Roe vs Wade vs SCOTUS legitimacy

[Dill]

Doesn't look like anyone has posted on this yet. It deserves its own thread.

I am especially interested here in following/comparing the competing interpretations of the Constitution and Constitutional Law which will follow from the challenge to Roe. But I am also interested in the social/political consequences of overturning Roe. How would that affect the 2022 elections? Would it enable Dems to keep the Senate and House?

Critical Moment for Roe, and the Supreme Court’s Legitimacy
https://www.nytimes.com/2021/12/04/us/mississippi-supreme-court-abortion-roe-v-wade.html

WASHINGTON — Donald J. Trump, who appointed three Supreme Court justices while president, vowed that they would help overturn Roe v. Wade, the 1973 decision that established a constitutional right to abortion. In arguments on Wednesday, there were more than a few signs that Mr. Trump had succeeded.

The court’s three Democratic-appointed justices, sounding anguished and angry, said that overruling Roe soon after a bare-knuckled political campaign to change the court’s membership would represent a tipping point, one from which the court’s legitimacy could not recover.

“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?” Justice Sonia Sotomayor asked.

If the Supreme Court is perceived to be made up of politicians rather than judges, Justice Stephen G. Breyer said, “that’s what kills us as an American institution.”

The case illuminates competing and shifting conceptions of the role of the court. For decades, conservatives have argued that Roe amounted to judicial activism, announcing a right not found in the Constitution and overriding the political process to achieve an outcome that politicians would not.

Now, after nearly half a century in which that right has been woven into the societal fabric, the argument may have come full circle, with many liberals saying that a decision by the court to eliminate the right to abortion would amount to flagrant political activism.

Both arguments are grounded in concerns about the court’s legitimacy, which were brought into sharper focus by Wednesday’s proceedings.

[GMDino]

I posted about it (kind of) in another abortion thread:

Quote:I didn't want to start another thread about eh Supreme Court taking up the Mississippi abortion case because who needs ther htread of us all agreeing to disagree...right?   


All seriousness aside this is indeed disturbing.

Truly one of the most disturbing things I’ve witnessed in a long time. A Congressman, in a bid to overturn Roe V Wade and deny American women reproductive rights. Publicly referred to them as “Earthen vessels, sanctified by Almighty God.” Give me strength. pic.twitter.com/LvYM46GRVN

— Dr. Jennifer Cassidy (@OxfordDiplomat) December 3, 2021

Why don't women just learn their roles as defined by a god in a book written over 2000 years ago? Women have to stop pretending they have "autonomy" and "rights" like regular human being do!    


Note for the back row:  I'm joking.  He's an idiot who believes what he says.

[Sociopathicsteelerfan]

It's known that I am pro-choice. That being said these blatant attempts to tar the court politically to strong arm them into a certain decision are as dangerous to the fabric of our democracy as anything Trump ever did, it's just a bit more subtle. From Schumer flat out threatening the court;

https://www.nbcnews.com/politics/supreme-court/rare-rebuke-chief-justice-roberts-slams-schumer-threatening-comments-n1150036

to Sotomayor's recent comments, to Robert Reich's typical garbage;

https://www.theguardian.com/commentisfree/2021/dec/03/no-doubt-us-supreme-court-partisan-hacks

it's all text book strong arm tactics. As the article in OP states, Roe could easily be seen as judicial activism as well.


Also, for clarification purposes, what is at stake in the Mississippi law is that they set the cut off line at 15 weeks instead of 23 or 24 weeks. Which begs the obvious question, why is 24 weeks ok but 15 is not? Playing devil's advocate, is four months, or more realistically three as a woman may not realize she is pregnant right away, not enough time to come to a decision on whether to have an abortion or not? So regardless of the decision in this case Roe is at no risk of being struck down. Now the Texas law is a completely different matter, but it's also not the topic at hand.

