Scott Lemieux

Scott Lemieux is an assistant professor of political science at the College of Saint Rose. He contributes to the blogs Lawyers, Guns, and Money and Vox Pop.

Recent Articles

NO CHANCE.

NO CHANCE. I'm frankly baffled by Ilya Somin 's claim that there are plausibly five votes to strike down the PBA Act on Commerce Clause grounds. The most obvious problem with his argument is that it entirely ignores the Raich decision, under which the Commerce Clause issue presented by the Act is plainly insubstantial . Obtaining an abortion is much more clearly a commercial transaction than growing medical marijuana for personal use, and given the dearth of abortion providers in the country abortion is certainly an interstate market. The idea that Scalia and Kennedy, both strongly personally anti-abortion, would switch votes given a more favorable set of facts is implausible in the extreme. It is true that the Court's personnel has changed, but the two Justices who left the Court were two of the three dissenters in Raich . At best, Roberts and Alito would be treading water, but both are demonstrably hostile to reproductive rights and lack Thomas's commitment to grand theory, so this...

AGAINST UNILATERAL DISARMAMENT.

AGAINST UNILATERAL DISARMAMENT. It may not come as a shock that I agree with Matt 's conclusion that Roe was correctly decided on the merits. (For those who haven't seen it, I lay out a three-part case for Roe here , here , and here .) Matt makes another important point about the pro-choice anti- Roe crowd who base their claims not so much on doctrinal analysis as a general claim about whether courts rather than legislatures should decide "cultural issues": The primary motive for this, I think, is that people find it odd that such a controversial issue as abortion rights should be decided primarily by the courts. They also feel, intuitively, that it's weird to leap so suddenly from one stance to another. I tend to agree that this is odd. The oddness, however, is right at the heart of the institution of judicial review as practiced in the United States. I'm of the opinion that this institution isn't a great idea and that many other countries have found more satisfactory institutional...

THE "STATES' RIGHTS" SCAM.

THE "STATES' RIGHTS" SCAM. As a follow-up to Garance below, it's worth noting that in a sane universe yesterday would put an end to the already-silly idea that most Republicans have a strong commitment to state autonomy, or that Republican opposition to the Supreme Court's abortion jurisprudence is about preserving state power rather than about a substantive opposition to abortion . (You may remember this nonsense recently in the New York Times from staunch feminist Ann Althouse , who claimed that Rudy Giuliani 's intent to pack the courts with statist reactionaries who would allow the state to force women to carry pregnancies to term is about enhancing freedom (!) because it was really about states' rights. Rudy, needless to say, supported yesterday's opinion; how this fits into his alleged belief that abortion should constitutionally be left to the states is unclear.) Congress not only passed a ban on a federal abortion procedure, but as Garance points out pre-empted state...

FOUR THINGS TO...

FOUR THINGS TO REMEMBER WHEN READING GONZALES V. CRAHART. As an antidote to the inevitable chorus of fake moderates arguing that yesterday's abortion case is no big deal, four things to keep in mind as you ponder today's decision: Don't take assertions by the Court about whether they're overturning precedents or not at face value. What matters is the substance of the ruling, not how the Court characterizes past precedents. (The Court went out of its way to avoid saying that they were overturning Plessy in Brown , and then applied it as if it meant exactly that.) Moreover, the Roberts / Alito strategy of quietly gutting precedents -- epitomized in this case -- is much worse for those who oppose their legal goals than the Thomas / Scalia willingness to overturn precedents directly and honestly. The result of this type of case is a sharp restriction in the reproductive freedom of women without the political benefits of an outright reversal. Making it much harder to successfully strike an...

ELECTIONS HAVE CONSEQUENCES

ELECTIONS HAVE CONSEQUENCES . As Dana notes below, the Supreme Court has upheld the federal "Partial Birth" Abortion Ban Act, which as I have argued in detail , was 1) inevitable with Alito 's appointment to the Court, and 2) very bad. It was, I suppose, also inevitable that it would come down while I'm on the road, and I therefore haven't finished reading the decision yet. In the meantime, I note that almost everything that needs to be said about the constitutionality of these laws was said by Justice Stevens in his concurrence in Stenberg v. Carhart , which the Court (despite its disingenuous claims to be following precedent) effectively overrules today: Although much ink is spilled today describing the gruesome nature of late-term abortion procedures, that rhetoric does not provide me a reason to believe that the procedure Nebraska here claims it seeks to ban is more brutal, more gruesome, or less respectful of "potential life" than the equally gruesome procedure Nebraska claims it...

Pages