“Justice Samuel Alito’s draft opinion overruling Roe v. Wade, which was leaked to Politico and revealed to the public Monday night, is more than just an attack on abortion. It is a manifesto laying out a comprehensive theory of which rights are protected by the Constitution and which rights should not be enforced by the courts.
And Alito’s opinion is also a warning that, after Roe falls, the Court’s Republican majority may come for landmark LGBTQ rights decisions next, such as the marriage equality decision in Obergefell v. Hodges (2015) or the sexual autonomy decision in Lawrence v. Texas (2003).
To be clear, the leaked opinion is a draft. While Politico reports that five justices initially voted to overrule Roe, no justice’s vote is final until the Court officially hands down its decision. And even if Alito holds onto the five votes he needs to overrule Roe, one or more of his colleagues in the majority could insist that he make changes to the opinion.
Alito’s first draft, however, suggests that the archconservative justice feels emboldened. Not only does he take a maximalist approach to tearing down Roe, but much of Alito’s reasoning in the draft opinion tracks arguments he’s made in the past in dissenting opinions disparaging LGBTQ rights.
The Constitution is a frustrating document. Among other things, it contains multiple provisions stating that Americans enjoy certain civil rights that are not mentioned anywhere in the document itself. The Ninth Amendment, for example, provides that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Over time, the Supreme Court has devised multiple different standards to determine which of those unenumerated rights are nonetheless protected by our founding document. Some of these standards are very much at odds with each other.
The central thrust of Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization, the case seeking to overrule Roe, is that only rights that are “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty,” are protected. This method of weighing unenumerated rights is often referred to as the “Glucksberg” test, after the Court’s decision in Washington v. Glucksberg (1997).
Though Alito’s Dobbs opinion largely focuses on why he believes that the right to abortion fails the Glucksberg test, there is no doubt that he also believes that other important rights, such as same-sex couples’ right to marry, also fail Glucksberg and are thus unprotected by the Constitution. Alito said as much in his Obergefell dissent, which said that “it is beyond dispute that the right to same-sex marriage is not among those rights” that are sufficiently rooted in American history and tradition.”
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“For many years, Justice Anthony Kennedy was the pivotal figure in the legal struggle for gay equality. Obergefell and United States v. Windsor (2013), which held that the federal government must recognize same-sex marriages, were both 5-4 decisions authored by Kennedy. Kennedy also penned the Lawrence opinion and the Court’s decision in Romer v. Evans (1996), the first Supreme Court decision establishing that the Constitution places limits on the government’s ability to target gay or bisexual individuals.
Given his longtime role as the Court’s voice on gay rights, it’s tempting to think of Kennedy as a staunch supporter of these rights (I use the word “gay” and not “LGBTQ” because Kennedy’s four opinions concerned discrimination on the basis of sexual orientation and not gender identity). But the reality is almost certainly more nuanced. Decisions like Obergefell and Windsor were the products of an uneasy alliance between the conservative Kennedy and his four liberal colleagues. And, in closely divided cases, majority opinions are often assigned to the justice who is most on the fence — on the theory that this justice is unlikely to flip their vote if they can tailor the majority opinion to their own idiosyncratic views.
The result is that Kennedy’s great gay rights decisions were poorly argued. They ignore longstanding doctrines that could have provided a firm foundation for a rule barring discrimination on the basis of sexual orientation. Instead, they often substitute needlessly purple prose for the meat-and-potatoes work of legal argumentation.”
“Constitutionally speaking, the Court does not have the hard authority of the presidency or Congress. It cannot deploy the military or cut off funding for a program. It can order others to take actions, but these orders only hold force if the other branches and state governments believe they have to follow them. The Court’s power depends on its legitimacy — on a widespread belief, among both citizens and politicians, that following its orders is the right and necessary thing to do.”
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“Justice Samuel Alito’s leaked draft opinion that would overrule Roe v. Wade, if issued, could be yet another significant blow to Court legitimacy. The issue is not just that a majority of Americans will disagree with the ruling, though they almost certainly will. It’s that the process that led to this outcome has repeatedly exposed the Court as a vessel for politics by other means.
In that context, a reversal of what is probably the most contentious modern Supreme Court ruling — which established a 50-year precedent with longstanding majority support — will hit differently than previous controversial Court rulings. The damage could be severe and lasting, worse even than nakedly political decisions like Bush v. Gore.
While it may be tempting to cheer the collapse of the Court’s legitimacy given its track record, the Worcester case should give us some pause. In the American system, for better or for worse, the Court is supposed to serve as the final arbiter of political disagreements. If it lacks the legitimacy to play that role, it sets the stage for a constitutional crisis — especially if former President Donald Trump runs again in 2024.”
