It is difficult to comment on this since I have no legal standing. Or, should I say no training in constitutional law. Yet, as a voter, I find it takes my breath away to think about how shamelessly six justices can take away the rights of women to reproductive health care with such arrogance and hostility. We must do everything to restore what these justices have taken back after nearly 50 years. Vote in 2022 & 2024.
Jul 10, 2022·edited Jul 10, 2022Liked by Robert B. Hubbell
As someone with legal training and more than 50 years at the bar, it saddens me not only that rights are erased, but at the harm being done to the fabric of the law itself.
While this is true at the moment, our best option is to get out the vote. Talk with all friends and family to assure they are registered and know where and how to vote.
I’d love your take on my comment above. If you can’t see it, it goes like this. Why doesN’t the establishment clause in the first amendment offer an argument for abortion? Only the Christian faith believes life begins at conception, and by ruling against abortion, they are denying the beliefs of Muslims and Jews and maybe some others. Abortion should be an issue between a woman and her god.
Generally, I agree with you, but someone who is not Christian could believe that life begins at conception. There is a certain simple logic to it. One of the best points of Blackmun's much underrated opinion in Roe was the way he undercut that thought, mainly from a historical perspective.
It is absolutely chilling, not just the Justices, either. It's like a hundred Attilas and his minions have been launched from every direction. There is even an evangelical movement to apply the death penalty to women who have aborted.
I'm glad that Evangelicals are so committed to being pro-life, as they like to refer to themselves. I also wonder who they expect to take care of these babies while their mothers are in prison or dead?
The quality of the sophistry of Supreme Court opinions is in sharp decline since the death of Scalia. One possible cause: the tendency of conservative judges to hire only like-minded clerks put forward by the Federalist Society or a few Yale faculty members. They’re in a bubble, and there’s no one nearby with a hat pin.
Scalia was a fraud! Perhaps he would consider himself the first ‘originalist’!
He essentially rewrote the 2nd Amendment ignoring the words ‘well regulated militia’, oops not what the founding fathers wrote!
He made his own rule for denying Gore a recount in Florida, because in ‘Tony’s’ words ‘…a long period of time to do a recount would tarnish little bush’s presidency’! Can’t find that pseudo reasoning in the Constitution, nope!
The decline of the court started with Thomas being sworn in. Unlike Thurgood Marshall, Clarence did not have a record of being a champion in the fight for civil rights. He was a second rate bureaucrat who rose through the white boy club by denying affirmative action policies.
The late Julius Chambers, professor of Law at UNC, was the most qualified person to fill the ‘great shoes’ of Justice Marshall!
Scalia was a schmoozer, building his ‘style’ by talking opera with RBG!
Moscow Mitch destroyed the SCOTUS’s “credibility” when he defied the Constitution and his sworn duty and denied Merrick Garland so much as a hearing — this when he had the votes to reject him outright. And, he got away with it.
I don't think it was Merrick Garland specifically. Mitch denied Obama the right to nominate the next SC justice based off justification that he didn't believe and uphold.
Jul 10, 2022·edited Jul 10, 2022Liked by Robert B. Hubbell
This decision by the Roberts court will not stand. It may stand for a while, but history is being written, day by day, week by week, month by month and year by year. As stated by individuals far more notable than me, the arc of history bends towards justice. Democracy is not static. It must be articulated and re-articulated in every generation. Roe stood for 50 years. Time is on the side of justice. Wrongs have been righted before and they will be again. There's far more threatening our democracy today than this one ruling. We face historical forces hell-bent on rewriting most of a century's worth of progress on civil rights. It remains to the electorate to awaken from it's slumber and take action to demand that the government, all three branches, reflect the will of the people. It won't happen if only a fraction of the public participate. It demands that all of us wake up, show up and cast our votes thoughtfully.
Thank you, Nathan. Your comments are well stated, clear, and true. I agree with you that there this is not just a single issue we face but many important civil rights foundational to democracy. Justice will win in time. Sadly, we are a nation demanding immediate gratification in everything and most often the critical matters take time whether personal, in government, even spiritually.
