SCOTUS - The Good, The Bad, and The Ugly

[pg]

Apr 7, 2022 18:22:06 GMT goldenvalley said:

And the Senate just confirmed a new Supreme Court justice, Ketanji Brown Jackson. 

Yes. We have some real nutballs out there "running" things. But let's celebrate the first, completely qualified black woman on SCOTUS.

We shall see, but this confirmation seems so right and proper. 

[LFC]

Right-wing partisan hack SCOTUS came to the rescue.

Wisconsin Republicans Win Gerrymander War

The Wisconsin Supreme Court approved the district maps drawn by Republicans after the U.S. Supreme Court intervened in the state’s redistricting battle to strike down the maps crafted by Gov. Tony Evers (D).

[LFC]

Here comes the white, male dominated theocracy. Sorry gays. Sorry women who want to use birth control rather than be forced to choose between being celibate or a state mandated incubator. "Originalism" doesn't recognize your rights.

So, yes, we all told you this was inevitable. And now it is here.

But “you”—by which I mean the large majority of voters who say that women have a right to control their own bodies—didn’t listen. The Supreme Court ranked at the bottom of Democrats’ concerns in 2016, while it was at the top of Republicans’. Even after the unprecedented and norm-shattering mistreatment of judicial nominee Merrick Garland, many centrist voters didn’t care and some left-wing voters didn’t think it was enough to stomach voting for Hillary Clinton.

So we got Justices Gorsuch, Kavanaugh, and Barrett, and now, if this draft becomes the majority opinion, we’ve got the end of Roe v. Wade.

But that’s only the beginning of the end. If the reasoning of the draft becomes the majority opinion—and it is worth stressing that this is by no means assured, since it is a draft and may well be watered down by other justices—then it applies equally to Obergefell v. Hodges, which held that all marriages (including my same-sex one) are protected by the Constitution; to Lawrence v. Texas, which held that all intimate sexual activity (including same-sex) was too; and to Griswold v. Connecticut, which held that the right to access contraception is as well.

All those cases held that certain specific rights to bodily integrity and privacy, though unmentioned in the Constitution, are implicit in the broad guarantees of the 14th Amendment, as long as they were part of the “concept of ordered liberty.” It’s not part of the concept of liberty to police a woman’s uterus or a gay man’s bedroom. There are limits to government power, and no process can be “due process” if it transgresses those limits.

But in so-called Originalism, a once-fringe legal theory that is now the gospel of half the Supreme Court, a right must also be “part of the Nation’s history and traditions” to be protected. Sorry, women and gays, you’re not part of our white-male-dominated history and traditions, so the constitution doesn’t protect you.

To be clear, Justice Alito didn’t leave this to speculation. He specifically mentioned Obergefell and Lawrence as examples of the same faulty reasoning behind Roe.

So, in case folks weren’t listening when all those legal Cassandras warned that Roe was going to be overturned, please listen now: Gay marriage is too. Within a year or two. Unless another justice leaves the court, the constitutional right to marriage for all is going to be overturned. The only question is whether Republicans will have a veto-proof majority (or the presidency in 2024) to ban both abortion and gay marriage anywhere in the nation.

I’m not sure where that leaves my custody of my child, but I can tell you that I am certain that my family will not be protected by the Constitution two years from now.

[jackd]

Might be a blessing in disguise. Conventional wisdom said Democrats weren't motivated for the mid=terms. This ought to change that. I think that's why McConnell is so upset.

[pnwguy]

The United States of Gilead -- brought to you by MAGAts, American oligarchs, and the right wing entertainment industry. Only in this TV show, Canada probably won't be a safe place to flee to.

Will someone start a web site to sell cyanide tablets?

[AnBr]

[LFC]

Five Key Takeaways From The Bombshell SCOTUS Draft Opinion Dismantling Roe. Alito is a radical.

1 Alito has some thoughts about ‘abortionists.’

Alito leaves little question of his hostility toward doctors who provide abortions: He refers to them as “abortionists” three times in the draft.

