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I’m seeing a lot of comments such as this one on Media Girl:

But now, our last line of defense for Roe v. Wade before it’s inevitably overturned (Roberts has actually argued that Roe was “wrongly decided and should be overruled”) is the Senate.

Even if Roberts is confirmed (and let’s face it - he will be), that doesn’t make it inevitable that Roe and Casey will be overturned. Although it’s impossible to know for sure, with Roberts replacing O’Connor, there are probably four votes for overturning Roe: Roberts, Rehnquist, Thomas, and Scalia. That still leaves a five-vote majority against overturning Roe: Ginsberg, Kennedy, Breyer, Souter, and Stevens. Bush will have to replace one of those five with an anti-Roe vote before Roe can be overturned, and it’s not certain he’ll get a chance to do that.

I’m not saying that it’s a bad idea to plan for how to respond if Roe is overturned, but let’s not call it “inevitable” just yet.

However, even if Roe isn’t overturned, abortion rights can still be chipped away at. With Roberts on the court, the previously unconstitutional “Partial Birth” Abortion ban will probably become constitutional. But even after that happens, there will be further lawsuits to determine how the PBA ban is interpreted - pro-lifers will want to interpret it broadly to ban a lot of abortions. But even with a majority of the Court favoring a PBA ban, it’s not certain that a majority of the Court would accept a broad interpretation of the PBA ban. (In particular, I think it’s possible that Justice Kennedy, who would be the new swing vote, would balk at that.)

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UPDATE JULY 13, 2005:

While it’s unclear whether this means another vacancy will occur in the Supreme Court, it’s evident that Rehnquist’s days are numbered, at least with regards to his service. This comes as a frightening, while not unexpected blow to liberals around the country.

For obvious reasons, a concurrent vacancy with O’Connor’s is filled with concern and ‘what if’s with regards to the appointments that are to take place. News has been released that late last night Rehnquist was rushed to the hospital for a spiked fever, likely relating to the thyroid cancer.

July 13 (Bloomberg) — U.S. Chief Justice William H. Rehnquist, who is fighting thyroid cancer, was admitted to the hospital last night with a fever, the Supreme Court said.

Rehnquist, 80, was taken by ambulance for observation and tests to Arlington Hospital in Virginia and remains there today, court spokeswoman Kathy Arberg said.

In another blog article earlier this month I created a liberal ‘cheat sheet’ for the potential nominee’s. This news has come along with more SCOTUS nominee gossip that First Lady Laura Bush has been urging the president to consider another female nominee since they are confident of their hispanic base. The name bandied about is Judge Edith Brown Clement of the 5th Circuit Court. This particular bit of SCOTUS gossip also implies that Alberto Gonzales is not in the running.

It is unclear how seriously the president ever regarded Gonzales as a potential court choice or if he was steered away from Gonzales at the urging of conservatives who want Bush to move the court to the right in its judicial philosophy.

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From the New York Times:

The decision, by a three-judge panel of the United States Court of Appeals for the Eighth Circuit, in St. Louis, was the first that an appeals court has issued on the ban, which Congress approved in November 2003 with the strong backing of President Bush.

The ruling, written by Judge Kermit Edward Bye and joined by Judges James B. Loken and George G. Fagg, found the law unconstitutional because, while making an exception to the ban to protect the life of a pregnant woman, it made no such exception to preserve her health.

That an appeals court has now ruled on the matter moves the law one step closer to a likely review by the Supreme Court, perhaps in the coming term. In a rare point of agreement between adversaries in the abortion debate, advocates on both sides said the stakes had now been raised even further in Mr. Bush’s selection of a nominee to succeed Justice Sandra Day O’Connor.

The Eighth Circuit’s ruling rests heavily on a decision by the Supreme Court, which, in Stenberg v. Carhart five years ago, struck down such a ban that had been enacted by Nebraska. Before Justice O’Connor announced her retirement last week, the balance on the court in favor of a constitutional right to abortion was 6 to 3. But in Stenberg, the majority was only 5 to 4, with Justice Anthony M. Kennedy voting to sustain the state ban and Justice O’Connor’s vote making the majority.

