"Overturning Roe is a Radical, Not Conservative Choice"
May 16, 2022 04:34:59 #
"Dear Chief Justice Roberts and Justices Barrett, Gorsuch, Kavanaugh and Thomas:
As you’ll no doubt agree, Roe v. Wade was an ill-judged decision when it was handed down on Jan. 22, 1973.
It stood on the legal principle of a right to privacy found, at the time, mainly in the penumbras of the Constitution. It arrogated to the least democratic branch of government the power to settle a question that would have been better decided by Congress or state legislatures. It set off a culture war that polarized the country, radicalized its edges and made compromise more difficult. It helped turn confirmation hearings for the Supreme Court into the unholy death matches they are now. It diminished the standing of the court by turning it into an ever-more political branch of government.
But a half-century is a long time. America is a different place, with most of its population born after Roe was decided. And a decision to overturn Roe — which the court seems poised to do, according to the leak of a draft of a majority opinion from Justice Samuel Alito — would do more to replicate Roe’s damage than to reverse it.
It would be a radical, not conservative, choice.
What is conservative? It is, above all, the conviction that abrupt and profound changes to established laws and common expectations are utterly destructive to respect for the law and the institutions established to uphold it — especially when those changes are instigated from above, with neither democratic consent nor broad consensus.
This is partly a matter of stare decisis, but not just that. As conservatives, you are philosophically bound to give considerable weight to judicial precedents, particularly when they have been ratified and refined — as Roe was by the 1992 Planned Parenthood v. Casey decision — over a long period. The fact that Casey somewhat altered the original scheme of Roe, a point Justice Alito makes much of in his draft opinion, doesn’t change the fact that the court broadly upheld the right to an a******n. “Casey is precedent on precedent,” as Justice Kavanaugh aptly put it in his confirmation hearing.
It’s also a matter of originalism. “To avoid an arbitrary discretion in the courts,” Alexander Hamilton wrote in Federalist No. 78, “it is indispensable that they” — the judges — “should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them.” Hamilton understood then what many of today’s originalists ignore, which is that the core purpose of the courts isn’t to engage in (unavoidably selective) textual exegetics to arrive at preferred conclusions. It’s to avoid an arbitrary discretion — to resist the temptation to seek to reshape the entire moral landscape of a vast society based on the preferences of two or three people at a single moment.
Just what does the court suppose will happen if it v**es to overturn Roe? Ending legalized a******ns nationwide would not happen, so pro-lifers would have little to cheer in terms of the total number of terminated pregnancies, which has declined steadily, for a host of reasons, with Roe and Casey still the law of the land.
But the pro-lifers would soon rediscover the meaning of another conservative truism: Beware of unintended consequences. Those include the return of the old, often unsafe, illegal a******n (or a******ns in Mexico), the entrenchment of pro-choice majorities in blue states and the likely consolidation of pro-choice majorities in many purple states, driven by v**ers newly anxious over their reproductive rights. Americans are almost evenly divided on their personal views of a******n, according to years of Gallup polling, but only 19 percent think a******n should be illegal under all circumstances.
It shouldn’t be hard to imagine how Americans will react to the court conspicuously providing aid and comfort to the 19 percent. You may reason, justices, that by joining Justice Alito’s opinion, you will merely be changing the terms on which a******n issues get decided in the United States. In reality, you will be lighting another cultural fire — one that took decades to get under control — in a country already ablaze over racial issues, school curriculums, criminal justice, e******n laws, sundry conspiracy theories and so on.
And what will the effect be on the court itself? Here, again, you may be tempted to think that overturning Roe is an act of judicial modesty that puts a******n disputes in the hands of legislatures. Maybe — after 30 years of division and mayhem.
Yet the decision will also discredit the court as a steward of wh**ever is left of American steadiness and sanity, and as a bulwark against our fast-depleting respect for institutions and tradition. The fact that the draft of Justice Alito’s decision was leaked — which Chief Justice Roberts rightly described as an “egregious breach” of trust — is a foretaste of the kind of guerrilla warfare the court should expect going forward. And not just on a******n: A court that betrays the trust of Americans on an issue that affects so many, so personally, will lose their trust on every other issue as well.
