Said Justice Clarence Thomas, quoted in "Clarence Thomas says he worries respect for institutions is eroding" (WaPo).
Some of the people who think think about the way stare decisis preserves respect for the Court.
Thomas worried about the "different attitude of the young" and how they bully the Court when they don't get the outcome they want, but how deferential to authority should young people be?
When you impugn stare decisis as a "mantra," you call for more analysis and criticism and less passive obeisance to authority. I would say that's inconsistent with a demand that we accept the outcomes handed down by the Court from on high. That too is obeisance.
The Court seems to be withdrawing a right that was in place for 50 years. You can't expect people to humbly receive the new version of what the law is. Did you think we'd all sit quietly reading a hundred pages of careful reasoning and be impressed by the cogency of it all? There's a good chance that no one has dutifully read every word. We jump into guesses and theories about what's really going on.
It's not just these kids today. People have never regarded the Supreme Court as an oracle of truth. We can and should criticize the Court. It's not bullying!
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194 comments:
Except you want to declare the court to be an oracle of truth on the one issue. That is why you object to the decision changing.
"The young." The bullying is there. The analysis not so much.
Conservatives like Thomas probably would rather conserve, but the environment in past decades was such that it was the progressives who were piling up the precedents, sometimes without reason, merit, or justification.
Explain the "right", Ms. Constitutionally Scholar. Thank you in advance.
We can and should criticize the Court.
That's a strawman. We on the Right have been criticizing the Court since 1973. It was the pro-abortion side that said the Court was above reproach.
It's not bullying!
How about unruly mobs outside the homes of Justices, or threats to pack the Court... is that bullying?
"Except you want to declare the court to be an oracle of truth on the one issue."
If "you" means me, you got that wrong.
To follow stare decisis is to keep the old case even when you do think the Court didn't announce the truth the first time. You analyze practical things, not simply whether the case was correctly decided. It's Thomas that is more eager to correct mistakes and reach what he sees as the truth.
Who is saying that whenever the Court decides a case that is the truth because the Court said it? Not even the Court thinks that, or why would the Justices ever dissent.
To follow stare decisis is to keep the old case even when you do think the Court didn't announce the truth the first time.
So Brown V Board of Education was a mistake? Plessy lasted 58 years.
You analyze practical things, not simply whether the case was correctly decided.
As a Constitutional law professor, perhaps. Isn't the role of an appellate judge (as Supreme Court Justices are) precisely to determine whether a case was correctly decided?
It's Thomas that is more eager to correct mistakes and reach what he sees as the truth.
Now do Burger and Warren.
So the stars align every generation or so and a progressive majority Supreme Court finds some new right in the Constitution by working backward from a desired conclusion with some tortured justification. And you expect us just to sit back and passively accept that because of some legal term? That’s not the way it’s gonna work anymore if we can help it.
The Court seems to be withdrawing a right that was in place for 50 years.
What if Roe v. Wade had been reversed after five years?
What if Roe v. Wade had been reversed after just one year?
After how many years did it become outrageous to reverse it?
What is happening is absolutely bullying - just like with the BLM riots. There is very little honest discussion being offered by the left on the issue - or most issues, for that matter. Just violence and/or the threat of violence if they don't get their way.
There’s a certain amount of thinking in absolutes here. One can support criticizing the courts as a general value and yet object to the method and style of some of the current criticism. One can recognize the value of a ruling that has held for decades, of choosing the devil you know over the devil you don’t know, and yet also recognize that stare decisis for stare decisis’ sake is a cop out. A lazy shortcut. If it is false, it is false, no matter how long the falsehood has stood.
Of course it's not bullying to criticize the Court. Conservatives have routinely criticized the Court, and the criticism was more than justified with the indefensible Roe decision. Yet, somehow Harry Blackmun et al were not subjected to unruly mobs outside their homes. Huh.
I argue a case in the Nebraska Supreme Court this month. I have a “cow” case. A case “on all fours” with my case. I LOVE stare decisis.
"threats to pack the Court... is that bullying?"
Saying one is going to change the law is a threat now?
I seem to recall the Alito saying that if the Legistlature wanted to change abortion laws they had that power.
Now you are saying that when they do their constitutionally defined jobs, it's a threat against the court?
Oh brother.
Justices Brennan and Marshall used to dissent from decisions giving effect to death sentences: no matter how well settled the precedent was that capital punishment was constitutional. The left loved them. They were sooo principled.
"...but how deferential to authority should young people be?"
How differential should young people- all people- be toward civil society?
Because that's what you are talking about when we lose the respect of our key institutions. We have, though. And frankly, the institutions brought it on themselves. Not all of them, but enough of them have acted with disregard for the laws which they wrote, or are supposed to uphold, or protect, that all of them become suspect. All of them lose their claim to deference when many of them throw off the cover of their corruption.
Think: State Department. DoJ. FBI. CIA. NSA. The Fed. Our Universities. Our journalist class. Our Congress. Just for starters. And while the Supreme Court may have been the lone upholder of dignity and earned respect, being a part of the larger Federal Government and the systems surrounding it- all of whom have shown themselves to be diseased- it's hard now for many of us on both sides to hold that deference for any of our institutions. And so the uncorrupted Supreme Court is grouped with the corrupted rest of the Federal Government and we now have people threatening the Justices, pounding on the doors of the Court, and being fenced off while screaming threats at the Court.
And that....that very thing is how empires fall. It's not a good thing, and I don't know how we gain back that respect, that deference for those institutions.
It's fatal to persuasion to use "we" for stuff that we don't do. Using "I" on the other hand would be part of a conversation, rather than a mmistken sermon.
How about publishing the home addresses of the justices. Is that bullying, Ann?
The most interesting guess is that the protests are misguided and the leak was from the right, to prevent Roberts from joining the majority and assigning writing the opinion to himself, and eliminating its implications.
It has the virtue of making Roberts out to be the weasel that he's known to be.
Althouse: The Court seems to be withdrawing a right that was in place for 50 years.
Bill Maher: "So, you know, for the people who say we're going back to 1973, we're not. That's just factually inaccurate."
Here's a test I like to give friends when I assert they really don't believe in having a constitution: Name a law, either on the books or hypothetical, that you think is or would be a really good law, but you also think that the judicial branch should properly strike down as unconstitutional. Invariably, they come up with a law they like, usually gun control, that they think other people , including conservative judges, think is unconstitutional and wish the constitution were different so that those other people wouldn't strike it down. But that doesn't count. I want them to come up with a law that they think should be properly struck down even though they think its a great law. Most can't, because to the the constitution is properly a magic wish granting device: All good laws are constitutional and all bad laws are unconstitutional. A law banning abortions is a bad, bad law, therefore it must be unconstitutional. Gun control laws are good, therefore they must be constitutional. And it isn't that they are just results oriented. They truly believe this reasoning.
Ann.
The stare decisis people go silent any time there's a Citizens United or a Heller. It's a political facade of convenience and you know it.
The Court seems to be withdrawing a right that was in place for 50 years. You can't expect people to humbly receive the new version of what the law is.
Serious Questions:
How long, was the right to make laws against sodomy in place?
How long, was the right to make laws against same sex marriage in place?
heck!
How long, was the right to make laws against abortion in place?
Of course, when the court removes a right that YOU don't like.. That's Just Fine
There is a difference where the proposition wasn’t ever really settled. It was always criticized as results-driven decision without a strong legal basis. It was defended not because it was good law but because some people liked the outcome. That’s not reasonable reliance. There’s no good reason to afford it deference.
I'd be perfectly happy to have a European-style abortion regimen, with abortion fully and easily available up to a point. Those on the left have opposed such an arrangement, and pinned their hopes for unregulated abortion on the flimsy cloth of a poorly-reasoned court decision. Will those on the left spend the next 50 years hoping for another Roe decision, or will they do the democratic work of legalizing abortion the way it should be done - through the state and national legislatures?
Someone’s hair is in a dander.
The Court seems to be withdrawing a right that was in place for 50 years.
It used to be common understanding that rights were those things granted to us by some creator beyond the authority of government and therefore those rights were inherent to us and could never be taken away. It also was common understanding that if a "right" was given to you by government, then it was never a right at all, but a privilege.
The left has spent the last 15 years telling us that self-defense isn't a right, and the past 5 years that speech isn't a right. More recently, they tell us that we can't even define what a woman is.
But sure, I'll entertain the pretext you are to be taken seriously about stare decisis. LOL
It's not just these kids today. People have never regarded the Supreme Court as an oracle of truth. We can and should criticize the Court. It's not bullying!
I love the blatant difference that Ann treats Obergfell and Roe.
As if she can't even see herself.
In our system of government the court by nature will go where the people want it to go. The question is by what process is it moved there. If the process is overtime the people have voted for president in Congresses who put in certain kinds of justices with certain judicial philosophies, that’s acceptable under our system of government. If the processes to move the court is to show up outside of a justice’s house and intimidate them with a show of the risk of physical harm, that is not our system of government. That’s mob rule. Who hear is for mob rule?
And in the end this the true operative division in our country: Those who believe in the system as it’s been set up and established with its ability to change even the constitution by peaceful means, and those who believe that our system of government should be burned to the ground and/or mob rule should govern.
Must be quite a fine line between “criticizing the court” and physical intimidation/threats of violence.
I reject that nonsense.
Had the foundation been level and true, the opinion could stand. Every instance we find in human history of the victory of a bodge job like Roe will eventually result in the weakness of the fix bringing man back to ruin. It took fifty years but here we are, with the bonus of the festering that resulted during the interim.
Historically, it ends in violence. That's why I pray.
Ann Althouse said...
"Except you want to declare the court to be an oracle of truth on the one issue."
If "you" means me, you got that wrong.
Have I missed your analysis of the actual "leaked" Alito decision?
It seems to me that the leftists have completely avoided looking at the actual arguments and words he used.
Because Alito destroyed every disgusting penumbra you people used to support a purely legislative effort in Roe V. Wade.
Roe v. Wade was never a Judicial Action and was an affront to the foundations of our government.
Charles Schumer criticized Republicans for "bringing Roe to the brink of total repeal" as if it were a law that had been rightly passed. Well, if the Court is just another legislature, then it can legislate as it pleases when its makeup changes. Just like the other congress.
You can't expect people to humbly receive the new version of what the law is. Did you think we'd all sit quietly reading a hundred pages of careful reasoning and be impressed by the cogency of it all?
That could have been written 50 years ago. And no, people didn't humbly accept that made up constitutional right and we've been revisiting it ever since. Return it to the people and let them decide by who they choose to elect, assuming we can ever elect a set of non-cowards and non-grifters who are willing to perform their constitutional duty rather than shirk it off to the courts and/or bureaucrats.
The Court seems to be withdrawing a right that was in place for 50 years.
