How Tikvah First Things Ross Douthat Has Warped the Republic: With a Special Troll the Libs Appearance by Bari Weiss
David Shasha
How Tikvah First Things Ross Douthat Has Warped the Republic: With a Special Troll the Libs Appearance by Bari Weiss
Back in February 2021 I posted a bunch of resources to help understand the Texas “Get ‘Em Any Way You Can” Bounty Hunter Abortion Law, in honor of Trumpscum Jew Rabbi Meir “Mike Lee is My BFF” Soloveichik:
https://groups.google.com/g/davidshasha/c/TqrR8hK29Fw/m/hqN7peeKBQAJ
And as we have recently learned, First Things Tikvahworld has gotten a big lift from the Trumpscum SCOTUS on the matter of Abortion:
https://www.politico.com/news/2022/05/02/abortion-draft-supreme-court-opinion-key-passages-00029470
The big shock in all this is that, like Private Santiago in “A Few Good Men,” who upon learning that he was being transferred off of Gitmo on the “order” of Colonel Jessup, remained completely silent about the thing he wanted most in the world!
Until he was murdered.
Similarly, the Anti-Abortion Crusaders have largely kept mum on the Alito draft:
https://www.nytimes.com/2022/05/06/us/politics/republicans-abortion.html
But they did, however, scream quite loudly on the leak of the document:
https://nypost.com/2022/05/03/gop-demands-probe-into-scotus-abortion-draft-leak/
Would that they cared as much about the 1/6 Lysol Insurrection:
And so it was that when the Alito draft was posted, Bari Weiss went into full FOX mode:
https://bariweiss.substack.com/p/the-shocking-supreme-court-leak?s=r
Shocking!
What is in fact shocking is her expectedly disgusting article which re-litigates the entire Right Wing extremist understanding of recent SCOTUS history (Bork me again!), with an additional Rufo Institute review of our legal system. Which, of course, is all about Left Wing Fascism!
As we process Weiss’ usual sickening Neo-Con extremism, we must turn to the real Grand Poobah of Abortion Rights, her former NYT colleague Ross Douthat.
We got a sense of Douthat’s SCOTUS obsessions back in 2018, when he excoriated Anthony Kennedy, a Reagan appointee, for not overturning Roe:
https://www.nytimes.com/2018/06/30/opinion/sunday/anthony-kennedys-imperial-legacy.html
And, like FOX and Weiss, Douthat’s first reaction to the radical Anti-Roe draft was not to praise the Catholic Fascist Alito and Pornographer Thomas and Rapist Kavanaugh and Whore of Trump Coney Barrett, but to do the LEAK DANCE:
https://www.nytimes.com/2022/05/04/opinion/supreme-court-roe-abortion.html
He waited for his next column to unload his Opus Dei mania on us:
https://www.nytimes.com/2022/05/07/opinion/how-roe-warped-the-republic.html
We must recall that Douthat has gone after “Liberal” Catholics like the current Pope:
https://groups.google.com/g/davidshasha/c/l3si50GRE6E/m/bHicmKlRDgAJ
It is another German Reformation!
https://www.nytimes.com/2021/05/11/opinion/germany-catholic-church-pope-francis.html
To be honest, as I processed the horrifying Alito document, with its loyal promise to support Back Alley Abortions, Rape, and Incest, I knew that Douthat would deliver, and indeed, he has not disappointed.
And as we see Christian Fascist Theocracy come ever closer, it behooves us to better understand the vile thoughts of people like Weiss and Douthat who would destroy our Constitutional system, and merrily erode our Civil Rights in the holy name of Jesus Christ.
It is the Tikvah way!
David Shasha
The Shocking Supreme Court Leak
By: Bari Weiss
In March, we ran a piece by the reporter Aaron Sibarium called “The Takeover of America’s Legal System.” The story made the case, backed up by exhaustive reporting, that just as education and the press and medicine were being transformed from within, so too, was the law. And those who comforted themselves with the notion that the law would be a bulwark against the new dogma were in for a rude awakening.
