SCOTUS overturns Roe megathread (pg 53 - confirmed)

[politicallefty]

Alito's opinion reads exactly as if it came from a Republican politician. He even brought up the "most aborted fetuses are black" nonsense.

Say what you want about Thomas, but this guy literally doesn't have a judicial philosophy. He's a politician in robes.

That's almost every opinion from Alito. He's a right-wing Republican hack. I think I said before that I cannot imagine a worse Justice to have this opinion than Alito. Assuming that Roberts didn't go along with this, it was assigned by Thomas.

[politicallefty]

https://twitter.com/steve_vladeck/status/1521305387923816449?ref_src=twsrc%5Etfw...

[politicallefty]

I'm sure those cheering this decision will be the first among us to support ensuring Medicaid for pregnant women and ensuring that those born will be ensured healthcare throughout childhood, right?

[politicallefty]

I'm sure those cheering this decision will be the first among us to support ensuring Medicaid for pregnant women and ensuring that those born will be ensured healthcare throughout childhood, right?

Yes. As a Pro Life Progressive, Yes.

Makes me a rairity, but so be it. It's progresisve to support life.

I have seen nothing of the sort so far in terms of legislation across this country. If one were going to show oneself as pro-life, maybe put in some provisions that support life?

How many blue avatars or those of that persuasion? We all know how this will go. There will be no changes to Medicaid in the deep red states. They refused free money to expand Medicaid to all adults below 138% FPL. In many states, the cut-off is for pregnant women or women with children and the cut-off is well below the federal poverty line. And that's just the issue of healthcare. What about daycare? There's only one party that appears to support the idea of universal daycare. I don't see many so-called pro-lifers support that either.

[politicallefty]

21 pages? LOL. How certain is this to be true? I'm still skeptical.

Quite a few clerks and others have read the draft opinion. It looks like a SCOTUS opinion and reads like an Alito opinion. Unless something massive happens before the end of June, this is the end of Roe and abortion as a constitutional right.

[politicallefty]

https://twitter.com/DouglasKBlair/status/1523095574156742657

The people who leaked this need to be arrested and throw in prison for years

For what crime?

For leaking the address of supremes court justices . The police also should be sent to clear that neighborhood out

Your side may get its way in overturning Roe, but you don't get to overturn the First Amendment as well. That would invite war.

[politicallefty]

https://twitter.com/DouglasKBlair/status/1523095574156742657

The people who leaked this need to be arrested and throw in prison for years

For what crime?

For leaking the address of supremes court justices . The police also should be sent to clear that neighborhood out

Your side may get its way in overturning Roe, but you don't get to overturn the First Amendment as well. That would invite war.

This is undermining the free and fair judicial process, and clear example of intimidation

Where is that in the Constitution and how does it override the literal text of the First Amendment? Do you believe protests outside of the residences of Members of Congress should be barred by law? What about the White House itself, the residence of the President of the United States? If the protests get too massive, he could be intimidated as well. If the protests got too large, they should be quashed with the full force of the federal government, right?

[politicallefty]

Since when is a person's address classified material and above the level for people to protest? Just say you want a new restriction on First Amendment rights.

[politicallefty]

I'd really prefer debating someone with critical thinking skills higher than the average sea sponge.

[politicallefty]

Since when is a person's address classified material and above the level for people to protest? Just say you want a new restriction on First Amendment rights.

No I think they have all the right to protest but a large group of people descending on your neighborhood could absolutely intimidate the justices into making a decision which would undermine the judicial process.


I will say this the national guard should be sent in to protect their homes to ensure these protesters can’t step a foot on private property

That is the outer bound of even the most adamant free speech absolutist, such as myself. Protesters do not have a right to encroach upon private property, but the right to protest is one of the most fundamental rights of the First Amendment and of Western democracy as we know it.

[politicallefty]

I'd really prefer debating someone with critical thinking skills higher than the average sea sponge.

I'd prefer debating with someone who holds respect for the existence of a judicial branch that is not, as Roberts so eloquently said, "not to be intimated".

That was not directed towards you, as you can see that my post was made 5 seconds after yours.

Either way, the Supreme Court has already lost its legitimacy. This right-wing majority was conceived out of an effort to have certain Justices that would only rule a certain way. Don't pretend that this majority was looking at the Constitution or the facts presented. This is the crowning achievement of the decades-long effort to effect the elimination of our once-independent judiciary.

[politicallefty]

He’s right though. The problem with Roe (and why some on the left have a point with Obergafell although I don’t see it happening) is that it’s based on nothing in the constitution whereas the equal protection clause is not something anyone would challenge. Not to mention nobody opposes interracial marriage nowadays except crackpots whereas with abortion you have a large minority who views it as murder and a majority who view it at the very least as something to not be done lightly.

The issue is that, just like in Obergefell, Loving was based on a hybridization of the rights under the Due Process Clause and the Equal Protection Clause. It's probably the biggest issue I have with Justice Kennedy's opinion in Obergefell. I agree with it, but it was left vulnerable to an attack on substantive due process grounds. Both Loving and Obergefell are based on the fundamental right to marry that has been repeatedly upheld by the Supreme Court through the Due Process Clause (i.e. substantive due process).