That's why I thought they would never do it. And they haven't yet, but that doesn't matter. What matters is the righteous rage fix.
Coming together in a network swarm is the way people isolated on their devices can feel like they are a part of something meaningful and bigger than themselves. The swarm doesn't deliberate. It only attacks. It can only destroy, not create, not build. It has no moderation.
The swarm is being used as a weapon. As long as an issue is framed as an oppression of a weaker by a stronger, the swarm will coalesce around the issue and attack. They will attack a person, a group, an institution, a nation and all it's people, even their own nation. There's no dial. There's no off switch.
I'm pro-choice. But the Supreme Court also reversed the right to send your kids to school separated from black people, right? And pro-life people would say, the Supreme Court reversed the right of the baby to live.
The Supreme Court reversed the right to grow marijuana plants in your yard.
And the head of the CDC reversed the right to go visit your dying loved ones. My governor reversed the right to go to your own second home in the state of Michigan. Reversed the right to run your own business.
Reversing rights seems to be the big thing of the past two years. What did all my liberal friends say? "This isn't about your freedoms!!"
“When you impugn stare decisis as a "mantra," you call for more analysis and criticism and less passive obeisance to authority. I would say that's inconsistent with a demand that we accept the outcomes handed down by the Court from on high. That too is obeisance.”
I think Thomas is wholeheartedly advocating for that analysis and criticism. He wants people, especially young people, to take the time to understand the details. Criticize all you want as long as you do the homework first.
The Constitution calls for stare decisis.
But the stare decisis called for by the Constitution is the words of the Constitution.
The Supreme Court Reporter is NOT the Constitution. The Constitution is the Constitution.
Which concept of law is older? The idea that powers not delegated to the United States nor prohibited by the states are reserved to the states OR 50 years of birthing people have a right to an abortion. Stare decisis is not a winning argument here.
Did you think we'd all sit quietly reading a hundred pages of careful reasoning and be impressed by the cogency of it all?
How about simply reading the few dozen relevant words of the Constitution and leave it at that. Words where nowhere is found a right to kill an innocent human being, i.e. abortion.
Poor AA, all these posts that she thought people would all sit quietly reading and be impressed by the cogency of it all and convinced to her way of thinking. And she has changed the minds of absolutely no one.
Indications are that today's young are much more pro-life. It's been called the Roe effect.
Stare decisis is a principle of common law, not written Constitutions.
The court is not there to decide "the truth".
"The truth", whatever that is at the time, emerges from a discussion, which the Roe court decided to keep the people out of.
Abortion is best decided closer to home. Let people vote. Why are democrats studently afraid of the vote?
Bill Maher sharing things he learned following the leaked Supreme Court opinion draft: "I learned things this week… that are pretty basic things that I did not know about abortion. Like in Europe, the modern countries of Europe are way more restrictive than we are or what they're even proposing!" Maher exclaimed. "If you are pro-choice, you would like it a lot less in Germany, and Italy, and France, and Spain, and Switzerland. Did you know that? I didn't know that."
"I learned most people who are pro-life are women. I did not know that. Most abortions are from… mothers, people who have a kid… And I thought this was interesting, most abortions now — even when you go to a clinic are done with the pill. The pill. And pills are easy to get in America," Maher continued. "So, you know, for the people who say we're going back to 1973, we're not. That's just factually inaccurate."
The Court seems to be withdrawing a right that was in place for 50 years.
If the Court had done its job, it would have withdrawn A DECISION of raw judicial power that was in place only 19 years. Casey only continued the illegitimacy.
In fact, if the Court had done its job, it would not have invented this "right" which isn't a right in the first place.
Is the publishing of a map of the conservative justices' homes one of those practical things the judges should analyze instead of just trying to decide whether or not a a case was correctly decided?
’The Court seems to be withdrawing a right that was in place for 50 years.’
How can something divined be considered a right?
Professor Fantasyland substitutes her fantasyland for reality. The Court has been bullied since Citizens United. She can imagine that this hasn't happened, or that it is of minimal concern, and pretend that Justice Thomas is urging the Court to have the privilege of obeisance, which he did not do. That gaslighting is her right to engage in, if she wishes. Some people, for some reason, get really upset and start flailing like this when told that it will be harder to kill babies from now on.
Now do Dred Scott. The Court ruled that African descendants were not U.S. citizens and had no standing to sue for freedom. It took the Civil War and the 15th Amendment to overturn that decision.
Abortion was never a "right." Roe makes the mother the galactic overlord for decisions concerning her baby, particularly aborting her pregnancy. Never mind the rights of the baby to live and rights of the father to protect his child. This makes abortion a political issue, to be decided by the state legislatures. The states can decide what is an acceptable compromise that supports the rights of all three parties.
The SCOTUS usurped that power of the state legislatures. The state legislatures were solving the abortion question when SCOTUS overstepped its powers. Washington State had passed an initiative on abortion in 1970.
There's nothing in the U.S. Constitution that gives the Federal Government any power over abortion. Not to regulate it nor to legalize it. The Roe SCOTUS acted illegally. Today's SCOTUS is righting that illegality.
I get it that you are unhappy with the change, and your framing is that abortion is a real right which was recognised, not created fifty years ago, and is now being withdrawn. You think it reasonable that people not just accept that without a murmur. Yet as far as i can tell, you think that the people who disagreed fifty years ago should have accepted that without a murmur because the SCOTUS decided it, and people should continue to just accept that and not push back in ways great and small. If you actually think something different than that, it has not been apparent in your comments. I also get it that the majority of your commenters likely disagree with you and you are trying to get some balance into the conversation. But that can also be an excuse, a very Screwtapian one.
Some, perhaps most people who agree with you have been accused of not thinking by a sitting justice and you think that unfair. I have to point out that you have objected in a fashion that doesn't show much thinking this time. This particular case is about whether a particular decision was made correctly fifty years ago, with much commentary on all sides about the weakness in reasoning about the issue. A return of the issue to the states will be messy and contentious, but will not criminalise all abortions or return us to the dark ages. There will be some limits. That does not mean "the right has been withdrawn." It sounds like more of a loss in culture wars to you.
So, read Alito’s draft and THINK. Blackmun’s opinion read like a hospital procedure manual.
“ But the Supreme Court also reversed the right to send your kids to school separated from black people, right? ”
No. The Supreme Court found a right. Prior to that point it was left to political choice, which could go either way.
No. The Supreme Court found a right.
It depends upon your viewpoint. For you, for me, it's a right. But the people who depended on being able to raise their white children in a segregated world, they lost that right.
Pro-life people call their position "Right to Life" for a reason. They want SCOTUS to re-find that right.
So the role of the Supreme Court is not to overrule mistaken decisions, its role is to "find" rights?
Well that would explain a lot.....
Stare decisis cannot be an absolute principle, else how could Brown v. Board happen. But is has to have more force than Thomas grants, else next year, the court, with different members, or with a member who changed his or her mind, could overrule ths year's decision, on the bare grounds of having thought about it some more. Then, the role of a judge trends more closely to the role of a member of congress. No one ever says that a member of congress is doing somethign inappropriate when he or she changes his or her mind. In fact, we expect members of congress to be able and willing to do so, as they represent, or are supposed to represent, to some extent, the shifting winds of the electorate. Judges are a different kind of animal, and stare decisis is one of the features that make judges a different species. Thomas' formulation does not give sufficient weight to that, and is probably not consistent with the Constitution, since the third branch is called a judicial branch in the Constitution, and in 1789, stare decisis was a principle that was thought to be an important aspect of judging.
What does this mean for Roe? isn't it significant that Roe was deepened and reaffirmed in Casey? Also, look at the dissent in Roe. The two dissenters agreed that a law that barred abortion without an exception for the health of the woman woudl be unconstitutional. There is something quite arrogant about Thomas and Alito that they are so sure that such a large number of their predecessors, over an extended period of tme, were "egregiously wrong."
At the end of the day, if I were writing the decision to overturn Roe, it would be 2 or 3 pages long, like Brown v. Board of Education, and would say simply that judges are not wise enough to make law on this subject, and that the court is hereby returning the issue to the legislatures, but that any law that does not protect the life of the mother will be found uncontitutional, as being in violation of the 14th amendment.
Am not saying Roe should be overturned, but doing so does not require a 60 page opinion that appears to rely in part on Hale, who presided over witch trials that concluded with the execution of the female defendants.
Now do Jan 6.
By the way, I love your new conservative philosophy. Things are good. Change is scary. Be cautious of change.
But I think you should consider causality. Thomas is saying there is an increase in bullying. You say yes because the court is being radical. But it also was radical, and fundamentally dishonest, to contrive Roe. So even if you're argument is correct that viewing the court as radical naturally results in bullying, that wouldn't explain an increase in bullying unless you believe the protestors are ignorant of of the court's history.
"The Supreme Court found a right" lol. I don't see the part of the Constitution where the Supreme Court can 'find' rights. Rights are enumerated in the Constitution, or left to the States and the People. The Supreme Court is none of those things. The idea that the Court can 'find' a right is part and parcel of the degeneration of modern legal thinking. It did not 'find' a right in Brown v. Board of Education, it determined a prior ruling, and policy, denied a right that had always existed since the relevant constitutional amendment had been ratified.
’The Supreme Court found a right.’
The Supreme Court formed an opinion, not a right. It’s absurd to claim that rights result from a majority decision; decisions which are often overturned. Rights are assumed from the laws of Nature and Nature’s God.
Things are legal until they're not.
Even RBG thought the best way to handle the issue was via legislation.
It goes beyond stare decisis and to the sloppiness of the original Roe ruling.
That's what almost everyone is forgetting here.
The Roe 'reasoning' was made out of whole cloth.
If it had a firmer foundation it would withstand attacks better...
Stare decisis is when the courts, for political reasons, punt.
Congress does the same thing daily.
If all you've got is penumbras and emanations, you're doing it wrong...
Ann said: No. The Supreme Court found a right.
They didn't "find" a right. That right was clearly enumerated in the constitution and was being ignored by segregationists using the force of law.
You can't expect people to humbly receive the new version of what the law is.
Without reading the comment thread, and in fact speaking humbly because IANAL, an overturn of Roe wouldn't change the law, would it?
ISTM that maybe Marbury is what some are actually concerned about here... as long as the thing under judicial review, and toward which the SC is favorably disposed, is something they want to have happen.
"We can and should criticize the Court. It's not bullying!"
That would be a really persuasive point, if it was just criticism. But the homes of judges are being published. You ok with that?
Quayle said...
And in the end this [is] the true operative division in our country: Those who believe in the system as it’s been set up and established with its ability to change even the constitution by peaceful means, and those who believe that our system of government should be burned to the ground and/or mob rule should govern.
So many good comments in this thread. How anyone could think mob rule is a good idea is beyond me.
and
MayBee said...