"We the people" must speak out at the ballot box. Not just in big elections but those smaller, less sexy ones. Our voices must be heard by every council person, legislator, congress person on up. I have confidence that truth 'well told' will win and 'we the people' will speak loudly this fall. We need no guns, signs, shouts of despair about leaving our country, et cetera. We simply need to apply critical thinking, calm ourselves, then vote, get others to register to vote, help others vote...and the power of the people will be heard. Let us stop whining, writing and speaking with animus and channel our anger into action that is thoughtful and strategic. Vote.
My name is Earl. Long before the Dixie Chicks stuffed me in a trunk or the TV series about redemption, I was proud to share the name with Earl Warren, a hero of my childhood.
The Supreme Court has not become the least respected part of the federal government. Congress retains that honor. But that it is fallen farther and faster is appalling.
I say this as someone who worked for the federal government for 30 years and was sired by a gentleman who worked for it for 50 years. It is precisely because I am a patriot that I am so appalled by the decisions of the Court majority.
30 years ago, when my first child was born, I was told by my mother’s friend “ He can grow up to be the president.” My reply was, “ But Chief Justice of the US Supreme Court is really where all the power is.” Boy, was I ever wrong. How much “power” does John Roberts actually hold now?
An aside, my eldest son received a BA in marketing and became a master salesman for a Fortune 100 company. I’m sure if he had become an attorney he would’ve argued a fabulous case before the SCOTUS.
US Constitution Article 3 Section 1 "...The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour," https://constitution.congress.gov/browse/essay/artIII_S1_8_1_3/ A little history: " in 1804 Jeffersonian Republicans attempted to remove Supreme Court Chief Justice Samuel Chase, who they viewed as openly partisan and biased against their party.10 The allegations against Chief Justice Chase included that he acted in an "arbitrary, oppressive, and unjust manner" at trial, misapplied the law, and expressed partisan political views to a grand jury.11 The attempt failed, and Congress has never removed a federal judge for disagreement with the law's application or because of difference in political views." It seems high time to remove a Supreme Court Justice or two or three or five for " arbitrary, oppressive and unjust manner" starting with Justice Alito, then Justice Thomas and if the Congress is on a roll Justice Barrett if she has written any opinions along the same lines as Justice Alito's writings. I would think just adding your name to Justice Alito's opinion would be enough. Justice Gorsuch should be removed because his confirmation was in contempt of the Constitution by Majority Leader McConnell and Justice Kavanaugh simply for incompetence. Justices Thomas and Kavanaugh should at a minimum recuse themselves from any judgement concerning women because of sexual harassment allegations that were never permitted to be fully addressed. By ignoring the Ninth Amendment they have made cruelty law. This must be remedied! NOW!
Dems must campaign OPENLY on codifying Roe if they get the majority even if it means ending the filibuster. IT CAN HAPPEN by flipping a few flippable seats: WI, PA, OH. Then Manchin and Sinema won’t matter.
While we are at it, aim to flip all possible seats. Increase support to candidates Val Demings in FL and Cheri Beasley in NC. There is a lot to be done. The more genuinely liberal or progressive senators we have, the more they can get done.
Unfortunately, don’t forget Georgia and Arizona that are neck and neck to hold seats. We could be back to square one if we don’t really come out for those seats!
Let’s be clear that the senate “do nothings” have been hogtied by the likes of 2 Dems since 2021 and, most importantly, by a Republican Party that has made it clear they do not subscribe to the notion of shared governance with either the Dems or majority population, only business & $$$ get their attention and votes
We, as a nation, saw the misbehavior and criminal acts by #45. It's all on audio and video tapes. The House saw the same and impeached him over them twice. The current woebegone Republican senators simply refused to protect the people from this lunatic president and voted no. The VERY SAME people that severely condemned his actions during the highly emotional follow up to the insurrection. I totally agree with your sentiments, Patricia.
Cathy, you are so right, which doesn't mean the senate will have the guts or the votes to do it. We *are* getting close to having the votes to rebalance the court by expanding it, which is the bare minimum to bring democracy back from the brink. I like the idea of a new Federal Review Court, created with all the guardrails including term limits, code of ethics, etc, that would take over the Stench Court's functions of judicial review, including review of all its recent decisions to over-rule the many bad ones.
