It's Official: SCOTUS Overturns Roe v. Wade

[pogi]

10 hours ago, webbles said:

So, considering that substantive due process has been used for really bad precedents (Dred Scott and Lochner), it really does feel like maybe we shouldn't use it and instead move the rights that we want onto a more firmer legal doctrine.  I don't think he is wanting to overturn those rights, but just wants to invalidate the substantive due process doctrine so it can't be misused.

Thanks.  While I sympathize with wanting to invalidate substantive due process and move rights to more firm legal doctrine, I am not convinced that he has that process in mind of reinstating all of these rights on more firm ground (including abortion and SSM, etc).  I find it telling that he didn't directly call out Loving v Virginia which protects his right as a black man to marry his white wife and is partly based on substantive due process.  Had he done so, I think it would have been more reassuring to Americans that he is not on a political mission.   

Edited July 1, 2022 by pogi

[webbles]

55 minutes ago, Meadowchik said:

Check out this section which discusses the legal burden on the provider:

 3. It shall be an affirmative defense for any person alleged to have violated the provisions of subsection 2 of this section that the person performed or induced an abortion because of a medical emergency. The defendant shall have the burden of persuasion that the defense is more probably true than not.

https://revisor.mo.gov/main/OneSection.aspx?section=188.017

Is this (and potential other) details the reason Guttmacher characterized it the way it did?

 

No, Guttmacher was describing the process for an elective abortion which does require a 2 day waiting period.  Calm was talking about emergency abortions (such as for the life of the mother) which doesn't need a 2 day waiting period.  The abortion provider will need to prove that it was a true emergency.

Most of what Guttmacher talks about is the elective abortion procedure.  I've noticed that when exceptions are mentioned, it doesn't really go into the process for those.

[Amulek]

9 hours ago, webbles said:

So, considering that substantive due process has been used for really bad precedents (Dred Scott and Lochner), it really does feel like maybe we shouldn't use it and instead move the rights that we want onto a more firmer legal doctrine.  I don't think he is wanting to overturn those rights, but just wants to invalidate the substantive due process doctrine so it can't be misused.

Correct. Justice Thomas has long argued (consistent with much academic commentary) that insofar as the Fourteenth Amendment incorporates enumerated rights against the states and protects unenumerated rights, this work is done by the Privileges or Immunities Clause, and not the Due Process Clause.

As such, any right that has been found to be rooted in substantive due process is, by definition, "demonstrably erroneous" and thus ought to be overturned.

That doesn't mean that such rights couldn't find protection by the Fourteenth Amendment's Privileges or Immunities Clause, or by some other reasoning, just that the current precedent is flawed and thus ought to be jettisoned.

Of course, pretty much nothing I have seen about Justice Thomas in the media over the last week or so has bothered to recognize any of that. Instead, it's been nothing but cheep shots, misunderstandings, and (as was the case with the last article linked in this thread) outright misrepresentations.

Look, I'm not completely on board with all of Justice Thomas' legal thinking, but I respect that he sticks to his principles when interpreting the Constitution regardless of where that leads. You are never going to see a Thomas, J. opinion with a 'saving construction,' or any other quasi-political maneuver. No, you're going to get what you get...even if you might get upset.

 

[webbles]

20 minutes ago, pogi said:

Thanks.  While I sympathize with wanting to invalidate substantive due process and move rights to more firm legal doctrine, I am not convinced that he has that process in mind of reinstating all of these rights on more firm ground (including abortion and SSM, etc).  I find it telling that he didn't directly call out Loving v Virginia which protects his right as a black man to marry his white wife and is partly based on substantive due process.  Had he done so, I think it would have been more reassuring to Americans that he is not on a political mission.   

It is partly based on substantive due process, but it is also on equal protection.  The ones he talked about are solely based on substantive due process.  I see that as more telling that he doesn't really want to override many of the rights (there are probably some that he probably does want to override), just move them to a firmer foundation.  Loving already has that foundation, the others don't.

[Stormin' Mormon]

29 minutes ago, pogi said:

Thanks.  While I sympathize with wanting to invalidate substantive due process and move rights to more firm legal doctrine, I am not convinced that he has that process in mind of reinstating all of these rights on more firm ground (including abortion and SSM, etc).  I find it telling that he didn't directly call out Loving v Virginia which protects his right as a black man to marry his white wife and is partly based on substantive due process.  Had he done so, I think it would have been more reassuring to Americans that he is not on a political mission.   

