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Mississippi Abortion Case – Roe v. Wade’s Flight 93 Oral Argument For Sotomayor, Breyer, Kagan

Mississippi Abortion Case – Roe v. Wade’s Flight 93 Oral Argument For Sotomayor, Breyer, Kagan

Sotomayor seemed desperate: “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?”

On December 1, 2021, the U.S. Supreme Court heard oral argument in Dobbs v. Jackson Women’s Health Organization (docket sheet). Mary had a good roundup of legal commentator reaction to the argument.

I finally was able to listen to the argument on a long plane ride from San Diego to the east coast. You can listen to the audio here and read the transcript with some yellow highlighting by me as I listed to the audio.

Three questions were presented in the Petition for a Writ of Certriorari, but the court granted review only on the first question:

1. Whether all pre-viability prohibitions on elective abortions are unconstitutional.

2. Whether the validity of a pre-viability law that protects women’s health, the dignity of unborn children, and the integrity of the medical profession and society should be analyzed under Casey’s “undue burden” standard or Hellerstedt’s balancing of benefits and burdens.

3. Whether abortion providers have third-party standing to invalidate a law that protects women’s health from the dangers of late-term abortions.

That question, particularly to the exclusion of the others, seemed to be a signal that Roe v. Wade, which rested on viability, was on the table:

To summarize and to repeat:

1. A state criminal abortion statute of the current Texas type, that excepts from criminality only a lifesaving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.

(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.

As Andrew Sullivan pointed out in a substack article, Roe v. Wade has not achieved any consensus despite almost 50 years as the law of the land:

But the most salient evidence that abortion cannot be simply defined as a “women’s” issue is that there is absolutely no consensus among American women about it. Check out the long-term Gallup analysis of views on this question. It shows that a remarkably steady one-fifth of American women want all abortion banned by law. And that proportion has barely budged in 50 years. The other trend-lines in opinion are not quite as stable, but still relatively consistent. Over nearly half a century, the proportion of women who want some legal restrictions on abortion has gyrated between 45 and 63 percent. And the proportion favoring the full-on pro-choice position has wavered between 22 and 36 percent.

So what is routinely presented in the MSM as the women’s position on abortion applies in fact to only around a quarter to a third of women…. It turns out that many more of us belong to the deeply conflicted middle than you’d ever surmise from the public debate.

Do women favor legal abortion more than men? Yes — but not by much. The trend-lines look pretty similar over time between the two sexes, with marginally more men favoring some restrictions, and marginally fewer supporting no restrictions at all. How big is the gender gap? Well, it’s not appreciably bigger than those that Gallup records for the validity of same-sex marriage, for example. The cross-tabs from 2021’s Gallup poll show 73 percent support for marriage equality among women and 67 percent among men. And it would be weird to think of marriage equality as a “women’s” issue.

So abortion is not exclusively a women’s issue; and it isn’t a minority rights issue either.

Despite the muddled support, for those who support Roe v. Wade it is the singular most important issue — you’ve seen the videos and the marches and the threats of “revolution” by a U.S. Senator. IF the Mississippi law is upheld, and particularly if in so doing the court holds that Roe v. Wade no longer is good law, there will be days and weeks and months of RAGE RAGE RAGE.

I think it’s fair to say the possible rage was evident during the oral arguments … from the ‘liberal’ Justices.

Remember “The Flight 93 Election,” the September 5, 2016, article in the Claremont Review of Books, by Michael Anton, writing at the time under the pseudonym Publius Decius Mus. The thrust of the concept of the Flight 93 Election was that whatever Trump’s faults, the alternative was definitively and certainly worse:

2016 is the Flight 93 election: charge the cockpit or you die. You may die anyway. You—or the leader of your party—may make it into the cockpit and not know how to fly or land the plane. There are no guarantees.

Except one: if you don’t try, death is certain.

I kept thinking of that Flight 93 Election metaphor when listening to the questioning particularly from Justices Sotomayor and Breyer, and to a lesser extent Kagan. They rushed the proverbial cockpit door with their own oral arguments which barely contained questions, advocating not to touch Roe.

Listen to the audio, I think you’ll agree. They were desperate, seemingly knowing the end was near no matter what they did.

