SCOTUS overturns Roe megathread (pg 53 - confirmed)

[Skill and Chance]

Nope, SCOTUS trolls us by never releasing the big ones till the end of the term.

This might be a special case?  To prove they can't be intimidated?

[Skill and Chance]

The closest one to central Mississippi will be ... Kansas? Mexico? Maybe Atlanta for now?

Looks like it will depend on what FL and NC do, but if they both ban, it's probably Illinois, Virginia, or Mexico for most of the Southeast.

FL only did a 15 weeks law, but Republicans do control everything and they could revisit it at any time.
 Cooper's veto would be sustained in NC, at least for the rest of this year, but Republicans are close enough to the veto override threshold that it could plausibly be banned or heavily restricted next year.

Closest to the Deep South where it will certainly remain as legal as under Roe would be Illinois.  Also, it will clearly remain mostly legal in VA as Youngkin only asked for 15 weeks.  

[Skill and Chance]

Florida is kind of an interesting case because it has a ton of cheap flights to places like New York, Chicago and California. So not much it can do to keep women from heading out to there.

Of course that's really only convenient for women in South Florida, Orlando and the Tampa Bay area. Out in rural Florida that's still a hassle.

Florida also has an explicit right to privacy in the state constitution, which is probably encouraging restraint.

Arizona also only did 15 weeks so far despite an R trifecta, probably due to the significant libertarian influence there.

[Skill and Chance]

Can France and the UK take the Northeast back under their control, please? I think independence was a mistake.

But really, is it weird that the 6-3 decision actually makes me feel a little better than a 5-4 decision would have? It suggests to me that this was inevitable.

I've said it before, but with all the speculation of how the makeup of the court would be if Ginsburg retired, Garland was confirmed, or Clinton elected I don't think any of that would have led to a majority decision upholding Roe/Casey. I don't think a 5-4 liberal court was ever in the cards-things just don't work out that well for our side ever.

If we ever were to get a majority on the court it would probably have involved either, or both, of the 1988 and 2000 elections going the other way. And even then, considering the butterfly effect, who knows what other consequences would have happened.

We have no choice but to just try and stop things from getting even worse. That's all we can do. Too many Americans lacked the foresight to see this coming in nearly ever past election, save for 2020, and I can only hope that those who care about reproductive rights actually remain proactive, politically, in the future. We only seem to learn lessons as a country when we are already in the abyss. And even then, that's me being optimistic.

I have always thought that this country was doomed from the start, but it's getting ridiculous now and I still can't shake the feeling that things are still going to get even worse. Can you really blame me for thinking that?

AG Garland: States can't ban FDA-approved abortion pills on safety grounds

For now...

Guns now have more rights in the US than women.

"The GOP treat objects like women, man!"

The 2000 election was irrelevant for SCOTUS.  No one left the Court until 2005.  2004 and 2016 were the big ones, assuming Kerry or Clinton would have had a cooperative senate.

[Skill and Chance]

Does the ruling imply anything (binding) with respect to the constitutionality of legislating abortion on a federal level?

No

So any federal abortion law might possibly be struck down on Tenth Amendment grounds.

The commerce clause makes it at least interesting, but the current SCOTUS majority has generally worked to narrow the scope of interstate commerce.  Stuff like large employer employee benefits being  required or prohibited from covering abortion and refundable tax credits reimbursing abortion-related expenses or for giving birth that year pretty clearly could be done federally. 

[Skill and Chance]

Sure but that is why a federalist system works the best as you let the people in each state decide their abortion laws cause it is very hard to reconcile a position of thinking a fetus is a life and then supporting the pro choice position.

So the best compromise imo is letting the people in each state decide democratically what abortion laws they want .

"Yes I think that abortion is infanticide, but also it should be a states' rights issue."

Why would a genuinely pro-life person accept anything less than a national abortion ban?

