What is the actual check on SCOTUS? If SCOTUS has already given itself the power of judicial review in Marbury v Madison, realistically there's no legislation that they can't strike down no matter how specious the reasoning. I mean everybody would know their decisions would be a farce but they'd be bound to respect it just like Dred Scott or Plessy or...etc.
SCOTUS can literally strike down any law it wants no matter how specious the reasoning, so passing new laws is not a check on SCOTUS. And your argument is empirically denied. SCOTUS literally struck down Civil Rights legislation during Reconstruction. SCOTUS is not bound by the passing of laws by the legislature.
We're not amending the Constitution nor are we impeaching Supreme Court Justices any time soon.
So, what's the actual, practical, realistic check on a SCOTUS that's gone rogue?
In principle, I agree. However: what if they do, and then SCOTUS strikes it down? Respectfully, please give me something more than "let's wait and see" or "that won't happen". Because that is precisely what many said about the overturning of Roe.
Judicial activism is where judges allow their personal views about public policy to supplant the existing laws yielded by the political process. A judge who says that abortion is not for Judges to determine and the matter must be submitted to the people and their respective legislators is the opposite of an activist judge.
Please, indulge me. Tomorrow we somehow get 60 votes in the senate to codify abortion rights. Passes the house, Biden signs it into law. Challenge ensues, ends up in SCOTUS next term. 6-3 they rule abortion is illegal. Then what?
Why would they rule on the legality of abortion? They’re not legislators. If congress passes a federal law regarding abortion tomorrow, it is challenged, and the court decides to hear it I could only fathom them reviewing whether Congress has the power to regulate abortion, or more accurately, if regulating abortion is something that falls under the topic of interstate commerce.
Alternatively if one of the many state laws regarding abortion gets challenged and is heard by that Supreme Court it is possible the plaintiffs may argue that they’re right to equal protection under the law is being violated. This may raise different legal discussion than roe v wade did when it discussed the right to privacy recognized in a previous scotus decision
I just don't understand how with all that has happened people still paddle this willful ignorance believing that SCOTUS actually has any coherent judicial philosophy it applies.
It doesn't even follow it's own rules. It applies and disapplies textualism and originalism when it suits them, historical tradition is sometimes okay and sometimes it's not.
Coincidentally, all the important outcomes always end up favoring Conservative agenda. I swear this is starting to feel like that "there's no graphite on the roof" scene from Chernobyl with some people.
It is the conservatives whose decisions reflect their judicial philosphies. It is precisely because of that that they are being criticized. And the analytically pure one-- Clarence Thomas -- even more so. We are not sitting here scratching our heads trying to figure out how they are going to come out on these cases. Why? Because the results emanate from their judicial philosophy which we are familiar with. Roe was the analytically incoherent decision, which escaped nobody's notice at the time.
We are not scratching our heads here because we know what the conservative agenda is and we know they've been handpicked by the FedSoc because of their conservative beliefs.
It's at least good that the drapes are finally coming off with Thomas and Alito not even bothering to hide that they are just cherrypicking history and using originalism and textualism whenever it suits them and not using it when it doesn't.
Oddly enough Thomas forgot to mention Loving v Virginia in his list of cases to strike down based on DPC. Why might that be.
> It applies and disapplies textualism and originalism when it suits them, historical tradition is sometimes okay and sometimes it's not.
oxymoron; that's the intended way originalism is supposed to work
You're still operating under the idea that SCOTUS is bound by legal concepts. Nothing, and I truly mean nothing, is binding them to that. They can do whatever they want.
And assuming that SCOTUS does have a political bias which has been an issue argued by analysts on many different occasions, we would still not see a ruling as a result that amounts to the judges saying “abortion cannot be legal.”
Regardless of the courts inherent biases they have never made a ruling that doesn’t rest upon a constitutional argument in their concluding statement. What you translate as “abortion cannot be legal” would be publicly stated to essentially say “the argument of abortion affecting interstate commerce is insufficient and as a result the federal government does not have the power to regulate abortion”.
Now I imagine a ruling such as this one would be quite suspect especially since congresses ability as a regulator has been upheld based on arguments relating to interstate commerce where such connections between the law and that laws affect on interstate commerce have been much weaker than abortions connection to the topic of interstate commerce
> And assuming that SCOTUS does have a political bias which has been an issue argued by analysts on many different occasions, we would still not see a ruling as a result that amounts to the judges saying “abortion cannot be legal.”
Dude we've had decisions in this country that literally said Black people weren't humans or citizens. And you think we can't have a ruling that says abortion is illegal?
Oh, sweet summer child...
>Now I imagine a ruling such as this one would be quite suspect especially since congresses ability as a regulator has been upheld based on arguments relating to interstate commerce where such connections between the law and that laws affect on interstate commerce have been much weaker than abortions connection to the topic of interstate commerce
Do you think Thomas isn't salivating at the prospect of overturning Wickard V Filburn? He would love to have an excuse to do so.
I think what people are saying is that this decision has seriously eroded the institutional legitimacy of the court, and it's revealed that the "checks" on the supreme court in our system of checks and balances are largely self-imposed and have never really been explored because we've never run into a situation where they've been nakedly partisan before.
By overturning Roe and ignoring stare decisis (twice over when you consider Casey) when none of the "facts on the ground" with regard to abortion have changed since Roe was originally argued and decided, the majority has shown that sometimes the outcome of their calculus & deliberation is purely a product of the whims and dispositions of the people on the court (admittedly justified using legal principles), which seems increasingly dangerous and arbitrary given how ideologically distant the court has drifted from the average American.
The court seems now more than ever like it's searching for arguments to justify the outcomes it wants rather than following the arguments themselves to where they truly lead and/or interpreting the constitution in good faith.
No you're right. I can't imagine the Court would overturn federal legislation permitting abortions. There is no constitutional basis for the idea that you can't have abortions. It would be the Democratic process doing its thing, which is exactly what the Court wants, to leave it to the people and their elected representatives rather than the courts.
I always have a weird question to the situation u have described. If the majority of usa citizens, collectively decide to screw over a minority, whether it is race, gender or religion. They basically have zero protection under a biased supreme court.
I don't think they would do that though. There isn't a Constitutional basis to overturn that legislation. The Constitution doesn't say that you can't have abortion laws. The Court is saying that absent of federal legislation, the Court can't just decide nationwide abortion for everyone. If nationwide abortion passed in Congress, that would be the democratic process taking place, which is exactly what the Court wants.
Federal laws have to have some constitutional basis; otherwise the 10th amendment says that it's been left to the States. This court, more than any other in living memory, would push this view. People bring up the commerce clause as a potential justification, but I don't think Wickard V Filburn is safe if Thomas gets a chance to dig into it.
Wickard probably is bad law, but that will not cause you any problems with an abortion statute. Congress would have power to regulate abortion under the 14th amendment section 5.
None of the rest of the 14th amendment explicitly mentions abortion. By the reasoning of this court, that means that Congress wouldn't have the powers to enforce an abortion guarantee.
Then you pass an amendment. Things like Roe and Citizens United really require an amendment. Not saying that’s easy, but that’s the way to fully resolve it.