Sotomayor was the leader rushing the proverbial cockpit door, all but screaming “We’re all gonna die!” I’m referrring to this exchange (transcript pp 14-15, emphasis added):

JUSTICE SOTOMAYOR: –what hasn’t been at issue in the last 30 years is the line that Casey drew of viability. There has been some difference of opinion with respect to undue burden, but the right of a woman to choose, the right to control her own body, has been clearly set for –since Casey and never challenged.You want us to reject that line of viability and adopt something different. Fifteen justices over 50 years have –or I should say 30 since Casey have reaffirmed that basic viability line. Four have said no, two of them members of this Court.

But 15 justices have said yes, of varying political backgrounds. Now the sponsors of this bill, the House bill, in Mississippi, said we’re doing it because we have new justices. The newest ban that Mississippi has put in place, the six-week ban, the Senate sponsors said we’re doing it because we have new justices on the Supreme Court.

Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?

The problem, of course, is that Roe v. Wade always was an exercise of political compromise, a compromise that never had clear popular support.

And the “stench” of politics has been injected into the system by those who support Roe v. Wade, starting with the disgusting treatment of Republican nominees from Robert Bork to Brett Kavanaugh. Every time a Republican makes a Supreme Court nomination, Democrats demand to know the nominee’s position on Roe v. Wade, it’s the central issue during hearings, media coverage, and protests.

Sotomayor’s argument seemed squarely aimed at Chief Justice Roberts, someone seen as subject (including on the Obamacare case) to political pressure about the legitimacy of the court. When it was 5-4, the four liberal justices (at the time including Justice Ginsburg) needed only to bring over one Justice to their side, which they frequently did in big cases (Roberts in Obamacare, Kennedy on same-sex marriage).

But Roberts isn’t the swing vote anymore. Nor is any one of the conservative Justices. It’s a 6-3 court since Barrett filled the Ginsburg seat. You need to bring two over, and the liberal justices seemed depressingly resigned that that might not happen.

My “hot” prediction? The Court 6-vote majority, in an opinion by Roberts, upholds the Mississippi law, but finds it need not reach the issue of whether Roe v. Wade should be overturned. There will be at least three, possibly four, Justices with concurring opinions that they would overturn Roe v. Wade as wrongly decided.

Roberts will push hard to gain consensus not to overturn Roe v. Wade explicitly, preferring in the interest of the Court to dismember it limb by limb.

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Comments

I think the “wise latina et al” did more harm than she realizes….no big surprise…

    Brave Sir Robbin in reply to rabid wombat. | December 4, 2021 at 11:48 pm

    “Mississippi Abortion Case – Roe v. Wade’s Flight 93 Oral Argument For Sotomayor, Breyer, Kagan”

    rarely do I criticize this site, but the headline is insulting to the bravery and sacrifice United Air 93.

    These morally perverted morons are desperate to take life, where as the patriots on flight 93 made a great sacrifice to try and save lives.

      I agree with you insofar as the headline trivializes the tragedy of the passengers of Flight 93 and all of the victims of the terrorists on 9/11. It’s just something that should not be done.

        Arminius in reply to Stuytown. | December 6, 2021 at 2:09 am

        I have a pet peeve.

        “…the headline trivializes the tragedy of the passengers of Flight 93 and all of the victims of the terrorists on 9/11…”

        A tragedy is when a child gets terminal cancer. What happened on 9/11 was an atrocity. A deliberate terrorist attack.

        It’s like how the MFM is now reporting (if they report it at all) Darrell Brooks mass murder spree and his multiple attempted murders as if it were merely a traffic “accident.” Oh, and the SUV caused it.

    Dimsdale in reply to rabid wombat. | December 5, 2021 at 3:42 pm

    The “wise” latina said “There has been some difference of opinion with respect to undue burden, but the right of a woman to choose, the right to control her own body, has been clearly set for –since Casey and never challenged.”

    Perhaps the self described “wise latina” should review DNA evidence when she remarks “control her own body;” by the virtue of DNA, it is clearly and legally provable that her body stops at the fetus/baby, and the fetus/baby is a unique, separate individual. Unless her wiseness doesn’t recognize DNA evidence as legitimate.

