SCOTUS overturns Roe megathread (pg 53 - confirmed)

[politicallefty]

Remember the days when people thought that the Religious Right was just a bunch of useful idiots for the real Republican agenda (laissez faire capitalism)?

Roe was literally one vote away from being overturned in 1992 and it would have been overturned if not for the Democrats taking control of the senate in 1986. Keep in mind while 8 of the 9 justices in 1992 were appointed by Republican Presidents, only 2 of of the 9 were confirmed by a Republican senate. A Democratic Senate also rejected 3 nominations in this time period and that very likely saved Roe in 1992.

Since 1992 5 justices were nominated by a Republican President but all 5 were confirmed by a Republican Senate and that is why Roe was overturned.

Roe was overturned because the right-wing created an entire organization (The Federalist Society) for the specific purpose of enacting an agenda through a takeover of the judiciary. It's also worth remembering that Roe didn't even need any Democratic-appointed Justices. Two Eisenhower appointees and three out of four of Nixon's appointees were in the majority.

You like to mention how the Senate killed the Bork nomination, yet you fail to mention that Reagan was not denied a pick. First of all, it's quite possible Bork would've failed to get through a Republican Senate. Six Republicans voted against his confirmation. You can blame Douglas Ginsburg not getting confirmed on the anti-drug hysteria of the '80s. He probably would've been confirmed otherwise and this would be a very different country. As for Nixon's failed nominations, you had 17 and 13 Republicans voting against Haynsworth and Carswell, respectively. I think those two are so controversial that not even Republicans bring them up, unlike Bork.

Of course, you also fail to mention that LBJ was denied his pick to replace Earl Warren. Abe Fortas was filibustered by conservatives, led by Strom Thurmond. If Fortas had gotten through, his successor for Associate Justice would've been Homer Thornberry. They were far more liberal than the Justices that ended up with those seats (Burger and Blackmun). It would've been more conservative than the Warren Court (particularly after Justice Douglas retired), but well to the left of what actually happened.

[OSR stands with Israel]

Remember the days when people thought that the Religious Right was just a bunch of useful idiots for the real Republican agenda (laissez faire capitalism)?

Roe was literally one vote away from being overturned in 1992 and it would have been overturned if not for the Democrats taking control of the senate in 1986. Keep in mind while 8 of the 9 justices in 1992 were appointed by Republican Presidents, only 2 of of the 9 were confirmed by a Republican senate. A Democratic Senate also rejected 3 nominations in this time period and that very likely saved Roe in 1992.

Since 1992 5 justices were nominated by a Republican President but all 5 were confirmed by a Republican Senate and that is why Roe was overturned.

Roe was overturned because the right-wing created an entire organization (The Federalist Society) for the specific purpose of enacting an agenda through a takeover of the judiciary. It's also worth remembering that Roe didn't even need any Democratic-appointed Justices. Two Eisenhower appointees and three out of four of Nixon's appointees were in the majority.

You like to mention how the Senate killed the Bork nomination, yet you fail to mention that Reagan was not denied a pick. First of all, it's quite possible Bork would've failed to get through a Republican Senate. Six Republicans voted against his confirmation. You can blame Douglas Ginsburg not getting confirmed on the anti-drug hysteria of the '80s. He probably would've been confirmed otherwise and this would be a very different country. As for Nixon's failed nominations, you had 17 and 13 Republicans voting against Haynsworth and Carswell, respectively. I think those two are so controversial that not even Republicans bring them up, unlike Bork.

Of course, you also fail to mention that LBJ was denied his pick to replace Earl Warren. Abe Fortas was filibustered by conservatives, led by Strom Thurmond. If Fortas had gotten through, his successor for Associate Justice would've been Homer Thornberry. They were far more liberal than the Justices that ended up with those seats (Burger and Blackmun). It would've been more conservative than the Warren Court (particularly after Justice Douglas retired), but well to the left of what actually happened.

I was just mentioning the importance of which party controls the senate when it comes to these picks and its just misleading to not take this into account. Like yah Haynsworth and Carswell still get rejected with a Republican Senate but its very possible with a Republican Senate Nixon nominates people like say Paul Laxalt , or Malcom Lucas

[Skill and Chance]

Remember the days when people thought that the Religious Right was just a bunch of useful idiots for the real Republican agenda (laissez faire capitalism)?

Roe was literally one vote away from being overturned in 1992 and it would have been overturned if not for the Democrats taking control of the senate in 1986. Keep in mind while 8 of the 9 justices in 1992 were appointed by Republican Presidents, only 2 of of the 9 were confirmed by a Republican senate. A Democratic Senate also rejected 3 nominations in this time period and that very likely saved Roe in 1992.

Since 1992 5 justices were nominated by a Republican President but all 5 were confirmed by a Republican Senate and that is why Roe was overturned.

Roe was overturned because the right-wing created an entire organization (The Federalist Society) for the specific purpose of enacting an agenda through a takeover of the judiciary. It's also worth remembering that Roe didn't even need any Democratic-appointed Justices. Two Eisenhower appointees and three out of four of Nixon's appointees were in the majority.

You like to mention how the Senate killed the Bork nomination, yet you fail to mention that Reagan was not denied a pick. First of all, it's quite possible Bork would've failed to get through a Republican Senate. Six Republicans voted against his confirmation. You can blame Douglas Ginsburg not getting confirmed on the anti-drug hysteria of the '80s. He probably would've been confirmed otherwise and this would be a very different country. As for Nixon's failed nominations, you had 17 and 13 Republicans voting against Haynsworth and Carswell, respectively. I think those two are so controversial that not even Republicans bring them up, unlike Bork.

Of course, you also fail to mention that LBJ was denied his pick to replace Earl Warren. Abe Fortas was filibustered by conservatives, led by Strom Thurmond. If Fortas had gotten through, his successor for Associate Justice would've been Homer Thornberry. They were far more liberal than the Justices that ended up with those seats (Burger and Blackmun). It would've been more conservative than the Warren Court (particularly after Justice Douglas retired), but well to the left of what actually happened.

Interestingly, Carswell was secretly gay and would have lived long enough to hear Bowers v. Hardwick if he had been appointed to SCOTUS.  However, Blackmun already dissented IRL so he couldn't have changed the outcome.  His seat would have been filled by Clinton if he stayed on SCOTUS for the rest of his life.  

[Skill and Chance]

Remember the days when people thought that the Religious Right was just a bunch of useful idiots for the real Republican agenda (laissez faire capitalism)?

Ehhh... the beliefs are more reconcilable than you think.  The guiding principle would be something like "intervening to disrupt what would otherwise happen naturally is usually wrong."  This would also favor isolationism and a hands-off approach to COVID.

[politicallefty]

I was just mentioning the importance of which party controls the senate when it comes to these picks and its just misleading to not take this into account. Like yah Haynsworth and Carswell still get rejected with a Republican Senate but its very possible with a Republican Senate Nixon nominates people like say Paul Laxalt , or Malcom Lucas

Well, a Republican filibuster effectively gave Nixon two appointments that would've otherwise gone to LBJ. That was a concerted effort on the part of the right to move the Court to the right. And the last Republican Senate to approve a Democratic appointee was in 1895.

My overall point though was that Democrats were not opposed to giving Republican Presidents massive deference in terms of their nominees. You don't always swing for the fences with every nominee even when you have the majority. (Even so, Scalia was confirmed unanimously.) Before RBG passed, the Court had a certain equilibrium for decades. That has been completely upended. Even someone as conservative as Roberts as the median Justice was acceptable to the general public (even after decades of people like Powell, O'Connor, and Kennedy in the middle of the Court).

My other point was that Bork could very well have been defeated in a Republican Senate as well.

Haynsworth was openly segregationist in the years leading up to his nomination, which puts him way out of bounds in a way that's distinct from everyone else in this discussion.

Carswell had made segregationist comments in a political speech while running for office in rural Georgia >20 years before his nomination.  Whether or not he still secretly held those views was unclear, but he had publicly disavowed them.  In any event, he was a clear judicial conservative and there's no way he would have joined Roe, let alone written it.  If the other justices were the same, it would have still been 6/3 to legalize abortion, though quite possibly with different reasoning.

