"It May Already Be Too Late to Confirm a Replacement for Ruth Bader Ginsburg" is a silly title that isn't even trying to say what this TNR article is about.

Not long ago, lawprof Erwin Chemerinsky and others were pressuring Justice Ruth Bader Ginsburg to heave herself out of her seat on the Supreme Court to give President Obama the opportunity to replace her, but no point now, according to Simon Lazarus and Tom Donnelly at The New Republic, in a piece with the silly title "It May Already Be Too Late to Confirm a Replacement for Ruth Bader Ginsburg."

I'm saying "silly" because the fussy accuracy consciousness of the first half of the title turns into blatant inaccuracy paired with the second half of the title. As long as the United States in its current form, under our Constitution, persists, it's never too late to confirm a replacement for Ruth Bader Ginsburg. Whenever Justice Ginsburg's seat becomes available, some President will nominate someone who will be confirmed by the Senate.

What it "may" already be too late for is what the Lazarus-Donnelly article means to tell us about, which I don't have to read their article to know. It's too late for President Obama to nominate the kind of Supreme Court Justice he presumably wants — a solid liberal — and to get confirmation from the Senate. The November election is too close, the Democratic Party is at risk of losing the Senate, the spectacle of attempting to confirm a liberal Supreme Court nominee will put Democratic Senate candidates at greater risk, and the GOP Senators will have reason to drag out the confirmation process so that it might not even be successful.

The most interesting point that Lazarus and Donnelly make — not reflected in the silly title or in the idea the silly title is meant to express — is that keeping a left-leaning Justice off the Court is an issue that works for Republican candidates far more that getting a left-leaning Justice onto the Court could work for Democratic candidates.

Most Democratic voters simply don’t see the courts as relevant to the—mainly economic—issues they care about most....

In contrast, Republicans savor high-decibel political fights over the courts. In the short term, they see them as a way of firing up their base and burnishing their brand as defenders of the Constitution and the rule of law....

This asymmetry yields a chronic, structural disadvantage that limits the options available for Democratic and progressive leaders, when battles flare in the ongoing war over the courts. 

This is an amusing concession that liberals need to do their court appointments when elections aren't too close. It's Democrats and not Republicans who want to avoid accountability for judicial appointments.

But Lazarus and Donnelly imagine — or purport to imagine — that "Democrats and progressives" can "transform the politics around the courts" — that is, make voters get excited about putting left-leaning Justices on the Court. Lazarus and Donnelly present a 3-point plan to accomplish this transformation:

1. Make people see that that liberal Supreme Court Justices will help them economically. That sounds really complicated to me. I doubt if the proposition is true, and what's the argument that it is?

Since June 2008, Senate Judiciary Committee Chair Patrick Leahy has held recurrent hearings designed “to shine a light on how the Supreme Court’s decisions affect Americans’ everyday lives,” showcasing victims of decisions detrimental to employment safeguards, retirement security, consumer protection, health care coverage, and securities fraud protections. And in the wake of the Court’s recent decision in McCutcheon v. F.E.C., which struck down long-established limits on aggregate campaign contributions by wealthy donors, Leahy and Senate Rules Committee Chair Chuck Schumer announced joint efforts to spotlight how “five justices once again have decided to rule on the side of moneyed interests,” beginning with former Justice John Paul Stevens’s high-profile testimony last week before the Senate Rules Committee. Most visibly, Senator Elizabeth Warren, leader of the Democrats’ populist wing, has begun to tie the courts to her larger economic message, warning progressives about “the corporate capture of the federal courts.” These are steps in the right direction, but thus far, these limited probes that have barely registered with the media or the public. 

Patrick Leahy shining a light somehow doesn't get media attention. I'm sure the media would help with the liberal-judge-appointing agenda if they could, so the failure to direct the public's attention to where Patrick Leahy is shining his light is strong evidence that Step 1 doesn't work too well.

2. Democrats and progressives should scare people about the consequences of allowing right-leaning judges to get their hands on left-leaning legislation like the Affordable Care Act. They need to warn people that "radical" theories like federalism, "[o]nce pie-in-the-sky academic musings," now get serious respect from Supreme Court Justices.

Speaking of pie in the sky... picture a liberal political candidate trying to alarm citizens about the idea that the Constitution gives limited enumerated powers to the federal government and reserves power to the states. Speaking of things confined to the academy! You can make intra-law-school folk nod their head at the notion that federalism is dangerous, but in normal political speech, even Democratic Party candidates assure us of their respect for the role of the states in our constitutional scheme.

