs. They go far beyond targeting actual interstate trade in drugs, and instead forbid even in-state distribution and possession of illegal narcotics.

If, as is likely, the interstate abortion market expands in the wake of a Supreme Court decision overruling Roe, Congress could claim that suppression of intrastate abortions is necessary in order to enforce restrictions on those that involve crossing state lines. If abortion is banned in State A, but legal in neighboring State B, that creates an incentive for residents of A to cross into B in order to get abortions - even if the feds enact a ban on such crossing. That ban might be more effectively enforced if abortion were illegal in B as well as A…..

The Commerce Clause rationale for abortion restrictions might not apply to abortions that are performed on a noncommercial basis by staff who provide their services for free. But such cases are only a small percentage of the total. Moreover, in Raich, the Court upheld the ban on Angel Raich's possession of marijuana even though the producers had in fact provided it to her for free. The theory was that even such completely noncommercial production and distribution of an illegal drug could impact the interstate market.

These kinds of Commerce Clause arguments may strike some readers as the kind of sophistry that gives lawyers a bad name. I sympathize with that reaction! I hate these arguments myself, and have long argued that Raich is a terrible decision that should be overruled. But this is exactly the sort of reasoning that prevailed in Raich, and provides a constitutional rationale for much of the federal War on Drugs.

However, Raich has been much criticized by conservative and libertarian legal commentators, and is especially abhorred by Justice Clarence Thomas. He has also suggested, in a 2007 concurring opinion, that federal abortion restrictions may be beyond the scope of congressional power under the Commerce Clause. It is possible that one or more other conservative justices agree with him on this. A federal abortion ban could, therefore, be struck down by a coalition of conservative justices who oppose it on federalism grounds, and liberal ones who believe it violates constitutional individual rights. I outlined this scenario here:

In Gonzales v. Carhart (2007), the Supreme Court upheld a federal restriction on late-term "partial birth" against individual rights challenges. Justice Clarence Thomas wrote a concurring opinion emphasizing the possibility that the law in question exceeds the scope of congressional power under the Commerce Clause. Thomas previously wrote a forceful dissent in Gonzales v. Raich…. [In 2021], he reiterated key elements of his critique of that decision, and urged the Supreme Court to reconsider… it….

It's possible that one or more other conservative justices could join Thomas's reasoning.

One can then envision federal abortion restrictions getting invalidated by a coalition of conservative justices who believe they are beyond the power of the federal government, and liberal justices who object on individual-rights grounds. It is also possible (though less likely) that some liberal jurists could endorse the federalism argument against these restrictions. Liberal thinking on constitutional federalism shifted a good deal in recent years, and some of that shift may go beyond "fair weather federalism" brought on by opposition to Trump's policies. It's also possible that either liberal or conservative judges will think of clever ways to limit the scope of Raich, even if it doesn't get overruled completely.

Cynics may say that Thomas isn't really sincere in his opposition to Raich or his doubts about the constitutionality of federal abortion restrictions. I  cannot know his true feelings for sure. But, as a general rule, Thomas is known for being a man who says what he means and means what he says. He even often gets criticized for his apparent reluctance to compromise with other justices or respect their sensibilities. I also see little motive for him to express the above views if he doesn't really mean them. It's unlikely Thomas was trying to curry favor with liberals. If he truly valued such favor, he would say and do a lot of things differently.

Thus, if Congress does enact federal abortion restrictions, abortion rights advocates may well have a good chance of stopping them by relying on federalism arguments. In order to make the most of that opportunity, they would need to explicitly make that case and - ideally - ask the Court to overrule or severely limit Raich.

Attacking Raich and other ultra-broad Commerce Clause precedents may go against the  grain for some left-of-center abortions rights advocates. But immigration advocates have made a similar shift in sanctuary cities cases (with great success), and the pro-choice legal community could follow their example. For some pro-choicers - myself very much included! - the possibility that reducing Commerce Clause authority would weaken the War on Drugs would be a feature, not a bug.

In addition to using the Commerce Clause, federal abortion restrictions could also be enacted using Congress' spending power. I go through some of the details here:

In addition to trying to directly regulate abortion by using its Commerce Clause powers, Congress could also try to do so indirectly by using its Spending Clause power to condition grants to state governments. For example, it could enact legislation restricting various types of health care grants to state governments unless the latter ban or severely restrict abortion. These kinds of conditional spending restrictions are subject to a number of constraints under current Supreme Court precedent. The amount of money involved cannot be so large as to be "coercive"; the conditions must be sufficiently related to the purpose of the grant; and they have to be clearly stated on the face of the law - not just inferred by the executive branch. The Trump administration ran afoul of all three of these restrictions during its campaign to cut federal funds to "sanctuary cities…."

Much depends on the exact scope and wording of the legislation at issue. Nonetheless, I think a carefully drafted conditional-spending restriction on abortion rights could potentially jump through these hoops. Then, blue states would face a choice of either losing some of their federal health care grants or imposing abortion restrictions.

The Spending Clause approach is less threatening to abortion rights because states could…. avoid the conditions by refusing the federal funds tied to them. In practice, such refusals of federal funds are very rare. But a hot-button ideological issue like abortion might prove an exception to that rule.

