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The five Supreme Court justices who voted to overturn the constitutional right to abortion last year presented themselves as great defenders of democracy. The cornerstone of their arguments in the Dobbs v. Jackson Womans Health Organization decision was that the courts earlier affirmation of a right to abortion, enshrined in Roe v. Wade (1973) and reaffirmed in Casey v. Planned Parenthood (1992), improperly settled by judicial fiat a matter that required deliberation by voters and lawmakers. Writing for the majority in Dobbs, Supreme Court Justice Samuel Alito insisted,The Court short-circuited the democratic process by closing it to the large number of Americans who disagreed with Roe.

Alitos claims can be countered by both legal and practical arguments. On the legal side, it is not the case in the American constitutional order that issues of fundamental rights belong to the democratic process rather than the courts. Using Alitos logic, one could just as easily overturn Supreme Court cases affirming a constitutional right to birth control (affirmed in 1965s Griswold decision), to marry people of different races (1967s Loving decision), or to marry people of the same gender (2015s Obergefell decision). The fact that Alito went out of his way in Dobbs to assure readers that Griswold, Loving, and Obergefell would not be touched indicates a judicial bad conscience. The justice protested too much precisely because hes aware that the logic of Dobbs put many other constitutional rights in jeopardy.

But there is a more practical objection to Alitos reasoning. As recent history has shown, American democracy is a ramshackle affair where majority rule is thwarted by the systems many veto points and the structural empowerment of certain minorities (the Electoral College, the Senate). These features render the system vulnerable to manipulation by powerful interest groups willing to roll back voting rights or use gerrymandering to achieve antidemocratic results. Indeed, the very court that decided Dobbs is evidence of a deeply flawed democratic system: Three of the five justices who voted to overturn Roe (Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett) were nominated by a president who in 2016 lost the popular voteand they were confirmed by Senate majorities that actually represented fewer voters than the senators who voted against their confirmation. This is because Republican senators tend to represent states less populous than their Democratic counterparts do.

Since Dobbs, weve had a test case for how the democratic process deals with abortion. And the results of that test give the lie to the claim that Dobbs was an affirmation of democracy.

Reproductive freedom is very popular, which buoyed the Democrats in the midterms and also led to victories in referendums even in very Republican states (notably Kansas). Yet the anti-choice side has not responded to these democratic loses by simply accepting the popular will. Instead, it has redoubled its commitment to limiting reproductive freedom by means fair or foul. This has often meant thwarting the democratic process, both by limiting voter power in relation to abortion and by waging legal warfare.

In February, Pew Charitable Trusts reported: Roused by voters recent endorsement of abortion rightseven in conservative statesRepublican legislators are ramping up efforts to make it tougher for citizens to change laws or amend state constitutions through ballot measures. Pew cited efforts to make ballot measures harder to pass in Ohio, Florida, and Missouri and, summing up these changes, observed, Some of the GOP proposals would set new signature-gathering rules, making it harder to place an initiative on the ballot. Others would require a 60 percent supermajority of state voters, instead of a simple majority, to approve a measure.

Journalist Jessica Valenti, in a Substack post from early March, noted that Mississippi lawmakers have joined this trend and been unusually frank in admitting their worry that voters, unless restrained, will use the ballot box to restore reproductive freedom.

Nor have right-wing judgesa formidable presence in the courts thanks to eager court packing by Republican administrationstaken to heart the idea that abortion should now be settled by the democratic process at the state level. Rather, the right-wing judiciary, aided by a well-financed legal infrastructure, is adopting innovative arguments to limit reproductive freedom even in blue states. Guardian columnist Moira Donegan recently reported that US district court judge Matthew Kacsmaryk, one of former president Donald Trumps most reactionary nominees, is signaling that hes ready to uphold arguments for an injunction to remove FDA approval of mifepristone, a drug used in the majority of abortion in the United States.

Vox reporter Rachel Cohen reveals a further example of legal radicalization: the development of an innovative legal doctrine that once legal injunctions are issued, they should have the full force of law even while cases are being appealed. An aggressive wing of the anti-abortion movement, Cohen writes, has been advancing the idea that abortion providers could still be held liable for pregnancies they help terminate under restrictive state laws, even if the law is blocked by the courts when the abortion occurs.

