Wednesday, April 18, 2007
Today’s decision is alarming. It refuses to take Casey and Stenberg seriously. It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG). It blurs the line, firmly drawn in Casey,between previability and postviability abortions. And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman’s health.
Ultimately, the Court admits that “moral concerns” are at work, concerns that could yield prohibitions on any abortion. See ante, at28 (“Congress could … conclude that the type of abortion proscribed by the Act requires specific regulation because it implicates additional ethical and moral concerns that justify a special prohibition.”). Notably, the concerns expressed are untethered to any ground genuinely serving the Government’s interest in preserving life. By allowing such concerns to carry the day and case, overriding fundamental rights, the Court dishonors our precedent. See, e.g., Casey, 505 U. S., at 850 (“Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.”); Lawrence v. Texas, 539 U. S. 558, 571 (2003) (Though “[f]or many persons [objections to homosexual conduct] are not trivial concerns but profound and deep convictions accepted as ethical and moral principles,” the power of the State may not be used “to enforce these views on the whole society through operation of the criminal law.” (citing Casey, 505 U. S., at 850)).
Revealing in this regard, the Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from “[s]evere depression and loss of esteem.” Ante, at 29.7 Because of women’s fragile emotional state and because of the “bond of love the mother has for her child,” the Court worries, doctors may withhold information about the nature of the intact D&E procedure. Ante, at 28–29.8 The solution the Court approves, then, is not to require doctors to inform women, accurately and adequately, of the different procedures and their attendant risks. Cf. Casey, 505 U. S., at 873 (plurality opinion) (“States are free to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning.”). Instead, the Court deprives women of the right to make an autonomous choice, even at the expense of their safety.9
Today, the Court blurs that line, maintaining that “[t]he Act [legitimately] appl[ies] both previability and postviability because … a fetus is a living organism while within the womb, whether or not it is viable outside the womb.” Ante, at 17. Instead of drawing the line at viability, the Court refers to Congress’ purpose to differentiate “abortion and infanticide” based not on whether a fetus can survive outside the womb, but on where a fetus is anatomically located when a particular medical procedure is performed. See ante, at 28 (quoting Congressional Findings (14)(G), in notes following 18 U. S. C. §1531 (2000 ed., Supp. IV), p. 769).
One wonders how long a line that saves no fetus from destruction will hold in face of the Court’s “moral concerns.” See supra, at 15; cf. ante, at16 (noting that “[i]n this litigation” the Attorney General “does not dispute that the Act would impose an undue burden if it covered standard D&E”). The Court’s hostility to the right Roe and Casey secured is not concealed. Throughout, the opinion refers to obstetrician-gynecologists and surgeons who perform abortions not by the titles of their medical specialties, but by the pejorative label “abortion doctor.” Ante, at 14, 24, 25, 31, 33. A fetus is described as an “unborn child,” and as a “baby,” ante, at 3, 8; second-trimester, previability abortions are referred to as “late-term,” ante, at 26; and the reasoned medical judgments of highly trained doctors are dismissed as “preferences”motivated by “mere convenience,” ante, at 3, 37. Instead of the heightened scrutiny we have previously applied, the Court determines that a “rational” ground is enough to uphold the Act, ante, at28, 37. And, most troubling, Casey’s principles, confirming the continuing vitality of “the essential holding of Roe,” are merely “assume[d]” for the moment, ante, at15, 31, rather than “retained” or “reaffirmed,” Casey, 505 U. S., at 846.
Thank God for the Re-Election of President George Walker Bush.
PS: Remember my mock report of the imposition of Curia on the Untied States? Well, the Kos Kids aren't joking.
Monday, April 16, 2007
In two posts, "Nine and Ten" and "MA v. EPA: To Be or Not to Be Soveriegn," Curtis tackles the question of state sovereignty.
For background: in a recent case, the the Supreme Court (happily but obviously politically) rediscovered the sovereign state right of Parens Patriae. In the case, the Supreme Court acknowledged that States have sovereign rights but that they do not have the power to pursue those rights. Therefore, the federal bench must be especially sensitive to state concerns.