The word “conservative” encompasses many ideas and habits, none more important than prudence. Justices: Be prudent."
Bret Stephens
As you’ll no doubt agree, Roe v. Wade was an ill-judged decision when it was handed down on Jan. 22, 1973.
It stood on the legal principle of a right to privacy found, at the time, mainly in the penumbras of the Constitution. It arrogated to the least democratic branch of government the power to settle a question that would have been better decided by Congress or state legislatures. It set off a culture war that polarized the country, radicalized its edges and made compromise more difficult. It helped turn confirmation hearings for the Supreme Court into the unholy death matches they are now. It diminished the standing of the court by turning it into an ever-more political branch of government.
But a half-century is a long time. America is a different place, with most of its population born after Roe was decided. And a decision to overturn Roe — which the court seems poised to do, according to the leak of a draft of a majority opinion from Justice Samuel Alito — would do more to replicate Roe’s damage than to reverse it.
It would be a radical, not conservative, choice.
What is conservative? It is, above all, the conviction that abrupt and profound changes to established laws and common expectations are utterly destructive to respect for the law and the institutions established to uphold it — especially when those changes are instigated from above, with neither democratic consent nor broad consensus.
This is partly a matter of stare decisis, but not just that. As conservatives, you are philosophically bound to give considerable weight to judicial precedents, particularly when they have been ratified and refined — as Roe was by the 1992 Planned Parenthood v. Casey decision — over a long period. The fact that Casey somewhat altered the original scheme of Roe, a point Justice Alito makes much of in his draft opinion, doesn’t change the fact that the court broadly upheld the right to an a******n. “Casey is precedent on precedent,” as Justice Kavanaugh aptly put it in his confirmation hearing.
It’s also a matter of originalism. “To avoid an arbitrary discretion in the courts,” Alexander Hamilton wrote in Federalist No. 78, “it is indispensable that they” — the judges — “should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them.” Hamilton understood then what many of today’s originalists ignore, which is that the core purpose of the courts isn’t to engage in (unavoidably selective) textual exegetics to arrive at preferred conclusions. It’s to avoid an arbitrary discretion — to resist the temptation to seek to reshape the entire moral landscape of a vast society based on the preferences of two or three people at a single moment.
Just what does the court suppose will happen if it v**es to overturn Roe? Ending legalized a******ns nationwide would not happen, so pro-lifers would have little to cheer in terms of the total number of terminated pregnancies, which has declined steadily, for a host of reasons, with Roe and Casey still the law of the land.
But the pro-lifers would soon rediscover the meaning of another conservative truism: Beware of unintended consequences. Those include the return of the old, often unsafe, illegal a******n (or a******ns in Mexico), the entrenchment of pro-choice majorities in blue states and the likely consolidation of pro-choice majorities in many purple states, driven by v**ers newly anxious over their reproductive rights. Americans are almost evenly divided on their personal views of a******n, according to years of Gallup polling, but only 19 percent think a******n should be illegal under all circumstances.
It shouldn’t be hard to imagine how Americans will react to the court conspicuously providing aid and comfort to the 19 percent. You may reason, justices, that by joining Justice Alito’s opinion, you will merely be changing the terms on which a******n issues get decided in the United States. In reality, you will be lighting another cultural fire — one that took decades to get under control — in a country already ablaze over racial issues, school curriculums, criminal justice, e******n laws, sundry conspiracy theories and so on.
And what will the effect be on the court itself? Here, again, you may be tempted to think that overturning Roe is an act of judicial modesty that puts a******n disputes in the hands of legislatures. Maybe — after 30 years of division and mayhem.
Yet the decision will also discredit the court as a steward of wh**ever is left of American steadiness and sanity, and as a bulwark against our fast-depleting respect for institutions and tradition. The fact that the draft of Justice Alito’s decision was leaked — which Chief Justice Roberts rightly described as an “egregious breach” of trust — is a foretaste of the kind of guerrilla warfare the court should expect going forward. And not just on a******n: A court that betrays the trust of Americans on an issue that affects so many, so personally, will lose their trust on every other issue as well.
