July 2, 2022

More on Dobbs

Having already read Justice Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization, when the Supreme Court announced its final decision, I decided that my time would be better spent reading the dissenting opinion from Justices Breyer, Sotomayer, and Kagan. Doing so proved very enlightening, and it’s a project I recommend to anyone with the interest and time to take it on. Or you can read below my observations on what the three justices wrote. (My initial essay on Dobbs is here.)

As you might suspect, the three dissenting justices are unimpressed with the reasoning of the majority. Supreme Court justices are not in the habit of calling their colleagues nasty names, but, within the bounds of judicial decorum, I think it fair to say that their dissent is scathing. Their view of what the reactionary justices in the majority were about is best captured in this analysis: 

The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them. The majority thereby substitutes a rule by judges for the rule of law.

Much of the dissent is about the flimsy rationale offered for overturning Roe and Casey and the disdain shown by the majority toward both judicial convention and American women.

The Roe decision is nearly 50 years old. The Casey decision came fifteen years later, affirming the basic finding of Roe while rejecting its trimester scheme of Roe and introducing the undue burden standard limiting state-imposed restrictions on abortions.

Breyer, et al., argue that Americans have come to rely on the right to abortion. Extinguishing that right will have profound consequences, particularly for poor women. The court’s majority dismisses the reliance interest of women, however, and argues that any reliance interest that militates against rejecting a prior decision must be “very concrete,” involving, for example, contracts. The dissenters observe

The majority’s refusal even to consider the life-altering consequences of reversing Roe and Casey is a stunning indictment of its decision.

The propriety of overturning Roe and Casey turns on the validity of the decisions themselves—the dissent actually focuses on Casey, as it was the ruling opinion prior to Dobbs—and on the doctrine of stare decisis, the legal principle that, absent compelling reasons to do otherwise, previous opinions should be respected.

 Breyer, et al., explain that the right to seek an abortion was predicated on the concept of personal liberty derived from the Fourteenth Amendment. In Casey, the court struck a balance between state interests and those of the individual woman. In Dobbs, however, the interest of the woman disappears. The court, they say, does not believe in balance.

Why did the court not recognize a right to abortion in the Fourteenth Amendment? The answer involves the perverse notion of originalism, a legal concept not actually called out by name in the dissent. According to the dissenters, the majority was interested in only one question: Was the right to an abortion understood as a consequence of the Fourteenth Amendment when it was adopted in 1868? Of course, no one suggests that it was. If you buy into the notion that the meaning of a constitutional provision is forever fixed at the time of its adoption—this is the essence of originalism—then you must conclude that there was not a right to abortion in 1868, and, therefore, there is not one in 2022.

We should not be shocked that the court was willing to toss out half a century of legalized abortion based on what men thought in 1868. (Women had no voice in governing back then.) For example, in her confirmation hearing before the Senate Judiciary Committee, Amy Coney Barrett declared that originalism is the system of legal interpretation to which she is committed. As she explained,

I interpret the Constitution as a law, that I interpret its text as text, and I understand it to have the meaning that it had at the time people ratified it. That meaning doesn’t change over time, and it’s not up to me to update it or infuse my own policy views into it.

 Breyer, et al., reject this strange view and point out that the court has recognized other rights not enumerated in the Constitution and not recognized in 1868. Frighteningly, Justice Thomas is well aware of this and plans to do something about it in the future.

The dissent offers a long discussion regarding the circumstances in which a prior court ruling may properly be overturned despite the default inaction demanded by stare decisis. It is not enough—non-lawyers may be surprised by this—that a case was wrongly decided. There must be special circumstances that demand a correction. What has changed since Roe and Casey were decided? Nothing of substance. Only the philosophy of a majority of the justices has changed. Ironically, whereas the current court is returning the question of abortion to a time decades ago, many other countries have, in recent decades, expanded abortion rights.

The majority opinion cites a number of cases that were subsequently overruled to justify their action in Dobbs. The dissenters analyze each of these and find significant changes in society to justify the original decisions being overturned. They do not provide appropriate models for the decision in Dobbs.

