Dobbs 2.0

March 16, 2023

          The US Supreme Court’s ruling in Dobbs v. Jackson Women’s Health inflicted grievous injury on the rule of law, the legitimacy of the Supreme Court, and liberties guaranteed by the Constitution. In ruling that the Constitution does not protect the right of privacy on which reproductive liberty is based, the Court violated judicial doctrines of interpretation and finality that are the bedrock of “ordered liberty” safeguarded by the third branch of government. But the reactionary majority was willing—even eager—to overthrow those foundational doctrines to codify the dogma of the conservative religious groups that engineered the appointment of the Court’s reactionary majority.

          The ruling in Dobbs was wrapped in a lie—that the only issue was where the difficult decisions about reproductive liberty would be made. The reactionary majority claimed that it was returning those decisions to “the people’s representatives.” But that was never the goal of those who plotted the demise of Roe. They want nothing less than the complete, unqualified prohibition of abortion. Indeed, states are beginning to criminalize abortion, putting doctors, hospitals, taxi drivers, families, and friends at risk of charges of homicide and wrongful death for assisting a woman seeking to end a pregnancy.

          No, the opponents of reproductive liberty do not want to return those decisions to the “people’s representatives,” they want their extreme religious views to be imposed on all Americans, irrespective of what the “people’s representatives” say about the issue. The religious extremists who sought to overrule Roe now seek to deny all Americans access to a safe, effective drug (mifepristone) approved by the FDA for therapeutic abortions more than two decades ago.

          The opponents of reproductive liberty are pursuing their goal by the bad-faith expedient of hand-picking a judge with extreme religious views willing to second-guess the scientific expertise of the FDA and twenty years of experience by doctors and patients in prescribing and using mifepristone.

          At the hearing today before the hand-picked federal judge in Texas, it became clear that Judge Kacsmaryk will rely on his religious beliefs to overrule the scientific and medical expertise of the FDA. See NPR, U.S. judge in Texas hears case that could force major abortion pill off market.

          During the four-hour hearing on Wednesday, Judge Kacsmaryk revealed his secret agenda in a series of questions directed to the DOJ attorney representing the FDA. In a case that was limited to the issue of whether the FDA followed required regulatory protocols in approving the drug, the following exchange occurred:

Judge Kacsmaryk asked [DOJ attorney] Straus Harris what she made of the fact that Republican attorneys general from more than 20 states — states that have tried to restrict abortion following last summer's Supreme Court decision overturning Roe v. Wade — filed a brief in the case saying that the wide availability of abortion pills undermines those state restrictions.

Straus Harris responded that this argument is beside the point. She said the FDA approval simply confirmed the drug's safety and effectiveness and doesn't require anyone to prescribe it or take it.

"The plaintiffs are the ones who are trying to dictate national policy" with this lawsuit, she said.

          The relationship between the FDA’s approval of mifepristone and the ruling in Dobbs was not before Judge Kacsmaryk. But his question about that relationship betrays the fact that Kacsmaryk (and the plaintiffs) see the challenge to mifepristone as Dobbs 2.0—an attempt to deny reproductive liberty to women in the US without regard to what “the people’s representatives” say about the issue. Instead, an extremist minority claims for itself the right to impose its religious doctrine on all Americans.

          There is a chance that Kacsmaryk will not accept the plaintiffs’ invitation to become the national arbiter of reproductive choice in America, but I doubt it. He is motivated by religious principles, not fealty to the Constitution—despite the oath he took when he was confirmed.

          What do we do in the face of Kacsmaryk’s impending decision? Answer: Everything that we are doing, but with greater urgency, dedication, and commitment. If Kacsmaryk grants this victory to religious extremists, they will be back at his chamber door with new cases carefully crafted to eliminate other constitutional liberties under the guise of religious freedom.

          What’s next on the docket of the religious extremists? I hesitate to outline the issues, but they are no secret. In short, if you or your beliefs or lifestyle do not conform to a biblical mythology of “one man and one woman created in the image and likeness of god,” you have no place in the future that Judge Kacsmaryk envisions for a country reborn into Christian nationalism.

          I remain confident that we will overcome these challenges. But the biggest challenge of all is convincing people that the threat is real, imminent, and far worse than they imagine. When we next control Congress and the presidency, the first bills should be to reform and expand the Supreme Court. The second set of bills should override state laws that discriminate against American citizens based on their gender or sexual orientation or identity.