Cohen observes that this doctrine has gained a foothold in the legal system thanks to the 2021 passage in Texas of SB 8a bill that allows private citizens to enforce the states six-week abortion ban through civil litigation and receive a cash bounty if theyre successful. As Cohen explains, SB 8 law also includes a provision that says an individual cannot cite as a defense any court decision that was later overruled on appeal or by a subsequent court. Drexel law professor David Cohen called this SB 8s sword of Damocles provisionhanging over the heads of abortion providers even in the event a court provides relief from an anti-abortion law.

The intent of this legal doctrine is to create a chilling effect so abortion providerspharmacists as well as doctorsare afraid to offer their services even when it would be legal to do so. The success of the chilling effect can be seen in the recent retreat of Walgreens from its promise to make abortion pills available nationally.

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What unites all these anti-choice efforts is that they challenge the ability to use the democratic process to protect reproductive rights.

The best response to this antidemocratic movement is an insistence on the supremacy of the peoples will. In 2022, Democrats did well in the midterms thanks to popular support for reproductive rightsand also to cogent arguments that Republicans represent a threat to democracy. In 2024 and subsequent elections, Democrats could argue that these two issues are one: Republicans threaten democracy because they want to push through wildly unpopular laws, including abortion bans. Democrats could ask the voters for a mandate to restore democracy to preserve reproductive freedom (and other parts of their agenda). This means that they would have run on the promise that if voters give Democrats a strong trifecta, the party will rebalance the courts and use jurisdiction-stripping to limit the powers of right-wing judges.

Commitment to an agenda of democracy and reproductive freedom would also require a promise to actually use the powers of Congress to defend abortion rightssomething Democrats have been loath to do. As Jeannie Suk Green recently noted in The New Yorker,

the proper target for pro-choice complaints is Congress. It has not managed to pass the Womens Health Protection Act, which would establish a federal statutory abortion right to replace the constitutional right that the Court removed. And it has never repealed the Comstock Act, leaving us in the situation where nineteenth-century sexual morality now shapes the twenty-first-century abortion debate. Still, as the branch constitutionally empowered to make laws for the nation, Congress should, at the very least, amend the statute to make it clear that drugs can be mailed for lawful abortions.

Democracy and reproductive freedom are potentially winning issuesbut only if Democrats offer more than just rhetoric. The anti-choice movement is an extremist threat to American democracy. To counter it, Democrats have to be as radical as their foes.

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The War Against Abortion Rights Is Also a War Against Democracy - The Nation

The metaverse has the potential to be the next frontier of human interaction, as evidenced by the amount of activity that continues to pour into the space.

Its not just game developers pushing digital worlds but entire countries are setting up metaverse development funds. Major automotive firms, such as Nissan, are conducting trial sales in the metaverse, and even court cases are being moved to digital reality.

According to data compiled by licensed trademark attorney Mike Kondoudis in November 2022, trademarks filed for nonfungible tokens (NFTs), cryptocurrencies and the metaverse hit new levels at the end of the year.

However, if countries and court cases are entering the metaverse and human activity increases in digital reality, its only a matter of time before major ethical questions come into play.

What are the moral codes of a society that is a digital conglomerate of many societies in physical reality? Or, given the fact the metaverse is in theory open to anyone around the world, how do local and metaverse laws interfere and interact with one another?

These are new concepts that have sprung from emerging technologies, but they have roots in some of the major ethical questions with which humans have struggled throughout history.

With new technology, there are always questions raised about the morality and ethics of its capabilities. This has certainly been the case with artificial intelligence (AI) and invasive wearable technology.

Recently, the release of ChatGPT-4, an advanced AI chatbot application, raised major ethical questions as it was able to ace the bar exam and SATs. In an effort to dictate morality around this technology, Cambridge University released its first official policy regarding the ethics of artificial intelligence.

As the metaverse expands, it, too, is becoming a topic both users and developers will continue to face from a moral and ethical perspective.

For Yat Siu, CEO and co-founder of Animoca Brands, the framework in the physical world is still something to fall back on in this early stage of digital reality development.

Its certainly an ongoing process, he told Cointelegraph. Some jurisdictions are looking at incorporating digital assets within local law frameworks.