The right to marry someone of another race, as a right under the United States Constitution, predates Roe by less than six years and was far more unpopular. The framework this Court has established in recent cases relies on "historical practices" and rights "deeply rooted in the Nation's history". Same-sex marriage obviously does not meet either of those definitions. However, the right to interracial marriage flunks those tests as well. The Fourteenth Amendment was adopted in 1868. A unanimous Court ruled in 1883 (Pace v. Alabama) that anti-miscegenation statutes were constitutional and could criminally prosecuted. It took another 84 years, 99 years after the adoption of the Fourteenth Amendment, for interracial marriage bans to fall. With this Court's reasoning, abortion should indeed be a right until the point of quickening. Of course, this Court writes its own version of history and the rights of all are at its mercy.

[politicallefty]

I wouldn't bet money on the right to travel surviving this Court's jurisprudence. I'm not sure what will survive this Court.

[politicallefty]

This is where we're at this country now:

Jim Bopp, an Indiana lawyer who authored the model legislation in advance of the Supreme Court’s decision overturning Roe v. Wade, told POLITICO on Thursday that his law only provides exceptions when the pregnant person’s life is in danger.

“She would have had the baby, and as many women who have had babies as a result of rape, we would hope that she would understand the reason and ultimately the benefit of having the child,” Bopp said in a phone interview on Thursday.

This is disgusting. And apparently a 10-year-old child is a woman too.

[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.

[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).

[politicallefty]

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.

For those that say the Scalia seat was stolen, the original steal was the Chief Justiceship and the Fortas seat. Republicans manipulated the process to ensure that Nixon got two more Justices than he would have otherwise gotten. In terms of luck, Democrats have had rotten luck even apart from those seats. If Democrats had won in 1968, they would have filled those two seats and replaced both Black and Harlan as well. The Fortas Court (or someone else if Fortas had resigned anyway) would likely have been even further to the left than the Warren Court. Democrats might have also been able to fill Douglas's seat as well.

Homer Thornberry was LBJ's selection for the Fortas Associate Justice seat (the seat that inevitably went to Blackmun). He died in 1995. Fortas died of an aortic rupture in 1982. Who knows if that would have happened if he'd been Chief Justice? On the other hand, if LBJ had never pushed for Fortas, it's quite possible Goldberg would have retired under Carter. There's a strong chance he would have nominated the first female Justice and it probably would have been Shirley Hufstedler. In that timeline, we definitely would not have gotten O'Connor in 1981. On the other hand, I don't know who had LBJ had in mind for Warren's seat if he'd never pushed for Fortas in 1965.

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?

I have written a number of times how much I agree with Justice Goldberg's concurrence in Griswold (with some exceptions that I think are the product of the time). I think it's generally a stronger argument than the majority opinion. "Penumbras" and "emanations" are far too vague to inject into constitutional jurisprudence, although everyone does it to a certain extent. I would argue that the freedom of association is one such right.

The Ninth Amendment as the method for unenumerated rights is preferable to me both on a textual basis and the fact that every other method is of higher deficiency. Substantive due process doesn't have enough textual basis for me. I think the Privileges or Immunities Clause is just another method of incorporating the Bill of Rights (including the Ninth Amendment) against the states. In effect, Congress overrode Barron v. Baltimore (a decision I personally think was wrongly decided). The new originalist tack seems to be so-called "historical practices" or rights "deeply rooted in the nation's history and traditions". In other words, whatever the right-wing majority sees fit to determine (and override decades, if not more, of established precedent). Not surprisingly, those don't seem to apply to religion or the Second Amendment.

[politicallefty]

Another thing I’ve been thinking about- will this election determine whether the pro-choice path forward is full gas on electoral politics or a new path towards civil disobedience is needed to an extent.

It's definitely going to get worse before it has any hope of getting better (apart from Michigan, I suppose). This election is only the beginning, especially in terms of ballot initiatives. I expect the flood gates to open on that for 2024 (and possibly 2023 for states that allow it). However, in many states (including most of the South), that method is unavailable. This map shows where some of the first major battles will be fought in terms of ballot initiatives. I expect the most prominent states to be Arizona, Ohio, and Florida (though Florida is complicated with its 60% threshold requirement). However, there are a lot of states if you look at the swath from Montana and the Dakotas and down through to Mississippi (although Mississippi itself effectively doesn't have an initiative process anymore due to a technical issue).

[politicallefty]

I hope no one on the left thinks the abortion debate is close to over. This is only just the beginning. To use a WWII analogy, we're still in 1939.

[politicallefty]

What’s the deal in Nebraska? Will the new senate be conservative enough to pass anything?

Even if something does, it would almost surely be subject to a veto referendum. If something like that was on the ballot in the 2024 general election, NE-02 probably wouldn't be a pretty sight for Republicans.