What Does Republican Rule Look Like? For Women?

Yesterday, the Alabama House went for the big enchilada-- overturning Roe v Wade. The state House has 77 Republicans and just 28 Democrats. (The state Senate has 27 Republicans and 8 Democrats.) The executive branch is also controlled by the GOP. There are no checks; there are no balances. A state in which just a third of the people voted for Clinton and in which only 41% went along with the 2018 congressional correction-- has made the big move many red states want to make. AP reported that Alabama's House "voted overwhelmingly Tuesday to outlaw almost all abortions in the state as conservatives took aim at the 1973 U.S. Supreme Court decision that legalized abortion nationwide." After the Democrats walked out of the chamber, there were just 3 votes against a bill that would make it a felony to perform an abortion at any stage in a woman’s pregnancy, with no regard for rape or incest.

Anti-Choice fanatics inside and outside Alabama gladly admit the bill is intentionally designed to conflict with Roe v. Wade, hoping to spark court cases that will give a conservative Supreme Court the opportunity to relitigate and throw out Roe v Wade, the ultimate strategy of half the Republican Party. (The ultimate startegy of the other half of the Republican Party is to throw out the New Deal.)

“The heart of this bill is to confront a decision that was made by the courts in 1973 that said the baby in a womb is not a person,” said Republican Rep. Terri Collins of Decatur.

Republicans in the chamber applauded after the bill was approved after more than two hours of sometimes emotional debate. Collins acknowledged that such a ban would likely be struck down by lower courts, but she said the aim is eventually to get to the Supreme Court.

Without the numbers to stop the bill, Democrats walked off the House floor ahead of the vote, calling the proposal both extreme and fiscally irresponsible. They said the ban would cost the state money for a potentially expensive legal fight that could be spent on other needs.

Rep. Louise Alexander, a Democrat, said the choice to give birth to a child should be left up to a woman, and the decision should not be made on the floor of the Alabama Legislature.

“You don’t know why I may want to have an abortion. It may be because of my health. It may be because of many reasons. Until all of you in this room walk in a woman’s shoes, y’all don’t know,” Alexander said.

Emboldened by new conservatives on the Supreme Court, abortion opponents in several states are seeking to incite new legal fights in the hopes of challenging Roe v. Wade. The Alabama bill comes on the heels of several states considering or approving bans on abortion once a fetal heartbeat is detected, which occurs in about the sixth week of pregnancy.

The Alabama bill attempts to go farther by banning abortion at any stage of pregnancy.

House Republicans voted down Democrats’ attempt to amend the bill to add an exemption for rape and incest. Representatives voted 72-26 to table the proposed amendment.

“They would not even allow an exception for rape and incest... What does that say to the women in this state,” House Minority Leader Anthony Daniels.

Collins argued that adding exemptions would weaken the intent of the bill as a vehicle to challenge Roe. She said if states regain the ability to decide abortion access, Alabama lawmakers could come back and decide what exemptions to allow.

...Rep. Rolanda Hollis, a Birmingham Democrat, read a poem that criticized Republicans’ embrace of gun rights but not abortion rights, and later referred to the state as “Ala-Backwards.”

Once the Gov. Kay Ivey signs the bill, all abortions would be classified as Class A felonies in the state. A doctor caught performing an abortion in Alabama would face up to 99 years in prison. This might be a good time to remind you which members of the Supreme Court are eager to strike down Roe v Wade-- and which Democrats made their rise to the Court possible.

