|
Stickman posted:A legislative solution is ALSO subject to the whims of the Supreme Court. Yeah, I'm 100% for codifying abortion rights in federal law, but the fact is any SCOTUS that would make the leaked decision could strike federal abortion rights down with far less violation of precedent. Still gotta do it, if just to prove outright that the court must be fixed.
|
#
?
May 4, 2022 03:08
|
|
|
|
| # ? May 17, 2024 20:10 |
|
|
Killer robot posted:Yeah, I'm 100% for codifying abortion rights in federal law, but the fact is any SCOTUS that would make the leaked decision could strike federal abortion rights down with far less violation of precedent. Still gotta do it, if just to prove outright that the court must be fixed. I feel like this is already sufficient proof that the Supreme Court has become nakedly political. I wonder if the dissent will be calling out how much this hurts the credibility of SCOTUS as a supposedly apolitical institution.
|
|
#
?
May 4, 2022 03:19
|
|
|
I'm not sure Dobbs is more political than Roe. Roe is political as hell. The legal reasoning is...labored, if we're being charitable. Roe happens to be the policy outcome we want, but it uses Rube Goldberg logic to get there. Alito is saying no, that's not in the Constitution, if you want that then you have to pass a law. The dicta may reek of Christian conservatism, but the legal principle there sure is a lot less nakedly political in nature.Killer robot posted:Yeah, I'm 100% for codifying abortion rights in federal law, but the fact is any SCOTUS that would make the leaked decision could strike federal abortion rights down with far less violation of precedent. Still gotta do it, if just to prove outright that the court must be fixed.
|
|
#
?
May 4, 2022 03:44
|
|
|
I see women are calling for nationwide sex protests in response to the Roe vs. Wade news. That's funny, I was under the impression these protests had been going on for the past five years.
|
|
#
?
May 4, 2022 03:48
|
|
|
Wizard Master posted:I see women are calling for nationwide sex protests in response to the Roe vs. Wade news. That's funny, I was under the impression these protests had been going on for the past five years. What? I thought it was ten. This is very disturbing.
|
|
#
?
May 4, 2022 03:50
|
|
|
I AM GRANDO posted:Supreme Court justices are appointed for life and can only be removed by a 2/3 vote by the senate. A simple congressional majority can do whatever they like, and there's nothing preventing them from reinterpreting something as vaguely worded as Article III. "Shall hold their offices during good behavior" is carrying a whole lot of weight but it means whatever Congress wants it to mean. And there's a whole lot of inventive possibilities available beyond simply impeaching each justice one by one. Replacing the group wholesale with a different Supreme Court, for example. Moving the justices to a different court. Charging them with ethical breaches and summarily firing them for bad behavior. Promoting every justice to janitor is a particular rules-lawyery favorite of mine. Reduce the purview of the court to pre-Marbury v. Madison. Implement term limits that boot out the oldest members and triage the damage being done to the institution. Defund the court, eliminate all the staff positions, and repurpose the building as the Smithsonian American Women's History Museum. Shrink / expand the court to dilute the stolen seats, or declare that Ketanji Brown Jackson is a) already a member of the court and b) wields five votes. None of those need 2/3 Senate votes - heck, some of them don't even need the Senate. Realistically, the only real limitation is the willingness to challenge the authority of an illegitimate body that is incompatible with a free democracy. I'm all in favor of resolving this critical issue through the ballot box and regular order, and I recognize that democrats need more than the slimmest of majorities to get it done. We absolutely should support them in order to avoid the chaos of directly challenging SCOTUS rule. But I also think the idea that an increasingly progressive society will have no alternative but accepting 50+ years of neo-Confederate rule by five oligarchs is unimaginative and frankly unrealistic. Kaal fucked around with this message at 04:02 on May 4, 2022 |
|
#
?
May 4, 2022 03:54
|
|
|
KOTEX GOD OF BLOOD posted:I'm not sure Dobbs is more political than Roe. Roe is political as hell. The legal reasoning is...labored, if we're being charitable. Roe happens to be the policy outcome we want, but it uses Rube Goldberg logic to get there. Alito is saying no, that's not in the Constitution, if you want that then you have to pass a law. The dicta may reek of Christian conservatism, but the legal principle there sure is a lot less nakedly political in nature. As I said before, Lopez and Morrison. They would argue that abortion is not an economic activity and does not substantially affect interstate commerce, and regulating it invades an area traditionally reserved to the states. I am imagining, however, some nonprofit that buses pregnant women from states where abortion is illegal to states where it isn't. That is interstate commerce, and it could probably be used to tear down the Texas abortion bounty hunting law.
|
|
#
?
May 4, 2022 04:04
|
|
|
An apolitical supreme court is a modern-day myth. The courts in Dredd Scott, Plessy, Chinese exclusion, Lochner and Wickard were all openly political.
|
|
#
?
