Scott Lemieux Profile picture
Jun 24 20 tweets 7 min read
A non-celebratory thread with some of the most important points from the dissent -- it is no consolation that it is well done, but it is very clear-eyed about the radical implications of a fundamental right being crushed and this is worth highlighting
Anyone who says that Dobbs "sends the issue back to the states" is flatly lying. Under the majority's reasoning, a national ban on abortion from conception with no exceptions would be constitutional
Alito's repeated assertions that overruling Roe does not threaten any of the other privacy cases should not be taken seriously. The logic of the holding threatens them all, and Alito is a known liar on the subject
It is, as the dissent observes, remarkable that Alito cites the common law prohibition on abortion *after* quickening as a point in favor of overruling Roe. THAT'S THE HOLDING IN ROE!
Perhaps the most important point in the dissent. "Originalism," as practiced by the Republican majority, ipso facto means treating women as second-class citizens, as they were when the 14th Amendment was ratified ("by men.")
If the majority's theory that the 14st Amendment must be interpreted as it was generally understood when it was ratified, then Loving v. Virginia was wrongly decided. That's a simple fact.
"And liberty may require it, this Court has repeatedly
said, even when those living in 1868 would not have recognized the claim—because they would not have seen the person making it as a full-fledged member of the community"
"Think of someone telling you that the Jenga tower simply will not collapse."
Distinguishing Roe from the other privacy precedents is just an ipse dixit: "if the majority is right in its legal analysis, all those decisions were wrong, and all those matters properly belong to the States too—whatever the particular state interests involved."
"As a matter of constitutional method, the majority’s commitment to replicate in 2022 every view about the meaning of liberty held in 1868 has precious little to recommend it."
I will quote less from the stare decisis passages because I think Roe stands on its own, but Coney Barrett's "but you can drop the baby off at the fire station!" argument is given the quick, contemptuous dismissal it merits
Another very important point: "health outcomes in
Mississippi are abysmal for both women and children." And thinking that red states that ban abortion will suddenly decide to provide more assistance to mothers and children is pure fantasy
"a state-by-state analysis by public health professionals shows that States with the most restrictive abortion policies also continue to invest the least in women’s and
children’s health."
Very glad to see the dissent point out that the claim (not just the majority but way too many poorly informed pundits) that the U.S. was some kind of outlier on abortion policy is nonsense that requires willful ignorance about how abortion law in Europe actually works in practice
This response to the majority's invocation of Brown is devastating: "if the Brown Court had used the majority’s method of constitutional construction, it might not ever have overruled Plessy, whether 5 or 50 or 500 years later."
Alito's opinion is shoddy hackwork from beginning to end, but as one of my students pointed out last quarter, bless her, its discussion of the reliance interests created by Roe is particularly weak and revealing
"Women have relied on Roe and Casey in this way for 50 years. Many have never known anything else. When Roe and Casey disappear, the loss of power, control, and dignity will be immense."
A useful reminder that the cynical liar Sam Alito asserted that the Court was not allowing Texas to nullify Roe v. Wade, which should strongly inform how we view his bare assertions that the logic of this holding will not be applied to any other line of doctrine
In conclusion, Dobbs is bad law that will have horrible consequences, and is the product of a minority faction having seized a Supreme Court supermajority despite its failure to persuade the public of its views. The Court's legitimacy with the public will continue to erode.
And, yeah, fuck every last one of the fancy liberal lawyers who knowingly supported this outcome, whatever they may try to tell you now

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More from @LemieuxLGM

Jun 24
Alito's concurrence in Bruen is a truly pathetic exercise in whining while excruciatingly insulting your intelligence…
You see, Sam, you're on the country's top appellate Court. When you announce a maximalist new standard for evaluating regulations that suggests most of them are unconstitutional, it is perfectly "legitimate" to discuss its implications beyond the holding of this particular case!
Anyway, Thomas's opinion for the Court was an absolute embarrassment of motivated reasoning and comically transparent dice-loading, and Breyer was if anything far too kind
Read 4 tweets
Jun 23
As Breyer observes, creating a novel standard 230 years after the ratification of the Second Amendment to strike down a law enacted in 1911 in fact requires ignoring a lot of history: Image
The difference between the majority and dissenting opinions is that the latter thinks the state's interest in mitigating the immense harms of firearm violence is relevant and the former does not: Image
The reason the majority rejects the use of empirical data is that the empirical case for New York's regulation is strong: Image
Read 10 tweets
Jun 23
I see the Court has gone from relying on Taney's legal theories without citation (as in Shelby County) to just going right ahead and citing him directly. Why not, in contemporary Republican jurisprudence John Calhoun is the Founding Father
You might think that the fact that Taney's theory, tossed off for the purposes of terrifying a racist audience, did not appear in any case *actually dealing with firearms* for the first 230 years after the ratification of the Second Amendment would give an "originalist" pause but
"If my nutty policy preferences can be found in Roger Taney's hysterical racist oooga-booga they must be required by the Constitution" is one hell of a place to end up, and these six justices or people who think like them will be ruling us for decades
Read 5 tweets
Jun 23
I think this was a sound no-call, but in any case the Lightning are permanently estopped from complaining about officiating in the Stanley Cup finals
LOL they're trying to claim THIS was too many men? With the puck nowhere near the bench? Get the fuck outta here
Of course the bad news is that you know the NHL is going to now make too many men challengeable, so after every OT winner we can spend 20 minutes wondering if the team can celebrate so video officials can look for some trivial infraction with no material impact on the play
Read 4 tweets
Jun 22
I've seen people defend this piece at a high level of abstraction, I've seen people defend its uncontroversial minor claims (obviously shunning people over *false* accusations is bad), now I've seen someone say "people are reading it!" but does anybody defend its central claim?
If I were inclined to reflexively defend every "cancel culture" story I too would go with "this whole story is nuts but [retreat to banal point buried deep in the piece]" rather than defending the core claim that it's bad not to want to associate with a sex pest on the merits
Yes, one reason the piece is so frustrating (and a massive editorial failure) is that the raw material for a really interesting story is there but the framing is bizarre clickbait
Read 4 tweets
Jun 21
As always, whenever I read an argument like this my question is whether they think "it is wrong for people to think less of you when you do awful things" is a sound general principle, or does it apply only to men who are sexually abusive toward women?…
"Young person is unpopular with their high school class and leaves to go to college elsewhere" is one of the most banal stories imaginable, and often what made them unpopular is "got braces" or "made friends with a dork" or something
Yeah this was just an amazing detail to throw in at the end of a story about how someone was allegedly "canceled at 17" there
Read 6 tweets

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