The word, like many in the abortion debate, is freighted with sinister implications and often hijacked by the anti-abortion movement.

As one peeved abortion provider wrote to the New York Times in 1993, taking issue with their usage of the word in a headline: “The term abortionist has been used most often to describe illegal actors in a sleazy world of avaricious, incompetent criminals exploiting immoral women in a sordid and hazardous procedure.”

He even invoked a full debunked Clarence Thomas opinion. Welcome to Justice Samuel Q Alito.

2 Alito goes all the way to tying abortion to eugenics.

In one footnote, Alito attempts to tie legal abortion access to the racist eugenics movement through a reference to amicus briefs that present the “motives of proponents of liberal access to abortion.”

“They note that some such supporters have been motivated by a desire to suppress the size of the African-American population,” the justice writes.

It’s a wink at a claim made by Thomas in a different abortion case out of Indiana in 2019 called Box v. Planned Parenthood. Thomas wrote a 20-page concurring opinion, somewhat separate from the specific facts of the case at hand, where he argued that “abortion is an act rife with the potential for eugenic manipulation.”

Scholars, including the one who wrote the book Thomas heavily cited, have debunked Thomas’ claim for a number of reasons, not least on the issue of autonomy. The eugenics movement depended on blocking a woman’s bodily autonomy and giving the government the power to decide who was worthy of reproducing. Abortion rights reverse that idea, giving women the power to terminate pregnancies they don’t want.

Many have also pointed out that Thomas’ claims are simply historically inaccurate. Most eugenists were against abortion, worried that only wealthy women — considered members of a supposedly desirable gene pool — would use it.

Thomas in the same 2019 opinion cites birth control as another tool to effectuate eugenics, a reminder that many anti-abortion activists have long eyed the right to contraception as abortion’s only slightly less reprehensible cousin.

[LFC]

Alito’s Opinion is Traditionalism Masquerading as Originalism

One might note that these phrases are, like privacy, nowhere found in the constitution and are asserted more than grounded in textual or interpretative arguments. Despite the specific phrases coming from other cases, Alito invokes them in a context in which they are entirely elastic in their meanings. But the argument Alito is advancing seems more visceral than jurisprudential or interpretive. I think it can be fairly read as gays by definition can’t have constitutional rights because for most of our history it was treated as a given that homosexuality was abhorrent, abnormal and wrong. As one follower on Twitter commented to me, it’s sort of like a remade grandfather clause. If people didn’t think it was legit in the 1930s that’s just the end of the story. Period.

If we go completely originalist then we say that the norms in place when women couldn't vote must define us today.

[LFC]

Alito also called back to Barret's evoking the weak anti-abortionist "safe haven" argument.

[pnwguy]

The draft’s logic on "unenumerated rights" also means SCOTUS should nullify Eisenstadt, Griswold, Lawrence, Obergefell, and even Lovings, if any cases challenging those decisions reach the high court. I'm not sure what state legislature would bring a challenge to Lovings in the 21st century, but let's assume Justice Thomas might vote against it.

Why should SCOTUS not uphold a state law that grants fathers the right to arrange marriages for their daughters, or to veto their choice of mates, even as adults? Where does it say in the Constitution that marital autonomy is allowed? Was it part of US history and culture in the founders' era?

[LFC]

[goldenvalley]

May 4, 2022 17:11:20 GMT LFC said:

Alito’s Opinion is Traditionalism Masquerading as Originalism

One might note that these phrases are, like privacy, nowhere found in the constitution and are asserted more than grounded in textual or interpretative arguments. Despite the specific phrases coming from other cases, Alito invokes them in a context in which they are entirely elastic in their meanings. But the argument Alito is advancing seems more visceral than jurisprudential or interpretive. I think it can be fairly read as gays by definition can’t have constitutional rights because for most of our history it was treated as a given that homosexuality was abhorrent, abnormal and wrong. As one follower on Twitter commented to me, it’s sort of like a remade grandfather clause. If people didn’t think it was legit in the 1930s that’s just the end of the story. Period.