May 4, 2022 04:08
|
|
|
KOTEX GOD OF BLOOD posted:I think this would be a pretty important addition to the thread, if you want to undertake it. I hate you for inspiring me to read this, but here you go. Remember that this is a summary, which I present in the original language as much as possible...but that I have also condensed a 98 page pdf into less than 30,000 characters. In fairness, after page 67 of the pdf it's all appendices of state laws banning abortion from the old days.  (Draft) Opinion! I’m still about 3 behind from the actual issued SCOTUS, but here’s the Alito draft opinion killing Roe v. Wade. Note that 1) this is a draft 2) there may be more OCR issues than usual, 3) the opinion is 98 pages long and I only have so many characters and 4) I have somewhat elided Alito’s more irrelevant-but-inflammatory statements and summarized everything overall, so this may read more or less coherently than the opinion in full.Dobbs v. Jackson TLDR: We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clauseofthe Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation's his- tory and tradition” and “implicit in the concept of ordered liberty.” The right to abortion docs not fall within this category. [Draft] Holding / Majority Opinion (Alito) Abortion presents a profound moral issue on which Americans hold sharply conflicting views. Some believe forvently that a human person comes into being at conception and that abortion ends an innocent life. Others feel just as strongly that any regulation of abortion invades a woman's right to control her own body and prevents women from achieving full equality. Still others in a third group think that abortion should be allowed under some but not all cir- cumstances, and those within this group hold a variety of views about the particular restrictions that should be imposed. For the first 185 years after the adoption of the Constitution, each State was permitted to address this issue in ac. cordance with the views of its citizens. Then, in 1973, this Court decided Roe v. Wade, 410 U. S. 113. Even though the Constitution makes no mentionofabortion, the Court held that it confers a broad right to obtain one. It did not claim that American law or the common law had ever recognized such a right, and its survey of history ranged from the constitutionally irrelevant (e.g. its discussionof abortion in antiquity) to the plainly incorrect (e.g, its assertion that abortion was probably never a crime under the common law). After cataloguing a wealth of other information having no bearing on the meaning of the Constitution, the opinion concluded with a numbered set of rules much like those that ‘might be found in a statute enacted by a legislature. … At the timeof Roe, 30 States still prohibited abortion at all stages. In the years prior to that decision, about a third of the States had liberalized their laws, but Roe abruptly ended that political process. It imposed the same highly restrictive regime on the entire Nation, and it effectively struck down the abortion laws of every single State. … Eventually, in Planned Parenthoodof Southeastern Pa. v. Casey, 505 U. S. 833 (1992), the Court revisited Roe, but the members of the Court split three ways….the three Justices who authored the controlling opinion [in Casey] “callled the contending sides of a national controversy to end their national division” by treating the Court's decision as the final settlement of the question of the constitutional right to abortion. As has become increasingly apparent in the intervening years, Casey did not achieve that goal….The State of Mississippi asks us to uphold the constitutionality of a law that generally prohibits an abortion after the fifteenth week of pregnancy—several weeks before the point at which a fetus is now regarded as “viable” outside the womb. In defending this law, the States primary argument is that we should reconsider and overrule Roe and Casey and once again allow each State to regulate abortion as its citizens wish. … We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation's history and tradition” and “implicit in the concept of ordered liberty.” The right to abortion does not fall within this category. Until the latter part of the 20th century, sucha right was entirely unknown in American law. Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortiona crime at all stages of pregnancy. The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment's protectionof “liberty.” Roe's defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called “fetal life” and what the law now before us describes as an “unborn human being" … It is time to heed the Constitution and return the issue of abortion to the people's elected representatives. “The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.” That is what the Constitution and the rule of law demand. … [I skip over the procedural history, because Mississippi passed this law to ban abortion and take their law to the Supreme Court, which happened.] … We begin by considering the critical question whether the Constitution, properly understood, confers a right to obtain an abortion…we address that question in three steps. First, we explain the standard that our cases have used in determining whether the Fourteenth Amendment's reference to “liberty” protects a particular right. Second, we examine whether the right at issue in this case is rooted in our Nation's history and tradition and whether it is an essential component of what we have described as “ordered liberty.” Finally, we consider whether a right to obtain an abortion is supported by other precedents. … Roe…was remarkably loose in its treatment of the constitutional text. It held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned. And that privacy right, Roe observed, had been found to spring from no fewer than five different constitutional provisions—the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. The Court's discussion left open at least three ways in which some combination of these provisions could protect the abortion right. One possibility was that the right was “founded . . . in the Ninth Amendment's reservation of rights to the people.” Another was that the right was rooted in the First, Fourth, or Fifth Amendment, or in some combination of those provisions, and that this right had been “incorporated” into the Due Process Clause of the Fourteenth Amendment just as many other Bill of Rights provisions had by then been incorporated.And a third path was that the First, Fourth, and Fifth Amendments played no role and that the right was simply a component of the “liberty” protected by the Fourteenth Amendment's Due Process Clause. Roe expressed the “feelling]" that the Fourteenth Amendment was the provision that did the work, but its message seemed to be that the abortion right could be found somewhere in the Constitution and that specifying its exact location was not of paramount importance. The Casey Court did not defend this unfocused analysis and instead grounded its decision solely on the theory that the right to obtain an abortion