(Related post from the archives: Judge Richard Kopf’s decision overturning the PBA ban, which the Eighth Circuit has now upheld.)

It’s scary to think that, probably, the Supreme Court will rule that women’s health does not matter.

And it’s impressive how successfully pro-lifers have manipulated this issue. The legal controversy is not, and never has been, whether or not “partial birth” abortion (whatever that means) can be banned. It can be. If the Republicans hadn’t obstructed it, a PBA ban would have become law years ago, and the Courts wouldn’t have objected.

The primary legal controversy about PBA bans is, does protecting women’s health matter? The Supreme Court, in Carhart, said “a State may promote but not endanger a woman’s health when it regulates the methods of abortion” and that “the absence of a health exception will place women at an unnecessary risk of tragic health consequences.” In other words, they ruled that women’s health matters.

Republicans passionately oppose the idea that women’s health matters, and therefore have blocked PBA bans that protected the mother’s health. I find their view barbaric.

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Le’ts face it: It’s not possible for Democrats in the Senate - not even if they’re 100% united, which they aren’t - to block a right-wing, anti-Roe Bush nomination to the Supreme Court.

My email and blog-reading lately has been stuffed full of calls to action - Call your senator! Donate! It’s time to get mobilized! From the LA Times:

Meanwhile, the liberal People for the American Way will “definitely be spending millions of dollars” if necessary to fight an objectionable nominee, vice president Elliot Mincberg said. The National Abortion Rights Action League transformed its website Friday so that visitors could donate time and money to a Supreme Court vacancy campaign.

I have to wonder - why? When it comes to who replaces O’Connor, we’ve already lost. The Republicans have a strong voting majority, and if necessary, they’ll use the “nuclear option” to prevent the Democrats from staging a successful filibuster. And if every single liberal in the country writes their senators, you know what? The Republicans will still have all the votes they need.

The Democrats have lost election after election after election, and when you lose that often you don’t get to choose Supreme Court justices. Nor do the Republicans have a politically realistic option of backing down; their base, so forgiving in so many ways, would never forgive a replacement for O’Connor whose opposition to Roe is less than total. Ed Kilgore has an accurate take on the situation:

This appointment represents the giant balloon payment at the end of the mortgage the GOP signed with the Cultural Right at least 25 years ago. Social conservatives have agreed over and over again to missed payments, refinancings, and in their view, generous terms, but the balance is finally due, and if Bush doesn’t pay up, they’ll foreclose their entire alliance with the Republican Party.

Sure, they care about other issues, from gay marriage to taxes to Iraq, but abortion is the issue that makes most Cultural Right activists get up in the morning and stuff envelopes and staff phone banks for the GOP. And for decades now, Republicans have told them they can’t do anything much about it until they can change the Supreme Court. With a pro-choice Justice stepping down, the subject can no longer be avoided. And thanks to the Souter precedent (and indeed, the O’Connor and Kennedy precedents), there’s no way Bush can finesse an appointment that’s anything less than a guaranteed vote to overturn Roe.

Some people may respond that I don’t appreciate how essential this might be. Look, I agree - it’s unbelievably essential. But just because it’s essential we win doesn’t mean we have the ability to win.

Let’s not fool ourselves - O’Connor’s replacement will be a loyal conservative, anti-Roe and predictably right-wing in all of her or his opinions. There is no way we can prevent this outcome. Knowing this, it’s hard for me to be enthusiastic about letter-writing or fund-raising based on trying to influence who replaces O’Connor. Wouldn’t it be better to reserve our energy for campaigns that aren’t completely, utterly hopeless?

P.S. Don’t take this as my saying that Roe is lost. Even with O’Connor’s vote replaced by a pro-life vote, there remains a 5-4 majority in favor of Roe (or, strictly speaking, in favor of Casey). People thought Roe was dead during Reagan, too - and that was about 20 years ago.

Links via Balloon Juice, which has an interesting list of quotes from conservatives, and Pressthink.

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And then there were five…

After last week’s buzz about Rehnquist’s possible retirement, today has brought an interesting new development. While it has been widely known that Justice Sandra Day O’Connor has made it clear she intended to retire prior to 2008, and likely prior to December of this year, she has apparently handed in her resignation to the White House this morning:

Supreme Court Justice Sandra Day O’Connor, the first woman to serve on the high court and the key swing vote in some of the nation’s highest-profile cases, announced her resignation Friday.
In a letter to the White House, the moderate conservative, said she will step down when her successor is confirmed.