An old New Yorker cartoon by David Sipress on my fridge shows eight of the US's founding fathers gathered around a table reviewing a long document. The man holding the paper says, "Now, should we add something at the end about how wise we are and therefore nothing in here should ever be changed?"
In my reading of history, it is evident to me that the "founders" considered the Constitution to be a "work in progress". A document to be reviewed and improved regularly in an effort to make it more efficient and to reflect the realities of a rapidly changing world. And their world was spinning...
Let us get some perspective here. While the founders had some English precedents to base their work on...they were truly inventing a brand new form of government - creating a new nation from scratch! The idea that they could make it "perfect" and that this "perfect" would endure without adjustment is just naive and frankly, stupid.
Do we look at industry that way? How do we view science or medicine? How about sports performance and the rules that govern it? Are there not to be adjustments and progress? Learning and growing smarter - isn't that a goal?
IMO, this is the central tenet that holds us back from being an intelligent nation. The extreme right uses the Constitution as if it were a document handed down from the Heavens - to be worshiped and interpreted in the same way they use religion - for power. To protect their minority from "others". And oh how devilishly creative they are in that effort. I guess we shouldn't be surprised. Look how they use the Bible to meet their needs - cherry picking references, using the name of God to justify their horrors.
Frankly, I waver between hoping that we can all get along and pull ourselves out of this slimy mess....and just wishing that we could start over again - the Modern Tolerant States of America. Let the others go their own perverted and cruel way.
If the Radical Right does gain complete dominance in the next couple of elections, this may happen more subtly than a series of secessions. In fact it has already begun. States are passing laws that work around the recent decisions of the Supremely Sick Court. Maine, NY and MA are legislating creatively. I think I see a US that will begin to look more like Europe. Loosely united in terms of National Defense - a confederation of nation states that are radically different in their sense of democracy and human rights. It will be left to states, counties, cities and towns to protect their citizens and make whatever efforts we can to save the planet.
And, I, for one, am fed up with distributing money to states that deliberately wallow in educational backwaters and pass laws right out of The Handmaid's Tale.
I agree with you. I’m happy that some states have become creative to circumvent their laws around the banana supreme court. Per your last paragraph, I too am extremely tired of having our tax dollars pay for certain states that continually fail in education and basic healthcare. How can the blue states circumvent this issue? Likely it’s never been done in modern times. I’m tired of throwing money towards broken systems.
Add to that the increasing poverty rates because of not attracting jobs to the state. States need to be creative and energized to replace industry that dries up by providing re-education for those employees and bringing in new industry. Taking away the rights of citizens isn't the way to attract new financial investments.
Mostly agree, but the Stench Court shows no devotion whatsoever to the Constitution. They ignore, distort, and invent to suit their reactionary policy goals.
Like all trumpists, the rogue majority of this court doesn’t really care about the rule of law or the constitution. They only care about what they want and will bastardize any law or article or amendment. They are a court of liars and manipulators.
It is breathtaking that I agree with your formulation, but I do. "They are liars and manipulators." who would have thought the Court would come to this?
Sadly, yes. But the Ninth Amendment got sidetracked in Griswold, where Justice Douglas wrote that the right to privacy was included in the "penumbras" of other rights mentioned in the Constitution, including the 9th Amendment. That logic suggests that there are "Ninth Amendment rights", which is wrong. The Ninth Amendment tells us how to interpret the Constitution; it says nothing about what other rights, if any, exist. Alito attacked this articulation of the Ninth Amendment (the "penumbras") but not the plain rule of construction included in the Amendment.
It is a tricky argument. The Ninth Amendment does not say there is a right to privacy. But it says you cannot claim there is no right to privacy in the Constitution merely because it is not mentioned. But that is the entirety of Alito's analysis.
I recommend reading the concurring opinions and the dissents in Griswold. They both argue that there is no need to find a penumbral right of privacy, but that it is inherent in the plain meaning of the word "liberty" in the 14th Amendment.
I read that RBG always believed that Roe v. Wade should have been decided as an equal access provision, rather than a privacy decision. I wonder whether that would have changed the outcome of Dobbs? Thank you for your detailed analyses of these complicated issues!
