Codifying Roe v. Wade is an illusion

CNN writes about the likely futility of codifying Roe v. Wade, assuming the Democrats could do that. They cannot because of the filibuster. CNN writes:

Constitutionally, however, there is a problem with thinking that federal legislation will resolve this issue and keep abortion from returning to the Supreme Court. Even if Congress passes a law codifying Roe v. Wade, that does not mean that the brazen precedent-busting Dobbs Supreme Court will not have five votes to strike down the new law.

That is the problem with those who say that the court is simply returning this issue to the people. If Congress tries to pass a law, either way, that law will likely land right back in the justices' lap. The Supreme Court retains the power to reverse the people's will as expressed in the actions of Congress. That is what the power of judicial review means. To quote the most famous case in constitutional law, Marbury v. Madison, it is for the courts to "say what the law is."

Drafters of any federal Roe protection must not be starry-eyed. First off, people should stop using the term "codifying Roe." The phrase is misleading. Codifying in this case means to enact a statutory right, which is possible, but the term "Roe" refers to a Supreme Court ruling and Congress has no power to reverse a particular Supreme Court ruling and reinstate a precedent that has been overturned.  

In 2000, when Congress tried to overrule Miranda v. Arizona, for example, the court said "no" in a case called Dickerson v. United States: "Congress may not legislatively supersede our decisions interpreting and applying the Constitution." Three years earlier, they said the same thing in City of Boerne v. Flores: "Congress does not enforce a right by changing what the right is. . . [Congress] has no power to determine what constitutes a constitutional violation." In short, the moment a Roe codification is signed by the President, it will be challenged as unconstitutional, and we could be right back where we started -- in the Supreme Court.

That exemplifies the enormous power the Supreme Court has. Congress can codify or make a law as it wishes. But if the Supreme Court says the codification or law is unconstitutional, that is the end of it. 

It is surprising that this point has not been made loud and clear by the mainstream media. Or, surprising that I missed it. The current fascist Republican Supreme Court is just not going to allow any codification of Roe to stand. 

The Christian nationalist attack on truth, secular teaching and church-state separation

The Washington Post writes:

New civics training for Florida public school teachers comes with a dose of Christian dogma, some teachers say, and they worry that it also sanitizes history and promotes inaccuracies.

Included in the training is the statement that it is a “misconception” that “the Founders desired strict separation of church and state.”

Other materials included fragments of statements that were “cherry-picked” to present a more conservative view of American history, some attendees said. In a possible effort to inoculate some Founding Fathers against contemporary political complaints, some slides in a presentation pointed out that George Washington and Thomas Jefferson repudiated slavery; unsaid is that both men held enslaved people and helped worked toward a Constitution that enshrined the practice.

“My takeaway from the training is that civics education in the state of Florida right now is geared toward pushing some particular points of view,” said Broward County teacher Richard Judd, who attended the three-day training. “The thesis they ran with is that there is no real separation of church and state.”

The First Amendment prevents the government from “respecting an establishment of religion, or prohibiting the free exercise thereof,” which scholars widely interpret to require a separation of church and state.

Non-republican scholars interpret the Establishment Clause as requiring a separation of church and state, but Christian nationalists (CNs) do not. Those fascists see no basis for any separation. In essence, CNs believe either that, 

(1) the Establishment Clause has no meaning and no legal vitality, or arguably more likely, 

(2) the Establishment Clause empowers Christianity in government, but disempowers other religions and non-believers in government. 

The latter interpretation is more aligned with core CN dogma, which holds Christianity above all other beliefs and ideologies, religious or not. 

In other fascism news, the ex-president is giving off smoke signals that he plans to run for president again in 2024: "Republicans are bracing for Donald J. Trump to announce an unusually early bid for the White House, a move designed in part to shield the former president from a stream of damaging revelations emerging from investigations into his attempts to cling to power after losing the 2020 election."

It's coming baaack!

Pro-environment fight shifts to the states

After fascist[1] Republicans on the Supreme Court handed a massive win to elites and corporations who profit from polluting, the states are the last line of defense. No doubt there will be disunity. Red states will keep polluting and offloading the human, social and environmental damage to the public, while gushing profits up to the top elites. Blue states will try to do something as long as the pro-pollution Republican Supreme Court doesn't step in and stop the effort. The court can assert the Supremacy Clause, the Interstate Commerce Clause and/or some crackpot fascist legal theory to shut down blue state efforts to deal with pollution and climate change.

