SCOTUS: DOBBS Concurrences and Dissents - End of an Era

+Cassidy Hutchinson Jan 6 Testimony re DJT Awareness of Armed Crowd, Security Tampering, and Alleged Assault on USSS Agent

Jul 08, 2022

In this Issue:

SCOTUS’ Dobbs drops for real
6th January 6 Committee featuring Cassidy Hutchinson
Poem
Out-and-About Photo

SCOTUS’ Dobbs drops for real - Roe v. Wade overturned 5-4.

All those millions of ladies that marched in the pink hats on January 21, 2017, can feel vindicated in their foresight. If you want to read my initial take on the Alito majority opinion when it was leaked a couple months back you can check it out here. I think the majority has a bad read on the cases it uses as support, is avoidant of analyzing the right that is at stake before the Court as it exists in the world, and attempts to hide behind a contrived historical rooted-ness, which if taken to logical ends means the State is about to get a lot more power over the personal lives of Americans. Overturning 50 years of precedent that granted a right to women and then remove it with a weak 5-4 decision with multiple concurrences, means it stands apart from other cases that overturned stare decisis that the majority references in its opinion. The main dissent addresses that difference, and the wackiness of the rooted-ness theory in application.

They all sling Alexander Hamilton and Ruth Bader Ginsburg quotes at each other. In part I think because the Justices find these people having cultural cache, rather than being particularly relevant.
Justice Thomas concurrence has been getting a lot of buzz in that he sees an open season on substantive due process rights. He thinks the State should be able to go after a wide range of people — people in same-sex marriages, contraception, etc — the things Alito in the main opinion was like, ‘…but, don’t worry, these will be fine, even if my logic says they won’t be ;-).’ There is a clear angling in the Thomas concurrence to get rid of heightened scrutiny over laws impacting substantive due process rights (where the State has to demonstrate a compelling interest and/or show that the law is narrowly tailored to that purpose before it can start screwing with people).
- The dissent also made sure to highlight current interracial marriage rights in the United States, which SCOTUS recognized in Loving v. Virginia. Interracial marriage became legal nationwide due to the Supreme Court using the same substantive due process jurisprudence Thomas lists as targets in his concurrence. Of course, that substantive due process right was omitted by Justice Thomas (who is in an interracial marriage with a prominent right-wing activist).
Thomas feels that if the State is prevented from infringing on a right with a law, then that actually infringes on the rights of the faction that want that law passed. This is a bad take for one very important reason. Once a law becomes passed, it is not the property of the factional proponents that advanced its passage, it is now part of the State. The relationship is then between the State and the citizen, not horizontally between factions, which is apparently how Thomas views things:
…once this Court identifies a “fundamental” right for one class of individuals, it invokes the Equal Protection Clause to demand exacting scrutiny of statutes that deny the right to others. See, e.g., Eisenstadt v. Baird, 405 U. S. 438, 453–454 (1972) (relying on Griswold to invalidate a state statute prohibiting distribution of contraceptives to unmarried persons).
- It boils down to ‘people, vis-a-vis the State, should have the right to interfere with your personal life, and the Court shouldn’t get in the way.’ For a lot of these older cases, a question that came before these States was one of, ‘but why though? What State interest is at stake here? Where does the State derive such power?’ In Thomas world, it is apparently not about the State’s interest, but about the ‘right’ for people to use the State apparatus to go after other people and behaviors that they simply do not like. Normally, one would just suggest that the people who feel there should not be contraception could just choose not to use it, as it is not clear how someone else using contraception infringes on anyone else’s rights, at all. Whatever happened to America’s sense of ‘mind your own business’?
Justice Kavanaugh concurrence: seems like he is just happy to be there, and wants everyone to know that he would not support interstate travel restrictions or punishments for abortions performed out-of-state.
Justice Roberts concurrence with Dobbs/dissent from overturning Roe: Roberts’s goal is to show that he respects and understands stare decisis. Absent compelling developments, he is not going to overturn 50 years of precedent just because the Federalist Society managed to plop some warm bodies onto the bench thanks to the political machinations of Mitch McConnell. Roberts (and the main dissent) point out that Mississippi was not even originally advocating for overturning Roe v. Wade, and that it only came about after the Court decided to hear the case. The majority then just decided to go ahead and go for it. Much to Roberts dismay, as he did not feel like it was even warranted to go there in order to support the Mississippi law at issue in Dobbs (a reduction to no abortions after 15 weeks).
Justices Breyer, Sotomayor, and Kagan formed the main dissent, which was a melancholic read. They point out that Roe v. Wade was the compromise, or ‘the balance’ struck at the time. That nothing had significantly changed on the ground in the last 50 years since Roe, or the last 30 years since Casey (which affirmed Roe). The dissent frequently frames the overturning of Roe and Casey as an undeserved power grab by the State, and how the majority’s historical questing (rootedness expeditions) will impact women’s standing in society broadly.
The constitutional regime we have lived in for the last 50 years recognized competing interests, and sought a balance between them. The constitutional regime we enter today erases the woman’s interest and recognizes only the State’s (or the Federal Government’s).
…
Those responsible for the original Constitution, including the Fourteenth Amendment, did not perceive women as equals, and did not recognize women’s rights. When the majority says that we must read our foundational charter as viewed at the time of ratification (except that we may also check it against the Dark Ages), it consigns women to second-class citizenship.
The dissent also addressed the factual issues at stake, which the majority shies away from:
- “…an American woman is 14 times more likely to die by carrying a pregnancy to term than by having an abortion.”
- “Today, 60 percent of women seeking abortions have at least one child, and one-third have two or more.”
- “About 18 percent of pregnancies in this country end in abortion, and about one quarter of American women will have an abortion before the age of 45.”
- The dissent cite studies showing a likelihood of about a 21% increase in maternal mortality rates, and this is the United States, a country that ranks 57th worldwide for maternal mortality rates.

