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      President Biden: Texas shows we can’t wait any longer. It’s time to pack the courts | Lawrence Douglas

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      OpinionUS politicsPresident Biden: Texas shows we can’t wait any longer. It’s time to pack the courtLawrence DouglasRemember when Mitch McConnell twice invoked entirely made-up rules to politically shape the court’s membership? Expanding the court will make it more legitimate, not less Mon 6 Sep 2021 06.16 EDTLast modified on Mon 6 Sep 2021 14.47 EDTWilliam Brennan, the great US supreme court justice, liked to greet his incoming law clerks with a bracingly simple definition of constitutional doctrine: five votes. “You can’t do anything around here,” Brennan would say, wiggling the fingers of his hand, “without five votes.”Underscoring the truth of Brennan’s hardboiled definition was the court’s 5-4 ruling this week (with Chief Justice John Roberts in dissent alongside his three liberal colleagues) to let stand a Texas law that turns ordinary citizens into de facto bounty hunters empowered to sue anyone who performs or “aids and abets” an abortion on a woman past her sixth week of pregnancy. True, the single-paragraph unsigned majority opinion emphasized that in letting the Texas law take effect the court was not ruling on the statute’s ultimate constitutionality.Texas now has abortion ‘bounty hunters’: Sonia Sotomayor’s scathing legal dissentRead moreAnd yet. As Justice Sonia Sotomayor wrote in a passionate dissent, “Presented with an application to enjoin a flagrantly unconstitutional law … a majority of justices have opted to bury their heads in the sand.” President Biden powerfully joined those critical of the court’s decision. Declaring that the ruling promises to “unleash [..] unconstitutional chaos”, Biden promised to work to protect the constitutional right to abortion first recognized in Roe v Wade.How might the president do so? Back in April, Biden empaneled a bipartisan commission of scholars, lawyers and jurists tasked with exploring the issue of “court packing”. The commission is scheduled to submit its report later this fall, which returns us to Justice Brennan’s five wiggling fingers.There is nothing magical about the number nine, the present size of the supreme court. The constitution provides that there shall be “one supreme Court”, but says nothing about the court’s size or composition; these are matters left to Congress. In the early decades of the nation, Congress changed the number of justices six different times, from as few as five to as many as 10, before settling on nine in 1869. In 1937, Franklin Roosevelt, frustrated by a reactionary supreme court that resisted his New Deal initiatives, proposed expanding the supreme court’s bench to 15. Congress correctly rejected that court-packing plan as an attempt to manipulate the court to generate specific outcomes.Biden, however, could now fairly and legitimately propose expanding the number of justices from nine to 11. Such an expansion would counterbalance the abuse of constitutional rules that enabled the confirmation of Neil Gorsuch and Amy Coney Barrett and the installation of the hardcore conservative bloc responsible for the Texas decision.This is not to say the effort would be successful. Assuming Biden could find support in the House, expanding the number of justices would require Democratic senators to first eliminate the filibuster, something that Senators Joe Manchin and Kyrsten Sinema staunchly oppose. And we know that Republican lawmakers, led by Mitch McConnell, would accuse Biden of dangerously politicizing the court.To which we may respond: pah-leeze. After all, it was McConnell who, in the wake of Antonin Scalia’s death nine months before the 2016 election, announced: “The American people should have a voice in the selection of their next supreme court justice. Therefore, this vacancy should not be filled until we have a new president.”Armed with a rule of his own creation and a Republican Senate majority, McConnell flagrantly refused to grant a hearing to Merrick Garland, Barack Obama’s nominee to fill the supreme court vacancy ultimately filled by Trump’s choice, Neil Gorsuch.But when Ruth Bader Ginsburg died, six weeks before the 2020 election, McConnell suddenly pronounced a new rule. It turns out the American people should not have a voice in the selection of supreme court justice in an election year when the incumbent president is a Republican.The confirmation of Amy Coney Barrett did more than install a supermajority of conservatives in the court. The locus of power on the court shifted from the more mainstream conservatism of Justice Roberts to the more ideological and rigid extremes of Clarence Thomas and Samuel Alito.As the Texas ruling underscored, this is a court far more conservative than the nation whose constitutional meanings it is meant to protect. And it is a court that owes its composition to the triumph of anti-democratic processes, in which a majority of its members were nominated by a president who lost the popular vote and/or were confirmed by a bloc of senators elected by a minority of voters.In proposing the addition of two additional justices, Biden could hardly be charged with tit-for-tat politics or with further politicizing the court. Conservatives would continue to enjoy a 6-5 majority, but with Justice Roberts, a stalwart institutionalist, serving as the swing vote. Were Biden to succeed, such an expansion would make the court more legitimate, not less.
