ANYONE want to discuss Hunter Biden's Dick Pics?

 No? I didn't think so either. BUT for the curious here is the story:

No, You Do Not Have a Constitutional Right to Post Hunter Biden’s Dick Pic on Twitter

Elon Musk and Matt Taibbi’s First Amendment follies.

While normal humans who denied Republicans their red wave were enjoying an epic sports weekend, an insular community of MAGA activists and online contrarians led by the world’s richest man (for now) were getting riled up about a cache of leaked emails revealing that the former actor James Woods and Chinese troll accounts were not allowed to post ill-gotten photos of Hunter Biden’s hog on a private company’s microblogging platform 25 months ago.

Now if you are one of the normals—someone who would never think about posting another person’s penis on your social media account; has no desire to see politicians’ kids’ penises when scrolling social media; doesn’t understand why there are other people out there who care one way or another about the moderation policies surrounding stolen penis photos; or can’t even figure out what it is that I’m talking about—then this might seem like a gratuitous matter for an article. Sadly, it is not.

Because among Republican members of Congress, leading conservative media commentators, contrarian substackers, conservative tech bros, and friends of Donald Trump, the ability to post Hunter Biden’s cock shots on Twitter is the number-one issue in America this weekend. They believe that if they are not allowed to post porno, our constitutional republic may be in jeopardy.

I truly, truly wish I were joking.

Here’s a synopsis for the blessedly uninitiated:

On Friday, Elon Musk promised to reveal “what really happened with the Hunter Biden story suppression by Twitter.” It turns out that he had provided a trove of internal corporate documents to the Tulsi Gabbard of Substack, Matt Taibbi, who said they amounted to a “unique and explosive story”—revealing the juicy details inside Twitter’s decision to suppress the New York Post’s Hunter Biden laptop story, which had previously been rejected by such liberal outlets as Fox News and the Wall Street Journal due to its suspicious provenance. Taibbi agreed to divulge these private emails on Twitter itself rather than via his Substack as part of a “few conditions,” which he does not detail, that were imposed on him, presumably by Musk or a Musk factotum.

The documents Taibbi tweeted on Friday were titillating in the way that reading private correspondence revealing what people were really saying around a controversial subject always is, but nothing new was learned about the contours of the story. The leak mostly relitigates two facts that have already received much ink across the media: 1) How Twitter throttled the New York Post’s initial story about Hunter’s laptop based on what we now know was an incorrect assessment of its source; and 2) How political campaigns and government agencies have worked with social media companies—in this case Twitter—to flag troubling content.

On the first point, the emails confirm the essential consensus that has come into focus in reporting on the matter: Twitter got out over its skis on the ban and a typical corporate bureaucratic goat rope ensued as the company tried to “unfuck” the situation, as one employee put it. To say that this is not a new revelation would be an understatement given that Twitter’s former CEO Jack Dorsey admitted that this was a mistake over a year ago.

As such it was the latter point that drove the most hysterical discussion online on Friday.

The most retweeted installment in Taibbi’s thread (so far) was this, which purported to show the Biden campaign directing Twitter to delete specific tweets:

This supposed smoking gun resulted in Musk responding to his own journalistic stenographer on Twitter with a fire emoji and the comment “If this isn’t a violation of the Constitution’s first amendment, what is.” Musk was so impressed with this digital citizen’s arrest, that he made it his pinned tweet, after which the MAGA attaboys for Musky came hot and heavy.

Right-wing commentator Buck Sexton (real name), said this was a “bright red line violation” and that Biden should be IMPEACHED for it. Rep. James Comer (R-TN) was on Fox promising that everyone at Twitter involved with this would be brought before the House Oversight committee. Rep. Billy Long retweeted several MAGA influencers praising Elon for, among other things, “exposing corruption at the highest levels of society” (Projection Alert). Meanwhile Kari Lake hype man Pizzagate Jack Posobiec declared this the “biggest story in modern presidential election history,” claimed that “we can never go back to the country we were before this moment,” and donned this “a digital insurrection.”

In reality, all they really had was a digital erection.

The offending material that Taibbi revealed was removed by Twitter at the Biden campaign’s request turns out to have been a bunch of links to Hunter Biden in the buff.

There was a tweet from a Chinese account featuring a naked woman on top of Hunter Biden, as well as a family photo. Two pictures of Hunter Biden’s penis, one with another woman in the background. Taibbi’s next list of material was removed by Twitter after being flagged by the Democratic National Committee. They include a picture of Hunter Biden smoking crack and getting his feet rubbed and a link to a Hunter Biden sex tape.