Interestingly, Carswell was secretly gay and would have lived long enough to hear Bowers v. Hardwick if he had been appointed to SCOTUS.  However, Blackmun already dissented IRL so he couldn't have changed the outcome.  His seat would have been filled by Clinton if he stayed on SCOTUS for the rest of his life.

My point wasn't about the possibility of either of them being confirmed. It was in response to the fact that three Republican-appointed SCOTUS nominees were defeated under Democratic Senates. That seat ended up going to Blackmun. While he was liberal during his later years, he was generally more conservative in his early years (particularly on the death penalty). I do have to wonder what would've happened if Fortas had become Chief Justice (or if LBJ had picked someone else and they were confirmed in time).

[Amenhotep Bakari-Sellers]

The Dobbs definitely helped D's in the S but not the H where SCOTUS have gerrymandering the H and there is a Sinema Filibuster but the D's are still talking upset in the H because D's are competetive in Red state S seats and Gov seats TX, OH, NC, and FL, never underestimate the Blk and Brown and Female vote, we won KY, GA and WI all late breaking provisions ballots , that's why the maps are blank on EDay and we must vote not gonna just polls that Rs want to just believe in because of Biden low Approvals

It definitely helps Warnock, Walker wants to ban abortion, it helped CCM and Hassan and Ryan and BEASLEY

There are two more tries to get a Filibuster proof S and the H 24/26 D's will do better in the H in 24 in a Prez yr because BIDEN is on the ballot if we lose it, that's why Warren said she is running she believes D's will expand their Senate majority and if need be win back 15 seats in the H in 24, Rs aren't getting 250, seats it's 230 or less 15 away from majority which is nothing

D's want to win as many Senate seats as they can so they can win the H back in 24 if need be and we lead in WI, PA, OH and NC and if Crist or Fried wins the Gov Demings will win, but everything outside 303 is upsets anyways

[Skill and Chance]

I was just mentioning the importance of which party controls the senate when it comes to these picks and its just misleading to not take this into account. Like yah Haynsworth and Carswell still get rejected with a Republican Senate but its very possible with a Republican Senate Nixon nominates people like say Paul Laxalt , or Malcom Lucas

Well, a Republican filibuster effectively gave Nixon two appointments that would've otherwise gone to LBJ. That was a concerted effort on the part of the right to move the Court to the right. And the last Republican Senate to approve a Democratic appointee was in 1895.

My overall point though was that Democrats were not opposed to giving Republican Presidents massive deference in terms of their nominees. You don't always swing for the fences with every nominee even when you have the majority. (Even so, Scalia was confirmed unanimously.) Before RBG passed, the Court had a certain equilibrium for decades. That has been completely upended. Even someone as conservative as Roberts as the median Justice was acceptable to the general public (even after decades of people like Powell, O'Connor, and Kennedy in the middle of the Court).

My other point was that Bork could very well have been defeated in a Republican Senate as well.

Haynsworth was openly segregationist in the years leading up to his nomination, which puts him way out of bounds in a way that's distinct from everyone else in this discussion.

Carswell had made segregationist comments in a political speech while running for office in rural Georgia >20 years before his nomination.  Whether or not he still secretly held those views was unclear, but he had publicly disavowed them.  In any event, he was a clear judicial conservative and there's no way he would have joined Roe, let alone written it.  If the other justices were the same, it would have still been 6/3 to legalize abortion, though quite possibly with different reasoning.

Interestingly, Carswell was secretly gay and would have lived long enough to hear Bowers v. Hardwick if he had been appointed to SCOTUS.  However, Blackmun already dissented IRL so he couldn't have changed the outcome.  His seat would have been filled by Clinton if he stayed on SCOTUS for the rest of his life.

My point wasn't about the possibility of either of them being confirmed. It was in response to the fact that three Republican-appointed SCOTUS nominees were defeated under Democratic Senates. That seat ended up going to Blackmun. While he was liberal during his later years, he was generally more conservative in his early years (particularly on the death penalty). I do have to wonder what would've happened if Fortas had become Chief Justice (or if LBJ had picked someone else and they were confirmed in time).

