The Supreme Court, bastion of conservatism

[LVAllen]

It take a whole hell of a lot of chutzpah to deride Roe's reasoning as "exceptionally weak" and then write the pure "We do this because we want to" bullshit majority opinion. Especially so when the same hacks wrote Kennedy v. Bremerton School District, and outright lied about what the record contained in order to reach their desired result.

[Non Sequitur]

I am posting this for Non Sequitur's benefit but some of y'all may want to add your names too....

Embedded Tweet

I would never sign a petition like that. My biggest gripe with the SC is that it has become politicized. The last thing I would want to do is add more politicization to the Court.

[All-American]

It take a whole hell of a lot of chutzpah to deride Roe's reasoning as "exceptionally weak" and then write the pure "We do this because we want to" bullshit majority opinion. Especially so when the same hacks wrote Kennedy v. Bremerton School District, and outright lied about what the record contained in order to reach their desired result.

I don't think the bolded part is supported.

[Uncle Ted]

I would never sign a petition like that. My biggest gripe with the SC is that it has become politicized. The last thing I would want to do is add more politicization to the Court.

C'mon man! Congress needs something to keep them busy so they don't pass any more stupid bills... At least until the GOP'ers take over in congress. I don't think trying to impeach Drumpf a 3rd time is keeping them busy enough.

[Jeff Lebowski]

I'm curious what you thought of it. I realize that may take more time than you have available to adequately summarize your thoughts.

OK, here we go. I am not going to try to repeat the overall contents of the ruling because the summary posted above by AA does a good job of that (of the main ruling at least, not the other parts). But here are some observations and things that stuck out to me:

(apologies in advance if I mess up some terms and details)

Alito/majority ruling:

I thought the ruling was powerful and really well written overall. It was not just refutation of Roe, but of Roe and Casey. The main beef with Roe is that created a right that was nowhere in the constitution. It dissected the faulty logic used in Roe and Casey to justify the creation of the right (privacy, due process). Also, it took pains to explain that just because something is not explicitly called out in the constitution doesn't mean it is not a right that should be protected by the court. But for that to happen, specific conditions must be met. For example, is it a right that people have generally recognized in common law, state law, general consensus, etc. None of these conditions were met with Roe.

Furthermore, Roe created a trimester system and a set of conditions for assessing viability. It said that this is entirely beyond the scope of what a ruling should do. Roe read more like a piece of legislation than a SCOTUS ruling. It also argued that the viability standard in Roe was fraught with problems and completely unworkable from a legal standpoint. It is also problematic scientifically and has been recognized as problematic by a large number of people on both sides. Moreover, it argued that viability itself is arbitrary. There were many abortion laws historically that use "quickening" (heartbeat, movement) as the standard. Prior to viability, you could have a fetus with organs, heart, brain, senses, feelings, etc and the primary way to abort at that point is to dismember and vacuum out the parts. Why should the court prevent states from choosing to provide some level of protection in cases like that?

The ruling insisted over and over again that the ruling applies to abortion only and not to other rights (gay marriage, etc.). It said that abortion is fundamentally different from each of these other ruling because in involves competing interests. I.e., the "possibility of life". It also argued repeatedly that how to balance those competing interests is an incredibly complex and difficult problem that should be left to the will of the people.

They spent a lot of time talking about stare decisis and why it is important as a general rule, but that it should not be absolute. In order to reject stare decisis, a number of conditions must be met, including a ruling that is not just wrong, but egregiously wrong. They went through the list and illustrated why this case met the conditions. They also said that the court should make rulings based on facts and legal reasoning and not based on how the public will react.

Kavanaugh Opinion:

The BK opinion was interesting because it really didn't seem to add much beyond the main ruling in terms of legal arguments. He went to lengths to say he respects and empathizes with people who disagree with the ruling. He emphasized very specifically that this ruling should have no bearing on other rights such as gay marriage. I thought it was a bit redundant, but well written overall.

Thomas Opinion:

CT opinion was especially interesting. This guy doesn't hold back. He thinks that linking the right to abortion to due process was absurd as a legal argument. In fact, it is so absurd that any prior ruling based on this argument should be tossed out as well.

