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      Trump’s judges will call the shots for years to come. The judicial system is broken | Shira A Scheindlin

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      OpinionUS politicsTrump’s judges will call the shots for years to come. The judicial system is brokenShira A ScheindlinIn just one term, Trump was able to appoint 33% of US supreme court justices and 30% of US appellate judges. They’ll serve for life Mon 25 Oct 2021 06.15 EDTLast modified on Mon 25 Oct 2021 14.44 EDTFor many Americans, Donald Trump will be remembered as the first US president to be twice impeached, to have supported, or even incited, an insurrection against democracy, and for allowing thousands to die due to his abject failure to lead the nation in fighting the Covid-19 pandemic. But for many other Americans, his true legacy will be his enduring impact on the third branch – the federal judiciary.Americans don’t have faith in the US supreme court any more. That has justices worried | Russ FeingoldRead moreThe expansion of executive power, and the diminishment of legislative power due to partisan gridlock, is a well-known story. Governing by executive order has become the new normal. But it is the stealthy and steady rise of the power of the judicial branch that has caught many Americans off-guard.Federal judges have life tenure. Once they are appointed they remain in office until they retire or die. The president appoints every federal judge and these appointments have very long-term consequences. A look at Trump’s record of appointments reveals a relentless commitment to cementing his peculiar and idiosyncratic ideology. In short, he and his sidekick, former majority leader Mitch McConnell, did all they could to entrench an actively conservative judiciary.The numbers tell a clear story. There are a total of 816 active federal judges comprising the supreme court, the 13 appellate courts, and 91 district courts. In just one term Trump was able to appoint 28% of those judges due to past and continuing vacancies. Most importantly, he appointed 33% of America’s nine supreme court justices and 30% of the appellate judges. The vast majority of his appointments were white males – not one of his 54 appellate judges is Black. But what really stands out is the age of his appointees. The average age of his appellate judges was 47 (five years younger than those selected by Barack Obama). Six of those were in their 30s, and 20 were under 45. By contrast, of the 55 appellate judges picked by Obama – in eight years, not four – none were in their 30s and only six were younger than 45.Trump’s judicial appointments will shape American jurisprudence for decades to come. The Federal Judicial Center has found that this age disparity means that Trump judges will serve 270 more years than Obama’s judges, and they will decide thousands more cases. Moreover, the average tenure for a supreme court justice has increased from 15 years in the early 1970s to 27 years in more recent years, due in large part to the younger age of the justices at the date of appointment.The Trump legacy of judicial appointments is most apparent in the recent behavior of the supreme court. A new term has been coined – the shadow docket – which refers to the sudden uptick in emergency requests filed by the government. In the 16 years preceding the Trump presidency only eight such requests were filed, and, of those, only four were granted. By contrast, during Trump’s four-year term, 41 such applications were made, of which 24 were granted – a 70% success rate that supported Trump’s policies. These cases are heard without full briefing, without oral argument, and often result in a single-sentence order as opposed to a full reasoned opinion.One such decision overturned, by a 5-4 order, a Wisconsin trial court order allowing an extension for the receipt of absentee ballots. The last-minute supreme court decision issued the day before the election caused chaos and confusion. A second example of how the now safely pro-Trump court supported his policies involved his administration’s rule prohibiting migrants from seeking asylum in the US before seeking it in the countries through which they had travelled. The lower court suspended enforcement of this unprecedented rule, but the supreme court allowed the ban to take effect immediately even as the case proceeded through the lower courts. Another particularly disturbing example involved four death penalty cases where a lower court halted four executions because the use of pentobarbital to kill the prisoners would constitute cruel and unusual punishment. In a 5-4 ruling, issued after 2am, the stay was overturned and at least one of the executions carried out – the first federal prisoner to be executed in 17 years.Most recently, in yet another emergency appeal, the supreme court by a 5-4 margin, refused to block the newly enacted Texas law banning abortion after six weeks of pregnancy, allowing that rule to be enforced for the foreseeable future. This emergency request was brought by abortion providers after the very conservative fifth circuit court of appeals, to which Trump had appointed six judges, stopped the trial court from holding a hearing as to whether the new law could take immediate effect. A month later a trial judge blocked the law from taking effect and the fifth circuit promptly reversed. The Department of Justice is now appealing that decision to the supreme court.In each of these