If we go completely originalist then we say that the norms in place when women couldn't vote must define us today.

And a Black person is 3/5th of a person and not allowed to vote.

[jackd]

Well, not to dignify Alito's opinion, but women and African American voting rights are covered by specific amendments to the Constitution. Interestingly, the court's power to rule on constitutionality of anything is not specifically provided in the constitution. John Marshall "made it up" from Alito's apparent perspective.

[LFC]

May 4, 2022 18:38:36 GMT jackd said:

Well, not to dignify Alito's opinion, but women and African American voting rights are covered by specific amendments to the Constitution.

I thought the point being made was that Alito is trying to harken back to those times before those amendments as a justification in a time after the amendments were passed. Perhaps I interpreted it wrong.

Interestingly, the court's power to rule on constitutionality of anything is not specifically provided in the constitution. John Marshall "made it up" from Alito's apparent perspective.

Whoa. I had never heard that before.

[LFC]

TPM has a primer on who would have actually had access to the opinion and could potentially leak it.

Speculation has abounded over who may have leaked Justice Samuel Alito’s draft opinion overturning Roe v. Wade.

But there’s a question key to understanding the range of possible answers: who in the Supreme Court has access to draft opinions? What processes does the Court maintain to circulate these closely held documents?

TPM spoke with several former Supreme Court clerks, including four who held the job during Chief Justice John Roberts’ tenure, to better understand who has access to draft opinions, and how the Court’s internal processes work. (TPM did not speak to any clerk who had worked at the Court since the COVID-19 pandemic, which may have further altered some processes.)

Crucial to understanding who would have had access to this opinion, these clerks said, is the fact that Politico appears to have obtained and published a copy of the document that was at one time printed out. That suggested that it was “a physical copy,” not just an electronic one, according to Travis Crum, a Washington University in St. Louis law professor who clerked for Justices Kennedy and Stevens in 2014 and 2015.

Also important, some of the former clerks noted, was that the draft opinion included a stamp in the upper right hand corner. The stamp is added “when you have a draft to circulate — they print it out, and then stamp it,” another former law clerk told TPM.

From that point, former clerks said, there are four categories of Supreme Court staff that would have access to a physical copy of a draft opinion of the kind obtained by Politico. For each, leaking an opinion would be a huge risk without parallel in recent history. It remains unclear whether the person who did so was from one of these four groups of Court workers, or are someone else entirely.

“The four most obvious categories of who would have legally had access to that document would be the justices, of course, their clerks, their assistants,” and aides that carry the physical copies between the chambers, Jamal Greene, a Columbia Law professor who clerked for Justice Stevens, told TPM.

Each category has different duties when it comes to circulating a draft opinion.

Details follow.

[LFC]

Josh Marshall believes the draft was leaked by the right to prevent Roberts from gaining traction with a justice to provide a less maximalist, radical, precedent crushing decision. He makes an interesting case.

I guess others clearly had. But I had not seen this April 26th Journal oped about the jockeying on the Mississippi abortion case until now. It’s very, very clarifying.

After Politico’s exclusive on Monday night publishing the draft Alito majority opinion, CNN followed rapidly that same evening with very specific details about Roberts’ position on the case, resisting joining the majority opinion and perhaps trying to lure one of the five Justices to a narrower ruling. When that second story came out so quickly I said that it made me think that the breakdown of secrecy on this case went beyond the leak of the draft opinion. Reading the Journal OpEd from last week makes that basically a certainty.

Read the Journal oped. It walks very clearly through the current deliberations of the Court, including Roberts’ effort to bring at least one hardliner over to a more limited, though still highly restrictionist, ruling.