States rights is the compromise between people who think that and the people who think it should be completely legal

Yes I understand how that meets the definition of a compromise, but my question is why would either side accept those conditions?

Group A thinks that Group B wants to kill babies, and Group B thinks that Group A wants to restrict bodily autonomy. We're not talking about a tax bill here, both groups believe that the other side is evil.

Why would you compromise with people that you think are killing babies? If you really believe that abortion kills a baby, then you should be treating us as Nazi-levels of evil. We'd be some of the worst people to ever exist.

Why compromise with us?

People often recognize geographic and pragmatic limits to achieving their goals, even on moral issues involving human rights.  This, fundamentally, is  the reason the free world is not currently at war with Russia and China.   Even in WWII, we waited until US territory was attacked to get fully involved.     

[Skill and Chance]

They're not stopping.

https://twitter.com/washingtonpost/status/1542463030600032257

Literally unconstitutional

Gorsuch and Roberts won't be on board with this. This is a non-started. If a seventh R justice is named, I think it could happen though.

Kavanaugh said in his concurrence he'd oppose this.

Yes,  Gorsuch is very, very into states rights.  He could be counted on more than anyone else on the right to vote down a federal abortion ban, but he could be fine with far-reaching state laws like this.  The surest conservative votes against this kind of stuff are Roberts and Kavanaugh.

[Skill and Chance]

They're not stopping.

https://twitter.com/washingtonpost/status/1542463030600032257

Literally unconstitutional

Gorsuch and Roberts won't be on board with this. This is a non-started. If a seventh R justice is named, I think it could happen though.

Kavanaugh said in his concurrence he'd oppose this.

He lied to Congress before why do you think he wouldn't lie again?

I don't see why he'd blatantly lie, especially because he's already on the Court, when he can just mislead (as he did by vaguely saying he respected precedent).

I also think there's no way in heck Gorsuch is on board with meaningful restrictions on interstate travel given his state COVID mandate dissents.  This one shouldn't even be particularly close, quite possibly just Thomas and Alito in favor.

[Skill and Chance]

https://twitter.com/leotomalley/status/1544034424429461505?s=21&t=5MFl0eYMut...

I think the only thing these polls consistently show is Americans don’t know what the hell they’re talking about when it comes to abortion. But it’s worth nothing this is one of the best polls for Dobbs defenders so far and still a solid majority are against the decision.

I honestly think most Americans aren’t really thinking about what weeks or trimesters mean in regards to the state of a pregnancy when answering these questions though.

Issue polls are generally worthless , so my belief is the best way to get a good snapshot on what public opinion is by the results of the Kansas referendum and then extrapolate from there  .

IMO it passes, but by single digits, notably closer than Trump vs. Biden.

[Skill and Chance]

https://twitter.com/leotomalley/status/1544034424429461505?s=21&t=5MFl0eYMut...

I think the only thing these polls consistently show is Americans don’t know what the hell they’re talking about when it comes to abortion. But it’s worth nothing this is one of the best polls for Dobbs defenders so far and still a solid majority are against the decision.

I honestly think most Americans aren’t really thinking about what weeks or trimesters mean in regards to the state of a pregnancy when answering these questions though.

Issue polls are generally worthless , so my belief is the best way to get a good snapshot on what public opinion is by the results of the Kansas referendum and then extrapolate from there  .

IMO it passes, but by single digits, notably closer than Trump vs. Biden.

If it’s substantially under performs, even if it passes, It would tell us that these sort of laws aren’t really sustainable in states left of Trump+5. If it fails, that would mean that almost every state where abortion can be legal by popular vote, it will pass so long as the writers of the referendum don’t ask for too much.
Although if it does really well, that could mean that eventually vast majority of states will adopt similar measures.

Hmmm... that would make the Roe overturn roughly analogous to the repeal of Prohibition with the 21st Amendment.  IMO that's the closest plausible outcome to a pro-life total victory.  33 years later, the last statewide dry law was repealed and only 9 states have any counties that remain fully dry today. In 5 of the 9 states, it's just a handful of counties.  In this scenario, elective abortion would probably only remain legal in NYC, coastal California, the D.C. area, and parts of New England by the 2050's.

