December 2, 2021

Justice Amy Coney Barrett connected the right to abortion and the right against mandatory vaccines.

This is interesting — challenging — because most people who believe in at least one of those rights believe in only one. Or so I assume. Is there entitlement to bodily autonomy or not?

Justice Barrett only made a passing reference linking these 2 purported rights. A ban on abortion after 15 weeks is "is, without question, an infringement on bodily autonomy," she said, then added that we have that "in other contexts, like vaccines." Clearly she meant mandatory vaccines.

Here's the whole context, from the transcript of yesterday's oral argument. Barrett — questioning Julie Rikelman, the lawyer for the respondent, the Jackson Women's Health Organization — brings up how easy it is these days to give up a newborn baby for adoption. Legally easy. So maybe Court shouldn't put much if any weight on the burdens of forced parenting. If the analysis is limited to the burdens of pregnancy and childbirth, Barrett says, "it focuses the burden much more narrowly. There is, without question, an infringement on bodily autonomy, you know, which we have in other contexts, like vaccines."

"Hi Ann - long-time local reader. After Breyer mused on 'super stare decisis' today I duck-duck-go'd it and your 2005 post was one of the first results...."

"I was struck by how it felt like this post could have been written today. Plus ça change." 

That's from my email. The 2005 post is "Luttig and 'super-stare decisis.'" I'll just print the whole thing (below) so you can read it and see how up-to-date it is.

First, here's what Justice Breyer said:
It is certainly true that we cannot base our decisions on whether they're popular or not with the people. Casey seemed to say we shouldn't base our decisions not only on that but whether they're going to -- whether they're going to seem popular, and it seemed to me to have a paradoxical conclusion that the more unpopular the decisions are, the firmer the Court should be in not departing from prior precedent, sort of a super stare decisis, but it's super stare decisis for what are regarded as -- by many, as the most erroneous decisions. Do you think there is that category? Is there -- or is it just normal stare decisis? 
And here's what I wrote 16 years ago (when GWB needed to fill a Supreme Court seat):

"I would never point a gun at anyone and pull a trigger at them — never.... Well, the trigger wasn’t pulled. I didn’t pull the trigger."

Says Alec Baldwin, quoted in "Alec Baldwin Says He ‘Didn’t Pull the Trigger’ in ‘Rust’ Killing/The actor said in a brief excerpt from an upcoming interview with ABC News that he had not pulled the trigger when the gun he was holding went off, killing the cinematographer" (NYT).

I interpret this to mean that he has no memory of intending to pull the trigger or pulling the trigger, but I think it's highly unlikely that the gun fired without his pulling the trigger. I don't think he can say that he didn't point the gun in the direction that the gun was pointed when it was in his hand. It's got to be merely an assertion that he didn't intend to point the gun at the woman who died (Halyna Hutchins).

Alec Baldwin is... free polls

Only 4% of the passenger vehicles bought in the U.S. in 2021 are electric, and it's obvious why: "range anxiety."

"In July, the Indiana Department of Transportation and Purdue University announced plans to develop the world’s first contactless wireless-charging concrete pavement highway segment.... The multiyear project will use a magnetizable concrete technology — developed by the German company Magment — enabling wireless charging of electric vehicles as they drive. The technology works by adding small particles of recycled ferrite — a ceramic made by mixing iron oxide blended with slivers of metallic elements, such as nickel and zinc — to a concrete mixture which is magnetized by running an electrical current. This creates a magnetic field that transmits power wirelessly to the vehicle. A plate or box made of the patented material, roughly 12-feet long by 4-feet wide, is buried inside the roadway at a depth of a few inches.... Surrounding the transmitter is normal roadway material — concrete or asphalt. The transmitters would be embedded in the roadway one after the other, allowing for a continuous power transfer.... 'Magnetized cement? Crazy, man,' said Chris Nelder, an energy analyst and consultant.... 'I would love to see it work. But this would be very early-stage technology, needing cars to be redesigned to use it as well as the actual implementation of the charging capability. But the need to redesign the cars is non-trivial.'"