• Clarence Thomas
Joe Biden, as Chair of the Senate Judiciary Committee, rigged the hearings to guarantee Thomas would be confirmed. 11 Democrats voted to confirm: Dixon (IL), Exon (NE), Hollings (SC), Fowler (GA), Nunn (GA), Breaux (LA), Johnston (LA), Boren (OK), Shelby (AL; he's now a Republican), DeConcini (AZ), Robb (VA)

• John Roberts
22 Democrats voted to confirm him, including 4 still serving: Lincoln (AR), Pryor (AR), Salazar (CO), Dodd (CT), Lieberman (CT), Carper (DE), Nelson (FL), Landrieu (LA), Levin (MI), Baucus (MT), Nelson (NE), Bingaman (NM), Conrad (ND), Dorgan (ND), Wyden (OR), Johnson (SD), Leahy (VT), Murray (WA), Bryrd (WV), Rockefeller (WV), Feingold (WI), Kohl (WI)

• Sammy Alito
25 Democrats voted to break the filibuster, allowing Alito to be confirmed: Akaka (HI), Baucus (MT), Bayh (IN), Bingaman (NM), Byrd (WV), Cantell (WA), Carper (DE), Conrad (ND), Dorgan (ND), Inouye (HI), Johnson (SD), Kohl (WI), Landrieu (LA), Lieberman (CT), Lincoln (AR), Nelson (FL), Nelson (NE), Pryor (AR), Rockefeller (WV), Salazar (CO)

• Neil Gorsuch
3 Democrats voted to break the filibuster, allowing Gorsuch to be confirmed: Manchin (WV), Heitkamp (ND), Donnelly (IN)

• Brett Kavanaugh
The only Democrat voting with the GOP to break the filibuster that allowed Kavanaugh to be confirmed was Joe Manchin of West Virginia.

You don't see progressive Democrats on those lists of who sold us out of the years. You see crooked conservative careerists backed by the party establishment. Most of them are gone from politics today, although one is trying to reinvent himself and is attempting to slip into the Oval Office. Be careful. The right-to-choice wouldn't be in danger if Joe Biden had done his job as chair of the Senate Judiciary Committee.

Eva Putzova is a Flagstaff progressive battling a faux Democratic incumbent for Arizona's largest congressional district. He's a former Republican legislator who switched to be an independent and then, when the opportunity to slither into Congress came up, he re-registered as a Democrat. That's virtually the only Democratic thing Tom O'Halleran has ever done. He has one of the most anti-progressive voting records in Congress and has earned a solid "F" for his two terms of bad votes. This afternoon, Eva told us that her "grandmother died from a botched abortion. It was 1946 in a post-war Europe. She took my two-year old mother, her daughter, and walked 15 miles to a nearby village to get the procedure done. She never came back and my mom grew up without ever knowing her mother. Is this really what we want for American women in the 21st century? And let's be clear-- this is way more than a women's issue. This is a matter of social, economic, and racial justice. I will fight in Congress for all women-- regardless of their ability to pay or travel-- to have access to the full spectrum of reproductive healthcare services." Who you want to trust to fight for all women's right to choice, Eva or the "ex"-Republican backed by a craven and incredibly corrupt DCCC? Please consider helping Eva by clicking on the Blue America primary a Blue Dog thermometer on the right.

The Deal With The Devil Is Paying Off For Evangelical Voters

Did you watch Meet The Press Sunday? The highlight was Alexandria Ocasio-Cortez but Chuck Todd had another interesting guest as well, Maria Canwell, a standard issue Democrat from Washington (state and DC). Cantell had a warning for senators in regard to Trump's not-as-yet named replacement for Anthony Kennedy. "My colleagues," she said, "on both sides of the aisle know that this vote could be one of the key votes of their entire career. If they vote for somebody who's going to change precedent, it could be a career-ending move."

Remember, during his hate-filled campaign, Trump repeatedly said he would appoint nominees who would overturn Roe v. Wade, one of the top reasons over 80% of evangelicals voted for him and still support him, despite his obvious personal flaws.

On CNN yesterday, Susan Collins (R-ME) said she wouldn't support anyone who is against the Roe v. Wade. How will she know? By remembering what Trump said during the campaign? "I would not support a nominee who demonstrated hostility to Roe v. Wade because that would mean to me that their judicial philosophy did not include a respect for established decisions, established law."