Roberts Opinion:

Roberts said that while he respected the logic and reasoning of the majority opinion, he thought it would have been wiser to just rule in favor of the Mississippi side and allow them to restrict abortion to 15 weeks and kick the Roe can down the road. Alito referenced this directly in the main ruling and said that it would be pointless to keep such a bad ruling alive and it would be better to just step up and kill it now.

Dissenting Opinion:

This opinion surprised me in terms of the tone of how it was written. All of the previous sections read like you would expect a SCOTUS ruling to read, but this part read more like a an op-ed piece for the NYT or the WaPo. I have seen several people praise it as masterful because of its "readability", but to me it seemed jarring to see so much sarcasm and colloquial expressions ("Scout's honor", for example) in a high court ruling. It made a very emotional case for the plight of women without Roe/Casey and how women have never enjoyed full rights as they should. I thought it was overly dismissive of the competing interests angle and weak in terms of legal arguments, but it was powerful overall.

On balance, I find myself agreeing with the ruling.

[All-American]

OK, here we go. I am not going to try to repeat the overall contents of the ruling because the summary posted above by AA does a good job of that (of the main ruling at least, not the other parts). But here are some observations and things that stuck out to me:

(apologies in advance if I mess up some terms and details)

Alito/majority ruling:

I thought the ruling was powerful and really well written overall. It was not just refutation of Roe, but of Roe and Casey. The main beef with Roe is that created a right that was nowhere in the constitution. It dissected the faulty logic used in Roe and Casey to justify the creation of the right (privacy, due process). Also, it took pains to explain that just because something is not explicitly called out in the constitution doesn't mean it is not a right that should be protected by the court. But for that to happen, specific conditions must be met. For example, is it a right that people have generally recognized in common law, state law, general consensus, etc. None of these conditions were met with Roe.

Furthermore, Roe created a trimester system and a set of conditions for assessing viability. It said that this is entirely beyond the scope of what a ruling should do. Roe read more like a piece of legislation than a SCOTUS ruling. It also argued that the viability standard in Roe was fraught with problems and completely unworkable from a legal standpoint. It is also problematic scientifically and has been recognized as problematic by a large number of people on both sides. Moreover, it argued that viability itself is arbitrary. There were many abortion laws historically that use "quickening" (heartbeat, movement) as the standard. Prior to viability, you could have a fetus with organs, heart, brain, senses, feelings, etc and the primary way to abort at that point is to dismember and vacuum out the parts. Why should the court prevent states from choosing to provide some level of protection in cases like that?

The ruling insisted over and over again that the ruling applies to abortion only and not to other rights (gay marriage, etc.). It said that abortion is fundamentally different from each of these other ruling because in involves competing interests. I.e., the "possibility of life". It also argued repeatedly that how to balance those competing interests is an incredibly complex and difficult problem that should be left to the will of the people.

They spent a lot of time talking about stare decisis and why it is important as a general rule, but that it should not be absolute. In order to reject stare decisis, a number of conditions must be met, including a ruling that is not just wrong, but egregiously wrong. They went through the list and illustrated why this case met the conditions. They also said that the court should make rulings based on facts and legal reasoning and not based on how the public will react.

Kavanaugh Opinion:

The BK opinion was interesting because it really didn't seem to add much beyond the main ruling in terms of legal arguments. He went to lengths to say he respects and empathizes with people who disagree with the ruling. He emphasized very specifically that this ruling should have no bearing on other rights such as gay marriage. I thought it was a bit redundant, but well written overall.

Thomas Opinion:

CT opinion was especially interesting. This guy doesn't hold back. He thinks that linking the right to abortion to due process was absurd as a legal argument. In fact, it is so absurd that any prior ruling based on this argument should be tossed out as well.

Roberts Opinion:

Roberts said that while he respected the logic and reasoning of the majority opinion, he thought it would have been wiser to just rule in favor of the Mississippi side and allow them to restrict abortion to 15 weeks and kick the Roe can down the road. Alito referenced this directly in the main ruling and said that it would not be pointless to keep such a bad ruling alive and it would be better to just step up and kill it now.

