i’m honestly astounded by again theprescience um that you wrote becausepart of the crisis in handmaid’s talestarted with an attack on on congressand and the the you know the falloutfrom that i mean here all these decadeslater in 2021we had an attack on congress and thereare many who believe that thefundamental democracy of the unitedstates is under threat so what doestotalitarianism look like in the u.sor couldwhen when it arrivesuh well it’ll have a lot of god in itum and a lot of things will be done inthe name of of said worduh that if you actually uh believe insome form of god and in the in the uhlatter part of that book uh you wouldthink that such a god would notindulge in these practices i’m beingvery circumlocations hereum yeah so it would have a lot of godand it would have a lot of americanflags in itand it would have a lot of let’s getback to the old days in itwhen were those old days and what wasgoing on in themso you can’t separate anything thathappens in the united states fromuh its history of uh slaveryand umso-called reconstruction and and jimcrow laws and segregation that’s allvery recentsoi think the totalitarianisms of the leftlead through hopeso things are going to get much betterexcept we have to get rid of thosepeopleand those of the right to lead throughfearunless you follow me and do what i sayterrible things will happenand there’s a list of terrible thingswhich are specific to eachcircumstance but i wouldn’t say that’show it goesdon’t you think well it’s fascinatingagain i mean just reallyjust watching all of this unfold thingsthat i personally never dreamed couldhappen uh an attack on americandemocracy of all places rolling backquote unquote the woman question umwhich we see right now and again goes tothe very heart of the handmaid’s taleand that of course i don’t need to tellyou the texas abortion law themississippi uh abortiondecisions that are about to come up theidea that roe versus weighed may beoverturned either in whole or in parthow well i mean you obviously areconcerned did you ever imagine thoughthat when you wrote the handmaid’s talethis amount of reality would shape up somany decades laterokay i’ve never believed inexceptionalismi’ve never believed it can’t happen here[Music][Music]you
F.D.A. Will Permanently Allow Abortion Pills by Mail
Earlier this year, for the duration of the pandemic, the F.D.A. temporarily lifted the in-person requirement on mifepristone, the first of two drugs used to end a pregnancy. The decision to make this change permanent is likely to deepen the already polarizing divisions between conservative and liberal states on abortion. In 19 states, mostly in the South and the Midwest, telemedicine visits for medication abortion are banned, and these and other conservative states can be expected to pass other laws to further curtail access to abortion pills.
The Supreme Court Gaslights Its Way to the End of Roe
There are many reasons for dismay over the Supreme Court argument in the Mississippi abortion case, but it was the nonstop gaslighting that really got to me.
First there was Justice Clarence Thomas, pretending by his questions actually to be interested in how the Constitution might be interpreted to provide for the right to abortion, a right he has denounced and schemed to overturn since professing to the Senate Judiciary Committee 30 years ago that he never even thought about the matter.
Then there was Chief Justice John Roberts, mischaracterizing an internal memo that Justice Harry Blackmun wrote to his colleagues as the Roe v. Wade majority was discussing how best to structure the opinion Justice Blackmun was working on. The chief justice was trying to delegitimize the place of fetal viability in the court’s abortion jurisprudence, where for nearly 50 years, viability has been the unbreached firewall protecting the right of a woman to choose to terminate a pregnancy.
“It’s an unfortunate source, but it’s there,” he said, referring to Justice Blackmun’s papers, on file and open to the public at the Library of Congress. “In his papers, Justice Blackmun said that the viability line was — actually was dicta.”
“Dicta” is a dismissive word that refers to asides in an opinion that are not actually part of the court’s holding. The entry in the Blackmun papers to which the chief justice was most likely referring was a memo of Nov. 21, 1972 that the author of Roe v. Wade sent along with a new draft opinion to the other justices, noting: “In its present form it contains dictum but I suspect that in this area some dictum is indicated and not to be avoided.”
In that memo, of course referring to what was still a work in progress, Justice Blackmun proposed that the right to abortion be fully protected only until the end of the first trimester of pregnancy. “This is arbitrary,” he wrote, “but perhaps any other selected point, such as quickening or viability, is equally arbitrary.”
