July 25, 2022
"'I don’t recall Roe being an issue in any such conversations I had concerning [the] creation of Fed Soc,' [Theodore] Olson wrote to me...."
"'It was all about creating a forum/venue for debate. Not taking sides on any particular issue.' And yet Roe symbolized something to the Federalist Society’s founding members. 'For someone like me, a lawyer, Roe was really not about abortion,' John McGinnis, a conservative law professor at Northwestern University, said... '[It]was the culmination of the Court diverging from the text of the Constitution and essentially—this is not too strong of a word—fabricating the law.'... During the next four decades, the conservative legal movement set about radically changing the way that the law was talked about. They promoted a mode of legal interpretation that was purportedly value-neutral, based on their understanding of what the Founders wrote.... Some people in the conservative legal movement are more philosophical about the consequences of overturning Roe. In their view, the error of the original ruling—a 'constitutional deformity,' as one Federalist Society insider put it—has been corrected. Now the democratic process begins...."
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The era of Supreme Court writing laws that have nothing to do with the Constitution is over. Democrats are unhappy but they are always unhappy.
Speaking of fabricating the law, Bari Weiss has an interview on her Honestly podcast entitled “The Yale Law Professor Who Is Anti-Roe But Pro-Choice.” You can google the link; here’s the podcast description:
“Akhil Reed Amar is the Sterling Professor of Law and Political Science at Yale university, where he’s been teaching constitutional law since the ripe old age of 26. He is the author of more than a hundred law review articles and several award-winning books. Amar’s work has been cited in more than 40 supreme court cases—more than anyone else in his generation—including in the shocking draft opinion by Justice Alito that was leaked to the press last week.
“What may be confusing about that is that Amar is a self-described liberal, pro-choice Democrat. So why is Alito citing his work in an opinion to overturn Roe? Today, Amar explains why he, in fact, agrees with Alito, what overturning Roe might mean for the country, what the leak says about the culture of American law, and what supporters of legal abortion, like himself, should do now.”
Perhaps somethings are best not decided by a court but left to the people, through their representatives in this democratic republic, to work out? Ruling by judicial fiat, by pen-and-phone, by administrative ukase feels wonderful, but experience tells me that it just pushes the problem down the road.
That the New Yorker folks are just figuring this out speaks volumes about why we are in trouble as a nation, and how we got to this point.
Who controls what happens next? Can New Yorker writers and readers even effing read? The Hoi Polloii and the legislators who live in terror of them, that’s who. And that’s how it should be.
No nor were they seeking such control. It's now a legislative question for States. If you want abortion, pass laws for it. Stop trying to figure out how to fabricate laws through judicial edict.
I don't see what the hubbub is all about? Isn't the court case just a technicality?
I mean AS WE ALL KNOW; The OVERWHELMING Majority of americans think abortion should be legal, In ALL CASES
So, call a special session, and have your state vote in reproductive health care rights.
I mean, The overwhelming majority DOES think abortion should be legal, in All cases.. right?
i mean, Right?
The Federalist society didn't win anything. Trump won it. All the conservative stuffed shirts wanted to cede the election in October 2016, and let Hillary win. Because y'know we had to "save the senate" LOL!
Because of Trump, we got 3 votes to overturn Roe. Would "Yeb!"- even if he'd gotten elected - given us three votes? Doubtful. Very doubtful. Trump did what he said he would do, not pick liberal judges.
If all the fakecons at NR and the Weekly standard gotten their way, we'd have 5-4 or even 6-3 Liberal majority with "moderate" Merrick Garland giving us God knows what.
THe liberal position on Roe never made any sense. It was basically:
1) A majority of people are pro-choice
2) We must not let the people decide the issue. Only the judges.
If the SCOTUS hadn't intervened, we would have had some sort of reasonable compromise on the issue in last 50 years, and we wouldn't be discussing it now.
Unintended Consequences are the lifeblood of the progs. Let it rock!
Lawfare.. whose idea was it, anyway?
Human rights is a counterweight to the liberal excess of social progress including human rites.
The Twilight Amendment (i.e. emanations from penumbras), the source of diverse acts of mischief, has been partially overturned with a renewed legal and popular interest in the Constitution founded on the premise of women and men with dignity and agency capable self-moderating behavior with a view to reconciliation and the second party: "our Posterity".