Reversing rights seems to be the big thing of the past two years. What did all my liberal friends say? "This isn't about your freedoms!!"
They are blinded by rage and they think we're idiots.
"Some of the people who think think about the way stare decisis preserves respect for the Court."
But the people who think that think it selectively. They respect the Court insofar as it does what they want.
As Thomas implies, basing respect on stare decisis disrespects the Constitution.
the wider point is many institutions have squandered their credibility, public health media, law the intelligence agencies, much of corporate america
No. The Supreme Court found a right. Prior to that point it was left to political choice, which could go either way.
Or in other words:
No. The Supreme Court created a right. Prior to that point it was left to the democratic process, which could go either way.
"No. The Supreme Court found a right. Prior to that point it was left to political choice, which could go either way."
That right was obviously not present in the Constitution as it was ratified, any more than the right to kill babies. The Congress amended the Constitution to contain the right to integrated public education, using the political capital resulting from an appalling war, and the not-coincidental absence from Congress of the losers of that war. It just took another century to develop the political will to "find" that right.
Perhaps the right to kill babies belongs in their too. But let's have the War first, shall we? Don't piss on my leg and tell me I've always loved killing babies.
"threats to pack the Court... is that bullying?"
Saying one is going to change the law is a threat now?
It's just a coincidence that calls for increasing the size of the Court always come from Democrats who are frustrated that they don't control the Court...right?
No. The Supreme Court found a right. Prior to that point it was left to political choice, which could go either way.
In the prior case, did the Supreme Court not find the right that you could segregate based on race? Why is a right that you must integrate different than a right that you can segregate?
"The Court seems to be withdrawing a right that was in place for 50 years."
Withdrawing a right? Aww, AA, thought you could do better than that. This claimed federal "right" was never there to begin with. Entirely made up.
The Court seems to be withdrawing a right that was in place for 50 years. You can't expect people to humbly receive the new version of what the law is. Did you think we'd all sit quietly reading a hundred pages of careful reasoning and be impressed by the cogency of it all? There's a good chance that no one has dutifully read every word. We jump into guesses and theories about what's really going on.
I think Althouse is absolutely correct. What we have here is a perception ("seems") of what was becoming what will be. In the minds of many pro-choice activists, RvW was a right. It does not matter if it was a right or not, whether the legal analysis was right, whether it was penumbras or not. It was the law of the land and they embraced it for what it was: the protection of women to have full rights to determine their reproductive fate. THAT was their perception.
Now it is in peril. They will not read the words of the decision. They will not care how right the decision is legally, constitutionally or otherwise. There was something they had, and now it is lost. It was vitally important to them, so it will generate outrage and pain and anger. As a result, they will lash out in many different and very predictable ways. That includes theories about why and how. They will blame and speculate and demonize because something important to them regardless of how it came to be, was taken away.
Reason has no place in this context. It is emotional and reasonably so.
Ultimately the court should do what is constitutional. Rip the band-aid off finally and let legislative branch do its duty. Prolonging this will not improve the reaction it will just change the 50 to a 75, or whatever (years that we had this "right".)
is not the first Q to ask and answer : can / does the US Constitution allow stare decisis?
maybe the Supreme Court is not the one to answer that Q?
why the insistence on zero juridiction variances?
The Court is not withdrawing a right and cannot withdraw a right. Rights are. They can either be accurately defined and recognized by the law or not
What the Court is would be doing is accurately restating what the rights defined in the Constitution are and are not. It is as though for 50 years people called “purple” “blue”. Doing that does not make purple blue. Redefining purple back to being called purple is not withdrawing its blueness. It’s always been purple
This issue seems to be a bit of an Achilles’ Heel for you. You know full well that criticizing the decision is not what anyone means by bullying. Bullying is mobs, death threats to the Justices and their families, and threats of mass violence and destruction. Maybe even, dare I say, “insurrection”
I think Althouse may have the better of this one. The point of stare decisis is that the precise nature of the law does not matter as much as the fact that it is the law, and one may rely upon it. There are political methods in place, to remove the precedent, without "bullying" the Court. Therefore, when the Court reverses itself, it is usurping the role of the legislative branch. In this case, the draft argues that the original finding was a usurpation of that role as well. Which is true, but so what? The Congress has the power to remedy the usurpation, as do the States. I find that the Court's declared intention to "get it right" is like a surgeon deciding he took out the wrong kidney. And he just hates it when he makes a mistake! Now, get on the table.
There is the right to life that keeps getting dismissed.
The bottom line is SCROTUS can do whatever they want. They made up their power of judicial review out of thin air, whole cloth and bailing wire. Plenary powers determine their own rules. Not using your power because tradition and gentleman's agreement makes your side vulnerable.
The bottom line is the Democratic National Committee stranglehold on the nomination process anointed the only vile candidate Trump could defeat in the Electoral College. Plus on top of that, Zero Hussain Obozo failed to play hardball with Yertle by not filling the federal bench during recesses.
Now the DNC blame Ruth Bader Ginsburg for powering through her full term of duty. They still don't understand why Trump remains popular and continue to provide Don positive feedback by continually overreaching.
"The Court seems to be granting a right that was not in place for almost 200 years. You can't expect people to humbly receive the new version of what the law is."
Written by some wag in 1973.
This post is more emotionally loaded than coolly reasoned. The loaded language Althouse is so good at spotting in the items she presents for discussion have larded up the reaction paragraphs today: “impugn stare decisis,” “demand we respect,” “seems like” the court is “withdrawing a right” and the rest. To be honest it kinda cries out for an “emotional Althouse” tag.
But he’s correct. Some people (cough cough uh Senators) do use it as — if not a mantra — a code. Like the recently popular term “super-precedent.” He is also correct about the tendency to violent reactions when votes go the way the mob disagrees with. Look at the escalation of the substitution of violent rage for “peaceful protest.”
My nonviolent non-lawyer reaction to the public hissy fit over a draft opinion that is most likely different from the final draft in some ways is to roll my eyes. We don’t know the ruling. We don’t know the leaker’s motive. But we know for an ironclad fact Democrats in general and progressives in particular don’t give a fuck about protecting the actual enumerated Bill of Rights so I have no fucks left to give over their (possibly premature) freakout that a decision that is widely regarded by experts including recently deceased Justices as poorly designed. Joe said “no amendment is absolute,” and I only can deduce from that clear statement that “rights” that didn’t warrant an amendment must be in an even more tenuous position than those stubborn amendments.
Bullying. I suspect the leak was an attempt to pressure the justices. When do attempts to pressure beyond influence raise to bullying?
When I see the barricades going up around the court, I think bullying is actually a weak description. It looks to me like some on the left are hoping an pushing for rioting - not just at the court but at the homes of the justices.
I also do not really understand all the hysteria over this? I would be shocked if any state banned abortion within the first trimester? I suspect most people understand abortion early in the process should be protected.
I also think it is good for the Justices to correct mistakes past courts have made. Roe seems to have inflamed the debate on when abortion should be legal and not solved the problem. Abortion taints every senate confirmation hearing.
Stare decisis, as that concept was (first) discussed in Casey, is a doctrine of convenience -- it is endlessly pliable and can be invoked to support any decision whatsoever (especially if that decision is Roe). Dobbs is clearly departing from precedent and engaging in ad hoc, case-by-case decision-making.
Bender said...
"The Constitution calls for stare decisis.
But the stare decisis called for by the Constitution is the words of the Constitution.
The Supreme Court Reporter is NOT the Constitution. The Constitution is the Constitution."
And the Supreme Court is there to interpret laws in light of the Constitution. Not to create laws. That is for the legislature.
In his Obamacare switcheroo, Chief Justice Roberts demonstrated that bullying works. In that case it was Obama and his administration that was bullying the court, and convince Roberts to switch his vote. Had he held the line, we might be seeing a lot less bullying today. Oh well.
The whole premise of your statement, "The Court seems to be withdrawing a right that was in place for 50 years." is faulty. The Court, if this decision holds in spite of riots and threats, will only shift the matter to the states. Abortion was legal in California in 1969, years before Roe v Wade.
"The Court seems to be withdrawing a right that was in place for 50 years."
The Court giveth and the Court taketh away.
The big difference between then and now is that moral people did not take to the streets then to protest the predictable American holocaust costing 62 million lives.
Now, the immoral people will take to the streets perpetrating violence as is their wont. Their numbers will be bolstered by morons of the millenial and subsequent generations whose reality is their smartphones. Time for a new riot season.
There was not and never has been a constitutional consensus among Americans favoring Roe/Casey baby killing. But why would the lefties care about that?
Our Professor said..
No. The Supreme Court found a right.
So, ONCE they 'found' the right of 'Separate But Equal', you're saying that should have remained the law.. Just Because it had been in force. There is a word to describe Racist People like you; and that word is RACIST!!!
“No. The Supreme Court found a right. Prior to that point it was left to political choice, which could go either way.”
Sounds like a real crapshoot for our young. Let’s hope they can overcome the lefty bloodlust.
"but how deferential to authority should young people be? "
These "young" out there protesting are being totally deferential to authority. Not the authority of the Court, but the authority of their leaders, who are quite old and willing to sacrifice all as they slip into old age.
von Mises described the German youth movement in the years prior to WWI. It was a consequence of the bureaucratization of German society. It was led by those much older seeking power. The youth who survived the trenches went on to become the bureaucrats who implemented Hitler's Final Solution, then dutiful slaves of Stalin in the Cold War DDR.
This tearing down the respect for established institutions is a old and common plan.
"2. THE FATE OF THE RISING GENERATION WITHIN A BUREAUCRATIC ENVIRONMENT
"The youth movement was an impotent and abortive revolt of youth against the menace of bureaucratization. It was doomed because it did not attack the seed of the evil, the trend toward socialization. It was in fact nothing but a confused expression of uneasiness, without any clear ideas and definite plans. The revolting adolescents were so completely under the spell of socialist ideas that they simply did not know what they wanted.
"It is evident that youth is the first victim of the trend toward bureaucratization. The young men are deprived of any opportunity to shape their own fate. For them there is no chance left. They are in fact "lost generations" for they lack the most precious right of every rising generation, the right to contribute something new to the old inventory of civilization. The slogan: Mankind has reached the stage of maturity, is their undoing. What are young people to whom nothing is left to change and to improve? Whose only prospect is to start at the lowest rung of the bureaucratic ladder and to climb slowly in strict observance of the rules formulated by older superiors? Seen from their viewpoint bureaucratization means subjection of the young to the domination of the old. This amounts to a return to a sort of caste system."
von Mises, Ludwig (1945). Bureaucracy
"No. The Supreme Court found a right. Prior to that point it was left to political choice, which could go either way."
So the unanimous Supreme Court "found" the Equal Protection Clause in 1954 just as the Court "found" a right to abortion in 1973. Let's see, the Equal Protection Clause is explicit in the 14th Amendment and is obviously applicable to racial segregation. Where is the explicit constitution provision obviously applicable to abortion and does it grant a right to commit other homicides?