The dissenters note that the legitimacy of the court is built over time, but that “it can be destroyed much more quickly.” They conclude their remarks with this observation:

In overruling Roe and Casey, this Court betrays its guiding principles.

June 29, 2022

Schroeder Update 13

I continue to work with my rescue cat, Schroeder. Schroeder was not particularly animated at first. He now seems much more like a normal cat. He plays with toys. He responds to catnip. He uses a scratching post. (A post my other two cats never used has been happily adopted by Schroeder.)

Schroeder shows no inclination to become a lap cat. But whenever I walk into the room, though, he walks up to me to get head scratches and other pets. He is an amazingly quiet cat and seems to have more of a quiet squeak than an actual meow.

This cat is amazingly adept at avoiding being photographed. I’ve tried to get video of him playing with a little ball, which he does with great enthusiasm. The moment I point a camera in his direction, he stops doing whatever I was trying to capture in a picture. Here is one picture I did manage to capture; Schroeder is enjoying a catnip cigar:
 

Schroeder with catnip toy
Schroeder with catnip toy

 
When I first brought Schroeder indoors, I confined him to a single room, a home office. He adopted two cozy corners where he tended to hang out. He gradually spent less and less time there, spending more time out in the open or on the back of the couch, where he can look out the windows.
 

Schroeder by couch
Schroeder by office couch


Schroeder at window
Schroeder at office window

 
Lately, I have been leaving the office door open, giving Schroeder the run of the first floor. (My cats Linus and Charlie are downstairs.) He was at first reluctant to venture out into the hallway, and when I followed him to see where he would go, he immediately ran back to the safety of the office.

Happily, Schroeder has not only become more comfortable outside the office, but he has even adopted a new favorite place. I now often find him on a chair facing the glass doors to the back deck. I once tried to sit next to him on the chair, but he jumped down from the chair as soon as I sat down. 

Schroeder on chair
Schroeder on his new favorite chair


Schroeder in living room
Schroeder in the living room

 
Apparently, I’m not going to make Schroeder into a lap cat anytime soon. He is charming in his own way, however, and I think it’s about time to find him a forever home. Once I realize I could not simply return him to the outdoors, that has been the plan.


Note: Schroeder’s story to date can be followed here.

June 28, 2022

Urging the President to Action

I wrote to President Biden today. My message may be read below.

 
Dear Mr. President:

Our democracy is rapidly being dismantled, engineered by a rogue Supreme Court, a feckless Senate, and aided by undemocratic structural features of our Republic. The court has undermined the wall separating church and state, gutted Miranda rights, favored gun “rights” over concerns for public safety, and, most disturbingly, consigned women to second-class citizenship. The court has not completed its reactionary program, and Congress seems unable to come to the aid of our democracy.

The upcoming midterm elections have the potential to make democracy’s plight considerably worse. History presages significant Democratic Party losses in the fall, and your personal approval rating hardly suggests otherwise.

On one hand, your anemic approval rating is unfair. Your administration can claim real accomplishments and cannot logically be blamed for high inflation. But people are justifiably dissatisfied with the status quo. They cannot banish COVID, fix supply chair problems, or roll back price increases posted primarily to increase profits. The party in power invariably takes the hit for the sort of dissatisfaction people are now feeling.

You have acted decisively in the foreign policy arena, but it is a rare voter who is much influenced by that. Alas, you have been less than resolute regarding your domestic agenda. Now, however, is the time for forceful action. Not only will that strengthen the Republic, but it will also, I suspect, increase Democratic prospects in November.

The most obvious issues to address are gun laws, abortion, and the Supreme Court itself. Having just enacted mild gun legislation, Congress is unlikely to want to revisit the matter. I urge you to lean on Congress—essentially, that means on certain Democratic senators—to pass a bill creating federal abortion rights and overriding the many restrictive laws being enacted by Republican state legislatures. This is urgent! If doing this means the filibuster must go—it does—then so be it. If serious arm-twisting is required, by all means, employ it. A majority of Americans will applaud you and may even rethink their voting for Republicans—any Republicans.

