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ANALYSIS

Overturning Roe Is Just the Beginning

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Analysis 

The Supreme Court majority built by the hard-right legal movement with help from Republican presidents and senators, and turbocharged by three Trump-McConnell justices, is apparently preparing to overturn Roe v. Wade, eliminating a constitutional right to abortion and potentially eviscerating the constitutional underpinning of rulings protecting privacy and the rights of LGBTQ Americans.

While overturning Roe has been an intense focus and will be a massive victory for the religious right and right-wing legal movement, reversing Roe is just one part of a much broader agenda that has been promoted by the right-wing Federalist Society and allied political operatives who have worked with it to pack the federal courts. Trump basically outsourced his judicial picks to the group’s activists. Now, with the Trump justices cementing a hard-right majority on the Court, Federalist Society lawyers and judges and their political allies can move even more aggressively to reverse a century’s worth of precedents, pulling the constitutional rug out from under the New Deal and Great Society anti-poverty programs like Medicare and Social Security; further gutting voting rights in favor of states’ rights; weakening the separation of church and state; and undermining the federal government’s ability to regulate corporations and protect workers and communities.

Seeking a National Abortion Ban 

A leaked draft of a Supreme Court decision written by Justice Samuel Alito dispenses with any notions of nuance in favor of a complete repudiation and reversal of Roe. If the court ultimately rules along the lines set out in Alito’s draft, abortion would be banned or severely restricted in more than half the states immediately or in short order.

Some states already have bans in place. Some have passed “trigger” laws, most of which would take effect at the moment of Roe’s demise. Others, including Michigan and Wisconsin, still have old laws on the books that will come back into force once Alito and his colleagues have removed the constitutional barrier to their enforcement. While some anti-choice groups have talked about preparing for a “50-state battle,” they have already won many of those battles.

Eliminating Roe would intensify the already existing disparities in access to abortion between states. Many people seeking that care will be forced to travel elsewhere—a fundamental freedom that is also being targeted by anti-abortion legislators.

And for all the federalism-embracing, give-it-back-to-the-states rhetoric, expect anti-choice activists to quickly demand a national ban on abortion. The state-by-state approach pursued by anti-choice activists was a strategic decision to bypass Congress, chip away at Roe, and build momentum toward a day when the Court was in their ideological grasp. But a nationwide ban is their goal.

This is not speculation. The amicus brief submitted by Princeton University professor Robert P. George, a brief cited in Alito’s draft, is clear. George argues that “prenatal persons” and “unborn children” are persons under the 14th Amendment from the moment of conception, and therefore that states should be required to treat abortion as homicide. He argues that Congress would have to enforce such a ruling “if States failed in their duties.” George’s brief mirrors the arguments of the hard-core “personhood” wing of the anti-choice movement, which has successfully pushed anti-choice legislators away from even granting exceptions to abortion bans in cases of rape and incest. The right to contraception is at risk, too, as anti-abortion activists are hard at work to make the public believe that some widely used forms of contraception are the equivalent of abortion.

Eliminating Equality for LGBTQ Americans 

Alito’s draft includes language seemingly meant to suggest that if adopted by the majority, his ruling would not put LGBTQ equality at risk. “Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” Referring to the Court’s rulings in Lawrence v. Texas, which overturned state laws criminalizing homosexual conduct, and Obergefell v. Hodges, which recognized marriage equality, Alito’s draft says that the Court ruling against a right to abortion “does not undermine them in any way,” in part because those decisions do not involve “the critical moral question posed by abortion.”

But that reads as high-level gaslighting.

In a 2020 comment on the court’s decision not to hear a case brought by a marriage-resisting county court clerk, Alito and Clarence Thomas disparaged Obergefell, saying that a right to same-sex marriage cannot be found in the Constitution. And many anti-choice activists have portrayed opposition to marriage equality as inhabiting the same legal and moral plane as opposition to abortion.

A brief submitted by Texas Right to Life was filed by Jonathan Mitchell, the author of the Texas abortion ban that the Supreme Court has allowed to take effect. The brief sneers at “court-invented rights to homosexual behavior and same-sex marriage,” calling the Lawrence and Obergefell decisions “as lawless as Roe.”

