From "Sotomayor saw she couldn’t sway her colleagues. So she talked to us instead. The liberal justice signaled that the next round of the abortion fight might be political, not legal" by lawprof Melissa Murray (WaPo).
Murray notes "the congressional bill" and links to "House passes bill to create statutory right to abortion as a battle over Texas law heats up" (from last September). There will only be bans on abortion if the democratic processes within government provide the relevant statutes — contrary to the delusion of those low-information citizens who think the fetus is about to acquire a constitutional right to life — and these democratic processes can just as well enact a statutory right to have an abortion.
If we the people really want this right, we can get it. The Democrats have a lot of power now, and there should be pressure on them to use it, and you can see the House has already acted. We're told the President "strongly supports" the legislation. The trick is to get the bill through the Senate.
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88 comments:
'Not with a Jan. 6-style [alleged] insurrection"
Fixed it for you!
And she, a law professor!
What is the jurisdictional basis for Congress to create a right to abortion? Even theoretically?
I tend not to get involved in abortion debates for various reasons. However, if I understand things correctly (perhaps a dubious assertion) if the SCOTUS overrules Roe/Casey then Democrats want to create a constitutional right to abortion on demand?
How does that work?
As I’ve said before, interesting moment in which abortion finally faces trial. From it will inevitably flow discussions about what exactly it is that’s being flushed down the sink…it is not an abstraction, like a “right”…but flesh of my flesh, bone of my bones. Let this happen at this time of year, when the icon of the infant cannot fail to penetrate hardened hearts. Let it be that our ardent and devout Catholic President will seize the bully pulpit to fight on behalf of the Culture of Death. Let the truth escape. Let it be, let it be. Whisper words of wisdom, let it be.
Can Congress "create" a right to abortion if the SC determines that no such right exists in the Constitution? What would be the Constitutional basis for such a statute? Wouldn't it effectively have to be written as a prohibition on states enacting laws restricting or banning abortion, which is what the Mississippi case is about?
Connect "demosprudence" with "Baby Scoop Era" as words foisted on us by academics, and connect demosprudence with Harvard Law's Election Law Clinic as power grabs by Harvard.
Democrats just want to be the party of death, murder and mayhem. PERIOD. Genociding millions of babies makes them jubilant. Protecting them makes them ANGRY!!
The law would be overturned as not within the Federal powers, unless it's interstate commerce or something. It has to be state action.
Overturning Roe though would get a lot of Republicans thrown out of state government for just that reason. They don't have the support that they imagine they do.
Except that a pro abortion bill might not pass Congress, and if it did, would probably not be within the enumerated powers of Congress. How are they going to Constitutionally justify a pro abortion bill? Commerce Clause? With 7 of 9 Justices on the Supreme Court either belong to or attend a Roman Catholic Church? I can see states being forbidden to do things (like ban abortion) based on penumbras of the Bill of Rights, but a federal ban on state abortion bans is seriously into state’s rights.
It’s funny to me how revelatory they’re trying to make their idea sound.
"If we the people really want this right, we can get it... The trick is to get the bill through the Senate."
Trick? Really? If it doesn't pass the Senate, political partisan bickering aside, doesn't that mean the people don't want it?
"Not with a Jan. 6-style insurrection"
It's funny how the very first thing that seemed to come to her mind was that this very much does justify Jan-6, in all its excesses. Otherwise she is just using the term to camouflage Sotomayor's political activism, and we all know that Sotomayor would never inject politics into what is clearly* a legal question. I guess that a lynch mob, in an old Western, for example, would be an early example of 'demosprudence.'
*Tim's law: The word "clearly" almost never means what the speaker or writer intends it to mean, but in fact it usually means: "I can't prove this, and there is a lot of evidence the other way, but I need to counter it somehow."
the delusion of those low-information citizens who think the fetus is about to acquire a constitutional right to life
What struck me this morning is the possibility that the Court might try to find a compromise solution.
The argument for viability is incredibly weak. Blackmun in his personal papers acknowledged it was completely arbitrary. (That was mentioned in oral argument). Casey has clearly and unmistakably failed to resolve the case or controversy. We're still fighting over abortion.
The Court has the votes (I think) to overrule Roe completely and send it back to the states.
But it's possible they could write something like...
"We affirm the fundamental holding of Roe v. Wade, that a woman has a right to choose whether or not to be pregnant. In Planned Parenthood v. Casey, we struck down the trimester system part of the opinion. Today we strike down the viability part of the opinion."
They could send it back to the states to do what they want to protect unborn children. Just make sure you respect Roe v. Wade and a woman's right to choose. So the only thing that's left is whether a law is an "undue burden" on the abortion right. And then uphold both the Louisiana law and the Texas law.
Undue burden is of course an unworkable standard. Not law at all, really. But what it would suggest (to me, anyway), is that states could protect unborn children by moving the point earlier in the pregnancy so that we take infanticide off the table.
The problem Roberts is going to run into is that at least five people on the Supreme Court don't think there is a constitutional right to abort a pregnancy. But he might be able to cobble together five votes to uphold Roe (again), as long as he upholds both the Louisiana law and the Texas law.
I think there's zero appetite on the Supreme Court to acknowledge that an unborn baby is a person with a right to life. They are too dishonest for that. But I think the viability doctrine is toast. And of course all the laws that will appear to "restrict abortion" will be focused on saving the lives of unborn children.
The heartbeat law in Texas has some correlation to our death statutes (the standard used to be "loss of heart and lung function"). The heartbeat law is an attempt to protect embryos who have beating hearts.
I predict a very messy set of opinions, with multiple people saying there is no right to abort pregnancies, and with at least five people who want to uphold both the Louisiana law and the Texas law.
The right to abort a pregnancy would be more secure if liberals were to somehow take the infanticide argument off the table. The unanimous holding in all 50 states -- and the federal government -- that brain death is the standard for when people die has to be kind of tempting.
