SCOTUS overturns Roe megathread (pg 53 - confirmed)

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Legitimate wow. If true has a good chance of being the most earth-shattering opinion since Brown.

I never thought I would see the day. This is such a beautiful moment for life and our country.

I’m overjoyed.

You guys destroyed the legitimacy of the Supreme Court to achieve this but sure act like this a good thing for the country

To be fair, the Supreme Court destroyed its own legitimacy on 12/12/2020.

For better or for worse, in public polling the Supreme Court is basically the institution in the United States with the most legitimacy. Which is why Biden has made trying to change it a priority of the administration -- see the rapid confirmation of KBJ, for instance.

Anyway, without having read the opinion and just guessing that it's what we always thought a Roe overturning would be: good decision on constitutional interpretation, terrible decision on public policy.

Curious as to how this might affect midterm polling -- truly if there's one issue on which there's lots of reason to suspect Republicans might suffer from pushing too hard, it's this one. At the same time, supremely controversial Supreme Court decisions in the past, whether on gay rights or wealthy rights or civil rights, pretty much had no impact on the interpartisan fight in spite of widespread predictions that they would. The only one to ever truly cause a backlash from a majority of the voters was Dred Scott. I don't think this is that.

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For better or for worse, in public polling the Supreme Court is basically the institution in the United States with the most legitimacy. Which is why Biden has made trying to change it a priority of the administration -- see the rapid confirmation of KBJ, for instance.

how much of that polling was conducted over the last fifteen minutes?

I can't imagine the last 15 minutes caused anyone else to recover!

(Also, for the record, the institution that has more legitimacy than SCOTUS is the military).

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Assuming this is legitimate, has there ever been such a leak from SCOTUS before?

Breyer was apparently so offended that his retirement was leaked that he almost went back on it. Also, over the past few years the outcomes of multiple cases have been correctly leaked, though I don't know about an entire opinion.

The answer to your question is probably 'no', no decision this important has been leaked, but rarely do decisions this important come around.

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look I know mr x can be disingenuous but its obvious what he's talking about. As I said above, people in this thread are fear mongering about the SCOTUS using the same logic to overturn Griswold/Obergefell/Lawrence. That's absolutely concern trolling

Obergefell and Lawrence sure, but how is Griswold not under threat from this decision? I'm hardly a legal scholar, but from my skimming of the draft opinion and prior knowledge of both cases, it seems like Griswold and Roe were decided on similar bases. Wouldn't a decision overturning Roe necessarily indicate that Griswold is suspect?

They really weren't, and while the logic of the Griswold decision has probably been attacked more than Roe, the actual outcome is not particularly controversial (or at least is supported by normie conservatives).

Also depends on what you mean by "under threat". If you mean that the Court was once much more afraid of making decisions that would anger the American progressive movement than it is now, then lots of things are under threat, since this is clearly absolutely no barrier to anything.

By contrast, the way that Alito worded excerpts I've read I would have to think overrules Obergefell (it not-very-subtly hints that this would be a correct decision). Lawrence is sustainable if you assume something along the lines of a right to privacy (and similar concepts really do go back all the way to the beginning), although if you insist that such a right only covers things that would've been protected in 1787, or are extensions of such things, then you could be internally consistent and overrule Lawrence.

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look I know mr x can be disingenuous but its obvious what he's talking about. As I said above, people in this thread are fear mongering about the SCOTUS using the same logic to overturn Griswold/Obergefell/Lawrence. That's absolutely concern trolling

Obergefell and Lawrence sure, but how is Griswold not under threat from this decision? I'm hardly a legal scholar, but from my skimming of the draft opinion and prior knowledge of both cases, it seems like Griswold and Roe were decided on similar bases. Wouldn't a decision overturning Roe necessarily indicate that Griswold is suspect?

They really weren't, and while the logic of the Griswold decision has probably been attacked more than Roe, the actual outcome is not particularly controversial (or at least is supported by normie conservatives).

Also depends on what you mean by "under threat". If you mean that the Court was once much more afraid of making decisions that would anger the American progressive movement than it is now, then lots of things are under threat, since this is clearly absolutely no barrier to anything.

By contrast, the way that Alito worded excerpts I've read I would have to think overrules Obergefell (it not-very-subtly hints that this would be a correct decision). Lawrence is sustainable if you assume something along the lines of a right to privacy (and similar concepts really do go back all the way to the beginning), although if you insist that such a right only covers things that would've been protected in 1787, or are extensions of such things, then you could be internally consistent and overrule Lawrence.

The real reason I think Griswold and Lawrence aren't going anywhere is simple: There's no drive to get a state to pass laws in contravention of them and challenge the decisions. The Republicans have to take a rather extreme position on abortion because it's what their base wants, but there's no longer (and really hasn't been for decades) a similar to push to ban all forms of birth control or sodomy, and it's hard to see a state actually following through and banning them thus creating the needed case. Also why Loving v. Virginia is an even bigger stretch, what state is actually going to want to ban interracial marriage today?

I agree, and particularly on Griswold I truly can't imagine it, but the thing is that there are lots of positions in the conservative legal world that are held by maybe 75% of people. These can't get through when you have a 5-4 majority, and only have a shot when you have 6-3, but they become likelier the more the conservative majority grows. Given realistic prognoses of Senate composition we can expect the conservative majority to grow unless something very unexpected happens, and that will come with an ideological ratchet effect.

(Consider that, per 538 charts, the distance between Gorsuch and Kavanaugh was as large as the distance between a conservative and a liberal, and they're just different kinds of conservatives. This meant that the 5-4 majority made the court unexpectedly liberal; there were multiple terms over the 2010s in which most of the 5-4 decisions took the form of "one conservative defects", and that was never a terribly rare outcome. This means there's a lot of stuff a 6-3 court could overturn. There would be more that 7-2 would target, and so on.)

