The Roe Countdown

[Meadmaker]

Enjoy (the pdf takes awhile to download).
https://s3.documentcloud.org/documents/21835435/scotus-initial-draft.pdf

There have been multiple criticisms of his draft on factual grounds, including him quoting an English barrister who supported execution of witches.

Which doesn't sound like legitimate "factual grounds" to me. So what if he did? Is there some sort of legal issue associated with the barrister? I'm sure that barrister lived in a time where there were mighty stupid beliefs that got translated into mighty stupid laws. So what? I guess it depends what he said about that barrister and/or his writings.

Anyway, thanks for the link. I'll search it and see what I can find.

 

[Bob001]

Which doesn't sound like legitimate "factual grounds" to me. So what if he did? Is there some sort of legal issue associated with the barrister? I'm sure that barrister lived in a time where there were mighty stupid beliefs that got translated into mighty stupid laws. So what? I guess it depends what he said about that barrister and/or his writings.

Anyway, thanks for the link. I'll search it and see what I can find.

This is who Alito is relying on as a historical source:

When U.S. Supreme Court Justice Samuel Alito, in a draft opinion obtained and published this week by Politico, detailed his justifications for overturning Roe v. Wade, he invoked a surprising name given the case’s subject. In writing about abortion, a matter inextricably tied to a woman’s control over her body, Alito chose to quote from Sir Matthew Hale, a 17th-century English jurist whose writings and reasonings have caused enduring damage to women for hundreds of years.

The so-called marital rape exemption — the legal notion that a married woman cannot be raped by her husband — traces to Hale. So does a long-used instruction to jurors to be skeptical of reports of rape. So, in a way, do the infamous Salem witch trials, in which women (and some men) were hanged on or near Gallows Hill.

https://www.propublica.org/article/abortion-roe-wade-alito-scotus-hale

 

[Meadmaker]

A summary of some of the ignorance behind Alito's opinion:

https://www.washingtonpost.com/outlook/2022/05/06/alito-pregnancy-abortion-paid-leave/

As I suspected, the quote from WaPo, linked in the post above, is utter tripe. It is totally divorced from context and, in so doing, the meaning is changed completely. "The implcation" is not implied at all, but the explicit meaning is spelled out in the paragraph immediately following the paragraph from which the posts were lifted.

Basically, Alito was saying.

Supporters of abortion say, (insert pro abortion argument here).
Oppnents say (insert anti abortiona rguments here, including the ones quoted)

Then, comes the following paragraph:

"Both sides make important policy arguments, but sup- portersof Roe and Casey must show that this Court has the authority to weigh those arguments and decide how abor- tion may be regulated in the States. They have failed to make that showing, and we thus return the power to weigh those arguments to the people and their elected representative."

So, what the court is saying is, "We really don't care about policy arguments, because we're a court and we don't make policy."

 

[Delphic Oracle]

Which doesn't sound like legitimate "factual grounds" to me. So what if he did? Is there some sort of legal issue associated with the barrister? I'm sure that barrister lived in a time where there were mighty stupid beliefs that got translated into mighty stupid laws. So what? I guess it depends what he said about that barrister and/or his writings.



Anyway, thanks for the link. I'll search it and see what I can find.

Why should the words of a man who lived in a time where (when?) there were mighty stupid beliefs have any relevance to a discussion about private medical concern here in the present?

And yes, Mr "marital rape is totes okay" guy is a terrible person to quote in a legal opinion impacting female bodily autonomy. It kinda confirms that the entire idea comes from conceiving of women as chattel broodmares.

 

[Regnad Kcin]

You object to the Supreme Court thwarting local gun control, even though the Constitution specifically and explicitly protects gun ownership. But you're upset that the Supreme Court has stopped thwarting local abortion control, even though the Constitution makes no mention of or reference to abortion, or even "privacy".

Admit it: what you really object to is the Constitution itself.

You…you don’t really think we’re all that stupid, do you?

 

[Meadmaker]

This is who Alito is relying on as a historical source:

https://www.propublica.org/article/abortion-roe-wade-alito-scotus-hale

Well, that seems like a very good historical source. A discussion of abortion does indeed have roots in English common law, and one of the prime sources was indeed Matthew Hale. In fact, Hale is cited as well in the text of "Roe v. Wade". Moreover, Alito's discussion is directly and explicitly aimed at correcting an incorrect analysis of Hale et. al. that appeared in Roe v. Wade.

"Roe either ignored or misstated this history, and Casey declined to reconsider Roe faulty historical analysis. It is therefore important to set the record straight."

"This history" was the history of abortion law in the United States. Roe discussed that law, including the contributions of Sir Matthew Hale.

 

[Meadmaker]

And yes, Mr "marital rape is totes okay" guy is a terrible person to quote in a legal opinion impacting female bodily autonomy. It kinda confirms that the entire idea comes from conceiving of women as chattel broodmares.

Well, Alito didn't start it. See my previous post.

 

[Delvo]

So, what the court is saying is, "We really don't care about policy arguments, because we're a court and we don't make policy."

I had heard all along, from people both for and against abortion rights, that the original decision had been flimsy from a legal point of view, regardless of what one thinks of the consequences/policy. It's no surprise to see that those who are motivated by consequence/policy reasons to be against the original decision use that legal flimsiness to get what they want. Fortunately, it's no indication of willingness to go against precedents that were on more solid legal footing in the first place.