But to apply those rules, I think you would have to acknowledge the humanity of the baby, which our rulers are loathe to do, because it looks bad for them and their power, and their prestige. Which is already in the toilet, thanks to the partial-birth abortion cases, which were particularly ugly and vicious. Not to mention the Kermit Gosnell murders and all the ugliness that results from a lack of regulations in abortion clinics.
Jesus resolves these fights by reminding us to love. That's how Christ teaches us that slavery is bad and abortion is bad, without getting political.
“demosprudence' — the idea that legal change does not flow exclusively from courts and other government actors, but..."
"... may proceed from the mobilization of the people themselves”
It is astounding that a law professor could come up with such an insight, she should write a paper in the law review about how people can contact their legislative representatives and suggest changes to law.
Ann said
The Democrats have a lot of power now, and there should be pressure on them to use it,
Utter bosh. The demmies have a very small majority in the house and none in the senate (except that kamala can break ties. But for how long?)
They have a powerless presidency for a few more weeks but won't even have that shortly. A reinstalled President Trump and a repo veep will negate the Senate and house.
John LGBTQBNY Henry
Why is there always a trick?
That’s disingenuous. It was a call for the muscle wing of the Left - Antifa and BLM - to terrorize the conservative Justices and their families. I expect action to begin on Christmas when they go to Mass. Ginni and Clarence Thomas would be smart to come to Omaha and go to Mass with me at St. Cecilia’s.
Where's the national support for federal legislation that goes farther than Roe-Casey to overturn a 15-week Mississippi abortion law?
Where does Congress obtain the constitutional authority to overrule state police powers?
Isn't the actual goal, as it's always been, to keep abortion a national issue and keep the money flowing through that same establishment machinery?
"If we the people really want this right, we can get it."
Sure. Just as we the people can give ourselves the right to steal other people's property up to $950, we can give ourselves the right to terminate the life of babies up to delivery, or the right to snuff out other people's lives with impunity in general.
Of course, the very phrasing "we can get it" acknowledges that we never had it in the Constitution.
"Demosprudence". Could we refer to that as 'mob rule'? This statement: "Not with a Jan. 6-style insurrection but with the sort of grass-roots energy that once fueled the civil rights movement and other progressive social causes." Like the riots that murdered over a dozen people, burned down dozens of blocks of businesses and homes in various cities across America? Or maybe something more peaceful, yet preposterous like the Pussy Hat Parade in Washington to welcome in the last President?
What is suggested in this post is that the people should take local action, turning their state legislatures blue and putting in place the kind of laws they want. Just a quick note: the right has been working on that for a few years now and has succeeded- with help from Barack Obama, who managed to turn a number of state legislatures red from blue during his years in office. Which is a very real reflection of how the masses actually feel about overwhelming far left approaches to our lives. Keep it up and what you'll see in this country are not more, but fewer blue state legislatures, funneled down into fewer state capitals than ever. It would lead to a ghettoization of the left. Packing leftists into fewer and fewer cities in fewer states.
On the other hand- isn't this what we're supposed to be about? A Federalist system where we have 50 social laboratories working on 50 solutions to complex problems? Can't we all learn from what works and what does not? For instance, instead of copying San Francisco's approach to crime and drugs, maybe New York should copy, oh...maybe Tennessee? It just takes a reasonable, rational, objective look at reality. Can we do that?
Just kidding. I know we can't.
The promise was legal, safe and rare. 2,363 abortions a day is anything but rare.
There’s got to be a better way.
The legacy of Harry Blackmun and the anti-constitutional absurdity of Roe is that lawyers can bloviate about the American Holocaust as though it is a legal rather than a moral issue.
The legacy of “The Wise Latina” is that the Constitution may be openly view as irrelevant by judges, superseded by mob rule. It is mob rule of which we speak — preceding legislation in the event Roe is overruled — regardless of attempts by Althouse and progressive law profs to clean it up. Mob rule and the irrelevance of the rule of laws that do not support their ever-changing agenda is, after all, what the left is all about.
Laws cannot be evenly enforced against blacks, Antifa, women, LGBTers and Democrat politicians, including QuidProJoe. Next on the list: active pedophiles.
I'm skeptical the federal government can directly overrule state abortion laws. What would be the enabling federal constitutional power? Congress could do it indirectly the way they raised the drinking age. But without a constitutional amendment I don't see how they can enforce an explicit national abortion law, either affirming or banning it. This is especially true since abortion laws were state laws for centuries.
“...contrary to the delusion of those low-information citizens who think the fetus is about to acquire a constitutional right to life.”
Would these be the counterparts to the low-information citizens who think the Constitution actually provides a right to abortion?
I suppose if a low-information citizen is going to err, it is preferable that they do so on the side of morality and decency rather than to celebrate 61 million homicides, isn’t it?
It has bern observed (accurately, IMO) that for all their talk about the constitution, the Supreme Court is never out of step with public opinion for long. If the public wants it, it’s only a matter of time before the court gives it to them. No matter what the constitution says.
If we the people really want this right, we can get it.
That’s always been the case, but let’s be clear about what “this right” is. It’s the right to have abortions in the second trimester.
"The trick is to get the bill through the Senate." It's not such a trick. You just need to make the bill acceptable to some of the Republican Senators. You might have to water it down some.
I really do feel sorry for every student who ever had you as a "law" professor.
Just WHAT is your supposed constitutional basis for H.R. 3755, which would make the taking of prenatal life legal throughout pregnancy (up to birth) nationwide and would also restrict many regulations to genuinely protect the health and safety of women seeking abortions?
The Commerce Clause?? Such that it ultimately has little to do with birthing person's rights and much to do with commercial activity, with MONEY?
