"I believe the decision was like planting a bunch of seeds, and we're just starting to see the shoots popping out of the ground," said Roger Evans, who is in charge of litigation for Planned Parenthood of America.
A man has the right to choose... his metaphors.
***
The linked article, by WaPo's Robert Barnes, goes on at length about the conservative/liberal balance on the Supreme Court, the importance of Justice O'Connor's retirement, and the things Justice Kennedy wrote in Gonzales v. Carhart. (Kennedy would in all likelihood cast the deciding vote if there were a 5-4 case on the subject of abortion in the with the current array of Supreme Court Justices.)
Kennedy's [opinion for the majority in Carhart] was shot through with references to government's interest in protecting the unborn and in making sure women knew the consequences of their actions.
But Kennedy made it clear that the pregnant woman gets to make the final call about whether to abort a pre-viability fetus. A ban on abortions after 20 weeks is plainly inconsistent with that. In Carhart, there was absolutely no question that woman got to exercise her choice to end the pregnancy. The issue was only about whether one way of removing the fetus could be banned (when another method remained available).
Not so long ago, it was typical for justices to remain on the court until they died (the exit strategy of 49 of the 103 justices not currently serving) or became enfeebled by age (recall the explanation that Justice Thurgood Marshall gave when he retired in 1991 at the age of 83: “I’m old and falling apart.”) I can’t remember when the country was blessed by the presence of three retired justices who can get themselves from one place to another unaided.
This is a not-too-subtle hint to the older Justices to retire. Please vacate your seats and give some younger folks a shot. And give the young President an appointment. See? We will notice you as you go about giving innocuous speeches and publishes simple enough essays in the New York Review of Books — especially if you tell us you wish you voted differently on some case we journalists disapproved of or indicate you "her dismay at seeing some of her own work 'dismantled' by the current court." Come on out here where we can help you burnish your reputation.
UPDATE: I rewrote the headline, because it was so boring I was afraid no one would read through to the possibly amusing sarcasm.
"While I know Harriet would have made a fine justice, I didn't think enough about how the selection would be perceived by others," Mr. Bush writes. "I put my friend in an impossible situation. If I had to do it over again, I would not have thrown Harriet to the wolves of Washington."...
--After he tapped Roberts for chief justice when William Rehnquist died, he only considered women candidates to replace O'Connor. "I didn't like the idea of the Supreme Court having only one woman."
But Roberts was originally picked for the O'Connor position. The idea of appointing a woman, then, didn't matter all that much.
--There were "frustrating roadblocks" for most of the women candidates. When several senators said they were impressed by Miers, he concluded "she would make an outstanding justice." Miers was "shocked" when he asked if she was interested.
--No one in the White House ever suggested conservatives would revolt over her nomination. Bush suggests the opposition was elitist because Miers didn't go to an Ivy League school and "is not glib."
In addition to Miers, Bush says he considered Patricia Owen, but he thought Miers would be easier to confirm. After all the trouble with Miers, he switched to Alito, who, he writes, was "ill at ease" with Bush at first. Bush relaxed him by talking about baseball.
Bush says wanted to avoid appointing another Souter — Souter, who disappointed Bush's father, by "evolv[ing] into a different kind of judge."
--Roberts was not the unanimous choice. Vice President Cheney and Attorney General Alberto Gonzales backed Judge Mike Luttig. Miers supported Alito. Chief of Staff Andy Card and adviser Karl Rove favored Roberts. (Which means J. Harvie Wilkinson and Edith Brown Clement, the other two contenders early on, didn't have prominent backers.)
--Brett Kavanaugh, now a federal appeals court judge, told Bush Luttig, Alito and Roberts would all be solid justices. He suggested Bush ask a "tiebreaker question" of which man would be the most effective leader. To Bush, that was Roberts.
It seems that Roberts has a special appeal to Bush, who liked his "gentle soul" and "quick smile."
Really, where did the Tea Party come from? Suddenly, it's everywhere. It's all these people congregating at rallies. No leaders. Just spontaneous comings-together. How could that happen? Then, the leaders emerge. Who are these people? They came out of nowhere. And one of them... is a witch!
