Supreme Court to Sink Roe

In theory, the Supreme Court was going to wait until the very end of the term, announce its decision in Dobbs v. Jackson Women's Health Organization, and then get out of Dodge. They're not going to have that privilege, however, as Politico has laid hands on a draft of the decision that makes clear the Court plans to strike down Roe v. Wade and Planned Parenthood v. Casey

The draft is dated Feb. 10 and was written by Associate Justice Samuel Alito. You should probably read the key passage for yourself:

We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be "deeply rooted in this Nation's history and tradition" and "implicit in the concept of ordered liberty." Washington v. Glucksberg, 521 U.S. 702, 721 (1997).

The right to abortion does not fall within this category. Until the latter part of the 20th century, such a right was entirely unknown in American law. Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy. The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment's protection of "liberty." Roe's defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called "fetal life" and what the law now before us describes as an "unborn human being."

Stare decisis, the doctrine on which Casey's controlling opinion was based, does not compel unending adherence to Roe's abuse of judicial authority. Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.

It is time to heed the Constitution and return the issue of abortion to the people's elected representatives. "The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting." Casey, 505 U.S. 979 (Scalia, J., concurring in the judgment in part and dissenting in part). That is what the Constitution and the rule of law demand.

We are not lawyers, but even we can see the problems with this snippet, which is just one page out of 98. The ones that stick out to us:

• Washington v. Glucksberg was a case in which the Court said that the Fourteenth Amendment does not guarantee Americans access to physician-assisted suicide. We can see why it's being invoked here, since that is a vaguely similar issue to abortion, and since the decision was unanimous. However, physician-assisted suicide didn't really exist until the 20th century, at least in part because the modern medical profession didn't really exist until the mid-19th century. By contrast, abortion has been a part of American life since before there was a United States. So, to deploy the "deeply rooted in this Nation's history and tradition" bit doesn't really fly here.
  
  
• It is true that, when the Fourteenth Amendment was adopted, abortion was illegal in the majority of states. Here are some things that were illegal in all states: women's suffrage, Black suffrage, sodomy, interracial marriage, and gay marriage. Meanwhile, here are some things that were legal in all states: imbalanced Congressional districts, segregation, discrimination on the basis of gender, and discrimination on the basis of social class.
  
  The Fourteenth Amendment justified, at least in part, subsequent constitutional amendments, or subsequent court decisions, or both, that reversed these various states of affairs. Making use of originalism, and referring back to the way the country was on July 9, 1868 (when the Fourteenth Amendment was ratified), is profoundly intellectually dishonest, from where we sit. Certainly, Alito is being a bit cavalier in his claim that abortion is "fundamentally different" from these other things, and in his implication that this decision won't lead to assaults on other rights rooted in the Fourteenth Amendment. How can he possibly know that? In fact, the odds are that the opposite is true and that something like gay marriage is next.
  
  
• It is interesting that Roe was such an obviously bad decision, and yet it took 50 years for judges to figure that out.
  
  
• It is also remarkable that Alito can suggest, with a straight face, that this decision will solve the problem of abortion having "enflamed debate and deepened division."
  
  
• When you use, as key evidence in support of your conclusions, a dissenting decision from the most conservative justice of the last half century, it's called "cherry picking," and it is a sign of a weak argument.

Undoubtedly, there will be many pieces today ripping Alito to shreds, and from people who are more qualified to do so than we are. However, the news broke around 7:00 p.m. PT, so for now you're stuck with our first stab at it. Naturally, a draft written in February is going to change, at least some, before it's issued. So, some of our critiques might ultimately be rendered moot. However, the basic reasoning is right here in black and white, and is surely not going to change. So, most of what we say here will still apply when the final decision is issued in June.

The other big question readers surely have is: "What was the vote?" Politico reports that they talked to someone with inside information, and that the five conservatives who are not John Roberts are on the majority side (no surprise), while the three liberals are on the dissenting side (also no surprise). The vote of Roberts himself is a mystery. However, this is clearly the most important case in his entire chief justiceship, so if he were in the majority, he would have undoubtedly assigned this hugely important case to himself. So, you have to assume he was in the minority, and that the vote was 5-4. Of course, that can change, and one of the justices might defect from the majority, or Roberts might join the majority, or he might join in part and dissent in part. But, if you have to place a bet, bet on 5-4.