          And then, finally, at long last, we must guarantee the right of every adult American citizen to vote in every election by mail or in person without artificial impediments imposed by MAGA legislatures. When that happens, we will make great strides toward delivering on the promises of liberty that are explicit and implicit in the Constitution. It cannot happen soon enough.

The “woke bank failure” narrative falls apart.

          Republicans blamed “woke” policies for the failure of Silicon Valley Bank. A frequently cited study to support that assertion was published by Claremont Institute, the current home of coup plotter John Eastman. Claremont published a database under the auspices of The American Way of Life that ostensibly showed which corporations “funded the Black Lives Matter riots.”

          That Claremont database claims that Silicon Valley Bank donated $70 million to “Black Lives Matters.” See database here: BLM Funding Database - The American Way of Life (claremont.org). That claim is false.

          Josh Marshall of Talking Points Memo demolishes the claim that SVB donated $70 million to Black Lives Matter. See A Quick Look at the Lying Trumpist Liars Behind that Database on Corporate Giving to “BLM”. Marshall examines in detail the supporting documentation for the claim that SVB donated $70 million to Black Lives Matter. He writes,

[I] found no reference to anything remotely backing up the claim. The closest thing I found that bore any relationship to this number was a company newsletter which discusses “reinvesting in low- and moderate-income (‘LMI’) communities” in California and Massachusetts. It mainly talks about financing small business loans and mortgages over the next five years (2021-2026) but also mentions $75 million “in charitable contributions.”

. . . . Another newsletter said the bank’s total charitable giving to all causes in 2019 was $8 million. Yet another newsletter said that $1.2 million in the company’s charitable contributions in 2019 went to “supporting opportunities for diverse, emerging talent in innovation.”

          As Marshall’s review indicates, SVB has committed to $75 million in charitable contributions over the next five years. . . . donations that clearly did not “fund the [so-called] BLM riots.” Claremont apparently assumed that any reference to “low and moderate-income housing investments” and “small business loans” was code for “Black Lives Matter.”

          In short, the Claremont database is a grossly misleading travesty—but that hasn’t stopped Republicans from citing Claremont’s work as proof that SVB donated $70 million to Black Lives Matter. Of course, we should expect as much from an institute that features John Eastman on its homepage as a mark of distinction.

Was the rescue of the SVB depositors a good thing?

          Two days ago, I wrote that Biden’s decision to rescue the depositors of Silicon Valley Bank was the right thing to do in the short term but the wrong thing to do in the long term. Many readers asked about the meaning of my reference to the “long-term” consequences being a bad thing. Roger Lowenstein subsequently penned an op-ed in the NYTimes that explains the gist of my comment. See Opinion | The Silicon Valley Bank Rescue Just Changed Capitalism - The New York Times.

          As Lowenstein explains, having made a special exception for depositors of Silicon Valley Bank who willingly accepted the risk of SVB’s failure, the US government must now do the same for depositors in other institutions that fail in the future. In one action, we have converted a limited FDIC insurance program into a US-backed program that protects the deposits of every depositor even when those depositors maintain fund balances that are reckless because they exceed FDIC insurance levels.

          Why did so many startups maintain reckless balances at a single bank? Because being a client of SVB was a sign of acceptance in the Silicon Valley culture. Indeed, it may have been an expected quid-pro-quo arrangement in which SVB granted financing to hedge fund startup clients who could not otherwise obtain bank financing. When those startups hit it big, they kept tens and hundreds of millions on deposit at SVB as a “thank you” for the favor SVB did for the hedge funds in granting financing to uncreditworthy startups.

          As they say in the law biz, “Hard cases make bad law.” In the case of the SVB depositor rescue, “Influential depositors make bad banking policy.”

More on Biden’s approval of oil leases on Alaska’s North Slope.

          Several readers responded to my summary of negative reader reactions to Biden’s approval of the Willow Project in Alaska by forwarding the Substack blog of Jay Kuo, Biden Approved New Drilling in the Arctic. I Have Some Thoughts. Kuo looks at both sides of the issue. In the process, he articulates what he understands to be the best case for approving the Willow Project. If you support the project and want to see an articulation of the reasons for approving the project, check out Kuo’s summary.