I count—in his opinion today—seven citations to Justice Kennedy's 1996 opinion in Romer v. Evans (striking down an anti-gay Colorado ballot initiative) and eight citations to his 2003 decision in Lawrence v. Texas (striking down Texas' gay-sodomy law). In a stunning decision this afternoon, finding California's Proposition 8 ballot initiative banning gay marriage unconstitutional, Walker trod heavily on the path Kennedy has blazed on gay rights: "[I]t would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse," quotes Walker. "'[M]oral disapproval, without any other asserted state interest,' has never been a rational basis for legislation," cites Walker. "Animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate," Walker notes, with a jerk of the thumb at Kennedy.
Justice Kennedy? Hot sauce to go with those words?...
Any way you look at it, today's decision was written for a court of one—Kennedy—the man who has written most eloquently about dignity and freedom and the right to determine one's own humanity.
Justice Kennedy is certainly very important in the prediction of what the Supreme Court will do, and Walker may have written with the intent to influence him, but let's give Sandra Day O'Connor the respect she deserves. The line "moral disapproval, without any other asserted state interest,' has never been a rational basis for legislation" is from O'Connor's concurring opinion in Lawrence — and Walker's opinion is clear about that (on p. 133).
No other Justice joined O'Connor, who rested on the Equal Protection ground. Justice Kennedy wrote the majority opinion relying on the Due Process ground — talking about "the heart of liberty" being "the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life." That's what Lithwick refers to in her last sentence about writing "eloquently about dignity and freedom." But the O'Connor opinion in Lawrence will be more important in determining the same-sex marriage question, because that isn't a request to be left alone. It's a request for equal legal status — for recognition from the state.
O'Connor wrote:
Moral disapproval of this group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause.... Indeed, we have never held that moral disapproval, without any other asserted state interest, is a sufficient rationale under the Equal Protection Clause to justify a law that discriminates among groups of persons.
Moral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection Clause because legal classifications must not be “drawn for the purpose of disadvantaging the group burdened by the law.” Texas’ invocation of moral disapproval as a legitimate state interest proves nothing more than Texas’ desire to criminalize homosexual sodomy. But the Equal Protection Clause prevents a State from creating “a classification of persons undertaken for its own sake.” And because Texas so rarely enforces its sodomy law as applied to private, consensual acts, the law serves more as a statement of dislike and disapproval against homosexuals than as a tool to stop criminal behavior. The Texas sodomy law “raise[s] the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.”
... The Equal Protection Clause “ ‘neither knows nor tolerates classes among citizens.’ ” Id., at 623 (quoting Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J. dissenting)).
Let's give Sandra Day O'Connor her due. She said some things no one else said.
ADDED: Indeed, the language from Kennedy's Lawrence opinion that speaks "most eloquently about dignity and freedom and the right to determine one's own humanity" is itself a quote from the plurality opinion in Planned Parenthood v. Casey — which was jointly written by O'Connor, Kennedy, and Souter. Here's Kennedy in Lawrence:
In Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), the Court reaffirmed the substantive force of the liberty protected by the Due Process Clause. The Casey decision again confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Id., at 851. In explaining the respect the Constitution demands for the autonomy of the person in making these choices, we stated as follows:
“These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” Ibid.
Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.
Asserts David Broder, and I have to laugh. 1. There's the inane elevated tone of the writing: "impending elevation," "capstone of the judiciary." You know you're reading bullshit, so, thanks for that. 2. Who can possibly believe the people of Washington are abuzz over the effect Elena Kagan will have on the Supreme Court? 3. Didn't everyone figure out many weeks ago that Kagan, replacing Stevens, is only going to keep things the same?
To his credit, Broder proceeds to posit the theory that is my question #3. He puts it in the mouth of a former attorney general next to whom Broder was seated at a dinner party the other day. Gotta put in the seat-work at those D.C. dinner parties to dig up ideas for WaPo columns, you know. Broder decides this is "probably the conventional wisdom," then begins his next paragraph: "That is what they say, and I have no legal credentials to challenge their conclusion." Yes, but you are some kind of journalist — right? — so you could have asked some more people before you took what that one fellow/lady dribbled out at the dining table as what everyone was saying.
But, as I told my dinner companion...
Oh, lord, the thrill of being transported to this scintillating dinner party, in Washington, with an ancient pundit extracting conventional wisdom from a once-powerful lawyer!
... I suspect that he is wrong and that Kagan's joining Justices Ruth Bader Ginsburg and Sonia Sotomayor on the bench will change the high court in ways that no one foresees.
Quelle riposte! Oh! Would that I could be in such company! The elderly lawyer manages to say something mind-crushingly obvious, and the old pundit, keeping the colloquy going, with no legal knowledge, disagrees.