And that brings us to another thing worth pointing out. This could be a big scam, and someone might have pulled the wool over Politico's eyes with a forgery. We think that is extremely unlikely, however, as it would be a masterful forgery. Further, although it is not going to reveal its source, Politico knows who provided the draft, and is in a position to judge whether that person is likely to have access. It is improbable that the staff of Politico would stick their necks out unless they were 100% certain, since if this was indeed a scam, it would be the biggest embarrassment for a media outlet since "Dewey Defeats Truman."

Anyhow, in the overwhelming likelihood that this is legit, then it does raise the question: Who is the leaker? Only a small number of people would have access to a document like this. The fact that it's somewhat out of date suggests it's one of the clerks, and in chambers other than Alito's. However, don't rule out the possibility that it's one of the justices, including possibly John Roberts. Desperate times call for desperate measures, and if the response to this leak is fierce, maybe it causes one of the justices in the majority to change course. Probably not, but there's no harm in trying, for whoever the leaker is. If they're a clerk, their term of service is up in a month anyhow, and even if they're outed, they will have a lifelong gig working for Planned Parenthood or any left-leaning law firm in the country. And if they're a justice then, as we know, there's basically nothing they can do to get themselves fired (see Thomas, Clarence and Ginni).

It's also not impossible that one of the conservative judges, or a conservative clerk, is the leaker. There would be two possible reasons for that. The first is that if it is a 5-4 majority, and that majority is shaky, the leak might solidify the majority, as the wavering justice might fear appearing weak or indecisive. The second—and this only applies to Roberts, really—is that if an atom bomb is coming anyhow, it could blunt the impact for it to be divided across, in effect, two explosions.

That said, we are strongly inclined to think it was a liberal clerk or justice who spilled the beans. It simply cannot be a coincidence that the document came to light just hours before primary season gets underway in earnest (and, as a bonus, just before Mother's Day). Abortion is now likely to become the issue of the midterms, more than Ukraine, more than Build Back Better, more than Critical Race Theory. Every candidate, on both sides of the aisle, is going to be asked for their views on the now-imminent striking down of Roe and Casey. And while hardcore right-wingers are going to love hearing Republican candidates sing the praises of Samuel Alito, those voters are already certain to show up to the polls and to vote Republican. However, suburban women voters who are currently wavering between parties? This could help them make their decision. Similarly, young people and/or Black voters, who might be inclined to sit the midterms out? This could motivate them to get to the polls. On the other hand, it could cause Latino voters, who tend to be Catholic, and tend to frown on abortion, to give the Republican Party another look.

And all of this is before we talk about how red states are going to respond to the Court's decision. This would probably be a time for restraint, but the red-state legislatures have shown no ability to exercise such restraint, so we don't see why they would start now. At very least, the red states are going to ban all abortions, post-haste. Indeed, most of them already have laws that kick in automatically if and when Roe is struck down. It is likely that, now that they think they have the Supreme Court's blessing, the red states will also bend over backwards to set up harsh enforcement mechanisms, and to try to stop women from traveling out of state to get the procedure, or to receive pills or other services in-state. One should also expect much talk of "securing the final victory" and reclaiming the federal trifecta in hopes of outlawing abortion nationwide.

The upshot is this: We don't have any real idea what the response to this news will be, or what the response will be when SCOTUS makes its decision official. We can guess, but that's it. What we do know is that this introduces a massive wildcard into the 2022 midterms. And a massive wildcard is the Democrats' best hope for shifting the narrative away from inflation and Afghanistan and mask mandates, and very possibly stopping a red wave. If they don't spend the midterms hammering on the theme of "if you vote for Republicans, this is what you get," then the Democrats are guilty of political malpractice.

For what it's worth, the "abortion is going to be outlawed" fundraising e-mails and texts started about an hour after the Politico story broke, and Democrats at all levels have condemned the decision. Oh, and it may be instructive that while Democrats are furious about the decision, Republicans are furious about the leak. That implies a prediction as to which party will be hurt by this. (Z)

The 1/6 Committee Is Humming Along

This was going to be the lead item today, but then Politico dropped its bombshell. Oh well, that's life in the fast lane. In any event, it's not going to get much attention today, but there was a fair bit of news about the 1/6 Committee in the last 36 hours, and all of it was positive from the vantage point of those who would like to see the Committee get to the bottom of the insurrection.