 

[smartcooky]

Asinine. This confuses several issues. Remember, we're discussing this in the context of vaunted "Originalism." Originalists are not supposed to pick n' choose what they want to believe; they're supposed to interpret the Constitution in accordance with the intentions of the framers (or what legislators ratifying the Constitution believed at the time). You've parroted the familiar talking points in the case of Roe: The word "privacy" never comes up in the Constitution, let alone "abortion." Judicial restraint demands leaving the matter to legislators, especially at the state and local levels (compare with anti-sodomy laws).

Yet, yet, yet, this same logic does not apply to weapons with regard to public safety because... the Second Amendment?? Never mind how the Marshall(!) Court ruled in Barron v. Baltimore. Are you referring to some other penumbra or emanation in the Constitution? As far as I know, there is no mechanism in the Originalist view, unless you want to say we did not "really" have the right to own guns until the 14th Amendment. A mechanism given to Congress was the "Necessary and Proper" clause. Do "Originalists" welcome a broad reading of the Elasticity clause? What about the Commerce clause? "Federalism for thee but not for me."

If you don't like state and local gun laws, vote in a new slate of legislators. If you want to say the Constitution protects a right to own weapons unconnected from militia service, then quote from the document. Or cite framers or legislators saying something to that effect. Or do anything because right now you're just failing and flailing. What you could do is bite the bullet.

Correct.

In essence, "originalists" are originalists only when it suits their political and/or religious agenda... the moment originalism runs counter to their agenda, it goes out the window!

 

[phiwum]

In an on-line chat with a columnist, a poster contends that overturning Roe v. Wade would constitute a Christian affront to her own Jewish faith traditions:





https://www.washingtonpost.com/opinions/2022/05/06/jennifer-rubin-reader-qa/



The Supreme Court only supports religious freedom for the right (in multiple senses) religion.

It's a dumb argument. Religious freedom doesn't make overturning Roe itself a violation of the Constitution, though if she lives in a place that bans early abortions (and she wants one?) she might make that case.

Sent from my SM-G991U using Tapatalk

 

[Delphic Oracle]

Well, Alito didn't start it. See my previous post.

Right, they both quoted him.

There's literally no other difference to make a judgment about the quote on, like context, interpretation, if it supports or condemns it, etc.

Well done.

 

[Upchurch]

Constitutional originalism is exactly like biblical literalism. You are still interpreting the material but you can reject any other interpretation for no other reason than it doesn’t match the True Word^TM (read as “your preferred interpretation”).

 

[Meadmaker]

So, we've seen putdowns of "originalism" and of "textualism" when it comes to constitutional interpretation.

What's an alternative?

The Supreme Court has the power of judicial review. They can declare a law invalid. When doing so, what sort of theory should guide them? What limits are there in their ability to do so? Is there a name for a school of thought that isn't textualism and isn't originalism, but which describes the proper role for justices tasked with conducting judicial review of laws passed by the legislatures of the states or by the federal legislative branch?

 

[The Great Zaganza]

Common Sense would be a good basis.
It's what Judge are supposed to have.

 

[psionl0]

What's an alternative?

One alternative is to stop stacking congress with enemies of the people.

The constitution belongs to the people. If there are any parts that are wrong or unclear then it should be up to the people to get it changed. Stacking the SC with judges who are willing to interpret away the bits that politicians don't like will just ensure that the constitution will never be relevant.

 

[The Great Zaganza]

It should be a solid rule that not all nominations should come from a single advocate organization such as the Federalist Society.
Not necessarily because they are evil incarnate, but simply because the SC needs more than a single point of view when making decisions. When it comes to jurisprudential opinion range, the five most conservative judges on the Court might just as well be only one.

 

[Paul2]

So, we've seen putdowns of "originalism" and of "textualism" when it comes to constitutional interpretation.

What's an alternative?

The Supreme Court has the power of judicial review. They can declare a law invalid. When doing so, what sort of theory should guide them? What limits are there in their ability to do so? Is there a name for a school of thought that isn't textualism and isn't originalism, but which describes the proper role for justices tasked with conducting judicial review of laws passed by the legislatures of the states or by the federal legislative branch?

Here are two linkies:

Selected Theories of Constitutional Interpretation by the Congressional Research Service

Not sure who or what did this one: https://cstl-cla.semo.edu/hhill/ui305/constitutional%20interpretationa.htm

 

[Upchurch]

Common Sense would be a good basis.
It's what Judge are supposed to have.

I've tended to agree with your posts in this thread, but "common sense" is the worst basis for just about anything. When people use the phrase "common sense" they generally mean "agrees with my opinion and doesn't think too hard about it".

A better foundation is a well reasoned argument based on laws, the Constitution, and what is fair and just. An argument that does not rely on religious belief, especially when the Constitution forbids it*.




*And, yes, I know the Constitution only forbids Congress from passing laws based on religious beliefs, but an honest SCOTUS shouldn't be a backdoor gateway for religious-based interpretations of laws to become the rule of the land.

 

[The Great Zaganza]

I've tended to agree with your posts in this thread, but "common sense" is the worst basis for just about anything. When people use the phrase "common sense" they generally mean "agrees with my opinion and doesn't think too hard about it".

A better foundation is a well reasoned argument based on laws, the Constitution, and what is fair and just. An argument that does not rely on religious belief, especially when the Constitution forbids it*.




*And, yes, I know the Constitution only forbids Congress from passing laws based on religious beliefs, but an honest SCOTUS shouldn't be a backdoor gateway for religious-based interpretations of laws to become the rule of the land.

I thought "fair and just" was common sense - but I might be biased.

 

[Skeptical Greg]

I thought "fair and just" was common sense - but I might be biased.

It's only common sense when someone agrees with you on the meaning of those two words..

Slave owners truly believed owning another (sub)human being was fair and just.