The end of an incredible week.
April 8, 2023
Religious extremists have continued their assault on the status of women as equal citizens under the law and full participants in the liberty guaranteed by the Constitution. After the Supreme Court’s reactionary majority engaged in the charade of “returning the question” of reproductive liberty “to the people’s representatives,” a rogue federal judge in Texas has issued a nationwide ban on mifepristone because of his personal disagreement with the FDA’s scientific conclusions regarding safety of the drug. The opinion is equal parts junk science and religious screed. It is an insult to the rule of law and the dignity of women as human beings with control over their bodies and reproductive choices.
The opinion is even more pernicious because mifepristone is frequently prescribed to help women safely manage miscarriages. In the absence of mifepristone and because of dozens of laws criminalizing abortion, a single federal judge with no science or medical training has ordered millions of women to risk infection, sepsis, and death before they can receive medical intervention in a miscarriage.
The DOJ has announced that it will appeal the ruling to the arch-conservative 5th Circuit Court of Appeals, which may uphold the ruling. A competing and contrary ruling in Washington state suggests that the US Supreme Court will be forced to intervene soon.
The religious extremists who successfully took down Roe are now using that victory as a roving license to attack fundamental liberties everywhere. They have misread Dobbs, their limited mandate, the will of the electorate, and the rule of law. Whatever Dobbs stands for, it did not convert our democracy into a theocracy—which is the premise of Judge Kacsmaryk’s first in our nation’s history ruling by a federal judge overturning the scientific judgments of the FDA.
Judge Kacsmaryk’s ruling is not only wrong, but it is also dangerous in its implications. Under the reasoning adopted by Judge Kacsmaryk, the next logical step is a ruling declaring fetal personhood under the Constitution and an order mandating every state to criminalize abortion. I am not being hyperbolic. I urge you to reach this superb analysis by Mark Joseph Stern in Slate, Matthew Kacsmaryk's ruling against mifepristone will force the Supreme Court to act fast. Stern writes:
[Kacsmaryk] deemed fetuses to “arguably” be “people” who are killed by mifepristone, seeking to establish the “fetal personhood” that has always been the end goal of the movement. For support, he cited a brief by anti-abortion advocate Robert P. George asserting that the Constitution compels every state to outlaw abortion.
There are more dangerous statements in Kacsmaryk’s opinion, which are detailed in Stern’s analysis. While we should not surrender to alarmism (not a comment directed to Stern), we must be realistic about the path to victory. Republican leaders know they have overstepped; editorials in conservative newspapers and conservative commentators are raising the alarm that Republicans have overstepped the advantage granted in Dobbs. See op-ed by Michele Golberg in NYTimes, The Abortion Ban Backlash Is Starting to Freak Out Republicans
But the Republican Party is captive to the religious extremists whose endorsements are now the price of election in Republican primaries. In other words, there is no going back for the GOP, and things may get worse for us before they get better. But Republicans have locked themselves into irreversible losing trajectory and are already paying the price. But we must step our efforts as they ratchet theirs. We can do that; we have begun to do that; we must continue, and most not lose hope. We will win; they will lose. It is just a matter of time.
Tennessee.
The anti-democratic, racially based expulsion of two young Black representatives from the Tennessee House by the GOP has attracted worldwide condemnation. People outside of America who had never heard the name “Tennessee” now associate it with the historical birthplace of the Ku Klux Klan and the modern home for the most virulent strains of racism in America. A reader (“CC”) posted selected citations in the Comments section, with a brief comment:
Justin Jones told the Tennessee legislature that the whole world was watching. Looks like he could be right.
GREAT BRITAIN: https://www.bbc.com/news/world-us-canada-65206459
GERMANY: https://www.dw.com/en/us-republicans-in-tennessee-vote-to-expel-2-democrats/a-65255635
Should Tennessee legislators care what the world media thinks about Tennessee? Only if Tennessee aspires to be part of the global, interconnected business community that will drive commerce in the future (like Nissan and Volkswagen, which both have plants in Tennessee). If Tennessee wants to rely on its other leading industry—entertainment—for future growth, it should consider whether most performers in the entertainment industry want to be associated with a state whose current top export is hate.