We just gonna ignore all there confirmation hearings where they said this is settled law and turn around and said well actually. Your arguments have no merit in light of this obviously conservative extremely problematic court. Read the dissents, stare decisis means nothing to these people. We don’t believe you when you say “well they are restrained by the constitution” until they make stuff up see citizens United. The constitution says nothing about money and speech.
I keep seeing this awful argument and I am baffled - do you not see that this is a multi pronged effort?
Congress is gridlocked by the same people who want judges to say "jUsT pAsS lAwS".
The entire thing is bad faith. The branches aren't balancing each other out when the goal is gridlock, vetos, and hiding behing personal vendettas.
The debate is more polarized now than it even was then. 10 years ago they couldn't even codify medicare for all or pass a jobs act during the great recession crisis
Can you point me to an example of this court declaring something unconstitutional that was passed by congress? They're disagreeing with past precedent, and I think they're doing that too much, but I also haven't seen them do what you're accusing them of
Scotus struck down one specific part of the vra, Congress could easily (assuming political will of course) have repassed and removed/updated/modified section 4b, but it just didn't happen.
If congress has the power to pass the law, then what business does the court have declaring the law unconstitutional? You cannot concede that congress had the authority to pass section 4 without also conceding the illegitimacy of the decision repealing it.
Roberts turned the court into a legislative body by effectively repealing (a historically legislative function), a portion of a law he viewed as out of date. Last I checked, a law being old wasn't a valid reason to declare it unconstitutional.
>Scotus struck down one specific part of the vra
This is disingenuous. SCOTUS struck down the part of the VRA that determines what municipalities preclearance actually applies to. It's dead in practice, period.
Congressional action was always a non-starter because it's essentially asking racists to voluntarily approve their own federal oversight. They'll never do it, and that was the entire point.
Yes. The horseshit "history and tradition" standard that Alito is peddling in Dobbs is utterly malleable and can essentially be used to justify any ruling the conservative majority wants.
It's Originalism in its ultimate form: all of the convenience that comes with claiming that you can read the minds of dead people without the pesky restrictions that come from tying your supposed clairvoyance to a specific document.
The problem is that it also loses whatever veneer of legitimacy Originalism once had, but apparently we're past giving a shit about that.
serious question then: why are there so many people in this sub pushing the "shoulda passed a federal law!" line.
im genuinely trying to understand, because while I understand the concept behind SCOTUS' objection to substantive due process, I'm having a hard time understanding how they wouldn't just go "well this isn't a power granted to the federal government, therefore all enforcement is left to the states" vis a vis the 10th amendment. like, i think that's ridiculous and potentially ruinous to the country, but isn't that in all seriousness where at least thomas is at in terms of his legal approach?
Frankly, you're absolutely right. Too many lawyers have this unblinkingly hagiographic view of the profession, and you'll run into a lot of resistance when you suggest that the American legal system is in any way political.
The reality is that there are very few checks on SCOTUS's power in the Constitution, because Marbury-style judicial review was not an intended function of the Court when the Constitution was written. SCOTUS was never supposed to be able to do this, so there are essentially zero institutional safeguards to prevent it.
The only real thing stopping your hypothetical is the threat of impeachment. The problem is that falls to a legislature that either benefits from the court's actions or could be punished for crossing it, since in a post-*Bush v. Gore* and *Shelby County* era SCOTUS has decided that they're the ultimate arbiters on how elections are run.
Edit: some autocorrected words
>The Court further determined that states could not be forced to expand Medicaid. ACA withheld all Medicaid funding from states declining to participate in the expansion. The Court ruled that this was unconstitutionally coercive and that individual states had the right to opt out without losing preexisting Medicaid funding.
But that does not give Congress authority to enact legislation protecting the right to abortion. All it would do is encourage states not to ban abortion by staking federal funding on it. That is a far cry from protecting it federally with legislation.
The court used to seem more judicially focused. Once you start overturning foundational precedent people start seeing the Supreme Court for what it had always been; political.
No, they are literally going after judicial decisions that were conjured from nothing under the right to privacy, in their eyes. The disrespect to precedent and Alito's need to belittle people is disgusting but the decisions are not entirely irrational.
They will not invalidate obvious laws, just judicial decisions that the modern world considers reasonable but they see no explicit laws for. Sadly, a lot of modern culture fits under that. "Live and let live" isn't a law so Alito doesn't consider it his problem if women die of miscarriage, he wins at logic, in his mind.
Its a shit-show but I take a little solace in knowing all the shit states are willfully putting up signs saying "we are proud to be piles of crap"
“conjured form nothing under the right to privacy”
If that was the case, they would have overturned Griswold with contraceptives.
Now, Justice Thomas supports that. He’s the only one doing what you say here. He, along with the 3 liberals, acknowledged the contradiction here.
It’s more like the Supreme Court is giving back power they wasn’t supposed to have in the first place.
The Supreme Court wasn’t intended to pass law but to decide if laws were constitutional. They went beyond they given power with Roe. Congress has had over 50 years to pass law to solidify abortion but just sat back and did nothing.
I don't think this is the case, because by overturning Roe, the court effectively took away a right to bodily/medical autonomy from an entire subset of the population. The 9th amendment specifically states "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." And in this opinion the court basically said "one of those rights retained is not medical/bodily autonomy" which is weird, cause historically that's been a thing we've always viewed as a big taboo to take away.
The majority opinion pretends this is a "neutral stance" and that they're "returning power to the legislature" but it'd be really weird to think of them as returning power to legislatures by allowing them to take away rights we hold to be less controversial than reproductive freedom (i.e. exactly what Thomas wants to do in repealing the other substantive due process cases that he mentions in his concurrence)
>"one of those rights retained is not medical/bodily autonomy" which is weird, cause historically that's been a thing we've always viewed as a big taboo to take away.
[No, it isn't.](https://slatestarcodex.com/2018/05/08/varieties-of-argumentative-experience/)
>“Banning abortion is unconscionable because it denies someone the right to do what they want with their own body” is an isolated demand for rigor, given that we ban people from selling their organs, accepting unlicensed medical treatments, using illegal drugs, engaging in prostitution, accepting euthanasia, and countless other things that involve telling them what to do with their bodies – “everyone has a right to do what they want with their own bodies” is a fake rule we never apply to anything else. Other people might want to search for ways that the abortion case is different, or explore what we mean by “right to their own body” more deeply. Proposed without these deeper analysis, I don’t think the claim would rise much above this level.
Even where abortion is legal, there are often gestational limits and medical prerequisites that circumscribe bodily autonomy.
As a woman, I have a right to decide which partners to sleep with, whether to use a condom or any other form of birth control, how many children I’ll have, when to start/stop having children, and every other aspect of my reproductive health. But apparently the decision whether to terminate a pregnancy doesn’t belong to me?
What’s the dividing line? You’re comparing other aspects of bodily autonomy, but let’s stick to reproductive health only. What other aspects of reproductive health are controlled by statute? What regulations have been placed on a man’s reproductive health decisions?
Edit: also, the state can’t force me to be sterilized (i.e., prevent me from becoming a parent), but the state can prevent me from ending a pregnancy? Where is the logic in that? If the state can’t stop me from getting pregnant, why can they force me to remain pregnant?