Go ahead. I REALLY want the Senate to nuke the filibuster and get abortion enshrined as a federal law. The Dems will overreach, and it will motivate Christians to purge every shred of the satanic cabal from the government. They may not even wait for a vote to do so.
"The trick is to get the bill through the Senate."
Yes, that is the trick. I suspect that it hasn't been done before because the political support wasn't there and the perceived political cost of taking it on was too great. Much better to let the courts take the heat for this than to have to explain it to your constituents.
Scalia was mentioned earlier --
"When it is in the mind of a Court that believes the Constitution has an evolving meaning, see ante, at 848; that the Ninth Amendment's reference to "othe[r]" rights is not a disclaimer, but a charter for action, ibid.; and that the function of this Court is to "speak before all others for [the people's] constitutional ideals" unrestrained by meaningful text or tradition-then the notion that the Court must adhere to a decision for as long as the decision faces "great opposition" and the Court is "under fire" acquires a character of almost czarist arrogance. We are offended by these marchers who descend upon us, every year on the anniversary of Roe, to protest our saying that the Constitution requires what our society has never thought the Constitution requires. These people who refuse to be "tested by following" must be taught a lesson. We have no Cossacks, but at least we can stubbornly refuse to abandon an erroneous opinion that we might otherwise change-to show how little they intimidate us.
Of course, as THE CHIEF JUSTICE points out, we have been subjected to what the Court calls "'political pressure'" by both sides of this issue. Ante, at 963. Maybe today's decision not to overrule Roe will be seen as buckling to pressure from that direction. Instead of engaging in the hopeless task of predicting public perception-a job not for lawyers but for political campaign managers-the Justices should do what is legally right by asking two questions: (1) Was Roe correctly decided? (2) Has Roe succeeded in producing a settled body of law? If the answer to both questions is no, Roe should undoubtedly be overruled.
In truth, I am as distressed as the Court is-and expressed my distress several years ago, see Webster, 492 U. S., at 535-about the "political pressure" directed to the Court: the marches, the mail, the protests aimed at inducing us to change our opinions. How upsetting it is, that so many of our citizens (good people, not lawless ones, on both sides of this abortion issue, and on various sides of other issues as well) think that we Justices should properly take into account their views, as though we were engaged not in ascertaining an objective law but in determining some kind of social consensus. The Court would profit, I think, from giving less attention to the fact of this distressing phenomenon, and more attention to the cause of it.
--Scalia, J., dissenting, Planned Parenthood v. Casey
More Scalia -
What makes all this relevant to the bothersome application of "political pressure" against the Court are the twin facts that the American people love democracy and the American people are not fools. As long as this Court thought (and the people thought) that we Justices were doing essentially lawyers' work up here--reading text and discerning our society's traditional understanding of that text--the public pretty much left us alone. Texts and traditions are facts to study, not convictions to demonstrate about. But if in reality our process of constitutional adjudication consists primarily of making value judgments; if we can ignore a long and clear tradition clarifying an ambiguous text, as we did, for example, five days ago in declaring unconstitutional invocations and benedictions at public high school graduation ceremonies, Lee v. Weisman, 505 U. S. 577 (1992); if, as I say, our pronouncement of constitutional law rests primarily on value judgments, then a free and intelligent people's attitude towards us can be expected to be (ought to be) quite different. The people know that their value judgments are quite as good as those taught in any law school--maybe better. If, indeed, the "liberties" protected by the Constitution are, as the Court says, undefined and unbounded, then the people should demonstrate, to protest that we do not implement their values instead of ours. Not only that, but confirmation hearings for new Justices should deteriorate into question-and-answer sessions in which Senators go through a list of their constituents' most favored and most disfavored alleged constitutional rights, and seek the nominee's commitment to support or oppose them. Value judgments, after all, should be voted on, not dictated; and if our Constitution has somehow accidently committed them to the Supreme Court, at least we can have a sort of plebiscite each time a new nominee to that body is put forward. JUSTICE BLACKMUN not only regards this prospect with equanimity, he solicits it. Ante, at 943.
A very small number of ghouls support legal restriction free abortion after the first trimester or so.
A very small number of religious zealots support bans before 12-15 weeks.
The vast majority of people support a compromise that looks very much like the Mississippi law.
"...the idea that legal change does not flow exclusively from courts and other government actors, but..."
"... may proceed from the mobilization of the people themselves..."
They said the silent part out loud. Note that "the courts" is the first agent of legal change in their list. The "second is "other government actors" which is a vague term. Does that include, say, OSHA regulators? If those don't work it is permissible but not really expected that the process of demosprudence-where representatives interact with their constituents
to enact laws that have both popular support and are workable.
Progressive priorities for enecting law: Courts, then bureaucrats, then, when all else fails, elected representatives.
And the cash will keep rolling in to both parties and their hangers-on.
We may get down to what Americans really think about abortion rights. My prediction: we are hopelessly divided nationally, but states could come to different outcomes that satisfy a majority of their citizens. That's the way it is supposed to work.
Slaves were very visible. The unborn have the disadvantage of being invisible.
Scalia part three, on the idea of a national Pax Roeana-
National politics were not plagued by abortion protests, national abortion lobbying, or abortion marches on Congress before Roe v. Wade was decided. Profound disagreement existed among our citizens over the issue--as it does over other issues, such as the death penalty--but that disagreement was being worked out at the state level. As with many other issues, the division of sentiment within each State was not as closely balanced as it was among the population of the Nation as a whole, meaning not only that more people would be satisfied with the results of state-by-state resolution, but also that those results would be more stable. Pre-Roe, moreover, political compromise was possible.
