Abortion or the day Roe died

[omaniphil]

Well, this just happened: https://www.politico.com/news/2022/05/0 ... n-00029473
Politico is reporting that they have a draft opinion in Dobbs, where the Supreme Court, in a 5-4 opinion struck down Roe and Casey by taking a dagger to substantive due process.

Caveats are in order. This is a draft opinion and things may have changed since this was drafted (see for example NFIB v Sebelius), also who knows whether this is even legitimate.

Few thoughts in no particular order:
1) This shouldn't come as a surprise to anyone given the court makeup.
2) Roe v Wade was a terrible opinion that undermined the rule of law.
3) Overturning Roe is not going to fix anything, and is likely to just compound the error.
4) The leak is not good for society, and everybody who works at 1 First Street is going to need a rock solid alibi that it wasn't them who leaked it, because the leader is going to be hunted down. If it's a clerk they should be fired and disbarred, if it was a Justice, they should be impeached.
5) all the other cases thay rely on substantive due process are at risk - Lawrence v Texas, Obergefell, Loving (maybe - if I recall, they might have based that on the EPC as well) etc.

[mouse]

May just want to turn off your FB/social media feeds now people... shit is going to get BAD today...

[mgil]

May just want to turn off your FB/social media feeds now people... shit is going to get BAD today...

So true. And once it’s off, consider leaving it off…

[omaniphil]

May just want to turn off your FB/social media feeds now people... shit is going to get BAD today...

My twitter feed was a shitshow last night.

[BostonRugger]

May just want to turn off your FB/social media feeds now people... shit is going to get BAD today...

and just like that, all them people didn't care about Ukraine anymore...

/ForrestGump

[EricK]

2) Roe v Wade was a terrible opinion that undermined the rule of law.
3) Overturning Roe is not going to fix anything, and is likely to just compound the error.

Would you be willing to elaborate? I'm not trying to start a political debate, I just know that you are actually a lawyer and would like to understand your thoughts better. Regardless, thanks for posting.

[Hanley]

shit is going to get BAD today...

Today? This is going to blow-up like nothing in our lifetime has.

5-4 overturning of 50 years of legal precedent on a contentious issue (with the court's decision being at odds with majority public sentiment) and will likely be perceived as a conservative-religious legal coup?

The court itself is totally fucked.

[omaniphil]

2) Roe v Wade was a terrible opinion that undermined the rule of law.
3) Overturning Roe is not going to fix anything, and is likely to just compound the error.

Would you be willing to elaborate? I'm not trying to start a political debate, I just know that you are actually a lawyer and would like to understand your thoughts better. Regardless, thanks for posting.

On point 2, I think it is based on a separation of powers concept. The source of laws that we have should be based on either the Constitution or based on legislatures at the federal, state, and local level passing laws. Because legislatures are elected, there is some democratic accountability to the people who voted them in. The judicial branch should be in the business of determining whether the laws are constitutional or not, but should not be creating new law, since there is no accountability mechanism other than impeachment.

In the case of Roe, the Court struck down a Texas law that basically banned abortion outright on the grounds that it violated the Due Process Clause of the 14th amendment. The Court could have stopped there, but instead it promulgated a set of rules that displaced almost every states' laws on abortion, based on a clause of the 14th Amendment that doesn't even reference abortion. This judicial act of legislation really contributed to the contentiousness of judicial nominations as the politicians and parties realized that if they were able to get control of the judiciary they could make changes to our laws without having to take the hard votes themselves.

With regard to 3, I think the Alito decision is the right one legally, but I worry about the political effects, and think it will just lead to more polarization and contentiousness. Due to that, I would have preferred the Court ruling on the immediate case one way or the other and just staying silent on whether or not Roe/Casey should be overturned.

ETA: Justice Ginsburg agrees, at least with regard to how disruptive the Roe decision was. Here she is in a law review article based on a speech she gave in 1992:
""[J]udges do and must legislate," Justice Holmes "recognize[d] without hesitation," but "they can do so," he cautioned, "only interstitially; they
are confined from molar to molecular motions."' Measured motions seem to me right, in the main, for constitutional as well as common law
adjudication. Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable. The most prominent example in recent decades is
Roe v. Wade. To illustrate my point, I have contrasted that breathtaking 1973 decision with the Court's more cautious dispositions, contemporaneous with Roe, in cases involving explicitly sex-based classifications, and will further develop that comparison here..." (starting on pg. 14).