[Belsnickel]

I just get pissed off with this issue because prior to the founding of the Moral Majority, evangelicals were pro-choice. Then, in an effort to switch their reasoning for having their private schools from segregation to religious freedom, they founded MM and created this issue. No joke. The pro-life movement was about racism and now it is getting to the point that Roe will be overturned because it is a movement that got out of hand.

[Fan_in_Kettering]

Shouldn’t this have been a Tenth Amendment issue all along?

[Belsnickel]

(12-04-2021, 04:47 PM)Fan_in_Kettering Wrote: Shouldn’t this have been a Tenth Amendment issue all along?

Negative, Ghostrider. This is a matter of civil liberties, individual freedoms and what not. It is the role of the federal government to guarantee such things as according to the Constitution as well as some of the amendments all citizens of the US are to be afforded the same rights.

[CKwi88]

(12-04-2021, 04:47 PM)Fan_in_Kettering Wrote: Shouldn’t this have been a Tenth Amendment issue all along?

Let me guess, you and your ancestors thought the same in 1834, 1920 and 1964?

[NATI BENGALS]

(12-04-2021, 03:01 PM)Sociopathicsteelerfan Wrote: It's known that I am pro-choice. That being said these blatant attempts to tar the court politically to strong arm them into a certain decision are as dangerous to the fabric of our democracy as anything Trump ever did, it's just a bit more subtle. From Schumer flat out threatening the court;

https://www.nbcnews.com/politics/supreme-court/rare-rebuke-chief-justice-roberts-slams-schumer-threatening-comments-n1150036

to Sotomayor's recent comments, to Robert Reich's typical garbage;

https://www.theguardian.com/commentisfree/2021/dec/03/no-doubt-us-supreme-court-partisan-hacks

it's all text book strong arm tactics. As the article in OP states, Roe could easily be seen as judicial activism as well.


Also, for clarification purposes, what is at stake in the Mississippi law is that they set the cut off line at 15 weeks instead of 23 or 24 weeks. Which begs the obvious question, why is 24 weeks ok but 15 is not? Playing devil's advocate, is four months, or more realistically three as a woman may not realize she is pregnant right away, not enough time to come to a decision on whether to have an abortion or not? So regardless of the decision in this case Roe is at no risk of being struck down. Now the Texas law is a completely different matter, but it's also not the topic at hand.

The Supreme Court was rigged against the will of the majority of American voters. Obama who won the popular vote had his and the rest of the majority of American voters voices silenced by a Republican. Then Trump who lost the popular vote was helped by the same Republican to create a court that is not representative of the will of American voters.

You can cry all you want about tarring the court. Everyone knows who is responsible. The danger is forcing the beliefs of an unrepresentative government body onto the lives of every American.

[Fan_in_Kettering]

(12-04-2021, 05:55 PM)CKwi88 Wrote: Let me guess, you and your ancestors thought the same in 1834, 1920 and 1964?

My family did not arrive in the United States until the 1950s. If you’re referring to the Civil Rights Act of 1964 my family supported it. I wasn’t born yet in 1964 but, if I was, I would have supported it too just as I do now.

[Belsnickel]

(12-04-2021, 06:53 PM)NATI BENGALS Wrote: The Supreme Court was rigged against the will of the majority of American voters. Obama who won the popular vote had his and the rest of the majority of American voters voices silenced by a Republican. Then Trump who lost the popular vote was helped by the same Republican to create a court that is not representative of the will of American voters.

You can cry all you want about tarring the court. Everyone knows who is responsible. The danger is forcing the beliefs of an unrepresentative government body onto the lives of every American.

The problem lies in the attitude that the SCOTUS is somehow non-political. People like to pretend that it is somehow above politics, and not to bash SSF, but that's the idea that his position is rooted in. It's naïve. The justices are political actors. Plain and simple. They always have been and they always will be. There isn't anything that can really change that. Should their personal and partisan beliefs color their decisions? Absolutely not, but we know they do. Sometimes they line up with the will of the people, sometimes they don't. I've become apathetic to the efforts from other branches to influence the court for this very reason.

