The shifting of Supreme Court ideological leanings is nothing new---remember the Warren Court. Having said that, what is new, are the most recent appointees, who are ideologically driven--they are not judges per se, they are advocates for a particular interpretation of the constitution, which aligns with their private political and religious beliefs---most concerning about these new appointees, is they continue to believe they are merely calling balls and strikes, when in fact, they move the strike zone to whatever fits their moral and political belief system. I would include Justice Thomas in this group...but, unlike the others, he is on his own private judicial journey, wandering around in his own right-wing wilderness.
43
With the exception of some of its rulings from the mid-1950s to the early 1970s, the history of the Supreme Court has been that of probably America's most powerful proponent of conservative values, corporate interests, and the supremacy of the majority white populace. This is not surprising since most who graduate from college who are fired by a desire to do some good for humanity by fighting injustice and inequality have have their idealism doused by the time they leave law school. Any residue of idealism soon evaporates and gives way to such goals as law firm partnerships, big salaries, big fees, big settlements and verdicts, and judicial appointments (the higher the better). Once in a great while a liberal voice will be added to the POTUS or emerge unexpectedly from a GOP appointee (e.g., J. Blackman and J. Stevens).
The traditional conservatism of the POTUS has worsened as a result of the efforts of the dogmatic ideologues of the Right-wing Federalist Society. The minds of its members seem welded closed to any progressive or liberal idea or value, especially those intended to reduce economic and racial inequality and suffering. They and their fat-cat Republican sponsors are trying to pack our courts with a frightening array of incompetents and hypocrites whose principal qualifications for appointment to the bench are their embrace of Scalia and Thomas's discredited and frankly idiotic tool for Constitutional interpretation, originalism, and membership in the GOP.
23
I suspect that there is a crucial "not" missing from the quote by Smith in paragraph 12
1
I don't care what the misogynistic jerks decide. I will openly defy this unconstitutional transfer of a female citizen's rights to an unborn fetus, zygote or unborn child. Period.
We are not going back to the white male(religious) version of female subservience.
11
A blatantly biased judiciary that ignores SCOTUS decisions, and applies its own ideas based on who the appointing executive was, that violates its own oath to protect, defend, and uphold the Constitution of the United States, is like a mirror that lies, that tells you that you have acne when your skin is clear, that you are bald when you have all (or most) of your hair.
It is the most fundamental erosion of our Constitutional Democratic Republic and it's what the Tea Party, Donald Trump, and Mitch McConnell are aiming for. Similar bad judges and bad decision led to the Dred Scott decision, that directly led to the Civil war. Similar judges and biased decisions in Weimar Germany led to the rise of Hitler and the Nazis.
Overturning the power of the Supreme Court of Poland is leading to the reversion of one of the newest Democracies in the European Union to a nascent dictatorship.
If we do not support and respect our laws and our separation of powers, we, too, we lose our democratic republic and become no different than Putin's totally corrupt Russia, where the leader and his cronies are bleeding that nation's wealth, while destroying every vestige of the democracy it once was.
10
In my opinion the press in general has given the architect of trump's court packing Donald McGahn a free pass.
Combine McGahn's engineered Federalist invasion of the country's courtrooms and McGahn's tenure at Jones Day and the FEC and you have a one man wrecking ball of our democracy.
https://www.washingtonpost.com/lifestyle/style/trumps-own-beltway-establishment-guy-the-curious-journey-of-don-mcgahn/2016/04/11/856229a8-fb9a-11e5-80e4-c381214de1a3_story.html?noredirect=on&utm_term=.5cc60f8ff6db
8
Humm...
Do you suspect that when the State of Louisiana demanded that an admitting doctor must have "admitted 50 (patients) per year" that the State of Louisiana already KNEW that NO woman had had to be admitted, not one, not for years?
Abortion is safe.
And, boyo, does that rip them off!
And, I'll tell you what else rips Louisianan Republicans off: The fact that the women in Louisiana have abortions and use birth control at the same rate that women all over America do.
Check the numbers.
The women of the South don't want 15 kids, anymore than the women in New Jersey.
They use BC.
They abort.
They are just more hypocritical because their husbands and ministers tell them to keep their mouths shut.
But, numbers don't lie.
Their numbers don't begin to approach those of theocratic Utah.
Louisianians know who they are.
They are hypocrites.
They live in the "State of Stupid".
They want their BC and abortions..... they just want to get rid of all access to it.
Now, that's "stupid"!
7
Right, left..who cares. Where does the US CONSTITUTION stand?
When Ronald Reagan appointed the world's foremost Sophist Antonin Scalia an Associated Supreme Court Justice we understood truth and justice were no longer the American way. Many of us understood that the headlines at America's demise would be Bezos exposes Peckar not Apocalypse Now.
3
Marijuana is either legal or illegal -- people still smoke pot --
Gambling is either legal or illegal -- people still gamble --
Abortion will either be legal and freely available - or illegal and shut down -- People who want an abortion will still get one anyway...
3
The american people are by nature mostly apathetic, especially the ones in the middle that decide elections. When the repulican Supreme Court ends the tight right to abortion, women will slowly come to the realization that the SCOTUS and Republicans in general consider them to be second class citizens. At that point it will be impossible for Rs to win elections except in the reddest of areas. It will end the Republican tyranny of the minority for a generation. At 69 I just hope to see the Rs get their just punishment.
9
Interesting how outrage over "defiant" lower court judges depends on whose ox is being gored. The Times decries the tendency of conservative lower court judges to defy the Court on the issue of abortions, but is fine with them defying the Court on the right to keep and bear arms. In criticizing just such decisions, Justice Thomas wrote, “I find it extremely improbable that the Framers understood the Second Amendment to protect little more than carrying a gun from the bedroom to the kitchen.” So, we are told to believe that Roe V. Wade is settled law, while DC V. Heller and McDonald V. Chicago are aberrations just waiting to be overturned by a "future, wiser Court."
2
Read KILLING DEMOCRACY on Amazon to see how taking over the judiciary is one of the final steps in creating authoritarian rule. This article shows it is happening.
7
With political and social clashes bubbling on the surface-Charlottesville for one- can we picture the discord if Roe is made null and void.
If Republicans faced a rout in last November's election on healthcare, wait for an overturn of Roe for a revolutionary display. And the turmoil will spill over to the Supremes. They will feel the lash and vitriol not seen since Viet Nam, Negating Roe would be far worse than killing ObamaCare. Roberts can secure his place in infamy or fame. We'll see which he chooses soon enough.
6
You can’t claim that the 5th circuit is being defiant when it has good reason to believe that SCOTUS as now constituted will reverse its precedent. All three conservatives that are still on the court declared that it was wrongly decided and Gorsuch and Kavanaugh will from all indications will join them. They might all use it as an excuse to reverse roe v wade and put an end to the notion that the Constitution or God gives women the right to kill their fetuses/babies and declare that only the state legislatures have the power to do that if they so choose while maybe also declaring in passing that congress has the power under the 14th amendment to declare that a fetus sometime before birth becomes a person and is entitled to the protection of the law like any other person.
We surely do know everything we need to know about John Roberts on the merits. As senior advisor to Governor Jeb Bush, he was the guiding force behind Bush v. Gore. He wrote the majority opinion in Shelby, dismantling the coverage formula/Section 4 of the Voting Rights Act: Bush v. Gore on judicial steroids. He concurred in Heller, establishing an individual right to bear arms for the first time in Court history. (SCOTUS hadn't touched the 2nd Amendment since 1939, to say nothing of the fact that a self-described textualist failed to notice that the word "individual" does not appear in the text of the Amendment.) He dissented on civil liberties in Obergefell. He wrote the majority opinion in McCutcheon destroying aggregate contribution limits and concurred in Kennedy's Citizens United, thereby allowing corporations to spend unlimited sums to destroy everything from progressive taxation to environmental regulation.
Prior to joining the Court, he thought it perfectly okay to toss a crying kid in the pokey for eating a french fry on a subway platform. He argued in Hamdan that the Third Geneva Convention's prohibition on the inhumane treatment of POWs in non-international conflicts does not apply to the United States post 9/11. Guess what color their skin was, in both cases.
From gay rights to campaign finance to gun control to the integrity of the ballot, John Roberts is a judicial outlaw practicing sovereign immunity. He should have been impeached years ago.
6
Reading Brett Kavanaugh's dissenting opinion in the Louisiana case is like reading legal mush. His cynical opinion all but ignored the precedent setting Texas case, and instead roamed into the speculation about whether or not 3 of 4 Louisiana doctors could easily obtain "privileges". Overturning precedent based on "speculation " clearly indicates the pursuit of a Conservative "agenda". The House Democrats should ratchet up their own "agenda" by having the Judiciary committee open hearings on Brett Kavanaugh's disputed testimony during his confirmation hearing.
6
I'm starting to respect Chief Justice Roberts.
Ms Greenhouse. You are a gem, a rare one indeed. I'm in love with you, wouldn't miss you column for the world and I don't care who knows. Please be good to yourself, get plenty of rest and a little exercise. We need you. paul in bessemer
1
So, the "news" is that the courts have become "political"?
That's not new news.
They have been political for decades,
and increasingly so during the past 50 years.
3
If Trump puts another RW judge on the Supreme Court its time to pack the Court. This requires a winning vote in the Senate, nothing more. There's nothing sacred about the number of judges and no President is entitled to rig the Judicial System for years. So winning the Senate is a big, big deal for balancing the Supreme Court, but don't politicize it because what you can do, they can do. It would be preferable to remove Trump by election or Section 25 or impeachment if the evidence is there.
3
A number of commenters reference the Equal Rights Amendment. It is questionable whether an E.R.A. would solve the abortion "problem", inasmuch as abortion only applies to women. It may be ludicrous, but a state could pass a law declaring abortion illegal for everyone, men and women, in which case a Constitutional defense of abortion rights might leave us pretty much where we are now, such rights predicated on a right to privacy as established in Roe v. Wade. I say "might" rather than "would" because in an earlier Louisiana case, Anderson v. Martin (1964), the Supreme Court did look past the prima facie equality of the law to the its substantive effects.
Needing only three more states, the Equal Rights Amendment could have passed, if its supporters, especially women's groups, had demanded a draft and one that included women. The equal "right" (a.k.a. obligation) to risk getting killed in service to the country is the most fundamental of equalizing images.
3
Roberts is in the unhappy position of having become the new swing vote on the Supreme Court. But, truly speaking, the critical choice is not so much between left and right policies as between maintaining some sort of semblance of institutional integrity and throwing the doors wide open to unapologetic political opportunism. Roberts finds himself in the unfortunate position of being both a political conservative and an institutionalist and having to choose between them.
I hope he proves me wrong, but it's hard to see Roberts having enough courage to consistently choose institutional integrity over political opportunism, especially with respect to abortion rights. He no doubt also sees the likelihood of rather extreme presidential privilege claims landing on his doorstep in the not too distant future. My guess is that he takes his principled institutionalist stand on the privilege questions and attempts to balance those decisions politically by tossing a compensatory bone to the dogs on the right. This will likely take the form of a reversal of Roe v. Wade.
4
Question. Frequently people who live in rural areas travel for various medical care/procedures. Why should abortion be differently than other medical procedures? When my child needed certain care as an infant we traveled 60+ miles.
On the admitting procedures issue, I can understand a hospital wanting a doctor to be a regular admitting doctor so that they are familiar with the hospital and its procedures etc.
1
Footnote 32 of the dissent in the June Medical case highlights the fundamental flaw in the Fifth Circuit's decision, and provides a roadmap for the Supreme Court -- particularly John Roberts -- to reverse the Fifth Circuit's decision in that case:
"Throughout the opinion, the majority refers to the burden imposed on the physicians and concludes that [the Louisiana statute] is not overly burdensome on [certain of the plaintiff-doctors]. [The Supreme Court's decision in] Casey and its progeny do not ask us to consider whether a statute is burdensome on doctors providing abortions. Instead, we are required to consider whether there is an 'undue burden on a woman's right to decide to have an abortion.' WWH, 136 S. Ct. at 2300 (citing Casey, 505 U.S. at 878) (internal quotation marks omitted). Again, the difference is more than semantics. If a statute leads to a number of abortion providers ceasing to provide services, that cessation of service will likely burden a woman's right to seek an abortion, regardless of whether the statute imposed a burden on the doctors. It is the burden on a woman's right to decide that must be weighed against the benefits of the statute, not the burden physicians face in trying to comply with new statutory requirements."
In other words, and given their conservative bent, the Fifth Circuit majority intentionally misapplied the Casey "undue burden" standard to save a Louisiana anti-abortion statute.
Now THAT is judicial activism.
8
A number of commenters reference the Equal Rights Amendment. It is questionable whether an E.R.A. would solve the abortion "problem", inasmuch as abortion only applies to women. It may be ludicrous, but a state could pass a law declaring abortion illegal for everyone, men and women, in which case a Constitutional defense of abortion rights would leave us pretty much where we are now, such rights predicated on a right to privacy as established in Roe v. Wade.
Needing only three more states, the Equal Rights Amendment could have passed, if its supporters, especially women's groups, had demanded a draft and one that included women. The equal "right" (a.k.a. obligation) to risk getting killed in service to the country is the most fundamental of equalizing images.
3
Judges at local and state level have defied the Supremes for almost forty years. The Supremes ruled in a couple of decisions in the early 80s that a convict's ability to pay must be considered in imposing fines. Yet routinely this has been ignored, and odious impossible fines have been imposed that often force convicts back into criminal activity or to jail for "contempt of court" or a "probation violation" for not meeting impossible demands to pay. The meaning of the Supreme Court rulings was clear, but ignored---and state legislatures right along with judges have been violating those rulings of the Supremes. What is anyone going to do about it? I'm surprised there haven't been some "Second Amendment" solutions carried out for the profound injustices already.
Chief Justice John Roberts & four Republican justices decision in Citizens United & Vote Now was and is a damaging if not fatal blow to our democracy. Why the court made up new law to destroy our democracy I do not understand. Maybe it is follow the money? How he feels about women's rights to make health decisions without Government interference I also do not know, But he will be faced with protecting the right of congress and the American public to read the complete Special Prosecutor's report on Russian interference in the 2016 Presidential election. Will he strike another blow against our democracy?
Roberts has the singularly duty to preserve and protect the integrity of the Court. The remainder of the tribe able to take leave of that duty. Rewarding biased rulings from the appellate courts eventually will erode confidence in our system of justice. Roberts navigated two Obamacare issues so there remains hope he provides a balance when necessary.
1
It's strange how people get wound up when a court fails to apply the correct level of scrutiny on a right not explicitly found in the constitution but fail to get equally wound up when a court fails to apply the same level of scrutiny on a right explicitly found in the constitution.
I also find it poor form when reporters fail to inform their readers what is really happening, it a court just maintaining the status quo while litigation proceeds or is a subpoena issued as a merely ministerial act by a court clerk rather than being a substantive decision. Reporters today seem to be so intent on finding evidence to support their planned narrative (right or left) that they fail to do their first job which is to learn so they can inform. I know many in my profession would be willing to take time to explain why. I just find reporters frequently don't ask.
2
It’s really unfortunate - but their are Bush judges, Obama judges, Trump judges etc.. I suggest requiring 80 votes in the Senate to seat a Supreme Court Justice without the possibility of changing that number. I think adults should be embarrassed for not already correcting this - bananas anyone - welcome to our banana republic
5
Since the founding of the Federalist Society by Ed Meese and Robert Bork, the plan for the arch-right was to feed conservatives into politics and the bench.
Republicans campaigned on appointing conservatives to the courts and they were clearly effective. While Donald was amusing us with tweets and hissy fits, the Senate was packing the bench with reactionaries.
The Chief Justice dropped the ball when the Senate refused to hold hearings for Merrick Garland. Maybe now, he sees the pattern and hopes to avert a generation of extremist lawmaking.
3
@Occupy Government 1. Federalist Society was founded by students in 1982. Bork graduated in 1953. Meese graduated in 1958.
2. The CJ has nothing to do with the advise & consent function or rules of the Senate.
3. Trump loves it when you acknowledge his successes. Thank you.
1
If the Fifth Circuit can have 16 judges, the SC can have 11 or 13 in 2021. Particularly if the illegitimacy of Trump's presidency, and thus his appointments, is proven beyond doubt. Then a Democratic president and Congress will be under tremendous pressure to act by the majority who elected them. Making it easy is McConnell's norm breaking in 2016 and ahead of 2020, the
reality of what a conservative SC majority actually means. Too much commentary these days laments that American law will decided by the radical right for at least a generation when the number of high court seats is determined not by the constitution, but by statute.
1
I am most outraged by the two Fifth Circuit Judges who completely disregarded the Supreme Court's ruling in "Whole Women's Health" (the Texas case) to uphold the Louisiana statute. Their flimsy effort to distinguish the case on different facts in Louisiana was a sham. Equally illegitimate that the four
"conservatives" on SCOTUS voted to deny the stay and thus to give immediate effect to the bogus Fifth Circuit decision. The anti-abortion judges are completely failing to follow legal rules & principles in their rush to up-end Roe v. Wade.
5
It is the Robert's court, just as it was the Warren, the Rheinquist, et al. These decisions will bear his name. Surely he understands how many of them will be overturned in the future or legislated around. These opinions do not reflect the will of the country but rather the scheming of a handful of old, white men, clinging to the notion they can turn back time. Spoiler alert, they can't. Women are not going back into the kitchen and bedroom, LGBT people are not going back into the closet and corporations are not going to suddenly get a conscience. The list of things the old white men are wrong about goes on and on.
The GOP is on the wrong side of history but more importantly, the wrong side of justice. What a legacy for Roberts if he allows the GOP to write the history of his court.
5
The answer here is obvious, namely that the Hellerstedt case was wrongly decided by a closely divided court and doesn’t have much standing as precedent. The state has long had supremacy in regulating medical practice in their domain, and decisions like the Texas case (as well as Roe & Casey before) have run roughshod over concepts of federalism
arbitrary authority is tantamount to tyanny; (see John Locke); a womans health is not benefitted by a law just because a legislative majority claims it is. health risks are a matter for medical science, Not hypocritical legislative fiat. (see why the Library of Congress was established-- to help legislators make informed decidions)
the same is true of our alleged president: he may declare an emergency, when there is an emergency, but unlike Humpty Dumpty, he cannot define emergency any way he likes; at the least, it is a situation requiring immediate action-- waiting two years and then 35 days and then 15 days and then 2 years (to build the "wall").
2
Pro-choice vs No-choice.
So, what is it with conservatives forcing their (restrictive) views on non-conservatives?
No progressive has ever said any woman MUST get an abortion, but progressives have said any woman MAY get an abortion.
For Republicans and other conservatives birth control, abortion and other sexual matters are NOT about morality but ARE about the power of white, Christian, heterosexual males over anyone else.
The label, pro-choice, aptly and completely, describes the pro-choice movement’s raison d’être. Pro-choice advocates for a woman’s right to make her own decision, her own choice. It does not force anything on anyone. No-choice (aka “pro-life”) is just that, the imposition of opinion by force.
No-choice's concern and advocacy seldom, if ever, encompass the quality of life after birth for parents and/or children, just the quantity.
3
The Ninth Circuit has been defying the Supreme Court for decades. Nothing new, just depends on whose ox is being gored.
4
The scary thing is that most people don't have a clue as to what's in store.
I'm not waiting, holding my breath. I'm moving to a country that doesn't insist on going backwards socially, economically, environmentally, and in almost every way that is important in the 21st century. What a waste of valuable time.
3
"What Chief Justice Roberts had on his hands was something less tangible but equally threatening to the rule of law: not defiance of judges but defiance by judges."
And what of the defiance by judges who found in the Constitution a penumbra of a suggestion of a right for women to kill inconvenient babies?
New York and Virginia show clearly where that had to lead.
1
does the Constitution mention fetuses or "unborn children"? does it say that corporations are persons? that money is speech? the right wing has had more than its share of reading into the Constitution its ideological agenda
2
In the law, like in life, something always happens next. If the Trump appointees are successful in undermining Roe, the next election will make the involvement of women that just occurred in the 2018 election look de minimis. Old white men justices (and one should count Thomas as fitting the mold) will have driven the electorate to not only dispose of Trump, but also to drive his feckless Republican enablers back into their personal hidey-holes. The next president, likely a Democrat with a Democratic Congress, will appoint a broad swath of Democrat judges. As opposed to gloating over their rulings undermining common sense and hard won human rights, the old white Supremes will instead end up trying to patch the holes carved by the new Congress and Democratic judges into their arcane and deluded efforts. The Supreme’s current efforts to unravel or eviscerate already recognized rights, like choice, will, in the long run, fail. They seem to forget that what goes around comes around.
