Maybe, but I doubt it. There may not be anyone on the SCOTUS who decided in favor or *Roe *originally, but there are plenty who still support it strongly, and I doubt they’d support all of those other “rights” as well.
Just to be clear, though, I’m not saying that *Roe *was definitely an example of judicial activism. I’m just saying that I think a stronger case can be made that it was judicial activism than can be made about an act that would overturn Roe. The fromer resulted in a specific legal outcome while the latter does not. As I mentioned above, I would consider an act by the SCOTUS to declare abortion unconstitutional based on the right to life of a fetus to be about on the same scale of “judicial activism” as I would consider the original *Roe *ruling since that also would result in a specific legal outcome.
It would, of course, depend on the specific legal argument used, too. If the court overturned Roe because it found that a fetus had a right to life, that would indeed be the same level of judicial acitivism. But if it simply said “the constiution does not gurantee the right to an abortion”, that wouldn’t be. In that case, the court is leaving the legal outcome to be determined by the legislative branch, but is not prejudicing that outcome in either direction.
Their constitutionality had not been addressed until Roe. Society had changed. Already discussed, and already ignored. Roe is the law. You want it changed, get to work. You want it changed honestly, drop the court-packing campaign you’ve been rationalizing and start trying to change public attitudes in such a way that the law can *be * changed.
Fine, show me where I’ve done otherwise.
That would include Roe, for a neutral person. But, since you don’t like it, no it doesn’t.
Fine, show me one where you think I should have.
I don’t expect either of you to be able to do so, either. Guys, if you realize you’ve been shown to be wrong, pouting about it is extremely poor form, and even worse is tu quoqueing without a quo. Go ahead and stamp your feet in frustration all you like; it won’t change a thing. Try making good arguments instead.
Look, if the vast majority of the American public agrees that abortion should be legal, then legal it will remain.
Absent Roe v. Wade, abortion will only become illegal if legislatures make it illegal. And legislatures will only make abortion illegal if they have no fear of losing their seats if they make it illegal. If the vast majority of the American public was against making abortion illegal, it would be political suicide for the vast majority of politicians to advocate making abortion illegal.
Elvis, I don’t understand your contention that since legal abortion is a settled matter there can be no discussion about changing the legal status of abortion. Slavery was once a settled issue, then it became a contentious issue, then it became a settled issue again, and there it remains.
Today abortion is mostly legal everywhere. But if enough people believe it should be illegal, eventually it will be made illegal, even if it takes a consitutional amendment. If enough people disagree with Roe v. Wade, the fact that 5 justices on the Supreme Court vote to uphold Roe v. Wade is irrelevant.
Of course, the reality is that today a constitutional amendment prohibiting abortion, or an amendment that protected abortion, has no chance of passing in 3/4 of all state legislatures. And why is that? Because, contrary to what you state, abortion is NOT a settled issue, it is a live issue. You have a perfect right to argue for the morality of your position, you have a perfect right to advocate that the law and the constitution support your position, but I don’t think you have the right to state that any disagreement with your position is unprincipled.
If most people agree with you then abortion will be protected, regardless of whether Bush can get 5 Supreme Court justices to overturn Roe v. Wade. If most people disagree with you, then abortion will be restricted, regardless of whether 5 Supreme Court justices vote to uphold Roe v. Wade. We aren’t going to see a draconian illegalization of abortion over the strong objection of a majority of voters, we’ll only see a restriction of abortion with the assent of a majority of voters.
That is precisely the raison d’être for this thread. Each house of the South Dakota legislature has passed a bill to ban all abortions save those necessary to save the mother’s life and Governor Rounds has indicated he will sign the bill when it comes out of committee. What everyone has been debating is whether there should be a constitutional right to abortion, via a protected right of privacy, that could prevent state legislatures from doing exactly what South Dakota is attempting to do.
You didn’t read anything I said, did you? To save you the trouble of scrolling up, “settled” includes BOTH “settled in law” AND “settled in society”. By the time of Brown, *Plessy * was no longer settled in society, if it ever had been. *Roe * IS settled in both law AND in society, despite some bitter-enders wanting it to be otherwise.
Got it now, Chief?
I didn’t say that. Sure there can be discussion about it. Actually doing it requires, or at least should require, first changing public attitudes to make such a change both desirable and politically possible. The rest follows, by law or by amendment as the situation requires. What should not be done is to subvert the law, and flout public sentiment, by judicial activism in general or court-packing in particular - yet somehow those methods are considered not only acceptable and necessary but even honorable by the anti-rights contingent.
I’d like to be that confident. However, in large parts of the country, such as South Dakota, the religious activists have such sway over the political process that it seems likely that abortion rights would become a patchwork.
That makes no sense. For it to be a live issue, it must follow that failure isn’t preordained. ISTM, however, that it is only a “live issue” politically due to lip service and simple, cynical calculation - there are a lot of pols, and judges for that matter, who owe their positions to their profession of opposition to abortion rights, and must pay fealty to their political bases. That has led to decades worth of lip service, bones tossed to the voter base, speeches, occasional bills introduced and cases brought, but little of actual substance, just some notification laws, really. Certainly no Constitutional amendment, the only proper way to reverse a decision derived from the Constitution. That’s because it is a dead issue in fact, if not in rhetoric. It *is * settled in society generally, although not universally. It is settled in law.