And that’s the big hubbub. Social media company removes unwanted dick pics: News at 11.

---

As someone who once consulted for social media companies on content moderation issues, let me tell you, the amount of eggplant-related terms of service violations that these platforms review in a given year is so voluminous that we have not yet invented an artificial intelligence machine capable of counting them.

Yet Taibbi and Musk are trying to turn this mundane moderation matter into the story of the century by emphasizing a few misconceptions about how platforms work with political campaigns and what First Amendment obligations they do or do not have. To debunk a few of them:

1. Campaigns of all ideological stripes have direct lines into social media companies and make requests about offending content. There is nothing at all strange about what is shown in these emails. If Jeb’s kid’s grundle was posted by a Chinese troll, we surely would’ve flagged that for the company in the hopes they deleted it, and I suspect their internal correspondence on the matter would’ve been identical. This would not have been a “demand” or a “dictate” from our campaign, mind you. Companies can do what they want.

2. In this specific instance, the requests came from a campaign that has absolutely no government authority at all. At the time of the correspondence in question, Joe Biden was a private citizen running for office, while Donald Trump was the president. Taibbi acknowledges that Trump’s White House made requests that “were received and honored” and that “there’s no evidence—that I’ve seen—of any government involvement in the laptop story.” So if there are any First Amendment issues at play here—and I don’t believe there are since neither Musk nor Taibbi have demonstrated that the government made any mandates on Twitter—they would, in this case, only relate to the material that Trump wanted removed.

3. Why MAGA Republicans and Elon Musk are so adamant that people be able to post photos of Hunter’s johnson is something that should probably be explored with their respective preachers or psychiatrists, but it is certainly not a matter for constitutional scholars or litigators. While Mr. Lisbon from the Virgin Suicides may derive a depraved type of happiness from publishing pictures of other people’s genitals on a private company’s public bulletin board without the approval of those pictured, the First Amendment does not bestow upon him the right to prevent the company from taking down the offending material.

To sum up what we learned: Big penis, little news, First Amendment not under threat.

Musk and Taibbi have promised more editions of the “Twitter Files” in the coming days, maybe next time they won’t come up so limp. 😅

https://www.thebulwark.com/no-you-do-not-have-a-constitutional-right-to-post-hunter-bidens-dick-pic-on-twitter/

An expert opines on Moore v. Harper: Maybe it will backfire against the GOP?

I have repeatedly warned that the pending Moore v. Harper case pending in the Supreme Court is likely going to be a probably lethal blow to elections and American democracy. One expert has an interesting analysis worth considering. A WaPo analysis and opinion by Sam Wang (Professor of Neuroscience, Princeton University, director of the Electoral Innovation Lab) comments:

On Dec. 7, the Supreme Court will hear oral argument in Moore v. Harper, a case that could upend how states oversee federal elections and open the door to increased congressional gerrymandering. The central issue is a radical theory favored by a faction of legal thinkers on the right. But if they looked at the math, they would see that a win would likely backfire on Republicans.

Petitioner Timothy Moore is speaker of the GOP-controlled General Assembly in North Carolina, where earlier this year the state Supreme Court overturned the legislature’s redistricting plans as “unlawful partisan gerrymanders.” Appealing that ruling, Moore and fellow legislators cite what has become known as the independent state legislature doctrine, or ISL — a theory based on the elections clause of the U.S. Constitution, which says, in part, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” This sentence has long been understood to mean that the legislature passes state election laws, but — like other laws — they must be consistent with state constitutions and can be overturned by court review or a governor’s veto. ISL proponents read it as giving sole authority to the legislature, removing one or more of the usual checks on runaway legislative power.

But if the Republicans win in the U.S. Supreme Court, the result on a national scale would almost certainly benefit Democrats. Why? Because outside North Carolina, only swing states and blue states have curbed partisan gerrymandering. In Pennsylvania, New York, Connecticut, Minnesota, New Hampshire, Wisconsin and Virginia, this was done through the intervention of governors or voting-rights-minded state courts; in Arizona, California, Michigan and Colorado, citizen initiatives gave redistricting authority to independent commissions.

One way to see the Democrats’ likely advantage: In the 2020 presidential election, the 12 states where districts were drawn by court order or by independent commissions gave 184 electoral votes to Joe Biden and only 15 electoral votes (those from North Carolina) to Donald Trump.