Robert George, who argues that states must treat abortion as homicide, is also intensely opposed to legal equality for LGBTQ people. A founder of the National Organization for Marriage, George co-authored The Manhattan Declaration, a 2009 manifesto whose signers frame opposition to abortion and marriage equality as similarly non-negotiable. The manifesto concludes with this:

Because we honor justice and the common good, we will not comply with any edict that purports to compel our institutions to participate in abortions, embryo-destructive research, assisted suicide and euthanasia, or any other anti-life act; nor will we bend to any rule purporting to force us to bless immoral sexual partnerships, treat them as marriages or the equivalent, or refrain from proclaiming the truth, as we know it, about morality and immorality and marriage and the family.

Anti-LGBTQ activist Ryan Anderson, a Robert George protégé, has urged anti-marriage equality activists to follow his road map to overturning Obergefell, with the religious right’s anti-Roe campaign as a guide. The first step in his plan was to denounce the marriage equality decision as illegitimate, which George and others have done relentlessly. Other anti-LGBTQ leaders, like Family Research Council President Tony Perkins and National Organization for Marriage President Brian Brown, have also expressed hope that success in eradicating a right to abortion points the way toward doing the same for marriage equality.

And it is not just about marriage. Many religious-right legal and political advocacy groups defended state laws that made gay people de facto criminals and opposed the Lawrence decision. You can hear that in the rhetoric of anti-LGBTQ activists who express a desire to return to a time when gay people were disfavored in law and demonized in popular culture, and already, they are working to return us to that time with a wave of anti-LGBTQ rhetoric and legislation smearing LGBTQ people and their allies as “groomers” and sexual predators.

Indeed, anti-choice activist Janet Porter recently said she hopes to apply the nefarious strategy of Texas’s abortion ban, which allows anyone to sue anyone who helps a person obtain an abortion, to LGBTQ issues in schools, making teachers, librarians, and school board members vulnerable to lawsuits for “pushing this garbage on our children.”

‘Rome Wasn’t Burned in a Day’: Return to a States’ Rights Constitution 

In the name of federalism, the Supreme Court’s conservative and far-right justices have repeatedly weakened the federal Voting Rights Act, giving a green light to state legislators to pass wave after wave of voting restrictions. That is far from the only way that the right-wing legal movement hopes Trump’s justices can continue to “fundamentally change the country.”

In 2017, Republican congressional and White House aides told a conference of religious-right activists that getting a second Supreme Court justice would allow Trump to create “epic, titanic” shifts and undo New Deal and Great Society programs created when Democrats had wide congressional majorities. Trump also filled lower federal courts with ideologically minded judges who give hard-right justices like Alito and Thomas the “troops” to carry out their judicial counterrevolution.

Dismantling much of what the federal government does to address poverty and access to education and health care has been a long-term project, a reality reflected in a bit of Federalist Society humor: “Rome wasn’t burned in a day.” But right-wing funders knew their long-term investments could bring huge returns.

The confirmation of Trump’s third Supreme Court pick, Justice Amy Coney Barrett—who some anti-choice activists believe was anointed by God to help the Supreme Court overturn Roe—could also strengthen the religious right’s already successful push to weaponize and redefine religious liberty in ways that weaken the Establishment Clause, which prohibits the establishment of religion by Congress, and the separation between church and state.

The net result is all too clear. As tragic as it is, the reversal of Roe is just one step in the far-right campaign to rewrite the Constitution and gut fundamental rights, harming millions of Americans in the process.

 

This article was originally published by Right Wing Watch and is republished here by permission.

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ANALYSIS

New WSJ Poll Is Devastating for DeSantis and His ‘Anti-Woke’ Policies

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3 days ago

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March 27, 2023

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“Florida is where woke goes to die,” according to the Sunshine State’s governor, Republican Ron DeSantis, who has based much of his expected 2024 presidential campaign on being “anti-woke.”

But a new poll from Rupert Murdoch’s Wall Street Journal is devastating to many of the policies being promoted and enacted by Governor DeSantis in his “free state of Florida,” calling into question how he and other Republicans who embrace his ideas will fare on the national stage.

“Patriotism, religious faith, having children and other priorities that helped define the national character for generations are receding in importance to Americans,” warns the WSJ, with some on social media pointing to a graphic that purports to capture how much America has changed in the past 25 years.

READ MORE: Trump Team’s Efforts to Rein Him ‘Wilted’ in Waco as He Invoked ‘Retribution and Violence’: Report

The importance of issues of patriotism, religion, having children, and community involvement have dropped dramatically across America. The one that has increased? Money.

One Democratic strategist calls it “eye-popping.”

Money is also the only issue on which Democrats and Republicans both agree.

But the real siren for Republicans comes in answers to so-called “culture war” questions.

