We’re So FUKT

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This just in: this morning the Supreme Court ruled unconstitutional the long-standing statutory law preventing the registration of immoral or scandalous trademarks. In doing so, they vindicated the free speech rights of a gentlemen who wants to sell clothing branded with “FUKT” trademark. (You can buy the T-shirts on amazon.com—available in men’s, women’s, and “youth” sizes. I will hazard the guess that the latter are the best sellers.)

I have not read the opinion or thought deeply about the constitutional issues, nor do I propose to do so. But two quick points.

One, even if he couldn’t brand his clothing as the FUKT brand, the gentlemen in question could still sell his clothes under some other brand label of his choosing, lettered with all the swear words he liked. It’s just that, without the trademark, he couldn’t enlist the government’s help in protecting himself from counterfeit FUKT brand garments.

Two, don’t you think our national discourse is already course enough as it is?

 

The Alabama Human Life Protection Act

hoc est corpus

Text of the Alabama Human Life Protection Act

Prof. Mary Ziegler, Abortion Opponents Think They’re Winning. Have They Set Themselves Up to Fail? Alabama, Georgia and the fetal personhood trap.

Washington Post, Abortion ban reaction: Democrats erupt, Republicans stay quiet as both sides see an impact in the 2020 election

The Theology of Abortion

When the priest says the words, “Hoc est corpus,” a bakery product symbolizing the body of Christ is transformed into the actual body of Christ—at least, according to one theological position.

A sperm has the potential to fertilize an egg and, in the fullness of time, become a baby. An unfertilized egg is likewise a living organism with the potential to be fertilized and, in the fullness of time, become a baby. A fertilized egg is a living organism that also has the potential, in the fullness of time, to become a baby.

The distinction between the fertilized and the unfertilized egg is that, according to one theological position, just as “Hoc est corpus” transforms a bakery product, so also fertilization corresponds with the fertilized egg’s possession of an immortal soul.

Yesterday, the state of Alabama, invoking alleged principles of universal human rights, enacted a sectarian theological position into law: fertilized eggs are the moral equivalent of babies.

The Moral Equivalent of Genocide

Lest there be any doubt about its views, the Legislature, in Section 2(i) of the new law, declared that the 50 million abortions performed since Roe v. Wade were worse than Hitler’s genocide, Stalin’s murders, or Pol Pot’s murderous regime. They threw in The Rwandan genocide for good measure. (Inexplicably, they omitted to mention the ethnic cleansing of Native Americans in Alabama and elsewhere, or the loss of life among kidnapped Africans.)

An “Extreme” Position Required by Logical Consistency

After an emotional debate, the Legislature rejected any exception for rape or incest. It’s a universal human inclination to want to pin adjectives onto complex situations. Accordingly, many have employed the word “extreme” to describe a law requiring a rape victim to bear her rapist’s child.

Actually, while you may use whatever adjective suits your fancy, denying an exemption for rape or incest is an exercise in consistency. Because actual babies born of rape or incest are morally equivalent to all other babies.

But, Oddly, Also An Extremely Inconsistent Position

The first sentence of Section 5 of the Alabama law provides, “No woman upon whom an abortion is performed or attempted to be performed shall be criminally or civilly liable.” On the other hand, physicians who perform abortions commit a Class A felony, punishable by imprisonment from 10 to 99 years. (Prior Alabama law—unenforceable under Roe—had previously applied both to mother and physician, and had made abortion a misdemeanor.)

So, as far as physicians are concerned, a fertilized egg is the moral equivalent of a baby and if they perform an abortion they are the moral equivalent of the Nazi doctors.

But as far as pregnant women are concerned, a fertilized egg is not the moral equivalent of a baby, it is the moral equivalent of a sperm or an unfertilized egg. (And, per the language of the statute, that rule applies if the woman successfully seeks illegal sub rosahelp in the abortion, or if she manages to abort herself.)

You really have to do some serious damage to your mind if you think a zygote is a baby for one purpose but not a baby for another purpose.

As they like to say in Alabama, that dog won’t hunt.

What Will the Courts Do?

I assume the Alabama district courts and the Eleventh Circuit Court of Appeals will enjoin enforcement of the statute, citing Roe v. Wade and other binding precedent. (If they judges are Fetus People, they can feel free to insert some dictum imploring the Supreme Court to overrule Roe and purge the nation of its wickedness. But it will only be dictum.)

Will the Supreme Court “Take Cert”?

Supreme Court review of lower court decisions is discretionary, not mandatory, and the Court decides to review only about ten percent of the cases where appeal is sought. (The decision to review is called granting a writ of certiorari, or “taking cert” for short.)

Here, the Supreme Court could decide just left the inevitable Eleventh Circuit decision against the Alabama law stand, without any further consideration (and thus “deny cert”). Last evening, I refreshed my recollection about how many justices can force the Court to “take cert.” The answer is four.

So, if Thomas, Alito, and Gorsuch want the Court to take cert, overturn Roe, and uphold the Alabama law, they will, in the first instance, have to get either Roberts or Kavanaugh to join in, so that there will be at least four votes for cert.