I look forward to the amazing future, but I note "the need to redesign the cars." So it's no motivation to buy an EV now. You'll just need a different one. 

As for charging stations and the problem of range anxiety, the spending bill that just passed has a "$7.5 billion initiative... the goal of building a nationwide network of a 500,000 high-speed electric vehicle charging stations by 2030." That "with the goal" raises my skepticism. As does "2030." 

Am I in denial about the coming demise of Roe ?

I write "Roe" for simplicity, but Roe was replaced long ago by Casey. Denial is embedded in the precedent. Casey purported to discover the "essence" of Roe and rewrote the doctrine, and that was what it meant to adhere to stare decisis. 

After listening to the oral argument yesterday — before reading any commentary — I wrote "I predict stare decisis will prevail." This morning I'm reading the commentary, and everyone seems to be saying they know the Court will overrule Roe Casey, so I thought I'd link to a few things and then speculate about why, politically, that's what you'd want to say.

So, first, the NYT, Adam Liptak: "Supreme Court Appears Open to Upholding Mississippi Abortion Restriction/After two hours of sometimes tense exchanges in one of the most significant abortion cases in years, the court appeared poised to uphold the state law, which bans abortions after 15 weeks of pregnancy." Liptak is vote counting, and he sees Roberts as looking for a middle way — drawing the line somewhere other than viability. Roberts needs another vote, and "the most likely candidates, Justices Brett M. Kavanaugh and Amy Coney Barrett, said little to suggest that they were inclined toward that narrower approach." This middle way would resemble Casey, keeping the essence while changing the doctrine. 

Next, here's Noah Feldman at Bloomberg: "The Supreme Court Seems Poised to Overturn Roe v. Wade/The chief justice suggested a way to restrict abortion without going that far, but the swing voters didn’t engage his potential compromise." That sounds just like Liptak's position, but Feldman goes further characterizing the mindset of Justices Brett Kavanaugh and Amy Coney Barrett: they "seemed pretty set on making history by overturning Roe."

Third, here's Amy Howe at SCOTUSblog: "Majority of court appears poised to roll back abortion rights." Howe counts Kavanaugh among the Justices who seem ready to "overrule Roe and Casey outright." She sees Gorsuch and Barrett as the ones who might join Roberts in this imagined middle position. 

Just one more — Dahlia Lithwick at Slate: "SCOTUS Will Gaslight Us Until the End/Oral arguments today made clear that this court will overturn Roe—and that they’ll insist on their own reasonableness the whole time." This piece is different from the other 3. It's much more of a rant, but overruling Roe Casey, if that's what the Court is really up to, deserves a rant. Lithwick doesn't believe the "precious" talk of the seemingly more moderate conservatives: It's a 6-3 Court and that's that.

I'm going to look at the transcript closely soon, and I'll explain why I think the middle position didn't get much traction and why, consequently, I'm going to stick with my position that the pro-abortion-rights position will win. But just to repeat what I already said: For all the weakness of viability as the place to draw the line, there is no better place, nothing with more of a real-world factual basis. And viability is the line that the precedent draws. 

But I see the value of predicting the overruling of Roe (that is, Casey). Activate people now. Get the political movement started early, because it will be immensely powerful if the Court overrules Casey ("Roe"). And there's some chance that the vision of powerfully activated Democratic Party politics will influence the conservatives on the Court and cause them to preserve the precedent. 

December 1, 2021

Late afternoon sky.

No sunrise run this morning. It was raining — raining on December 1st. Snow would have been much nicer, but it didn't happen. At 3:45 p.m. it was 48° — which was chilly enough on the exposed prairie (AKA the dog park). The pre-sunset sky looked like this:


Talk about anything you want in the comments, and think about supporting this blog by doing your shopping through the Althouse portal to Amazon.

Listen to the oral argument, starting now.


UPDATE: I listened to the entire thing. I predict stare decisis will prevail. The lawyer for the state was particularly weak in his effort to assure the Court that Roe and Casey could fall without endangering any other precedent (e.g., Obergefell). There was some effort to discover a compromise position, drawing the line somewhere other than viability, but nothing emerged. Not that I could hear on this first pass. I will probably say more when I get the transcript. 