CNN's top legal analyst, Jeffrey Toobin, also writes for the New Yorker and this week, he explained how How Trump's Supreme Court Pick Could Undo Kennedy's Legacy, although I think Kennedy already did that by retiring before the midterms. A conservative, Kennedy was considered the swing vote on the court because he departed from right-wing orthodoxy on some key issues: gay rights, affirmative action, the death penalty, and, in Toobin's opinion, "most notably, abortion rights. In the 1992 case of Planned Parenthood v. Casey, Kennedy voted to uphold Roe v. Wade, and he remained a reluctant but steady advocate for maintaining the precedent."

The whole purpose of Trump’s Supreme Court selection process has been to eliminate the possibility of nominating someone who might commit Kennedy’s perfidies of moderation. The activists from the Federalist Society and the Heritage Foundation who supplied the President’s list of twenty-five prospective nominees are determined to tear down the monuments, on select issues, that Kennedy has built. Their labors have already produced one soaring success, in the confirmation, last year, of Neil Gorsuch. His extremism has exceeded that of his predecessor Antonin Scalia and equalled that of his colleague Clarence Thomas, the Justice with whom he has voted most often.

Yet it’s far from certain that the public wants the kinds of rulings that a brazen conservative majority would produce. So the nominee and his or her supporters will avoid spelling out the implications of this judicial philosophy. As with Gorsuch, the nominee will be supported with meaningless buzz phrases: he or she will be opposed to “legislating from the bench” and in favor of “judicial restraint.” Like Gorsuch, the nominee will rely on airy generalities rather than on specific examples. It’s all the more important, then, to articulate in plain English what, if such a nominee is confirmed, a new majority will do.

It will overrule Roe v. Wade, allowing states to ban abortions and to criminally prosecute any physicians and nurses who perform them. It will allow shopkeepers, restaurateurs, and hotel owners to refuse service to gay customers on religious grounds. It will guarantee that fewer African-American and Latino students attend élite universities. It will approve laws designed to hinder voting rights. It will sanction execution by grotesque means. It will invoke the Second Amendment to prohibit states from engaging in gun control, including the regulation of machine guns and bump stocks.

And these are just the issues that draw the most attention. In many respects, the most important right-wing agenda item for the judiciary is the undermining of the regulatory state. In the rush of conservative rulings at the end of this term, one of the most important received relatively little notice. In Janus v. afscme, a 5–4 majority (including Kennedy) said that public employees who receive the benefits of union-negotiated contracts can excuse themselves from paying union dues. In doing so, the Justices overruled a Supreme Court precedent that, as it happens, was nearly as old as Roe v. Wade. (Chief Justice John Roberts, who has made much of his reverence for stare decisis, joined in the trashing of this precedent, and will likely join his colleagues in rejecting more of them.) The decision not only cripples public-sector unions-- itself a cherished conservative goal-- but does so, oddly enough, on First Amendment grounds. The majority said that forcing government workers to pay dues violates their right to free speech. But, as Justice Elena Kagan wrote in a dissent, this is “weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.” She added, “Speech is everywhere-- a part of every human activity (employment, health care, securities trading, you name it). For that reason, almost all economic and regulatory policy affects or touches speech. So the majority’s road runs long.”

Anthony Kennedy didn’t spend his entire career on that road, and there is, in his best opinions, the kind of decency and empathy that characterized many of the moderate Republicans who once dominated the Court, such as Justices Potter Stewart, Harry Blackmun, and Sandra Day O’Connor. Kennedy’s words at the conclusion of the Obergefell opinion deserve to be his judicial epitaph. “It would misunderstand these men and women to say they disrespect the idea of marriage,” he wrote. “Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.” But the Constitution grants only those rights that the Supreme Court says it grants, and a new majority can and will bestow those rights, and take them away, in chilling new ways.

Snopes: "A June 2018 news report accurately described the controversial reality of children facing deportation proceedings without legal representation."

So who will fill Merrick Garland's Supreme Court seat?

by Ken

There's a good chance, as we knew all through the 2016 presidential derby, that the Supreme Court we now think of as the "Roberts Court" is going to be transformed over the next few years into the "Trump Court."