Roe's mandate for abortion on demand destroyed the compromises of the past, rendered compromise impossible for the future, and required the entire issue to be resolved uniformly, at the national level. At the same time, Roe created a vast new class of abortion consumers and abortion proponents by eliminating the moral opprobrium that had attached to the act. ("If the Constitution guarantees abortion, how can it be bad?"--not an accurate line of thought, but a natural one.) Many favor all of those developments, and it is not for me to say that they are wrong. But to portray Roe as the statesmanlike "settlement" of a divisive issue, a jurisprudential Peace of Westphalia that is worth preserving, is nothing less than Orwellian. Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since. And by keeping us in the abortion-umpiring business, it is the perpetuation of that disruption, rather than of any Pax Roeana, that the Court's new majority decrees.
The Democrats have a lot of power now, and there should be pressure on them to use it
Once an extreme radical leftist, always an extreme radical leftist, no matter how much she might be shocked, shocked, at her fellow comrades on occasion.
It's all about POWER. And IMPOSING that power.
Democrats have been practicing this sort of violence for years. Look at the Kavanaugh hearings, for example.
Wasn't Lani Guinier Bill Clinton's nominee for Assistant Attorney General?
From Wikipedia:
"President Clinton withdrew her nomination in June 1993 following a wave of negative press that was brought on by her controversial writings, some of which even Clinton himself called "anti-democratic" and "very difficult to defend"."
As I recall she favored a proportional voting scheme which counted Black votes more than those of whites.
Good to see she's still at Harvard.
Would a Federal statutory right trump a state restriction? How? Based on the Commerce Clause?
If it were to be the Commerce Clause, would it be said that "people trafficking in dead babies" have a material impact on interstate commerce, thus giving the Federal government its opportunity?
Demosprudence"? In other words, mob rule.
Gee, Roe V Wade has been law for 49 years or so, and it wasn't until THIS WEEK that the Democrats could find the motivation to legislate federal abortion rights law. Might have made a bit more sense to do so when holding both House and Senate by large margins, but hey, then all that electioneering abortion alarmism and fundraising would be gone with the new law in place.
It is unseemly that Sotomayor is playing a role in this political charade for the 2022 midterm elections. She knows better, but isn't behaving in a judicial manner and shows disrespect for her office and the Court in doing this.
This is bizarre. The longstanding issue with Roe and Casey was that they were erroneously decided by the USSC (there is no “right” to abortion in the Constitution) instead of going through the democratic process. So now, 50 years later - Oh! here’s our chance to get the complete right to abortion democratically? That is exactly what overturning Roe and Casey is meant to do - filter the issue through the legislative process, first through the states, of course, and see what can be agreed upon!!
This is what Kavanaugh was suggesting as well - The Constitution is neutral on abortion, so this needs to go through the legislative process.
Does the Constitution give Congress authority to enact a nationwide abortion law? I should have thought the matter is reserved to the states. Congress does not have a general police power.
Does the Constitution give Congress authority to enact a nationwide abortion law? I should have thought the matter is reserved to the states.Congress has no general police power.
I can imagine no higher goal than what you appear to endorse: new federal law --jammed through on strictly partisan lines-- that completely divides the nation over an insoluble moral issue, essentially declaring (in the eyes of many) that certain kinds of murder are actually pretty OK.
/sarc
Didn't we fight a bitter civil war over a much simpler issue of involuntary servitude?
Will this new law enshrine the cockamamie trimester scheme of Roe, the "viability" non-standard of Casey, or something else?
By the way, 10 minutes with Wikipedia reviewing the abortion laws of Sweden, Denmark, France and Germany shows that those "civilized" countries have long forbidden, or greatly limited, abortions after 15 weeks (18 in Sweden). So why exactly is Texas' law so unacceptable?
As for the method here: "demosprudence" seems to be somewhere between GOTV and outright rebellion. But it can cut in both directions. What is to stop the considerable fraction of the country who don't approve of abortion, from taking matters into their own hands?
This will not end well.
We wouldn't need a term like demosprudence had judicial activism not taken hold over the course of my lifetime, and legislatures not abdicated their responsibilities to bureaucratic rule makers. The worst of both worlds are the various commissions and tribunals whose unelected members seem to both make law and dispense their idea of justice according to their personal agendas.
So now that the term demosprudence is out there, which shall it be in practice? Will it be active political personal engagement to vote and influence the passage of preferred legislation as Althouse envisions. Or will it be, like mostly peaceful protest before it, a cover for mob intimidation and violence. I'm not optimistic.
The abortion conversation has been hijacked by the extremes of both sides: those who want it legal up until the moment of a full term birth and those that don't want it legal for any reason ever. Most of us are willing to come to some sort of compromise that up to a certain point, it would be allowed (I intentionally avoid using "ok" or "acceptable"). Those on the "always allowable" side refuse to acknowledge that the "choice" was made when the sexual intercourse was taking place (at least in the very vast majority of the cases). Those on the "never allow it" refuse to acknowledge that there may be legitimate reasons - almost always occurring without the consent of the women (rape, incest or legitimate health issues). Europe seemed to come to some reasonable compromises about it.
There will only be bans on abortion if the democratic processes within government provide the relevant statutes — contrary to the delusion of those low-information citizens who think the fetus is about to acquire a constitutional right to life — and these democratic processes can just as well enact a statutory right to have an abortion.
There are low-information citizens on the left, too... Why are they not delusional about the fetus not having a right to life? Won't they be surprised if these democratic processes just as well enact a statutory right to life of a fetus?
I understand we're talking about abortion here. But what is confusing is that we, if we were talking about the Second Amendment, I know exactly what we're talking about. If we're talking about the Fourth Amendment I know what we're talking about because it's written there. What specifically is the right here that we're talking about? - Justice Clarence Thomas
Our host's cruel neutrality on this topic is non-existent.
I'm interested in why a law to prevent abortion after 15 weeks would create hysteria about morning after pills or other early term abortificants. There is no majority anywhere to enact life at conception rules.