The word “conservative” encompasses many ideas and habits, none more important than prudence. Justices: Be prudent."
Bret Stephens
May 16, 2022 06:54:36 #
David Martin
Loc: Cary, NC
Kmgw9v wrote:
"Dear Chief Justice Roberts and Justices Barr... (show quote)
The above editorial might make sense if the Supreme Court were a legislative body and had legislative, rather than interpretive intent, and if overturning Roe v. Wade really did make a******n illegal. But neither is these is true.
It is also noteworthy that a supposedly enlightened discussion of Roe fails to mention a primary concern expressed in the leaked opinion, that "a******n is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called "fetal life" and what the law now before us describes as an "unborn human being."" Apparently the author of the editorial considers the fetus to be a non-issue.
May 16, 2022 12:35:54 #
Kmgw9v wrote:
"Dear Chief Justice Roberts and Justices Barr... (show quote)
When will you people come to terms with the fact that overturning Roe is a matter of constitutional law and nothing else, maybe if the original decision would have taken into consideration the future implications of creative interpretation on a ruling as important and controversial as Roe they would not have ruled as they did. They only succeeded in creating a larger problem that we now face today.
May 17, 2022 08:03:38 #
Well, it is MAGA and go back to the cleanly defined constitution... things were great back in the last of the 1700s. We need to turn or nation around and be back to ... wait a minute this is 200 years later and our world has changed and society has vastly changed.
"In 1965, the Supreme Court ruled in Griswold v. Connecticut that it was unconstitutional for the government to prohibit married couples from using birth control. Also in 1965, 26 states prohibited birth control for unmarried women."
https://en.wikipedia.org/wiki/Birth_control_in_the_United_States
Once we have done away with a******n next must outlaw Birth control also as it was in most of the 1900s. Sex is for procreation and so should not be allowed except for conception. Sorry fellows, Bible says masturbation and homosexuality are forbidden even at the Republican house on K-street in DC. Sheep and large dog surrogates are forbidden also.
https://en.wikipedia.org/wiki/Catholic_theology_of_sexuality
Overturning Roe v Wade is a framework and the mention of RvW can be used for any argument, for example, v****g rights... Only White property owners, not renters or people with mortgages, can v**e. Abolish one man one v**e... we have an e*******l college to make the final decision [certainly no B****s, Hispanics, or the chattel class... Women can be allowed to v**e]
V****g rights are a confusing hodgepodge mess and must be cleansed... "A historic turning point was the 1964 Supreme Court case Reynolds v. Sims that ruled both houses of all state legislatures had to be based on e*******l districts that were approximately equal in population size, under the "one man, one v**e" principle.[2][3][4] The Warren Court's decisions on two previous landmark cases—Baker v. Carr (1962) and Wesberry v. Sanders (1964)—also played a fundamental role in establishing the nationwide "one man, one v**e" e*******l system.[5][6] Since the V****g Rights Act of 1965, the Twenty-fourth Amendment, and related laws, v****g rights have been legally considered an issue related to e******n systems. In 1972, the Burger Court ruled that state legislatures had to redistrict every ten years based on census results; at that point, many had not redistricted for decades, often leading to a rural bias. " Fill discussion:
https://en.wikipedia.org/wiki/V****g_rights_in_the_United_States
"In 1965, the Supreme Court ruled in Griswold v. Connecticut that it was unconstitutional for the government to prohibit married couples from using birth control. Also in 1965, 26 states prohibited birth control for unmarried women."
https://en.wikipedia.org/wiki/Birth_control_in_the_United_States
Once we have done away with a******n next must outlaw Birth control also as it was in most of the 1900s. Sex is for procreation and so should not be allowed except for conception. Sorry fellows, Bible says masturbation and homosexuality are forbidden even at the Republican house on K-street in DC. Sheep and large dog surrogates are forbidden also.
https://en.wikipedia.org/wiki/Catholic_theology_of_sexuality
Overturning Roe v Wade is a framework and the mention of RvW can be used for any argument, for example, v****g rights... Only White property owners, not renters or people with mortgages, can v**e. Abolish one man one v**e... we have an e*******l college to make the final decision [certainly no B****s, Hispanics, or the chattel class... Women can be allowed to v**e]
V****g rights are a confusing hodgepodge mess and must be cleansed... "A historic turning point was the 1964 Supreme Court case Reynolds v. Sims that ruled both houses of all state legislatures had to be based on e*******l districts that were approximately equal in population size, under the "one man, one v**e" principle.[2][3][4] The Warren Court's decisions on two previous landmark cases—Baker v. Carr (1962) and Wesberry v. Sanders (1964)—also played a fundamental role in establishing the nationwide "one man, one v**e" e*******l system.[5][6] Since the V****g Rights Act of 1965, the Twenty-fourth Amendment, and related laws, v****g rights have been legally considered an issue related to e******n systems. In 1972, the Burger Court ruled that state legislatures had to redistrict every ten years based on census results; at that point, many had not redistricted for decades, often leading to a rural bias. " Fill discussion:
https://en.wikipedia.org/wiki/V****g_rights_in_the_United_States
May 17, 2022 10:04:30 #
David Martin wrote:
The above editorial might make sense if the Suprem... (show quote)
Right you are. The Justices are supposed to rule on the Constitutionality of issues. A******n is not a fundamental right protected in the 14th amendment to the Constitution.
Historically and culturally it has never been considered a right in general and thus does not fall under the 9th amendment either.
It is completely different from birth control and thus does not fall under Griswold also.
Bret Stephens is an intellectual RINO.
May 20, 2022 10:44:45 #
So far as I can tell, the U. S Constitution and its Amendments say nothing about a constitutional right to a******n on demand.
Instead, the Justices interpreted these governing documents to reach this right, and the same goes for another ruling, that of homosexual marriage as a constitutional right, a patent social falsity. So, where will they stop, these conjured rights?
The Court appears ready to move back toward the center, away from issues better left to other venues.
Instead, the Justices interpreted these governing documents to reach this right, and the same goes for another ruling, that of homosexual marriage as a constitutional right, a patent social falsity. So, where will they stop, these conjured rights?
The Court appears ready to move back toward the center, away from issues better left to other venues.
Kmgw9v wrote:
"Dear Chief Justice Roberts and Justices Barr... (show quote)
May 20, 2022 12:18:40 #
Racmanaz
Loc: Sunny Tucson!
Kmgw9v wrote:
"Dear Chief Justice Roberts and Justices Barr... (show quote)
Why is it that mentally ill lefties think that overturning roe vs Wade and giving the states the power to decide is a radical movement but k*****g of The unborn child is not a radical movement?
May 20, 2022 12:23:02 #
Racmanaz
Loc: Sunny Tucson!
anotherview wrote:
So far as I can tell, the U. S Constitution and its Amendments say nothing about a constitutional right to a******n on demand.
Instead, the Justices interpreted these governing documents to reach this right, and the same goes for another ruling, that of homosexual marriage as a constitutional right, a patent social falsity. So, where will they stop, these conjured rights?
The Court appears ready to move back toward the center, away from issues better left to other venues.
Instead, the Justices interpreted these governing documents to reach this right, and the same goes for another ruling, that of homosexual marriage as a constitutional right, a patent social falsity. So, where will they stop, these conjured rights?
The Court appears ready to move back toward the center, away from issues better left to other venues.
You're just repeating the same Lefty unhinged lie. No political group is opposing gay marriage or contraceptives or anything else besides saving The unborn baby's life. Stop with your unhinged fear-mongering nonsense.
May 20, 2022 12:41:22 #
anotherview wrote:
So far as I can tell, the U. S Constitution and its Amendments say nothing about a constitutional right to a******n on demand.
Instead, the Justices interpreted these governing documents to reach this right, and the same goes for another ruling, that of homosexual marriage as a constitutional right, a patent social falsity. So, where will they stop, these conjured rights?
The Court appears ready to move back toward the center, away from issues better left to other venues.
