Archive for May 2022

The leaked majority draft opinion obtained by Politico puts the US Supreme Court in a very awkward position. So awkward that if the final decision were to change to upholding Roe vs. Wade and its subsequent nods at it, then it would smell of the court being heavily influenced by potential civil and political outcomes and outcries...kinda like it did with challenges to the 2020 election.

The conventional take is that the leak must have come from a clerk to one of the dissenting judges in hopes of socially, civically, and politically influencing the majority. There'll be hell to pay, better reconsider! Probable. But plausible could be that the leak came from the other side, either to strengthen resolve by putting them in that awkward position, or perhaps just to get the inevitable process of wailing and gnashing of teeth over with sooner...perhaps rioting, burning, and looting stores being better in spring than in summer...

Judge Alito's draft could not be more clear or plain. Here's 10-key excerpts.

• "We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision....”
• “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
• “In the years prior to [Roe v. Wade], about a third of the States had liberalized their laws, but Roe abruptly ended that political process. It imposed the same highly restrictive regime on the entire Nation, and it effectively struck down the abortion laws of every single State. … [I]t represented the ‘exercise of raw judicial power’… and it sparked a national controversy that has embittered our political culture for a half-century.”
• “The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.”
• “In some States, voters may believe that the abortion right should be more even more [sic] extensive than the right Casey and Roe recognized. Voters in other States may wish to impose tight restrictions based on their belief that abortion destroys an ‘unborn human being.’ ... Our nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated.”
• “We have long recognized, however, that stare decisis is ‘not an inexorable command,’ and it ‘is at its weakest when we interpret the Constitution.’ It has been said that it is sometimes more important that an issue ‘be settled than that it be settled right.’ But when it comes to the interpretation of the Constitution — the ‘great charter of our liberties,’ which was meant ‘to endure through a long lapse of ages,’ we place a high value on having the matter ‘settled right.’”
• “On many other occasions, this Court has overruled important constitutional decisions. … Without these decisions, American constitutional law as we know it would be unrecognizable, and this would be a different country.”
• ”Casey described itself as calling both sides of the national controversy to resolve their debate, but in doing so, Casey necessarily declared a winning side. … The Court short-circuited the democratic process by closing it to the large number of Americans who dissented in any respect from Roe. … Together, Roe and Casey represent an error that cannot be allowed to stand.”
• “Roe certainly did not succeed in ending division on the issue of abortion. On the contrary, Roe ‘inflamed’ a national issue that has remained bitterly divisive for the past half-century....This Court’s inability to end debate on the issue should not have been surprising. This Court cannot bring about the permanent resolution of a rancorous national controversy simply by dictating a settlement and telling the people to move on. Whatever influence the Court may have on public attitudes must stem from the strength of our opinions, not an attempt to exercise ‘raw judicial power.’”
• “We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision. We can only do our job, which is to interpret the law, apply longstanding principles of stare decisis, and decide this case accordingly. We therefore hold that the Constitution does not confer a right to abortion. Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives.”

That's basically a summation of legitimate conservative and religious talking points for just shy of 50 years for anyone who actually cared to inform themselves—and with only a smattering of civics knowledge and basic provisions of the US Constitution.