So, apparently, Ann would have been upset had the Dred Scott case been reversed. She still has not adequately explained why the reversal of Roe v. Wade is a "calamity" as she called it. According to the latest CNN poll 38% of those polled - and were paying attention - are happy that Roe is about to be reversed while only 20 % were angry. I don't think that set of attitudes qualifies the reversal of Roe as a "calamity".
Professor, I have a lot of respect for you but the demonstration hysterics and threats to the Justices are not criticism, they are signs of mental illness.
Thomas has always been right that stare decisis is applied in an overly broad manner.
I would love to see the Court reverse dozens of unconstitutional denial of rights cases that are much better founded than Roe (Gonzalez v Raich, for one) but it is hard to argue with the analysis that abortion was not a right under the Constitution as enacted and at the time when the 14th A was ratified. If only the liberals had looked at the 9th & 10th & 14th As. as preserving an individual's liberties against any intrusion by the gov't ("What Should have Happened in Griswold"), perhaps they would have had some shot of having this issue decided more cogently and in a less contentious manner.
Abortion is a medical procedure, which is seldom used for medical emergencies. The Constitution doesn't address it as a given right, and the use of privacy to justify the procedure is as absurd as using privacy to justify murder. The Supreme Court, if had acted correctly, would have never given any traction to abortion in Roe vs. Wade if the Constitution was followed. That's their job to follow the Constitution, and also follow the Constitution in allowing the States to autonomy on issues not addressed in the Constitution.
Regardless of what stare decisis reveals, if the discovery shows precedence didn't follow the Constitution, the decisions made without the use of those laws become null.
It is a mistake to conflate criticism with bullying.
Mark said...
'"threats to pack the Court... is that bullying?"
Saying one is going to change the law is a threat now?'
Packing the Court is changing the Constitution, not changing the law.
The Supreme Court “found” a right. There’s the tell…
Roe was always garbage constitutionally. Like it or hate it policy-wise, still garbage. And Casey was doubly bad, creating the absurd “precedent on precedent” BS.
Why is it that a made up right to an abortion that exists nowhere in the constitution prevented for years any legislation trying to limit or restrict abortion to a Clintonesque “safe, legal and rare”, but a right to keep and bear arms, which is expressly provided in the constitution, with the dictate “shall not be infringed” is somehow open to all manner of restrictions and limitations?
If we have to rely on a court “finding rights” we’re fucked!
Where is the "hundred pages of careful reasoning"?
The Alito draft is a poor excuse for a SCOTUS opinion with poor reasoning, poor history, and poor citations. It ignores the last 100 years of expanding women's rights and tries to persuade that because women had few rights when the Constitution was written they should not have rights now. Most of the cites are from a discredited misogynist from the 1600's, a witch hunter and defender of marital rape.
A terrible opinion that is an example of how not to draft an opinion. You don't put your own outdated opinions as the reason for a decision and ignore the last hundred years of counter opinions.
Sorry, Althouse. You are getting upset about the prospective reversal of the worst decision since Plessy and before that Dred Scott.
Abortion rights should not be decided by the Supreme Court. Don’t expect everything that the justices have said to square up with what they have said and not said. Yesterday in the comments I read a beautiful comment fro RGB about how SCOTUS had messed up in deciding Rowe. Everyone is a critic, right? All your friends who were Supreme Court clerks knew what the rules are. Would any of them put out the earliest draft of an opinion to try to influence the outcome? I think not. If so, you need new friends.
Who's that man, Pa? Is he new in town?
No Mark. That's Ol'Sheriff stare decisis. Or used to be. People began to ignore him, so now he's just the town drunk, begging people for quarters and to respect prescedent.
Why is he always looking backwards?
That's how he fought son. He didn't have a Winchester that fires 50 rounds a minute. Didn't work out for him.
The Supreme Court found a right. Prior to that point it was left to political choice, which could go either way.
No. The political choice was the government providing school. Prior to that the government wasn't involved in education. If there is no Board of Education then Brown doesn't have standing.
We don't know the final outcome of the Dobbs case, but it appears that one will still have the "right" to have an abortion. Just regulated per individual state rules.
When Supreme Court justices want to overturn a law - they find a reason. WHy they don't - they find a reason.
Starry D'cider is just a reaon in the tool belt.
Isn’t protesting outside a justice’s home with the intent to change an outcome of a case a federal crime?
Perhaps Thomas was referring to the lawbreaking bullying and not just the run of the mill criticism.
What rights do the other human involved in an abortion have? When does equal protection under the law begin?
And how long must people live with a bad or unconstitutional SOCTUS decision? You knew this day would come. Half the country has poured their heart, souls, and money into over turning Roe. They’ve been very vocal about it. They elected presidents who said they would appoint justices who would overturn it. They did appoint justices who were likely to interpret the constitution has not including a right to abortion. You’ve seen this train wreck coming for years. The mantra of Stare Decisis was only ever a hope in this case.
Gun rights advocates have worked hard at the state level for years because we know a liberal court WILL overturn Heller and McDonald. Abortion advocates relied on the courts and that was a massive mistake. If Heller ended today, we have over half the states that would make it very difficult for Congress to legislate away gun rights. You didn’t do the work and that’s causing some panic.
"Some of the people who think think [sic] about the way stare decisis preserves respect for the Court." - this, from the person who thinks the sweet mysteries of life passage is a cogent mantra.
The Court long ago shredded stare decisis - there's a 2018 CRS paper on the subject. And the three stalwart defenders of stare decisis, Justices Breyer, Sotomayor, and Kagan, have each plunged a dagger into Caesar. In Obergefell v. Hodges, Kennedy stated in passing, with no discussion, "Baker v. Nelson must be and now is overruled..." Slip op. at 23; 576 U. S. ____ (2015), joined without dissent or further comment by Justices Breyer, Sotomayor, and Kagan.
Even Casey gutted Roe and used its carcass for a new doctrine. At least Alito explained why he was departing and it makes sense. Not that you care to read the draft - it's too long - you say its a hundred pages - it's only 67 slip opinion pages - less than an average short story. The remainder is an Appendix.
I call bullshit on you Ann. You're no thinker - just a poser.
Alexthechick over on twitter has what I think is a good mini lesson on Stare Decisis.
https://twitter.com/alexthechick/status/1522182834903040008
Ann Althouse said...
“ But the Supreme Court also reversed the right to send your kids to school separated from black people, right? ”
No. The Supreme Court found a right. Prior to that point it was left to political choice, which could go either way.
No.
An amendment was passed clearly providing a directive that everyone in the country was to be afforded equal protection under the law and anyone who read the 14th amendment could see the clear intent of the amendment. Striking down Plessy Ferguson was a judicial action supported by clear language.
Roe v. Wade was a purely legislative action by the court. They wanted to legalize abortion and they avoided the clear language and intent of the constitution and specifically the 9th and 10th amendments.
Roe v. Wade is an obvious affront to the intent of the judicial branch and the governmental system our government was founded on. The hysterical and completely illogical crap the supporters of Roe are spewing out will turn people against the regime.
The fact that the supporters of Roe cannot see how extreme their position is shows how detached the leftists have become from reality.
I once had a case involving a question as to the extent to which a municipality had the authority to regulate the length and extent of docks that a marina was proposing to extend into a waterway. There was very little relevant case law; I ended up going back into dusty volumes from the early 19th century to find cases about oyster beds and arrests of fleeing criminals in rowboats on the Connecticut River.
The judge who heard the argument asked: "Couldn't you find anything more recent?" I responded: "It's very well established law, your honor." Which drew a chuckle.
"We can and should criticize the Court. It's not bullying!"
Two points. Everyone's plainly free to criticize away -- and you know perfectly well that's not what's involved here. Thomas is quite used to criticism of his views, not just from the usual suspects in the media but from his own colleagues who often decline to join his dissents. While his colleagues sometimes disagree with his views on the merits, they always keep the discussion focused on the merits. But he's also used to being on the receiving end of particularly nasty, and frankly racist, forms of 'criticisms' from the denizens of lefty-land as well.
What's going on now is a blatant attempt to bully and intimidate the justices and their families because lefty-land insists that abortion involves a constitutionally protected right, while the leaked draft suggests that a majority has reached a different conclusion despite 50 years of contrary precedent. No one is talking about any of this because half of all lawprofs in America are now busily writing law review articles criticizing how awful the Alito draft is.
With respect to stare decisis, Thomas has been the least inclined of the justices to retain a precedent on some constitutional issue if he concludes that it was wrong on the merits. And when he considers the merits, he is invariably analyzing the issue on originalist grounds. So there are lots of old decisions (some new ones too) that he cannot sustain as a principled interpretation of the constitution, and just as often he refuses to accept stare decisis as a reason to retain the erroneous precedent. Things are different for him if the precedent at issue concerned a purely statutory issue, since other branches of government can cure any problem with the court's ruling if it were an incorrect reading of what Congress had intended (of course, not so with erroneous constitutional precedents). Again, many of his colleagues disagree with that approach. All fine, and not much new to see here.
"The Supreme Court found a right. Prior to that point it was left to political choice, which could go either way."
In doing so, they destroyed what other people saw as their right to free association. It was a necessary sacrifice to be sure, but it was a sacrifice. In creating a right to abortion, the court took away the right to life of the unborn. By taking away that "right", the court is allowing the political process to restore the right to life, if it so chooses.
Bad legal decisions like Roe and Casey need to be reversed if the Constitution is to mean anything. It’s just a wonder that it took so long.
BTW, why is it per-abortionists only speak to stare decisis on this ruling? I think we know the answer - they can’t honestly defend the legal reasoning behind the Roe and Casey decisions.
It wouldn't take a lot of work to turn the above post into a defense of the Jan. 6 protests.
It would fail as this one does. The reasoning doesn't follow through on the consequences of widespread disrespect for authority.
"Mark said...
'"threats to pack the Court... is that bullying?"
Saying one is going to change the law is a threat now?'"
If you say you will do X if I do Y, yes that's a threat. You are trying to alter my behavior by telling me what you will do in response. The calls for court packing are meant as a threat, so that's what they are.
"They didn't "find" a right. That right was clearly enumerated in the constitution and was being ignored by segregationists using the force of law."
No. The Court had previously interpreted the Equal Protection Clause to permit separate facilities if they were equal. It adopted a new interpretation in 1954, saying that the separation itself was a violation of the Clause. This had not been "clearly enumerated" in the mere words "equal protection." It took interpretation and a move away from the formal notion of equality.
Of course, segregationists were also violating the narrower meaning and not providing equal facilities, and that was one reason for the Court to shift to the broader definition of the right.
Please distinguish the scope of the right from the violation of the right.