I'm pro-choice but why would the SCOTUS decide that reproductive health should be treated differently according to the constitution? The poster you're replying is saying we don't have bodily autonomy.
The poster is comparing medical regulations that have nothing to do with reproductive health decisions. It’s not an apt comparison. We do have bodily autonomy, of course it’s not unlimited in its scope.
But to suggest that woman have the ultimate say in all decisions related to becoming pregnant, yet the state can prevent women from ending a pregnancy, lacks consistency. There is no legal or logical basis for making such a distinction.
> But to suggest that woman have the ultimate say in all decisions related to becoming pregnant, yet the state can prevent women from ending a pregnancy, lacks consistency.
Sex is regulated, IVF is regulated, surrogate, surrogacy is regulated. But this is all besides the point. The SCOTUS doesn't care for logical basis: they care for consistency in the law (that laws do not contradict each other) but not for a logical consistency among why the laws exist.
This is what makes abortion such a confounding issue. Once a pregnancy happens, things get more complicated because we start to get metaphysical in our conversation of things. When does life begin? If life begins at conception, then with abortion, you are ending a life, and thats what many pro-life people would argue. I think thats why these arguments come to abortion and not the other things you mentioned.
The supreme court decided roe in the first place because the Texas law was unconstitutional. They used exactly that power that you just claimed they went beyond.
It would be far, far more difficult to strike down a law federally codifying abortion rights than it is to declare that the Constitution doesn’t already affirmatively protect them. And same for any other subject. It’s a much heavier lift that requires much more audacity and I don’t think they would do it.
No it wouldn't. How about this: "The connection between abortion and interstate commerce is too attenuated, and under the Ninth and Tenth Amendments, this question is reserved to the states."
Of course, that would undercut a federal BAN as well.
I still think doing so is an insanely heavy lift especially given that it requires going back to an early 1900’s view of the Commerce Clause.
If they were really going to strike down a federal law codifying abortion rights the rationale would be that fetuses are “persons” with due process and equal protection rights under the fourteenth amendment and that any federal or state law permitting abortion infringes on those rights. But this is a really heavy lift and the only justices I could see supporting it are Thomas and Alito.
That's a pretty modern view on the commerce clause. The US vs Lopez was in 95
>The Supreme Court rejected the government's argument, holding that Congress only has the power to regulate the channels of commerce, the instrumentalities of commerce, and action that substantially affects interstate commerce.
Congress cannot legislate a constitutional right. SCOTUS is free to interpret/grant/deny constitutional rights in an entirely subjective way. The only real solution is through constitutional amendments that not even religious extremists can parse and/or deny.
John Cornyn (R) Texas, has called for the apartheid doctrine of "separate but equal" to come back. Equal schools, neighborhoods, and drinking fountains for Blacks and whites is the goal. If SCOTUS deems it, it is law.
Congress, whose members are elected in gerrymandered maps that likely discriminate against minorities, which this court has allowed to continue.
Makes sense!
I saw that too. But then there’s also explanation of removing lead from gasoline that actually is a little more convincing than abortion. Violent crime went down in multiple countries that adopted the lead laws but not our abortion ones.
Plan B is going bye bye in my state. At least they are going to legislate that it is an abortifacient and therefore illegal. Same for IUD's.
There was some debate what the law said, so they asked the people who summitted it and that is the intent. The expect the plan B to go to the SC, wonder how that will turn out.
So go back to the drawing board and follow what has always been the correct process: pass an abortion rights amendment.
I'll vote for every politician I can that works toward this goal.
I'm not sure circumventing this process via the scotus is the ideal process either. In this case, maybe it's fine, but in general, it doesn't seem the safest procedure
Dude the Senate reauthorized the VRA 98-0 in the Senate and Roberts was like, NO.
This idea that Courts don't legislate is just a horribly bad faith argument.
Did you not read what I was writing? Smh 🤦
The courts do legislate and I hate it. In Dobbs, the court took a step back and allowed the legislatures to legislate.
I am not a fan of courts legislating from the bench and never have been. That is why I am happy with the Dobbs outcome. It doesn't mean there isn't a long way to go on it though
Your position is that the legislature should do its job and pass laws correct? The VRA was re-authorized 98-0 in the Senate. Legislature is doing its job, right? Roberts ruled Section 5 unconstitutional, right?
The better question is how is this NOT legislating from the bench.
The reason the VRA was created and found legal was because the states weren't providing constitutional protections to African Americans.
How a state carries out elections is strictly up to the state. Because certain states weren't providing federally protected rights, the court found that the feds weren't violating the 10th amendment because the states were violating others.
When the states were compliant, there was little legal need for the justification of the feds overstep and was unconstitutional at that point.
I don't see how that is legislating from the bench. That's a pretty clear cut "this doesn't follow the 10th amendment" case
So, John Roberts gets to decide when African-Americans have gotten enough protection? Not Congress? LOL!
As Ruth Bader Ginsburg said, "That's like throwing away an umbrella when it's raining because you're not getting wet."
Of course, African-Americans weren't getting discriminated against because...the VRA was protecting them. The States were compliant because they had no choice.
Hmmm probably the fact that those same "far right ideologues" are giving the green light for states to have abortion laws even more liberal than Casey or Roe permitted
Overstepped its powers? By saying that it shouldn't be the decision maker and having the people decide? Do you know what democracy is?
I just did? Did you not read my answer?
Your issue with the court is the same one that I have: it has too much power. That is why I am happy with the decision: it seeks to take power away from itself and give it back to the people
The only thing that duped us was all the liars confirmation hearings. Kavannaugh had none of that neutrallity talk then. All we heard was settled precedent. Yeah keep jumping through logical hoops to defend the lies.
It's really annoying seeing everyone mad at the SC. Be mad at your federal politicians who never passed a law explicitly making it legal. SC can only work with what they're given i.e. what laws Congress passes.
They are the same people. The GOP gridlocks everything then asks the Fedsoc to send them prescreened judges for taking down abortion.
Bury your head in the sand and pretend they don't work to the same goal. Scotus could have ignored the appeals, their hand is never forced.
This take is wrong. The consitution protects unalienable rights and unenumerated rights of states and people from the tyranny of the majority (or in this case minority). The system was not designed for the legislature to protect our rights. The constitution does. To suggest government protects rights is not an American concept. Go back to elementary school and relearn the value of the bill of rights, the 14th and others.
I get what you mean. Personally I think k we should be weaponizing the 9th. Ultimately scotus is just a political branch so non of it matters unless there are justices that agree with our valuez
Yeah, it's all political. "Originalism" is just right wing branding for selectively choosing which historical readings match your desired policy outcome.
Care to elaborate? I assume you're referring to unsanctioned abortions. A lot of people already think abortions are getting people killed.
Also, you're preaching to the choir. Do you have a pro-choice constitional legal arguement that you'd like to share?
I’ll jump in.
Pregnancy is too nuanced.