There's a good chance that Trump will get to replace a liberal/moderate Supreme Court justice with one more right wing ideologue before his first term ends. After which Chief Justice Roberts' qualms will become irrelevant, and the radical White Right (AKA today's GOP) will rule America for at least a generation regardless of which side holds the Presidency or the Senate.
The other big winner will be Russia, whose investment in getting blacks and Bernie bros to not vote for Clinton is paying off beyond Putin's darkest dreams.
3
@Ehkzu: Trump won because James Comey brained Hillary with Anthony Weiner's computer in the week before the election.
1
This piece makes clearer than any other I have ever read what a farce the right's professed respect for the rule of law and disdain for "activist judges" really is. The composition of an appeals court changes and, voila', Supreme Court precedent no longer matters. Two Republican appointees join the Supreme Court itself and suddenly, Roe v. Wade and Planned Parenthood v. Casey are in mortal peril, and John Roberts’ support for a procedural ruling regarding admitting privileges makes him an apostate. What do anti-abortion zealots think they will have accomplished when Roberts returns to the fold or the next Republican appointee joins Alito, Thomas, Gorsuch, and Kavanaugh to overturn Roe and make abortion access subject to the whims of state legislatures? Is a return to back-alley abortions, injured women, and unwanted babies really worth the “moral” victory these people claim to be pursuing? The Court’s reputation for institutional integrity, to the extent it still deserves one, is really the least that’s at stake here.
5
@Richard: The right wing is only double standards and hypocrisy. It functions beneath the level of social acceptability.
2
Kavanaugh is who we thought he was, and Senator Collins is either the biggest sucker for a line or exactly what I thought she was.
Roberts can't be pleased to have it confirmed so soon that Kavanaugh really is a another right wing operative, and he may take on a Souter like role in the court.
2
This is not about Trump. Nothing has changed in 40 years, other than the gradual hardening of whole-party Republican tactics to enforce corporatist rule, and restrictions on the freedom of women, homosexuals and black and brown people. The 10,000 families who benefit from all this think it's just lovely that their enemies can be associated in the public mind with termination of pregnancy. They carefully titrate the actual availability of abortion so as to maximize motivation of Republican voters and minimize that of Democrats. Roberts is an errand-boy.
3
I reserve the right to be wrong, but it seems to me that Justice Roberts is a principled, high-minded conservative whose jurisprudential values place him at odds with the super-heated reactionaries of the right (and left, for that matter) who desire to use the high court to, in effect, make laws that, by Robert's' lights, bend the Constitution to the point of breaking.
I don't think he'll tolerate it.
That is my hope.
2
Both sides have their dedicated talking points, and both sides tell the other that no one is going to try and take xyz away from the other. Yet it seems both sides are trying to take away what the other wants. So how about the left gets their abortions and the right gets their guns then everyone can stop throwing a fit constantly. We have a problem in the country with trying to force the will of one group or another onto people that don't want anything to do with it.
2
@Grant46
Please explain how abortion is being "forced" on anybody?
3
Sad state of affairs that there are no judges on the supreme court, only political appointees.
1
Louis Menand had a great essay in a recent issue of the New Yorker describing the extreme contortions the federal courts have traditionally made in order to subvert the 14th Amendment (which is as close as we have to an ERA). Women are not equal players under these conditions. We have to amend the Constitution if we're ever going to have anything resembling a democracy.
1
This battle will never go away. Roe will never be secure, and not because there are people who want to control women's lives, or to see them in mortal danger due to pregnancy. Rather, Roe, and the pro-choice position, fly in the face of science, the duty of medicine to do good and no harm, all in the interest of the private good. Every society that has thought itself sophisticated enough to distinguish which human lives are worth living and which are not descends into increasing barbarity. The alternative is to give every human life its due, both mother and child.
So, there will always be two unalterably opposed positions. The prolife position holds that no one is wise enough or sophisticated enough to judge that an innocent human being, at any point on the continuum of life from conception to natural death, is unworthy of their life, and thus that no individual or public authority may take it. And the second, the pro-choice position, that individuals have a right to decide to take an innocent life, and that public authorities, whether governors, judges or legislatures, rightly authorize it.
The dignity of human life is the crux of the issue, nothing else. Roe will never be secure, therefore, either from the overwhelming and increasing weight of the scientific evidence, or the logic of the duty owed to human beings. Crass pro-choice sophistries can only delay the inevitable defeat of this aberration of morality and law.
2
@Colin
Greenhouse, on her best day, never wrote anything nearly as sensible as what you have here.
@Colin
“The prolife position holds that no one is wise enough or sophisticated enough to judge that an innocent human being, at any point on the continuum of life from ‘conception’ to natural death,....”
FYI:
Each of us are informed by our own beliefs rightly or wrongly. Mine, regarding a human life’s beginning as distinguished from other life forms (micros, plants and animals) is informed by my chosen religion as opposed to another religion, science or conjecture. It specifically says that human life begins 120 days after conception not at conception. Yet I can still appreciate your expressed sincerity as to why we have differences on this subject.
1
Still saying there's no difference between trump and Clinton?
I sure hope Bernie's babies and bullies are happy.
3
I am always puzzled why right-wingers care so much about people before they are born, but so little about them after birth.
5
This is just gaslighting differences in the shades of the cosmetics on the same pig. The sounder of swine will plow right through, while cutting off anybody else's access to the troughs, both of dough and of justice.
2
Ms. Greenhouse remains the clearest writer on legal issues
in the NY Times, but to say:
"We now know all we need to know about him."
- in reference to Justice Kavanaugh -
is rather presumptive.
I have always been puzzled why it is possible for the lower courts to all rule one way in a case and then the Supreme Court rules 5 to 4 and thus dismisses what the Federal Judges held to be the correct interpretation of the Law.
How can, presumably rational Judges, differ so completely ?
I also cannot understand an entire column
that does not mention when there is an abortion -
a human being dies.
6
A fetus is not a Human Being.
3
Because the Repub Senate blocked Obama's appointments, there were lots of vacancies ready to be filled by Trumpadoodle. What happens next depends on the voters. If they continue to vote Repubs to the Senate and as President, there is no stopping the move to the right. However, if the Dems can move into the majority as they did in 1932 for the next 20 years, the scheme used by the Repubs to get hard right judges in place can work just as well for hard left judges. No need for compromise candidates any longer. In the next 20 years, the Supreme Court will have a whole new majority.
1
Would love to see Ms. Greenhouse's assessment of many 9th Circuit decisions. I'm sure there's more than enough for several columns if she chose to do so.
4
It is pro life groups who have reduced abortion access and closed many abortion clinics. Their determination and grit have had a positive influence in shutting down abortion centers. That is where the real power lies. It is not the courts who have made the difference. Pro life groups will only continue their work.
1
Since the judiciary and executive are separate branches of government, why does the executive get to appoint judges? I understand the argument that 'the people' can't fairly judge the qualifications of jurists. But neither can the executive without the advice of supporters and advisors. Shouldn't Supreme Court justices be elected by the people? Is this type of change feasible?
So Judge Kavanaugh is personally opposed to abortion and that entitles him to ignore the facts in the case and past precedents. He's not up to being a judge in a traffic court.
5
@Ronald Aaronson: Kavanaugh treats litigants like bugs.
2
Sorry Justice Roberts, after Gore vs Bush, DC vs Heller, Citizen United, and the simply idiotic "corporations are people" decisions you may no longer claim that the Supreme Court is interpreting the law.
The so-called "conservative" guys on the no longer supreme court are just political hacks. Anyhow, what on earth does it mean "conservative"? Sending the country back to the Middle Ages? Fiscal responsibility, small govt., all lies. Instead of sticking the govt. nose inside women's bodies - it is a medical matter and none of the GOP business - you should find a way to eliminate the Electoral College which is a remnant of the 18th century. Are we still trying to protect and favor the slavery States?
6
Justices and Judges who cast votes regarding either side of an abortion question should be required to carry a watermelon in a pack around their stomach for a full nine months, stop working after the 4th of those months, have an invasive operation without effective anesthesia, personally sit in at a birth once a month for 9 months, plan a budget for the mother/child during 9 months of carrying the fetus based on whatever income she might have, and plan a budget to support a child using the mother's income for 19 years. Maybe then they will pull their nonsensical heads out of the clouds and realize forcing a female to carry an unwanted fetus to term is slavery and, in most cases, child abuse.
5
Am I glad I've moved to Canada. Depending on Roberts to be the swing vote is too stressful.
2
Justice John Roberts is unpredictable in his pattern of voting various cases on the Supreme Court. Sometimes he votes with conservatives and at other times he votes with the liberals. It would be wonderful if President Trump had the opportunity to appoint another Supreme Court justice who would be most likely a conservative. That would probably guarantee that any pro life/pro choice cases would be decided in the pro life favor. This is quite possible because there may be a Justice who may decide to retire after many years of serving on the court. One can only hope that this occurs.
2
@WPLMMT
Isn't our system of government wonderful, where a president who lost an election by 3 million votes gets to make several lifetime appointments to the SC?
4
It is useful to consider that as judges, of whatever court, whatever the types, levels and qualities of their broad, as well as specialized knowledge, abilities to understand, and lifetime as well as legal experience, that the relevant evidence they judge- create facts and truths- is based on probabilities. Their legal decisions however, are TOTAL, even if they may, or may not, be reviewable. This reality, which has nothing to do with ideology, political
party or who enabled a fellow BE ing to judge and decide, is all too often overlooked; not considered.
It's amazing to me how many people view the Supreme Court as "radical" depending on whether their decision supports our preferred view. Supreme Court Justices are not supposed to have preferred personal views on cases, just method of interpreting the law. Do they believe in a "Living" Constitution or a "Dead" Constitution? An originalist/textualist view vs. a non-originalist view (or other methods of interpretation.)
Supreme Court Justices are not nefarious individuals, a collection of mullahs rendering edicts. They are making decisions based on their method of interpretation, methods which should be known to all of us as citizens. Perhaps we as citizens need to debate with each other, rationally; vote with a rational conviction, rather than be led to vote based on emotional gibberish pushed by activists.
Whatever the outcome, the result will demand that citizens debate, decide, and vote. That's the great part about Democracy.
1
Defiance by judges is Chief Roberts's problem today, but tomorrow it will be defiance of judges. The next Democratic president, be it in 2021, 2025, or whenever else, is going to have basically no incentive to enforce the Judicial Branch's rulings.
2
Since Marbury, the court has become the final check on the tyrrany of the majority. Once,elected majorities in the states were more likely to over-reach in regions of ethnic and cultural homogenity. the unbreachable wall between factional Republicans and Democrats, guarantees that the passions of Party majorities in the federal congress will precludes all compromise legislation.
Today the tyrrany of the majority in congress makes any reasoned compromise on devisive national issues impossible.
The 1858 Dred Scott decision of the Taney court ,composed of a “majority of pro-slavery Southerners , illustrates the consequence of the politicization of the Supreme Court. Yes, elections matter, but when the courts subvert their oath to judge the constitutionality of wedge issue laws indifferenly then majority rule degenerates into the terrible tyranny that John Adams foretold.
How much better would it be if legislative majorities in Washington and the states could forego partisan advantage and pass acts in the public interest rather than in the partisan interest of their temporary majority party and its passionate base.
However divisive Brown v Board, Griswold, and Roe have been, without well reasoned and legislated constitutional laws the Court may well gladly sacrifice its legitmacy in support of the passions of its majority faction. Nothing in government comes with an eternal guarantee.
1
@Thomas: They don't even understand that no rights and powers reserved by the people are listed in the Constitution. Then they insist that such rights and powers don't exist at all.
1
Take all the clinics out of it and let hospitals perform abortions. Why are women being relegated to clinics with hostile protesters outside putting them through hell before they even step through the door?
We're about to have FIVE MEN on the Supreme Court decide what women's rights should be. Think about that! We're no further along in this country in terms of women and the right to control their own bodies. How sad and how sickening.
7
I remain saddened that the females in this country haven’t poured into the streets and demanded that men leave their bodies alone.
2
The hypocrisy of those supporting the plight of migrants and the poor yet advocating the murder of unborn children is stunning. Likewise stunning are those supporters of the unborn who are callous to the born. A pro human life agenda (anti abortion, anti death penalty, anti war and pro immigrant, pro worker, etc.) is the only moral agenda. Every other political position is some form of sophistry.
2
Not being keen on abortion myself, it is nonetheless a common issue women demand be available; who are we, especially we men, to make judgements about it? While hypocrisy lingers in some court houses, perhaps trying to gain the upper hand politically, one thing ought to be clear: abortion is to remain legal; and, hopefully, rare and safe. This, irrespective of what the Kavanaugh's of this world have in mind, rabid as they may be... and with a sad story of their own.
1
Two words: Mitch McConnell
Robbiesimon,
To answer your question my response is no. You can never speak out enough against abortion and stand up for life in the womb. And this is what I intend to do until abortion is a thing of the past.
2
@WPLMMT
Hate to break it to you, but human beings, and God, have been aborting fetuses for thousands of years. Abortion will never become a thing of the past. Just a question of whether they'll be performed safely in clinics, or not so safely in back alleys.
3
Obama is to blame here,he had s big majority in the Senate his first two years and dither ed around.
1
While the callousness of Kavanaugh to want to play science experiment on the women of Louisiana is hardly surprise, in the end, this is what I fear is our future. Roe v. Wade will be made meaningless for women outside major cities. Baby Mommies and baby Daddies unable or unwilling to care for children will have them, neglect them, abuse them, and let them multiply.
If conservatives think a border wall prevents crime by immigrants, why do they not think abortion prevents crime?
3
I hope Susan Collins has a new understanding that her perception of moderation in Kavanaugh was actually her being conned by a frat boy.
7
I am a male. Personally, I feel it is a female decision solely. no need to respond to my beliefs.
Any doctor, MD, etc should always have access to additional medical services when needed. The cruelty of white men on females. No hospital in the USA should be allowed to deny a doctor the right to medical access if needed. Sheer stupidity demonstrated by these states of the United States of America.
Trump and his twisted state of malfunction.
3
You quote Bobby Jindal as wanting Louisiana to be the most "pro-life state" in the nation.
That's also the same guy that called the Republicans the "Party of Stupid".
Guess which sentiment he will be remembered for, forever?
3
Sorry Linda, all you know about Justice Kavanaugh at this point is that he dissented entirely on procedural grounds and never reached the merits. Nice attempted smear though.
3
We can fix this. Declare that the South won the civil war. Let them and their courts and the stone age Supreme Court judges move/ stay south. But first, take their military assets away. Declare that zone demilitarized forever. And ban all trade with them.The heat will drive them to beg for mercy within 30 years. All they must do is give full citizenship to women and the poor and the brown.
2
Kavanaugh.
Someone please get me an aspirin.
1
Facts? Who needs them? Precedent? Not binding on this Court. Women? Keep them barefoot and pregnant. Get them out of the workplace, where they are taking white mens' jobs, and if they don't want a child, it's their fault for having sex, men shouldn't have to give up their natural instincts. This Court is moving into despicable territory, proving itself to be the most lawless in history. Although Roberts is concerned about the Court's reputation, he will, inevitably help destroy it by imposing right wing religious and business beliefs on the rest of us.
And, btw, if Kavanaugh votes against Roe, shouldn't he be impeached and removed for lying to Congress? It is clear this Court, as with the Republican Congress, is governed by old white men, protecting their "rights" at the expense of the rest of the country. Fire them all, vote Democratic.
7
Kavanaugh was simply disingenous. A lot like Susan Collins.
3
I really don't understand how, as a thinking human being, I can have any sort of respect for the current Supreme Court, given this level of argument. Mr Kavanaugh knows exactly why this law was written, he isn't an idiot. He knows he is making a specious argument, at the supreme court, when he says "they should just keep trying" to get the ridiculously unnecessary admitting privileges. If is obvious that this is in complete conflict with currently decided law, but no matter.
If he thinks Roe v. Wade was decided incorrectly and he wants to overturn it with a reasonable, rational legal argument, no matter the societal effects, fine. But to sit up there and insult my intelligence with such a specious argument is insufferable.
No! I have NO respect for the supreme court. It is gone. It can no longer engender any kind of respect from any thinking person when this is the level of reason that occurs there. What utter nonsense; just an incredibly unserious person. I'm disgusted. He plays for team C. He will vote whatever team C wants, no matter how silly and improbable the argument. Justice Roberts will go down as the Chief Justice that presided over the court that destroyed the reputation of the institution.
The loss of the power of the courts will be a terrible thing for the country, no doubt. The only thing worse would be to let these clowns keep legislating their nonsense from the bench.
5
GOP law on women's female organs so lucidly presented by Greenhouse makes Sharia Law look wildly progressive.
Welcome back to the Stone Age where women will suffer long and hard through unwanted pregnancy while the man parties on with a downside of zero.
Linda educates us well on why Roberts had to step up to district federal judges engaging in brazen insubordination which in the military would be punished by summary execution by firing squad.
I never ever miss a Greenhouse column, always best of the best.
3
So now the only mildly fascist on the supreme court are surprised that judges even more fascist than them would try to subvert the rule of law from within? Haven't they seen what happens when those appointed to govern actively work to break government?
1
want to do some interesting reading, try the scotus blog and the amicus curiae briefs and see who is teaming up with whom
We've known all we need to know about "Justice" Kavanaugh since his confirmation hearings. The man is a liar and an abomination.
4
Abortion is bad on late term , never be solve from both party Democrats or Republican but by Supreme Court if look back thing Supreme Court had hand in.
Every state have 3 people enter room voted count on party One Democrat and another Republican so if the Russia thay pay all 3 representatives them .Election will be false to America People WE MUST BE DUMMING Because if know any there more Democrats than Republican should Win. Michigan, Wisconsin and Pennsylvania and a judge hired by GOP not to do paper count?
Look AT 2000 ELECTRON Gore and Bush, Democrats votes and up in channel with crocodiles with help Ms Harries and Bush brother Jed and Supreme Court and there decision but did know that 3 family member of Supreme Court work on Bush campaign. He cause war and almost destroys stock market do not voted for liars 2020 GOP.
I'm 78. In the early 60's. before Roe v Wade, I had 2 friends who had abortions. One who self aborted using a knitting needle, and another who went to a back alley doctor and almost bled to death.
This this country really wanting to go back to that time? Most of the people arguing for getting rid of Roe have never lived during the pre-Roe era.
136
@Sandra Wise "This this country really wanting to go back to that time?"
I would answer that question as "NO", the majority of the country does not. But what we are seeing now is the tyranny of minority rule.
11
@Sandra Wise I have and you don't want to go back to it.
4
This pro life woman will never stop speaking out against the evil of abortion. I cannot be intimidated or silenced by those who oppose the pro life cause. Thankfully I have my supporters and together we stand for the most defenseless in our society. The unborn. We will not stop speaking out against the injustice of abortion ever. There is strength in number and ours are only growing with more people joining our cause. We have science, truth and justice on our side.
1
@WPLMMT: Science says the existing human population is driving most of the rest of the animals on the Earth extinct. We need family planning whether you like it or not.
6
It breaks my heart when I read the many comments supporting abortion on this board. It means though that the pro choice side is concerned with the progress we pro life folks have made over the years in reducing the number of abortions performed. We have also been able to see many abortion clinics close and in their place pregnancy centers form. They serve women in every way except in providing abortion.
There are many pro life groups today and they have been successful in conveying that abortion is the taking of innocent human life. Many people are joining our cause especially the young. They are some of the most ardent defenders of life issues and are tireless. They are in the forefront of this very important cause and will not stop until the travesty of abortion is a thing of the past. They have youth and determination on their side and will take over this very important movement one day. They will not give up or in to this devastation.
1
@WPLMMT
I have read your comments here, and at other times regarding abortion. I find your dogmatic, black and white, your way or the highway reasoning to be repellent.
The reason abortion numbers are declining is birth control. Your "pregnancy centers" use deception and bullying on women at the very time they need real support and honest information. To that end, I will make a donation to Planned Parenthood today.
5
These are tough times. We continue to be ruled by angry white men, a situation made clear every time Mr. Trump appoints someone. Nations die when they stall, when they stop moving forward. Mary Oliver told us that in her poem, "The Journey," and she reminds us that there is a new voice out there, our own, and we must keep faith with it and not give up.
