South Dakota Goes Retro

[Abbyas]

So I've been laughing at people worried about an Alito confirmation possibly damaging the Roe v. Wade decision.

"Overturn federally mandated abortion rights? Ha Ha! Never happen. That's just to distract you from the real issues."

But then the South Dakota legislature goes and makes the thing illegal.

What's the odds of this sticking? How at risk is the Supreme Court Decision?

 

[Luke T.]

Link

PIERRE - A contentious abortion bill passed the South Dakota Senate late this afternoon. The vote was 23 to 12.

Lawmakers spent much of this afternoon debating the bill, which has thrust South Dakota into the national spotlight.

House Bill 1215 would ban most abortions in South Dakota.

It now goes back to the House, which passed an earlier version and must now decide whether to accept changes made by the Senate.

The bill would then go to Gov. Mike Rounds.

Republican Sen. Bill Napoli of Rapid City said, "This bill is as straight
forward and as honest as it can be. It just says no more abortions unless the life of the mother is threatened."

 

[Luke T.]

ALITO: Well, Mr. Chairman, I think that the legitimacy of the court would be undermined in any case if the court made a decision based on its perception of public opinion. It should make its decisions based on the Constitution and the law. It should not sway in the wind of public opinion at any time.

SPECTER: Let me move to just a final quotation that I intend to raise from Casey.

SPECTER: And it is, quote, "After nearly 20 years of litigation in Roe's wake, we are satisfied that the immediate question is not the soundness of Roe's resolution of the issue but the precedential force that must be accorded to its holding."

That separates out the original soundness of Roe which has been criticized and then lays emphasis on the precedential value.

How would you weigh that consideration were this issue to come before you, if confirmed?

ALITO: Well, I agree that, in every case in which there is a prior precedent, the first issue is the issue of stare decisis. And the presumption is that the court will follow its prior precedents. There needs to be a special justification for overruling a prior precedent.

Alito confirmation hearing transcript

 

[JamesDillon]

It's hard to predict, really. Assuming the South Dakota law is passed, the ACLU or some such group will challenge it in court. In all likelihood, the trial court will rule the law unconstitutional on the basis of Roe, and the appellate court will affirm. What happens next will depend in large part upon the makeup of the Supreme Court. There's been some speculation that Justice Stevens may retire after this year-- he's currently 85 years old (and will be 86 in April). On the other hand, there's been speculation that Stevens has no intention of retiring. Assuming that the Supreme Court grants review of the case (it doesn't have to), and assuming that Stevens is still on the court, the best that the South Dakotans can realistically hope for is a 5-4 decision upholding Roe (assuming Roberts and Alito vote to uphold the South Dakota law and reverse Roe). If Stevens (or one of the other five liberal/moderate Justices) has retired by that point, it seems likely that the president would appoint an anti-abortion Justice to replace him, in which case it seems quite likely that the South Dakota law could be upheld, and Roe v. Wade reversed.

 

[Luke T.]

BROWNBACK: The very root of the issue is the legal status of the unborn child. This is an old debate. Whether that child is a person or is a piece of property is the root of the debate.

In our legal system, everything's either one of the two: you're either a person or you're a piece of property. If you're a person, you have rights; if you're a piece of property, you can be done with as your master chooses.

And I believe everyone agrees that the unborn child is alive. And most agree that biologically it is a life, a separate genetic entity. But many will dispute whether it's a person. These may be legal definitions, but that's the way people would define it.

Could you state your view as to whether the unborn child is a person or is a piece of property?

ROBERTS: Well, Senator, because cases are going to come up in this area, and that could be the focus of legal argument in those cases, I don't think it would be appropriate for me to comment on that one way or another.

BROWNBACK: We've had a discussion about this super stare decisis issue. And I just want to hold up a quick chart if I could -- if I've got it back here -- the notion that, because Roe has not been overturned in 30-some cases, makes it a super stare decisis: Plessy had not been overturned in a series of cases over a period of 60 years, where the court at each time looked at it, discussed it, decided against overturning it.

Yet I don't think anybody would agree that Plessy shouldn't have been overturned, and certainly not anybody from my state. We're the host state of Brown v. the Board of Education.

But the notion that by tenure a (inaudible) standing becomes a super stare decisis or by number of times that it's been looked at it become a super stare decisis I don't think finds a basis in law nor in practicality, as you noted. And some of these decisions up there, I would point out to you, are pretty onerous statements that the court put forward itself in how they upheld Plessy for a number of years.

Roberts confirmation hearing transcript

 

[Tmy]

My theory. Supreme Court Justices get off on their own power. Once they are voted in, they are now wild. They no longer have to tow party lines, they are in for life!!! The Supreme Courts ego means that they will refuse to be told what the can and cant do.

I bet that Alito will surprise people.

 

[JamesDillon]

My theory. Supreme Court Justices get off on their own power. Once they are voted in, they are now wild. They no longer have to tow party lines, they are in for life!!! The Supreme Courts ego means that they will refuse to be told what the can and cant do.

I bet that Alito will surprise people.

Isn't that the point of life tenure? Are you suggesting that Alito will be less conservative than the Republicans hope? Could be; it's happened before (e.g., Souter, O'Connor). But Roberts hasn't done much out of the gate to shake off his reputation as a Republican mouthpiece. Maybe Alito will be different, but I'm not counting on it until I see some reason to believe it.

 

[UserGoogol]

Maybe Alito will make contrary rulings just to spite people. "What's that? You thought I'd overtune Roe v. Wade? Hell no. In fact, abortions are mandatory from now on."