Editors’ Blog

From a longtime reader and top echelon DC lawyer:

Agree with what you just wrote.  But don’t separate what the Court has done on guns and Roe—and what’s surely coming on affirmative action in the cases already granted for next term and what Justice Thomas is foreshadowing on other constitutional rights—from the Court’s decisions on federal agency authority.  And the long series of rulings whittling away at individuals’ ability to obtain relief in court when injured by violations of the Constitution and federal law—rights don’t mean much when there is no remedy for violations.

The modern conservative judicial movement always had abortion and the reversal of Roe v Wade as its central empowering goal. Many intellectuals and activists had different political and goals. But those often esoteric and complex goals were never what powered the politics and the appointments. That was always abortion. When white evangelicals made their pact with the scofflaw libertine Trump, it wasn’t about “takings” or delegation or “originalism.” It was about abortion. So today represents a victory for the conservative judicial movement, later embodied in The Federalist Society, that was five decades in the making.

There are many observers who despise the results but yet still grant the legwork. There was a liberal Court that made all sorts of liberal decisions, the story goes. Conservatives didn’t like that. So they got organized and changed it. Liberals did it first and then conservatives did it.

But that story was never really quite right.

In case you missed it Nicole LaFond and Kate Riga discussed this morning’s SCOTUS decision to overturn Roe, on Twitter. Listen through the link below and follow us on Twitter @TPM to join the next one.

It’s been rather tidy to encapsulate conservative opposition to Roe as one decision gone way too far that marks a fork in the road of modern jurisprudence.

But Justice Thomas’ concurring opinion in Dobbs today makes clear that the true fork in the road for diehards came at least a decade before Roe, with a series of substantive due process cases that protected the rights to contraception and private sex acts and extended all the way to 2015 with the right to same-sex marriage.

So there it is. Entirely expected and yet still shocking to see in the full light of day. As I wrote last month here and reiterated in this Times oped earlier this month, this is the one path to reviving Roe’s protections. Get 48 Senators on the record clearly and publicly promising to pass a Roe law in January 2023 and change the filibuster rules to make that possible. That puts abortion rights and Roe protections clearly on the ballot. It’s not a certain path by any means. But it is certainly the only path available right now.

Addendum: I had pulled back a bit on trying to figure out just where every senator stood because as long as the decision wasn’t 100% official it was premature. Premature in the sense that it wasn’t really possible for voters to apply maximum pressure. Now’s the time.

The list of federal law enforcement searches on Wednesday, most of which came to light during yesterday’s blockbuster Jan 6th testimony, should remind us of a critical point. The exercise of the law is not simply a matter of finding crimes and prosecuting criminals. It also has a profound signaling effect. It is how society speaks to itself about what is and is not acceptable behavior. Even now I find even myself a bit surprised seeing this drama escalate to morning FBI raids, seizure of electronic devices and more. But of course that’s what happens when people commit serious crimes. In key ways that is how we are conditioned to know what is serious and what is not, what we collectively as a society view as a grave offense. When that doesn’t happen, especially for those not following the details, we assume – and not unreasonably – that it is just politics.

In case you missed it, David Kurtz and Josh Kovensky just hosted a Twitter Space, discussing everything that went down earlier this week: the feds’ raids, the subpoenas and federal agents’ contact with eleven people involved in Trump’s attempt to subvert the 2020 election. They also discussed the fifth hearing by the Jan. 6 House Select Committee investigating that same attempt. It’s been an eventful week. Listen through the link below:

Everything you need and want to know about this new post-Roe era. This is the place to be.

As promised, the Jan. 6 Committee just aired testimony from former White House lawyer Eric Herschmann, ex-Mark Meadows aide Cassidy Hutchinson and Trump’s director of the White House presidential personnel office, John McEntee — all of whom outlined what they knew about Republican requests for pardons from Trump.

Our TPM Journalism Fund drive this year is really important. Critical for the organization. We’re off to a good start. But we really want to get to the 3/4 of the way there mark today. That’s $150,000 raised. If you could help us get there today I and we all would greatly appreciate it. It just takes a minute of your time, literally. Just click right here.