I would add that the requirements of relatedness and noncoercion set a ceiling to the amount of pressure Congress could bring to bear in this way. It couldn't deny affected states all or most federal health care funding (that is precluded by NFIB v. Sebelius, which struck down as coercive a provision of the Affordable Care Act that would deny all Medicaid funds to states that refuse to expand Medicaid), and it cannot deny funds with little or no connection to abortion.

Some conservatives have argued that a federal law banning abortion might be authorized by Section 5 of the 14th Amendment, rather than the Commerce or Spending Clauses. But that would be a radical departure not only from current Supreme Court precedent, but also from traditional conservative originalist approaches to the Fourteenth Amendment. Co-blogger Jonathan Adler explained why here.

Obviously, the above constraints on federal laws banning abortion would also apply to federal laws seeking to protect it against the states. In the wake of a decision overruling Roe, conservatives and liberals alike may need to decide whether they care more about preserving the autonomy of "their" states, or about retaining the power to control the other side's states when their preferred party is in power in Washington. In both cases, however, even if some would prefer to preserve maximal federal power, there may well be others willing to file federalism-based lawsuits, regardless of what their ideological comrades think.

Finally, I should note the scenarios discussed above may not come to pass, because political obstacles may prevent Congress from enacting any significant new abortion legislation, whether pro-life or pro-choice. Doing so would likely require either a massive 60-vote Senate supermajority or the abolition or limitation of the filibuster. On the Republican side, federal abortion restrictions could be opposed by key moderate senators, such as Susan Collins and Lisa Murkowski (both of whom are pro-choice).

But while the obstacles to such legislation are significant, they may not be insuperable. If you believe that abortion is murder, you might well be willing to set aside the filibuster to ban it. Ditto if you think it's a fundamental human right, and only federal legislation can ensure its protection. If Roe does indeed get overruled, time will tell if major new federal abortion legislation is politically feasible or not. If it turns out that it is, there is a good chance it might be successfully challenged on federalism grounds.

UPDATE: Back in 2015, co-blogger Jonathan Adler also wrote a post explaining why federal abortion restrictions exceed the scope of Congress' powers under the Commerce Clause. I think he's overly optimistic when it comes to current precedent. But the kinds of arguments he marshals are the sort that might well be accepted by Justice Thomas and others if the issue were to come before the Supreme Court.

The post Could Congress Ban Abortion Nationwide if Roe Gets Overruled? appeared first on Reason.com.

“Pro-choice Republican” senators Lisa Murkowski and Susan Collins would have you believe that they didn’t see the immediate end of abortion rights coming. That they had absolutely no clue the Trump justices they were trading votes on (both voted yes on Gorsuch; Murkowski was “present” on Kavanaugh, yes on Barrett; Collins was yes on Kavanaugh, no on Barrett) would do something so radical. Never mind that the guy who nominated them promised as a Republican hopeful that the best way to end abortion in the U.S. was “by electing me president.”

Trump repeated that as the Republicans’ nominee. He promised in a debate that overturning abortion rights would “happen, automatically in my opinion” because of the Supreme Court candidates he would nominate.

There weren’t any secrets here about what he was doing, and what the people he was promising a very cushy job for the rest of their lives would do for him in return. (By the way, Collins refuses to say, even now, that she won’t support him in 2024.)

Nonetheless, both Collins and Murkowski are playing disingenuous today, following the leak of Alito’s draft opinion in the Mississippi case that will end national abortion rights. Collins released a statement expressing her total surprise. “If this leaked draft opinion is the final decision and this reporting is accurate, it would be completely inconsistent with what Justice Gorsuch and Justice Kavanaugh said in their hearings and in our meetings in my office,” Collins said.

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Never mind that Kavanaugh had already shown his stripes on overturning precedent on abortion and lots else—two full years ago! “Obviously,” Collins added, “we won’t know each justice’s decision and reasoning until the Supreme Court officially announces its opinion in this case.” Right. We’re totally in the dark about what the extremists on the court really intend to do, never mind that Alito put it all out there on paper.

Murkowski was little better. The leaked decision draft “rocks my confidence in the court right now,” she told reporters. Again, she and Collins are possibly the only two people in the abortion-rights community who did not see this coming. Or, that’s what she’d have us believe, anyway.

“Roe is still the law of the land,” she added, which is a good point. “We don’t know the direction that this decision may ultimately take,” Murkowski also said, resorting to remarkably obtuse again. “Sen. Collins and I in February introduced a bill that would codify Roe v. Wade. I thought it made sense then and I think it makes perhaps more sense now.”

About that bill. Yes, it’s better than what the Supreme Court is going to do, but it most certainly doesn’t not compare to the Women’s Health Protection Act, which they say “goes too far.” See, as far as these two “pro-choice” Republicans are concerned, pregnant people shouldn’t have a choice if someone in power decides that their abortion would infringe on someone else’s “religious liberty.”

They don’t believe a pregnant person should be able to get an abortion without being subject to laws forcing them to see anti-abortion propaganda before their procedure. They don’t believe pregnant minors should be able to conceal their abortions from parents or guardians, despite the potential risk to their personal safety at home.