Roe, Roe, Roe your baby, has evolved, where with the current fitness function baby meets granny in state, if not in process. Since demos-cracy is aborted in darkness (i.e. murder), it is prudent to take baby steps to avoid another civil war and the social justice of abortion activists for the grooming of the wicked solution for social, redistributive, clinical, political, and fair weather causes.
I’m all for both sides being honest and let the cards fall where they may in republic fashion. But if the progs are not taught a lesson about the downside of lying for the accumulation of power, they won’t stop. Thus for now the right should pursue power and destruction of progs at every opportunity and in every way that leads to success. It won’t be enough for progs to just lament losing. They need to acknowledge the destructive consequences of their ends-justify-the-means philosophy and beg for fairness.
I remember Kelo. Rotten anti constitutional decision that required Humpty Dumpty's dictionary to decipher.
I think over 30 states passed laws protecting private property. Because SCOTUS could not be bothered to protect the people from the govt.
As commenters have already said, the polls are clear that the majority want on demand abortions. Why cant those laws be on the books by next Memorial day.
the polls are clear that the majority want on demand abortions. Why cant those laws be on the books by next Memorial day.
I don't see that. I think there is wide support for abortion up to 15 weeks, or so. The states will deal with n=this just like they were starting to before Roe v Wade.
Abortion was legal in California in 1969.
Screw all those weak-kneed conservatives that roll over and let Dems win fairly consistently. Trump was a freaking bull in a china shop and we all know the only people that have fine china anymore are DC elites for their catered dinner parties. I am an old woman who wants to knock every damn Dem on their ass on my way out. A take no prisoners philosophy.
Trump needs to step aside and let DeSantis take the lead now and crush any Dem that stands in his way. He will be much smarter about the Deep State. Will he succeed very time? Absolutely not but he’s seen how far they will go to bring him down. And I think he will be much smarter taking the on.
I may be wrong but have to believe we conservatives have a fighting chance.
"How the Federalist Society Won/The conservative legal movement was pivotal in getting Roe v. Wade overturned. But does it have any control over what happens next?" by Emma Green (The New Yorker).
What happens next is States pass their own laws, and any attempts at Federal laws on the subject get bench-slapped by SCOTUS.
And yes, the people who finally nuked Roe have a great deal to say about that
"the error of the original ruling—a 'constitutional deformity,' as one Federalist Society insider put it—has been corrected."
Exactly.
"Now the democratic process begins...."
Right.
"But does it have any control over what happens next?"
No. And unlike progs counting on their own endless hegemony, no FedSoc assumed it would.
"Does it have any control over what happens next?"
You better thank God we don't. Because what should happen is a lot of Democrats should be in prison for the rest of their lives for the murder of 62 million kids. If we did control what happens next what would happen is a massive reckoning.
Conservatives are cowards, though, and never sought "control" over what now should happen. The GOP never looks further than the one hill they see in front of them. So people are searching for new heroes.
Kelo is another that, in my opinion, was wrong on the day it was decided. That said,
"THe liberal position on Roe never made any sense. It was basically:
1) A majority of people are pro-choice
2) We must not let the people decide the issue. Only the judges.
While conservatives have not recently announced a consensus on the matter, the liberals are fund-raising on the claim that SCOTUS will come after the right to "gay marriage", and "inter-racial marriage" next.
Which makes some sense. Voters (in California, at least) recently held different opinions from the courts on the gay marriage issue. For that matter, a recent DEMOCRAT PRESIDENT differed from the court on gay marriage. The originalist position would be that the constitution is silent and the states must decide. No problem.
The inter-racial marriage issue is more difficult because of the 14th amendment, which is NOT silent on race-based rights. But again, the Democrats are worried about an issue the Republicans are not pushing. Yet. Action, reaction... we'll see.
The Constitution is silent on the question of public education but the Northwest Ordinance is not, and we wonder what the originalists might find instructive in that record of the Founder's thinking as questions about CRT and Trans-sexual education and vouchers all come up-- I think there seems to be a limited Federal role in public education but I could be mistaken.
When the right to petition, peaceably assemble, protest, "cry fire in the theater" appears to be selectively awarded to some factions and withheld from other factions,the question moves away from originalist analysis. Why CAN'T the Center for Disease Control at least recommend locking-down gay bath houses and organized orgies? Why CAN that authority impose lockdowns on funerals, mega-churches, and Trump rallies? Gonna be interesting.