I have seen people upset by this decision say things like “voting is not enough.” However, not enough voting has happened yet where it would matter most. 2016 was an election defined by voter apathy, which was egged on by accelerationist sentiments (meaning, intentionally make, or let, things get so terrible, or even collapse, that a *revolution* becomes inevitable). The current system demands 60 Senators plus a House majority, not 50/50 splits. President Biden may make take some executive actions in the meantime, but those only last at a President’s discretion. The Court’s ruling will likely impact women’s healthcare more broadly for years to come barring any legislative measure, while potentially teeing up for the shredder a host of substantive due process rights Americans have enjoyed for generations.

All that being said, one thing I noticed in my travels and experiences, is that this one issue was like glue for the Republican party. Occasionally made for some strange bedfellows when (usually) religious (typically Catholic) folks were voting Republican just because of this issue. Are they free now? Are they going to try and help keep these women from dying in childbirth? Does this mean we can have healthcare and first rate schools now? Probably not, but you never know. Granted, chances are instead of any systematic solution, they may just do the occasional charity drive here and there. Throw some paper towels three-point style into the delivery room, maybe get some municipalities to fork over some tax-payer money to vague and unaccountable social programs, the whole nine-yards.

The Court’s opinion in full

6th January 6 Committee featuring Cassidy Hutchinson

This hearing had some spicy meatballs, and became the second highest rated January 6th Hearing behind only the prime-time hearing. It went to the element of violence in potential charging of the former President. Hutchinson testified that DJT and company had prior knowledge that things on January 6 had a probability of going south. DJT is alleged to have told security to remove the magnetometers (mags) so that armed followers could come into the secure zone where he was speaking:

I don’t fucking care that they have weapons, they’re not here to hurt me. They’re not here to hurt me. Take the fucking mags [magnetometers] away. Let my people in. They can march to the Capitol from here; let the people in and take the mags away.

When DJT said he would walk to the Capitol with the crowd, but never did, he allegedly did intend to do that. However, the Secret Service said, ‘no.’ Apparently because they could not guarantee safety (they may not have been in the loop on his plan), and an angry DJT assaulted a Secret Service guy in an effort to get his car to turn toward the Capitol rather than the White House.

Violent overthrows bring things more into the realm of seditious conspiracy, and non-protected speech. It was apparently enough for folks at Lawfare to bring them around on the likelihood of criminal liability regarding incitement on January 6.

Given the recent State of Georgia Grand Jury subpoenas to Guilliani, Eastman, Lindsay Graham, Jenna Ellis, and more, I would not be surprised if the DoJ is going to (continue to?) sit back and let the State criminal prosecutions proceed before doing anything at the Federal level in its usual abundance of caution/kid gloves when it comes to Individual One.

The next hearing is on July 12 at 10 AM Eastern.

Link to Cassidy Hutchinson’s testimony in full: