Supreme Court has voted to overturn abortion rights, draft opinion shows

[Syt]

Heading for the Gilded Age V2.0, then?

[jimmy olsen]

Heading for the Gilded Age V2.0, then?

Already there

[alfred russel]

I think that might be why there are legal thinkers on the right looking beyond originalism and that it will be a staging post to something else in the same way as textualism was on the road to originalism.

Arguably politically it's starting to reach the point where it's served its purpose. And as the new dominant school on the Supreme Court, it feels like it is going to be the base layer of arguments and opinions even by non-originalist/right-wing lawyers and judges.

For whatever it is worth it wasn't just right wing people back in the day: Biden opposed Roe v. Wade back in the day and supported an amendment to overturn it.

I think a lot of people laughed at evangelicals for supporting Trump, but maybe that was wrongheaded? This was probably #1 on their agenda for 50 years, and was a part of every republican platform between roe v. wade and trump. But looking at USSC justice nominations by republican president, none of them appointed a majority in favor of completely overturning (I could be making a mistake somewhere):

President  Appointments to Overturn/Appointments to Sustain at least some rights
Ford       0/1
Reagan     2/2
Bush       1/1
Clinton    0/2
Bush II    1/1
Obama      0/2
Trump      3/0

I'd be shocked if Trump is actually against abortion, but from a transactional perspective he definitely delivered in a way no other republican did.

[alfred russel]

I wonder how this decision will, in the history books, impact Ruth Bader Ginsberg's reputation.  There were any number of calls for her to retire during the Obama administration, but she declined, apparently believing that Hillary Clinton would nominate a more liberal replacement than Obama. That was a disastrous gamble.

I find it plausible that Roberts would, in the 4-4 tie that would have resulted from an Obama appointee holding the seat  Comey-Barret holds, have decided that stare decisis was more important than the Federalist Society.

In a case for "what ifs", it may have been a mistake for democrats to join with conservative republicans to torpedo harriet miers. The result was Alito getting the nomination. I'm not sure that could have been played much differently, however.

[mongers]

Turns out Cdm was, well on the money and Malthus's aunt now also has a career in political analysist.

[Berkut]

Just pack the court with 4 new judges and overturn the vote and the one from the previous day.

and then the next will pack the court too... ad infinitum

FUCK I HATE THIS ARGUMENT SO MUCH.

The Republicans will do whatever the fuck they want to do. They have proven clearly that they are NOT constrained by anything other then what power they have.

They are not refraining from packing the court because the Dems haven't done it first. They are refraining from doing so because they figured out a better way to take control of it while destroying its legitimacy.

There is no scenario where the USSC has any remaining relevance as a legal institution. There is no "legitimacy" to protect.

If the Republicans are going to counter pack the court, then let them do so if they get the power. THEY WILL DO SO ANYWAY IF THAT IS WHAT THEY HAVE TO DO.

[Berkut]

It's going to be interesting to see how Thomas bends over backwards to preserve arguments justifying the legality of his own marriage.

No, it won't. 

None of this is interesting.

I don't even agree with Minsky's idea that this is some new legal framework called "originalism" that is terrible.

It isn't anything like that, IMO.

THis is "There are six of us, and three of you, so go fuck yourself".

Everything after the conclusion is bullshit. The justification is bullshit. You can call it originalism, but that is just a rather thin and shitty fig leaf for what is actually happening. Nobody writing those opinions believes anything they are writing any more then we do.

They want to get rid of abortion, so they do so because there are six of them. All the "decisions" and word salad is just mumbo jumbo bullshit. 

[alfred russel]

FUCK I HATE THIS ARGUMENT SO MUCH.

The Republicans will do whatever the fuck they want to do. They have proven clearly that they are NOT constrained by anything other then what power they have.

They are not refraining from packing the court because the Dems haven't done it first. They are refraining from doing so because they figured out a better way to take control of it while destroying its legitimacy.

There is no scenario where the USSC has any remaining relevance as a legal institution. There is no "legitimacy" to protect.

If the Republicans are going to counter pack the court, then let them do so if they get the power. THEY WILL DO SO ANYWAY IF THAT IS WHAT THEY HAVE TO DO.

Sort of like how the republicans would get rid of the filibuster once they controlled the white house, senate and house, or how post 2020 census they were going to gerrymander the democrats into oblivion?

Roe v. Wade lasted for 49 years. There have been a lot of rulings that didn't go their way. They didn't pack the court.

[Berkut]

FUCK I HATE THIS ARGUMENT SO MUCH.

