“the Supreme Court allowed a Texas law that effectively bans all abortions after six weeks of pregnancy to take effect.
Twenty-four hours later, the Court released a brief, one-paragraph order explaining why it did so — though it is a stretch to describe the Court’s short and thinly reasoned order as an “explanation”. The vote in Whole Woman’s Health v. Jackson was 5-4, with conservative Chief Justice John Roberts crossing over to vote with the three liberal justices.
The implications of this order are breathtaking. The Texas law violates the precedent established in Planned Parenthood v. Casey (1992), which protects “the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the state.” The sixth week of gestation is so early in a pregnancy that many people aren’t even aware they are pregnant.
At least 85 percent of abortions in Texas take place after the sixth week of pregnancy, according to the abortion providers who sued to block Texas’s law, SB 8. All of those abortions are now illegal in the state.
But the implications of the Court’s decision in Whole Woman’s Health stretch further.
SB 8 relies on a highly unusual enforcement mechanism. No state officer is permitted to enforce the statute. Instead, the law permits “any person, other than an officer or employee of a state or local governmental entity in this state” to file a lawsuit against an abortion provider or anyone who “aids or abets the performance or inducement of an abortion.” A plaintiff who prevails in such a lawsuit is entitled to bounty of at least $10,000, paid by the person they sued.
As Justice Sonia Sotomayor explains in one of four opinions filed by the dissenting justices, Texas lawmakers “fashioned this scheme because federal constitutional challenges to state laws ordinarily are brought against state officers who are in charge of enforcing the law.” So if no state officer can enforce the law, it is unclear whether anyone can be sued to block it.
The Supreme Court’s order, joined by the five most conservative justices, effectively blesses this method of evading judicial review.
But if Texas can avoid a court order blocking its anti-abortion law by delegating enforcement of the law to private bounty hunters, so can any other state. Indeed, nothing in the Court’s order prevents another state from passing a law banning all abortions — provided that the law is enforced using SB 8-style private lawsuits.”
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“Allowing a law to stand that violates the Supreme Court’s 1992 Planned Parenthood v. Casey decision means that the constitutional right to an abortion is effectively dead. States now have the power to ban abortion for the first time since the Roe v. Wade ruling was handed down in 1973.
While it is theoretically possible that the Court could reverse course in subsequent litigation and strike down SB 8, the sort of justices who would allow such a law to take effect are exceedingly unlikely to do so. And the Court is already planning to hear a case in its next term, Dobbs v. Jackson Women’s Health Organization, which it can use to overrule Roe explicitly.”
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“The Court has now signaled that it will permit states to enact laws that were intentionally drafted to frustrate judicial review, at least if a majority of the Court agrees with what that law is trying to accomplish. And it handed down one of the most monumental decisions of our era — a decision effectively overturning Roe v. Wade — in a shadow docket order that offers virtually no reasoning.”
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“With their decision in Whole Woman’s Health, the justices have unleashed a monster. If taken seriously, that decision would allow any state to subject any person or institution to an overwhelming wave of lawsuits that they cannot possibly defend against. SB 8 is a direct attack on the rule of law and the principle that everyone should have their day in court before they are punished by the state.
It’s an attack on the 14th Amendment, which provides that no state may “deprive any person of life, liberty, or property, without due process of law.”
But, of course, if a state were to target gun owners, or Alito, or anyone else the Supreme Court’s most conservative justices approve of, the Court would almost certainly step in to protect a conservative litigant. Just last month, in Chrysafis v. Marks, the Supreme Court blocked part of New York state’s eviction moratorium because it “denies the landlord a hearing” before that landlord is required to house an unwanted tenant.
The Supreme Court is quite protective of due process — when the right litigant seeks the Court’s protection. One of the most disturbing things about Whole Woman’s Health is that it suggests the Court has abandoned its most fundamental principle: equal justice under law.”
“In May, Texas Gov. Greg Abbott (R) signed a state law that effectively bans abortions after the sixth week of pregnancy — sooner than many people learn they are pregnant. This law violates the ruling in Planned Parenthood v. Casey (1992), which protects “the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the state.”
