I’m kind of torn on this argument. On one hand, I definitely agree and sympathize with Sotomayor here. On the other hand, if it’s possible for the Court to make bad decisions, and it’s possible to have genuine disagreement over what the Constitution says, I’m not sure I’m comfortable with the general idea that past decisions are set in stone, and that it’s inherently political or bad to do otherwise. I’ve been going back and forth on this. But then, I’m not a lawyer, so does what I think matter?
Moderating
This is wholly inappropriate for this forum.
Warning issued.
If the Democrats want to be taken seriously on this issue, it can’t be about “vote for us in the next election to stop things from getting worse”.
It has to be about “We have control of both Houses of Congress right now, and we are going to use it by immediately adding six new Biden appointees to the Supreme Court.”
Granted, they probably can’t actually do that, because Manchin and Sinema fucking suck, but if they don’t try their very best to do it now, with Joe Biden leading the charge, nothing else they say should be taken seriously.
I mean, keeping a status quo is inherently less visible than trying to change it. When the status quo actually flips, it might be more popular.
Generally, the Court is trying not to be a political organization. It is trying not to be like the school board that votes 3-2 to build a new high school, but you beat one of the supporters in the next election so the vote now goes 3-2 against building the school. The Court should not be like that. It should have the appearance that it doesn’t matter if Trump, Reagan, Clinton, or Biden appoint a Justice. That individual is there to read law and apply it according to their legal education.
Sotomayor is saying that is what is happening here. That we have Gorsuch, Kavanaugh, and Barrett, replacing Scalia, Kennedy, and Ginsburg, a 2 vote flip towards overruling Roe and that if the Court does so then it is just like the school board above.
My objection to the argument is that it assumes a current state of affairs that must continue indefinitely. As if 1973 when Roe was decided was the sweet spot that must exist for all time. What if we apply her argument to Brown? Couldn’t someone use the exact argument that she is using and saying that Plessy has been good law for 58 years, nothing has changed, that school districts have relied on Plessy in structuring their schools, and it would be just a political decision because of new Justices who are against school segregation coming to the bench?
Why do we say that Plessy or Roe is the state of affairs that is the “good” one and that change from that is “political”? Why can’t we say that Plessy and Roe were the aberration and that overruling them are what makes things right? Why is a former court better than a latter one?
The Court doesn’t want to look political, but it obviously is. I agree that there is nothing intrinsically wrong with voters disagreeing with a Supreme Court decision and supporting candidates who will appoint Justices who will overturn that decision. That’s how democracy works.
My objection in this case is that due to various flaws in the Constitution, including the Senate and the Electoral College, and due to the blatant politicization of the Court by Republicans in recent years (i.e. by refusing to seat Garland), we have arrived at a situation where the Court is packed with extremist ideologues who are completely out of touch with majority opinion. That’s not how democracy is supposed to work.
Roe does indeed say that there was a traditional common law right to an abortion. It then notes that the line of demarcation was based on the early notions of when life began, which lead directly to the idea of viability.
“ The absence of a common-law crime for pre-quickening abortion appears to have developed from a confluence of earlier philosophical, theological, and civil and canon law concepts of when life begins. These disciplines variously approached the question in terms of the point at which the embryo or fetus became ‘formed’ or recognizably human, or in terms of when a ‘person’ came into being, that is, infused with a ‘soul’ or ‘animated.’ A loose concensus evolved in early English law that these events occurred at some point between conception and live birth.22 This was ‘mediate animation.’ Although Christian theology and the canon law came to fix the point of animation at 40 days for a male and 80 days for a female, a view that persisted until the 19th century, there was otherwise little agreement about the precise time of formation or animation. There was agreement, however, that prior to this point the fetus was to be regarded as part of the mother, and its destruction, therefore, was not homicide. Due to continued uncertainty about the precise time when animation occurred, to the lack of any empirical basis for the 40-80-day view, and perhaps to Aquinas’ definition of movement as one of the two first principles of life, Bracton focused upon quickening as the critical point. The significance of quickening was echoed by later common-law scholars and found its way into the received common law in this country.”
Its endnotes provide, at various points, an analysis to substantiate these claims. For example, it address the treaties of Sir Edmund Coke, which are traditionally accepted as the initial codification of common law.
“The author examines the two principal precedents cited marginally by Coke, both contrary to his dictum, and traces the treatment of these and other cases by earlier commentators. He concludes that Coke, who himself participated as an advocate in an abortion case in 1601, may have intentionally misstated the law. The author even suggests a reason: Coke’s strong feelings against abortion, coupled with his determination to assert common-law (secular) jurisdiction to assess penalties for an offense that traditionally had been an exclusively ecclesiastical or canon-law crime. See also Lader 78-79, who notes that some scholars doubt that the common law ever was applied to abortion; that the English ecclesiastical courts seem to have lost interest in the problem after 1527; and that the preamble to the English legislation of 1803, 43 Geo. 3, c. 58, § 1, referred to in the text, infra, at 136, states that ‘no adequate means have been hitherto provided for the prevention and punishment of such offenses.’”