3. Convince people that left-leaning constitutional interpretation is actually what the Constitution means, not simply what lefties like. Lazarus and Donnelly admit that Democratic politicos "cede the legal high ground to their Republican adversaries." The remedy is supposedly to roll out legal academics to inform the public of the theories that support the results liberals like. Supposedly, Senator Leahy is leading they way by pointing out that the decisions he doesn't like are wrong as a legal matter. And Obama sometimes throws rhetoric into his speeches about "the enduring strength of the Constitution," so there's that. And there are those law professors who've been working for years writing material that "demonstrates that the Constitution’s text and history often point in progressive—not conservative—directions." Roll those guys out. (I'm saying "guys" because Lazarus and Donnelly name 5 law professors and they're all guys, so I thought I'd insert some War-on-Women dissonance.)

Well, left-leaning politicos really should try to do this. They have ceded the high ground to conservatives, but I think the liberal constitutional law material doesn't play very well in common political discourse, and for too long the go-to liberal argument has been law is just politics and it's all about outcomes. If lefties abandon the all-about-politics meme and commit to taking legal arguments seriously and to demonstrating the soundness of their interpretation, they'll be taking quite a risk. As a law professor, I'd love to see it. I'd have some great blogging material.

But, honestly, I think the actual politicians know they can't operate on that level, AKA "the high ground." Still, I'd love the opportunity to poke at them and try to topple them as they posture and pose up there.

"The lack of health information about individual justices is a glaring problem. Declining, even incapacitated, justices hold their offices until they die."

"And because justices play politics with their departure decisions, trying to retire under a politically favorable president and Senate if possible, the court’s history has been filled with declining justices who compromised the court’s work because they refused to depart for political or personal reasons."

Said Artemus Ward — "a political scientist at Northern Illinois University who has written about the politics of court retirements" — quoted in "Ginsburg waited 4 months to say her cancer had returned/Justice Ruth Bader Ginsburg is perhaps the most forthcoming member of the Supreme Court when it comes to telling the public about her many health issues" (ABC News).

That quote appears near the end of an article that begins with the dubious proposition that "Justice Ruth Bader Ginsburg is perhaps the most forthcoming member of the Supreme Court when it comes to telling the public about her many health issues." What does ABC News know about the other Justices?!

But she waited more than four months to reveal that her cancer had returned and that she was undergoing chemotherapy.

Did ABC News want to make the point that this recent behavior is out of character?  The next point is that because of coronavirus, the Court switched from in-person oral arguments to arguments by telephone — audio only. We couldn't see the Justices, so they had more ability than usual to hide their condition.

ADDED: I don't know how the political scientist Artemus Ward got his name, but if the name sounds familiar, you may be thinking of America's first stand-up comedian, who lived from 1837 to 1867. I blogged about him in 2017, here. And here's a collection of his jokes. Examples:

Did you ever have the measels, and if so, how many?

Why is this thus? What is the reason of this thusness?

He is dreadfully married. "He's the most married man I ever saw in my life."

The fack can't be no longer disgised that a Krysis is onto us.

The female woman is one of the greatest institooshuns of which this land can boste.

"For those seeking insights about any remorse Ginsburg might have felt about not retiring while a Democrat was safely serving as president, Totenberg offers little..."

"... possibly because Ginsburg was not always forthcoming with her; of a meeting the justice had with Barack Obama at which the president gently tried to raise the question of her retirement, Totenberg says, 'She never told me about it.' Nor does she report how Ginsburg responded to the news of Donald Trump’s election. But she does seem to speak with authority when she explains that Ginsburg had been eager to give 'the first female president the power to nominate her successor.' And at the time of the election, Totenberg points out, Ginsburg was not in a health crisis. 'It was a gamble, and she lost,' she writes. Rather than defending Ginsburg’s choice to remain in office, she emphasizes how valiantly Ginsburg fought to stay alive and keep working once Trump was elected....  In one indelible image, Totenberg knocks on the door of a hotel room to find Ginsburg, hair down, desperate for Totenberg to leave so she can continue her frantic search for a medicine to ease her stomach troubles...."

Writes Susan Dominus, in "Nina Totenberg Opens Up About Her Friend Ruth Bader Ginsburg/In her memoir, 'Dinners With Ruth,' the NPR journalist writes about their parallel ascents in fields that were not friendly to women" (NYT).

We could have lived without that "indelible image," but books must be written. 

IN THE COMMENTS: Some people are saying it's unethical for journalists to be friends with the subjects of their writing. But I said, "Read 'The Journalist and the Murderer,' about the journalist’s method of fake-befriending the subject. Isn’t that what we’re seeing here?"

Here's an excerpt from Janet Malcolm's "The Journalist and the Murderer," the best book I ever read about journalism:

Tiny answer to big question: Ruth Bader Ginsburg's shoe!

And Linda Greenhouse gets the better of Jan Crawford Greenburg, who blogged -- (blogged!) -- about "Justice Ruth Bader Ginsburg’s delay in getting to her feet and leaving the bench," which "Ms. Greenburg wrote, seemed a sign of possible ill health and 'made me think I’d better start pulling those possible retirement files together.'"

Greenhouse has the excitement-deflating news that "Justice Ginsburg had kicked off her shoes during the argument and could not find one of them."