It only rests in part on substantive due process. It also rests on the equal protection clause, which is much firmer constitutional footing (in Thomas' opinion, at least).  There's no reason to revisit Loving because Loving can stand perfectly fine with only an equal protection justification.

Quote

Yes. In a unanimous decision, the Court held that distinctions drawn according to race were generally "odious to a free people" and were subject to "the most rigid scrutiny" under the Equal Protection Clause. The Virginia law, the Court found, had no legitimate purpose "independent of invidious racial discrimination." The Court rejected the state's argument that the statute was legitimate because it applied equally to both blacks and whites and found that racial classifications were not subject to a "rational purpose" test under the Fourteenth Amendment. The Court also held that the Virginia law violated the Due Process Clause of the Fourteenth Amendment. "Under our Constitution," wrote Chief Justice Earl Warren, "the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State."

https://www.oyez.org/cases/1966/395

eta: Ninja'd

Edited July 1, 2022 by Stormin' Mormon

[Chum]

8 hours ago, Kenngo1969 said:

You call someone you don't know from Adam, have never even met, and are extremely unlikely to meet evil?  That's despicable.  You should be ashamed of yourself.

A personal introduction seems a weird bar to be able to qualify someone as evil.  Would you withhold an evil label from Idi Amin, Pol Pot, Gaddafi, Mussolini, Mobutu, Ceausescu, Milosevic or, say, the Adversary - just because you know them like you know Adam?

[Amulek]

24 minutes ago, pogi said:

While I sympathize with wanting to invalidate substantive due process and move rights to more firm legal doctrine, I am not convinced that he has that process in mind of reinstating all of these rights on more firm ground (including abortion and SSM, etc). 

Well you're absolutely right about that - at least with respect to abortion. In his concurrence, Justice Thomas flatly stated that "even if the Clause does protect unenumerated rights, the Court conclusively demonstrates that abortion is not one of them under any plausible interpretive approach."

 

24 minutes ago, pogi said:

I find it telling that he didn't directly call out Loving v Virginia which protects his right as a black man to marry his white wife and is partly based on substantive due process.  Had he done so, I think it would have been more reassuring to Americans that he is not on a political mission.   

There was no mention of Loving because, as mentioned before, Loving was held primarily on Equal Protection grounds, not substantive due process. Go back and read the opinion; the bit about substantive due process is nothing more than a couple-sentence afterthought tacked on at the end of the opinion. Throw out substantive due process and there would be absolutely zero impact on Justice Thomas' own "loving" marriage.

 

[pogi]

1 hour ago, smac97 said:

Ok, I think I see what you are saying.  Let me lay out a few thoughts:

1. Jurists (typically, at the trial court, "Judge _____________" and at the appellate court, "Justice _____________") are, or should be, try to be very cautious in creating law, which is supposed to be the principal function of the Legislative Branch (Congress), with the Executive Branch executing/enforcing the laws, and the Judicial Branch interpreting the application and, if necessary, the constitutionality of the laws.  

2. As a practical matter, all three branches "create" laws.  You already know how Congress does this.  The Executive Branch does this primarily through "executive orders" and administrative/regulatory rules and regulations (all the federal regulatory agencies - SEC, EPA, OSHA, etc. all fall within the Executive Branch), and the Judicial Branch does this by creating "common law" and "precedent," and also through "judicial review."

3. "Common Law" is "the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."  It originated in the English courts way back in the day, when there were plenty of legal disputes, but far fewer codified laws to resolve them.  So judges started to make up laws to account for these omissions.  Over time, the "judge-made" laws that stood the test of time, that are upheld on appeal, etc., become "precedent," which is "a principle or rule established in a previous legal case that is either binding on or persuasive without going to courts for a court or other tribunal when deciding subsequent cases with similar issues or facts."

4. Because we have both Congress and the states' individual legislatures, through the centuries the scope of Common Law has been substantially whittled down.  Because the principal role of the Legislative Branch is to create law, it can enact a statute to regulate an issue previously governed by Common Law, at which point the Common Law becomes subordinated to the statutory law.