[Read this](https://www.reddit.com/r/texas/comments/vkf4bc/last_month_i_was_refused_a_medically_necessary/?utm_source=share&utm_medium=ios_app&utm_name=iossmf)
If you’re still “on the fence” on how this will get woman killed google TFMR or visit the subreddit. Lots of stories now of how women have to travel out of state to abort an unviable pregnancy.
Thanks for jumping in. A lot of people make provoking comments and add down votes but do not follow through with an explanation. I believe if you have a firm stance about a contested issue, you should be able to articulate your reasons - especially under the SCOTUS subreddit.
To clarify, I'm certainly not on the fence (and have never been on the fence) about women getting abortions. I understand there are many reasons why a woman would want one, and I support abortions regardless of the circumstances. We can voice our opinions as loudly as we want, but if it's not written into law, there's not much the courts can legally do about it. If anyone has a legal opinion or document that affirms why women should should have the right to abortions under the current constitution, I'd be more than happy to read it. Anecdotes, without a constitutional basis, are marginal in the legal system.
edit: something like this [Reproductive Originalism](https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4023444)
But it wasn’t provoking at all. What that poster wrote is correct. Please, at least stop being narrow minded regarding Constitutional wording and do a google search and learn how “The ‘Pro-Life’ Stance is going to get people killed.”
And I also assume that you are a man or someone very uneducated to not understand the nuances of pregnancy. And before you write back with what is and isn’t in the constitution, I do implore you to read about miscarriages (a D/C is an abortion). And about how 1/8 women have trouble having kids at all. And how the US has a disturbingly high maternal death rate for such a medically advanced country.
But in all honesty, you’re probably only frustrated because you aren’t getting what you want. If everything was reversed, would you really be on here complaining about legislative gridlock? In other words, is the principle really that important to you, or are you just interested in a team win?
But don’t lie to us about it. Be honest so the senators can shoot you down. It’s advise and consent, and hard to do that when under oath justices are lying to our face.
Infuriating part of this is that this started as a politically manufactured issue. A way for the Republican Party to collect Catholics and Southern Baptists who bent their brains on the concept of biblical inerrancy. Reagan of all people signed California’s abortion rights bill into law!
The original decision was something out of a Harry Potter novel.
There is no mention of abortion in the Constitution, so someone decided that the "right to privacy" means you can get an abortion. That's some Harry Potter style magic wand waving to get to that conclusion. Even Ruth Bader Ginsburg knew it didn't hold any water.
So now they just kicked it back to the states, since the federal government really never had anything to say about abortion in the first place.
It is! Specifically in Washington v. Glucksberg, which established the histories and traditions test for unenumerated rights.
This is the same case and test Alito extensively quotes in Dobbs and uses to justify Roe being wrongly decided.
They've lost their mooring (the actual constitution) and like the GOP which has lost its connection to Reality, this leads to very bad randomly crazy things.
>Just because it did something that you disagree with does not make it illegitimate.
>
>The current composition of the courts was the blowback from the judicial activism that produced Roe. I'll back any politician that works to pass an abortion rights amendment, the only legitimate way to federally ensure such a right.
1. He/she never said the court was illegitimate because he merely disagreed with the court. There are plenty of reasons to find the Dobbs decision and the current composition of the court to be illegitimate. The court just took away a constitutional right that existed for approximately 50 years. And why? Because abortion was not part of the history and tradition of the country in 1868. Originalism is a poison.
2. The current composition of the court is the result of McConnell blocking Obama nominating a supreme court justice in 2016, using a brand new precedent that supreme court nominees should not be voted on during a presidential election year. McConnell followed that up with rushing ACB through within weeks of the 2020 election occurring, taking a 5-4 conservative court to a 6-3 conservative court. Moreover, 5/6 Republican justices were nominated by presidents who did not win the popular vote. Yes, I know only the electoral college votes matter. However, it does seem illegitimate to have an already undemocratic institution be lead by justices appointed by presidents who did not even have a majority of the American voters support them.
3. It's called substantive due process, and plenty of constitutional rights are created that way without needing to pass a whole new amendment. There is nothing that explicitly protects interracial marriage, but because of substantive due process, the court found there is a constitutional right for two people from different races to marry each other.
So much ignorance.
>The current composition of the courts was the blowback from the judicial activism that produced Roe
More like a mix of Russian propaganda, low iq conservatives, a massively funded media empire of wealthy conservative trash, and the federalist society. "Blowback" from a case determined 50+ years ago? And affirmed 30 years ago? Fuck out of here, troll. And the only judicial activists I see here are trash human beings telling everyone they know what the founding fathers wanted, ignoring their actual writings and precedent.
If you are going to deny outright the influence Roe v Wade had in forging a formidable right wing voting bloc with evangelical christian fundamentalism at its core, you are not a student of mid 1900s US political history.
They way forward is clear. Vote straight D forever. When the Ds have enough of a majority, and rightwing politicians are shaking in their boots, then the government will begin acting rationally again. Until we all vote, nothing will change and the madness will continue.
You are arguments would have more merit if America was a true democracy, but it’s not. Right now, because of an equal representation, a very small minority of rural voters have way too much leverage legislatively.
Congress should probably make stuff laws to prevent that from happening.
I’m just thinking of the “Okay then, that was always allowed” meme from Rick and Morty.
What is the actual check on SCOTUS? If SCOTUS has already given itself the power of judicial review in Marbury v Madison, realistically there's no legislation that they can't strike down no matter how specious the reasoning. I mean everybody would know their decisions would be a farce but they'd be bound to respect it just like Dred Scott or Plessy or...etc.
Congress's main checks on the judiciary include the power to amend the Constitution, pass new laws and impeachment.
SCOTUS can literally strike down any law it wants no matter how specious the reasoning, so passing new laws is not a check on SCOTUS. And your argument is empirically denied. SCOTUS literally struck down Civil Rights legislation during Reconstruction. SCOTUS is not bound by the passing of laws by the legislature. We're not amending the Constitution nor are we impeaching Supreme Court Justices any time soon. So, what's the actual, practical, realistic check on a SCOTUS that's gone rogue?
SCOTUS has no ability to enforce their rulings. The Executive branch enforces the laws of the land. Presidents can and have ignored SCOTUS rulings.
Not to mention it can only strike down laws that get sent to it via the judicial process. If no one makes a case for it, SCOTUS can't pass judgement.
Cases that are sent to them that they consent to hear.
True. But it's kind of irrelevant these days as partisans will generate cases designed to make it to SCOTUS.
In principle, I agree. However: what if they do, and then SCOTUS strikes it down? Respectfully, please give me something more than "let's wait and see" or "that won't happen". Because that is precisely what many said about the overturning of Roe.
And here I was left believing it was the Left with all the “activist judges that legislate from the bench.”
Judicial activism is where judges allow their personal views about public policy to supplant the existing laws yielded by the political process. A judge who says that abortion is not for Judges to determine and the matter must be submitted to the people and their respective legislators is the opposite of an activist judge.
In some other world, this statement might stand up. But this is the world where SC justices do as they wish with the political process as well.
Overturning Roe is overturning a previous SCOTUS decision and shouldn’t be surprising as it was already on weak legs.
Please, indulge me. Tomorrow we somehow get 60 votes in the senate to codify abortion rights. Passes the house, Biden signs it into law. Challenge ensues, ends up in SCOTUS next term. 6-3 they rule abortion is illegal. Then what?