ADDED: David Lat is reveling in the battle of the Greens, -house and -burg. Go read the text. Here's the graphic:

Prof. Chemerinsky says Justice Ginsburg "has in her power the ability to prevent a real shift in the balance of power on the court."

"On the other hand, there's the personal. How do you decide to leave the United States Supreme Court?"

Wow! How much of this kind of moral pressure is being applied to the venerable Justice?

Democrats and liberals have a nightmare vision of the Supreme Court's future: President Barack Obama is defeated for re-election next year and Justice Ruth Bader Ginsburg, at 78 the oldest justice, soon finds her health will not allow her to continue on the bench.

The new Republican president appoints Ginsburg's successor, cementing conservative domination of the court, and soon the justices roll back decisions in favor of abortion rights and affirmative action.

Abortion and affirmative action. Abortion and affirmative action. That's the fixed point in constitutional law for a lot of people: it must work out in favor of abortion and affirmative action.

[S]ome on the left say ... Ginsburg needs to put self-interest aside and act for the good of the issues they believe in, Harvard law professor Randall Kennedy wrote recently. Kennedy said 72-year-old Justice Stephen Breyer should leave, too....

Get out, you selfish oldies — say some on the left — Obama needs to appoint some liberal ideologues before its too late!

David Garrow, a Cambridge University historian who follows the court, said Ginsburg's situation points to an institutional problem for the court, "the arguably narcissistic attitude that longer is better."

Narcissist!

Justices sometimes look at electoral projections when considering retirement, he said, adding that Ginsburg probably still could decide to retire next summer if Obama's electoral prospects seem shaky.

The rest of the article is a history lesson about how waiting too long doesn't work. Earl Warren, LBJ, Richard Nixon, Warren Burger and all that. The message is clear. The liberal media want Ruth Bader Ginsburg out now.

I know that sounds mean, but it's not me saying it. I'm just paraphrasing for clarity.

"John Roberts, Centrist."

Jeffrey Rosen writes about the Supreme Court's "partial-birth" abortion case, over at TNR, where they title the article "John Roberts, Centrist" and display an excellent caricature of our high court hero. But what about our other high court hero? He's not in the title, but there's plenty about Justice Stephen Breyer:

In the oral argument, there was a dramatic gap between the liberal and conservative justices about how broadly to create a health exception. Roberts suggested that a marginal increase in safety wasn't enough to override Congress's interest in preventing D&X abortions as long as the D&E procedure was nearly as safe in most cases. Justice Stephen Breyer, by contrast, wondered aloud whether the Court might allow D&X abortions "only where appropriate medical opinion finds it necessary for the safety or health of the mother." And, in 2000, Breyer wrote for the Court emphasizing that D&X abortions had to be allowed as long as a "significant body of medical opinion" believed they might be safer for some patients. The Court had previously said the abortion itself had to be necessary for the woman's physical or psychological health; Breyer expanded this to say that, if a woman chose an abortion, she was entitled to the safest one in all circumstances.

If Breyer applies the same lax standard in this case, he risks calling into question his hard-earned reputation as the justice most deferential to Congress--since a minority of doctors believe that the D&X procedure is always safer than D&E. Between 1994 and 2000, Breyer and Ruth Bader Ginsburg voted to strike down fewer federal laws than any other justice; and, in his recent book, Active Liberty, Breyer argues that judges should show restraint and modesty in the face of national disagreement, deferring to the decisions of elected representatives--especially those in Congress--in order to promote democratic deliberation. There was something unseemly about Breyer's announcement that he had asked his law clerks to tally up the numbers of medical experts who testified for and against the partial-birth ban at every stage in the case. He seemed to be allowing his progressive weakness for the rule of experts to trump his devotion to judicial deference to Congress. By allowing the federal ban to be enjoined only for specific categories of medical conditions in which substantial numbers of doctors believe that D&X abortions are safer than D&E abortions, Breyer could preserve his record as a principled defender of judicial restraint.

But the main point of the article is that John Roberts will find -- Rosen prompts him to go for -- a compromise, a narrow basis for decision that could bring the Court together over this devisive issue. The idea is that the new Chief ought to see his role in terms of avoiding divisions and that his success will be defined by his ability to achieve unanimous decisions:

Roberts's hero, Chief Justice John Marshall, convinced a group of unruly colleagues to converge around narrow, unanimous opinions that appeared to give a victory to one side while also acknowledging the claims of its bitter opponents. If Roberts follows Marshall's example and finds a deft compromise in the abortion wars, he will deserve the thanks of a grateful nation. And, if he fails, his vision of a Court that governs best when it governs most narrowly will be off to a bumpy start.

But this is all contestable. Marshall kept things narrow? Marshall gave the losing side respect? Which cases is Rosen looking at when he makes that assertion? And is narrow compromising Roberts's only path to greatness? Is it a path to greatness at all?

"The State of the Union is strong."

You knew he'd say that, and he did.