is part of the “liberty” protected by the Fourteenth Amendment's Due Process Clause. … [before going back there, Alito dismisses an Equal Protection claim as foreclosed by precedents, not counting the ones he’s about to overrule, and saying that the fact that only people-with-wombs etc. can have an abortion does not trigger sex-based intermediate scrutiny.] . The regulation of a medical procedure that only one sex can undergo does not trigger heightened constitutional scrutiny unless the regulation is a “mere pretext(] designed to effect an invidious discrimination against membersof one sex or the other.” And, as the Court has stated, the “goal of preventing abortion” does not constitute “invidiously discriminatory animus against women." … The underlying theory on which this argument [from Casey] rests— that the Fourteenth Amendment's Due Process Clause provides substantive, as well as procedural, protection for “liberty’—has long been controversial. But our decisions have held that the Due Process Clause protects two categories of substantive rights. The first consists of rights guaranteed by the first eight amendments. Those amendments originally applied only to the federal government, but this Court has held that the Due Process Clause of the Fourteenth Amendment “incorporates” the great majority of those rights and thus makes them equally applicable to the States. The second category—which is the one in question here—comprises a select list of fundamental rights that are not mentioned anywhere in the Constitution. In deciding whether a right falls into either of these categories, the Court has long asked whether the right is “deeply rooted in [our] history and tradition” and whether it is essential to our Nation's “scheme of ordered Liberty.” … [Alito wants to look historically and thinks that’s very important here.] In interpreting what is meant by the Fourteenth Amendment’s reference to “liberty,” we must guard against the natural human tendency to confuse what that Amendment protects with our own ardent views about the liberty that Americans should enjoy. That is why the Court has long been “reluctant” to recognize rights that are not mentioned in the Constitution. “Substantive due process has at times been a treacherous field for this Court,” and it has sometimes led the Court to usurp authority that the Constitution entrusts to the people's elected representatives. As the Court cautioned in Glucksberg, “[wle must... exercise the utmost care whenever we are asked to break new ground in this field, lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court.” [no further comment] On occasion, when the Court has ignored the “[alppropriate limits’ imposed by “respect for the teaching of history,” it has fallen into the freewheeling judicial policymaking that characterized discredited decisions such as Lochner v. New York, 198 U. S. 45, 25 (1905). The Court must not fall prey to such an unprincipled approach. Instead, guided by the history and tradition that ‘map the essential components of our Nation's concept of ordered liberty, we must ask what the Fourteenth Amendment means by the term “liberty.” When we engage in that inquiry in the present case, the clear answer is that the Fourteenth Amendment does not protect the right to an abortion. Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. Zero. None. No state constitutional provision had recognized such a right. Until a few years before Roe was handed down, no federal or state court had recognized such a right. … Not only was there no support for such a constitutional right until shortly before Roe, but abortion had long been a erime in every single State. At common law, abortion was criminal in at least some stages of pregnancy and was regarded as unlawful and could have very serious conse- quences at all stages. American law followed the common law until a wave of statutory restrictions in the 1800s expanded criminal liability for abortions. By the time of the adoption of the Fourteenth Amendment, three-quarters of the States had made abortion a crime at any stage of pregnancy, and the remaining States would soon follow. … [I will skip a lot of history asserted by Alito here, which I understand to be at least debated.] … Instead of seriously pressing the argument that the abortion right itself has deep roots, supportersofRoe and Casey contend that the abortion right is an integral part of a broader entrenched right. Roe termed this a right to privacy, and Casey described it as the free- dom to make “intimate and personal choices” that are “central to personal dignity and autonomy”. Casey elaborated: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the uni- verse, and of the mystery of human life.” The Court did not claim that this broadly framed right is absolute, and no such claim would be plausible. While individuals are certainly free to think and to say what they wish about “existence,” “meaning,” the “universe,” and “the mystery of human life,” they are not always free to act in accordance with those thoughts. License to act on the basis of such beliefs may correspond to one of the many understandings of “liberty,” but it is certainly not “ordered liberty.” … Our Nation's historical understanding of ordered liberty does not prevent the people's elected representatives from deciding how abortion should be regulated. Nor does the right to obtain an abortion have a sound basis in precedent. Casey relied on cases involving the right to marry a person of a different race, the right to marry while in prison, the right to obtain contraceptives, the right to reside with relatives, the right to make decisions about the education of one's children; the right not to be sterilized without consent; and the right in certain circumstances not to undergo involuntary surgery, forced administration of drugs, or other substantially similar procedures. Respondents and the Solicitor General also rely on post-Casey decisions like Lawrence v. Texas, 539 U. S. 558 (2008) (right to engage in private, consensual sexual acts), and Obergefell v. Hodges, 576 U. S. 644 (2015) (right to marry a person of the same sex). … What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abortion destroys what those decisions call “potential life” and what the law at issue in this case regards as the life of an “unborn human being.” None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion. They are therefore inapposite. They do not support the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way. … We next consider whether the doctrine of stare decisis counsels continued acceptanceofRoe and Casey. Stare decisis plays an important role in our case law, and we have explained that it serves many valuable ends. It protects the interests of those who have taken action in reliance on a past decision. It “reduces incentives for challenging settled precedents, saving parties and courts the expense of endless relitigation.” It fosters “evenhanded” decision making by re- quiring that like cases be decided in a like manner. It “contributes to the actual and