cases, the supreme court deprived the affected parties of a chance to be fully heard and often deprived the appellate courts of the chance to review the ruling of the trial courts. This unprecedented haste, and acquiescence to the importuning of the executive branch, gave the appearance that the supreme court was no longer an independent and co-equal branch of government but rather a partner of the Trump-led executive branch.Many Americans now question the court’s integrity and are jumping on the bandwagon of seeking supreme court reform. Proposals for reform include imposing term limits on supreme court justices to ensure that no one justice or group of justices controls the outcome of cases for decades to come. It is noteworthy that the three justices Trump appointed were 48, 49 and 53 at the time they joined the court, guaranteeing decades of influence by those justices. A variation on this proposal would require mandatory retirement by all federal judges at the age of 70 or 75.Another more controversial proposal is to expand the court. This proposal is, in part, a response to the widespread belief that two of President Obama’s appointments were stolen. The first was the vacancy caused by the death of Antonin Scalia. Obama’s nominee to fill that seat was stonewalled by Republicans for 10 months, purportedly due to the proximity to the upcoming presidential election, while the second was the record-breaking speedy confirmation of Amy Coney Barrett just days before a presidential election.Other proposals include reform of the shadow docket by requiring briefing, argument, and a reasoned opinion on all emergency matters; imposing a code of conduct and ethics on supreme court justices similar to that binding lower court judges; requiring a 6-3 super-majority before finding a federal statute unconstitutional; and requiring that Congress consider any presidential nomination within a fixed period of time – perhaps 45 days after nomination.The growing support for some or all of these reforms by many non-partisan organizations, academics, and Democratic politicians, is a response to the discontent created by Trump’s unprecedented manipulation of the appointment process for federal judges, designed to ensure that his politics and policies will control the lives of future generations. Trump’s brazen capture of the supreme court, engineered with the help of the Republican Senate majority, requires a bold response. If reform efforts fail, which is likely given the arcane Senate rules, Trump will have succeeded in entrenching his regressive, if not destructive, political agenda. This may be good for Trump’s legacy but it is surely bad for the country.
      Shira A Scheindlin is a former United States district judge for the southern district of New York. She is the co-chair of the board of the Lawyers Committee for Civil Rights Under Law and a board member of the American Constitution Society
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      Trump files lawsuit to block release of Capitol attack records

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      US Capitol attackTrump files lawsuit to block release of Capitol attack recordsEx-president challenges Biden’s decision to waive executive privilege that protects White House communications Associated Press in WashingtonTue 19 Oct 2021 04.38 EDTLast modified on Tue 19 Oct 2021 04.55 EDTDonald Trump has sought to block the release of documents related to the Capitol attack on 6 January to a House committee investigating the incident, challenging Joe Biden’s initial decision to waive executive privilege.In a federal lawsuit, the former president said the committee’s request in August was “almost limitless in scope” and sought many records that were not connected to the siege.He called it a “vexatious, illegal fishing expedition” that was “untethered from any legitimate legislative purpose”, according to the papers filed in a federal court in the District of Columbia.Bannon and other top Trump officials face legal peril for defying subpoenasRead moreTrump’s lawsuit was expected – as he had said he would challenge the investigation – and at least one ally, Steve Bannon, has defied a subpoena.But the legal challenge went beyond the initial 125 pages of records that Biden recently cleared for release to the committee.The suit, which names the committee as well as the National Archives, seeks to invalidate the entirety of the congressional request, calling it overly broad, unduly burdensome and a challenge to separation of powers. It requests a court injunction to bar the archivist from producing the documents.The Biden administration, in clearing the documents for release, said the violent siege of the Capitol more than nine months ago was such an extraordinary circumstance that it merited waiving the privilege that usually protected White House communications.Trump’s lawsuit came the evening before the panel was scheduled to vote to recommend that Bannon be held in criminal contempt of Congress for his defiance of the committee’s demands for documents and testimony.In a resolution released on Monday, the committee asserts that the former Trump aide and podcast host has no legal standing to rebuff the committee, even as Trump’s lawyer has asked him not to disclose information.Bannon was a private citizen when he spoke to Trump before the attack, the committee said, and Trump had not asserted any such executive privilege claims to the panel.The resolution lists many ways in which Bannon was involved in the lead-up to the insurrection, including reports that he encouraged Trump to focus on 6 January, the day Congress certified the presidential vote, and his comments on 5 January that “all hell is going to break loose” the next day.