There's John Roberts, chatting and laughing with Condoleezza Rice. On his other side is Clarence Thomas, then Stephen Breyer, who's looking happy if wizened, and he's next to Samuel Alito, who's looking truly vibrant. He must feel great. He's hanging out with Breyer. We see a close up of Alito, and he seems to be pulling in his smile, as if maybe it's in bad taste to over-beam right now. No Sandra Day O'Connor, unless she's stashed away somewhere else. No Scalia. No Souter. No Stevens. No Ruth Bader Ginsburg.

There's Laura in a pink suit.

Bush's first words are about Coretta Scott King.

He speaks of bipartisanship, and then confidence pursuing American interests, as opposed to timid withdrawal. "The only way to protect our people... is by our leadership." Bipartisanship, but we're not pulling out. "We seek the end of tyranny in our world."

"We will act boldly in freedom's cause... We're writing a new chapter in the history of self-government." Security demands freedom everywhere, including Iran.

Bush decries "radical Islam, the perversion by a few of a noble faith into an ideology of terror and death."

"The United States will not retreat from the world, and we will never surrender to evil." Applause. We see John Kerry giving a very quick standing ovation.

Progress in Iraq. Some grim faces in the audience, but there's Lieberman clapping. Bush looks happy, with a sneaking smile and crinkling eyes. "We are winning."

He accepts "responsible criticism": "Yet there is a difference between responsible criticism that aims for success, and defeatism that refuses to acknowledge anything but failure. Hindsight alone is not wisdom. And second-guessing is not a strategy." After he says that, there is applause and his face is set, then suddenly his jaw rotates in a truly bizarre way. What was that? What emotion, held in, burst out right there? He's pissed at his opponents! "A sudden withdrawal of our forces from Iraq would abandon our Iraqi allies to death and prison." The camera fixes on John Kerry, who's looking down, perhaps following the script, perhaps wondering when this part would finally be over. Anything domestic coming up? Because this is getting old.

He processes the disheartening news of the Palestinian election: "The Palestinian people have voted in elections – now the leaders of Hamas must recognize Israel, disarm, reject terrorism, and work for lasting peace." He sticks to his beliefs in democracy: "Yet liberty is the future of every nation in the Middle East, because liberty is the right and hope of all humanity." He speaks to the people of Iran: "Our Nation hopes one day to be the closest of friends with a free and democratic Iran."

He defends his surveillance program. After 9/11, there was criticism of failure to "connect the dots." "This terrorist surveillance program has helped prevent terrorist attacks. It remains essential to the security of America. If there are people inside our country who are talking with al-Qaida, we want to know about it – because we will not sit back and wait to be hit again." He says this last part with angry conviction. He is confident in this position, and I think this expression will be convincing to most listeners. There's a rousing standing ovation on one side of the aisle. On the other side, everyone's seated. We see Hillary Clinton, smiling quite brilliantly, but shaking her head in a Bush-is-wrong-as-usual way.

He's against "economic retreat." Being against retreat is the night's rhetorical device. His opponents, we're to think, want retreat.

"Make the tax cuts permanent." To let them end would be retreat, after all.

John McCain has been looking grim all night, but when Bush says "earmark reform" he beats his hands together wildly.

Is every female member of Congress wearing red? Nearly. Condi's in beige.

Social security... borders... health care. The health care topic includes medical malpractice reform.

"America is addicted to oil." Solution: technology.

Education.

Crime... welfare.... drugs... abortion. Things are getting better: "These gains are evidence of a quiet transformation – a revolution of conscience, in which a rising generation is finding that a life of personal responsibility is a life of fulfillment." People need to be ethical, with some help from government, and correspondingly, government needs to be ethical: people are "concerned about unethical conduct by public officials, and discouraged by activist courts that try to redefine marriage." Wait! That's a strange linkage! Corrupt elected officials and "activist" courts? Courts finding too many rights aren't being immoral or unethical, though they are disappointing people with a conservative social agenda. These folks want moral elected officials. But those of us who favor strong judicial support for individual rights are also opposed to government corruption. It's a slap in the face to put these things in the same category.

"The Supreme Court now has two superb new members, Chief Justice John Roberts and Justice Sam Alito." We see each justice as he is named. Roberts has a clenched jaw and a downturned mouth that somehow reads as a proud smile. Alito has a similar serious face to start but then he breaks into a nice grin. Bush expresses thanks to Sandra Day O'Connor. But she's not there.

"Human life is a gift from our Creator," so don't mess with embryos. Interesting that this topic follows the part about the Supreme Court, isn't it?

Children... hurricane relief... poverty... bring hope to everyone. HIV/AIDS... end the waiting list for medicine.

Human beings determine the course of history. We have choices to make. "And so we move forward – optimistic about our country, faithful to its cause, and confident of victories to come."