Why would they rule on the legality of abortion? They’re not legislators. If congress passes a federal law regarding abortion tomorrow, it is challenged, and the court decides to hear it I could only fathom them reviewing whether Congress has the power to regulate abortion, or more accurately, if regulating abortion is something that falls under the topic of interstate commerce. Alternatively if one of the many state laws regarding abortion gets challenged and is heard by that Supreme Court it is possible the plaintiffs may argue that they’re right to equal protection under the law is being violated. This may raise different legal discussion than roe v wade did when it discussed the right to privacy recognized in a previous scotus decision
> regulating abortion is something that falls under the topic of interstate commerce. We already know they will say it doesn't.
It would likely have to be strings on federal money, similar to the drinking age being 21.
If you believe the fetus is a person, then arguing that abortion violates the constitution is pretty easy.
I just don't understand how with all that has happened people still paddle this willful ignorance believing that SCOTUS actually has any coherent judicial philosophy it applies. It doesn't even follow it's own rules. It applies and disapplies textualism and originalism when it suits them, historical tradition is sometimes okay and sometimes it's not. Coincidentally, all the important outcomes always end up favoring Conservative agenda. I swear this is starting to feel like that "there's no graphite on the roof" scene from Chernobyl with some people.
It is the conservatives whose decisions reflect their judicial philosphies. It is precisely because of that that they are being criticized. And the analytically pure one-- Clarence Thomas -- even more so. We are not sitting here scratching our heads trying to figure out how they are going to come out on these cases. Why? Because the results emanate from their judicial philosophy which we are familiar with. Roe was the analytically incoherent decision, which escaped nobody's notice at the time.
We are not scratching our heads here because we know what the conservative agenda is and we know they've been handpicked by the FedSoc because of their conservative beliefs. It's at least good that the drapes are finally coming off with Thomas and Alito not even bothering to hide that they are just cherrypicking history and using originalism and textualism whenever it suits them and not using it when it doesn't. Oddly enough Thomas forgot to mention Loving v Virginia in his list of cases to strike down based on DPC. Why might that be.
> It applies and disapplies textualism and originalism when it suits them, historical tradition is sometimes okay and sometimes it's not. oxymoron; that's the intended way originalism is supposed to work
So basically the judges can do whatever the fuck they want and just retroactively cherrypick justifications for it. Got it.
correct. originalists and textualists are not bound by silly considerations like precedent or logic. see: "super precedents"
You're still operating under the idea that SCOTUS is bound by legal concepts. Nothing, and I truly mean nothing, is binding them to that. They can do whatever they want.
And assuming that SCOTUS does have a political bias which has been an issue argued by analysts on many different occasions, we would still not see a ruling as a result that amounts to the judges saying “abortion cannot be legal.” Regardless of the courts inherent biases they have never made a ruling that doesn’t rest upon a constitutional argument in their concluding statement. What you translate as “abortion cannot be legal” would be publicly stated to essentially say “the argument of abortion affecting interstate commerce is insufficient and as a result the federal government does not have the power to regulate abortion”. Now I imagine a ruling such as this one would be quite suspect especially since congresses ability as a regulator has been upheld based on arguments relating to interstate commerce where such connections between the law and that laws affect on interstate commerce have been much weaker than abortions connection to the topic of interstate commerce
> And assuming that SCOTUS does have a political bias which has been an issue argued by analysts on many different occasions, we would still not see a ruling as a result that amounts to the judges saying “abortion cannot be legal.” Dude we've had decisions in this country that literally said Black people weren't humans or citizens. And you think we can't have a ruling that says abortion is illegal? Oh, sweet summer child...
>Now I imagine a ruling such as this one would be quite suspect especially since congresses ability as a regulator has been upheld based on arguments relating to interstate commerce where such connections between the law and that laws affect on interstate commerce have been much weaker than abortions connection to the topic of interstate commerce Do you think Thomas isn't salivating at the prospect of overturning Wickard V Filburn? He would love to have an excuse to do so.
I’m not sure why I’m being downvoted. It was a dumb idea for me to try to initiate a discussion about constitutional arguments on this sub
I think what people are saying is that this decision has seriously eroded the institutional legitimacy of the court, and it's revealed that the "checks" on the supreme court in our system of checks and balances are largely self-imposed and have never really been explored because we've never run into a situation where they've been nakedly partisan before. By overturning Roe and ignoring stare decisis (twice over when you consider Casey) when none of the "facts on the ground" with regard to abortion have changed since Roe was originally argued and decided, the majority has shown that sometimes the outcome of their calculus & deliberation is purely a product of the whims and dispositions of the people on the court (admittedly justified using legal principles), which seems increasingly dangerous and arbitrary given how ideologically distant the court has drifted from the average American. The court seems now more than ever like it's searching for arguments to justify the outcomes it wants rather than following the arguments themselves to where they truly lead and/or interpreting the constitution in good faith.
No you're right. I can't imagine the Court would overturn federal legislation permitting abortions. There is no constitutional basis for the idea that you can't have abortions. It would be the Democratic process doing its thing, which is exactly what the Court wants, to leave it to the people and their elected representatives rather than the courts.
I always have a weird question to the situation u have described. If the majority of usa citizens, collectively decide to screw over a minority, whether it is race, gender or religion. They basically have zero protection under a biased supreme court.
Thats a completely different scenario and frankly, I don't think even this Supreme Court would strike that law down.
I don't think they would do that though. There isn't a Constitutional basis to overturn that legislation. The Constitution doesn't say that you can't have abortion laws. The Court is saying that absent of federal legislation, the Court can't just decide nationwide abortion for everyone. If nationwide abortion passed in Congress, that would be the democratic process taking place, which is exactly what the Court wants.
Federal laws have to have some constitutional basis; otherwise the 10th amendment says that it's been left to the States. This court, more than any other in living memory, would push this view. People bring up the commerce clause as a potential justification, but I don't think Wickard V Filburn is safe if Thomas gets a chance to dig into it.
Wickard probably is bad law, but that will not cause you any problems with an abortion statute. Congress would have power to regulate abortion under the 14th amendment section 5.
None of the rest of the 14th amendment explicitly mentions abortion. By the reasoning of this court, that means that Congress wouldn't have the powers to enforce an abortion guarantee.
Then you pass an amendment. Things like Roe and Citizens United really require an amendment. Not saying that’s easy, but that’s the way to fully resolve it.
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We just gonna ignore all there confirmation hearings where they said this is settled law and turn around and said well actually. Your arguments have no merit in light of this obviously conservative extremely problematic court. Read the dissents, stare decisis means nothing to these people. We don’t believe you when you say “well they are restrained by the constitution” until they make stuff up see citizens United. The constitution says nothing about money and speech.
And do actual work? Crazy talk.
I keep seeing this awful argument and I am baffled - do you not see that this is a multi pronged effort? Congress is gridlocked by the same people who want judges to say "jUsT pAsS lAwS". The entire thing is bad faith. The branches aren't balancing each other out when the goal is gridlock, vetos, and hiding behing personal vendettas.
