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Much has rightly been made of the Texas anti-abortion laws granting bounties to anti-choicevigilantesand of the Supreme Court'sabuseof its shadow docket to green-light the law in defiance ofRoe v. Wade.

But in addition to the harms to womens rights in this law, the courts Sept. 1 decision inWhole Womens Health v. Jacksonreveals something dangerous to lawful society writ large: the 5-4 ultra-partisan, conservative majority has, in its haste to gutRoe, eviscerated the rule of law it is supposed to stand for and diminished the courtsown authority.

The decision adds fuel to the already strong arguments for reforming the Supreme Court and urgency to the work of President BidenJoe BidenAt least 1,000 US schools have closed due to Covid since late July: report Democratic donors hesitant on wading into Florida midterm fights Biden granddaughter Naomi engaged MOREs Commission on the Supreme Court.

It concedes, perhaps even celebrates, the fact that states, and individuals, can engage in legally questionable action and evade judicial scrutiny.By allowing Texas to floutRoesclear meaning, the court undermines an ordered society and may be paving the way for authoritarian rule.

The decision is a radical departure from the institutional history of the Supreme Court, which previously has been marked by efforts toassert and preserve the courts exclusive prerogativeto say what the law is. That was the crux of Chief Justice John Marshalls famous 1803 opinion inMarbury vs. Madison, the case that established the Supreme Court as the ultimate arbiter of the Constitutions meaning.

Over time, the court has jealously guarded its authority against those who have challenged it. It is the courts right to have the last word onconstitutional questions that has secured for it a central place in our system of government. As Supreme Court Justice Robert Jackson onceexplained, We are not final because we are infallible. We are infallible only because we are final.

And the court has time and again insisted that everyoneabide by its rulingsno matter how much they might disagree with them.

This was vividly demonstrated in the civil rights era during the middle of the last century when southern states refused to respect the courts constitutional decisions and when demonstrators took to the streets to promote racial integration in defiance of court orders. The court responded by insistingto both sides: obey the laws first, and only then can you challenge our views of what the Constitution means.

When Dr. Martin Luther King and other civil rights activists ignored an Alabama state court injunction in the belief that the order to desist from a planned protest was unconstitutional, the Supreme Court upheld their arrest and conviction.

In his majority opinion in the 1967 case ofWalker v. Birmingham, Supreme Court Justice Potter Stewart recognized the substantial constitutional questions that a challenge to that injunction would have raised. But he firmly rejected the marchers contention that they were free to ignore a law they believed to be unconstitutional and condemned their decision to take the law into their own hands:

This Court cannot hold that the petitioners were constitutionally free to ignore all the procedures of the law. [I]n the fair administration of justice, no man can be [the] judge in his own case, however exalted his station, however righteous his motives, and irrespective of his race, color, politics, or religion.

And the U.S. Supreme Court has not been alone in that view nor has it been alone in striking down attempts by citizens or governments to disobey existing law.

In 2004, the California Supreme Courtinvalidatedthen-San Francisco Mayor Gavin NewsomGavin NewsomHarris to campaign for Gavin Newsom ahead of recall election California requests .7M in aid for Afghan resettlement Elder pledges to replace Feinstein with Republican if he wins California recall election MOREs declaration that the city would marry same sex couples in defiance of an existing voter-approved law that declared Marriage shall be restricted to a man and a woman.

Justice SotomayorsdissentinWhole Womens Healthmakesprecisely the same point about courts exclusive role in deciding on the laws meaning. Calling the Texas anti-abortion law a breathtaking act of defiance, shelabelled the courts failure to act stunning. In her view, it rewards tactics designed to avoid judicial review and inflicts significant harm on the applicants and on women seeking abortions in Texas.

Until last week, defense of the judiciarys role in saying what the law is and insisting that others defer to its judgments has united conservative and liberal justices.

But, inWhole Womens Health,only one conservative, Chief Justice Roberts, joined with the courts three liberal justices in standing up for such nonpartisan jurisprudential principles. His five conservative colleagues seem so eager to gutRoethat they are willing to disembowel the judiciarys own authority.

The risk of legal chaos from the Supreme Courts inaction on Sept. 1 may soon be realized in a kind of Cold War between the states.

Imagine blue states reacting toWhole Womens Healthwith laws permitting private lawsuits against anti-vaxxers who help someone evade a businesss COVID vaccination mandate, or against owners of banned guns whose prohibition is the subject of federal court challenges.

When the current conservative majority on the Supreme Court trashes its own authorityto tilt the scales in the current culture wars, it endangers the liberty of all, no matter which side of the cultural wars they are on.

And it sends an unmistakable signal that reform is needed to preserve the courts legitimacy and its vital role in protecting the rule of law.

As theCommission on the Supreme Courtgoes about its work, it should judge every proposal by a single standard whether it willdecrease the now rampant politicization of the Supreme Court of the kind that led to the decision in the Texas abortion case.

The commission should only entertain reforms thatpromiseto create more moderating influences on the court or, as the Center for American Progress recently said, reduce the influence of justices who pursue a purely partisan agenda.

Only those kinds of reforms can save the Court from its current crop of judicial radicals and secure continuing public respect for it.

In all of its work the commission should be guided by Justice Stewarts wise admonition that[R]espect for judicial process is a small price to pay for the civilizing hand of law, which alone can give abiding meaning to constitutional freedom.

Austin Sarat is the William Nelson Cromwell Professor Jurisprudence and Political Science at Amherst College. He is author of numerous bookson America's death penalty, including "Gruesome Spectacles: Botched Executions and America's Death Penalty."Follow him on Twitter@ljstprof.

Dennis Aftergutis a former federal prosecutor, who has successfully argued before the Supreme Court. He is currently of counsel at the Renne Public Law Group in San Francisco.

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Supreme Court trashed its own authority in a rush to gut Roe v Wade | TheHill - The Hill

Republicans have just made it clear: Texas is the most conservative state in the union.

And it will remain a bastion for the brand of conservatism made popular by the culture wars of the last 15 years and former President Donald Trump, unless overwhelmed Democrats challenge for control of the state or become a more effective opposition party.

More than any legislative session in the history of Texas, Democrats were steamrolled by Republicans, who nearly passed every piece of legislation they wanted.

That was after three quorum breaks, including a 38-day stint that included over 50 Democrats camping out in Washington, D.C. to stall a controversial elections bill.

That bill and nearly everything on the GOPs list at the red meat counter has been or will be signed into law by Texas Gov. Greg Abbott, who now has bragging rights over fellow Republican and Florida Gov. Ron DeSantis.

With the Legislature and all the statewide offices controlled by Republicans, along with an electorate that approves of their priorities, Texas is under one-party rule.

If that wasnt clear in the past, the nation now knows it.

They have won the crown, said longtime Republican consultant and lobbyist Bill Miller. Texas is arguably the most conservative big state in America.

Jim Henson, director of the Texas Politics Project at the University of Texas, said the one-way street known as Texas politics has soured many residents. He said one-party rule stifles debate and gives outsized influenced to the activist wing of the Republican Party.

When you have one-party dominance and the results show up in public policy, there is going to be a negative impact on the general mood, particularly when that agenda for that party is driven by a decidedly non-mainstream wing of the party, Henson said.

The Texas Politics Project recently released a poll showing most Texans feel the state is headed in the wrong direction.

Still, the GOP voters who believe the election was stolen from Trump have gotten vindication from Abbott and their Texas lawmakers.

The rest of the state, which includes swaths of apathetic voters, follow along or can do little to stop the onslaught.

The other reality: Most voting Texans approve of the direction Abbott and Republicans are taking the state, despite what recent polls show.

Theres plenty of opposition in the media, along with Democrats and progressives, about what happened in Austin this year. In the past, such outcry has produced electoral victories for Democrats. In 2018 Democrats seized 12 seats held by Republicans and won two congressional races, including Democrat Colin Allreds defeat of Republican incumbent Pete Sessions in Dallas Countys Congressional District 32.

But Republicans rebounded in 2020, and they dont appear to be worried about next years midterm elections. The national climate almost assures that Republicans will win big in 2022, unless the people in the Lone Star State truly want a political revolution.

The question for now: how do you like your red meat?

