December 2, 2021

"Hi Ann - long-time local reader. After Breyer mused on 'super stare decisis' today I duck-duck-go'd it and your 2005 post was one of the first results...."

"I was struck by how it felt like this post could have been written today. Plus ça change." 

That's from my email. The 2005 post is "Luttig and 'super-stare decisis.'" I'll just print the whole thing (below) so you can read it and see how up-to-date it is.

First, here's what Justice Breyer said:
It is certainly true that we cannot base our decisions on whether they're popular or not with the people. Casey seemed to say we shouldn't base our decisions not only on that but whether they're going to -- whether they're going to seem popular, and it seemed to me to have a paradoxical conclusion that the more unpopular the decisions are, the firmer the Court should be in not departing from prior precedent, sort of a super stare decisis, but it's super stare decisis for what are regarded as -- by many, as the most erroneous decisions. Do you think there is that category? Is there -- or is it just normal stare decisis? 
And here's what I wrote 16 years ago (when GWB needed to fill a Supreme Court seat):
Jeffrey Rosen re-airs the topic of "super-stare decisis" -- the notion that the precedential value of some cases is especially strong, perhaps so strong that you ought to have to agree in advance not to overrule them to win confirmation to the Supreme Court. In this connection, it's notable that Michael Luttig -- who seems to be on a very short list -- actually used the term in the only federal court case where it appears. Rosen doesn't mention the super-unusualness of the term, by the way. I just did a LEXIS search to bring you that information. The alternate term "superprecedent," which Rosen uses, does not appear even once is the federal court cases. 
Anyway, here's what Luttig wrote:
I understand the Supreme Court to have intended its decision in Planned Parenthood v. Casey to be a decision of super-stare decisis with respect to a woman's fundamental right to choose whether or not to proceed with a pregnancy. ("Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after our holding that the Constitution protects a woman's right to terminate her pregnancy in its early stages, Roe v. Wade, that definition of liberty is still questioned. . . . After considering the fundamental constitutional questions resolved by Roe, principles of institutional integrity, and the rule of stare decisis, we are led to conclude this: the essential holding of Roe v. Wade should be retained and once again reaffirmed."). And I believe this understanding to have been not merely confirmed, but reinforced, by the Court's recent decision in Stenberg v. Carhart, ("This Court, in the course of a generation, has determined and then redetermined that the Constitution offers basic protection to the woman's right to choose. We shall not revisit those legal principles.").
Quite clearly, Luttig is not saying that there is a such thing as super-stare decisis. He's a Court of Appeals judge bound by Supreme Court precedent and subject to Supreme Court review. He's paying attention to what that Supreme Court has written about abortion rights, and he's reading the Court to have intended Casey to serve as an especially strong precedent. 
In making up a new term, Luttig may have even been subtly mocking the Casey Court. How does a majority in one case get the power to imbue its decision with extra weight? You can intend to give your case super powers but have you succeeded? Saying it's super powerful doesn't make it so. It is up to the later Court to decide whether to overturn that precedent. Will the fact that the Court that decided it meant to make it more powerful matter? That's the aspect of Casey that Luttig chose to point out: the Court claimed special power for it. He, as an inferior court judge, must go along with such things, regardless of what he really thinks. 
But there is more to Casey than the mere assertion that the Justices intend it to have extra weight. There is the reason embodied in the phrase "Liberty finds no refuge in a jurisprudence of doubt." Part of having rights is the sense of permanence. It is not just that courts in the past have protected this right, but that the right will continue to exist in the future. A right is not a transitory thing. In this view, the super power of Casey lies not in the Court's intent to make it a "superprecedent," but in the soundness of that reasoning. Judge Luttig's opinion has nothing to say about that. 
Proposed line of questioning for the Luttig confirmation hearing (if such a thing should come to pass): 
You wrote that the Supreme Court "intended its decision in Planned Parenthood v. Casey to be a decision of super-stare decisis," but I am interested to know if you think that a Court can declare special precedential value for one of its decisions. You don't think a later Court is bound by a declaration like that, do you? And if not, do you think there is something to this idea that once people are told they have rights, that those rights are impaired by leaving them in a state of doubt? If the Court says these are your rights, people ought to be able to believe that they really have those rights, that they will still be there in the future, shouldn't they? Isn't that part of what rights are?

Boldface added.

Rights matter. The belief in rights is already eroded, perhaps especially on the left. Destroy the abortion right — after half a century — and you open a path of terrible destruction. 

There will be scoffing laughs when you try to talk about our treasured right to freedom of speech. Expect hilarity at the mention of the right to bear arms or anything about this stuff you call "property." Look for a revival of the Critical Legal Studies "critique of rights."

Now, back to Justice Breyer's question yesterday. First, I think he's got something new that he's calling "super-stare decisis." The idea under discussion in 2005 had mostly to do with the fact that the Court had specifically considered overruling Roe, so that the application of stare decisis was itself stare decisis. Breyer's idea is about political pressure against against the precedent: The stronger the pressure, the more the Court ought to resist giving the people what they want. Since Breyer calls that "paradoxical," I infer that he thinks the notion is a tad perverse. 

The lawyer for the respondents (Julie Rikelman, for the Jackson Women's Health Organization) goes back to the super-stare decisis idea we talked about in 2005: "I think it is precedent on precedent, Your Honor, because Casey did the stare decisis analysis for Roe, so the question before this Court is whether that stare decisis analysis was egregiously wrong."

66 comments:

gilbar said...

but it's super stare decisis for what are regarded as -- by many, as the most erroneous decisions.

so, we SHOULD have kept Plessy? BECAUSE it was erroneous?

Achilles said...

"super-stare decisis"

This is the kind of stupid irrational argument you hear from people that have no argument.

When you have the facts pound the facts.

When you have the law pound the law.

When you got nothing pound "super-stare decisis."

Achilles said...

Add some tears and a few references to Handmaid's tale.

Then go to your state legislature where this belongs.

Systems matter.

ga6 said...

Look, up in the sky! Is it a bird or a plane? No it is Super Breyer looking foe a new penumbra!

Wince said...

Rights matter. The belief in rights is already eroded, perhaps especially on the left. Destroy the abortion right — after half a century — and you open a path of terrible destruction.

There will be scoffing laughs when you try to talk about our treasured right to freedom of speech. Expect hilarity at the mention of the right to bear arms or anything about this stuff you call "property." Look for a revival of the Critical Legal Studies "critique of rights."


Yeah, but aren't those rights literally written into the US Constitution?

Gahrie said...

There is the reason embodied in the phrase "Liberty finds no refuge in a jurisprudence of doubt." Part of having rights is the sense of permanence. It is not just that courts in the past have protected this right, but that the right will continue to exist in the future. A right is not a transitory thing.

Chief Justice Taney concurs.

AlbertAnonymous said...

Double secret probation?

Can’t both courts have been wrong? Political? Pressured?

Maybe wrong in different ways. Roe was arbitrary and absurd. Didn’t Casey throw out the made up tri-mester analysis and use the also made up “viability” standard?

Lem said...

Adding boldface makes a comment carry more weight than an emoji. Got it. I’m just kidding.

Caroline said...

Breyer talks in circles. Thomas is distilling a very simple question: where in the document of the constitution, specifically, does the right to abortion rest? The solicitor gen — I think that’s who it is— responds with word salad. What a Christmas miracle that we should finally be able to put abortion on trial. All the arguments about women’s rights rest on the license to kill. Abortion kills. Those simple two words on a poster is what got to me about 25 years ago.
Y’all can try to make this about stare décisis, whatever the hell that is, but the more we attend to the Supreme Court’s doings here the more people will be exposed to the inescapable fact that abortion kills.

rehajm said...

There will be scoffing laughs when you try to talk about our treasured right to freedom of speech. Expect hilarity at the mention of the right to bear arms or anything about this stuff you call "property." Look for a revival of the Critical Legal Studies "critique of rights."