1
It seems that four judges on the Court, the legislators, and lower court judges who want to abolish abortion are under the delusion that they can drive social engineering as they like. This feels like Prohibition redux. It didn't work then, and it won't now. It will, though, serve to ossify Conservative thinking to a point that shatters it from the inside. They can't adjudicate reality.
I read Kavanaugh's opinion. I do not pretend to be a lawyer and most of it was just gobbledygook to me but I am a physician and I do know a lot about obtaining admitting privileges to hospitals. It is highly likely that it will take a lot more than 45 days to push through any credentials committee privileges for these doctors and it would only take a minor interference from any number of people (who might be politically motivated) to stall the process for a long time. His assertion that it will take less that 45 days to find the answer is in theory true but in practice not even close.
1
Thank you for this. Very well put. For over 30 (?) years, Linda Greenhouse has been the absolute gold standard for me (a trained lawyer) when it comes to analyzing the Court and its decisions. Ms. Greenhouse, you are a rare gift to journalism.
4
Roberts understands something that Trump and his base don't understand, that if the Supreme Court becomes baldly political, and worse, a political agenda that is out of synch with most of the country, you can end up with a Supreme Court that loses relevance. The constitution established the Supreme Court as the ultimate arbiter of the law, but in the end the Supreme Court has maintained power by lower courts and state courts respecting the court's decisions, even if they disagreed with the rulings. Setting up a Supreme Court beholden to the GOP base, whether it is corporations and the very well off , giving corporations the rights of individuals, or the religious right creating a theocratic exemption in the law, or for example if the Supreme Court not only overturns Roe, but then turns around and says that states banning abortion have the right to police other states where it is legal. In the past, courts with controversial rulings have been careful to base it on established law, to show how gay marriage followed a long line of other rulings, same with rulings that were more conservative. With Citizens, the judges threw out 200 years of court rulings on rights, that they were based in the individual, and basically pulled it out of their hat that a corporation was a person, because it was 'made up of people'. If the court rules to throw out ACA, if it allows making same sex marriage illegal again, they face a revolt from the 70% this country that isn't backwards.
2
@bill d: The Supreme Court ruled itself the ultimate interpreter of the meaning of constitutional language, in the Marbury v. Madison case back in 1803. Once its credibility crumbles, there's no telling what will take its place.
The verdict is in on Roberts. He's no conservative as his ruling to save the abortion that is the Individual Mandate proves. He'll be one of Bush's biggest regrets.
1
@RJ
And, as many millions of us would agree on how great that would be may I simply say "From your lips to God's ears."
2
It's especially outrageous that 4 Supreme Court justices voted against this stay. They are radical ideologues who have lost touch with the legal principles they swear to uphold and with the people they affect with their decisions.
138
@James
One wonders why these people bothered to go to law school, since they only use their legal educations to force issues to conform to their world view, instead of making objective decisions based on the merits of the issues brought before them. Theirs is the worst kind of intellectual dishonesty.
29
@arusso
That is the Federalist Society way, and that is what we can expect for decades as Trump continues to place judges on the bench, and not only on the Supreme Court. We are truly toast.
2
"That places the Fifth Circuit at the leading edge of the coming wave of Trump judges (sorry, Chief Justice Roberts, I’m afraid that’s what they are)"
Hee-hee! You so funny.
It's funny because we know what you really mean...
"Ole Stare Decisis" Roberts exerted himself to create the court he says he wishes he did not have: a political back room of naked partisans shielded by somber black robes and a really big bench.
Roberts' every move, every strained pronouncement makes clear what he thinks of his court - it is the legal enforcement arm of Conservative/Religious Right.
From here on, well from about 1990 on, this court is a font of right-wing activism bent on subverting the Constitution, and the end the independent judiciary
John Roberts created a political court, labored to pave the way for partisan, pro-money, pro-religion opinions to become the law of the land.
This decision is no change of heart or sudden doubt that maybe all this isn't good for the nation; this is a cynical bit of stage management by a Chief sure of victory and most desirous of limiting the fallout, of maintaining the charade a bit longer.
Stagecraft honed to perfection over at the Federalist Society.
Roberts marks the end of a decent history of American jurisprudence. With complicity of McConnell and the perfidy of Trump, whatever recovery may can not even begin for twenty years or so.
Meantime our Chief, and his now legally irrelevant, not to say corrupt, court waddles on in infamy.
4
Just to be clear. These judges are not "moving to the right". They are moving to ignorance. They are moving toward the establishment of a de facto state religion. The long term danger here of appointing these people is that they see things in religious terms and that religion to them means Christianity. This is specifically a brand of Christianty carefully edited to reinforce their fear or human sexuality. They are not conservatives - abortion rights have been the law of the land now for 45 years - and conservatives respect precedent. No, this is all about the establishment of a religious bias in our country. Exactly the opposite of what the founders wanted. How do you graduate from the Yale law school imbued with such ignorance? That's the real mystery.
7
The two Supreme Court justices, and the hundred plus federal judges schooled in alt-right dogma, and little else, who have been appointed by Donald Trump will overturn civil rights for decades.
Regardless of how progressive you are or how moderate you are - or how progressive the ultimate Democratic nominee is or how moderate they are-vote Democratic in 2020.
4
A "conservative" Judge is bias by definition.
Mitch McConnell is corrupt and likely compromised.
The republican party is "anti" everything.
Anti... Voters rights; Reproductive rights; Health Care; the Environment; Human rights (with the exception of a fetus); Science; Evolution; Fair Taxation; Truth; Justice; and even America.
Stop the lying.
3
Inevitably, the courts will become fascists, as are the five "conservative" justices of the Supreme Court. Fascism supports oligarchy rule allowing the rich protection from popularism. Roberts knows that this is only a temporary state. As the country becomes more and more corrupted revolution becomes inevitable. Roberts is right in protecting the court from being on the wrong side of history.
The only solution is killing off the effects of Citizen United in the legislature. At the same time, we need to tax the rich on their interest income and require a healthy exit tax if they choose to relocate their money off-shore.
Without these actions, I see a disgraced court.
2
It is too late. The SCOTUS is not viewed as legitimate by a large segment of US citizens, and for good reason. If SCOTUS and the packed US District Courts let the people vote (not likely), the only way to restore legitimacy is through impeachment of Gorsuch. His elevation to the Court is a national disgrace.
6
Roberts went off the Rules of Decision and Stare Decisis rails with the intellectually, and jurisprudentially dishonest Shelby County and Citizens United decisions.
Shelby County unleashed a wave of racially motivated de jure voter suppression legislative schemes like here in Tea
Party run NC.
And Citizens unleashed unbridled anonymous dark money on our political process.
The lower court cowboys ignoring SCOTUS jurisprudence are pikers compared to the Chief but are playing catch up fast based on his lead.
2
Robbiesmom,
I will continue speaking out against abortion as long as I have a platform and freedom of speech. No one will ever silence me as I am passionate about the saving of innocent lives in the womb. I cannot bare seeing countless fetuses/babies destroyed and will continue voicing my objection. I and thousands upon thousands are working to end this barbarism.
You are not forced to read my post and if saving one life results from my pro life work it has not been in vain. Actually, we in the pro life movement have saved countless lives but want to save more. Our work is not done but when I read a comment like yours I see it is just beginning.
@WPLMMT And I will continue to defend your right to speak your views. But keep your God out of our government.
6
"Admitting Privileges" add an extra level of certification--and thus selection and discrimination--which can be good or bad (based on factors relevant or irrelevant to medicine). https://www.semissourian.com/story/1157587.html
US hospitals are often run by religious organizations. https://www.providence.org/ The Church is branching out from saving souls to saving bodies--it may be more profitable--in the US. So religious discrimination is rife.
Furthermore, "Admitting Privileges" may or may not imply in hospital treatment privileges.
There is a trend toward "hospitalist" as a medical specialty. In many hospitals only hospitalists (in-house Drs.) can treat hospital patients.
If "admitting privileges" imply treatment privileges, then denying treatment privileges would deny admission privileges.
A sneaky way for god-story delusion to infect a secular, science based health care system.
4
I went to the "Americans United for Life" web site and scrolled through their 7 screens of Op-Eds to see what they mean by "life".
- they are against birth control
- they are against assisted suicide
- they are against feminism
- they are pro-unborn, no op-eds about childcare, insurance, etc
So it seems they care about a heartbeat only, not the quality of life, the health, well-being, ability or existence of an actual person the heart is beating inside of.
5
Is there a better writer about the Supreme Court - or, at the NY Times, about anything - than Linda Greenhouse? I sometimes dislike her opinions, but can hardly ever disagree with them. And she writes like a historian, for the ages. About Brett Kavanaugh: "He might have provided some cover for the chief justice, but chose not to. We now know all we need to know about him." Yes indeed. I look forward to her commentary as the Roberts court either remains a third branch of the federal government or descends into a chorus for Trumpism.
3
This all harks back to the original flaws in the decision -- the abortion issue is so unique .. it's a minefield.
The courts are not the concern IMO -- it's medicine ... and the first shots were fired last in the last couple of weeks.
As medicine lowers the time of viability -- the personhood question get very sticky .. very sticky
Again and again and again it is clear that a judicial body dominated by five Roman Catholic men is a creature of the curia, not the United States of America when it comes to any issue having to do with women, women's health, sexuality and reproduction.
They do not consider the law, they impose Catholic theology on the nation and history will reach that judgement.
Ugly fact? Yes. Ugly to say so? Yes. Absolutely True? Oh yes, oh yes.
Roberts, meantime, tries to weave and dodge, concerned with his own reputation as he looks over his shoulder at what it will or will not be when it is part of history.
5
If those wanting gun control can figure out how to do something like what they are doing to stop abortion, say make it hard to get or manufacture, ship or stock ammo than we can trade them gun control for abortion.
1
Brett “six pack” Kavanaugh showing his true colors and looking forward to casting his vote to overturn Row v. Wade.
Collins is an easy mark by con’s. Voting yes for Trump’s tax cut bill to further enrich corporate executives, millionaires, and billionaires. Voting yes for “six pack” Kavanugh because he said he respects legal precedent cases.
I hope Susan Collins gets her comeuppance in her 2020 senate re-election bid and loses bigly.
7
If it wasn't so despicable, this admitting privileges canard would be laughable.
Am I to understand that a Doctor, who performs a legal abortion in Louisiana, with unforeseen complications for the woman, who has no admitting privileges to a nearby hospital would result in no action being taken by Emergency personnel if requested by said Doctor?
Would a hospital refuse entrance/treatment if this woman was brought there by Ambulance?
Would the Physicians refuse treatment?
I suppose down south they cant distinguish between the Hippocratic oath and the Hypocritical oath. Those Y's and I's will get you every time.
4
I don't think it's over-the-top to state unequivocally that the right-wingers on the Supreme Court, Alito, Thomas, Gorsuch, and Kavanaugh, want to impose American Evangelical's version of Sharia Law on America. This is religious fundamentalism, and it has no place in America. We need to call these justices out for these views. They are America's right-wing mullahs when it comes to women's rights.
6
The GOP only cares about ONE thing: Getting more conservative judges confirmed through the Senate.
Trump could nuke New York City and McConnell wouldn’t even blink.
3
Thank you, Ms. Greenhouse, for this clearly written piece. Today, it's an abortion law. What's coming next? I'm sure that right now, conservative groups are challenging laws involving their pet issues to wink wink nudge nudge their way into the Supreme Court. We're talking predictions; I predict that next, some (reasonable) gun restriction law will provide a conservative vehicle for the Supremes to expand gun ownership rights. "Religious freedom" will certainly rear its head again. God forbid employers be offended by their workers' desires not to have children at a given point in their lives. Oh, and same-sex marriage. How long will that last? Reason, decency, privacy. All out the door with this court and this presidency. What a farce.
1
" Trump judges ", " Obama judges ", " Bush judges ", " Clinton judges ", etc ... isn't this how the system is supposed to work? I mean when " my guy " appoints judges they're " good judges ", and when " your guy " appoints judges they're " bad judges ".
1
A very one sided and prejudicial article. Critical of the 5th but totally ignores the judicial activism of the 9th.
1
As Ms. Greenhouse suggests, Roberts may not respect precedent so much when the merits of the case reach the court next year or, at the latest, the year after. As she points out, Roberts was in the minority in Whole Woman's Health and signed onto Alito's scathing dissent. Furthermore, Roberts has a long history of not respecting precedent. The most infamous case was his decision striking down the strongest portions and protections of the Voting Rights Act, leaving only a largely unenforceable shell of the law. After all, he had spent most of his career as a lawyer doing what he could to undermine and destroy the VRA. In fact, in multiple cases he has voted against precedent.
He is not an umpire calling balls and strikes as he like to say; he is a pitcher throwing grease balls. There is no umpire to throw him out of the game because he's part of the Federalist Society ball team, who play a alien form of America's game. When they are in the field, there is no umpire behind the plate, the first and third base coaches double as umps, and the ump at second is blind. When America's Team is in the field, however, the Federalist Society pitcher is the ump behind the plate because he knows best how to call balls and strikes. The Koch brothers are the honorary umps at first and third, although their substitutes Leonard Leo and Eugene Meyer make most of the calls, no doubt by phone. The ump behind second is still the blind guy. America's Team seldom wins the game.
Justice Brett Kavanaugh's conclusion that the doctors could have obtained admitting privileges had they only tried harder is not unexpected: it comes from a man whose testimony during his confirmation hearings indicated a belief that women should have said 'no' louder and closed their legs more tightly.
3
I have a Supreme Court dedicated to establishing truth, justice and the Canadian way. Even as I am a senior citizen who grew up with Superman and Metropolis I know Superman was born in Toronto.
The constitution of the USA was not written by the lawyers serving America's landlords it was written for government of the people , by the people and for the people. It was written in the language Dr Samuel Johnson championed to give us a medium to exchange thoughts, ideas and observations so we could communicate.
Canada's legal system charges legal adversaries and judges the task of determining truth and justice.
I am sure most Americans believe that truth and justice is what their system delivers but a polarized society has given you courts that see truth and justice as an enemy of America and its people. Reagan was the beginning of the end of America and Mr Scalia the great sophist and lawyer did not fail in task of overthrowing your constitution and its revolutionary aspiration of government of the people by the people and for the people.
It is Valentines Day and the anniversary of the tragedy of Marjory Stoneman Douglas. I grew up loving the USA and as I look through my tears I send my love for the gifts you have given mankind and my condolences for what you have lost. With men and women dedicated to removing truth and justice from your country being appointed to your court benches every day those of us in our 70s will not live to see truth and justice again animate America.
3
@Montreal Moe
Even when I forget Reagan's betrayal of his guild members I still see the non smoking pitchman selling cigarettes to his baby boomer audience their cigarettes even as the word was out about long term cigarette use.
2
During his 2005 confirmation hearing to be Chief Justice, John Roberts described Roe v. Wade as settled law.
What has happened since? Thirteen years have passed and the public acceptance of Roe v. Wade has risen. During the past 30 years public rejection of overturning Roe has ranged between 50 to 66 percent; last year, 64 percent.
If the Court pursues weakening or overturning Roe, the vote now would be at most 5-4 and the Court would be ignoring the dictum: great changes should not be made by narrow majorities. The decision would be attacked as some combination of Theocratic (the majority of five would all be Roman Catholic justices) or Chattel Revivalism (a step toward re-subordinating women to men).
Weakening or overturning Roe would propel some combination of legislative (packing; prohibition of review) and/or constitutional overhaul of the Court and its decisions.
The Roberts Court has already set itself up for harsh reversals with Citizens United and Shelby County. An appetite for more?
Abortion is not women's health. It is the termination of an innocent human life whether it is performed at six weeks, six months or even right up until birth. This cannot be said enough. Those who support abortion care more about a woman's rights than those in the womb. How anyone can approve of this barbarism proves how far we have fallen as a civilization. And now we have politicians who are passing bills supporting infanticide.
Those who are appalled at losing 60 million lives in the womb must speak out against this travesty. We must not allow this devastation to go on. This is appalling.
That the woman is alive is a fact. That the fetus is alive is conjecture.
Definitely at “six weeks”, as you say, no fetus can live outside the womb. You say that life is precious and must be protected, else we’re all barbarians. Nonsense.
In no other situation does any law ever require anyone to dedicate any part of their body to support the life of another. Never. No one is obliged to give up a single eyelash, even in a matter of life and death.
Either the law generally is barbaric, on your terms, or not. Why single out abortion? Why expect the rest of us to accept your conjecture as the basis for that exception? And what business is it if yours, anyway? What right have you to impose your opinion, as a matter of law, on the rights of another citizen?
You trust her to raise the child. You insist on it, in fact. But you don’t trust her and her doctor to make the right decision before the baby is born. Is that paternalism or hypocrisy? Perhaps both?
4
@WPLMMT-what is appalling are the hypocrites who purport to know what is best for all, including the unborn, while spewing their own theocracy. This is not about infanticide. It is about a woman's right to make a determination about her own body. While abortion is not a desirable goal, and should be a rare and difficult choice, it needs to be a choice nonetheless.
4
It was ridiculous to begin with. This is a medical decision. In all rural areas there are usually general docs but they all refer to specialists when something goes bad . A doc doing abortions always has a backup specialists group nearby, often in a larger town, but usually same town that he/she refers a patient to if a complication occurs.
Even if they had "privileges" they would turn the care over to the specialists. This is the practice and consider good medicine. Privileges in a hospital was non problem to start with.
4
Brett Kavanaugh must feel wonderful getting the approval of Trump; the admiration of the Federal Society (though my guess is they see him more as vehicle for mayhem than as a real person) must make him feel special; it can't get much better than have a whole range of people who want to intensify human misery praising you to the skies. But still to have Linda Greenhouse say about you "We now know all we need to know about him" --I don't know--but I know I would never want that said about me.
3
"a conclusion flatly refuted by the findings at trial but embraced by Justice Brett Kavanaugh in his opinion last week, dissenting from the Supreme Court’s vote to grant a stay of the Fifth Circuit’s decision. Justice Kavanaugh said the doctors should keep trying."
This reminds me of the tactic Kavanaugh used on the immigrant teen (J.D.) who was trying to get her legal abortion- delay delay delay.
Kavanaugh legislates from the bench to the best of his legal authority by this tactic which screams "I will create difficulty and I can outlast you". But he cannot always win that way.
2
If what drives Justice Roberts is a strong desire to keep the horse inside the barn (i.e., to maintain the Supreme Court’s once hallowed reputation, as above the political fray), he should look more carefully. When it’s not hyperventilating, that horse and barely breathing.
1
I find it impossible to believe that any qualified Supreme Court justice could hold with the Fifth Circuit majority ruling.
Freedom of religion is now an additional Constitutional right (since 2014) of every American in a reproductive rights case. The companion "establishment" clause is a defense for all anti-abortion laws that limit access up to 22 weeks, and all "personhood" laws are likewise Un-Constitutional, as that SCOTUS decision found that a belief that life begins at conception was 'a deeply held religious belief".
Dear Chief Justice Roberts:
It seems to me the act of judging is very precarious. I think it would be easy to be a literalist, decide a case by what the law allows but that is not the same as judging. To judge I think you have to put yourself in the place of the petitioner and decide how you would react to a judgment. It is no accident that we represent justice by the balance scale as even a little dust can make a difference. Justice is not always predictable but it is always fair. That is what distinguishes a great judge. Please be that Judge.
1
Based on this analysis, does anyone not believe that the Fifth Circuit court will uphold the latest decision by Judge Reed O’Connor in Texas v. Azar declaring the Affordable Care Act unconstitutional? And if this happens, that the Supreme Court will uphold that decision? Now we see, if we didn’t before, what the Republicans, especially Mitch McConnell, have sold their souls for. We had all better pray for the continued health, even if precarious, of Justices Ginsberg and Breyer. If Trump gets to name even one more justice, it will be years before any kind of progressive agenda can advance, no matter how many Democrats are elected.
5
Justice & Judge’s obviously aren’t synonymous. The question is not why, prejudice is human but how can that quality be mitigated to a larger degree. Further prejudicial judgements of courts do share a kinship with another far more common ‘business’ affair— job interviewing.
As made clear in the book Sensible Job Interviewing. Employment is not a social arrangement but is transactional at its core. This dichotomy is also common to our court systems. ‘Determining’ gullt and innocence between ‘private’ parties (wrongs) or ‘Resolving’ ‘public’ inequalities and inequities (Justice) require different judicial temperaments in arriving at conclusions.