But two weeks later, after consulting with other justices, including Lewis Powell and Thurgood Marshall, Justice Blackmun circulated another memo endorsing the viability line. Far from describing this determination as arbitrary, he wrote in a memo dated Dec. 11, 1972, that viability “has logical and biological justifications,” namely, that “few could argue, or would argue, that a state’s interest by the time of viability, when independent life is presumably possible, is not sufficiently developed to justify appropriate regulation.”
In other words, by the time the court issued the final opinion in January 1973, viability was not dicta but rather an essential element of the decision. Chief Justice Roberts may not like viability — as clearly he doesn’t, observing to Julie Rikelman, the lawyer for the Mississippi clinic challenging the state’s ban on abortion after 15 weeks of pregnancy, that “viability, it seems to me, doesn’t have anything to do with choice” — but he was flatly wrong to suggest that it was an unconsidered aspect of Roe v. Wade.
(And of course it is extremely odd for a Supreme Court justice to dig into the court’s private work papers to cast aspersions on a published opinion.)
In fact, as the second Blackmun memo makes clear, the court that decided Roe saw a direct link between the viability line and a woman’s ability to choose abortion. In that second memo, Justice Blackmun referred to the “practical aspect” of the viability line, observing that “there are many pregnant women, particularly younger girls, who may refuse to face the fact of pregnancy and who, for one reason or another, do not get around to medical consultation until the end of the first trimester is upon them or, indeed, has passed.”
And then there was Justice Brett Kavanaugh, who rattled off a list of “the most consequential cases in this court’s history” that resulted from overruling prior decisions. If the court had adhered, for example, to the separate-but-equal doctrine of Plessy v. Ferguson rather than overruling that precedent in Brown v. Board of Education “the country would be a much different place,” he told Ms. Rikelman. “I assume you agree with most, if not all, the cases I listed there, where the court overruled the precedent,” Justice Kavanaugh continued. Why then, he asked, should the court stick with a case it now regarded as wrongly decided?
More gaslighting: The superficial plausibility of Justice Kavanaugh’s analogy between Plessy v. Ferguson and Roe v. Wade dissolves with a second’s contemplation. For one thing, Plessy negated individual liberty, while Roe expanded it. For another, Justice Kavanaugh’s list could have been 1,000 cases long without casting any light on whether today’s Supreme Court should repudiate Roe v. Wade.
But the justice’s goal was not to invite contemplation. It was to normalize the deeply abnormal scene playing out in the courtroom. President Donald Trump vowed to end the right to abortion, and the three justices he put on the court — Neil Gorsuch, to a seat that was not legitimately Mr. Trump’s to fill; Amy Coney Barrett, whose election-eve nomination and confirmation broke long settled norms; and Justice Kavanaugh — appear determined to do just that.
It was Justice Sonia Sotomayor who asked the uncomfortable question. “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” she demanded of Scott Stewart, a former law clerk to Justice Thomas who argued for Mississippi as the state’s solicitor general. Listening to the live-streamed argument, I first heard “political acts” as “political hacks,” I suppose because still in my mind were Justice Barrett’s words when she spoke in mid-September at a center in Louisville, Ky., named for her Senate confirmation mastermind, Senator Mitch McConnell. “My goal today is to convince you that the court is not comprised of a bunch of partisan hacks,” she said then.
Justice Barrett’s performance during Wednesday’s argument was beyond head-spinning. Addressing both Ms. Rikelman and Elizabeth Prelogar, the U.S. solicitor general who argued for the United States on behalf of the Mississippi clinic, Justice Barrett asked about “safe haven” laws that permit women to drop off their unwanted newborn babies at police stations or fire houses; the mothers’ parental rights are then terminated without further legal consequences. If the problem with “forced motherhood” was that it would “hinder women’s access to the workplace and to equal opportunities,” Justice Barrett asked, “why don’t safe haven laws take care of that problem?”
She continued: “It seems to me that it focuses the burden much more narrowly. There is, without question, an infringement on bodily autonomy, you know, which we have in other contexts, like vaccines. However, it doesn’t seem to me to follow that pregnancy and then parenthood are all part of the same burden.”
I’ll pass over the startling notion that being required to accept a vaccine is equivalent to being forced to carry a pregnancy to term. “Gaslighting” doesn’t adequately describe the essence of what Justice Barrett was suggesting: that the right to abortion really isn’t necessary because any woman who doesn’t want to be a mother can just hand her full-term baby over to the nearest police officer and be done with the whole business. As Justice Barrett, of all people, surely understands, such a woman will forever be exactly what she didn’t want to be: a mother, albeit one stripped of her ability to make a different choice.
