Category: reason

The Supreme Court leak continues to defy any rational explanation. A conservative leak to hold five would backfire. A liberal leak to break apart the majority would backfire. The leak hurts conservatives and hurts liberals alike. But then again, why presume the leaker was rational–or at least rational, as I understand it. Perhaps the thinking was different.

The leaker may have been channeling Publius Decius Mus, who wrote the infamous essay, The Flight 93 Election.

2016 is the Flight 93 election: charge the cockpit or you die. You may die anyway. You—or the leader of your party—may make it into the cockpit and not know how to fly or land the plane. There are no guarantees.

Except one: if you don’t try, death is certain. To compound the metaphor: a Hillary Clinton presidency is Russian Roulette with a semi-auto. With Trump, at least you can spin the cylinder and take your chances.

Whoever decided to leak this document no longer cared about the outcome in Dobbs. Nor did this person worry about harming the Supreme Court itself. Institutional damage was a feature, and not a bug of the leak. Rather, the goal may have been to destroy the Supreme Court as we know it in order to (hopefully) save the nation.

The post The Flight 93 Leak appeared first on Reason.com.

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Politico has published an insta-symposium where various legal commentators discuss the issue of whether Justice Samuel Alito’s draft Supreme Court opinion overruling Roe v. Wade would also imperil other prominent precedents protecting individual rights, particularly those involving contraception, same-sex marriage, and anti-sodomy laws.

Contributors include co-blogger Josh Blackman, Prof. Mary Ann Case (University of Chicago),  Prof. Mary Zeigler (Harvard), former US Attorney General Alberto Gonzales, and others.  The contributions are divided between two different URLs. See here and here.

There is a wide range of views among the participants. Here is my contribution:

While such concerns [about the fate of same-sex marriage, contraception, and anti-sodomy laws] are understandable, they are overblown.

Alito’s draft opinion relies on precedent holding that the Due Process Clause of the Fourteenth Amendment only protects substantive rights that are ‘deeply rooted’ in history. It can be argued that these other rights also lack ‘deep’ roots. But Alito also emphasizes that Roe is “fundamentally different” from precedents involving “intimate sexual relations, contraception, and marriage,” because abortion arguably involves destruction of innocent “fetal life.” This crucial difference is the main reason why Roe continues to draw vastly more opposition than these other rulings.

In addition, decisions protecting same-sex marriage and intimate sexual relations need not rely on the Due Process Clause alone. Laws discriminating against same-sex relationships also violate the Equal Protection Clause because they discriminate on the basis of sex. Just two years ago, the Supreme Court ruled that discrimination against gays and lesbians qualifies as sex discrimination under the Civil Rights Act of 1964, in a decision written by conservative Justice Neil Gorsuch, and joined by Chief Justice John Roberts. Much the same reasoning applies in the constitutional context.

Furthermore, history shows that major Supreme Court decisions protecting rights only get reversed if there is a powerful movement seeking that outcome, such as the pro-life movement in the case of Roe. By contrast, there is no longer a strong movement seeking abolition of same-sex marriage (conservative politicians rarely advocate abolition anymore, perhaps because same-sex marriage now has overwhelming public support), and even less appetite for banning contraception (which is supported by some 90% of Americans), or bringing back anti-sodomy laws.

A ruling reversing Roe v. Wade might make judicial recognition of new ‘substantive due process’ rights less likely. But it is unlikely to threaten major existing rights that enjoy far broader support than abortion. [highlighting added by Politico].

Interestingly, Josh Blackman reaches much the same conclusion for some of the same reasons. It’s a comparatively rare point of agreement between us!

The post Politico Symposium on Broader Implications of the Leaked Supreme Court Opinion Overruling Roe v. Wade appeared first on Reason.com.

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If Roe v. Wade gets overruled, as now seems increasingly likely, will Americans “vote with their feet” for states that protect abortion rights? That’s a question I’ve often been asked in recent months, perhaps because I have written extensively about foot voting, including a book on the subject. In this post, I try to address it. But I warn that I don’t have any definitive answer. The key reason why is that we have no recent American precedent for abortion restrictions as severe as those likely to come into effect in some red states. My tentative judgment is that such foot voting will indeed occur, but probably only on a modest scale. But I could easily turn out to be wrong about that.