Aaron showed that the young lawyers who were entering the most elite legal institutions in the country—law firms and law schools and courts—didn’t necessarily share the ethos of those institutions. In fact, many of them explicitly seek to revolutionize them.
My thoughts immediately went to this story when I saw the shocking headline last night by Politico: The Supreme Court plans to overturn Roe. We know that because someone leaked what appears to be an initial draft of the majority opinion of a decision that was expected to land in late June.
You can read the entire thing here.
The opinion, written by Justice Samuel Alito and joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, holds that “Roe was egregiously wrong from the start.” It goes on: “We hold that Roe and Casey”—the 1992 decision that upheld Roe, which passed in 1973—“must be overruled.” More: “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
Less than two hours after Politico dropped the story, CNN reported that Chief Justice John Roberts does not want to overturn Roe, but was willing to uphold the Mississippi law that would ban abortion at 15 weeks of pregnancy. Who knows what could leak next.
From what I can see, this is a shattering event on three levels. Substantively, politically, and institutionally.
Substantively. If indeed this draft opinion becomes the law, what will it mean for American women to live in a country where Roe is overturned and abortion is kicked back to the states? What will it mean practically? What would it mean for women in the 13 states where abortion would become immediately illegal? What would it mean for the doctors who perform those abortions, including in cases of rape and incest? Or in the case of ectopic pregnancies? And other unthinkable questions.
Politically. The most obvious take here is that the Democrats were in for a bruising in the midterms and this was leaked by a liberal to galvanize Democrats. Galvanize how? Perhaps to get voters to turn out as if their lives depended on it. Perhaps to pass a law before the midterms legalizing abortion. (Here’s Bernie Sanders on Twitter last night: “Congress must pass legislation that codifies Roe v. Wade as the law of the land in this country NOW. And if there aren’t 60 votes in the Senate to do it, and there are not, we must end the filibuster to pass it with 50 votes.”) Perhaps to reanimate the case for court-packing.
Institutionally. I know several people who have clerked for the Court. And because I am, like every journalist, utterly and shamelessly nosy, I have pressed all of them to share their personal anecdotes about the mysterious men and women in black robes. Sure, they’d share fun details about pick-up basketball, or the famously warm relationship between Scalia and RBG. Maybe, years after the fact, they’d tell a highly curated, well-rehearsed story. But the idea of breathing a word about the actual workings of the court, about a decision that had not yet been made public—that would have appalled every single one of these people, liberal and conservative alike.
How did we go from that ethos to a world in which—leaving the possibility of some kind of Russian or Chinese hack, or a more banal security breach, or someone pulling the draft from the garbage—one or more clerks are undermining the institution itself? (That question is the same whether the leaker was a liberal enraged about the decision, or, less obviously, a conservative, perhaps trying to firm up a fifth vote or somehow pressure the chief justice.)
On the question of abortion—its morality and its legality—I do not think there is a better piece that has been written than on the subject than this one by Caitlin Flanagan. It’s called “The Dishonesty of the Abortion Debate” and I urge you to read it. And, if you haven’t yet, please listen to the conversation I had with Caitlin about abortion on Honestly, which captures where I sit on this fraught issue.
Perhaps you feel torn. Most Americans do: A majority of Americans consistently say they do not want Roe to be overturned . . . and yet a majority of Americans also favor some restrictions on abortion. According to Gallup, less than 30 percent of Americans say that abortion should “generally be legal” in the second trimester. All of which suggests that few people have actually read Roe.
On the question of politics, and the hideous ways this leak and the decision itself will play out, there will surely be much more to say in the coming days. (As I write, the crowd gathered outside the Court is chanting, “Fascist scum have got to go.”) This leak is tremendous news for Democrats, who would spend every moment until the midterms promising to overturn this ruling (and running away from the subject of inflation).
To my mind, though, the question of what this leak means for the institution of the Supreme Court is the most profound one. That is because it captures, in a single act, what I believe is the most important story of our moment: the story of how American institutions became a casualty in the culture war. The story of how no institution is immune. Not our universities, not our medical schools, not legacy media, not technology behemoths, not the federal bureaucracy. Not even the highest court in the land.