If LBJ hadn't pressured Goldberg to leave for Fortas, Goldberg would have lived into Bill Clinton's term, securing the seat for the left for the long haul. 

[Amenhotep Bakari-Sellers]

If Rs takeover there gonna be more conservative rulings you know what Thomas said restricting access to contraceptive but more importantly SSM is gonna be ruled unconditional, I seriously doubt contraceptive will be ruled unconditional it was always a 50/50 chance D's lose control that's why in this inflation you don't overdonate and I have spared myself from overdonating

How did we lose the last elections White females turned on HILLARY, if we do lose Yang 3rd party can be a danger for Biden if Trump doesn't get indicted but that all depends on the Midterms

They projected the H not the S to go R but that was always the average 230 not 245 and 52/48 D S, not 54RS but NC and OH are competetive

We can wake up with an RH Tim Ryan in Senate and Charlie Crist as Gov, DeSantis always underpolls

[H.E. VOLODYMYR ZELENKSYY]

I was just mentioning the importance of which party controls the senate when it comes to these picks and its just misleading to not take this into account. Like yah Haynsworth and Carswell still get rejected with a Republican Senate but its very possible with a Republican Senate Nixon nominates people like say Paul Laxalt , or Malcom Lucas

Well, a Republican filibuster effectively gave Nixon two appointments that would've otherwise gone to LBJ. That was a concerted effort on the part of the right to move the Court to the right. And the last Republican Senate to approve a Democratic appointee was in 1895.

My overall point though was that Democrats were not opposed to giving Republican Presidents massive deference in terms of their nominees. You don't always swing for the fences with every nominee even when you have the majority. (Even so, Scalia was confirmed unanimously.) Before RBG passed, the Court had a certain equilibrium for decades. That has been completely upended. Even someone as conservative as Roberts as the median Justice was acceptable to the general public (even after decades of people like Powell, O'Connor, and Kennedy in the middle of the Court).

My other point was that Bork could very well have been defeated in a Republican Senate as well.

Haynsworth was openly segregationist in the years leading up to his nomination, which puts him way out of bounds in a way that's distinct from everyone else in this discussion.

Carswell had made segregationist comments in a political speech while running for office in rural Georgia >20 years before his nomination.  Whether or not he still secretly held those views was unclear, but he had publicly disavowed them.  In any event, he was a clear judicial conservative and there's no way he would have joined Roe, let alone written it.  If the other justices were the same, it would have still been 6/3 to legalize abortion, though quite possibly with different reasoning.

Interestingly, Carswell was secretly gay and would have lived long enough to hear Bowers v. Hardwick if he had been appointed to SCOTUS.  However, Blackmun already dissented IRL so he couldn't have changed the outcome.  His seat would have been filled by Clinton if he stayed on SCOTUS for the rest of his life.

My point wasn't about the possibility of either of them being confirmed. It was in response to the fact that three Republican-appointed SCOTUS nominees were defeated under Democratic Senates. That seat ended up going to Blackmun. While he was liberal during his later years, he was generally more conservative in his early years (particularly on the death penalty). I do have to wonder what would've happened if Fortas had become Chief Justice (or if LBJ had picked someone else and they were confirmed in time).

If LBJ hadn't pressured Goldberg to leave for Fortas, Goldberg would have lived into Bill Clinton's term, securing the seat for the left for the long haul. 

The seat’s already secured, though. It’s KBJ’s.

[Skill and Chance]

I was just mentioning the importance of which party controls the senate when it comes to these picks and its just misleading to not take this into account. Like yah Haynsworth and Carswell still get rejected with a Republican Senate but its very possible with a Republican Senate Nixon nominates people like say Paul Laxalt , or Malcom Lucas

Well, a Republican filibuster effectively gave Nixon two appointments that would've otherwise gone to LBJ. That was a concerted effort on the part of the right to move the Court to the right. And the last Republican Senate to approve a Democratic appointee was in 1895.