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look I know mr x can be disingenuous but its obvious what he's talking about. As I said above, people in this thread are fear mongering about the SCOTUS using the same logic to overturn Griswold/Obergefell/Lawrence. That's absolutely concern trolling

Obergefell and Lawrence sure, but how is Griswold not under threat from this decision? I'm hardly a legal scholar, but from my skimming of the draft opinion and prior knowledge of both cases, it seems like Griswold and Roe were decided on similar bases. Wouldn't a decision overturning Roe necessarily indicate that Griswold is suspect?

They really weren't, and while the logic of the Griswold decision has probably been attacked more than Roe, the actual outcome is not particularly controversial (or at least is supported by normie conservatives).

Also depends on what you mean by "under threat". If you mean that the Court was once much more afraid of making decisions that would anger the American progressive movement than it is now, then lots of things are under threat, since this is clearly absolutely no barrier to anything.

By contrast, the way that Alito worded excerpts I've read I would have to think overrules Obergefell (it not-very-subtly hints that this would be a correct decision). Lawrence is sustainable if you assume something along the lines of a right to privacy (and similar concepts really do go back all the way to the beginning), although if you insist that such a right only covers things that would've been protected in 1787, or are extensions of such things, then you could be internally consistent and overrule Lawrence.

The real reason I think Griswold and Lawrence aren't going anywhere is simple: There's no drive to get a state to pass laws in contravention of them and challenge the decisions. The Republicans have to take a rather extreme position on abortion because it's what their base wants, but there's no longer (and really hasn't been for decades) a similar to push to ban all forms of birth control or sodomy, and it's hard to see a state actually following through and banning them thus creating the needed case. Also why Loving v. Virginia is an even bigger stretch, what state is actually going to want to ban interracial marriage today?

I agree, and particularly on Griswold I truly can't imagine it, but the thing is that there are lots of positions in the conservative legal world that are held by maybe 75% of people. These can't get through when you have a 5-4 majority, and only have a shot when you have 6-3, but they become likelier the more the conservative majority grows. Given realistic prognoses of Senate composition we can expect the conservative majority to grow unless something very unexpected happens, and that will come with an ideological ratchet effect.

(Consider that, per 538 charts, the distance between Gorsuch and Kavanaugh was as large as the distance between a conservative and a liberal, and they're just different kinds of conservatives. This meant that the 5-4 majority made the court unexpectedly liberal; there were multiple terms over the 2010s in which most of the 5-4 decisions took the form of "one conservative defects", and that was never a terribly rare outcome. This means there's a lot of stuff a 6-3 court could overturn. There would be more that 7-2 would target, and so on.)

What I'm saying is it's probably moot because such cases would never make it to the court to begin with. Like what state is going to ban birth control to challenge Griswold and interracial marriage to challenge Loving?

Oh, yeah, fair point. A big part of my current thought about the future of American politics is that neither the left nor the right seems to be aware that without some kind of truly enormous realignment the conservative majority on the Court will probably continue to grow, and the way that it was structured over the past 30 years tended to hide how actually right-wing it was.

This probably does mean that the people in this thread who think that the future of American politics is going to be social issues are largely correct for the broad strokes of the next several decades, even if I don't know that that's going to be the case in 2022.

(Remains insane to remember that polling in 2016 oscillated between Hillary up ~7 and Hillary up ~2, and happened to finish on the latter. If it had been the former she would've replaced Scalia and RBG, who was explicitly waiting for her, and probably guaranteed a decades-long progressive majority which would've remade the Republic. Al likes to repeat that you can only tell which elections are the "most important" in hindsight, but it's really clear that 2016 was a huge turning point and would've been a huge turning point whichever candidate won.)

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For those people supporting this decision that say it should be left up to the states, I call attention to this article published in the Post just this morning:

https://www.washingtonpost.com/nation/2022/05/02/abortion-ban-roe-supreme-court-mississippi/

Cliff: Republicans in Congress are piosed to introduce a nationwide ban on abortion after six weeks.

This flies in the face of Commerce Clause and 10th Amendment jurisprudence. I would expect a majority like Bostock, if not larger, to strike down a law like this.

There's no reason to think Gorsuch has the liberal-ish attitudes on beginning- and end-of-life issues that he has on (some) LGBT issues (a fact that is itself somewhat idiosyncratic because he's at least nominally the least religious current conservative justice). His doctoral dissertation was an extended legal and moral argument against assisted suicide under the advisorship of the person who introduced constitutional/common-law personhood arguments into the relative legal mainstream.

This hypothetical doesn't deal with personhood, just federalism. The federal government doesn't even have the power to prescribe laws against murder, like actual murder, unless it's on federal property or somehow affects the federal government directly.

I think you're seriously underestimating the role that motivated reasoning plays in American federal judges' decision-making process.

Although it's also possible to overestimate it. I don't think judges who have spent decades arguing that such-and-such is a federal or state issue are very likely to reverse themselves on that point. (Not to be very hackish here, but this is more true for conservatives than for liberals who are likelier to take the Harry Pregerson "conscience" approach to decision-making. This is what Alito does too, of course, even if he would never put it in those words.) Even from Alito such a move would be eyebrow-raising, and it would be stunning from any of the others.

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https://dailycaller.com/2022/05/03/justice-roberts-fbi-investigation-scotus-leak/

FBI will be involved to determine who the leaker was, and that person may be targeted criminally. Rumor is apparently "a Sotomayor clerk", though that might be several individuals.

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Our nation is moving backwards, while the rest of the world moves forward.

This is the boldest claim that's been made in 20 pages, and we've seen a lot of very bold claims.