The Republicans will do whatever the fuck they want to do. They have proven clearly that they are NOT constrained by anything other then what power they have.

They are not refraining from packing the court because the Dems haven't done it first. They are refraining from doing so because they figured out a better way to take control of it while destroying its legitimacy.

There is no scenario where the USSC has any remaining relevance as a legal institution. There is no "legitimacy" to protect.

If the Republicans are going to counter pack the court, then let them do so if they get the power. THEY WILL DO SO ANYWAY IF THAT IS WHAT THEY HAVE TO DO.

Sort of like how the republicans would get rid of the filibuster once they controlled the white house, senate and house, or how post 2020 census they were going to gerrymander the democrats into oblivion?

Roe v. Wade lasted for 49 years. There have been a lot of rulings that didn't go their way. They didn't pack the court.

They did not pack the court, because they figured out a better way to take control of it - they just refused to let Dems appoint judges.

If the republicans did not get rid of the filibuster, they made that choice because they decided the best way to maintain power is to not get rid of it, not because they care about its integrity.

If they did not gerrymander the Dems into non-existence, it is because they lacked the power to do so.

"They didn't pack the court". Fuck, there is a 6-3 majority on the USSC right now, and the  represent like, 35% of the people. And in reality it is actally MUCH worse then that. "6-3" doesn't even begin to actually describe the make up of the USSC. It isn't 6 rational, reasonable jurists who lean a little right against 3 rational, reasonable jurists who lean a little left. 

It is three rational, reasonable jurists who happen to lean a little left against 4 fucking insane right wing fanatics and 2 right wing approved milquetoasts who go along with the radicalized friends. 

They right certainly HAS packed the court, and they did so completely illegitimately. The left can shrug and say "Well, lets redress that over the next 60 years damnit!" or they can start trying to play the game as it exists.

Now, they actually lack the power to pack the court right now, because they cannot get the vote to do so. They should use that as a political tool. They should absolutely be saying that packing the court is an option, and you should vote for us so we can exercise power to fix this.

[crazy canuck]

And to be clear the problem with originalism is not just that it is philosophically incoherent and deepens the very problem it seeks to solve.  It is not just that it is unworkable in practice and will lead to all sorts of technical problems in application the federal courts can't handle.  And is not just that it contains an extreme reactionary bias that will cause enormous suffering for the American people now and the years to come.

It is that as a controlling doctrine for understanding and interpreting the law it is really naive and just plain stupid.  To such a degree that in reading and thinking about these decisions, my personal outrage at the policy implications of the recent decisions keeps being drowned out by my professional embarrassment as an American lawyer that this is end product of our supposedly best legal minds.

Remember when the imperative of conservative judicial thinking was certainty and incremental change?  You know the things the majority said they would apply during their confirmation hearings.

[The Larch]

I know I've mentioned it before, and it is less important than abortion or gun control, but there's also the EPA case coming up. It seems like there's a strong chance this court effectively guts the power of the federal government to regulate. It's less striking and direct on people's lives but I think its impact across a lot of areas could be huge from what I've read - environmental, financial, credit regulations etc.

I mentioned it in the Climate Change thread, I was not aware of it until recently and it sounds really terrifying, basically shackling government's ability to regulate. It attacks not just what has been done but also what can be done in the future. It feels truly as if the Judicial branch is out of control and is the one that dictates official activities. What does it matter that Congress or the President do if the courts will thwart and reinterpret it in the most reactionary way possible?

I really wonder what will it take, once it's clear that Roe v. Wade is only the first of many reactionary judicial decisions, for Biden (or the Dems as a whole) to get his act together and actually do something about it, not just banale calls for voting. I guess it might depend on the result of the mid terms.

[The Larch]

It is three rational, reasonable jurists who happen to lean a little left against 4 fucking insane right wing fanatics and 2 right wing approved milquetoasts who go along with the radicalized friends. 

Out of curiosity, who are the two right wing milquetoasts? Roberts and Gorsuch/Kavanaugh?

[Berkut]

It is three rational, reasonable jurists who happen to lean a little left against 4 fucking insane right wing fanatics and 2 right wing approved milquetoasts who go along with the radicalized friends.

Out of curiosity, who are the two right wing milquetoasts? Roberts and Gorsuch/Kavanaugh?

Roberts and Gorsuch. Kavanaugh is a lying piece of shit.

[The Larch]

I have the feeling that "lying piece of shit" applies to several of them too.

[Berkut]

I have the feeling that "lying piece of shit" applies to several of them too.

Of course. Certainly the last three all said straight out that Roe was settled law.