Pre-empting the scoffing and hilarity and the critique with a recognition that it is coming does not and will not mitigate the sting of the bullshit of the coming legal hypocrisy.

farmgirl said...

https://www.hillfaith.org/hillfaith/think-about-this-12-facts-about-a-15-week-old-unborn-baby-you-may-not-know/

Via Instapundit.
Where is science when u need him?/sarc

wendybar said...

You have the right to LIFE, liberty and the pursuit of happiness. There is a reason why LIFE is first.

Lloyd W. Robertson said...

It's one thing to predict a backlash. It's another thing to predict an undermining of right of freedom of speech, right to bear arms, both of which are in the text of the Constitution.

hawkeyedjb said...

"There will be scoffing laughs when you try to talk about our treasured right to freedom of speech."

This is exactly right. The first amendment, as it is written, would not today command a majority in the Democratic caucus if it came to a vote.

Left Bank of the Charles said...

What is the value of stare decisis to a Supreme Court Justice as a basis for decision?

(1) You like the old precedent but have trouble explaining why.
(2) You are having trouble convincing other Justices on the merits of the old precedent that you like.
(3) You don’t really care one way of the other, and stare decisis is handy and convenient.
(4) You don’t want to make more work for yourself in sorting out the issues raised by overruling the old precedent.
(5) You are afraid of losing your power if you overrule the old precedent.
(6) You really believe in stare decisis, even though the old precedent goes against your other principles.

traditionalguy said...

That's a lot of circular reasoning amounting to admitting the Court is a coward.

Left Bank of the Charles said...

“It is certainly true that we cannot base our decisions on whether they're popular or not with the people.”

Why is that true? It is certainly not true in states that elect judges.

mikee said...

When the law is on your side, argue the law.
When the law is against you, argue about the facts.
When the law and the facts are against you, pound on the table and yell.

The left has been pounding on the table for decades now about Roe v. Wade.
Time for the law and the facts to be respected.

Drago said...

"Super Stare Decisis" is clearly an emanation from a penumbra.

Duh.

Everyone knows that.

Plus, voting to overturn Roe is only in the realm of the possibility because Putin spent $49 on internet memes, or something like that.

I won't know more "details" on this russian "interference" until gadfly checks in.

Ann Althouse said...

"Yeah, but aren't those rights literally written into the US Constitution?"

To some extent, but the right to bear arms is premised on "a well-regulated militia" and all of the rights other than property are only literally against the federal government. The "incorporation" through the due process clause of the 14th Amendment, which makes them applicable to state and local government, is a matter of "substantive due process" and not in the text.

Sebastian said...

"Destroy the abortion right — after half a century — and you open a path of terrible destruction."

The absurdly fabricated "abortion right" itself destroyed the right of the people to decide the issue and destroyed the right of the country to be governed under the actual Constitution. The Court opened a path of terrible destruction.

Other democratic countries generally do not leave issues of this sort to be decided by arbitrary judicial fiat. Elected representatives deliberate and vote. It's the civilized alternative to the terribly destructive imposition of invented rights by unelected judicial overlords.

Ann Althouse said...

"It's one thing to predict a backlash. It's another thing to predict an undermining of right of freedom of speech, right to bear arms, both of which are in the text of the Constitution."

And it's another thing to stick your head in the sand and believe your one thing can be destroyed without endangering the rest.

Constitutional law ≈ Jenga.

Roger Sweeny said...

Destroy the abortion right — after half a century — and you open a path of terrible destruction. There will be scoffing laughs when you try to talk about our treasured right to freedom of speech. Expect hilarity at the mention of the right to bear arms or anything about this stuff you call "property."

No doubt. But the Constitution specifically mentions freedom of speech, the right to bear arms, and various safeguards for property. It says nothing about abortion.

So much of Con Law seems to come down to, "The Constitution is good. It would be good if the Constitution means X. Therefore, the Constitution means X.

tommyesq said...

Left Bank said

What is the value of stare decisis to a Supreme Court Justice as a basis for decision?

(1) You like the old precedent but have trouble explaining why.
(2) You are having trouble convincing other Justices on the merits of the old precedent that you like.
(3) You don’t really care one way of the other, and stare decisis is handy and convenient.
(4) You don’t want to make more work for yourself in sorting out the issues raised by overruling the old precedent.
(5) You are afraid of losing your power if you overrule the old precedent.
(6) You really believe in stare decisis, even though the old precedent goes against your other principles.


Don't forget number 7 - you disagree with the analytical framework the prior decision established but cannot come up with a different framework that is both workable and that can gather a majority of the SC. If this case resolves on stare decisis, I believe that will be a big part of the reason.

Roger Sweeny said...

To attack the "right to abortion" is to attack a judge-made right. To attack the "right to freedom of speech" or the "right to bear arms" is to attack a specific Constitutional provision. Politically, the two will be conflated by some. But I think they are very different. And, I hope, judges do too.

Can Of Cheese for Hunter said...

If we were allowed to shoot looters. No more looting.
Alas - we live in a nation that favors the criminal.

Achilles said...

Ann Althouse said...

"It's one thing to predict a backlash. It's another thing to predict an undermining of right of freedom of speech, right to bear arms, both of which are in the text of the Constitution."

And it's another thing to stick your head in the sand and believe your one thing can be destroyed without endangering the rest.

Constitutional law ≈ Jenga.


Are you serious?

You are going to invoke a slippery slope argument about losing freedom after everything you have done and said about COVID restrictions?

Where is that slippery slope argument when the man involved is compelled to pay 18 years of child support?

Oh sorry I meant "splooge stooge."

Are you really that unaware of how inconsistent your reasoning is?

Wince said...

To some extent, but the right to bear arms is premised on "a well-regulated militia" and all of the rights other than property are only literally against the federal government.

As I read it, "A well regulated Militia, being necessary to the security of a free State," is predicated on "the right of the people to keep and bear Arms," which "shall not be infringed."

Unlike the First Amendment, there is no "Congress shall make no law" predicate to the Second Amendment. So, other than Congress' ability to enact "appropriate legislation" under 14th A, sec. 5 to protect gun rights, does the 1st A "right of the people to keep and bear Arms" truly depend upon the incorporation doctrine to have full force in both state and federal the courts?

rehajm said...

Yeah, but aren't those rights literally written into the US Constitution?

Didn't Justice Thomas call that Super-Duper Stare Decisis™ or something?

gahrie said...

And it's another thing to stick your head in the sand and believe your one thing can be destroyed without endangering the rest.

Isn't this the slippery slope argument you are so dismissive of when it comes to issues like gay marriage?

Yancey Ward said...

If constitutional caw is Jenga, then perhaps it all needs to be demolished and rebuilt since its demolition is inevitable.

Here is what I say to Roe supporters- write yourselves a constitutional amendment and get it passed by 3/4s of the states. As a fallback position I will support- move to a state that passes its own laws allowing abortion on demand.

Drago said...

Althouse: "To some extent, but the right to bear arms is premised on "a well-regulated militia"......."

Is this some sort of sleight of hand? Seems like you truncated something.

Here's the text: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

In every instance in the Bill of Rights where the term "the people" is used, that has been understood by the courts to mean individual rights.

But hey, its true that leftists can become quite rhetorically and legally creative in their ability to destroy individual rights and liberties.

No question about that.

Critter said...

As a non-lawyer, this discussion impresses as going down the rabbit hole. There is a huge sleight of hand in play, which is the assumption that Roe discovered rather than invented a right and that that "right" is equivalent to a right enshrined in the Bill of Rights and Constitution. The rest of the argument is just legal spin from the abortion Mad Hatter.

Real American said...

Stare decisis is a rule of thumb. It's helpful, but not mandatory. Sure, the court has factors (including whether the original one was demonstrably erroneous) to look at to see whether a certain opinion interpreting the Constitution ought to be overruled and new one rendered. However, a court can't take a second look at the most controversial decision in our nation's history and declare it off limits to future courts, and have that declaration be binding. Two wrongs don't make a right. That's politics, not law.

The right to abortion is not found in our Constitution. Even ardent pro-abortionists have said that. It was judicially manufactured. Anything that can be created by a Court can be dismantled by the Court. That's the drawback of using litigation to amend the Constitution rather than doing the hard work of the political process.

And haven't the pro-abortionists been claiming for nearly 50 years that the right to abortion is at risk? They have. That's why the judicial nomination process has completely gone off the rails. This issue has distorted and mangled our politics because the Supreme Court invented a right to abortion out of shadows. They've been trying to protect their judicially created right because the other side has made judicial nominations a priority so they can terminate that barbaric right for all of the moral and legal and political reasons we all know about.

And what, then, if the Court in Dobbs tosses Roe and Casey and use the next abortion case to state uphold Dobbs? Will the left love stare decisis then? No, they won't because it won't suit their ends. Again, it's politics, not law, which is more reason why this particular issue should be handled in the political realm, not the judicial one.

Gospace said...

Ann Althouse said...
"Yeah, but aren't those rights literally written into the US Constitution?"

To some extent, but the right to bear arms is premised on "a well-regulated militia" and all of the rights other than property are only literally against the federal government.


Is it now? In order for the people to be a militia, and the people, through federal and most state laws, are the militia. They don't all need to be drilling militia, able to march and exchange arms with precision. But they do all need to be armed so when they're called out- they can don do something other than just mill about smartly.

When the militia was called out at Lexington and Concord- it was the people who showed up- armed people, answering the call. They were there to protect the armory- with cannon and shell that required a team to operate. What remained anyhow since much of the armory had bee dispersed to prevent seizure by the British regulars. Some of the militia had rank and was organized- those that showed up without previous unit assignment were assigned to a part of the line to stand and do their duty. They already knew how to aim and shoot. Much as the average gun owner does today.

The unorganized militia does get regularly called out today- unarmed. Usually for search and rescue. When the people show up to comb a forest section for a missing child or adult- that's the militia in action. We've been at peace pretty much since the last Indians were pacified. Over a century of peace and memories of the people turning out as an armed force to protect against the enemy have been lost.

The last successful use of the militia to overturn a tyrannical government in the USA was The Battle of Athens in 1946. I suspect there is a reason this particular bit of history isn't taught in any high school of college class anywhere in the USA. And I wonder at times how close we are to seeing it happen again.

Birches said...

Freedom of Speech and the right to bear arms are already being destroyed by the left without any help from the Right.

I say we might as well as get a bunch of kids being born out of the deal because the left certainly isn't going to stop trying to eliminate rights it finds inconvenient to it's rule. They will always make up a reason. The SG made up reasons yesterday in the oral argument, saying that abortion has always been confined in law.

Rabel said...

"Destroy the abortion right — after half a century — and you open a path of terrible destruction."

Let's not get hysterical. The Court is considering allowing a state to define the parameters of "early stages" in Ludwig's formulation of "a woman's right to terminate her pregnancy in its early stages."

Fifteen weeks in states that legislate such is a just and reasonable compromise that may be forced upon the absolutists on each side.

Ralph L said...

I prefer "duck-duck-went."

Wilbur said...

Personally, abortion has always been a difficult topic on which to arrive at a firm conclusionary decision. I see strong and sincere merit in both sides, although my own major disagreement with Roe has been legal, not moral.

But AA brings up something worth considering: will overturning Roe lead to negative unintended consequences? And are those consequences foreseeable?

Something for us to consider ...

MadTownGuy said...

"There will be scoffing laughs when you try to talk about our treasured right to freedom of speech. Expect hilarity at the mention of the right to bear arms or anything about this stuff you call "property." Look for a revival of the Critical Legal Studies "critique of rights.""

Wasn't the issue discussed when the Bill of Rights was being ratified, that the rights were assumed to exist and that the Amendments were intended to assure that those innate rights would not be abridged? Rights not enumerated in those Amendments were still assumed to exist, as I understand the intent. Even at that, the 'right to end life,' however you define it, may be outside the pale.

Kevin said...

Wait until the Second Amendment cases come through and also get tagged with "super-stare decisis".

The Court will then rush to declare the next ruling regarding Roe/Casey as "superduper-stare decisis".

Leora said...

I think there is a big mushy middle on abortion that thinks first trimester abortion ought to be legal and that third trimester abortion should be only allowed in extraordinary cases - which I believe is what Roe held. Casey apparently allows abortion up until the moment the baby emerges from the birth canal or perhaps some short unspecified time thereafter. I don't see why Casey can't be overruled without leaving Roe intact allowing state political action to provide regulation in the second and third trimesters.

Václav Patrik Šulik said...

Ann's correct. Sotomayor specifically threatened to overturn the Second Amendment - not Heller - if she doesn't get her way:

"We won’t be able to survive if people believe that everything, including New York [Times] versus Sullivan — I could name any other set of rights, including the Second Amendment, by the way. There are many political people who believe the Court erred in seeing this as a personal right . . . as opposed to a militia right. If people actually believe that it’s all political, how will we survive? How will the Court survive?"

Freder Frederson said...

Y’all can try to make this about stare décisis, whatever the hell that is, but the more we attend to the Supreme Court’s doings here the more people will be exposed to the inescapable fact that abortion kills.

So what is your line, conception? You do realize that defining life as beginning at conception makes almost all IVF murder?

Your personal religious belief is not shared by a majority of the population of this country, what gives you the right to impose it on us?

Freder Frederson said...

You have the right to LIFE, liberty and the pursuit of happiness.

The Declaration of Independence has no bearing on our laws.

sean said...

The right to free speech, or to keep and bear arms, is tied to particular Constitutional text. They are not permanent: they can be eliminated by Constitutional amendment at any time. Abortion is different, being purely a judicial gloss on the emanations and penumbras of the Constitution. The way to eliminate judicially-created rights is by appointing judges with a different judicial philosophy. That is what abortion opponents have done, and they are entitled to the fruits of their lbor.

Kevin said...

The Declaration of Independence has no bearing on our laws.

That's left to the cherry-picked precedents of other nation's laws.

It's the legal principle called "by any means necessary".

Mark said...

The right to free speech, or to keep and bear arms, is tied to particular Constitutional text. They are not permanent: they can be eliminated by Constitutional amendment at any time.

Go read those texts again.

You will discover that they do NOT create any rights. Instead, they recognize and protect pre-existing rights.

The U.S. Constitution does not grant you a damn thing. It merely secures those rights you have by human nature. If there never was a Constitution, you would still have those rights.

Saint Croix said...

If you want to actually resolve the case or controversy, recognizing the humanity of the unborn child is the only way to do it.

Once you say, "this baby is a person"...

1) It becomes very hard to reverse the decision and to subjugate the baby to a non-person status. It will remind people of the other fights we have had over civil rights.

2) Recognizing the humanity of "the other" reduces conflicts. The equal protection clause is based on the principle of the golden rule. Do unto others as you would have them do unto you. Apply the same rule to others that we apply to us.

3) A state that wanted to apply a "viability" rule to unborn children would be forced to apply the rule to newborns and old people as well. Applying the rule to all of humanity makes us really think about our rules. We strive to make them as fair and just as possible, because these rules might bite us in the ass one day.

4) Defining an unborn child as a "non-person" short-circuits this process. You can be as ugly as you want to somebody who is outside the law. The existing standard invites dissension, conflict, and violence.

5) It will be hard to recognize the humanity of our unborn children, after denying it so long. But it must be done if we have any hope of resolving this conflict.

Saint Croix said...

And it's another thing to stick your head in the sand and believe your one thing can be destroyed without endangering the rest.

Constitutional law ≈ Jenga.


That's why slavery stuck around for as long as it did. The Constitution! The republic! We have to keep the evil parts!

It's a desperate argument made by people who know they are on the wrong side.

Mike Petrik said...

@Freder Federson
You are missing the point. The question isn’t where Caroline would draw the line, but simply who gets to draw it. It is not Caroline, and under our Constitution it isn’t SCOTUS either. It is the state legislatures responding to a political process that inevitably takes into account competing arguments and considerations. Roe and Casey were simple acts of cheating, and the argument for an application of stare decision is nothing more than a plea to let the cheating continue.

hombre said...