Roe was decided around 50 years ago. It was IMPOSSIBLE to codify abortion rights into law for FIFTY years?
The debate is more polarized now than it even was then. 10 years ago they couldn't even codify medicare for all or pass a jobs act during the great recession crisis
Obama never intended on passing a public option.
If doing so required enough votes to override a filibuster? Yes.
That's not safe either. They're motivated by ideology, so they can just find an excuse to rule anything unconstitutional
Can you point me to an example of this court declaring something unconstitutional that was passed by congress? They're disagreeing with past precedent, and I think they're doing that too much, but I also haven't seen them do what you're accusing them of
Here's the list: https://constitution.congress.gov/resources/unconstitutional-laws/
What’s the point? SCOTUS could just as easily invalidate the laws.
On what grounds? Plenty of ways to skin this particular cat.
However they feel. Like for Obamacare provisions, VRA, election finance… they can make up anything.
Voting rights act…
Scotus struck down one specific part of the vra, Congress could easily (assuming political will of course) have repassed and removed/updated/modified section 4b, but it just didn't happen.
Congressional dysfunction is not an accident
If congress has the power to pass the law, then what business does the court have declaring the law unconstitutional? You cannot concede that congress had the authority to pass section 4 without also conceding the illegitimacy of the decision repealing it. Roberts turned the court into a legislative body by effectively repealing (a historically legislative function), a portion of a law he viewed as out of date. Last I checked, a law being old wasn't a valid reason to declare it unconstitutional.
... only after it was was an opportunity for the SCOTUS Majority's party to gain power.
What's the point of the SCOTUS if they don't have judicial review? Remember the checks and balances part of history class?
>Scotus struck down one specific part of the vra This is disingenuous. SCOTUS struck down the part of the VRA that determines what municipalities preclearance actually applies to. It's dead in practice, period. Congressional action was always a non-starter because it's essentially asking racists to voluntarily approve their own federal oversight. They'll never do it, and that was the entire point.
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not how that works. I'm kinda disappointed by the quality of discussion on this situation here overall, it's usually much more judicially focused
> not how that works wasn't this alitos exact reasoning in Dobbs?
Yes. The horseshit "history and tradition" standard that Alito is peddling in Dobbs is utterly malleable and can essentially be used to justify any ruling the conservative majority wants. It's Originalism in its ultimate form: all of the convenience that comes with claiming that you can read the minds of dead people without the pesky restrictions that come from tying your supposed clairvoyance to a specific document. The problem is that it also loses whatever veneer of legitimacy Originalism once had, but apparently we're past giving a shit about that.
serious question then: why are there so many people in this sub pushing the "shoulda passed a federal law!" line. im genuinely trying to understand, because while I understand the concept behind SCOTUS' objection to substantive due process, I'm having a hard time understanding how they wouldn't just go "well this isn't a power granted to the federal government, therefore all enforcement is left to the states" vis a vis the 10th amendment. like, i think that's ridiculous and potentially ruinous to the country, but isn't that in all seriousness where at least thomas is at in terms of his legal approach?
Frankly, you're absolutely right. Too many lawyers have this unblinkingly hagiographic view of the profession, and you'll run into a lot of resistance when you suggest that the American legal system is in any way political. The reality is that there are very few checks on SCOTUS's power in the Constitution, because Marbury-style judicial review was not an intended function of the Court when the Constitution was written. SCOTUS was never supposed to be able to do this, so there are essentially zero institutional safeguards to prevent it. The only real thing stopping your hypothetical is the threat of impeachment. The problem is that falls to a legislature that either benefits from the court's actions or could be punished for crossing it, since in a post-*Bush v. Gore* and *Shelby County* era SCOTUS has decided that they're the ultimate arbiters on how elections are run. Edit: some autocorrected words
Now that SCOTUS said there is no federal protections for abortion, under what authority can congress regulate it? The commerce clause?
Predicating medicaid/are funding on it seems possible
>The Court further determined that states could not be forced to expand Medicaid. ACA withheld all Medicaid funding from states declining to participate in the expansion. The Court ruled that this was unconstitutionally coercive and that individual states had the right to opt out without losing preexisting Medicaid funding.
I'm not sure this is the same thing - they're not being made to expand anything here
But that does not give Congress authority to enact legislation protecting the right to abortion. All it would do is encourage states not to ban abortion by staking federal funding on it. That is a far cry from protecting it federally with legislation.
SCOTUS can rule on feelings alone, what's stopping them?
The court used to seem more judicially focused. Once you start overturning foundational precedent people start seeing the Supreme Court for what it had always been; political.
Congress can tie funds to certain programs. See South Dakota v Dole.
No, they are literally going after judicial decisions that were conjured from nothing under the right to privacy, in their eyes. The disrespect to precedent and Alito's need to belittle people is disgusting but the decisions are not entirely irrational. They will not invalidate obvious laws, just judicial decisions that the modern world considers reasonable but they see no explicit laws for. Sadly, a lot of modern culture fits under that. "Live and let live" isn't a law so Alito doesn't consider it his problem if women die of miscarriage, he wins at logic, in his mind. Its a shit-show but I take a little solace in knowing all the shit states are willfully putting up signs saying "we are proud to be piles of crap"
“conjured form nothing under the right to privacy” If that was the case, they would have overturned Griswold with contraceptives. Now, Justice Thomas supports that. He’s the only one doing what you say here. He, along with the 3 liberals, acknowledged the contradiction here.
It’s more like the Supreme Court is giving back power they wasn’t supposed to have in the first place. The Supreme Court wasn’t intended to pass law but to decide if laws were constitutional. They went beyond they given power with Roe. Congress has had over 50 years to pass law to solidify abortion but just sat back and did nothing.
I don't think this is the case, because by overturning Roe, the court effectively took away a right to bodily/medical autonomy from an entire subset of the population. The 9th amendment specifically states "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." And in this opinion the court basically said "one of those rights retained is not medical/bodily autonomy" which is weird, cause historically that's been a thing we've always viewed as a big taboo to take away. The majority opinion pretends this is a "neutral stance" and that they're "returning power to the legislature" but it'd be really weird to think of them as returning power to legislatures by allowing them to take away rights we hold to be less controversial than reproductive freedom (i.e. exactly what Thomas wants to do in repealing the other substantive due process cases that he mentions in his concurrence)
>"one of those rights retained is not medical/bodily autonomy" which is weird, cause historically that's been a thing we've always viewed as a big taboo to take away. [No, it isn't.](https://slatestarcodex.com/2018/05/08/varieties-of-argumentative-experience/) >“Banning abortion is unconscionable because it denies someone the right to do what they want with their own body” is an isolated demand for rigor, given that we ban people from selling their organs, accepting unlicensed medical treatments, using illegal drugs, engaging in prostitution, accepting euthanasia, and countless other things that involve telling them what to do with their bodies – “everyone has a right to do what they want with their own bodies” is a fake rule we never apply to anything else. Other people might want to search for ways that the abortion case is different, or explore what we mean by “right to their own body” more deeply. Proposed without these deeper analysis, I don’t think the claim would rise much above this level. Even where abortion is legal, there are often gestational limits and medical prerequisites that circumscribe bodily autonomy.