I doubt it. The supreme buffoons wear their opinions on their undeserved judicial robes. They start with the desired result and then find any rationale that they can conjure out of whole cloth.
My old copy of the Constitution is getting quite worn out with all the information I learn each and every day. Thank you for the Ninth Amendment information, Robert. It puts a new perspective in my head.
This is one of the most succinct, excellent statements I have read on this, Robert. I would like to see it, or a shortened version, in newspapers across the country. If we all sent you links to our papers, might you consider submitting?
Yes to this! Is this something you would have to do (an awful lot of papers!) or may we have permission to cut and paste your column today to our local papers?
Well, Alioto neglected to "mention" that the word "woman" is not even in the Constitution, so his statement that the Constitution does not enumerate the right to an abortion is disingenuous in the least--if not an outright lie of omission. A national association of historians just sent a letter of protest that Alioto ignored/lied about the well-documented, long history of abortion on these shores. Why not include ignoring the 9th Amendment to the list that Alioto ignored/lied about in his decision?
I read an essay somewhere today about the post-legal SCOTUS -- they're now just playing Calvinball
Whether incompetence or willful political disregard, scalia merits shaming, though it appears he has little capacity for shame. Does anyone‘follow the money’ where the justices are concerned?
Good question. I for one have always wondered why Justice Kennedy retired so unexpectedly. His family and Trump’s are close friends, and his son soon after was promoted to a juicy job at Deutche Bank’s property loan department; DB being the only bank that would loan Trump money. Seems a bit bogus, imho.
I remember that--it felt icky as it was happening, but no one at Justice (or anywhere it seemed) investigated. I am frustrated and mystified that the ethics of what money justices receive (beyond their lifetime salary/pension) and from whom has been carefully avoided. An annual audit--to assure us all that they are as ethical as we need them to be--seems a low bar for the privilege of lifetime employment. Could not Congress (if it were functioning properly) implement such a requirement?
Robert a bunch of other Informed and knowledgeable commentators. Not only are they seemingly above (outside even) the law, but beyond the reach of common ethical behavior.
I think it was Rolling Stone that did an expose` of very fishy doings from tRumpville to get Kennedy off the court (I used to capitalize "the court.") There was also a video circulating of tRump and Kennedy walking down a hall, backs to the photographer, tRumpy leaning in, saying something, then mild mannered Kennedy leaping back, clearly angry, yelling something that might have been "NO!" And a couple days later he announced his retirement.
Jul 10, 2022·edited Jul 10, 2022Liked by Robert B. Hubbell
Dear Robert, Your arguments today and in the preceding newsletter are compelling and devastating. (No sign of covid brain fog!) And I have also been commenting here that the Originalists want to take the Constitution back to when the US was a slaveholding society and women could not vote. How do the Supreme Court justices get away with such shoddy arguments?! They should be impeached. Shouldn't the Dems be aiming for a supermajority in House, Senate, Presidency to enact such a process - or do something effective?
It is difficult to comment on this since I have no legal standing. Or, should I say no training in constitutional law. Yet, as a voter, I find it takes my breath away to think about how shamelessly six justices can take away the rights of women to reproductive health care with such arrogance and hostility. We must do everything to restore what these justices have taken back after nearly 50 years. Vote in 2022 & 2024.
As someone with legal training and more than 50 years at the bar, it saddens me not only that rights are erased, but at the harm being done to the fabric of the law itself.
This! The fabric of law is eroding rapidly.
While this is true at the moment, our best option is to get out the vote. Talk with all friends and family to assure they are registered and know where and how to vote.
I’d love your take on my comment above. If you can’t see it, it goes like this. Why doesN’t the establishment clause in the first amendment offer an argument for abortion? Only the Christian faith believes life begins at conception, and by ruling against abortion, they are denying the beliefs of Muslims and Jews and maybe some others. Abortion should be an issue between a woman and her god.
Generally, I agree with you, but someone who is not Christian could believe that life begins at conception. There is a certain simple logic to it. One of the best points of Blackmun's much underrated opinion in Roe was the way he undercut that thought, mainly from a historical perspective.