I say this based on what I saw happen in The Post's newsroom and many others when female reporters and editors arrived, in increasing numbers, starting in the 1970s and '80s.
Now, our trusty columnist does the hard work of dredging up memories from 30+ years ago. I saw those female reporters in the 70s... humming "I Am Woman" as they changed the world of men for the better... And yet you still have your job, cluttering up the pages of the Washington Post with this self-indulgent nonsense. Why hasn't some brilliant lady ousted you yet? I mean, this column has you recounting a conversation that — if I'd participated in it — I'd have gone home feeling ashamed that I'd been so dull at the dinner-table. Yet you serve it up as leftovers in a Washington Post column. And now you are feeding me this warmed over Women's Liberation stuff that is refuted — refudiated! — by the fact that you are still here writing this column.
They changed the culture of the newspaper business and altered the way everyone, male or female, did the work.
And this has something to do with Elena Kagan, coming onto the Supreme Court, where there isn't ONE Justice who hasn't shared that bench with a woman. Stevens — have you noticed? — was the last Justice who served on an all-male Supreme Court.
The women who came onto the political beat asked candidates questions that would not have occurred to male reporters. They saw the candidates' lives whole, while we were much more likely to deal only with the official part of it. So the scope of the candidate profiles expanded, and the realm of privacy began to shrink.
They saw the candidates' lives whole... Broder's elevated diction goes wild. The realm of privacy began to shrink... Please don't reveal your shrinkage problems, Dave! I don't want to hear about your realm... your domain....
He's dredging up material from the 80s "In a Different Voice" Women's Studies era, and it's borderline insulting. It's Broderline insulting.
They also changed the rules for reporters themselves. When I joined the press corps in the 1960 presidential campaign, I was formally instructed by a senior reporter for the New York Times on the "west of the Potomac rule." What happened between consenting adults west of the Potomac was not to be discussed with bosses, friends and especially family members east of the Potomac.
Look out! The floodgates have opened! Broder's going back to 1960!
It was a protective, chauvinistic culture, and it changed dramatically when more than the occasional female reporter boarded the bus or plane.
Hey, Broder. Remember the 90s? How'd you guys do with the Clinton sexual harassment story? Are you keeping up with the allegations against Al Gore?
I don't know how having three strong-minded female justices serving simultaneously for the first time will change the world of the Supreme Court. But I will not be surprised if this small society does not change for all its members.
That's right. You don't know whether 3 women with 6 modern men will be different from 2 women with 7 modern men, and you haven't gotten up out of your antique comfy chair to do one thing to find out. Yet Broder, at this point, has run out of material on his subject. Go to the link and you'll see that he pads out his column with 200+ more words on other Kagan-related stuff that was casually rattling around in his... eminent dome... his venerable cranium... his... nugatory noggin.
But the injunction won't go into effect unless the ruling is upheld on appeal, which is, I think, unlikely. Meanwhile, the nefarious violator of the Establishment Clause is none other than our friendly President, Barack Obama, who says:
"I call upon the citizens of our nation to pray, or otherwise give thanks, in accordance with their own faiths and consciences, for our many freedoms and blessings, and I invite all people of faith to join me in asking for God's continued guidance, grace, and protection as we meet the challenges before us."
It's that special day when the President pushes you to pray... or otherwise give thanks... depending on how you feel about these things.
The architects of the Rehnquist federalism revolution....
Go to the link for some detail on what Greenhouse likes to call the "federalism revolution."
.... were Chief Justice William H. Rehnquist and his fellow Arizonan, Justice Sandra Day O’Connor (Chief Justice Rehnquist was actually from Milwaukee, but he decided during his Army service in North Africa that he liked the air of the desert rather than the cold and damp of the Great Lakes.) They were Westerners to whom the notion of states’ rights came naturally.
But Chief Justice John G. Roberts Jr. is not William Rehnquist, and Justice Samuel A. Alito Jr. is not Sandra Day O’Connor. John Roberts has made his career inside the Beltway ever since coming to Washington to clerk for Rehnquist. As for Sam Alito, I don’t believe that apart from a brief part-time gig as an adjunct law professor, this former federal prosecutor, Justice Department lawyer and federal judge has cashed a paycheck in his adult life that wasn’t issued by the federal government. Nothing in their backgrounds or in their jurisprudence so far indicates that they are about to sign up with either the Sagebrush Rebellion or the Tea Party.
Chief Justice Roberts appears particularly in tune with the exercise of national power.