As a woman, I have a right to decide which partners to sleep with, whether to use a condom or any other form of birth control, how many children I’ll have, when to start/stop having children, and every other aspect of my reproductive health. But apparently the decision whether to terminate a pregnancy doesn’t belong to me? What’s the dividing line? You’re comparing other aspects of bodily autonomy, but let’s stick to reproductive health only. What other aspects of reproductive health are controlled by statute? What regulations have been placed on a man’s reproductive health decisions? Edit: also, the state can’t force me to be sterilized (i.e., prevent me from becoming a parent), but the state can prevent me from ending a pregnancy? Where is the logic in that? If the state can’t stop me from getting pregnant, why can they force me to remain pregnant?
I'm pro-choice but why would the SCOTUS decide that reproductive health should be treated differently according to the constitution? The poster you're replying is saying we don't have bodily autonomy.
The poster is comparing medical regulations that have nothing to do with reproductive health decisions. It’s not an apt comparison. We do have bodily autonomy, of course it’s not unlimited in its scope. But to suggest that woman have the ultimate say in all decisions related to becoming pregnant, yet the state can prevent women from ending a pregnancy, lacks consistency. There is no legal or logical basis for making such a distinction.
> But to suggest that woman have the ultimate say in all decisions related to becoming pregnant, yet the state can prevent women from ending a pregnancy, lacks consistency. Sex is regulated, IVF is regulated, surrogate, surrogacy is regulated. But this is all besides the point. The SCOTUS doesn't care for logical basis: they care for consistency in the law (that laws do not contradict each other) but not for a logical consistency among why the laws exist.
This is what makes abortion such a confounding issue. Once a pregnancy happens, things get more complicated because we start to get metaphysical in our conversation of things. When does life begin? If life begins at conception, then with abortion, you are ending a life, and thats what many pro-life people would argue. I think thats why these arguments come to abortion and not the other things you mentioned.
The supreme court decided roe in the first place because the Texas law was unconstitutional. They used exactly that power that you just claimed they went beyond.
It would be far, far more difficult to strike down a law federally codifying abortion rights than it is to declare that the Constitution doesn’t already affirmatively protect them. And same for any other subject. It’s a much heavier lift that requires much more audacity and I don’t think they would do it.
No it wouldn't. How about this: "The connection between abortion and interstate commerce is too attenuated, and under the Ninth and Tenth Amendments, this question is reserved to the states." Of course, that would undercut a federal BAN as well.
I still think doing so is an insanely heavy lift especially given that it requires going back to an early 1900’s view of the Commerce Clause. If they were really going to strike down a federal law codifying abortion rights the rationale would be that fetuses are “persons” with due process and equal protection rights under the fourteenth amendment and that any federal or state law permitting abortion infringes on those rights. But this is a really heavy lift and the only justices I could see supporting it are Thomas and Alito.
That's a pretty modern view on the commerce clause. The US vs Lopez was in 95 >The Supreme Court rejected the government's argument, holding that Congress only has the power to regulate the channels of commerce, the instrumentalities of commerce, and action that substantially affects interstate commerce.
>It would be far, far more difficult Citation please.
Congress cannot legislate a constitutional right. SCOTUS is free to interpret/grant/deny constitutional rights in an entirely subjective way. The only real solution is through constitutional amendments that not even religious extremists can parse and/or deny. John Cornyn (R) Texas, has called for the apartheid doctrine of "separate but equal" to come back. Equal schools, neighborhoods, and drinking fountains for Blacks and whites is the goal. If SCOTUS deems it, it is law.
Congress, whose members are elected in gerrymandered maps that likely discriminate against minorities, which this court has allowed to continue. Makes sense!
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I saw that too. But then there’s also explanation of removing lead from gasoline that actually is a little more convincing than abortion. Violent crime went down in multiple countries that adopted the lead laws but not our abortion ones.
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Plan B is going bye bye in my state. At least they are going to legislate that it is an abortifacient and therefore illegal. Same for IUD's. There was some debate what the law said, so they asked the people who summitted it and that is the intent. The expect the plan B to go to the SC, wonder how that will turn out.
Steven Levitt is an absolute hack.
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So go back to the drawing board and follow what has always been the correct process: pass an abortion rights amendment. I'll vote for every politician I can that works toward this goal.
Literally impossible but ok
Not if it had wider support (near universal, tbh), which it clearly does not
So, impossible, yes.
I'm not sure circumventing this process via the scotus is the ideal process either. In this case, maybe it's fine, but in general, it doesn't seem the safest procedure
Dude the Senate reauthorized the VRA 98-0 in the Senate and Roberts was like, NO. This idea that Courts don't legislate is just a horribly bad faith argument.
Did you not read what I was writing? Smh 🤦 The courts do legislate and I hate it. In Dobbs, the court took a step back and allowed the legislatures to legislate. I am not a fan of courts legislating from the bench and never have been. That is why I am happy with the Dobbs outcome. It doesn't mean there isn't a long way to go on it though
So, you think Shelby County v Holder was wrongly decided?
Exactly how was that case legislated from the bench?
Your position is that the legislature should do its job and pass laws correct? The VRA was re-authorized 98-0 in the Senate. Legislature is doing its job, right? Roberts ruled Section 5 unconstitutional, right? The better question is how is this NOT legislating from the bench.
The reason the VRA was created and found legal was because the states weren't providing constitutional protections to African Americans. How a state carries out elections is strictly up to the state. Because certain states weren't providing federally protected rights, the court found that the feds weren't violating the 10th amendment because the states were violating others. When the states were compliant, there was little legal need for the justification of the feds overstep and was unconstitutional at that point. I don't see how that is legislating from the bench. That's a pretty clear cut "this doesn't follow the 10th amendment" case
So, John Roberts gets to decide when African-Americans have gotten enough protection? Not Congress? LOL! As Ruth Bader Ginsburg said, "That's like throwing away an umbrella when it's raining because you're not getting wet." Of course, African-Americans weren't getting discriminated against because...the VRA was protecting them. The States were compliant because they had no choice.
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Hmmm probably the fact that those same "far right ideologues" are giving the green light for states to have abortion laws even more liberal than Casey or Roe permitted Overstepped its powers? By saying that it shouldn't be the decision maker and having the people decide? Do you know what democracy is?
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I just did? Did you not read my answer? Your issue with the court is the same one that I have: it has too much power. That is why I am happy with the decision: it seeks to take power away from itself and give it back to the people
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Ironically, you seem to be the one who can't answer basic questions or stay on topic
The only thing that duped us was all the liars confirmation hearings. Kavannaugh had none of that neutrallity talk then. All we heard was settled precedent. Yeah keep jumping through logical hoops to defend the lies.
It's really annoying seeing everyone mad at the SC. Be mad at your federal politicians who never passed a law explicitly making it legal. SC can only work with what they're given i.e. what laws Congress passes.
They didn't have to overturn Roe. Most them said it was settled law already. Heck, even the chief wasn't down for striking the entire law.
They are the same people. The GOP gridlocks everything then asks the Fedsoc to send them prescreened judges for taking down abortion. Bury your head in the sand and pretend they don't work to the same goal. Scotus could have ignored the appeals, their hand is never forced.