A nice, vigorous speech. Full of optimism and courage. Ack! Now the NBC commentators come on and talk first about the "deep divisions" in the room. The Republicans applauded a lot more than the Democrats. Isn't that disturbing? "We just plain disagree on every fundamental issue that is confronting this country," Tim Russert says in a dire tone. What can Bush get done? Very little! Hey, forget your damned optimism and get depressed fast, people.

Enough for me. I'm switching over the the TiVo'd "American Idol."

"The Supreme Court Case That Could Clobber Public-Sector Unions."

Garrett Epps looks at yesterday's oral argument.

[The National Right to Work Committee argues] that permitting the [public-sector] unions to collect fees for representing non-members—the so-called “agency fee”—violates the First Amendment....

Since public employees work for government, everything they bargain about is political. Higher wages, better benefits, new work rules—all affect the state budget. Assessing fees from non-members thus requires them to pay for political speech.

All the expenses, in other words, are non-chargeable.

Scalia appeared skeptical of that argument, but it went over with three of the other four conservatives.

So liberal hopes hang on Scalia of all people. Epps extracts some quotes.

"On Sunday, President Barack Obama will execute what might be called a Modified Full Ginsburg..."

"... appearing on five Sunday morning talk shows to make a pitch for health reform. It’s a move few politicians have attempted. Even fewer have been able to stick the landing. The Full Ginsburg, of course, was named for Monica Lewinsky’s lawyer William Ginsburg, who first did the five-fecta of Sunday talk on Feb. 1, 1999."

Of course. Wow. Some people need to get out of Washington more. Does Politico writer Eamon Javers really think that that we all remember the name William Ginsburg and his overexposure on Sunday shows 10 years ago? Or is this just another inane use of the verbal filler "of course"?

When I saw "Full Ginsburg," I thought of Ruth Bader Ginsburg...

... and "The Full Monty"....

... and I wasn't sure what to think.

A naked, yet prim President?

Anyway, yeah, too much Obama on TV. At some point, everyone's going to figure out that he actually is pretty tedious and that he's pushing some routine old political ideas.

That's good. We should get used to him. Very very used to him and tired of him.

And when that happens, it won't be racism. It will be racial progress. He's only a man. A politician. Calm down everyone. Think about whether we really want what he's selling. I bet we don't.

Obama's address to Congress... the live-blog.

Watch the don't-call-it-the-State-of-the-Union with me.

8:00: How come there are already 43 comments? The thing hasn't started yet! I suppose you guys are really excited about this. Nancy Pelosi has her olive-green sweatshirt on. I've chosen CBS... Katie Couric is obviously reading from a script.

8:04: Ruth Bader Ginsburg! Among the living! Closeups. Cheers.

8:05: Michelle Obama. Sleeveless! Purple!

8:06: Hillary! Looking radiant. Rahm! He's hot.

8:11: It's O! Red striped tie. Super-short hair. He's kissing all the ladies. The CBS commentary is soooo lame. This is true bipartisanship... except to the extent that it isn't....

8:15: Oops! O spoke over Nancy. Is Chief Justice Roberts there in the audience laughing?

8:20: We have terrible economic problems, but we're going to solve them. To do that, we need to understand how we got here. Then he lists various reforms — like health care — that I think he'd be listing even if there were no economic crisis. I can't see the connection between his economic wish list and the crisis at hand.

8:25: The text of the speech. Great, now like Nancy Pelosi, I can read along. It would be cool if Nancy had her laptop up there and was live-blogging.

8:31: Damn those executives with their jets and fancy drapes! No drapes for you!

8:33: Screw Wall Street but I love small business. Just be small and I will love you.

8:34: "Slowly, but surely, confidence will return, and our economy will recover." There's no lilt of hope in that. Whatever happened to all the hope? This is leaden and lecture-y.

8:37: Which member of Congress is most obviously up past his bedtime? I'm going to say Charles Rangel.

8:40: "It will be the goal of this administration to ensure that every child has access to a complete and competitive education – from the day they are born to the day they begin a career." So... no child left behind?

8:51: Orrin Hatch's name is invoked. We see him reading the speech and grimacing at his own name. He is not a prideful man.

8:59: Obama supports the troops.

9:03: Now, he's in the generic inspiration, listing-of-the-heroes part. Some businessman handed out money because "I didn't feel right getting the money myself." See, rich folk? Cough it up.

9:08: "Some day years from now our children can tell their children that this was the time" — oh, he's doing "this was the time" again — "when we performed, in the words that are carved into this very chamber, 'something worthy to be remembered.'" That was a goofy crescendo. I mean, paraphrase it: In the future, we'll look back and say that we remember doing something.

9:09: "And God Bless the United States of America." He almost forgot to say it.

9:22: Waiting for Bobby Jindal.

9:24: "Happy Mardi Gras!" Bobby's all enthusiastic about Barack Obama, the first African-American President!

9:26: Bobby learned a can-do attitude from his immigrant dad. His emphatic hand gestures are not quite in the camera frame. But I think his style is pretty good, though it sounds super-rehearsed. Somebody taught him every inflection I think. And that eye contact. It's a bit unnerving!