    The time to choose is before conception, not use abortion to clean up ones, um, indiscretions, after the fact. There are many forms of contraception, and many can be used simultaneously.

Subotai Bahadur | December 4, 2021 at 9:17 pm

“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?”

OK, to be honest for the last couple of generations it has been abundantly clear that the rule of law and the Constitution does not exist and which laws are or are not enforced depends on which party is in power. This is complicated by the fact that the Republicans are repeating the problem of the Whigs they replaced, as the Republicans will not stand and fight for or against anything. Especially if it involves opposing the Democrats in anything.

The entire Social Contract has dissolved and we are waiting for a new one to come together. There is absolutely nothing that guarantees the nature of that new Contract, but it is noteworthy that tyranny is the default method of governance throughout human history.

Subotai Bahadur

If the Court in 1972-1973 had been faithful to the text of the document, reading what was there and not imagining what was not there (using emanations and penumbras), then none of this would be happening. That is, if the Court’s justices had remained originalists the abortion issue would have been properly left with the states.

We’re looking at you, Justice Owen Roberts, who is distinguished as being the Switch-in-Time-Who-Saved-Nine (1937). He may have saved nine at that time, but he caused the Court to swerve from a straight reading of the Constitution’s words to a political body. Robert’s reward was a Profile in Putty because it ushered in the New Deal from which we still suffer.

    Milhouse in reply to pfg. | December 4, 2021 at 11:26 pm

    The “Switch in time” is a myth. It never happened. Roberts made his decision long before FDR came up with his proposal, so he couldn’t have been influenced by it.

      Arminius in reply to Milhouse. | December 6, 2021 at 3:07 am

      This is simply not true. FDR announced his proposal to pack the court on February 5, 1937. His plan was to offer retirement with full pay to all justices over 70. If they refused to retire then he would appoint an “assistant” with full voting rights. In other words, a guaranteed leftist majority.

      The SCOTUS didn’t issue their decision in West Coast Hotel v. Parrish until March 29, 1937, over eight weeks later. And that was during the public and legislative debate over FDR’s Judicial Procedures Reform Bill of 1937. Congress never voted on FDR’s court packing plan but every justice knew that wouldn’t happen until after they decided the Parrish decision.

      It is nonsensical to claim FDR’s proposal couldn’t have had an influence on Roberts’ switch-in-time. It was truly a switch. Roberts had voted the opposite way on a state minimum wage law just the year prior in Morehead v. New York ex rel. Tipaldo (1936). Even Felix Frankfurter, a close adviser to FDR, wrote to Roberts’ colleague Justice Harlan F. Stone (along with Brandeis and Cardoza a member of the court’s liberal wing) that Roberts’ switch was a “somersault,” and Frankfurter wrote FDR himself that this switch given Roberts’ prior record was “irreconcilable.”

      The entire weight of the evidence is that Roberts was influenced by external political factors (not the last SCUTUS justice named Roberts to focus on politics). FDR had won in a landslide in 1936 and then proposed his court packing scheme weeks before the SCOTUS issued their Parrish decision. Nearly two months prior to that decision.

      Your chronology is simply not true. Court observers were stunned by Roberts’ switch. And since they lived through the events they knew better than to believe such a false timeline and the vast majority of observers (nearly all Republicans, some Democrats, the majority of the press, and even the majority of the public) attributed the fact that Roberts suddenly joined the liberal bloc to FDR’s threat. Which most people rightly saw as an illegitimate power grab.

        Milhouse in reply to Arminius. | December 6, 2021 at 6:27 pm

        Sorry, Arminius, your chronology is simply not true. Roberts cast his vote to overrule Adkins on December 19, nearly seven weeks before FDR announced his proposal on February 5. It is therefore literally impossible for that proposal to have influenced his vote.

        And no, it was not a switch. The only reason Roberts didn’t vote to overrule Adkins in Tipaldo was because the plaintiff hadn’t asked the court to do so.

        It’s odd that you should cite Frankfurter in favor of the “switch” theory, in light of his 1955 essay Mr Justice Roberts, in which he vehemently rejects and denounces it.

I think the stench is coming from Sotomayer.

>> She sounds more like a rank partisan rather than a dispassionate arbiter of law. Comment like hers cause people to lose confidence in our judicial system. A system that is already near breaking due to its infection by the virus of political activism.