To start, the RNC would really like to keep its mass e-mail vendor from working with the Committee. The Committee suspects that Ronna Romney McDaniel & Co. both encouraged violence before Jan. 6 and then profited from it thereafter. In order to try to stymie the Committee, the RNC sued. And on Sunday night, U.S. District Judge Timothy J. Kelly showed that he does not care who nominated him to his seat (Donald Trump), and told the RNC that it's got no legal leg to stand on. The 53-page opinion was... firmly worded, let's say, and effectively declared that the RNC's claims are absurd. The red team will presumably appeal, though Kelly's decision seems to have covered every argument they might try to make.

Meanwhile, until Politico sucked up all the oxygen, CNN thought it had a real scoop on its hands, as the outlet landed inside information on Ivanka Trump's testimony before the Committee. The story's going to get lost, at least for now, given the SCOTUS news. Still, while the former first daughter did not reveal anything that might be privileged, and did not betray her father, she did confirm much of what the 1/6 Committee knew or suspected about events in the White House on that particular day.

And finally, seemingly buoyed by their momentum, the members of the committee are apparently close to turning up the heat on some of their colleagues. Committee member Rep. Adam Kinzinger (R-IL) appeared on Face the Nation over the weekend, and said that they want to hear from Republican members of the House who may have aided in the insurrection, and that "If that takes a subpoena, it takes a subpoena." The Representative also said a final decision on the matter would be made within a week or two, though he wouldn't be saying something like that publicly if it wasn't close to being a done deal.

There's still a long way until this thing reaches the finish line, especially if this proves to be a relay, and the 1/6 Committee just ends up passing the baton to the Department of Justice. Still, the investigation clearly still has a lot of forward momentum. (Z)

Trump Forgets Vance's Name

Donald Trump held a rally in Nebraska this weekend and, as is his wont, he took the opportunity to brag about how successful he's been with endorsements, while also predicting future triumphs. And as part of that, the former president proclaimed: "We've endorsed Dr. Oz. We've endorsed J.P., right? J.D. Mandel. And he's doing great!" Here is the video, if you would like to see it yourself:

The candidate Trump has endorsed, of course, is J.D. Vance. The candidate he did not endorse is Josh Mandel.

Most of the stories about the flub focused on Trump's mental state, and how this is even more evidence the cheese is sliding off the cracker. That misses the point, we think. Consider the latest poll of the race, just released yesterday. It has Vance with 26% support, Mandel with 24%, Matt Dolan with 21%, Mike Gibbons with 17%, and Jane Timken with 8%. In other words, Vance and Mandel are in a statistical dead heat. This is consistent with other recent polls of the race. Further, 63% of Emerson respondents said that Trump's endorsement influenced their thinking, at least partly.

Trump's remark could not have been better crafted, even by Hollywood's finest screenwriter (Aaron Sorkin?), to more clearly convey that he didn't really look carefully at this race, and that he doesn't really perceive a big difference between Vance and Mandel. If Vance's lead was, say, 10%, and if he had been the frontrunner for months? Trump's remark wouldn't matter one bit. But it was Trump's endorsement that allowed Vance to pull (slightly) ahead, and in just the last week or so. If some small segment of the Republican base was planning to vote Vance because The Donald said so, but actually has a leaning toward Mandel, this could be enough to push them back into the Mandel camp. After all, it's pretty clear that Trump thinks they're basically the same guy.

Incidentally, we've had some questions about how Ohio can hold its primaries today if the state doesn't have final district maps. Since those questions would be moot by Saturday, we will answer now. Ohio Secretary of State Frank LaRose (R) decreed that the maps are good enough to proceed with statewide primaries (where the maps don't matter anyhow), and with primaries for the House of Representatives. However the primaries for the state legislature have been pushed to August.