      Lawrence Douglas is the author, most recently, of Will He Go? Trump and the Looming Election Meltdown in 2020 and is also a contributing opinion writer for the Guardian US. He teaches at Amherst College
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      Feminists warned about America’s abortion crisis for years. We were written off as hysterical

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      OpinionAbortionFeminists warned about America’s abortion crisis for years. We were written off as hystericalMoira DoneganWhy has the effective end of Roe v Wade been met with shock by so many corners of political life? Sat 4 Sep 2021 06.00 EDTLast modified on Sat 4 Sep 2021 06.01 EDTThis was predictable. In fact, it was predicted. The end of Roe v Wade and nationwide protections for abortion rights became likely in 2016, the night that Donald Trump was elected. It became inevitable in 2018, when Anthony Kennedy, the fifth pro-choice vote, retired and handed his seat to Trump to fill. But the end of nationwide legal abortion in America has been coming for decades, and there has been no ambiguity about the appetite for Roe’s overturn on the American right. And crucially, feminists have been sounding the alarm for decades, warning in increasingly desperate terms that gradual erosions of Roe’s protections in the law had led to a rapid and widespread loss of abortion access on the ground.Republicans seethe with violence and lies. Texas is part of a bigger war they’re waging | Rebecca SolnitRead morePerhaps the form of Roe’s eventual downfall was a surprise. Few thought that Roe’s fatal case would be over Texas’s new abortion law, with its privatized enforcement system of bounty-hunting civil suits designed to elide judicial review. And among a sea of legal observers, only Cardozo law professor Kate Shaw seems to have predicted that the court would dispose of a long-established constitutional right in so rushed and perfunctory a proceeding as a late-night order on the shadow docket. But this outcome was never in doubt. Trump promised to appoint antichoice judges. He kept that promise. This week his three appointees – Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, joined by Samuel Alito and Clarence Thomas – did what all of them know they were put on the court to do. They allowed the first state to outlaw abortion within its borders.So why has the effective end of Roe v Wade, coming in a one paragraph order in the wee hours of Thursday morning, been met with shock by so many corners of political life? The Republican party’s control of the federal judiciary had left little doubt that those judges most inclined to strip women of their rights would have both the power and the opportunity to do so. And yet politicians, pundits, and legal observers had for years assured the public that the justices would not gut abortion rights, despite the clear evidence that they would. We were assured that the Republicans on the court were less determined to gut Roe than they appeared to be, and that those worried about the future of abortion rights were overreacting.The court would not gut Roe, we were told by politicians and academics, because they said they wouldn’t. Kavanaugh, the ruddy-faced Trump appointee, had referred to Roe as “important precedent”. That this rather tepid comment was a disingenuous bit of posturing meant to ease his confirmation to the court was evident to everyone. Nevertheless, defenders of the confirmation process implored the public to treat it as if it had been uttered in good faith.In a speech announcing her decision to vote to confirm Kavanaugh, Senator Susan Collins said that she believed Kavanaugh would not vote to overturn Roe, or to gut it procedurally, because “his views on honoring precedent would preclude attempts to do by stealth that which one has committed not to do overtly.” Of course, the court, with Kavanaugh’s help, did effectively overturn Roe “by stealth” – in an unsigned order in the middle of the night.Of the feminists who opposed his nomination, Collins was dismissive, even patronizing. “We have seen special-interest groups whip their followers into a frenzy by spreading misrepresentations and outright falsehoods about Judge Kavanaugh’s judicial record.” She condemned these women’s concerns as “over-the-top rhetoric and distortions”.The court would not gut Roe, we were told by the legal world, because the justices were too professional. Barrett, the third of Trump’s appointees, had been a member of an antichoice faculty group while a law professor at Notre Dame. She had given a lecture to a Right to Life group; she had signed a letter condemning Roe and its “brutal legacy”. And yet despite Barrett’s extremist and evidently very passionately held views on abortion, people posing as serious told us that we could not know how she would vote on abortion rights, that the opinions and worldviews of judges would somehow not affect their legal judgement. “My personal views don’t have anything to do with the way I would decide cases,” Barrett told Senator Patrick Leahy when she was asked about her lengthy history of anti-abortion advocacy. The statement insulted both Leahy’s intelligence, and ours.And yet as conservative, antichoice judges consolidated their power, several myths about the court persisted. We were told that the people who looked like rabidly conservative justices were really reasoned moderates; or that at least they would be professional and impartial in their judgements; or that at least the removal of abortion rights would move slowly. These myths were presented as the only serious way to understand the court. Feminist claims that what appeared to be happening really was happening – that the judiciary really had been taken over by antichoice zealots, that the ability of women to control their own bodies and lives would soon be stripped away – were labeled as delusional and silly. Faith in the integrity of the conservative justices was cast as informed, mature, and intelligent. And it was contrasted with the supposed hysteria of feminists, whose passion and fear was taken as a sign of their own delusion, not as an indication of the seriousness of the problem.This notion, that the only intelligent response to a threat to women’s rights is to be calm, blasé, and preemptively assured that nothing very bad or important will result, has been weaponized with particular insidiousness over the course of the abortion debate during the past five years. In the halls of power, contempt for abortion rights activists was nearly complete.After Kennedy’s resignation, the CNN host Brian Stelter took to social media to scold a liberal activist for her fear of a Roe reversal. “We are not ‘a few steps away from the Handmaid’s Tale’,” he wrote. “I don’t think this kind of fear-mongering helps anybody.” Confronted with women opposed to the confirmation of Kavanaugh, Senator Ben Sasse all but rolled his eyes. There had been, he said, “screaming protesters saying ‘women are going to die’ at every hearing for decades.”The insistence that Roe is not in danger, and that women’s fear is silly, persists even now, after the court has effectively ended Roe. “Now breathe,” wrote the law professor Jonathan Turley in a blogpost urging women’s rights advocates to calm down, as if they were toddlers in the midst of a temper tantrum. “It is ridiculous to say that it was some manufactured excuse for a partisan ruling.”Is it ridiculous? The public has no real reason to believe that the supreme court is acting in good faith – aside from the repeated assurances of supposed experts whose predictions have usually been wrong. Instead, it was the so-called alarmist feminists, the ones warning about manufactured excuses for partisan attacks on abortion rights, who got their predictions mostly right. Maybe these women are not so ridiculous after all. Maybe it’s time to start listening to them.