Even before the second session, the regular session produced the heartbeat bill passed and signed into law by Abbott. It is the most restrictive law in the nation, prohibiting abortions after six weeks, before most abortions occur. The law, which critics say violates the U.S. Constitution, has a vigilante component. Any citizen can sue in court and receive damages from people they suspect of aiding someone getting what is now an illegal abortion.

That law sets the stage for the end of legal abortions in much of America, if the trend started by Texas is picked up by other states.

But the end of a second special legislative session brought with it a cascade of conservative legislation, much of it designed to appease Republican base voters that have an insatiable appetite for legislation that restricts use of medication abortion, embraces gun culture, restricts mail voting, prohibits the teaching of critical race theory and provides funding to erect a wall along the southern border.

There were small but notable new laws as well, including mandating that professional sports teams with state contracts play the National Anthem before sports events. Some Democrats backed that GOP-led bill, a nod to the mood of Texans about patriotism.

Republicans arent finished either. An upcoming special session to allow lawmakers to redraw the states legislative and congressional boundaries could produce more conservative red meat, including legislation forcing transgender athletes to compete in sports under the gender they were assigned at birth. More elections legislation, perhaps an audit of the 2020 Texas results, is possible.

Republican leaders took turns reveling in their accomplishments.

The Texas Senate completed one of the greatest weeks for Republican legislation in Texas, and perhaps, American history, Lt. Gov. Dan Patrick said in a statement Thursday. These are conservative cornerstones that will keep Texas, TexasWe still have unfinished business to complete on the Fair Sports for Women and Girls ActI have asked Gov. Abbott to place it on the special session call later this month, and we will pass it again.

The 2021 legislative sessions is an extended lesson on what we already know. Elections matter.

As disappointing as the 2020 election were for Democrats hoping to seize the Texas House for the first time since 2002, this years legislative session was far worse.

Longtime state Sen. Royce West, D-Dallas, calls it the worst session hes ever seen.

But he doesnt blame Republicans for responding to their constituents.

He said he wanted Democrats to remember the pain and disappointment of the sessions and use it as motivation to flip statehouse seats in 2022.

We need to make sure were registering voters and getting them out to vote, West said. We need to use some of the hard lessons weve learned over these legislative sessions to build coalitions and win at the ballot box.

Its a start.

The rest is here:
Republicans prove Texas is the most conservative one-party state in America - The Dallas Morning News

Fire in the West is expected, and not so long ago, it seemed something the West experienced more than anywhere else. Nationally, big fires were treated as another freak of western violence, like a grizzly bear attack, or another California quirk, like Esalen and avocados.

Now, the wildland fires flare up everywhere. There are fires in Algeria and Turkey, Amazonia and Indonesia, and France, Canada and Australia. Last year, even Greenland burned.

Fire seasons have lengthened, fires have gotten meaner and bigger, and fires have begun not just gorging on logging slash and prowling the mountainous backcountry but also burning right into and across towns. Three years ago in northern California, the Camp Fire broke out along the Feather River and, burning southwest, incinerated the town of Paradise. Now, the Dixie Fire, starting 20 miles north in the same drainage, is burning in the opposite direction, taking out the historic town of Greenville. The fires have us coming and going.

The causes have been analyzed and reanalyzed, like placer miners washing and rewashing tailings. Likewise, the solutions have been reworked and polished until they have become clichs, ready to spill into the culture wars.

The news media have fire season branded into their almanac of annual events. Scientific disciplines are publishing reports and data sets at an exponential rate. So far as understanding the fire scene, weve hit field capacity. What more can we say?

One trend is to go small and find meaning in the personal. But there is also an argument to go big and frame the story at a planetary scale that can shuffle all the survival memoirs, smoke palls that travel across the continent, melting ice packs, lost and disappearing species and sprawling frontiers of flame, in much the way we organize the swarm of starlight in a night sky into constellations.

Im a fire guy. I take fire not just as a random happening but as an emergent property thats intrinsic to life on Earth.

So I expect fires. All those savanna fires in Africa, the land-clearing fires in Brazil and Sumatra, the boreal blowouts in Siberia and British Columbia, the megafires in the Pacific Northwest all the flames we see.