A win for Moore would potentially unleash all those states to redistrict at will. In contrast, in 19 states where Republicans already have legislative control of redistricting, many partisan gains are maxed out, and nothing would change.

The justices could say that courts cannot use state constitutions to intervene, they could invalidate independent commissions, or they could take away the governor’s veto power over election laws. The Supreme Court has already declined to consider a case involving the third interpretation. We gamed out the other two by examining extreme partisan possibilities in each state. In both interpretations the conclusions were similar: Election maps completely controlled by state legislatures would change the overall balance of congressional seats in Democrats’ favor.

The Supreme Court has at least three options for interpreting the independent state legislature theory in a logically consistent manner: The justices could say that courts cannot use state constitutions to intervene, they could invalidate independent commissions, or they could take away the governor’s veto power over election laws. The Supreme Court has already declined to consider a case involving the third interpretation. We gamed out the other two by examining extreme partisan possibilities in each state. In both interpretations the conclusions were similar: Election maps completely controlled by state legislatures would change the overall balance of congressional seats in Democrats’ favor.

The first interpretation could potentially liberate several Democratic states to gerrymander by removing state court authority. For example, in April, a New York state court used anti-gerrymandering provisions in its state constitution to throw out a Democratic-drawn map that, based on our analysis of past voting patterns, could be expected to consistently elect 19 Democrats and seven Republicans to the House. The court-approved replacement map made five of the Democratic seats competitive, and four of these went Republican in the Nov. 8 election. If the Moore litigants win, New York and Maryland, where a second pro-Democratic map was overturned, would surely waste no time in restoring gerrymanders.

Democrats would also gain power if independent citizen commissions were struck down. In 2010, citizens gave an independent commission power over congressional redistricting in deep-blue California, with the support of then-Gov. Arnold Schwarzenegger, a Republican. Since then, Michigan and Colorado, two states now controlled by Democrats, have also formed independent commissions. Striking down these three commissions would give Democrats the ability to draw themselves up to a dozen additional seats.

Legal scholars both liberal and conservative have come out against the independent state legislature doctrine — some expressing concerns that the doctrine might embroil federal courts in endless lawsuits concerning future elections. Proponents of the theory are hoping to find a receptive audience in a reactionary and increasingly activist Supreme Court. But if the court steps back from taking this aggressive step, it will confound critics — and Republicans should consider themselves lucky.

In view of Dr. Wang’s analysis, I revise my confidence level from ~90-95% to ~65% that the Republican Supreme Court will make the independent state legislature theory or doctrine (ISLD) into binding law. This decision by the six Republicans on the bench will be made on the basis of what best serves the Republican Party’s grip on power. 

If there was little uncertainty in the analysis, my confidence level would drop to ~10-15%. But there is significant uncertainty.  One uncertainty arises from the fact that the Supreme Court does not act in a “logically consistent manner.” Wang’s analysis assumed a logical decision. I do not assume that. The current Republican Supreme Court acts in a blatantly partisan manner, e.g., the irrational Dobbs decision in 2022 that obliterated the constitutional right to an abortion. So despite three logical ways to decide, there are multiple ways to illogically decide, including a decision that is partly logical and partly illogical.

Another uncertainty flows from Republican ideology. GOP dogma is anti-democratic, authoritarian and party-centric, i.e., pro-concentrated power, especially for the Republican Party. The ISLD has great appeal to pro-concentrated power dogma. The ISLD gives state legislatures almost absolute power to subvert elections and turn them into a partisan farce. That is basically what Hungarian president Viktor Orban did to elections and democracy in Hungary after he was elected to power in a free and fair election. As discussed here before, GOP elites and leadership have made it very clear that what want to do to America is the same as what Orban did to Hungary. This 5 minute interview with an expert describes the the situation.

Dr. Wang focuses on gerrymandering, but my understanding of the ISLD is that it has a far broader scope than just gerrymandering. ISLD protects state legislatures from election subversion, voter suppression and vote fraud. ISLD isn't only about gerrymandering. It's about the entire election process. 

Source

Finally, there is some uncertainty in what affected blue states would do if the ISLD becomes the law. Affected blue states may not want to play hardball like what the red states do. My guess is that affected blue states probably would become more like red states. If so, this may not be much of a factor and Wang’s analysis on this point would probably be mostly correct for gerrymandering.