Related:US enforcement agencies are turning up the heat on crypto-related crime

Sius comment regarding jurisdiction refers to the fact that the metaverse is theoretically accessible to users from all over the world, but its also being developed intentionally and in specific ways in certain countries.

For example, Saudi Arabia recently announced a partnership with The Sandbox for future metaverse development, while in Colombia, a local legal jurisdiction held a trial in the metaverse.

Therefore, in instances involving specific physical geographical locations, local perspectives of ethics and morality will come into play.

The aforementioned court case in Colombia created a buzz in the online legal community as to what is legally possible in virtual worlds and, more importantly, what is ethical for all those involved.

The Colombian court case was a civil case involving a traffic violation that took place outside of the metaverse. However, the situation becomes more complex when dealing with punishment for behavior deemed unethical that has taken place within the metaverse. On this, Siu commented:

Another way to tackle metaverse crimes, according to Siu, would be to reverse transactions by securing a general consensus on the blockchains where the crimes took place.

He said this way is more controversial and still a degree of law enforcement in the physical world is required.

John Kobs, CEO and founder of digital artist residency Wildxyz, echoed Siu, telling Cointelegraph that the ethics and morality of the metaverse are currently being created, and developers should be creating this new ethical standard with integrity and trust for its users.

Civilizations in physical reality have been wrestling with moral and ethical codes for centuries. One of the worlds most recognizable and ethical societal systems, democracy, was created in Greece in 5 B.C.

However, the various cultures and societies that have tried to take on democracy have influenced this moral system. The democracy that exists today in many countries around the world still is not exactly how the ancients first envisioned it.

Therefore, as humans create a new digital world, the cultural code of morals and ethics will most likely be shaped by the digital environments around it.

Kobs said that at Wildxyz, We believe the culture and structures we create will play a huge role in defining a safe space for all who want to participate.

On digital, decentralized democracy, Siu commented that justice is an important value of the open metaverse although it is more subjective.

Before our societies took the shape theyre currently in, physical world societies began in a fairly decentralized manner and eventually grew into monarchy systems, which are not at all democratic or decentralized, said Siu.

He continued by pointing out that despite this oscillation between decentralized and centralized ways of building societies, today, almost all those systems have been replaced by democratic ones.

Increased use of the metaverse is expected to change many areas of life as it is known in physical reality. In fact, 69% of users believe that metaverse activities will reshape social life.

However, the metaverse is still in its infant stage, and so are many aspects of its usability, including those with regard to ethical procedures. For now, there is not one blanket set of ethics and moral codes that dictate digital reality, just as there is not even a singular metaverse at present.

Related: Death in the metaverse: Web3 aims to offer new answers to old questions

Nonetheless, the way humans will interact with each other morally and ethically in a digital replication of reality is definitely on the mind of developers and scholars.

Numerous academic articles are beginning to surface on the subject. A talk on the topic was even held at the mainstream South by Southwest festival called, Good, Evil and Avatars: Ethics in the Metaverse.

More attention is shifting to the digital world and what it takes to make it a sustainable reality. As Siu concluded on the topic, a new culture is emerging.

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To be or not to be: Ethics, democracy and morality in the nascent metaverse - Cointelegraph

Since 2019, the German-speaking community in Belgium has carried out a deliberative experiment involving citizens in decision-making processes, a model that, according to the former head of the regions parliament, could be adapted to other government levels.

The deliberative model in the German-speaking community, a small region with legislative powers in the east of Belgium, consists of citizens assemblies deliberating on topics chosen by a permanent citizens council, which is in charge of managing the process.

So far, citizens drawn by lot were called to deliberate on four themes: care for the elderly, inclusive education, affordable housing, and the challenges of digitalisation. The assembly is now asked to address the issue of migrants integration, the last panel of the current legislature before next years elections.

I am quite sure that we will continue the experiment in the next legislature, said Karl-Heinz Lambertz, former president of the regions parliament and member of the Congress of Local and Regional Authorities of the Council of Europe.

Citizen dialogue has become one of the pillars of our activity, he said.

According to Min Reuchamps, a political science professor at Universit Catholique de Louvain (UCLouvain), the deliberative process of the region has the distinctive feature of having a permanent citizens council, setting it apart from similar experiences taking place in other European regions.