5. The U.S. Supreme Court ("SCOTUS") plays a fairly specialized role in all of this, in that it is the final say as to A) the interpretation and application of the U.S. Constitution, B) the interpretaton and application of all federal laws and treaties, C) disputes between states or between citizens of different states, D) disputes between federal and state authorities, and E) disputes about state laws that may violate the Constitution.  The ability of SCOTUS to "create law" is almost entire derivative, that is, by "judicial review" of a law enacted somewhere else (a federal statute, a state statute, a regulatory law, etc.).

6. Of particular note is the role SCOTUS plays in interpreting the U.S. Constitution.  This is really where the rubber hits the road, as the Constitution was drafted long ago and is the foundational instrument by which all other laws are made.  This interpretative function ends up playing a hugely important role.  Part of the Constitution, Article V, governs how the Constitution can be amended (changed or added to).  SCOTUS plays no part in this process.  At all.  That non-function by SCOTUS has a bit impact to the extent it affects the philosophical approach SCOTUS takes to interpreting the Constitution.

7. There are two broadly divergent and dominant "branches" of thought on that topic, with one branch (generally referred to as "originalism" or "strict constructivism") positing that "that the terms of the United States Constitution should be interpreted as meaning what they meant when they were ratified" and/or that the Court "limits or restricts such interpretation only to the exact wording" of the constitution, and with the other branch (generally referred to as "Living Constitution") positing that the Constitution "holds a dynamic meaning that evolves and adapts to new circumstances even if the document is not formally amended."

8. "Originalist" justices feel very strongly that the "Living Constitution" approach (Ruth Bader Ginsburg being a notable example) runs the real risks of A) disregarding the text of the Constitution, B) the Constitution being effectively "amended" by fiat of a handful of justices rather than by the amendment process explained in Article V, and C) that it encouraged "judicial activism," in which unaccountable judges misappropriate the functions of the representative legislature.

9. Justice Thomas is an originalist:

Thomas is also apparently willing to keep stare decisis at arm's length:

10. I think these two attributes together result in Justice Thomas advocating for SCOTUS being as minimally legislative and interventionist as possible.  In other words, he does not like the idea of SCOTUS making up law, or of deferring to its own prior rulings that make up law. 

11. It is this philosophy toward restraining the scope of SCOTUS authority that I think may be causing you to dislike Justice Thomas.  Take a look at what you say here:

It seems like you are okay with an "the ends justify the means" approach to how SCOTUS operates.  That is, if you like the "ends," you don't care whether the "means" SCOTUS uses to reach them matters.  Is that a fair characterization?

Originalists like Justice Thomas are concerned about government overreach and abuse of authority, even when that overreach yields results that people like.  But the problem here is that sooner or later SCOTUS (or some other branch of government) will overreach in a way we do not like.  But since we have already surrendered power to the government by embracing its overreaching and abuse of power as demonstrated over there, we are in trouble in opposing overreach / abuse over here.

Justice Thomas wants to curb that urge.  He wants to limit the role and function of government to its constitutional parameters.  That does not mean he is staking out a particular position on a disputed issue (abortion, contraceptives, interracial marriage, etc.).  Rather, it means that he is saying that such issues are not within the stewardship and authority of SCOTUS to decide, and that such issues must instead be addressed in accordance with the Constitution.  The Constitution allocates some limited responsibilities to the federal government, and leaves the rest for the individual states and the people.  Justice Thomas rejects the "ends justify the means" approach to interpreting the Constitution.  He may very well like the "ends," but he is insisting that we use constitutional "means" to get there.  

Regarding the other cases about which you have some concern, he is not saying they must be overruled, but that they should be "reconsidered" to make sure that Constitutional "means" were used to reach those "ends."

With respect, I disagree.  I think he is advocating for judicial restraint not judicial activism.  Take a look:

SCOTUS should, broadly speaking, not be in the business of amending the Constitution outside of Article V.  SCOTUS should not be fabricating law.  That is the epitome of "judicial activism."

SCOTUS should, instead, constrain itself to its proper role, and refuse to create laws where Congress has failed or refused to do so.

That's a pretty good philosophy, IMO.

They may well be right.  Or not.  Time will likely tell.  