For now, President Trump has one vacancy to fill, the one that remains because Republicans took one of their more outrageous dumps on the Constitution by refusing to consider former President Obama's nominee, Merrick Garland, to fill the seat vacated by the death of Justice Antonin Scalia. By now you'd figure that all the Republican senators who committed this consitutional outrage would be on Death Row pending appeals of their treason convictions.

And while no one hopes for even the most minimal level of competence or decency in the Trump pick for this seat, which we're told now will be announced February 2 ("We have outstanding candidates. We'll pick a truly great Supreme Court justice"), it changes the High Court only in the sense that it returns it to its status before Scalia's death, as a more or less reliable -- usually depending on the judicial vagaries of Justice "Slow Anthony" Kennedy -- right-wing death machine. Of course this represents a big change from the 4-4 deadlock that has existed on the shrunken court.

According to the sources consuilted by the Washington Post's Supreme Court reporter, Robert Barnes, the hot prospects on the administration's current short list of candidates are judges from four circuits of the federal Court of Appeals. Here are Barnes's backgrounders on the fearsome foursome:

WILLIAM PRYOR, 11th Circuit (Atlanta)

One candidate on the shortlist that probably would not meet [Senate Minority Leader Chuck] Schumer’s test ["It's hard for me to imagine a nominee that Donald Trump would choose that would get Republican support that we could support"] is the one Trump has specifically mentioned.

That is Pryor, 54, a protege of Trump’s choice for attorney general, Sen. Jeff Sessions. Pryor followed Sessions as Alabama’s attorney general and had a contentious Senate confirmation after President George W. Bush nominated him to the bench. Bush eventually made him a rare recess appointment in 2004, and he was finally confirmed by the Senate as part of a compromise deal.

Pryor thrilled supporters at his hearing by not backing away from a previous observation that the Roe v. Wade decision was a constitutional “abomination.” His past comments on gay rights and stalwart support of the death penalty have made him the nominee that liberal groups say they would most fiercely oppose.

He has long been considered the front-runner for the job but lately has drawn fire from some staunch conservatives. Several groups have objected to a decision he joined that upheld the right of a transgender woman to sue over being fired. The appeals court panel based its decision on Supreme Court precedent, but conservative groups said Pryor’s decision was unwarranted.

John G. Malcolm of the Heritage Foundation, one of the groups that supplied Trump with names of potential nominees, defended Pryor in the National Review. Criticism of the judge from the left was expected, Malcolm wrote, but the attack from the right “is a strange development.”

NEIL GORSUCH, 10th Circuit (Denver)

Gorsuch, 49, would not bring the outsider credentials represented by others on Trump’s list. His mother, Anne Gorsuch Burford, headed the Environmental Protection Agency under President Ronald Reagan, and he was raised in Washington. His résumé includes Columbia University, Oxford and Harvard Law.

He is seen as a reliable conservative, with a reputation for clear and lucid writing. His law clerks regularly move on to the Supreme Court — not just for conservative justices but also for liberals such as Sonia Sotomayor and Elena Kagan.

Gorsuch is an originalist, like Scalia, meaning he attempts to interpret the words of the Constitution as they were understood at the time they were written. He is protective of religious rights and found that they could be infringed by requirements of the Affordable Care Act requiring employers to provide contraceptive services.

THOMAS HARDIMAN, 3rd Circuit (Philadelphia)

Hardiman, 51, has more of the backstory Trump might find appealing. He was the first in his family to go to college, and for a time, he drove a taxi to finance his education at Notre Dame and Georgetown University Law Center. He is a lifelong Republican who married into a Pennsylvania family with prominent Democratic roots.

Hardiman serves on the 3rd Circuit with Trump’s sister Maryanne Trump Barry. Conservatives praise his record on gun rights — he dissented from a decision that upheld New Jersey’s restrictive law on who may receive a permit to carry a gun. The Supreme Court declined to review the decision.

But the justices on a 5-to-4 vote upheld one of his decisions that said jails were justified in strip searches for those being committed, no matter the seriousness of the charge.