The Democrats have a lot of power now, and there should be pressure on them to use it, and you can see the House has already acted. We're told the President "strongly supports" the legislation. The trick is to get the bill through the Senate.
Why is abortion law the Federal Government's business?
By any phrase necessary.
The Democrats have a lot of power now, and there should be pressure on them to use it, and you can see the House has already acted. We're told the President "strongly supports" the legislation.
Oh, I think you've missed the central issue here.
The people don't support an unrestricted right to abortion, and the leadership in the Left is unable to consider anything else.
The Democrats have a lot of power now, and there should be pressure on them to use it, and you can see the House has already acted.
You ... HAVE been paying attention lately ... haven't you?
Ann, my understanding is that part of the argument against Casey is that there is no right to abortion anywhere in the Constitution. If that is correct, then what authority does Congress have to pass a law guaranteeing that right? If you say "the general welfare" clause in the preamble, then is there any limit to what Congress can legislate?
"Sotomayor saw she couldn’t sway her colleagues. So she talked to us instead. The liberal justice signaled that the next round of the abortion fight might be political, not legal" by lawprof Melissa Murray (WaPo).
There's no need to wait until the Court overrules Roe (i.e, Casey)."
Is this a call to arms for the foot soldiers?
Obama and Sotomayor.
Is it possible for two albatrosses to have each other around their necks?
While this so wrong on so many levels that any law school that allows this to be taught should lose it accreditations these progressive Nimrods just take it for granted that this method of attempting to intimidate the courts is a swing door and the door can swing against them. I could see what mentioned in on another thread today a Conservative Congress and president undoing the Supreme Court several rulings regarding elections that would quickly change the composition of state legislatures.
I am thankful that these political actors are providing clarity to the issue of abortion. It is an inherently political decision that will be forced to balance the interests of society and is very unlikely to satisfy either side. I am strongly pro-life but I have no interest in punishing those who have abortions. Having an abortion is it’s own punishment from what I hear. Only by winning the hearts and minds of people will the barbaric practice of abortion become rare. Pro-life views have been gaining over the past decades so I am confident that fewer abortions would be performed absent the abortion industry preying on vulnerable young women. I can see a kinder society rising from the reduction in infanticide, one where individual lives are truly respected and society can agree to measures to improve the lives of all people. Such prospects have been greatly diminished by our disregard for the lives of the most vulnerable among us.
I should also say that if we're going to have a right to an abortion in the Constitution the proper way is to amend the Constitution and add the right. That is the proper course of action. Of course those in favor would have to make their case, as would those opposed.
"Less well-known than jurisprudence is what the law professors Lani Guinier and Gerald Torres have termed 'demosprudence' — the idea that legal change does not flow exclusively from courts and other government actors, but..."
Wow, you mean there's something called "democracy"? Where people vote for legislators who enact the laws they want?
And the Left is only now learning about this?
If we the people really want this right, we can get it. The Democrats have a lot of power now, and there should be pressure on them to use it, and you can see the House has already acted. We're told the President "strongly supports" the legislation. The trick is to get the bill through the Senate.
Ah, so you're saying a Republican House, Senate, and President can outlaw abortion in NY and CA?
Because if a Democrat Congress can impose a "right to abortion" on all the States, then a republican one can impose a "right to life" on them, too.
What is it about you pro-abortion fanatics that makes you so stupid you can't see the logical consequences of your actions?
You want legal abortion in your State? Great. Campaign to get your State to legalize abortion.
The right to kill your baby does not exist, and never has existed. Stop fantasizing about it and get on with reality.
And if we had a right to control our own bodies, the War on Drugs, the FDA, and laws against suicide wouldn't exist.
Grow up
The fetus does not have a right to life? Constitutional or not?
They will fight to the death for your right to terminate the lives of the helpless innocents.
"When Sotomayor switched gears and aimed her rhetoric at the public, she was planting the seeds for"... insurrection?
Interesting how the article brings up the 'insurrection' that has now been deemed to not have actually be an 'insurrection'. But we have a high government official who, being thwarted in advancing their cause, now "aims [their] rhetoric at the public" in order to 'mobilize'. Sound familiar?
Oh yes, the article author assumes that they will not mobilize like those nasty Jan. 6 deplorables, but rather "with the sort of grass-roots energy that once fueled the civil rights movement and other progressive social causes." Sorry, but the civil rights movement was 57+ years ago. Have you seen how the left 'mobilizes' for progressive social causes in the last few years?
So, I now fully expect that if there are ANY violent demonstrations/riots/etc. stemming from the outcome of Casey after Sotomayor's inflammatory rhetoric, the MSM will accuse Sotomayor of instigating these activities, right?
/sarc
is this you writing here? "contrary to the delusion of those low-information citizens who think the fetus is about to acquire a constitutional right to life" If so, OMG.
"If these masked eyes don't deceive me, I see five thousand Comanche warriors approaching from the north. To the south, there are thousands of blood-maddened Apaches. In the east, I can see the dust cloud raised by a horde of Crow war ponies. And coming over that westerly rise, ten thousand Chickasaw braves. Tonto, we're surrounded." said the Masked Rider of the Plains.
"What you mean we, Kimosabe?"
"Less well-known than jurisprudence is what the law professors Lani Guinier and Gerald Torres have termed 'demosprudence' — the idea that legal change does not flow exclusively from courts and other government actors, but..."
So, Guinier and Torres have discovered legislation. Big whup. How they got professorships without knowing that word is an interesting topic.
what is the language text in the bill?
why does it not relieve pressure on the Super Supremes black robes wearing Court?
So in effect demosprudence is coercion. No ballot box efforts needed. Well it is the communazi left.
Which statement is true?
1. The Democrats have a lot of power now, and there should be pressure on them to use it...
2. The trick is to get the bill through the Senate.
Curious minds want to know.