But then there are fires that should be present and arent the fires that once renewed and stabilized most of the land all over our planet. These are the fires that humanity, with its species monopoly on combustion, deliberately set to make living landscapes into what the ancients termed a second nature.

But it was not enough. We wanted yet more power without the constraints of living landscapes that restricted what and when we could burn. We turned to fossil fuels to burn through day and night, winter and summer, drought and deluge. With our unbounded firepower, we remade second nature into a third nature, one organized around industrial combustion.

Our fires in living landscapes and those made with fossil fuels have been reshaping the Earth. The result is too much bad fire and too little good and way too much combustion overall.

Add up all those varieties of burning and we seem to be creating the fire equivalent of an Ice Age, with continental shifts in geography, radical changes in climate, rising sea level, a mass extinction and a planet whose air, water, soil and life are being refashioned at a breakneck pace.

Its said that every model fails, but some are useful. The same holds true for metaphors. What the concept of a planetary Fire Age a Pyrocene gives us is a sense of the scale of our fire-powered impact. It suggests how the parts might interact and who is responsible. It allows us to reimagine the issues and perhaps stand outside our entrenched perspectives.

What we have made if with unintended consequences we can unmake, though we should expect more unknown consequences.

We have a lot of fire in our future and a lot to learn about living with it.

Steve Pyne is a contributor to Writers on the Range, a nonprofit dedicated to spurring lively conversation about the West. He is the author of The Pyrocene. How We Created an Age of Fire and What Happens Next.

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Writers on the Range: Our new age of fire - Steamboat Pilot and Today

In the seemingly endless battle to deny disfavored groups equal citizenship, Republican lawmakers around the country have repurposed an old tool to new and cruel effect. Theyve inverted private enforcement laws marshaled over the years to discipline fraudulent government contractors, racist or sexist bosses and toxic polluters to enable individuals to suppress the rights of their neighbors, classmates and colleagues. Most prominent among these new laws is SB 8, Texass heartbeat bill. The law bans abortions six weeks into a pregnancy, lets anyone bring a lawsuit against medical practitioners who violate the ban and provides cash bounties of at least $10,000 (plus legal fees and costs) to encourage such litigation.

SB 8 captured the nations attention this week when the Supreme Court refused to block its implementation, precisely because, as Justice Sonia Sotomayor and the other dissenting justices noted, it is enforced by private individuals, not the state.

Gutting Roe v. Wade, especially in this backdoor fashion, is a staggering blow to equality in America. And in fact, the president of Floridas State Senate just promised to introduce a copycat bill in the coming legislative session. But the subversion of private enforcement laws to restrict individual rights goes far beyond abortion. Since the beginning of this year, Tennessee has authorized students and teachers to sue schools that allow transgender students to use the restrooms that match their gender identity; Florida has followed suit, with a law that allows students to sue schools that permit transgender girls to play on girls sports teams.

Additional bills are in the works across several jurisdictions authorizing parents to sue schools if teachers or outside speakers mention the principles of critical race theory. And theres every reason to expect that red states will push private enforcement further to election monitoring and perhaps even immigration enforcement. Its only a matter of time before these states decide to empower individuals to bring suits for injunctive relief and damages against people who engage in activities like handing out water to minority voters waiting in hourslong lines to vote. States could similarly deputize anyone to sue employers or landlords of undocumented persons, pushing Dreamers who are currently protected by DACA out of work and into the streets.

These laws dont just tee up a lot of new and nettlesome lawsuits; theyre part of a campaign to make us forget what rights really are. Up until now, the law usually conferred rights on people who were seeking to exercise personal autonomy over their bodies, their words or their votes. This new breed of private enforcement laws inverts that paradigm, giving rights to people who are merely offended by what they see, hear or imagine.

This reassignment lacks any foundation in our constitutional traditions (except those built on theories of subordination, such as Jim Crow). Instead, its the product of what might be labeled populist outrage discourse everything from Tucker Carlson monologues to the irate grocery store customers who assert their inalienable right to shop maskless, even if doing so violates the wishes of the proprietor and endangers those around them.

The financial incentives to enforce laws like SB 8 will provide crucial support for groups who are already waging todays culture wars. In essence, the states are manufacturing and subsidizing a community of grievance activists. Their work will provide headlines for allies in the right-wing press to stoke the divisions that are necessary for a minoritarian political party whose only other chief contribution is tax cuts for the ultrawealthy to maintain an active and enthusiastic base.

Still more troubling, the new private enforcement laws endorse what amounts to a civilized form of vigilantism. Recent years have seen an alarming number of vigilante threats or acts against immigrants seeking asylum, Black Lives Matters protesters and voting rights drives. (Meanwhile, support for such political violence has also risen.)

We dont mean to sensationalize suits under these new laws by tying them to disturbing incidents such as the attempted kidnapping of Gov. Gretchen Whitmer of Michigan. But enforcement of the new laws will require intensive and intrusive surveillance of neighbors and colleagues.

Consider a website set up to facilitate enforcement of SB 8. Before it was targeted by hackers, prolifewhistleblower.com invited users to upload evidence that SB 8 was being violated, while guaranteeing users anonymity an open invitation to use the kind of guerrilla investigative tactics that have already been deployed against abortion providers across many states.

Its tempting to think that its better for doctors (not to mention teachers, coaches and, in time, voters) to be dragged into court rather than to be assaulted on the street, but this is a false dichotomy. The new laws encourage aggressive surveillance while functionally chilling fundamental expressions of personal autonomy.

Perhaps though, whats good for the goose will be good for the gander, and blue states will use these same tools to suppress rights they dislike. Massachusetts could authorize citizens to seek damages from houses of worship that refuse to follow Covid safety protocols; California could give citizens the right to sue neighbors who recklessly keep guns in their homes; New York could even encourage private lawsuits against big corporate donors who exercise disproportionate sway over politicians.

But setting aside our own personal discomfort with using litigation to stoke culture wars and, possibly, invite violence, lets be real: This intensely politicized and extremely conservative Supreme Court is never going to allow such laws to take effect. Its not the best use of Democrats time and energy to try.

Whats more, there is something deeply undemocratic and embarrassingly revealing about a political party that maintains power by fomenting and subsidizing discord, whether in the streets or in the courtroom. For Trumps G.O.P., however, the strategy is irresistible. In an era where fomenting and even monetizing social, cultural and racial grievances is crucial to the G.O.P.s survival, SB 8 is just the tip of the iceberg.

Original post:
Opinion | SB 8 Is Only the Beginning - The New York Times

Some 70 million US citizens are Roman Catholics, about 22 per cent of the total population. In the 2020 elections the Catholic vote was split half and half between Trump and Biden, but only 44 per cent of white Catholics voted for Biden. Some 20 million Americans identify as Latino Catholics (about 55 per cent of the overall Hispanic population) and of these Hispanic Catholics the vote was 67 per cent for Biden, 26 per cent for Trump. Thanks to voter registration activists such as Stacey Abrams and Black Lives Matter, the black vote, especially in states like Georgia, came out in force. It was even more pro-Biden than the Hispanic (polls indicated that in some states 90 per cent of black female votes were going to Biden). American voters are racially split and the Biden presidency relies on minority voter turnout.

These figures alone illustrate the problem for a white Catholic President who asserts his Catholic identity. Ethnicity and origins play an important role in determining voting behaviour, but three other features of the contemporary USA give Biden cause for concern. The first is that as a Catholic President he must position himself in relation to national politics riven by culture wars, turbo-charged by the Republican Party. The Tea Party movement, with its mixture of Right-wing populism, shrink-the-federal state, anti-Washington activism plus anti-immigrant policies, emerged in 2009. Trumps drive for white supremacy, support for racist voter suppression, and rhetorical championing of favourite evangelical Christian themes, particularly opposition to abortion laws and same-sex marriage, made these goals seem politically achievable, but only by the Republican Party.