One last thing. Regardless of who comes out on top, the U.S. Senate race is almost certainly going to be very close. And in the modern Republican Party, candidates don't concede, even when they lose. It is not probable that someone as Trumpy as Mandel or Vance will yield, so the odds are we won't actually know the outcome of this race tonight. (Z)

A Second Herbster Accuser Identifies Herself

Charles Herbster (R) has zero experience in elective office. However, he did run a successful business, and he did spend his own money on Donald Trump's campaign, and he is plenty Trumpy. He and Trump have only one of those things in common, but nonetheless, this is the profile of Trump's kind of candidate. And so, when Herbster was already the frontrunner, Trump jumped on board with his endorsement. And the former president is serious enough about it that, as we note above, he traveled to Nebraska for a pro-Herbster rally this weekend.

The problem is that Herbster has baggage; according to a report from the Nebraska Examiner from a couple of weeks ago, he has a habit of victimizing women by groping them. The paper found eight women who said they had experienced this. Only State Sen. Julie Slama (R) put her name to the accusation, however, confirming eyewitness reports that the would-be governor had approached her at an event in 2019 and reached up her skirt.

Yesterday, a second woman came forward and surrendered her anonymity. Elizabeth Todsen, then in the employ of State Sen. Dave Murman (R), was at an event in 2019 (it's not clear if it's the same event as Slama), and says that she too was groped by Herbster. "It was just all a blur after that happened, because it was all I could think about," Todsen revealed. "I just remember sitting there, and we were listening to the speakers... thinking, 'How do you support this man?'"

It is exceedingly unlikely that two women would invent such similar stories, especially since both accounts were corroborated by eyewitnesses. In any event, "eight anonymous people" doesn't quite have the same impact as "one person with a name and a face." And "two people with a name and a face" has still more impact. So, this is quickly becoming a large anchor around Herbster's neck.

Polling backs that up. In every poll of the race taken before the sexual misconduct story was published, Herbster was in the lead, often by a margin of 5-10 points. In every poll of the race taken after the story came out, he's trailed. The latest, from WPA Intelligence, has Jim Pillen at 24%, Herbster at 23%, Brett Lidstrom at 20%, other candidates with 9%, and 24% undecided.

Now, the WPA poll comes with all sorts of caveats; they're a not-that-great partisan pollster and this poll was commissioned by the Pillen campaign. However, Herbster is losing ground in other polls that were not commissioned by Pillen. And it's pretty clear that the main dynamic is that, with the primary a week away, undecided voters are making their pick, and that pick is largely "not Herbster." If he doesn't advance, it will be egg on the face of Trump. And if he does advance, Herbster might actually blow this election for the red team. Either way, Democrats will be pretty happy. (Z)

Columbia Dumps Oz

As long as we're covering recent developments for Trump-endorsed candidates, the news came down this weekend that Columbia University has wiped all traces of Dr. Mehmet Oz from its websites. Although he is—or was—on staff at the school, there has been much pressure to disassociate him from Columbia, including a high-profile public letter signed by a bunch of high-profile doctors. Now, it's apparently a done deal.

That said, university administration is arcane enough that this could well be a superficial change. Depending on the terms of his employment, he may still be entitled to identify himself as a member of the Columbia faculty. In fact, he may still be collecting a paycheck (or a pension) from the school. Tenure is not easy to cancel, and it takes a heck of a lot more than just reprogramming some HTML. Meanwhile, whatever has happened, it raises a few interesting questions. Foremost among those: Sell snake oil on TV for a decade, and that's A-OK, but run for Senate as a Republican, and out comes the hammer? Interesting priorities.

Anyhow, what's really important, at least from our vantage point, is whether or not this will hurt Oz going into the May 17 primary election. We are inclined to doubt it, as we think very few voters care about a person's academic affiliation, if they even have one. That said, when things are neck and neck, even something small can be decisive. If David McCormick spends the next two weeks observing that even Columbia doesn't want to have anything to do with Oz, that might move the needle. Even better is if he says the issue had something to do with drugs. After all, when spoken, "Columbia" and "Colombia" sound about the same. (Z)

Is There a Semi-Trumpy Lane?

We know who the Trumpy Republican presidential candidates are. And we know who the non-Trumpy Republican presidential candidates might be, if any of them choose to take the plunge. But is there a way to triangulate between the two factions, and somehow appeal to both? It hasn't worked for Nikki Haley, but that apparently isn't stopping Gov. Asa Hutchinson (R-AR) from looking in the mirror and seeing someone who just might do it. This weekend, he said he's thinking about a run, and that his decision won't depend on whether or not Trump runs.