Now the DNC blame Ruth Bader Ginsburg for powering through her full term of duty. They still don't understand why Trump remains popular and continue to provide Don positive feedback by continually overreaching.
Howard, for once I agree with you. You can always count on the Democrats to over react. That is because they rely on emotion and not logic for their causes. I am pro-choice but with sensible limits. 15 weeks seems a pretty good rule. As usual, the Left kept pushing and pushing until they got to infanticide. That idiot Northam set up the extreme position. By doing so, he and they lost the moderates who are pro-choice. There is an interesting theory that Musk, like Trump, is being pushed right by the hysterical reaction of the Left.
ISTM that maybe Marbury is what some are actually concerned about here..
Don't get me started...
"Things are legal until they're not."
But stare decisis shows respect for our reliance on the stability of the law, our expectation that announcements of law aren't just transitory whims.
"Even RBG thought the best way to handle the issue was via legislation."
AT THE TIME!!! If Roe had never come out, we'd have gone through a democratic process of figuring out what to do with this issue. But once it was announced as a constitutional right and we lived with that for half a century, it's another matter altogether to say start NOW to do the process that was avoided back then.
"It goes beyond stare decisis and to the sloppiness of the original Roe ruling."
Roe was redone in Casey, so the poverty of the reasoning in Roe is not the current issue. Was it shored up decently in Casey? But even if Casey is wrong too, that is not enough to overcome stare decisis. Casey must be badly wrong and there are still 3 other factors to analyze (which the Dobbs draft does, but in my opinion, stare decisis should still win, because we have relied on this right for so long, and we were deprived of the opportunity to solve this problem with legislation when the Court decided Roe and again, when it decided Casey).
I find that the Court's declared intention to "get it right" is like a surgeon deciding he took out the wrong kidney. And he just hates it when he makes a mistake! Now, get on the table.
What if he's putting the kidney back where it belongs?
But stare decisis shows respect for our reliance on the stability of the law, our expectation that announcements of law aren't just transitory whims.
1) Fifty years of outrage isn't transitory.
2) If this isn't a case where overturning a prior decision isn't appropriate, please define and provide an example of when it would be.
Stare decisis is like Occam’s Razor: All things being equal it’s the best guide, but as any adult knows (or should know), there are times in life where all things are not equal.
this has been going on forever. Owen roberts was writing about the failure to respect Precedent in 1944. “a ticket good for one day only.”
It is regrettable that in an era marked by doubt and confusion, an era whose greatest need is steadfastness of thought and purpose, this court, which has been looked to as exhibiting consistency in adjudication, and a steadiness which would hold the balance even in the face of temporary ebbs and flows of opinion, should now itself become the breeder of fresh doubt and confusion in the public mind as to the stability of our institutions.
But the problem isn't Starry D'cider or not Starry D'cider. Its Judicial tyrnny and ridiculous amount of power we give to Federal Judges. THere is nothing in the Constitution about Abortion or Segregation, and the court should have let the Democratic Process deal with the issue. I'm stil puzzled how an admendment which gives Congress the power to enforce the 14th Admendment and prevent Negroes from being deprived of their rights by state governments, has morphed into the SCOTUS deciding whether every State Law is good or bad.
Conservatives are so fucking stupid. They continue with this SCOTUS Worship and "Muh constitution". Do realize what would've happened if Hillary had won, we'd ended up with a 6-3 Democrat Majority, with one of those being Roberts! Go read Sotomayors crazy, results driven opinons.
And if this Kagan/Sotomayor dominated court had gotten rid of Gun rights, or declared immigration laws "Unconstitional" - what would the Republicans have done? Protest? Nope. Pass a constitutional admendment? Nope. Subvert the legitimacy of the Court or threaten to pack it? Nope. They just would have sat on their ass and let a leftwing court massively change American society.
I am not a constitutional scholar so my opinion is just that of a common man.
But as a commoner, I have issues with the legal profession.
The biggest (and most recent) is the turning of the legal profession into a secret society complete with indecipherable language (to the average Joe).
Case in point: I recently reviewed my father's trust. WTF? Why can't these be written in language that most people with a high school education can understand?
Let's start with 'stare decisis.' How about just calling it 'precedent'?
We don't live in ancient Rome anymore...
Roe was redone in Casey, so the poverty of the reasoning in Roe is not the current issue.
So you're fine that Casey ignored stare decicis, but Dobbs is totally illegitemate.....
but in my opinion, stare decisis should still win, because we have relied on this right for so long, and we were deprived of the opportunity to solve this problem with legislation when the Court decided Roe and again, when it decided Casey).
The arguments just get worse and worse. This is what happens when you try to defend lies.
AA paraphrased: The left really wanted to design a sensible legislative solution, you see, but Roe said no. The left is so mad about their inability to legislate a sensible solution that they are fighting for the prohibition on legislating solutions to remain.
Thomas worried about the "different attitude of the young" and how they bully the Court when they don't get the outcome they want, but how deferential to authority should young people be?
It's not about being deferential to authority.
It's about thinking, rather than emoting and bullying.
When you impugn stare decisis as a "mantra," you call for more analysis and criticism and less passive obeisance to authority. I would say that's inconsistent with a demand that we accept the outcomes handed down by the Court from on high. That too is obeisance.
That's not what he's doing. he's saying "stop throwing temper tantrums when you don't get your way, and engage rationally with the opposition."
So, You've got the Alito draft. Have you engaged with it as anything other than a temperamental whinefest of "but previous members of SCOTUS said this was my right!!11!"?
I've only see you post one thing, a comment on his discussion of reliance interests. And there you admitted that when you tried to teach that part of Casey is was a pathetic hot mess.
So, do you hav anything other than a demand that we defer to the authority of the previous 5 members of SCOTUS who voted for Casey?
The Court seems to be withdrawing a right that was in place for 50 years. You can't expect people to humbly receive the new version of what the law is
No, but we can expect adults, as opposed to overgrown children, to react as rational people, not whining brats.
To care about " right that was in place for 50 years" you must defer to the authority of the SCOTUS members who created that "right".
If SCOTUS members are owed that deference, then so are the current ones junking it. If the current ones are owed no deference, then neither are the ones who created it.
Pick one
Did you think we'd all sit quietly reading a hundred pages of careful reasoning and be impressed by the cogency of it all?
No, he thought you'd act like adults, and think, rather than throw temper tantrums like little children.
There's a good chance that no one has dutifully read every word. We jump into guesses and theories about what's really going on.
Speck for yourself. I read every word of the 60 pages of the opinion (I skipped the 30 pages of Appendix). I haven't bothered to follow up on the footnotes, because I expect that if Alito got anything wrong some leftie law type will be more than happy to point that out.
So far I haven't read of any lefty law types doing that. Have you?
The Lochner Courts established individual economic rights that lasted for longer than 50 years. The New Deal Courts nuked all those rights. So you can't honestly claim this has never been done before.
But when all is said and done, the question comes down to this:
Was Roe a legally, Constitutionally, and historically legitimate decision?
The answer is clearly "no". Because if it was "yes" you'd be engaging with the Alito draft, not whining about stare decisis.
"When you impugn stare decisis as a "mantra," you call for more analysis and criticism and less passive obeisance to authority. I would say that's inconsistent with a demand that we accept the outcomes handed down by the Court from on high. That too is obeisance."
Hail! to the victors valiant
Hail! to the conquering heroes
Hail! to our Court Supreme
Last precedence is not always best!
As Sam Alito pointed out, many citations of precedence involving ending life went before "Roe." But the first law that comes to mind is the felony of "willfully and maliciously committing an act with the intent to cause the death of the unborn child."
Roe has been criticized for being bad law for 50 years. Every judge nominated by a Republican during those 50 years was labeled an attempt to over turn Roe. Every State legislature that attempted to write restrictions on abortion were labeled an attack on Roe.
Meanwhile ultrasounds became clearer. Earlier and earlier premature babies survived.
Did the left try to enshrine abortion in State law? Perhaps in a few cases, but not as a blanket protection of abortions. Did the left try to come up with a compromise that precluded abortions moments before birth? They did not.
Instead we get idiots parading around about how PROUD they were that they got abortions. We get facts like 62 million abortions while the left says safe, and RARE. We get the fact of grossly disproportionate us of abortions among POC and think, "Feh".
No compromise possible.... right?
Now compromise will be required.
The left is ill preparred for such.
Maybe the Court can stay the effect of its ruling until Congress or the states have had a chance to reconsider the issues?
Althouse: "No. The Court had previously interpreted the Equal Protection Clause to permit separate facilities if they were equal."
In addition to being impossible, "separate but equal" was always nonsense, just as the "right to abortion" is nonsense. The Court took remedial steps in Brown to correct nonsense as, they are ostensibly poised now to correct nonsense.
And: "But once it was announced as a constitutional right and we lived with that for half a century, it's another matter altogether to say start NOW to do the process that was avoided back then."
It depends on the stakes, doesn't it? If you think it is about a legal argument over providing relief for women who choose to terminate pregnancies for convenience sake, overruling Roe may seem troublesome. If you see it as a matter of overcoming the tortuous, abusive reasoning of Roe that has lead to the homicide of 62 million babies with the promise of more in the future, it becomes a moral imperative.
There is no factual or scientific issue. Abortion terminates the life of an innocent human being.
So where are the rights of the sperm contributor in all this?
I say again, Roe v. Wade is bad law. It was badly decided, and should be expunged.
However you may think of the clump of cells growing within the uterus, it is qualitatively different from a toe or a tumor. The making of it requires contribution of living material from another human being.
Law which does not recognize, consider, and account for that - is incomplete, failed, and bad law.
I probably shouldn’t try to comment, but I have a couple of thoughts…
Please bear w/me…
Re: segregation
All men are created equal. The Court didn’t find a right: it acknowledged an intentional, bigoted oversight. The Right was only “found” when their(Justices, politicians, legislators- citizens ?) hearts, minds and eyes were opened. Constitutional validity was known all along.
Re: Roe
In 1973, the biology of when viability began in the womb was not “known”, am I correct? The question: When does life begin? Was there a common timing of these early won abortions that- through law expansion, whether judicial or legislative- pushed this timing further along into gestation? How did the expansion of the definition of abortion go from 1st trimester to, say- put on a shelf in a closet and left to die?
That’s all.
Althouse: "...stare decisis should still win, because we have relied on this right for so long, and we were deprived of the opportunity to solve this problem with legislation when the Court decided Roe and again, when it decided Casey."
Seriously? "We have relied...?" Well okay then. So what is the "reliance" scenario? "I relied on Roe when I had my abortion." So? Or, "I'm about to rely on Roe by having unprotected sex with a man I don't want to parent the child with." Really?
And any opportunity we had in 1973 "to solve this problem with legislation" we stll have now.