These three paragraphs stand out, especially in the light of the reporting from Monday night …

But Chief Justice John Roberts tried during the oral argument to find a middle way. He appeared to want to sustain the Mississippi law on grounds that it doesn’t violate Casey’s test of whether there is an “undue burden” on the ability to obtain an abortion. If he pulls another Justice to his side, he could write the plurality opinion that controls in a 6-3 decision. If he can’t, then Justice Thomas would assign the opinion and the vote could be 5-4. Our guess is that Justice Alito would then get the assignment.

The Justices first declare their votes on a case during their private conference after oral argument, but they can change their mind. That’s what the Chief did in the ObamaCare case in 2012, much to the dismay of the other conservatives. He may be trying to turn another Justice now.

We hope he doesn’t succeed—for the good of the Court and the country. The Chief’s middle ground might be explainable with some legal dexterity, but it would prolong the Court’s abortion agony. Critics on the left would still lambaste the Court for letting Mississippi’s law stand. And states would soon pass more laws with even narrower restrictions that would eventually force the Justices to overturn Roe and Casey or say the precedents stand on solid ground.

I’ve done a bit of this myself in the past. You string out what you’ve learned to be the fact of the matter as a series of hypotheticals and logical deductions. It’s very clear that the jockeying among the six Republican appointees has been shared in the elite GOP legal circles that have a direct line into the Journal oped page. Clear as day. And that tells you pretty much to a certainty what was already seeming fairly clear: that the leak came from determined anti-Roe advocates trying to lock in Alito’s ‘take no prisoners’ elimination of Roe. Clear as day.

[LFC]

Partisan hack SCOTUS has opened up Pandora's fascist box and the fascists know it. Greg Abbott is already crowing about taking it further. They know that the partisan hacks have decided that precedent has no meaning anymore. It's a whole new activist court.

After Roe, Anything Goes

Texas Gov. Greg Abbott (R) told a right-wing radio host on Wednesday that he may “resurrect” a decades-old Supreme Court challenge that ended with the high court ruling in the 1982 case Plyler v. Doe that undocumented immigrants must be allowed to have a public education regardless of their citizenship status.

• Abbott said it was time to bring back the challenge because “the times are different than when Plyler v. Doe was issued many decades ago.” Not really subtle about the fact that the GOP governor feels emboldened to “resurrect” anything now that the Supreme Court’s conservative majority has been shown to be perfectly willing to throw precedents like Roe v. Wade into the wood chipper.

[goldenvalley]

May 5, 2022 14:13:43 GMT LFC said:

Josh Marshall believes the draft was leaked by the right to prevent Roberts from gaining traction with a justice to provide a less maximalist, radical, precedent crushing decision. He makes an interesting case.

I guess others clearly had. But I had not seen this April 26th Journal oped about the jockeying on the Mississippi abortion case until now. It’s very, very clarifying.

After Politico’s exclusive on Monday night publishing the draft Alito majority opinion, CNN followed rapidly that same evening with very specific details about Roberts’ position on the case, resisting joining the majority opinion and perhaps trying to lure one of the five Justices to a narrower ruling. When that second story came out so quickly I said that it made me think that the breakdown of secrecy on this case went beyond the leak of the draft opinion. Reading the Journal OpEd from last week makes that basically a certainty.

Read the Journal oped. It walks very clearly through the current deliberations of the Court, including Roberts’ effort to bring at least one hardliner over to a more limited, though still highly restrictionist, ruling.

These three paragraphs stand out, especially in the light of the reporting from Monday night …


I’ve done a bit of this myself in the past. You string out what you’ve learned to be the fact of the matter as a series of hypotheticals and logical deductions. It’s very clear that the jockeying among the six Republican appointees has been shared in the elite GOP legal circles that have a direct line into the Journal oped page. Clear as day. And that tells you pretty much to a certainty what was already seeming fairly clear: that the leak came from determined anti-Roe advocates trying to lock in Alito’s ‘take no prisoners’ elimination of Roe. Clear as day.

Yeah the draft opinion goes way beyond what was needed to find the MS law to be Constitutional.  Those recently appointed justices want to find a way to uphold the Texas law so they had to go big with abolishing all of Roe.  

