Texas vs Roe vs Wade

[Admiral Yi]

Great answer Joan.

You gave me wood

[The Minsky Moment]

I'm not the one who cited English common law in my decision as a Supreme Court justice as part of my explanation for the right to privacy. William O. Douglas is no longer alive but he's the one you would have to take issue with, not me.

Douglas did not invoke the common law in Griswold, but "penumbras" emanating from the Bill of Rights, although there was a footnote indirectly citing to an 18th century English case on freedom on the press.

Blackmun quoted Coke and Blackstone in Roe but it is peripheral to his decision.

[grumbler]

I don't agree that such a right was created by message board posters. Since you yourself have been wrong in virtually everything you've posted in this thread, your interpretation of my rightness or wrongness isn't particularly persuasive either.

The closest I can find to a "a right to procreation" is Skinner v Oklahoma  one part of which states that

We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race.

Note that this is a civil right here, not a human right or a constitutionally-protected one.  Note also that this case was decided not on the basis of such a civil right, but on the basis that sterilization could only be ordered if it met the standards of the equal protection clause of the Fourteenth Amendment, which the Oklahoma law did not do because it distinguished between various types of larceny, some subject to sterilization, some not

When the law lays an unequal hand on those who have committed intrinsically the same quality of offense and sterilizes one and not the other, it has made as invidious a discrimination as if it had selected a particular race or nationality for oppressive treatment... Sterilization of those who have thrice committed grand larceny, with immunity for those who are embezzlers, is a clear, pointed, unmistakable discrimination.

Absent this unequal treatment, sterilization is allowed in some circumstances, as Buck v Bell demonstrates.

All cases that I could find which cite reproduction as a fundamental right (not a civil right) include abortion or contraception rights - the very cases you claim were wrongly decided.  You can't have it both ways.

Not, I am sure, that mere facts will persuade you.  You've been blundering through this whole debate with your alternate facts and claiming that they are superior to my demonstrated facts.

[OttoVonBismarck]

I'm not the one who cited English common law in my decision as a Supreme Court justice as part of my explanation for the right to privacy. William O. Douglas is no longer alive but he's the one you would have to take issue with, not me.

Douglas did not invoke the common law in Griswold, but "penumbras" emanating from the Bill of Rights, although there was a footnote indirectly citing to an 18th century English case on freedom on the press.

Blackmun quoted Coke and Blackstone in Roe but it is peripheral to his decision.

I said he "cited" it, a foot note is almost definitionally a citation, is it not?

[The Minsky Moment]

Douglas cited a US Supreme Court case Boyd v. US.  It was Boyd that cited the old English case.  Since Douglas' penumbral argument is that the meaning and scope of the constitutional right of privacy is NOT confined by the common law understanding of the individual amendments, it is unfair to characterize him as making an argument based on the historical understanding of the common law.  Indeed Boyd was the case that announced the 4th amendment exclusionary rule, which was definitely not recognized in the English common law.

[Sheilbh]

Million of pages of print have been dedicated to the jurisprudential problem of constraints on raw judicial discretion in interpreting and applying law.  In the middle of the 20th century, one school of jurisprudence - the Realists - declared the problem inherently unsolvable.  Judges were human beings and thus political animals, and any system of jurisprudence was just intellectual window dressing to disguise political preference.  Any interpretive principle or canon could be bent or manipulated to generate a desired end result. 

The realist critique is and remains powerful and I don't think a fully satisfactory response has ever been developed.  Judges do engage in results oriented reasoning and do manipulate interpretive canons.  But although some find the realist answer bracing for many others it is deeply unsettling and unsatisfactory, because the idea that lawyers in robes can effectively rewrite and reinterpret the laws at will seems corrosive of democratic principle.  If that is really the way the law works, doesn't it reinforce the Donald Trump-like view that justice is just personality?