[Skill and Chance]

https://twitter.com/leotomalley/status/1544034424429461505?s=21&t=5MFl0eYMut...

I think the only thing these polls consistently show is Americans don’t know what the hell they’re talking about when it comes to abortion. But it’s worth nothing this is one of the best polls for Dobbs defenders so far and still a solid majority are against the decision.

I honestly think most Americans aren’t really thinking about what weeks or trimesters mean in regards to the state of a pregnancy when answering these questions though.

Issue polls are generally worthless , so my belief is the best way to get a good snapshot on what public opinion is by the results of the Kansas referendum and then extrapolate from there  .

IMO it passes, but by single digits, notably closer than Trump vs. Biden.

If it’s substantially under performs, even if it passes, It would tell us that these sort of laws aren’t really sustainable in states left of Trump+5. If it fails, that would mean that almost every state where abortion can be legal by popular vote, it will pass so long as the writers of the referendum don’t ask for too much.
Although if it does really well, that could mean that eventually vast majority of states will adopt similar measures.

Hmmm... that would make the Roe overturn roughly analogous to the repeal of Prohibition with the 21st Amendment.  IMO that's the closest plausible outcome to a pro-life total victory.  33 years later, the last statewide dry law was repealed and only 9 states have any counties that remain fully dry today. In 5 of the 9 states, it's just a handful of counties.  In this scenario, elective abortion would probably only remain legal in NYC, coastal California, the D.C. area, and parts of New England by the 2050's.

Just a little more tolerated than assisted suicide or prostitution, then. What do you expect?

I think this is the most likely outcome if it isn't settled relatively quickly with a federal 12 or 15 week European style law.  You have to keep in mind that the education systems in states where it is banned or heavily restricted will undoubtedly teach students that it is a barbaric practice.  These states already have higher birthrates than the most pro-choice states  today and this will only be accentuated after the bans have been in effect for multiple years.  I don't think you can have a political issue this directly related to reproduction that's left up to a vote where the explicitly pro-reproduction side doesn't tend to win more of those votes over multiple generations?

So leaving it the the states should structurally favor the pro-life side in the medium-long run, particularly in states with the initiative/referendum.  Maybe not quite that dramatic of a pro-life victory as I originally depicted because the core NE states don't have the initiative/referendum or elected judges so it would be very difficult to get to the final step where it gets heavily restricted or devolves to the counties there. 

[Skill and Chance]

https://twitter.com/leotomalley/status/1544034424429461505?s=21&t=5MFl0eYMut...

I think the only thing these polls consistently show is Americans don’t know what the hell they’re talking about when it comes to abortion. But it’s worth nothing this is one of the best polls for Dobbs defenders so far and still a solid majority are against the decision.

I honestly think most Americans aren’t really thinking about what weeks or trimesters mean in regards to the state of a pregnancy when answering these questions though.

Issue polls are generally worthless , so my belief is the best way to get a good snapshot on what public opinion is by the results of the Kansas referendum and then extrapolate from there  .

IMO it passes, but by single digits, notably closer than Trump vs. Biden.

If it’s substantially under performs, even if it passes, It would tell us that these sort of laws aren’t really sustainable in states left of Trump+5. If it fails, that would mean that almost every state where abortion can be legal by popular vote, it will pass so long as the writers of the referendum don’t ask for too much.
Although if it does really well, that could mean that eventually vast majority of states will adopt similar measures.

Hmmm... that would make the Roe overturn roughly analogous to the repeal of Prohibition with the 21st Amendment.  IMO that's the closest plausible outcome to a pro-life total victory.  33 years later, the last statewide dry law was repealed and only 9 states have any counties that remain fully dry today. In 5 of the 9 states, it's just a handful of counties.  In this scenario, elective abortion would probably only remain legal in NYC, coastal California, the D.C. area, and parts of New England by the 2050's.

Just a little more tolerated than assisted suicide or prostitution, then. What do you expect?

I think this is the most likely outcome if it isn't settled relatively quickly with a federal 12 or 15 week European style law.  You have to keep in mind that the education systems in states where it is banned or heavily restricted will undoubtedly teach students that it is a barbaric practice.  These states already have higher birthrates than the most pro-choice states  today and this will only be accentuated after the bans have been in effect for multiple years.  I don't think you can have a political issue this directly related to reproduction that's left up to a vote where the explicitly pro-reproduction side doesn't tend to win more of those votes over multiple generations?

So leaving it the the states should structurally favor the pro-life side in the medium-long run, particularly in states with the initiative/referendum.  Maybe not quite that dramatic of a pro-life victory as I originally depicted because the core NE states don't have the initiative/referendum or elected judges so it would be very difficult to get to the final step where it gets heavily restricted or devolves to the counties there.  

If this was kind of true, we would have never gotten to this point in the first place. What’s also interesting is how now even very fertile, poor, or conservative countries are reevaluating their laws….but it’s not like fetal personhood can’t be slowly universalized like gay marriage has been. I think if there are 40+ states or even 35+ states that make abortions illegal then there it would be codified into federal law. At that point, it would make a lot more sense because it would be easy-ish to enforce.

Why not?  It was more or less imposed top-down by educated elites on a supermajority of states.

Personhood is different and implies a whole slew of legal rights for the fetus/restrictions on the mother beyond the simple right to life.  Personhood amendments consistently lose a large percentage of abortion = killing voters even in very conservative states.  This is also why I would hesitate to compare the Kansas "let the legislature regulate" referendum to personhood amendments.  I don't know if it will pass, but I expect it to be closer than the fetal personhood votes in the Dakotas and Mississippi.   

[Skill and Chance]

https://twitter.com/leotomalley/status/1544034424429461505?s=21&t=5MFl0eYMut...

I think the only thing these polls consistently show is Americans don’t know what the hell they’re talking about when it comes to abortion. But it’s worth nothing this is one of the best polls for Dobbs defenders so far and still a solid majority are against the decision.

I honestly think most Americans aren’t really thinking about what weeks or trimesters mean in regards to the state of a pregnancy when answering these questions though.

Issue polls are generally worthless , so my belief is the best way to get a good snapshot on what public opinion is by the results of the Kansas referendum and then extrapolate from there  .

IMO it passes, but by single digits, notably closer than Trump vs. Biden.

If it’s substantially under performs, even if it passes, It would tell us that these sort of laws aren’t really sustainable in states left of Trump+5. If it fails, that would mean that almost every state where abortion can be legal by popular vote, it will pass so long as the writers of the referendum don’t ask for too much.
Although if it does really well, that could mean that eventually vast majority of states will adopt similar measures.

Hmmm... that would make the Roe overturn roughly analogous to the repeal of Prohibition with the 21st Amendment.  IMO that's the closest plausible outcome to a pro-life total victory.  33 years later, the last statewide dry law was repealed and only 9 states have any counties that remain fully dry today. In 5 of the 9 states, it's just a handful of counties.  In this scenario, elective abortion would probably only remain legal in NYC, coastal California, the D.C. area, and parts of New England by the 2050's.

Just a little more tolerated than assisted suicide or prostitution, then. What do you expect?

I think this is the most likely outcome if it isn't settled relatively quickly with a federal 12 or 15 week European style law.  You have to keep in mind that the education systems in states where it is banned or heavily restricted will undoubtedly teach students that it is a barbaric practice.  These states already have higher birthrates than the most pro-choice states  today and this will only be accentuated after the bans have been in effect for multiple years.  I don't think you can have a political issue this directly related to reproduction that's left up to a vote where the explicitly pro-reproduction side doesn't tend to win more of those votes over multiple generations?