The latter is not a ‘law’ but a ‘lay’ proceeding. As the above piece clearly noted, “in lay terms” the following judicial stuff was argued. It’s irrelevant if a judge personally agreed that Blacks were sub Human based on historical records or law. One does not need a law degree in that case but reason, morality, ethics and sanity. My point, is that if judges (public officials) act like politicians then the media should not afford them any special deference and attack their personally expressed thinking and rulings vociferously. The Federalist Society and such, are not interested in integrity and justice but rule making. Media woke late to The GOP as con artist. Its time to spotlight ‘their’ judges thinking on the Public’s Dime also.
I believe Roberts is trying to insure the public does not recognize the conservative activist bent of the last two nominees. Without him, the legitimacy of the court would be seriously called into question. The court had always been seen as above politics. Thanks to the efforts of Mitch McConnell that is no longer the case. The SCOTUS is now just an extension of congress.
7
When I see a column by Ms. Greenhouse I feel as I do when receiving a wrapped present from a superb gift-giver.
And her writing never disappoints in the unwrapping.
29
again, this case demonstrates that, after 2020, democrats will need to unite to add three justices to the supreme court. the courts have been "packed" for a generation by right wing ideologues; dems need to fight back in the only way they can, in order to protect the people.
12
Let's remember that SCOTUS now has five conservative members. That means that Roe vs Wade may at least be whittled down. Chief Justice Roberts now has the responsibility for whether Roe vs Wade remains the law of the land.
Roberts needs to look no further than the overwhelming majority of Americans who support women's right to an abortion. Don't hold your breath.
10
@dbsweden The whole reason for the life appointments to the Court is to eliminate the need for the Court to "look no further than the overwhelming majority of Americans" on any issue. The legislative and executive branch are intended to look to public opinion, the Court is intended to, and should, look no further than the Constitution and the laws as written and passed.
It keeps amazing me that judges can make or break laws based on their political orientation. They have no real democratic legitimacy as they are appointed for life and often times by Presidents who either lost the popular vote or subsequently their re-election bid. They keep staying around even if the political wind that swept them into office has turned by 180 degrees.
As a result, we are heading towards a major credibility and acceptance crisis of the Legal branch. In my view, the answer cannot be to pack the Courts with candidates from the opposite end of the spectrum. My preferred solution would be to limit terms ( to, let's say, 15 years) and re-install the 60 Senate vote quorum for all Supreme Court and Federal Court judge appointments.
33
How about making the Constitution easier to amend instead?
This judicial defiance appears to have a matter of perspective tied directly to it. Ms. Greenhouse doesn't seem concerned that lower court judges are issuing blanket decisions that usurp US law when it comes to immigration or other hot button social issues. The problem is not that this is a problem related solely to reproductive rights, but is a problem with renegade judges who have decided to issue rulings based on their political beliefs rather than the law.
If Congress were to pass legislation codifying Roe v Wade into law and restricted states from imposing obstacles on reproductive rights, then we wouldn't be having this conversation. The problem is that Congress has abdicated its legislative obligations to the courts. Not only on this issue but on many others. Your argument should be directed towards members of Congress rather than the courts.
7
@Mike What Supreme Court (or appellate court) decisions have been defied by lower court judges concerning immigration or "hot button social issues"? Legislation could help with reproductive rights but certainly those laws would be challenged by the anti-abortion crowd based on religious freedom or the like. Also, legislators are bound to respond to the dictates of their constituencies (especially the wealthy and well-connected ones) and cannot operate at the same level of objectivity that we hope that appointed (not elected) judges can.
1
@Mike When judges are chosen for their specific beliefs, as they are nowadays, judicial orders with a particular slant occur and that is not unexpected. I like our current Canadian system a lot better. A Law Society and an expert panel review applications from interested people and the panel recommends 5 to the government of the day who selects the one they prefer. It takes politics almost entirely out of it It also prevents special interests from putting one of their fellow travelers on the top court.
1
Whatever Linda Greenhouse May think of appellate judges, her analysis is of Roberts.
Roberts’s message to the fifth district evidently is that overturning precedent is above their pay grade.
We must state over and over again, that when the centre returns to power, the destruction of the careers, wealth, and futures of those on the Right shall become our goal. They will not remain unpunished in their goal to stack the judiciary for the sole purpose of drastically increasing human suffering.
8
@Jason Smith
The 9th Circuit, the most reversed of all, has been stacked with flaming west coast liberals for decades. What punishment to you suggest to all the lousy, politically motivated decisions they have made?
1
Ms. Greenhouse is spot on. Roberts is in a pickle and must know it.
But let us not forget that it was the court of Roberts that handed down Citizen' United, money is free speech decision. And Hobby Lobby and a lot of other terrible decisions. The courts reputation under his leadership has been severely wounded.
27
Troubled waters ahead for the rule of law, but let us thank Linda Greenhouse, whose reporting on the judicial system always manages to bring into the tightest focus complex issues that would otherwise remain irresolvable to our field of vision.
21
Abortion is tearing this nation apart. The religious right voted solely for Trump to get anti-choice judges on the courts, regardless of the tragic consequences involved in that choice. They also voted because of their fear that the LGBT community is making advances in our culture. In short, the religious right is afraid of the inevitable changes in our culture and are hoping for the minority (these judges) to stanch those changes.
What they don't realize is that these cultural changes are inevitable. The LGBT community is here to stay because they are our brothers and sisters, mothers and fathers, our children. As well, abortion is not going away. It has been with us for all of history and will continue regardless of what laws are erected to prevent them. All we can do is strive to make it safe and preventable.
With that in mind, maybe it's time to get the abortion issue out of the courts and back in the hands of the people. Let the people vote on it with referendums as they did in Ireland. We know what the results will be from polls--the same as they were in very Catholic Ireland (about 69% in favor of choice). I'm tired of hiring right-wing nut jobs like Kavanaugh to our courts for 1 issue only so they can make terrible decision on other cases (Citizen's United comes to mind) that threaten the fabric of our society.
26
That Judge Higginbotham dissented is telling. He is pretty conservative as as jurist, but he is a judge through and through. Were he to rule on the constitutionality of the Louisiana law de novo, he might strike it down (or might not), but he recognizes the hierarchy of the judicial system and respects it.
My view of the Constitution is considerably different from his, but I admire him as a judge and a scholar of the law.
3
If we ever free ourselves from Trump, if his entire presidency is declared illegitimate, do we have to keep his nominees to the Supreme Court?
I dolt particularly like Grouch and his rulings, and feel he is sitting in a seat that should have gone to Garland.. but Kavanaugh's rage-filled and contemptuous and teary display under questioning suggests his temperament is not consistent with considered and good judgement.
15
auto-correct changed Gorsuch to Grouch... my apologies to everyone
2
"We now know all we need to know about him."
Ms. Greenhouse, with all due respect, we knew all we needed to know about Kavanaugh before he became a Justice.
The institution you have spent a career following is one sorry excuse for a legitimate court. Little that Roberts does will change this reality.
18
The circuit court did not defy the supreme court, it distinguished the Louisiana case from the Texas case. While the distinction may have been weak, it was not a clear failure to apply precedent. That's how courts operate.
@David
David, in the law, there is something known as "a distinction without a difference." That is what the Fifth Circuit panel did. It is like distinguishing two cases because one arose on a Tuesday and the other on a Friday.
(When I was a child, for a while I thought that if my parents tasked me with misbehavior on a particular day, it was a legitimate defense to say they had the wrong day. It never worked . . . and it should not have.)
9
In this case, the distinction between a distinction without a difference and a dishonest decision is a distinction without a difference.
2
@WTig3ner It works on speeding tickets, however.
That being said, I agree with the decision to stay the law until the entire court can hear the case and decide if there is a difference between the two laws or not.
George Wallace stood to prevent rights guaranteed by the constitution. The Chief Justice stood to protect the constitution. There is no comparison unless Wallace is equated to the Fifth Circuit.
Isn’t that precisely the conclusion and connection we should make. George Wallace was a racist horror—are we not seeing exactly the same with this lower court?
I have just renewed my membership to my pro life group in Massachusetts where they have made great inroads in preventing abortions. When reading comments like these from pro choice folks, I realize we must continue our very important work. We have many devoted and caring people on our side and they will not give up this very important cause. We want to save the most defenseless in our society and we are speaking up for them. Someone must and we will continue this very important mission.
1
@WPLMMT
Given your interest in reducing the incidence of abortion, I hope and trust you are also renewing your Planned Parenthood membership, and in organizations promoting sex education. Planned Parenthood has probably done as much or more to limit the number of abortions than most of the pro-hate groups masquerading as "pro-life."
No one wants increased numbers of abortions. Many embrace the idea that women ought to control their reproductive health.
States embracing official "pro-life" policies see greater numbers of unwanted pregnancies, just as Kansas, embracing an untrammeled view of taxation as evil and unnecessary, has found itself in a budget meltdown.
WPLMMT, it's long past time to release yourself from some dogma.
9
@WPLMMT. Interfering with women's right to choose is not important work. Why don't you dedicate yourself to the important work of seeing hhat all children have a good life.
5
I fear pregnant women are rapidly becoming the "most defenceless" in our society. There is a life already here that is ignored in these discussions!
5
Is there any doubt that religious beliefs are what fuels this whole abortion debate? Besides tax cuts for the rich, the GOP caters to its base in supporting Trump so more right-wing judges can be appointed in order to fight the anti-abortion cause.
As I've noted before, the only wall we need in this country is to rebuild the Wall of Separation of Church and State.
45
Peaceful transfers of power following elections and judicial independence are two of the key features in our system of government that separate us from less stable democracies. All that goes away once we start chipping away at those keystones of our government structure.
And yet here we are, with Republicans blatantly making the courts more partisan, and election losers trying to strip power from election winners who will succeed them (see, for e.g., GOP efforts in NC, WI and MI after the 2018 midterm elections). It is not hard to guess where and how this will all end. It won't be pretty.
16
I wouldn't call them Trump judges; they are better called
McConnell judges. He has, and it, remaking our whole judiciary as fast had can to please his conservative base.
15
So many opinions and passionate protests about an individual woman's right to make decisions about her own body. If the women of this country attempted to insist where, when, and how the male of the species were allowed to insert their, ahem, reproductive devices, because that does, in fact, create living beings, there would be an uproar unlike anything we have ever seen.
22
In my small town in California , our community hospital has been taken over by the Catholic Church (Dignity Health AKA Sisters of Mercy). No doctor in our community who performs abortions, tubal ligations or vasectomies can get hospital privileges because when out local hospital board decided to give the management contract to "Dignity Health" they had to agree to the Catholic Church's ban on reproductive services. The Catholics are taking over rural hospitals all over the country, IMHO, as a way to force their religious views on reproductive services on all the rest of us.
52
@Jeff: The willful blindness of US courts to the obvious is the credibility gap that will destroy them.
3
@Jeff I agree that this is unacceptable. Since hospitals in many areas get government money (Medicare Medicaid) I believe they should be denied government money if they are trying to use their power to establish a religion and impose it on all persons coming for care.
8
The defiance is not coming from the right, but it is coming from the left. A trial level judge in the 9th circuit ( Cal, Wash, Oregon, etc) can for all intents and purposes veto what Trump is trying to do (good or bad). District court level judges mostly put in place during the Obama administration routinely now it seems enjoin the US government from taking action. This is not what the framers had in mind. Unelected trial court judges were never meant to veto the actions of the elected president of the United States. A case can be made for the Supreme Court doing so, but that is not what we have been seeing. So, the danger is from the left, not from the right in upending the separation of powers among the three braches of government.
4
@Bian
But, what your denounce is among the proper role of the federal judiciary--to preempt unconstitutional actions of the other branches.
This article elaborates on the defiance of the lower courts to the rulings of the higher federal courts, an altogether matter.
8
@Bian
"This is not what the framers had in mind." Really?
Please find a copy of the Marbury v. Madison decision from 1803 at your local library or bookstore, and read it. You'll understand how utterly wrong that view is in light of history, dating to the earliest days of our country. Those judges are doing exactly what the framers had in mind.
But that is an aside, because this article by Ms. Greenhouse is about a different subject altogether: it is about judicial intransigence and a refusal to follow binding precedent.
12
@Bian. The trend of trial court judges issuing nationwide injunctions started in Texas, not in the ninth circuit.
2
The new Trump appointed judges are incorrigible political ideologues - that includes Gorsuch and Kavanagh as well as the 5th circuit. A truly conservative justice would respect the importance of precedent. The majority in the Louisiana court and the minority in the Supreme Court tried to overturn a recent Supreme Court decision that was on all fours with the case before them simply because they didn't agree with it. While it may be sometimes be appropriate to reverse a decision that is outdated because of social changes decades later, overturning a Supreme Court decision that was decided just a few years earlier (and is consistent with decades of precedent) is an outrageous abuse of power.
The new conservative courts are out of step with the views of the majority of Americans and this conflict will only intensify as the millennials, who are far more socially liberal than their parents, come to power. The Republicans are staging a slow moving coup that will result in the judicial tyranny of the ultra conservative minority. The big risk is that the courts will lose legitimacy in the eyes of the public and if that happens the country will be in even more serious trouble than it is today.
47
The even more serious problem with Trump’s appointments is that many are not skilled attorneys. They were chosen on the basis of their view on abortion and not on good of attorney they were. 95 plus percent of what they will rule on are not right vs left issues, but just hard cases of our laws. These judges are ill equipped to rule on these cases.
One of these days the abortion issue will go away, but these incompetent judges will remain.
3
My, hopefully not fantasy, is based on the fact that Eisenhower put Warren on the bench.
7
This points back to the Roe decision not being as legally ironclad as it should have been as well as ambiguity as to when legal protection of life is afforded by the state.
We can politicize the courts all we want based on our preferred outcomes, but these arguments point to the need of each State legislature (voters) to resolve these questions.
As Texas and Louisiana places greater restrictions on abortions, states such as New York and Virginia loosen or grant further protections.
4
The trend is clear enough: what can't be done at local and regional levels by legislation because of the "law of the land" provision in our Constitution, the anti-abortionists have turned to the courts.
The reasoning in Roe v. Wade is tortuous, but arrives at a logical conclusion and IS the law of the land.
8
"What Chief Justice Roberts had on his hands was something less tangible but equally threatening to the rule of law: not defiance of judges but defiance by judges."
The three branches of government are all bound to uphold and defend the Constitution of the United States. That also applies to state courts via Article VI.
I am curious as to what your opinion is on the recent abortion law passed in New York and the recently tabled law in Virginia.
3
Thomas Acquinas believed that abortion within the initial 80 days after conception (equivalent to the first trimester) was not against Church teachings because they was no unsoulment until the 81st day. This Church doctrine was arbitrarily changed by a Pope centuries ago who became concerned that more Protestants than Catholics were being born in Germany.
With the stroke of a pen, the current Pope could restore the Thomas Aquinas teaching, and the abortion debate would substantially end.
21
@S.R. Simon Not necessarily on either side. First, many of the strongest opponents of abortions are among the Evangelical Christians, who find the Pope only slightly less offensive than abortionists. Second, on the other side, NY is among the states that are allowing abortions well into the third trimester under specific, but not well defined, circumstances.
1
Abortion was also legal when the Constitution was adopted & the nation formed. So much for Scalia's "original intent," huh?
3
@S.R. Simon, all due respect Simon, the pope is the least of our problems, Catholicism the least intrusive of religion into our collective town square. It is the likes of wanna-be president pence and the SCOTUS justice by a hair kavanaugh we need to worry about.
1
“We are of course bound by Whole Woman’s Health’s holdings, announced in a case with a substantially similar statute but greatly dissimilar facts and geography,”
This line from the Fifth Circuit ruling is particularly ominous, suggesting that as Federal courts lean farther right, they will increasingly tailor their legal reasoning to suit their ideological agenda, offering up patently disingenuous arguments loaded with red herrings that jettison precedent along with rationality and basic fact. In short, out judicial system will begin behaving much like our other branches of government. This puts one in mind of the kangaroo court systems that operate in Middle East and the Africa.
23
Is the Chief Justice, unquestionably very conservative, genuinely appalled by the extremism and legal disingenuousness of the Trump judges? Or is he concerned that the high court's legitimacy is at risk?
The right wing majority on the court exists despite the public will. From 1932 through 1964, Democrats were the public's choice for president in 7 of 9 elections and filled 17 of 22 high court vacancies. From 1968 through 1988, the GOP prevailed 5 of 6 times and filled all 10 of the openings during that time.
But since 1992, Democrats were the electorate's choice for president in 6 of 7 elections, an unprecedented result in U.S. history. Yet due to each of the last two GOP presidents taking office despite coming in second in votes, Republicans have filled half of the slots, 4 of 8.
Of course, it's even worse than that, since Pres. Obama was denied even a hearing on his choice for the last vacancy, allowing a president who has never had even a plurality of public approval during two years in office to fill 2 positions. Choices confirmed by a Senate whose present majority are of a party whose votes are 15 million+ fewer than the minority party's.
The Dems' fault?--they blocked lower court filibusters after nearly 5 years of GOP obstruction (79 filibusters of Obama appointees; in the 220+ years before, a total of 68 exec. appointment filibusters). The GOP ran out of patience with Democratic filibusters after two hours.
The Chief's rightful concern is legitimacy.
25
Justice Roberts was wrong! There are Trump Judges, Obama Judges and Bush Judges------ and the Trump Judges are by far the most skewed.
When it comes to contraception and abortion, the courts should take a "hands off" policy. Our world's resources are being strained to the limit already, and wide-spread contraception, free and available to anyone who asks for it, with abortion a last resort backup, could help save civilization as we know it---- not to mention our environment.
Anti-abortion activists will NEVER prevent abortions..... they will only make abortion unsafe for poor women and a bit more inconvenient for women of means. Better to make abortion "Safe, legal, and rare" as President Clinton once advocated.
26
This should be seen as an ominous portent for Susan Collins. Like many other Americans I will be making contributions to anyone who can remove her from the Senate. She is as dishonest and venal as anyone in the Trump administration.
37
@JNR2 I’m not sure if it’s dishonesty or stupidity.
1
@Susan Piper Fair point. But if she really was dumb enough to take him at his word she shouldn't be serving as local dog catcher much less in the Senate.
2
Yet another reason that we need to eliminate lifetime appointments for all federal judges and the SCOTUS especially.
22
It does make me want to go to the extreme of researching Kavanaugh, proving he perjured himself, and having him removed from the bench. It’s a fifty/fifty chance Garland should have been there in the first place.
Funny how no one has heard from Avenatti recently.
13
I hope Susan Collins is meditating on Brett Kavanagh's vote alongside her declaration that he'll respect a woman's right to choose.
43
@Lively B
You presume Senator Collins has a conscience . . . and principles. I'm not sure there is support for such a presumption.
2
So much for the conservative argument that judges should respect precedent. The alarming thing is that four of the justices voted against the injunction. The vote should have been 9-0. The Fifth Circuit acted in a rogue fashion and should get its legal wrist slapped hard.
30
The Republican Party should definitely emphasis taking the right to vote away from women. As a gender, we're clearly too ignorant to make solid decisions, even about our own health. We could be so unstable and unintelligent that we vote female Democrats into office.
We need to be protected from ourselves IMMEDIATELY!
6
I made a typo - "emphasis" should be "emphasize."
As we witness Trump's defiance of the rule of law, favoring rule by mob boss, rule by a man's whim, the practice has moved, as cited by Ms. Greenhouse, to the government's judicial branch, the third of three branches of our government.
The Fifth Circuit's decision was rebuffed by the Chief Justice because they attempted to overthrow the authority of SCOTUS, a superior court, the supreme court of the land.
In America, slowly, one act followed by another, we are sliding toward rule-by-man and away from rule-by-law. The former is how authoritarians, dictators, and totalitarians rule. Rule-by-law is how democracies operate. The Fifth Circuit attempted to defy rule-by-law, that the Supreme Court is the final arbiter of legal questions and judicial decision-making in the U.S.
We are moving on a dangerous path. Chief Justice Roberts did the responsible thing with his vote, albeit an act with temporary effect. As Ms. Greenhouse wrote, where we go from here is unknown. For America's women, it is up to primarily men to decide.
15
Trump, our ultimate, winning deal-maker president, does not have the slightest inclination to do the slightest bit of the hard work of researching the judges he appoints. He farms every bit of it out, then rubber stamps whatever he is sent by these reactionary, hard-right conservatives.
15
Trump was elected by a minority of Americans, and Trump judges represent minority viewpoints. Their power was achieved through a combination of gerrymandering, voter suppression, and the mechanics of the electoral college. Chief Justice Roberts has his finger in the dike trying to preserve the legitimacy of the SCOTUS against the blatently political goals of the religious right.