Yes.  But he was here speaking of potentially overturning these other cases not because the "ends" were necessarily erroneous, but rather because of the unconstitutional (in his view) means used to reach them.  As you can see from above, he is open to examining whether the "ends" of these decisions can be reached by alternative legitimate (that is, constitutional) means ("After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated").

And even if such alternative "constitutional provisions" are not found, those "rights" can be A) legislated by Congress, B) legislated by state legislatures, C) found in or added to state constitutions, D) left unregulated.  And at this point, there is  so much popular support for the "ends" of Griswold (re: contraceptives) that the likelihood of one of these alternative (and constitutionally permissible) "means" working is nearly absolute.  The "ends" of Lawrence (criminalizing consensual sexual behavior) and Obergefell (same-sex marriage) are also susceptible to being found using one or more of the foregoing alternatives.  Frankly, I think society has come too far to return to the status quo ante on either of these (in contrast to our national 50-year-long convulsions relative to Roe.

Bringing what "into question?"  Constitutional rights that may not exist?  Rights that may have been improperly fabricated and added into the Constitution by a handful of unelected justices?

Ours is a constitutional republic, not a fiefdom of unelected activists who rule by fiat.  SCOTUS has a hugely important role to play, including adjudicating issues pertaining to rights not specifically enumerated in the Constitution.  I am grateful that we have people like Justice Thomas who are willing to go against human nature and resist taking power, and who return social/policy issues to Congress, which is where they belong under our constitutional framework.

I am all the more grateful that Justice Thomas is willing to do these things while knowing that terrible things are being said about him.  I admire a person who is willing to do what is right, even when doing so is not popular.

Thanks,

-Smac

I am not particularly a fan of substantive due process and I see how it can be used by activist judges to give them powers that they should not have.  

Having said that, unless one intends to uproot any sense of privacy and create seriously concerning vulnerabilities for the American people, one should be advocating for amendments to the bill of rights - making these unenumerated rights enumerated - or alternative legal devices (or whatever legal jargon you want to insert here) to protect these cherished rights in ways that do not rely on substantive due process before seeking to overturn all of these rulings.  That, to me, is the madness in this.  There is simply no guarantee that these unenumerated rights we take for granted can or will be protected in the future after these rulings based on substantive due process are overturned, or if they are eventually reinstated it could take countless years and even generations given the current political climate.  Unwise. 

I do not trust that there is not an element of political activism in his methods.  I think he knows that overturning these rulings puts these rights at risk of ever being protected in the future - especially with the conservative majority that he holds in the court currently.  I think he is using this majority as a political opportunity to separate the wheat from the tares, as he sees it.   By disbanding all substantive due process, he can then (with the majority in the court) reinstate those rights he cares about under alternative legal means and reject those rights he opposes (SSM, etc. that he specifically mentioned).  Fortunately, it doesn't seem that the other Justices are on board with him.  

 

[Chum]

8 hours ago, Kenngo1969 said:

You call someone you don't know from Adam, have never even met, and are extremely unlikely to meet evil?  That's despicable.  You should be ashamed of yourself.

Just FYI that shaming people has an earned history as a shameful activity. Before publicly shaming someone, I suggest taking the time to consider it from every angle.

Edited July 1, 2022 by Chum

[pogi]

43 minutes ago, Stormin' Mormon said:

There's no reason to revisit Loving because Loving can stand perfectly fine with only an equal protection justification.

Theoretically and most likely true, but that is yet to be seen.  If he wants to rid the system of all substantive due process to prevent future rulings from using it, then he has to review and remove all precedent in all cases which even partly rely on it in their ruling.   

Edited July 1, 2022 by pogi

[Stormin' Mormon]

5 minutes ago, Chum said:

A personal introduction seems a weird bar to be able to qualify someone as evil.  Would you withhold an evil label from Idi Amin, Pol Pot, Gaddafi, Mussolini, Mobutu, Ceausescu, Milosevic or, say, the Adversary - just because you know them like you know Adam?

All the dudes you named have COMMITTED evil deeds.  No one disputes that they did those deeds, or that the deeds they did were unequivocally evil.  But we tread in very dangerous territory if we label someone as evil based only on their political or legal beliefs.  Does Justice Thomas kick puppies?  Does he steal money from orphanages?  No.  He disagrees with you on public policy and legal theory. 