I’ve always thought it’s strange that the Supremes have always treated abortion, which is not mentioned in the Constitution, as an untouchable right. But the right to keep and bear arms, which has its own amendment (#2, no less!) is treated like an optional privilege that any state or local government can restrict any way it likes.

Those are the kinds of inconsistencies that cause “the public perception that the Constitution and its reading are just political acts.”

    henrybowman in reply to OldProf2. | December 4, 2021 at 10:29 pm

    Amen. I’m tired of living in a Phantom Zone, where emanations and penumbras are more solid than 250-year-old blackletter law.

    BTW, was Roe v. Wade successful in eliminating those few dozen back alley abortions that had everyone so riled up way back then? Surely, after 61+ million abortions since, especially the obscenely disproportionate number of black abortions, that pesky problem must have been resolved. I mean 61 million abortions! And they are still whining about all of the undesirables and deplorables.

    How did we ever get from saving a few poor women from the horrors of the back alleys to creating genocide on demand as a taxpayer-funded business? What happened to all of the Jesse Jacksons who saw this coming? (I know, $$$$$$$$$$$$$$$$).

    I am sure the Hollywood types and their wealthy friends had no problem getting abortions before Roe v. Wade so please STFU.

    Steven Brizel in reply to OldProf2. | December 5, 2021 at 11:08 am

    Look at the way the Court had treated the Establishment Clause at the almost total neglect of the Free Exercise of Religion Clause Hopefully a conservative majority will rethink some of the truly awful decisions that involve the Establishment Clause

I agree that Roe will be modified substantially but not overruled in the manner stated by Professor Jacobson Roe is probably as bad a decision as Dred Scott and Lochner which are the other two awful examples of substantive due process whereby judges legislate new laws instead of deciding cases. However since the CJ is loath to offend Senate Democrats this will have the effect of sending the signal that Roe is of limited precedental value and a singularly poorly decided opinion

    Lochner doesn’t belong in that category. It recognized people’s natural right to make their own contracts to suit themselves. Who can argue with that?

      Steven Brizel in reply to Milhouse. | December 5, 2021 at 10:39 am

      Lochner is a classical example of substance due process and no more It is as bad as Dred Scott

        Milhouse in reply to Steven Brizel. | December 5, 2021 at 4:11 pm

        1. What’s wrong with substantive due process?

        2. How is it in any way similar to Dred Scott, which “discovered” that when the constitution says “person” it means “white person”?

      Steven Brizel in reply to Milhouse. | December 5, 2021 at 11:11 am

      Lochner proclaimed incorrectly that the right of contracts of private parties superceded legislation that recognized the need for certain elementary rights of workers The Constitution does not say contracts are absolutely beyond the power of state and federal legislation of a regulatory n as tire

        Milhouse in reply to Steven Brizel. | December 5, 2021 at 4:10 pm

        What makes you think it’s not one of the rights protected by the ninth amendment? Would anyone in 1788 have thought the government has a right to restrict people’s right to work the hours they want to work?!

        henrybowman in reply to Steven Brizel. | December 5, 2021 at 5:13 pm

        The constitution was written to limit the federal government, not the American citizen. If the constitution ‘does not say” something, the government does not have that power. The ninth and tenth amendments were written to underscore that point. It’s up to the worker to decide which “elementary rights” they are and are not willing to trade for a paycheck, not the government. The government doesn’t have the right to “protect” you out of the job you need to live.

          Milhouse in reply to henrybowman. | December 5, 2021 at 11:11 pm

          Though in this case it was a state law, and states are not limited to enumerated powers. In Lochner the supreme court decided that one of the unenumerated rights that states may not infringe is the right to make contracts. The current view of legal “experts” is that that decision was wrong, while at the same time the same “experts” champion all kinds of other unenumerated rights. I have yet to hear a reasonable argument why.

Andrew Sullivan made a very telling point While support for abortion is a quasi religious principle for some women many women oppose abortion on religious grounds Their voices are clearly never considered by the legacy media as legitimate opinions

    paracelsus in reply to Steven Brizel. | December 4, 2021 at 11:15 pm

    This has nothing to do with religion, murder is murder: if you smash the head of a six-month-old child against a tree, that’s murder; if you crush the head of a 90-day-old fetus with forceps, that’s murder.
    Of course, if you don’t wish to follow the Ten Commandments, there’s nothing to prevent anyone at all from putting a bullet in your head and calling it delayed abortion.