The points that Curtis ,makes on his blog echo those of ,Alexander Chisholm, Executors v. Georgia (1793), a SCOTUS case from when Washington was President. (Indeed, it is so old that there was not even "majority opinions" yet!) The controversy has been irrelevent since Amendment XI was ratified in 1798, but it is important in this discussion for what the Justices thought of the sovereignty of states.
Selected quotations are below the fold, but if I may summarize the justices
- Chief Justice Jay: State sovereignty exists regardless of whether a state may be sued or not
- Justice Blair: State sovereignty is forfeited to the extent that the Federal government gained sovereignty
- Justice Wilson: Individual bind their sovereignty to the government, as states bind their sovereignty to the federal government
- Justice Cushing: Questions of sovereignty are philosophical and irrelevant.
- Justice Irdell: States are sovereign to the respect that the United States is not.
In other words, I think Curtis sums it up well when he writes:
Individuals are sovereign + States are sovereign + the Federal Government is sovereign... Individuals are quasi-sovereign + States are quasi-sovereign + the Federal Government is quasi-sovereign
Friday, April 06, 2007
I'm more sanguine about Massachusetts v. EPA (the "global warming case") than Ed Whelan. While the court's four liberal justices got the result they wanted (pushing the EPA closer to regulating CO2 emissions), they had to dig pretty deep into paleoconservatism for a justification how to do it. To get states-righters Anthony Kennedy's fifth and decisive vote, the court resurrected a rather hard-edged "Father of the People" interpretation of Amendment X.
In the case, the Court decided that because States are the Fathers of their People, but are unable to resort to armed invasion to protect their people, their pleas must be listened to more readily by the Court than if the States were just land-owning persons or societies.
Amendment X, the states rights amendment, maintains the United States as an open society. It allows the sort of local experimentation and resilient networking that makes the United States an exceptionally agile country.
Amendment X is also despised by tyrants of all stripes. Both Leftist and Rightist factions happily trample on the freedom of states and citizens in order to push their through own agendas . That the court's liberals are now retreating to Amendment X to defend their agendas is a good sign for freedom, liberty, and decentralized government.
Monday, April 10, 2006
"Sounds like the Big cheese admires Weeramanty," by Mark Safranski, tdaxp, 26 September 2005, http://tdaxp.blogspirit.com/archive/2005/09/23/use-of-force.html.
"Ginsburg discusses court integrity, Congress on campus visit," by Meredith Grunke, Daily Nebraskan, 10 April 2006, http://www.dailynebraskan.com/media/storage/paper857/news/2006/04/10/News/Ginsburg.Discusses.Court.Integrity.Congress.On.Campus.Visit-1803033.shtml?norewrite200604101541&sourcedomain=www.dailynebraskan.com.
Note: My source for this post is the Daily Nebraskan, the occasionally incoherent student publication of the University of Nebraska - Lincoln. Most of their time, such as with their publication of my dialog with Dr. Frances Kaye over ROTC, they get things right. Occasionally they don't. I am assuming that their reporting of a recent speech by a Supreme Court justice on our fair campus is accurate.
Ruth Bader Ginsburg wants to take over the world!
Wednesday, February 22, 2006
"Gonzales, Attorney General, et al. v. O Centro Espirita Beneficente Uniao do Vegetal et al.: On Writ of Certiorari to the United States Court of Appeals for the Tenth Circuit," by John Roberts et al, Supreme Court of the United States, 21 February 2006, http://www.supremecourtus.gov/opinions/05pdf/04-1084.pdf.
While not quite as succinct as Justice Antonin Scalia's criticism of international law, Chief Justice John Roberts has officially put "international law" in its place
John Roberts: Lord of International Law
Monday, October 31, 2005
* Alito wrote the opinion for ACLU v. Schundler (1999), holding that a holiday display on city property did not violate the Establishment Clause because it included secular symbols, such as a large plastic Santa Claus, in addition to religious symbols.