So leaving it the the states should structurally favor the pro-life side in the medium-long run, particularly in states with the initiative/referendum.  Maybe not quite that dramatic of a pro-life victory as I originally depicted because the core NE states don't have the initiative/referendum or elected judges so it would be very difficult to get to the final step where it gets heavily restricted or devolves to the counties there. 

If this was kind of true, we would have never gotten to this point in the first place. What’s also interesting is how now even very fertile, poor, or conservative countries are reevaluating their laws….but it’s not like fetal personhood can’t be slowly universalized like gay marriage has been. I think if there are 40+ states or even 35+ states that make abortions illegal then there it would be codified into federal law. At that point, it would make a lot more sense because it would be easy-ish to enforce.

Why not?  It was more or less imposed top-down by educated elites on a supermajority of states.

Personhood is different and implies a whole slew of legal rights for the fetus/restrictions on the mother beyond the simple right to life.  Personhood amendments consistently lose a large percentage of abortion = killing voters even in very conservative states.  This is also why I would hesitate to compare the Kansas "let the legislature regulate" referendum to personhood amendments.  I don't know if it will pass, but I expect it to be closer than the fetal personhood votes in the Dakotas and Mississippi.   

What I am trying to say is that just because a trait is dominant in the reproducing population doesn’t necessarily mean it will become the dominant trait in society. You do have a point about there being a DARE-style War on Abortion in Red States, but it didn’t really work with drugs. It was obvious propaganda back then and it will probably be obvious propaganda now.

By “obvious propaganda”, I meant that you will believe that marijuana or sex will kill you or you will go to jail for it but only until you are old enough to not believe everything you are told.

DARE style programs with abortion. That will be interesting to see. I think I made or try to make a thread about it. The only taker was either a Spanish or Portuguese poster who said that their experience wouldn’t be analogous because it was under a fascist regime.

Hmmm... note that 18 years from now there will be people who are starting to vote but would have been aborted without the state laws in question, assuming they stick.  Abortions are currently about 20% of pregnancies nationwide.  If that gets cut even by 25%, that's several percent of the 2040 electorate that wouldn't have been there but for state level abortion restrictions.  Do they reasonably know who they are?  If they do and they aren't terribly, terribly depressed about their lives (even non-elite ancient people living on like $1K/year in today's money generally didn't wish they had never been born), they have the makings of a single issue pro-life block vote.  That is also how it could start to detach from partisan politics. These people would automatically vote pro-life in a referendum, but back D or R candidates based on the new political issues of 2040.     

[Skill and Chance]

Also keep in mind there was a very significant element of Protestant vs.Catholic identity politics to abortion when Roe was decided that feels very foreign to us today.  However, this does explain why Biden (NE Catholic born in the 1940's who grew up working class) and Trump (born in the 1940's and grew up in an NYC Protestant elite family) only switched sides on this issue very recently.

[Skill and Chance]

https://twitter.com/DomDiFurio/status/1545578712732688386

So now 17 year olds can vote and 20 year olds drink?

Those are both tied to an adult being a specific age, so I don't see how a pregnancy would be relevant.

A more interesting question would be deportation of a pregnant woman, but that probably wouldn't come up unless fetal personhood was recognized at the federal level.

[Skill and Chance]

Not been on the forum for a while so this may have been discussed but what do you guys think of the idea to nuke the filibuster and legalize abortion nationwide?

I guess it's kind of moot because the SC would almost surely strike that down, but that seems like a dangerous road to go down because you're setting up Republicans to not just repeal it when they get in power again but to use that precedent to ban abortion in all 50 states in Congress. As it stands it's going to be legal in the overwhelming majority of the country, especially going by population.

It can only hurt the pro-choice side.  Either SCOTUS rules that there is no federal issue and most of the red state abortion bans are locked in for the century or SCOTUS allows it but then it flip-flops between legal nationwide and banned nationwide every 4-8 years if the filibuster is gone.  It only makes sense for either side to pursue federal legislation if there is a 60+ vote bipartisan deal to be had. 

[Skill and Chance]

Not been on the forum for a while so this may have been discussed but what do you guys think of the idea to nuke the filibuster and legalize abortion nationwide?

I guess it's kind of moot because the SC would almost surely strike that down, but that seems like a dangerous road to go down because you're setting up Republicans to not just repeal it when they get in power again but to use that precedent to ban abortion in all 50 states in Congress. As it stands it's going to be legal in the overwhelming majority of the country, especially going by population.

It can only hurt the pro-choice side.  Either SCOTUS rules that there is no federal issue and most of the red state abortion bans are locked in for the century or SCOTUS allows it but then it flip-flops between legal nationwide and banned nationwide every 4-8 years if the filibuster is gone.It only makes sense for either side to pursue federal legislation if there is a 60+ vote bipartisan deal to be had.

With all due respect, not only is your overall conclusion wrong here, but the bolded part is simply not grounded in anything resembling reality and completely ignores almost every major political lesson of the last decade.

If federal abortion policy can be set with only 50 senate votes or even worse, by executive order, it will flip-flip between banned and legalized every time the opposite party takes office.  We see this with the Mexico City Policy, which has been immediately repealed by every Democratic president and then immediately reinstated by every Republican president since Reagan.

[Skill and Chance]

Saw in the news that Mississippi's last abortion clinic, the Jackson Women's Health Organization, is officially closed and will not reopen. Abortion is now completely unavailable in Mississippi, even in cases where it is theoretically "legal."

Some of those cases would be performed at a traditional hospital, like for emergency care, right?

[Skill and Chance]

If President Biden (or any future President) were to pull an Andrew Jackson on this court (and render it impotent forever), I doubt there will be much of a backlash.

There's no reason not to. SCOTUS does not have the authority to determine what's constitutional or not other than the authority they give themselves. They can't enforce any of their rulings, while Biden has the National Guard which he can nationalize at will. Station the Guards at abortion clinics in red states like desegregated schools in the Jim Crow South to protect women getting abortions. There would be no recourse other than impeachment and removal which obviously wouldn't happen in a divided Senate, so he'd get off scot free.

1. An activist prosecutor in a red state would  probably find a way to prosecute Biden under state law after he leaves office. 
2. If he does this successfully, the next Republican president would send the National Guard to raid and shut down blue state abortion clinics and ignore any contrary court rulings.  Ignoring the courts is a one-way street toward a dictatorship. 

[Skill and Chance]

And here's a thought to put out there. What if women stopped having sex and having babies? What if women went on a protest? Where would our society be then? How would men like that?

That's how valuable women are to making this country great. And yet, look at what is happening to them on a physical level. We are treating our valuable female citizens who gave life to everyone reading this, as criminals and stupid morons who can't manage their own health and bodies. What a big cringe.

Interesting, a Lysistrata situation. That would require a pretty big organized effort though.

To a significant degree, isn't that what many social conservatives would want to happen?

[Skill and Chance]

Remember the days when people thought that the Religious Right was just a bunch of useful idiots for the real Republican agenda (laissez faire capitalism)?

Roe was literally one vote away from being overturned in 1992 and it would have been overturned if not for the Democrats taking control of the senate in 1986. Keep in mind while 8 of the 9 justices in 1992 were appointed by Republican Presidents, only 2 of of the 9 were confirmed by a Republican senate. A Democratic Senate also rejected 3 nominations in this time period and that very likely saved Roe in 1992.

Since 1992 5 justices were nominated by a Republican President but all 5 were confirmed by a Republican Senate and that is why Roe was overturned.

Roe was overturned because the right-wing created an entire organization (The Federalist Society) for the specific purpose of enacting an agenda through a takeover of the judiciary. It's also worth remembering that Roe didn't even need any Democratic-appointed Justices. Two Eisenhower appointees and three out of four of Nixon's appointees were in the majority.