I will give the gaslighting prize to Justice Kavanaugh and his suggestion that the court should simply adopt a position of “neutrality” with respect to abortion. Abortion is a contentious issue with important interests on both sides, he said to Solicitor General Prelogar. “Why should this court be the arbiter rather than Congress, the state legislatures, state supreme courts, the people being able to resolve this?” he said. “And there will be different answers in Mississippi and New York, different answers in Alabama than California because they’re two different interests at stake and the people in those states might value those interests somewhat differently.”
Justice Kavanaugh painted a soothing description of a down-the-middle resolution, but Solicitor General Prelogar, for one, wasn’t fooled. “The nature of fundamental rights is that it’s not left up to state legislatures to decide whether to honor them or not,” she responded.
Can Justice Kavanaugh really believe what he said? We’ll see soon enough. Last month, the court heard arguments in a case that challenges New York’s strict requirement for a license to carry a concealed weapon. Most states have looser restrictions. New York, through its legislative process, is in a minority.
Will Justice Kavanaugh and those of his colleagues who glorify a recently manufactured version of the Second Amendment allow New York City to keep going its own way on gun safety in the name of “letting the people decide”? That’s about as likely as the chance that those very same justices will decide to keep the right to abortion on the books. In both cases, we know what they’re going to do. The only mystery is how they will explain it.
Republican Issues (Sean Parnell)
THE ISSUES
PROTECT PA JOBS
I will fight to keep taxes as low as possible, protecting your earnings and your freedom, and slash regulations to get DC off the necks of Pennsylvania job creators.
I’m from a union family and understand how important unions have been to middle-class families in Pennsylvania. I will always support middle-class working families and defend their rights in the workplace.
After decades of being beholden to OPEC, we are finally energy independent. A net energy exporter, in fact. We need to keep it this way. Fracking creates jobs and keeps us free. I will support Pennsylvania’s energy workers – and I won’t let my party betray them.
FIGHTING FOR VETERANS
Our veterans are the best of us. When they raise their right hand and volunteer to serve our great nation, they do so knowing that they may give their lives in defense of our freedom. When our veterans come home from distant battlefields, they deserve to be thanked on behalf of a grateful nation, but that gratitude must not stop there. Our leaders need to work relentlessly on their behalf to ensure they’re given a fair deal on the home front. They fought for us; now it’s our turn as American citizens to fight for them.
I will never forget the dedication and sacrifice of our nation’s warriors. Veterans who fought and bled for this country should not have to fight and bleed for the healthcare and benefits they were promised. Veterans willingly chose to serve this nation during a time of war; they deserve the right to choose where to get their healthcare. If you like the care you receive at the VA, great. You can keep it. If you don’t, then it should be your right as a veteran to choose where you want to go.
Veterans who deploy to defend the streets of America should not have to return home to sleep on them. I will fight to ensure our veterans stay off the streets and in jobs where they can provide for their families and live the American Dream that they bled to protect.
Election Integrity
As we look at what happened in 2020, we need to work to make sure the voters never again have a reason not to have faith in our electoral process. We need to increase transparency and security to prevent voter fraud by making sure signature verification is taking place on mail-in ballots and promoting stability in the process. There should be no changes by unelected bureaucrats or activist judges within 60 days of the election. Our election workers have a great deal of responsibility and changing the rules of the game on them by proclamation within 60 days places unnecessary burdens on them.
SUPPORT LAW ENFORCEMENT
There are those who spend their time and energy trying to tear our police officers down. They attack them for the uniform they wear. They use their positions of power to advocate for defunding the police and demonizing them, while every day, our police walk out their door to keep the people of their communities safe from those that wish to do us harm.
THE AMERICAN DREAM
America is still the greatest nation in the history of the world. While the radical left is trying to silence free speech, transform our institutions, and roll back our constitutional rights, I will always fight to defend the country I love.
Strengthening our military
As someone who has served in fierce combat, I know firsthand the importance of making sure our troops are supported and well-funded. We need to ensure our military is the strongest fighting force in the world and is used to defend Americans from our enemies, NOT to police every corner of the earth. At the same time, we need to be fully funding our military budget. China and Russia are not backing down, and we need to be prepared to defend ourselves should the need arise.