Dissenting Opinion:

This opinion surprised me in terms of the tone of how it was written. All of the previous sections read like you would expect a SCOTUS ruling to read, but this part read more like a an op-ed piece for the NYT or the WaPo. I have seen several people praise it as masterful because of its "readability", but to me it seemed jarring to see so much sarcasm and colloquial expressions ("Scout's honor", for example) in a high court ruling. It made a very emotional case for the plight of women without Roe/Casey and how women have never enjoyed full rights as they should. I thought it was overly dismissive of the competing interests angle and weak in terms of legal arguments, but it was powerful overall.

On balance, I find myself agreeing with the ruling.

This is an excellent summary. Just a few things to add.

First, I think a lot of people are reading more into Justice Thomas's concurrence than they should. A little background to explain why.

When the Fourteenth Amendment was ratified, its unmistakable purpose was to provide protection for individual rights, even against the actions of state governments. (The previous absence of this protection was a defect criticized by, among others, Joseph Smith. When Martin Van Buren said "Your cause is just but I can do nothing for you," he wasn't kidding-- the federal government had little authority to check the abuses the Saints suffered at the hands of the Missouri government.) But as case law initially developed, the protections the Amendment was supposed to provide was shortchanged. In one particular decision-- the Slaughterhouse cases-- the Supreme Court held that the "privileges and immunities" to be protected under the Fourteenth Amendment essentially meant privileges and immunities one enjoyed as a U.S. citizen, not rights enjoyed as a citizen of a state. That limited reading meant that the "privileges and immunities" clause was a practical nullity, protecting pretty much the right to travel on U.S. waterways and little else.

Decades later, as civil rights cases came back to the forefront, the Supreme Court recognized that the Fourteenth Amendment protected civil rights after all-- but not via the privileges and immunities clause. Rather than contradict the Slaughterhouse cases, the Court found another basis for protecting fundamental rights: the due process clause. As written, the due process clause forbids states from depriving a citizen of rights to life, liberty, or property without due process of law-- suggesting that deprivation can be appropriate as long as appropriate procedural safeguards are followed. But case law developed later in a way to suggest that some rights are so fundamentally critical to citizenship that any deprivation of that right is a violation of the constitution, no matter what process is followed. This notion, called substantive due process (as opposed to procedural due process), served as the foundation for many of the Court's most prominent civil rights decisions in the past half-century or so.

Justice Thomas's point is that the notion of substantive due process is transparently silly, if you think about it. The whole point of "due process" is procedural; to say there is something called substantive due process is too clever by half. So, rather than continue the ruse of saying that certain rights emanate from the due process clause even when the protection being afforded has absolutely nothing to do with process or procedure, Justice Thomas suggests we admit what people have innately known for a long time: the Slaughterhouse cases were wrongly decided, and the privileges and immunities clause is the actual source of protection of rights under the Fourteenth Amendment. This is a drum he has been beating for a long time; over a decade ago, in the McDonald case, he issued a concurring opinion stating that the constitution does protect a right to bear arms, but that this right was incorporated not via the due process clause, but by the privileges and immunities clause. He's had little luck persuading any of his conservative colleagues to embrace the privileges and immunities clause, though, not so much because anybody thinks he is wrong (most sort of admit that he's got a point), but because (a), that ship sailed a long time ago, and (b) it doesn't really make much difference at this point anyway.

Now, it's easy to read his opinion as saying that he would not support finding a constitutional right in any of the cases decided on substantive due process grounds, because he probably would rule that the privileges and immunities clause does not confer such a right either. But that's not really the point he is making, and I think it is a mistake to read it that way. Justice Thomas's opinions on the privileges and immunities clause should be viewed less as a revolutionary manifesto than as a technical, almost academic point that may well be true but just doesn't matter enough to enough people that matter to make a difference.

