Abortion case: Can Supreme Court protect rights not in Constitution?

 

Gordon L. Weil

A major new abortion case is coming.  Possibly even more important is the sleeper issue that arrives with it.

The case just brought by Mississippi for Supreme Court consideration next year is about both abortion itself and individual rights.  The abortion issue is widely understood.  Less so, individual rights.

Mississippi Attorney General Lynn Fitch wants the Court to reverse Roe v. Wade, its 1973 decision that blocked states from outlawing abortions.  She thinks the Supreme Court has no business dealing with abortion rights.

“The Constitution does not protect a right to abortion,” she wrote. “The Constitution’s text says nothing about abortion. Nothing in the Constitution’s structure implies a right to abortion or prohibits states from restricting it.”

She questions if the Court can protect a disputed right not mentioned in the Constitution.  The Court’s view has been, as even the late Justice William Rehnquist wrote while opposing Roe v. Wade, that the Constitution “embraces more than the rights found in the Bill of Rights.”

Mississippi says any right can exist only if is “deeply rooted” in history, which it says is not true for abortions.  If that view takes hold, other rights could be questioned. For example, the right of an American also to be a citizen of another country was not deeply rooted when the Court first recognized it in 1952.

The United States was created by uniting sovereign states.  The people turned the British colonies into those states by declaring their independence from King George III.  People expected the new states to protect their liberty not crush it as the British had.

The states decided to transfer some powers to a federal government and drafted the Constitution, which was approved by special conventions of the people in the 13 states.  All new states must accept the Constitution as it is.

The protection of individual rights was a basis for the founding of the U.S. “We the People” created the Constitution to “secure the blessings of liberty” for people in the U.S.  The Declaration of Independence says that government exists to “secure” the rights that, taken together, produce liberty.

Before the Constitution could be adopted, some states said they would only agree to it if they were assured that the new federal government would not violate individual liberty and would protect some rights.  They insisted on the Bill of Rights, protecting certain rights that had been overridden by the British.

The Bill of Rights protects only against actions by government, not those of other people. For example, an employer can limit speech or carrying firearms in the workplace.  Of course, there may be laws that control private actions.

After the Civil War, the Constitution was amended to so that state governments could be required to observe the Bill of Rights just like the federal government. Over the following years, the Court also decided that it could protect personal liberty if government took action against individual rights.

So here’s where we ended up.  People have liberty in America based on rights that belong to them, and no government can take those rights away from them. While certain rights are contained in the Bill of Rights, there are other rights, like the right to privacy, that governments must also protect.

Government may limit individual rights, if people harm the rights of others when they exercise their own rights. The Court decides what limits on rights, if any, the government can apply to the rights that make up individual liberty, whether or not they are in the Bill of Rights.

Famously, freedom of speech is said not to protect shouting “fire” without there being one in a crowded theater. Government may have what the Court calls a “compelling state interest” when the community as a whole may be seriously harmed by the unlimited exercise of individual rights.

Congress has not asserted federal control of abortions, but the Supreme Court has decided in Roe v. Wade that the Constitution’s requirement to protect individual liberty from government prevents states from outright banning abortions.  It has allowed states to impose some limits if there is a compelling state interest.

The Court can and does change its mind from time to time.  That’s what Mississippi wants it to do.  Fitch may believe that because the current majority of the justices seem to have personal reservations about abortion, their views will translate into a reversal of the decision that abortion is a federally protected right under the Constitution.

At the Supreme Court, the issue may be broader than whether abortion is a protected right. The case could determine what it takes to identify an individual right requiring protection, the federal government’s role in protecting it, and whether some decisions on protecting rights should be made by the states. 

Olympics should have been canceled; politics saved it

 

Gordon L. Weil

Kick back, take it easy.  The Olympic Games are under way, giving us a break from political games.

That’s wrong, really wrong. The Olympics are highly political.

It begins with deciding who will host the Games.  Between 2000 and 2022, only one country comes up twice – China.  The International Olympic Committee apparently thought it could encourage more openness in countries as diverse as Nazi Germany in 1936 and Communist China in 2008 by letting them host.  It did not work.

China and Russia want to host, because they get global attention.  They also get home field advantage, using it to top the medals table.  They seem to think that winning increases their stature in the world.  Both won when they hosted, though Russia cheated in 2008 and got caught tampering with its doping tests.

The choice of the Olympic host country is famously subject to vote buying.  The IOC is not a government agency, so there’s no real outside control of the payoffs. Salt Lake City officials distributed “gifts” to make sure their city was chosen for 2002.

The Olympics’ bottom line is the national medal count, a measure of political prestige.  Somehow, keeping track of winners by country reveals more about the supposed merit of nations than about the world’s top athletes.