“… in my opinion, stare decisis should still win, because we have relied on this right for so long, and we were deprived of the opportunity to solve this problem with legislation when the Court decided Roe…”
Nonsense. You’re advocating for first-strike by unethical courts such that correct ethics becomes hobbled.
Roe has been contentious since it was decided. Congress could have resolved the contention by taking up the issue and resolving it politically, but it didn’t because politicians love to have the issue around to gin people up and get them to vote. The populace has been used ruthlessly (ha!) at the poli’s whim, and will continue to be played with until the issue is resolved via elections and votes. Let’s end this debate properly.
It ignores the last 100 years of expanding women's rights
Thanks for the mansplaining, Gary, which is merely a subterfuge to be able to drag someone you or some other man impregnates to an abortion facility and demand that she "get rid of it."
Threatening someone's family's at their homes IS bullying and intimidation. They should all be arrested.
"stare decisis should still win, because we have relied on this right for so long, and we were deprived of the opportunity to solve this problem with legislation when the Court decided Roe and again, when it decided Casey).
5/7/22, 12:59 PM
I would call the above statement a "poverty of reasoning."
"We have relied on this right for so long.." is also a sad statement. Did men in previous centuries not "rely on their right" to own women and/or slaves as property?
Roe and Casey were wrongly decided. The current Supreme Court seeks to correct that and give us the opportunity to solve the problem by legislation.
Bravo for them.
Roe was so badly reasoned from the outset, and has been so contentious ever since then, it's not really accurate to suggest that it is "woven into the fabric" of the law. It simply hasn't gained general acceptance or respect as an interpretation of the Constitution. Obviously, there are people who love Roe, but only because it made abortion legal, not because of its persuasive value or doctrinal elegance.
Part of the reason it's impossible to regard Roe as having been woven into the fabric of law is because it is so out of step with the law. We all know that the government can and does regulate just about EVERYTHING having to do with "health care." Yet, according to Roe, the government CAN'T (for the most part) regulate abortion, of all things, because [reasons]. It's one of the very few, if not the only aspect of "health care" law that can be described as "libertarian."
Stare decisis should generally apply when the court has previously taken a position on an issue that could have reasonably been argued either way, but which, once decided, became regarded as settled law. Like Dred Scott and Plessy, Roe doesn't qualify.
As to "reasoned discussion": even if abortion is legal, some date must be decided beyond which it is illegal, or else you can abort a full-term baby (as VA tried to do a few years ago), something almost all would call murder. The howling this week elides over that problem and tries to make it binary: legal or illegal.
There are actual threats against the justices, encouraged by (even made by) Lefty politicians. There is vandalism of catholic churches as we speak. This is mob rule.
How did the expansion of the definition of abortion go from 1st trimester to, say- put on a shelf in a closet and left to die?
There has always been fraud in the pro-abortion arguments.
They claim "CHOICE!" and then militantly oppose any and all efforts at protecting women's right to INFORMED choice and consent.
They claim "women's rights," but nearly every case since Roe has been brought by an abortionist or pro-abortion organization. In fact, Roe itself was more about the rights of abortionists than it was about women.
They claim it is about health and medical safety, and then militantly oppose any and all efforts at requiring abortion facilities to meet fundamental health and safety regulations even with women lying maimed and dead after being subjected to the quacks who do abortions.
They claim a right of bodily autonomy to terminate a pregnancy, and then militantly oppose the "born alive" laws that require medical care be given to a newborn that survives an abortion, showing that the real "right" they claim is a "right to a dead baby."
Ann said;"Casey must be badly wrong and there are still 3 other factors to analyze (which the Dobbs draft does, but in my opinion, stare decisis should still win, because we have relied on this right for so long, and we were deprived of the opportunity to solve this problem with legislation when the Court decided Roe and again, when it decided Casey)."
I will paraphrase; "even though Roe was wrong when decided and then confirmed in its wrongness by Casey we should not change because it has been such a long time that we have been wrong". Again she would clearly have defended the Dred Scott decision because it was wrong for a period of time.
Stare decisis is the shield behind which the Court can take refuge. The hanging judge does not hang his personal enemies, he hangs those the law says must hang. By setting that shield aside, they show that as they see it, they are kings, and the law is whatever they wish it to be. And the way you argue with a king, is with a sword.
“ "Some of the people who think think [sic] about the way stare decisis preserves respect for the Court." ”
Sic yourself. I totally meant to do that. Pay attention!
One would think that a former Con Law prof would argue the case "on the merits" by specifying where Alito and the majority go wrong on the law and the facts.
For example:
Althouse: "...stare decisis should still win, because we have relied on this right for so long, and we were deprived of the opportunity to solve this problem with legislation when the Court decided Roe and again, when it decided Casey."
Yet Alito sets forth a record extending back 400 years in English common law, which we adopted when we became a country, right up through 1972, when NO state permitted abortion "on demand."
Then, Roe announced a brand new right not grounded on our history or Constitution, and immediately there was an outcry persisting to this day.
(btw are Brown v. Board protesters still demonstrating in front of the Supreme Courtbuilding....to this day?)
And I'm sure AA would jeer at the George Wallaces of the world for claiming that the South had relied on the "right of separate but equal" for so long it had become a powerful precedent not to be tampered with.
It is a strange legal analysis indeed to argue that an unspecified "we" could have done something legislatively, but didn't----so "we" are now powerless to act at all!
SNORT
"Media coverage since the leak has been laughably hysterical and contradictory, with a lot of pious prattle about the dangers of ignoring “precedent.” Never mind that every landmark liberal ruling has involved overturning precedent. Indeed, the whole “living Constitution” jurisprudence of the Left rests on contempt for precedent. Liberals are getting a dose of their own medicine, and they don’t like it." ~George Neumayr's column entitled "The Undemocratic Defenders of Roe v Wade" in The American Spectator
I love Neumayr's description of current hysteria as "pious prattle." A truly apt description.
Hah- I caught the think think.
I’d have exercised my tic, though-
I see another shutdown of comments coming. Her commenters don't agree with the hostess.
Fortunately, we have the alternative site now.
Checking back to see if our comments have been graded yet…
Ann Althouse said...
“ "Some of the people who think think [sic] about the way stare decisis preserves respect for the Court." ”
Sic yourself. I totally meant to do that. Pay attention!
***************
Fer chrissake, Althouse, anyone who writes for a living knows that it is for the writer to communicate clearly, not for the reader to puzzle out just what the you mean.
If YOU have to defend it, it is indefensible!
https://m.youtube.com/watch?v=3RjuADPBo-Q. Trump pro-life speech
https://www.catholicnewsagency.com/amp/news/250217/march-for-life-crowd-estimate
It’s on the hearts and minds of many of us, always.
The dumbing down of the ability of women to manage and love should be over.
Especially the loss to the communities that are always publicly dumbed down.
I always tell my kids- love doesn’t divide: it multiplies.
“Fortunately, we have the alternative site now.”
Then what are you waiting for?
62 millions lives lost that should have never been subject to stare decisis.
You relied on a right that led to 62 million intentional deaths.
Maybe the SCOTUS just FOUND the rights of the unborn.
"Liberals are getting a dose of their own medicine, and they don’t like it."
I disagree with this. Their medicine, which is to cast aside the plain meaning of the Constitution in favor of some imagined "penumbras and emanations," is getting taken away. This is simply a return to the rule of law, not some kind of tit-for-tat that is on equal footing.
Is anyone else tired of Ann demanding fealty to judicial Kayfabe?
The demand for stare decisis here is Kayfabe. It's not real. Demanding that a fiction *matters* is insane.
Stop kayfabing, Ann. You look like an actor in a play who's refusing to stop acting the part after the lights come on.
“Then what are you waiting for?”
Nah. There is nothing else like Althouse. Team Althouse is the best. Where else can you get elegant responses from a knowledgeable person who seems like a friend I’d like to have even though we have never met. Some commenters need to show a little more consideration for the energy and thought it takes to maintain this site with comments.
All good things end, but I hope not soon. We should be able to get through this issue.
State legislatures do crazy things on issues like abortion rights. Look at TX. At the other extreme, look at CO. Both states need to rethink their laws with some element of common sense. Abortion laws with European-type restrictions should be achievable in most states. That is the job of the state legislatures and the state executive powers. That shows how impossible it is for SCOTUS to referee the abortion issue.
I think the leak is very serious because it is intended to put pressure on some justices to change their votes in the middle of the process. We can’t have that become routine. Whether the Chief Justice agrees with me is another question. He says he does. We’ll see.
Many thanks, Althouse. Many thanks, Meade.
What has the world come to when Howard is the voice of sanity?
The bottom line is the Democratic National Committee stranglehold on the nomination process anointed the only vile candidate Trump could defeat in the Electoral College.
If Roe is overturned, perhaps no one will have played more of an indispensable role than Hillary, other than PDT. The universe works in mysterious ways.
A proper beginning to any discussion of the Constitution ...
some men wrote something .... + Q: so why should we pay any attention?
carry on!!
Meade @ 5:24. Nicely done. A touch of Hemingway-level zing, to it.
"I see another shutdown of comments coming. Her commenters don't agree with the hostess."
Just a guess, but I think our hostess disagrees with commenters a lot here. She doesn't always say so, and it doesn't seem to bother her. So no, I don't expect a comments shut down for having a different opinion. Making the disagreement personal on the other hand, just might.
Criticism is not bullying, agreed. Objecting to the reasoning of the Dobbs opinion is criticism. Going to a justice's house and picketing is not criticism, it's bullying, acting in a manner designed to intimidate the victim into complying with the mob's views.
Also stare decisis is a great concept, but it is a guideline instead of a straightjacket. Otherwise, the Dred Scott decision would still stand, etc. Sometimes the courts get it wrong; sometimes the courts overstep their bounds and create rights that don't exist (Roe)... or refuse to recognize rights that do exist (Dred Scott, US v Miller, Korematsu, etc).
Meade said...
'“Fortunately, we have the alternative site now.”
Then what are you waiting for?'
Wait. What?
Why would someone w/a PhD say that!?
C’mon, man. If Althouse’s heart has the teeniest of cracks- the sense of true equality and empowerment of women will sneak in and create the Grand Canyon of Truth. Eventually.
https://youtu.be/POOs4sY3XeA
All babies want to get borned…
I was thinking Howard plays both ends toward the middle and posted on the wrong site.
"...stare decisis should still win, because we have relied on this right for so long, and we were deprived of the opportunity to solve this problem with legislation when the Court decided Roe and again, when it decided Casey."
I really am perplexed by the logic of this argument. We got it wrong, then we got it wrong again, so we need to continue to be wrong for the sake of consistency. This can only make sense to those who only accept the issue as a matter of women's needs, and see no rights for the child. If this was only a case of rights for the woman, it would be of no harm to maintain the bad law because there is, implicit in the view of the supporter, no harm done. Sure, the courts had no right to settle this matter, being that it is not in purview, but since we now have decided it, we might as well just keep it. A reasonable position except for the fact that it is not necessarily a harmless judgement. And for that reason it cannot be kept just for the sake of precedence. They very key question of the potential rights of the unborn cannot be abrogated on the basis of stare decisis.