Circling back to the main points-- the arguments of the majority versus the dissent-- you really have to appreciate just how bad a decision Roe was. I very clearly remember in law school when we read the Roe decision. It came hot off the heels of reading landmark civil rights cases like Brown v. Board of Education-- cases so impactful, so powerful, and so persuasive, and which so fundamentally state the norms and principles that govern the rule of law and the rights of our nation's citizens, that they are practically scripture. Roe, by contrast, fell flat in comparison. The reasoning was thin. The support was absent. And the road map that led to the lines being drawn where they were was impossible to follow. It was almost undeniable that the court was making up the rules just because it was what they wanted the rules to be. Even among the staunchest proponents of access to abortion as a substantive right, there was an almost sheepish admission that, as a legal opinion, Roe was decidedly lacking. Roe was, as the Dodds majority rightly put it, egregiously wrong from the start.

That, by the way, has absolutely nothing to do with where the line between what is allowed and what is not allowed should be drawn. The vast majority of criticisms of Dodds I've seen since the opinion issued misses this point. Dodds does not say anything about whether abortion is proper or improper, or in what circumstances it should be allowed, celebrated, tolerated, or forbidden. All it says is that this decision is not one for the Supreme Court to make-- which is exactly correct.

[Jeff Lebowski]

This is an excellent summary. Just a few things to add.

First, I think a lot of people are reading more into Justice Thomas's concurrence than they should. A little background to explain why.

When the Fourteenth Amendment was ratified, its unmistakable purpose was to provide protection for individual rights, even against the actions of state governments. (The previous absence of this protection was a defect criticized by, among others, Joseph Smith. When Martin Van Buren said "Your cause is just but I can do nothing for you," he wasn't kidding-- the federal government had little authority to check the abuses the Saints suffered at the hands of the Missouri government.) But as case law initially developed, the protections the Amendment was supposed to provide was shortchanged. In one particular decision-- the Slaughterhouse cases-- the Supreme Court held that the "privileges and immunities" to be protected under the Fourteenth Amendment essentially meant privileges and immunities one enjoyed as a U.S. citizen, not rights enjoyed as a citizen of a state. That limited reading meant that the "privileges and immunities" clause was a practical nullity, protecting pretty much the right to travel on U.S. waterways and little else.

Decades later, as civil rights cases came back to the forefront, the Supreme Court recognized that the Fourteenth Amendment protected civil rights after all-- but not via the privileges and immunities clause. Rather than contradict the Slaughterhouse cases, the Court found another basis for protecting fundamental rights: the due process clause. As written, the due process clause forbids states from depriving a citizen of rights to life, liberty, or property without due process of law-- suggesting that deprivation can be appropriate as long as appropriate procedural safeguards are followed. But case law developed later in a way to suggest that some rights are so fundamentally critical to citizenship that any deprivation of that right is a violation of the constitution, no matter what process is followed. This notion, called substantive due process (as opposed to procedural due process), served as the foundation for many of the Court's most prominent civil rights decisions in the past half-century or so.

Justice Thomas's point is that the notion of substantive due process is transparently silly, if you think about it. The whole point of "due process" is procedural; to say there is something called substantive due process is too clever by half. So, rather than continue the ruse of saying that certain rights emanate from the due process clause even when the protection being afforded has absolutely nothing to do with process or procedure, Justice Thomas suggests we admit what people have innately known for a long time: the Slaughterhouse cases were wrongly decided, and the privileges and immunities clause is the actual source of protection of rights under the Fourteenth Amendment. This is a drum he has been beating for a long time; over a decade ago, in the McDonald case, he issued a concurring opinion stating that the constitution does protect a right to bear arms, but that this right was incorporated not via the due process clause, but by the privileges and immunities clause. He's had little luck persuading any of his conservative colleagues to embrace the privileges and immunities clause, though, not so much because anybody thinks he is wrong (most sort of admit that he's got a point), but because (a), that ship sailed a long time ago, and (b) it doesn't really make much difference at this point anyway.

