Today’s Edition: Republicans try to walk back the Court’s ruling.

September 7, 2021

          I am still in the Sierras with limited access to the internet, so this edition of the newsletter will be brief.

          Republicans don’t quite know what to do with the fact that the Supreme Court preemptively overruled Roe v. Wade by allowing the Texas anti-abortion law to go into effect. Senator Ted Cruz said that the was “proud” that Texas was leading the way in outlawing abortion (of course he did), while other Republicans tried to suggest that the ruling was “temporary.” Senator Bill Cassidy of Louisiana said that the Supreme Court will “swat it away . . . If it’s as terrible as people say it is.” Trump doesn’t appear to understand the one-page ruling, saying that it is “complex” and that it is “probably temporary.”

          In other words, even Republicans are in shock and disbelief that the Supreme Court allowed the Texas law to go into effect. Republicans are now in the position of hoping that Supreme Court will come to their rescue by upholding Roe v. Wade. That isn’t going to happen. The reason the Court was so cavalier in upholding the Texas anti-abortion law is because the reactionary majority knows that it intends to overrule Roe v. Wade in the coming term. Indeed, it has granted review of a case from Mississippi (Dobbs) where the underlying law is plainly unconstitutional, and the lower courts so ruled. The only reason to review the lower court ruling is to reverse it—which necessarily involves overruling Roe v. Wade. See Vox, Supreme Court will hear an abortion case that could undo Roe v. Wade. (The Court granted review on a single question: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.”)

          In the coming weeks and months, it is likely that individual courts will grant injunctions that apply only to the specific women and providers involved in those cases. I suppose it is even possible that the Supreme Court will look for an escape hatch to undo the grievous political damage it has inflicted on the GOP by upholding a vigilante statute that puts bounties on women seeking medical treatment. Those detours do not matter. The Court has signaled its intentions with the unmistakable clarity. It will overrule Roe v. Wade in the coming term. We are living in a post-­Roe world. Sadly, we must accept that fact. The hard-won gains of tens of millions of women have been lost in a generation.

          As you plan your political activism, do not be distracted by arm-waving and hair-splitting of apologists for the Court. The deed is done. It is now up to us to reform the Court and take back the Texas legislature so that the will of the people of Texas can be reflected in its legislation. The Texas anti-abortion law does not have the support of the people of Texas. It was passed to fuel the doomed presidential ambitions of Governor Greg Abbott, who is trying to run to the right of Trump. Such is the havoc Trump has wrought on the GOP.

          Harvard Law professor Lawrence Tribe published an op-ed in which he urges the Department of Justice to charge the Texas “bounty hunters” under Section 242 of the federal criminal code, which “makes it a crime for those who, “under color of law,” willfully deprive individuals “of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.” The Department of Justice has said that it will “protect” people seeking abortions in Texas and their providers, though the extent of the protection seems to be limited to preventing threats of violence. See NYTimes, “Justice Department Says U.S. Will ‘Protect’ Texas Women Seeking Abortions - The New York Times.”

          An aspect of the Court’s ruling that deserves much more attention is the use of the so-called “shadow docket” to decide matters of significance without allowing briefing or argument on the merits. Justice Kagan noted the abuse of the “shadow docket” in her dissent. See WaPo, “Justice Kagan’s dissent shows how the Supreme Court abuses its shadow docket.” During the sixteen years between Bush and Obama, the Court issued orders from its shadow docket only four times. Per the Post,

          [T]he justices issued 28 orders at the request of the administration that blocked adverse lower-court rulings while the government appealed. This had the effect of allowing the government to enforce policies that had been invalidated by every other court ruling on their legality.

          The Court is broken. We must fix it if we have any hope of preserving the advances in civil rights garnered over the last fifty years.

Senator Manchin and the Senate’s consideration of the reconciliation resolution.

          In last Friday’s newsletter, I said that I felt that Democrats might be better off if Senator Manchin left the Democratic caucus. A reader sent a note explaining all of the obvious reasons why my statement was ill-considered. The reader is 100% correct, as I told him. But I also noted that I was reacting to an op-ed by Senator Manchin in the Wall Street Journal in which he lectured Democrats about the dangers of inflation and excessive spending. Because of a fluke of history, Senator Manchin enjoys influence far beyond his legislative abilities or contribution to the Senate. He can flex that unexpected influence behind the scenes if he chooses. But by taking to the opinion pages of the WJS to lecture Democrats, he seems to be going out of his way to pick a fight.

          Senator Manchin’s moralizing may be insufferable, but he is part of the Democratic caucus, and we must make do with what we have. So, like it or not, Senator Manchin will be calling the shots as the $3.5 trillion reconciliation resolution makes its way through Congress.

          Why should we care if Manchin succeeds in trimming the reconciliation resolution by a trillion dollars? Because if he pushes too far, the carefully crafted compromise on the infrastructure bill and the reconciliation resolution will fall apart—and we may end up with nothing. The combined effect of those bills is a once-in-a-generation chance to improve the lives of hundreds of millions of Americans. As we work our way though the legislative gauntlet in September, it would be good to remind yourself of how visionary Biden’s proposals are. See Forbes, “Here’s Why Democrats’ $3.5 Trillion Budget Plan Could Impact Every Single American.”

Concluding Thoughts.

In response to last Friday’s edition, I received emails from people whose lives were devastated by the effects of illegal abortions. But the most frequent comment was the following: The Texas anti-abortion statute is a form a class warfare. Women with means will travel to other states for abortions. Poor women in Texas, primarily women of color, will be denied access to medical treatment because their providers will be unwilling to discuss their options. That fact is particularly outrageous given that the majority white legislature governs a state with a majority or minority populations. As I said, it is time to take back the Texas legislature so that it can begin to do the will of the majority of Texans.

          Talk to you tomorrow!

[N.B. – no time to proofread tonight, so expect the more than the usual number of typos.]