Appointed by President Ronald Reagan in 1981, she is now retiring at age 75. O’Connor was the first woman US Supreme Court Justice and while a staunch Republican supporter, has been considered among the moderate’s of the Republican camp. As one of the 6-3 majority in most pro-choice issues, the news comes as a shattering blow to women’s rights, the likelihood of a nominee that is absolutely anti-choice extremely likely, if not an absolute. In a related post, the potential nominee’s were discussed last week when the speculation over Rehnquist’s retirement was occurring.

Perhaps the most ominous words that loom on the horizon are the words of President Bush, himself who said this with regards to his nomination considerations:

On Friday, Bush said he is looking for candidates “who meet a high standard of legal ability, judgment and integrity, and who will faithfully interpret the Constitution and laws of our country.” [emphasis mine]

At any rate, there goes the neighborhood folks. Welcome to the Big Top, circa 2005.

First woman to serve as US supreme court justice retires

Justice Sandra Day O’Connor, the first woman appointed to the United States’ supreme court, today announced her retirement, paving the way for an ideological battle over her successor.

In the divided supreme court, Ms Justice O’Connor was a crucial figure who often cast the deciding vote on contentious issues such as abortion. Her appointment in 1981, by the then president Ronald Reagan, ended 191 years of male exclusivity in the high court.

I’m going to use this post to post interesting quotes from around the Blogosphere, so I’ll be updating it as I browse.

From Orin Kerr of the Volokh Conspiracy (and via Dispatches from the Culture Wars):

9. O’Connor’s retirement may shift the Court a lot less than people think. In the big ideological cases of the last Term, Justice Kennedy was the swing vote as often as (or maybe even more often than) Justice O’Connor. Let’s assume for now that O’Connor is replaced by a consistently more conservative Justice; even if that’s true, the left-of-center Justices presumably still have 4 very reliable votes and a good shot at picking up a 5th vote with Kennedy. Plus, new Justices are hard to predict, and it’s often hard to tell whether a new Justice will vote consistently one way or another.

10. We’re likely to hear a lot about the future of Roe v. Wade in coming weeks and months. The common wisdom, assuming no shifts in votes from past cases, is that the 8 remaining Justices include 5 votes for Roe (RBG, SGB, DHS, JPS, AMK) and 3 against (AS, CT, WHR). On the constitutionality of partial-birth abortion bans, the common wisdom is that the 8 remaining Justices split 4 to 4, with Justice Kennedy switching as seen by his vote in Stenberg v. Carhart.

* * *

Marty Lederman at SCOTUSblog is putting together a list of important decisions in which O’Connor was the swing vote.

* * *

Bitch, PhD writes:

I predict the death of Roe V. Wade.

Sandra Day O’Connor just announced her retirement. And Rehnquist is dying.

There goes our 5-4 lead.

Actually, Roe has a 6-3 lead. So Roe is safe for now, unless at least one more of the six anti-Roe votes retires. Rehnquist is firmly anti-Roe, so replacing him with another Justice can’t hurt Roe.

However, O’Connor was the swing vote on “Partial Birth” abortion, so there’s a good chance that pro-lifers are finally going to be able to get through a PBA ban that has no provision to protect the woman’s health.

* * *

From Project Nothing:

IF YOU’RE NOT WATCHING CABLE NEWS - It’s basically playing out like you’d expect. Republicans are already painting Democrats as obstructionists by saying “not letting the president have his nominees”? confirmed is a “fundamental misunderstanding of democracy”? and the Democrats are screaming for a moderate which is, like I said, someone who will not overturn Roe v. Wade.

* * *

From Jesse at Pandagon:

Some are saying that we should draft Prado, however, I just support replacing the entire court with Galactus, who is not only truly impartial, but also reserves the right to eat all of us should the mood strike.

* * *

From Nathan Newman:

The trap for progressives on the nominations fight for O’Connor’s successor is just to talk about abortion and other social issues. We need to split social conservatives away from their corporate allies and highlight the rightwing ECONOMIC views of potential nominees.