(1) So long as the membership of the Court was subject, under the Constitution, to political appointment and political (Senate) confirmation, how could anyone think the court was not "political" -- and, indeed, subject to normal democratic pressures? Does no one remember "the switch in time that saved nine"? Just what Sonia was talking about, in her crass way. FDR would have agreed with her.
(2) The problem for originalists is that the Constitution nowhere gives the Court the power to anathematize duly adopted legislation. British courts did not have that power (until possibly ten years ago, but that was pursuant to a parliamentary delegation that can be withdrawn at any time).
(3) Having this conversation without discussion whether John Marshall was right or wrong in Marbury v Madison is -- futile. If Madison was wrong, everything Scotus has done since in the way of striking down federal and state laws, is on shaky ground. If he is right, then the S Ct is clearly political. After all -- what was Marbury about? It was about which politician could appoint a particular politically controversial individual as a judge? What could before political than that? Looking in your direction, Ann -- who can say Marbury was wrongly decided, because if so, Con Law is about waterway disputes between states. Why would ANY con law professor want to limit their territory that way....
(4) Until the end of CJ Taney's court, the slave owning South depended on the Court to defend its "rights'. After the Civil War, the robber barons depended on the Court to defend the economic rights of investors under the rubric of "substantive due process." This lasted until FDR threatened to "pack the Court." Then it ended. (Btw, I AM a conservative.)
(5) The Court then found a new mission -- remaking American society; Brown v the Board, Roe, Obergefell on and on. Of course segregation was wrong,
but was a S Ct decision ten years after the decision approving camps for Japanese citizens any more "morally persuasive"? If you didnt agree already. Debatable. Anyway....Brown reversed Plessy. Where is the legitimacy? if the legitimacy is the S Ct went Wirth the times...thats not legitimacy, thats democracy and political common sense.
(6) Point is -- all these issues the S Ct has got itself involved in were meant and should be....political decisions. But presidents and congresspeople would rather look at the justices to avoid responsibility. Makes no sense except as a screen. And fundraising -- because to change the court, you need to raises funds for 30 years.
In short, imho, this emphasis on the court is a huge democratic fail. I don't agree with Sonia S's rhetoric, but she and Breyer have a point. What they WONT acknowledge (hiding behind stare decisis which liberals normally detest) is that the degradation of the Court's role goes back to Marbury, Dred Scott, Plessy, etc.
The ability of the Court to provide a decision that Americans would rally to regardless of their previous views -- that's over. If it ever existed. Did Dred Scott change anyone's mind? Did Brown? All the Court did was give cover to Congress and the executive. The Court, I'm afraid, has as much ability to persuade anyone as Trevor Noah. It cannot persuade, certainly not by a 6-3 or 5-4 vote, anymore than SNL or the NY Times can.
(7) Point is, if you REALLY are an originalist, you should divest yourself of your Marbury powers.
Althouse hasn't been this panicky since she listened to "Revolution 9" played backwards.
(1) So long as the membership of the Court was subject, under the Constitution, to political appointment and political (Senate) confirmation, how could anyone think the court was not "political" -- and, indeed, subject to normal democratic pressures? Does no one remember "the switch in time that saved nine"? Just what Sonia was talking about, in her crass way. FDR would have agreed with her.
(2) The problem for originalists is that the Constitution nowhere gives the Court the power to anathematize duly adopted legislation. British courts did not have that power (until possibly ten years ago, but that was pursuant to a parliamentary delegation that can be withdrawn at any time).
(3) Having this conversation without discussion whether John Marshall was right or wrong in Marbury v Madison is -- futile. If Madison was wrong, everything Scotus has done since in the way of striking down federal and state laws, is on shaky ground. If he is right, then the S Ct is clearly political. After all -- what was Marbury about? It was about which politician could appoint a particular politically controversial individual as a judge? What could before political than that? Looking in your direction, Ann -- who can say Marbury was wrongly decided, because if so, Con Law is about waterway disputes between states. Why would ANY con law professor want to limit their territory that way....
(4) Until the end of CJ Taney's court, the slave owning South depended on the Court to defend its "rights'. After the Civil War, the robber barons depended on the Court to defend the economic rights of investors under the rubric of "substantive due process." This lasted until FDR threatened to "pack the Court." Then it ended. (Btw, I AM a conservative.)
(5) The Court then found a new mission -- remaking American society; Brown v the Board, Roe, Obergefell on and on. Of course segregation was wrong,
but was a S Ct decision ten years after the decision approving camps for Japanese citizens any more "morally persuasive"? If you didnt agree already. Debatable. Anyway....Brown reversed Plessy. Where is the legitimacy? if the legitimacy is the S Ct went Wirth the times...thats not legitimacy, thats democracy and political common sense.
(6) Point is -- all these issues the S Ct has got itself involved in were meant and should be....political decisions. But presidents and congresspeople would rather look at the justices to avoid responsibility. Makes no sense except as a screen. And fundraising -- because to change the court, you need to raises funds for 30 years.
In short, imho, this emphasis on the court is a huge democratic fail. I don't agree with Sonia S's rhetoric, but she and Breyer have a point. What they WONT acknowledge (hiding behind stare decisis which liberals normally detest) is that the degradation of the Court's role goes back to Marbury, Dred Scott, Plessy, etc.
The ability of the Court to provide a decision that Americans would rally to regardless of their previous views -- that's over. If it ever existed. Did Dred Scott change anyone's mind? Did Brown? All the Court did was give cover to Congress and the executive. The Court, I'm afraid, has as much ability to persuade anyone as Trevor Noah. It cannot persuade, certainly not by a 6-3 or 5-4 vote, anymore than SNL or the NY Times can.
(7) Point is, if you REALLY are an originalist, you should divest yourself of your Marbury powers.