SECond amendment
“…The right of the people to keep and bear arms shall not be infringed…” I will fight like hell to protect the right to keep and bear arms, and I reject the notion that society is somehow guilty because a criminal commits a crime. We do not need more gun control laws, we need to enforce the laws we have and give resources to those whose job is to enforce those laws.
HEALTHCARE
I have a pre-existing condition. This is personal to me. I will always protect people with pre-existing conditions and make sure they have the same access to quality health care.
I want Americans to have the freedom to choose a healthcare plan that fits their needs. The best way to drive healthcare costs down is to get people jobs, allow insurance companies to compete across state lines, and allow small companies to band together to get lower rates.
I will defend the good health benefits Pennsylvania’s labor unions have won through negotiation – and fight the liberals who try to take these benefits away.
I believe the more insurance companies have to compete for your business, the more affordable healthcare will be, and it will ultimately empower all Americans to pick a customizable plan that works best for them.
IMMIGRATION
Securing the border is a national security issue, it’s an illegal drugs and guns issue, and it’s a human trafficking issue. We need leaders to admit this is a crisis. President Biden’s failure to acknowledge the problem he created shows the lack of sincerity in addressing our nation’s border security.
If there are members of either party that are serious about fixing our immigration system, I will gladly work with them. But first, we must secure the border.
I will stand up against those who want to open our border and continue to allow for policies like sanctuary cities that circumvent federal law to exist. Those positions are out of step with what the majority of Pennsylvanians believe, and I will always put Pennsylvania first.
fight for the unborn & the supreme court
I am pro-life, and will always vote to protect the unborn. As a US Senator, I will vote to confirm judges who share that view. I will strongly support pieces of legislation like the Born Alive Act, and believe Joe Biden’s decision to revoke the Mexico City policy undermines our moral leadership worldwide.
I disagree with packing the court or confirming justices that will legislate from the bench. We are a country of laws, and the judiciary should enforce them as they are written, not create policy.
SOCIAL SECURITY & MEDICARE
It’s simple, Social Security and Medicare should be protected. People have paid into the program their whole lives, and at the end of the day, they have earned it, and they deserve their Social Security and Medicare at retirement.
Should Pro-lifers be Pro-Vaccine?
The Pro-life movement and Black Americans. The media tends to portray these two groups as very different. And they are. But there are some curious commonalities between the two groups. Most obviously, there are large numbers of Christians in both groups. More surprisingly, these two groups are by far the most suspicious of the COVID vaccine – although for different reasons.
Why do Pro-lifers and Blacks have this vaccine suspicion?
My name is Curtis Chang, and welcome to Redeeming Babel, where our mission is to provide Biblical thinking in a confusing world. In another video, I explained the history behind Black American distrust of vaccination. In this video, I turn to the Pro-life movement.
Pro-lifers fear that the vaccine is connected to abortion. And indeed there is a distant connection. But the consensus of leading Christian bioethicists is that this distant connection should not discourage pro life Christians from taking the vaccine. Pro lifers in fact have strong reasons to be pro-vaccine.
The cell line
To understand why this is the case, one must first understand what a cell line is. A cell line begins with some original cell taken from a human source, and then those original cells get replicated in labs over and over and over, often over decades. The cells that descend from that original cell make up the cell line. It is these descendant cells – the cell line – that gets used in biomedical research.
One of the most important cell lines used in COVID vaccine research is the HEK 293 cell line. No one knows the actual individual identity of HEK 293. The original cells were obtained in the Netherlands in 1973 by Dr. Frank Graham. Dr. Graham has reported that he cannot be sure whether the fetal remains came about through a miscarriage or an elective abortion. But it is quite possible – maybe even probable – that HEK 293 originated from an elective abortion.
For the sake of understanding the pro-life Christian’s worst fears, let’s assume this is the case.
This would mean that COVID vaccine research used cells that if you back far enough, can be trace an ancestry to a past abortion. Keep in mind that the vaccine ITSELF does not contain any fetal cells; it is the research PROCESS that used the cell line. And remember the cell line used today is not the actual original cell taken from a fetus. Those original cells are long gone. The HEK 293 cell line are the descendants of that original cell taken back in 1973.