In fact there is one meaningful constraint on judicial action - namely, the constraint of explanation.  Judges express their rulings in written opinions and thus must explain what they do and why they are doing it.  And the social pressure of the expectations of democratic society means that most judges feel that cannot justify their rulings by openly stating raw political preference.  Those pressures lead judges to announce public adherence to interpretive frameworks that are or appear to be (or can be argued to appear to be) facially neutral.  And that in turn creates social pressure to stick to those frameworks rather than face accusations of hypocrisy.

The constraint of explanation may not be hard as iron but it is real.  One can see it in the career of someone like Chief Judge Roberts, a straight down the line political conservative, but one constantly torn between his personal outcome preferences in individual cases and his desire to preserve the legitimacy of the judiciary as a national institution.  Mr. John Roberts would never have voted for ACA, but Justice Roberts has voted to save it, because of those broader institutional concerns.

And I think that is fundamentally true - I think the realists are right on that. Like BB I would also say that the political here is more than just ideological or partisan preferences. For example I think Roberts' concern with the legitimacy of the Court (and in particular the reputation of the Roberts Court) is as much of a political driver as his views as a private citizen. The results may end up being different depending on which has priority - and they will, I think, be increasingly difficult for him to balance now it's a 6-3 court with fewer institutionalists.

I think this was true in the first opinion - it's years since I read but I remember the Bob Woodward book on the Supreme Court described that Blackmun really struggled with a legal argument for his ruling that didn't end up going down lots of rabbit holes. My impression was that his almost policy preference was to make clear that there were constitutional protections for medical privacy and for the relationship between an individual and their doctor (possibly inspired by his background as counsel for the Mayo Clinic). I think that drove his decision and the reaesoning follows, not the other way round.

I think one of the problems in the "why are the Democrats so bad at politics" question is that I think the right, while not acknowledging it, have broadly adopted the realist position while many Democrats - including liberals on the court haven't and still believe it's a collegail dispute of legal pphilosophy.

Having said that there are some judges who do seem more legally based than not - I'd add Gorsuch to that who I think has written at least a couple of very interesting and possibly surprising opinions (endorsed by RBG, Breyer, Kagan, Sotomayor) that reached a liberal conclusion because of his textual and occasionally originalist analysis. It's why I have a little more respect for him than, say, Kavanaugh or Alito.

Incidentally on the "can the state do x" and rights debate - the European Court of Human Rights has an explicit right to privacy (article 8) and heard a challenge to Ireland's constitutional restrictions on abortion. The position in Ireland was that the constitution acknowledged the life of the unborn and it and the mother had an "equal" right to life. This meant that abortion was almost always banned (and tens of thousands of women came to the UK to get one) except in narrow cases where the mother's life was at risk. The ECtHR said the right to privacy "cannot be interpreted" as creating a right to abortion. It just ruled that Ireland's law on this (which was shaped by case law) was insufficiently clear and there was nowhere women could go for a decision on whether or not they met the criteria, so there was uncertainty which did breach human rights.

Obviously the Convention is not a constitutional document and the ECtHR generally shows a "broad margin of appreciation" for states to interpret their human rights obligations - to the extent that when it comes to, say, spying by domestic intelligence agencies or law enforcement those rights might as well not exist - so it's a very different system. But also a very different conclusion. It might be of interest to conservative lawyers if they didn't have that weird issue with citing foreign judgements

[OttoVonBismarck]

Million of pages of print have been dedicated to the jurisprudential problem of constraints on raw judicial discretion in interpreting and applying law.  In the middle of the 20th century, one school of jurisprudence - the Realists - declared the problem inherently unsolvable.  Judges were human beings and thus political animals, and any system of jurisprudence was just intellectual window dressing to disguise political preference.  Any interpretive principle or canon could be bent or manipulated to generate a desired end result. 