[JonA]

4) The leak is not good for society, and everybody who works at 1 First Street is going to need a rock solid alibi that it wasn't them who leaked it, because the leader is going to be hunted down. If it's a clerk they should be fired and disbarred, if it was a Justice, they should be impeached.

It's hard not to think this was an intentional leak trying to intimidate the Court.

[omaniphil]

4) The leak is not good for society, and everybody who works at 1 First Street is going to need a rock solid alibi that it wasn't them who leaked it, because the leader is going to be hunted down. If it's a clerk they should be fired and disbarred, if it was a Justice, they should be impeached.

It's hard not to think this was an intentional leak trying to intimidate the Court.

But who though? I see that a range of potential parties who would have motiviation to do it. A leak by one of the liberal justices or their clerks trying to intimidate the majority position. A leak by somebody who is in the majority and is worried about one of the Justices switching sides, with the hope of locking them into this leaked position.

[JonA]

4) The leak is not good for society, and everybody who works at 1 First Street is going to need a rock solid alibi that it wasn't them who leaked it, because the leader is going to be hunted down. If it's a clerk they should be fired and disbarred, if it was a Justice, they should be impeached.

It's hard not to think this was an intentional leak trying to intimidate the Court.

But who though? I see that a range of potential parties who would have motiviation to do it. A leak by one of the liberal justices or their clerks trying to intimidate the majority position. A leak by somebody who is in the majority and is worried about one of the Justices switching sides, with the hope of locking them into this leaked position.

I hadn't thought of the latter. From what I've read, the only Justice that might be on the fence would be Roberts, but he doesn't seem the sort that would galvanize his support for the majority in reaction to negative public opinion. To be honest, though, I think all the justices probably have a pretty healthy dose of DGAF about public opinion.

[omaniphil]

To be honest, though, I think all the justices probably have a pretty healthy dose of DGAF about public opinion.

Except for Roberts. He seems quite in tune to public opinion especially given his vote switch on NFIB v Sebelius. I think it unlikely, but I even heard today that its possible Roberts leaked it himself, in the hopes of intimidating the 5 to join his concurrence where he would uphold the Mississippi law, but not go so far as overturning Roe.

[DCR]

4) The leak is not good for society, and everybody who works at 1 First Street is going to need a rock solid alibi that it wasn't them who leaked it, because the leader is going to be hunted down. If it's a clerk they should be fired and disbarred, if it was a Justice, they should be impeached.

Agree, fully.

That said, the number of folks on the right yelling this morning about, “Our institutions!” while still trying to talk around Trump’s dick in their mouths, is the height of comedy.

[aurelius]

2) Roe v Wade was a terrible opinion that undermined the rule of law.

Roe v. Wade was a 7-2 decision written by Conservative justice Blackmun (a Nixon appointee). Roe v. Wade affirms the Constitutional implied right to privacy. Yes, I do recognize there are legal minds that do no believe the Constitution guarantees any right to privacy. Which is scary as fuck. Liberty and freedom is all about an elected body making personal, life changing decisions for individuals. Amirite?

My take: Over 50 years of law, dozens of court cases ruled on by 30+ judges, and these 5 conservative judges are more wise than those that came before them. Hubris.

It's hard not to think this was an intentional leak trying to intimidate the Court.

IMO, an intentional leak to force the 5 conservative Justice's hands. This is an first draft where Alito is testing the waters with the four other conservative justices. They may read it and go 'Nah' and change their vote. But now, which conservative Justice will be willing to change the vote and be labeled a traitor by the Right? I don't see anyone believing that pressure from the Left would influence the 5 conservative justices.

Roberts', playing the role of Chief Justice, #1 concern is the legitimacy of the court. I believe Robert will change his vote to the majority and assign the opinion to himself. He will not overturn Roe v. Wade but restrict it further.

Today? This is going to blow-up like nothing in our lifetime has.

5-4 overturning of 50 years of legal precedent on a contentious issue (with the court's decision being at odds with majority public sentiment) and will likely be perceived as a conservative-religious legal coup?

The court itself is totally fucked.