The House on Friday passed legislation that would create a statutory right for health-care professionals to provide abortions, amid an intensifying legal battle over a Texas law that is the most restrictive in the nation. H.R. 3755, the Women’s Health Protection Act, was approved by the House 218 to 211 but faces tough odds in the evenly divided Senate.
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if only aborting fetus were DIY project for disassembly of body parts :
this wording is weird >>> not affirming right of woman to terminate at will but others to assist
more like assisted infanticide
When my Con Law course got to Wickard v. Filburn, I concluded nothing was outside the scope of the federal commerce power. U.S. v. Lopez showed me that was not entirely true. But if the Supremes uphold federal abortion legislation, my faith will be shaken.
I was forced to take a class with Torres in law school, and describing him as "dumb as a box of hammers" is unkind to hammers. I haven't thought of that man in years - and I just realized how happy that makes me.
Usually, the question of "how many divisions does the Supreme Court have" doesn't come from the Court itself...
"If we the people really want this right, we can get it. The Democrats have a lot of power now,"
It's refreshing that you finally admit that it's all about power.
Althouse hasn't been this panicky since she listened to "Revolution 9" played backwards.
@Quaestor, right on! She reads the magic incantation “end of Roe” in the Times or the Post and like Pavlov’s dutiful dogs she and other feminists must (1) purge all common sense from her (normally quite capable) brain and (2) react the way they want her to.
It has bern observed (accurately, IMO) that for all their talk about the constitution, the Supreme Court is never out of step with public opinion for long. If the public wants it, it’s only a matter of time before the court gives it to them. No matter what the constitution says.
The first part's a little glib. It's taken decades for all the abortion atrocities to come to light and for the pro-life movement to get bigger and bigger. The first "March for Life" (in 1974) involved thousands of people. But that's still a very small protest. It would later become over a million I think.
When I was young I used to call myself "pro-choice and pro-life" because I thought the right to choose should move to very early in the pregnancy. Then when I was in law school the partial-birth abortion cases started churning up through the courts of appeals. Stenberg v. Carhart was mind-boggling for me. I was already used to the idea that many abortions were homicides, because of my knowledge of our death statutes. But that opinion just crystalized for me (and Anthony Kennedy, I think) that pro-choice people just don't give a damn about the infanticide of a baby. And when I realized that literally nobody on the Supreme Court was arguing that a baby in the middle of birth is a person entitled to the equal protection of the laws! That boggled my mind as well.
I believe vast numbers of Americans would be horrified by the idea of killing a baby in the middle of birth. The Supreme Court was utterly out of step with public opinion. There were no pro-lifers on the Court, nobody saying that a baby was a "person" entitled to the equal protection of the laws.
The media has been hiding this violence -- hiding the bodies -- for decades. For a couple of decades the Gallup poll asked Americans if they support an abortion in the first trimester (after informing people that this was the holding in Roe v. Wade!). The lies have been overwhelming, unbelievable.
I once got in a discussion about partial-birth abortion with a room full of attorneys, maybe 10 or 12 of us. And I was the only one who had heard of Carhart. To have attorneys ignorant about abortion law was astounding to me. I believe that law professors routinely ignore the two Carhart opinions.
When I was in law school, my Con Law class, we spent one class period, probably less than an hour, talking about Roe v. Wade. It was just one opinion in a course about 200 years of jurisprudence. In the popular mind, Roe is a far bigger deal, and makes up a huge percentage of what people think about the Supreme Court and their work. The Roe fuck-up has been and will continue to haunt that institution for decades to come.
It has bern observed (accurately, IMO) that for all their talk about the constitution, the Supreme Court is never out of step with public opinion for long. If the public wants it, it’s only a matter of time before the court gives it to them. No matter what the constitution says.
What happens is that Justices die, or retire, and they are replaced. And sometimes this process reflects a judgement about what the Supreme Court has done.
This is not a quick process. It takes years, maybe decades. But it definitely happens. Over decades, as more and more people became pro-life, and the old guard got old and died, the Court's jurisprudence shifts.
Blackmun, Marshall, Brennan tried to outlaw the death penalty, while simultaneously saying it was right to terminate a baby. This was an incredibly unpopular thing to do. You can't do those two things simultaneously. You could convince people to be pro-life (and opposed to abortion and the death penalty). Or you could hold that killing people is appropriate (and legal) in some situations. But what you really can't do is say there is a constitutional right to stab a baby but it's awful to execute a serial killer.
The Supreme Court often compartmentalizes its work, which is why they've never applied our death statutes to the abortion cases, or thought about abortion vis-a-vis the death penalty cases. Harry Blackmun was startled one time by a clerk talking about how weird it was that killing a murderer was illegal but killing a baby is fine. But instead of fixing the problem he just went on thinking his thoughts. (Blackmun had a fantasy that the world wanted him to stay on the Court forever, and that he was like a candle and when he was gone the world would go dark. I know about this fantasy because it made its way into at least two of his judicial opinions).
The "moderates" on the Court decided that it was much more important to protect the right to abortion, so that opposition to the death penalty disappeared, and we went back to killing criminals. (Probably some of those criminals were innocent).
Even today nobody on the Supreme Court says that a baby is a person with a right to life. If they represented American thought on this, there would be several pro-lifers on the Court. In fact, I believe there are several pro-lifers on the Court, but for whatever reason they feel obligated to hide this. I suppose there are some Americans who are pro-life and feel obligated to hide it. But most pro-lifers aren't shy about saying what they think.
Anyway, the Reagan revolution washed out the crazy liberals (Brennan, Marshall, Blackmun). Stevens was also a crazy liberal and washed out as well.
Ginsburg, by the way, had very public doubts about Roe v. Wade and how it was decided. She thought it was a fucked up opinion. (Not the result, the opinion).