ADDED: Thinking about Obergefell, I wanted to quote this passage from the Chief Justice's dissenting opinion:
By deciding this question under the Constitution, the Court removes it from the realm of democratic decision. There will be consequences to shutting down the political process on an issue of such profound public significance. Closing debate tends to close minds. People denied a voice are less likely to accept the ruling of a court on an issue that does not seem to be the sort of thing courts usually decide. As a thoughtful commentator observed about another issue, “The political process was moving . . . , not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.” Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N. C. L. Rev. 375, 385–386 (1985) (footnote omitted). Indeed, however heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause. And they lose this just when the winds of change were freshening at their backs.

Boldface added.  

That was 6 years ago. What "winds of change" are "freshening... backs" today?

In any case, the question then was whether to take something out of the political arena. The question now is whether to throw something back in after it's been out for 50 years! 

AND: On the theme of keeping the government's hands out of our body, Amy Coney Barrett brought up mandatory vaccination. 

"Set against a pastoral Californian back yard, it at times resembled a play with three characters: a discontented (for good reason) woman, her angry and accommodating husband, and a mediator..."

"... tasked with drawing them out while acting as a stand-in for the curious public. Winfrey... is not just an interviewer but 'something of an emissary, a reactive translator of emotion, a master weaver, pulling disparate revelations into a collective portrait that colonizes the mind.' Some of Winfrey’s lines—like a simple, incredulous 'What?'—were among the most emotionally lucid moments of the broadcast. Of her many successes, this may be what she does best: listen, react, and press a little harder for the truth. As a television performance, it was a role that perhaps no other human being was equipped to play."

From "The Best Performances of 2021/The people who burst through the excess of amusements, onscreen or onstage, and did something extraordinary" (The New Yorker), designating, among the best, "Oprah Winfrey in 'Oprah with Meghan and Harry.'"

"More than 140 amicus briefs were filed in Dobbs v. Jackson Women’s Health Organization, the potentially momentous abortion case concerning a Mississippi law banning abortion after 15 weeks of pregnancy."

"The briefs come from professors, politicians, states, and interest groups from across the ideological spectrum. We reviewed them all, identified some of the most noteworthy and novel arguments, and summarized them.... Numerous groups attack the viability standard that the court adopted in Roe v. Wade and Planned Parenthood v. Casey.... Many amici focus on the principle of stare decisis – and urge the court not to follow it in this case....  Twenty-four states... criticize the court’s 'erroneous and constantly changing abortion precedent.'... Twelve governors write... that the court’s abortion precedent represents an 'intrusion into the sovereign sphere of the States.'.... Textualism and originalism Professors Mary Ann Glendon and O. Carter Snead write that the court’s abortion precedent is 'completely untethered' from the text, history, and tradition of the Constitution....  The Thomas More Society argues that the right to reproductive freedom is not supported by history or legal tradition.... A brief from the Susan B. Anthony List and 79 women [argues]... 'there is no longer a need — if there ever was — for this Court to assume that women cannot adequately protect their own interests through state political processes'.... The American Association of Pro-Life Obstetricians & Gynecologists argues that the Mississippi legislature was correct to conclude that abortions performed after 15 weeks pose 'significant physical and psychological risks' to the patient.... Medical ethics The Christian Medical & Dental Associations argue that performing abortions violates a physician’s duty to protect life and avoid doing harm.... The Pacific Justice Institute suggests that abortion violates the 13th Amendment’s prohibition of slavery. 'When aborting her fetus, a mother treats her child as slave property'...."

From "We read all the amicus briefs in Dobbs so you don’t have to" at SCOTUSblog. The oral argument is today, at 10 Eastern Time. You'll be able to listen to the audio here.

From the summary of amicus briefs supporting abortion rights:

"When confronted with the reality that the Democratic Party is losing Black and Latino moderates, the response on the left is often to treat their views as morally beyond the pale."