Roberts is a hair splitter who doesn't like big sweeping decisions.   Roberts is, in a way, an old school judicial restraint justice, but I still think he'd dive deep to kill off the Voting Rights Acts...that's his real passion, not abortion.

[jackd]

Maybe Josh is right but I think it is equally likely that one of the Democratic dissenters did it to fire up the Democratic voters for the midterms. There's a reason McConnell and McCarthy were outraged and it has nothing to do with Supreme Court custom. They are counting on taking over Congress. I'm going to bet on Breyer who is retiring and may have feared the Court would hold up the opinion until after the midterms which they could do. Whatever the cause, it was a boon to the Democrats for the midterms.

[LFC]

Josh Marshall notes another author who believes the leak came from the left, but is using some of the same reasoning i.e. the deliberations and inside court business was already clearly being leaked by the right to outlets like the WSJ.

Tom Goldstein of SCOTUSBlog published a new leak speculation story earlier this afternoon. And it’s fascinating. First off, he thinks the opinion is most likely to have been leaked by a liberal. So he has a different take than the one I’ve been advancing. But what is so interesting to me is that how he gets there overlaps a lot with my thinking (and, to be clear, that of many others).

What I’ve been arguing is that the we now know there was an anti-Roe leak campaign to the Journal and other news outlets. Given that we know a pressure campaign was afoot on the right and that it involved leaking confidential information to the press that it’s highly likely that the release of the opinion was part of that campaign. There are other reasons I think that too. But that’s the key one. Goldstein agrees on part one: that there was a right wing leak campaign to shore up the five Justices against Roberts. But he thinks the the opinion leak was in reaction to that. In other words, given that people on the right were already leaking details of the deliberations against Roe, some liberal thought they were justified in pushing back in the opposite direction by releasing the draft opinion itself.

Here’s some key text …

It is also important to look at the leak of the opinion through the lens of the fact that someone – almost certainly a conservative – had just before leaked the court’s tentative decision and the state of the voting to The Wall Street Journal. That leak was itself an extraordinary and unethical breach of confidences and certainly caused very deep concern inside the court.

My guess is that someone on the left felt somewhat justified in releasing the opinion in response. Through the opinion, one would see what the Journal was saying Kavanaugh and Barrett were considering. That leak was a historically unprecedented violation of the deepest and most solemn trust among the justices and the court’s staff. It wounded the institution.

This is certainly possible. (I mean, anything’s possible.) And while I’m fairly confident in my opinion Goldstein certainly knows the Court far better than I do. What is notable to me though is that we seem to be moving towards a broader consensus that there were a series of leaks. And thus, to the extent there was some breakdown in the function and norms of the Court, it went far beyond just the leak of the opinion draft to Politico.

[goldenvalley]

Is the Supreme Court so sacred anymore? You're got partisans refusing to appoint a new justice for a whole year after one dies. You have the same partisans appointing and confirming another justice within 3 months of another one dying. The Court is not off limits to partisan behavior anymore. This handwringing is just a SQUIRREL exercise.

[LFC]

Vox got the opinions of 9 legal scholars on what partisan hack SCOTUS has wrought and what rights could be taken away next. It's amazing how the "FREEDUMB!" crowd is all about taking away the rights they don't like. I've put in a few examples of how this will be used to destroy our nation. Here's the first opinion:

Melissa Murray, law professor, New York University
Although Justice Alito insisted that the draft opinion’s antipathy for settled precedent was limited to abortion, the opinion was littered with casual references to Lawrence v. Texas, a 2003 decision decriminalizing same-sex sodomy; Obergefell v. Hodges, a 2015 decision legalizing same-sex marriage; Griswold v. Connecticut, a 1965 decision that legalized contraceptive use; and Loving v. Virginia, the 1967 decision legalizing interracial marriage.