The New York Times writes on one hopeful development:

In one of the most ambitious statewide attempts to reduce dependence on plastics, California instituted a new requirement that makers of packaging pay for recycling and reduce or eliminate single-use plastic packaging.

The law, signed by California’s governor on Thursday, is the fourth of its kind to be passed by a state, though experts say it is the most significant because it goes further in requiring producers to both make less plastic and to ensure that all single-use products are recyclable or compostable. Last summer, Maine and Oregon passed the country’s first such requirements, known as producer-responsibility laws.

A key tenet of the laws: The costs of recycling infrastructure, recycling plants and collection and sorting facilities, will be shifted to packaging manufacturers and away from taxpayers, who currently foot the bill.

The California law requires that all forms of single-use packaging, including paper and metals, be recyclable or compostable by 2032. However, this is most significant when it comes to plastic products, which are more technologically challenging to recycle. In addition, it is tougher for people to figure out which plastics are recyclable and which aren’t.

Unlike in other states, California will require a 25 percent reduction across all plastic packaging sold in the state, covering a wide range of items, whether shampoo bottles, plastics utensils, bubble wrap or takeaway cups.  

Under the state’s law, manufacturers would pay for recycling programs and will be charged fees based on the weight of packaging, the ease of recycling and whether products contain toxic substances, such as PFAS, a type of virtually indestructible chemicals that have been linked to increased risk of some cancers.

Federal law like that should have been in place decades ago. But such efforts have been blocked by corrupt politicians that pro-pollution interests have bought with their human and corporate right to "free speech," also known as "campaign contributions."

For context, it has been known for decades that recycling of plastic was nothing more than a mirage (previously discussed here and here). That faux reality was created by a gigantic pro-pollution industry public relations (propaganda) campaign to fool the public into the false belief that plastic was recyclable and being recycled. That was never true, and it will never be true. About 9% of plastic is recycled.

Now the open question is if and when the fascist Republican Supreme Court decides shut down state efforts to deal with climate change. They have the power to do that right now. They also have the mindset to do that right now. One can imagine that companies that profit from their pollution in California have already ordered their lawyers to file lawsuits to block this new law. They expect and just might get the service from the Supreme Court they have bought and paid for.

Footnote: 

1. Labels like neo-fascist, American fascism and the like are no longer warranted. With due respect for those who suffered and died under 20th century fascism, fascism is now a warranted and correct label. The modern Republican Party, its political, social and commercial agendas, its corrupt, anti-democratic tactics and its elites are all full-blown fascist. That terrible reality is on us right now. 

What about the rank and file who support and enable Republican Party fascism? Are they fascists? Just deceived innocents with no responsibility for what they have voted for and empowered? Something else? 

Symbols of deceit: ~90% of plastic isn't recycled -- 

the recycling symbols are a lie

The next front in Republican Party election subversion

The New York Times writes:

The Supreme Court announced on Thursday that it would hear a case that could radically reshape how federal elections are conducted by giving state legislatures independent power, not subject to review by state courts, to set election rules in conflict with state constitutions.

The case has the potential to affect many aspects of the 2024 election, including by giving the justices power to influence the presidential race if disputes arise over how state courts interpret state election laws.

In taking up the case, the court could upend nearly every facet of the American electoral process, allowing state legislatures to set new rules, regulations and districts on federal elections with few checks against overreach, and potentially create a chaotic system with differing rules and voting eligibility for presidential elections.

“The Supreme Court’s decision will be enormously significant for presidential elections, congressional elections and congressional district districting,” said J. Michael Luttig, a former federal appeals court judge. “And therefore, for American democracy.”

Protections against partisan gerrymandering established through the state courts could essentially vanish. The ability to challenge new voting laws at the state level could be reduced. And the theory underpinning the case could open the door to state legislatures sending their own slates of electors.

We all know where this is going, straight to neo-fascism and Republican single party rule. The Democrats just might be going extinct before our very eyes. 

Expect that neo-fascist Supreme Court decision to be handed down in June of 2023 at the latest.