Politics even influence the choice of events.  Baseball and softball are included this year, only because host country Japan wants them.  The IOC otherwise keeps them out, because the U.S., Japan or Cuba are too likely to win.  They’re real sports with millions of fans.  Meanwhile, from 2024 on, an athlete will be able to win a gold medal in breakdancing.

A majority of the Japanese people and many others around the world reportedly believe the Games should have been canceled even at the last minute.  The stands are empty, and Japan may gain little prestige from being host.

Covid-19 is gaining again across the world, mainly because people have not been vaccinated.  The persistence in continuing with the Olympics gives implicit support to those who still refuse the shots.  Wouldn’t the strongest message about the urgent need to get vaccinated have been sent by canceling the Games?

This year, the insistence on holding the Games sends a message that the organizers put their so-called Olympic Movement ahead of public health and safety.  It may be a matter of IOC’s survival, as independent world championships have taken on increasing appeal.

The politics of prizes extends beyond sports.  The Nobel Prizes, widely regarded as the top award in the world for accomplishment in several fields, are also inevitably political.

For the sciences, the awards are given by members of a small in-group to other members of the same group.  Only scientists in a few countries have a serious chance of winning.  And it helps to be a man.  If a possible winner dies during the year, they’re out.  Giving them the award would be a drag on the ceremonies.

The Nobel Peace Prize is awarded by a small committee of Norwegians and their selections reveal their biases.  In 2009, they picked recently elected President Obama less for what he had done than for who he was.

Maine’s George Mitchell, the peacemaker in Northern Ireland, was ignored.  The winners were the leaders of the two sides that he had successfully brought together, ignoring the fact that their followers had recently been blowing up one another.

The message is not that prizes don’t mean anything.  If their existence encourages scientists or swimmers to try harder, they produce a benefit.  If they draw popular attention to other countries and their cultures, they can broaden understanding.

Athletes and fans are props.  This year, the Games go on, though some of the best athletes may have been forced to stay home after being exposed to Covid-19. We are supposed to believe the results mean more than they actually do.

Winning is often not the idealized, objective result of fair competition.  Politics do not stop where prize competitions begin. At their worst, the Olympics will reward China next year with the world’s attention and money while it kills democracy in Hong Kong, threatens its neighbors and crushes an ethnic minority.

It may be fine to sit back and enjoy the Olympics.  It’s a show for our entertainment.  But it’s also part of the real world of politics in which we live every day.

 

Vax rate boosts Democrats; but GOP voter suppression looms

 

Gordon L. Weil

Vaccinations can tell us something about voting.

The key finding is the better a state has been vaccinated, the more likely it is to vote for the Democratic presidential candidate.

Digging a little deeper into the data may even show which states are likely to influence, if not downright determine, the outcome of the next presidential election. This could make political pundits look good.

President Joe Biden has made fighting the coronavirus the centerpiece of his first few months in office.  While Donald Trump was the big-time spender who successfully poured public funding into vaccine development, Biden has led the largely successful effort to get shots into arms.

Biden had wanted 70 percent of the eligible population to get at least one shot by July 4, but came up short.  If people who outright refused shots are added to the takers, Biden probably contacted his target.

Somewhat overlooked in his near miss was the fact that 20 states and D.C. got more than 50 percent of their population fully vaccinated.  That group of states turns out to include the Democrats’ presidential election core.   

To pick the most loyal Democratic states, we can look at how states voted in the last three presidential elections – 2012 Obama (D) beats Romney (R),  2016 Trump (R) beats H. Clinton (D), and 2020 Biden (D) beats Trump (R).

On July 4, 17 states and D.C. had more of than half of their populations fully vaccinated plus had cast their electoral vote each time for the Democratic candidate. Maine added at least three of its four votes each time. This group accounts for 206 of the 270 electoral votes needed to win a presidential election.

Its impossible to know the party affiliation of the vaccinated in these states.  But these are states where many people clearly favor public health over worries that government is too big.  They seem to accept the advice of Biden and the CDC to get vaccinated.

Not one state in which a majority of the eligible population has been fully vaccinated has voted for the Republican presidential candidate more than once in the past three elections.  In all loyal GOP states, the vaccination rate is below 50 percent.

Given the partisan/vaccination split, it is difficult to dismiss a relationship between the dominant political opinion in each state and getting or declining a free, government-sponsored shot.

Beyond the core Democratic group, two additional states – Illinois and Nevada missed the 50 percent rate, but have voted for the Democrat in each of the past three elections.  Based on their records, they are likely to continue to vote that way, adding 25 electoral votes.