More ominously, in a passage emphasizing judicial restraint, Justice Alito underscored that “respect for a legislature’s judgment applies even when the laws at issue concern matters of great social significance and moral substance.” It doesn’t take a clairvoyant to get the gist of this. What issues, beyond abortion, are leavened with “great social significance and moral substance”? Marriage, contraception, and the panoply of “heart and home” rights that scaffold our intimate lives.

Like the abortion right, these rights are implied from the 14th Amendment’s guarantee of liberty and the notion of constitutional privacy. And like abortion, they will come under fire as conservatives cast about for their next constitutional crusade.

This one shows how Alito simply ignored the fact that the time he calls upon for "traditions" was a time when large classes of people had inferior rights.

This draft purports to follow “deeply rooted traditions” on “liberty” that arose no later than 1788 — not the Constitution’s greatest moment. Its 13th Amendment did not outlaw slavery for another 77 years. Fully 132 years passed before its 19th Amendment gave voting rights to those whom this draft targets: women.

In overturning Roe by resorting to a time when women were allowed no status in America’s public sphere, the draft puts that very status in jeopardy.

Expect this "reasoning" to be used to further cement partisan hackery in elections.

Tom Ginsburg, law professor, University of Chicago
The nuclear option for American democracy would be to overturn Arizona State Legislature v. Arizona Independent Redistricting Commission, the 2015 case that affirmed the constitutionality of non-partisan commissions for congressional redistricting, some version of which is found in 13 states.

Political scientists have affirmed that when redistricting is undertaken outside the legislature, elections are more representative and responsive to changes in public opinion. But the 2015 case was decided on a 5-4 vote, with Anthony Kennedy in the majority. Roberts dissented and so one must worry that the current GOP-appointed majority will insist on a literalist interpretation of the Constitution.

Ultimately such a reading might even allow state legislatures to substitute their own set of electors for those chosen by the voters, which was proposed in the Arizona legislature after January 6. Overruling Arizona Redistricting would be a body blow to American democracy and the tradition of state-level experimentation. Perhaps unlikely, but the stakes are enormous.

And this is a view that Alito has now defined two classes of rights, something I find staggeringly "original."

Mark Tushnet, law professor, Harvard University
Just to lay out why doctrinally the draft opinion’s approach threatens LGBTQ+ and other unenumerated rights: According to the draft, the only unenumerated rights that get special protection are those that have strong foundations in history and tradition. If a right doesn’t have that foundation, it’s an “ordinary” right that legislatures can override or regulate if they have a “rational basis” for doing so. In the abortion context, the opinion says, the fact that abortion involves what a legislature can believe is a (potential or full) human life provide such a basis.

[LFC]

The more people read Alito's leaked draft opinion the more f***ed up it sounds. This screams of a heinous, corrupted version of Catholicism the likes of which are promoted by other sick and twisted people like former Pope Joseph Ratzinger, Josh Hawley, and even Steve Bannon.

When U.S. Supreme Court Justice Samuel Alito, in a draft opinion obtained and published this week by Politico, detailed his justifications for overturning Roe v. Wade, he invoked a surprising name given the case’s subject. In writing about abortion, a matter inextricably tied to a woman’s control over her body, Alito chose to quote from Sir Matthew Hale, a 17th-century English jurist whose writings and reasonings have caused enduring damage to women for hundreds of years.

The so-called marital rape exemption — the legal notion that a married woman cannot be raped by her husband — traces to Hale. So does a long-used instruction to jurors to be skeptical of reports of rape. So, in a way, do the infamous Salem witch trials, in which women (and some men) were hanged on or near Gallows Hill.

Hale’s influence in the United States has been on the wane since the 1970s, with one state after another abandoning his legal principles on rape. But Alito’s opinion resurrects Hale, a judge who was considered misogynistic even by his era’s notably low standards. Hale once wrote a long letter to his grandchildren, dispensing life advice, in which he veered into a screed against women, describing them as “chargeable unprofitable people” who “know the ready way to consume an estate, and to ruin a family quickly.” Hale particularly despaired of the changes he saw in young women, writing, “And now the world is altered: young gentlewomen learn to be bold” and “talk loud.”

