Today’s Edition: A judicial coup d'état.
September 3, 2021
On January 6th, Republicans attempted a coup d'état by assaulting Congress. They failed. On September 1st, Republicans attempted a coup by assaulting the Constitution. They succeeded—for now. Texas designed its anti-abortion statute for the express purpose of flouting the constitutional rights guaranteed in Roe v. Wade. Faced with a frontal assault on the Constitution, the Court’s reactionary majority refused to act. Its inaction not only abandoned our nation’s charter, but it also undermined the legitimacy of the Court for generations to come. The Court has reduced itself to an ancillary appendage of the Senate. Worse, it has become an irregular militia in the slow-rolling GOP effort to retain power by circumventing the Constitution and overriding the will of the people.
In a one-page order that reversed nearly fifty years of precedent, the majority resorted to reasoning that (as Wolfgang Pauli said) “is so bad, it’s not even wrong.” The petitioners asked the Court to issue an injunction against a deliberately unconstitutional statute so that the parties could develop a full record for the Court to consider the merits. Injunctions are routinely issued to preserve the “status quo” to give courts and parties time to brief novel and complex issues. Here, the majority turned that rule on its head, denying the injunction because the petition “raised complex and novel antecedent procedural questions on which they have not carried their burden.” The petitioners failed to carry their burden because the Fifth Circuit Court of Appeals refused to allow the federal district court to hold a hearing on the merits of their request for relief—thereby ensuring that there would be no record on which the Supreme Court could act. The Supreme Court engaged in a cynical game of “Catch-22” that will forever be a stain on the legacies of Alito, Kavanaugh, Gorsuch, Barrett, and Thomas.
The majority’s opinion is steeped in bad faith, as is made clear by the dissent of the Chief Justice. (Roberts is vainly attempting to prevent the Court from descending into a lawless free-for-all—but only because he wants to protect his already tarnished legacy.) Roberts wrote as follows:
The State defendants argue that they cannot be restrained from enforcing their rules because they do not enforce them in the first place. I would grant preliminary relief to preserve the status quo ante—before the law went into effect—so that the courts may consider whether a state can avoid responsibility for its laws in such a manner.
Defendants argue that existing doctrines preclude judicial intervention, and they may be correct. But the consequences of approving the state action, both in this particular case and as a model for action in other areas, counsel at least preliminary judicial consideration before the program devised by the State takes effect.
We are at this point asked to resolve these novel questions—at least preliminarily—in the first instance, in the course of two days, without the benefit of consideration by the District Court or Court of Appeals. We are also asked to do so without ordinary merits briefing and without oral argument.
Of particular note is Roberts’ prediction that other states would accept the majority’s invitation to violate the Constitution by engaging in the same gamesmanship to evade Supreme Court review. Less than twenty-four hours after the Court issued its opinion in Whole Woman's Health v. Jackson, South Dakota Governor Kristi Noem announced her intention to tighten that state’s already unconstitutional restrictions on abortion. See Argus Leader, South Dakota Governor wants abortion laws tightened after Texas ban stands. Noem is a potential presidential contender in 2024. Her action ensures that every other GOP governor considering a presidential run (i.e., all of them) will follow her lead.
Comments from readers today ran the gamut from outrage to disbelief to despair. Those feelings are understandable and justified. As I wrote yesterday, we should expect things to get worse before they get better. The reactionary majority has served notice that it does not care an iota about precedent or fairness or the appearance of objectivity. They have a majority without Roberts and will do whatever they want. While we can mourn the irreparable damage to the Court, we should not sulk or brood as we hope that the Court will reverse itself or slow the pace of change. It will not. Don’t set yourself up for further disappointment. Instead, steel yourself for the fight.
Half-measures are unacceptable. In a statement issued Thursday, Biden promised a “whole of government” response to the decision. But in the absence of ending the filibuster and expanding the Court, the “whole of government” approach is window-dressing and temporizing. Biden needs to abandon his support for the filibuster to clear the path for reforming the Court from the ground up. The House will pass a bill in the coming days to codify the ruling in Roe v. Wade. While laudable, the action amounts to performance art. The House bill will die in the Senate unless the filibuster is eliminated.
The practical path forward in any reasonable amount of time is to enlarge the Court. We can do that with majority votes in both chambers of Congress if the filibuster is eliminated. Readers routinely make sensible recommendations that require amending the Constitution—a process that requires ratification by three-fourths (38) of the states. That will never happen. Let’s focus on what is achievable and not divert energy by pursuing solutions that will never be adopted.
Many readers urge that expanding the Court will “destroy its legitimacy.” Too late for that! Others argue that the Court will grow to an unwieldy size as Republicans and Democrats appoint additional justices when they trade control of the presidency and the Senate. That might happen, but it has been sixteen years since a Republican presidential candidate won the popular vote. It is far more likely that we will have a Democratic president with a Democratic Senate than the opposite. We should be willing to take that risk, Will enlarging the Court diminish its stature and undermine it legitimacy? Yes. But what is the alternative that does not involve amending the Constitution?