My overall point though was that Democrats were not opposed to giving Republican Presidents massive deference in terms of their nominees. You don't always swing for the fences with every nominee even when you have the majority. (Even so, Scalia was confirmed unanimously.) Before RBG passed, the Court had a certain equilibrium for decades. That has been completely upended. Even someone as conservative as Roberts as the median Justice was acceptable to the general public (even after decades of people like Powell, O'Connor, and Kennedy in the middle of the Court).

My other point was that Bork could very well have been defeated in a Republican Senate as well.

Haynsworth was openly segregationist in the years leading up to his nomination, which puts him way out of bounds in a way that's distinct from everyone else in this discussion.

Carswell had made segregationist comments in a political speech while running for office in rural Georgia >20 years before his nomination.  Whether or not he still secretly held those views was unclear, but he had publicly disavowed them.  In any event, he was a clear judicial conservative and there's no way he would have joined Roe, let alone written it.  If the other justices were the same, it would have still been 6/3 to legalize abortion, though quite possibly with different reasoning.

Interestingly, Carswell was secretly gay and would have lived long enough to hear Bowers v. Hardwick if he had been appointed to SCOTUS.  However, Blackmun already dissented IRL so he couldn't have changed the outcome.  His seat would have been filled by Clinton if he stayed on SCOTUS for the rest of his life.

My point wasn't about the possibility of either of them being confirmed. It was in response to the fact that three Republican-appointed SCOTUS nominees were defeated under Democratic Senates. That seat ended up going to Blackmun. While he was liberal during his later years, he was generally more conservative in his early years (particularly on the death penalty). I do have to wonder what would've happened if Fortas had become Chief Justice (or if LBJ had picked someone else and they were confirmed in time).

If LBJ hadn't pressured Goldberg to leave for Fortas, Goldberg would have lived into Bill Clinton's term, securing the seat for the left for the long haul. 

The seat’s already secured, though. It’s KBJ’s.

Whoops.  Actually, I made an error.  Goldberg passed away in 1990 and wouldn't have had a favorable retirement opportunity after 1980, so the seat would have likely "flipped."  On the other hand, Nixon not getting a proto-originalist into the Fortas seat and then Blackmun going hard left was sheer dumb luck.

Fortas not being corrupt and getting CJ wouldn't necessarily help the left in the long run.  He passed away in 1982 when Republicans would have controlled the appointment process.  He could have retired under Carter if he knew he was sick, I guess. 

[GeorgiaModerate]

https://twitter.com/mjs_DC/status/1553049882516127744

Are these the "death panels" that the right warned about in the ACA debate?

[MarkD]

Okay, folks. Here's a fun game. How many of these legal arguments do you agree with for supporting Roe v. Wade?

I saw a post on Facebook by a guy named Byron DeLear. I recognize the name because six years ago he ran for a state rep seat in the St. Louis area and lost. (He was the only Democrat nominee in the last five election cycles who lost a race for House District 70.) His FB post started:

The radical Supreme Court is taking away long-established rights, and what is next? Voting rights? Learn about the folks taking on the  court to protect our rights by watching this important film featuring Debo Adegbile, a commissioner on the U.S. Commission on Civil Rights. In February, Debo spoke at the St. Louis City NAACP Mini-Civil Rights Conference I was honored to help organize. Mr. Adegbile's presentation is a must-see, emotional tour-de-force through the history of American Civil Rights and he is currently working on the Harvard Admissions case to be heard by SCOTUS in October, 2022. As even more of us know now, cases before the Supreme Court is where the rubber meets the road -- we are excited to share this talk with you and look forward to hearing your thoughts! --Byron

I posted the following:

What the Supreme Court giveth, it can taketh away. The "right to privacy" (as described in Griswold v. Conn. and Roe v. Wade) did not come from the Constitution, it came from the imaginations of Supreme Court Justices. If decisions like those were not valid interpretations of the Constitution, then it is completely appropriate to overturn them.

Then a woman by the name of Lisa responded to me with this:

omg 1st amendment freedom to choose religious belief and the right to keep it private
3rd amendment the privacy of your home.
4th amendment protects right of against unreasonable search and seizures
5th amendment the right against self incriminating justifies protection of private info.
9th amendment this justifies a broad reading of the bill of rights to protect your fundamental right to privacy in ways not provided for the first 8 amendments.
THIS IS THE ONE HERE PAY ATTENTION
14th amendment. prohibits states from making laws that infringe upon the personal autonomy protections provided in the first 13 amendments. So mark nope it's not the imagination of anyone.