It was written by a judge who had been on the court maybe a year or two. Burger (a really stupid judge) signed onto the opinion so he could assign it to Blackmun. He was hoping Blackmun would moderate the opinion. I don't even think Burger read the fucking opinion when he wrote his concurrence. Blackmun was in over his head, so Marshall and Brennan (really, their clerks) wrote most of the opinion for Blackmun, including moving the line from the "first trimester" to "viability." The Communist Tushnet (who wrote a law review article saying that Supreme Court opinions should advance the Communist agenda) was clerking for Marshall and wrote a lot of the opinion (while Marshall was watching soap operas).
The upshot is that even the liberals know it's a bad opinion, and they don't want to talk about it, which is why the subject has shifted to stare decisis and not the merits of Roe as a judicial opinion.
Also I'm astounded that in all the Supreme Court confirmation hearings that I've seen, nobody asks a judge if they know what a "person" is and how they would define that word.
Can some live human beings be defined as non-persons, in your opinion?
Defining a corporation as a person and an unborn baby (and partially born baby) as a non-person is "problematic." Again, the Supreme Court compartmentalizes all the time. So the "person" word is used quite a bit differently, depending on the context. Very broad in the corporation context, very narrow in the abortion context. The upshot is that corporations are people and babies are property.
People make fun of textualists, because words have different meanings, and those meanings can shift depending on context. But if you play the semantic game too much you approach a point where you're just a fucking liar.
look! can we just All Agree?
All Agree that Roe PROVED that The Federal Government has No Constitutional right to ban abortions?
There is NOTHING in the US Constitution about fetuses (or murder)
The US Federal Government has no more right making laws against fetus murder than any other murders
Roe PROVED that abortion is Not a Federal concern, and ANY laws MUST BE at the State level
THAT'S What Roe decided.
What's that? you're saying Roe explicitly violated the 10th amendment?
Then people aren't interpreting Roe very correctly
In the UK, abortion is illegal, except in specified circumstances. Abortions can take place in the first 24 weeks of pregnancy in England, Scotland and Wales.
However, they have to be approved by two doctors. They must agree having the baby would pose a greater risk to the physical or mental health of the woman than a termination.
Abortions after 24 weeks are allowed only if the woman's life is in danger, there is a severe fetal abnormality,the woman is at risk of grave physical and mental injury.
The position in the rest of Europe is much more restrictive - typically 12 weeks, with the same provisos after that date as UK after 24 weeks. No abortion on demand in Europe.
Frankly, the Mississippee law would be seen as permissive in much of Europe.
Here's Mark Tushnet in 2016, in full "make shit up mode."
Tushnet said cases should be resolved by "advancing the cause of socialism," not Communism, my bad.
He's a founding member of critical legal studies (CLS).
His "jurisprudence" came up in the confirmation hearing of Elena Kagan, who hired him at Harvard.
And his fucking Wikipedia page says that he (now) believes that judicial review should be strongly limited. Compare his thinking in 2016 to his thinking in 2020, it's hilarious.
"The culture wars are over; they lost, we won. Remember, they were the ones who characterized constitutional disputes as culture wars (see Justice Scalia in Romer v. Evans, and the Wikipedia entry for culture wars, which describes conservative activists, not liberals, using the term.) And they had opportunities to reach a cease fire, but rejected them in favor of a scorched earth policy. The earth that was scorched, though, was their own. (No conservatives demonstrated any interest in trading off recognition of LGBT rights for “religious liberty” protections. Only now that they’ve lost the battle over LGBT rights, have they made those protections central – seeing them, I suppose, as a new front in the culture wars. But, again, they’ve already lost the war.). For liberals, the question now is how to deal with the losers in the culture wars. That’s mostly a question of tactics. My own judgment is that taking a hard line (“You lost, live with it”) is better than trying to accommodate the losers, who – remember – defended, and are defending, positions that liberals regard as having no normative pull at all."
I saved this post by Tushnet after I read it, expecting it to be memory holed after Trump became President.
But I remember it for confirmation that liberals actually do not recognise the values of conservatives (AKA anybody not a liberal) and that when they win they have no interest in compromises.
Saint Croix said...
The problem Roberts is going to run into is that at least five people on the Supreme Court don't think there is a constitutional right to abort a pregnancy. But he might be able to cobble together five votes to uphold Roe (again), as long as he upholds both the Louisiana law and the Texas law.
It's now been 5 weeks Since Whole Women's Health and US v Texas were heard. SCOTUS finally heard the Mississippi case. And they released Orders today from Friday's conference.
Here's the docket for WWH:
https://www.supremecourt.gov/docket/docketfiles/html/public/21-463.html
Sep 23 2021 Petition for a writ of certiorari before judgment filed. (Response due October 28, 2021)
Oct 18 2021 Petitioners’ motion to expedite consideration of the petition for a writ of certiorari before judgment is granted, and respondents are directed to file a response to the petition on or before noon on Thursday, October 21, 2021.
Oct 22 2021 ARGUMENT SET FOR Monday, November 1, 2021.
Nov 01 2021 Argued. For petitioners: Marc A. Hearron, Washington, D. C. For respondents: Judd E. Stone, II, Solicitor General, Austin, Tex.
Then nothing, for 5 weeks.
Texas has effectively outlawed abortions after 6 weeks, the law is in effect, and SCOTUS is doing nothing to stop it.
I think they're going to nuke Roe altogether. But at this point I can't see them doing less for the pro-life side that what Saint Croix says.
Because if they had 5 votes to block the Texas law, the blockage would have happened by now.
And if they don't have 5 votes to block a ban at 6 weeks, the pro-abortion side has nothing
Congratulations to these idiots. They discovered how legislation gets made.
This is as boring as the later post on Kemp and Perdue. Only tenured professors could get away with publishing this dull and obvious claptrap.
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