Instead, the Justices interpreted these governing documents to reach this right, and the same goes for another ruling, that of homosexual marriage as a constitutional right, a patent social falsity. So, where will they stop, these conjured rights?
The Court appears ready to move back toward the center, away from issues better left to other venues.
Gay marriage is certainly something that we can see under the equal rights clause, personally in my opinion the courts should have ruled that it is a civil contract and gotten the government out of marriage and properly place the government in the realm of the civil contract. Regardless I do support equal laws for both heterosexual and gay unions.
As far as contraception goes, there is a difference between taking the life of a developed human being and preventing the fertilization of an egg. If Roe is reversed the court itself does highlight that there is a second life involved. In my opinion there can be no such consideration for contraception.
May 20, 2022 14:05:57 #
The pro ( mostly far right )
Are like the dog that chased the car and caught it . Now what ?
2/3’ of America wants to keep roe in place but with fixes and certain restrictions.
Politically it will energies the libs to a bigger turn out in November. . That’s why McConnell is pushing to codify a******n rules.
The trouble with that and Schumer approach is , in my opinion , if the court says it had no authority. Before what give congress any authority now. Beside neither will go anywhere in congres. Most Politician want to stay as close to middle during elect
Are like the dog that chased the car and caught it . Now what ?
2/3’ of America wants to keep roe in place but with fixes and certain restrictions.
Politically it will energies the libs to a bigger turn out in November. . That’s why McConnell is pushing to codify a******n rules.
The trouble with that and Schumer approach is , in my opinion , if the court says it had no authority. Before what give congress any authority now. Beside neither will go anywhere in congres. Most Politician want to stay as close to middle during elect
May 20, 2022 14:25:18 #
DennyT wrote:
The pro ( mostly far right ) br Are like the dog ... (show quote)
G D, when you people understand that the court is not supposed to consider politics, the court was never intended to amend the constitution, currently if the court does overturn Roe they will be correcting an earlier overreach. I agree with the popular polling on Roe, but I also think that it is more important for the court to preform its function within the constitutional limitations that were intended for it.
May 20, 2022 14:43:57 #
Blurryeyed wrote:
G D, when you people understand that the court is not supposed to consider politics, the court was never intended to amend the constitution, currently if the court does overturn Roe they will be correcting an earlier overreach. I agree with the popular polling on Roe, but I also think that it is more important for the court to preform its function within the constitutional limitations that were intended for it.
I won’t argue whether I believe RvW was unconstitutional. But what makes you think you or the present 9 Wise Folks are “correcter” than the 9 Wise Folks of 50 years ago? Do you think they simply overlooked the constitutionality of their decision, or do you think a few smart-ass lawyers have found a new twist in the arguments?
May 20, 2022 14:48:06 #
JohnFrim wrote:
I won’t argue whether I believe RvW was unconstitutional. But what makes you think you or the present 9 Wise Folks are “correcter” than the 9 Wise Folks of 50 years ago? Do you think they simply overlooked the constitutionality of their decision, or do you think a few smart-ass lawyers have found a new twist in the arguments?
John, earlier in some of these threads I posted leading liberal constitutional scholars including Ruth Bader Ginsberg stating that the court overreached in the original decision, that there is not constitutional argument that would conclude as the earlier court did.
May 20, 2022 14:59:15 #
Blurryeyed wrote:
G D, when you people understand that the court is not supposed to consider politics, the court was never intended to amend the constitution, currently if the court does overturn Roe they will be correcting an earlier overreach. I agree with the popular polling on Roe, but I also think that it is more important for the court to preform its function within the constitutional limitations that were intended for it.
Get a grip dope. I never said a word about the court one way or the other . My only mention was what I posted long ago that it is not in the realm of constitutional am authority.
What are you such a JA
May 20, 2022 15:02:03 #
DennyT wrote:
Get a grip dope. I never said a word about the court one way or the other . My only mention was what I posted long ago that it is not in the realm of constitutional am authority.
What are you such a JA
What are you such a JA
Ok, I may have assumed that you were saying something else without fully reading your post, in a gesture of peace I won't bother to correct your spelling.
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