RAYMOND KETHLEDGE, 6th Circuit (Cincinnati)

Kethledge, 50, is less well-known than the others but is said to have support among senators. He is a University of Michigan graduate who, like Gorsuch, clerked for Justice Anthony M. Kennedy. His nomination was opposed by Michigan’s Democratic senators, but he was confirmed in 2008 as a result of a compromise deal in the Senate.

A Wall Street Journal editorial bestowed “opinion of the year” on a 2014 ruling against the Equal Employment Opportunity Commission. The agency had brought an action against Kaplan Higher Education Corp. alleging discrimination, but Kethledge shot down the testimony of an expert the EEOC had relied upon.

He also ruled for a group called the NorCal Tea Party Patriots in a class-action case the group had filed against the Internal Revenue Service alleging that conservative groups had been targeted.

WATCH FOR A FAMILIAR COMEDY TO PLAY OUT
IN THE NOMINEEE'S CONFIRMATION HEARINGS

Is it really worth pondering which of these picks would be the "least worst"? Meanwhile, the Plum Line's Paul Waldman is looking ahead to the eventual nominee's confirmation hearings.

"By many accounts," Paul writes, "it was the prospect of a Democrat filling that seat that persuaded conservative evangelicals to support Donald Trump en masse, when they might have decided to stay home rather than back a philandering, amoral candidate whose efforts to pander to them were as transparently phony as a $3 bill." That support, Paul says, "according to exit polls," ran to 81 percent of white evangelicals who voted. And now, on this first Trump Supreme Court nomination, they have every reason to think they're going to get what they paid for with those votes.

"There are many issues to be concerned about when the Senate takes up this nomination," Paul writes,

but let’s be honest: We all know that most of the debate is going to be about abortion, specifically whether Roe v. Wade will be overturned. And I can tell you exactly what’s going to happen.

Okay, Paul, we'll bite. Tell us exactly what's going to happen.

Here’s how it will go: Despite the fact that the president has insisted that he will appoint a justice who will vote to overturn Roe, and despite the fact that every conservative interest group will insist that his choice must be a vote to overturn Roe, and despite the fact that it’s in the Republican Party platform to overturn Roe, and despite the fact that nearly every Republican politician wants to overturn Roe, and despite the fact that the nominee will have been chosen only because all those people feel sure he’ll be a vote to overturn Roe, the nominee will go before the Senate and the country and pretend that he has no opinion on whether Roe should be overturned. But he’ll hint that he might vote to uphold it, because it’s a precedent and he has deep respect for precedent, and he has an open mind, so who knows. This will be a lie, but it’s what he’ll say.

And how does Paul know? "Because it’s what Republican Supreme Court nominees always do in their confirmation hearings."

Its most extreme version was embodied by Clarence Thomas, who began with the maybe-I’ll-uphold-it claim. “I believe the Constitution protects the right to privacy,” he said. “And I have no reason or agenda to prejudge the issue or to predispose to rule one way or the other on the issue of abortion, which is a difficult issue.” But then he went even further, saying in response to a question that not only had he not made up his mind about Roe, but he had never in his life even had a conversation about the most controversial legal issue of our age: “Senator, your question to me was did I debate the contents of Roe v. Wade, the outcome in Roe v. Wade, do I have this day an opinion, a personal opinion on the outcome in Roe v. Wade; and my answer to you is that I do not.” There could not have been a single person in America, liberal or conservative, who thought Thomas wasn’t lying.

But it's unusual, Paul says, for a right-wing Supreme Court nominee to go this far.

In its slightly less laughable version, the denial is usually a combination of the following assertions: I don’t want to prejudge any case that might come before the court. Precedent is important. Nothing I said before now applies, because the role of a justice is so unique. My personal views, if I should happen to have any, which I probably don’t, would never enter into my rulings.

Not only Chief Justice "Smirkin' John" Roberts but even the late Justice Scalia shuffled through their versions of what Paul describes as "this absurd charade," which he notes predictably drives Democratic Senate questioners batty,

since everyone knows how full of it the nominee is. So the senators try to ask the question a dozen different ways to see if they can come up with a key that will unlock the truth, and they inevitably fail.