And my apologies and sympathy for Democrats and Independents in Tennessee who are fighting the good fight. We need you and will continue to support you. Everyone understands that the hate is coming from the GOP leadership, not from the good people of Tennessee who are struggling to create a more perfect democracy.
But Tennessee Republicans have not learned their lesson. Despite universal condemnation, major media outlets are reporting that Republican leaders are threatening the county commissions that might re-appoint Justin Pearson and Justin Jones—as they are legally entitled to do. Worse, Republicans are threatening not to seat Jones and Pearson if they are re-elected. It simply doesn’t get more totalitarian than that.
The reaction from the business community has been muted because the events occurred late in a week that included observances for Easter and Passover. But it is hard to fathom that the Memphis Grizzlies NBA playoff games next week will not be affected by Black athletes speaking their views on the events of Thursday. It is difficult to see why a nearly all-Black University of Tennessee football team would play in the face of such blatant racism. It is difficult to see why FedEx, Jack Daniels, Tractor Supply, and Nissan would want to support GOP legislators who committed one of the most overtly racist acts in a generation.
The state of Tennessee has yet to feel the business backlash that will follow the legislature’s action on Thursday. When it does, Tennessee Republicans will realize they have roused a sleeping giant.
Clarence Thomas.
Clarence Thomas issued a dissembling non-denial of his grotesque violation of judicial norms over two decades. Let’s set the quibbling aside and focus on the essence: The scale of Thomas’s corruption shocks the conscience. It appears that in some years, Thomas received more free travel by jet and luxury yacht that exceeded his salary by a significant percentage. Whatever the rules are, when someone is bestowing economic benefits on you that exceed your salary, it does not matter whether those benefits are hospitality, gifts, travel, or bribes—the amount of the benefit is corrupt. Period.
Thomas’s evasive non-denial studiously avoided any mention of free travel on a private jet—the clearest violation of the pre-existing rules. Despite his denial, Thomas was dishonest when he claimed that he understood—based on conversations with others—that he was not required to report “hospitality” in the range of a half-million-dollars. Thomas did not believe his own denial because in 2004, he was reporting “hospitality” in the from Harlan Crowe—and then suddenly stopped reporting gifts from Crow after the LATimers article. See After an L.A. Times story on Thomas' gifts, he stopped disclosing - Los Angeles Times.com) [Behind a paywall.]
In other words, when Thomas’s compliance with the rules attracted attention from the media, he simply stopped reporting. There was no “misunderstanding,” just an intent to conceal corrupt benefits from a conservative mega-donor. Thomas’s flouting of the rules and norms of judicial conduct is entirely out of step with the conduct of most judges in the federal judiciary.
Here’s a personal story: I clerked for a federal court of appeals judge before cell phones were widely available. The federal court system participated in the federal WATS phone utility (“wide area telephone system”) that effectively allowed you to call toll-free anywhere in the US. At the time most landline calls outside of the immediate exchange area cost a dime for the first ten minutes, and then a nickel for each five minutes thereafter. Because the federal WATS system effectively conferred an economic benefit, personal use was prohibited.
The judge for whom I clerked was married to a leader in the civil rights community. Because of that fact and to avoid any appearances of impropriety by using the WATS line for personal communications, the judge installed a personal land line in chambers at great cost to him (about which he complained vociferously; he was complainer by nature).
Having spent countless hours in the judge’s interior office helping to draft opinions, I can attest that 99% of his conversations on his personal land line went something like this: “I’ll be working late again, tonight. . . . I love you, too.”
I don’t mean to hold up my judge as a hero; I mean to say that his attitude about avoiding the appearance of conflicts is emblematic of the high ethical standards followed by most federal judges. Against that backdrop, Thomas’s manifest disregard of judicial ethics is shocking.
You undoubtedly noticed that the federal judicial center issued guidelines a few weeks ago that now explicitly require Thomas to report most of the largesse he received from Crow. As Yogi Berra never said, “That’s too much of coincidence to be a coincidence.” Thomas (or Roberts) obviously got wind of the investigative work by Pro Publica and decided to provide a fig leaf of deniability for Thomas. There is more to this story. It will only take enterprising journalists and Supreme Court practitioners to speak up for the full story to emerge. It won’t be pretty. It isn’t now.