In one sense, the answer to the question of whether will people will vote with their feet for pro-choice states is obviously “yes.” In a diverse nation with over 330 million people, it is inevitable there will be some who value abortion rights so much they are willing to move away from a state that significantly restricts them. But the more significant question is how many people will move because of such concerns? Will it be a flood or just a trickle?

On that question, it’s difficult to come up with any kind of definitive answer. The reason why is that, thanks to Roe, we have had only relatively modest variation in abortion regulation between states over the last 50 years. At the very least, we haven’t seen anything like the recent Texas and Oklahoma laws banning  nearly all abortions more than six weeks into a pregnancy. The Texas law, of course, has been in effect for several months now. But that isn’t enough time to tell us much about the impact on migration patterns.

So far, there is little evidence that abortion restrictions drive interstate migration. To the contrary, many of the states that have gained the most migrants in recent years are ones that tightened abortion laws since 2010, most notably Texas and Florida. Such issues as job opportunities, housing costs, and taxes seem much more significant to foot voters than abortion. But the combination of the end of Roe and the new wave of draconian abortion laws could potentially change that.

There is a big difference between a state where a legal abortion is incrementally more difficult to obtain, and one where it becomes almost impossible for most women to get one in-state. The latter situation could generate a lot more foot voting than the former.

There is a long history of people voting with their feet to escape oppression of various kinds. Notable historical examples include blacks fleeing the Jim Crow-era South, Mormons fleeing to Utah, and gays and lesbians moving to relatively more tolerant jurisdictions. Severe abortion restrictions may also be a kind of oppression that women might flee in the same way.

I’m a believer in the “my body, my choice” principle. Indeed, I would take it much further than most! I therefore agree that the vast bulk of abortion restrictions are unjust. But that does not, by itself, tell us how many people fear them enough to vote with their feet to escape them.

A key reason to think that the number of abortion-driven foot voters will be modest is that there are often relatively low-cost substitutes for access to an abortion provider within your own state. The most obvious is contraception. For women who want to avoid unwanted pregnancies, this is an obvious option, and one that can be purchased at most drugstores and supermarkets (though, of course, I recognize that some of the most potent contraceptives are harder to acquire than that).

There is also the option of mail-order abortion pills. “Medication abortions” already account for some 54% of all US abortions, and that percentage could well increase in a post-Roe world. Conservative states could try to suppress mail-order abortion pills. But enforcing such bans is likely to be extremely difficult. I doubt a “War on Abortion Pills” will be much more successful than the War on Drugs. It might even be less effective, in as much as states that ban such pills are often likely to have neighbors that do not.

Finally, blue and purple states are likely to continue to have liberal abortion laws, regardless of what the Supreme Court says. Many are taking steps to make it easier for non-residents to obtain abortions there, if their home states forbid it. During the lengthy era when Ireland banned abortion, while Britain did not, every year many thousands of Irish women went to the UK to get abortions. A similar trend could emerge in a post-Roe US.  As far as I know there was little abortion-driven migration from Ireland to the UK during that period. But I welcome correction from experts on Ireland!

Conservative states could try to enact laws banning residents from seeking abortions out-of-state. But such laws are vulnerable to legal challenge on various grounds, including the Dormant Commerce Clause (which bars state interference with interstate economic transactions), and the right to travel. Even if restrictions survive legal challenges, they may prove difficult to enforce, especially in the face of resistance and noncooperation by authorities in destination states (which are likely to be blue pro-choice jurisdictions).

For large numbers of women, one or more of the above options is likely to prove more attractive than a permanent move to a state with more liberal abortion laws. That’s especially true if the latter state is less appealing than their former home in other ways, such as job opportunities or housing costs.

Many above options are actually forms of what I have called private-sector foot voting. One advantage of such strategies is that people can often use them without having to permanently migrate and in some cases (such as using contraception) without having to do much traveling of any kind.