That isn’t what I said, either. Certainly opposition to abortion can be principled. What I claim is not principled is two things: First, the idea that it’s acceptable to undermine a majority popular opinion, buttressed by the law, and second, the implicit assertion that holding an pro-rights position is therefore unprincipled. Well, three things, there’s also the assertion that it is a simple, obvious fact that full life begins at conception and that anyone who disagrees is somewhere between ignorant and a Devil-worshiper. We do not often get to hear anti-abortion activists acknowledge that their opponents just might have good arguments and be good, moral people themselves, do we?
Yes, but if abortion is a majority popular decision, then how can there be so much opposition to it?
On the one hand you believe that just about everyone except a few extremist fanatics wants abortion to remain legal. On the other hand you believe that without constitutional protection prohibiting laws against abortion, those few extremist fanatics would quickly make abortion illegal.
The reality is that the pro-life isn’t a small fringe minority, it is a very large minority. Slavery is a settled issue because there no longer exists a large pro-slavery constituency, and there is no prospect of a pro-slavery constituency every re-establishing itself. However, there is a very large pro-life constituency, although I agree that such a constituency is not a majority across the country, it is definately a majority in some parts of the country, obviously South Dakota is one such place.
The big problem I have is that you are just declaring yourself the winner with this abortion is settled, you lost, get bent argument. Declaring abortion settled doesn’t make it so. Obviously you wouldn’t like abortion to become illegal, and while I’m generally against abortion I don’t thin making abortion illegal is very helpful either. But just because you’re passionate about the issue doesn’t close the issue. If the issue really was closed then only a few lunatics on streetcorners would be preaching against abortion. Instead we have a political party with an antiabortion platform that controls the House, the Senate, and the Presidency. So I don’t see how you can declare opposition to abortion a fringe position with a straight face.
Define “settled in society”. If the majority were in favor of this decision, why didn’t Congress pass a law banning segregation in schools?
If you look at the sitution before Brown, the country looks prety evenly split at best. At worst one might conclude that only a minority was opposed to segragation. But more to the point, on what basis are you claiming that US society had reached the point of wanting to overturn Plessy? How does one know when something is “settled in society”?
But let’s explore your theory further. If a certain SCOTUS decision is unpopular, that is to say > 50% of the electorate opposes it, then will it ever be “judicial activism” for the SCOTUS to reverse that decision?
*for those watching at home, it’s more like “bang my head against the brick wall”.
Just back from a business trip. I see you have flatly refused to actually respond to the point raised. I didn’t ask you to step on your soapbox and shout out the glory that is Roe v. Wade. I asked you to explain the apparent hypocrisy displayed in your affection for Roe as “settled law,” while ignoring the fact that Roe overturned “settled law.”
This would have been a more powerful rebuttal if I had actually argued that “settled law” makes the discussion moot. That’s your unsupportable position, not mine.
No, there’s certainly much more than “a few”. They’re still in a distinct, and shrinking, minority overall, but a solid majority in some areas. We don’t really disagree about that, obviously the battle is not yet over, but the eventual outcome is already clear.
No, I’m hardly declaring anything unilaterally, just pointing to recent history and recent fact, as indicated by any poll you’d care to mention. It doesn’t actually matter what I want personally, even though I’m gratified that the position and its trend is toward a position I hold. Those are what matter.
I don’t see how you can say I said that with a straight face.
I did. You don’t have to like it, or even read it, though, that’s your choice.
Do I *really * have to explain the disparity between Senate representation and the makeup of the country’s population? :rolleyes: Is this *really * new material to you?
It’s always ultimately a matter of judgment, political judgment, which the Courts do and must engage in, of course. That includes judgment of the velocity as well as position of societal attitudes.
Og Almighty, what is so hard about understanding that the law is intertwined with society, that it reflects and codifies societal attitudes, not only of the moment but of general principles? That a SC decision is making law no matter what? That they’re required to decide cases in accordance with justice and those societal attitudes IN BALANCE WITH consideration of precedent and constitutional principle? That to do so cannot be “judicial activism”? That there isn’t even any such a definable thing independent of the observer?
It’s not that simple, Mr. Rolleyes. There are small states that are very liberal on abortion matters (VT) and there are large states that are very conservative (TX). You need to do the math on each issue. But even then, it wouldn’t explain why there was never a bill passed in the House.
Well, since you’re clearly just making this up as you go, yes, it is new to me. Everytime someone objects to your defintion of “settled law” you introduce a new variable. Now we have “velocity” of public opinion and the political judgement of the courts.
How does the SCOTUS temper “justice” in any way wrt “societal attitudes”? If the court thinks something is a matter of justice, what difference does it make what societal attitudes are? The overwhelming majority of Americans want prayer in schools. In what way does that opinion (or should that opinion) shape the views of the court? Ditto for anti-flag burning laws.
If the SCOTUS had originally ruled against Roe in Roe v. Wade, how would that have been making law? It would have been entirely neutral wrt to the law. It would have allowed any legal outcome in either the Congress or the individual states.
But let’s look at a hypothetical situation that is even more polarizing than abortion. Suppose that a very “liberal” SCOTUS had ruled that anti-SSM laws were unconstitutional back in 1998 while Clinton was still president. Fast forward to today and we have a more “conservative” SCOTUS and they overturn that ruling, making it once again a matter for the states to decide. Would that be “judicial acitivism” in light of the fact that a solid majority of Americans oppose SSM laws?
Good god…are you saying that you didn’t use the word “declining/shrinking”, or are you saying that because you can’t find supportive evidence, you’re backing off of the claim but don’t have the honesty to say so? Don’t like ten years? Fine…pick 2, 5, 20 25…the whole notion of “shrinking” means lessens over time, obviously.
You have yet to do so despite all of your hand waving.