Hyperbole like this is why we can't have nice things in this country. We treat our political opponents as if they were either evil or stupid, cuz that's the ONLY possible reason someone might disagree with us. It's unhelpful and counterproductive.

[Meadowchik]

35 minutes ago, webbles said:

No, Guttmacher was describing the process for an elective abortion which does require a 2 day waiting period.  Calm was talking about emergency abortions (such as for the life of the mother) which doesn't need a 2 day waiting period.  The abortion provider will need to prove that it was a true emergency.

Most of what Guttmacher talks about is the elective abortion procedure.  I've noticed that when exceptions are mentioned, it doesn't really go into the process for those.

My point is that with the burden on the provider to effectively "prove innocence" the status of legality of abortions for medical emergencies is murky.

[mtomm]

10 minutes ago, Stormin' Mormon said:

All the dudes you named have COMMITTED evil deeds.  No one disputes that they did those deeds, or that the deeds they did were unequivocally evil.  But we tread in very dangerous territory if we label someone as evil based only on their political or legal beliefs.  Does Justice Thomas kick puppies?  Does he steal money from orphanages?  No.  He disagrees with you on public policy and legal theory. 

Hyperbole like this is why we can't have nice things in this country. We treat our political opponents as if they were either evil or stupid, cuz that's the ONLY possible reason someone might disagree with us. It's unhelpful and counterproductive.

I remember his confirmation hearings. I believe Anita Hill. I believe the  actions she described are evil.   I am not ashamed for calling him evil. He sits on the court and he should not be a political enemy. However, since the beliefs and actions of his best friend may be influencing him perhaps it is more difficult for him to remain non-political and that's not my fault. 

[webbles]

9 minutes ago, Meadowchik said:

My point is that with the burden on the provider to effectively "prove innocence" the status of legality of abortions for medical emergencies is murky.

Possible but that section looks fairly normal.  If a provider believes that it is an emergency (such as ectopic pregnancy), then they should easily be able to prove that it is an emergency.

[Stormin' Mormon]

8 minutes ago, Obehave said:

Yes and it's also not good.

The word evil often refers to what is believed to be not good.

The word "evil" goes quite a bit further than just "not good."  The English language has amazing gradations in our choices in adjectives.  I suggest we use them. 

[Stormin' Mormon]

23 minutes ago, mtomm said:

I remember his confirmation hearings. I believe Anita Hill. I believe the  actions she described are evil.   I am not ashamed for calling him evil. He sits on the court and he should not be a political enemy. However, since the beliefs and actions of his best friend may be influencing him perhaps it is more difficult for him to remain non-political and that's not my fault. 

As my kids would say: valid. 

My calculus is a little different.  If he were truly an evil person, the sorts of acts alleged by Anita Hill would have been repeated somewhere at sometime.  But as far as I know, there have been no other allegations of sexual misconduct against him before or since.  That doesn't make the alleged act "not evil," it just makes it uncharacteristic of the accused.  I really hesitate to call anyone evil based on a single act, much less one whose truthfulness can't be established beyond a he-said-she-said.  Others will make different calculations, and weigh the evidence in different ways.  I can't fault them for that.

Regardless, I think "evil" is a loaded word and should be reserved for the absolute worst actors in our body politic.  Otherwise, we lessen the impact of its use when we REALLY need to use it.  Not to get too political (on a thread that's already verging into politically-charged territory), I think that's why Trump's political opponents couldn't stop or slow his momentum in 2016.  He was accused of many of the same things that Romney was.  If one of the most fundamentally decent guys to ever run for president was painted with the same rhetoric as Trump, how bad could the latter really be? 

Edited July 1, 2022 by Stormin' Mormon

[Stormin' Mormon]

2 minutes ago, Obehave said:

Okay, so evil is not only not good but also the opposite of what is good.

Why use other words if the point you want to make is that you think what you are referring to is not good? Evil gets straight to the point.

I realize evil is not a good word to use.  There is nothing good about anything that is evil. But it is an accurate word choice for what someone thinks is not good.

See my post above, responding to mtomm.  Evil is a loaded word, and once you start using it to describe things that are merely "not good," you no longer have a word for when you really need to describe something that is far beyond the realm of "not good." 