Nevertheless, the law took effect on Wednesday after a Supreme Court dominated by Republican appointees refused to grant a group of litigants’ emergency request and block it. Twenty-four hours later, the Court handed down a very brief order formally holding that the law may take effect.
The Court’s non-action on the Texas law almost certainly foreshadows a more explicit attack on abortion rights in a future case, and the Court is already scheduled to decide another abortion case next year.”
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“SB 8 is unlike most other laws in that it was written to prevent courts from blocking it before it takes effect.
The anti-abortion law, which is before the Supreme Court in a case called Whole Woman’s Health v. Jackson, presents a maze of procedural complexities that are rarely seen in even the most complicated litigation. The law appears to have been drafted to intentionally frustrate lawsuits challenging its constitutionality. And Texas, with an assist from a right-wing appellate court, has thus far manipulated the litigation process to prevent any judge from considering whether SB 8 is lawful.
The stakes in this case are astronomical. Six weeks into a pregnancy is often very soon after a pregnant person misses their first menstrual period. So they may not even be aware that they are pregnant until it is too late. According to the abortion providers who are suing to block SB 8, at least 85 percent of abortions in Texas take place after the sixth week of pregnancy. Those abortions are now illegal under SB 8.
And the stakes in Whole Woman’s Health stretch far beyond abortion. SB 8 was drafted to frustrate judicial review before the law took effect. Now that the Supreme Court appears to have embraced this tactic, other states could copy it, potentially allowing states to enact all kinds of unconstitutional practices that can’t be challenged until after an unconstitutional law takes effect.”
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“The way it’s written, a Texan who objects to SB 8 may have no one they can sue to stop it from taking effect.
For one, abortion rights plaintiffs can’t sue their state directly. The ordinary rule is that when someone sues a state in order to block a state law, they cannot sue the state directly. States benefit from a doctrine known as “sovereign immunity,” which typically prevents lawsuits against the state itself.
But they also can’t really follow the same path that most citizens who want to stop laws do. That path relies on Ex parte Young (1908), a decision in which the Supreme Court established that someone raising a constitutional challenge to a state law may sue the state officer charged with enforcing that law — and obtain a court order preventing that officer from enforcing it. So, for example, if Texas passed a law requiring the state medical board to strip all abortion providers of their medical licenses, a plaintiff could sue the medical board. If a state passed a law requiring state police to blockade abortion clinics, a plaintiff might sue the chief of the state’s police force.
Part of what makes SB 8 such a bizarre law is that it does not permit any state official to enforce it. Rather, the statute provides that it “shall be enforced exclusively through . . . private civil actions.”
Under the law, “any person, other than an officer or employee of a state or local governmental entity in this state,” may bring a private lawsuit against anyone who performs an abortion after the sixth week of pregnancy, or against anyone who “knowingly engages in conduct that aids or abets the performance or inducement of an abortion.” Plaintiffs who prevail in such suits shall receive at least $10,000 from the defendant.
SB 8, in other words, attempts to make an end run around Young by preventing state officials from directly enforcing the law. Again, Young established that a plaintiff may sue a state official charged with enforcing a state law in order to block enforcement of that law. But if no state official is charged with enforcing the law, there’s no one to sue in order to block the law.”
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“Now that the law has taken effect, abortion providers (plus anyone who “aids or abets” an abortion, a vague term that is not defined in the statute) will undoubtedly be bombarded with lawsuits seeking the $10,000 bounty authorized by the new state law. These defendants will then be able to argue in court that they should not be required to pay this bounty because it is unconstitutional.
But they will do so under the threat of having to pay such a bounty to anyone who brings a lawsuit against them. Even if abortion providers prevail in all of these suits, moreover, they will still have to pay for lawyers to defend themselves in court. And the suits seeking a bounty under SB 8 will likely be numerous and endless, because literally “any person” who is not a Texas state officer can file such a suit.
If SB 8 remains in effect, any abortion providers who do remain operational are likely to be crushed by a wave of lawsuits that they cannot afford to litigate.”