perceived integrity of the judicial pro- cess.” And it restrains judicial hubris and reminds us to respect the judgment of those who grappled with im- portant questions in the past. “Precedent is a way of accumulating and passing down the learning of past generations, a font of established wisdom richer than what can be found in any single judge or panel of judges.” We have long recognized, however, that stare decisis is “not an inexorable command,” and it “is at its weakest when we interpret the Constitution,” It has been said that it is sometimes more important that an issue “be settled than that it be settled right.” But when it comes to the interpretation of the Constitution—the “great charter of our liberties,” which was meant “to endure through a long lapse of ages,”—we place a high value on having the matter “set- tled right.” In addition, when one of our constitutional decisions goes astray, the country is usually stuck with the bad decision unless we correct our own mistake. An erroneous constitutional decision can be fixed by amending the Constitution, but our Constitution is notoriously hard to amend. Therefore, in appropriate circumstances we must be willing to reconsider and if necessary overrule constitutional decisions. Some of our most important constitutional decisions have overruled prior precedents. We mention three. In Brown. v. Board of Education, the Court repudiated the “separate but equal” doctrine, which had allowed States to maintain racially segregated schools and other facilities. In so doing, the Court overruled the infamous decision in Plessy v. Ferguson, 163 U. S. 537 (1896), along with six other Supreme Court precedents that had applied the separate-but-equal rule. [I will skip the other 2, but I wanted to point out that Alito is putting this up next to Brown v. Board of Education.] No Justice of this Court has ever argued that the Court should never overrule a constitutional decision, but overruling a precedent is a serious matter. It is not a step that should be taken lightly. Our cases have attempted to provide a framework for deciding when a precedent should be overruled, and they have identified factors that should be considered in making such a decision. In this case, five factors weigh strongly in favor of over. ruling Roe and Casey: the nature of their error, the quality of their reasoning, the “workability” of the rules they im- posed on the country, their disruptive effect on other areas of the law, and the absence of concrete reliance. … Roe was on a collision course with the Constitution from the day it was decided, and Casey perpetuated its errors, and the errors do not concern some arcane corner of the law of little importance to the American people. Rather, welding nothing but “raw judicial power,” the Court usurped the power to ad- dress a question of profound moral and social importance that the Constitution unequivocally leaves for the people. Casey described itself as calling both sides of the national controversy to resolve their debate, but in doing so, Casey necessarily declared a winning side. Those on the losing side—those who sought to advance the state's interest in fetal life—could no longer seek to persuade their elected representatives to adopt policies consistent with their views. The Court short-circuited the democratic process by closing it to the large number of Americans who dissented in any respect from Roe. “Roe fanned into Life an issue that has inflamed our national politics in general, and has obscured with its smoke the selectionofJustices to this Court in particular, ever since.” Together, Roe and Casey represent an error that cannot be allowed to stand. … Roe found that the Constitution implicitly conferred a right to obtain an abortion, but it failed to ground its decision in text, history,or precedent. It relied on an erroneous historical narrative; it devoted great attention to and pre- sumably relied on matters that have no bearing on the ‘meaning of the Constitution; it disregarded the fundamental difference between the precedents on which it relied and the question before the Court; it concocted an elaborate set of rules, with different restrictions for each trimester of pregnancy, but it did not explain how this veritable code could be teased out of anything in the Constitution, the history of abortion laws, prior precedent, or any other cited source; and its most important rule (that States cannot protect fetal life prior to “viability”) was never raised by any party and has never been plausibly explained. Ros reasoning quickly drew scathing scholarly criticism, even from supportersofbroad access to abortion. … Our precedents counsel that another im- portant consideration in deciding whether a precedent should be overruled is whether the rule it imposes is workable—that is, whether it can be understood and applied in a consistent and predictable manner. Casey's “undue burden test'' has scored poorly on the workability scale. Problems begin with the very concept of an “undue burden.” As Justice Scalia noted in his Casey dissent, determining whether a burden is “due” or “undue” is “inherently standardless.” … Casey's “undue burden” test has proven to be unworkable. “[Plucked from nowhere,” it “seems calculated to perpetuate give-it-a-try litigation” before judges assigned an unwieldy and inappropriate task. Continued adherence to that standard would undermine, not advance, the “even- handed, predictable, and consistent development of legal principles.” Roe and Casey have led to the distortion of many important but unrelated legal doctrines, and that effect provides further support for overruling those decisions. Members of this Court have repeatedly lamented that “no legal rule or doctrine is safe from ad hoc nullification by the Court when an occasion for its application arises in a case involving state regulation of abortion.” The Courts abortion cases have diluted the strict standard for facial constitutional challenges. They have ignored the Court's third-party standing doctrine. They have disregarded standard res judicata principles. They have flouted the ordinary rules on the severability of unconstitutional provisions, as well as the rule that statutes should be read where possible to avoid unconstitutionality. And they have distorted First Amendment doctrines. When vindicating a doctrinal innovation requires courts to engineer exceptions to longstanding background rules, the doctrine “has failed to deliver the ‘principled and inteligible’ development of the Law that stare decisis purports to secure.” We last consider whether overruling Roe and Casey will upend substantial reliance interests. Traditional reliance interests arise “when advance planning of great precision is most obviously a necessity.” In Casey, the controlling opinion conceded that those traditional reliance interests were not implicated because getting an abortion is generally “unplanned activity,” and “reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions.”For these reasons, we agree with the Casey plurality that conventional, concrete