The second concern for a Catholic President is that the culture wars have seeped into the US Catholic Conference of Bishops. The American Church was already polarised between a strict traditionalist social conservatism with an in-built bias towards Republican politics, even in its Trump extremes, and a liberalism committed to social justice, at ease in the Democratic Party. Biden faces, and has always faced, strictures from a minority of conservative bishops about his political position on abortion and to a lesser degree his attitude towards gay and divorced people receiving the Eucharist. Obviously the President doesnt believe what we believe about the sacredness of human life, Archbishop Joseph Naumann, head of the Catholic bishops Pro-Life Committee told The Atlantic. We can safely assume that he was not referring to President Trumps acceleration of the use of the death penalty during his last days in office.

The Democratic Party does not pick radicals for their presidential candidates; that is why they rejected Bernie Sanders and chose the centrist Biden. Anyone who read Pope Franciss encyclical Fratelli Tutti would see that the pontiff is politically a prophetic radical thinker, who has more in common with Bernie Sanders than the President. But the Republicans perceive Biden as an ally of Pope Francis, who is himself under fire, and they have succeeded in placing the President firmly on the enemy side of the culture wars in a Church that is herself divided, nationally and racially as well as globally.

As Massimo Faggioli points out in his recent book Joe Biden and Catholicism in the United States, Bidens own Catholicism pious, un-intellectual, and compassionate reflects the openness to the world of Pope John XXIII and the Second Vatican Council. The Council document Gaudium et Spes (Joy and Hope), issued on 7 December 1965, the day the Council ended, begins thus: The joys and the hopes, the griefs and the anxieties of the men of this age, especially those who are poor or in any way afflicted, these are the joys and hopes, the griefs and anxieties of the followers of Christ. Indeed, nothing genuinely human fails to raise an echo in their hearts. The problem for Biden, who would endorse these words, is that since the 1970s the Council and its documents have been subtly, and not so subtly, undermined, re-interpreted and politicised by conservative Catholics. When the social conservatives in the American Church looked outwards, they saw Obama as the leader of a militant secular modernisation and an overweening federal state, with Biden as his misguided Catholic apprentice. And for many, their enemies enemy, Donald Trump, became, at least electorally, their friend.

The third concern for Biden is that this polarisation within the American Church has contributed significantly to division within the global Church that came of age with the appointment of an Argentinian, Jorge Mario Bergoglio, as the first non-European Pope. The cardinals chose a Pope from the global South, further shifting the centre-periphery model of a Eurocentric Church towards a more networked, less command and control Church, a process described in my Global Catholicism: towards a networked Church (Hurst, 2012). Rome remained pre-eminent but the Curial bureaucracy surrounding the Pope found itself downgraded and under serious pressure to reform. The large American Church, traditionally punching well below its weight, assumed more significance, especially when Archbishop Carlo Mario Vigan, Vatican ambassador to the US from 2011 to 2016, led a virulent attack in 2018 on Pope Francis, alleging homosexual conspiracies and Vatican cover-ups of sexual abuse. Vigan, a former chief of Vatican Curial personnel, was able to draw on his wide range of personal contacts in his attempts to create a movement to marginalise and smear the Pope. He failed, but the tension within the divided American Church remains.

Biden can expect more moral support from the current Pope than from his two papal predecessors, but it is support that may come with a political cost. The President finds himself at the intersection of an unholy set of inter-related and interlocking pressures notably the tens of millions of Catholics who voted for Trump, ignoring his four years of attempted destruction of democracy. President and Pope are singing from the same hymn sheet over the climate crisis, sharing a compassionate openness towards gay sexuality, and a commitment to the reforms of the Second Vatican Council, notably to Mass in the vernacular. In America the Latin Mass had become something of a Right-wing cause, supported by several bishops, among whom Cardinal Raymond Burke, formerly Archbishop of St. Louis, is the most prominent. These divisions within Catholicism mirror the divisions within the nation which President Biden has the enormous task of healing. He cannot look to the American Church to be part of the solution.

Bidens leadership as Commander-in-Chief during the tragedies of defeat and hasty evacuation in Afghanistan has done nothing to heal divisions in a shamed nation. Even though his new thinking about US military intervention will have found approval in Rome, he has received no accolades and derived little inspiration from the American Catholic hierarchy. It is high time they ended censorious and curmudgeonly criticism. They should show more concern for the future of democracy and the task of national healing that awaits Joe Biden, who is only the second Catholic to become President.

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American Catholics, Joe Biden and the bishops - TheArticle