A Cloudy Crystal Ball

Lots of people—including lots of people who know a damn sight more about this stuff than I do—are making predictions about how this will all play out. Having, myself, suffered humiliation in the past from making wrong predictions about how the Supreme Court would decide antitrust cases, my strong sense is that no one know what will happen, including any of the nine folks in the black robes.

Winnng by Losing, Losing by Winning

But we are on much more solid ground in predicting political fallout. If all five of the Republican justices—Chief Justice Roberts, and Associate Justices Thomas, Alito, Gorsuch, and Kavanaugh—are the inveterate anti-abortionists that some hope, then they will take cert on the Alabama law or on one or more similar laws in other states, consign Roe to the dustbin of history, and leave abortion to the states.

If that happens—and it may very well happen—the Fetus People, especially the Fetus People who really don’t like Trump very much, will tend to stay home in 2020, while all the progressives will be animated by a white hot anger. If the election is close, this factor could make the difference.

Abortion Jujitsu

If, on the other hand, at least one of the right wingers decides to act, not as an anti-abortion zealot but instead as a Republican political hack, the smart choice would be to keep the abortion issue alive in 2020—on the assumption that every single one of the Fetus People will go to the polls and vote for Trump, so that Trump will get to replace RBG and they will get their no-abortion majority on the Court.

Kavanaugh, in particular, might be well positioned to perform some political jujitsu. He could vote against cert, or vote against overturning Roe in full, thereby simultaneously redeeming his promise to Susan Collins and doing his bit to reelect Trump. I wouldn’t put it past him.

Donald Trump and the People of Praise

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Whiling away my time waiting for the hamburgers and chili dogs here at Happy Acres, I read Two Judges Exemplify the Choice Trump Faces in a Supreme Court Pick.

As a rule, Aardvark prefers not to read news stories about things that might happen, and prioritizes news stories about this that have actually happened. By like token, Aardvark has the same interest in internecine quarrels among right wing judicial scholars as he has in the theological difference between the Twelvers and the Seveners.

Nevertheless, I thought the Times article repaid the reading. Judge Kavanaugh, who is said to be the current favorite in Trump’s monkey mind, sounds like he might turn out to be Anthony Kennedy redux. Equally as important, for the crowd that cares most about abortion and the precious right to hate gay people, Kavanaugh’s nomination would be seen as a betrayal. That’s a big reason why Trump’s monkey mind may change once again before he announces the nomination.

I assume that, if Kavanaugh is nominated, there will be a fight, but he will be confirmed.

Judge Barrett, said to be numero dos inside the Trumpian cranium, is a very different kettle of fish. Everybody thinks she would overrule Roe v. Wade in a New York minute.

Kavanaugh’s potential nomination, it appears, would engender an angry fight. Barrett’s potential nomination would raise holy hell.

Fun factoid: Judge Barrett was born into the People of Praise, married another member, and is raising her seven children in the sect. According to their web site, it’s “a Christian community of familes and single people who seek to participate in the mission of the church in our time and to live our lives communally until the day when Jesus will be all in all.”

It seems reasonable to assume that the future Justice Barrett will be forever guided in her judicial philosophy to rule in such a way that Jesus will be all in all.

I am not aware of the fine distinctions among the theological views of the People of Praise, the Twelvers, and the Seveners, but I am sure we will receive further enlightenment as the confirmation process moves forward.

Onward Christian Soldiers

Antonin Scalia died on February 13, 2016, eight months before the November election. But Mitch McConnell said it was vital to wait for the next election to select his successor. Anthony Kennedy announced his resignation on June 27, 2018, four months before the election. But Mitch McConnell announced it was vital not to wait for the next election to pick his successor. Do these two positions reflect shameless intellectual dishonesty and blatant hypocrisy?

No, they do not. They are perfectly consistent.

How is that?

The golden threat that runs through McConnell’s reasoning is that only Republicans get to pick Supreme Court justices. Democratic presidents and Senates have no say in the matter.

Why is that?

Because

  • once the sperm fertilizes the egg, God immediately supplies a soul to the zygote, and anyone who harms the zygote is guilty of an abominable crime and must be severely punished, and because
  • God hates gay people, and because
  • God is none too thrilled about affirmative action, and because
  • in consequence of the foregoing, God hates Anthony Kennedy and all his works, and demands that we will supply Him with a justice who will ensure that young women are back to aborting themselves with coat hangers, that gays are put back in their place, and that rights of persons of western European descent are jealously protected.

So this means that a good portion of the American public are in a state of orgasmic ecstasy over Kennedy’s replacement, and that they will all be sure to turn out and vote for Trump-supporting congressmen and senators?

Most probably.

Will that be a disaster?

No, it will not, because there are more of us than there are of them, and we are mad as hell, and we are all going to vote in 2018 and 2020.

There are lots of headlines saying Kennedy’s successor will change the court for a generation to come. Is that right?

Kennedy is mostly conservative. The other night I heard a talking head say—and therefore I know it is true—that on the fifteen 5-4, liberal-conservative decisions this term, Kennedy voted with the conservative majority every single time. But on abortion, gay rights, and affirmative action, it will make a difference. Jeffrey Toobin says that abortion will be illegal in 20 states by 18 months from now. Sounds about right to me.