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“since 2016, Republicans have taken a series of steps that have made it hard for anyone to see the Court as standing above politics.
When Justice Antonin Scalia died in February 2016, GOP Senate Majority Leader Mitch McConnell infamously refused to even schedule hearings for Obama’s replacement nominee, current Attorney General Merrick Garland, until after the 2016 election. McConnell’s argument was that no justice should be appointed in an election year, but the rationale was clearly political: Garland is a moderate liberal and would have tipped the Court from a 5-4 conservative majority to a 5-4 liberal one.
Then Donald Trump won the 2016 election despite losing the popular vote and proceeded to remake the Court along McConnell’s preferred lines.
First, he appointed staunch conservative Neil Gorsuch to the Court instead of Garland — preserving a 5-4 conservative majority on the court. Then longtime Republican operative Brett Kavanaugh was confirmed amid a furious battle over Christine Blasey Ford’s allegations that Kavanaugh sexually assaulted her, one of the most bitter and polarizing hearings in Supreme Court history.
And when Justice Ginsburg died in September 2020, McConnell and Trump rushed Amy Coney Barrett onto the Court before the 2020 vote — giving conservatives a 6-3 advantage, and revealing the alleged principle behind the Garland blockade to be a partisan fiction. (McConnell’s attempt to square this circle, citing an alleged norm against the Senate confirming nominations from opposite-party presidents in election years, was risible.)”
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“the Court itself hasn’t helped matters. Since the Trump appointments, the Court’s jurisprudence has lurched hard right. Chief Justice John Roberts, seemingly the sole conservative concerned with the Court’s above-politics reputation, can no longer join four liberals to rein in his colleagues’ policy ambitions.
This is the context in which Alito’s Roe draft opinion emerged. Much of the concerns about the opinion’s effect on legitimacy have focused on the leak of the draft — on how it makes the Supreme Court look like any other Washington institution. But this is inside baseball: The much bigger effect on Court legitimacy is more likely to come from the ruling itself, if it in fact becomes law.”
“The anti-abortion movement has also focused on building a pipeline of judicial nominees through organizations like the Federalist Society. The left, meanwhile, has focused on shifting party opinion on related issues like contraception coverage and the Hyde Amendment, which prohibits government funds from being used to pay for abortion except in the case of rape, incest, or endangering the mother’s life, while treating Roe as a largely settled matter.
Now, all those years of work by anti-abortion activists seem to be paying off. If the Supreme Court overturns Roe v. Wade, as it appears set to do based on the draft opinion that leaked..,it will toss out nearly 50 years of jurisprudence along with it.”
“But there’s no gray area when it comes to evidence law enforcement can get about you specifically if they have reason to believe you’ve committed a crime. To give a recent example: Many cases against alleged January 6 insurrectionists were built on data the FBI got from Google and social media. In some cases, this included the suspect’s movements to and from their homes as well as within the Capitol building. It also included the contents of their emails, web searches, websites visited, and YouTube videos watched. You might think the police having such a large data trail to follow is a good thing when it’s used against people whose actions you disagree with. You might not feel the same way if it’s used against people whose actions you support.
That means that in places where abortion is illegal — assuming such a thing does happen — there won’t be much a company like Google can do if police have a warrant for data that could be evidence of a crime. There’s also the possibility that people pretending to be the police could obtain data, too. As Bloomberg recently reported, it has happened before. That’s why privacy and civil rights advocates say the less data those companies are forced to give to law enforcement, the better. Laws that minimize the amount of data collected, that restrict what other parties can do with that data, and that allow consumers to delete their data would go a long way here.
There’s also the data that the police (and any other especially motivated private citizens) can buy. Data brokers, it turns out, make for a nice workaround to the Fourth Amendment. Law enforcement can simply buy data it would otherwise have to get a court order for, which it may then use to help in its investigations.”
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“Consumer privacy laws would go a long way toward reducing what data is out there and available for anyone to access in the first place.”
“Writing in The Wall Street Journal, the president outlined three policy choices to deal with an inflation caused, he seems to believe, largely by pandemic-related supply-chain obstructions and intensified by the war in Ukraine. His plan is simple: Continue to trust that one of the main architects of our current inflation, Federal Reserve Chairman Jerome Powell, will raise interest rates fast and high enough to tame inflation without crashing the economy, dispense more subsidies and tax credits, and let the deficit melt away—by some miracle—without cutting spending.
Absent from the piece is any acknowledgement of what readers of this column know all too well: that inflation was fueled by Biden’s own reckless spending policies, especially the $1.9 trillion American Rescue Plan passed in March 2021. Half a dozen or so studies have shown that fiscal policies implemented during COVID-19 are a main culprit behind today’s inflation. Biden also fails to mention the Fed’s overly accommodating monetary policy and its current slow response to inflation.