17
@LFP Given the turnout of eligible voters, there has not been a president this century who was not elected by a minority of Americans. I believe the term you were looking for was 'a minority of voters'.
If lower court federal judges intentionally and dishonesty “defy” controlling Supreme Court precedent the proper constitutional remedy provided is their removal by impeachment. The House Judiciary Committee should certainly consider investigating what appears to be the lawless, groundless actions by those renegade Fifth Circuit judges. Nothing will concentrate their minds more than a thorough Congressional examination, with attendant public hearings, of their blatant and arbitrary judicial conduct. The country cannot permit these out of control jurists to, in effect, become de facto a competing, second “Supreme Court “.
25
I have no idea why the fraud in the white house and the party that still stands by him are allowed to nominate a single judge. They are making a mockery of the whole judicial system with their unprofessional openly political judges who promote views that nobody in this country supports. Every appointment needs to be reviewed once sane people are back in power. The law must be upheld and most of Trump appointees impeached.
9
Linda Greenhouse's comments are jewels among swine. How many of the Supremes are Catholic and play their anti-abortion card that way, including of course the latest, Kavanaugh. These men feel so strongly about the rights of women and their reproduction rights they go about overturning lower courts, appeals courts and the federal courts rulings on these issues of tissue. When gun violence is allowed to the degree it is in this country, when women and the right of choice is ignored in many places and cases even where it is legal, with precedent, and with the powerful right in charge on so many levels, these are troubled times. Is this just cultural realigning or is it a diffferent time entirely? I wonder whether some scholar could make a case of gun violence and children who face tremendous disadvantages? Absent parents, poverty, drugs and of course gun violence becomes a substitute for anger at the end of a gun. All who cry for the fetus must cry for those here who really need our attention.
13
Since many of the comments relate to Abortion, here are some tips. Don’t have one if you are anti abortion. Prevent abortion by educating young men and women and increasing access to safe reliable birth control like planned parenthood. If you insist Planned Parenthood is evil set up very accessible sliding scale clinics where women can get birth control. Add free birth control to medical insurance. Abstinence does not work no matter how hard you pray and claim to have Christian ideals. Ask Sara Palin and her daughter. People have sex, lots of it. Sometimes with people they are not married to like our commander in Chief. But sex where the purpose is not to create new children is rampant in all parties, all walks of life and so on. People just do it.
One only needs to look at pictures of current Republican lawmakers, advisors, judicial appointees and cabinet members to see this is not a representative group of our society. Disproportionately richer, whiter, male and Christian (or claim to be) than most of the people they rule. Those who truly want equal rights for people of color, women, middle income down, and religions need to rise up and work for politicians who support that. And Not only vote, work to get out the vote
20
The only solution is for the Dems to pack the federal judiciary with judges as far to the left as are Trump's to the right.
In other words, fight fire with fire. If the Dems wimp out, it won't matter whether they control Congress and the White House. The dead Federalist Society hand of the past will reach out from the courts to neuter whatever Dem law they choose.
They will ban unions as infringing the freedom of association of employers. They will ban gun control law as infringing the Second Amendment. They will ban anti-gerrymandering laws as infringing the rights of legislatures to draw districts. They will ban abortion as denying fertilized eggs their Constitutional rights.
Create vacancies wherever necessary, including the Supreme Court, and fill them with young, smart liberal activists who come from families with a history of being long-lived.
This is a war the Republicans started. The Dems have to finish it. It's only self-defense.
208
@Garak The democrats actually started it when they removed the filibuster for judicial nominees in an effort to do exactly what the GOP is doing now. Re-enact the filibuster and judicial nominees will be closer to the ideological center as both parties will then be forced to compromise.
16
@Garak The Democrats will not get to appoint any more judges. The Senate is Republican, and it will be for the foreseeable future because small states are dark red. McConnell has made it clear that he will not let a Democratic President appoint any judges _ever_. And the King of the Senate has no term limits.
This is just the beginning.
10
@James Roen
Do you happen to recall why the Democrats eliminated judicial filibuster? My recollection is that the GOP was being completely intransigent and would not consider completely reasonable, highly qualified nominees. Not extreme "leftists", or activists, which is how they labeled the nominees, if they gave a reason at all for blocking votes. It was their whole business model to just be disruptive, and it is part of the reason that there are so many vacancies for Trump to fill with judicial hacks now. The GOP has been playing dirty for decades, how are reasonable people supposed to respond to that?
41
There are 4 times as many abortion clinics per capita in California as in Texas. 74% of Massachusetts residents support abortion rights and 36% in Kentucky. And, per pregnancy, six times as many are aborted in New York as in Kentucky.
Looking at the statistics state by state, no one should be surprised about the regional conflict in the abortion debate. Abortion is a constitutional right, which should resolve most of the disagreement. But it decidedly does not. And While Roberts is protecting the integrity of the court, he is causing dissent among the people. He is in a no win position.
1
We are in for years of such conflicts because Mitch McConnell stole one SCOTUS seat from President Obama and forced through confirmation a Justice who never should have been nominated.
The solution must be the rejection of the present Republican Party and the control of the Executive and Legislative Branches by the Democrats. The rule by Trump Judicial Cultists is just too dark a prospect to contemplate, but we must for it now looms.
11
@Pat Choate, Yes McConnell did a political calculation that may have back-fired had a democrat won, but this disaster does not belong to the GOP alone. This was an issue worth fighting for-- Obama should have made it the single focus of his final year in the presidency. And I mean by taking it literally to the streets. When Obama instead did nothing, Hillary should have made federal court nominations a cornerstone of her campaign. All effort should have been made to convince the Jill Stein-Bernie Bros-Gary voters that this was an issue worth voting for the democratic candidate, idealism aside. All the brain dead millenials who sat this one out should have been reminded that women's rights were on the line. Dems should have exposed the Federalist society for what it is: an unelected group with outsized power; right-wing and anti-woman at its core. Lastly, the media was oddly silent about the suddenness of Kennedy's retirement and the too-cozy relationship between the Kennedys and the Trumps. When the fish smells bad, it should be exposed as ruined. But even now I do not hear the Dems fighting internal party decisiveness with dire warnings about our courts. Way too much conversation about one freshman rep's wardrobe, and another freshman reps ignorant accusations against Jews. Those issue will fade way. The courts? Rule of Law? These issues are about our history, and significantly, about our very future.
So much for those crucial 'moderate' Republicans who spoke to Kavanaugh and determined that he wouldn't vote to repeal Roe v. Wade. You have sold out 50% of the US electorate--your sisters--and a far larger plurality who rightly believe abortion is a matter between the woman and her doctor.
Repealing the landmark Supreme Court ruling takes numerous forms. Referral privileges is one of them. For Kavanaugh to ignore the SC's earlier ruling and allow Louisiana to wait and see the consequences is so egregious, so hypocritical, so contrary to the rule of law... There can be no more doubt that Kavanaugh was a horrible, unprincipled choice and that the GoP put America at great risk by allowing him to be seated. We can only hope that evidence of lying under oath is found by House investigators and he is removed. But the damage has been done---the damage you caused.
And the damage you and your party caused by allowing 5th and other circuit appointments of agenda Republicans.
How many times must a woman look away and pretend that she just doesn't see?... The answer my friend is voting in 2020. The answer is voting in 2020.
16
@Chris Parel, good post but you overlooked Gorsuch. Another white catholic prep school boy, doing the bidding of the federalist society also voted with the right wing of the court. It is Gorsuch who sits in the seat that should have belonged to Garland.
I am holding the envelope right here in my hand.
Trump's next pick for the Supreme Court to get even for his defeat
on the Wall will be ---
Ted Cruz.
3
One has to remember that Justice Roberts is a Catholic, moral contradictions included.
2
@Roland Berger
True, but he swore to uphold the Constitution NOT his religious beliefs.
10
@ExPatMX
Swearing is easiest act of his job.
2
@Roland Berger
Chief Justice Roberts is also an institutionalist and very likely concerned about his legacy.
Roe v. Wade continues to deliver for abortion opponents.
When you excavate the Constitution to try to find in it something that is not there, those are the consequences: an endless war of attrition.
5
@John Xavier III
Actually, it would be the Amendments to the Constitution, not the Constitution itself.
John, the Constitution spells out how our Government functions. And part of that legitimate function, was the Supreme Court ruling of Roe vs Wade.
But more important John, are the first ten Amendments to the Constitution. They are know as the Bill of Rights.
Better do some re-reading John. For some reason you missed the most important part.
10
@Fred Armstrong
Fred, with all due respect, I know more about the US Constitution and the Constitutional design than you are likely to know in forty years. But that's detail. Have a nice day.
FYI, the Bill of Rights and all other Amendments are part of the Constitution. When people speak of the Constitution, they mean the whole thing, and in fact most of the time when they say "Constitution" they are referring to the Amendments not the Articles. Do have a nice day.
2
This all reminds me of the movie "Rashomon". For those who have not seen "Roshomon", a woman is raped and her husband is murdered by a highwayman. The highwayman is captured and tried. During the trial, each of the three protagonists give a radically different and contradictory description/interpretation of the events. One is left wondering if there can be "objective truth" when people involved can't agree on what actually occurred and when their perceptions are affected by subjectivity.
If our Judicial System can be altered and "whipsawed" by the political preferences, interpretations and personal beliefs of the judges and justices, then what faith should citizens have in our Judicial System? Is this a step (or another step) toward the destruction of our Constitutional republic?
We already have a President who behaves (thanks to mentoring by Roy Cohn) as if the purpose of the Law is to protect him from any wrongdoing.
If the Judicial System devolves to becoming just another participant in our ongoing culture and religious conflicts, along with the Executive and Congressional branches of government, what trust should citizens have in that government? How can the damage be repaired? Is it already too late?
13
No matter what pretty face Roberts try to put on his court the fact is the court is stacked Right. When the public can just about predict how each judge is going to vote it truly means justice is not blind. The majesty of the court has been long gone and pretending it is not a arm of a party is disingenuous. In my opinion the last great court was The Warren Court. If justice is supposed to be blind I would suggest Robert order nine blindfolds. The majority of the population should pray Trump does not get the opportunity to appoint another judge. The solution in not going to be Republican Robert Mueller saving us the answer is in 2020 voting like we have never voted before. The idea of Trump’s base dictating how we live and love for generations should scare the heck out of us.Have we forgotten the decisions Plessy verse Ferguson or Dred Scott?
33
@Steven McCain
Would you have felt this way if the court was "stacked Left"? Ms. Greenhouse writes from a very Leftist perspective, and always has. When, based on one vote that she does not agree with by the newly-arrived Justice Kavanaugh, she categorically states, "We now know all we need to know about him", I would say to Mr. McCain that everything he reads on the Opinion Page of the New York Times is "stacked Left", but that's okay, right?
4
I wish it was stacked impartial!
Congress should settle the issue of whether abortion is a constitutional right by proposing an amendment that reads: “The right of women to an abortion shall not be infringed.” If the states ratify the amendment, the legal issue will be settled. If the states vote against ratification, the abortion issue would once again be left to the states.
3
@William Case
Rights are not put up to a vote
5
@William Case that would be the constitutional solution in a perfect world however that is not the one in which we live. GOP partisans have hijacked our judicial and congressional processes so that they do not function as designed. In effect they have "hacked" the constitution and our government. The abortion issue was settled decades ago but the GOP has constantly tried to implement unconstitutional measures from gerrymandering to voter suppression to influence policies that the majority have rejected. Time to wipe them out in 2020, un-stack the courts from the Supreme down. End lifetime appointments and start removing Judges like Clarence Thomas with clear conflicts of interest.
1
@Dave
The Constitution was voted on.
The Bill of Right were amendments that were voted on.
1
Doubtless, swing Justices must relish keeping the public in suspense until the last minute.
@The Buddy
I have always been suspicious of swing vote Justice Kennedy's ill-timed exit, leaving the Senate prostitutes to ram through their disastrous SCOTUS nominee.
For this layperson, it is amazing to watch the politically poisoned legal system at work. It is absurd that this case even made it to the SC. If precedent matters, why didn't the SC first rule on whether the facts and circumstances were sufficiently different for precedent not to apply? In the dissent, it should be irrelevant how easy or difficult it may be for the MD's to get hospital privileges. Kavanaugh is totally off-target. The first question should be why do they even need privileges - i.e. what health benefit or other objective (that does not violate current law) is gained by requiring hospital privileges? The answer to that is essentially "none".
The end game of the Federalist Society's brilliant takeover and weaponization of the courts is becoming more visible every day. And the effects have just begun.
35
@JS They can only rule on what was brought before them. The case has not been appealed to the SC yet so they can only act on the request for a stay. Judges (at any level) can't just make up a case or take one on to challenge things without being specifically petitioned to do so.
3
@JS
Does anyone remember when the Bar Association was consulted on suitability of candidates? To be replaced -- when was it --- by the arch reactionary Federalist Society. Drip, drip, drip. Shades of Weimar.
1
@JS
Kavanaugh isn't off target. He hit the bull's eye just as he intended. He just proved what everyone suspected and will vote for every issue that comes before the court to get rid of Roe v Wade (precedent being ignored). He is a liar but that is not exactly a surprise.)
1
I am wondering if Roberts will stray leftward to maintain a legitimacy of the Supreme Court so that in the future he will not be regarded as the Chief Justice who presided over the destruction of that branch of government. Mitch McConnell will long be dead and has no qualms about being seen as the defiler of the Senate (he doesn't agree with democracy in the first place and his actual employers are the wealthy who he is serving as best he can). Mitch's daughters seem to follow in their mother's more liberal leanings, but Roberts probably cares that his children respect the job he is doing and the man that he is. Even if it is against his core principles, I hope he will see that the integrity of the law in the United States outweighs his personal beliefs and that by being the head of that branch of government it is his duty to keep it above partisan politics.
Abortion was only made political by Republicans who have used it as a way to get certain voters to support their wholly unchristian agenda while appearing to be christian. Instead of trying to find remedy for unwanted pregnancies, the right has chosen instead to use abortion as a bludgeon, painting pro-choice as evil and liberals as deviants. It has been an incredibly useful tactic but this is not a game. The judicial branch was always supposed to see the bigger picture and I pray that Roberts understands his duty and respects the oath of his office.
This is ultimately a quality of life issue.
46
@Lucas Lynch "Abortion was only made political by Republicans"... What? No. Democrats have gotten every bit asuch political mileage out of abortion as Republicans have. And most Republicans genuinely believe that it is wrong. I don't agree with them, but to say they're only doing it for politics is dishonest.
3
@Jordan You can speak for "most Republicans"? I'd wager that most Republicans believe that women should be under the control of males and the State.
3
@Jordan There was a point when abortion was a non-partisan issue - both conservatives and liberals believed a woman had the right to choose and both believed the contrary. It was Republicans who saw that they could steal a voting block of Catholics who had voted primarily Democratic by campaigning that abortion was immoral. This position also appealed to other Christians who began remaking the Republican party even though historically Republicans believed in the division of church and state.
There are many Republican positions in the last 40 years that aren't consistent with their core ideology and should be viewed with skepticism. Historically they believed in small government and that people should get to chose what they do with their own money and possess maximal rights to chose their own destiny. This would include a woman's right to chose, gay rights, religious freedom (not just Christian freedom), and civil rights. Getting into bed with Christians meant getting a strong voting block at the expense of many reasonable stances that defined their party. Over the years they've sold their soul to find ever new voters even now embracing white supremacists and populists in order to serve the wealthy who completely assumed control of the party.
You may believe that Democrats have done the same but I find fewer inconsistencies with core beliefs except the era of getting into bed with Wall Street, but when money becomes speech (a Conservative stance) you do what you do.
2
Yes, if one has been paying attention, you didn't need this case to know what is important to know about Brett Kavanaugh. He will be one of the leaders of the brilliant minds selected by the right for judgeships and the Supreme Court, judges who will nibble away at the edges of precedent or find what are essentially "administrivial" ways to accomplish deeply conservative agendas like anti-abortion, while seemingly holding to established law. I realized it when I saw the case of the teenage illegal immigrant who was pregnant, who sought an abortion - as was her right by US law - and kept having the procedure postponed by Kavanaugh, who kept ordering various alternatives and processes to be explored before granting the procedure. His ruling was eventually overturned, pretty much just in time before the teenager entered the third trimester and was therefore legally unable to get the abortion.
That's the insidious slippery slope fanatical conservatives are putting us on. If the law doesn't do what you want it to do directly, stymie its application, or interpret it disingenuously, until circumstances circumvent the law in application. Like Stand Your Ground, one of the easiest to apply in a biased manner and get away with it, especially with the right judge.
I think CJ Roberts gets this, and ignores his own personal beliefs to uphold honesty within Law to the best of his ability. Which is exactly what we seek in a SC Justice, but won't receive from the likes of a Kavanaugh.
46
@Barry Williams
Not so sure I agree with your assessment of Roberts. He gave us Citizen's United and other goodies. It is only now, when people are recognizing the appalling decisions that he is beginning to APPEAR to move left. He hasn't defended a woman's right to self determination.
4
The most distressing part of all of this is that it flies in the face of protecting women's health. Apparently the "pro-life" faction cares far more for the embryo or the fetus than it does for families, women, mothers, or the well being of society. It's war on women and, by extension, a war on those who do not have the money to go elsewhere to get an abortion if they want or need it.
40
Roberts has a choice. Does he want to rule based on his view of the law, and the cases, or does he want the Roberts court to be respected by the nation and by history? It's always good, often necessary, to have choices. I suspect he has already made his.
7
All we need to know about Roberts is that he will not follow the right-wing playbook. He has shown us that he is willing to be his own person. I hope he continues. The very essence of checks and balances for the next two years lies with him, McConnell, and Pelosi.
21
Thank you Ms. Greenhouse for pointing to the hidden upheaval in the court system caused by this administration and more critically, the GOP under Mitch McConnell. While receiving the lion's share of attention, people forget that the Supreme Court hears only 100 cases or so, amongst the 7000+ cases it receives.
This means that the 7000+ cases are being decided by the district courts, with even larger numbers being decided as one goes down the ladder. The GOP has successfully (and continues to) loaded the system with right wing Federalist appointees who will chip away at the freedoms of this country in their continued servitude to their moneyed masters.
I hope you continue to shed light on the system.
33
@Newton Republicans outspent Democrats by 50 million dollars in 2018. Democrats outspent Republicans by 300 million dollars in 2016. But only the GOP has "moneyed masters"? Yea, ok.
2
@Jordan. Yes, that was mainly grass-roots support. Spending does not correlate to source. Please see the number of recent articles showing the large numbers of small donors to the Democrats.
Regardless of which side of the political spectrum you fall, it is clear that the Federalist Society and the Heritage Foundation are the ones shepherding the GOP nominees on the benches. Follow the money as to where their support comes from !
2
@Jordan Do you know who funds the Federalist Society and the Judicial Crisis Network and how much they spend? You don't because they do not need to disclose this information. Did you know that the Judicial Crisis Network received almost all of its money from two people? Do you know who they are? You don't because they don't have to tell you. These "non-disclosed" people are the money masters. JCN had commercials on practically non-stop for Kavanaugh and had a spokesperson on cable news every night. Who was paying for all that and why?
2
Kudos to Justice Roberts for sticking his finger in the dike to hold back judicial activism in the Fifth Circuit. But the water will keep rising, and it's not clear even the Supreme Court can hold it back.
The broader issue is that our Constitution permits court packing, at all levels, in the first place. Federal judges enjoy life-long appointments. They are nominated and confirmed by a partisan process; both sides game the system. King McConnell has made a mockery of the advice-and-consent clause, but so have his predecessors.
What we need is a constitutional amendment to limit the terms of federal judges. For SCOTUS, scholars have proposed 18 year terms, with one expiring every 2 years so that each presidential term nominates 2. We must add to that a provision, either by Senate rule or amendment, that the Senate most vote up or down on every nomination within, say, 120 days.
This process would reduce the incentive to pack the court, as the prize is no longer a lifetime seat. And it reduces the possibility, as the Senate cannot stall until they get a president they like. This breakdown in democracy must be fixed, lest our judicial system be disrespected by ordinary citizens, and we lose the rule of law entirely.
40
A person seriously injured in a motor vehicle collision 17 miles east of my house was medically determined to need Hartford Hospital’s critical care, 35 miles west of my house, and was treated by physicians admitted to practice there. The patient did not have to go to court or government to obtain treatment. Hartford Hospital did not have to go to court or government to administer care. Legality of medical care and transportation for the patient did not arise owing to geography. Constitutional measures and government interests, if any there be, ought not interfere in patient-care based on geography and non-medical considerations. One who disagrees might reside in the wrong nation. Who would seek government interference if the patient were someone she loved? The Constitution has become anti-human. Our founders blessed the result of a revolution with a Constitution. A minority of federalists think that Constitution favors some citizens over others for invidious causes. We need constitutional protection from federalists.