So we should all go bang our heads against the wall, right?

No, that is not right. We have to win the 2020 election and pack the court. Republicans have violated norm after norm. We have no choice but to react in kind, taking advantage of the Constitution’s black letter law:

The size of the Supreme Court is not fixed by the Constitution. It is determined by Congress.

The original Judiciary Act of 1789 set the number of justices at six. When the Federalists were defeated in 1800, the lame-duck Congress reduced the size of the court to five — hoping to deprive President Jefferson of an appointment. The incoming Democratic Congress repealed the Federalist measure (leaving the number at six), and then in 1807 increased the size of the court to seven, giving Jefferson an additional appointment.

In 1837, the number was increased to nine, affording the Democrat Andrew Jackson two additional appointments. During the Civil War, to insure an anti-slavery, pro-Union majority on the bench, the court was increased to 10. When a Democrat, Andrew Johnson, became president upon Lincoln’s death, a Republican Congress voted to reduce the size to seven (achieved by attrition) to guarantee Johnson would have no appointments.

After Ulysses S. Grant was elected in 1868, Congress restored the court to nine. That gave Grant two new appointments. The court had just declared unconstitutional the government’s authority to issue paper currency (greenbacks). Grant took the opportunity to appoint two justices sympathetic to the administration. When the reconstituted court convened, it reheard the legal tender cases and reversed its decision (5-4).

Trumped by the Constitution

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How will the Supremes React to the Total Unreviewability Claim?

Here’s a follow-up on two earlier posts, here and here, about yesterday’s Ninth Circuit ruling.

I direct your attention to a lengthy and thoughtful piece by Richard Primus, entitled Will the Supreme Court Back Trump? As Prof. Primus rightly observes, the conventional wisdom is that the four liberals on the Court will jerk their knees and go with the Ninth Circuit, while the remaining four will go in the opposite direction.

But don’t be so sure, he argues—discussing persuasively and at considerable length the many cases in which courts have affirmed their right of judicial review, even over matters affecting national security.

By contrast, thus far, Trump’s legal team is in full throated denial of the courts’ right to review anything, once the magic words “national security” are uttered by Minority President Trump.

If the case reaches the Supreme Court, Primus predicts, all four Democrats will reject it, as will Justices Roberts and Kennedy. Only the knees of Thomas and Alito will jerk in an authoritarian direction.

For what it’s worth, I think that prediction is sound. But don’t take it from Aardvark. Take it from Professor Primus, who, we are told, is the Theodore J. St. Antoine Collegiate Professor at the University of Michigan Law School. A person with that title must surely know what he is talking about.

Why Did Trump’s Legal Team Assert Total Unreviewability Instead of “Rational Basis” Review?

To reiterate and amplify prior observations,

One, it might (conceivably) just be a matter of incompetent lawyering.

Two, it might be authoritarian zeal overcoming any impulse toward good lawyering.

Three, someone might have instructed them to take this extreme position.

Or, four, they might not have conceded the applicability of “rational basis” review because they didn’t have no friggin’ rational basis.

The most plausible explanation is number four.

Will They Try to Clean This Up?

Unidentified but surely unimpeachable sources say they are now rewriting the executive order, presumably to make it more bullet proof.

Having Redrafted the Executive Order, Will They Take the Position that the TRO Just Went Poof?

If Aardvark, Heaven forfend, were on Trump’s legal team, he would surely think about giving that one a shot.

Does Trump Have a Master Plan to Use a Forthcoming Terror Attack as the Basis to Overturn Our Constitutional Order?

I don’t know, although Paul Krugman evidently does.

Six Initial Thoughts on the Gorsuch Nomination

Few wait with baited breath for Aardvark’s initial comments, but what the hell, I’ll share them anyway.

  1. It could have been worse. (See this reaction by Obama’s solicitor general, Neal Katyal.)
  2. Someone who makes a point of not showing undue deference to the executive branch is not a bad guy to have at this point in history.
  3. Accordingly, this time around the better part of wisdom would be for Democrats to participate actively in the hearings, listen to get a sense of his character and views, and then decide whether it’s someone they can support. If fundamental problems arise out of the testimony, vote no. If not, abstain or vote yes.
  4. Progressives need to take a clear stand on the stolen seat issue. 2018 and 2020 are both election years. They should declare in advance that they will refuse to anyone Trump might nominate to fill any Supreme Court vacancy that occurs in those years. Not because they agree with the Republicans’ having deducted one year from Obama’s term of office, but because turnabout is fair play.
  5. If a vacancy does occur in one of those years, the Democrats filibuster, and the Republicans invoke the nuclear option, then so be it. The filibuster is on the way out anyway, and it should be on the way out as long as its going to be abused. Jonathan Chait says let the Republicans kill it, and I tend to agree.
  6. Finally, just for laughs, I hope someone of a scholarly bent will provide a detailed, reasoned catalog of legal issues on which Gorsuch and Garland would probably vote differently. That might make for a reasonably informed discussion. And God forbid that we should have an informed discussion on a matter such as this.