The realist critique is and remains powerful and I don't think a fully satisfactory response has ever been developed.  Judges do engage in results oriented reasoning and do manipulate interpretive canons.  But although some find the realist answer bracing for many others it is deeply unsettling and unsatisfactory, because the idea that lawyers in robes can effectively rewrite and reinterpret the laws at will seems corrosive of democratic principle.  If that is really the way the law works, doesn't it reinforce the Donald Trump-like view that justice is just personality?

In fact there is one meaningful constraint on judicial action - namely, the constraint of explanation.  Judges express their rulings in written opinions and thus must explain what they do and why they are doing it.  And the social pressure of the expectations of democratic society means that most judges feel that cannot justify their rulings by openly stating raw political preference.  Those pressures lead judges to announce public adherence to interpretive frameworks that are or appear to be (or can be argued to appear to be) facially neutral.  And that in turn creates social pressure to stick to those frameworks rather than face accusations of hypocrisy.

The constraint of explanation may not be hard as iron but it is real.  One can see it in the career of someone like Chief Judge Roberts, a straight down the line political conservative, but one constantly torn between his personal outcome preferences in individual cases and his desire to preserve the legitimacy of the judiciary as a national institution.  Mr. John Roberts would never have voted for ACA, but Justice Roberts has voted to save it, because of those broader institutional concerns.

This is the core issue right here, and it's rare to see someone from the legal profession even acknowledge there is valid critique of the usurped powers held by the American judiciary. I don't think the system is so terrible it should be thrown out completely, I think judges have to make interpretive judgements, and I think their function in our society is mostly necessary and proper given the structure of our legal / constitutional system and any alternative we set up would have problems of its own.

Where I do ultimately take issue is in two areas: 1) the use of the Supreme Court's rulings as the ultimate "appeal to authority" and 2) the lack of sufficient procedural guardrails and checks on Supreme Court power.

On the point of one, and you can see it here with Berkut's temper tantrum, when someone finds a Supreme Court decision they agree with, it is the best, most reasoned, most perfect expression of law that can be had. Roe was divine judgement, or even better--divine revelation, the perfect divine revelation that shrouded in the smoky mists of the right to privacy, hid a right to procure an abortion, that only was waiting for its St. Paul to receive this revelation and preach it to the masses. Any alternative to this view is the view of a rube, an imbecile, and worse someone that hates women and wants to see women punished.

The reality of course is far more nuanced. I actually have said before (not in this thread, but elsewhere) that the rights weighing framework of Roe was pretty good as a concept for addressing the complex issues involved. But I've also ultimately always said that the simpler outcome would have been to punt it back to the status quo ante--that the States can regulate abortion under the laws of their constitutions and rulings of their courts, I do not believe the Federal Supreme Court had to issue Roe, and I do not believe it was wise that it did. I think it was a political decision to issue the ruling and I think the best way to evaluate a political decision is to evaluate it as just that--and not to pretend it is an act of divine revelation.

I'll also note that, not to make it personal, I've seen Joan shit on the Heller decision quite a good many times, but the reality is [Heller met all the same prima facie check boxes that any other Supreme Court decision needs to meet. It does not just contain a passage saying "Fuck the Dems guns are good." It operates within the constraint of explanation. Someone with Joan's political proclivities can say it's a bad example of meeting that, but--because it is ultimately a political act, it's impossible to separate the political out of it. Just as it is for Roe.

Judicial review as we have it in the United States is not a universal norm, is it a good system? I think it mostly is okay, but I think it should be recognized it can never be entirely apolitical. That means it should not be looked at the same way as what I would call (and it's easy to take issue with the wording) procedural issues of judicial activity. When a judge rules that some official has taken an action that is at clear contravention to their statutory bailiwick (like the Kentucky County Clerk who was refusing to issue marriage licenses), that's a fairly simple procedural activity. When a judge is saying someone has a specific right that, as it is expressed, has not previously been implemented in society, the judge is acting politically. Even if the judge's legal arguments are very sound, it is an inherently political act. That doesn't necessarily mean malicious, the argument could be one that very naturally follows from the Constitution, existing statute and etc, but it is still a political action. It is a politically appointed official taking an action that causes changes to the political climate in the country, that's a political act.