Some religions forbid abortion. Some religions forbid disagreeing with clergy. Americans, citizens or not, may solidly practice such religions, as they might not in their beloved Russia or places not having constitutional free religion. Yet the Civil War persuaded the South that the Constitution grants freedom to practice religion and conversely freedom to impose religion on whomever else they choose? Those opposites are not in the Constitution.
18
There’s no question at all that Kavanaugh lied about his stance on judicial precedent. For anyone thinking he might not show his colors right away—good luck with that. He has a big payback to make to the GOP for getting him seated.
And for Senator Collins, I’ve come to the conclusion that if her integrity or women’s rights or re-election is at stake, she is steadfast in aiming for re-election. I’m sick of hearing about how she’s different because she ends up voting just as Mitch ordered when it matters.
55
@John Vasi
From what I have read, Collins may have cooked her own goose on re-election. She promised Kavanaugh would not try to over turn Wade to convince her state that she was right to support him. Bad call on her part.
3
Kavanaugh lied when he said he would respect the precedent of Roe v. Wade as "settled law." And Susan Collins lied when she announced that she would always be pro-choice and would never support the nomination of a Supreme Court Justice who might threaten to overturn it. Thankfully, Roberts does not lie --and he does respect precedent.
36
I am pro-choice, but anti-Roe.
There are probably about 9 (maybe 10?) people in the United States that agree with me.
Both sides want the Federal Government to decide things - their way.
5
@DennisG I am one of the ten. Creating this "right" by judicial fiat, removing it from the political process has created a disrespect for courts and promotes violent opposition to abortion, and the Roe forecloses the possibility of political compromise.
5
@DennisG You can't be "pro-choice" and yet be against the ruling that allows choice. Without Roe there would be a patchwork of choice and no-choice states
3
@Peter There is "compromise" possible. either women have a choice or they do not. There is nothing in the middle. The "right" is the right to make your own decisions about your own body. Why do you think people should be able to take that right away from someone?
8
In the knuckle-under Senate of today, the questions are not about whether a judge is well qualified, but whether the president's whim endorsement of the Heritage Society's dramatically Right-wing recommendations are to be knelt to and prayed for redemption by the hard core political right in primary elections.
The notion of being well-qualified as opposed to be minimally qualified seemed to take a hit when Thomas was rewarded for being against equal opportunity as head of the EEOC by being appointed to the D.C. court by GWB. From there after his raincoat had hardly dried he was bumped to the Supreme Court where he sat silent for years.
Judicial brilliance has not always been the touchstone for an appointment, nor has common sense. Slave-owning Chief Justice Roger Taney has been vilified for generations for the Dred Scott decision, and more recent appointments have been really of that same heritage of voting where their source of legitimacy comes from; the Heritage Society and politically Right wing cultivators.
Unless it is to some extreme, Right or Left is measurable by positioning. Kavanaugh's elevation and his telling flame-throwing accusations about left-wing plots has by default moved the Chief, by comparison and temperament more to the center. The Supreme Court is not a tool of either party, and needs to somehow be moored to sense not any Society.
140
@Ed Marth Well, Bork was certainly well-qualified, but the left opposed him. The Federalist Society serves the screening purpose the ABA once did, before the ABA turned left and started making judgments based not on professional competence but ideology.
3
@Ed Marth I agree with your argument, but dispute a couple of your facts.
It is not the Heritage Society, but the Federalist Society that recommends court appointments to the president.
It was not GWB, President George W. Bush, but GHWB, President George Herbert Walker Bush, who nominated Clarence Thomas for a Supreme Court Associate Justice seat in 1991.
22
@Peter It was a bipartisan vote on Bork. 6 Republicans voted against him and 2 dems voted for him.
29
States continue to pass laws impairing access to abortions, because the source of abortion law is judicial rulings. Stare decisis applies to courts' holdings, which are typically quite limited. Consequently, a state can try to work around the edges of the holdings to limit abortion. A solution is for Congress to pass legislation pursuant to Section 5 of the 14th amendment, clearly defining the extent of the right to abortion. Alas, Congress has abdicated its duty once again. We live in an era of the imperial presidency and a judiciary, appointed for life, making law that Congress refuses to touch.
13
@william hayes Congress would never pass something as sweeping as Roe. Before Roe, however, states were repealing and loosening abortion restrictions. Roe cut that police process short.
@william hayes
The states still haven't even ratified the Equal Rights Amendment so I doubt that Congress will protect women's rights legislatively. A bunch of old white men have no right to determine my life.
1
This column is terrifying in how it illustrates what Trump is doing to our judicial system by appointing political hacks to powerful judgeships.
Since Clarence Thomas, a candidate of abysmal qualification, was selected purely as bait for the anti-abortion religious right, the GOP has put politics above the responsibility of choosing the most competent judges.
Now Trump has put this tactic on steroids, as can be expected of someone so shameless and responsible to no one but the person he sees in a mirror.
It will take many decades to purge our judicial system of all the terrible appointees foisted upon our nation by the GOP and Trump- all done to appease religious fanatics and bring them to the polls to vote Republican in every election.
The only true intention is to allow the GOP to pursue policies that have nothing to do with protecting fetuses, and everything to do with keeping all real power in the hands of plutocrats and corporations by dividing and conquering the rest of us with social issues.
302
@alan haigh
It will take many decades to purge our judicial system of all the terrible appointees foisted upon our nation by the GOP and Trump-
Wrong! There is a simple solution. The number of justices on the Supreme Court is fixed by a simple majority bill thru Congress, When the Democrats finally resume adult control of the Federal government, this should be one of the first tasks on their agenda.
37
@Kenarmy Court packing? How myopic. I'd love to see term limits and see little downside to that, but to simply increase the number of justices by a "simple majority bill thru Congress" would prompt the minority party to do the same once they regain power. After a decade or two we could very well find ourselves with 20+ justices. Where would it end? Not to mention the more justices there are, the more often we're replacing them, which nowadays means a months-long slugfest in the Senate. Packing the court would accelerate and intensify the politicization of the court, not solve it.
10
@alan haigh
Please remember that Trump simply hands off these appointments to McConnell and the R Senate --
16
Another good column. I am reminded of the Japanese observation as to the result of their attack on Pearl Harbor; they did indeed awaken a sleeping giant.
For all the achievements gained for women’s rights, they have been incremental, one law, one ruling built on others. And they can be undone in the same manner. But there will come a tipping point. We are not going back to the kitchen, the coat hangers, the silent seat at the tables.
Overturn Roe v. Wade. Go ahead. It is way past time to begin amending the Constitution and writing women and our rights in indelible ink. Decisions are not enough. Waiting for this court to decide our basic rights - meekly accepting a state’s rights approach - no. We’ve come to far. “ Hear me roar”. Roar? Try- rolling thunder.
464
@Jo Williams
If amending the constitution to guarantee abortion rights(or the opposite) were easy it would have been done a long time ago. There is no chance any type of abortion amendment could ever even get out of the congress (2/3 in each chamber), never mind be approved by 3/4ths of the states. Frankly this issue should go back to the states so NY can (and in effect has) made it legal up to day 270, and bible belt states can make it illegal from day 1. If abortion rights (or lack thereof) are that important to an individual, move to a state that has abortion laws to your liking. Both sided have legitimate moral arguments in their favor, and there will never be a consensus that the whole country can live with. Witness the ongoing debate since 1973. I rest my case.
11
@Robert
The Equal Rights Amendment will do it.
31
If women went on strike- not a one day march, I think we would see some rapid change. That compromise on immigration? The TSA and the air traffic controllers’ had more to do with it than either Party. Something to keep in mind.
48
I agree with Ms. Greenhouse's overall oassessment of the legal and political landscape. But I take issue with her characterization of the new appointees to the Fifth Circuit as "Trump judges." It is easy to imagine a President Cruz, a President Santorum, even a President Jeb Bush having appointed ultraconservative judges who would have done exactly the same thing as the Trump appointees. Let us not, in our justifiable anger at Trump's personal style, overlook the fact that American conservatism is bigger than Trump, lest we demonstrate so-called Trump Derangement Syndrome and play right into the president's hands.
161
@Some Tired Old Liberal I agree somewhat with your comment, but would point out that not only are Trump's appointees selected from the Federalist Society's wish list, just as Rubio or Bush's would be, but many of them are just downright incompetent. Even some Republicans have recoiled at certain Trump nominees to the Bench, as they have little relevant experience and sometimes can't even explain 1st year law school concepts and precedents. Some of them have been rated not acceptable but have been passed on to the Bench anyway. This is what will keep Roberts up at night for the forseeable future, not their political opinions.
103
@Some Tired Old Liberal If American conservatism is bigger than Trump he wouldn't be president.
24
@Some Tired Old Liberal
This is a very important point. There is a grim determination in the "MSM" to portray Trump as a wild aberration in an otherwise honorable GOP who have, at worst, been corrupted by him. Is the point to confirm to Trump's supporters that he is a maverick, uncorrupted by partisan politics? To flatter the "establishment" GOP? To pretend that the media had been doing its job as it failed to notice the GOP & its media devolving into criminality?
43
The writer's comparing this case to Obergefell is faulty. Of course that case applies equally to male and female homosexual couples. The current case is different because similarly worded statutes can have very different effects in different states. In one state the statute may place an undue burden on a mother's supposed right to kill her baby but not in another state. Louisiana may have less local opposition to abortionists' securing hospital privileges. It may just be easier in Louisiana, which has a smaller land mass than Texas, to travel to a neighboring state for the procedure. Moreover, there was no reason for the Supreme Court to grant a stay of the Fifth Circuit's ruling. Let the plaintiffs appeal on the merits to the Supreme Court if they wish. In the meantime, there is no irreparable harm in letting the Louisiana statute take effect. No actual pregnant woman in Louisiana has shown the need for an immediate abortion. It is high time to show due respect for the legislatures of the sovereign states. It's called democracy. Stop trashing it.
3
@SHerman
Will we bring back the Stars and Bars and restore slavery? Perhaps that is where the court is headed, but it does not make it right. In states such as North Carolina, a very purple one, its legislature is far right due to gerrymandering and voter suppression. It will change as population trends continue, but courts are should be impartial, not favoring one political argument over another.
10
This is why it is vital that We the People make sure that there is a Democrat in the White House in 2021 and that the Senate returns to a Democratic majority.
Mitch McConnell and his gang of liars and thieves stole a Supreme Court seat, rushed a crying, lying, Kavanaugh onto the Court (The House Judiciary Committee ought to investigate whether he lied about when he learned of the Ramirez allegation, BEFORE or AFTER the New Yorker article.), and are now packing the federal courts with right-wing Federalist Society ideologues.
We get the government and the judges we deserve, and we deserve better than this.
26
@Valerie Elverton Dixon
I agree with your goal but we very clearly don't get the government and judges we deserve. The undemocratic electoral college makes sure of that. We need to work to change that abomination.
3
Oh please, Chief Justice Robert and the Court are less concerned by challenges from the "right" or the 5th Circuit than the rogue District Courts that feed the 9th Circuit as they constantly spew preliminary "nationwide injunctions." That issue will very soon force SCOTUS to put a end to that nonsense.
7
@Flyover Country I'd say that the Fifth Circuit ignoring precedent that is completely on point with the matter before it, based on differences in "geography", is pretty darn rogue.
2
Seriously !
Is that the flaw, or the design....
1
Kavenaugh is a Liar. He testified before the Senate that Roe v. Wade was "settled law" yet he voted to restrict access to abortion under the guise that Doctors need to be more aggressive in order to get admission privileges? What sort of judge ignores precedent set by SCOTUS but blames the doctors and not the law itself, which is 99% of the same law found unconstitutional. What else did he lie about before the Senate?
46
A magnificent exegesis of the current state of the Supreme Court of the United States in general, and its Chief Justice, John Roberts, in particular.
I recall, when he was being vetted by the Senate, that he said his idea of settling legal disputes was to "call balls and strikes," that I found that metaphor positively absurd. It was, then as now, a sly way of avoiding responsibility for taking a precise view of the law and how it applies (or should) to every citizen of the United States regardless of any defining characteristics of gender, race, religion, political identification, economic status, etc.
This Chief Justice, reportedly now quite concerned about not only his historical legacy and the rapidly rightward lurch of the lower federal appellate system (thank you, Mitch McConnell), now seems in a frightful panic. The apostasy and lack of respect for his position by the newest Justice, Brett Kavanaugh, was breath-taking to behold. The Chief Justice knew where Justices Clarence "Uncle" Thomas, Samuel Alito and Neil Gorsuch stood but this blatant discourtesy and lack of judicial restraint (isn't that a requirement for a SCOTUS choice?) has signaled a fracturing in the ranks on the Court.
And abortion, an important social and political marker, is almost a sideshow here. Add in any number of other current political--yes, political--tripwires and the Court, going forward, will be a hostage to right-wing sympathizers.
Chief Justice Roberts could have prevented all this.
16
So the merest peep of judicial opposition of abortion is defiance? Defiance of what? This is just the moral and deep spiritual divide in this country which Ms. Greenhouse does NOT want to discuss, which is whether abortion is in fact compatible with the legal, moral and religious traditions of millions of people in this country who are compelled by the devotion to abortion-as-law to live with and in a nation and legal system that is itself in defiance of everything they believe and cherish. Tu quoque, Ms. Greenhouse.
1
Perhaps Ms. Greenhouse doesn’t subscribe to the notion of abortion being subject to some “deep moral and spiritual divide,” and instead sees abortion for what it is: a medical procedure that is the business of no one else beyond a woman and her doctor.
5
@David A. Lee
I'm not living under the laws of ANY religion--got it?
8
It’s not law, lt’s politics.
Denying that reality when you vote for President and Senator only aids and abets the conduct described here. You can dress it up in all the procedural hoohah you care to apply, but in the end, political orientation is what drives judicial decision making.
5
Kavanaugh lied. It matters not. We saw it coming, but he got in anyway, due to the old boy network in Congress that thinks women have no right to do what they want with their bodies.
It is beyond galling to see how much the so-called "religious right" has forced their beliefs on the entire country. The idea that there should be separation of church and state and no state religion is gone. GONE.
Many citizens in this country are not in any religion or in one that has no beliefs that the "soul" enters the body on conception. (That comes from Catholicism.) Those women who need an abortion for any reason are actually up against the belief system of a group of people who are more concerned with a fetus than the moms or the child after it is born. No one says fetus any more. Even TNYT says "unborn baby". Propaganda's success goes unnoticed.
When "religious" people LIE and say they will not let their beliefs influence their decisions and then, just months after being sworn in, do the opposite without any repercussions whatsoever, the entire country is in big trouble.
Perhaps late trimester abortions could be restricted...that might make sense in some circumstances but until then there is no evidence that abortion is murder unless removing your kidney is also murder. There are more cells in a kidney than in a new fetus.
Trump was pro-abortion until his "base" objected. He acts like he cares because they want him to. Let's hope no one on TSCOTUS dies or retires before 2020.
38
I'd like to see Kavanaugh try harder to keep his biases in check and act as a judge ought to - neutrally and mindful solely of the merits of the case. How about it Kavanaugh, can you try?
9
Well for everyone who voted a con man for President they have unleashed corruption that has no bottom. The year is 2019 and white men and women who hate everyone but themselves have been able to pass laws that are not based on moving the country forward but are stuck in culture issues.
Thank goodness the Democrats are mobilized and thinking about everyone. There is a reason red states have nothing of value but hot air and hate. Democrats are on message and unless the Supreme Court wants chaos in the country they need to realize that the Trump monsters on the courts need to realize that they are not the final voice in America.
18
9th Circuit has been overturned many times by the SCT because of that Circuit’s many irrational, far left opinions. Maybe the 5th circuit is evening the score!
It is a simple truth that their are Obama judges and George W Bush judges. This is not a criticism because they don’t change their judicial approach to please the Prez who selected them. They were selected because of their judicial approach and act accordingly.
5
This is what comes from 40 years of conservatives gaining various small-town positions and working their way up, all
meticulously plotted by GOP evangelicals and plain old hardliners.
Democrats? Clueless.
It also results from Barack Obama's not making appointing judges a priority. Perhaps he just didn't want any more confrontations with Republicans.
But truly, and I say this as an ex-Republican who quit after hearing what Pat Robertson and Pat Buchanan had to say at George H.W. Bush's convention, you cannot play nicely with this new GOP.
Obama should have gone in swinging and instead he went in like a kindergarten teacher expecting everyone to get along. Maybe he couldn't summon up enough aggression. God knows Mitch McConnell has enough for all three branches of government. What's with his eyes?
13
Talk about rebellious underlings, 'How bout them Evangelicals'? This anti abortion fight is so far from their original calling that their Chief Justice has to be more frustrated than Roberts. The reason that Christians are to be pro life is not because God wants the pro life issue. It's because it's the first step to an eternal life that God has in mind. But now, aligning themselves with Trump, Evangelicals have no credibility to speak about anything let alone becoming sanctified to God.
6
So the fifth is like the ninth, just on the other side of the spectrum?
3
I think you missed the great dilemma for Roberts: is he going to go with his personal antiabortion views OR adhere to the holding of Whole Woman's Health on stare decisis grounds and not let the naked appointment of antiabortion Justices by Trump lay to shreds Justice Roberts' statements earlier this year that there are not Trump justices or Obama justices. To overturn Whole Women's Health will make a mockery of any sense of an apolitical judicial process regardless of one's views of abortion.
4
How odd it is that people, you and me, have continued to empower ODDS to determine who will live and who will die.When and how A difference of "1," a graphic line, which could be valenced - +, ending a being's breath. Forever. Found guilty by peers. Some of whom may not have been peerless. A brainless number determining, by human consensualization, tradition, beliefs, etc. WHO will be free in a range of ways, and who not. Who will abort and who must go full term. 9 Months. Even as full term for a judge is a life-term. Decades of weighing in and out. Judging. Deciding. Casting the first stone. Even-judgments not eventuating (needed?) changes. Flawed fellow beings unflummoxed by the consequences of their Final-Decision-Solution. An outcome of the types, levels and qualities of their awareness about...Perceptions of...Thoughts and feelings about...Coping, adapting and functioning in an ever-present reality whose interacting dimensions are semanticized as uncertainty.Unpredictability.Randomness. And our certitude that we have full control, when total-control is an irreality. No matter the types, levels and qualities of one's efforts! Timely or not. In a reality in which there are no "evidence-informing" ways to determine the extent to which any judge, however knowledgable and experienced, is/can be willfully blind about...Willfully deaf about...Willfully ignorant about...And so, we who have yet to be judged, here or elsewhere follow life-time judicial outcomes.Decisive Words.
In spite of Trump's great distaste for Iran, there is one part of Iran that Trump and the Republicans love: their Council of Guardians.
A Supreme Court like body dedicated to enforcing conservative religious purity and preventing any semblance of democracy from infecting their country.
12
Chief Justice Roberts is a Republican Judge. That is why he voted to gut the voting rights act and voted for Citizens united: Both favor the Republican Party.
We are back to a 5/4 Republican court and they will keep nibbling away at abortion rights to keep the Republican base happy but not overturn it.
Wealthy women will be able to go to Liberal states for their abortions and poor women will suffer.
14
@rabrophy I am not sure how you define “overturn” but it is painfully obvious that where this SCOTUS will soon arrive at is to outlaw the right to choose at the national level. States may or may not be allowed to continue to allow abortions but the right to choose as a right of U.S. citizenship is going away. It must be, once again, noted that, for all fair-minded people, ALL rulings of SCOTUS since Gorsuch was seated carry no legitimacy. That seat was unconstitutionally stolen and therefore, SCOTUS has ZERO legitimacy. Just one more milepost, along with gerrymandering on steroids, corporations as people, & voter suppression, that makes 2019 America something less than a legitimate democratic republic. I never could have imagined such regression 40, 30, 20, or even 10 years ago...I used to think Pogo was funny, but not so much anymore. We have met the enemy, and he is us.
8
@Lee N. Which is why Roe was such a mistake. We wouldn't have efforts to define, either through the courts or constitutional amendment, like as starting with conception if the Supreme Court hadn't invented a "right" to abortion and ended the liberalization process that had started in the states.