The gap between Democrats and Republicans, expectedly, is huge, but DeSantis – should he launch a presidential run – will confront conservative and independent voters (not to mention, of course, Democrats) who aren’t as keen on, say, banning books, as he might like.

Asked, “Which of these concerns you more about schools today?,” a whopping 61% chose “some schools may ban books and censor topics that are educationally important.” Just 36% opted for “some schools may teach books and topics that some students or their parents feel are inappropriate or offensive.”

And more than half the country (56%) say they have some or a great deal of confidence in public schools. Just one-third (33%) said very little or none.

READ MORE: ‘Pits Parents Against Parents’: House Republicans Pass Anti-LGBTQ Florida-Style K-12 ‘Parents’ Bill of Rights’

DeSantis’ attempts to radically reshape the concept of public education in Florida made another dramatic move last week, when the Republican-majority legislature passed a bill the expands the school voucher program to every student. It could decimate enrollment in public schools, which would also reduce the amount of federal funding public schools in the Sunshine State get. Expected to cost billions, it could also lead to expansions of private and faith-based schools.

Monday morning, surrounded by school children, DeSantis signed it into law.

And yet nationally, according to the WSJ poll, a plurality of Americans oppose school vouchers.

“Do you favor, oppose, or neither favor nor oppose states giving parents tax-funded vouchers they can use to help pay for tuition for their children to attend private or religious schools of their choice instead of public schools?”

37% oppose the vouchers.
34% support them.

Democratic strategist and former Hillary Clinton campaign national spokesperson Josh Schwerin lists a “few findings from the new WSJ poll that should scare Republicans relying on ‘woke’ attacks”: “1) Tolerance is as important as money 2) Book banning is far worse than offensive content 3) Majorities think society has been about right or not gone far enough on range of DEI issues.”

For those who look at Trump rallies, watch right-wing news, or listen to GOP politicians or influencers, the idea that another “red wave” is coming next year may seem real, but even the right-wing Wall Street Journal found that a plurality of voters (44%) identify as Democrats – and just 38% identify as Republicans. 18% call themselves independents without leaning one way or another.

Nearly half the country (47%) identifies as moderate.

One issue from the poll DeSantis and the GOP do seem to have support on is diminishing the rights of transgender Americans, who are under attack every day.

Despite increased anti-trans hate crimes, despite the 430 anti-LGBTQ bills filed this year alone (according to the ACLU,) a plurality of Americans (43%) say society has “gone too far” in accepting transgender people. Just one-third say society hasn’t gone far enough.

But on other issues of equality, as Schwerin mentioned, nearly half the country (48%) say society has not gone far enough in promoting equality between men and women. And pluralities also say society has not gone far enough in accepting people who are gay, lesbian, or bisexual (37%), and businesses taking steps to promote racial and ethnic diversity (39%).

There’s another statistic that also flies directly in the face of DeSantis and his “where woke goes to die” motto.

Two-thirds of the country say society has either not gone far enough has been “about right” on “Schools and universities taking steps to promote racial and ethnic diversity.”

Just three in ten Americans (30%) say society has gone too far.

See the video and graphics above or at this link.

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ANALYSIS

‘A BFD’: Legal Experts Say Judge Ordering Ex-President’s Attorney to Testify Means ‘Trump Probably Committed Crimes’

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2 weeks ago

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March 17, 2023

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A federal judge Friday afternoon ordered an attorney for Donald Trump to testify in the U.S. Dept. of Justice’s special counsel’s investigation into the ex-president’s unlawful retention and refusal to return hundreds of documents with classified and top secret markings along with thousands of other items removed from the White House and sent to Mar-a-Lago.

Classifying the judge’s ruling as “monumental,” CNN reports U.S. District Judge Beryl Howell ordered top Trump defense attorney Evan Corcoran to provide additional testimony, and “said in an order under seal that Justice Department prosecutors have met the threshold for the crime-fraud exception for Corcoran.”

Just one day ago ABC News reported the special counsel, Jack Smith, had been pushing for Judge Howell to order Corcoran to testify about a call between Trump and Corcoran.

“The alleged call would have been on the same day that investigators subpoenaed the Trump Organization for surveillance footage from Trump’s Mar-a-Lago resort as the government grew suspicious that Trump continued to hold onto classified materials even after one of his attorneys asserted in a sworn statement that he had complied with a subpoena requesting any remaining documents in his possession.”

READ MORE: Local, State, Federal Law Enforcement Preparing for Possible Trump Indictment ‘As Early as Next Week’: Report

The crime-fraud exception is the critical marker, one that legal experts have jumped on in commenting about Judge Howell’s order.