I was surprised she didn't throw in an 8th Amendment argument about cruel and unusual punishment.

The only one of those six "constitutional" arguments in support of abortion rights that I can relate to is the 9A one. I can relate to someone trying that as an argument, because over 30 years ago, when I didn't know any better, I would rely on 9A in support of my own legal argument for the unconstitutionality of a law I didn't like. But I changed my mind about it when I learned, about 30 years ago, what the 9th was intended to mean.

How about the rest of you? Do you like and agree with all six of her constitutional arguments, even the 3A (lol)?

[Virginiá]

https://twitter.com/megangailey/status/1551811037992607744

[H.E. VOLODYMYR ZELENKSYY]

I think the Ninth Amendment is highly underrated. Perhaps the most underrated of all the amendments. It establishes that there must be some rights retained by the people beyond those enumerated by the Constitution itself (or if you don’t like it, you can look to substantive due process or the privileges and immunities clause or the emanating penumbras of the Bill of Rights - I don’t think it matters which one). The question is then how do we determine what rights there are? History and tradition? Sure, even though by their very nature both history and tradition are biased against women, racial minorities, LGBT people, etc. Even then there is historical and traditional support for the right to privacy. At this point, from Louis Brandeis through the Griswold line of cases, our legal system has firmly established a right to privacy and a right to make one’s own decisions regarding intimacy and family. There are countless cases that support this. To ignore them is to ignore over a century of history and tradition simply because one finds it inconvenient. To believe that whatever rights we retain are fixed by the imaginations of the Founders is to base our conception of what rights women possess on the beliefs of a group of men who considered them second-class citizens.

[100% pro-life no matter what]

Kentucky's abortion ban is now in effect after having been held up in state courts:

https://www.wowktv.com/news/local/abortion-ban-reinstated-in-kentucky/

[Okay, maybe Mike Johnson is a competent parliamentarian.]

I think the Ninth Amendment is highly underrated. Perhaps the most underrated of all the amendments. It establishes that there must be some rights retained by the people beyond those enumerated by the Constitution itself (or if you don’t like it, you can look to substantive due process or the privileges and immunities clause or the emanating penumbras of the Bill of Rights - I don’t think it matters which one). The question is then how do we determine what rights there are? History and tradition? Sure, even though by their very nature both history and tradition are biased against women, racial minorities, LGBT people, etc. Even then there is historical and traditional support for the right to privacy. At this point, from Louis Brandeis through the Griswold line of cases, our legal system has firmly established a right to privacy and a right to make one’s own decisions regarding intimacy and family. There are countless cases that support this. To ignore them is to ignore over a century of history and tradition simply because one finds it inconvenient. To believe that whatever rights we retain are fixed by the imaginations of the Founders is to base our conception of what rights women possess on the beliefs of a group of men who considered them second-class citizens.

This is a compelling approach at common law, but it just takes on a ton of water as an interpretation of a codified set of rights, even if some of those rights are codified in a deliberately open-ended way. Possibly a lot of the uniquely Calvinball-ish aspects of American individual rights jurisprudence have to do with the uneasy coexistence of those features in our legal system.

[H.E. VOLODYMYR ZELENKSYY]

I think the Ninth Amendment is highly underrated. Perhaps the most underrated of all the amendments. It establishes that there must be some rights retained by the people beyond those enumerated by the Constitution itself (or if you don’t like it, you can look to substantive due process or the privileges and immunities clause or the emanating penumbras of the Bill of Rights - I don’t think it matters which one). The question is then how do we determine what rights there are? History and tradition? Sure, even though by their very nature both history and tradition are biased against women, racial minorities, LGBT people, etc. Even then there is historical and traditional support for the right to privacy. At this point, from Louis Brandeis through the Griswold line of cases, our legal system has firmly established a right to privacy and a right to make one’s own decisions regarding intimacy and family. There are countless cases that support this. To ignore them is to ignore over a century of history and tradition simply because one finds it inconvenient. To believe that whatever rights we retain are fixed by the imaginations of the Founders is to base our conception of what rights women possess on the beliefs of a group of men who considered them second-class citizens.