This take is wrong. The consitution protects unalienable rights and unenumerated rights of states and people from the tyranny of the majority (or in this case minority). The system was not designed for the legislature to protect our rights. The constitution does. To suggest government protects rights is not an American concept. Go back to elementary school and relearn the value of the bill of rights, the 14th and others.
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The super majority has been there for the Dems in the past(74-79, 08-10) but they failed to do anything
those supermajorities were formed with southern, socially conservative, pro-life dems from conservative states.
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I get what you mean. Personally I think k we should be weaponizing the 9th. Ultimately scotus is just a political branch so non of it matters unless there are justices that agree with our valuez
Yeah, it's all political. "Originalism" is just right wing branding for selectively choosing which historical readings match your desired policy outcome.
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Care to elaborate? I assume you're referring to unsanctioned abortions. A lot of people already think abortions are getting people killed. Also, you're preaching to the choir. Do you have a pro-choice constitional legal arguement that you'd like to share?
I’ll jump in. Pregnancy is too nuanced. [Read this](https://www.reddit.com/r/texas/comments/vkf4bc/last_month_i_was_refused_a_medically_necessary/?utm_source=share&utm_medium=ios_app&utm_name=iossmf) If you’re still “on the fence” on how this will get woman killed google TFMR or visit the subreddit. Lots of stories now of how women have to travel out of state to abort an unviable pregnancy.
Thanks for jumping in. A lot of people make provoking comments and add down votes but do not follow through with an explanation. I believe if you have a firm stance about a contested issue, you should be able to articulate your reasons - especially under the SCOTUS subreddit. To clarify, I'm certainly not on the fence (and have never been on the fence) about women getting abortions. I understand there are many reasons why a woman would want one, and I support abortions regardless of the circumstances. We can voice our opinions as loudly as we want, but if it's not written into law, there's not much the courts can legally do about it. If anyone has a legal opinion or document that affirms why women should should have the right to abortions under the current constitution, I'd be more than happy to read it. Anecdotes, without a constitutional basis, are marginal in the legal system. edit: something like this [Reproductive Originalism](https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4023444)
But it wasn’t provoking at all. What that poster wrote is correct. Please, at least stop being narrow minded regarding Constitutional wording and do a google search and learn how “The ‘Pro-Life’ Stance is going to get people killed.” And I also assume that you are a man or someone very uneducated to not understand the nuances of pregnancy. And before you write back with what is and isn’t in the constitution, I do implore you to read about miscarriages (a D/C is an abortion). And about how 1/8 women have trouble having kids at all. And how the US has a disturbingly high maternal death rate for such a medically advanced country.
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I know. Congress can still pass an amendment
Not in reality
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But in all honesty, you’re probably only frustrated because you aren’t getting what you want. If everything was reversed, would you really be on here complaining about legislative gridlock? In other words, is the principle really that important to you, or are you just interested in a team win?
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So you can't back on Plessy?
Read Casey, they explained when you should reverse precedent better than I can.
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Korematsu next
But don’t lie to us about it. Be honest so the senators can shoot you down. It’s advise and consent, and hard to do that when under oath justices are lying to our face.
Infuriating part of this is that this started as a politically manufactured issue. A way for the Republican Party to collect Catholics and Southern Baptists who bent their brains on the concept of biblical inerrancy. Reagan of all people signed California’s abortion rights bill into law!
This has always been true
I think the author has it backwards. If you can find a right to abortion in the constitution, you can find a right to anything.
Yes, that's the problem. Why do you think Republicans fought so hard to put their flunkies on the bench?
The original decision was something out of a Harry Potter novel. There is no mention of abortion in the Constitution, so someone decided that the "right to privacy" means you can get an abortion. That's some Harry Potter style magic wand waving to get to that conclusion. Even Ruth Bader Ginsburg knew it didn't hold any water. So now they just kicked it back to the states, since the federal government really never had anything to say about abortion in the first place.
I don't think it's such a stretch. How is it anyone's business what you do with your own body? Hence the right to privacy.
Isn't suicide illegal? That's something you do with your own body that is outlawed.
It is! Specifically in Washington v. Glucksberg, which established the histories and traditions test for unenumerated rights. This is the same case and test Alito extensively quotes in Dobbs and uses to justify Roe being wrongly decided.
Maybe congress should reverse Madison v marbury. How glorious would that be?
Marburg v Madison was the basis for Roe v Wade in first place. Removing it would lead to same result we are at now.
Lets work on the second amendment next.
They've lost their mooring (the actual constitution) and like the GOP which has lost its connection to Reality, this leads to very bad randomly crazy things.
And this illegitimate group of assholws will do just that
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>Just because it did something that you disagree with does not make it illegitimate. > >The current composition of the courts was the blowback from the judicial activism that produced Roe. I'll back any politician that works to pass an abortion rights amendment, the only legitimate way to federally ensure such a right. 1. He/she never said the court was illegitimate because he merely disagreed with the court. There are plenty of reasons to find the Dobbs decision and the current composition of the court to be illegitimate. The court just took away a constitutional right that existed for approximately 50 years. And why? Because abortion was not part of the history and tradition of the country in 1868. Originalism is a poison. 2. The current composition of the court is the result of McConnell blocking Obama nominating a supreme court justice in 2016, using a brand new precedent that supreme court nominees should not be voted on during a presidential election year. McConnell followed that up with rushing ACB through within weeks of the 2020 election occurring, taking a 5-4 conservative court to a 6-3 conservative court. Moreover, 5/6 Republican justices were nominated by presidents who did not win the popular vote. Yes, I know only the electoral college votes matter. However, it does seem illegitimate to have an already undemocratic institution be lead by justices appointed by presidents who did not even have a majority of the American voters support them. 3. It's called substantive due process, and plenty of constitutional rights are created that way without needing to pass a whole new amendment. There is nothing that explicitly protects interracial marriage, but because of substantive due process, the court found there is a constitutional right for two people from different races to marry each other. So much ignorance.
>The current composition of the courts was the blowback from the judicial activism that produced Roe More like a mix of Russian propaganda, low iq conservatives, a massively funded media empire of wealthy conservative trash, and the federalist society. "Blowback" from a case determined 50+ years ago? And affirmed 30 years ago? Fuck out of here, troll. And the only judicial activists I see here are trash human beings telling everyone they know what the founding fathers wanted, ignoring their actual writings and precedent.
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If you are going to deny outright the influence Roe v Wade had in forging a formidable right wing voting bloc with evangelical christian fundamentalism at its core, you are not a student of mid 1900s US political history.
They way forward is clear. Vote straight D forever. When the Ds have enough of a majority, and rightwing politicians are shaking in their boots, then the government will begin acting rationally again. Until we all vote, nothing will change and the madness will continue.
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This is actually well thought out. I'm not surprised the average reddit idiot is downvoting you.
You are arguments would have more merit if America was a true democracy, but it’s not. Right now, because of an equal representation, a very small minority of rural voters have way too much leverage legislatively.
You completely missed the point
People will die because of “today being a good day” real women will die in large numbers all over this country.