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Ed Justice Barrett

JoeMorgue said:
... which some red state will immediately challenge in Federal Court, which will then be overturned by the Theologian Court of the United States.
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I think the power of the purse is pretty secure, even among theology based justices. Once congress no longer wields the power of the purse, which is actually in the constitution, how long do you think the Supreme Court maintains their power of judicial review?
 
So what's the plan? Pass a law that challenges RvW, find a defendant to prosecute under the new law, appeal it all the way up, and get a ruling along party lines?

Probably not quite that. We've seen that the justices don't always rule along party lines. Presumably whatever law it is will have to satisfy at least some theory of constitutional interpretation that is palatable to at least five justices.

Or maybe such a law is already on the books somewhere, and the state prosecutor has been waiting for the court to shift, before bringing a case?

Anyway, if there's a constitutionally justifiable reason to overturn RvW, that's acceptable to at least five justices... then would their ruling be wrong? This isn't a question of what we'd like to have. It's a question of what the law actually says.
 
theprestige said:
So what's the plan? Pass a law that challenges RvW, find a defendant to prosecute under the new law, appeal it all the way up, and get a ruling along party lines?

Probably not quite that. We've seen that the justices don't always rule along party lines. Presumably whatever law it is will have to satisfy at least some theory of constitutional interpretation that is palatable to at least five justices.

Or maybe such a law is already on the books somewhere, and the state prosecutor has been waiting for the court to shift, before bringing a case?

Anyway, if there's a constitutionally justifiable reason to overturn RvW, that's acceptable to at least five justices... then would their ruling be wrong? This isn't a question of what we'd like to have. It's a question of what the law actually says.
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This is not my area of study, but it is my understanding that some southern states are pretty much constantly passing laws that try to make abortions less accessible and then but heads against RvW in the various courts. I feel like there is a never ending queue of such cases, but I could be wrong. It doesn't take a direct attack to weaken the precedential value of RvW.
 
Silly Green Monkey said:
No, it's a question of precedent. RvW is established precedent, it's already been ruled upon.
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In that case everybody is freaking out over literally nothing. RvW is safe no matter how many theocrats get "installed" on the court.

But I think you may be wrong:

https://en.wikipedia.org/wiki/List_of_overruled_United_States_Supreme_Court_decisions

Apparently the Supreme Court can in fact overturn its own precedents. When you think about it, this would explain why everybody is freaking out.
 
She sat out on Trump's appeal of Pennsylvania's election case today. I still don't trust her.

I believe Roe vs Wade will either be turned over or defanged by other decisions. After all, her motivation to enter law is to make abortion illegal.
 
theprestige said:
So what's the plan? Pass a law that challenges RvW, find a defendant to prosecute under the new law, appeal it all the way up, and get a ruling along party lines?

Probably not quite that. We've seen that the justices don't always rule along party lines. Presumably whatever law it is will have to satisfy at least some theory of constitutional interpretation that is palatable to at least five justices.

Or maybe such a law is already on the books somewhere, and the state prosecutor has been waiting for the court to shift, before bringing a case?

Anyway, if there's a constitutionally justifiable reason to overturn RvW, that's acceptable to at least five justices... then would their ruling be wrong? This isn't a question of what we'd like to have. It's a question of what the law actually says.
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Maybe we should ask this. In light of right to abortion having been the law of the land for decades, and that something like 3/4 of Americans today support it, would it be constitutional to roll back the clock? Against the tide of history and the desires of the majority and precedent?

If we're going back to 1955, well then, let's re-segregate, and put the gays back in the closet. If one established law can be repealed, the gate's open for others, ain't it?
 
xjx388 said:
I fail to see how abortion would be any different than gambling or marijuana. IOW, no state has made it a crime to travel to another state for those things.
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I think you've got this wrong. Maybe you don't and I'm the one getting it wrong. But it could be massively different than gambling or marijuana.

Alabama has legislated that a fetus is a person. If that law makes it to the Supreme Court, it could rule on whether that provision is constitutional. If it is, that makes a fetus a person in Alabama only. And I think it's problematic to have the Supreme Court affirming that the definition of full personhood can vary from state to state. I can't think of any example other than slavery where that situation was allowed to stand, and that's been over 150 years ago and it got very messy.

IIUC Alabama also holds women harmless while holding doctors criminally liable. That's a logical conundrum, but in real life there's no widespread call to punish the women legally, though I would argue the subtext is to punish women, just not with prison sentences.

There is a strange out - I think vacuum aspiration without a confirmed pregnancy would still be legal, but it means getting the procedure very early.
 
Lurch said:
Maybe we should ask this. In light of right to abortion having been the law of the land for decades, and that something like 3/4 of Americans today support it, would it be constitutional to roll back the clock? Against the tide of history and the desires of the majority and precedent?

If we're going back to 1955, well then, let's re-segregate, and put the gays back in the closet. If one established law can be repealed, the gate's open for others, ain't it?
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The Supreme Court neither establishes nor repeals laws. It does, however, sometimes overturn its previous rulings:

https://en.wikipedia.org/wiki/List_of_overruled_United_States_Supreme_Court_decisions

Try not to get hit on the head by any of those pieces of sky that are dropping around you.
 
theprestige said:
No, it's a question of precedent. RvW is established precedent, it's already been ruled upon.
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In that case everybody is freaking out over literally nothing. RvW is safe no matter how many theocrats get "installed" on the court.

But I think you may be wrong:

https://en.wikipedia.org/wiki/List_of_overruled_United_States_Supreme_Court_decisions

Apparently the Supreme Court can in fact overturn its own precedents. When you think about it, this would explain why everybody is freaking out.
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Yes the supreme court CAN overturn its own precedents.