The Supreme Court was always the most cloistered governmental institution in America—the one where wisdom and precedent and reverence for our great constitutional tradition outweighed everything else. If there was something sacred that remained, this was it. Yes, there have been leaks from the Court before. But as Politico pointed out, last night’s leak was historic, and not in a good way: “No draft decision in the modern history of the court has been disclosed publicly while a case was still pending.”
I called up one of the smartest professors I know at one of the top law schools in the country, and he echoed that: “To my knowledge, it’s never happened before in the modern history of the court. It is the most serious possible breach.”
Serious, severe, shocking, he said. But in the end, not surprising. Why not? Here’s how he put it: “To me, the leak is not surprising because many of the people we’ve been graduating from schools like Yale are the kind of people who would do such a thing.”
What did he mean by that? “They think that everything is violence. And so everything is permitted.”
He went on: “I’m sure this person sees themselves as a whistleblower. What they don’t understand is that, by leaking this, they violate the trust that is necessary to maintain the institution.”
Perhaps some of you feel that the institution had already been betrayed. That the Court, long before this leak or this explosive decision, had already been diminished. Maybe the refusal to consider Merrick Garland put you over the edge. Or maybe it was the revelations about Clarence Thomas’s wife and January 6th. Or maybe it was the Kavanaugh hearings. How he was grilled. Or that he was nominated. Or maybe it was earlier: Bush v. Gore or Anita Hill or Robert Bork.
This feels different than all of that. Why? Because all of those other instances were moments of outrage bookended by long periods of sobriety and seriousness. They were the exceptions that proved the rule. Now, everything seems to have been turned upside down, and the outrage, the uncontrollable or unslakable partisan fury, seems to have overtaken everything. Our sense of history, our respect for the institution, for norms, for even more basic human things: like trust, devotion, privacy, integrity. Jonathan Turley put it this way late last night: “There appears no ethical rule or institutional interest that can withstand this age of rage.”
To the jaded and hardened who have already crossed over into this new age—an age in which power and winning are the only tests of virtue, and the old ideas, like civility and respect, now seem twee—the leak might seem normal or even necessary. But it is nothing more than the most recent salvo in our race to the bottom.
From Common Sense with Bari Weiss, May 3, 2022
Anthony Kennedy’s Imperial Legacy
By: Ross Douthat
In the American republic’s slow transformation into a judicial-executive dyarchy, with a vestigial legislature that lets the major controversies get settled by imperial presidents and jurists, Anthony Kennedy occupied a particularly important role. He was appointed to the Supreme Court at a time when the Republican Party was officially interested in curbing judicial activism and restoring power to the elected branches of government. As the court’s swing vote, though, he instead consolidated the judiciary’s imperial role — taking the expansive powers claimed by judicial liberals in the Warren era and turning them to his own purposes, his own vision of the common good.
He did this without a particularly coherent constitutional theory, which is why he never attracted the disciples who flocked to Antonin Scalia or the fans who celebrate Ruth Bader Ginsburg as the Notorious RBG. Kennedy preferred to rule the country like an oracle, agonizing behind the scenes but showing neither humility nor rigor in his ultimate decisions — overruling state and federal law more frequently than any justice to his right or left, pontificating in sweeping and self-righteous and faux-poetic prose, seeking to establish the court as the decisive and unifying authority for a sprawling and divided country.
If his constitutional theory was somewhat lacking, though, his guiding ideals were clear. Without being a completely consistent libertarian, he was a general champion of freedom — “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” as his Planned Parenthood v. Casey decision famously put it — across both social and economic spheres. To borrow an overused but still useful word, Kennedy was the modern court’s most “neoliberal” justice, embracing corporate freedom and sexual freedom as a kind of unity, attacking restraints on campaign spending and mandates to buy health insurance in the same spirit as restrictions on pornography or flag-burning or abortion.