I don’t claim these alternatives are perfect substitutes for abortion in every case. For example, contraception  obviously doesn’t help in cases of rape, or situations where a woman needs an abortion to protect against a health risk that only becomes evident after the pregnancy has begun.  But the alternatives are likely to be effective in a high percentage of situations, which in turn is likely to greatly reduce the amount of abortion-driven migration.

By contrast, there were few if any substitutes for foot voting when it came to the kinds of oppression that have historically led to large-scale interstate migration. Most obviously, Jim Crow-era southern blacks had no good way of avoiding the impact of segregation (except those few who could “pass” for white). In jurisdictions with strongly homophobic policies, gays and lesbians had little opportunity to avoid rampant discrimination, except by remaining in “the closet” (a choice with fairly obvious severe drawbacks).

Today, much foot voting is driven by housing costs, job opportunities, and tax rates. Texas’s relative advantages on these three dimensions are the big reasons why it has been the biggest net gainer of population from internal migration within the US, over the last decade. Notice that all of these are issues that are hard to avoid by means short of exit.

If zoning restrictions make housing unaffordable in your area, it’s hard to find cheap alternatives, except by leaving or being homeless. If taxes are too high, the main alternative to leaving is some form of tax evasion or black market work (both of which have serious dangers). Ditto if restrictive policies severely limit the availability of job opportunities, though the most desirable workers could still beat the odds, and thus have less reason to move.

It’s also possible that abortion restrictions will lead some people to move not because they want to access abortion themselves, but simply because of moral abhorrence at living in a jurisdiction that restricts women’s liberty in this way. By the same token, some pro-lifers might, out of moral considerations, seek to leave states that continue to have liberal abortion policies. I’m sure there will be a few cases of both kinds. But probably very few.

Historically, migration driven by moral abhorrence of policies that have little or no effect on the would-be migrants or their families is rare. Such cases, it should be noted, are different from cases where people migrate because persecution prevents them personally from living according to their religious or moral principles, as in the case of Jews fleeing forced conversion in Spain.

For these reasons, my best guess is that the end of Roe  (assuming it happens) will lead to a substantial increase in abortion-driven migration compared to preexisting trends, but still only a relatively small amount of movement in absolute terms. It will be vastly smaller than, say, the 20th century Great Migration of African-Americans to the north, or even than recent movement of people to states with better housing and job opportunities.

But I admit I could be wrong about that. It’s possible that women value the option of having an abortion more than the above suggests, and that many see it as greatly superior to the available alternatives, even if the latter might seem cheaper and easier than migration.

The situation might also change if blue states with liberal abortion policies became more attractive to migrants in other ways, most notably by cutting back on zoning restrictions that currently make housing in many blue areas prohibitively expensive for would-be working class and lower-middle class migrants. Some have begun to liberalize zoning policy, and that trend could continue to spread. The cause of zoning reform might even get a boost from abortion rights advocates. In a post-Roe world, to be truly, pro-choice you should also be pro-YIMBY!

If the Supreme Court overrules Roe, there will be much greater interstate variation in abortion policy than at any time since 1973. Whether and to what extent that leads people to vote with their feet against restrictive jurisdictions remains to be seen.

 

 

 

The post Will People Vote With their Feet for Abortion Rights in a Post-Roe World? appeared first on Reason.com.

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Some highlights of the brief, authored by Cory Liu:

Harvard and UNC’s race-conscious admissions policies divide applicants into the following categories for purposes of determining eligibility for race-based
advantages in the admissions process: (1) Asian; (2) Native Hawaiian or Pacific Islander; (3) Hispanic; (4) White; (5) African American; and (6) Native American.

As Professor David Bernstein has shown, these racial and ethnic categories were created in the mid-1970s by federal bureaucrats whose only goal was to unify the racial and ethnic categories federal agencies used for recordkeeping. David E. Bernstein, The Modern American Law of Race, 94 S. CAL. L. REV. 171, 197–200 (2021); see also DAVID E. BERNSTEIN, CLASSIFIED: THE UNTOLD STORY OF RACIAL CLASSIFICATION IN AMERICA (forthcoming 2022). The categories came about in a haphazard manner without any input from anthropologists, sociologists, ethnologists, or other experts.