That’s the substance of their supposed effort to preserve abortion rights. Swiss cheese. The context of this is that they know they can’t break a Republican filibuster on it. Their favorite partners in obstruction, Democrats Kyrsten Sinema and Joe Manchin, have already made that clear. Their statements in response to the leaked decision reiterate how important the filibuster is to “protect” reproductive health rights. Uh, huh.

None of this is to say that the extremist five who will overturn Roe and who knows what else in the coming months aren’t flat out liars. Because they are. But that character trait runs in Republicans, because Collins and Murkowski lied just as fervently when they said they believed this:

Which takes us back to this: the Supreme Court as it stands is illegitimate. It is full of liars, people who lied to the Senate under oath. Not to mention insurrectionists. It needs to be dealt with. It needs to be expanded.

And Collins and Murkowski either need to wake up to reality, or stop lying to their constituents. 

Republicans don't have to worry whether the public is on their side; they can win anyway.

The Court was the midwife of Jim Crow, the right hand of union busters, and the dead hand of the Confederacy, and is now one of the chief architects of America’s democratic decline.

Two events occurred Monday night — one historic, the other rather insignificant — which placed an unflattering spotlight on the Supreme Court of the United States.

The historic event was that Politico published an unprecedented leak of a draft majority opinion, by Justice Samuel Alito, which would overrule Roe v. Wade and permit state lawmakers to ban abortion in its entirety in the US. Alito’s draft opinion is not the Court’s final word on this case, Dobbs v. Jackson Women’s Health Organization, but the leaked opinion is the latest in a long list of signs that Roe may be in its final days.

The other event that also occurred last night is that I sent two tweets. One praised whoever leaked Alito’s opinion for disrupting an institution that, as I have written about many times in many forums, including my first book, has historically been a malign force within the United States. And a second celebrated the leak for the distrust it might foster in such a malign institution.

The former tweet was phrased provocatively, and it attracted some attention from those on the right, including Sen. Ted Cruz (R-TX). So let me clarify that I do not advocate arson as a solution to the Republican Party’s capture of the Supreme Court. I metaphorically compared the leak of Alito’s opinion to lighting the Court on fire because, as Chief Justice John Roberts noted in his statement on the leak, the Court has extraordinarily strong norms of confidentiality that it zealously protects.

The fact that someone inside the Court’s very small circle of trust apparently decided to leak a draft opinion is likely to be perceived by the justices, as SCOTUSBlog tweeted out Monday night, as “the gravest, most unforgivable sin.”

To this I say, “good.” If the Court does what Alito proposed in his draft opinion, and overrules Roe v. Wade, that decision will be the culmination of a decades-long effort by Republicans to capture the institution and use it, not just to undercut abortion rights but also to implement an unpopular agenda they cannot implement through the democratic process.

And the Court’s Republican majority hasn’t simply handed the Republican Party substantive policy victories. It is systematically dismantling voting rights protections that make it possible for every voter to have an equal voice, and for every political party to compete fairly for control of the United States government. Justice Alito, the author of the draft opinion overturning Roe, is also the author of two important decisions dismantling much of the Voting Rights Act.

This behavior, moreover, is consistent with the history of an institution that once blessed slavery and described Black people as “beings of an inferior order.” It is consistent with the Court’s history of union-busting, of supporting racial segregation, and of upholding concentration camps.

Moreover, while the present Court is unusually conservative, the judiciary as an institution has an inherent conservative bias. Courts have a great deal of power to strike down programs created by elected officials, but little ability to build such programs from the ground up. Thus, when an anti-governmental political movement controls the judiciary, it will likely be able to exploit that control to great effect. But when a more left-leaning movement controls the courts, it is likely to find judicial power to be an ineffective tool.

The Court, in other words, simply does not deserve the reverence it still enjoys in much of American society, and especially from the legal profession. For nearly all of its history, it’s been a reactionary institution, a political one that serves the interests of the already powerful at the expense of the most vulnerable. And it currently appears to be reverting to that historic mean.

Alito wants abortion supporters to play a rigged game

There have only been three justices in American history who were appointed by a president who lost the popular vote, and who were confirmed by a bloc of senators who represent less than half the country. All three of them sit on the Supreme Court right now, and all three were appointed by Donald Trump.

Indeed, if not for anti-democratic institutions such as the Senate and the Electoral College, it’s likely that Democrats would control a majority of the seats on the Supreme Court, and a decision overruling Roe would not be on the table.

So it is ironic — for that reason, and others — that Alito’s draft opinion overruling Roe leans heavily on appeals to democracy. Quoting from an opinion by the late Justice Antonin Scalia, Alito writes that “the permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.”

If Alito truly wants to put the question of whether pregnant individuals have a right to terminate that pregnancy up to a free and fair democratic process, polling indicates that liberals could probably win that fight on a national level.

In fairness, polling on abortion often misses the nuances of public opinion. Many polls, for example, allow respondents to say that they believe that abortion should be legal “under certain circumstances” or in “most cases,” leaving anyone who reads those polls to speculate under which specific circumstances people think that abortion should be legal.

Perhaps the best evidence that proponents of legal abortion could win a fair political fight, however, is the Supreme Court’s own polling. After the Court allowed a strict anti-abortion law to take effect in Texas last fall, multiple polls found the Supreme Court’s approval rating at its lowest point ever recorded.