An out-of-control Supreme Court drunk with newly acquired power is a more difficult problem and a more concerning one. The most obvious corrective is to pack the court. A nine-justice court is not sacrosanct. Impeachment of some of the justices should also be considered. The charges: misleading senators about their willingness to overturn Roe and having voted to extinguish a human right acknowledged for half a century, and not enjoining laws that were clearly unconstitutional as long as Roe was still the law of the land. Given his own actions and those of his wife, there are independent reasons to want to impeach Justice Thomas.

Even if the impeachment of certain justices fails, the shot across the bow of the Good Ship Supreme Court could have a corrective effect, at least in the short term.

Please, Mr. President, show yourself to be a strong chief executive willing to take strong action to preserve our democratic Republic.

Very truly yours,

Lionel E. Deimel, Ph.D.
Indiana, Pennsylvania

June 27, 2022

Dashboard

I ran across a draft poem the other day that I never did anything with. I’ll clean it up a bit and post it below. It probably is not one of my better efforts. I have no idea when I wrote this.

Dashboard

I’m a fine chap, really—
Friendly, a good conversationalist,
Articulate, but not garrulous.
When I start the engine,
Why does my car confront me
And call me “Airbag?”

June 25, 2022

A First Reaction to Dobbs

I am extremely upset by the Supreme Court’s having overturned Roe v. Wade yesterday in Dobbs v. Jackson Women’s Health Organization. I need time to read the opinion—opinions, actually—carefully and spend time developing a response that goes beyond fear and outrage. For now, I can only offer a few off-the-cuff observations with the promise of a future more thoughtful response.

What was published by the court lacks a table of contents, and the fact that the file is 213 pages long makes it difficult to find individual items within it. For the benefit of any reader who wants to navigate to particular sections, I offer a high-level table of contents below. Note that the page numbers refer to the pages in the PDF file, as sections are individually numbered beginning at 1.

Section  Page No.
Syllabus1
Opinion of the Court (Alito)9
      Appendix A87
      Appendix B109
Concurring (Thomas)117
Concurring (Kavanaugh)124
Concurring in Judgment (Roberts)136
Dissenting (Breyer, Sotomayor & Kagan)148
      Appendix208

The Dobbs decision was not unexpected, given the leaked draft opinion from Justice Alito. The appearance of the actual decision was nevertheless more shocking than I was prepared for. Most upsetting was the explicit suggestion by Justice Thomas that the court may not be done with extinguishing established rights. The court has sent decisions about abortion law back to the states. Will the same be done by this court for sodomy law, contraception law, miscegenation law, and sex-neutral marriage law? (Will Thomas ultimately have to divorce his white wife?) Buckle your seatbelt!

The trajectory of this court is frightening. We must do something to interrupt its retrogressive program. I’m not sure what that something might be, but Democrats need to figure it out. I hope that enough American voters will pass up voting for Republicans and instead elect more Democrats.

Many have observed that Roe was not a strongly argued opinion. Even Justice Ruth Bader Ginsburg was uncomfortable with it. The current court apparently took that opinion at face value and had no interest in finding a firmer constitutional basis for a right to abortion. My suspicion is that the justices had an agenda of killing Roe, and no reasoning, logical or legal, really mattered. After all, Donald Trump promised to put justices on the court who would overturn Roe. He fulfilled that promise three times.

I believe that the Supreme Court has made women permanent second-class citizens. Rather than writing more about this, I refer readers to a post I wrote back in May, A Comprehensive Examination of the Abortion Question. Perhaps in better times, my arguments will be availing.

For now, I have just one more observation. In the future—I hope not the exceedingly far future—Dobbs will be forever linked to Dred Scott v. Sandford and other disastrous Supreme Court decisions.
 

Don’t vote for Republicans.

June 23, 2022

Two Rediscovered Limericks

I’ve been going through old papers and came upon some poems I have never made public. The poems—limericks, actually—were written in April 2006.