The bureaucrats who created the categories expressly warned that they “should not be interpreted as being scientific or anthropological in nature, nor should they be viewed as determinants for eligibility for participation in any Federal program.” 43 Fed. Reg. 19,260, 19,269 (May 4, 1978).

There was never even a hint in the development of the categories that they were established for achieving educationally beneficial diversity in higher education. See Hugh Davis Graham, The Origins of Official Minority Designation, in THE NEW RACE QUESTION: HOW THE CENSUS COUNTS MULTIRACIAL INDIVIDUALS 289 (Joel Perlmann & Mary C. Waters eds., 2002)….

Harvard and UNC’s racial and ethnic categories match the categories adopted by federal agencies, including the Department of Education. Whatever value the categories may have in allowing for consistency in data collection, they lump together members of very diverse groups into arbitrary categories. As Michael Omi and Howard Winant, two of the leading sociologists of race in the United States, point out: “These racial categories are rife with inconsistencies and lack parallel construction. Only one category is specifically racial, only one is cultural, and only one relies on a notion of affiliation or community recognition.” MICHAEL OMI & HOWARD WINANT, RACIAL FORMATION IN THE UNITED STATES 122 (3d ed. 2015); see also PETER H. SCHUCK, DIVERSITY IN AMERICA: KEEPING GOVERNMENT AT A SAFE DISTANCE 164 (2003) (describing the racial categories as “almost comically arbitrary”).

Harvard and UNC cannot explain why they use these particular racial and ethnic categories in their admissions policies….

Given the unduly broad nature of the “Asian” category, it is no surprise that only a minority of people assigned to that category identify as “Asian” or “Asian American.” See JANELLE WONG ET AL., ASIAN AMERICAN POLITICAL PARTICIPATION: EMERGING CONSTITUENTS AND THEIR POLITICAL IDENTITIES 162 (2011) (finding that less than 40% of Indian, Chinese, and Filipino respondents identified as “Asian” or “Asian-American,” even as a secondary identity)….

The question of who counts as “Hispanic” has continually befuddled federal and state authorities. See, e.g., Marinelli Constr. Corp. v. State, 613 N.Y.S.2d 1000, 1002 (N.Y. App. Div. 1994) (denying Hispanic status to a person of Italian-Argentine descent); Major Concrete Constr., Inc. v. Erie Cty., 521 N.Y.S.2d 959, 960 (NY. App. Div. 1987) (denying Hispanic status to a person with one Mexican grandparent); In re Rothschild-Lynn Legal & Fin. Servs., SBA No. MSBE94-10-13-46, 1995 WL 542398, at *3–4 (Apr. 12, 1995) (granting Hispanic status to a Sephardic Jew whose ancestors had fled Spain centuries earlier); In re DCS Elecs., Inc., SBA No. MSBE-91-10-4-26, 1992 WL 558961, at *4 (May 8, 1992) (recounting agency’s conclusion that someone with “blond hair and light skin” was not Hispanic); In re Kist Corp., 99 F.C.C.2d 201, 216–17, 248 (1983) (granting partial minority credit for Hispanic status to a person with one Cuban grandparent); In re Storer Broad. Co., 87 F.C.C.2d 190, 191–93 (1981) (accepting Sephardic Jewish heritage as evidence of Hispanic status); In re Lone Cypress Radio Assocs., Inc., 7 FCC Rcd. 4403, 1992 WL 690184, at *5 (1992) (concluding that while being one-fourth Hispanic is enough to classify someone as Hispanic, being one-eighth Hispanic is not); Participation by Disadvantaged Business Enterprise in Department of Transportation Programs, 62 Fed. Reg. 29,548, 29,550 (May 30, 1997) (reaffirming Department of Transportation decision to classify “persons of European Spanish and Portuguese origin” as Hispanic, even though the latter group is not of Spanish origin or culture)….