The HEK 293 cell line has been used not just in vaccine research, but in most advanced medical treatments today. The biggest recent breakthroughs in treatment for diabetes, heart conditions, hepatitis, arthritis, lung disease, cancer and many other diseases all drew upon the HEK 293 cell line. In fact, if someone today did not want to touch the impact of the HEK 293 cell line at all, that person would almost have to disconnect from modern medicine entirely. If you have received any meaningful medical treatment in the past ten years, you most likely have already been impacted by the HEK 293 cell line. None of us can avoid this impact.
And this is where we have to make a key distinction: the distinction between impact and guilt. Impact does not equal guilt.
There can certainly be impact from a past sin. In fact, the Biblical concept of original sin is meant to say that none of us can avoid the impact of past sin. Sin originates a “cell line” of impact, if you will, that can extend down through the generations. Anyone who has a family of origin where there was abuse or addiction knows that this is true. Past sin makes an impact on subsequent generations.
But impact that gets passed on is not the same as current guilt. Let’s say, God forbid, you had a grandparent who was abusive. This fact will impact your family of origin and probably even you. But this does not mean that you automatically are an abuser. Impact gets passed on. But guilt does not. In the same manner, an act of abortion back in 1973 had a huge impact on all biomedical research, including COVID vaccine research. But this does not automatically make the COVID vaccine guilty.
So, as we think about the COVID vaccine from a pro-life perspective, let me emphasize three key points:
None of the vaccines contain any fetal tissue or offshoot
No actual cell taken directly from fetuses were used in research
None of the vaccines encourage more abortions for medical research
None of the vaccines contain any fetal tissue or offshoot
First, none of the vaccines contain any fetal cells or even any descendant cells. None of the vaccines contain the HEK 293 cell line itself. To repeat, the research process for the vaccine relied on the cell line, but the vaccine itself does not include the cell line. When someone gets injected with the vaccine, they are NOT getting injected with any fetal tissue or any cell line originating from fetal tissue.
No actual cell taken directly from fetuses were used in research
Second, no actual cells taken directly from fetuses were used in the research. When we talk about how the HEK 293 or other cell line were used in vaccine development, remember that we are not talking about the actual cells from an abortion that happened decades ago. The HEK 293 cells used today in labs are not the original cells. Those original cells are long gone. The cell line are descendants (usually modified at that) of those original cells.
The analogy I like to use is the railroad lines that connect my home state of California to the rest of the country. Most goods that we Californians import today from the rest of the country come to us on railroad lines that were originally laid down in the building of the First Transcontinental railroad. That origin story is filled with racist treatment of the first Chinese Americans, my ancestors. They were discriminated against horribly, given the most dangerous jobs, and were periodically lynched by mobs, like in the horrible Rock Spring Massacre.
Today’s transportation lines into California are like the fetal cell lines that developed the COVID vaccine. They are not evil in their current state and usage, but they run on tracks that follow lines first laid down by previous institutional sin. And none of us can avoid being touched by those lines.
None of the vaccines encourage more abortions for medical research
Finally, it is important to emphasize that none of the COVID vaccines encourage more abortions for medical research.
In fact, the fact that HEK 293 has been so widely studied and used for decades means that most researchers rely on it and other long established cell lines. They are not motivated to obtain new cell lines from new fetuses. And government regulations strongly discourage any researcher trying to do so, especially from aborted fetuses. This point is key to the difference between impact and guilt. Because it means that current vaccine research, while it has been impacted by past abortion, is not guilty of promoting current abortions.
All of these facts have led to a consensus among the leading Christian bioethicists. The consensus is that Christians – including pro-life Christians – are encouraged to take the COVID vaccines. The Vatican – which as studied this issue extensively – has given its approval. The president of the Southern Baptist Theological Seminary has similarly approved. Leading conservative bioethicists, like those associated with pro life foundations such as the Heritage Foundation have also joined in the approval.
I agree with this chorus of thinkers. I believe that every pro-life Christian should take the COVID vaccine.
Imaging redemption
Indeed, I suggest that the COVID vaccine can serve as an image of God’s redemption. Redemption is God’s ultimate answer to the problem of original sin. Redemption is taking something that originated in a wrongful state, and reworking that thing into something good. The Bible tells us that in his death and resurrection, Jesus redeemed human sin.
1 Corinthians 15:22 puts it this way:
“For as all die in Adam, so also all shall be made alive in Christ.”