But public opinion may not matter much in the coming political fight over abortion, because Alito and his fellow Republican justices have spent the past decade placing a thumb on the scales of democracy — making our system even less democratic than one that already features the Electoral College and a malapportioned Senate.

Alito authored two opinions and joined a third that, when combined, almost completely neutralize the Voting Rights Act, the landmark legislation that took power away from Jim Crow and ensured that every American would be able to vote, regardless of their race.

Similarly, the Court’s Republican majority held in Rucho v. Common Cause (2019) that federal courts will do nothing to stop partisan gerrymandering. Alito is also one of the Court’s most outspoken proponents of the “independent state legislature doctrine,” a doctrine that, in its strongest form, would give gerrymandered Republican legislatures nearly limitless power to determine how federal elections are conducted in their state — even if those gerrymandered legislatures violate their state constitution.

One of the most troubling aspects of this Court’s jurisprudence is that it often seems to apply one set of rules to Democrats and a different, more permissive set of rules to Republicans. Last February, for example, Alito voted with four of his fellow Republicans to reinstate an Alabama congressional map that a lower court determined to be an unconstitutional racial gerrymander.

In blocking the lower court’s order, Alito joined an opinion arguing that the lower court’s decision was wrong because it was handed down too close to the next election.

But then, in late March, the Court enjoined Wisconsin’s state legislative maps, due to concerns that those maps may give too much political power to Black people. March is, of course, closer to the next Election Day than February. So it is difficult to square the March decision with the approach Alito endorsed in February — though it is notable that the March decision by the Supreme Court benefited the Republican Party, while the previous decision was likely to benefit Democrats.

I could list more examples of how this Court, often relying on novel legal reasoning, has advanced the Republican Party’s substantive agenda — on areas as diverse as religion, vaccination, and the right of workers to organize. But really, every issue pales in importance to the right to vote.

If this right is not protected, then liberals are truly defenseless — even when they enjoy overwhelming majority support.

The Court’s current behavior is consistent with its history

In Marbury v. Madison (1803), the Supreme Court held that it has the power to strike down federal laws. But the actual issue at stake in Marbury — whether a single individual named to a low-ranking federal job was entitled to that appointment — was insignificant. And, after Marbury, the Court’s power to strike down federal laws lay dormant until the 1850s.

Then came Dred Scott v. Sandford (1857), the pro-slavery decision describing Black people as “beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect.” Dred Scott, the Court’s very first opinion striking down a significant federal law, went after the Missouri Compromise’s provisions limiting the scope of slavery.

It’s not surprising that an institution made up entirely of elite lawyers, who are immune from political accountability and cannot be fired, tends to protect people who are already powerful and cast a much more skeptical eye on people who are marginalized because of their race, gender, or class. Dred Scott is widely recognized as the worst decision in the Court’s history, but it began a nearly century-long trend of Supreme Court decisions preserving white supremacy and relegating workers into destitution — a history that is glossed over in most American civics classes.

The American people ratified three constitutional amendments — the 13th, 14th, and 15th — to eradicate Dred Scott and ensure that Black Americans would enjoy, in the 14th Amendment’s words, all of the “privileges or immunities of citizens of the United States.”

But then the Court spent the next three decades largely dismantling these three amendments.

Just 10 years after the Civil War, the Supreme Court handed down United States v. Cruikshank (1875), a decision favoring a white supremacist mob that armed itself with guns and cannons to kill a rival Black militia defending its right to self-governance. Black people, the Court held in Cruikshank, “must look to the States” to protect civil rights such as the right to peacefully assemble — a decision that should send a chill down the spine of anyone familiar with the history of the Jim Crow South.

The culmination of this age of white supremacist jurisprudence was Plessy v. Ferguson (1896), which blessed the idea of “separate but equal.” Plessy remained good law for nearly six decades after it was decided.

After decisions like Plessy effectively dismantled the Reconstruction Amendments’ promise of racial equality, the Court spent the next 40 years transforming the 14th Amendment into a bludgeon to be used against labor. This was the age of decisions like Lochner v. New York (1905), which struck down a New York law preventing bakery owners from overworking their workers. It was also the age of decisions like Adkins v. Children’s Hospital (1923), which struck down minimum wage laws, and Adair v. United States (1908), which prohibited lawmakers from protecting the right to unionize.

The logic of decisions like Lochner is that the 14th Amendment’s language providing that no state may “deprive any person of life, liberty, or property, without due process of law” created a “right to contract.” And that this supposed right prohibited the government from invalidating exploitative labor contracts that forced workers to labor for long hours with little pay.

As Alito notes in his draft opinion overruling Roe, the Roe opinion did rely on a similar methodology to Lochner. It found the right to an abortion to also be implicit in the 14th Amendment’s due process clause.

For what it’s worth, I actually find this portion of Alito’s opinion persuasive. I’ve argued that the Roe opinion should have been rooted in the constitutional right to gender equality — what the late Justice Ruth Bader Ginsburg once described as the “opportunity women will have to participate as men’s full partners in the nation’s social, political, and economic life” — and not the extraordinarily vague and easily manipulated language of the due process clause.