Now, it's easy to read his opinion as saying that he would not support finding a constitutional right in any of the cases decided on substantive due process grounds, because he probably would rule that the privileges and immunities clause does not confer such a right either. But that's not really the point he is making, and I think it is a mistake to read it that way. Justice Thomas's opinions on the privileges and immunities clause should be viewed less as a revolutionary manifesto than as a technical, almost academic point that may well be true but just doesn't matter enough to enough people that matter to make a difference.

Circling back to the main points-- the arguments of the majority versus the dissent-- you really have to appreciate just how bad a decision Roe was. I very clearly remember in law school when we read the Roe decision. It came hot off the heels of reading landmark civil rights cases like Brown v. Board of Education-- cases so impactful, so powerful, and so persuasive, and which so fundamentally state the norms and principles that govern the rule of law and the rights of our nation's citizens, that they are practically scripture. Roe, by contrast, fell flat in comparison. The reasoning was thin. The support was absent. And the road map that led to the lines being drawn where they were was impossible to follow. It was almost undeniable that the court was making up the rules just because it was what they wanted the rules to be. Even among the staunchest proponents of access to abortion as a substantive right, there was an almost sheepish admission that, as a legal opinion, Roe was decidedly lacking. Roe was, as the Dodds majority rightly put it, egregiously wrong from the start.

That, by the way, has absolutely nothing to do with where the line between what is allowed and what is not allowed should be drawn. The vast majority of criticisms of Dodds I've seen since the opinion issued misses this point. Dodds does not say anything about whether abortion is proper or improper, or in what circumstances it should be allowed, celebrated, tolerated, or forbidden. All it says is that this decision is not one for the Supreme Court to make-- which is exactly correct.

Wow, thanks for that. In the light of this explanation I just went back and re-read the Thomas opinion and it makes much more sense to me now.

[The_Tick]

I just feel like I took a class. I didn't hate it, but I am not signing up for the 200 level.

[Moliere]

I just feel like I took a class. I didn't hate it, but I am not signing up for the 200 level.

great summaries JL and AA. That was very interesting and I’m glad you typed it out.

[Bo Diddley]

Thanks Dude and AA.

[Moliere]

No offense, but who gives a fuck? For half a century Roe v. Wade was settled law. During their Senate confirmation hearings the last three justices all stated that Roe was settled law. They lied. Yes, these three principled Christians lied. In the next iteration or the Court, less occupied by Christian activists, my hope is that the court will discover yet another legal theory that kills the precedent that killed the precedent of Roe v. Wade. Dobbs is nothing more than a religious mandate in search of a legal theory. Trump promised he would deliver Christian thugs and he delivered.

Wasn’t “separate but equal” styled law for over 50 years? Wasn’t that based on a Supreme Court opinion? Settled law is only settled until the some judge decided to overturn it, which is why the legislature is important. If your rights are based on a torturous interpretation of an amendment from the 1700s, maybe you should pass a law specifically granting those rights so they won’t be overturned. Just a thought.

[All-American]

No offense, but who gives a fuck? For half a century Roe v. Wade was settled law. During their Senate confirmation hearings the last three justices all stated that Roe was settled law. They lied. Yes, these three principled Christians lied. In the next iteration or the Court, less occupied by Christian activists, my hope is that the court will discover yet another legal theory that kills the precedent that killed the precedent of Roe v. Wade. Dobbs is nothing more than a religious mandate in search of a legal theory. Trump promised he would deliver Christian thugs and he delivered.

I think the evidence of the last few days shows that the answer is, a lot of people.

also everything after your first sentence is incorrect.

[PaloAltoCougar]

Thanks for the write-ups, JL and AA. I'm still mulling them over, but wish the arguments on both sides were we as calm and thoughtful.

[Soccermom]

What are everyone's thoughts on the Bremerton case? I have not read the whole opinion and will not have time to do so until I complete a larger task. Does it really open the door to teacher-led prayers in school as the headlines indicate?

[The_Tick]

I am interesting in West Virginia vs EPA. If the Court decides with West Virginia....this is pretty much going to kill Build Back Better, and Green New Deal stuff going forward. (Also....Dems are horrible at coming up with catchy names.)

Thoughts?