Also, for anyone that wants to talk about reforming the court by implementing term limits, just know that it would further politicize the court because then it would be known when a justice would leave, thus making elections even more about the bench and would create a much more partisan bench. I just wanted to head that off at the pass because it is a terrible idea.

[BigPapaKain]

(12-04-2021, 03:01 PM)Sociopathicsteelerfan Wrote: It's known that I am pro-choice.  That being said these blatant attempts to tar the court politically to strong arm them into a certain decision are as dangerous to the fabric of our democracy as anything Trump ever did, it's just a bit more subtle.  From Schumer flat out threatening the court;

https://www.nbcnews.com/politics/supreme-court/rare-rebuke-chief-justice-roberts-slams-schumer-threatening-comments-n1150036

to Sotomayor's recent comments, to Robert Reich's typical garbage;

https://www.theguardian.com/commentisfree/2021/dec/03/no-doubt-us-supreme-court-partisan-hacks

it's all text book strong arm tactics.  As the article in OP states, Roe could easily be seen as judicial activism as well.


Also, for clarification purposes, what is at stake in the Mississippi law is that they set the cut off line at 15 weeks instead of 23 or 24 weeks.  Which begs the obvious question, why is 24 weeks ok but 15 is not?  Playing devil's advocate, is four months, or more realistically three as a woman may not realize she is pregnant right away, not enough time to come to a decision on whether to have an abortion or not?  So regardless of the decision in this case Roe is at no risk of being struck down.  Now the Texas law is a completely different matter, but it's also not the topic at hand.

I think the reason some of the judges are being attacked is because during one of their confirmations, they sold themselves as letting lying dogs lie, but now they're talking like they have no issues overturning long standing rulings for...reasons? And the other one should be recusing themselves due to long standing religious beliefs getting in the way of their ability to be impartial.

[Dill]

(12-04-2021, 06:55 PM)Fan_in_Kettering Wrote: My family did not arrive in the United States until the 1950s.  If you’re referring to the Civil Rights Act of 1964 my family supported it.  I wasn’t born yet in 1964 but, if I was, I would have supported it too just as I do now.

Are you separating the issue of a woman's right to choose from that of civil rights in general? 

It seems that you are if you think it should fall under the 10th Amendment. 

That's fair, I guess, if you have an argument for why this right should be separate from the others.

Perhaps one could follow the pro-birth camp in elaborating a concept of fetal rights/personhood, etc.
Then it would be the job of government to protect fetal rights by banning abortion, or at least greatly
reducing it, defining it as a clash of rights between two parties equally endowed with rights.

I don't see another way of uncoupling the right to choose from other basic civil rights.  

[Dill]

(12-04-2021, 09:06 PM)BigPapaKain Wrote: I think the reason some of the judges are being attacked is because during one of their confirmations, they sold themselves as letting lying dogs lie, but now they're talking like they have no issues overturning long standing rulings for...reasons? And the other one should be recusing themselves due to long standing religious beliefs getting in the way of their ability to be impartial.

Well, they are absolutely primarily being attacked because they threaten Roe vs Wade.

But you reference something which ramps up the anger. First McConnell abuses the process, twice, to give the Federalist Society two extra bodies on the court, 

then the nominees personally assure everyone not to worry cuz "settled law" and judges separate personal beliefs from the law. 

And Senator Collins--she who was sure that Trump had learned his lesson after the 1st Impeachment--was similarly sure that these Trump appointees would behave on the bench exactly as promised during their confirmation hearings.

[Fan_in_Kettering]

(12-05-2021, 01:44 PM)Dill Wrote: Are you separating the issue of a woman's right to choose from that of civil rights in general? 

It seems that you are if you think it should fall under the 10th Amendment. 

That's fair, I guess, if you have an argument for why this right should be separate from the others.