“Mr Bannon appears to have played a multifaceted role in the events of January 6th, and the American people are entitled to hear his first-hand testimony regarding his actions,” the committee wrote.Once the committee votes on the Bannon contempt resolution, it will go to the full House for a vote and then on to the justice department, which will decide whether to prosecute.In a letter obtained by the Associated Press, the White House also worked to undercut Bannon’s argument. The deputy counsel, Jonathan Su, wrote that the president’s decision on the documents applied to Bannon, too, and “at this point we are not aware of any basis for your client’s refusal to appear for a deposition.“President Biden’s determination that an assertion of privilege is not justified with respect to these subjects applies to your client’s deposition testimony and to any documents your client may possess concerning either subject,” Su wrote to Bannon’s lawyer.Bannon’s attorney said he had not yet seen the letter and could not comment on it.While Bannon has said he needs a court order before complying with his subpoena, the former White House chief of staff Mark Meadows and former White House and Pentagon aide Kashyap Patel have been negotiating with the committee. It is unclear whether a fourth former White House aide, Dan Scavino, will comply.The committee has also subpoenaed more than a dozen people who helped plan Trump rallies before the siege, and some of them have said they would turn over documents and give testimony.Lawmakers want the testimony and the documents as part of their investigation into how a mob of Trump supporters stormed the Capitol building in a violent effort to halt the certification of Biden’s election win.The committee demanded a broad range of executive branch papers related to intelligence gathered before the attack, security preparations during and before the siege, the pro-Trump rallies held that day and Trump’s false claims that he won the election, among other matters.Trump’s lawsuit says the “boundless requests included over 50 individual requests for documents and information, and mentioned more than 30 individuals, including those working inside and outside government”.The files must be withheld, the lawsuit says, because they could include “conversations with (or about) foreign leaders, attorney work product, the most sensitive of national security secrets, along with any and all privileged communications among a pool of potentially hundreds of people”.The suit also challenges the legality of the Presidential Records Act, arguing that allowing an incumbent president to waive executive privilege of a predecessor just months after they left office is inherently unconstitutional.Biden has said he would go through each request separately to determine whether that privilege should be waived.While not spelled out in the constitution, executive privilege has developed to protect a president’s ability to obtain candid counsel from his advisers without fear of immediate public disclosure and to protect his confidential communications relating to official responsibilities.But that privilege has had its limitations in extraordinary situations, as exemplified during the Watergate scandal, when the supreme court ruled it could not be used to shield the release of secret Oval Office tapes sought in a criminal inquiry, and after 9/11.Monday’s lawsuit was filed by Jesse Binnall, an attorney based in Alexandria, Virginia, who represented Trump in an unsuccessful lawsuit last year seeking to overturn Biden’s victory in Nevada. Trump and his allies have continued to make baseless claims about voter fraud in the 2020 election.Trump’s suit quotes from the supreme court’s 2020 ruling in a case by House committees seeking the then sitting president’s tax returns and other financial records. But that case involved courts enforcing a congressional subpoena. The high court in that case directed lower courts to apply a balancing test to determine whether to turn over the records. It is still pending.The White House spokesperson Mike Gwin said: “As President Biden determined, the constitutional protections of executive privilege should not be used to shield information that reflects a clear and apparent effort to subvert the constitution itself.”The select committee did not have immediate comment.TopicsUS Capitol attackDonald TrumpUS elections 2020US politicsJoe BidenTrump administrationBiden administrationnewsReuse this content More

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      The courts have a new chance to block Texas’s abortion law. They must take it | Laurence Tribe, Erwin Chemerinsky, Jeffrey Abramson and Dennis Aftergut