"'Yes, it turns out that a number of people of color, especially those without a college education, can see the allure of the jackboot authoritarian thuggery offered by modern Republicans,' wrote The Nation’s Elie Mystal....  Obviously, nobody is proposing Democrats run on authoritarian thuggery. The question is whether any compromise with the center is acceptable. Obama competed for moderate views by promising that people could keep their private insurance even as he covered those who couldn’t get any coverage, that he would secure the border even as he gave amnesty to Dreamers. Reducing all these spectra of belief to a simple binary, then declaring the opposing position so horrific it cannot be accommodated, is not a political strategy. It is a kind of anti-politics. This anti-politics did not materialize out of thin air. It is the working assumption of a vast array of progressive nonprofit organizations and the millionaires who fund them. Over the past half-dozen years, several people who work in and around the nonprofit world have told me, the internal political culture at progressive foundations has undergone the same changes that have torn through elite universities, mainstream-media newsrooms, and private schools. An uncompromising version of left-wing political rhetoric has put the leadership of these organizations on the defensive and often prodded them to fund more radical organizations and ideas than before."

"My goal in 1982 was justice – not to perpetuate injustice. And certainly not to forever, and irreparably, alter a young man’s life by the very crime that had altered mine."

"I am grateful that Mr Broadwater has finally been vindicated, but the fact remains that 40 years ago, he became another young Black man brutalized by our flawed legal system. I will forever be sorry for what was done to him.... It has taken me these past eight days to comprehend how this could have happened.... I will continue to struggle with the role that I unwittingly played within a system that sent an innocent man to jail. I will also grapple with the fact that my rapist will, in all likelihood, never be known, may have gone on to rape other women, and certainly will never serve the time in prison that Mr Broadwater did.”

"West Side Story is fantastic. White people gonna be big mad tho and good. Bless you Steven Spielberg for not subtitling when our people use our language."

"In a country where nearly 20 percent of the population speaks Spanish, the subtitles just further keep us othered." 

Tweeted journalist Yolanda Machado — reportedly (it's been deleted now) — in "Steven Spielberg's 'West Side Story' earns early praise for omitting English subtitles: 'That's how it should be'" (Yahoo).

Are "White people gonna be big mad"? I think we all know how to watch a scene where a character is going on in some language you don't understand. It's how we first watched movies — and by "we" I mean the people who were around back in the silent movie era. The mouths moved, there were gestures, you got the story. It was accepted. If there's no translation into subtitles, you get the message that the actual words don't matter. Go on the feeling. Many of us who are around today learned when we were very young how to enjoy a show with a character speaking Spanish that we didn't understand:


We got it. Ricky got mad. The specific meaning didn't matter.

Now, with "West Side Story," the risk is that the Spanish characters — as seen by those who don't understand Spanish — may become less important compared to the characters who have the advantage of comprehensible speech. They may seem comical or like bundles of emotion. This could unintentionally lead to more stereotyping.

It's interesting to see how Spanish-speaking people are experiencing this choice to omit subtitles. Do they feel — as the deleted tweet says — less "othered"? Or do they feel more othered, as they are the ones who understand some things that are closed off to the rest of the audience? There could be a feeling of being the other but in a good way: We are the elite, in-the-know group. 

From what I've seen of Americans over the years, I'd say we tend not to feel pressure to learn other languages. Some of us get irritated — you know, the louts who say "Speak English!" But most of us, I think, just tune out the other language — perhaps after showing some mild interest.

It would be good to learn other languages, but why should one group think its language is the second language that Americans ought to learn? It's funny to express grievance from a minority position and at the same time to claim priority because your language group is so large — 20% (or is it 13.5%?). Isn't that othering the Americans who speak Chinese or Arabic or French? 

November 30, 2021

Sunrise — 7:03.


Melania was cold. Jill is warm.

Ugh. I should have steeled myself against this offensive goo. It's so very predictable. But I wasn't ready — it's still November — and this caught me before I'd prepared myself to simply laugh cynically, which is what it deserves: 

"Jill Biden’s first White House Christmas brings back a warmer, simpler vibe/The first lady chose 'Gifts From the Heart' as this year’s theme, filling rooms with shooting stars and peace doves" (WaPo).