reliance interests are not present here. … We must now decide what standard will governif state abortion regulations undergo constitutional challenge and whether the law before us satisfies the appropriate standard. Under our precedents, rational-basis review is the appro- priate standard for such challenges. As we have explained, ‘procuring an abortion is not a fundamental constitutional right because sucha right has no basis in the Constitution's text or in our Nation's history. It follows that the States may regulate abortion for logit- imate reasons, and when such regulations are challenged ‘under the Constitution, courts cannot “substitute their social and economic beliefs for the judgment of legislative bodies.” … A law regulating abortion, like other health and welfare laws, is entitled to a “strong presumption of validity.” It must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests. These legitimate interests include respect for and preservation of prenatal life at all stages of development; the protection of maternal health and safety; the elimination of particularly gruesome or barbaric medical procedures; the preservation of the integrity of the medical profession; the mitigation of fetal pain; and the pre- vention of discrimination on the basis of race, sex, or disability. These legitimate interests justify Mississippi's Gestational Age Act. Except “in a medical emergency or in the case of a severe fetal abnormality,” the statute prohibits abortion “if the probable gestational age of the unborn human being has been determined to be greater than fifteen (15) weeks.” The Mississippi Legislature's findings recount the stages of human prenatal development” and assert, the State's interest in “protecting the life of the unborn.” The legislature also found that abortions performed after fifteen weeks typically use the dilation and evacuation procedure, and the legislature found theuseofthis procedure “for non- therapeutic or elective reasons [to be] a barbaric practice, dangerous for the maternal patient, and demeaning to the medical profession.” These legitimate interests provide a rational basis for the Gestational Age Act, and it follows that respondents’ constitutional challenge must fail. ‘We end this opinion where we began. Abortion presents a profound moral question. The Constitution does not prohibit the citizensofeach State from regulating or prohibit- ing abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives. The judgment of the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Lineup: Officially unknown, but widely assumed to be Alito, joined by Thomas, Gorsuch, Kavanaugh, and Barrett. Concurrence in the judgment and dissent in part expected by Roberts. Dissents expected by one or more of Kagan, Breyer, and Sotomayor. Probable weirdo concurrences by up to 5 of the majority group. https://s3.documentcloud.org/documents/21835435/scotus-initial-draft.pdf
|
|
#
?
May 4, 2022 04:16
|
|
|
If there aren't at least two concurrences in the final outcome I'll be shocked. One mildly handwringy concurrence-in-part from Roberts and at least one "this ruling didn't go far enough, I would outlaw THE MOON," probably from Thomas.
|
|
#
?
May 4, 2022 04:27
|
|
|
KOTEX GOD OF BLOOD posted:I think this would be a pretty important addition to the thread, if you want to undertake it. Honestly the more I think about it the more I think you’re wrong. The lawyers can read the original and the people who want to blame the Democrats for the votes of justices nominated by republican presidents won’t read either.
|
|
#
?
May 4, 2022 04:29
|
|
|
KOTEX GOD OF BLOOD posted:The legal reasoning is...labored, if we're being charitable. Roe happens to be the policy outcome we want, but it uses Rube Goldberg logic to get there. Why do you think this?
|
|
#
?
May 4, 2022 05:51
|
|
|
Dameius posted:Why do you think this? If I had to guess: it's because there's only very tenuous support for the idea that abortion is a thing that would be constitutionally guaranteed. Watching it from outside the US, I feel sick seeing what's happening, but I think it's clear that the grand and holy Constitution of the United States of America... probably doesn't give a gently caress about abortion, or marriage equality. It shouldn't have to. You should join the civilized loving world and simply allow it by legislative power and common sense instead of torturing a lovely document written by slaveholders near enough to three centuries ago to make it mean what you think it should mean. That's not law; at this point, it's being treated like scripture, including the way in which it's being treated to suit any specific person's preconceptions of what is right and wrong. It's absurd.
|
|
#
?
May 4, 2022 05:59
|
|
|
Love that bit in the draft about protecting maternal health. Dipshit. From my understanding a major reason Roe is commonly held to be weakly argued is... RBG, who wanted to make a ruling on abortion rights based on equal protection rather than privacy. It's a frustrating topic since most people saying it's poorly argued just go 'penumbras lol'. Having a chain of logic two-three steps long is not some incomprehensible logic chopping. Implicit right to privacy, implicit right to autonomy, implicit right to abortions.
|
|
#
?
May 4, 2022 06:26
|
|
|
Foxfire_ posted:Another sketchy thing with Alito's "no historical right to abortion" is that there is absolutely a historical right to hire medical care. Hypothetical founding father wouldn't be okay with banning otherwise useful medical procedures for moral reasons. The right isn't going to let minor things like Ben Franklin helping to create America's first hospital; or Washington, Jefferson, Franklin, etc all being very loud supporters of smallpox vaccination (including mandatory vaccination) get in the way of their personal ideological goals.
|
|
#
?
May 4, 2022 06:28
|
|
|
Didn't the classical western civilizations extinct an abortifacient plant because they loved it so much? Seems like there's plenty of historical precedent for abortion being normal and fine. Not to mention that the Bible specifically says that a fetus is worth less than a human life, and Islamic jurisprudence holds that, while abortion might be a sin, it's not subject to civil or criminal sanction; like having a wank, really.
|
|
#
?
May 4, 2022 06:35
|
|
|
https://twitter.com/nandoodles/status/1521581893438754817?s=20&t=bBkbcemiUDEsGEWEla9JdQ
|
|
#
?
May 4, 2022 06:45
|
|
|
Jesus, looking at that thread was a massive self-esteem boost. Holy gently caress, do you become revolting and unfuckable before deciding to poo poo on reproductive freedom, or does it happen as a consequence?
|
|
#
?
May 4, 2022 06:53
|
|
|
PT6A posted:Jesus, looking at that thread was a massive self-esteem boost. Holy gently caress, do you become revolting and unfuckable before deciding to poo poo on reproductive freedom, or does it happen as a consequence? Clearly there's no studies done but looking at people like Steven Miller I have no idea how anyone doesn't come to the conclusion that hate warps your appearance
|
|
#
?