At Reason Josh Blackman of The Volokh Conspiracy writes that for legal conservatives post-Dobbs it's been “Six Decades Of Folding, Followed By Sixteen Years To Draw A Full House. As he says, “On the plus side, we had Rehnquist, Scalia, Thomas, Alito, Gorsuch, Kavanaugh, and Barrett. On the down side, we had Roberts, Souter, Kennedy, O'Connor, Powell, Blackmun, Burger, Stewart, Whittaker, Brennan, and Warren.”
"How the Federalist Society Won/The conservative legal movement was pivotal in getting Roe v. Wade overturned. But does it have any control over what happens next?" by Emma Green (The New Yorker).
God these writers at the New Yorker are stupid. The New Yorker is read by stupid people who live in a tiny myopic bubble.
This isn't about control.
Progressives and people who suck at the major media information spigot just can't seem to figure out that the process is just as important as the result.
And now the supporters of Roe are just figuring out what we all knew the whole time.
Roe is dead and it was always a travesty. The world did not end and indeed we are all discussing the issue rationally.
Now some of you are all joining us after getting over your ridiculous hissy fit.
The Federalist society didn't win anything. Trump won it.
I think Trump won it when he made a promise to pick his judges from a list drawn up by the Federalist society.
But the big key (obviously) to over-turning Roe v. Wade was the pro-life movement.
Roe was really not about abortion
There are very few pro-lifers in academia. The lawyerly scorn of Roe (the opinion was a joke) is not at all similar to the populist scorn of Roe (innocent babies have been killed).
I totally get why a law professor would say "Roe was really not about abortion," but as political commentary that's a stupid thing to say. It was the pro-life hostility to Roe -- and the conclusion of millions of people that our government had sanctified the killing of innocent babies -- that made Roe so controversial.
And actually it's kind of a dumb comment, even taken as legal commentary. If the outcome of Roe v. Wade had been about something innocent, like birth control, it never would have been so controversial. Law professors might object to the process but it was the substance of the opinion that pissed so many people off.
Furthermore, the truly outrageous part of the opinion was not the use of "substantive" due process -- the Supreme Court has used that doctrine multiple times. What was so dangerous and ugly about Roe v. Wade was the classifying of human beings as non-people. That's highly unusual in Supreme Court caselaw. It was done once before, in Dred Scott, an opinion that led to our Civil War. (Blackmun actually cited the slavery parts of the Constitution in his discussion about the word "person," a truly stupid -- and quite telling -- reference).
When I was in law school, we spent one hour in one class talking about the opinion. That's pretty much how law school treats it -- as just another case.
But to the American people, Roe v. Wade was always a huge case. And it was abortion -- and the possibility of infanticide -- that made the case so widely known among non-lawyers. Many, many people have an opinion on the case (even if they haven't read it).
a lot of Democrats should be in prison for the rest of their lives for the murder of 62 million kids.
The Constitution forbids ex post facto punishment.
It's why slave-owners weren't punished after the Civil War.
You can't make something a crime after the fact. So anybody who had, or performed, an abortion in the Roe years cannot be punished for it. It was legal when they did it.
It's the repeal of the Brennan Doctrine: If I don't agree with a public policy decision, I'll find a way to label it unconstitutional. Why? Because I know what's best. And the people will accept it because we're the Supreme Court.
Hear!! Hear!!! paminwi @ 7:35
Focusing on principles, not cases? That is simply a crazy way to prepare to influence the judiciary.We all know it is about the ‘Name1 v Name2’ Nothing else matters.
I liked the Volokh article about the history of SCOTUS Justices and Roe v Wade. https://reason.com/volokh/2022/07/25/for-legal-conservatives-six-decades-of-folding-followed-by-sixteen-years-to-draw-a-full-house/
When progressives get their way you don't see articles about which lobbies and thinktanks and pressure groups were behind the change, and whether they can "control" it. In local elections, Soros is attracting the kind of attention the left has always directed at the Kochs, but who's behind what Biden is doing and who's profiting big from his policies?
Saint Croix said...
a lot of Democrats should be in prison for the rest of their lives for the murder of 62 million kids.
The Constitution forbids ex post facto punishment.
It also says "the right to keep and bear arms shall not be infringed".
Not saying such prosecutions are a good idea, but I am saying I can't see why people who refuse to grant us the Constitution's actual protections, should deserve any of them themselves
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