“[A] path of terrible destruction ....” Yes. Because the people of the left refuse to distinguish between rights enumerated in the Constitution and the unenumerated, personalized rights invented by moral relativists in violation of their oaths.

In this instance the result has been the slaughter of 61million innocents in (and out of) the womb and an apparently insatiable lust for more. Of course, relieving women of the incredible burden of avoiding unprotected intercourse makes this modern holocaust worthwhile. Their moral degradation and that of the nation are insignificant.

Drago said...

Freder: "The Declaration of Independence has no bearing on our laws."

This is a strange take coming from the side that argued a poem on the Statue of Liberty should govern US immigration policy.

This Person said...

Ann says...

And it's another thing to stick your head in the sand and believe your one thing can be destroyed without endangering the rest.

Constitutional law ≈ Jenga.


No do pulling shit out of your ass and calling it a constitutional right.

n.n said...

The way to eliminate judicially-created rights is by appointing judges with a different judicial philosophy. That is what abortion opponents have done, and they are entitled to the fruits of their lbor.

With a sincere hope and effort to avoid another civil war, and mitigate the progress of diversity [dogma] (i.e. color judgment, inequity, and exclusion under politically congruent constructs with minority support. To preserve the dignity and agency of women and men, and conserve the intrinsic value of human life. And control the collateral damage and mischief indulged under the Twilight Amendment.

hombre said...

Freder: “Your personal religious belief is not shared by a majority of the population of this country, what gives you the right to impose it on us?” Does the majority of the population favor the leftist trope of “abortion on demand?” I think not.

Human embryology, the relevant science here, has always and virtually universally held that life begins at conception. Are you arguing that laws protecting life reflect “personal religious belief” and ought not to exist? Or perhaps you are just a science illiterate moral relativist who prefers personalized laws of convenience. Or maybe you invent science as you invented “a majority”, above.”

n.n said...

The Declaration of Independence has no bearing on our laws.

It is the national charter. That said, the Constitution is written to two parties: "the People" and "our Posterity". The Twilight Amendment holds that elective abortion (e.g. premeditated murder, clinical cannibalism, carbon sequestration) can be carried out in darkness (privacy), essentially if you can get away with it by force or consensus, legalized diversity [dogma], inequity, and exclusion (DIE), and is the source of other mischief to deny human and civil rights.

Tom Grey said...

The Roe decision is NOT an amendment, like the 1st, 2nd, 16th, or 18th and its cancelling with the 21st. Many people against the decision understand that overturning Roe returns the abortion "question" to the states, where such questions belong, according to the 10th.

Our democracy will be better, and stronger, with less power at the Fed level, and more in various state capitals.

Since pro-life people have more children than pro-abortion women, the demographics will constantly be moving towards less abortion, and perhaps even more so as The Population Bomb alarmism morphs into fear of too few people and population declines, as Japan has now and China is virtually certain to have by 2050.

n.n said...

The Second Amendment acknowledges a right to keep and bear arms by citizens in daily activity with training purposes, so that they may be capable and prepared to serve in a militia. Unlike the Twilight Amendment, it does not acknowledge nor delegate the rite of aborting human life by the millions for light, social, redistributive, and fair weather causes.

n.n said...

Destroy the abortion right

A strawman apology. On what basis is a women's bodily autonomy denied in the second and third trimesters?

There is no mystery in sex and conception. A woman and man have four choices, self-defense, and still six weeks to hold a reproductive rite for light, social, redistributive, and fair weather causes. So, her Choice is not aborted (destroyed), and Her Choice is considered separately, and while we have some influence to influence the latter, it is primarily subject to fate.

Roe, Roe, Roe your baby down the river Styx. #HateLovesAbortion

Kansas City said...

It seems absurd to argue that the affirmance of an egregiously erroneous decision provides the egregiously erroneous decision with super stare decisis protection. The focus should be on whether the original decision was egregiously erroneous. You certainly can take into account why Casey affirmed it, which was not very persuasive.

Left Bank of the Charles said...