I also reject the position that we were deprived a legislative solution. Isn't the very fact that it is being tossed due to a challenge of legislation nullify that statement? Legislation could have been written to codify this at any time, and since the battle for the SCOTUS has been raging since before the ink dried on the ruling tells me that everyone knew that this ruling was always at risk and could have been made moot through the simple act of legislation. Pass a law giving women the right, have it challenged in court, have it upheld by the SCOTUS, problem solved.
It’s like the long farewell with Michael K.
Blogger Meade said...
“Fortunately, we have the alternative site now.”
Then what are you waiting for?
Waiting for your significant other to do what she did last time. I read and comment on both sites but it nice to have a backup.
Wa St Blogger- in my community we had a vote on a school improvement bond of 1.4 million$, around that ballpark. The tax burden is spread unevenly due to low income rents w/in this school system. It went a to vote 3x. Always shot down. At Eastertime, the school had a free luncheon for all the families of the students- lunch room is the gym… and voting cubicles on the other side of the room to vote a 4th time. W/reminder posters. All of the parents- there for the meal- voted on the way out, I am assuming b/c…
It passed.
The school ranks one of the lowest scoring of this state: VT.
But they got what they wanted.
I have huge respect for Thomas but he's a little flip and overbroad on describing stare decisis.
As I remember from law school, stare decisis furthered the goals of predictability and reliability. People should be able to rely on prior court decisions in managing their personal lives and business affairs. Society would have a difficult time functioning if every time a question was presented to a court, it was "catch as catch can" based on the whims of the particular judge and how he or she felt about you, your opponent, the day, third party interests, or anything else that a judge could use in making a decision (like literal coin flips).
Stare decisis makes a great deal of sense in common law (judge-made law) and with decisions regarding codes (legislature/executive enacted law), and one can understand adhering to its application in those contexts unless the original decision is 'damn bad' (obviously wrong). But in both of those arenas, changing the court decision that became stare decisis can be fairly easily changed by new legislation. That happens all the time - if a legislature thinks the court got it wrong, then enact a law that changes the law and thus the outcome in future cases. The Supreme Court infrequently invites Congress to do just that - 'enact correcting legislation if we got it wrong.'
But when the Supreme Court decides that something is constitutionally mandated or constitutionally prohibited, that decision is not easily changed by the political process. The Constitution amendment process requires a huge amount of wide-ranging consensus across the country, especially among the political class across party aisles (try amending the Constitution that directly affects senators or representatives, e.g., term limits, and see how far you get and regardless of polls).
So it's pretty critical that the Supreme Court get those mandating/prohibiting decisions right. (IMO, those decisions should be rare and only made when unavoidable and necessary - like the Court dodges constitutional issues when there are other grounds on which to decide.) In this context, I think the argument for stare decisis is much weaker and needing the original decision to be 'damn bad' before the Court rights a wrong decision should not be required.
And frankly, even if you went with the "damn bad" standard, Roe qualifies.
I also don't think that the vehemence of public opinion has a role in correcting a mistaken mandating/prohibiting decision, unless one believes in a "living Constitution" that changes with the attitudes of the day and then I guess it could.
Laurel @2:35 makes a great point about a "first mover" advantage for justices who want a particular outcome that's not clearly understood to be required/prohibited by the Constitution, and the negative, reinforcing incentives that creates.
At bottom, in the Roe context, I think Thomas should have concluded his sentence with "or we don't want to do the job we sought and agreed to faithfully execute."
I yam what I yam
Roe was redone in Casey, so the poverty of the reasoning in Roe is not the current issue. Was it shored up decently in Casey? But even if Casey is wrong too, that is not enough to overcome stare decisis. Casey must be badly wrong and there are still 3 other factors to analyze (which the Dobbs draft does, but in my opinion, stare decisis should still win, because we have relied on this right for so long, and we were deprived of the opportunity to solve this problem with legislation when the Court decided Roe and again, when it decided Casey).
I appreciate this shorthand version of Althouse's position.
Am grateful that it will not be the God Stare Decisis I meet on the great and terrible Day of Judgment.
Thanks, Amadeus
Don’t worry, I’m not going to end the blog or the comments anytime soon, and I plan to keep going for the rest of my life.
But I do want to have more variety than I’ve had in the past week. It can’t be abortion all the time!
I wonder how much tolerance the electorate will have. I suspect people will max out on this debate, which I don’t think we’ll ever see resolved. There are too many conflicting interests at stake.
Does anyone remember what Judge Bork said about Brown? He pointed out, first, that Brown purported to be solely about education, and cited such things as studies determining that Black children liked playing with white dolls and not Black ones. And yet, all manner of segregation laws were struck down in the 50s with only Brown as precedent. Obviously, the evil was segregation as such, not segregated education in particular. But the case didn't actually say that.
Bork then said that Brown could have, and ought to have, been decided on the other grounds that Ann mentioned: that "separate but equal" facilities were almost never, in practice, anything close to equal. So we could go on forever striking down individual segregated arrangements on a case-by-case basis, or we could just say "enough of this nonsense" and take the inferior Black facilities as given. A pragmatic decision, but one that cuts the Gordian knot, and doesn't leap willy-nilly from education to, well, everything.
He noted other examples around the 50s-70s. Bolling v. Sharpe made the Brown ruling applicable to D.C. schools, which weren't (until then) subject to the 14th Amendment. (The "Equal Protection component of the Fifth Amendment" subsequently got a certain workout in cases that had nothing to do with Brown.) Eisenstadt v. Baird took Griswold, full of rhetoric about the sanctity of marital bedrooms and the like, and said, well, actually, a state that tries to distinguish between married and unmarried couples can't do so; the right to contraception applies to any two people, married (to each other, I mean) or not. All the hooey about the sacred provinces of the marital bed fell to a "rational basis" test. &c.
Ann Althouse said...
But I do want to have more variety than I’ve had in the past week. It can’t be abortion all the time!
I wonder how much tolerance the electorate will have. I suspect people will max out on this debate, which I don’t think we’ll ever see resolved. There are too many conflicting interests at stake.
Some States will ban it 100%. Some will have it past the moment of birth. Most, I think, will ban it after the 1st trimester except of life of mother or severe abnormalities that mean that the baby can't be brought to term anyway.
It's not often that States go from Governor and both houses of the Legislature one Party to all three the other (VA might finish that move in 2023, or it might not).
So it's going to be hard for people to get much shift in the laws
Dad Award and Dog/Bees
I wonder how much tolerance the electorate will have. I suspect people will max out on this debate, which I don’t think we’ll ever see resolved. There are too many conflicting interests at stake.
Probably not anytime soon. Though I predict ultimately technology will solve it for most viewpoints other than absolutists. Look how much easier it is to control your reproduction than it was in 1973. That's one of the challenges for the persuasiveness of the pro-abortion argument. The scare tactic about the wire hanger is so 20th century.
One possible scenario would be through advances in protection from pregnancy. If you could turn fertility on and off like a light switch at little cost, there's not much justification for avoiding responsibility at the cost of another's life, assuming having sex was your choice rather than rape.
Another would be quick and free detection of fertilization with very short window to make a decision (with room for exceptions for verifiable serious health risk to mom). This technology seems like only a matter of time, subject to affordability.
That addresses almost all pregnancies. The fight over the rest will be small potatoes compared.
Well, there are big protests outside Kavanaugh and Roberts' homes tonight. The bullying has commenced.
There are too many conflicting interests at stake.
Well the status quo since Roe has given so much deference to the rights of one group that it has crowded out all competing concerns. I would hope that there are thoughtful people on the left who can see that, and see that the extremists on their side have used the power given them by the courts in the Roe and Casey decisions to run roughshod over others- and that women are often the ones being harmed.
This is such an opportunity- we may not get it perfect but we can do better
Better than the current system that enshrines the right to abort, pushing all the way past viability and even claiming the right to infanticide when late term abortions fail.
We can do better than a system that has led to commodification of fetal tissues like a human spare parts market.
We can do better than a system that has put abortion providers above the law, so that they protect rapists by neglecting to report
We can do better than easy access which allows the father of a baby and the family members of a pregnant woman to pressure her to abort a child she might otherwise have chosen to carry to term, either to nurture for life or to lovingly give to another family to raise. The idea that the “choice” was ever really made solely by the woman in consultation with her doctor is of course a farce because she has one potential choice that would require support and one that only requires a one time payment of a few hundred dollars. The result is that only women who have support can possibly make the choice to preserve their child’s life. The choice to abort is in all cases being made by people who have blatant conflicts of interest.
I did read every word of the opinion, and among other things was impressed with the careful analysis of stare decisis, why it usually commands compliance and under what circumstances it may not and should not. If any decision fails more than Roe to have met those circumstances, I cannot imagine what it might be. Roe and Casey both were based on utterly incorrect historical analyses, neither made any real effort at all to ground their judgments in any Constitutional language, explicit or even implied (except of course for the ludicrous penumbras of Roe). They concocted imaginary lines of demarcation (trimesters vfor Roe, then imagined viability lines for Casey, line which are always shifting) which no laws on our books regarding abortion prior to 1973 ever used. It was a complete judicial usurpation of the democratic process. If it now gets returned to that democratic process, I do not care how contentious it all gets initially. In the end, it will heal a near mortal wound to the constitutional order. Does anyone need any proof of how near mortal it has been when, after 50 YEARS, we have people at each other's throats still over what almost every other democracy has settled, and in more restrictive ways than Roe or Casey did by far, but without the endless polarization and demoniztion. Enough is Enough!!!
Its bullying when you are protesting outside of their house, releasing their home address and leaking their draft decisions with the intent to create a groundswell of pressure (you know, bullying) to get them to change their mind.
I think stare decisis applies to laws that are like regulations but does not apply to laws involving questions of rights. It might be better to allow Wisconsin to ban the sale of margarine because it's better for people to know what the rules are are than that the rules should be constantly changing in a quest for an elusive perfection on subjects that don't matter much. Don't sweat the small stuff is a good translation of stare decisis. But maintaining a "right" that involves the "right" to kill an innocent child as well as the right to exclude men from decisions about their children does not create order. It is an element of disorder in itself.
If you want stare decisis to be a thing, make sure your legal arguments make sense. It is well established that Roe's underpinnings are essentially "we want this very much" and "we want to end the debate," neither of which are legal arguments. Even the left wing legal experts admit as much, and they have been trying to come up with a legitimate legal argument for decades with minimal success. It undermines the Supreme Court in particular and the government in general when laws are obvious bull****. That fact that we have been living with obvious bull**** for a long time, government approved bull**** at that, does not make it any less bull****.