In other words, the president’s argument is amazing for its tone-deafness, inconsistent thinking, and sheer economic ignorance.”
“fossil fuels still fulfill about 80 percent of the world’s energy needs. Global greenhouse gas emissions appear to have been holding fairly steady for a decade now, but to keep the world from warming up more than 1.5 degrees Celsius or 2.7 degrees Fahrenheit this century, those emissions have to fall by half from their current levels by 2030.
So despite the advances, the pace of deployment of clean energy is still far too slow to keep more dangerous levels of warming in check. Getting on course will likely require even cheaper, more efficient, and higher-performing versions of the tools we have now. But it will also demand advances in fledgling clean technologies, like capturing carbon dioxide straight from the air.
At the same time, money and political will to deal with climate change are in short supply around the world, given competing demands from the Covid-19 pandemic, inflation, and international conflicts. With limited time and money, it’s critical to figure out what research will yield the most impactful innovations to counter climate change.
It’s difficult to predict which investments will lead to breakthroughs, but some researchers say there are ways to improve the odds. It requires thinking carefully about how potential innovations would scale and draw investment, but also demands policies to create the conditions for an even bigger clean energy revolution.”
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“Renewables have now become the cheapest source of new electricity production around the world. In half of the world, installing new wind or solar power is cheaper than running existing fossil fuel power plants.
These developments were spurred by large government investments and energy policies, with some private sector backing. Photovoltaic panels, for example, benefited from early research in the United States, Japanese companies developing applications for solar, an aggressive feed-in tariff incentive in Germany, and massive production scale-up in China. The development process spanned decades, with the first solar panels invented in the 1950s and foundational research beginning in the 1970s. Governments also helped create demand for clean energy, by setting targets for deployment and subsidizing their purchase prices.”
“According to the U.S. Census Bureau’s supplemental poverty measure, the stimulus payments moved 11.7 million people out of poverty in 2020 — a drop in the poverty rate from 11.8 to 9.1 percent. And the 2021 poverty rate was estimated to fall even further to 7.7 percent, per a July 2021 report from the Urban Institute. We don’t know yet whether this came to fruition, but Laura Wheaton, a senior fellow at the Urban Institute and one of the analysts behind the 2021 numbers, told us that it was clear from their analysis that the stimulus checks were driving a dramatic decline in poverty.
More broadly, the stimulus checks also cushioned workers during one of the worst economic crises in modern history, which likely helped the economy bounce back in record time. In April 2020, when Americans were receiving the first round of checks — up to $1,200 with the CARES Act — the unemployment rate was at a disastrous 14.7 percent. But two years later, it’s almost returned to its pre-pandemic levels, with many job openings. “I hope we don’t forget how awesome it was that we supported people so well, and that we recovered as quickly as we did,” said Tara Sinclair, a professor of economics at George Washington University.
However, there is also evidence that the stimulus, especially the last round, likely stoked higher and higher prices for the very people it was intended to help. Though global supply chain issues (and, more recently, the war in Ukraine) have been significant drivers of inflation, the divergence between U.S. and European inflation suggests there’s more to it than that. In fact, a recent analysis from researchers at the Federal Reserve Bank of San Francisco found that the stimulus may have raised U.S. inflation by about 3 percentage points by the end of 2021.”
“members of the infamous Blob, America’s foreign policy establishment, are urging Biden to do a full kowtow to Riyadh (and presumably Abu Dhabi as well), doing the royals’ bidding as before. After all, the relationship always has been about them. Years ago Defense Secretary Robert Gates observed that the Saudis were ever ready to “fight the Iranians to the last American.” Nothing has changed.
For example, Washington Post columnist Fareed Zakaria backed the idea of a “grand bargain,” which would trade security guarantees for Saudi concessions: “There is a way for Washington to forge a new security umbrella in the region that includes Israel, Egypt and the gulf states. It would stabilize the security environment, foreclose the prospects of a nuclear arms race in the region and provide access to energy for the industrialized world. But that path would have to include making up with Mohammed bin Salman.”
Bloomberg’s Bobby Ghosh views the problem as personal and political immaturity: “The most important partnership in the Middle East has been put in jeopardy by the peevishness of a prince and political opportunism of a president. Repairing the Saudi‐American relationship will require the first to behave like a grown‐up, the other like a statesman.”
Although Tufts University’s Daniel Drezner was more skeptical that a satisfactory accommodation could be reached, he intoned: “I hope the Biden administration is conducting internal deliberations about what concessions it would be willing to make to engage in some transactional diplomacy with Saudi Arabia. As bad as Saudi behavior has been, Russia’s bad behavior has been worse and merits a priority of focus.”