Alito, in his draft opinion, invokes “eminent common-law authorities,” including Hale, to show how abortion was viewed historically not as a right, but as a criminal act. “Two treatises by Sir Matthew Hale likewise described abortion of a quick child who died in the womb as a ‘great crime’ and a ‘great misprision,’” Alito wrote.

Even before “quickening” — defined by Alito as “the first felt movement of the fetus in the womb, which usually occurs between the 16th and 18th week of pregnancy” — Hale believed an abortion could qualify as homicide. “Hale wrote that if a physician gave a woman ‘with child’ a ‘potion’ to cause an abortion, and the woman died, it was ‘murder’ because the potion was given ‘unlawfully to destroy her child within her,’” Alito wrote.

Courts have long leaned on precedents established by old cases and the scholarship of legal authorities from centuries gone by. But what happens when you trace citations back to their ancient source? In Hale’s case, you sometimes find a man conceiving precepts out of thin air. Other times it was the opposite, as he clung to notions that were already becoming anachronistic in the last half of the 17th century.

Consider the marital rape exemption. In “Pleas of the Crown,” Hale wrote, “The husband cannot be guilty of a rape committed by himself upon his lawful wife for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract.” So, according to Hale, marriage, for a woman, amounts to contractual forfeit, in which she loses legal protection or recourse should her husband sexually assault her.

Hale’s pronouncement became the accepted common law and served as foundation in the United States for immunizing a husband accused of raping his wife. And where did Hale’s pronouncement come from? What did he base it upon? Who knows? “Hale appears to have been the first to articulate what later would become an accepted legal principle, that a husband cannot be charged with raping his wife,” according to a footnote in one law review article. Another law review article, titled “The Marital Rape Exemption: Evolution to Extinction,” called Hale’s pronouncement “an unsupported, extrajudicial statement” lacking in authority.

In “Pleas of the Crown,” Hale called rape a “most detestable crime.” Then, in words quoted many times since, he wrote, “It must be remembered, that it is an accusation easy to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent.”

Hale evoked the fear of the false accuser — and made for that fear a legal frame, which lasted for more than 300 years. In weighing the evidence in cases of alleged rape, jurors (all men, in Hale’s time and for long after) needed to consider a series of factors, Hale wrote. Did the woman cry out? Did she try to flee? Was she of “good fame” or “evil fame”? Was she supported by others? Did she make immediate complaint afterward?

Hale’s words and formulation became a standard feature of criminal trials in the United States, with jurors instructed by judges to be especially wary of allegations of rape. The effect was predictable: Charges of rape were frequently rejected. In the United States, one early example was chronicled by historian John Wood Sweet in his soon-to-be-published book, “The Sewing Girl’s Tale.” (I was allowed to read an advance copy.)

In 1793, in New York City, an aristocrat, Henry Bedlow, was accused of raping a 17-year-old seamstress, Lanah Sawyer. Bedlow hired six lawyers, including a future U.S. Supreme Court justice, who used Hale’s framework to destroy Sawyer. Sawyer said she screamed. But, one attorney asked the jury, did she also stamp her feet? Witnesses spoke of Sawyer’s good fame, according to the trial record. But “she may have had the art to carry a fair outside, while all was foul within,” the same attorney argued. “Ultimately, the defense team’s dizzying effort to dispute and distort reality had been part of a relentless effort to transform a young woman who mattered into one who didn’t,” Sweet wrote. The jury took 15 minutes to acquit.

[pnwguy]

May 6, 2022 20:31:15 GMT LFC said:

The more people read Alito's leaked draft opinion the more f***ed up it sounds. This screams of a heinous, corrupted version of Catholicism the likes of which are promoted by other sick and twisted people like former Pope Joseph Ratzinger, Josh Hawley, and even Steve Bannon.

Blacks might have been 3/5ths human, but women were essentially slightly under half.  Their husbands count more and get to make all the decisions.

[jackd]

Be fair, LFC; it isn't just Catholics.