Which particular version of the denial charade can we look forward to? "As it happens," Paul writes, "among the finalists for Trump’s pick, there is one judge, William Pryor, who has an unusually clear record of statements on abortion in general and Roe in particular."

He has been such an outspoken critic of the decision, calling it the “worst abomination in the history of constitutional law,” that it would be almost impossible for him to claim that he might uphold it. Does that mean that he won’t be nominated? To know the answer to that question you’d have to get into Trump’s mind, and who knows what’s going on in there. What we do know is that whoever gets the nomination, he’ll be a vote to overturn Roe. No matter how much he tries to deny it.

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Coming up at the Supreme Court: "The Revenge of the Conservatives"?

They're ba-a-ack!

by Ken

Are you ready for it, constitutional-law fans? Yes, it's Ian Millhiser's fall preview. "Next Monday," ThinkProgress's legal maven noted in his post this morning ("Everything You Need To Know About The Big Supreme Court Cases The Justices Will Hear This Term"),

the Supreme Court will gavel in its newest term and the justices will take the bench for the first time since last June, when the conservative Roberts Court handed down a string of uncharacteristically liberal decisions. This term, however, liberals will need to swim upstream, with the justices poised to consider a number of issues — unions, voting rights, race, and abortion — where the members of the Court’s conservative bloc have not often show a penchant of heterodoxy.

The latter link is to a July post of Ian's called, ominously, "Coming Next: The Revenge Of The Supreme Court’s Conservatives," in which he ventured that "it is unlikely that liberals will feel the same way about the next Supreme Court term as they do about this recently completed one." He reminded us of his basic argument about last term, which left liberals "feeling pretty good": that "many of these outcomes most likely stem from conservative overreach -- litigants looking to disrupt progressive legislation brought long shot cases because they were encouraged by the Roberts Court’s record of conservatism and decided to 'press their luck.' "

Based on the cases the Court has already accepted for this term, and rumblings about other prospects, Ian doesn't see that happening again. In fact, trying to match the issues at hand with the Court's recent record, he's not optimistic at all.

For Ian's full thinking, check out the post. Here are the issues he's looking at:

• "Defunding Unions"

The issue is so-called "right to work" laws, under siege nationwide. But the case, Friedrichs v. California Teachers Association, deals not with them as such but as the workaround unions have used: "fair share" or "agency" fees, by which all those who benefit from unions' collective bargaining can be made to pay a share for the costs of it, whether they're union members are not, preventing them from getting a totally free ride on the dues payers' backs.

many Court-watchers believed that the justices would declare right-to-work laws mandatory in public sector unions in 2014’s Harris v. Quinn. At oral argument in that case, however, Justice Antonin Scalia expressed concerns that the plaintiffs’ legal theory, which seeks to subject workplace bargaining to First Amendment scrutiny, could create serious problems for government managers. In the end, Harris wound up imposing a right-to-work regime on home health care workers, but it left the rest of the public sector workforce unscathed.

The biggest question in Friedrichs, in other words, is whether the Court’s relatively modest holding in Harris is a sign that at least one of the Court’s conservatives does not want to go as far as the Friedrichs plaintiffs wish to take them, or whether these justices simply decided that it would be best to make a radical shift in America’s labor and First Amendment law incrementally through several decisions. In any event, it appears that the best hope of many unionized workers is Justice Scalia. That’s never a happy position for a worker to find themselves in.

• "Free House Seats For White People"

The case is Evenwel v. Abbott, "which seeks to shift congressional representation away from communities with large numbers of immigrants." You'll recall that the allotment of congressional districts to the states is based, per the 14th Amendment, not on the number of eligible voters but on "the whole number of persons in each state." But that doesn't necessarily mean, this suit argues, that the congressional districts should be divvied up based on the same consideration.

So Texas, which has a significant number of largely Latino non-citizens, receives extra representation in the House for these non-citizens, even though they cannot vote.