May 4, 2022 06:59
|
|
|
PT6A posted:Didn't the classical western civilizations extinct an abortifacient plant because they loved it so much? Seems like there's plenty of historical precedent for abortion being normal and fine. Not to mention that the Bible specifically says that a fetus is worth less than a human life, and Islamic jurisprudence holds that, while abortion might be a sin, it's not subject to civil or criminal sanction; like having a wank, really. Yes, silphium. Alito calls this "constitutionally irrelevant" on p. 2 of his opinion, which you can read in the summary from ulmont here: ulmont posted:For the first 185 years after the adoption of the Constitution, each State was permitted to address this issue in ac. cordance with the views of its citizens. Then, in 1973, this Court decided Roe v. Wade, 410 U. S. 113. Even though the Constitution makes no mentionofabortion, the Court held that it confers a broad right to obtain one. It did not claim that American law or the common law had ever recognized such a right, and its survey of history ranged from the constitutionally irrelevant (e.g. its discussionof abortion in antiquity) to the plainly incorrect (e.g, its assertion that abortion was probably never a crime under the common law). Again, toward the end, with a specificity of "our nation's history": quote:As we have explained, ‘procuring an abortion is not a fundamental constitutional right because such a right has no basis in the Constitution's text or in our Nation's history When he says history, apparently only the past 235 years of US history and common law are acceptable. So, in this case, history matters... except when it doesn't.
|
|
#
?
May 4, 2022 09:23
|
|
|
The idea that Roe was on shaky constitutional grounds is something I disagree with as well. Although the constitution doesn’t explicitly say there is a right to privacy, every right granted therein is some form of “stay out of my personal affairs.” The founders contemporary writings support the same. A woman wanting to get birth control is a directly analogous situation to every explicit right. That’s the core holding to Griswold v Connecticut on which Roe is built.
|
|
#
?
May 4, 2022 13:02
|
|
|
Mr. Nice! posted:The idea that Roe was on shaky constitutional grounds is something I disagree with as well. Although the constitution doesn’t explicitly say there is a right to privacy, every right granted therein is some form of “stay out of my personal affairs.” 1. Agreed. 2. Although nobody seems to care, the constitution does explicitly say that there are other protected rights it isn’t going to put down in text.
|
|
#
?
May 4, 2022 13:07
|
|
|
Mr. Nice! posted:The idea that Roe was on shaky constitutional grounds is something I disagree with as well. Although the constitution doesn’t explicitly say there is a right to privacy, every right granted therein is some form of “stay out of my personal affairs.” The founders contemporary writings support the same. A woman wanting to get birth control is a directly analogous situation to every explicit right. That’s the core holding to Griswold v Connecticut on which Roe is built. It's also a concurrence in Roe. quote:Three justices from the majority filed concurring opinions in the case. Justice Potter Stewart wrote a concurring opinion in which he said that even though the Constitution makes no mention of the right to choose to have an abortion without interference, he thought the Court's decision was a permissible interpretation of the doctrine of substantive due process, which says that the Due Process Clause's protection of liberty extends beyond simple procedures and protects certain fundamental rights.[93][6] Justice William O. Douglas's concurring opinion described his view that although the Court was correct to find that the right to choose to have an abortion was a fundamental right, he thought it would have been better to derive it from the Ninth Amendment—which states that the fact that a right is not specifically enumerated in the Constitution shall not be construed to mean that American people do not possess it—rather than through the Fourteenth Amendment's Due Process Clause edit: hah, the decision in Roe was *also* leaked in advance quote:On January 22, 1973, the Supreme Court issued a 7–2 decision in favor of "Jane Roe" (Norma McCorvey) holding that women in the United States had a fundamental right to choose whether to have abortions without excessive government restriction and striking down Texas's abortion ban as unconstitutional. The decision was issued together with a companion case, Doe v. Bolton, which involved a similar challenge to Georgia's abortion laws.
|
|
#
?
May 4, 2022 13:29
|
|
|
Mr. Nice! posted:The idea that Roe was on shaky constitutional grounds is something I disagree with as well. Although the constitution doesn’t explicitly say there is a right to privacy, every right granted therein is some form of “stay out of my personal affairs.” The founders contemporary writings support the same. A woman wanting to get birth control is a directly analogous situation to every explicit right. That’s the core holding to Griswold v Connecticut on which Roe is built. But I am a fan of codifying abortion into the constitution, because it should be protected by explicit words and not inferences. The wording I've always liked would be: code:ulmont posted:1. Agreed. ilkhan fucked around with this message at 14:09 on May 4, 2022 |
|
#
?