I was not a great admirer, as you can no doubt tell. Like most conservatives, I favor a more limited role for our robed archons, I admired Scalia’s originalism precisely because it establishes plausible (if, of course, debatable) limits on judicial activism, and I regard Kennedy’s Casey ruling as a vapid Emersonian effusion, whose paean to individualism was really a license to kill inconvenient innocents. Even when he was right on the merits of an issue, he was still too aggrandizing, too eager to impose his own judgment, too quick to short-circuit legislative debates.
But in the last few years, the years of Obama’s Caesarism and Trump’s caudillo act and Congress’s utter uselessness, I’ve developed a limited sympathy for Kennedy’s imperial approach. If he contributed to our republic’s deformation he did not act alone, and what he delivered was, in some sense, what both the political class and the public increasingly desire from their government: not republican deliberation but quasi-monarchical action.
Politics abhors a vacuum, and judicial activism increasingly fills the empty space created by legislative sclerosis and political cowardice, by the unwillingness of elected representatives to act on controversial issues. This abdication, persistent and ongoing, naturally impels partisans to look to the courts and the executive to act instead. Kennedy answered this desire too readily, but he didn’t invent it, and there were times when he clearly tried to act as the “good emperor” that our decadent system and polarized country may require — by balancing his own liberal rulings on abortion and same-sex marriage, for instance, with subsequent decisions that allowed some space for pro-life activism and protected some religious liberties against the anti-clericalism of the left.
But even if you accept that our country increasingly craves a kind of stabilizing central power, Kennedy’s freedom-first synthesis did not succeed in supplying it. Instead, our age of opioids and suicide and sterility, and the heartland populists and Bronxian socialists that anomie has conjured up, strongly indicates that his neoliberal model needs correction — that the freedom of capital and genitals is not enough for human flourishing, that community and solidarity need to have their day, even if it comes at the expense of certain liberties and transcendentalist idylls.
Here it may be that John Roberts, Kennedy’s likely successor as our First Archon, is better suited than his predecessor to the imperial task. We know that Roberts is more temperamentally cautious than Kennedy, more interested in limited rulings than in sweeping ones. We also know that he’s both more friendly to religious conservatism (witness his Obergefell vote) and more willing to let social-democratic policymaking stand (witness his vote to save Obamacare).
That combination could produce a Roberts court that doesn’t lay down its extraordinary powers — the old republic may be too far gone for that — but manages to use them in a somewhat different style, to further a somewhat more communitarian vision.
After Anthony Kennedy, I don’t expect a court that ceases to be imperial. But I dare to hope for one that rules us a little more wisely than he did.
From The New York Times, June 30, 2018
Why Did the Supreme Court Leak the Draft Opinion?
By: Ross Douthat
What’s unsurprising is that the accelerating politicization of the judiciary that began with Roe itself would overwhelm attempts to sustain an apolitical charisma around the operations of the court. Every development and controversy and scandal along the way — the Robert Bork and Clarence Thomas hearings, the multistage death of the filibuster, the pocket veto of Merrick Garland, the Brett Kavanaugh affair, the liberal enthusiasm for court-packing — cut away some element of the apolitical illusion. The leak of a draft decision, a violation of the secrecy around deliberations, is another escalation, but it’s part of the same pattern, the same trend that’s defined judicial politics for two generations now.
But the mystery lies in the strategy behind the leak.
All we know right now, from the leak and related reporting, is that Samuel Alito’s draft reflected the breakdown of the court about three months ago, when his draft first circulated — five votes to overturn Roe and Planned Parenthood v. Casey, three votes against, John Roberts in the middle. But plenty of decisions have changed between the initial vote and the final ruling, including the Obamacare decision in 2012 (where Roberts switched sides) and Casey itself (where Anthony Kennedy wrote the decision upholding abortion rights after initially voting to overturn Roe). And in this case, it always seemed imaginable that an initial stark split would give way, through some kind of intra-judicial persuasion, to the kind of minimalist ruling that Roberts in particular favors.
So if you were simply following a crude strategic logic, the fact that what’s been leaked is a draft from months ago might suggest that a leaker on the conservative side hopes to freeze a wavering justice — Kavanaugh being the obvious candidate — into their initial vote, by making it seem like the very credibility of the court rests on their not being perceived to cave under external pressure.
For support for this theory, look no further than an editorial last week in The Wall Street Journal, warning that Roberts might be “trying to turn” some of his colleagues toward a more modest ruling, one that would uphold Mississippi’s 15-week abortion ban without explicitly overturning Roe. The Journal editorial page is well sourced inside the conservative side of the Supreme Court; one of its editorials accurately foresaw that Roberts and Neil Gorsuch would join the liberals to expand the Civil Rights Act’s protections to gay and transgender Americans. So its warning last week could supply a direct conservative motive for a leak.
But then there is the evidence against the conservative-leaker scenario. First, the leak did not go to The Journal or an avowedly conservative media source; it went to reporters at Politico, an unofficially nonideological but, from a conservative perspective, functionally liberal outlet.
Second, as the court has moved rightward, the climate in the left-leaning part of the elite legal world (which is to say, most of it) has become much more self-consciously activist and anti-institutionalist than the climate among, say, Federalist Society types — meaning that if you were betting on a big act of institutional sabotage right now, you would bet on it coming from the left. (And indeed, the leaker was swiftly praised by prominent voices on liberal-legal Twitter.)
Third, you can imagine various possible rationales for a liberal leak. At the most basic level, there might be the hope that seeing the inevitable backlash unfold now, while the ruling can still change, could make a figure like Kavanaugh waver further, rather than locking in his vote.
Then, too, to the extent that liberals hope abortion could be a galvanizing issue — for organizing and fund-raising as well as votes — in a midterm election that’s otherwise shaping up disastrously for the Democrats, the leaker might see this as giving his or her side a head start, by encouraging the new Resistance to get to work a month early.
And finally, to the extent that a leak like this has some delegitimizing effect no matter what, that might be an end unto itself: If the court is going to be conservative, then let it have no mystique whatsoever.
This last place is where most liberals will end up, I’m sure, should the draft ruling turn out to be the final one. But there is an irony here, of course, because a key implication of Alito’s draft — and of arguments marshaled for generations by Roe’s critics — is that treating the judiciary as the main arbiter of our gravest moral debates was always a mistake, one that could lead only to exactly the kind of delegitimization that we see before us now.
Regardless of whether the draft becomes the final decision, then, its leak has already vindicated one of its key premises: that trying to remove an issue like abortion from normal democratic politics was always likely to end very badly for the court.
From The New York Times, May 4, 2022
How Roe Warped the Republic
By: Ross Douthat
In one sense, liberal outrage at the prospect of the Supreme Court overturning Roe v. Wade seems like an uneasy fit with liberalism’s current master narrative, which holds that liberals are defending democracy against the threat of authoritarianism and fighting for the principle of majority rule against a Republican Party that benefits from counter-majoritarian power. After all, overturning Roe would return the abortion issue to the democratic process, after two generations in which abortion policy has been set by a juristocracy, an elites-only vote of 7 to 2 or 5 to 4.
However, narratives are adaptable. “In Draft Abortion Ruling, Democrats See a Court at Odds With Democracy” ran a recent Washington Post headline, over a story summarizing some of the arguments (the polls showing public support for Roe, the fact that three of the justices were appointed by a president elected with a minority of the popular vote) being offered to prove that letting states or Congress legislate on abortion is actually authoritarian, not democratic.
I don’t want to argue with these interpretations so much as take note of them, while offering a different view of abortion’s place in the American republic’s discontents. I share some of the anxieties that inform the liberal master narrative these days — about a country too deeply polarized to function, a populist right that’s steeped in paranoia, a decay of the norms that allow republican government to function. But if I set out to write a story about how exactly we got here, I would place the original Roe decision near the center of the narrative — as an inflection point where the choices of elite liberalism actively pushed the Republic toward our current divisions, our age of chronic strife.
When seven Supreme Court justices overturned the nation’s abortion laws in 1973, they were intervening in a debate whose politics were unstable and complex. Both pro-life and pro-choice sentiment cut across both parties, and across ideologies as well — there were anti-abortion liberals, many of them Catholic Democrats, and Republican and right-wing supporters of abortion who regarded it as a possible prop to social stability.