[mtomm]

2 minutes ago, Stormin' Mormon said:

See my post above, responding to mtomm.  Evil is a loaded word, and once you start using it to describe things that are merely "not good," you no longer have a word for when you really need to describe something that is far beyond the realm of "not good." 

Oh,  I can think of a lot of others but they not be appropriate for this venue. 🙂

[Stormin' Mormon]

12 minutes ago, Obehave said:

There is nothing but evil beyond the realm of what is good.  Sorry. That is reality. And evil acts and evil people are a lot more common than many people realize. 

Anytime anyone does anything that is not good they are doing the opposite of what is good. We should face up to that fact rather than suggesting that maybe it isn't so bad when people do something that is not good.

Yeah, I'm gonna have to hard disagree with you.  We already have a word that describes the moral valence of both jaywalkers and genocidal maniacs.  That word is "bad."   But just like we need different words to describe different shades of red (scarlet, crimson, cardinal, carmine, rust, etc.) we also need different words to describe different shades of "bad."  Collapsing every "not good" word into the word "evil" robs it of its ability to communicate a moral valence that is worse than jaywalking.

Edited July 1, 2022 by Stormin' Mormon

[ttribe]

Why am I detecting shades of Ahab with "Obehave?"

[Durangout]

https://uncanceled.news/the-abortion-issue-is-simple-babies-are-people-and-murdering-people-is-wrong/

[Stormin' Mormon]

1 minute ago, Obehave said:

Not all laws are good so let's not equate what isn't legal with what isn't good.

Evil is simply the opposite of what isn't good.  That is what evil is.  It is a word that is used to refer to the opposite of what is good.

I am not saying all people use that word correctly.  Some people call something evil when in truth it is good, and some people call something good when in truth it is evil.

I am only talking about the word evil and how it should be used, which is when people want to refer to something which they believe is the opposite of what is good.

Nope, nope, and more nope.  The opposite of what isn't good is the word "bad."  Full stop. 

The definition of "evil" is "profoundly wicked or immoral."  Note the word there "profoundly."  It's a vital part of the definition.

At this point, I'm bowing out any further interactions with you.  If you want to bastardize and hobble the English language to the point that words no longer have precise meanings, that's your business.  Have fun. I'm out.

[bluebell]

7 minutes ago, Obehave said:

Not all laws are good so let's not equate what isn't legal with what isn't good.

Evil is simply the opposite of what isn't good.  That is what evil is.  It is a word that is used to refer to the opposite of what is good.

I am not saying all people use that word correctly.  Some people call something evil when in truth it is good, and some people call something good when in truth it is evil.

I am only talking about the word evil and how it should be used, which is when people want to refer to something which they believe is the opposite of what is good.

Good is not simply "good". There are categories of good (per Elder Oaks' 2007 talk "Good, Better, and Best").  If that is true for good then it stands that it is true for bad as well.

 

[Stormin' Mormon]

8 minutes ago, bluebell said:

Good is not simply "good". There are categories of good (per Elder Oaks' 2007 talk "Good, Better, and Best").  If that is true for good then it stands that it is true for bad as well.

 

At this point, I feel like we are being trolled.  This is such a basic aspect of language, that Obehave has to be deliberately roping us along to provoke a reaction.  

In fact, I had an interaction with him a few weeks ago, where I called out his use of the fallacy of equivocation, and he flatly admitted he knew that he was using that fallacy and wanted to see if anyone else would catch it.  He has a history of arguing stupid points in bad faith.   

Edited July 1, 2022 by Stormin' Mormon

[Chum]

1 hour ago, Stormin' Mormon said:

All the dudes you named have COMMITTED evil deeds.  No one disputes that they did those deeds, or that the deeds they did were unequivocally evil.

Sweet.

1 hour ago, Stormin' Mormon said:

But we tread in very dangerous territory if we label someone as evil based only on their political or legal beliefs. 

It's unclear how this rebuts or even addresses my point. I was noting that it made little sense to publicly shame  @mtomm for calling someone evil - specifically shamed because she didn't know them personally (which seems to be what "from Adam" means here).

 

1 hour ago, Stormin' Mormon said:

Hyperbole like this is why we can't have nice things in this country.

I suspect that pushing back on things that weren't said - that lives on the same street as hyperbole.