May 4, 2022 14:06
|
|
|
Mr. Nice! posted:The idea that Roe was on shaky constitutional grounds is something I disagree with as well. Although the constitution doesn’t explicitly say there is a right to privacy, every right granted therein is some form of “stay out of my personal affairs.” The founders contemporary writings support the same. A woman wanting to get birth control is a directly analogous situation to every explicit right. That’s the core holding to Griswold v Connecticut on which Roe is built. Just as important as Griswold when it comes to important decisions based on the right of "stay out of my personal affairs" is what Alito describes as "the right in certain circumstances not to undergo involuntary surgery, forced administration of drugs, or other substantially similar procedures, Winston v. Lee, 470 U. S. 753 (1985), Washington v. Harper, 494 U. S. 210 (1990), Rochin v. California, 342U. S. 165 (1952)." Forced birth is obviously comparable to forced surgery or other forced medical procedures, and by forcing women to birth a fetus that they would have otherwise had aborted in a much less invasive way, anti-choice laws would seem to pretty clearly violate the right to not have medical procedures forced on your body without your consent. Also, ulmont, good summary but imo you missed one very important paragraph, which I will bold here in between two paragraphs you did include: quote:Our Nation's historical understanding of ordered liberty does not prevent the people's elected representatives from deciding how abortion should be regulated. Nor does the right to obtain an abortion have a sound basis in precedent. Casey relied on cases involving the right to marry a person of a different race, the right to marry while in prison, the right to obtain contraceptives, the right to reside with relatives, the right to make decisions about the education of one's children; the right not to be sterilized without consent; and the right in certain circumstances not to undergo involuntary surgery, forced administration of drugs, or other substantially similar procedures. Respondents and the Solicitor General also rely on post-Casey decisions like Lawrence v. Texas, 539 U. S. 558 (2008) (right to engage in private, consensual sexual acts), and Obergefell v. Hodges, 576 U. S. 644 (2015) (right to marry a person of the same sex). In my opinion this matters a lot because of what he writes earlier in the draft: quote:We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation's history and tradition” and “implicit in the concept of ordered liberty.” Combined, these two sections say: when it comes to unenumerated rights, only those that are deeply rooted in history are protected, and none of the privacy rights is deeply rooted in history. When he throws in his consolation paragraph (no. 3 in the first quote) saying abortion is different, we promise, that would seem to be directly contradicted by his more fundamental arguments that privacy rights are not protected by the Constitution, and therefore that all the rights he names as precedents used in support of Roe are also liable to challenge.
|
|
#
?
May 4, 2022 14:14
|
|
|
vyelkin posted:Also, ulmont, good summary but imo you missed one very important paragraph, which I will bold here in between two paragraphs you did include: I didn't miss it, I just don't think it's important. He's already hammered the "if there wasn't a constitutional right for it before 1950 , I don't care about it" point.
|
|
#
?
May 4, 2022 14:31
|
|
|
Mr. Nice! posted:The idea that Roe was on shaky constitutional grounds is something I disagree with as well. Although the constitution doesn’t explicitly say there is a right to privacy, every right granted therein is some form of “stay out of my personal affairs.” The founders contemporary writings support the same. A woman wanting to get birth control is a directly analogous situation to every explicit right. That’s the core holding to Griswold v Connecticut on which Roe is built. Anyone who thinks there's no inherent right to privacy almost certainly has some extremely oppressive views about the 4th Amendment as well. The gently caress do they think that amendment gives if not an expectation of privacy (unless a warrant is issued)? ilkhan posted:But I am a fan of codifying abortion into the constitution, because it should be protected by explicit words and not inferences. The wording I've always liked would be: Get the gently caress out of here with this horseshit. I get why you would like it but privatizing healthcare is vile as is supporting such a system. Evil Fluffy fucked around with this message at 14:40 on May 4, 2022 |
|
#
?
May 4, 2022 14:35
|
|
|
Evil Fluffy posted:Get the gently caress out of here with this horseshit. I get why you would like it but privatizing healthcare is vile as is supporting such a system.
|
|
#
?
May 4, 2022 14:39
|
|
|
I hate the reasoning of Griswold, because its emanational penumbras approach invites the sort of scrutiny and reversal that's now under way; I think the concurrences all make good points about how to secure privacy rights more clearly in the constitutional text. I'd also rather the rights associated were more specifically and clearly delineated, rather than flowing through privacy, which has a lot of open questions about scope.
|
|
#
?
May 4, 2022 14:54
|
|
|
Do you think they would not come up with some other bullshit or? Any and all quibbles about the phrasing and reasoning of these judicial decisions ignores the realities of power at play
|
|
#
?
May 4, 2022 14:55
|
|
|
I think part of the problem is that our laws don't reflect reality in the way people actually experience it. Most of the arguments in favor of people having rights are fundamentally that it's good for people to have them. Articulating that in some kind of non-normative way is incredibly difficult, though. The courts of the past were tasked with explaining why it's good and right for people to have self-determination and autonomy using a framework that was 200 years out of date with the restriction that they weren't able to say what a person would actually think, and instead derive some kind of precedent to appease nitpicky fuckers who hate everything that isn't them. In a functional ideal society, the supreme court wouldn't be given the job of creating rights when congress and the public would do that, but we don't have a functional congress and the public will to do good things for other people is somewhat lacking, so we end up with stuff like Roe and Griswold. They're not exceptionally sound arguments because it's impossible for them to be. It's a case of people trying to do the right thing without any of the tools to do it, because the people who do have those tools won't use them.
|
|
#
?
May 4, 2022 15:04
|
|
|
Harold Fjord posted:Do you think they would not come up with some other bullshit or? “Never believe that conservatives are completely unaware of the absurdity of their replies. They know that their remarks are frivolous, open to challenge. But they are amusing themselves, for it is their adversary who is obliged to use words responsibly since he believes in words. The conservatives have the right to play. They even like to play with discourse for, by giving ridiculous reasons, they discredit the seriousness of their interlocutors. They delight in acting in bad faith, since they seek not to persuade by sound argument but to intimidate and disconcert. If you press them too closely, they will abruptly fall silent, loftily indicating by some phrase that the time for argument is past.”
|
|
#
?