When Texas drew its district lines, it complied with one person, one vote by drawing districts that had roughly equal population — even though this meant that some of those districts (typically, the ones with fewer non-citizens) have more voters than others. The plaintiffs in Evenwel want the Supreme Court to require states to draw districts with equal numbers of voters, instead of residents — so non-citizens will no longer count for purposes determining district populations. As a practical matter, this would shift representation away from Democratic-leaning communities with large numbers of Latinos to other communities that are more likely to support Republicans.

If the Evenwel plaintiffs prevail, in other words, Texas will continue to get extra seats in Congress for its large non-citizen population, but white Republicans will play a disproportionate role in selecting who occupies those seats.

Ian points out, though, that this case may not be quite so ominous. Unlike most cases that the High Court accepts based on a minimum of four votes in favor of acceptance, "this case came up through the Court’s mandatory jurisdiction, meaning that the Court had to at least give it cursory review. The fact that Evenwel will instead receive a full hearing, however, is not necessarily a sign that a significant faction within the Court is eager to use this case to shift power towards white voters."

• "Affirmative Action"

"One of the biggest surprises of Chief Justice John Roberts’ tenure," Ian writes, "is that the Court he leads has not struck down affirmative action on his watch." And the case is one that's well-known both to the justices and to Supreme Court groupies, Fisher v. University of Texas." When it first came before the Supremes, the general assumption was that the end was near for affirmative action.

Instead, the Court’s first Fisher opinion reemphasized [Justice Anthony] Kennedy’s concern [voiced in his 2003 dissent in Grutter v. Bollinger, in which the Court upheld limited affirmative action] that racial affirmative action programs are subject to the highest level of constitutional scrutiny, and returned the case to the conservative United States Court of Appeals for the Fifth Circuit to reconsider Texas’s program.

A year later, the Texas admissions program dodged another bullet when it was upheld again by a divided Fifth Circuit panel.

Now, however, the Fisher case is before the justices again. The question this time around is whether one or more members of the Court’s conservative bloc flinched the first time because they have a lasting concern about striking down this particular program, or whether they simply expected the Fifth Circuit to do so for them. If the later is true, expect them to take matters into their own hands.

Since Grutter was decided, Ian notes, Justice Sandra Day O'Connor, who wrote the decision, has been replaced by the knee-jerk far-right-wing Sammy "The Hammer" Alito. Couple that with "Slow Anthony" Kennedy"s on-the-record problems with affirmative action, and it looks like this could be it.

• "The End of Roe?"

Looming over the entire term are at least two major reproductive health cases that the justices are very likely to agree to hear, even though they have not yet done so. The first case asks whether states can enact sweeping restrictions on abortion so long as they dress them up as sham health laws that appear, on the surface, to do something to protect women’s health. The second is a follow up to Hobby Lobby which asks whether religious objectors can refuse to comply with rules promoting birth control access that literally requires them to do nothing more than fill out a form asking for an exemption from the law.

Both of these cases are discussed at greater length, in addition to another major reproductive rights case that the Court could potentially agree to hear, at this link.

Again, you'll have a better idea of what you'll find at the link of you know the title of the post Ian is directing us to here: "How The Supreme Court Could Destroy Reproductive Rights In One Term."

Getting the picture? It could be a rough ride, this Supreme Court term.

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35th ANNIVERSARY OF ROE v WADE... AND THE REPUBLICANS ARE STILL TRYING TO TAKE AWAY WOMEN'S RIGHT TO CHOICE

Brought to you by "pro-choice" senators like Collins and Lieberman-- thanks NARL

I know, I know... there are some Republicans who are pro-choice and some Democrats who are anti-choice. Generally speaking, here at DWT, we treat anti-choice Democrats as Republicans and do our best to defeat them. And Republican pro-choice congressmen and senators... well if you vote to confirm extreme right wing operatives like Scalia, Roberts, Alito, Thomas, who are dedicated to denying women's right to choice, are you really pro-choice? If you vote for congressional leadership that is psychotically dedicated to over-turning Roe v Wade-- think DeLay, Hastert, Boehner, Blunt, Frist, Lott, Miss McConnell-- what difference does it make if you claim to stand with your constituents' wishes on the matter of choice? You're destroying it. Susan Collins is the best example of all and People for the American Way, as I mentioned last week, are making an example of her this week.