That's also why the gay marriage ruling is actually in jeopardy because of this. "Dignity" is not a legal argument. There are legal arguments for it, certainly stronger than Roe, but when you are so desperate for your win that you cut corners, do not be surprised when it collapses upon you.
Don’t worry, I’m not going to end the blog or the comments anytime soon,
Hooray
I suspect people will max out on this debate
I am not sure this is a debate. It's more like two sides talking at each other. I would like to see more point/counter point. Though maybe that is pointless too given that we cannot agree on the central issue which is what constitutes a life.
which I don’t think we’ll ever see resolved.
Probably not. We will have to settle on a "compromise" which simply will not satisfy either side. It is not as clear cut as something like slavery. But our compromise will look like "slavery until age 30 and then it is illegal except under certain conditions where slavery can be extended for life." No good answers until we invent a way to 100% prevent pregnancy until the woman can specifically schedule it on her terms, and then be able to off-load to an incubator if circumstances demand.
@jon "If any decision fails more than Roe to have met those circumstances, I cannot imagine what it might be." Word.
No one expects everyone to be happy about everything, but do not pretend the terrorist like threats by the democrats new incarnation of the klan, the threats of rape and murder against those who say women have uteruses or that CRT is Jim Crow 2.0. It’s long past time that people to be expected to be held accountable for their actions. You have rights, but also obligations to reciprocate. Lawlessness is not only disrespect but the violation of the rights of others. We are not children, if you are going to engage in behavior that lead to a certain outcome, you cannot cry foul. There are solutions like birth control, condoms.. you don’t get to say that I have a right to kill a life, a human being because it is an inconvenience for me. As a teen I dismissed Phyllis Schlafly for her prescient warnings about what abortion among other things would lead to, she was 109% correct about everything she said. We as a society are not happier, we are coarser and life is held cheap. The fact is, there is no constitutional right to abortion. It's not there. As Justice Clarence Thomas has said, it doesn’t exist. There is a right to free speech, a right to religious liberty, a right to own a firearm. But there is no right anywhere in the Constitution to kill an unborn baby. Even Ruth Bader Ginsburg recognized that Roe v. Wade was bad law and bad precedent. While some polling suggests Americans don't want Roe v. Wade struck down, pollsters do frame questions to get the response they want. There is no pro-abortion majority in America. In fact, it's the opposite. Large majorities of Americans want abortion restricted. For example, only 17% of Americans support abortion on demand at any point in pregnancy, and 71% would ban abortions after the first trimester (after 12 weeks). In other words, the more people understand what Roe permits, the less they like it.
When Roe is overturned, the people and their elected representatives in the states will be free to decide the issue.In left-wing states such as California and New York, abortion would be generally available, just like it is now. In pro-life states such as Tennessee and Texas, it would generally be much more restricted, just like it is now.
Laws should be determined by their constitutional merits, which is where the decision really fails. Many legal scholars have criticized Roe v. Wade as "arbitrary," "faintly ridiculous," "bordering on the indefensible," and "constitutional origami." There's virtually nothing more important to the modern Democrat Party than the ability to destroy innocent life. Joe Biden wants Roe codified into federal law. He wants every American to subsidize abortion with their hard-earned tax dollars. And the pro-life movement certainly isn't going away. It's been going strong for nearly 50 years now, and the momentum is on the side of life. When Roe v. Wade was incorrectly decided, Justice Harry Blackmum dodged the central issue, declaring, "We need not resolve the difficult question of when life begins." It's easier to talk about "privacy" and "choice." In the years since 1973, medical science has made tremendous advances. Modern ultrasounds have given us a window into the womb. We can see the beating heart and the full humanity of the preborn child. I believe the Constitution contains a right to life, specifically in the 14th Amendment. Our Declaration of Independence certainly recognized the "unalienable right to life." Like terrible precedents of the past, Roe deserves to go. It is based on the same flawed premise of Dred Scott, that some people have no rights we are obligated to respect, that some people are "property" to be disposed of at whim, whether sold on an auction block or discarded like a paper cup. America is better than that. We fought a terrible Civil War to end the inhumanity of slavery. Reverend Dr Martin Luther King, Jr. called on us to fulfill the promise of America, to guarantee full civil rights to all. We're still fighting to end the inhumanity of abortion. Overturning Roe v. Wade is an important first step in guaranteeing the sanctity of life and once again fulfilling the promise of America by creating a society in which every child is protected under the law and welcomed into the world.
We all make mistakes, but boy did those SCOTUS justices in Roe and Casey screw things up. There is general agreement that the rationale of the decisions were awful. Worse, they created this divisive society regarding abortion where, the vast majority of Americans want limited abortion rights, but the Rose and Casey decisions pushes people to extremes. Now, we are about to become an even more divisive society, at least for the immediate future. It is tempting to say leave Roe alone, but the left has stretched it to such hideous extremes that long term, there are significant benefits to reigning it in.
I saw an interesting thought recent. Someone asked the question of what aspect of society would be considered hideous 100 years from now. The mostly common answer was abortion on demand, which I think has to be correct. Second place was killing animals for food.
We went to a new play in. London last night called “The 47th”. It is an imaging of what might happen if Biden resigned and Harris became the 47th president up against DJT in the 2024 election. Bertie Carvel is excellent as DJT but the whole thing is ridiculously lurid and the second act is reprehensible, particularly with respect to Ivanka. The level of projection onto Trump and his supporters is overwhelming. Trump is assigned errors made by Cuomo and Murphy. The Democrats are given a whitewash. Kamala actually has thoughts in the play. No cackling. No word salads.
DJT is such a compelling character that the play dies when he is offstage, and his opponents are given virtues that they don’t possess in real life. All the tactics and schemes of Antifa are given to Trump supporters.
As we were leaving, my wife said to me, “Now I guess we have to vote for Trump.”
The playwright is the same man who wrote Charles III. Now I am reevaluating that play based on how dunderheaded this one is.
@Jupiter 9:51 am yesterday -
Your reasoning has some resonance when applied to an interpretation of a statute. Once the Court has adopted such an interpretation Congress certainly can choose to "correct" the Court by amending the stature. But in cases of constitutional interpretation a similar correction requires a constitutional amendment, and that is quite the super-majoritarian enterprise. For this very reason many legal scholars have noted that in the context of constitutional interpretations stare decisis has less force, or at least should have.
My thoughts this morning pick up the thread of dignity, as well- per Static Ping.
https://www.usccb.org/beliefs-and-teachings/what-we-believe/catholic-social-teaching/life-and-dignity-of-the-human-person
The foundation of life begins in the womb, one might say. Disrespect or defile at the beginning- the root- and perception/definition is altered from that point forward. I’d listened to a priest talking about the mentality of children who were aware that their existence, their life, occurred only b/c they fit w/in a time frame. Or an allotment. “I only wanted 2kids- that’s it” or - “I stopped after I got my boy” kind of thing. The acceptance of children isn’t unconditional. That’s not how it used to be. This colors the value of all human life. When it’s only valued when wanted.
I also found this, note 2020:
Your intrinsic value is your perception of your inherent value as a living, breathing individual. Intrinsic value isn't related to any consequential outcomes such as merits, achievements, status or even your value to others. You continue to have intrinsic value throughout your life even if you did nothing.May 23, 2020
Pure Relativism.
If the best argument for Roe a law professor can make is stare decisis, what does that tell you?
Howard said...
I yam what I yam
yeah. try doing less of that.
Ann Althouse said...
Roe was redone in Casey, so the poverty of the reasoning in Roe is not the current issue.
Yes, it is.
1: Because the majority of the Casey opinion was "we have to support Roe because of stare decisis"
2: Because if Roe were correct, we'd be done
Was it shored up decently in Casey?
No, it wasn't
But even if Casey is wrong too, that is not enough to overcome stare decisis. Casey must be badly wrong
Which it clearly is
Starting with their assumption that if they just made this ruling, the problem and fights would go away
and there are still 3 other factors to analyze (which the Dobbs draft does, but in my opinion, stare decisis should still win
With all due respect, you opinion doesn't matter, because you're not on the Court.
your legal arguments can matter, but your opinion is no more valid than mine. And it such a case, the situation should be left to the State Legislators, since' that's the method we use to sum up people's opinions
because we have relied on this right for so long
1: That didn't save Lochner
2: Everyone has known for at least that last 30 years that there was a strong movement to overturn those illegitimate decisions, and that therefore it was not sane to assume it would already be with us
3: That argument works for "I made this investment because of the existing rules". Anyone who wants to get an abortion has plenty of time to do so before the effects of this decision are felt, so there's no valid reliance interest here
and we were deprived of the opportunity to solve this problem with legislation when the Court decided Roe and again, when it decided Casey).
Which is an amazingly strong argument FOR the Alito draft, since it returns the problem to the Legislature, and lets you now "solve this problem with legislation".
Seriously? your'e arguing that because the Left acted in bad faith, that's a reason why they should get to keep their ill gotten gains?
Don't know whether the following point was made in earlier comments. If so, my apologies.
Courts can't refuse to follow stare decisis on a whim. There are four specific, reasonably well-defined criteria that must be satisfied. In his opinion, Alito identified the criteria and applied them. It seems to me the focus of criticism of the opinion should be on that analysis.
buster said...
Courts can't refuse to follow stare decisis on a whim. There are four specific, reasonably well-defined criteria that must be satisfied. In his opinion, Alito identified the criteria and applied them. It seems to me the focus of criticism of the opinion should be on that analysis.
That, or if he has mistakes in the legal sections, or factual errors.
But you'll note that NONE of the left wing law bloggers are going after the Alito decision, on anything other than "I don't like the result"
Which is just about the strongest possible argument that it's the correct decision
It turns out I'm wrong. There's a bunch of left wing law bloggers are going after the Alito decision claiming it has the history wrong.
The problem is, they're lying about it.
They say "Alito ignores that in the Founding Era abortion was perfectly legal until "quickening!!11!"
Actually, Alito directly addresses that issue, and shows that all abortion was illegal. And they never try to engage with what he wrote.
I wrote up part of that section here:
https://gregquark.blogspot.com/2022/05/alito-on-how-blackstone-and-hale-show.html
tl;dr: If you gave a woman "with child" (not "with quick child", just "with child") an abortificant, and she died, you were guilty of murder.
Because the attempt to kill the child was unlawful, and therefore the killing of the woman, caused by your unlawful act, stopped being an accidental death, and instead became an unlawful killing.
The analogy that Blackstone (not Alito, Blackstone, writing in the 1700s) used was that if you try to poison person A, but it's person B who takes it and dies, the fact that you wanted to illegally kill A with malice aforethought makes the killing of B a murder with malice aforethought.
If abortion had been legal then, that argument would not have worked
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