Reports from the front.

July 7, 2022

          The Pew Research Center released its most recent polling on American attitudes about Dobbs v. Jackson Women’s Health Organization, in which the Supreme Court denied women the constitutional liberty to control their reproductive choices. As discussed below, the Pew survey demonstrates that the ruling in Dobbs is opposed in every demographic stratum of Americans, save one: white Christian evangelicals. See Pew Research Center, Majority in U.S. Disapprove of Supreme Court Abortion Decision Overturning Roe v. Wade.

          Dobbs represents the culmination of a half-century effort to impose minority religious rule on the majority of Americans. In a representative democracy, minority rule is inherently unstable and transitory. Dobbs will not stand, and its demise will be hastened by the “performative cruelty” being used by Republicans to find a new low in their war against women’s rights. A careful look at the Pew study demonstrates the depth and breadth of opposition to Dobbs.

          David Frum recently wrote about a similar episode in American history: prohibition. See The Atlantic, Roe Is the New Prohibition. In comparing the anti-abortion movement to prohibition, Frum writes,

          Prohibition and Dobbs were and are projects that seek to impose the values of a cohesive and well-organized cultural minority upon a diverse and less-organized cultural majority. Those projects can work for a time, but only for a time. In a country with a representative voting system—even a system as distorted in favor of the rural and conservative as the American system was in the 1920s and is again today—the cultural majority is bound to prevail sooner or later.

          I quoted the above passage in a newsletter last week but include it again today because the Pew survey demonstrates that “the cultural majority” favors reproductive choice everywhere—even in states that have banned abortion or are about to do so. See Talking Points Memo, Even In States Scrambling To Ban Abortion, A Majority Don’t Agree With SCOTUS.

          If you are in despair over Dobbs, I urge you to spend ten minutes reviewing the charts in the Pew study, here. The key takeaway is that 62% of Americans disapprove of the holding in Dobbs. But even in states that have banned abortion (or about to do so), the majority of respondents disapprove of Dobbs. I summarize the Pew findings below (edited for brevity):

          The survey finds that adults living in the 17 states where abortion is prohibited are divided in opinions about the Court’s decision to overturn Roe: 46% approve of [Dobbs], while slightly more (52%) disapprove [of Dobbs].

          In the four states that have new restrictions on abortion but have not prohibited it outright: 52% disapprove of [Dobbs], while 47% approve [of Dobbs].

          Thus, in 21 states that will ban abortion, a majority of their citizens oppose the holding in Dobbs.

          One chart in the Pew survey shows that 50% or more of the following groups oppose the ruling in Dobbs: Whites, Blacks, Asians, and Hispanics; every age group from 18 to 65+; every educational level from “some high school” to postgraduate; Catholics, non-evangelical white Protestants, and Black Protestants; and married and unmarried people. The only demographic group that favors Dobbs by more than 50% is white evangelical Christians.

          As I said, Dobbs will not stand. But I give the final word to David Frum, who says it more eloquently:

          The pro-life dog has at last caught up with the Roe v. Wade car. Now it has to chew on its prey. And it’s about to discover that the prey in its jaws is a lot bigger and stronger than it looked when the dog started its chase.

          Dobbs is on every ballot in 2022—from city council seats to congressional representatives. If you believe women should regain their status as full citizens with autonomy over their lives and reproductive choices, make your voice heard in 2022!

Former White House Counsel Pat Cipollone to testify before January 6th Committee.

          Pat Cipollone has agreed to testify before the January 6th Committee. See ABC News, Former White House lawyer Pat Cipollone agrees to transcribed interview with Jan. 6 committee. Cipollone will testify in a closed session that will be videotaped. The Committee will be able to share excerpts of his testimony in future hearings.

          The development is favorable for those who seek to hold Trump accountable for his crimes. Cipollone will reportedly invoke executive privilege over his conversations with Trump (a dubious legal position) but will testify about conversations with others. For example, per Cassidy Hutchinson, Cipollone said that “everyone” would be subject to criminal prosecution if Trump went to the Capitol on January 6th.