A taste of the holiday fare:
The light, sound and smell of wood fires burning in the Green and Red rooms were just the first sign of the intimacy Jill Biden sought.... Gone are Melania Trump’s imposing — and some said, scary — blood red trees in the East Colonnade, from 2018, which late-night TV host Jimmy Fallon likened to Christmas in hell. Gone are the dozens of life-size “snow people,” wearing scarves and hats, in the first lady’s garden, installed by Michelle Obama in 2015, and moved inside in 2016.... “There’s a whole kind of Chucky element to them,” [Barack Obama] said. “They’re a little creepy.” Instead, Jill Biden’s Colonnade is a lower-key presentation, with shooting stars and peace doves hanging from the ceiling.... Biden’s first foray into holiday decorating at the White House was not glitzy or opulent, but rather an enhanced version of how many American families decorate their own homes, with lots of candles and twinkling lights....

So "some said" Melania's Christmas decorations were "scary." Why not cherry-pick the meanest things "some" are saying about Jill's decorations? I'll just read between the lines and flip the descriptions of Jill's stuff into the negative: It's so thudding uncreative. No grandeur, no awe, just the rich and powerful serving up their idea of what ordinary Americans supposedly do with their own home. 

Now, I must admit that WaPo isn't completely partisan, because — did you notice? — it takes a shot at Michelle Obama too, though the insult is a quote from her husband, who thought her snowmen and -women were "creepy" and Chucky-like. 

Ugh. The competition assigned to first ladies. Who's warm? Who's genuine? Who's got the best taste in clothes and interior decoration? Why is this still going on?

"I remember that day well" — the day Roe was decided — "because it was also the day when former president Lyndon B. Johnson died."

"I was one of the editors of the Michigan Daily, the student newspaper at the University of Michigan, and we had a passionate argument that went late into the evening over which should be our lead story. Should it be legalized abortion across the nation? Or the man who sent tens of thousands of young Americans to die in the Vietnam War? Most of the female editors saw the historic importance of Roe and understood the impact it would have on women’s lives. Most of the male editors — myself included, I confess — could not see past Vietnam and pushed hard for LBJ. We won, sort of: The paper ended up stripping Johnson’s death across the top of the front page and putting the Roe decision right beneath it, still above the fold, with a boldface two-line headline. For history’s sake, I thought that was the right call. I was spectacularly wrong. Johnson was indeed a towering figure, but he’d been long out of office and had to die at some point anyway. Roe was like a bolt from the blue, and with it the nation took a giant stride toward treating women as full and equal citizens under the law. The decision’s impact continues to this day — but perhaps not for many days longer."

I was a student there at the time, so I know I read that edition of the Michigan Daily. I didn't follow the Supreme Court, and I remember being completely surprised that the Court would do something so dramatic, to change so much about our experience of life. 

Isn't it interesting that the editors split by sex — everyone dominated by the  importance of sovereignty over one's own body?

As for the assertion in today's headline — who knows? Will overruling Roe "tear the country apart"? More than it's already torn apart? We may find out. I think it will help the Democratic Party, but you don't hear Democrats expressing hope for this gift of overruling.

"[Elizabeth] Holmes became teary-eyed on the stand as she described dropping out of Stanford University, in part, because she had been raped."

"Shortly after, she said, she struck up a relationship with Balwani, who would go on to become a Theranos executive. 'He said that I was safe now that I had met him,' she said. Holmes had met Balwani the summer before starting at Stanford. She was 18, and he is about two decades older. Balwani had a specific idea of how to make her into a good entrepreneur, Holmes testified, including her eating only certain foods that would make her 'pure' and give her energy for the company, not sleeping much and having a “very disciplined and intense lifestyle.' When she failed to live up to his expectations, Holmes said, Balwani would yell at her and sometimes force her to have sex with him when she didn’t want to, because 'he would say to me that he wanted me to know that he still loved me.' In Holmes’s first days testifying, she stuck to her defense that she was acting in good faith while she ran the start-up and said that she trusted staffers when they told her things were going well in the lab and with the business...."

The top-rated comment over there: "Holmes is a sociopath who thinks she's smarter than everyone else. She conned her investors, her board and her customers, and now she's trying to con the jury."