Indeed, one of the most striking things about the Court’s Lochner-era jurisprudence is how willing the justices were to manipulate legal doctrines — applying one doctrine in one case, then ignoring it when it was likely to benefit a party that they did not want to prevail.

In Hammer v. Dagenhart (1918), for example, the Supreme Court struck down a federal law that prohibited goods produced by child labor from traveling across state lines. The reason Congress structured this ban on child labor in such an unusual way is because the Supreme Court had repeatedly held prior to Dagenhart that Congress could ban products from traveling in interstate commerce — among other things, the Court upheld a law prohibiting lottery tickets from traveling across state lines in Champion v. Ames (1903).

But the rule announced in Champion and similar cases was brushed aside once Congress decided to use its lawful authority to protect workers.

The Court also did not exactly cover itself in glory after President Franklin Roosevelt filled it with New Dealers who rejected decisions like Lochner and Hammer. One of the most significant Supreme Court decisions of the Roosevelt era, for example, was Korematsu v. United States (1944), the decision holding that Japanese Americans could be forced into concentration camps during World War II, for the sin of having the wrong ancestors.

The point is that decisions like Alito’s draft Dobbs opinion, which would commandeer the bodies of millions of Americans — or decisions dismantling the Voting Rights Act — are entirely consistent with the Court’s history as defender of traditional hierarchies. Alito is not an outlier in the Court’s history. He is quite representative of the justices who came before him.

The judiciary is structurally biased in favor of conservatives

In offering this critique of the Supreme Court, I will acknowledge that the Court’s history has not been an unbroken string of reactionary decisions dashing the hopes of liberalism. The Court’s marriage equality decision in Obergefell v. Hodges (2015), for example, was a real victory for liberals — although, as several commentators have noted, there is language in Alito’s draft Dobbs opinion suggesting that, if Roe falls, LGBTQ+ rights could be next.

But the Court’s ability to spearhead progressive change that does not, like marriage equality, enjoy broad popular support is quite limited. The seminal work warning of the heavy constraints on the Court’s ability to effect such change is Gerald Rosenberg’s The Hollow Hope, which argues that “courts lack the tools to readily develop appropriate policies and implement decisions ordering significant social reform,” at least when those reforms aren’t also supported by elected officials.

This constraint on the judiciary’s ability to effect progressive change was most apparent in the aftermath of perhaps the Court’s most celebrated decision: Brown v. Board of Education (1954).

Brown triggered “massive resistance” from white supremacists, especially in the Deep South. As Harvard legal historian Michael Klarman has documented, five years after Brown, only 40 of North Carolina’s 300,000 Black students attended an integrated school. Six years after Brown, only 42 of Nashville’s 12,000 Black students were integrated. A decade after Brown, only 1 in 85 African American students in the South attended an integrated school.

The courts simply lacked the institutional capacity to implement a school desegregation decision that Southern states were determined to resist. Among other things, when a school district refused to integrate, the only way to obtain a court order mandating desegregation was for a Black family to file a lawsuit against it. But terrorist groups like the Ku Klux Klan used the very real threat of violence to ensure few lawsuits were filed.

No one dared to file such a lawsuit seeking to integrate a Mississippi grade school, for example, until 1963.

Indeed, much of the South did not really begin to integrate until Congress passed the Civil Rights Act of 1964, which allowed the Justice Department to sue segregated schools, and which allowed federal officials to withhold funding from schools that refused to integrate. Within two years after this act became law, the number of Southern Black students attending integrated schools increased fivefold. By 1973, 90 percent of these students were desegregated.

Rosenberg’s most depressing conclusion is that, while liberal judges are severely constrained in their ability to effect progressive change, reactionary judges have tremendous ability to hold back such change. “Studies of the role of the courts in the late nineteenth and early twentieth centuries,” Rosenberg writes, “ show that courts can effectively block significant social reform.”

And, while such reactionary decisions may eventually fall if there is a sustained political effort to overrule them, this process can take a very long time. Dagenhart was decided in 1918. The Court did not overrule it, and thus permit Congress to ban child labor, until 1941.

There are several structural reasons courts are a stronger ally for conservative movements than they are for progressive ones. For starters, in most constitutional cases courts only have the power to strike down a law — that is, to destroy an edifice that the legislature has built. The Supreme Court could repeal Obamacare, but it couldn’t have created the Affordable Care Act’s complex array of government-run marketplaces, subsidies, and mandates.

Litigation, in other words, is a far more potent tool in the hands of an anti-governmental movement than it is in the hands of one seeking to build a more robust regulatory and welfare state. It’s hard to cure poverty when your only tool is a bomb.

So, to summarize my argument, the judiciary, for reasons laid out by Rosenberg and others, structurally favors conservatives. People who want to dismantle government programs can accomplish far more, when they control the courts, than people who want to build up those programs. And, as the Court’s history shows, when conservatives do control the Court, they use their power to devastating effect.

This alone is a reason for liberals, small-d democrats, large-D Democrats, and marginalized groups more broadly, to take a more critical eye to the courts. And the judiciary’s structural conservatism is augmented by the fact that, in the United States, institutions like the Electoral College and Senate malapportionment give Republicans a huge leg up in the battle for control of the judiciary.

