I mean most of them have supported various laws that don’t poll well. The GOP doesn’t care about national opinion polls, they care about whether it affects them getting reelected in their States and their Districts. Since most Republican incumbents are not in threat of losing, they feel no reason to moderate what they support.
It’s because the USA, nearly alone in modern nations, has a “common law” judicial system. What that means in this case is that because court rulings set guiding precedents, rulings are not supposed to whip-saw what were previously considered decided issues, as Casey urged that the subject of legal abortion should be.
Common law essentially means that justices get to decide what the law is.
Stare Decicis is as important as the SCOTUS thinks it is. I think the logic of originalism is generally ridiculous, but if the SCOTUS believes in it, it is the law, no matter how inconsistent it is.
IMO this was an absolutely horrible opinion by the SCOTUS on moral grounds, but the only think it really has to say about the judicial principles of the court is that they have never been rock solid in the face of a political outcome the court was determined to reach.
I actually don’t. I wasn’t even born when this decision was made. Hard to object to it or not object to it, under the circumstances.
Stare decisis needn’t bind every decision, but there had better be a damn good reason when it doesn’t. I don’t think there’s a damn good reason in this instance. This is what 5 people on the SCOTUS want to do to decide for the whole nation, and they don’t care that they are, for the first time in our history, taking away a constitutionally-guaranteed right from the people of this country.
Are you seriously in favor of overturning Brown?
I think the premise that de facto segregation simply because of demographic differences in where people live is indistinguishable from deliberate segregation is questionable.
Let’s not get ahead of ourselves–the power of a court to exercise judicial review, meaning the administrative, legislative and executive decisions are subject to interpretation and review to their legality by the courts–is not a unique feature of the common law. Most European countries that operate under some derived system of Napoleonic or Germanic codes (or mixed) have “Constitutional Courts” that perform this function.
Additionally, the Granddaddy of em all in terms of common law–England (yes England, for purposes of legal system the United Kingdom is not the correct usage), actually does not practice strong judicial review. While the Law Lords and now the established Supreme Court of the United Kingdom (and despite its name, it doesn’t hear many cases out of Scotland, but it can hear some) do practice some forms of judicial review (the UK Supreme Court has more powers here than the Law Lords did), they still have the concept of “Parliamentary Supremacy.”
The United States may be unique in just how much power we allow our Supreme Court to have in regard to judicial review, the only ‘clean’ mechanism for reversing a Supreme Court decision is for a bill to pass 2/3rds of both Houses of the Congress, and then be ratified by 3/4ths of all the States. In contrast the Supreme Court UK can rule that secondary legislation and actions pursuant to it are outside the parameters of the law–but the Parliament could overrule it by modifying the primary legislation underlying it with a simple majority vote–the Supreme Court UK cannot overrule primary legislation directly at all. It can rule on the procedures for following primary legislation which would require a new Act of Parliament to override (this was somewhat relevant at times in all the Brexit wrangling.)
No, the essential feature is that when they conduct judicial review, they can refer to what they think of as constitutional law regardless of the basis in the text of the constitution.
I agree that it’s not entirely unique and in some ways it’s an acknowledgment that any court with the power to rule on constitutional issues has broad power in practice to decide what the constitution means.
Majority opinions and desires don’t matter anymore, or rather they matter a lot less than is suggested here. The right has built its political base in extremes and combined with its other tactics such as outright subversion of democracy, are setting up a minority rule of fanatic extremists.
The moderateness of the majority is being used against them.
Well again, no–judicial review isn’t essential in a common law system, as England operated without judicial review of legislation for basically its entire history–however it did have a history of judicial review of executive (even monarchical) actions and administrative actions going back to at least the 1600s and maybe earlier.
Inherent to any constitutional court is the ability to interpret the text of the constitution contrary to how that text appears to be written or even was intended to be treated, that is why most system there are guard rails in place to correct seriously defective rulings of a constitutional court (we lack such guardrails for the Supreme Court since the only easy solution is a constitutional amendment, which is basically impossible to pass.)
I disagree that this alone can be a winning strategy. There is more in this than opinion polls. Many who make the decision to have an abortion are filled with anguish and doubt about it. The opponents to abortion have no anguish or doubt, they call it murder (whether they really think that or not) and are true believers that this cannot be allowed. People in favor of abortion rights may not be in favor of abortion as a personal action; their support is for an abstract idea. Opponents of abortion rights are also opponents of abortion, there is no conflict within them.
I do agree that for this issue, as with every issue dear to them, Democrats need to get down in the trenches at the local level and fight the dirty local fights to gain control of state legislatures, instead of just making high-minded speeches at Presidential election time.
If you’d stopped with the first part, I could somewhat agree. Release this to remind people to fight harder to stop it. But then you had to paint the people fighting as bad guys. This is a Court using politics to overturn a previous precedent that has overwhelming support by the populace. It’s an attempt to turn back people’s rights. And you’re trying to paint those against it as terrorists.
If that sort of thing was going to happen, it would have happened before. There are tons of politicians who do horrible things who would be in danger, and they are not.
