Thanks.
I wonder then, what IS going to be on the table with this court.
I do stand by my earlier statement that this is going to be bad - very bad - for the red states that quash abortion rights, and will hasten their fall into irrelevancy.
It may also be just the thing the Democrats need for the mid-term elections to drive turnout.
I mean slavery still exists to the present day, but it isn’t constitutionally valid. Involuntary servitude as part of a criminal punishment also still exists, and was constitutionally valid in 1900 or whenever just as it is today. Sending people to prison on manufactured charges, enforcing the law in a racially disparate way are both unconstitutional, but like any system the system is only as good as the actors in it. If you have actors willing to do corrupt things and no other actors with the power or will to confront it, corrupt and evil things will be done. But as a matter of the law slavery has not been legal outside of the carceral setting since the 13th Amendment went into effect.
In truth swathes of the constitution probably remain more aspirational than factual, right? Like you have the right against self-incrimination, but police have a thousand and one tricks to get you to throw that away, some of them less than legal. You have a right to equal protection of the laws as per the 14th Amendment but we know Jim Crow laws held sway for 100 years after that Amendment passed.
What’s the benefit of publishing in advance like this?
My list of concerns:
Obergefell v. Hodges essentially suffers from the same “defects” Alito found in Roe, and would seem a hot candidate for being overturned.
Griswold v. Connecticut rests on similar concepts.
If Griswold goes, then privacy largely goes with it, it will remain to be seen if Roe can go without Griswold going. Many smart legal minds have long said it would be very difficult to overturn Roe but uphold the privacy conclusions that essentially made Roe an obvious decision, and those come from Griswold, without eventually overturning Griswold as well. Otherwise you are staking out that Griswold establishes a right to privacy for everything other than abortion, which suffers many of the logical defects Alito asserts about Roe. The reason you will struggle with this regime legally is because it is hard to enforce many laws against abortion if there is a robust right to privacy, because the State has to intrude fairly far into your privacy to enforce those laws. Once the right is undermined sufficiently, how does Griswold stand? Without Griswold how does privacy as a constitutional right stand?
They didn’t. The draft opinion was leaked. It’s the first time it ever happened, so far as I understand.
Here’s a map of the states that either have “trigger laws” that would limit abortion, or have pre-Roe anti-abortion laws still on the books.
I see. So it’s an attempt to marshal public opinion against it.
This is excessively optimistic, just like predictions that demographic trends would send the right packing.
Because of the structural deficiencies I’d our electoral system, as well as intentional manipulation of the system by Republicans, and the failure of the left to accomplish anything to counter this, the right is seizing control of the a majority and will continue to enforce rules, just likenit did prior to yhe Warrwn court, that nullify the ability of liberal areas to enact their own laws. Remember Dres Scott, which enforced slavery in free states? That’s already on the horizon, with red states passing laws that effectively restrict individual freedoms outside their own states. Look for a time when someone who has never left Texas will be able to sue people over activity in a Texas court over things that took place in Calofornia or Nrw York, with only the most tenuous connection to Texas.
The overwhelming majority of Americans may well be pro-choice—I’m not sure I believe any polling on the topic because it is so easy and so many incentives to bias such surveys—but I’d wager that they are demographically more concentrated, while much of puritanical America from coast-to-coast thinks abortion is a mortal sin up until the point that they or their daughter is faced with an unwanted pregnancy. Abortion tend to be something that brings out the single-issue voters on both sides, so I’m not sanguine about how that contest would play out, and certainly not in below the Mason-Dixon line and across through the Midwest all the way to the Rockies. If put to the absolute test, you might well lose more states than you’d gain.
Stranger
“Marshal”? There is and has always been public opinion against it. We’re about to find out exactly how much in the upcoming mid-terms.
Remember the tag line for the Fly remake with Jeff Goldblum and Geena Davis?
“Be afraid. Be very afraid.”