You like to mention how the Senate killed the Bork nomination, yet you fail to mention that Reagan was not denied a pick. First of all, it's quite possible Bork would've failed to get through a Republican Senate. Six Republicans voted against his confirmation. You can blame Douglas Ginsburg not getting confirmed on the anti-drug hysteria of the '80s. He probably would've been confirmed otherwise and this would be a very different country. As for Nixon's failed nominations, you had 17 and 13 Republicans voting against Haynsworth and Carswell, respectively. I think those two are so controversial that not even Republicans bring them up, unlike Bork.

Of course, you also fail to mention that LBJ was denied his pick to replace Earl Warren. Abe Fortas was filibustered by conservatives, led by Strom Thurmond. If Fortas had gotten through, his successor for Associate Justice would've been Homer Thornberry. They were far more liberal than the Justices that ended up with those seats (Burger and Blackmun). It would've been more conservative than the Warren Court (particularly after Justice Douglas retired), but well to the left of what actually happened.

Interestingly, Carswell was secretly gay and would have lived long enough to hear Bowers v. Hardwick if he had been appointed to SCOTUS.  However, Blackmun already dissented IRL so he couldn't have changed the outcome.  His seat would have been filled by Clinton if he stayed on SCOTUS for the rest of his life.  

[Skill and Chance]

Remember the days when people thought that the Religious Right was just a bunch of useful idiots for the real Republican agenda (laissez faire capitalism)?

Ehhh... the beliefs are more reconcilable than you think.  The guiding principle would be something like "intervening to disrupt what would otherwise happen naturally is usually wrong."  This would also favor isolationism and a hands-off approach to COVID.

[Skill and Chance]

I was just mentioning the importance of which party controls the senate when it comes to these picks and its just misleading to not take this into account. Like yah Haynsworth and Carswell still get rejected with a Republican Senate but its very possible with a Republican Senate Nixon nominates people like say Paul Laxalt , or Malcom Lucas

Well, a Republican filibuster effectively gave Nixon two appointments that would've otherwise gone to LBJ. That was a concerted effort on the part of the right to move the Court to the right. And the last Republican Senate to approve a Democratic appointee was in 1895.

My overall point though was that Democrats were not opposed to giving Republican Presidents massive deference in terms of their nominees. You don't always swing for the fences with every nominee even when you have the majority. (Even so, Scalia was confirmed unanimously.) Before RBG passed, the Court had a certain equilibrium for decades. That has been completely upended. Even someone as conservative as Roberts as the median Justice was acceptable to the general public (even after decades of people like Powell, O'Connor, and Kennedy in the middle of the Court).

My other point was that Bork could very well have been defeated in a Republican Senate as well.

Haynsworth was openly segregationist in the years leading up to his nomination, which puts him way out of bounds in a way that's distinct from everyone else in this discussion.

Carswell had made segregationist comments in a political speech while running for office in rural Georgia >20 years before his nomination.  Whether or not he still secretly held those views was unclear, but he had publicly disavowed them.  In any event, he was a clear judicial conservative and there's no way he would have joined Roe, let alone written it.  If the other justices were the same, it would have still been 6/3 to legalize abortion, though quite possibly with different reasoning.

Interestingly, Carswell was secretly gay and would have lived long enough to hear Bowers v. Hardwick if he had been appointed to SCOTUS.  However, Blackmun already dissented IRL so he couldn't have changed the outcome.  His seat would have been filled by Clinton if he stayed on SCOTUS for the rest of his life.

My point wasn't about the possibility of either of them being confirmed. It was in response to the fact that three Republican-appointed SCOTUS nominees were defeated under Democratic Senates. That seat ended up going to Blackmun. While he was liberal during his later years, he was generally more conservative in his early years (particularly on the death penalty). I do have to wonder what would've happened if Fortas had become Chief Justice (or if LBJ had picked someone else and they were confirmed in time).