The citizens council consists of people who have participated in the citizens assemblies and who serve in the council for 18 months.

This body has two missions. It sets the agenda for the citizens assembly and it monitors the work of the citizens assembly after it has done its recommendation, Reuchamps explained, adding that the monitoring phase is particularly important to make sure recommendations are implemented.

Lambertz said the process has so far been successful, although time- and resource-consuming, and that the parliament launched a process to improve the legal basis of the exercise.

One of the main issues is the under-representation of young people and marginalised community members in the citizens assemblies and the permanent council.

The parliament is currently working to make sure the population is well represented in terms of gender, age, and background. However, Lambertz said that we will always struggle to touch a certain public that is already far away from political life.

The best way is that the people who took part in the process talk about it and motivate other people, he added.

According to Reuchamps, although the process can be improved, the experiment is very recent and realising its full potential will take years.

We are still very much in the infancy of this process, so we should still give it time.

Meanwhile, the eastern Belgium model has already been adopted by the neighbouring German city of Aachen, where a citizens assembly with a legal basis and permanent organisational structure was established in 2022 and will start deliberating later this year.

Asked whether this deliberative model could be applied at a larger scale as well, Lambertz said the shortest answer is yes.

Deliberative democracy can work at all levels but needs to be done professionally and with all the necessary means in place, he said, adding that deliberative experiments need to be adapted to the government level at which they are carried out.

Reuchamps agreed that the process needs to be contextualised.

Its very important that each community, each city, each region, each country, when they do something like this, make sure that its tailored for them, he said.

[Edited by Zoran Radosavljevic]

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Deliberative democracy in eastern Belgium: A model to scale up? - EURACTIV

Ellen Brostrom| Milwaukee Journal Sentinel

I have had the privilege of serving as a Milwaukee County Circuit Court Judge for nearly 14 years. I am also half of the only mother-daughter judicial duo in Wisconsin history. My mother, Justice Pat Roggensack, has been on the Wisconsin Supreme Court since 2003 and served as Chief Justice from 2015 to 2021. I am writing to share my opinion that former Justice Dan Kelly is unfit to occupy her seat on the Wisconsin Supreme Court.

Like my mother, I am a judge who follows the law and upholds our constitutional rights. I have served alongside Judge Janet Protasiewicz as a colleague in Milwaukee for almost a decade, and I know her abilities as a jurist and as a community leader. She is the better choice for voters this April 4.

As judges, we take an oath to support the Constitutions of the United States and the State of Wisconsin. Instead of supporting our constitutional rights, however, Kelly has worked to undermine the constitution and our democracy. He has never served as a front-line judge, and instead most recently served as a legal advisor to the Republican Party of Wisconsin as it implemented the fake elector scheme, part of a multifaceted conspiracy to overturn the 2020 presidential election.

More:Bice: Supreme Court candidate Daniel Kelly was paid $120,000 by Republicans to work on 'election integrity,' advise on fake electors

In the United States, we proudly elect our leaders. Our leaders do not install themselves. Our entire democracy indeed, the very idea of America is built on this bedrock constitutional right. Whatever our flaws and shortcomings, America, and Wisconsin specifically, has been a city on a hill for the peaceful transition of power.

Instead of peaceful transition, however, since the last presidential election, the country has been subject to a massive fraud designed to convince fellow citizens that the election was stolen. It seems the losing side led by President Trump, Fox News, and his allies believes the results should be overturned by any means necessary. To that end, they have intentionally lied to the American people and conspired to keep Trump illegally in power.

Kelly assisted in this scheme, and that makes him unfit to serve on our states highest court.

Our nations history is the story of the franchise being extended, from white male landowners to all white men, to Black men, to women, and so on.People have died in the struggle to secure the right to vote.At every stage, there has been violent resistance to extending our democracy to all. People have been willing to murder and terrorize others to suppress their right to vote. And, indeed, President Trumps conspiracy to overturn the 2020 presidential election culminated in violence, as the hallowed halls of our United States capital were invaded by insurrectionists. Law enforcement officers died. Dozens were wounded. The peaceful transition of power that has held fast since the Civil War was sullied but not broken.