          Having thus attempted to be even-handed, let me say I don’t agree with the “best case” arguments for approving the project. While you should read Kuo’s articulation of the arguments, in my view, they come down to a few points: (a) jobs; (b) Alaska politicians who are in favor of jobs in Alaska; and (c) “In the grand scheme of how much CO2 we dump into our atmosphere, what’s another 280 million metric tons of carbon emissions from the Willow project?” (Kuo also notes that Conoco Phillips would have sued and forced Biden to approve the leases, to which I say, “See you in court.”)

          I don’t mean to dispute Kuo’s description of the arguments. I do mean to dispute the arguments. We can always say that moving away from fossil fuels will lead to job disruptions. But we must draw a line somewhere if we seek to reduce our dependence on fossil fuels. Whenever and wherever we draw that line, there will be temporary local disruption to labor markets. But the effects of climate change will be long-term and global in nature. The Willow Project was the place to draw the line, regardless of size and regardless of temporary jobs dislocated in Alaska. Biden missed an opportunity, in my view.

This is disappointing.

          I am, er, was, a fan of Axios. Not any longer. A reporter for Axios covering the Florida beat received a press release denouncing diversity, inclusion and equity from the DeSantis P.R. machine, with an implicit request to “cover” the press release. The reporter, Ben Montgomery, sent a note to the DeSantis P.R. team that said, “This is propaganda, not a press release.” DeSantis’s P.R. team attacked the reporter with a tweet and, a day later, “Voila!”, Axios fired the report over the telephone, on the spot, with no investigation, and no chance for rebuttal. See Talking Points Memo, Reporter Describes Being Fired By Axios After Being Targeted By Ron DeSantis’ Media ‘Machine’.

          Axios has refused to comment on the matter, citing privacy relating to an employment matter. So, in the information vacuum that Axios has chosen to create, my view is that Axios is a gutless wonder that caved to DeSantis at the drop of hat. I won’t be citing Axios in my newsletter in the future. Unless, of course, it reverses its decision.

          Come on, Axios, do the right thing! Stand up to DeSantis, back your journalists, and grow a spine. When you feed a monster, he always comes back for more. Ron DeSantis now owns you. Is that what you hoped for when you started an independent news outlet?

Concluding Thoughts.

          It appears that Manhattan District Attorney Alvin Bragg may be moving to a final prosecutorial decision on indicting Trump. Trump's former fixer-lawyer-errand-boy Michael Cohen testified before a grand jury on Wednesday. In the natural order of things, Bragg would decide to indict Trump—or not—in the next few weeks.

          It thus appears that the first indictment of Trump may relate to his lying about an affair and the subsequent cover-up. The most likely charge is a misdemeanor, but a felony indictment is possible (though weaker). At this point, I would welcome any effort by any prosecutor to hold Trump accountable for any of the dozens of crimes he should have been indicted for years ago.

          But. . . for the sake of the rule of law and the defense of democracy, it would be better if the first indictments related to inciting insurrection, attempting a coup, obstructing justice, interfering in the Georgia presidential vote, and stealing classified documents. There is still time for Jack Smith or Fani Willis to release indictments before the NY indictment (if it comes), but the window of opportunity is closing fast.

          We will never recoup the two years we lost as federal prosecutors did what? Nothing? Focused on 500 trespassing cases? Prosecuted the Proud Boys and Oath Keepers? Whatever they did, it wasn’t more important than prioritizing the prosecution of the man who led the first-ever coup in our nation’s history.

          For those who cannot resist emailing me about how complicated the case against Trump is and that “If you shoot at the king, you best not miss,” I ask a favor. Please include in your email a number that represents the whole number of years that you believe is acceptable for indicting a coup plotter who is running for a second term as president as part of a second coup attempt. Since years “1” and “2” have lapsed, the bidding starts at 3 years, 4 years, 5 years, 6 years . . . (Stop me when I get to a number you agree with!)

          As you can tell, I am beyond frustrated that we have gotten to a point where the first charge against Trump may be a misdemeanor for cheating on his wife. And I think most Democrats share my frustration. I have faith that Jack Smith will eventually do the right thing and that the American people will have their day in court with Trump as a defendant. But as the increasing visits to Iowa by Trump and DeSantis prove, the 2024 campaign has begun. Every day that passes will make the prosecution of Trump that much more susceptible to charges of political payback.

          I have now exceeded by five paragraphs the maximum length for Concluding Thoughts that my Managing Editor has imposed on me. My apologies. In the future, I will keep my rants shorter and more to the point!

          Talk to you tomorrow!