Editors’ Blog

It’s long been a truism that the precedents that would need to be toppled to overturn Roe v Wade would put in jeopardy or remove the underpinnings of rights to contraception, same sex marriage and a whole range of reproductive, erotic and matrimonial autonomy and freedom this country has long taken for granted. This is based on the jurisprudence of a “right to privacy” which is the basis of numerous court decisions going back to the 1960s. In a way it is antiseptic and structural. To do away with Roe you need to do away with the right of privacy and doing away with the right of privacy means a whole raft of other decisions fall. But reading Alito’s decision he didn’t want to leave it to that. He dismisses the privacy jurisprudence out of hand and then focuses his argument on these rights not being “deeply rooted in this Nation’s history and tradition” or “implicit in the concept of ordered liberty.”

There’s lots of brilliant think pieces from reporters, scholars and political observers to consume today to help wrap one’s head around the gravity of the last 24-hours. Here’s another take to add to the list this evening.

New York Times writer Max Fisher flagged a piece he published back in September 2021 here:

The White House just released this statement about Roe. Here’s the text and then a few comments from me.

I wanted to do some initial scoping out of the implications of the overturning of Roe for federal politics — both the impact on elections and the chances of passing federal laws to codify Roe.

The first thing is that people will tell you that there’s no practical way a federal abortion rights bill can get passed. That is definitely wrong. Whether or not such a law happens is entirely up to the results of the 2022 midterms. And it doesn’t require heroic assumptions.

In the flurry of reactions to the apparent/reported overturning of Roe last night, I saw a campaigns analyst comment that the odds of the Virginia GOP scoring a trifecta (unified control of state government) in 2023 had fallen dramatically. The Democratic Governor of Pennsylvania, I’m sure along with others I haven’t seen yet, put out a statement essentially saying ‘no need to worry about abortion rights in Pennsylvania as long as I’m here’.

POINT: CNN is now reporting that Justice Roberts planned to dissent from Alito’s majority opinion. He was willing to affirm the 15 week Mississippi law but not overturn Roe in its entirety. That sounds fairly Roberts-like in a way, though it’s notable to me that a Chief Justice would want to be on the dissenting side of perhaps the most historic decision of his tenure when he must have at most equivocal feelings about overturning Roe. In any case, the rapidity with which Roberts’ apparent decision was reported out makes me wonder whether the breakdown in secrecy with this case doesn’t go beyond the leak of Alito’s draft majority decision. Don’t know precisely what this would mean. But keep that in mind. That’s real fast.

Politico just published what it says is an early draft of a majority opinion in which the Court formally overrules Roe v Wade. The reporting suggests that all the Republican-appointed Justices other than Roberts are supporting the opinion and the decision. Alito is the author of the opinion. It’s not clear whether Roberts may support the decision, will write a concurring opinion or won’t support the decision at all. It’s sobering, shocking to see the words, “We hold that Roe and Casey must be overruled,” which the opinion reportedly contains. And yet, really it’s not surprising at all. This has been an open secret for months. Indeed it was inevitable the moment Amy Coney Barrett joined the Court. Still, seeing it … In a different way what’s more surprising is that a draft opinion leaked. As far as I know that’s totally unprecedented. Certainly I don’t think it’s ever happened in a high profile case. And here we are.

Political observers have been theorizing for some time that the Republican Party’s current war on education and school-related issues is all part of a broader effort to create a political illusion. The right-wing media and right-wing politicians are seemingly using each other to make enough noise about faux cultural grievances that it’s impossible to tell where the noise originated in the first place.

Are kindergarteners in Florida being exposed to LGBTQ or gender identity issues in an age inappropriate way? Are math textbooks in Texas indoctrinating kids to become liberal cyborgs? No, but asking the question gives the question a life of its own.

In response to a reading recommendation over the weekend I heard from a number of readers who said something along these lines: we’re not the ones escalating. Putin and Russia began this, did all the escalating. Many of these responses came down to this: Putin and Russia are completely in the wrong here. All the escalation is coming from one side.

This thread by Ian Kearns is the best I’ve seen so far capturing the totality of the situation in the Russo-Ukraine War and what we can and can’t do about it. It is an extremely dangerous crisis because both sides now have themselves committed to what they see as commitments and needs they cannot walk away from. He does a good job in my mind of making clear the need for both firmness/resolve and restraint and — since that’s easy enough to agree with and say in the abstract — just what those mean in this context.