On point 2), the lack of procedural guardrails on the court, is why I think it is so important to acknowledge that the Supreme Court is an inherently political institution, and that many of its decisions are inherently political decisions. If you feel judicial review is, on net, worth having, you essentially accept that the judicial branch gets to have some level of politically policymaking power. I would say with that realization the checks and limits to the judiciary should have been more carefully considered when Article III was written. There are a number of ways things could be improved, and I can't say for sure what reforms would be best, but it should be noted:

-Political appointees with lifetime tenure in a political position, can continue to make political decisions that affect our society for decades after the political faction that lead to their appointment has long since gone defunct. This happened nearly at the very beginning of our country, when Federalist John Marshall was given a spot on the bench which he held for literally decades after his political party had ceased being nationally relevant. He and other Federalist judges frequently issued rulings that were inherently political in nature, that undermined the governance of (elected) politicians from the other party.

-There is no mechanism in our system to even attempt to ensure an appointed judge is apolitical or non-partisan, because of the flawed fiction in our constitutional design that presumed the legislature would not be beholden to factionalism.

-The ability to countermand a political decision by the Supreme Court is incredibly limited. You can wait years to change the composition of the court, and hope for a lucky break in the rulings. You can pass a constitutional amendment. That's the two clean ways. There are a few other ways that mostly violate norms and only have a light history of use: selected rejection of rulings by the executive (which exposes another problem that the only counter to such executive misbehavior is impeachment--and only certain types of rulings can be countered this way), jurisdiction stripping which has been used in limited contexts but is largely not seen as politically appropriate for most purposes and court-packing / court shrinking, which stopped being used after the mid-19th century.

We have a constitution that is built to enshrine the privileges of landowners and yeoman farmers almost to the complete exclusion of everyone else, and that has baked in systems that encourage gerontocracy, anti-majoritarianism and etc. We made the constitution virtually impossible to amend, empowering destructive sectional interests. We also allowed political elements in the late 19th/early 20th century to deliberately carve out a number of very low population states from Western territories, that it was fully understood would be permanent bulwarks against urbanism and industry on behalf of agrarianism. In this system I think having another body that lets people who can't win popular elections further entrench their power almost indefinitely, is poor design.

[Berkut]

There is no legal debate about there existing a "right to abortion". That is a total red herring.

People act like Roe v Wade is some kind of explicit right to abortion at any time and for any reason. It is not, and in fact explicitly acknowledges that there is in fact a compelling state interest in the life of the fetus. All it does is also acknowledge that that interest is not exclusive, and must be balanced against a women's right to privacy and basic liberty.

Roe v Wade did not make abortion legal, always. It only made it legal *sometimes*. The repeal of it is not some return to rational, reasonable, and considered balancing of competing interests - that is what we have now.

The repeal of it is  return to allowing states to not balance those interests at all, indeed,  a place where a woman having an actual right to privacy simply does not exist at all. And that will most certainly get used in placed other then abortion.

You can't have it both ways. You cannot acknowledge that a woman does in fact have a right to privacy, but that in this particular area, that right has no weight at all. If that is true, then it has no weight in all areas.

[Berkut]

Otto, that is a very reasonable response, mostly.

However, I would dispute the idea that anyone on this side is simply looking at the specific results and then claiming it is a good result - indeed, I would argue exactly the opposite.

I look at Heller and see clearly bullshit reasoning that has no relevance to the actual 2nd Amendment, and is 100% the outcome of the politicization of the USSC by the NRA in a very clear and coordinated effort that spanned years, if not decades.