No, the point of leaking this is to let people know what’s coming, so that they don’t hold out hope that things are going to happen lest they act. Yes, that may spur them to more action, which you might call opposition. But if we had the power you described, this decision wouldn’t even be being considered.
I tend to think the problem for Democrats politically is there is at least some evidence of a disproportionate “enthusiasm gap” on this issue. Now, that may change when half the country suddenly finds abortion illegal even in cases of rape and maternal health being at risk. That might change the balance of things, but it also might not.
However up to this point it has always seemed that while a decent majority (frequently polled at around 60%) supports the status quo of Roe and abortion being broadly legal, a large chunk of the 60 percent doesn’t seem to “care” that much about it. Some of them even have been Republican voters all this time–knowing that their party is very anti-abortion, so that means that whatever their philosophy there, it hasn’t been determining their voting behavior.
Meanwhile the smaller subset of the anti-abortion crowd who is motivated by it is very motivated by it, to the point it is the “first qualifier” as to whether you can even appeal to them for their vote–are you pro-life? If not, you don’t get to continue the conversation, you have been eliminated as a voting option.
I will say this too–the Democrats have always feared being seen as too robustly in favor of abortion rights, for fear of exacerbating what is a hotly divisive cultural issue that many Democratic voters have nuanced view on. If this is something really important to Democrats, they have to start campaigning and fighting on it, we live in a society in which an angry minority can quite easily impose its will on a more chill moderate majority, and part of that is lack of enthusiasm / engagement on some of the issues that angry minority factions dominate on in our country (gun rights is another big one–we now have gun laws in many States that are probably supported by less than 30% of voters in polling–I am a lifetime gun owner, hunter and gun enthusiast, and I think gun laws have gone crazy permissive in many states.)
No, because what they did was challenge the decision at the factual level. The premise of “separate but equal” was that such a thing existed, but Plessy successfully argued it did not and could not.
The problem with the current situation is that all of this is just being overturned by people who never liked the decision in the first place. The only thing that has changed is that people who didn’t like the decision are now the majority of the Court. They can’t even count on popular support for this action.
And, based on what is being argued here, it’s not even just Roe v. Wade that would be overturned. This is laying the groundwork for overturning many other decisions that conservatives hate. It’s not an attempt to adjust past decisions to align with facts that were not as assumed at the time.
Don’t get me wrong: I’ve always assumed those who hated it would do this. I never really believed they had these principles. I’ve said as much about the whole “textualism” gambit. The way humans work the vast majority of the time is that they find reasons to support what they want to do, not the other way around.
But it doesn’t change the fact that this is bad as a legal principle, not just just because banning abortion won’t stop abortion and will only make it less safe.
As I’ve implied already, I’m really torn on a discussion like this, because I’m viscerally uncomfortable with the idea that the first ruling is considered sacrosanct forevermore. Surely, there must be some decision that’s considered odious or unjust that stare decisis would force to be enshrined as basic legal principle. Apparently, Brown doesn’t count. Korematsu? Is the entire principle of stare decisis perfect?
Didn’t Obergefell simply overrule Baker v. Nelson?
Exactly. Stare decisis is just the argument people use any time some ruling they like is in danger of being overturned. But it’s disingenuous. Everyone would be willing to go against stare decisis if there were some particularly odious (to them) prior SCOTUS decision that they wanted to see overturned. Nobody believes that a bad decision should remain just because it should remain.
I’m reminded of the conservative (former) president of a college I attended, who in the wake of Obergefell v Hodges thundered in anger, “How is it that we allow 9 people in robes to dictate the direction of the nation of 300 million people!?” …Come on. He would have been perfectly fine with letting 9 people in robes dictate the direction of America if they were pulling it in a right-wing direction.
I mean stare decisis should be seen for what it is–society operates based on what the law says, if the law wildly changed in terms of major court precedents on a very regular basis, it would be chaotic and cause lots of problems. With that in mind, without good cause, you should let well-established precedent stand. The principle of stare decisis has never been that a precedent cannot ever, no matter what, no matter when, be overturned, just that the court shouldn’t overturn precedent lightly.
I’m sure he wrote his opinion years ago, as did all the rest of the conservative justices who swore to overturn Roe v. Wade given the opportunity to do so in order to get nominated in the first place.
And I’m sure Alito would tell you about the horribly bad, blatantly unconstitutional laws that have been a festering sore in federal jurisprudence that absolutely justified overturning this precedent.
One of the big problems with debates about judges and the courts (it seems to me) is that it appears impossible to objectively tell when someone is actually ruling contrary to their genuine understanding of the law. We know that decisions can be and are politically motivated, but if it comes out of a sincere outlook on legal philosophy, how far are we able to push back? I hope I’m expressing this accurately, but this seems particularly sticky to me in a moral sense.
Okay, I believe I found another way to express what I was thinking:
We liberals fear that Alito and his brethren aren’t being impartial arbiters of the law. My question is, how would we know either way? It feels like a lot of the answers I see are results-oriented, but I haven’t see anyone explain why that should be the case, or how that would be any different from what we think Alito is doing.