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      OpinionUS supreme courtThe courts have a new chance to block Texas’s abortion law. They must take itLaurence H Tribe, Erwin Chemerinsky, Jeffrey Abramson and Dennis AftergutSB 8 not only stripped Texan women of their rights under Roe v Wade, it made a mockery of the US constitution and the supremacy of the federal courts Sun 17 Oct 2021 06.24 EDTLast modified on Sun 17 Oct 2021 06.25 EDTSadly, predictably and appallingly, on October 14, a three judge panel of the US court of appeals for the fifth circuit has allowed Texas’s “Bounty-Hunter” anti-abortion law to go back into effect while the court considers the case on the merits. Every day that the fifth circuit panel’s unlawful order keeps the statute in operation brings irreversible injury to women in Texas. US Attorney General Merrick Garland has properly decided to seek emergency relief from the US supreme court.The justice department is right to accuse the State of Texas of seeking to destroy not only abortion rights but also the foundation of our constitutional Republic. In a nation whose history is fraught with battles between states’ rights and national sovereignty, the case of United States v Texas raises issues basic to our national compact.Texas set the current controversy in motion by passing SB8, an anti-abortion law that legislators knew was unconstitutional. In doing so, they violated what Chief Justice Marshall explained two centuries ago was the bedrock of our young nation’s rule of law – that our constitution reigns supreme.“Senate bill 8 (SB8) flouts that principle,” Monday’s DoJ brief in the fifth circuit reads. The law does that “by blatantly violating constitutional rights and severely constraining judicial review of its unconstitutional restrictions.” That “sets this case apart.”Put bluntly, Texas has sought not only to virtually eliminate women’s rights under Roe v Wade, but also to reduce our Constitution’s supremacy to a relic. Those twin dangers are why the stakes are high in the suit by the United States to enjoin the Texas anti-abortion statute. And that’s why the October 14 Fifth Circuit order keeping the law in effect is so troubling.This case stands on a very different footing from the one that a conservative 5-4 supreme court rejected on September 1 on procedural grounds. With the United States now suing, there is plenty of precedent for the federal government to come into court challenging a state law before it is enforced, and a state cannot hide behind sovereign immunity as a defense. The cases that the fifth circuit cited on Friday as reasons for refusing to block SB8 were entirely inapplicable because they have no relevance to a suit brought by the United States to force a recalcitrant state to obey the constitution. Texas’s reason for not arguing SB8’s constitutionality is obvious. The supreme court has affirmed many times since Roe v Wade in 1973 that states cannot prohibit abortions before the fetus is viable and capable of surviving outside the womb. Viability occurs at about the 24th week of pregnancy.Nonetheless, Texas’s law makes all abortions illegal, without exceptions for rape or incest, once fetal cardiac activity can be detected – usually around six weeks after a woman’s last menstrual period.The fact that the law is enforced by vigilantes’ private civil suits rather than by government prosecutions only aggravates its unconstitutionality. It is a Texas law that opens Texas courts to these bounty-hunting lawsuits. Since 1948, it has been settled law that individuals may not use state courts to deprive others of constitutional rights.On Wednesday, 6 October, in a 113-page opinion, with some of the strongest language ever heard from a federal judge, US district court Judge Robert Pitman blocked Texas from enforcing this near-total ban on abortions. Judge Pitman’s opinion explained that Texas concocted a transparent “scheme” to “end run” the constitution. The court laid out the elaborate “machinations” Texas devised to avoid a court doing anything about a clearly unconstitutional law.Judge Pitman also documented cases of women – sometimes minors – suffering “grievous wrong”, as they are forced to carry unwanted pregnancies or travel, if they can afford it, to another state to access their constitutional rights: “The court can only speculate as to the hardships” these women have “had to endure”.Having temporarily reinstated SB 8, the Fifth Circuit noted that it will expedite review of the merits of Judge Pitman’s decision. That could affect the supreme court’s consideration of emergency relief to the United States. Whether now or later, this case will land on the court’s docket. Even justices who disagree with Roe v Wade should recognize the dire implications of letting any state deliberately design a blatantly unconstitutional statute in such a way that no court can block its enforcement until it’s too late to prevent the statute from doing irreparable harm by deterring people from exercising their rights.In the 1950s, states tried to disregard supreme court decisions interpreting the constitution when they engaged in a concerted effort to thwart desegregation orders. Then, too, the United States government interceded against the states. When the Arkansas governor Orval Faubus attempted to block desegregation, the supreme court, in Cooper v Aaron, unanimously and emphatically reaffirmed the supremacy of the constitution and federal law.The court declared: “No state legislator or executive or judicial officer can war against the constitution without violating his undertaking to support it.” All nine justices joined in declaring: “If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.”That would be the result if Texas could destroy the constitutional rights of women before any court could enjoin its devious scheme. To ensure the constitution remains the supreme law of the land, and to protect all rights it guarantees, the fifth circuit and the supreme court must uphold Judge Pitman’s injunction.