The Republican vengeance plan comes into focus

Enraged Republicans waiting to take control of the House have revealed what is probably a key part of their vengeance plan. Things are going to get nasty once the Republicans gain power again.

House Minority Leader Kevin McCarthy mentioned the GOP strategy in a letter to 1/6 committee Democratic chairman Bennie Thompson. The letter instructed Thompson to “preserve all records collected and transcripts of testimony taken.” The Republicans clearly intend to scrutinize most or all of the materials and evidence the 1/6 committee collected. What are the Republicans going to look for? Probably multiple things, definitely including perjury before congress under 18 US Code § 1001.[1] Republican witch hunts are going to commence on Jan. 3, 2023.

McCarthy’s letter says: 

The American people chose Republicans to lead the 118th Congress. On January 3, 2023, your work as Chairman of the Select Committee to Investigate the January 6th Attack on the United States Capitol will come to an end. For those reasons, I remind you and your staff on the Committee to preserve all records collected and transcripts of testimony taken during your investigation in accordance with House Rule VII. As the Chairman, regardless of who may be directing the work of the Committee, you are responsible for the work done by its members and staff. 

It is clear based on recent news reports that even your own members and staff of the Committee have no visibility into the totality of the investigation2. Some reports suggest that entire swaths of findings will be left out of the Co1mnittee's final report.3 You have spent a year and a half and millions of taxpayers' dollars conducting this investigation. The official Congressional Records do not belong to you or any member, but to the American people, and they are owed all of the information you gathered - not merely the information that comports with your political agenda. Although your Committee's public hearings did not focus on why the Capitol complex was not secure on January 6, 2021, the Republican majority in the 118th Congress will hold hearings that do so. The American people have a right to know that the allegations you have made are supported by the facts and to be able to view the transcripts with an eye toward encouraged enforcement of 18 USC 1001. (emphasis added)

McCarthy’s threatening tone, intent to extract vengeance and intent to immediately stop the 1/6 investigation of Trump and the coup attempt are clear. The investigation ends on Jan. 3, the day the Republicans take control of the House. As far as the Republicans are concerned, there is nothing to investigate about the coup attempt. An NYT opinion piece describes what the Republicans want to do with 18 USC 1001:

Kevin McCarthy reveals exactly how 

the GOP House will protect Trump

[McCarthy’s] letter made news, even though the committee is already required by law to preserve all records and transcripts. The GOP majority will have access to all those records no matter what the committee publicly releases.

But buried in the letter is a cryptic reference with ugly implications for what’s to come. McCarthy wrote that Republicans want those materials preserved “with an eye toward encouraged enforcement of 18 USC 1001,” with no further comment.

What does that mean? Well, that statute criminalizes lying to Congress. From that, I think, we can glean what might be one of the House GOP’s coming schemes: Dig through transcripts and other material to twist committee findings into “proof” that key elements of the anti-Trump testimony were deceptive, or even perjury.

That could function as a pretext to haul witnesses back for another grilling from Republicans. This would be deliberate spectacle: By publicly flogging witnesses who most damaged Trump, Republicans would provide grist for right-wing media to claim the most damning revelations had been decisively discredited, no matter what the facts show.

NYU law professor Ryan Goodman, who has closely tracked the Jan. 6 investigation, agrees Republicans have tipped their hand. “They appear to be devising a tactic to try to undermine testimony, to the end of satisfying Trump and the far-right parts of the party,” Goodman told me.

As Goodman noted, Republicans don’t even have to grill witnesses again (which could backfire with sympathetic ones such as former White House aide Cassidy Hutchinson). They could simply cherry-pick from full transcripts in ways designed to distort their actual testimony.

“There’s no reason to think they will faithfully examine the transcripts,” Goodman said. “They’ll quite likely selectively use quotes just to create the appearance of contradictions or false statements.”

This defense of Trump vendetta is going to get real ugly. There is not one shred of goodwill or good faith in the fascist Republicans here. We are witnessing the start of enraged vengeance and exercise of power (not democratic governance) in extreme cynicism and bad faith. I basically agree with Goodman’s assertions that (i) there is no persuasive reason to think the Republicans will faithfully examine the transcripts, and that (ii) they will probably cherry pick quotes and evidence to create an appearance of contradictions and/or false statements. Even if there are honest mistakes, Republicans and the radical right propaganda Leviathan will trumpet every one of them long and loud, and probably distort most of them in the process. 