* A dissenting opinion in Planned Parenthood v. Casey, 947 F.2d 682 (3d Cir. 1991), arguing that a Pennsylvania law that required women seeking abortions to inform their husbands should have been upheld. As JudgeAlito reasoned, "[t]he Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands' knowledge because of perceived problems — such as economic constraints, future plans, or the husbands' previously expressed opposition — that may be obviated by discussion prior to the abortion." Chief Justice Rehnquist's dissent from the Supreme Court's 5-4 decision striking down the spousal notification provision of the law quoted Judge Alito's dissent and expressed support for Judge Alito's reasoning.
and from Outside the Beltway:
For a unanimous panel, upheld a lower-court order requiring a school district to allow a Bible-study group to set up an information table at an elementary-school back-to-school night. Reasoned that by preventing the group from displaying its literature, the district was discriminating on the basis of viewpoint. (Child Evangelism Fellowship of N.J., Inc. v. Stafford Township School District, 2004)
Dissented from a ruling by the 3rd Circuit as a whole that an elementary school did not violate the First Amendment rights of a kindergartener by taking down (and then putting back up) a Thanksgiving poster he'd made that said the thing he was most thankful for was Jesus. The majority decided to throw out the case on a technicality; Alito protested that the child's claim should go forward. (C.H. v. Oliva, 2000)
Dissented from a refusal to grant police officers immunity from a civil suit brought by a mother and her 10-year-old daughter who'd each been strip-searched because they lived in the home of a suspected drug dealer. Alito felt the police had behaved reasonably because the warrant led them to conclude that there was probable cause to search everyone in the house for drugs. (Doe v. Groody, 2004)
So a good guy. Alito is also a Catholic, which means that Bush has now replaced a Lutheran (Rehnquist) with a Catholic and now an Episcopalian/Anglo-Catholic with a Catholic. This should ease some of the criticisms of evangelical bias
The Volokh Conspiracy expands:
A Catholic Majority on the Court?:
There will be, if Alito is confirmed. This is an extraordinary development. It was, let's recall, only forty-five years ago that JFK's Catholicism was a major issue in a presidential campaign. As Ken Kersch and Philip Hamburger have shown, anti-Catholic sentiment played a large role in the development of modern establishment clause jurisprudence (in part through the influence of that old KKKer, Hugo Black). The leading separationist group after WWII was known as Protestants [now, Americans] United for the Separation of Church and State.
Captain's Quarters says:
Of course, the Democrats blew their one opportunity to get a moderate on the bench during the Bush administration by waiting until Miers withdrew before defending her. Prior to that, Charles Schumer and Pat Leahy took great pains to call her questionnaire response "insulting" and echoing conservative complaints that her resume seemed too lightweight for a nomination to the Supreme Court. Had they pledged to support her, Bush likely would have allowed her to coast through the hearings to a floor vote despite the dissatisfaction on the right.
(For the curious, Tom Barnett predicted this.)
To make it better, the one criticism CQ came up with is that he may be too libertarian!
DrumWaster has an even simpler formula for liking the pick:
I also heard Harry Reid is unhappy about this pick....makes me happy just to hear that. Heh.
Michelle Malkin notes that Confirm Them "if the Democrats staged a filibuster against Judge Alito or Judge Luttig because of their conservatism, 'the filibuster will not stand..'" tdaxp has written about Conservative judge victories in a strategic perspective, before.
TMH Bacon Bits links to Blogs for Bush's Confirm Alito Coalition
Thank you, President Bush.
Update: tdaxp's Washington correspondent Catholicgauze has two words to charges of a coming Catholic judicial theocracy: "Faster, please"
Update: Because of spam, I have ended trackbacks for this post :-(.
Saturday, July 23, 2005
Friday, July 01, 2005
As an old-style Conservative, O'Connor is often considered a "liberal" member of the court.
Bush will try to replace with her a Neoconservative, like Thomas, Rehnquist, or Scalia.
Let the war for the Supreme Court begin!
Tuesday, April 05, 2005
The Supreme Court expanded the scope of the landmark gender equity law Title IX, ruling Tuesday that it shields whistleblowers who accuse academic institutions of discrimination based on sex.
On its face it is a minor but important set-back. Title IX should be weakened, and I am happy Bush is doing so. Clearly SCOTUS's decision is a strengthening. But it gets worse. In other laws, Congress has to say whistleblowers are protected. Here, the Court just made it up.