      Laurence H Tribe is the Carl M Loeb University Professor emeritus and a professor of constitutional law emeritus at Harvard Law School. Erwin Chemerinsky is the dean of the School of Law at the University of California, Berkeley. Jeffrey Abramson is Professor of Law and Government at the University of Texas, Austin. Dennis Aftergut is a former federal prosecutor
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      To protect the supreme court’s legitimacy, a conservative justice should step down | Lawrence Douglas

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      OpinionUS politicsTo protect the supreme court’s legitimacy, a conservative justice should step downLawrence DouglasIf presidents do not get to replace justices in an election year, then Coney Barrett’s confirmation is illegitimate; if presidents do, then Gorsuch’s is illegitimate. You can’t have it both ways Tue 21 Sep 2021 06.15 EDTLast modified on Tue 21 Sep 2021 06.19 EDTIn Planned Parenthood v Casey, a landmark decision from 1992, the US supreme court memorably noted that its “power lies … in its legitimacy”. If the people come to question the court’s legitimacy, they will cease to accept the “the Judiciary as fit to determine what the Nation’s law means and to declare what it demands”.It appears that Justices Clarence Thomas and Amy Coney Barrett share these worries. In separate remarks this month, both justices sought to assure the public that, in Coney Barrett’s words, “this court is not comprised of a bunch of partisan hacks”. Thomas said much the same, seeking to disabuse his listeners of the belief that justices “are just always going right to [their] personal preference”.Triggering the justices’ concerns was the withering criticism that has been directed at the court’s recent decision to leave in place, at least for now, a Texas law that turns ordinary citizens into de facto bounty hunters empowered to sue anyone who performs or “aids and abets” an abortion for a woman past her sixth week of pregnancy. The Texas law cannot be squared with the court’s ruling in Planned Parenthood, which recognized that a “woman’s right to terminate her pregnancy before viability … is a rule of law and a component of liberty we cannot renounce”. To renounce that principle, the court warned, would cause “profound and unnecessary damage to the Court’s legitimacy, and to the Nation’s commitment to the rule of law”. But that is precisely what the court did in letting Texas’s transparently unconstitutional law take legal effect.But far from recognizing or examining their own role in contributing to the erosion of the court’s legitimacy, the two justices turned to other precincts to assign blame. It’s the media, Thomas whined, that are “destroying our institutions” – this from a justice who dissented from the court’s refusal to hear Trump’s challenge to a Pennsylvania state court decision that extended the deadline for the receipt of mail-in ballots by three days. Thomas acknowledged that the volume of mail-ins at stake had no material bearing on the outcome of the Pennsylvania race; all the same, he was prepared – in a stunning display of either partisanship or tone-deafness – to have the supreme court, scant weeks after the 6 January insurrection, offer tacit support to Trump’s attack on the 2020 election results. And, in now blaming the media for the court’s self-inflicted wounds, Thomas is effectively echoing Trump’s toxic rhetoric about “fake news”. Who is the institution-destroyer here?Alas, Justice Coney Barrett joined Thomas in attacking the press. The media, she charged, makes decisions such as the Texas case “seem results-oriented”. It is worth noting that the justice made her remarks at the McConnell Center at the University of Louisville, with Senator Mitch McConnell, the center’s namesake, in attendance. It was McConnell, of course, who in the wake of Ruth Bader Ginsburg’s death six weeks before the 2020 election, pushed through Coney Barrett’s nomination, in transparent violation of the very justification he had offered four years earlier to deny President Obama the right to name a justice to fill a court vacancy that ultimately went to Neil Gorsuch. That McConnell’s cynical manipulation of the rules was designed to compose a court that would produce dependably conservative results appears lost on Coney Barrett. Indeed, it was her vote that was determinative in the Texas case. Had Ginsburg still been on the court, the decision would have gone 5-4 the other way. McConnell secured the results he wanted.If Coney Barrett were genuinely concerned with promoting the court’s legitimacy, she might consider resigning. Or rather, she and Gorsuch might agree to flip a coin to decide who should leave the court. If presidents do not get to replace justices in an election year, then Coney Barrett’s confirmation is illegitimate; and if presidents do get to replace, then Gorsuch’s confirmation must be illegitimate. You can’t have it both ways – not if you believe that the composition of the court should be the product of a principled process.Coney Barrett appears to willfully overlook the fact that she has been elevated to a rarefied position through a tarnished process that will taint all decisions in which her vote plays a crucial role. And just as we might hope that a person who, through no fault of their own, has come into possession of a good not rightfully theirs, would return that object, Coney Barrett and Gorsuch could do the right thing for the nation by agreeing that one of them should step down.Clearly, this isn’t going to happen. Yet it would powerfully bolster the legitimacy of a court the very composition of which smacks of illegitimacy.
      Lawrence Douglas is the author, most recently, of Will He Go? Trump and the Looming Election Meltdown in 2020. He is a contributing opinion writer for the Guardian US and 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