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

[Eddie Teach]

Dorsey probably has a bet on it.

[Sheilbh]

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.

And again I think this court is just getting started on their project.

[Syt]

 

[The Minsky Moment]

Thomas' concurrence in Dobbs - threatening the status of Griswold (contraception), Lawrence (consensual sexual acts among unrelated adults), Obergfell (gay marriage) - is sound if one accepts the majority opinion.  Under the Court's historical analysis, none of these are deeply rooted rights in American constitutional tradition.  And the same is true for Loving (miscegnation) and the rights of parents to control education of their children, although on these Thomas and the others will no doubt figure out how to look the other way.  The assurances of the other justices that Dobbs does not reach that far cannot be taken seriously without invalidating the reasoning in Dobbs intself.

The even bigger takeaway is that originalism - once a little respected variant even in conservative jurisprudential thinking - is now the dominant mode for constitutional and statutory interpretation in the federal judiciary.  In a sense, the most interesting opinion over the past few days is Coney Barrett's decision in the NY gun club case, where she raises technical doctrinal questions about the application of originalism. It is a signal that the Court is no longer open to other interpretive modes, and that future cases will focus on the inside baseball of defining the nuances of originalist theology.

The last few days has been a true constitutional revolution as deep and significant as that of the Lochner era, one that will have enormous repercussions for decades.

[The Minsky Moment]

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.

[HVC]

So if you're going with originality can you revoke universal suffrage and bring back slavery. It's what the founders would have wanted

[The Brain]

So if you're going with originality can you revoke universal suffrage and bring back slavery. It's what the founders would have wanted

Welcome to downtown GOPville.

[Sheilbh]

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.

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.

[Oexmelin]

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

[Zanza]

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

His position - in line with Dobbs - could be that there is no constitutional right to mixed marriage, but that individual states can (and maybe in his view should) grant that right.

[HVC]

Getting his marriage invalidated so he can separate without alimony. He's playing the long game

[Sheilbh]

His position - in line with Dobbs - could be that there is no constitutional right to mixed marriage, but that individual states can (and maybe in his view should) grant that right.

To be absolutely clear - this decision is political. Unfortunately American lawyers will have to pretend it's real piece of legal reasoning, but that's not my view of it.

But the distinction the judges would draw, I think and from what I've read, is that Roe v Wade (and Casey) are about what is the limit of liberty in the bit of the fourteenth amendment that says "nor shall any State deprive any person of life, liberty, or property, without due process of law". Basically what is the "liberty" that is described in that amendment - my understanding is that is where the right to privacy has emerged around contraceptives, abortion, sodomy and gay marriage. That is why Thomas basically asks for challenges to those judgements and that's the bit of legal thinking they are attacking. From what I understand for about the first 50-70 years of the fourteenth amendment "liberty" was basically understood as being about the right to enter into contracts and used to restrict state laws regulating employment, for example - which is possibly where we're going back to.

They would argue, I think a little Jesuitically, that the de-segregation cases are under the bit of the amendment that says "nor deny to any person within its jurisdiction the equal protection of the laws" as well as the liberty piece. In my view, to an extent, this doesn't matter because I think it's just political. But that's the way I think they'd frame it legally. And contraception, abortion, sodomy and gay marriage were not about equal protection from my understanding.

They'd say the court vastly expanded its concept of "liberty" that's protected under the fourteenth amendment from what was meant at the time - which was a worker's liberty not to have their freedom to contract more than a 16 hour work day limited - but it correctly applied equal protection of law in desegregation cases (and African-American workers too should not have their liberty to contract fettered by the state).

[grumbler]

I don't think that I've heard a Republican argue that they are appointing the "best legal minds."  Their criteria is that they are the most right-thinking legal minds; that they can reliably produce the proper outcomes, no matter the facts or the law.

[grumbler]

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.

[CountDeMoney]

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.

And again I think this court is just getting started on their project.

Oh, it's very striking and direct on people's lives. Not everybody is involved in abortions, but everyone is involved in clean air. 

Deconstruction of the administrative state, and all that.  Make Asthma Great Again!