Worst case scenario: the fascists cross the line and fabricate evidence to advance their lies and slanders agenda in defense of Trump and the GOP.

Footnote: 

1. 18 USC § 1001 - Statements or entries generally

(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—

(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation; or
(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;

shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both. If the matter relates to an offense under chapter 109A, 109B, 110, or 117, or section 1591, then the term of imprisonment imposed under this section shall be not more than 8 years.

This law applies to all congressional investigations by any House or Senate committee, subcommittee, commission or office.

News bits: A criticism of the MSM & law bits

The MSM criticized: It’s time it woke up

Salon makes a very good point in an opinion piece:

Uh, Politico? Biden didn't make Marjorie Taylor Greene 

“the face of the GOP” — Republicans did

Between blaming Democrats for MAGA Republicans and celebrating Trump's babysitter, media keeps coddling GOP

The widespread assumption that only Democrats have any agency or causal influence over American politics." This is famously known as "Murc's Law," named after a commenter at the blog Lawyers, Guns, and Money who noticed years ago the habitual assumption among the punditry that Republican misbehavior can only be caused by Democrats. Do Republicans reject climate science? Must be because Democrats failed to persuade them! Did Republicans pass unpopular tax cuts for the rich? Must be that Democrats didn't do enough to guide them to better choices! Do Republicans keep voting for lunatics and fascists? It must be the fault of Democrats for being mean to them! 

“Biden world once ignored Marjorie Taylor Greene. Now it's making her the face of the GOP,” announces a Thursday headline in Politico. Underneath it, Eugene Daniels and Jonathan Lemire write that the Biden White House has tried to turn Greene “into the poster child of the incoming House GOP majority.”

But of course Biden had nothing to do with that, because Republicans had already done it. Republicans in her district enthusiastically voted her into office. Republicans gave Greene a standing ovation in response to her remarks claiming that school shootings like Parkland and Sandy Hook were “false flags.” Republicans made her one of the top fundraisers in the House. Republican leadership is currently indulging Greene's demands to treat the Jan. 6 insurrectionists as “political prisoners.”

Assuming it isn’t too late, one can only hope that this wakes the MSM up about who is doing what in politics.

Republicans intent to subvert elections

The AP writes on another instance of Republicans messing with elections:

A former elections manager who prosecutors say assisted in a security breach of voting equipment in a Colorado county pleaded guilty on Wednesday under a plea agreement that requires her to testify against her former boss.

Sandra Brown is one of two employees accused of helping Mesa County Clerk Tina Peters allow a copy of a hard drive to be made during an update of election equipment last year in search of proof of the false conspiracy theories spun by former President Donald Trump.

Peters gained national prominence by promoting conspiracy theories about voting machines and lost a bid to become the Republican candidate for Colorado’s secretary of state, who oversees elections, earlier this year. She is charged with three counts of attempting to influence a public servant, criminal impersonation, two counts of conspiracy to commit criminal impersonation, one count of identity theft, first-degree official misconduct, violation of duty and failing to comply with the secretary of state.

The intentions of Republicans in power are clear. The radical right will subvert elections and turn them into a farce if they ever get in power. They are following Hungarian president Viktor Orban’s game plan to replace democracy with a kleptocratic tyranny-theocracy. At present, the main thing holding them back is the courts. Frighteningly, the Republicans are poised to knock that barrier down in the pending Moore v. Harper case in the Supreme Court. 

Trump judge slapped down hard for breaking

the law to defend Trump

The NYT writes:

A federal appeals court on Thursday removed a major obstacle to the criminal investigation into former President Donald J. Trump’s hoarding of government documents, ending an outside review of thousands of records the F.B.I. seized from his home and freeing the Justice Department to use them in its inquiry.

The appeals court was sharply critical of the decision in September by Judge Aileen M. Cannon, a Trump appointee who sits in the Southern District of Florida, to intervene in the case. The court said Judge Cannon never had legitimate jurisdiction to order the review or bar investigators from using the files, and that there was no justification for treating Mr. Trump differently from any other target of a search warrant.

“It is indeed extraordinary for a warrant to be executed at the home of a former president — but not in a way that affects our legal analysis or otherwise gives the judiciary license to interfere in an ongoing investigation,” the court wrote.

Limits on when courts can interfere with a criminal investigation “apply no matter who the government is investigating,” it added. “To create a special exception here would defy our nation’s foundational principle that our law applies ‘to all, without regard to numbers, wealth or rank.’”