On policy, Hutchinson is often very Trumpy. He's anti-vaccine mandate, anti-mask mandate, pro-border wall, pro "Don't Say Gay," and is going to be delighted by the Supreme Court's abortion decision. On the other hand, sometimes Hutchinson isn't very Trumpy at all. He vetoed an anti-transgender-healthcare bill this year, for example, has criticized Gov. Ron DeSantis (R-FL) for his handling of the Disney situation, and has said that Joe Biden is the rightful president of the United States.

Hutchinson has had great success in Arkansas. Though 2018 was a bad overall year for his party, the Governor won reelection with 65% of the vote, which is the largest margin ever for a Republican candidate. That is due, in part, to the fact that Arkansas was a single-party Democratic state until about 30 years ago. But still, winning a landslide in the middle of a wave election for the other party is no small feat.

That said, while we feel duty-bound to pass along news of any serious candidate who might mount a bid on either side of the aisle, we don't see how Hutchinson can possibly make this work. The majority of the Republican base is Trumpy, and there are just too many dealbreakers on Hutchinson's résumé for those folks. Further, although it worked for Bill Clinton, Arkansas is not a great power base from which to launch a presidential bid. Ask Mike Huckabee.

It's only one data point, but a possible case study Hutchinson might want to take note of is Arizona AG Mark Brnovich (R), who is currently running for the U.S. Senate. On one hand, to run as a Republican in Arizona, you have to be all-in on "Stop the Steal," and the notion that Arizona would have been in the Trump column but for the incompetence and corruption of Arizona officials. On the other hand, the official who was theoretically responsible for rooting out and punishing fraud (if it actually existed)... is Arizona AG Mark Brnovich. The AG can't exactly run around talking about what a dolt Mark Brnovich is, and so he's tried to stay out of the "Stop the Steal" conversation. Fortunately for his opponents, that's why God invented TV commercials. So, they've been flooding the airwaves with ads blaming Brnovich for the lack of "election integrity" in Arizona, and he's now sinking in the polls.

It's still more than 2 years to the presidential election, and so a Semi-Trump lane might open up, or someone might pull off a Glenn Youngkin, and somehow sell themselves as a Trumper to the Trumpers and a non-Trumper to the non-Trumpers. But right now, it sure looks like only one kind of candidate can hope to land the party's nomination, whether it's the archetype or it's one of his many, many clones. (Z)

It's a Funny Thing...

If everything had gone according to plan, we were going to reveal in this space which also-rans in the bracket competition apparently aren't so bad, since they didn't get many votes. However, we know that many readers will be very upset by the news from the Supreme Court. And so, it just feels like that exercise is not quite right today.

That said, we'd like to end on a note that's at least a little uplifting. And given that we had an item yesterday on Joe Biden's bon mots during the White House Correspondents' Dinner, we thought we'd use that as our launching point and run down half a dozen of the best jokes told by U.S. presidents. So:

• Abraham Lincoln: An American visited England after the Revolutionary War, and his hosts wanted to antagonize him. So they got a portrait of George Washington, and had it hung in the outhouse. During dinner, the American excused himself to answer the call of nature. The Englishmen snickered and waited, but when the American returned, he did not appear upset. "What do you think of the art in the privy?" they finally asked. "I can think of no more appropriate place for that portrait," he replied. "Nothing would scare the sh** out of an Englishman as quickly as General Washington."
  
  
• Ulysses S. Grant: A reporter told Grant that Sen. Charles Sumner (R-MA) did not believe in the Bible. "Of course not," replied Grant. "He didn't write it."
  
  
• Harry S. Truman: My choice early in life was either to be a piano player in a whorehouse or a politician. And to tell the truth, there's hardly any difference.
  
  
• Lyndon B. Johnson: Making a speech on economics is a lot like pissing down your leg. It seems hot to you, but it never does to anyone else.
  
  
• Ronald Reagan: An American explains to a Russian that the United States is a truly free country because he can stand in front of the White House and shout "To hell with Ronald Reagan!" "Big deal," says the Russian, "I can do the exact same thing. Anytime I want, I can stand in front of the Kremlin and yell 'To hell with Ronald Reagan.'"
  
  
• Barack Obama: There are few things in life harder to find and more important to keep than love. Well, love and a birth certificate.

We hope that lightens the mood. (Z)

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