Viability was also discussed in light of the recognition that the state did indeed have a compelling interest in preserving life. Logically, that interest could only exist once the life was viable outside the mother. This helps explains the basis for that standard.
“With respect to the State’s important and legitimate interest in potential life, the ‘compelling’ point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.”
The privacy cases state that the government shouldn’t invade the privacy of a person absent a compelling state interest, and then only to the extent necessary to address that interest. The compelling state interest here is protecting life, so the state’s can intrude on this private right of bodily autonomy to the extent necessary to protect viable life. Before viability, there is no compelling state interest in the life. At least, that’s how I read the decision.
Meaning, no, it doesn’t give you a right to kill your born child. It doesn’t even give you the unfettered (an exception exists for a situation where the mother might die) right to kill him before he’s born but capable of surviving outside the womb.
I would take her a bit more seriously if it weren’t for the fact that Sotomayor has pretty much always ruled in line with what her personal partisan political views happen to be.
She’s perfectly fine with political maneuvering if it’s for her side.
I think…my opinion, is that the supremes will overturn then throw it back to the individual states.
Which is exactly what should happen according to Amendment X.
Maybe. But I think there’s going to be a lot of angry people asking “Why didn’t the Democratic Party do something in 1977-1981? Or 1993-1994, especially right after Casey? Or 2009-2010? Or right freaking now while you control Congress and the Presidency?”
I’m somewhat sympathetic to the idea that voters (or non-voters) get the politicians they deserve, and that the body politic has its own share of responsibility. I’m tired of the argument (as seen in the Pit) that this situation has arisen purely because of the 2016 election and that the failure is entirely on the voters for not voting Clinton. The Democrats have had plenty of chances to actually codify the holdings in Roe, and instead pissed it away on things like a pointless assault weapons ban and spending over a year fighting over Obamacare, while still happily keeping the Hyde amendment running in all legislation for 45 years now.
Mod note: Don’t be a jerk. This is beyond the pale.
She directly compared it to mandatory vaccines.
Where did I misrepresent that her direct comparison to mandatory vaccines is a direction comparison to mandatory vaccines?
AP story:
I’m not sure what you are talking about here. What response did they get?
I think I saw some tweets that said, “Vote Democratic to protect abortion!”, and the replies were like, “We did. What did you do about it?”, stuff like that.
But this isn’t a gradual change where over the decades public attitudes have changed such that what previously made sense before is now seen as archaic. The arguments for and against, and the public’s opinion of those arguments have remained largely unchanged since the original decision. This is a result of a full on political push to shape the court to specifically change its mind about this specific issue. You had politicians running on the platform of “if you elect me I will install justices who will decide this case in the way we want it to.”, and then acting that promise by obstructing a president from fulfilling his constitutional duty, followed later by rushing through a second nomination.
So this isn’t even the school board happening to switch from 3-2 in favor after an election. This is the contractor who won the grant the build the high school actively lobbying to have the old school board member ousted and a new3 one installed specifically to vote for the high school.
This is not the way constitutional truth should be decided.
I’d be tired of it too. Except that no one has actually made that argument. What I’m tired of is all the straw that gets bailed.
What exactly would that look like?
You know, I’ve never seen people spend so much time on something that they declare is pointless. Either it’s pointless, in which case I really don’t understand all the whining and complaining about it, or it’s not pointless, in which case, all the claims that it is are false.
Spent part of a year putting together a massive healthcare bill that changed the way that many Americans interface with health providers? What you think they should have rushed that through faster?
There’s that straw starting to make its way into your argument again. Why do you say “happily”, rather than something more along the lines of “as a political compromise”? Why you gotta make things up and personalize them in such a way? I really don’t get why people like you think that such sloppy tactics will win them any internet points.
Okay, so lets say that you are in favor of making abortion available country wide. How do you address this? What legislation would you pass?
Be specific.
And for bonus points, explain how you not only get this legislation past the “moderates” of the party who fight against anything the progressives want, but also past the filibuster that the Republicans will certainly put up.
Anyone who would ask those questions seriously is extremely naive about how the government works, and should really brush up on it before continuing to comment on what the Democratic Party should be doing.
I guess, but if that’s the reaction, I’m not sure why @asterion thinks that there is a point to be made there. I was thinking by their comment that there was actually something notable that was said.
But in any case, it’s all well and good to vote for a Democrat to help to protect reproductive (among many other) rights. But, given the way the government actually works, it requires that other people vote for them as well.
If you vote for a Democrat, and they win the house or senate seat that you are a constituent of, great. But that doesn’t mean that your congressperson has the power to do anything if other people in other states and districts didn’t do so as well.
Anyone who is wondering why Democrats aren’t getting these things done is not actually wondering, but rather looking for an excuse to complain, as the reasons are simple and easy to find out if someone is actually curious, and not just trying to weaponize their ignorance.
It seemed pretty tone deaf to me of the Democratic party to issue that tweet on the day that it became clear that Roe is likely going away. Most people don’t really have that deep of an understanding of the working of the US government, but they might know that the Dems held the House, and took the Senate and the presidency. I can imagine there being some frustration there.
I’m not looking for an excuse to complain, but I will say their timing was bad.