1 Corinthians 15:22
In other words, Adam’s original sin had an impact on us all. We are descendants of his spiritual cell line, so to speak. But the origins of that spiritual cell line, that began in death, is not the final verdict. The spiritual line of Adam has been reworked by Jesus. What began as a story of sin and death has been reworked into a story of forgiveness and life. That is what it means to be “made alive in Christ.” That is redemption.
The idea that what began in death could be reworked into life is hard for the human mind to grasp. This is why we need images of redemption in the world. We need examples that can serve as metaphors of what Jesus accomplished, that show us, “Jesus’ redemption is kind of like that…”
I propose that the COVID vaccine is an image of redemption. Yes, the vaccine may have a distant origin story in abortion. But that past has been reworked and redeemed into something that saves life. We can point to the vaccine and say, “Jesus redemption is kind of like that.” And indeed, the production of a vaccine in less than a year is really a miracle. Something like this has never happened this quickly. I personally believe God’s redemptive power was present in the process.
My invitation to Pro-life Christians who distrust the COVID vaccine is this: please remember that the Christian story is the story of redemption. Every one of us has a origin story in sin. None of us can avoid this. Yet each one of us has had our story reworked by Jesus into new life. That’s what it ultimately means to be pro-life. To be pro life is to be pro redemption. And to be pro redemption, in my view, means being pro vaccine.
The vaccine is ultimately a redemption story. Let’s be part of that story.
SCATHING Dissents Push Back On Extremist Texas Decision
The liberal wing of the court, joined by Chief Justice Roberts, wrote individual dissenting opinions against Texas’s new abortion ban.
Five Justices Did This Because They Could
Emergency appeals have become the tool of choice for the conservative movement.
The conservative majority on the Supreme Court was so eager to nullify Roe v. Wade, the 1973 precedent securing the right to abortion, that it didn’t even wait for oral arguments.
Instead, in the middle of the night, five of the high court’s conservatives issued a brief, unsigned order allowing a Texas law that bans abortion at six weeks. The law also gives private citizens the authority to sue anyone who “knowingly … aids or abets” an abortion and rewards them with $10,000 if successful, essentially placing a bounty on anyone wishing to end a pregnancy, and anyone who might help them. Texas is now rewarding residents who snitch to the state on the most intimate details of other people’s lives.
“Last night, the Court silently acquiesced in a State’s enactment of a law that flouts nearly 50 years of federal precedents,” Justice Sonia Sotomayor wrote in her dissent. “The Court should not be so content to ignore its constitutional obligations to protect not only the rights of women, but also the sanctity of its precedents and of the rule of law.”
Also remarkable was that the Supreme Court acted through its “shadow docket,” the decisions the justices make regarding emergency appeals such as death-penalty cases. Under normal procedure, cases take time to work their way through the lower courts, and are received at the Supreme Court with extensive records, briefs, and oral arguments. Ideally, this allows the justices to ensure that their hugely consequential decisions are properly informed and made as carefully as possible, weighing all the relevant legal and constitutional issues. But there are some circumstances in which the Court needs to act quickly to prevent some imminent or irreversible harm. There’s nothing inherently sinister about that. The shadow docket, though, now resembles a venue where the conservative legal movement can get speedy service from its friends on the Court.
Over the past few years, the cases on the shadow docket have risen in significance, with the justices quietly making major changes to American law without the scrutiny or attention that comes with holding oral arguments or writing major opinions. Trump-administration attorneys found the Court’s conservative majority delighted to allow many of their most controversial policies to go forward. Under President Joe Biden, by contrast, the conservative justices have acted rapidly to block administration decisions, or to force Trump-era policies to remain in place.
“The term shadow is meant to evoke the understanding that what the Court is doing is not the way that decision making on an ordinary merits docket would happen,” says Melissa Murray, a law professor at NYU who clerked for Sotomayor while she was a federal judge. “I think it’s clear that it has become a shadowy way to effect substantive decisions in cases where the Court, in the light of day, would be more reluctant to move aggressively.”
The shadow docket has been a tremendously successful venue for the right. Stephen Vladeck, a law professor at the University of Texas at Austin who has closely followed the shadow docket, counts at least 41 requests for “emergency relief” submitted to the Court from the Trump administration, compared with eight under the Obama and Bush administrations combined. And he counts only four occasions during the Trump administration on which the Court denied “the government’s request outright.” That deference has not continued into the Biden administration.