          Cipollone is a member of the Federalist Society and a Trump loyalist, so it is unclear to what extent his memory will be “refreshed” about the events of January 6th. That seems like a day that should be burned into one’s memory, but Rep. Jim Jordan is having difficulty recalling how many Trump called him on January 6th as rioters were entering the Capitol. Let’s hope Cipollone’s powers of recall as a lawyer exceed those of former wrestling coach Jim Jordan.

Fulton County District Attorney Fani Willis interview on NBC.

          District Attorney Fani Willis spoke to NBC about her ongoing investigation in Fulton County, Georgia, regarding Trump’s election tampering. During the interview, Willis said that she would not rule out issuing a subpoena for Trump or his family members. See Fulton DA Fani Willis Not Ruling Out Subpoena for Trump. (“Willis added that she is “absolutely” not ruling out a Trump subpoena.”) In her interview, Willis exuded an air of confidence and determination. She said, in part,

          But I think that people thought that we came into this as some kind of game. This is not a game at all. What I am doing is very serious, is very important work. And we’re going to do our due diligence in making sure that we look at all aspects of the case

          It is gratifying to see a prosecutor taking Trump’s crimes seriously. Whatever happens, it appears that D.A. Willis is sincerely trying to learn the truth.

          If Willis issues a subpoena to Trump, he will resist. But the Supreme Court has already ruled that a president can be forced to testify before a grand jury.

The victims of the Highland Park Shooting.

          In the aftermath of mass shootings, the media frequently devotes more attention to the shooter than his victims. CNN has published a feature describing the lives of the six victims killed in the Highland Park shooting. See CNN, These are the lives lost from the July Fourth parade mass shooting. It can be difficult, heartbreaking, and traumatizing to read about the lives lost. At the very least, look at their pictures. They deserve to be remembered and honored. If we look away, the killings become an abstraction lost in political arguments over gun policy. Their lives made a difference. Remember them.

Concluding Thoughts.

          One of the ways the anti-choice movement achieved its goal in Dobbs was to “normalize” the notion that the Supreme Court would overturn Roe. A key player in that cultural normalization was the Federalist Society, which became a single-issue organization devoted to recruiting and promoting anti-choice judges. The Federalist Society succeeded, in part, by attracting the elite of the conservative legal movement to its membership, including Ted Cruz, Mitch McConnell, Josh Hawley, John Roberts, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett, Robert Bork, and Paul Clement.

          Many of America’s elite law firms looked the other way as their male partners lobbied to rescind the constitutional rights of their women partners. The women partners in those firms are now speaking in unison to defend the rights of all women. More than 2,500 women partners in major law firms have signed a call to action. See The American Lawyer, More Than 2,650 Women Partners From 190 Firms Issue Call to Action Post-'Dobbs'.

          The statement reads, in part,

          We swore oaths to support and defend the Constitution. We take that oath seriously. We know that our ability to serve in the legal profession and swear that oath was hard fought and rests fundamentally on the premise and promise that we, as women and people who have or had the potential to become pregnant, are free and equal citizens under the law. 

          The Court has failed to uphold the promise at the very core of the Constitution: the promise of liberty and dispassionate, fair and equal treatment for all under law.

        We cannot let that failure stand.

          I urge you to read the call to action in full. While you are at it, check to see if your favorite BigLaw firm is included on the list. If not, consider suggesting to someone you know at that firm to encourage women partners at the firm to join in the call to action. Let’s learn from the reactionary conservatives who brought us Dobbs: We must reclaim the cultural narrative by delegitimizing the notion that the state can control women’s reproductive autonomy.

          Two other points about the call to action by women partners in major law firms. It would be terrific if their male counterparts acted in solidarity to support their women colleagues and friends. I look forward to a headline in The American Lawyer that reads, “More than 2,500 male partners from 190 firms issue call to action post-Dobbs.”

          Second, in many of the firms on the list, male partners continue as members in good standing of the Federalist Society. It seems jarring that they should do so, given that the Federalist Society was a prime mover in the effort to rescind the constitutional rights of their female partners. In some circles, membership in the Federalist Society is a point of pride; it should be a mark of shame. When it becomes the latter, we will know that we are making progress in changing the narrative around reproductive liberty. Indeed, we are already making significant progress in that regard. Just read the Pew survey if you have any doubts.

          Talk to you tomorrow!