The two poems below were written by me with the help of a friend. A decade and a half later, I cannot remember just who contributed what to them.

Robert W. Duncan
Robert W. Duncan
Some context: The poems refer to Robert W. Duncan, who was the Episcopal Bishop of Pittsburgh in 2006. Duncan had been plotting the removal of the diocese from the Episcopal Church. Two years later, he partially succeeded, separating a majority of its parishes from the diocese but failing to abscound with the diocese itself and a smaller number of its parishes. The schism was effected only after the Episcopal Church had already deposed Duncan a few weeks earlier.

For readers unfamiliar with recent Episcopal Church history, I should explain that “a canon named Vicky” in the second poem refers to Vicky Gene Robinson, a canon and gay man who was elected Bishop of New Hampshire. (Why Bishop Robinson has an odd Christian name is another story.) Bob Duncan opposed homosexuality and the ordination of homosexuals. The church’s stance regarding homosexuals was a major rationale Duncan cited justifying his schismatic actions.

Finally, the word “nawab,” also in the second poem, is likely unfamiliar to most readers. It is pronounced with the accent on the second syllable. It is a synonym of “nabob,” a more common word but one that would have created an inferior rhyme.

The poems—

Bishop Bob #1

There once was a bishop named Bob
Who was unfulfilled by his job;
To be a big fish
Was his passionate wish,
So he’d lie, cheat, deceive, plot, and rob.


Bishop Bob #2

There once was a bishop named Bob
Who yearned to become a nawab;
Soon a canon named Vicky,
Whose sex life was icky,
Spurred the bishop to seek a new job.

June 19, 2022

Texas Republicans on Dismantling America

Nearly two weeks ago, I posted “A Democratic Platform for 2022.” This was a minimalist list of policy positions intended to appeal to voters who, in large numbers, are in sympathy with them. I remarked that Democrats “should be dismissive of other matters raised by their opponents and avoid being dragged into complex arguments they are unlikely to win.”

I stand by what I wrote in my Platform, but I was perhaps naïve regarding the range of “other matters” GOP candidates might raise or be tempted to raise. I was astonished and horrified when I read a description offered by Heather Cox Richardson of platform planks recently adopted by the Republican Party of Texas. In her June 18 essay, she wrote

Republican Party of Texas Logo

[D]elegates to a convention of the Texas Republican Party today approved platform planks rejecting “the certified results of the 2020 Presidential election, and [holding] that acting President Joseph Robinette Biden Jr. was not legitimately elected by the people of the United States”; requiring students “to learn about the dignity of the preborn human,” including that life begins at fertilization; treating homosexuality as “an abnormal lifestyle choice”; locking the number of Supreme Court justices at 9; getting rid of the constitutional power to levy income taxes; abolishing the Federal Reserve; rejecting the Equal Rights Amendment; returning Christianity to schools and government; ending all gun safety measures; abolishing the Department of Education; arming teachers; requiring colleges to teach “free-market liberty principles”; defending capital punishment; dictating the ways in which the events at the Alamo are remembered; protecting Confederate monuments; ending gay marriage; withdrawing from the United Nations and the World Health Organization; and calling for a vote “for the people of Texas to determine whether or not the State of Texas should reassert its status as an independent nation.”

The Republicans responsible for these policy positions seemingly take no arrangements in society as given. They have no right to suggest that raising the minimum wage or forgiving student loans is in any way “radical.” These Texans seem to have cornered the market of radical. Their platform, I suggest, would find favor among few American voters.

It is unlikely that Republicans nationally will espouse the sort of platform articulated by their Texas colleagues, but it would be unwise to assume that the views of Texas Republicans are confined to the Lone Star State. I have suggested that a vote for any Republican is a vote to dismantle our democracy. It may actually be a vote to dismantle our entire civilization.

Of late, I have heard many questions regarding what Democrats actually stand for. They stand for, among other things, the negative of every plank adopted by GOP Texans. Well, perhaps Democrats would support the last plank Heather Cox Richardson mentioned.