(Being a replacement for our semi-annual weekly survey of what’s goin’ down in the several states where, as we know, and we are about to learn once again at our peril, the real work of governmentin’ gets done, and where propaganda, all is phony.)
WASHINGTON—Rep. Jim McGovern (D-MA), the chairman of the House Rules Committee, was having a good morning. On a bipartisan basis, the House had passed “the rule,” thereby allowing the much-ballyhooed bipartisan gun reform bill to pass the House and go off down the street for the president’s signature, the first such bill to become law since god was a boy. He was having a good morning, Jim McGovern was, until he wasn’t anymore.
“It’s a dark day,” McGovern said. “This country is headed in a reactionary direction so fast now.”
He was talking about the end of the right to legal abortion, which had come down just after the rule had been passed on the gun bill in the House. When the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization was handed down, effectively killing off a constitutional right to choose that had stood for half a century, McGovern had walked across the plaza on the east side of the Capitol and out into First Street, which had been garrisoned by police barricades to keep the people celebrating the end of that constitutional right from the people mourning it. Now, he was walking back to the Capitol, where the final vote on the gun bill was imminent, but his enthusiasm was conspicuously muted.
“They’ll nit-pick it to death now, even in places like Massachusetts,” he said.
And it will be worse in other places. In his majority opinion, Justice Samuel Alito uncorked an opinion on the politics of abortion that demonstrated several things: that Alito hasn’t been in the chamber of a state legislature for quite a long time, if at all, ever; that Alito is pretending not to notice how at least three of the colleagues on the bench who voted with him got to be on the bench with him; and that Sam Alito doesn’t know or doesn’t care about current events. To wit:
It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. “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 he was going to make a political argument, which is what this passage is, Alito might have taken the time to point out that his decision runs counter to the demonstrated fact that the right to choose has a 60 percent approval rating out in the country. He might also have acknowledged that the “elected representatives” in 13 states passed laws banning abortion even before the Court ruled, confident in the knowledge that the fix was in on First Street, and that 26 states seem prepared to ban abortion as quickly as they can. He might also have justified his decision that national policy on women’s bodily autonomy must now conform to that policy as enacted in…Mississippi.
He also might have acknowledged the uncomfortable political fact that the majority in Dobbs was made up mainly of Supreme Court justices who were put there by presidents who’d lost the popular vote. But I don’t expect miracles.
Anyway, it has long been the position of the shebeen that the whole notion of the states as “laboratories of democracy” is an extended farce that should have closed at Appomattox. It is why we mock the term every Thursday through our semi-regular weekly survey. State legislatures are monkey houses, and state legislators are too easily and cheaply bought. States with elected judiciaries are an abomination, especially in this era of cash-and-carry politics. (And yes, I still believe that an elected judiciary is the worst idea in American politics, even after the events of this week.) Right now, all over the country, states with Republican-majority legislatures can’t even acknowledge that Joe Biden is the president of the United States. “Handing it back to the states” is generally like handing a live grenade to your toddler.
And, as long as we’re talking politics, let’s talk about how the confirmation process has become a sucker’s game. We should have known this from the moment that Clarence Thomas told Senator Joe Biden and the Senate Judiciary Committee that:
Only, I guess, senator, in the fact that, in the most general sense, that other individuals express concerns one way or the other, and you listen and you try to be thoughtful. If you're asking me whether or not I've ever debated the contents of it, the answer to that is no, senator.
The Roe decision came down while Thomas was in law school, and it was instant catnip for young conservative lawyers. Thomas expected the committee to buy that it never came up, not once, in dormitory bull sessions and the like? Of course, through the years, it got worse. Here’s the scorecard on the other four votes to overturn the decision that Clarence Thomas couldn’t remember arguing about.
Amy Coney Barrett:
What I will commit is that I will obey all the rules of stare decisis, that if a question comes up before me about whether Casey or any other case should be overruled, that I will follow the law of stare decisis, applying it as the court is articulating it, applying all the factors, reliance, workability, being undermined by later facts in law, just all the standard factors.
“[Roe] is important precedent of the Supreme Court that has been reaffirmed many times. But then Planned — and this is the point that I want to make that I think is important. Planned Parenthood v. Casey reaffirmed Roe and did so by considering the stare decisis factors,” he said in 2018. “So Casey now becomes a precedent on precedent. It is not as if it is just a run-of-the-mill case that was decided and never been reconsidered, but Casey specifically reconsidered it, applied the stare decisis factors, and decided to reaffirm it. That makes Casey a precedent on precedent.”
Roe v. Wade, decided in 1973, is a precedent of the U.S. Supreme Court. It has been reaffirmed. The reliance interest considerations are important there, and all of the other factors that go into analyzing precedent have to be considered. It is a precedent of the U.S. Supreme Court. It was reaffirmed in Casey in 1992 and in several other cases. So a good judge will consider it as precedent of the U.S. Supreme Court worthy as treatment of precedent like any other.
“If settled means it can’t be re-examined, then that’s one thing,” he told senators on the Judiciary Committee. “If settled means that it is a precedent that is entitled to respect as stare decisis, and all of the factors that I’ve mentioned come into play, including the reaffirmation and all of that, then it is a precedent that is protected, entitled to respect under the doctrine of stare decisis in that way.”
So those were all some serious variations on the concept of bullshit, but now let’s hear from the suckers who fell for it. Step right up, Senator Susan Collins:
This decision is inconsistent with what Justices Gorsuch and Kavanaugh said in their testimony and their meetings with me, where they both were insistent on the importance of supporting long-standing precedents that the country has relied upon.
And since we are resolutely bipartisan, here’s Democratic Senator Joe Manchin, showing us all the bagful of magic beans Kavanaugh and Gorsuch sold him.
I trusted Justice Gorsuch and Justice Kavanaugh when they testified under oath that they also believed Roe v. Wade was settled legal precedent and I am alarmed they chose to reject the stability the ruling has provided for two generations of Americans.
That’s just adorable, that is.
But it’s back to the states now. Jim McGovern was right about that. As he walked back to the Capitol to vote on final passage of the gun bill, he spoke about the only political solution still available to undo what the Supreme Court had done that day. As he spoke, a squad of Capitol Police in riot gear passed us on their way to First Street and the crowds thereon.
“Win elections,” Jim McGovern said. “If this doesn’t light a fire under our base’s ass, I don’t know what will.” He went back into the Capitol and voted for the gun bill, which is even money to be ruled unconstitutional if it ever gets judged across the street.