Separately, one observer commented on the politics of judge ‘Loose’ Cannon’s failed illegal defense of Trump: “Cannon avoided death threats from Trump's minions and managed to stay in Trump’s good graces by bending the law to protect him. I’d say mission accomplished for her...if Trump runs and wins again. Otherwise she lit her entire judicial reputation and future on fire for nothing.”

Court sanctions Kari Lake’s legal team

Law and Crime writes:

An Arizona-based federal judge has ordered sanctions against the legal team assembled by gubernatorial candidate Kari Lake (R) and another plaintiff in a failed lawsuit against winning opponent Katie Hobbs (D) and other defendants from two Arizona county government boards.

The attorneys being sanctioned are not directly named in Thursday’s order, but according to the court docket, Harvard Law School Prof. Alan Dershowitz [a very big gun in the legal profession] is Lake’s lead attorney in the matter. Also on her legal team are co-lead attorneys Andrew D. Parker, Jesse Hersch Kibort, and Joseph Alan Pull of Minneapolis. Further listed as a member of her legal team is attorney Kurt B. Olsen of Washington, D.C.

Parker, Olsen, and Dershowitz signed the original complaint, an amended complaint, and a opposition to a request for sanctions. 

Those attorneys are presumably the ones sanctioned on Thursday for filing a complaint by Lake and Arizona State Representative Mark Finchem (R-11), another plaintiff.

Judge Tuchi ruled that the plaintiffs lacked standing to sue because her claims were “too speculative to establish an injury in fact.” And, even if the plaintiffs did have standing, the judge ruled that the 11th Amendment barred their claims because the core of the dispute arose under state law, not federal law, and therefore did not belong in federal court.

Once again, Republican elites chafe under the restraints that elections impose. Right now, they are testing all avenues to subvert elections and baselessly undermine confidence in them. The courts keep pushing back. But the day is coming when the courts will be probably be taken out of the picture (~90% likelihood; the pending Moore v. Harper case), leaving elections almost entirely up to state legislatures. Once that happens, Republican state legislatures intend and will be free to turn elections into a farce.

Substantive due process and rights the constitution is silent about

A WaPo article considers rights that the US Constitution says nothing about. Despite that, the Supreme Courts has found some rights to be inherent in the Constitution. One example is the right to abortion, which the current Christian nationalist Republican Supreme recently nullified. Other constitutional rights that have been found over the years include the right to free speech by legal entities like corporations. The right to procreate was also read into the Constitution. More recently, corporations have been found to have the right to express religious beliefs, e.g., by refusal to provide insurance coverage for birth control by companies whose mostly Christian owners oppose. 

The WaPO writes:

In overturning the right to abortion in Dobbs v. Jackson Women’s Health Organization over the summer, the Supreme Court drew new attention to a phrase many Americans had heard only in passing, if they had heard it at all: “substantive due process.” Those three words described the main source of so-called unenumerated rights in the Constitution — rights that cannot be found in the text of the document but that the Supreme Court has nevertheless declared the law of the land.

Many conservatives celebrated Dobbs as a long overdue recognition that the right to abortion had no constitutional stature. Many liberals mourned the loss of a fundamental right and worried that other unenumerated rights — like the rights to contraception and same-sex marriage — were now also endangered.

Yet often lost in these impassioned debates were foundational questions: Why are unenumerated rights protected at all in the Constitution? Why are they protected under the rubric of substantive due process? How does the high court determine which rights fit under this framework? What does Dobbs suggest about which rights will be protected going forward? And how will those judgments influence the future of the nation?

Some wonder why the courts safeguard unenumerated rights. “When the Supreme Court creates a right that is not even mentioned in the Constitution, the independence and the legitimacy of the Supreme Court itself is called into question,” said Sen. John Cornyn (R-Tex.) at Justice Ketanji Brown Jackson’s confirmation hearing. On its face, this is a serious concern. In a democracy, it’s worrisome enough that five of nine justices on the Supreme Court can brandish a provision of the Constitution to strike down a law enacted by an elected legislature.

And yet, as nettlesome as unenumerated rights may be, they undoubtedly exist in our constitutional order. Somewhat ironically, the Constitution itself establishes the existence of rights not named in the Constitution. The Ninth Amendment states that the “enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The Ninth Amendment also captures a deeper insight: It would have taken impossible foresight for the framers to list every conceivable right the people would regard as fundamental. As Chief Justice John Marshall said in 1819, the nature of a constitution was that it was designed for the ages and therefore could not “partake of the prolixity of a legal code.” Time has richly vindicated that view. The court has recognized the rights to travel, to vote and to marry as fundamental rights that have the same stature as enumerated ones. While unenumerated, all these rights seem indispensable today.