      Moira Donegan is a Guardian US columnist
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      The Guardian view on the Texas abortion ban: this is not the end | Editorial

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      OpinionAbortionThe Guardian view on the Texas abortion ban: this is not the endEditorialThe supreme court’s refusal to block the law marks a grave blow to the freedom and safety of women Thu 2 Sep 2021 13.45 EDTLast modified on Thu 2 Sep 2021 14.31 EDTThe cruel, vindictive and dangerous law that has taken effect in Texas is much more than the most extreme anti-abortion legislation in the United States. To many, it understandably feels like the beginning of the end – denying women the rights enjoyed under the landmark Roe v Wade ruling, which established that abortion is legal before the foetus is viable outside the womb, at around 24 weeks. It will further embolden the religious right. Though polling suggests the majority of Americans believe that terminations should be legal in most or all cases, this is already the worst ever legislative year for restrictions.But it is better understood as the end of the beginning. The right to abortion has, in practice, been systematically dismantled through methods ranging from intimidation to cynical regulation. This moment is the culmination of the first stage in a decades-long war on the rights of women, made possible by Donald Trump’s appointment of judges known to support restricting reproductive rights. A divided supreme court refused to block the legislation while the legal battle over it plays out.This is a near-total abortion ban, with an exemption only for medical emergencies. The six-week limit in practice applies not from fertilisation, but from six weeks after a woman’s last period, used by doctors to date pregnancies – when most women will not even know they are pregnant. Up to 90% of the state’s procedures happened after that time. International evidence, and America’s own past, testifies that it will not stop abortions. It will push them underground, endangering women’s health and lives. It is an attack on the rights of all women, but above all will punish those who are poor and black, who already struggled to access services and will not be able to travel outside the state easily. It will hurt women who want to control their own bodies, including survivors of incest, rape and abuse. Many states have enacted similar laws, which have been blocked. But this one is especially egregious. It has used the architecture of the state to promote the rule of the mob. It prohibits officials from enforcing it, instead deputising ordinary citizens to sue anyone for suspected violations. While designed this way to make legal challenges harder, it is part of the broader turn of Trump Republicans towards vigilantism and away from democratic institutions. By promising a $10,000 bounty to anyone who sues successfully, it encourages the greedy as well as vindictive ex-partners and zealots to act. Not only abortion providers, but anyone who “aids and abets” an abortion is liable; it appears that even someone who drives a woman to a clinic could be targeted. There is no redress against malicious suits, even in cases where the plaintiff has a past history of similar claims. The result is that doctors and providers who comply with the law can still be put out of business by vexatious claims.Justice Sonia Sotomayor’s blistering dissent attacked the supreme court’s inaction in the face of “a breathtaking act of defiance – of the constitution, of this court’s precedents and of rights of women seeking abortions throughout Texas”. But she is in the minority as the court prepares to rule on a separate case – Mississippi’s ban on most abortions after 15 weeks – which anti-abortion activists see as a chance to overturn Roe v Wade. If that happens, bans will automatically come into force under trigger statutes enacted by multiple states. Others would be able to enforce pre-Roe v Wade bans that remain on their books.This law, like the wider anti-abortion drive, hurts women’s freedom, their health and even their lives. It has been achieved through the relentless efforts of activists who are not merely egging on but also funding others around the world. Meeting and defeating these challenges will require an equally committed, comprehensive and ambitious campaign. The opponents of women’s freedom will not stop. Defenders cannot either. This law will galvanise them.TopicsAbortionOpinionWomenUS supreme courtHealthRepublicansUS politicsLaw (US)editorialsReuse this content More