Amen!
It is absolutely chilling, not just the Justices, either. It's like a hundred Attilas and his minions have been launched from every direction. There is even an evangelical movement to apply the death penalty to women who have aborted.
I'm glad that Evangelicals are so committed to being pro-life, as they like to refer to themselves. I also wonder who they expect to take care of these babies while their mothers are in prison or dead?
That is just another sign of how sick some of our fellow citizens have become since DJT, built a presidency on grievances and vitriol.
And lies. Thank you, Fox News.
It is a sickness! They have lost any sense of a moral compass or Christian teachings.
The quality of the sophistry of Supreme Court opinions is in sharp decline since the death of Scalia. One possible cause: the tendency of conservative judges to hire only like-minded clerks put forward by the Federalist Society or a few Yale faculty members. They’re in a bubble, and there’s no one nearby with a hat pin.
Well said: They’re in a bubble, and there’s no one nearby with a hat pin
Scalia was a fraud! Perhaps he would consider himself the first ‘originalist’!
He essentially rewrote the 2nd Amendment ignoring the words ‘well regulated militia’, oops not what the founding fathers wrote!
He made his own rule for denying Gore a recount in Florida, because in ‘Tony’s’ words ‘…a long period of time to do a recount would tarnish little bush’s presidency’! Can’t find that pseudo reasoning in the Constitution, nope!
The decline of the court started with Thomas being sworn in. Unlike Thurgood Marshall, Clarence did not have a record of being a champion in the fight for civil rights. He was a second rate bureaucrat who rose through the white boy club by denying affirmative action policies.
The late Julius Chambers, professor of Law at UNC, was the most qualified person to fill the ‘great shoes’ of Justice Marshall!
Scalia was a schmoozer, building his ‘style’ by talking opera with RBG!
Moscow Mitch destroyed the SCOTUS’s “credibility” when he defied the Constitution and his sworn duty and denied Merrick Garland so much as a hearing — this when he had the votes to reject him outright. And, he got away with it.
I don't think it was Merrick Garland specifically. Mitch denied Obama the right to nominate the next SC justice based off justification that he didn't believe and uphold.
So true
Indeed‼️
❤️
The sophistry may have declined, but it was sophistry then as it is now.
This decision by the Roberts court will not stand. It may stand for a while, but history is being written, day by day, week by week, month by month and year by year. As stated by individuals far more notable than me, the arc of history bends towards justice. Democracy is not static. It must be articulated and re-articulated in every generation. Roe stood for 50 years. Time is on the side of justice. Wrongs have been righted before and they will be again. There's far more threatening our democracy today than this one ruling. We face historical forces hell-bent on rewriting most of a century's worth of progress on civil rights. It remains to the electorate to awaken from it's slumber and take action to demand that the government, all three branches, reflect the will of the people. It won't happen if only a fraction of the public participate. It demands that all of us wake up, show up and cast our votes thoughtfully.
Thank you, Nathan. Your comments are well stated, clear, and true. I agree with you that there this is not just a single issue we face but many important civil rights foundational to democracy. Justice will win in time. Sadly, we are a nation demanding immediate gratification in everything and most often the critical matters take time whether personal, in government, even spiritually.
"We the people" must speak out at the ballot box. Not just in big elections but those smaller, less sexy ones. Our voices must be heard by every council person, legislator, congress person on up. I have confidence that truth 'well told' will win and 'we the people' will speak loudly this fall. We need no guns, signs, shouts of despair about leaving our country, et cetera. We simply need to apply critical thinking, calm ourselves, then vote, get others to register to vote, help others vote...and the power of the people will be heard. Let us stop whining, writing and speaking with animus and channel our anger into action that is thoughtful and strategic. Vote.
So true, only 121 days to go, everyone pitch in, just voting is not enough!
Well said!
I'm going to have a t-shirt printed with "Our NINTH AMENDMENT Rights shall not be abridged." probably with a woman's power fist.
I'll take 3 Cathy!! In BLUE!!
My name is Earl. Long before the Dixie Chicks stuffed me in a trunk or the TV series about redemption, I was proud to share the name with Earl Warren, a hero of my childhood.