Substack
Substack has been in the news. First, Elon Musk has blocked Substack authors from embedding tweets in their stories (a practice I regularly employ) and linking to their Substack articles. I don’t think that makes much difference to my readers because I do not have an active presence on Twitter. Musk blocked Substack on Twitter because he views it as a competitive threat and is an immature bully.
Separately, Substack released financial information today that shows—like most startups—it is running an operating deficit. No real news there, but I bring this point up for two reasons. Financial analysts blamed the deficit in part on Substack’s decision to pay “guaranteed revenue” to high-profile journalists to attract them to the platform.
Rest assured, I am not a “high profile” journalist, and I do not receive any revenue directly from Substack. I am a small fish in the pond of political commentators. It always amuses me when a new subscriber says, “I can’t find your Wikipedia page.” (I don’t have one.)
The only financial support for this newsletter comes from voluntary subscriptions from readers—for which I am deeply grateful. You help me to continue this two-person operation—me as author, editor, and publisher, and my wife as my unerring Managing Editor who pulls me back when I get too far out over my skis.
I mention this now because the next two weeks will see annual renewals for a substantial portion of my subscriber base (consisting of people who followed me to Substack from Constant Contact). I don’t want anyone to labor under the misconception that I am being subsidized by Substack. I am not. (BTW, I express no criticism of that practice; it’s a tough market out there, and competing for big names is important to the success of Substack).
In advance of your renewal, you will receive a reminder email for TODAY’s EDITION newsletter. And if your credit card expired in the last year, you will receive a note alerting you to that fact and asking you to update your credit card information.
Thank you all for your support. This newsletter could not exist without you.
Concluding Thoughts.
I am still feeling poorly. How did I manage to write a newsletter today? I was in bed for twelve hours with nothing to do but feel sorry for myself. I have not edited, proofread, re-read, or done anything to check this newsletter. Please forgive all errors—as 99.999% of you did when I implied that Tallahassee was the capital of Tennessee earlier in the week. I was under the influence of over-the-counter decongestants when I made that mistake. I know perfectly well that Miami is the capital of Tennessee. [THAT WAS A JOKE; PLEASE DO NOT SEND AN EMAIL CORRECTING THE ERROR!] I hope that you will show similar generosity and tolerance toward this edition of the newsletter. No audio version. Sorry, just can’t do it.
It has been an extraordinary week.Tuesday brought the arraignment of Trump in Manhattan and the victory by Justice Janet Protasiewicz. Wednesday saw the criminalizing of travel by Idaho and Thursday saw the disgraceful actions by the Tennessee House and the report on Justice Thomas’s manifest corruption.
The fact that the arraignment of Trump is “below the fold” by the week’s end is a testament to the turbulent times in which we live. And yet, we can see the path forward. Indeed, we are being propelled along that path by the voice of the people who have reached their limit. Do not lose faith. Instead, recognize that Republicans are scripting their party’s demise like a bad horror movie where you find yourself screaming at the characters, “Don’t run into the cemetery to escape your tormentor!! That’s a very bad idea!”
Republicans know that demoting women to second-class citizens and exalting assault rifles over innocent schoolchildren are broadly unpopular with the electorate. But they are stuck in a script written by extremists in their party—the price of winning one election in 2016. It is a price they will rue for the remainder of their diminishing days.
Talk to you on Monday!
In sickness, Robert wrote the finest summary of this horrendous week. Feel better Robert. We need you for our sanity.
It isn't just "fetal" personhood that Judge K is pushing. He won't use the word fetus because it is just "one" term for the stages of growth in the womb. He wants ZYGOTE personhood, even before implantation. Under this rule, failure of the zygote to implant could result in charges against a woman for somehow not taking due care to achieve implantation.
See footnote one of the opinion:
"Jurists often use the word “fetus” to inaccurately identify unborn humans in unscientific ways. The word “fetus” refers to a specific gestational stage of development, as opposed to the zygote, blastocyst, or embryo stages. Because other jurists use the terms “unborn human” or “unborn child” interchangeably, and because both terms are inclusive of the multiple gestational stages relevant to the FDA Approval, 2016 Changes, and 2021 Changes, this Court uses “unborn human” or “unborn child” terminology throughout this Order, as appropriate."
Forgettabout the fact that many may have a sincere religious belief that life becomes human at some other point in gestation. "Sincere religious belief" works for only one branch of one religion, clearly.