The article goes on to point out that the current radical right Supreme Court has fully adopted a backward-looking legal mindset.[1] Specifically, it relies on the “deeply rooted in this Nation’s history” test that Sam Alito relied on to overturn Roe v Wade and the constitutional right to an abortion. That has two major implications. First, marginalized groups and individuals in those groups will lose constitutional protections that were thought to be settled law. 

Second the Republican Supreme Court has obliterated a way to update the Constitution. The courts can allow discrimination and violation of civil rights that judges deem to not be deeply rooted in this Nation’s history. This could be worse because the Constitution was written by White, property-owning men. It had major status-based exclusions, e.g., non-Whites, women and non-land owners. Today would not be considered a particularly democratic document. As time passes, America becomes more diverse and aware of its diversity. That creates a perception of illegitimacy that will become more glaring and divisive over time.

This is another warning that Christofascist Republicans on the Supreme Court intend to gut American federal government, civil liberties and regulations. The intent is undermine secularism, regulations and civil liberties. Despite a majority that either rejects it or is deceived-ignorant about it, America is moving toward some kind of a kleptocratic, fascist Christian theocracy under Christian Sharia law and a bigoted, vengeful Christian Taliban.

Footnote: 

1.  WaPO describes the origin of the backward-looking mindset like this:

In the 1997 case of Washington v. Glucksberg. Consolidating earlier cases, the court held that unenumerated rights would be protected only if they were “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Applying that standard, the court declined to recognize a right to physician-assisted suicide because it lacked historical roots. The virtue of the Glucksberg analysis was that it provided a limiting principle for which unenumerated rights should be protected. As judges were not bound here by text, they would instead be bound by tradition.

I incorrectly thought that Washington had been overruled by later Supreme Court decisions, but it wasn’t. When Alito overturned Roe in the Dobbs decision, he relied on the “deeply rooted in this Nation’s history and tradition” test in Washington to obliterate the constitutional right to an abortion. The same reasoning is now being used to obliterate all kinds of laws, including gun control laws. But even if Washington had been overruled, Alito and the Republican radicals would have reinstated it. That test is core radical right authoritarian capitalist and Christian nationalist dogma.

What are the psychological characteristics of people holding far-right beliefs?

• People with far right beliefs are characterized by a simplified mindset and tendency to search for order and structure.
• They have a strong desire for group-based dominance and hierarchy, and often see social groups arranged along a superiority-inferiority dimension.
• They perceive the wider authorities as illegitimate.

(no kidding)

https://www.sv.uio.no/c-rex/english/groups/compendium/what-are-the-psychological-characteristics-of-people-holding-far-right-beliefs.html

Snippets:

Individuals who endorse far right ideology often have an increased desire for obedience to authority, order, purity, familiarity, structure, and a rigid worldview mentality. Particularly, they tend to adhere to a worldview that is based on authoritarianism and hierarchy between social groups. This is further reflected in their psychological profile, which is more reflective of the desire for group-based dominance and subjugation (including women’s subordination), traditionalism, and social inequality. The tendency to dominate and subjugate disadvantaged and minority groups is particularly expressed in anti-immigrant and xenophobic stances, strong preference for an ethnically, culturally and/or racially homogeneous population, and prejudice against minorities.

(SOUNDS ABOUT RIGHT)

Another key feature of far right individuals is the rigidity of their mindset—a cognitive style reflected in increased closed-mindedness, simplistic style of thinking, and black-and-white perceptions of society.

Moreover, a study using a sample of white Americans with Republican affiliation[ showed that perceived psychological distress predicted stronger willingness to violently persecute political out-groups. Effects on these extremist tendencies were largely mediated by people’s increased closeness with their political leader. In other words, the more psychological distress people experience, the more they identified with their political leader, which in turn made them more willing to use violence against those identified as threats by this leader.

(EXPLAINS TRUMPISM)

In sum, holding far right beliefs increases people’s social identity and personal importance because such beliefs satisfy a need to belong to groups of like-minded people.

(This one I tend to believe is not necessarily an exclusive far right phenomenon, we ALL tend to gravitate towards groups of "like-minded people.") Don't we?