More:'These guys are up to no good': Wisconsin fake elector fretted plan would 'fail miserably'

This conspiracy continues to be an existential threat to our nation. The question is: are we going to remain a democracy, or are we going to become an authoritarian state? In my view, the risk is that grave.

I believe we all have a patriotic and moral obligation to vote against candidates who have helped this conspiracy along, even if we are not fully comfortable with their opponent or would not vote for them otherwise.Kelly helped this conspiracy along, working to overturn the 2020 Presidential election. That is not conservative, and it is not American. Kelly is unfit to serve on our highest court. I hope you join me in voting for Janet Protasiewicz on April 4.

Ellen Brostrom is a Milwaukee County Circuit Court Judge first elected in 2009.

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Democracy is at risk by sending Dan Kelly to Wisconsin Supreme ... - Milwaukee Journal Sentinel

Recently, there was much consternation about Judge Kacsmaryk's decision to delay posting notice of a hearing. Indeed, a coalition of media organizations actually argued that this decision could violate the First Amendment! Ultimately, the proceeding went as planned, with no disruptions or incidents. There were protests outside. And the event was widely covered by the press. Thankfully, democracy did not die in the darkness.

Throughout this entire process, I chuckled. People who had zero experience with federal district court litigation suddenly became experts. In reality, trial judges have vast discretion over their dockets and courtrooms. In any normal case, this sort of request would never have raised an eyebrow. And the information would have never leaked to the press. But, with the abortion ad-hoc nullification machine at maximum power, all the usual rules are ignored.

If you'd like some evidence of how much power judges have to keep their proceedings secret, consider the sidebar conference. Generally, everything a judge says is in open court. But the judge can ask the parties to "approach" the bench, at which point the judge and attorneys can have a private conversation that the witness, jury, and other parties cannot hear. Some courts have noice-cancelling devices that make it impossible to even hear anything. (The district court that I clerked in did not have that technology, and was very small, so the parties were asked to speak low, but not too low so that the court reporter could not hear them.) Generally, the court reporter transcribes these proceedings. But sidebars may be redacted from the public transcripts.

A particularly egregious exercise of sidebar-redaction came during the Harvard affirmative action trial in Boston federal district court. Jannie Suk Gersen, a professor at Harvard, writes about what happened in Judge Allison Burroughs's courtroom. During the trial, the judge held lengthy sidebar discussions with counsel, and declined to release those matters in the public transcript. Indeed, those sidebars were not initially included in the record that was transmitted to the United States Supreme Court!

The secrecy would continue. Gersen filed a letter with the court, asking to unseal the sidebars. Judge Burroughs held two hearings about which sidebars to unseal. And the public was barred from those hearings! Only the other attorneys could attend. Gersen, who had made the initial request, was not allowed to attend that hearing. Gersen later attended a public hearing about unsealing those transcripts, where the judge announced the rulings. (The judge had already told Harvard and SFFA what her rulings would be at the prior sealed hearings.) Lawyers for Harvard objected to releasing the information, even as the case was pending before the Supreme Court! Why?

Harvard argued vigorously against unsealing certain sidebars, reminding the judge that concern about "the press gallery" was the reason she had sealed some discussions in the first place and maintaining that she should keep them sealed "because of the increased or the continuing public attention on this case."

Imagine that. A district court limiting some access to the public in light of "continuing public attention."

Apparently, the Supreme Court became concerned by the incomplete record, and asked for the sealed proceedings. Recently, the District Court sent the Supreme Court a "password protected and encrypted" thumb drive containing sealed materials. And what was Judge Burroughs trying to keep secret? A crass joke about Asian-American college applicants.