It’s likely that the debate would have been nationalized and polarized eventually no matter what. But the Supreme Court decision nationalized abortion politics in a very specific way, removing most abortion regulation from the realm of legislative debate and linking it to the court itself and the office of the presidency. Thereafter, instead of being fought over in the institutions that are designed to channel mass opinion and activist mobilization into stable settlements — whether state legislatures or the Congress — abortion would be bound to the all-or-nothing outcomes of presidential elections and Supreme Court nomination fights.
The predictable result was an increasingly Manichaean politics: You were either for the original ruling or against it, no compromises could be negotiated or local policy experiments conducted, and the issue was distilled every few years to a referendum on presidential candidates and high court nominees, the friend-enemy distinction in its purest form.
Over time the apocalyptic style that this encouraged in both parties would expand to encompass other issues, such that the role of abortion was partially obscured. But whether it was feminists rallying to a sexual-predator president in the 1990s or religious conservatives throwing over all their ideas about character and decency and piety to back Donald Trump in 2016, when polarization corrupted principle, the Roe debate was usually at the root.
But the nature of the polarization also mattered. A nationalized abortion debate split America along two especially dangerous lines of fracture, class and religion. Though liberals often insist that they are championing abortion rights on behalf of the poor and marginalized, the reality is that poorer and less-educated Americans are more likely to be pro-life, while the rich and well-educated are more likely to be pro-choice. Likewise, though pro-lifers stress the secular arguments against abortion, the reality is that having Christian beliefs is one of the best predictors of anti-abortion sentiment.
So the sorting that defines our politics today — a right that’s working-class, rural and religious, a liberalism of the city and the secular and the managerial class — was accelerated by the divisions over Roe.
And the way Roe was decided made this polarization worse. From the perspective of geography and class, a group of robed lawyers in Washington, D.C., demanding that the country simply accept their settlement on one of the gravest moral questions imaginable is the perfect primer for a populist revolt. What has happened in similar ways with other issues — immigration, most notably — happened with abortion first: The elite settlement failed to settle the issue, and the backlash encompassed not just the issue itself but elite legitimacy writ large.
From the perspective of religion, meanwhile, by constitutionalizing the issue Roe didn’t just hand a normal political defeat to the pro-life side; it seemed to read their core convictions out of the American constitutional order entirely, seeding a religious alienation that continues to bear bitter fruit today. And the timing was particularly unfortunate: When Roe was handed down, both Catholicism and evangelicalism had just passed through periods of reform and modernization that promised a reconciliation between Christian faith and liberal modernity. Then immediately, liberal modernity changed its demands and made them all-or-nothing, making the moral price of admission more than many Christians could reasonably pay.
Finally, and crucially for the deformation of liberalism itself, the price demanded was not just moral but intellectual — because Roe was not a persuasive constitutional decision, but rather the clearest-possible case study in what it looks like when justices legislate from the bench.
This is something that was acknowledged by a few rigorous liberals from the beginning, and the best feminist legal scholarship — including the work of Ruth Bader Ginsburg — always sought a different grounding for abortion rights.
But once you have nationalized and constitutionalized an issue, it is not so easy to adapt your position or your arguments. Having (seemingly) won the policy battle, you are incentivized to avoid hard debates, avoid reopening vexing questions, assume the worst of your opponents and never admit they have a point. And in that sense the commitments that Roe required of its supporters anticipate the entirety of liberalism’s drift: toward a debilitating mix of expert certainty and incuriosity, moral superiority and ignorance of what its adversaries actually believe.
Nothing in the story I’ve just told means that overturning Roe now will necessarily improve either liberalism or conservatism, reinvigorate democracy or depolarize our politics. You begin from where you are, and where we’ve ended up does not inspire confidence in whatever may come next.
But if Roe does fall, it makes sense that a decision that did so much to divide our parties and delegitimize our institutions would ultimately be undone by the very forces it unleashed: In its beginning was its end
From The New York Times, May 7, 2022