“in the U.S., one party has become a major illiberal outlier: The Republican Party. Scholars at the V-Dem Institute at the University of Gothenburg in Sweden have been monitoring and evaluating political parties around the world. And one big area of study for them is liberalism and illiberalism, or a party’s commitment (or lack thereof) to democratic norms prior to elections. And as the chart below shows, of conservative, right-leaning parties across the globe, the Republican Party has more in common with the dangerously authoritarian parties in Hungary and Turkey than it does with conservative parties in the U.K. or Germany.”
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“People in countries with majoritarian(ish) democracies, or two very dominant parties dominating its politics like in the U.S. — think Canada, Britain, Australia — have displayed more unfavorable feelings toward the political opposition.”
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“another team of scholars, Noam Gidron, James Adams and Will Horne, shows that citizens in majoritarian democracies with less proportional representation dislike both their own parties and opposing parties more than citizens in multiparty democracies with more proportional representation.1”
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“This pattern may have something to do with the shifting politics of coalition formation in proportional democracies, where few political enemies are ever permanent (e.g., the unlikely new governing coalition in Israel). This also echoes something social psychologists have found in running experiments on group behavior: Breaking people into three groups instead of two leads to less animosity. Something, in other words, appears to be unique about the binary condition, or in this case, the two-party system, that triggers the kind of good-vs-evil, dark-vs-light, us-against-them thinking that is particularly pronounced in the U.S.”
“Over the weekend, President Kais Saied fired the country’s prime minister and suspended Parliament in what his political opponents have called a coup. But he says the move was justified after thousands of Tunisians took to the streets in recent days to protest the government’s handling of the pandemic, which has deepened the country’s economic woes.
Supporters of the president cheered his ousting of Prime Minister Hichem Mechichi and other government ministers, but those celebrations turned to clashes when those who opposed Saied’s moves also took to the streets to protest.
“One of the big question marks is: Is this a coup?” said Sarah Yerkes, a former State Department and Pentagon official and now a senior fellow in Carnegie’s Middle East Program who focuses on Tunisia. That’s a question a lot of people are asking right now, and it doesn’t actually have a straightforward answer, in part because democracy in Tunisia is still very new.”
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“The president has, I would say, extralegally, or outside of normal legal channels, fired the prime minister. He is allowed to do that, although he has to consult with Parliament — but he also suspended Parliament. And so that is certainly not something he’s allowed to do.
He has fired other ministers, too. So he declared himself kind of the chief executive. He normally functions as the head of state, and then the prime minister is the head of government. The president, in normal times, just has control over foreign affairs, defense, and national security. The prime minister oversees everything else. But now the president is overseeing everything.”
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“When the president made the declaration, he said he was following Tunisia’s Constitution. There is this article, Article 80, that allows the president to take on emergency powers. But I’ve been following various Tunisian legal experts on social media and through other conversations, and it seems that Article 80 does not really apply to how the president carried things out.”
“Blocking an inquiry into the January 6 attack on the Capitol, embracing Trump’s “Big Lie” that the election was stolen, making it easier for partisans to tamper with the process of counting votes: These are not the actions of a party committed to the basic idea of open, representative government.
It’s common to call this GOP behavior “anti-democratic,” but the description can only go so far. It tells us what they’re moving America away from, but not where they want to take it. The term “minority rule” is closer, but euphemistic; it puts the Republican actions in the same category as a Supreme Court ruling, countermajoritarian moves inside a democratic framework rather than something fundamentally opposed to it.
It’s worth being clear about this: The GOP has become an authoritarian party pushing an authoritarian policy agenda.”
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“When people think of authoritarian governments, they typically think of police states and 20th-century totalitarianism. But “authoritarianism” is actually a broad term, encompassing very different governments united mostly by the fact that they do not transfer power through free and fair elections.”
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“competitive authoritarian systems survive in part by convincing citizens that they are living in a democracy. That’s how they maintain their legitimacy and prevent popular uprisings. As such, they do not conduct the kind of obvious sham elections held in places like Bashar al-Assad’s Syria (he won the 2021 contest with 95 percent of the “vote”).
In competitive authoritarianism, the opposition does have some ability to win a bit of power through, well, competition — even if the scope of their possible victories are limited.
It’s a tricky balance for the regime to pull off: rigging elections enough to maintain power indefinitely while still permitting enough democracy that citizens don’t rise up in outrage. Many competitive authoritarian regimes have collapsed under the stress, either transitioning to democracy (like Taiwan) or forcefully repressing the opposition and becoming a more traditional autocracy (like Belarus).”