Hopefully it does so when there is a valid reason... such as a major shift in society (e.g. the widespread acceptance of homosexuality caused the courts to overrule precedent on gay marriage). I don't think overturning Roe v. Wade just because "religious nuts rule the courts" counts as such a shift.

Plus, as others have hinted at, its possible that instead of completely overturning Roe v. Wade, the courts might slowly chip away at it by allowing ever more draconian limitations... "You can have an abortion, but you must have mandatory counseling"... "Your doctor must have 20 years experience giving abortions".... "you can only have it done on months that end in a 'y'". So technically Roe still exists, but abortion is pretty much outlawed in practice.

We have already seen hints of that with 2 recent cases... a law in texas that required doctors to have admitting privileges at local hospitals and clinics to have major upgrades. That would have severely reduced the number of operating clinics. That law was struck down 5-3. However, a very similar law in Louisiana was brought before the supreme court this year. It was struck down 5-4 (with Roberts being the swing vote), but the 4 other conservatives voted to keep the law in place, even though the previous ruling on the Texas law should have served as precedent.
 
Lurch said:
Maybe we should ask this. In light of right to abortion having been the law of the land for decades, and that something like 3/4 of Americans today support it, would it be constitutional to roll back the clock? Against the tide of history and the desires of the majority and precedent?
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Well, whether it is 'constitutional' is completely up to the supreme court... if they say that laws restricting abortion are constitutional, then it is.

And yes, it would be going against the wishes of a majority of voters in the united states. I wonder how many people might have voted differently in past elections if they realized just what would happen if Moscow Mitch and Stubby McBonespurs got there wishes to cram in a bunch of right-wing lunatic judges into the courts.
 
theprestige said:
....
Apparently the Supreme Court can in fact overturn its own precedents. When you think about it, this would explain why everybody is freaking out.
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Of course the Supreme Court can overrule or modify its previous decisions. Why would you imagine otherwise?

And a federal law could protect abortion rights no matter what the states do.
A federal law could set a general limit on state regulation, like the Kansas Court did in requiring a compelling interest to justify restrictions on abortion access. Or it might provide more structure for what states may and may not do.
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https://thehill.com/opinion/civil-rights/441630-a-federal-abortion-law-might-be-needed
 
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Segnosaur said:
Yes the supreme court CAN overturn its own precedents.

Hopefully it does so when there is a valid reason... such as a major shift in society (e.g. the widespread acceptance of homosexuality caused the courts to overrule precedent on gay marriage). I don't think overturning Roe v. Wade just because "religious nuts rule the courts" counts as such a shift.

Plus, as others have hinted at, its possible that instead of completely overturning Roe v. Wade, the courts might slowly chip away at it by allowing ever more draconian limitations... "You can have an abortion, but you must have mandatory counseling"... "Your doctor must have 20 years experience giving abortions".... "you can only have it done on months that end in a 'y'". So technically Roe still exists, but abortion is pretty much outlawed in practice.

We have already seen hints of that with 2 recent cases... a law in texas that required doctors to have admitting privileges at local hospitals and clinics to have major upgrades. That would have severely reduced the number of operating clinics. That law was struck down 5-3. However, a very similar law in Louisiana was brought before the supreme court this year. It was struck down 5-4 (with Roberts being the swing vote), but the 4 other conservatives voted to keep the law in place, even though the previous ruling on the Texas law should have served as precedent.
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Thanks. This is the kind of discussion worth having.
 
Bob001 said:
Of course the Supreme Court can overrule or modify its previous decisions. Why would you imagine otherwise?
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I think you must be replying to the wrong person. I've been the one pointing out that the Supreme Court can overrule itself. I've been pointing it out to people who have imagined otherwise.
 
Lurch said:
Maybe we should ask this. In light of right to abortion having been the law of the land for decades, and that something like 3/4 of Americans today support it, would it be constitutional to roll back the clock? Against the tide of history and the desires of the majority and precedent?
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It amazes me that there are things like this, where an overwhelming majority of people have one point of view and yet there are political parties for which the contrary view is a cornerstone of their manifesto and yet they are regularly returned to government.

It's the same in the UK where, taken policy by policy, Labour seems to have the more popular policies and yet, taken as a whole, apparently their manifesto is unacceptable. :confused:

In the US the majority of people are pro-choice, pro (more) gun-control, pro socialised medicine, pro higher taxes (on the wealthy), pro immigration and so on and yet the GOP get elected with the diametrically opposing policies.
 
The Don said:
It amazes me that there are things like this, where an overwhelming majority of people have one point of view and yet there are political parties for which the contrary view is a cornerstone of their manifesto and yet they are regularly returned to government.

It's the same in the UK where, taken policy by policy, Labour seems to have the more popular policies and yet, taken as a whole, apparently their manifesto is unacceptable. :confused:

In the US the majority of people are pro-choice, pro (more) gun-control, pro socialised medicine, pro higher taxes (on the wealthy), pro immigration and so on and yet the GOP get elected with the diametrically opposing policies.
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It's a question of Narrative, IMO: Republicans doing Socialism is an outlier, Democrats doing it is just the start.
 
The Don said:
It's the same in the UK where, taken policy by policy, Labour seems to have the more popular policies and yet, taken as a whole, apparently their manifesto is unacceptable. :confused:
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Not to take this too far off-topic, but there were two problems for Labour in the last election - the manifesto had too much in it, to the point that they Gish Galloped themselves; and people had to trust that Jeremy Corbyn would deliver on his promises, and the majority of people didn't trust him personally.

The more amazing thing to me about the last election result was that the Tories used the same tactic as Trump is now - positioning themselves as the opposition to power despite having spent the last decade in power - and it worked. Doesn't look like it's going to work for Trump, though.
 
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