It could be, it could also be an effort by the conservative justices to lock in the current opinion. There was a late term “shift” to save the ACA, after initial conferences, so it’s possible an activist on say, Thomas’s staff might have leaked this because now if this isn’t the ruling, it puts whichever right wing Justice balked in a bad light (it would likely be Kavanaugh to balk if any did.)
I don’t know that I believe that is what is happening, I think the idea it was a liberal justice’s staffer is equally likely, I could see reasons for both sides leaking it in truth.
Agreed.
For what it’s worth, I saw speculation on Twitter that Roberts might be leaning on Kavanaugh and Barrett to change their minds, and a conservative Supreme Court insider leaked this to show they’d already initially agreed with Alito. So that speculation is that the leak was intended to keep Kavanaugh and Barrett onboard with Alito, so to speak, because it’d be embarrassing for them once it was revealed they’d changed their vote.
But that’s just one guy’s thought. Maybe it was a clerk who leaked it hoping to blow it up, I don’t know.
Thank you, Acsenray.
thank you
The politics here are being totally missed.
Most Americans have a middle-ground opinion on abortion. They want it to be safe, legal, and limited (without being sure what the limits should be). The long version of the story is in this excellent book.
Abortion will be regulated differently in the various states depending on popular opinion there, as is already the case.
No state is going to outlaw the pill because that pharmaceutical polls very well.
As for same-sex marriage, that won’t be going away either because it has proved a popular ruling.
As for interacial marriage, at least two U.S. Supreme Court justices are in one. Are you thinking Clarance Thomas will rule that his marriage is over? And what about Mitch McConnell and likely uipcoming senator JD Vance? There must be a bunch of others I am missing.
This thread indicates to me that the Democratic Party base has no idea what concerns swing voiters, nor what motivates Supreme Court rulings. The big issues are the economy and crime, not whether women in Mississippi are going to have to travel for an abortion (as I think they already have to).
I also have made this point in every online discussion I’ve had about this:
Trump, who lost the popular vote, got to name three justices.
I’m pretty sure two of those justices were confirmed by Senators who represent a minority of American voters (I’m not certain about Gorsuch, but I think that’s true for Kavanaugh and Barrett).
Our electoral system, with the Electoral College for the President and the wildly outsized difference in representation for Senators, no longer serves just to protect the rights of the minority. It has enabled the minority to seize control of the government and exert its will over the majority.
Eh, so the Supreme Court is not bound to the will of the electorate. Gorsuch / Thomas / Alito would very likely overrule Obergefell if they had polling data showing 90% of the country was against it. Kavanaugh and Barrett have less jurisprudence that would lead me to speculate on how they would vote–also Roberts himself was in the minority in Obergefell, so I am not entirely certain he would vote to uphold it.
I certainly agree the GOP isn’t going to go hard in the paint on overturning gay marriage because it isn’t a super popular position, but the GOP isn’t a borg army. There are lots of factions in the GOP and there are certainly conservative legal groups that never gave up the fight against gay marriage, and Alito’s ruling directly gives them hope they might succeed at challenging it. If they bring a case, it will be heard, and the voters don’t get a say in that. Neither does Mitch McConnell, JD Vance or anyone else.
The pill (assuming you mean the birth control pill) cannot be outlawed as per Griswold, but the open question will be if Griswold stands.
I was never a particular fan of Roe, I actually think it was bad for the country, but I also think if you have a constitutional right to privacy it is difficult to craft abortion restrictions that don’t violate it. I have said it is probably possible to enforce an abortion restriction that simply bans physicians offering the service, as the State has a good bit of leeway in regulating the conduct of physicians. I think a ban that also criminalizes the woman’s actions is hard to enforce if you respect the privacy rights under Griswold. Most likely as we get our first prosecutions (some already started as prosecutors jumped the gun) of women in Texas and such, some of the answers relating to Griswold’s right to privacy will simply have to be addressed by the courts.
Well it is more states than than which will probably prohibit abortion.