Today's Wall Street Journal reports on something new from Planned Parenthood-- a major effort to elect pro-choice candidates.

The nation's largest reproductive-health-care provider plans to spend $10 million in hopes of persuading one million people to vote for abortion-rights candidates in the 2008 election. Planned Parenthood will roll out its election plans today to mark the 35th anniversary of the Supreme Court decision in Roe v. Wade that made abortion legal.

With its "One Million Strong" campaign, Planned Parenthood becomes the latest Washington interest group to launch an independent effort to elect candidates who back its priorities. Since Congress enacted a campaign-finance-reform law banning large financial contributions to the Republican and Democratic parties, a growing number of individuals, labor unions, corporations and other interest groups have started or boosted their own campaigns to elect like-minded candidates.

Let's see if Planned Parenthood is more savvy than the clueless NARL which more often than not endorses reactionary insiders who may be technically pro-choice but who routinely vote to destroy choice by voting with the Bush Regime and with extremist Republicans on judicial confirmations, etc.

The efforts come at a time when many abortion-rights advocates feel they are under attack. Since President Bush took office, he has nominated federal judges who have chipped away at abortion rights and installed two antiabortion justices to the Supreme Court. Two of the oldest justices on the current Supreme Court are liberal. If a Republican wins the 2008 presidential election, two more conservative judges could be added to the court.

Until recently, Planned Parenthood hadn't played a role in elections. In 2004, the organization endorsed Massachusetts Democratic Sen. John Kerry for president, marking the first time it had endorsed a presidential candidate in its 90-year history. In 2006, Planned Parenthood lent its backing to a handful of Democratic candidates for governor.

Officials at Planned Parenthood say they decided to move into the campaign arena because they say reproductive rights are under assault by Republicans. The political effort will be led by Cecile Richards, the organization's president, who has a long history of working in Democratic politics. "To keep our doors open," Ms. Richards said, "it's clear that we need to step into the electoral arena."

Today's L.A. Times makes the point that the GOP attempt to overturn Roe v Wade is very serious-- and must be addressed strenuously. I trust PFAW to counterbalance the tremendous damage done by unwitting-- even witless-- collaborators like NARL. We'll see how Planned Parenthood handles the task.

The precedent set by Roe is more threatened now than ever. The appointments of Justice Samuel A. Alito Jr. and Chief Justice John G. Roberts Jr. have reduced the presumed support for Roe to a small majority on the court. Meanwhile, the four justices in the court's liberal wing are growing old and could conceivably be replaced by the next president (John Paul Stevens will turn 88 in April). Even without a majority on the court, abortion foes have been chipping away at Roe one law at a time, and they have made alarming headway, culminating in a high court decision last April that for the first time since 1973 upheld a ban on a procedure -- controversial "partial-birth" abortions.

A return to the days when states were free to ban abortion would be disastrous and deadly. A recent review of U.S. abortion statistics backs up what pro-choice activists have long asserted: Those most likely to get an abortion tend to be those least able to afford to travel to another state to get one. According to the Guttmacher Institute, the abortion rate among women living below the federal poverty line is almost four times higher than that among more affluent women. Statewide bans would lead to back-alley procedures by desperate women, who would die needlessly because politicians shut down clean and safe clinics.

That appalling possibility should trouble all the justices, but particularly Roberts. For him to overturn Roe would be to contradict his stated devotion to precedent and to turn his back on his mentor, former Chief Justice William H. Rehnquist. In Dickerson vs. the United States, which challenged whether suspects must be read their Miranda rights for their statements to be admissible in court, Rehnquist wrote for the majority in 2000 that regardless of whether justices supported the original Miranda decision, it had become "part of our national culture" and therefore deserving of protection. Roe, in the same way, created a now well-established right that would cause severe upheaval if it were overturned.

Kathleen Turner: