56 thoughts on “SCOTUS Open Thread”

  1. Rhenquist is going to have to resign soon too. He’s got medullary thryoid cancer, one of the few incurable forms of thyroid cancer. So Bush gets to appoint at least two justices, one of them chief justice. It’ll probably be a disaster. On the other hand, Reagan appointed O’Connor and she didn’t turn out so badly. Time will tell, I suppose.

  2. In the words of Hunter S. Thompson ‘The sh*tstorm commeth’.
    We’ll look back on Rhenquist and O’Connor as voices of sanity from the good old days, and various sane Republicans will insist that it’s not their fault.

  3. Diane, they won’t make that mistake again.
    Actually, there have been so many “mistakes” on the conservative side in our time — from Brennan and Warren to Stevens to Kennedy and O’Connor to Souter — that I think we should expect a very thorough vetting. They’ll be looking for someone who will not “evolve.”

  4. “She further announced that her resignation would take the form of a 6-part test, the 2nd, 4th, and 5th parts of which demanded close scrutiny on the part of her family and friends, and the remaining 3 parts providing deference to the state of her finances. She further clarified that due to the particular nature of her resignation, the test is tailored to its conditions and should not be construed to create a precedent for other similar resignations.”

  6. Sidereal,
    The whole business of “balancing tests” is something O’Connor has been criticized for a lot. I don’t know the legal fine points, or even many of the coarse ones for that matter, but this has always struck me as a bit unfair. I’m sort of partial to balancing tests – which I take to mean recognizing that the issues may be too complex to lend themselves to resolution by simple rules.
    So whether I agree with her conclusions or not I don’t really grasp why this is such a terrible way to approach things.
    It’s entirely possible I misunderstand this criticism, of course.

  7. O’Connor grew a lot on the Court, and took a lot of unfair criticism. We would be very lucky to find anyone as sensible nominated in this administration.
    Those who haven’t might take a moment to read her 4-page concurrence in the Kentucky 10C case, her swansong as it were, and a document I would much rather see included in every high school civics book than the 10 Commandments.

    It is true that many Americans find the Commandments in accord with their personal beliefs. But we do not count heads before enforcing the First Amendment.

  8. I’m looking forward to row v wade being overturned, wingnuts trying to ban abortions and consequently dissapearing from the political scene.

  11. Let’s hope that in the course of their discussions over the filibuster compromise, the 14 Senators talked about whether allowing Brown, Owen, and Pryor to be confirmed at the Circuit Court level would resolve the issue of whether a Supreme Court nomination of one of those three would be an “extraordinary circumstance.” They say they talked a lot and will talk more about whoever is nominated.

  12. Any thoughts? I’m pretty depressed. I kept trying to tell swing voting friends that this was The Issue, and now we’re here. I have no doubt that both nominations (and there will be two, I agree) will be hard-liners.
    Seriously, right now I think the best hope for women’s rights, equality for gays, and the ability of all of us to have a right to private decisions (like those at the end of life) is for Dr. Dobson to make statements like this one as often as possible. I hope he encourages his friends to do the same. Let’s have a whole chorus of the Religious Right making statements about what the President Must Do.
    Only then will the silent majority wake up (as they did during Terri Schaivo’s last days) and actively campaign for a government that wants to have us all living as they deem right, under their particular view of The Bible.
    Otherwise? We’re going to find out what it’s like to live in a radically different country.

  13. Also? I’m kinda gonna miss RedState. I’ve actually been interested in some of the threads there when — due to posts like von and CB’s on torture, or tacitus’ on the war — there is debate, and I can even find the occasional post with which I agree. 🙂
    Now I’m going to have to keep away entirely. I’m pretty sure they’re speaking with One Voice over there on this, and will be alternatively jubilant over this chance to change everyone’s lives, aggressive in insisting that it happen, and punitive to anyone who expresses moderation.
    If it turns out I’ve predicted this incorrectly, let me know!

  14. Bottom line, Opus et al., is that if the courts won’t protect our rights, then we’re going to have to rely more on Congress and the state legislatures to do it.
    I don’t like that outcome, but I don’t think we can afford to act as if America is going to slide into fascism because of a hard-right SCOTUS.
    The positive outcome could be a lot more interest in politics and a more mobilized electorate that doesn’t think it can sit back & tune out because the Court won’t let our rights be taken from us. (Cf. the outrage over Kelo.) For example, most Americans favor legalized abortion. Let’s make Congress and the states put up or shut up on this.

  16. I don’t like that outcome, but I don’t think we can afford to act as if America is going to slide into fascism because of a hard-right SCOTUS.
    A better way to say this might be that the SCOTUS will no longer stop, and may actively abet, America’s slide into fascism. YMMV.

  18. Am I showing my ignorance in asking if Sulla is joking about Posner? I could live with him, but since I suspect he might “evolve” he wouldn’t be acceptable to Dobson. Tho maybe for the Rehnquist seat. If two seats become available, the first (O’Connor) will be filled by a strong social conservative. But since I think the big secret of the Republican leadership is their prioritization of money over babies, or management over creches, so to speak, Bush might try to sneak a smart young libertarian into the Rehnquist seat.
    Or just a buddy that will keep him outa jail.

  19. conservatism on the court comes int two major flavors: pro-central govt and pro-state govt. Even if Bush gets two appointments, the early cases will likely only approve of state legislative decisions. For example, we might see a straight challenge to Roe and Casey from a state which prohbits abortions in all circumstances except in case of threat to the physical health of the mother.
    the conservatives should be extremely careful; they may get exactly what they ask for, good and hard. If the social conservatives are successful in regaining the power to regulate abortions throughout a pregnancy, I suspect this country will see a wave of liberal activism very similar to the wave of conservative activism that brought Reagan to power. Fiscal conservatives could easily be swept from power.
    As I sit here in sunny Southern California, there is a part of me that wouldn’t mind having this debate out in the open. Let’s have another summer of Freedom Riders, with buses funded by NARAL picking up pregnant Alabamans too poor to travel and bringing them to California for abortions.
    no, it’s not fair to the poor women who live in socially conservative states. but the religious right has gotten way too much mileage out of demonizing liberals over abortion. Go ahead and try to ban abortions, the Pill, condoms. Try to impose your religious views on the political sphere. Let’s see who’s correct about what americans really want.

  20. Empty seat at SCOTUS – O’Conner retires

    And the war is joined. Two immensely powerful forces meet in the political equivilant of toe to toe nuclear combat to fill the seat. What great entertainment this will be. Warning: Don’t misunderestimate the Chimpster, again.

  21. Empty seat at SCOTUS – O’Conner retires

    And the war is joined. Two immensely powerful forces meet in the political equivilant of toe to toe nuclear combat to fill the seat. What great entertainment this will be. Warning: Don’t misunderestimate the Chimpster, again.

  22. I could live with Posner too, but I find it beyond hard to believe that Bush would appoint him, given stuff like this (pdf):

    “One of his most controversial recommendations was that the current adoption system be replaced by a free market in babies, which, he maintained, by offering financial incentives to biological mothers, would
    make both would-be parents and potential sellers better off. In “Sex and
    Reason,” he explained that he was advocating not the selling of babies so much as the selling of parental rights — he was not, after all, suggesting that babies be sold as slaves or organ donors — but the clarification did not, somehow, have the impact of the original argument , and “baby – selling” has since become one of the primary slogans of his notoriety.”

  23. Anderson, you make a good point and I certainly don’t want to rely completely on the courts — in fact, I opposed that kind of thinking in the Schiavo case, telling the KeepHerBreathing folks to get things legislated if they wanted the power to regulate her life. And, in general, I’m a states’ rights kind of gal.
    But when Right-Wing Religion and politics get mixed up, there is such polarization that I’m afraid of what our country will look like if we legislate these rights state-to-state. Sure, everyone would feel comfy cozy in their own coccoon of self-righteousness, but over the years things would get messy. Eventually secession-messy. People are just that rabid when it comes to religion.
    I know I’m thinking waay out into the future. It’s just that kind of day for me. Give me some time to sleep it off.

  24. Try to impose your religious views on the political sphere. Let’s see who’s correct about what americans really want.
    damn right. as soon as the disinterested masses get a taste of what real wingnuttery’s all about, that’ll be the end of the modern republican party. bring on your stupid Culture War, wingnuts, show the country what you’re really all about.
    (this statement not guaranteed to be accurate)

  25. Has anyone read any opinions by Luttig, Garza, Cornyn or Edith Jones Clements?
    I’m guessing my order of preference is Garza, Luttig, Cornyn, Jones. How does Jones manage to come in below Cornyn? Like this:

    “The most controversial case decided by Judge Jones is probably the federal habeas relief case of Burdine v. Johnson, 231 F.3d 950 (5th Cir. 2000). There, Calvin Jerold Burdine, who was convicted of murder and sentenced to the death penalty by a Texas state court in 1984, sought habeas relief in the federal courts on the grounds that his counsel had slept through significant portions of the trial, thereby rendering the assistance of counsel ineffective in violation of the Sixth Amendment. Although she did not write the opinion, Judge Jones signed on to the opinion of Judge Rhesa Hawkins Barksdale to vacate, over a strident dissent by Judge Benavides, the habeas relief granted by the federal district court to Mr. Burdine. Judges Hawkins and Jones held that the prejudice required under the Strickland test could not be presumptively satisfied in light of the particular facts because it was impossible to determine if counsel had fallen asleep at a critical stage of the trial. In dissent, Judge Benavides noted that the trial court?s factual record had established that counsel had slept ?during portions of [the] trial on the merits, in particular during the guilt-innocence phase when the State?s solo prosecutor was questioning witnesses and presenting evidence.?
    The Fifth Circuit subsequently decided to hear the case en banc and reversed the decision of the three-judge panel by a vote of eight to six, reinstating the habeas relief granted by the federal district judge. 262 F.3d 336 (5th Cir. 2001) (en banc). The en banc panel relied on the state court?s finding of counsel repeatedly falling asleep when evidence was being introduced against the defendant to hold that Burdine had been denied his Sixth Amendment right to effective assistance of counsel. The court concluded that Burdine was presumptively prejudiced by having his counsel asleep for substantial portions of his trial, including for the questioning of witnesses. Judge Edith Jones again joined Judge Barksdale’s opinion, this time a dissent, which stated that the reliability of the death penalty conviction was not called into question by the unconsciousness of the defendant’s counsel and describing the majority opinion as “result-driven jurisprudence [of] a new level.”

    I presume Cornyn would manage to avoid making any allusiions to how his colleagues deserved to get death threats or how they would be legalizing man-on-box-turtle next in his actual judicial opinions.

  26. The silence on the Web is deafening: does no one care whether O’Connor is replaced by a guy?
    It seems like all the replacement lists have been hurriedly plucked from the Rehnquist-replacement drafts.

  28. Oh, and to liberal bloggers who can’t justice count: there will still be a 5-4 pro-Roe, pro-Lawrence, pro-Romer pro-pro-Rasul, pro-Roper majority if Stevens and Ginsburg can manage to hang on.
    The highest profile case that could flip is probably Grutter v. Bollinger, a 5-4 decision upholding the University of Michigan Law School’s affirmative action program.

  29. Sulla:
    Put your money on Southern candidates, rather than the likes of Posner, Easterbrook and K. The region is seriously underrepresented on the Court, and seriously overrepresented in the governing coalition.

  30. Mr. Yomtov–
    On balancing tests, I agree with you that many complex situations defeat simple rules. And the O’Connor approach is likely to lead only to *small* steps in either direction, and this has a certain conservative appeal (small-c). When you like the results of her reasoning, you will like them a little, and when you dislike them, you can easily imagine a more “principled” version you would have liked a lot less. (Or, if your imagination isn’t up to it, just read Scalia’s dissent).
    So what’s the complaint? I think the version that I have heard is that her rulings do not give other courts and other legal and legislative actors enough *guidance*.
    A lower court judge says to himself: okay, so they overturned my decision. Now how can I avoid that in the future? Well, if another case like that comes up I guess I’ll try to follow O’Connor’s guidance. But she says that she ruled as she did because the plaintiff’s name began with an ‘R’ and the amount of the claim ended in the number 3. So how can I generalize from that?
    A legislature has a law overturned, and faces the same puzzle: how can we move forward in a way that is consistent with the SCOTUS’ rulings, given their specificity and lack of broad applicability? We want to be able to treat like things alike, but O’Connor rules as though no two things are ever alike.
    Nothing sets precedent; everything is a one off case. It’s like a rejection of stare decisis. And think about how this impedes legal reasoning, even at the SCOTUS level: O’Connor says let’s decide it this way. Souter says yeah, but if we take that line it will commit us to the following unacceptable stance in future cases; looking at those future cases is a way of bringing into vivid, magnified view what is wrong with going that way in this case in front of us. Don’t worry, says O’Connor; we’ll go in this direction on this case, and then deny that it applies to any future cases. Concern about the precedents being set is part of the intellectual feedback loop that disciplines the judges’ thinking, and bad thinking results when it is short-circuited.
    And of course the most extreme version of this was Bush v. Gore (not crafted by O’Connor, incidentally), in which every piece of reasoning was followed by the comment “but this applies only to this case and will never apply to any other case in the future.”
    This is how a temperamental dislike of broad principles–which is not in itself a bad thing–facilitated a decision that was simply and blatantly **unprincipled**.
    Now–I am not a lawyer, and I don’t know how much of that line of criticism is legitimate in re SDO’C, and I don’t know how much I myself endorse it. But that’s the sort of thing I have heard said in criticism of her in the past. And it’s close enough to the flip-side of her “respect for complexity” that it makes an interesting criticism.

  31. BY:
    “I’m sort of partial to balancing tests – which I take to mean recognizing that the issues may be too complex to lend themselves to resolution by simple rules.”
    I think the criticism (including mine) comes from the appreciation that complexity leads to arbitrariness. Law isn’t composed of mathematical or linguistic formulas. . every element is subject to interpretation. The introduction of multi-part balancing tests adds to the number of elements available for interpretation and encourages arbitrariness. We look to the Court primarily for clarity. O’Connor expanded the power of the Court at the expense of clarity.
    I’m certainly no Court scholar or historian, and there are people even on the blog who are much more qualified to interpet her than I am, but I also found her allergy to precendent setting suspicous. I’ve always felt it meant that she wanted to have the broadest reach available for any particular case without having to worry about constraining herself or anyone else in some future related case. In other words, more arbitrariness.

  32. Mr. Brennan,
    Those are good points. Thank you.
    So the conflict is between not oversimplifying the case at hand and providing reasoning which can be generalized and acted on.
    I see a plain need for balancing these objectives.
    (P.S. Please feel free to address me as Bernard, or even Bernie)

  35. On Tad’s point, when I was in law school, I worked for a district judge, and we had a 5-4 remand from the Supreme Court in an Establishment Clause case. I was tasked with trying to figure out exactly what the law was for various propositions that were not addressed in the first opinion. There’s nothing to do on such things but draw a matrix — which ended up pretty much being an exercise in figuring out where SDO would be on each.
    (The fact that the by-then-reversed original district court decision was self-evidently correct was an additional complication).
    I don’t see in her opinions the one-time-only aspect that we saw in BvG, just a recognition that many of these tough cases are quite fact specific, and that painting with too broad a brush would make impermissible that which is OK, and vice versa.

  36. I should add that I think Establishment Clause jurisprudence is particularly prone to this kind of thing. My case was 5-4 (Rehnquist), but you had separate concurring opinions by SDO and Kennedy (joined by Scalia). This is very typical in the field, even minimal there being ‘only’ 4 opinions, and very atypical of the Court.

  37. Katherine, you’re right — my count is off! Gad, I’ve let despair overcome me. Thank you for talking me down off the ledge. 🙂

  38. I think Tad and sidereal are both right about O’Connor and balancing tests. When you have a six part balancing test with no obvious weighting system for each part, it is super easy to take almost any case you want and have it turn out exactly how you personally want it to turn out. You aren’t providing any guidance to lower courts because they don’t have any idea which of the factors is more important in the next case. You aren’t providing any guidance to legislators who want to craft Constitutional laws. You aren’t providing any guidance to normal citizens who want to stay within the bounds of the law.
    Sidereal’s arbitrariness objection is also very well put. “The introduction of multi-part balancing tests adds to the number of elements available for interpretation and encourages arbitrariness.” One of the reasons why I find some of the objections to textualism so mysterious is that Court opinions are subject to every bit as much interpretation as the original text. Most people who are against textualism want to formulate a system where precedent forms an important part of the system (as it should) but fail to grapple with the fact that court opinions are subject to every interpretational problem that original texts have. If for example “interstate commerce” can be elastically applied to a man growing grain for personal consumption, every phrase in a multi-part balancing test can expand in similar ways, making the whole exercise seem almost completely arbitrary.

  39. i’m a little grouchy this week, so i hope this doesn’t come off too intemperate.
    but what do people expect from a SupCt decision — bright lines? there are very few in life, and even fewer in the Constitution.
    a classic example: what is due process, and when does the state provide so little process that it fails the constitutional standard? there’s a multi-part test. but does the test actually improve the analysis, or do judges just put in a bunch of words in their opinion and come out the same way that they would have if the multi-part test said instead to use your best judgment? and how would we go about answering that question? it’s a great counterfactual. Assume that a prior decision came out a different way and try to guess how legislatures and courts would have responded.
    2nd part — presumably there’s some theoretical line for each situation in which the process being provided is being tested, above which the process is adequate and below which it is not. Should the courts allow the legislatures to get really close to the line, leading to cases in which the opinions say essentially that it’s a close call but ties go to the govt / petitioner? That would appear to lead to a situation where the analysis of the process is fact-intensive, which is simply a way of saying that precedent is pretty useless and the judge simply has to make it up.
    Alternatively, should the courts set a firm standard, in which the court says that the state has an obligation to prove that the process being provided clearly meets a prior standard? That situation would appear to lead to a massive waste of administrative resources in which petitioners are being given more process than is actually required (if we could actually articulate where the “true” line of adequate process is located). [alternatively, if the petitioner bears the burden of showing the law is clearly wrong, then lots of people are getting a little bit screwed as compared to the process they should be getting.]
    some would argue (including me from time to time) that all of this is counting angels dancing on the head of a pin, that it is impossible to articulate consistently over time and over all the situations in which due process challenges arise what the term due process means. The point, therefore, is to have a check, even a purely arbitrary check, on the power of the legislature to slide down the slippery slope of providing ever less process to those who have no political power or are not popular.
    Under this thesis, the outcome of the cases don’t really matter all that much, because this theoretical line between due and undue process doesn’t exist, except in the grossest of situations. All that matters is that legislatures are aware that there is a [somewhat / totally / not at all] arbitrary body which might randomly select that particular legislative action for review, and respond accordingly.
    [any inconsistencies between this post and my prior comments towards Felixrayman are acknowledged. as i said, i’m grouchy. it’s affecting my analysis.]

  40. Katherine’s right about Roe, but O’Connor stuck up pretty strongly for women’s right to an abortion without “undue hardship.” Current trends seem to indicate those hardships getting harder.

  41. I’m glad that the people who actually know something about this stuff have confirmed my hazy recollections of some NYT article or another. Again–whether these features of SDO’C’s jurisprudence are laudable or lamentable on balance (so to speak) is a whole different question. There are some people who want to state bold principles and set big precedents far too often. If we get one of those as her replacement, we will look back with longing on SDO’C’s wishy-washiness.
    FBRGRD’s grouches are perfectly apt (as were BY’s original point that there is something valuable in balancing tests and other cautious incrementalism). Much of the debate here mirrors debates in ethics between the partisans of principle (e.g. those who think that everything can be answered by appeal to the utilitarian maxim, or the Categorical Imperative), and those who stress the need for sensitivity to context and specificity (e.g. some Aristotelians) or even deny that principles have any helpful role to play in ethics (Dancy is famous for taking this “particularist” stance to its limits). Every case is different; small details sometimes make all the difference; being attentive to the precise contours of *this* situation is better than trying to force it to resemble some other situation. Dancy likes to argue that what counts as a good reason *for* doing something in one context cannot even be relied upon to retain its positive valence in new contexts; sometimes the very same facts will count in favor of an action’s permissibility in one case, and against its permissibility in another (e.g. that it would be pleasurable).
    Of course, here I’m talking about stuff that hilzoy knows and I don’t, and thereby hoping to lure her into making the point better than I’m doing it. Well, it worked okay with the legal stuff, so why not?
    Oh–and Mr. Yomtov: you can call me “Bernie”, too.

  42. I understand Sebastian’s and Sidereal’s points, but I have to say that even if it takes a little work sometimes, and even if the exact contours of the boundary between permissible and impermissible cannot be known in advance, the broad outlines are readily apparent. That is, we may not understand exactly where white shades into gray, and gray into black, but there will always be situations where we know that a particular point is in the white field, and another particular point in the black field.
    The Supreme Court typically doesn’t take thoose cases. The guidance of what is unambiguously black or white is given by the circuits.
    You can always find a way to advise a client (including public bodies) who says ‘I want to be reasonably safely on the side of legal.’ The client you have trouble advising is the one who says ‘I want to sail right up to the edge of what is permitted.’ And then you have the clients who want to cross the line, and see if they can thereby get the line moved. They get what they deserve.
    [Aside: I could write a statute in an hour that would (a) ban most late-term abortions and (b) pass constitutional muster in any court in the country. Pro-lifers would complain that the loophole for health would be too indeterminate, but they’re not taking into account the pressure that many many doctors will feel to stay in the white, and not venture into the gray. If pro-lifers were actually as interested in each potential life as they seem to claim to be, they’d realize that this approach would prevent a great many abortions each year, and support it as an interim tactical measure. Instead, they want to move the lines, and win a grand strategic victory. Consequently, the powers that be intentionally write unconstitutional laws.]

  43. “Pro-lifers would complain that the loophole for health would be too indeterminate, but they’re not taking into account the pressure that many many doctors will feel to stay in the white, and not venture into the gray.”
    I would be seriously surprised if you could write a health exception that would ban virtually any abortions and would not also draw extreme criticism from almost any elected member of the Democratic Party who has not already declared himself pro-life. You would either have to write one with no real health exception, or one that was so broad as to ban almost no abortions in order to gain Democratic support.

  44. What are the chances of a pro-life court simply granting the foetus equal protection?
    Too many people talking about Griswald, and a long thread on Kos says it is simply impossible for SCOTUS to make abortion illegal.
    But Roe pretty much said foetuses were not human beings or residents or citizens and I am not sure why a different SCOTUS, given a case, couldn’t simply assert that foetuses, not the state interest, but foetuses have rights.

  45. Bob, they could do that, but abortion’s not usually state action. So EP isn’t going to change anything.
    I think the Court has the power to overturn Casey, and a substantial minority right now who would vote to do so. Not enough, probably, even of SDO’s replacement is one of them.

  46. Sebastian, your team ought to give it a try. In Mississippi. Or Alabama. Oklahoma. North Dakota. If you can’t get an abortion statute passed there, you’ve got bigger troubles than I thought.
    It’s not a question of whether you think the health exception is too vague — I expect you’d find the exception that I’d write too easily susceptible of evasion. The question is whether a doctor would find it worth risking his license to make a very questionable health determination.
    There are going to be late term abortions with real health issues. I presume that there are going to be late term abortions that do not avoid real health issues. You could be setting up a situation where doctors are scared to casually certify health issues where a review panel might find that they should not have done so.

  47. I object to the anit-abortion position being referred to as “pro-life”. People opposed to abortion are no more pro-life than any one else. They are pro-fertilized egg, I suppose.
    Virtually everyone thinks it’s OK to kill other people under some circumstances, so it is very difficult to measure how “pro-life” an individual might be. Some people think that the death of an innocent person every now and then is acceptable in order to have a death penalty. some people are “Pro-life” if the egg is fertilized while the parents are drunk at a party, but not if the conception is the result of rape. Also, so-called “pro-life” people aren’t necessarily any more pro-life when it comes to issues involving life after birth. Certainly one’s stance on abortion is not by its self a measure of how pro- or anti-life a person might be. “Pro-life” is a propaganda term. Please, let’s be accurate and say “anti-abortion”.

  48. I object to the anit-abortion position being referred to as “pro-life”. People opposed to abortion are no more pro-life than any one else. They are pro-fertilized egg, I suppose.
    Virtually everyone thinks it’s OK to kill other people under some circumstances, so it is very difficult to measure how “pro-life” an individual might be. Some people think that the death of an innocent person every now and then is acceptable in order to have a death penalty. some people are “Pro-life” if the egg is fertilized while the parents are drunk at a party, but not if the conception is the result of rape. Also, so-called “pro-life” people aren’t necessarily any more pro-life when it comes to issues involving life after birth. Certainly one’s stance on abortion is not by its self a measure of how pro- or anti-life a person might be. “Pro-life” is a propaganda term. Please, let’s be accurate and say “anti-abortion”.

  50. “Pro-life” is a propaganda term. Please, let’s be accurate and say “anti-abortion”.
    I stand corrected. It was 3 AM, and I was feeling magnaminous.

  51. I used to love summers.
    I agree with Lily’s sentiment. Honest people (someone run out and find me an honest person .. quickly) can differ on abortion.
    I favor Roe versus Wade, though I personally would not avail myself of abortion on demand, I hope. See, I don’t know, because I take reality as it comes, and I might need to change my mind for some reason.
    I hope my soon-to-be-16-year-old fertilized egg is afforded very thick taxpayer supplied armor when he is sent off to the omelot-making factory created by the weeping warrior in the White House.
    See, if something happens, Randall Terry and I will make for a loathsome pair.

  52. Lily, as the first user of the term p-l on this thread, I have two points to make in response: (a) one does not necessarily buy into some group’s agenda when one calls them by the name they call themselves, especially when hoping to address them; and (b) from the context of my use of the term, you can hardly think I’ve been tricked by the use of a propaganda term.

  53. “You could be setting up a situation where doctors are scared to casually certify health issues where a review panel might find that they should not have done so.”
    Things like this have already been tried. See for example the amazing amounts of furor over the recent Kansas attempt to investigate late term abortions. Attorney General Kline is investigating two possible types of illegal activity. First, violations of medical reporting rules pertaining to child rape. That is a clear-cut issue, if a doctor sees evidence of rape–including statutory rape–it must be reported. Pregnancy of young enough girls is rather clear evidence of potential statutory rape. The abortion clinics in Kansas are resisting releasing records in such cases. I predict with high confidence that if the investigation is allowed to continue, it will be found that the clinics regularly did not report such cases as required by law. (And if you don’t like the draconian statutory rape laws, like I don’t, you should try to overturn them, not ignore your professional responsibility with respect to them.)
    Second, Kline is investigating whether or not abortion clinics have performed abortions on viable fetuses without a sufficient health excuse, contrary to Kansas law. These records too are not being turned over, as if it were possible to have a check on the health exception issue without letting someone outside the clinic see the medical records.
    Now this may be the test case which finally breaks the abortion lobby’s stranglehold against investigating or recording data on late term abortions. But until now, they have successfully resisted all attempts to monitor late-term abortions even when there are laws in place (which there technically are) to ban non-medically-necessary late-term abortions in some states.
    The laws exist.
    Attempts to enforce them have taken place.
    Thus far, the pro-abortion groups (and I have no trouble calling groups which resist monitoring of medical necessity after fetal viability “pro-abortion”) have sucessfully derailed them.
    So in summary, I wouldn’t be so sure that you could “I could write a statute in an hour that would (a) ban most late-term abortions and (b) pass constitutional muster in any court in the country.”
    I frankly suspect that you couldn’t write one that would sucessfully ban any late-term abortion and would pass constitutional muster in California or New York with the current makeup of either court.

  54. I understand your point. Are there laws that ban most abortions in effect in some states? You say yes. Are these laws constitutional? You don’t say they aren’t, and no court is either.
    Are they being followed strictly? You say no, and I can’t disagree (although I suspect that there is more than minmal compliance — which ought to be significant). That said, I think it is going to end up that providers will have to produce some kind of data — maybe with patient’s names redacted or something similar. The story you linked didn’t say that the Kansas Supreme Court upheld the objections, and, indeed, it won’t even hear the case until September.
    That someone objects to a subpoena isn’t particularly significant. The question is whether the courts allow some kind of method of enforcing what are clearly constitutional laws. I’ll be surprised if the KSC shuts the government out completely, but even if it did, there will be other avenues for enforcement.

  55. In the story I linked from Kansas, there’s a reference to this case in Indiana, where a judge upheld the attorney general’s access to the records. Now it goes to the Indiana Court of Appeals.

  56. Katherine,
    Thank you for posting the information about the Burdine case. I remembered reading something about this, but had forgotten the specifics.
    My own opinion is that some one who thinks – I will not say “reasons” – the way Jones does ought not be practicing law, much less serving as a federal judge.
    Yet she seems to have her supporters, at least in the blogosphere. The previously unknown to me Larry Ribstein endorses her, and Zywicki and Bainbridge second him enthusiastically.

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