The Supreme Court is the interpreter of legislative statutes and they can either enforce them strongly on behalf of the rights of middle class families or they can give corporations a free pass to loot pensions, poison the environment and violate their employees rights at work.

We need to wedge the opposition base and, even if some Bush supporters cheer an anti-choice nominee, we should raise questions with them about why that nominee also screws workers in all their legal decisions and never really punish corporations for their wrongdoing.

* * *

From Mark Graber on Balkinization:

Justice O’Connor’s resignation today raises interesting questions about her political identification. If one reads many far-right wing sites, O’Connor was a liberal, barely distinguishable from Justice Ginsburg, if not Jesse Jackson. Yet, if the rumors of her comments when Gore was thought the victor of the 2000 election are correct, and there is some truth to claims that Justices try to time resignations, Justice O’Connor clearly preferred that Bush appoint her successor than Gore. Apparently, her efforts to push the court to the right on such matters as federalism and takings were far more important to her than the occasional vote to overturn a particularly eggregious death sentence and the privacy cases.

The most interesting question now is whether the Bush administration will try to defend its version of judicial activism or, more typically, deny that the administration has any agenda other than vague strict construction. At least Democrats openly admit the forms of judicial activism they favor.

* * *

LiberalOasis has a good post on fighting Bush’s nomination (assuming that nomination is unacceptable from a lefty point of view - which seems like a safe assumption).

Bush V. Choice has a collection of “What you can do” links.

* * *

From Ezra Klien:

So here’s a question: can we actually block anyone that Bush wants? The last heroic victory was the rejection of Robert Bork, and that was pulled off by a 55-45 Democratic majority. I guess we can filibuster, at least assuming the nuclear option can be blocked, but what, realistically speaking, is the plan here? Make a judgment call, shut down the Senate over Luttig, and hope we win the aftermath? With party loyalty as strong as it is in this era — even Janice Rogers Brown got confirmed, contrary to Graham’s predictions that she wouldn’t — do Democrats have any possible chance of winning this without a filibuster?

And from “Jim” in Ezra’s comments:

The best the Dems can do is to conduct a spirited information campaign. We should fight a bad candidate, but any Bush choice is unlikely to be centrist like O’Conner. Only if the nominee is as bad as Janice Rodgers Brown should the Dems conduct a filibuster, since we will be labelled as obstructionists by the media - with a unified GOP attack and distortion machine behind them.

This does not mean rolling over for Bush, or voting for a bad nominee. United Dem party opposition is even more important if you are going to lose since making the electoral choices for the future depends on CHOICE - we must be an alternative.

Many soft Dems will vote with Bush once they know the Dems can’t prevail. That is one of the principal reasons the party is weak.

* * *

Scott at Lawyers Guns and Money concurs that O’Connor’s retirement doesn’t mean that Roe is doomed - but it’s certainly cause for concern.

Having said that, this is not to say that O’Connor’s replacement doesn’t matter for abortion right–far from it. First of all, it means that the “partial birth abortion” ban passed by Congress will almost certainly be upheld, something that has all kinds of potential for mischief. It also means that the chances of abortion regulation meeting the “undue burden” test has become greater. And, of course, even if the effect of replacing O’Connor is to make the vote for upholding Casey 5-4 rather than 6-3, that’s obviously not trivial. John Paul Stevens is 85. Ruth Bader Ginsburg is 72 and has had cancer. As today’s announcement reminds us, Supreme Court resignations are unpredictable; we could easily see a dam burst, as happened in the 30s, and we don’t know who will be in the White House in 2008. So, no matter what Kennedy’s current views are, O’Connor’s resignation and replacement matter a great deal for reproductive freedom.

…MJD brings up another point in the comments below. I do think that overturning Roe would not, on balance, be good for the Republican Party. My guess, though, is that this doesn’t really matter to Bush. If he’s willing to make social security privitization the domestic centerpiece of his second term, he’s certainly going to be willing to appoint an anti-Roe justice to replace O’Connor. Everything about the lead-up suggests that Bush wants the most conservative justice he can get through the Senate.