Whistleblowers shouldn’t be given protection unless Congress explicitly says so, said Thomas and three other justices who voted no. They noted that other civil rights laws have specific provisions addressing retaliation.
“Jackson’s retaliation claim lacks the connection to actual sex discrimination that the statute requires,” Thomas wrote. “The question before us is only whether Title XI prohibits retaliation, not whether prohibiting it is good policy.”
Instead of interpreting the laws, the majority of the Court is making policy. It is ignoring its duty as interpreter of the laws as well as the will of the people as shown through Congress and the state Legislatures.
These sorts of rulings must be stopped. Continued control of the Congress and White House should give the Republicans enough time to restore respect to the judiciary.
Monday, March 28, 2005
This is an important post. I hope I do it justice.
Is this a conservative statement?
Actions taken according to the Way are more productive than actions against the Way.
Translate the Way (tao) as "nature", and you get:
Actions taken according to Nature are more productive than actions taken against Nature.
Of course it's conservative. The Revolution and the Constitution were actions taken according to Nature (and Nature's God), and they are the heart of Americanism.
Now, translate the original word of "Nature" (tao) literally according to John 14:6
Jesus answered, "I am the way and the truth and the life. No one comes to the Father except through me.
and you get
Actions taken according to Christ are more productive than actions taken against Christ
and you get a Cosmic and Biblical truism. So where's this going? Now translate "tao" as Forces of History
Actions taken according to the Forces of History are more productive than actions taken against Forces of History.
Suddenly (for me, a slow-on-the-uptake blogger) the capitulation of the post-War British Conservative Party and the Supreme Court's recent actions make a lot more sense
Retreating from untenable positions and "going with the flow" is a valid Conservative philosophy. Evolutionary shifting positiosn keeps a culture's vertical and horizontal controls appropriate to the situation. A king that has eyes but does not see will not make appropriate laws -- government and policies cannot be blind to reality.
This is why Conservatives embraced the post-War consensus. It appeared to be a new reality. The unique combination of rapid economic development, the colossal genius of Karl Marx, and the facile specious logic of Lord Keynes was a once in a millennium tragedy. The Conservative approach should have worked, as it did in most other times and places.
And finally, the point. The Conservative approach that ends abortion will be a Supreme Court decision invoking international law.
Mark at Zen Pundit alerted me to the Court's International Law-yering. My original response, while technically accurate, missed the point. The Court's actions should be viewed as Conservative. The youth execution case follows a similar logic. This is Global Roadsterism, which attempts to steer American law on a global path.
Was this conservative impulse behind with votes of the liberal justices -- Stevens, Souter, Ginsburg, and Breyer? Probably not, and I don't care. Conservatives control the Court. The liberal justices are merely tools of different Conservative factions.
And the upshot: this is how most abortions will be stopped in the United States. It is unlike the Neoconservative branch of the court will expand. Men like Scalia, Thomas, and Rehnquist are rare and they are opposed when their intentions are clear. Bush may get away with "saving" these three votes by appointing carbon-copy replacements, but he will not be able to repalce any of the other six like that. The replacement for a Stevens, a Souter, a Ginsburg, or a Breyer will be a Conservative, like O'Conner or Kennedy. A Global Roadster.
Death Punishers are losing the Supreme Court battles because they tide of years is against them. Ever fewer nations and states have capital punishment. The "life" faction appears too strong, too universal, too overwhelming to resist.
Happily, the same universality works against abortion. America has shockingly lose infanticide laws. Even the Europeans don't kill their children as we do. America stands alone as a butcher of innocents.
In both cases, there is a rights-absolutist faction ("A state has the right to kill because of ... ", "A woman has the right to abort because of...") that faces off against world legal opinoin. In the end, for most cases, both acts will be forbidden.
And the secular hagiography. This is why George Walker Bush is a pivotal world figure. If the United States supported abortion worldwide, as it did under Clinton and would have under Kerry, the pro-life movement would be terribly undermined. The United States has the ability to set the tone for the world. We can affect changes in other countries that change the global legal environment, and so under Global Roadsters will change our legal environment. From the January 22, 2001, when President Bush restored the Mexico City Policy, he was paving the road for a pro-life America.