The Supreme Court has not become the least respected part of the federal government. Congress retains that honor. But that it is fallen farther and faster is appalling.
I say this as someone who worked for the federal government for 30 years and was sired by a gentleman who worked for it for 50 years. It is precisely because I am a patriot that I am so appalled by the decisions of the Court majority.
30 years ago, when my first child was born, I was told by my mother’s friend “ He can grow up to be the president.” My reply was, “ But Chief Justice of the US Supreme Court is really where all the power is.” Boy, was I ever wrong. How much “power” does John Roberts actually hold now?
An aside, my eldest son received a BA in marketing and became a master salesman for a Fortune 100 company. I’m sure if he had become an attorney he would’ve argued a fabulous case before the SCOTUS.
US Constitution Article 3 Section 1 "...The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour," https://constitution.congress.gov/browse/essay/artIII_S1_8_1_3/ A little history: " in 1804 Jeffersonian Republicans attempted to remove Supreme Court Chief Justice Samuel Chase, who they viewed as openly partisan and biased against their party.10 The allegations against Chief Justice Chase included that he acted in an "arbitrary, oppressive, and unjust manner" at trial, misapplied the law, and expressed partisan political views to a grand jury.11 The attempt failed, and Congress has never removed a federal judge for disagreement with the law's application or because of difference in political views." It seems high time to remove a Supreme Court Justice or two or three or five for " arbitrary, oppressive and unjust manner" starting with Justice Alito, then Justice Thomas and if the Congress is on a roll Justice Barrett if she has written any opinions along the same lines as Justice Alito's writings. I would think just adding your name to Justice Alito's opinion would be enough. Justice Gorsuch should be removed because his confirmation was in contempt of the Constitution by Majority Leader McConnell and Justice Kavanaugh simply for incompetence. Justices Thomas and Kavanaugh should at a minimum recuse themselves from any judgement concerning women because of sexual harassment allegations that were never permitted to be fully addressed. By ignoring the Ninth Amendment they have made cruelty law. This must be remedied! NOW!
This senate of do nothings will never allow it. A senate interested in the rule of law would have found trump guilt of the impeachment charges twice.
Dems must campaign OPENLY on codifying Roe if they get the majority even if it means ending the filibuster. IT CAN HAPPEN by flipping a few flippable seats: WI, PA, OH. Then Manchin and Sinema won’t matter.
While we are at it, aim to flip all possible seats. Increase support to candidates Val Demings in FL and Cheri Beasley in NC. There is a lot to be done. The more genuinely liberal or progressive senators we have, the more they can get done.
Unfortunately, don’t forget Georgia and Arizona that are neck and neck to hold seats. We could be back to square one if we don’t really come out for those seats!
“Rule of law” along with “Separation of Church and State”. Gone and forgotten by Congress, SC, DOJ. et al.
Then VOTE THEM OUT!!!!!
Vote Blue in '22! Dems have 5 point leads in key states, including Georgia!
Let’s be clear that the senate “do nothings” have been hogtied by the likes of 2 Dems since 2021 and, most importantly, by a Republican Party that has made it clear they do not subscribe to the notion of shared governance with either the Dems or majority population, only business & $$$ get their attention and votes
We, as a nation, saw the misbehavior and criminal acts by #45. It's all on audio and video tapes. The House saw the same and impeached him over them twice. The current woebegone Republican senators simply refused to protect the people from this lunatic president and voted no. The VERY SAME people that severely condemned his actions during the highly emotional follow up to the insurrection. I totally agree with your sentiments, Patricia.
Cathy, you are so right, which doesn't mean the senate will have the guts or the votes to do it. We *are* getting close to having the votes to rebalance the court by expanding it, which is the bare minimum to bring democracy back from the brink. I like the idea of a new Federal Review Court, created with all the guardrails including term limits, code of ethics, etc, that would take over the Stench Court's functions of judicial review, including review of all its recent decisions to over-rule the many bad ones.
And now, back to writing postcards.
Thanks for all you do for democracy, Joan!
Thank you Mary Pat!!!!!