Of course I do not believe that we should literally light the Supreme Court of the United States on fire, but I do believe that diminished public trust in the Court is a good thing. This institution has not served the American people well, and it’s time to start treating it that way.

It involved setbacks, political power plays, and some pure luck.

The draft Supreme Court opinion that could overturn Roe v. Wade — obtained and published by Politico but not yet final — would be a seismic change in American jurisprudence, with massive implications for reproductive rights. So how did Republicans get in the position where they could pull it off?

It’s a lengthy, half-century saga that involved setbacks, political power plays, and some pure luck.

Much of what got the country to this point hinges on the identities of the nine specific people sitting on the Supreme Court: their personal views, decisions to retire, or their untimely deaths. Much also hinges on elections, namely, who’s in control of the presidency and Senate at the right time. The political power of the anti-abortion and abortion rights movements within their respective parties is also key: Can they bend the president to their will?

Three decades ago, Republicans came within a single vote of getting Roe overturned in the Supreme Court’s 1992 Planned Parenthood v. Casey decision. But they were thwarted, in part by the idiosyncrasies of the justices their own president had nominated, in part because Democrats controlled the Senate at crucial moments, and in part because the conservative legal movement simply wasn’t yet as powerful within the GOP as they are now.

As recently as early 2016, Republicans seemed in danger of losing their majority on the Court altogether. But a stunning confluence of circumstances over the next few years put the country on a very different trajectory. Trump won the presidency, Republicans held the Senate, anti-abortion activists were powerful enough to force the appointment of more reliable conservatives, and Justice Ruth Bader Ginsburg died months before Trump left office. The rights of millions may hinge on such contingent events.

Roe looked like it was doomed in 1992, but it survived another 30 years

The Supreme Court handed down its 7-2 Roe v. Wade decision protecting abortion rights in 1973. After that, the conservative backlash brewed. The parties polarized around the issue of abortion, with anti-abortion activists (often Catholic or evangelical Christian) demanding Roe be overturned, and Republican presidential candidates saying they agreed.

Those GOP presidential candidates won their elections. After Democrat Jimmy Carter’s one term in office (during which no Supreme Court vacancies opened up), Ronald Reagan and George H.W. Bush locked down the presidency for 12 years. They got to fill five Supreme Court seats in that span, and all of these appointees replaced retiring pro-Roe justices.

So by the time the Planned Parenthood v. Casey case brought abortion rights back in front of the Supreme Court in 1992, the math did not look good for Roe.

Yet it survived by a single vote, in a 5-4 ruling. And three Republican appointees turned out to be crucial in saving it.

Reagan came to office with a Republican-controlled Senate, but he picked the moderate Sandra Day O’Connor as his first nominee because he prioritized appointing the first woman justice over conservative credentials.

Democrats retook the Senate in the 1986 midterms, and when a seat opened up in 1987, they used the power of their majority to reject another Reagan nominee, the conservative Robert Bork. So Reagan ended up nominating Anthony Kennedy instead — a fateful switch.

Finally, Bush nominated David Souter in 1990, in part because his lack of a “paper trail” of controversial conservative statements would make him easier to confirm in the Democratic Senate.

If O’Connor’s, Kennedy’s, or Souter’s seat had been filled by a staunch conservative, like Justices Antonin Scalia or Clarence Thomas, who were also confirmed during this span, Roe would have been overturned in the 1992 Casey case. And the past 30 years of politics would have been quite different.

In part, this outcome hinged on the personal quirks of these appointees. But it also wasn’t an accident that Republicans kept failing to get further-right-leaning justices confirmed. On one hand, the conservative legal movement hadn’t yet attained enough power to fully control GOP presidents’ appointments. On the other hand, the Democratic Senate forced Reagan and Bush to compromise on several nominees.

The chaos that unfolded beginning in 2016 set the stage for Roe’s demise

Starting in the Clinton administration, the Court fell into a delicate balance that held for more than two decades. There was a majority of five conservative justices and a minority of four liberals, but the swing votes sided with liberals on certain key issues. President George W. Bush replaced O’Connor with the more conservative Justice Samuel Alito in 2006, but Kennedy remained in the swing vote position for more than a decade after that.

Retiring justices were usually replaced by people who ideologically resembled them. The four Democratic appointees confirmed during this period were consistently in favor of abortion rights.

So Roe lived on until 2016 shook up that balance.

The death of Justice Antonin Scalia opened up a new Supreme Court seat while Barack Obama was president. If the conservative Scalia could be replaced with a liberal, the balance of the Court would tip. There would now be five solid liberals, the first outright liberal majority in a half-century.

Except for one problem: Republicans had taken over the Senate in the 2014 midterm elections. This was the first Supreme Court vacancy to arise when the Senate and the presidency were controlled by opposite parties since the battle over Thomas’s seat in 1991. And partisan polarization had recently increased to a startling level.

Though previous Democrat-controlled Senates had rejected some nominees Republican presidents had put up for the Court, each debate was always about each specific nominee. GOP Senate Majority Leader Mitch McConnell, though, set a new precedent: He said he wouldn’t consider any nominee Obama put up. (He claimed this was because it was an election year, but if Scalia had died in 2015, he would likely have found some other pretext — the appointment was simply too important for conservatives.)