Here, Greenhouse notes 2 dissenting opinions —Massachusetts v. Environmental Protection Agency, where Roberts would have saved the EPA from the state's lawsuit to force it to deal with global warming, and Gonzales v. Oregon, where Roberts would have let the United States attorney general keep doctors from prescribing the suicide drugs that were authorized by Oregon law.
Finally, Greenhouse aptly observes that even some of the Justices who favor the states in federalism decisions lose their nerve when they are confronted with "issues that people really care about." Chief Justice Rehnquist balked when he got to the Family and Medical Leave Act (in Nevada Department of Human Resources v. Hibbs) — and that case was only about whether an employee of a state could get back pay when the act was violated, not the more momentous question of whether the act was constitutional or could bind the state.
So now we have a monumental new law. Can we really imagine the Supreme Court thwarting it?
John Roberts is an acutely image-conscious chief justice, as watchful and protective of the Supreme Court’s image as he is of his own. I find it almost impossible to believe that this careful student of history would place his court in the same position as the court that has been rewarded with history’s negative judgment for thwarting the early New Deal.
But the Supreme Court got cold feet about standing up to the will of the democratic branches of government right after Franklin Roosevelt won a big landslide election in 1936. The health care reform law followed an election that wasn't about health care reform at all. The main thing people were thinking about when they voted for Obama in 2008 was the dramatic economic crisis. There were also the 2 wars and amorphous hopes for a post-racial America.
The 2008 election cannot be read as a mandate for health care reform, especially not for the aspect of it that is challenged in the current lawsuits: the individual mandate to buy health insurance. That could not possibly have been foremost in the voters' minds. First, during the campaign, Obama spoke emphatically against it. And second, even after a year of talk about the reform, people don't really understand what the individual mandate is going to be.
There isn't a big majority of Americans who are counting on being compelled to buy insurance. There isn't even a majority — even a thin majority — of Americans who favor the health care reform as a whole, and this is even before they need to confront something that is probably going to shock and distress a lot of people who haven't studied the text of the law and have simply trusted that the government is about to give them the good things they need.
Greenhouse tries to patch this hole in her argument:
Midweek polls showed the public already rallying around the new health care law. That trend is likely to accelerate as people realize that the law’s benefits belie the scare stories — just around that time that the state challenges are likely to reach the Supreme Court. It won’t require a summa cum laude in history from Harvard to be able to tell history’s wrong side from its right.
The Wisconsin resident said that her attempts to schedule an abortion in that state turned into a bureaucratic nightmare when she attempted to go through her insurance provider. She subsequently made an appointment to have one in three weeks in Illinois. But within three days of the appointment, she miscarried, she said.
"I thought a lot of people would be responding about having to cross state lines to get an abortion, but a lot of it has also been [about] whether you should be sad about miscarriage," Trunk told ABCNews.com. "I think the issue surrounding the three-week wait is controversial, but not the relief."...
"If the public at large had to face up to the fact that not every miscarriage is met with a vale of tears, that could have a dramatic impact on how we regard pregnancy, abortion, and women's diverse experiences with our reproductive functions," wrote Amanda Marcotte in the women's issue blog, "XX Factor."
Oh, Amanda Marcotte is there with the commentary. I've had my issues with Marcotte over the years, but did you know that Penelope Trunk once interviewed me, then blogged that her attempt at interviewing me was a "bust" and proceeded to explain what she thought I said and got it completely wrong? When I blogged about that, she showed up in the comments and it didn't go too well.
As for Marcotte and Trunk's attitude toward abortion, it does not help the cause of abortion rights. Abortion rights are most firmly grounded in the recognition of the pregnant woman's serious search for meaning. As Justice O'Connor wrote in Planned Parenthood v. Casey:
Our cases recognize "the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child."... Our precedents "have respected the private realm of family life which the state cannot enter."... These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.
If this process of finding meaning excludes respect for the potential life of the unborn, it becomes much harder to accept the woman's right to freely choose. Should Trunk (and Marcotte) pretend to care? It would be a good strategy for preserving abortion rights, I think. But shouldn't we want to hear the truth?
Hmmm. I'll just note that Ruth Bader Ginsburg and Sandra Day O'Connor also over-enunciate. It actually sounds judge to me. Perhaps lady judge.
UPDATE: I've misspelled Coates's first name, and he's cursed me and connected me to racism because of that. Maybe spelling to him, like pronunciation, rubs a sore spot.