The Heritage Foundation and the Federalist Society, and McConnell are loading up the federal courts with radical extremist far right wingers. Abusing traditional Senate rules, they cynically blocked President Obama from getting most of his judges confirmed. Under Trump, McConnell and his GOP confederates have stripped away all Senate rules allowing for the minority party to have a voice in judicial confirmations.
The federal courts are indeed rapidly becoming a wholly owned subsidiary of the radical far right GOP, and are seeking to impose the party’s highly unpopular agenda via judicial fiat. This includes criminalizing abortion, taking away health insurance from the poor, and the rest of the GOP’s anti consumer pro-big business agenda.
This radical shift is the only enduring part of the Trump regime. Democrats will need to win the presidency and the Senate for at least a decade to start bringing the country back to a place that serves its citizens, and not a radical unpopular ideology.
Do non GOP voters now understand the importance of the courts? Or will it take a series of terrible right wing decisions that we all know are on the horizon to wake them up?
13
@Demosthenes No, I think you can rest assured that a meaningful percentage of progressives will continue to let their pursuit of perfection be the enemy of the good. And when SCOTUS outlaws the right to choose in the coming months, I really look forward to all these folks weighing in here to explain how it all would have played out exactly the same no matter whether a Republican or Democrat was president. They didn’t learn with Nader, and they didn’t learn with Stein. And they think this high mindedness absolves them of responsibility for Bush II and Trump. No, they are directly responsible.
7
It is very unfortunate that very few people respect the supreme court. Over the years, by partisan activism role played by the judges made the court something like Tea Party organization. The Judges live in bubble, they are not in touch with common people. The supreme court supposed to be a neutral fair balanced institution. Since the case of Gore vs Bush, I know that the supreme court is a right wing arm of the Republican Party. Then Clarence Thomas and Bret Kavanaugh are accused of assaulting women. Why should trust the supreme court.
11
@ASHRAF CHOWDHURY The court has been political since Marbury v. Madison, at least.
Republicans, in all their various governmental roles, are a clear danger to our Constitution, to our sense of fairness and justice, and to our Liberty.
11
SCOTUS, Trump, GOP's non-majoritarian majority in the Senate. When 1/3 of the country controls the other 2/3, you get judge-on-judge defiance, plutocratic insulation from and ignorance to the country they swore to serve, and a reality TV star turned would-be dictator-tot who abuses and sells out his fellow citizens with impunity.
9
When Trump had been officially found to have illegally worked with the Russians to get elected that will mean that all of the judges he appointed will be shown to be illegitimate. They need to all resign or be impeached.
9
@Jay Lagemann
Done.
Next clean-up chore?
1
I am interested in Supreme Court decisions and am glad the Times has Linda Greenhouse as a commentator thereon. That said, I have had trouble following some of her ideas because she seems to assume a level of knowledge about the court system that I don’t have. I am not a lawyer but I do have a doctoral degree and post doctoral education so I don’t think it’s a problem with my capacity to comprehend cognitively complex concepts. I have an easier time following Marcia Coyle on PBS.
1
I presume there are many women who choose not to have abortions, even though they are undergoing unplanned pregnancies. My reading of the Constitution and the Declaration of Independence, our excuse for existing, is they are entitled to make such choice. However, the anti-abortionist movement wants to TELL women how to behave, this movement, which follows religious dogma, is exactly anathema to the concept of freedom: the right to do what one (even a woman) pleases, as long as one doesn't infringe on the rights of others. I know, a fetus is an "other", at least according to some religions, an egg cell or two is a "baby". What utter nonsense. What is behind this anti-abortionist fervor ? Pure hate, is it not ? Or is it a lust for power ? Surely not compassion for a woman, or for a fetus.
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Should judges nominated by convicted criminals allowed to continue in office? That will be the question of the 2020’s. We don’t need rotten apples.
8
Abortion remains a legal issue as well as a political issue because the Constitution—despite the ruling in Roe v Wade—is mute on abortion, just as it is on many issues. Abortion was controversial in the Thirteen Colonies prior to the American Revolution. It was permitted in some colonies and prohibited in others, Since there was no agreement on the issue, the delegates to the Constitutional Convention opted to leave the matter to the states.
Roe v Wade is vulnerable because it is based on “penumbras.” Justice William O. Douglas, who concurred with the majority decision in Roe vs. Wade, explained that "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” The authors of the Fourth Amendment would have been astonished to learn that the right of woman to an abortion up until the third trimester pregnancy emanated from the amendment’s ban unreasonable search and seizures.
Congress should settle the issue of whether abortion is a constitutional right by proposing an amendment that reads: “The right of women to an abortion shall not be infringed.” If the states ratify the amendment, the legal issue will be settled. If the states vote against ratification, the abortion issue would once again be left to the states.
2
I'm afraid our Supreme Court has become too politically corrupted to the follow the rule of law. Our democracy is constantly being assaulted by big money and religious fanatics. It is clearly wrong for the government to take control over women's bodies. I personally don't approve of abortion, but I defend a woman's right to have the freedom to decide if she needs to have an abortion. Texas is obsessively anti-abortion, yet the other day I read that 4 starving, undernourished children were found on the grounds of their mother and her boyfriend's home in Texas, and the 2 youngest were kept in dog cages. I think the consequences of having an unwanted child are sometimes worse than abortion. The courts should stay out of people’s personal life and allow people to follow their own conscience.
11
Just imagine if all the money spent trying to take away abortion rights by red states was spent on adequate family planning where we would be. The cost of these lawsuits back and forth are enormous. We should be following the money.
White Christian evangelicals were given a bait and switch when they initially found against racial integration. Once that became taboo, their leaders needed another boogey man - abortion.
16
The ultra-conservative judicial appointments of Donald Trump will be one of the most insidious legacies of his administration.
8
@Sunny I truly believe that Trump is not a legitimate president, having achieved his office only thru an electoral college vote by "swing states" that evidence will clearly show were swayed by illegal (and treasonous) actions by and with Russians during the campaign in 2016.
So. If conviction of his confederates clearly show he was and is controlled by a foreign hostile power--all of his actions as president and judges selected should be rescinded. Yes, it would cause short term chaos as judges are re-selected and confirmed AFTER those tainted by the same money/issue in Congress are removed, but better that than permanent rot.
2
Conservatives have known for decades that stacking the Supreme Court and lower Federal System is the only way to get some of their most obnoxious ideas about who deserves a right to vote and who does not have a right to vote rubber stamped by the courts including the Supreme Court. Republicans are very exclusion prone when it comes to recognizing basic human rights that belong to every born on this planet. Republicans will let living humans starve and wallow in poverty before recognizing that humans they define and exclude as "others" are protected by our Declaration of Independence and our Constitution and Bill of Rights. The only "right to dignity and justice for all" they recognize comes from their own inflated evaluation self.
4
Kavanaugh is no chief justice. If justice had reigned, he would have had to "keep trying".
4
Be careful what you wish for, a hard right judiciary Justice Roberts, you just might get it. Which will destroy your court's vaunted independence, its very reason for being, and your not insubstantial legacy. Live by partisanship, die by partisanship.
4
Such an intersection of man, institution, timeliness, and author. This is my valentine. Suspect Roberts realizes that kavanaugh and trump might sink the ship he’s captain of.
6
Dred Scott. Plessy v. Ferguson - I don't trust the Supreme Court at all. Just another political branch of our sad government.
3
This is separate from the legal issues discussed but I have to wonder why hospitals are so reluctant to provide admitting privileges to these doctors.
This piece very clearly articulates the problem with which Republican court packing has presented Chief Justice Roberts, which might also be put this way: does he care more about the institutional integrity of the Federal justice system more than about any particular ruling? He should, because an orderly legal system is the precondition for upholding of any individual law.
He is clearly becoming aware that a slide towards naked partisanship is threatening the respect with which the rulings of the Court are held. I would only add that this is going to happen from the more liberal direction as well (in those districts where they are still dominant) if Roberts yields to right-wing clique on his bench.
The only thing standing between the Court and chaos is stare decisis.
7
The greatest concern from the recent decision to grant a stay was that four justices voted against it. That they could so casually ignore recent Supreme Court precedent and judge that the new case didn’t even have a legitimate chance of being overturned shows that the “politicians in robes” phrase describes them perfectly, and that stare decisis is not in their nature. They should all be ashamed in recklessly taking the Court down such a partisan ideological path.
24
Behind Ms. Greenhouse'e excellent analysis lies the fact that the SC and many of our Appeals Courts have become severely partisan. Justice Roberts is trying to cover up the fact that the issue of hospital privileges was decided barely 15 years ago and now is under threat from the courts of appeals and the SC itself. How can we have solid justice when the courts shift their opinions around like fall leaves in a strong wind? Will the courts now change their opinions about gay marriage or those that found voter suppression in such places as North Carolina?
The courts found that voter suppression laws were specious and designed to do just that, suppress the vote. The same can be said for laws in Louisiana and Texas taking away the rights of doctors to perform abortions. But now responding to the far right's attack on the courts, these decisions may be thrown out the window, partisanship at its worst.
15
While I agree with everything else in this piece, I take exception to one observation - we knew everything we needed to know about Kavanaugh when he manically proclaimed that he was the victim of a Clinton-inspired conspiracy to derail his nomination in the face of compelling evidence that he has unresolved issues with alcohol and telling the truth.
48
Your perspective in this article assume that Justice Roberts may, eventually, fall into a particular category and, therefore, be predictable regarding his vote.
Perhaps he will not suffer this fate and will base his decisions on the merits and arguments of the case before him.
He has demonstrated the capacity to exercise judicial independence, albeit controversially in several cases.
One can only hope.......
7
We need to have a fight about Citizens United in the same way that these anti-abortion activists have fought Roe v. Wade. We need a fight about gun control. We need to push regulations at the state level which will push back on the Supreme Court's bad decisions. Some day we will have majority rule again in this country. Citizens have a right to be equally represented in govt ... dollars = bias.
15
Yes except the Trump Judges are appointed for life.
2
As for the courts, you have to hand it to the radical right for recognizing early on that, given their lifetime appointments, they represent the best way to solidify a radical, and radically unpopular (to a majority), agenda, and to insulate it from democracy. As Professor Greenhouse has described, Justice Roberts holds the key to whether the Supreme Court will survive as an institution of that democracy, or become merely another tool in the hands of extremists bent on destroying it. It appears he wants the system to function as the founding fathers intended - with decisions such as this made by the congress. Pity that several of his prior decisions have rendered that branch undemocratic as well. We're on our way to Afghanistan, sans burkas. Maybe we'll have bonnets instead.
34
If the abortion question is supposed to be settled law, then why are the courts still tinkering around the edges? Any further work to limit the rights enshrined in Roe should be worked out by the states through the amendments provisions of the constitution. Is this not happening because opponents don't have a strong case that could pass such an amendment? The current push to outlaw abortion by removing its infrastructure is a device that corrupts the Supreme Court and the constitution and quite probably the presidency.
18
Given the slow but apparently unstoppable shift to the right of our legislatures and courts (wisely focused on by conservatives who understand power rests in institutions not numbers)...
I would expect that long term we will have two realities in the United States when it comes to reproductive rights.
They will be available in the north under the guise of legal precedent...and they will be eliminated in the south under the guise of states rights. In fact it will probably be more limiting than that. You will see such reproductive rights only in northern and western coastal states (think CA, CT, MA).
This will effectuate most of what conservatives seek...an effective (though not theoretical) elimination of abortion rights.
The result will be fewer abortions by the poor, a greater strain on very limited social service nets...particularly in the south (where there are woefully lacking), and complaints of irresponsible women having children they should have taken responsible steps to prevent through abstinence or contraception.
23
@Jack The thing is, the right is opposed to contraception use and access, so they can't even use in their crusade against the underprivileged. They will tirelessly cling to abstinence despite being shown time and time against it absolutely does not work.
23
@RR abstinence works fine for conservative men and women who want to keep women in their place, fixed into gender roles and submissive to men
3
@Jack
“ Irresponsible women”? Men in the south still think this way? We really are on the brink of being two countries.
2
The right to abortion is a made up right, outside the constitution. The so called right was created by an activist left wing court. The court has been far more left wing activist than right wing for the past 75 years. Indeed, the entire judiciary is and has been far more left wing activist than right wing. For example, DACA was wholly an executive order, admitted by Obama to be unconstitutional. Yet the courts have ruled so far Trump cannot end it. And dont lecture us on Citizens United. The soliciter general was forced to admit during oral argument that the statute in question would have allowed the banning of books. Who here wants the Trump administration to control political speech? Or the government to ban books and movies? (it was a pay per view movie at issue in the case).
5
So should all pregnant women register with the state as the state controls their reproductive systems?
17
@William
What the religious right wants with their forced birth program is for government to establish their religious beliefs as law. Yet our Constitution specifically forbids the establishment of a specific religious view. The majority of people in the US support the right to reproductive freedom. If men had their medical decisions—e.g., you can have a vasectomy because you have children but another man with no children cannot—made by state legislators, they might be more sympathetic to women having the right to make their own medical decisions.
10
@William I was going to recommend the post, then got to the citizens united piece and decided not to. Speech is not money, say what you will about what money can 'create' (books, movies, etc) its influence on our society cannot be ignored, if the legislature won't do it, then 9 intelligent people should (based on this article, maybe 7 are)
4
We're taught that we are "a country of laws, not men." Now we see the truth: We are a country of men, not women."
90
The horrible legal consequences of Roe v. Wade continue to ripple outwards. Not only did the law condemn children in the womb (about 45 million abortions have been performed since then), but it created Constitutional 'rights' about which the Constitution was entirely silent. Anyone reading the Federalist Papers would understand that the Framers of the Constitution (including the Bill of Rights) never in a million years expected to see an Article III Court (Supreme or otherwise) assume jurisdiction over the questions it has. So to untangle and unscramble an unlawful and unwarranted mess, the current Supreme Court has to tie itself into knots, because it wants to pick the Roe v. Wade knots out one at a time. Access to hospital admitting privileges isn't the real issue - the lives of the children being aborted are the real issue. Granting a stay in a complicated legal and factual situation is routine from any court - it is all the maneuvering and interpreting around this stay that has generated controversy. Roe v. Wade is second only to the Dred Scott decision in being a moral abomination, and the current Supreme Court should reverse it promptly and unequivocally.
8
@Tom Wolpert You're entitled to your opinion, but to say you can tell someone what they can do inside their own skin is beyond outrageous.
Honestly, if you think you have control over someone biological workings, how far is the argument that we have control over the thoughts in your head? Abortion today, maybe society will tackle your thoughts on religion next? Because 45 million is a lot (of made up) people, but pales compared to the lives lost in the pursuit of godliness.
11
@adam
The child counts too. The child's biological workings count too. Giving the mother superior rights does not mean that the child has none. Landlords, lenders and employers have superior rights to tenants, borrowers and employees, but those who have lesser rights still have some. The mother is entitled to her thoughts as well as the assertion of her legal rights, but so also the child is entitled to the protection of his or her legal rights. They don't have to be perfectly balanced to exist.
2
Justice Roberts has the unenviable task of protecting the high court's independence in the age of Trump. He is pushing back against Trump's politicalizing of the court and he deserves our respect for doing so. Justice Roberts will not permit the court to be seen as a tool of the right and as long as he can help it, he will not allow the court to overturn anything related to Roe. Justice Roberts is rebuking Trump and protecting the court and the recent verdict is part of that pattern.
23
"[A]s the lower courts move rapidly even to his right."
This sub-headline is misleading. It suggests the article will present an analysis of whether "lower courts" are moving rightward or leftward in their decisions.
But that's not what we get when we read the article. Instead, there's an analysis of a single case on abortion. This says nothing about whether the lower courts, in general, are moving right or left.
There are many lower court decisions that tack hard left vs. Supreme Court precedent (for example, on the Second Amendment). They should be mentioned to support the sub-headline or the sub-headline should be removed.
5
For all our wonderful written laws the protection of our democracy always comes to crucial moments of personal courage. Books and movies may laud those acts as grand moments, but at the time of display courage was often a dogged devotion to duty and a steely determination to preserve the institutional basics. If John Roberts can do that we have greater reason to count on the Supreme Court.
10
The legal profession likes to use the metaphor "Fruit of the poisonous tree", when describing how if the source of the evidence or evidence itself is tainted, then anything gained from it is tainted as well.
Once the truth is known about how Trump stole an election with the help of Russia, the same logic should apply to all the Trump judges that were installed as a result of that illegitimate election.
111
@Steve
The house and senate have investigated and so far found no such evidence. The left and the democratic party will be discredited if Mueller finds no collusion. You will hear from Trump every single day about how he was exonerated, fake news, etc. Trump will say he was right all along, and might win in a landslide.
1
As much as I appreciate this line of thought, I’m not holding my breath waiting for Trump’s judicial appointments to be nullified by the Mueller investigation’s findings ... any more than I’m waiting for Trump’s base to regard those findings as lawful and legitimate.
Just before Nixon resigned, I believe he still enjoyed 50% support among registered Republicans. Incontrovertible evidence that Nixon had obstructed justice and authorized hush payments to the Watergate burglars seemed to have no effect whatsoever on their devotion to the man they’d voted for.
In the age of Fox News and Twitter, expect that support for Trump to be higher no matter *what* happens.
23
Sadly, I only get to recommend your comment once. If my recommendation could reflect the degree of my support for our observation, you would have thousands of recommendations. No, make that 2,868,686 recommendations—the size of the popular vote majority that Clinton gained over Trump in 2016.
2
Elections have consequences. For some reason, Americans most affected never seem to learn this lesson until it is too late. It is always better to vote in spite of instead of of not voting out of spite.
22
"The arc of the moral universe is long, but it bends toward justice." Martin Luther King
I hope Chief Justice Roberts will not allow a bend toward injustice, but he may not be able to stop it.
5
Yet again Linda Greenhouse shines a light on a pivotal part of American jurisprudence. The fine points in this article cannot be captured in news accounts. I am so thankful to have access to Ms. Greenhouse's extensive knowledge and probing insight into the workings of our highest court.
It is hard to imagine the Court laboring under the idea that in this societal climate it can substantially impair our 47 year old right to abortion. I don't know what would happen, but it can't be pretty.
43
Can tiny “hospitals” be built (think tiny homes or food trucks) and parked right next to the clinics? They could have no requirements for admission privileges.
On a side note, any hospital that relies on Medicaid for over 50% of its budget should just be federally run and should have its standards dictated at a national level. And one last note: during the last two years of one party rule, where was the bill that made childbirth free, childcare affordable, adoption the easiest path, etc? Hypocrites, the whole lot of them!
61
Maybe straying Democrats who loathed Hillary and voted for Stein or Johnson...or Trump... in the midwestern states that gave Trump his electoral victory will wake up and realize that there are bottom line issues to consider before voting purely on personality. I wonder if these voters are pleased with the ultra Conservative bent of the Federal Courts. Republicans were organized to "vote" for Conservative Supreme Court judges and many held their noses to vote for Trump to assure the appointments of Federalist Society judges like Gorsuch and Kavanaugh to the high court. Time for Democrats to get smart. These Courts have incredible power to shape law that affects lives.
50
@Al Singer I vote on neither personality nor party identity, I vote issues. And Ms. Clinton was on the wrong side of many if not most of them. I didn't pick conservaDem Tim Kaine as a running mate, I didn't prevent her from campaigning in the Rust Belt as she mistakenly pursued suburban Republican voters while assuming Democratic voters had nowhere else to turn and I didn't ask her to say that the US would "never, ever" have universal, single payer healthcare. In short, both you and her seem to think I owed her a vote, I thought otherwise. You do know that who you or I voted though really doesn't matter because of where our votes are tallied, right? What with the Electoral College and all . . .
Please put the blame for Trump's election where it belongs, on feckless Democratic party that seems completely uninterested in anything other than corporate campaign money.
14
@Al Singer
I spent 45 minutes in 1984 debating with someone who should have known better, an environmental chemist, pointing out how on issues after issue, he disagreed with Reagan's policies, and harking back as well to the reality that you were not just voting for the smiling actor on a horse channeling John Wayne as President, you were voting for the Supreme Court!
In the end, his conclusion: "I disagree with him on the issues, but he's getting my vote".
I could say more, in fact, this deserves an essay in itself, but I'll just leave it at that.