And we are seeing the exact same thing happening with Roe v Wade. The views of the people haven't changed since then. Our understanding of science has not changed. Indeed, if you look at what has changed in society since RvW was decided, if it were all just "politics" and the will of the people, it would be going the other way. No - the change is simply that the right has spent a couple decades subverting the Court from even the fig leaf of non-political objectivity, which is what they did when they invented the fiction of the 2nd being about "personal protection". All they had to do to make that work is not actually pay any attention to what the amendemnt actually says, what the history of the US was for a couple hundred years, what the stated intent of the people who wrote it said, and what the will of the majority of Americans actually wanted.

Using the criteria you claim, Heller meets none of them. It is simply that the NRA managed to craft a political narrative, and jam it down the throats to the majority by getting the right people onto the Court. Now, our system does vest the USSC with that power, so here we are today. That doesn't make it good legal thinking, anymore than the invented idea that corporations are people and hence have free speech rights is a good idea.

The USSC makes all kind of shitty, objectively terrible decisions. They have a long and sordid history of it.

And you can, in most cases, easily see why those decisions were made despite being clearly complete bullshit. Because there was a concerted effort to circumvent the ideals of what it is meant to be, which is in fact a non-political arbiter intended to actually protect the people from the whims of the political "majority". It doesn't do that well, and ironically, in most recently terrible decisions, the failure has actually been to protect the majority from the whims of a political minority who has decided that the norms of democractic behavior and legal minimalism are simply not as important as their desire to have lots of guns, let money subvert democracy, and now to make sure women aren't allowed to control their own health.

This is standard "Accuse the other side of doing exactly what YOU are doing".

[The Minsky Moment]

I'll also note that, not to make it personal, I've seen Joan shit on the Heller decision quite a good many times, but the reality is [Heller met all the same prima facie check boxes that any other Supreme Court decision needs to meet. It does not just contain a passage saying "Fuck the Dems guns are good." It operates within the constraint of explanation. Someone with Joan's political proclivities can say it's a bad example of meeting that, but--because it is ultimately a political act, it's impossible to separate the political out of it. Just as it is for Roe.

I don't really have a problem with the outcome of Heller - pragmatically, I think it was a pretty reasonable way of balancing the strong views about gun rights held by many Americans as against the interest of the state in rational regulation.  I certainly agree that the decision was made  within the constraint of explanation -  Scalia was quite explicit about what he was holding and why.   I just find it ironic that the Court's most iconic partisan of textual readings using original meanings authored a decision that whatever its pragmatic merits is pretty glaringly unmoored from the text.

In a broader sense, I see the 2nd amendment as what I'd call a "constitutional embarrassment".  It's an embarrassment to the "left", because it clearly speaks of a right of the people, and the left is supposed to stand for a broad view of such rights, and yet historically the left has sought to interpret the 2nd amendment to a nullity.  But it's also an embarrassment to the "right" because whatever the 2nd amendment was supposed to be about, it's clear it didn't have much to do with the way most partisans think about gun rights today.  There are a few such embarrassments - the 11th amendment is one of them but more obscure - and the usual approach of the Court is to wave its hands to reach a pragmatic result without much regard to the text.  That's how I see Heller.

On the issue of judicial review generally, there are constraints including the case and controversy requirement (standing), the fact that the Court is passive and can't act without a case, congressional control over Court appellate jurisdiction and other court-made limits like the political question doctrine and the doctrine of constitutional avoidance.

That said, the fact that the Court can remove questions entirely from political decision is very much a double edge sword.  The value of that power can be seen in the 50s era civil rights ruling when the Court took the initiative to upend the cozy post-bellum consensus between North and South on Jim Crow.  Or more recently when the Court resisted the worst excesses of the post-9/11 infringement on civil liberties.  On the flip side is a decision like Dred Scott which ultimately fueled the fire of Civil War, or like Lochner - which effectively froze economic regulation for decades until FDR and the court packing threat.   Although to my mind the problematic decision of today's era is not Roe but Citizens United.