“During the Trump administration, it was on the shadow docket that basically all of Trump’s controversial immigration policies affecting millions of people were allowed to go into effect, including the travel ban,” Vladeck told me. “During the Biden administration … perhaps the biggest shadow-docket ruling so far was the ruling last week that froze and effectively killed the CDC’s revised eviction moratorium.”
Under Trump, the justices allowed policies such as the administration’s travel ban targeted at mostly Muslim nations, its prohibition against trans people serving in the military, and its restrictions on asylum to go into effect. Under Biden, they have barred the administration’s attempt to prevent evictions because of the coronavirus pandemic and accepted a lower-court ruling demanding that the White House reimpose the controversial Trump-era “Remain in Mexico” policy, which forced migrants into “precarious conditions in dangerous Mexican border cities where thousands became victims of kidnappings, rapes and extortion,” according to The Washington Post. The decision compels the Biden administration to renegotiate an agreement with a foreign country reached during a prior administration; deference to the president’s constitutional authority to set foreign policy, which the justices had memorably cited in Trump-era cases, was suddenly absent.
“What is so troubling about this trend is its continuing acceleration, not in volume, but in quality,” Vladeck said. “The Court seems increasingly untroubled by deciding big questions that affect lots of people this way.” Having a conservative-dominated tribunal determine such questions, however, is an ideal arrangement for a party that has not won a majority of the votes in a presidential election since Tobey Maguire was Spider-Man, and that sees the popular majorities that vote against it as composed of illegitimate semi-citizens who have no right to govern.
The shadow docket has begun to look less like a place for emergency cases than one where the Republican-appointed justices can implement their preferred policies without having to go through the tedious formalities of following legal procedure, developing arguments consistent with precedent, or withstanding public scrutiny. And so after initially allowing the Texas law banning abortion before most women know they are actually pregnant to go into effect, five conservative justices told Republican-controlled states they could disregard Roe while insisting that wasn’t what they were doing at all.
Instead, the justices in the majority argued in their unsigned opinion that because the case presented “complex and novel antecedent procedural questions,” their hands were tied. This is ludicrously dishonest. If Texas passed a law granting $10,000 bounties to private citizens if they sued anyone who held or enabled an indoor church service during the pandemic, the Court’s conservative wing would not feign confusion about whether the constitutional right to freedom of worship had been violated because of the supposed novelty of the scheme.
This ruling is less a description of a complex legal challenge than a road map. As Mary Ziegler writes, the Texas law was strategically designed to evade legal restrictions, and the majority read the script that was handed to it. Republican-run legislatures now know that they can pass such laws and the Supreme Court will pretend to be unable to block them.
Among the Republican appointees, only Chief Justice John Roberts had enough respect for the right’s purported doctrines of judicial minimalism to vote to wait for the case to reach the high court through normal procedural channels. Ironically, though, the unsigned majority decision reflects a careful study of Roberts’s years of successfully managing the Court’s reputation. The decision does not say “Roe is hereby overruled,” but it tells states exactly how they can effectively ban abortion if they want to. In that, it echoes Roberts’s own tendency to hide his preferred outcomes behind legal technicalities, the better to mime fidelity to constitutional principle.
“Although the Court denies the applicants’ request for emergency relief today, the Court’s order is emphatic in making clear that it cannot be understood as sustaining the constitutionality of the law at issue,” Roberts wrote in his dissent. But because five justices allowed the law to go into effect—and by implication, laws in any other state that wishes to emulate Texas—Roe has been neutralized. The only question is whether that decision is temporary, and whether the Court will eventually enact any restraints on the particular legal scheme Texas has pioneered.
“I don’t think those in the reproductive-rights community who are sounding the alarm that [the Court] really effectively overruled Roe in Texas are being hyperbolic,” Murray told me yesterday, prior to the Court’s written opinion. “The fact that the Supreme Court of the United States allows a law that patently contradicts its own statements about the right to an abortion to go into effect is essentially the Court signaling that it does not care about this right and it does not think this right should exist.”
Neutralizing Roe through normal channels would have taken time, and the Supreme Court’s conservatives did not want to wait. Thanks to the shadow docket, they didn’t have to. Five conservative justices invalidated the constitutional right to an abortion simply because they could, because they felt like it, and because they don’t believe anyone can stop them.
Adam Serwer is a staff writer at The Atlantic, where he covers politics.