Thomas Hibino worked at the Boston location of the Department of Education, Office of Civil Rights. William Fitzsimmons is the Harvard Dean of Admissions. In 2012, Hibino emailed Fitzsimmons an attached memo:

On November 30, 2012, amid a friendly back-and-forth about lunch plans, Hibino e-mailed Fitzsimmons an attachment that he described as "really hilarious if I do say so myself!" Hibino explained, "I did it for the amusement of our team, and of course, you guys"presumably Harvard admissions officers"are the only others who can appreciate the humor." The joke memo had been written on Harvard admissions-office stationery, during the earlier investigation. It was purportedly from an associate director of admissions and parodied the admissions officer downplaying an Asian American applicant's achievements. The memo denigrated "Jos," who was "the sole support of his family of 14 since his father, a Filipino farm worker, got run over by a tractor," saying, "It can't be that difficult on his part-time job as a senior cancer researcher." It continued, "While he was California's Class AAA Player of the Year," with an offer from the Rams, "we just don't need a 132 pound defensive lineman," apparently referring to a slight Asian male physique. "I have to discount the Nobel Peace Prize he received. . . . After all, they gave one to Martin Luther King, too. No doubt just another example of giving preference to minorities." The memo dismissed the fictional applicant as "just another AA CJer." That was Harvard admissions shorthand for an Asian American applicant who intends to study biology and become a doctor, according to the trial transcript.

Fitzsimmons e-mailed Hibino back, "I'm stunned!" Fitzsimmons apparently believed that the admissions officer whose name was on the Harvard stationery had actually authored the memo. She "passed away a few years ago and I'd forgotten that she had such a sense of humor," he wrote. "We'll 'de-construct' at lunch. Where should we go?" Hibino wrote to clarify, "No, no! I did that from purloined stationery from your shop! Pretty convincing, huh?!!!!! I forgetare we getting together here or there?" (Through Harvard's press office, Fitzsimmons declined to comment, and calls and messages to Hibino were not returned.)

It seems the Office of Civil Rights stole stationary from Harvard, which they used to put together this awful memo. The Dean of Admissions thought the memo was funny. Justice Kagan recently mused that maybe she has no sense of humor. Maybe I don't have a sense of humor either. I'm not laughing.

And it also isn't funny that the judge tried to keep this information out of the record:

The sidebars about the memo show that S.F.F.A. wanted to question Fitzsimmons, during his courtroom testimony, about his reaction to the memo's "stereotypical comments about Asian Americans." S.F.F.A. argued that the dean of admissions was "laughing along" with a joke including Asian stereotypes. Harvard objected that the memo and Fitzsimmons's reaction should be excluded as "irrelevant," because it was "so tangentially related to anybody's credibility" or to a claim of Harvard's "discriminatory animus" against Asian Americans. Furthermore, Harvard claimed that the move to introduce this evidence was "calculated to be handed to the press" and "intended to embarrass Dean Fitzsimmons."

This information would seem to at least be relevant to the Supreme Court's consideration. But the trial judge, apparently, thought it better to keep this matter out of the record.

The Supreme Court should direct the Solicitor General to obtain the memorandum from the Department of Education. This document needs to be in the public domain.

Gersen continues:

Judge Burroughs did not think that it was fair to assume that Fitzsimmons found the stereotypes in the memo funny, and she didn't want what she saw as his "wholly ambiguous" comment to be public. "It has the potential to be explosively prejudicial, not to me because I take it for what it is, but in terms of the external world's response to this," she said. "At some point, I feel for the guy," she added, asserting that asking him about the memo on the stand would be "designed for media consumption and not for any great search for the truth." She ruled the memo and e-mails not relevant, and excluded them; if there were a jury, it would not have heard about them. And because she also sealed the sidebars, the press and the public knew nothing of them, either. . . .

But we also know that Judge Burroughs thought that the material could "explosively" affect how the public saw the facts. So, her decision was not just to exclude the evidence but also to seal it and attempt, even long after the trial ended, to prevent the public from knowing about a federal official's allegedly anti-Asian remarks. An attorney familiar with the case told me, "Judge Burroughs mistakenly conflated admissibility under the rules with her own decision, as the fact finder, that this evidence would have no weight with her. And then, because it would have no weight, it would be sealed to prevent embarrassment to Harvard witnesses."

Are judges allowed to make decisions based on concerns about media consumption? Back to Judge Kacsmaryk. He delayed posting the announcement of a hearing till the evening before. The public still would have been able to attend, and the press could have schlepped from Dallas. It would have been harder to bus in protestors. And there was not enough time to dry-clean their Gileadian bonnets. But Kacsmaryk's position was a reasonable attempt to deal with an unknown security situation.

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Democracy Died in Darkness in Harvard Trial Sidebars - Reason