Laurence Tribe, the noted Harvard law professor (retired) who literally wrote the book on the U.S. Constitution, enthusiastically weighed in.

“In finding that Evan Corcoran’s communications with Trump about the Mar-a-Lago documents fell within the crime/fraud exception, the District Court has held that Trump probably committed crimes with respect to those top secret documents,” Tribe explained.

“That’s a BFD!” he exclaimed.

Former federal prosecutor Renato Mariotti observed, “This is a remarkable ruling.”

“Judge Howell concluded that communications with Trump’s attorney are subject to the crime-fraud exception. Prosecutors must have significant evidence,” he said. “Judges are typically reluctant to pierce attorney-client privilege.”

Mondaire Jones, the former Democratic U.S. Congressman, an attorney, and a CNN political commentator wrote, “I don’t think people understand how rare it is to pierce the attorney-client privilege using the crime-fraud exception. This is serious stuff.”

Ryan Goodman, NYU and (former) Harvard professor of law, agrees with CNN’s “monumental” classification.

He explains, “Corcoran likely has direct evidence relevant to both core crimes under investigation: Willful retention of the documents [and] Obstruction,” he tweeted. “He apparently prepared false certification for DOJ. He led DOJ to storage room but refused access to boxes.”

READ MORE: International Criminal Court Issues War Crimes Arrest Warrant for Putin as Trump, DeSantis Accused of ‘Support’ for Russian President

Goodman goes on, pointing to a September 2022 New York Times article mentioning former Trump attorney Eric Herschmann:

“Worth recalling this report in which Eric Herschmann, pushing back against Corcoran in an email, quoted words from federal witness tampering statute.”

“Very serious,” concludes attorney and CBS News legal analyst Rikki Klieman.

Watch CNN’s report below and see tweets above or at this link.

 

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ANALYSIS

Legal Experts Say Pence Subpoena May Signal Special Counsel ‘About Ready to Make a Decision’ on Indicting Trump

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2 months ago

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February 9, 2023

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The “explosive” news that the Dept. of Justice’s independent special counsel Jack Smith has issued a subpoena to former Vice President Mike Pence could be an indication he is nearing making a decision on whether or not to indict and prosecute ex-president Donald Trump.

Smith was appointed back in November by Attorney General Merrick Garland in response to Trump announcing he was officially running for president, to avoid any possible appearance of bias.

Professor of law and former U.S. Attorney Joyce Vance explains that “Pence has always been the essential witness when it comes to establishing whether or not Trump’s involvement in the pressure campaign for the VP to interfere with the election result was criminal. Smith has to get his testimony before he can make a prosecutive decision.”

READ MORE: Santos Told Prosecutors He Worked for the SEC After Being Charged With Theft in 2017 Over $15,125 in Checks for ‘Puppies’: Report

“But,” she adds via Twitter, “pence does feel like a late in the game witness. Someone you want to talk to you after you have all of the other testimony, and when you’re just about ready to make a decision.”

Former federal prosecutor Renato Mariotti on MSNBC called the news Pence has been subpoenaed “explosive.”

“I expect Pence is one of the *last* witnesses Smith would call if he was building a case around the electoral vote certification,” Mariotti added via Twitter. “For that reason, this suggests that Smith’s January 6th investigation is far along. It also suggests that he is pursuing that aspect of his investigation aggressively—he isn’t focusing largely on the Mar-a-Lago documents matter and putting January 6th on the back burner.”

READ MORE: Watch: House Democrat Says Santos Getting Access to ‘America’s Secrets’ Was ‘Final Straw’ for Filing Expulsion Resolution

Former prosecutor for the New York Attorney General’s Office, Tristan Snell, says, “why the subpoena? For cover. Witnesses often ASK to be subpoenaed, so they can say they were forced to comply.”

Pence is expected to announce a presidential run, and being perceived as complying with the investigation into Trump could be damaging for Pence with the ex-president’s base.

Snell appears to agree with Vance, stating: “Major step. The investigation of Trump’s January 6 Conspiracy is now entering its final phase.”

“If Smith and DOJ then have testimony and documents from Mark Meadows and Mike Pence — two of the people who were the closest to the center of the events from November 3, 2020 to January 6, 2021 — then the stage is set for subpoenaning Trump, or just indicting him,” Snell adds.

“This is pretty much the last step before you approach Trump,” former Deputy Assistant Director of the FBI’s Counterintelligence Division, Peter Strzok, said on MSNBC.

Image via Shutterstock

 

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