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“Happily, the United States still passes the most basic test of whether a system is democratic: whether the public can vote out its leaders. But it is hard to deny that the Republican Party has begun chipping away at that baseline principle, using the flaws in our political system to entrench their power.”
“In a speech on voting rights delivered on Friday, Attorney General Merrick Garland warned that “the dramatic increase in menacing and violent threats against all manner of state and local election workers” is a threat to the country’s democracy.
Garland is right to be concerned. A new survey released by the Brennan Center for Justice found that 17 percent of local election officials in the United States have faced threats because of their job. The same survey, which was released alongside a larger report by Brennan and the Bipartisan Policy Center on threats to America’s elections, found that nearly a third of these officials — 32 percent — have “felt unsafe because of [their] job as a local election official.”
The survey was conducted by Benenson Strategy Group, and it included interviews with 233 election officials “from across the country.”
The Brennan Center’s survey quantifies a phenomenon that appears to have emerged from former President Donald Trump’s conduct during the 2020 election, and his subsequent defeat in that election. Just hours before Garland pledged to prosecute individuals who target election officials in that same speech, Reuters published a long article cataloging some of the threats faced by election administrators and their families.”
“State and local election offices fear they are set to face a wave of retirements and resignations after confronting the dual burdens of a pandemic and a rise in conspiracy-fueled threats.
A new survey of over 200 local election officials — the people responsible for running polling places, maintaining voter rolls and counting and certifying the results of elections — found that roughly one-third were either very or somewhat concerned about “being harassed on the job” or “feeling unsafe” at work during the 2020 election cycle. Nearly 4-in-10 respondents in the survey, which was conducted by the Brennan Center for Justice and Bipartisan Policy Center, reported the same level of concern about “facing pressure to certify election results.””
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““What is normally a fairly obscure administrative job is now one where lunatics are threatening to murder your children,” said Al Schmidt, one of the three members of Philadelphia’s city board of elections. Schmidt, a Republican, announced in January that he will not seek reelection to his post in 2023. “That is not something anyone anticipates or signs up for.””
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““It’s a big challenge and, I think, a potential crisis for democracy,” said Lawrence Norden, the director of the election reform program at the Brennan Center, a left-leaning think tank. “The real question is: Who replaces them when they leave?””
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““I think that the big danger here is especially if those positions — which, again, are typically pretty obscure — are targeted to replace those professional election administrators with partisan political operatives whose job it is to undermine confidence” in the electoral system, Schmidt continued.”
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“Election administrators are also concerned about new laws in several states that exposed election officials to more criminal and civil penalties for wrongdoing. A bipartisan pair of prominent election attorneys warned in a New York Times essay that the laws could be used to intimidate election officials or punish them for honest mistakes.
“The people that are involved in elections are civic-minded individuals who just want to be part of a democracy, to make it fair and equitable. Nobody’s there for the pay,” said Roxanna Moritz, a Democrat who recently retired early from her position as Scott County, Iowa’s chief elections official, citing a lack of support. “I think that the criminalization in these states are going to cause people to say ‘Okay, it’s time for me to leave. I could make a mistake.’””
“In order for democracy to work, competing parties must accept that they can lose elections, and that it’s okay. But when partisans see their political opposition not just as the opposition, but as a genuine threat to the well-being of the nation, support for democratic norms fades because “winning” becomes everything. Politics, in turn, collapses into an all-out war of “us against them,” a kind of “pernicious polarization” that appears over and over again in democratic collapses, and bears a striking similarity to what’s currently happening in the U.S.
There’s no shortage of plausible explanations for why U.S. politics has become so polarized, but many of these theories describe impossible-to-reverse trends that have played out across developed democracies, like the rise of social media and the increased political salience of globalization, immigration and urban-rural cultural divides. All of these trends are important contributors, for sure. But if they alone are driving illiberalism and hyper-partisanship in the U.S., then the problem should be consistent across all western democracies. But it isn’t.
What’s happening in the U.S. is distinct in four respects.
First, the animosity that people feel toward opposing parties relative to their own (what’s known as affective polarization in political science) has grown considerably over the last four decades. According to a June 2020 paper from economists Levi Boxell, Matthew Gentzkow and Jesse M. Shapiro, the increase in affective polarization in the U.S. is the greatest compared to that of eight other OECD countries over the same time period.
Second, the change in how Americans feel about their party and other parties has been driven by a dramatic decrease in positive feelings toward the opposing party. In most (though not all) of the nine democracies, voters have become a little less enthusiastic about their own parties. But only in the U.S. have partisans turned decidedly against the other party.”
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” Third, more so than in other countries, Americans report feeling isolated from their own party. When asked to identify both themselves and their favored party on an 11-point scale in a 2012 survey, Americans identified themselves as, on average, 1.3 units away from the party that comes closest to espousing their beliefs”
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“This gap is the highest difference Rodden found among respondents in comparable democracies. This isolation matters, too, because it means that parties can’t count on enthusiasm from their own voters — instead, they must demonize the political opposition in order to mobilize voters.
Fourth, and perhaps most significant, in the U.S., one party has become a major illiberal outlier: The Republican Party. Scholars at the V-Dem Institute at the University of Gothenburg in Sweden have been monitoring and evaluating political parties around the world. And one big area of study for them is liberalism and illiberalism, or a party’s commitment (or lack thereof) to democratic norms prior to elections. And as the chart below shows, of conservative, right-leaning parties across the globe, the Republican Party has more in common with the dangerously authoritarian parties in Hungary and Turkey than it does with conservative parties in the U.K. or Germany.
The U.S. is truly exceptional in just how polarized its politics have become, but it’s not alone. People in countries with majoritarian(ish) democracies, or two very dominant parties dominating its politics like in the U.S. — think Canada, Britain, Australia — have displayed more unfavorable feelings toward the political opposition.
In fact, in a new book, “American Affective Polarization in Comparative Perspective,” another team of scholars, Noam Gidron, James Adams and Will Horne, shows that citizens in majoritarian democracies with less proportional representation dislike both their own parties and opposing parties more than citizens in multiparty democracies with more proportional representation.”
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“there is also something particular about what’s happening in the U.S., even compared to other majoritarian(ish) democracies. For example, the major parties on the right in Canada and Australia have not become as illiberal as their American counterpart.”
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“While it is both easy and appropriate to criticize Trump and fellow Republicans for their anti-democratic descent in service of the “Big Lie,” it takes more work to appreciate how the structure of the party system itself laid the groundwork for the former president’s politics of loathing and fear. A politics defined by hatred of political opponents is a politics ripe for hateful illiberalism.
The new scholarship on comparative polarization is crucial in understanding this dynamic. In one sense, it offers a very depressing view: Given the current binary structure of American party politics, this conflict is mostly locked in. No level of social media regulation or media literacy or exhortation to civility is going to make much of a difference. But it also offers a kind of master key: If the structure of a party system is as crucial as these studies suggest it is, then the solution is obvious: The U.S. may want to change its voting system to become more proportional.”
“Democratic governance is in high demand, according to the 2021 edition of the annual Democracy Perception Index, a poll of more than 50,000 people in 53 nations. But it’s also perceived to be threatened—by economic inequality, by suppression of free speech, by big tech companies, by unfair or corrupted elections, and by the United States of America.
44 percent of the respondents are worried the United States threatens democracy in their home countries. By contrast, 38 percent said that about China and 28 percent about Russia. The U.S. was deemed the biggest threat of the three in free and unfree nations alike. It was the top pick in Europe and Latin America, and it nearly tied with China for this dishonor in Asia. Only a few African nations were polled, not enough for a regional average, but the U.S. was the most widely selected threat there, too.”
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“Perhaps the United States is seen as a threat to other nations’ democracy because our government is often less an exemplar of liberty than a belligerent global meddler. Perhaps it’s because Washington has spent the past two decades invading and occupying large swaths of the Middle East and North Africa. Perhaps it’s because our leaders’ diplomacy is frequently ham-fisted, hubristic, and naïve. Perhaps it’s because Washington has literally overthrown democratic governments and has a unique—and risky—network of hundreds of military bases worldwide.”