* * *

Regarding O’Connor’s legacy, Scott quotes Jeffrey Rosen from The New Republic in 2000 to good effect:

And, by not even bothering to cloak their willfulness in legal arguments intelligible to people of good faith who do not share their views, these four vain men and one vain woman have not only cast a cloud over the presidency of George W. Bush. They have, far more importantly, made it impossible for citizens of the United States to sustain any kind of faith in the rule of law as something larger than the self-interested political preferences of William Rehnquist, Antonin Scalia, Clarence Thomas, Anthony Kennedy, and Sandra Day O’Connor […]

The unsigned per curiam opinion in Bush v. Gore is a shabby piece of work. Although the justices who handed the election to Bush–O’Connor and Kennedy– were afraid to sign their names, the opinion unmasks them more nakedly than any TV camera ever could. To understand the weakness of the conservatives’ constitutional argument, you need only restate it: Its various strands collapse on themselves. And, because their argument is tailor-made for this occasion, the conservatives can point to no cases that directly support it. As Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen Breyer wrote in their joint dissent, this “can only lend credence to the most cynical appraisal of the work of judges throughout the land.”

The most important part of O’Connor’s legacy is that, when push came to shove, she was a traitor to Democracy in order to protect a Conservative candidate.

* * *

A point that came up when I was talking to my mother (hi, Mom!):

As my mom argued, I think persuasively, it’s good that O’Connor retired first. There was no chance she wasn’t going to retire, and there will be more energy in the Democrats for the first nomination fight than for subsequent nomination fights. It’s in our favor that Rehnquist wasn’t the first to go.

On the other hand, I’m still pretty pessimistic overall. Even if the Democrats are united, I don’t think they’ll be able to block a right-wing replacement for O’Connor - the “nuclear option” guarantees that the Republicans, if they stick together, will win.

The controversial decision of the Supreme Court on June 23rd regarding the issue of eminent domain in the case The Kelo v. City of New London has sparked some interesting conversations, and now some rather humorous actions on the part of angry citizens. The 5-4 ruling went against homeowners in favor of a business wishing to construct an office complex. Supreme Court Justices Stevens, Ginsburg, Souter, Kennedy and Breyer were the majority in this ruling, while Supreme Court Justices O’Connor, Rehnquist, Scalia and Thomas were the dissenting minority.

Supreme Court Justice John Stevens wrote for the majority:

“The city has carefully formulated an economic development that it believes will provide appreciable benefits to the community, including — but by no means limited to — new jobs and increased tax revenue.”

The decision made last Thursday allows local governments to seize a home or business against the owner’s will for the purpose of private development. Interestingly enough, this decision seems to be one that strikes a chord among most people across party lines as dangerous, if not outright wrong. I’ve heard decent arguments on both sides of the issue, but my sympathies tend to fall on the side of the homeowners. In a humorous turn of events, Logan Clements, CEO of Freestar Media, LLC has contacted the local government of Supreme Court Justice David Souter’s hometown in New Hampshire, attempting to get the property seized so that Clement’s organization can construct a new hotel.

According to Clement;

“Although this property is owned by an individual, David H. Souter, a recent Supreme Court decision, Kelo v. City of New London, clears the way for this land to be taken by the government of Weare through eminent domain and given to my LLC for the purposes of building a hotel. The justification for such an eminent domain action is that our hotel will better serve the public interest as it will bring in economic development and higher tax revenue to Weare.”

I laughed and laughed. Honestly, I couldn’t help it. While I’m fairly convinced that no sane government would allow an act that is pretty deliberately malicious and spiteful to pass, if nothing else, it’s a clever shenanigan worth at least a few nod’s of humorous appreciation. In an interview with World.net Daily, Clements elaborates on his position:

“This is not a prank” said Clements. “The town of Weare has five people on the Board of Selectmen. If three of them vote to use the power of eminent domain to take this land from Mr. Souter we can begin our hotel development.” […]

The activist says he is aware of the apparent conflict of someone who is strongly opposed to the Kelo decision using it to purposely oust an American from his property.

“I realize there is a contradiction, but we’re only going to use it against people who advocated” the Kelo decision, Clements told WND. “Therefore, it’s a case of retaliation, not initiation.”

In an earlier post, I commented on this stirring anti-Affirmative Action essay, written by Stanford law professor Marcus Cole. Mr. Cole argues that assuming Clarence Thomas benefited from Affirmative Action is unjustified.

As Max Power points out, even the author of a very friendly Thomas biography claims that “Thomas benefited from affirmative action throughout his career; a bright and ambitious young black man of his era could not have failed to. He supported affirmative action as a college student, but soured on racial preferences after learning that some of his classmates and faculty at Yale Law School questioned his intellect because of this assistance.”

Unless Cole has evidence to suggest that Thomas’ friendly biographer is mistaken on this point, the belief that Thomas benefited from Affirmative Action cannot be called an unjustified or racist assumption.

Max Power also argues persuasively that Professor Cole, despite his resentment of Affirmative Action, is almost certainly a beneficiary of it.

Nevertheless, it is clear that some Blacks do feel real pain from the stigma of Affirmative Action. But it doesn’t follow from this that Affirmative Action is necessarily a bad policy, or even that eliminating AA would bring about a reduction in stigma or pain. As Bill Keller wrote in the Times:

As Alas readers no doubt know, the Supreme Court’s final rulings of the season gave liberals some reason to be happy. In what Jack Balkin called “a great day for liberty in the United States,” the Court overturned Bowers v. Hardwick and virtually all of the country’s anti-gay sodomy laws. And Intel Dump is convinced that this ruling begins the end of the military’s homophobic “don’t ask, don’t tell” rules.

I also can’t resist reprinting (via the Sideshow) this comment from Mark Evanier:

Plus affirmative action in higher ed survived - a bit battered, to be sure, but better battered than banned.

Two things that the Court has (apparently) decided not to do provide good news for abortion rights advocates.

First, the Supreme Court refused to hear an appeal from the pro-lifers in the “Nuremberg Files” case. This is good news for pro-choicers and, in my opinion, for free speech in general; it wouldn’t have done political debate in the US any favors for implicit death threats to have been enshrined as protected speech.

Secondly, unless there’s a surprise announcement to come, it appears that no Supreme Court justices are retiring this term. This is probably good news for Republicans, since a Supreme Court nomination fight would probably increase friction between moderates and right-wingers in the Republican party, as well as increasing press attention on domestic issues that Democrats enjoy.

From a pro-choice perspective, this means that Sandra Day O’Connor is likely to still be on the Court when they issue a ruling on the federal Partial Birth Abortion ban. This means that the ban will virtually certainly be found unconstitutional - the only real hope the ban had was the replacement of O’Connor with a more pro-life justice.

The Volokh Conspiracy posts a letter from Stanford Law Professor Marcus Cole, arguing that it’s incorrect to assume that Clarence Thomas has benefited from Affirmative Action:

This seems, to me, to be a straw-man. The argument I’ve heard most frequently is not that Thomas benefited from formal affirmative action at Holy Cross or Yale, but that Thomas benefited from informal affirmative action when he was nominated to the Supreme Court. [*] That is, the president passed over other folks who - both in terms of their achievements, and in terms of their legal writings - seemed far more qualified than Thomas in order to appoint a black justice.

Now, this may or may not be the case; I’m not enough of an expert to say, and if Professor Cole were to argue that Thomas’ nominiation to the high court was entirely about qualifications and not at all about race I’d certainly be willing to listen. And one could certainly argue, in theory, that Thomas benefited from a racial preference but not from “affirmative action” per se.

But Professor Cole, by failing to even address the actual “Thomas benefited from AA” argument, is being disingenuous.

[*]Professor Cole’s letter was inspired, in part, by this Maureen Dowd op-ed, in which Dowd writes that Thomas “knew that he could not make a powerful legal argument against racial preferences, given the fact that he got into Yale Law School and got picked for the Supreme Court thanks to his race.” So Dowd did mention Yale (although she makes a distinction between “racial preferences” and “affirmative action” that Cole - and, by the end of the op-ed, Dowd herself - ignores). but she also mentioned Thomas’ rise to the Supreme Court.

By the way, Dowd’s premise is self-evidently wrong; being the beneficiary of X doesn’t mean that you can’t credibly argue against X.