Of course, the best way to undo the damage by the reactionary majority is to take back control of state legislatures and governorships. Sadly, it will be far easier to flip the Texas legislature or elect a Democratic governor in Texas than it will be to bow and scrape before Joe Manchin and Kyrsten Sinema in a futile effort to end the filibuster. Republicans achieved their victory in Whole Woman's Health by securing complete control of state governments. Democrats and Democratic leaning Independents vastly outnumber Republicans. The only impediment to landslide Democratic victories is apathy.
If any good comes out of Whole Woman’s Health, it will be that new generations of Democrats will understand that the fight over Roe v. Wade was not an abstract argument over arcane law. And though the burden should not be on women to lead this fight, I hope that they rise up and hold Democratic leadership accountable for decades of inaction and lethargy that created this moment. The House bill codifying Roe v. Wade should have been passed in every session in which Democrats held a majority in the House. The fact that it took the demise of Roe v. Wade to spur Democrats to action is profoundly disappointing.
Take a few days to allow the outrage and disappointment to subside. Then re-engage in political activism as never before. Do not despair, do not give up, do not move out of the country. Republicans maintained focus for fifty years to overturn Roe v. Wade. We must be more disciplined, more aggressive, and more determined than our opponents. If we do that, we will prevail over the long-term. In the short term, you can donate to defense funds and travel funds to help providers and patients in Texas. See “Chop Wood, Carry Water 9/2 - by Jessica Craven.”
Joe Manchin threatens $3.5 reconciliation resolution.
Senator Joe Manchin has told Democrats to “hit pause” on Biden’s $3.5 trillion reconciliation resolution. I am beginning to wonder if Democrats would be better off with Machin switching parties. We could then focus on increasing our margins in the Senate in other battleground states. Josh Marshall in Talking Points Memo explains the games that Joe Manchin is playing—and the possible collapse of the bipartisan infrastructure bill if he persists. See Talking Points Memo, “What’s Joe Manchin Up To?” As Marshall writes,
But certainly progressives will refuse to vote for his prized bipartisan mini-bill if this is what he plans to do. And they’ll be right to do so. There was a cross party deal: both factions support both bills. So, no reconciliation bill, no bipartisan mini-bill. No nuthin.
A reader who is a member of Global Partnership For Afghanistan sent a list of organizations to help refugees from and residents of Afghanistan. If you would like to reach out to a representative the Global Partnership, email email@example.com. Here is the list compiled by Global Partnership for Afghanistan:
American Immigration Lawyers Association: Has extensive resources for assisting Afghans eligible for SIVs/P1/P2/parole here. (Aila.org)
Catholic Charities USA: Provides services including legal assistance, translation, in-kind assistance, housing, and childcare for Afghans. Overview information and how to find local agencies can be found here. (Catholiccharitiesusa.org)
Georgetown Institute for Women, Peace, and Security: Launched a campaign to protect Afghan Women, with both advocacy and fundraising. Learn more here.(protectafghanistan.org)
Hebrew Immigrant Aid Society (HIAS): Has compiled a list of resources and is seeking volunteers and donations. The list can be found here. (hais.org)
International Rescue Committee: Helps people whose lives and livelihoods are shattered by conflict and disaster to survive, recover, and regain control of their future. Learn more here.(rescue.org)
Refugee Council USA: Helps locate refugee resettlement agencies in communities across the country where there are opportunities to help Afghan refugees. Information can be found here.(rcusa .org)
School of Leadership Afghanistan (SOLA): Continuing to provide Afghan girls, grades 6-12, a rigorous education in the only Afghan-led secure, boarding school setting. Information can be found at: www.sola-afghanistan.org. Per a note on the website, the entire school is in route to Rwanda.
In today’s email responses, I heard from many women in their seventies who fought in the 1960s and 1970s to gain federal protection for freedom of choice. Some were resolute, but most were dejected. They cannot believe that the rights they fought for would be lost in their lifetimes. Some said they have given up and can no longer fight. That position is understandable, though regrettable. They have done their part. It is time for new generations of Democrats to pick up the standard and defend hard-won rights.
I know that the there are many important issues that demand attention. It can be overwhelming at times as we try to find bandwidth for competing issues. But some issues must be on the list for everyone, including voting rights, climate change, racial justice, and reproductive rights. It is unfortunate that much is being asked of us, but we have no choice. Moreover, we are the beneficiaries of the tireless efforts of activists who came before us. We are in their debt and must repay their generosity by emulating them.
It is our turn to defend the ramparts of freedom. We are not being saddled with an undue burden. Every generation must step into the breach. We need only hold the line until the next generation is ready to fight. But we must show them the way. If we expect our children and grandchildren to understand that democracy is worth defending, they must grow up watching us do so.
Our thoughts are with the victims of Hurricane Ida and its aftermath, including the victims of flooding in New York, New Jersey, and Philadelphia.
As we approach the Labor Day holiday in the U.S., I may skip editions of the newsletter on Monday and Tuesday. I will be at our remote cabin the Sierras and will be meeting with state regulators who will be inspecting the small water system that serves three dozen cabins. (I am president of the water company, so must attend.) I will publish if possible, but if you don’t hear from me until next Wednesday, all is well.
We are living through dramatic and challenging times. We are in a marathon, not a sprint. Rest up over the weekend. On Tuesday, start anew.
Talk to you on Wednesday.