Perhaps one could follow the pro-birth camp in elaborating a concept of fetal rights/personhood, etc.
Then it would be the job of government to protect fetal rights by banning abortion, or at least greatly
reducing it,

The preborn possess inherent civil rights too.

[GMDino]

(12-05-2021, 02:10 PM)Fan_in_Kettering Wrote: The preborn possess inherent civil rights too.

Is that law?  Established or otherwise? Or an opinion?

[Dill]

(12-05-2021, 02:10 PM)Fan_in_Kettering Wrote: The preborn possess inherent civil rights too.

Do they possess the same rights as "post-born" then? 

If they do, would you argue that abortion regulation, which affects the rights of both mother and fetus,
should then devolve to the individual states? 

[Sociopathicsteelerfan]

(12-04-2021, 07:05 PM)Belsnickel Wrote: People like to pretend that it is somehow above politics, and not to bash SSF, but that's the idea that his position is rooted in. It's naïve. The justices are political actors. Plain and simple. 

You made some very good points that I omitted, but I wanted to focus on this.  I think it absolutely must be emphasized that this is a sword that cuts both ways.  Every POTUS nominates justices that they believe will make decisions compatible with their beliefs.  In this regard neither side is different.  Why is Sotomayor or Kagan given a pass on partisanship, which they both clearly are, but the conservative justices are not?  The answer to that goes a long way towards explaining the opinions I posted earlier.

(12-04-2021, 09:06 PM)BigPapaKain Wrote: I think the reason some of the judges are being attacked is because during one of their confirmations, they sold themselves as letting lying dogs lie, but now they're talking like they have no issues overturning long standing rulings for...reasons? And the other one should be recusing themselves due to long standing religious beliefs getting in the way of their ability to be impartial.

Respectfully, this is not an argument with a firm foundation.  Using this logic Plessy vs. Ferguson or the Dredd Scott decision should never have been overruled due to stare decisis.  There are several SCOTUS rulings that have been overruled or overwritten by future courts, this is not unique or unusual.  The question really is, is the SCOTUS ignoring Constitutional principle in making its ruling?  Again, being the devil's advocate and using the left's own logic against them, restricting abortion access is no different than the "reasonable limits" imposed on the 2nd amendment by individual states.  Left leaning types have been extremely comfortable with this logic in regards to firearms ownership and restrictions for decades, so they cannot consistently object to this reasoning on principle.  Of course, we all know that many people's positions will fluctuate based on the topic at hand and this subject is absolutely no different in this regard.

[Belsnickel]

(12-05-2021, 05:31 PM)Sociopathicsteelerfan Wrote: You made some very good points that I omitted, but I wanted to focus on this.  I think it absolutely must be emphasized that this is a sword that cuts both ways.  Every POTUS nominates justices that they believe will make decisions compatible with their beliefs.  In this regard neither side is different.  Why is Sotomayor or Kagan given a pass on partisanship, which they both clearly are, but the conservative justices are not?  The answer to that goes a long way towards explaining the opinions I posted earlier.

Oh, I don't disagree at all. There are plenty of progressive court rulings I have disagreed with as I maintain they were made with an eye towards politics rather than the Constitution. My issue is that the first step we need to make as a country towards any sort of reform of the judiciary is to stop pretending they are above politics.

[GMDino]

(12-05-2021, 07:47 PM)Belsnickel Wrote: Oh, I don't disagree at all. There are plenty of progressive court rulings I have disagreed with as I maintain they were made with an eye towards politics rather than the Constitution. My issue is that the first step we need to make as a country towards any sort of reform of the judiciary is to stop pretending they are above politics.

Always been that way and the flaws in the system have always been there.  We're just in one of those ages where people in power are using it spectacularly for their own power.

[Au165]

Much like we have seen recently with other precedents used to govern the country, overturning settled law will now be up for grabs. If that’s now the real bar I think people who are cheering this on won’t like some of the turns this will take.