11
@Al Singer - Thanks for illustrating the failings of the Democratic Party so succinctly. As bad as the Republican Party is (and that's b-a-d), the Democratic Party's failure to do it's job as the privileged opposition in a two-party system has aided and abetted the Republicans' rightward scramble. I am NOT a Democrat, but in the face of the obvious choice in the last election I did my duty and voted for Clinton, warts and all. But do not think those of us who did so do not RESENT the fact that the Democratic Party establishment seems to think they are entitled to our votes, no matter how obviously awful the candidate they choose: no one owes you there vote. Voting for Trump was a terrible error in the last election, but the Democratic Party was culpable in choosing a candidate many voters and regions clearly would not support under any circumstances. And now we get to hear the constant bitter finger pointing from party adherents still blaming everyone else and taking absolutely no responsibility for their own culpability in the loss. The failure of the Democratic Party to acknowledge its error in foisting Clinton on voters is the largest obstacle to winning back voters in the next election.
1
I will never understand how people who are pro-life are also in favor of the death penalty and pro-guns.
If trump is removed from office, can his judicial appointments be invalidated?
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@Steve Ell
The constitution's 2nd amendmemt allows us to have guns. You won't find anything there about abortion. The death penalty? State legislatures have authorized the death penalty for hundreds of years, by politicians of all stripes. The Supeme Court will not typically declare something unconstitutional that has been around that long, approved by the deomocratic process. The right to abortion has never been approved by the political process on a nationwide basis. When the Supreme Court strikes down laws enacted by the political process, especially when the law does not conflict with the plain language of the constitution, it is a big deal. That the so called right to abortion still exists is surprising.
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@William How about calling it a woman's right to sovereignty over her own body? Nothing in the Constitution gives men the right to make health decisions for women.
23
It’s puzzling only if you don’t see that the so-called “pro-life” forces are really only in favor of forced childbirth. Their goal is to control women: their bodies and their sexuality, and ultimately enforcing their second-class position in society. Once a child is actually born, these people have shown time and again that they don’t care about her or his life (they routinely oppose social programs that would help real, alive, outside-the-womb human beings, and fail to oppose the death penalty, police shootings of innocent civilians, and our sick gun culture).
Forced childbearing is immoral.
29
These judges, selected by the Federalist Society, are political operatives, totally. They are a product of a machine of right wing development and recruitment years in the making. They are the result of a decades old strategy to shape American law to satisfy the desires of fringe right wing politics.
There are three goals that they all pursue.
One is to shift as much political and economic power to corporate America as possible.
The second is to allow sexual discrimination, excused by religious freedom, to become rampant, all because of a few words written 3000 years ago.
The third is to abolish abortion.
They are succeeding on all three counts.
This is all the result of minority rule. None of it has anything to do with justice or fairness, or right or wrong. It is judicial activism taken to the highest level. Roberts full well understands this. He was forged from it. Now, it appears, he is beginning to realize the damage that it has done to the courts.
The lower courts will not follow his lead, nor will the other four right wing justices. He is now an island of resistance. Will he hold on for the sake of the law?
It is the women Trump voters of red state America who stand to lose if Roe goes down. They go to his rallies. They love him. And they will will pay the price for his appointments. Hurray for them! They got what they wanted. The rest of us did not. Vote in 2020 like your life dependent on it. It does.
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@Bruce Rozenblit genius that you are, you fail to realize that it has been "courts" finding "rights" that do not exist anywhere in our Constitution and which were contrary to the laws when the Constitution was ratified that has created these issues. If abortion, gay marriage, etc were so universally accepted (contrary to them being capital offenses at our founding) then they would have become part of the Constitution through the amendment process (i.e. end of slavery, women's right to vote). However, such "rights" are not rights, but political opinions of individuals seeking to "fundamentally change America". Fundamental change of America is not of one of the responsibilities of any judge or justice anywhere in the U.S.
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@Matthew
So then is the entire body of laws passed after the Constitution was ratified then invalid?
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@Matthew America was founded on, and celebrates individual freedom. What does "freedom" mean if people cannot love whom they choose, and decide what happens within their own bodies?
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In the end the larger truth dwarfs abortion rights or any single issue. The larger truth is that the grand children of our friends and neighbors who supported Trump out of defiance or ignorance of who he truly is will pay the price for what he has done. A center right nation will suffer the effects of a far right judicial system for decades to come. Those who bought into the demonization of Hillary, a flawed woman but nowhere close to posing the threat to the future that Trump does, have condemned the rest of us and our progeny to a future in a far right fantasy land.
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It is truly baffling to me how the federal judiciary has so many judges who have no regard for the law when it comes to a woman's right to choose. It is equally baffling how many legislators are similarly afflicted.
Judges aren't judging cases; they're judging people. Legislators aren't crafting legislation; they are dictating their own twisted views of morality on others.Their desire to prevent women from controlling their own lives outweighs the rule of law or any principle they claim to hold.
Brett Kavanaugh's "judicial temperament" was on display for the world to see. I know thirteen-year-olds with more maturity and self-awareness.
In spite of the efforts of many good citizens and public servants American government is speeding toward absolute farce. We can ill-afford the ignorance and arrogance of movement conservatism.
None dare call this democracy.
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@Eddie Allen
As I was reading your comment, the thought came to me: Where are the Marx Brothers and their writers? I wish they were alive today.
1
There is no doubt in my mind that the SCOTUS will either literally overturn Roe or allow its gutting into meaninglessness. Kavanaugh either lied in his congressional hearings or lacks self-awareness. It's pretty clear that he will vote in every way he can to undo a woman's right to chose.
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Kavanaugh lied and we would have known that he was lying had the FBI investigation been allowed to be completed.
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@Anne-Marie Hislop
If I may, it's even worse than that. Roberts will not allow Roe to be overturned, at least with the current court (if another liberal justice were to retire it would be beyond his control) He understands the backlash it would cause.
However, what _will_ happen is that a woman's right to choose will become essentially illegal for vast swaths of the country, geographically and economically. Same with Obergefell, it will remain the law of the land, but the logistics of marriages will be made as inconvenient and difficult as possible. (bakers, photographers, planners, etc)
Lastly, and worst-ly, what Republicans and Federalists are making sure of if that there cannot be another Roosevelt, Teddy or Franklin, nor LBJ, nor JFK. When the other two branches move in a liberal direction, the Courts will be there to stop any new business or environmental regulation, any new social program or civil rights legislation or even a fix to SS or Medicare. That was the intent all along, to enshrine a permanent, far right government, irrespective of what future voters say. Unless something changes, the next 50 years are going to be tough.
27
These guys have already institutionalized the monetization of speech and, therefore, politics. We've lost the economic war whose first shot was fired by a future Supreme Court Justice by the name of Lewis Powell who published an influential memo encouraging the business takeover of the government. Then came Scalia, an antediluvian literalist who would cast the original constitution in stone to turn back the clock on everyone's' civil rights. The theocratic feudalism is here, now.
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As always, Greenhouse is right on point and cuts to the heart of the matter. We know all we need to know about Kavanaugh, and Roberts is now the fulcrum on which the balance of justice for American women is poised.
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@trillo
Actually, the balance of justice for all Americans.
9
Ms. Greenhouse, I always enjoy reading your articles. They’re clear, informative, and most importantly, straightforward. (I need to learn to write like you.) Thank you for providing your insight on this important Supreme Court development.
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Is it even possible for justices to maintain (a facade of) independence when the Republicans have so politicized appointments & confirmations? When a Gorsuch accepts an appointment that had been explicitly held open for a partisan fulfillment, or when a Kavanaugh uses his confirmation hearings to mount a partisan attack (solidifying his political support at the expense of any appearance of impartiality), can you really say that there are no Republican or Democrat judges, no Trump or Obama judges? Who's kidding whom?
286
Ms. Greenhouse, given Roberts' dissent in the Whole Women's case, what would make you think he would vote against a similar case if it were to be taken up by the Supreme Court?
2
@Zalsa -- Reading the tea leaves is a particularly unreliable way to predict the future. But in connection with one Court argument I attended raising an issue that had recently been decided the other way, Justice Breyer, who was in the minority in the earlier decision, responded that "that train has already left the station." Respect for precedent is institutionally ingrained in the decision-making process of the Court. I, for one or for many, believe that Chief Justice Roberts is committed as Chief Justice to ensuring the strength of the Court as an institution, and that its strength would be severely undermined by disrespecting such a recent and concededly controlling precedent. Some or many would accuse me of naivety, but I choose to believe in the strengths of our Constitutional form of government, including the importance of the Chief Justice in protecting it. Call me altruistic. Or doomed to disappointment. But in predicting, also remember the Affordable Care Act. It may not be a reliable predictor, but it certainly offers a real basis for hope. And this case does not challenge the viability of Roe v. Wade. Unless and until that precedent is overruled, and it could happen, there is no good reason to disrespect this clearly controlling precedent by any Justice of the Court.
In the end, Judges are people who accept the position with all of the prejudices and political positions they held before being appointed. It is fantasy to assume that Judges apply the law impartially and without political influence. If that was the case, Trump would not always be scrambling to fill positions with conservatives. How many Black judges has he appointed? The majority of his appointments are White men.
Trump appointees in virtually every area or agency have no problem trashing decades of efforts whether it be with respect to the environment, education, race relations, housing, social programs, taxation, etc. Why should anyone be surprised when his Judges do the same?
64
While "the country waits, holding its breath," Republicans have been busy turning our justice system into a political game in which they interpret the rules and hand pick judges as referees to ensure they win. Not the people.
Justice Roberts is presiding over the impending downfall of the Supreme Court. While our nation's party politics have disgraced all participants at one time or another, the Supreme Court had since the first Chief Justice, John Jay, distinguished itself (albeit thinly at times) as independent of politics. Not any longer.
Trump judicial appointees at all levels are litmus tested radical Republicans. Sometimes adopting the term conservatives, Republicans chose to co-opt religion and legislate into secular American law, religious doctrine. Republicans use the term "conservative" as a throwback allusion to their former party which was conservative on government budgets and any intrusion into social issues. That has all changed.
Justice Roberts carries a heavy burden. He can protect the Supreme Court from his Republican brethren or oversee its demise. He has to know that history will treat him harshly if he oversees undermining the authority of the Court which is granted by the American people based upon the Court's perceived apolitical independence.
Our Constitution, by the authors' intent, does not endorse any religion, but Republicans are attempting to infuse it with Christian doctrine impinging on the constitutionally protected rights of the citizens.
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@JABarry
A clear, concise and intelligent appraisal of the situation created as a result of 25 years of covert subversion by the Federalist Society et al.
Their efforts have been spectacularly sucessful ( with the Democrats asleep at the wheel) and are now bearing fruit. There is probably no way to stop them.
27
@JABarry-- what is so religious about medical science? The never -ending mantra of "reproductive rights" is religious in nature some sort of sacred tight afforded to women, as though they have a separate right that the rest of us don't enjoy: the right to take a life, distinct and very much alive! The argument for life although buttressed by religion/philosophy is esentoally one groundefd on science.
2
@JABarry: The Supreme Court apparently doesn't understand that the very first clause in the Bill of Rights is a blanket prohibition of faith-based legislation. How obtuse is that?
25
As Ms. Geenhouse points out, it is extremely likely the four liberal justices will supply the four votes necessary to take the appeal of the 5th Circuit's decision. Then what? Should the Court sustain the 5th Circuit, abortion will in short order become unavailable throughout large swaths of the country. Here's where it gets interesting. Poor women will have few if any alternatives since they will likely lack the means to travel to other states where abortion is permitted. Middle class and wealthy women will just take a trip north or west. And that situation will remain the status quo until the makeup of the court changes or the dinosaurs return whichever comes first. Now if pro choice states and countries have the courage of their convictions, they will refuse to provide abortions for any women from the anti-abortion states. After all, what doctor wants to become a fugitive in Louisiana, Texas and much of the deep south - yes those states will prosecute doctors for performing abortions for home-state women should they get their hands on them. This will force those women of some means into the same posture as poor women in their home states, which is only fair. My guess is that red-state anti-abortion laws will fall in the blink of an eye. People don't start making choices until they have some skin in the game. Literally.
30
By winning elections in which the deck is stacked in favor of small rural states, and brazen usurping of Obama's power to appoint judges by the Republican Senate, the right wing increasingly controls the courts. John Roberts is a right wing hack whose agenda is to advance corporate power, rather than win culture wars, but he is a Republican judge. The only remedy is to win elections to regain control of the senate, which will be hard given the power held by rural states that are right wing. This could take a generation, maybe longer. In the interim, only progressive state governments will protect our rights. The Republican Party has no respect for democracy, only for power. The sooner the Republican Party is assigned to the ashbin of history, the better. But, the courts have been thoroughly politicized and will serve the right wing political agenda. Have no illusions about that.
153
It's a crying shame when we need to point out that the Chief Justice surprised most Americans by voting within constitutional constraints and rights.
We're watching yet another revered body dismissed as a political wrangler, thanks to McConnell Trumpism. It will be tough, if not impossible, to recover the Supreme Court's legacy after this.
213
@SD - Legacy? Try "legitimacy."
1
One of my questions about this issue has always been what percentage of people with various mental issues and the ones that fill our prisons were wanted, desired or adored children?
13
Excellent analysis. Depending how Mueller's work yields fruit, and the swing of the electorate, there should be a movement to remove these judges that have been illegitimately installed by a tainted election. Both Gorsuch and Kavenaugh should resign. And lower court appointees reevaluated and impeached if possible. Just dreaming in hopes this nightmare ends.
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@Colbert That's a nice dream. If the Judges that you dream would resign on principle, had any....... We wouldn't be dreaming of their resignations.
12
@Colbert
Maybe when the next visibly 'liberal' has a hearing before the Court, he/she will request that Kavanaugh recuse himself--based on his disgraceful threats before Congress. He does not belong on Olympus, and we should all demand his recusal until he resigns.
22
@Colbert
I agree that 45, his administration, and judicial appointment must go. Here's the logic:
1. Trump was wrongfully elected.
2. Trump's entire administration is in office fraudulently.
3. If Trump is removed from office before the end of his term, then Pence, all political appointments, and all judicial appointments must go, too. They are there due to fraudulent circumstances.
I'm not a legal scholar, but I asked Lawrence Tribe, who is. The Constitution makes no provision to remove an entire administration and its appointments if the president is removed.
Sad. Very sad.
1
It would have been useful for Ms. Greenhouse to have pointed us to the article she previously wrote about how the lower courts were making decisions too far to the left.
If the pendulum is presently swinging too far to the right, the point of origin of its swing past the center point should have been examined too - in fairness.
7
@Maurice Gatien It's refreshing to note that Canada has them too.
You seem to imply that judicial decisions for, say, civil rights, women's rights, voting rights, labor rights, we're the result of courts "swinging" too far to the left.
Correct me if I've misunderstood you...
6
@Maurice Gatien - If you are certain that this has actually happened, please provide some evidence.
1
Regrettably, the 5th Circuit has come to epitomize 'activist judiciary' - and that was before the addition of the current crop of McConnell's Judicial Juggernaut of Federalist Society Dream List nominees (truth-in-labeling: these people come from the Federalist Society - Weasel 45* has no idea who they are).
Some months back, Ms. Greenhouse also predicted that more and more often, Roberts would have to be voting with the Democratic-nominated Justices to try to protect SCOTUS's integrity from activist Rightist decisions.
That day has arrived, and it remains to be seen if Roberts can keep his Court from getting etched in jurisprudence history next to the reviled Taney Court.
We hope leopards will change their spots, but signs:
https://www.nytimes.com/2018/11/22/opinion/supreme-court-federalist-society.html
along with SCOTUS's reliance on tilted, bogus data:
https://www.nytimes.com/2017/10/18/opinion/supreme-court-justices-factcheckers.html
really aren't encouraging.
As a lifetime resident of the 5th Circuit, it's too darn bad the citizens of Texas can't recover legal fees spent on suits lost by our elected representatives, frivolously trying to block federal government measures they disagree with politically - efforts they know are doomed to failure, but are a gravy train of revenue for activist conservative lawyers.
44
@R. Law - More on why diversity/life experience outside the rarefied Cocoon of Power are essential in the Judiciary:
https://www.nytimes.com/2014/05/06/us/politics/in-justices-votes-free-speech-often-means-speech-i-agree-with.html
20
This excellent article states that in the Fifth Circuit "Five of the 16 active judges are Trump appointees". Since we know the President does not do deep dives into matters, do we know who he listens to for all of these "Trump judges"? These past two years have decimated government relatively quickly. Who or which organization gets an automatic yes stamp of approval from the White House particularly when it comes to the Judiciary?
41
@aunty fascistThe Federalist Society is the source of 45’s nominees.
10
@aunty fascist, decimated the government of the United States. There’s no other way to put it, so fragile was our democracy.
John Adams: “Posterity: You have no idea the price this generation has paid for your freedoms. I hope you use it well.”
@aunty fascist
The Federalist Society. Almost every appointment.
They also support firing 164 administrative law judges and replace merit selection via the spoils system, permitting appointment of their members.
https://www.youtube.com/watch?v=yX1i9ye1xVM
1
Chief Justice Roberts does not want to be known as the reincarnation of Chief Justice Taney. So he will not have the Supreme Court reverse all precedents on a 5-4 vote.
However, if it were to be a 6-3 vote or more, then nothing will be safe.
27
Another good and timely article from the dean of Supreme Court watchers in this country. The lower federal courts are now populated with Federalist Society alumni who understand their jobs to be exactly this -- push hard to the right at every opportunity. They will destabilize and cheapen the very institution they purport to love and respect.
Roberts does appear to be an institutionalist, and one has to wonder whether this particular inflection point will make the Chief into the David Souter of this Court, holding its center by way of stare decisis. How will he distinguish his own vote in the Texas case, if it comes to that? And will Senator Collins betray any remorse for her 3:00 pm Senate Floor press conference about Kavanaugh's nomnation?
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@Christopher
Your reading of the direction of the federal courts is spot on. They are committed to enabling the ongoing tyranny of the minority on the nation. As for what Justice Roberts will become one can only hope that his respect for the court and what it stands for will sustain what credibility the court still has.
With regard to Senator Collins, you are dreaming if you think she will ever acknowledge any regret. She only talks a good game, her actions clearly demonstrate what she truly believes.
461
Roberts can rightly say when/if this case reaches the SCOTUS, that this issue was decided by the earlier decision (although he himself dissented) and that the Fifth Circuit grievously erred in failing to abide by that decision. End of case.
28
@ANDY
And Susan truly believes in money, as evidenced by the large donations that poured in after selling her vote on Kavanaugh.
45
All too often we argue politics when there are non-political system solutions. America's constitutional review is contentious in part because of the time-consuming multiple level select-your-judge constitutional review.
Many countries with constitutional review have constitutional courts. Only the constitutional court can put a law out-of-force (" concentrated review"). They can decided validity before a law takes force without a case or controversy ("abstract review").
We could use a Supreme Court law to direct constitutional review here.
8
How did we get courts who seem to want to decide without regard to facts or the subsequent effects of their decisions?
Did Roberts really not anticipate what the Citizens United decision would do to the country? Do the judges who want to stop abortion really believe they're going to put women's rights back fifty years, put that genie right back in the bottle where they think it belongs? If they are successful, there will be riots in the streets when another Savita Halapannavar case comes along. What are they thinking?
200
Roberts is straddling a fence that separates two fundamentally different problems. The first is his own philosophy about what is right and wrong and how he feels he can interpret the Constitution to align to that sense; the second is a distaste for becoming the Chief Justice who will go down in history along with a few other like John Marshall, for his impact on the Court.
Roberts doesn't want to be the Chief Justice who allowed the US Court system, and the Supreme Court especially, to become nothing more than another political body. It's too late of course, but he is trying to retain some semblance of neutrality. He doesn't want to be the leader of a group of partisan hacks.
I don't think it will swing his philosophy in the libertarian direction that Kennedy settled into- recognizing the right to be left alone from government interference in cases of abortion or marriage rights and other cases involving individual rights . But it may make him cautious and unwilling to be the tie breaker in overturning precedent in partisan matters.
We will see. Will personal philosophy or personal legacy loom as a greater influence?
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@Cathy
I vote for legacy, if for no other reason than it's a bigger ego trip. I believe, as you say, that the court has become politicized, which means it has become the Federalist Society court, (or worse, the Trump court,) not the Roberts court. Roberts wants to seen as the captain of the ship, not the first mate.
14
@Cathy
The question is whether Roberts is trying to maintain the integrity of the courts or trying to cast a veneer of integrity over their partisan takeover.
17
@Cathy
Can you imagine Roberts watching Kavanaugh’s histrionic melt down at the confirmation hearing? He had to know that he was about to become the colleague of an entrenched partisan hack. Thanks to 80,000 voters in a few swing states, a man was put in office who is stocking the federal bench with partisan hacks from top to bottom.
12