The Catholic Church has done a stare decisis analysis. From The Irish Times:

The Catholic Church’s current position on abortion is 144 years old. In the 1869 document Apostolicae Sedis, Pope Pius IX declared the penalty of excommunication for abortions at any stage of pregnancy. Up to then Catholic teaching was that no homicide was involved if abortion took place before the foetus was infused with a soul, known as “ensoulment”.

Separate consciousness. This was believed to occur at “quickening”, when the mother detected the child move for the first time in her womb. It indicated a separate consciousness.

In 1591, Pope Gregory XIV determined it took place at 166 days of pregnancy, almost 24 weeks. That is the current legal limit for abortion in the UK. It was Catholic Church teaching until 1869.

Gahrie said...

The Declaration of Independence has no bearing on our laws.

So what? According to Leftist judges, neither does the Constitution.

Bender said...

Lefty Chuck, like Howard before you, you simply must stop getting your fairy tale history from Harry Blackmun and the pro-abortion lobby.

The Catholic Church had a written express prohibition against abortion since the 1st Century.

From its first contacts with the Greco-Roman world, where abortion and infanticide were widely practised, the first Christian community, by its teaching and practice, radically opposed the customs rampant in that society, as is clearly shown by the Didache mentioned earlier. 62 Among the Greek ecclesiastical writers, Athenagoras records that Christians consider as murderesses women who have recourse to abortifacient medicines, because children, even if they are still in their mother's womb, "are already under the protection of Divine Providence".63 Among the Latin authors, Tertullian affirms: "It is anticipated murder to prevent someone from being born; it makes little difference whether one kills a soul already born or puts it to death at birth. He who will one day be a man is a man already".64

Throughout Christianity's two thousand year history, this same doctrine has been constantly taught by the Fathers of the Church and by her Pastors and Doctors.

--Evangelium Vitae, 61

https://www.vatican.va/content/john-paul-ii/en/encyclicals/documents/hf_jp-ii_enc_25031995_evangelium-vitae.html

Martin said...

Not only Plessy, but Dred Scott, too, was intended as "super stare cecisi" decisions at the time.

So Plessy should never have been overturned, as the regime it permitted was far too stable and set in stone where it was applied, to ever be changed? An overturning the even more odious Dred Scott required a Constitutional Amendment that could only be passed because some states had left the Union and therefore could not oppose that action?

Reynolds v. Sims? Griswold v. Connecticut? Obergefell? Was the Court wrong to consider the cases that led to Escobedo and Miranda/

There are arguments to be made about what the Founders would have thought about judicial review of statutory law, but I am pretty sure that the idea that some court decisions cannot be reviewed by later courts would have been almost incomprehensible to them.

Norpois said...

This is all very interesting. One way I think about it is that, oddly, the Court is the only “omnicompetent-in-the-(old)-British-sense” institution
Among the 3 branches. A court cannot bind a future court, this seems obvious; if stare decisis was other than a maxim, there would a rule against overrulings that could not be overruled. If the constitution had such a rule, it would make things more interesting in a kind of Lewis Carroll sense. But the constitution doesn’t, because historically in Britain both courts and Parliament could not bind themselves in future cases/votes etc.
The kind of unique challenge posed by invoking stare decisis In the Roe context is that the justification for stare decisis is that the court should not upset expectations formed during a lengthy period in which the law of the land has clearly been x. This is sometimes called the reliance interest. If people owned gold because the Court said it was legal tender in, say, 1850, and the Court in 1930, say, says it isn’t, then even if you think the new legal regime is correct you need to consider the destruction of the reliance interest….which is important not only because it hurts some gold-owning people, but because there are societal advantages for there being established rules people can rely on generally. In other words, too many overrulings and people will stop thinking SCOTUS decisions are any more reliance-inducing than any other purely administrative diktat.
Pregnancy involves a rare situation with no, or minimal, reliance interest? This is a kind of weird thought, but anyone engaging in potentially-conceiving behavior after the oral argument…..you could say they had no reliance interest (particularly if they live in the 30 blue states, where abortion demand will be legal after any kind of Roe reversal). So, and, again, and I admit this is weird, but could you imagine a decision that overruled Roe but not as to anyone who conceived before the decision was handed down? Crazy stuff.