This approach, which treats murderous wars and grievous human rights violations as minor inconveniences, is a terrible idea. To start, fulfilling demands by dependent regimes would undermine Washington’s credibility. The Washington War Party has routinely insisted that the US should intervene militarily everywhere for the most spurious reasons to convince the world that it is prepared to go to war anywhere at any time for anything. Hence nonsensical claims that failing to bomb Syria over chemical weapons or stay in Afghanistan for a 21st year would trigger major power aggression around the globe. In fact, America’s adversaries distinguish between serious and peripheral issues, and act accordingly. (Which is why Moscow withdrew from Afghanistan after only ten years compared to America’s astounding two decades.)
However, US credibility really would be at stake if the administration submitted to Riyadh’s and Abu Dhabi’s demands, acting as if it was a weak Third World state rather than global superpower. Again, putting royal interests first would encourage other defense dependents to make similarly inflated and malign demands. Washington would be playing the supplicant and would be expected to do the same elsewhere.
Moreover, Saudi Arabia, in particular, and UAE are not normal countries, either liberal democratic or even moderately authoritarian allies. The Kingdom earned a rating of just seven out of 100 by Freedom House, making it one of the world’s baker’s dozen most repressive nations and territories, dwelling in the human rights cellar along with Equatorial Guinea, North Korea, Eritrea, Turkmenistan, and Tajikistan. Riyadh is much worse than Russia, at least prior to that latter’s internal crackdown to suppress any antiwar dissent, which made the latter much more like the KSA.
Those celebrating MbS’s recent social liberalization are merely highlighting how until recently the Kingdom was a true totalitarian state, in some ways more absolute than Mao Zedong’s China and Kim Il-sung’s North Korea. Thankfully, those who face prison for dissent now can attend a movie before being locked up! Alas, a free society that does not make.”
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“Riyadh is, despite Drezner’s claim, a more malign actor internationally than Russia. The royal regime’s alleged friendship with America never meant respecting America’s interests. Especially once MbS took effective control of the government. The regime tolerated substantial financial public support for al‐Qaeda until the group attacked the royals. Saudi Arabia also kidnapped a head of government (Lebanon), blockaded and made plans to invade another friendly state (Qatar), used money and troops to enforce brutal dictatorships (Bahrain, Egypt), and subsidized jihadist forces (Libya, Syria).
Worst was the invasion of Yemen. To reinstate a pliable regime in its desperately poor neighbor, Riyadh and Abu Dhabi joined in a “coalition,” hiring countries dependent on their financial largesse, such as Sudan, which deployed ground forces in the conflict. Total deaths are estimated at roughly 400,000, 60 percent of them young children, who are particularly vulnerable to disease and malnutrition. Human rights group report that coalition activity, both air attacks and de facto blockade, is responsible for the vast majority of civilian deaths.”
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“In short, rewarding Saudi Arabia to further punish Russia would be a bad trade‐off, for moral as well as practical reasons. Especially since the Saudis likely would undercut any promises to increase production — cheating by OPEC members always has been systemic and endemic. Nor would increasing the flow of Mideast oil necessarily significantly intensify pressure on Russia or affect Moscow’s behavior. US economic sanctions have rarely forced regimes to act against what they viewed as fundamental political interests. The costs of such a policy would be substantial and real. The benefits would be speculative at most.
The better strategy would be for the administration to demonstrate that US officials will no longer be docile retainers for the Saudi and Emirati royals. For instance, the administration should stop helping them slaughter their poor neighbors. The US sold the aircraft, for a time refueled them, and still services the planes, supplies the munitions, and provides the intelligence. Washington should effectively ground the royal fleets by ending support services and weapons resupply. That would encourage the Saudi king to take the president’s next call.
Moreover, the administration should indicate that the well‐armed Gulf regimes are vulnerable to attack mostly because they lack domestic political legitimacy — who wants to die defending Crown Prince “Slice n’ Dice” so can he murder another critic or build another palace? US military personnel should not be treated as mercenary bodyguards, the equivalent of the civilian expatriate labor used to do most of the “dirty work” in those societies. It is past time for the Saudis and Emiratis to earn their people’s support. The KSA’s uncertainty about America’s continuing military commitment already has spurred the regime’s talks with Iran, which could ease the region’s dangerous Sunni‐Shia split. Ultimately Riyadh and Abu Dhabi should take over responsibility for their security.”
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“Foreign policy sometimes requires difficult compromises. Thankfully, the Cold War is over. Russia is far less dangerous than the Soviet Union; today’s united Europe is far more able to contain Moscow than yesterday’s Western Europe. If Washington officials are going to confront Russia over domestic oppression and foreign aggression, they cannot excuse Saudi Arabia for the same.”