💙
An old New Yorker cartoon by David Sipress on my fridge shows eight of the US's founding fathers gathered around a table reviewing a long document. The man holding the paper says, "Now, should we add something at the end about how wise we are and therefore nothing in here should ever be changed?"
In my reading of history, it is evident to me that the "founders" considered the Constitution to be a "work in progress". A document to be reviewed and improved regularly in an effort to make it more efficient and to reflect the realities of a rapidly changing world. And their world was spinning...
Let us get some perspective here. While the founders had some English precedents to base their work on...they were truly inventing a brand new form of government - creating a new nation from scratch! The idea that they could make it "perfect" and that this "perfect" would endure without adjustment is just naive and frankly, stupid.
Do we look at industry that way? How do we view science or medicine? How about sports performance and the rules that govern it? Are there not to be adjustments and progress? Learning and growing smarter - isn't that a goal?
IMO, this is the central tenet that holds us back from being an intelligent nation. The extreme right uses the Constitution as if it were a document handed down from the Heavens - to be worshiped and interpreted in the same way they use religion - for power. To protect their minority from "others". And oh how devilishly creative they are in that effort. I guess we shouldn't be surprised. Look how they use the Bible to meet their needs - cherry picking references, using the name of God to justify their horrors.
Frankly, I waver between hoping that we can all get along and pull ourselves out of this slimy mess....and just wishing that we could start over again - the Modern Tolerant States of America. Let the others go their own perverted and cruel way.
If the Radical Right does gain complete dominance in the next couple of elections, this may happen more subtly than a series of secessions. In fact it has already begun. States are passing laws that work around the recent decisions of the Supremely Sick Court. Maine, NY and MA are legislating creatively. I think I see a US that will begin to look more like Europe. Loosely united in terms of National Defense - a confederation of nation states that are radically different in their sense of democracy and human rights. It will be left to states, counties, cities and towns to protect their citizens and make whatever efforts we can to save the planet.
And, I, for one, am fed up with distributing money to states that deliberately wallow in educational backwaters and pass laws right out of The Handmaid's Tale.
I agree with you. I’m happy that some states have become creative to circumvent their laws around the banana supreme court. Per your last paragraph, I too am extremely tired of having our tax dollars pay for certain states that continually fail in education and basic healthcare. How can the blue states circumvent this issue? Likely it’s never been done in modern times. I’m tired of throwing money towards broken systems.
Add to that the increasing poverty rates because of not attracting jobs to the state. States need to be creative and energized to replace industry that dries up by providing re-education for those employees and bringing in new industry. Taking away the rights of citizens isn't the way to attract new financial investments.
Mostly agree, but the Stench Court shows no devotion whatsoever to the Constitution. They ignore, distort, and invent to suit their reactionary policy goals.
Like all trumpists, the rogue majority of this court doesn’t really care about the rule of law or the constitution. They only care about what they want and will bastardize any law or article or amendment. They are a court of liars and manipulators.
It is breathtaking that I agree with your formulation, but I do. "They are liars and manipulators." who would have thought the Court would come to this?
Indeed! When Big Money, in all its nefarious ways, entered politics, the skids were put under our democracy.
You are working overtime! We appreciate your brainwork.
Great post. Was this argument raised and briefed in Dobbs?
Sadly, yes. But the Ninth Amendment got sidetracked in Griswold, where Justice Douglas wrote that the right to privacy was included in the "penumbras" of other rights mentioned in the Constitution, including the 9th Amendment. That logic suggests that there are "Ninth Amendment rights", which is wrong. The Ninth Amendment tells us how to interpret the Constitution; it says nothing about what other rights, if any, exist. Alito attacked this articulation of the Ninth Amendment (the "penumbras") but not the plain rule of construction included in the Amendment.
It is a tricky argument. The Ninth Amendment does not say there is a right to privacy. But it says you cannot claim there is no right to privacy in the Constitution merely because it is not mentioned. But that is the entirety of Alito's analysis.
I recommend reading the concurring opinions and the dissents in Griswold. They both argue that there is no need to find a penumbral right of privacy, but that it is inherent in the plain meaning of the word "liberty" in the 14th Amendment.
I read that RBG always believed that Roe v. Wade should have been decided as an equal access provision, rather than a privacy decision. I wonder whether that would have changed the outcome of Dobbs? Thank you for your detailed analyses of these complicated issues!
I doubt it. The supreme buffoons wear their opinions on their undeserved judicial robes. They start with the desired result and then find any rationale that they can conjure out of whole cloth.
We’ll, said.
My old copy of the Constitution is getting quite worn out with all the information I learn each and every day. Thank you for the Ninth Amendment information, Robert. It puts a new perspective in my head.
This is one of the most succinct, excellent statements I have read on this, Robert. I would like to see it, or a shortened version, in newspapers across the country. If we all sent you links to our papers, might you consider submitting?
It really cuts to the heart of the matter.
Excellent idea. Or maybe we can create our own letters to the editor and extensively quote this edition.
It would be thrilling to see this happen.
Here's the info for the (Albany, NY) Times Union. See esp. the "commentary" section half-way down the page.
https://www.timesunion.com/help/article/How-to-submit-a-letter-to-the-editor-or-commentary-16350731.php
Yes to this! Is this something you would have to do (an awful lot of papers!) or may we have permission to cut and paste your column today to our local papers?
It would do well to be in “Causes” and go to all of our separate legislators!
Exactly. The five radical right justices seem to have decided the ninth amendment doesn’t count, and they’re pretty slippery about the 14th.
Nah, what 14Th Amendment! The rogue right wing zealots have eviserated the Constiturion!
Well, Alioto neglected to "mention" that the word "woman" is not even in the Constitution, so his statement that the Constitution does not enumerate the right to an abortion is disingenuous in the least--if not an outright lie of omission. A national association of historians just sent a letter of protest that Alioto ignored/lied about the well-documented, long history of abortion on these shores. Why not include ignoring the 9th Amendment to the list that Alioto ignored/lied about in his decision?
I read an essay somewhere today about the post-legal SCOTUS -- they're now just playing Calvinball
Whether incompetence or willful political disregard, scalia merits shaming, though it appears he has little capacity for shame. Does anyone‘follow the money’ where the justices are concerned?
Good question. I for one have always wondered why Justice Kennedy retired so unexpectedly. His family and Trump’s are close friends, and his son soon after was promoted to a juicy job at Deutche Bank’s property loan department; DB being the only bank that would loan Trump money. Seems a bit bogus, imho.
I remember that--it felt icky as it was happening, but no one at Justice (or anywhere it seemed) investigated. I am frustrated and mystified that the ethics of what money justices receive (beyond their lifetime salary/pension) and from whom has been carefully avoided. An annual audit--to assure us all that they are as ethical as we need them to be--seems a low bar for the privilege of lifetime employment. Could not Congress (if it were functioning properly) implement such a requirement?
In a previous post, Robert enumerated several instances where one of the ‘ injustices’ should have refused himself.
Robert a bunch of other Informed and knowledgeable commentators. Not only are they seemingly above (outside even) the law, but beyond the reach of common ethical behavior.
Yes. It seems that are, after all,, some who are above the law.
I think it was Rolling Stone that did an expose` of very fishy doings from tRumpville to get Kennedy off the court (I used to capitalize "the court.") There was also a video circulating of tRump and Kennedy walking down a hall, backs to the photographer, tRumpy leaning in, saying something, then mild mannered Kennedy leaping back, clearly angry, yelling something that might have been "NO!" And a couple days later he announced his retirement.
Count me in on that line of political machinations! However, I believe Kennedy’s son worked for the ‘dirty’ bank before papa resigned!
I know it was mentioned during Kavanaugh's hearings that a huge debt he and his wife had mysteriously got paid off.
https://www.motherjones.com/politics/2021/09/heres-the-truth-about-brett-kavanaughs-finances/
Dear Robert, Your arguments today and in the preceding newsletter are compelling and devastating. (No sign of covid brain fog!) And I have also been commenting here that the Originalists want to take the Constitution back to when the US was a slaveholding society and women could not vote. How do the Supreme Court justices get away with such shoddy arguments?! They should be impeached. Shouldn't the Dems be aiming for a supermajority in House, Senate, Presidency to enact such a process - or do something effective?