Three more states, which have a vaccination rate over 50 percent, have voted for the Democrats, but with exceptions. Pennsylvania and Wisconsin voted Republican in 2016 and Maine has twice denied the Democrat one vote.  If the Democrats picked up these 30 electoral votes, their candidate would still be nine votes short.

These votes would have to come from swing states that had less than a 50 percent vax rate and voted for Biden. They are Arizona (11), Georgia (16), and Michigan (15), any one of which could put the Democrat in the White House.  

Here’s some math.  The Democrats’ 2024 winning formula: 50% vax and loyal/mostly loyal Dems (236) + loyal Dems but less than 50% vax (25) + one of three swing states. This “vax-vote index” suggests the election will be decided by Arizona, Georgia or Michigan.

But Arizona and Georgia are among the GOP-controlled states that have passed voter suppression laws since last year’s election. Given Biden’s narrow win in these states, these actions could tip the balance back to the Republicans.  In contrast, Michigan was close to 50 percent vaccinated and has a Democratic voting tradition.

While the vax-vote index might also influence Senate races, which are statewide like most presidential voting, it would be less influential in House district races.  That’s because of gerrymandering, which has allowed GOP state legislatures to construct districts favorable to their party’s candidates.

GOP efforts at voter suppression supposedly meant to improve ballot security and House redistricting are openly intended to limit Democratic support.  If it gains control of even one house of Congress after 2022, the GOP could restrain Biden. 

Meanwhile, Congress is struggling to pass a bill that would overrule some of the GOP state voter suppression moves. In an almost evenly balanced electorate, the success of either party could settle election outcomes for at least the next few years.

As for getting vaccinated, that’s really a matter of personal choice, not major league politics.  For personal and public health, vaccination is a well-proven, good idea.

American political system threatened by attacks on courts

 

Gordon L. Weil

“Shared values.”  We hear them mentioned by leaders trying to find common ground despite deep political divisions.  It’s a nice thought, but it lacks an explanation of just what those values are.

Of course, everybody reveres the Constitution, though we cannot agree on what many parts of it mean.  The most important message may be that our system of government is valuable, and we should make saving it our highest priority, even if that means sometimes we will be disappointed or even angry with the particular results.

For example, take the supposedly neutral courts, where judges can become the accused. In rendering their rulings, they often come under attack. Three recent court decisions, unpopular with many people, illustrate the ongoing struggle between respecting the system while disliking a decision.

Rudy Giuliani, the former New York City mayor and now former President Trump’s personal lawyer, took the lead in promoting the story that there had been massive fraud in the 2020 election that, he claimed, Trump had won.

At the White House rally before the January 6 assault on the Capitol, he urged the crowd on and said, “I’m willing to stake my reputation” on there having been criminal vote theft. In the end, he seems to have lost his gamble.

A New York State appeals court suspended his right to practice law, pending a final decision to disbar him.  The court ruled that he “communicated demonstrably false and misleading statements to courts, lawmakers and the public at large” without any proof of his claims of fraud or ballot tampering.

For the first time, a Trump leader was held responsible for the false claim that Trump had been cheated of an election victory. Defenders promptly appeared.  Trump backed Giuliani and attacked New York and its courts.  A former Harvard Law School professor defended him on the grounds that all lawyers exaggerate. 

In Pennsylvania, the Supreme Court freed Bill Cosby from prison after he had been convicted of sexually assaulting a woman.  The conviction was based almost entirely on his admission of guilt, made only after the district attorney said he lacked sufficient proof and promised Cosby would not be charged.

The DA wanted to strip Cosby of any reason to invoke his constitutional right not to testify against himself.  That way he could be honest, without the risk of going to prison, in the case brought by the woman who sued him.  He admitted his guilt in that case and paid her $3.38 million.

A later DA used his admission against him and had him convicted and sent to prison.  The state Supreme Court said the DA, an official representative of Pennsylvania, could not renege and effectively violate Cosby’s Fifth Amendment right under the Constitution.

Understandably, there was a strong reaction against the court decision. After all, Cosby was guilty. The Court had to withstand tough criticism for making an unpopular decision when it protected a constitutional right.

The U.S. Supreme Court had to face withering criticism for its decision that two changes to Arizona election law were not illegal under the Voting Rights Act.  The Court had voted along conservative-liberal lines in making its 6-3 decision.

Arizona law had been changed to ban people from casting ballots at an incorrect precinct on Election Day and to prevent third parties from collecting voters’ ballots, unless they were family or household members, caregivers or postal workers. 

Those were the issues, and the Court found these changes were non-discriminatory. The dissenters believed that the changes would more heavily affect minority voters

The Court noted that Arizona “makes it very easy to vote.”  Voters can vote by mail or in person up to 27 days before the election and on Election Day in their precinct or at a county voting center.