If LBJ hadn't pressured Goldberg to leave for Fortas, Goldberg would have lived into Bill Clinton's term, securing the seat for the left for the long haul. 

[Skill and Chance]

I was just mentioning the importance of which party controls the senate when it comes to these picks and its just misleading to not take this into account. Like yah Haynsworth and Carswell still get rejected with a Republican Senate but its very possible with a Republican Senate Nixon nominates people like say Paul Laxalt , or Malcom Lucas

Well, a Republican filibuster effectively gave Nixon two appointments that would've otherwise gone to LBJ. That was a concerted effort on the part of the right to move the Court to the right. And the last Republican Senate to approve a Democratic appointee was in 1895.

My overall point though was that Democrats were not opposed to giving Republican Presidents massive deference in terms of their nominees. You don't always swing for the fences with every nominee even when you have the majority. (Even so, Scalia was confirmed unanimously.) Before RBG passed, the Court had a certain equilibrium for decades. That has been completely upended. Even someone as conservative as Roberts as the median Justice was acceptable to the general public (even after decades of people like Powell, O'Connor, and Kennedy in the middle of the Court).

My other point was that Bork could very well have been defeated in a Republican Senate as well.

Haynsworth was openly segregationist in the years leading up to his nomination, which puts him way out of bounds in a way that's distinct from everyone else in this discussion.

Carswell had made segregationist comments in a political speech while running for office in rural Georgia >20 years before his nomination.  Whether or not he still secretly held those views was unclear, but he had publicly disavowed them.  In any event, he was a clear judicial conservative and there's no way he would have joined Roe, let alone written it.  If the other justices were the same, it would have still been 6/3 to legalize abortion, though quite possibly with different reasoning.

Interestingly, Carswell was secretly gay and would have lived long enough to hear Bowers v. Hardwick if he had been appointed to SCOTUS.  However, Blackmun already dissented IRL so he couldn't have changed the outcome.  His seat would have been filled by Clinton if he stayed on SCOTUS for the rest of his life.

My point wasn't about the possibility of either of them being confirmed. It was in response to the fact that three Republican-appointed SCOTUS nominees were defeated under Democratic Senates. That seat ended up going to Blackmun. While he was liberal during his later years, he was generally more conservative in his early years (particularly on the death penalty). I do have to wonder what would've happened if Fortas had become Chief Justice (or if LBJ had picked someone else and they were confirmed in time).

If LBJ hadn't pressured Goldberg to leave for Fortas, Goldberg would have lived into Bill Clinton's term, securing the seat for the left for the long haul. 

The seat’s already secured, though. It’s KBJ’s.

Whoops.  Actually, I made an error.  Goldberg passed away in 1990 and wouldn't have had a favorable retirement opportunity after 1980, so the seat would have likely "flipped."  On the other hand, Nixon not getting a proto-originalist into the Fortas seat and then Blackmun going hard left was sheer dumb luck.

Fortas not being corrupt and getting CJ wouldn't necessarily help the left in the long run.  He passed away in 1982 when Republicans would have controlled the appointment process.  He could have retired under Carter if he knew he was sick, I guess. 

[Skill and Chance]

Abortion should not be left up to legislators. Kansas was able to vote on the matter and the people chose to keep abortion practices in tact. What the majority of American people want is far more valuable than what a bunch of disinterested political folks try to force us to want. But we live in a patriarchal society where what is good for the woman is not necessarily the path we follow, and that's how the cookie crumbles.

I'm not sure this is so clear cut.  More women than men have voted in every presidential election since 1984, and women outvote men most dramatically in the Deep South (most Southern states had 55%+ female electorates in 2020).  That timeframe covers the appointments of the entire current SCOTUS.  To whatever extent current policy doesn't reflect what women want, it's a huge stretch to blame men at this point.  This goes doubly so for state-level policy in the South.