9:29: Jindal is nicely upbeat and confidence-inspiring. Don't monitor volcanoes! Monitor the eruption of spending!

9:35: The GOP wants to win back our trust.

9:37: Bobby: plastic and peppy. But maybe we'll get used to him.

Linda Greenhouse notes the "dry, almost clinical tone" and lack of "poetry" in the Supreme Court's pro-abortion-rights opinion.

The case was about clinics — Texas imposed a requirement that led to the closure of many abortion-providing clinics — so what was notable about a clinical tone?

As Greenhouse puts it:

The dry, almost clinical tone could scarcely be more different from the meditative mood the Supreme Court struck the last time it stood up for abortion rights, in Planned Parenthood v. Casey, 24 years ago this week. “Liberty finds no refuge in a jurisprudence of doubt” was Justice Anthony M. Kennedy’s mysterious opening line in that opinion.

Greenhouse does not quote the most poetic/mysterious/meditative lines in Casey (which even contain a variant of her word "mysterious"):

These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

And Greenhouse misstates the authorship of Casey. She wasn't quoting an opinion for a majority of the Court that was written by Justice Kennedy, but an opinion announcing the judgment of the Court that was joined by only 3 Justices and that was written not by Kennedy alone, but by Kennedy along with Sandra Day O'Connor and David Souter. However that "poetry" was created, only 1/3 of the "poets" remain on the Court.

Kennedy has had many years to think about whether that "exalted" tone is a good idea. (I put "exalted" in quotes, because that's what Justice Scalia called it, in his dissenting opinion in Casey.) And the 4 Justices who joined Kennedy yesterday were not around for the poetic exaltation of privacy rights that seemed appropriate to O'Connor, Souter, and him back in 1992. Ginsburg, Breyer, Sotomayor, and Kagan are all post-Casey additions.

Kennedy, as the senior Justice in the majority, had the power to take the writing assignment for himself. He opted to hand it to Stephen Breyer, probably the least likely in the set of 5 to infuse it with inspiration. If the opinion reads as clinical, it's a choice, by Kennedy and Breyer, to make it so.

The others — the women, interestingly enough — could have written poetically in concurring opinions. Only Justice Ruth Bader Ginsburg chose to write a concurrence, but it was very short and not particularly exalted, though does contain some French. ("When a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners, faute de mieux, at great risk to their health and safety.")

And I have a problem with Greenhouse's phrase "stood up for abortion rights." I support abortion rights — and other rights too — and I don't think talking about judges standing up for abortion rights helps to preserve rights. It makes "abortion rights" sound like another political cause, and the Justices in the majority sound like the ones who simply embraced that cause, those particular rights, because they happen to like them and think they're good rights to have, quite apart from whether they are properly to be found in the legal document that's cited in the opinion.

Ironically, a clinical tone works better. It's boring and uninspiring, but it makes us the People feel that the Justices know their place, interpreting a text according to an orthodox judicial methodology. The Justices need to help us believe that they are not political, and — even more ironic — it's especially important to stoke our beliefs if they are making their choices out of their own policy preferences.

And, of course, the Justices know that our belief in the rights they talk about are fading even more quickly than usual as we look to a presidential election where it seems we are able to choose which faction of the Supreme Court will get new votes. They know they need to allay our suspicions and that any poetry in the pro-abortion-rights opinion would become a weapon for those who want to defeat the presidential candidate — Hillary Clinton — who would give them another ally in their political cause... if that's what it is.

UPDATE: Linda Greenhouse emails me about this post and I respond, here.

"He’s old, but he looked energetic and spoke clearly. He made a few errors — who’s 'clipping coupons' in 'the stock market?' But in general..."

"... he was forceful and seemed knowledgeable. In particular, he nailed Sen. Elizabeth Warren on how her health care plan would increase taxes on the middle class. And he was surprisingly sensible in dismissing 'court-packing' schemes. His final remarks were a bit over the top, but after three hours I’d probably have been raving, too."

Writes Glenn Reynolds, declaring Joe Biden one of the "winners" of last night's debate (in USA Today).

A low bar for "surprisingly sensible"!

ADDED: Here's the transcript of the Court-packing part:

BURNETT: The Supreme Court is currently made up of five Republican-appointed justices and four appointed by Democrats. The court just announced it will hear arguments in a case challenging some abortion rights. Vice President Biden, the Constitution does not specify the number of justices that serve on the Supreme Court. If Roe v. Wade is overturned on your watch and you can't pass legislation in Congress, would you seek to add justices to the Supreme Court to protect women's reproductive rights?

BIDEN: I would not get into court packing. We had three justices. Next time around, we lose control, they add three justices.

Three? Seems to me — if "we" means Obama and Biden — that they had 2 — Sotomayor and Kagan and "they" — if "they" means Trump — had 2 — Gorsuch and Kavanaugh.