This is a compelling approach at common law, but it just takes on a ton of water as an interpretation of a codified set of rights, even if some of those rights are codified in a deliberately open-ended way. Possibly a lot of the uniquely Calvinball-ish aspects of American individual rights jurisprudence have to do with the uneasy coexistence of those features in our legal system.

But that’s my point, I don’t think you can just read the Constitution as a “codified set of rights” to the exclusion of all others. The text itself cautions against that; that’s the Ninth Amendment (or you can read it into substantive due process or however you prefer). I agree that a lot of the Calvinball-esque oddities of constitutional jurisprudence are consequences of our vague constitution (which is not very well suited to a 21st-century country), but I don’t think that’s an argument for one made-up way of determining which individual rights are retained by the people over any other.

[Okay, maybe Mike Johnson is a competent parliamentarian.]

I think the Ninth Amendment is highly underrated. Perhaps the most underrated of all the amendments. It establishes that there must be some rights retained by the people beyond those enumerated by the Constitution itself (or if you don’t like it, you can look to substantive due process or the privileges and immunities clause or the emanating penumbras of the Bill of Rights - I don’t think it matters which one). The question is then how do we determine what rights there are? History and tradition? Sure, even though by their very nature both history and tradition are biased against women, racial minorities, LGBT people, etc. Even then there is historical and traditional support for the right to privacy. At this point, from Louis Brandeis through the Griswold line of cases, our legal system has firmly established a right to privacy and a right to make one’s own decisions regarding intimacy and family. There are countless cases that support this. To ignore them is to ignore over a century of history and tradition simply because one finds it inconvenient. To believe that whatever rights we retain are fixed by the imaginations of the Founders is to base our conception of what rights women possess on the beliefs of a group of men who considered them second-class citizens.

This is a compelling approach at common law, but it just takes on a ton of water as an interpretation of a codified set of rights, even if some of those rights are codified in a deliberately open-ended way. Possibly a lot of the uniquely Calvinball-ish aspects of American individual rights jurisprudence have to do with the uneasy coexistence of those features in our legal system.

But that’s my point, I don’t think you can just read the Constitution as a “codified set of rights” to the exclusion of all others. The text itself cautions against that; that’s the Ninth Amendment (or you can read it into substantive due process or however you prefer). I agree that a lot of the Calvinball-esque oddities of constitutional jurisprudence are consequences of our vague constitution (which is not very well suited to a 21st-century country), but I don’t think that’s an argument for one made-up way of determining which individual rights are retained by the people over any other.

I wasn't trying to imply otherwise (although I think the Ninth Amendment and Privileges or Immunities tacks are both a hell of a lot sounder than the Due Process tack and think it's a deeply unpleasant accident of our history that the latter is what SCOTUS has normally preferred to go with). I'm just observing that if you do take a more text-oriented approach to individual rights in the American legal regime then even the Ninth Amendment just plain becomes very difficult to work with in a broadly convincing way because of how unspecific it is. But the Bill of Rights was almost certainly written and ratified with the expectation that the vague parts of it would be read through the general assumptions of the common law as it existed at that time, which is probably why both Roe and Dobbs feel the need to cherrypick that particular tradition as aggressively as they do.

[H.E. VOLODYMYR ZELENKSYY]

I think the Ninth Amendment is highly underrated. Perhaps the most underrated of all the amendments. It establishes that there must be some rights retained by the people beyond those enumerated by the Constitution itself (or if you don’t like it, you can look to substantive due process or the privileges and immunities clause or the emanating penumbras of the Bill of Rights - I don’t think it matters which one). The question is then how do we determine what rights there are? History and tradition? Sure, even though by their very nature both history and tradition are biased against women, racial minorities, LGBT people, etc. Even then there is historical and traditional support for the right to privacy. At this point, from Louis Brandeis through the Griswold line of cases, our legal system has firmly established a right to privacy and a right to make one’s own decisions regarding intimacy and family. There are countless cases that support this. To ignore them is to ignore over a century of history and tradition simply because one finds it inconvenient. To believe that whatever rights we retain are fixed by the imaginations of the Founders is to base our conception of what rights women possess on the beliefs of a group of men who considered them second-class citizens.