So McConnell’s Republicans kept the seat open. And then Donald Trump won the presidency in 2016, while the GOP held the Senate.

By this point, conservative legal movement activists had gained total dominance of their party on this issue, and Trump made it clear he would only put up nominees who had the enthusiastic support of the Federalist Society.

First, Trump kept Scalia’s seat in conservatives’ hands by appointing Neil Gorsuch. Then he got to replace Justice Anthony Kennedy, a Roe defender, with Brett Kavanaugh. The court remained 5-4 in favor of conservatives, but the swing vote — Chief Justice John Roberts — was now further to the right.

Depending on how Roberts eventually votes in Dobbs, that might have been enough to gut Roe, but CNN reports that he has been reluctant to outright overturn the precedent. So to fully clear Roe away with an emboldened opinion, one more justice, a 6-3 conservative majority, was necessary. That materialized when Ruth Bader Ginsburg died in September 2020, opening up a seat Trump filled with Amy Coney Barrett.

There are so many ways this could have turned out differently. Most obviously, if Hillary Clinton had won the 2016 election, Trump would not have gotten to fill those seats when he did. If Ginsburg had stepped down before 2014, a Democratic Senate could have replaced her. If Democrats had held the Senate in 2014, they could have confirmed a liberal justice to replace Scalia. If Democrats had retaken the Senate in 2018, they could have held Ginsburg’s seat open.

But Republicans won key elections at the right time, and the conservative legal movement had developed such an iron grip on the party that it could reshape the Court exactly how it wanted. It did. And we’re only just beginning to understand the consequences.

If reporting on the court's draft majority opinion is authentic, the Mainer feels misled.

The U.S. Supreme Court is poised to strike down a half century of precedent on abortion. We knew that was likely coming, but the leaked draft opinion by Justice Samuel Alito makes it starkly clear that the extremist court majority is laying down a foundation for an even more radical remaking of American society. The decision as Alito has written it takes aim as well at LGBTQ rights and marriage equality, legalized contraception, the right not to be forcibly sterilized, and interracial marriage. All lack “any claim to being deeply rooted in history,” Alito says.

That court majority is the result of a concerted effort by Mitch McConnell to pack the court. In an unprecedented and unprincipled and unconstitutional maneuver, he denied the duly elected President Barack Obama a Supreme Court seat. He was ruthlessly focused on this outcome: a court that would upend decades of progress for all American citizens who are not rich white males.

They’ve already eviscerated voting rights. All our other rights are going to start falling like dominoes now. This McConnell- and Trump-packed court is drunk on power and set to do what hard-right activists have been aiming to do for decades: cement the hard-right minority rule across the nation.

That’s the kind of single-minded ruthlessness we need to see from Democrats. So far, it’s missing.

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Majority Leader Chuck Schumer said on the Senate floor Tuesday morning that he will bring the Women’s Health Protection Act, legislation the House passed back in September to codify abortion rights, to the Senate floor. “A vote on this legislation is not an abstract exercise,” he said.

Except that it is. What makes it abstract is that it won’t pass without ending the filibuster, which won’t happen with the current 50-50 split and Joe Manchin and Kyrsten Sinema. What makes it abstract is that, even if it does pass, legislating Roe is not enough because of this:

Activist Trump judges would make damned sure that new law was stopped, knowing that the Supreme Court would uphold their decisions. Schumer ignores that reality, and isn’t actually looking at taking action that would safeguard our rights—fixing the Supreme Court—but taking action aimed at the next election. He said so. “The elections this November will have consequences, because the rights of 100 million women are now on the ballot.”

Meanwhile, Judiciary Chairman Dick Durbin told reporters that “there’s no discussion among Senate Democrats about expanding court, but there’s talk of other legislative action to respond to Alito draft opinion on Roe v. Wade.” Once again, legislation that would not survive with this Supreme Court.

Democratic leadership simply isn’t keeping up with reality. It’s going to take just as much creativity and ruthlessness as the right has shown to fix this, to save this country. Alito’s opinion, as drafted and there’s no reason to think it won’t be final, is an absolute clarion call for swift, dramatic action.

Even if that action fails in the immediate term, it’s what the American people need to see from Democrats. Voters need to see a fight. They need to know that Democrats will do whatever it takes to protect them.

What it will take isn’t even a radical thing—expanding the Supreme Court is perfectly constitutional. The court doesn’t have to be nine people. The seats on the court don’t have to be permanent. None of that is prescribed in the Constitution. Expanding and reforming the court is simply the necessary response to the very dire and imminent threat.

The last thing that we need to see from elected Democrats and the DNC, DCCC, and DSCC crew are appeals to vote harder and send more money. The case for why Democrats need to be elected in greater majorities is clear, but we need to see what Democrats are going to do with the blood, sweat, tears, and money we’re expected to pony up. Show us you’ll fight.

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If the court overturns abortion rights, the battle will soon come to some blue-leaning states.