We begin to lose any credibility the Court has at all. I want to point out that the justices I've supported, when I defeated Robert Bork -- and I say when I defeated Robert Bork, I made sure we guaranteed a woman's right to choose for the better part of a generation. I would make sure that we move and insist that we pass, we codify Roe v. Wade.

This is a good point. If the Supreme Court overrules Roe v. Wade, you don't have to pack the Court and keep going back to the Court for a different answer. You just need to pass a federal law guaranteeing the right. If you have the power in Congress to legislate to changed the configuration of the Court, you'd also have the power to legislate a federal right to have an abortion (though there's a slight danger that the Court could say the commerce power doesn't cover the regulation of abortions).

The public is already there. Things have changed. And I would go out and I would campaign against those people in the state of Ohio, Alabama, et cetera, who in fact are throwing up this barrier. Reproductive rights are a constitutional right. And, in fact, every woman should have that right. And so I would not pack the court. What I would do is make sure that the people that I recommended for the court, from Ruth Bader Ginsburg to Elena Kagan, who used to work for me, to others, that they, in fact, support the right of privacy, on which the entire notion of a woman's right to choose is based. And that's what I would do. No one would get on the Court. And by the way, if, in fact, at the end of this -- beginning next year, if, in fact, one of the justices steps down, God forbid, in fact, I would make sure that we would do exactly what McConnell did last time out. We would not allow any hearing to be held for a new justice.

"Splitting 5 to 4, the Supreme Court... refused to block a Texas abortion law that critics say is forcing the closing of one-third of all clinics in the state."

Lyle Denniston explains the issues and the votes:

The majority said that the challengers had not met the requirement for setting aside a federal appeals court’s order permitting the law to take effect on October 31.

"The Supreme Court on Monday set the stage for a major ruling next year on abortion – one that could upend the Supreme Court’s landmark decisions in Roe v. Wade..."

"... and Planned Parenthood v. Casey, in which the court ruled that the Constitution protects the right to have an abortion before a fetus becomes viable. The court granted review in Dobbs v. Jackson Women’s Health Organization, a challenge to the constitutionality of a Mississippi law that (with limited exceptions) bars abortions after the 15th week of pregnancy.... The U.S. Court of Appeals for the 5th Circuit...  reject[ed] Mississippi’s argument that the Supreme Court’s cases required the district court to determine instead whether the law creates a 'substantial obstacle' for a person seeking an abortion before the fetus becomes viable. There is no substantial obstacle, the state suggested, because a patient could decide to have an abortion before reaching the 15th week. But the Mississippi law is not merely a restriction on the availability of pre-viability abortions, the court of appeals stressed; it is a ban on pre-viability abortions.... The justices repeatedly... put off considering it at their private conference – before finally considering the state’s petition for review for the first time at their Jan. 8, 2021, conference. The justices then considered the petition 12 more times...."

Writes Amy Howe (at SCOTUSblog).

It's hard to imagine considering the petition 13 times. It seems to mean they don't want to have the take the case but also can't bring themselves to turn it away. It's so soon since the death of Ruth Bader Ginsburg, and the Court is choosing to bring this divisive issue to the fore. I predict the precedent will remain intact, to the political benefit of social conservatives.

Argument tomorrow in the "partial-birth" abortion case.

David Savage details the case. Excerpt:

The replacement of O'Connor with Justice Samuel A. Alito Jr., a conservative and a Catholic, has convinced many legal experts that the court is prepared to uphold stricter regulation of abortion....

After [Congress enacted the Partial-Birth Abortion Ban Act], federal judges in San Francisco, New York and Omaha conducted trials on lawsuits that sought to overturn it. They heard from doctors who teach in medical schools at Cornell, Yale, Columbia, Northwestern, the University of Pittsburgh and UC San Francisco.

By the middle months of a pregnancy, doctors remove the fetus with surgical instruments, using the D&X method or the more common "dilation and evacuation," called a D&E. In that procedure, the doctor breaks apart the fetus before removing it from the uterus.

Experts told the three judges that the D&X procedure was not the only safe way to perform abortions after 20 weeks, but was safer than D&E in some cases, especially for women who have a damaged immune system or are in danger of hemorrhaging.

"Congress can 'find' that the moon is made of green cheese. That doesn't make it so," Dr. Nancy Stanwood, who teaches obstetrics at the University of Rochester, said in a recent interview. "When you're doing surgery, shorter and faster is better. If an intact extraction is possible, it's preferable."...

Dr. Jill Vibhakar, who teaches obstetrics at the University of Iowa and performs abortions at an independent clinic in Iowa City, is a plaintiff with Carhart in the suit before the court. She said the justices face the same issue Wednesday that they did when they threw out the Nebraska ban [in Stenberg v. Carhart in 2000].

"Nothing has changed recently in medical practice. The only thing that has changed is that a moderate female justice has been replaced by a conservative male justice," Vibhakar said.