The U.S. is now experiencing efforts in 18 states to limit voting access, while, with less notice, 28 other states have increased it. The war rages.

A New York Times editorial headlined: “The Supreme Court Abandons Voting Rights.” It demonized the majority justices, saying without support that they “

have given a free pass to state legislatures to discriminate.”

Obviously, the purpose of a court is to determine the law and, also obviously, somebody will dislike any judgment.  But opponents like the Times ignored the majority’s also citing the good Arizona access provisions. If the decision was political, it was mainly so because the opponents said it was.

In all three of these recent cases, courts have made decisions they knew would draw sharp criticism from those who disliked the result.

Clearly, people can disagree with court decisions.  But to attack the courts themselves for those decisions undermines the system of government.  Protecting our system may be more important than any single court case.

Biden, Mills want to hold political center without losing progressives; face tough 2022 elctions

Gordon L. Weil

It may not be obvious to most voters, but we are in the midst of the 2022 political campaign.

We are learning about the politicians’ view of the voters and probably also the voters’ view of themselves.  We may be more conservative than having a Democratic president and governor might imply.

Of course, elections have consequences.  President Joe Biden gets to pick his own federal judges and to reverse by the stroke of a pen some of his predecessor’s orders.  Governor Janet Mills gets solo power to set the terms of Maine’s Covid-19 emergency thanks to Democratic control of the Legislature.

But the election was not a blank check for either of them.  Both have kept an eye on next year’s voting, when Biden would like to score almost unprecedented Democratic congressional mid-term gains and Mills would like to be reelected.

Both face a divided electorate with about half of the voters wary of government and taxes, including many who are right wing on social issues.  Both have to find ways to produce results that can satisfy some center-right voters next year without alienating the growing progressive wing of their party.

Biden knows that Congress could be taken over by the GOP next year.  So he wants key elements of his program passed this year.  While he might be able to ram some of it through Congress with only Democratic votes, that could cost him next year.

That’s why he touts compromise and has been willing to see his infrastructure bill pared down by a bipartisan congressional group.  Even with the deal, he might get a bigger result than Donald Trump had unsuccessfully proposed and it would be all federally financed.

The Republicans’ problem may be Biden’s willingness to compromise and cut deals with conservatives.  GOP Minority Leader Mitch McConnell’s sole focus seems to be defeating Democrats and retaking control.  Compromise is not a tasty dish for him.

The proposed infrastructure deal reveals the rift among Republicans.  A few are willing to work on compromises with Biden.  They are similar to traditional Republicans, sometimes more practical than ideological. 

If the GOP deal makers, including Sen. Susan Collins, can find 10 GOP senators to support the compromise and prevent a filibuster, the Republicans launch the start of an open struggle to see if the party can free itself from Trumpism.  That means there’s a lot more at stake in the infrastructure bill than roads and bridges.

On his side, Biden’s compromises run little risk of creating a Democratic split. The progressives won’t like some of his moves, but they surely do not want to see Congress slip back under Republican control.  If that happened next year, they would lose any possible influence on legislation.

Biden is probably counting on their willingness to go along with him in the hope Democrats will pick up congressional seats rather than losing them as would be normal in a mid-term election.  The progressives would then stand a chance of gaining greater influence in the second two years of his term.

The big difference between Biden’s situation and Mills’ is that he is not on the ballot next year and she is.

Mills is undoubtedly more conservative than some legislative Democrats.  In what the Bangor Daily News called her “veto spree,” it reported: "The governor has vetoed seven bills from this legislative session, including several that were priorities for progressive Democrats in the Legislature."

Unlike Biden, the governor does not have the benefit of leaving the progressives nowhere else to go.  She is denied the benefit of ranked choice voting, which could have helped her next year.

RCV came about in Maine after Republican Paul LePage won thanks to a split vote between two Democrats, when one ran as an independent.  But the Maine Constitution prevents RCV, available now in federal elections and party primaries, from being used in a general election for governor.

At a time when Democrats support a referendum on replacing CMP with a consumer-owned utility, Mills is opposed, so she won’t rally full Democratic support.  The fallback would be a petition-driven referendum on the ballot at the same time as her reelection.  The pro-referendum organization already exists.

She faces defections by Democrats or, even worse for her, a Democrat-turned-independent who favors the CMP takeover and splits her vote.  LePage could be the GOP candidate who runs to again take advantage of a Democratic divide.

Both Biden and Mills show the risks faced by Democrats pushed by progressives but facing a significant conservative element in the electorate.  They are now engaged in trying to find their way.

What they do in the next few days and weeks may determine what happens in November 2022.