May 13, 2019

"I understand that judges, including Justices of this Court, may decide cases wrongly. I also understand that later-appointed judges may come to believe..."

"... that earlier-appointed judges made just such an error. And I understand that, because opportunities to correct old errors are rare, judges may be tempted to seize every opportunity to overrule cases they believe to have been wrongly decided. But the law can retain the necessary stability only if this Court resists that temptation, overruling prior precedent only when the circumstances demand it. It is one thing to overrule a case when it 'def[ies] practical workability,' when 'related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine,' or when facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification.' [Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 854–855 (1992).] It is far more dangerous to overrule a decision only because five Members of a later Court come to agree with earlier dissenters on a difficult legal question. The majority has surrendered to the temptation to overrule Hall even though it is a well-reasoned decision that has caused no serious practical problems in the four decades since we decided it."

Writes Justice Breyer, dissenting in Franchise Tax Board v. Hyatt, in which a 5-man majority overruled Nevada v. Hall, 440 U. S. 410 (1979). Under Hall, a state could permit a private citizen to use its courts to bring a lawsuit against another state without the consent of that state. Today's decision interprets the Constitution to mean that the states retain sovereign immunity from these suits.

Both the majority and the dissent analyzed the question of overruling precedent following the factors laid out in Planned Parenthood v. Casey, the 1992 case that reconfigured Roe v. Wade, restating it in terms of its "essence," but declined to overrule it. Breyer's dissenting opinion today gestures at future abortion cases. He writes: "To overrule a sound decision like Hall is to encourage litigants to seek to overrule other cases...." and "Today’s decision can only cause one to wonder which cases the Court will overrule next."

95 comments:

TJM said...

Breyer is evil and one of the worst picks by a Republican president in history.

Lance said...

The next Democratic Supreme Court majority will waste no time overturning Heller, Citizens United, etc., and it will have nothing to do with how well-reasoned or practicable those cases have been.

AustinRoth said...

Short version - “ only the Left side of the Court should be allowed to overrule precedents.

Mattman26 said...

That's different, Lance, because shut up.

Earnest Prole said...

Breyer of all people suddenly has Strange New Respect for precedent? Give me a fucking break.

bleh said...

"Breyer is evil and one of the worst picks by a Republican president in history."

You mean "Eisenhower Republican" Bill Clinton?

Yancey Ward said...

I don't see how one would enforce any ruling that was brought under Hall, so how was this ever a "sound ruling" to begin with?

Basically, if you are in state A and want to sue state B, go do it in state B, or file it in federal court.

Yancey Ward said...

I mean, state B is going to tell you to go pound sand up your ass when you show them the judgment from the court in state A.

Rick said...

So Breyer is voting this case based on what will keep Roe legal rather than on the merits and openly warning his co-legislators to do so as well.

What tangled webs we weave.

Marty said...

So I guess Justice Breyer would have voted to uphold Plessy and school segregation in the Brown v. Board of Education case. Good to know.

TheDude said...

TJM was probably thinking of David Souter, who was appointed by GHW Bush.

Dave said...

Jeez reading this hurts my brain. Can we talk about pictures of women wearing colorful hot air balloons instead? Or men in shorts? How about a poetry thread? I thought this was a blog about art and culture not law and judges and court and all that crap.

If I were king of the world, you could abort for any reason up until a fetus becomes viable. At viability, the fetus changes from a fetus to a baby. It's viable; it's human; this baby has rights!

But I think at that point, if the fetus is viable, why not go ahead and bring it out, and sell it to parents that want to adopt. It would be just like an abortion. Legally, render the child dead. Then write a birth certificate for the new parents. I can see compensation to the former mothers for this.

We need children and we need to stop killing them. I know thats crazy talk right there above about transferring a fetus to a baby and then finding the child new parents because my details are just not in view at the moment.

I am totally good with subsidizing mothers who carry to term because that would create fewer abortions without limiting women. Santorum had a similar idea. And there is the problem. That will never happen.

Anyway, Otto, you be quiet about legal analysis in the future if you don't mind. I much prefer shinys.

tim maguire said...

I’ve always felt the courts were a little too in love with stare decisis. A bad decision is a bad decision and respect for our elders is a poor reason to leave us chained to that millstone.

Ken B said...

I don’t know the case at hand, but in the abstract Breyer is right to reject Wisconsin style do-overs.

n.n said...
This comment has been removed by the author.
n.n said...

When [monotonic] change entails taking one step forward, two steps backward, then diverging.

A human life is conceived and remains viable until Nature or human choice deems her to be unworthy, inconvenient, or profitable (as a clump of cells, spare parts). It is regarded as a "fetus" in laboratories, abortion chambers, and in rhetoric designed to obfuscate the human life evolving in a woman's womb.

That said, before passage of the Twilight Amendment, The Constitution denied summary judgments (e.g. warlock trials), age discrimination, and cruel and unusual punishment. Before establishment of the Pro-Choice religion, these choices, and human harvesting, were considered a violation of both human and civil rights -- crimes against humanity.

Sebastian said...

"the law can retain the necessary stability only if this Court resists that temptation, overruling prior precedent only when the circumstances demand it"

Translation:

"the law can retain the necessary progressive stability only if this Court resists the temptation to interpret the Constitution strictly, overruling prior precedent only when the circumstances demand a more progressive result, as they always do"

Michael K said...

We need children and we need to stop killing them. I know thats crazy talk right there

Not so crazy. We had a weird situation in Orange County a few years ago. A fertility clinic at UCI was run by two kind of questionable docs from south America. It turned out that some parents, who had the children they wanted, objected to paying "rent" on frozen embryos they had stored at the clinic. The two guys running the clinic also had patients whose implants had failed. So they took some frozen embryos and implanted them in people not the parents and omitted that detail.

A clinic employee ratted them out and a scandal ensued. The two guys left for south America and left a guy I knew holding the bag. He was an OB faculty member but had not had anything to do with the fertility thing,

Anyway, they eventually got a law passed that allowed frozen embryos to be "donated" with consent.

Your suggestion would probably fit that. The creepy Penn state legislator doesn't know that there are people who would be happy to do that.

ga6 said...

Another judge confusing him/her self with the almighty.."Now and forever more, amen"

Martin said...

Arguments about process are always dishonest--Michael Barone.

Breyer knows that Casey was a wrongly decided extension of the poorly decided Roe.

Bob Loblaw said...

There are quite a few decisions the Supreme Court should reverse. The problem is the Official Line is they're making rulings based on interpretation of the constitution and not functioning as a superlegislature. If the latter view becomes commonly accepted, it's likely the court's power will be curtailed.

whitney said...

The Supreme Court has essentially turned into the high Druid priest Council in their black robes. They can find whatever they want to find in the Constitution, found abortion and gay marriage in it

Dave said...

We are losing people every day. Lots and lots of potential going down the drain. And the left has drawn the line to be up to the moment of birth and (maybe) after. But I guess it's wrong to try to pull that line back towards conception if we can't go all the way back? Is that right? Is that what you are saying? Unless human life begins at conception, we shouldn't even try to compromise to pull the line back from the birth canal where it is now? I'm stupid so I'm sure I misunderstood everything that has been writtin. Bear with me please.

----
You guys who are smarter than me and know more, can you name a few major decisions that were rolled back (reinterpreted whatever idk) by left leaning judges? When have they done what they say we should now not do is my question.

dreams said...

Ruth Bader Ginsburg won't die and I expect Justice Breyer to be around for another 10 to 15 years.

Kevin said...

“When I overrule a prior decision,’ Justice Breyer said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’

’The question is,’ said Justice Thomas, ‘whether you can make a ruling mean so many different things.’

’The question is,’ said Justice Breyer, ‘which is to be master — that’s all.”

Kevin said...

How terrible for a Supreme Court Justice to live with the idea their decisions can be overturned by a future court.

How horrible to know that your solid reasoning and extreme logic won't alter the entire course of the country...forever.

How miserable it must be to know that in setting new precedent, some new person coming along later can just ignore it.

It's unthinkable that future societies can live in a nation of their own making, rather than be bound by the great-thinking progressive people of an earlier epoch.

Kevin said...

I expect Justice Breyer to be around for another 10 to 15 years.

If future judges are free to ignore his rulings, what's the point?

Isn't that what he's asking himself tonight?

Kevin said...

Conservatives, on the other hand, are certain the laws will be overturned and precedent ignored when it suits those opposed to them.

That's why they buy guns.

Nobody said...

Roe v Wade is sort of like Trump. They both insinuate into every discussion. It’s almost as if the supporters of Roe don’t feel like they are on firm legal ground. Kind of like Althouse going on about privacy and the second amendment. If we aren’t going to respect penumbras in 2A, which is pretty explicit, what about the A1 ruling of SCOTUS, Roe v Wade?

Nobody said...

To my knowledge, there is only one other ruling that human beings in America were not persons, and that one was overturned.

Nobody said...

BTW, I support the “right” to abortion. I just think that if it is so damn popular, it should be secure when left to the electorate.

Gahrie said...

Why does the Left have such an obsession with the death cult of abortion? At one time they pretended to believe that abortion was a necessary evil, but now the Left celebrates abortion as the expression of a woman's power. It's ghoulish and sick.

Nobody said...

I don’t really know, but I read that more black children were aborted than born in New York. This almost seems like an issue that should be handled by a legislative body, not by zombie rulings of the court that continue to hold sway forever into the future regardless of changing circumstance.

Two-eyed Jack said...

Breyer wants to eliminate capital punishment, but the heart wants what it wants.

TWW said...

"....or when facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification."

I suppose this means 'Kelo' should be overturned since Justice Brennan admitted he got the facts wrong?

Gahrie said...

You guys who are smarter than me and know more, can you name a few major decisions that were rolled back (reinterpreted whatever idk) by left leaning judges? When have they done what they say we should now not do is my question.

This doesn't happen very often because it is unnecessary. It is the Left that legislates and creates new "rights" from the bench. Conservative judges and justices rarely do this because it usually violates their fundamental belief that it is the jobs of legislatures not courts to do so. Thus the Left rarely has to undo things done by Conservative judges. Leftwing activist judges however believe that the courts do have a role in creating rights and legislating from the bench, and so they do so. Thus it is conservative judges that are forced to seek to overturn the precedents that leftwing judges create.

One of the few cases that is as bad as Roe is Dred Scott in which the Southern Democrat dominated Court overturned the Missouri compromise and ruled that Black people could never be citizens of the U.S. (not that they weren't persons).

Kansas City said...

What people miss on abortion is that there are three SCOTUS options.
1. Uphold Roe again with some trimming for post viability abortions. This would largely be another political ruling (like Roe), hard to justify on constitutional grounds (because Roe is virtually impossible to justify).

2. Overule Roe and Casey, and return the issue to the states, with no constitional role in abortions.

3. Overule Roe and Casey, and find some constitutional protection for the baby. Here, all hell will break loose. I doubt the Roberts ever will provide the fifth vote here.

Gahrie said...

I don’t really know, but I read that more black children were aborted than born in New York

It happens every year now days.

Big Mike said...

“The majority has surrendered to the temptation to overrule Hall even though it is a well-reasoned decision that has caused no serious practical problems in the four decades since we decided it."

I find it difficult to believe that Hall was “well-reasoned”and “caused no serious practical problems” given that this case wound up on the Court’s docket.

Gahrie said...

They can find whatever they want to find in the Constitution, found abortion and gay marriage in it

Their actual absurd position now is that when the Radical Republicans wrote the 14th Amendment to overturn the Dred Scott case, they also created birthright citizenship, and the "rights" to an abortion and gay marriage. Does anyone believe that a majority of Congressmen in 1869 would have been in favor of any of those three things? apparently congress at the time needed to add a clause that read: "Nothing in this amendment is intended to imply that there are rights to birthright citizenship, abortion or gay marriage."

Rabel said...

As far as Roe, isn't the ruling as much about the strength of the states' sovereign immunity as it is stare decisis?

Fen said...

So Breyer is voting this case based on what will keep Roe legal rather than on the merits and openly warning his co-legislators to do so as well

While lecturing us about principle.

Funny how whenever conservatives start to make ground, the Left wants to change the rules.

No worries, the rules will be changed back again once they no longer favor the Democrats.


themightypuck said...

What's amazing is that something as arcane as sovereign immunity would split the court on "party" lines. Also, I didn't see how the State of Nevada could enforce a judgment against the State of California. Is that considered a separate issue: that it is also a matter of comity whether Nevada pays up, or will the Feds make them?

narciso said...

those words you are using:

https://dailycaller.com/2019/05/13/the-equality-act-backed-by-nearly-all-democrats-is-a-nightmare-for-businesses-and-charities/

Limited Perspective said...

A minority figured out that they don't get their way in this Republic through convincing the majority of citizens, but through convincing a majority of guys on the court. We have agreed that democracy doesn't work and prefer a Philosopher King approach through the courts. We are still Germanic Medieval by temperament.

Let's hope the good guys will win in court. By "good guys," I of course mean those who agree with me.

rcocean said...

"But the law can retain the necessary stability only if this Court resists that temptation, overruling prior precedent only when the circumstances demand it."

Gee, you mean like Roe v. wade or Gay Marriage?

Just more blather from a unprincipled liberal. Breyer would overturn anything if his left-wing politics dictated it. I have ZERO respect for him. The idea that the Liberal foursome care about "precedent" is laughable. Of course, his "only when the circumstances demand it" can be translated as "only when my left-wing politics demand it".

rcocean said...

Breyer showed himself to be an insane liberal in his dissent in the Trump travel ban case. Listen to this "reasoning":

"If this Court must decide the question without this further litigation, I would, on balance, find the evidence of antireligious bias, including statements on a website taken down only after the President issued the two executive orders preceding the Proclamation, along with the other statements also set forth in JUSTICE SOTOMAYOR’s opinion, a sufficient basis to set the Proclamation aside. And for these reasons, I respectfully dissent."

He always plays the "moderate" but on every important case he's there with Ginsberg and the "Wise Latina".

rcocean said...

"Their actual absurd position now is that when the Radical Republicans wrote the 14th Amendment to overturn the Dred Scott case, they also created birthright citizenship, and the "rights" to an abortion and gay marriage."

It took quite a while for the SCOTUS to determine that the 14th amendment incorporated the bill of rights and allowed them to strike down any state law for any reason.

The whole thing was a power grab by the Judiciary. And the Congress went along, because they didn't have the guts to fight it. In fact, most of them, loved the SCOTUS doing it. They wanted the same results and could hide that from their voters.

Left Bank of the Charles said...

Let's see. The 5 conservatives rescued California from the clutches of the Nevada courts by overturning a 40-year-old precedent that was only 12 years old when the plaintiff in the present case moved from California to Nevada to avoid paying California income taxes. And the dispute isn't even over, as the plaintiff still has an appeal of his tax case pending in the California courts.

Justice Breyer doth protest too much, methinks. Doesn't his dissent invite a case to overturn Roe v. Wade and Planned Parenthood v. Casey? Why would he draw that roadmap, unless he wanted it to happen.

rcocean said...

Thank God for Trump. He saved us from a Ginsberg SCOTUS. They would've rubber-stamped every crazy ruling that came out of the 9th Circuit. Gun rights and immigration laws would be found "unconstitutional" and no doubt 16 and 17 year olds would be given the right to vote under the equal protection clause!

Big Mike said...

@Lance (4:18), they would anyway.

rcocean said...

"Why would he draw that roadmap, unless he wanted it to happen."

LOL! He's trying to raise the alarm. "Look out Liberals, Roe v. Wade is in Danger!" Vote Biden in 2020.

Otto said...

@ david - I am sorry. I also got a headache reading through ruling :-).
Breyers stare decisis -Women have been fu*king like whores the last 20-30 years and it is now the way of life. We can't change that".
Roe vs wade was about a whore who didn't want a baby because it deprived her whoring for dope money.

Douglas said...

Based on my experience clerking for two appellate judges, most judges care mostly about their prior opinions, whether for the majority or in dissent. They try very hard to stay consistent with what they have written previously. What the court decided, not so much.

JamesB.BKK said...

Recognition of abject defeat by a progressive with power is beautiful to behold.

Steven said...

So, exactly how did Brown v. Board of Education meet these criteria to overturn Plessy v. Ferguson? Was Jim Crow suddenly unworkable in 1954? How could there have been development of new principles of law in contradiction to Plessy v. Ferguson without overturning it first? And what facts actually changed?

The only possible argument he can make for Brown v. Board of Education, under his criteria, is that "facts have . . . come to be seen so differently, as to have robbed the old rule of . . . justification". But there had in fact been lots of people in society in general in 1896 who viewed the facts in Plessy v. Ferguson the way Justice Harlan did, and there were plenty of people in 1954 who still viewed the facts the way the other eight Justices in that case did.

So, in practice, the only way to use Breyer's criteria to justify Brown v. Board of Education is to say that the court is entitled to overturn a case when the view of the facts of a majority of the court has changed. Thus the argument becomes an incredibly narrow one; that if the view of the court on the law has changed the law must be left intact, but if the view of the court on the facts has changed, the law can be changed to fit.

There's an argument to be made for that, on the grounds that it keeps the Court from upsetting settled law on the grounds that the Court got the law wrong, while allowing correction of errors of fact. But that does nothing at all to save Roe v. Wade/Planned Parenthood v. Casey. All the majority of the court would have to do is say they are of the opinion that the biological facts mean the life of a human person begins at conception (or six weeks, or twelve weeks), and thus the precedents have ceased to apply.

stephen cooper said...

Breyer is a midwit

n.n said...

Why did they rule to restrict marriage to couples and couplets? It seems that selectively excluding other arrangements and configurations in a generic union is notably Pro-Choice. Why didn't they make a leap of faith without #Judgment and #TooManyLabels?

Molly said...

I start with the assumption that Breyer means exactly what he says. We have the concept of stare decisis and it has been featured in a number of Senate SC confirmation hearings (Roberts? and since Roberts). Breyer is fleshing out the rationale for and the limits of stare decisis, and he's doing this in a thoughtful and clearly expressed way. I am not ready to just jump to the conclusion that Breyer sees the end (for decades) of a liberal court, and wants to lay down markers (and quotable dissents) that can influence the future direction of a court (a conservative court) intent on throwing all legal principles out the window and imposing conservative policies on the country. That conclusion is insulting to Breyer and is also (probably unintentionally) insulting the conservative court. Certainly Scalia, and in my opinion Thomas and Alito and Gorsuch (and I'm not sure about Roberts and it's too soon to say about Kavanaugh) actually did/do set about deciding cases based on principles. I think they have been successful in persuading some liberal members of the court (Breyer and Kagan, especially) that the old-fashioned liberal basis of decision making (which I will call "let's decide which side we like and gin up a superficially plausible legal basis to support that side") was really not a legitimate basis of jurisprudence. So I read this story about Breyer as his plea to principle.

Michael McNeil said...

a court… intent on throwing all legal principles out the window…

All the court nominees being proffered by Trump are originalists — who are supposedly “intent on throwing all legal principles out the window”? Sure, that's what “originalist” means. Not!

buster said...

I’d like to see Breyer apply his criteria to Bowers v. Hardwick, which he voted to overturn in Lawrence v. Texas.

Fen said...

I am not ready to just jump to the conclusion that Breyer sees the end (for decades) of a liberal court, and wants to lay down markers (and quotable dissents) that can influence the future direction of a court (a conservative court) intent on throwing all legal principles out the window

I'm confused too. When you say "a conservative court intent on throwing all legal principles out", is it from the viewpoint of people (wrongly) assuming Breyer's point of view or are is that your own idea?

CWJ said...

"But the law can retain the necessary stability only if this Court resists that temptation, overruling prior precedent only when the circumstances demand it."

Too late.

Sacto_Dave said...

Jeez, Dave all fetuses are viable from the moment of inception unless there is a genetic flaw or someone decides to terminate them. The only reason a fetus's would not be viable is if there was something wrong with the gene transcription or if a human decided to intervene.

WK said...

Maybe as a compromise an unborn child could have 3/5 the rights as a child after it is born...... isn’t there a precedent for something like that?

mandrewa said...

It seems straightforward to me. It's not that complicated. The majority is correct and I say this on the basis of what the Constitution says. Obviously there are gray areas in the Constitution but this wouldn't be one of them.

The idea is the states are independent and they can have quite different laws and ideas about what is right and wrong. Unless a state is violating the Constitution, that is a state is doing something to violate the Constitution, what possible grounds would one state have to demand that another state do something? And even then that would the responsibility of the federal government.

wholelottasplainin' said...

mandrewa said...
It seems straightforward to me. It's not that complicated. The majority is correct and I say this on the basis of what the Constitution says. Obviously there are gray areas in the Constitution but this wouldn't be one of them.

*****

Nahhh...

The "Supremacy Clause" dealt with state laws conflicting federal laws and the Constitution.
Over the years Supreme Court "incorporation" of the Bill of Rights into state constitutions smacked down a lot of state laws:

https://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights

State-to-state conflicts were a third-year law school subject called "Conflicts of Law".

Suppose, for example, that Nevada allowed quickie divorces, while New York required all sorts of procedures....you're a New York resident who flies to Las Vegas for such a divorce...your spouse objects, for various reasons...

(this in the old days before Wash'N Wear wedding gowns were uncommon)

What then?

It's not at all straightforward.




mandrewa said...

wholelottasplainin',

I don't see the gray area or the complication in the two examples that you gave.
First of all, of course, the Bill of Rights, and the Constitution, are a higher
authority than State laws, and I thought I said as much in my comment. But as
I also said it would up to the federal government to come down on a state for
violating the Constitution and not another state.

Your example of differing laws about divorce is interesting, but the obvious
answer to that issue is that a person could have one status in one state and
a different status in another. And I'm sure there are plenty of real world
examples of that. Or multiple states could have agreed through the legislative
process on shared common standards, which is what I think was actually done
in the case of your example. But regardless, the responsibility for enforcing
these shared standards lies within each state separately (if isn't in the
federal government).

And finally you mentioned just the general subject of "Conflicts of Law" between
states. Well of course that's going to be the case. Probably especially with
respect to rules about commerce, since commerce crosses state lines.

But the proper place to resolve those disputes is going to be in the federal
courts.

Amadeus 48 said...

Regarding Casey, it will be overturned when 45 states have passed laws accommodating abortion at some level.
Breyer is providing quotable quotes for Democrats for the next several election cycles.
Shorter version: don’t undo the progressive ediface built at the Supreme Court since 1937.

Steven said...

The issue in this case is not an ordinary conflict of law (like in quickie divorce cases), but the question of sovereign immunity; the principle that the sovereign can only be sued with its consent.

In English common law, the King could not be sued in court without his consent; this extended to any exercise of government power on the king's behalf. Upon independence from Britain, the several states assumed this immunity directly. When the Constitution was passed, however, the Constitution provided that a suit between a state and an individual from another state would be handled in Federal court, and the Supreme Court ruled that sovereign immunity would not apply.

Upset by this ruling by the Supreme Court, the Eleventh Amendment was passed, declaring that the states were not subject to being sued in Federal court.

The question, then, is can a state, which cannot be sued by inhabitants of another state in Federal court because of the 11th Amendment, and which cannot be sued in its own courts without its consent, be sued by the inhabitants of another state in the courts of another state without its consent?

The previous ruling of the Court was that they could. The new ruling is that no, states do not have the jurisdiction to try cases where another state is a party. There are all sorts of arguments that could be made either way, there being neither a directly on-point provision in the Constitution or anything in Founding-era common law on point.

The core of the one argument is basically that no state can have court jurisdiction over an equally-sovereign state. The core of another would be that only the sovereign has immunity in its own courts, and nothing prohibits a claim of court jurisdiction over another US state.

To the idea that this latter is ridiculous, one would note that it does not seem particularly more ridiculous than the US asserting its courts have the jurisdiction to handle cases where citizens sue foreign countries, which the US Constitution asserts. If an American can sue France in US court, why can't an Californian sue Nevada in California court?

Yancey Ward said...

Steven,

Thanks for the reminder about the 11th Amendment. I think that is the key to Breyer's complaint. I would look for cases where certain states would like to sue other states for things like pollution, gun laws etc. Since they can't be filed in federal court, a state or a resident of a state might want to file them in their home jurisdiction. This ruling prevents such suits.

FIDO said...

Abortion was always based on the ability to 'other' the thing growing in ones belly.

When you can see it suck its thumb in utero, than it is very hard to 'other' your own child.

Instead of suddenly and vehemently embracing a sensible law which the majority of the population would support (Full abortions at 20 weeks, afterwards only due to viability or health issues), the Feminists instead continue to embrace madness and in fact double down with these latest rules requiring abortions survivors to be allowed to perish.

How is this different than a Chinese family abandoning a girl child on the side of a mountain because they can't afford it?


Oh...because women CAN afford it! They have a huge web of safety nets, jobs, etc.

But it certainly isn't 'convenient'. And that is the rub which makes Feminism increasingly unpopular.


Breyer knows he is only a few months away from being a minority for the rest of his lifetime on the court. He is calling on the Sainted (Or is that Stained) reputation of RBG to give deference to her opinions because 'vagina!' if they even have a patina of working.

Thanks, but no.

There is nothing I can do to make him embrace far more sensible jurisprudence. But he can't stop people from voting for Trump and Roberts would probably bring him up for discipline if he tried an RBG of actually going on the campaign trail like RBG because Breyer does not have 'vagina!' Men always get the short end of the stick in court.

FIDO said...

Molly said: So I read this story about Breyer as his plea to principle.

His sudden pleas to principle come at a temporally convenient time for him.

Here is the problem: the Left, including Breyer, happily voided norms in politics and the courts (See RBG campaigning with The Horror of Hill House) when it suited its purposes, 'discovering' rights any time the Left needed something they couldn't get by voting.

Now he can't and he suddenly wants to call on norms and principles, not to limit his ability to maneuver. He already CAN'T. Instead he wants to shame the other justices into self limiting the same freedom of movement he enjoyed for decades.

So, while he MAY be actually sincere, how discrediting it is to him to only NOW suddenly acknowledge this 'principle' when it actually protects him while he enjoyed not extending that level of protection to anyone else because it was judicially inconvenient?

But I doubt his sincerity. Republicans have been warning Democrats that fire is hot and voiding precedents means they bind NO ONE.

Well, like a 3 year old, it is something they must discover the hard way.

How do you revirginize a Vestal? How do you uninvaded Rome?

Steven said...

@Yancey Ward

Of course, there's a practical issue there. Since the Feds won't enforce such a judgment, and the state that was sued won't, the result of such cases come down to the ability of the state that made the judgment to enforce it within its own boundaries. This is not generally easy, but it becomes easier in proportion to the size of the state-of-venue under modern interstate commerce, because the larger the state, the more chances that something the sued state does will at some point have significant assets inside the borders. So if you allow states to claim jurisdiction over others, you create a mechanism where large states can, by and large, differentially export their policy preferences to smaller ones.

This is again entirely analogous to how it is much easier for US courts to enforce judgments against, say, Cuba, than the other way around, because of things like New York's role as a financial center. But while it has been of substantial practical effect internationally, it has not been so domestically, because US states are not nearly as disparate as foreign states.

So, on further reflection, I personally don't think Breyer was actually trying to lay a marker on Roe v. Wade precisely because his criteria are so specific and would be so weak against a reversal of that fact-heavy case. I think he was talking entirely about this case and analogous ones, where two legal rules are at least facially plausible, and there is no major practical difference between them. In such cases, there is an argument from a stability-and-knowability-of-law standpoint for just keeping the old rule even if it, on analysis, is inferior.

So rather than a culture-war marker, I think it was actually aimed at a different recent occurrence on the court. In a recent case, Justice Thomas almost de novo approach to evaluating legal doctrines (like the established using substantive due process vs. Thomas's preferred reviving of use of privileges and immunities) picked up the support of Gorsuch. It often doesn't make that much difference in practical case outcomes which one prefers (the Thomas-and-Gorsuch concurrence on P&I in Timbs v. Indiana supported the same outcome the other seven justices reached on substantive due process grounds), but it would be a revolution in the law itself.

Jeff Brokaw said...

Breyer is full of it. The guiding principle is upholding the Constitution, not “well reasoned” decisions that have “caused no serious practical problems” in forty frickin years.

It’s about principles; it doesn’t matter if a serious practical problem ever arises.

How did we get here?

Jeff Brokaw said...

BTW, Althouse and others interested in SCOTUS history, I listened to a great City Journal podcast yesterday about Justice Thomas and his stand for originalism and free speech. Tried posting a link but did not work, to find it search the Podcast app for the City Journal 10 Blocks podcast and find episode entitled Clarence Thomas and the Lost Constitution from last week.

It was really interesting and the author (Myron Magnet, former editor of City Journal) was a great interviewee. Highly recommended.

Molly said...

Replying to Fen: who asks "When you say "a conservative court intent on throwing all legal principles out", is it from the viewpoint of people (wrongly) assuming Breyer's point of view or are is that your own idea?"

My reading of a lot of the comments here is that the commenters believe that Breyer presents this argument strategically, with a hope of achieving outcomes he favors when conservatives have an even firmer grip on the court. I disagree with these commenters about Breyer's motivation.

MikeR said...

"But the law can retain the necessary stability" "has caused no serious practical problems in the four decades since we decided it."
I can see this argument if the change will cause serious practical problems. Does Breyer claim that? I'm not sure I see those serious practical problems here; it becomes harder to sue states, but maybe that's okay.
If the change does not cause serious practical problems, and the situation is one where "stability" is not that necessary, surely then it is not "dangerous" to fix old mistakes? Sounds like a good thing.

BudBrown said...

I've enjoyed the comments on this post. Thing gets me dizzy. Gets me thinking that at the supreme level they're all geeks. I mean they should start a new tv show for next year where all the Big Bang characters are now supreme court justices.

Roger Sweeny said...

I am surprised to learn that Breyer disapproves of the Warren Court of the 1960s.

Only a cynic would think his disapproval depends on whose precedents are being overruled.

(Kevin: love the Alice parody 5/13/19, 5:26 PM)

Roger Sweeny said...

Jeez, Dave all fetuses are viable from the moment of inception unless there is a genetic flaw or someone decides to terminate them. The only reason a fetus's would not be viable is if there was something wrong with the gene transcription or if a human decided to intervene.

From what I understand, at least half of all fertilized eggs are spontaneously aborted in the first few weeks of pregnancy. I don't think that has any Constitutional significance but it sure makes me think differently about things. God or Nature doesn't seem to mind terminating an awful lot of conceptions.

Ignorance is Bliss said...

The Atlantic currently has a opinion piece by John Paul Stevens about why Heller was wrong. Stare decisis features heavily in his argument.

Unknown said...

Sacto_Dave @5/13/19, 9:33 PM

Not all nonviable fetuses have genetic problems. For example, ectopic pregnancies are not viable. Nothing wrong with the embryo's DNA, it's just attached to the wrong part of the mother (anywhere other than the womb, usually the fallopian tubes), and it's a matter of whether she dies as well as the embryo.

Greg P said...

But the law can retain the necessary stability only if this Court resists that temptation, overruling prior precedent only when the circumstances demand it.


Lawrence v Texas? Obergefell?

GFY Breyer. You've spent your entire time on the Court destroying precedent to advance your political beliefs. You have no standing, ever, to complain about others returning the favor.

Especially when, unlike you, they're actually overturning bad decisions.

I say this as someone who's disappointed by yesterday's ruling.

FIDO said...

Molly said My reading of a lot of the comments here is that the commenters believe that Breyer presents this argument strategically, with a hope of achieving outcomes he favors when conservatives have an even firmer grip on the court.


Close, but no. This is a rearguard action.

For example:

On its merits as a legal decision, Roe v. Wade was pure crap, made of fairy dust and moonbeams. It was essentially made up crap as most legal scholars who have no cat in this fight will attest.

So a 6-3 Conservative Court could revisit the issue and demolish it easily on legal grounds.

However, whatever its legal idiocies, as a law it WORKS. Some group of people like it and a majority can accept it.

So Breyer is saying 'Oh no. You guys can't shouldn't must not just make good legal decisions simply because you have the power. Simply because people are getting tired of the abortion issue. Simply because a ever growing number of people are getting sick of Planned Parenthood selling fetus parts like chops of beef. No no! You MUST allow it to stand because 'precedent'.'

He does not want the decades of Progressive work, of creating 'rights' out of whole cloth, of making decisions purely on political grounds, to suddenly be revisited and removed. He can't pass MORE judicial legislation because RBG is going to that pyramid in the sky soon, and he is left without komrads to help him with his agenda driven style of jurisprudence.

IF you doubt his sincerity. You do not. I think you are incorrect.

deepelemblues said...

Translation: the self appointed purpose of the Supreme Court, which is to make rulings based on what a majority agrees is the proper interpretation of the constitution, shouldn't apply to previous court rulings I really really really agree with.

Greg P said...

molly writes:

I am not ready to just jump to the conclusion that Breyer sees the end (for decades) of a liberal court, and wants to lay down markers (and quotable dissents) that can influence the future direction of a court (a conservative court) intent on throwing all legal principles out the window


Wow, Molly, didn't your mother teach you not to smoke dope before posting?

Breyer knows what a principle is, but he does not have any. All he has is a belief that his personal desires should reign supreme.

His dissent is the petulant tantrum of a 5 year old, upset that conservative Justices are going to start imposing actual and legitimate legal principles on Supreme Court rulings, and, as such, are going to start rolling back the dishonest rulings he and he co-monsters have been imposing on the American people.

Greg P said...

FIDO said...

So a 6-3 Conservative Court could revisit the issue and demolish it easily on legal grounds.

However, whatever its legal idiocies, as a law it WORKS. Some group of people like it and a majority can accept it.


1: No, a 5-4 SC could, and should, reverse

2: No, if it worked it wouldn't be a constant source of fights.

FIDO said...

1) A 5-4 court just needs one defector or person of an equivocating nature (See Roberts). A 6-3 Conservative court will have the added decades to make THEIR decision 'precedent' and not have it immediately reversed when Justice Thomas bumps off.

2) This is not a legal issue, but one of humanity. Pro Abortion people think that a woman's 'physical sovereignty' and convenience trumps...well...everything. Even a botched abortion where the child actually survives. That a third party, the woman decides if her fetus is a child or a lump of cells.

Others disagree.

You cannot wish away the 30% of people who agree with Althouse. You need to come to an accommodation because if you go extreme like the Roe court did, you are just demanding that it is reversed. So I would suggest that the Conservative court revisit the VIABILITY issue and the horrible evil no good crapulent morality of Virginia and Massachusetts Legislators.

FIDO said...

Though, this might be evil FIDO talking...I might suggest that the Supremes put out a doctrine of 'No Court in the Land can make a decision regarding the rights of abortion and all prior court cases are null and void. It is up to the decisions of the State Legislators to reach a decision which is acceptable to a supermajority of its legal VOTERS.

Force the Feminists to actually have to win arguments and change minds instead of relying on the Magic Gavel of RBG. Make the Pro Life people think VERY HARD about what to do if their daughter gets inconveniently pregnant.

I could accept a 20 weeks decision. If women want responsibility for their bodies, maybe they should take some BEFORE an abortion is necessary, and not afterwards.

Greg P said...

Find, you're wishing away the 40%+ who disagree with Roe.

There is NO accepted right to control your own body. If there was, suicide would be legal.

For that matter, kiss goodbye the DEA, the FDA, and almost every single economic regulation. If I have the right to do what I want with my body, you can't force me to not work unless I get paid a minimum wage. You can't require me to get a prescription before I take human growth hormone, or pain killers. You can't stop me from taking performance enhancing drugs.

The people who agree with Althouse about abortion are free to vote for politicians who agree with them. They are NOT free to demand that 5 black robed thugs and would-be dictators get to force their beliefs on the rest of us.

There is no Constitutional right to Abortion. There is no Constitutional right to "bodily integrity." There is no Constitutional, legal, intellectual, or moral legitimacy to ANY of the pro-Roe claims (calling them "arguments" would give them too much credit).

You want to ague for abortion? Fine. You can possibly make arguments for that. but you can't make legitimate arguments for Roe. it must die.

Michael McNeil said...

On the subject of Clarence Thomas, I refer everyone (except perhaps Inga, Ritmo and their ilk) to a fascinating view, from 2011, of historian and academic Walter Russell Mead concerning Clarence Thomas's (together with what might be called “Thomism's”) huge real impact already thus far, and also — potentially, enormously — upon a future Supreme Court (whose time is — perhaps — soon, or now).

In so doing Mead dissects (liberal) Jeffrey Toobin’s earlier (as Mead puts it) “gripping, must-read profile of Clarence and Virginia Thomas in the New Yorker.”

Walter Russell Mead writes: [quoting…]

Toobin argues that the only Black man in public life that liberals could safely mock and despise may be on the point of bringing the Blue Empire down.

In fact, Toobin suggests, Clarence Thomas may be the Frodo Baggins of the right; his lonely and obscure struggle has led him to the point from which he may be able to overthrow the entire edifice of the modern progressive state.

Writes Toobin: [quoting…]

In several of the most important areas of constitutional law, Thomas has emerged as an intellectual leader of the Supreme Court. Since the arrival of Chief Justice John G. Roberts, Jr., in 2005, and Justice Samuel A. Alito, Jr., in 2006, the Court has moved to the right when it comes to the free-speech rights of corporations, the rights of gun owners, and, potentially, the powers of the federal government; in each of these areas, the majority has followed where Thomas has been leading for a decade or more. Rarely has a Supreme Court Justice enjoyed such broad or significant vindication.

[/unQuote] [Still quoting WRM…]

This is one of the most startling reappraisals to appear in The New Yorker for many years. It is hard to think of other revisions as radical as the declownification of Clarence Thomas […].

There are few articles of faith as firmly fixed in the liberal canon as the belief that Clarence Thomas is, to put it as bluntly as many liberals do, a dunce and a worm. […] Not only does the liberal mind perceive him as a disgusting lump of ungoverned sexual impulse; he is seen as an intellectual cipher. […]

At most liberals have long seen Thomas as the Sancho Panza to Justice Antonin Scalia’s Don Quixote, Tonto to his Lone Ranger. No, says Toobin: the intellectual influence runs the other way. Thomas is the consistently clear and purposeful theorist that history will remember as an intellectual pioneer; Scalia the less clear-minded colleague who is gradually following in Thomas’ tracks.

If Toobin’s revionist take is correct, (and I defer to his knowledge of the direction of modern constitutional thought) it means that liberal America has spent a generation mocking a Black man as an ignorant fool, even as constitutional scholars stand in growing amazement at the intellectual audacity, philosophical coherence and historical reflection embedded in his judicial work. […]

Back in Pundit High, they used to teach a fair amount about constitutional history in the US history course […]. The way we learned them, the Second and Tenth amendments were as dead as the three fifths clause: so dead that there was no point in asking why they died or what they were doing there. […]

{Continued on next page: page 2}

Michael McNeil said...

{Continued from previous page: page 2}

Still quoting Walter Russell Mead: [quoting…]

Those were the operating assumptions my generation took with us to college and beyond; they are still the conventional wisdom among most American intellectuals and journalists today.

What we didn’t know, and what the world at large didn’t know until very recently, was that the New Deal constitution was not as permanent or unalterable as it looked. Intellectually its foundations were shaky, and after two decades of a Clarence Thomas-led assault, the constitutional doctrines that permitted the rise of the powerful federal government could be close to collapse.

In the case of the Second Amendment, the collapse has already come. Back in my Pundit High days, anyone who dared to suggest that the Bill of Rights gave individuals the right to bear arms would have been laughed out of the class as an ignorant yahoo. These days, that is the accepted view of the US Supreme Court and most of the legal profession. The resurrection of the Second Amendment proves that the “dead letter” clauses of the Constitution can come back to life — and suggests that Clarence Thomas understands how this can be done. […]

The real problem will come if Thomas can figure out how to get the Tenth Amendment back into constitutional thought in a serious way. The Second Amendment was a constitutional landmine for the left; the Tenth is a nuclear bomb. […]

As Toobin tells the story, the revival of the Second Amendment was the first great triumph of the new approach. Thomas and others assembled a mountain of evidence that convinced increasing numbers of legal scholars that the Second Amendment must be read as conferring an individual right to bear arms — not merely a generic endorsement of the right of each state to maintain a militia. More, this right was intended as political: to check the power of the state to overawe and crush the people. As a result, the once seemingly unstoppable movement toward gun control has gone into reverse gear.

The startling possibility now beginning to dawn on some observers is that these same methods applied to the Tenth Amendment would lead to a much more far reaching revision to constitutional doctrine. […]

Unleashing the Tenth Amendment would move the constitutional status quo back towards the early 1930s when the “Nine Old Men” struck down one New Deal law after another. For Toobin and most New Yorker readers, it is hard to imagine an idea that more radically and totally runs against everything they believe. […]

It’s hard to argue with Toobin that Thomas has moved the ball down field in his quest for a new era of constitutional jurisprudence. […] Jeffrey Toobin is announcing to the liberal world that Clarence Thomas has morphed from a comic figure of fun to a determined super-villain who might reverse seventy years of liberal dominance of the federal bench and turn the clock back to 1930 if not 1789.

The fantasy is still far fetched, and it is notoriously hard for political movements to get and hold power long enough to shift the balance on the Supreme Court, but that Thomas has accomplished as much as he has shows how far the country has drifted from the old days when liberals were confident that the Supreme Court would find new ways to fit its judicial philosophy to the demands of the blue social model.

[/unQuote]
____

As Walter Russell Mead also suggests: “With a couple more allies on the Supreme Court” — such as perhaps Neil Gorsuch is proving to be — “Justice Thomas could get pretty close to the lava pits of Mount Doom”!

(Thus, Walter Russell Mead. That's the gist of his piece, I'd assert… but do read the whole thing!)

readering said...

Of course it goes both ways. Heller apparently has no stare decisis value regarding the interpretation of the Second Amendment under the new thinking

Yancey Ward said...

Yeah, readering, like the Left was ever going to apply stare decisis to Heller if they got a chance to overturn it. Sheesh.