Thoughts on this Roe v Wade Kerfuffle
Welcome to the Shit
There’s never a bigger Shiri’s Scissor in United States politics than abortion law, unless that scissor also includes the Supreme Court apparatus apparently intentionally leaking their own draft ruling on abortion in order to plant court proceedings directly into the center of the culture war itself. I didn’t think I’d ever see such a magnificent source of Handwaving Freakoutery, but if HWFO is art, this is the DaVinci of freak out material. Let’s hit some highlights.
Midterms
The Blues were almost assuredly going to lose all of Congress in the fall, without something miraculous happening, and they may have just gotten their miracle. When the betting public puts real money on election outcomes, they go to PredictIt, and this is the balance of power snapshot as of 9:00 AM Eastern Time, May Third, 2022:
Look at the trade volume. Republicans controlling both the house and senate was trading steadily at around 75 cents. On the back of an incredible number of trades, this line moved five percent in about two hours and the west coast isn’t even awake yet. Red team strategists must be pulling their hair out. They had an easy layup in the fall, on the backs of one of the most inept presidents in the history of the country, an awful economy that’s set to collapse, a proxy war, the blues aligning behind a movement to push extreme gender ideology into elementary schools, and the whole country being done with Covid. Roe V Wade being legitimately threatened or overturned is about the only possible thing that could bail the Democrats out, which makes some people think the whole thing top to bottom might be a fake.
I reviewed it and it doesn’t seem fake to me. Although early drafts like this are always subject to extensive revisions and horse trading for votes, the fact that this ruling is so robust and well cited says to me that it’s the real deal. Watch that PredictIt line move today.
The Leak
It’s possible a justice leaked this on purpose to move the discussion into the public sphere. Sotomayor would be the likely guess. It’s also possible a justice leaked it to manipulate the needle for the upcoming midterms, lighting a fire under the blue base that could maybe, possibly bring it back up to having a remote shot in November. I think those possibilities are very unlikely. It’s much more likely that a political crusading clerk leaked the opinion, and if that’s the case it stands to reason the leaker is one of the new staff instead of one of the existing staff. Someone on Barrett, Kavanaugh, or Gorsuch’s watch going rogue. I think when the Supreme Court makes any public statement about it they’re going to be more concerned with the leak than with the social ramifications of the potential decision, or the politics of it, and I think the justices are going to be united on this approach, regardless of their individual political bent.
The Decision
Roe v Wade was always the screaming beacon of legislating from the bench. If federal lawmakers actually wanted to pass a federal law about abortion, they could have done so at any point in the last half century, but they’re all giant pansies who would rather not take the blame or put their name on the line for anything like that, so both sides happily used abortion as a political football and blamed the judges.
Judges hate that crap. Even the liberal ones. The confirmation hearings have become a ridiculous farce that all flows through this one piece of sketchy judicial activism, and the Supreme Court punting the issue back to the legislature where it belongs is long overdue, for no other reason than just to make the confirmation hearings less of a circus. The insanity that transpired during the Kavanaugh confirmation alone is reason to throw abortion back to the legislature.
This decision, should it matriculate, will revert abortion law back to the states. Here’s what that looks like. Certain states still have abortion bans on the books that are not enforced because of Roe. As I understand it, if Roe is overturned, then these abortion bans would go immediately back into effect. Here’s a map.
Effectively, anyone living in one of those states would either have to travel to a different state to get an abortion or hook up with a telemed doctor to get Mifepristone pills and do it at home where nobody’s watching. Fear of the return of coat hanger alleyway abortion deaths is overblown, mostly because the abortion technology now far exceeds that of the 1960s.
When I attended Quaker meeting in the 1980s, I was made aware that some of them had set up an “underground railroad” to get women to abortion legal states if Roe was ever overturned. I don’t know if they’re still doing that, but I feel confident something similar would erupt basically overnight within modern social media circles. The net change of total number of abortions that transpire in the United States would probably be low, but getting one in one of the red states above could be a lot more of a pain in the butt. Somewhat akin to owning a proper AR-15 in California.
Losing Their Shit
Three weeks ago, the Egregore’s “Current Thing” pointer was still on Ukraine, but it circled the wagons to attack Elon Musk when it realized it might lose some of its algorithmic weaponry post take-over. Then it had a sprinkle of Johnny Depp confusion before this thing hit. This “Current Thing” should last at least two weeks until it’s supplanted by something else, maybe a month or more, and will probably fade when the next Covid-19 wave hits in the late summer. Then things get hot again whenever the ruling is issued, or the midterms, or both, especially if the timing coincides.
As someone who literally doesn’t care who wins, I can roll the worst case out so everyone can see it. The absolute worst case is for the current congress to do what Bernie wants it to do:
They should have done this years or decades ago, but were happy to punt to SCOTUS, and now they’re in a bind. If they ram abortion legislation through now, and if they burn the filibuster to do it, and if the Reds take full control in November, then (1) that legislation will only last a few months, (2) the side who incited and encouraged a year of violence in 2020 is going to have even more motivation to burn buildings, and (3) the boogaloo meter slides right back up to where it was at the height of the 2020 Floyd riots.
And if we end up in a scenario where Antifa is wantonly burning buildings without police suppression like we did in 2020, and individual citizens are forced to defend their property with firearms like we saw in Kenosha, and that transpires on a wider scale than before, then the true nastiness hits because the Egregore will pivot to gun control as a way to suppress citizens ability to protect themselves from political violence, and the country cooks off.
How likely is that chain of events to transpire exactly as depicted? Not very, I don’t think, but it’s certainly within the realm of possibility. Let’s call it 10%. I’d love for PredictIt to put up a market on it.
In sum, don’t expect ammo prices to go down any time soon.
Clerkships are a year long, so every justice has new clerks.
"It’s much more likely that a political crusading clerk leaked the opinion, and if that’s the case it stands to reason the leaker is one of the new staff instead of one of the existing staff. Someone on Barrett, Kavanaugh, or Gorsuch’s watch going rogue."
If you're suggesting this is "likely" because the new justices have the newest clerks, I think that's misguided. Each Supreme Court Justice has four clerks (sometimes less) and, in general, they refresh annually. So, with a few exceptions, there are 36 new clerks each terms. You can get a glimpse of what that looks like here: https://en.wikipedia.org/wiki/Lists_of_law_clerks_of_the_Supreme_Court_of_the_United_States
If you were suggesting some other reason why these newer justices have leaky clerks, I did not follow the train of thought.