May 4, 2022 15:05
|
|
|
Heck Yes! Loam! posted:“Never believe that conservatives are completely unaware of the absurdity of their replies. They know that their remarks are frivolous, open to challenge. But they are amusing themselves, for it is their adversary who is obliged to use words responsibly since he believes in words. The conservatives have the right to play. They even like to play with discourse for, by giving ridiculous reasons, they discredit the seriousness of their interlocutors. They delight in acting in bad faith, since they seek not to persuade by sound argument but to intimidate and disconcert. If you press them too closely, they will abruptly fall silent, loftily indicating by some phrase that the time for argument is past.” Yes, exactly, thank you. There is no magic phrasing you can use to prevent these assholes from doing what they please.
|
|
#
?
May 4, 2022 15:07
|
|
|
Harold Fjord posted:Do you think they would not come up with some other bullshit or? Yeah I don’t understand why folks are taking the bait that any argument from this ruling is legitimate when the entire Supreme Court itself is not. It is inherently a politicized branch of the government, just like the other branches, and therefor any reasoning that is determine is based on the whims of unelected lifetime appointments. Taking the bait to uphold an inherently corrupt system as something that is deserving of respect is silly. Thought experiment: if the justices just said “abortion is illegal because we said so”, what would effectively change?
|
|
#
?
May 4, 2022 15:14
|
|
|
virtualboyCOLOR posted:Yeah I don’t understand why folks are taking the bait that any argument from this ruling is legitimate when the entire Supreme Court itself is not. The text in the fundraising emails the DNC send out.
|
|
#
?
May 4, 2022 15:22
|
|
|
Dameius posted:The text in the fundraising emails the DNC send out. Not by much
|
|
#
?
May 4, 2022 16:29
|
|
|
ilkhan posted:Carry permits are a good example of systemic racism. https://hwfo.substack.com/p/explaining-systemic-racism-to-the?s=r Pro-gun conservatives end up looking like the champions to end the left's systemic racism in this case lol.
|
|
#
?
May 4, 2022 16:53
|
|
|
Sydin posted:Yeah just peaking at this map Florida, Virginia, Montana, Wyoming, Missouri, potentially Wisconsin and Iowa could all quickly see full bans on abortion sweep into place as well. Still catching up on the thread, but this map is definitely not accurate. Wisconsin, for example, has a law dating back to 1849 on the books stating that abortion is illegal except for life of the mother. The moment the Roe decision drops, all abortion services stop.
|
|
#
?
May 4, 2022 17:08
|
|
|
Sydin posted:Take a look at what happened to India Walton if you want to see just how far the Dem establishment is willing to go to subvert democracy to keep the left down and their own in power. What happened was that she lost the general election by 20 percentage points. Acting like she should have just won despite clearly losing leaves you in no position to accuse others of subverting democracy. Other than stamping your feet to make a point, there's never been a great reason to insist that the only valid candidate in the primary is one who's unelectable in the general, unless there's no hope that anyone in the primary could win in the general. It's abysmal realpolitik. This sort of feeling rears its head every time Manchin pulls a Manchin and singlehandedly stops Congress from passing any useful legislation, but the fact is that he's produced far more votes in favor of Obama and Biden judicial nominees than you'd get if you primaried him and effectively replaced him with a Republican. Piell posted:Alito's dumbfuck opinion basically says that there literally has to be the words "you have the right to X" for it to be protected by the Constitution. By that logic, Citizens United is no longer good law, because nothing in the Constitution says that rights extend to corporations, or that "the people" means anything other than natural persons. TheDeadlyShoe posted:The theocrats already vote anyway. That's how we got in this situation to begin with. Exactly this. It's not going to be particularly easy for them to increase turnout on their side when practically everyone who supports them is already voting. That's why they're engaging in vote-suppression shenanigans instead. vyelkin posted:My expectation is that the right is preemptively preparing legal challenges to blue state abortion laws to argue fetal personhood in front of the 5-4 Supreme Court. There's not really anything that SCOTUS can do to compel (for example) California to prosecute people it doesn't want to prosecute. Stickman posted:A legislative solution is ALSO subject to the whims of the Supreme Court. So how much would the Supreme Court have to overstep for the other branches to go "we thank the Court for its advisory, non-binding opinion" and just ignore a ruling that is obviously not based in law? Not that I particularly want to find out, because that is squarely in constitutional-crisis territory. Mr. Nice! posted:Although the constitution doesn’t explicitly say there is a right to privacy, every right granted therein is some form of “stay out of my personal affairs.” "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" is the right to privacy. It doesn't have to use the word "privacy" to be an explicit guarantee of privacy; otherwise there's similarly no right against self-incrimination, because "incriminate" doesn't appear anywhere in the Fifth.
|
|
#
?
May 4, 2022 17:24
|
|
|
|
| # ? May 17, 2024 20:10 |
|
|
tagesschau posted:So how much would the Supreme Court have to overstep for the other branches to go "we thank the Court for its advisory, non-binding opinion" and just ignore a ruling that is obviously not based in law? Not that I particularly want to find out, because that is squarely in constitutional-crisis territory.
|
|
#
?
May 4, 2022 17:32
|
|