PayPal helped spur a formal antitrust complaint against Apple and its iPhone payments system by raising concerns with the European Commission, Bloomberg reported, citing people with knowledge of the matter. From the report: European regulators hit Apple with a so-called statement of objections on Monday, arguing that the iPhone maker abuses its control over mobile payments. The complaint centers on the company reserving the iPhone's tap-to-pay abilities for its own Apple Pay service, rather than letting rival payment platforms use the feature. PayPal, which has its own payment service, was one of multiple companies making informal complaints about the situation to the commission, said the people, who asked not to be identified because the discussions were private. PayPal offers a tap-to-pay option on Android phones and wants to be able to offer the same feature on Apple's iPhone.

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According to The Wall Street Journal, a digital advertising network was selling precise movements of millions of users of the gay-dating app Grindr. The locations were available for purchase since "at least 2017," according to the report. Gizmodo reports: According to the Journal's sources, one of the company's old ad partners, MoPub (which was sold off by Twitter earlier this year), was freely passing off location data from the tens of thousands of apps that use place-based information to monetize. At one time, this included Grindr. Once in MoPub's hands, the Journal alleges that this data was sold off, in bulk, to other partners, like Near (formerly known as UM, and formerly formerly known as UberMedia). And Near offered up that data to just about anyone. Because data privacy laws in the U.S. are vague and chaotic where they exist at all, Near can pawn off data from its upstream partners out in the open. You, dear reader, could buy it yourself. "Grindr has shared less information with ad partners than any of the big tech platforms and most of our competitors, restricting the information we share to IP address, advertising ID, and the basic information necessary to support ad delivery," Grindr spokesperson Patrick Lenihan noted in a public statement. With all respect to Lenihan, that bar is extremely low. So-called "anonymous" data points like an ad ID or IP address can easily be tied back to a specific device, and the person who owns that device. By using "anonymous" data like this, advertisers can accurately surmise your workout routine, your favorite tunes, your immigration status and much, much more. "[A]bout one year ago, reports emerged that location data gleaned from the app was used to out a Catholic priest," adds Gizmodo. "The priest resigned, and Catholic news writers wrung their hands over the ill-gotten data source." "[T]he data used to out the priest was anonymized, legally speaking, but the middlemen were able to tie the Grindr-using device to a certain Grindr-using priest because the device was seen frequenting the priest's residence and lake house."

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The forced birth movement is thinking big now, having secured the U.S. Supreme Court and set up at least a dozen states to completely ban abortion as soon as the court overturns 50 years of precedence in Roe v. Wade. That’s not nearly enough for them, because it would mean that dozens of other states would still allow the practice and pregnant people would be able to travel to them for the procedure.

No, what they are aiming to do now is ban abortion nationally. The Washington Post reports that the big “antiabortion groups and their allies in Congress have been meeting behind the scenes to plan a national strategy that would kick in if the Supreme Court rolls back abortion rights this summer, including a push for a strict nationwide ban on the procedure if Republicans retake power in Washington.” Because of course it isn’t about states’ rights when it comes to abortion. It’s not about anyone’s rights.

Republican senators are, apparently, ready to go. According to a Post source in the forced birth movement, Iowa Republican Sen. Joni Ernst is going to introduce a national ban on abortion at six weeks in the Senate, though she didn’t confirm that with the paper. Sen. James Lankford (R-OK) was at the meeting in which GOP senators supposedly discussed this, and said he will support it. That’s the beginning. If Republicans regain Congress, it’s what they’ll push and, with the Supreme Court having already done its part and the power behind this movement solidified, GOP Senate Leader Mitch McConnell would just as likely end the filibuster to make it pass.

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What’s more, according to the Post: Forced birther Marjorie Dannenfelser, president of the Susan B. Anthony List, has been speaking with 10 potential Republican presidential candidates to get them on board. “Most of them, she said in an interview, assured her they would be supportive of a national ban and would be eager to make that policy a centerpiece of a presidential campaign.”

Kelley Robinson, executive director of Planned Parenthood Action Fund, is taking the “terrifying” threat of a national ban seriously. “By them saying out loud that their goal is to push a nationwide abortion ban, it makes it clear that we have to elect more pro-reproductive health champions on the national level and in the states,” she said.

Well, yes. But after the Democratic Party seemed to react to Texas’ six-week ban, the precursor to all of this, with a yawn, of course forced birthers are jacked and of course Republicans will fold to that small, extreme, horrifying base. All the way back in September 2021 the Supreme Court allowed the Texas ban to stand and all but end abortion in that state.

The response from Democrats has been underwhelming. There’s been little more than the usual platitudes from Democratic leadership about protecting the right to choose and absolutely no endorsement, or really even any talk, about the most important thing they could do right now to ensure that right: expand the courts.

Expand the district courts, the circuit courts and especially the Supreme Court to stop the radical right from imposing a right-wing evangelical dominionist hellscape across the land.

And while that’s not possible right now with an evenly divided Senate, run on it and work like hell to get a big enough majority in the Senate to make Joe Manchin and Kyrsten Sinema irrelevant, get rid of the filibuster, and save the country.

At the very least, run on all of this so that the majority of Americans—including the all-important and all-too-often taken for granted base—that Democrats are going to fight like hell to protect us. Don’t tell us you’re going to fight like hell. Do it.

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