There is a tremendous amount of ethnic, cultural, linguistic, and religious diversity within the category of people that Harvard and UNC classify as white…. The category includes, among others, Welsh, Norwegians, Greeks, Moroccans, Chaldeans, Afghans, Iranians, and North African Berbers. To place people descended from all these groups into one category is inconsistent with the goal of achieving genuine educational diversity….

Neither Harvard nor UNC has explained why a white Catholic of Spanish descent, classified as Hispanic, gets an admissions preference for contributing to educational diversity, but a dark-skinned Muslim of Arab descent, an Egyptian Copt, a Hungarian Roma, a Bosnian refugee, a Scandinavian Laplander, a Siberian Tatar, or a Bobover Hasid—all classified as “white”—do not. Similarly, it is hard to see how diversity is better accomplished by admitting an additional “Hispanic” student of Mexican ancestry over an equally or better qualified student whose parents immigrated from Turkmenistan, who would be the only Turkman in the entire student body, because the Turkman is arbitrarily classified as “white.”…

A descendant of American slaves who grew up in a working-class, majority-black neighborhood in Milwaukee does not contribute to diversity in the same way as a child of an African diplomat, nor as a black-identified applicant with multiracial ancestry who grew up in an overwhelmingly white small town in Montana…. Yet they all fall into the same diversity category at Harvard and UNC….

Similarly, the experiences of a Navajo Indian who grew up on the tribe’s reservation in Arizona are quite different from those of a person with one-sixty-fourth Cherokee ancestry and a European surname whose appearance and life are indistinguishable from his “white” neighbors’ except that he has inherited tribal membership….

The racial and ethnic categories that Harvard, UNC, and universities across the country use in their admissions policies were created by executive-branch bureaucrats who specifically warned that they were not scientific or anthropological in nature and should not be used to determine eligibility for benefits in race conscious policies. The categories are imprecise, over and underinclusive, and are not narrowly tailored to achieve educationally beneficial diversity.

Note that the brief does not address the issue of whether a different version of affirmative action for “diversity” purposes could past constitutional muster,  nor whether affirmative action programs based on values other than “diversity” may be constitutional. The brief only addresses the notion that basing affirmative action justified by educational diversity on categories created for entirely different purposes and not meant to reflect any sociological or anthropological reality cannot pass strict scrutiny.

The post Do the Ethnic Categories Used by Universities for "Diversity" Purposes Make Sense? appeared first on Reason.com.

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The leaked draft of a Supreme Court opinion by Associate Justice Samuel Alito overturning Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) has sent shock waves throughout America, with pro-choice and pro-life advocates scrambling to figure out what happens next if the right to an abortion is withdrawn at the federal level. “Roe was egregiously wrong from the start,” wrote Alito in February. “We hold that Roe and Casey must be overruled.”

While there’s no question whether the document is authentic (Chief Justice John Roberts says it is), many questions remain. First and foremost among them: Does the draft, written up in response to Dobbs v. Jackson Women’s Health Organization, a case challenging Mississippi’s ban on abortions after 15 weeks, represent the current thinking of the Court’s majority? We won’t know for sure until a ruling is released sometime before the end of June. 

What’s the best way to think about abortion rights, Roe v. Wade, and Alito’s arguments from a libertarian perspective? I spoke with constitutional scholar Josh Blackman, a professor at South Texas College of Law Houston, an adjunct scholar at the Cato Institute, and a blogger at The Volokh Conspiracy. Blackman is an unabashed admirer of Alito’s draft, writing that it “meticulously dissects, and forcefully responds to, every conceivable position in favor of retaining Roe and Casey.“

I’m not convinced about that at all and, in a wide-ranging conversation about the history of abortion and “fundamental rights,” the changing nature of the Supreme Court, federalism, and partisan politics, we go deep on whether returning decisions about abortion to the states will increase or decrease individual liberty. This is an important discussion about a topic that will likely dominate politics for months to come.

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