The National Review has an editorial on the subject. Let's see how seriously it takes the central legal problem presented in the case, which is the comparative danger of the D&E. (Both the D&X and the D&E are gruesome and kill the fetus.)

Nobody has ever shown an instance in which a partial-birth abortion was necessary to save the life or health of a woman. The most defenders can show is that there may be instances in which individual abortionists may decide that it is the safest method of abortion.

The sophisticated case is the one made by Justices John Paul Stevens and Ruth Bader Ginsburg, and in lower courts by, among others, Judge Richard Posner. The argument is that nothing morally distinguishes partial-birth abortions from other methods of abortion in the second and third trimester. What difference could it make to a fetus, these jurists ask, whether its feet are in or out of the womb when it is killed? The bans are irrational.

This argument has some force, but even more chutzpah. The Supreme Court, with the eager assent of all of these jurists, has declared that the child within the womb can have no protection. The mother has a right to kill it at any time it is within her. The ban on partial-birth abortion is an attempt to mark an outer boundary to this right.

If that boundary is to fall, one could, with equal force, ask what difference it makes to a child whether it is killed within the womb or entirely outside it. One could, that is, use the Court-enforced legality of late-term abortion to construct a right to infanticide. Surely some abortionist somewhere could be found who would conclude that it is safer for the mother to remove the child entirely from her womb before dealing the fatal blow.

That's shifting the subject. You have to face the fact that breaking up the fetus within the uterus creates dangerous fragments. I understand that a lot of people find both procedures monstrous. But as long as the woman has a right to an abortion, how can government deny her what is the safer of two procedures?

"We disagreed now and then, but when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation."

"Justice Scalia nailed all the weak spots—the 'applesauce' and 'argle bargle'—and gave me just what I needed to strengthen the majority opinion. He was a jurist of captivating brilliance and wit, with a rare talent to make even the most sober judge laugh. The press referred to his 'energetic fervor,' 'astringent intellect,' 'peppery prose,' 'acumen,' and 'affability,' all apt descriptions. He was eminently quotable, his pungent opinions so clearly stated that his words never slipped from the reader’s grasp."

Said Justice Ruth Bader Ginsburg in a statement I selected from a USA Today page collecting the statements of all the Supreme Court Justices, including the retired Justices Stevens and O'Connor (though not Souter, perhaps because he's attached to inconspicuousness).

Our longtime commenter Simon sent me that link, and he has his reflections on the death of Scalia here: "Our Hero has died... Over the last decade, I have often used 'Our Hero' as a sobriquet for Justice Scalia; that was tongue-in-cheek doesn’t mean that it’s a joke.... I never met Justice Scalia, but ten years ago last month, his debate with Justice Breyer at American University changed my life. He gave me direction, focus, and  an intellectual toolkit that has shaped my approach to every question where we confront a text.... Would I be a Catholic today but for his influence? Perhaps; but if so, like a man who stumbles upon the right answer for the wrong reason (or no particular reason), it would been by blind luck, and would be a fragile, chancy thing...."

That made me look up what I said about the old Scalia-Breyer debate — back in 2005 (video of the debate is here):

Where do Hillary Clinton and Donald Trump want to see the Supreme Court "take the country"?

At last night's debate, the moderator, Chris Wallace, chose to make the first question about the Supreme Court. This perked me up. It's what I've concentrated my attention on for the past 35 years, and we've got an open seat and maybe 2 or even 4 seats that may open up in the next presidential term. What I remember from watching the debate last night is that both candidates were absolutely awful. Now that I've slept on it and have access to the transcript, I want to double-check my own opinion. So come along with me and judge for yourself.

Wallace observed that the topic of the Supreme Court had yet to be discussed at a debate in any depth, and he wanted to "drill down." Going to Clinton first, Wallace said:

[W]here do you want to see the court take the country? 

The idea that the Court is in the lead taking us somewhere is all wrong, but no one is going to point that out.

And secondly, what’s your view on how the constitution should be interpreted? Do the founders' words mean what they say or is it a living document to be applied flexibly, according to changing circumstances? 

That's a simple way to prompt the candidates to talk about interpretive methodology, and it's an invitation to bungle, because candidates don't really want to get stuck at either end of those seemingly opposite positions. (I say "seemingly," because you can say that the founder's words meant that this is a living document to be applied flexibly, according to changing circumstances.)

Clinton goes first:

You know, I think when we talk about the Supreme Court, it really raises the central issue in this election. Namely, what kind of country are we going to be? What kind of opportunities will we provide for our citizens? What kind of rights will Americans have? And I feel strongly that the Supreme Court needs to stand on the side of the American people. Not on the side of the powerful corporations and the wealthy. 

I was already loudly arguing with her. The side? The Supreme Court isn't supposed to take sides. She's blatantly saying she wants a Court that doesn't act like a court but gets on one side. Her Court is a Court that ought to have to recuse itself constantly.