This is a compelling approach at common law, but it just takes on a ton of water as an interpretation of a codified set of rights, even if some of those rights are codified in a deliberately open-ended way. Possibly a lot of the uniquely Calvinball-ish aspects of American individual rights jurisprudence have to do with the uneasy coexistence of those features in our legal system.

But that’s my point, I don’t think you can just read the Constitution as a “codified set of rights” to the exclusion of all others. The text itself cautions against that; that’s the Ninth Amendment (or you can read it into substantive due process or however you prefer). I agree that a lot of the Calvinball-esque oddities of constitutional jurisprudence are consequences of our vague constitution (which is not very well suited to a 21st-century country), but I don’t think that’s an argument for one made-up way of determining which individual rights are retained by the people over any other.

I wasn't trying to imply otherwise (although I think the Ninth Amendment and Privileges or Immunities tacks are both a hell of a lot sounder than the Due Process tack and think it's a deeply unpleasant accident of our history that the latter is what SCOTUS has normally preferred to go with). I'm just observing that if you do take a more text-oriented approach to individual rights in the American legal regime then even the Ninth Amendment just plain becomes very difficult to work with in a broadly convincing way because of how unspecific it is. But the Bill of Rights was almost certainly written and ratified with the expectation that the vague parts of it would be read through the general assumptions of the common law as it existed at that time, which is probably why both Roe and Dobbs feel the need to cherrypick that particular tradition as aggressively as they do.

Oh I agree in general, for as much of a Goldberg Concurrence Enjoyer as I am I don’t think the Ninth Amendment (or any of those options) provides any textual support for any specific right per se. I don’t think it’s possible to take a fully text-based approach to unenumerated rights without getting into emanations and penumbras, because the founders in their infinite wisdom didn’t say anything about how to go about it within the constitution itself. At a certain point you just have to vibe with what you think the constitution and society are supposed to be About - do you want a more expansive approach to individual rights jurisprudence or a more restricted one?

[Amenhotep Bakari-Sellers]

Kentucky's abortion ban is now in effect after having been held up in state courts:

https://www.wowktv.com/news/local/abortion-ban-reinstated-in-kentucky/

Many females have access to birth control pills anyways and females at 40 goes thru menapause so it really doesn't matter, birth control pills is still legal

[GeorgiaModerate]

https://twitter.com/chrisgeidner/status/1554522450154627072

[Koharu]

A bit of reflection on history in relation to Dobbs.

https://twitter.com/BlkPerspectives/status/1554456803856961537?s=20&t=RzTOm4...

[Hermit For Peace]

Another read on the twitter feed above. (To be honest I hate tweets and quoted tweets.)

The Biden administration filed a lawsuit on Tuesday against Idaho for restricting access to abortion to patients who need lifesaving medical treatment, the first such Justice Department challenge since the Supreme Court overturned Roe v. Wade this summer.

Idaho's near-total abortion ban, which will take effect later this month, would make it nearly impossible, according to the Justice Department, for patients who need an abortion in emergency medical situations, such as an ectopic pregnancy or other complications, from receiving potentially lifesaving treatment.

The Justice Department is suing under the Emergency Medical Treatment and Labor Act, which states that hospitals receiving Medicare funds "must provide medical treatment necessary to stabilize that condition before transferring or discharging the patient," according to Tuesday's lawsuit.

EMTALA was a decision made by the Congress of the United States. The supremacy clause is a decision made in the Constitution of the United States. Federal law invalidates state laws that are in direct contradiction."

https://www.cnn.com/2022/08/02/politics/justice-department-abortion-idaho/index.html

[afleitch]

The first good morning of news to wake up to since the repeal.

[GeorgiaModerate]

https://twitter.com/HeartlandSignal/status/1555282122830745602