Sonya Sotomayer: “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? I don’t see how it is possible. I could name any other set of rights, including the Second Amendment by the way. There are many political people who believe the court erred in seeing this is a personal right as opposed to a militia right. If people actually believe that it's all political, how will we survive? How will the court survive?"

How will the nation survive?

[Culican]

Sonya Sotomayer: “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? I don’t see how it is possible. I could name any other set of rights, including the Second Amendment by the way. There are many political people who believe the court erred in seeing this is a personal right as opposed to a militia right. If people actually believe that it's all political, how will we survive? How will the court survive?"

That ship sailed a long long time ago. The Court has always been a political institution pretending to be above it all.

[JonA]

Except for Roberts. He seems quite in tune to public opinion especially given his vote switch on NFIB v Sebelius. I think it unlikely, but I even heard today that its possible Roberts leaked it himself, in the hopes of intimidating the 5 to join his concurrence where he would uphold the Mississippi law, but not go so far as overturning Roe.

I guess I don't see it. Leaking the draft opinion seems very destructive and disruptive for the court and violates the entire concept of an independent justice system. I don't think Roberts would through out the baby with the bath water like that. If he wanted to sway the other justices, he'd write the opinion himself and work behind the scenes to get support.

Do you really think Roberts (or any other) would try to intimidate other justices by stirring up a mob of external political pressure?

[EricK]

@omaniphil, thanks.

[aurelius]

That ship sailed a long long time ago. The Court has always been a political institution pretending to be above it all.

All political institutions are political. But it is a sliding scale. Throughout modern US history, the US Supreme Court has been perceived as above the fray. The perception of SCOTUS's role is what is at stake. Just as recently as 2000 SCOTUS decided a Presidential election and the country accepted their decision*. Will the country accept SCOTUS's decision in a 2024 Presidential election?

*It is unclear if SCOTUS even had the authority to weigh in on Presidential elections in such a manner. Al Gore chose to concede after SCOTUS issued the decision based on the perception of the court as an impartial arbiter of the law. He did not want to burn the house down. It was 5-4 conservative versus liberal justices' decision. And the nation did not burn. Perception is everything.

Basically, Republicans nominated justices whose sole qualification was conservative ideologues. Barrett at a law school graduation delivered a stark admonition to the future lawyers: She told them a law career was “but a means to an end. That end is building the kingdom of God. If you can keep in mind that your fundamental purpose in life is not to be a lawyer, but to know, love and serve God, you truly will be a different kind of lawyer.” WTF!!!!!!!!!!!!!!!! The Conservative Justices are too busy trying to force some kind of Judeo-Christian theocracy for the 20% of Americans that actually want that. So they are going to expend all of the courts credibility on quite frankly non-substantive issues like abortion and the separation of Church and State (they will essentially eliminate that). And then when we really need the for something important, like preventing a civil war by deciding the Presidency, they won't be able to do it.

[hector]

Well, this just happened: https://www.politico.com/news/2022/05/0 ... n-00029473
Politico is reporting that they have a draft opinion in Dobbs, where the Supreme Court, in a 5-4 opinion struck down Roe and Casey by taking a dagger to substantive due process.

Caveats are in order. This is a draft opinion and things may have changed since this was drafted (see for example NFIB v Sebelius), also who knows whether this is even legitimate.

Few thoughts in no particular order:
1) This shouldn't come as a surprise to anyone given the court makeup.
2) Roe v Wade was a terrible opinion that undermined the rule of law.
3) Overturning Roe is not going to fix anything, and is likely to just compound the error.
4) The leak is not good for society, and everybody who works at 1 First Street is going to need a rock solid alibi that it wasn't them who leaked it, because the leader is going to be hunted down. If it's a clerk they should be fired and disbarred, if it was a Justice, they should be impeached.
5) all the other cases thay rely on substantive due process are at risk - Lawrence v Texas, Obergefell, Loving (maybe - if I recall, they might have based that on the EPC as well) etc.

Is there a mechanism to hold a leaking justice accountable?
Since SC leaks are so rare, I'm guessing that even if there is that it's not recently tested.

Would make for interedting questions around separation of powers.

[omaniphil]

Is there a mechanism to hold a leaking justice accountable?
Since SC leaks are so rare, I'm guessing that even if there is that it's not recently tested.

Would make for interedting questions around separation of powers.

Justices can be impeached. Same process as for a president. House impeaches, Senate removes from office.