      Steven Brizel in reply to paracelsus. | December 5, 2021 at 10:44 am

      You can certainly make the case that abortion is murder but Jewish religious law(Halacha) clearly permits abortion in certain grave circumstances That is a major distinction between reproductive freedom as advocated by feminists and a complete ban on all abortions as murder

        Dimsdale in reply to Steven Brizel. | December 5, 2021 at 3:47 pm

        Grave circumstances likely do not include casual, post conception “contraception.”

        Milhouse in reply to Steven Brizel. | December 5, 2021 at 4:16 pm

        Jewish religious law permits killing an unborn baby in the exact same circumstances that it allows killing a born baby, or an adult: When that person is threatening another person’s life, and there is no way to save the victim without causing the attacker’s death.

        If a baby is killing its mother, it’s the same as an “active shooter”, and killing it is justified as a use of deadly force in defense of others. If it is not killing its mother then using deadly force against it is murder.

        And Jewish law says an embryo becomes a baby, with the right not to be killed, at 40 days.

          jdfreivald in reply to Milhouse. | December 6, 2021 at 11:30 am

          This is basically the same idea as the principle of double effect, which is part of the Catholic view of Natural Law: You can’t perform an action with the intent to cause an evil effect, but you can take an action to do something good (e.g., save your own life) that also happens to cause that evil effect, as long as the good being done is proportionate to the evil effect. If you have another way of solving the problem that doesn’t cause a similar evil effect, you should take it, and the good effect should flow at least as naturally from the action as the evil effect does.

          Direct killing of a child in utero is evil, period. The crushing of a child’s skull causes the child’s death directly, while only indirectly saving the mother’s life. And of course you should not pretend that you wanted the good effect (saving life) when you really wanted the evil effect (killing the unborn child) — though that will most often fall to questions of morality rather than legality.

          But if you had to remove the child from the womb in order to save the mother’s life, and the child died as a result even though you tried to save it, then the principle of double effect suggests that you would not have erred in making that choice.

          Milhouse in reply to Milhouse. | December 6, 2021 at 6:35 pm

          Jewish law does not distinguish between crushing the baby’s skull and simply removing it from the womb. Either way you are using deadly force against it, and that is justified if and only if that is the only way to save the mother’s life. But for the baby’s existence the mother’s life would not be at risk; therefore it is an attacker and deadly force is justified to save her.

      AnAdultInDiapers in reply to paracelsus. | December 7, 2021 at 11:41 am

      You claim it’s murder. I disagree. The law also disagrees with you.

      I could claim that stamping on ants is murder, that doesn’t make it so.

      Disclosure: I’m pro-abortion. The world has enough people.

    elliesmom in reply to Steven Brizel. | December 5, 2021 at 8:03 am

    I am truly tired of people assuming women who oppose abortion are doing it on religious grounds. Many of us who have no belief in the supernatural at all are opposed to abortion. If a child cannot expect its own mother to protect it, humanity is lost.

      Steven Brizel in reply to elliesmom. | December 5, 2021 at 11:22 am

      If a mother and father concur in s child’s decision to join the military and the child is killed by the enemy was that child protected or sacrificed by his or her parents? What do you mean by the expectation that a mother protect a child? Protection of a child is a man made rationalization that can be rationally explained away Divine Law must be obeyed or deemed inapplicable by those trusted with its interpretation which I do not equate or mention in The same breath as the SCOTUS

“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?”

Oh my… look at the pearl imprints on my hand.

Sonia, dear… instead ,to gain the correct perspective, think of Roe v Wade as Plessy v. Ferguson, and consider this your personal “Brown v. Board of Education moment.”

    Observer in reply to henrybowman. | December 6, 2021 at 1:19 pm

    Sotormayor’s remarks demonstrate exactly why the public correctly perceives these Supreme Court opinions on abortion as “just political acts.” It’s because they are.

    Sotomayor’s argument that fetuses can’t feel pain is a good example. This is a disputed area of science. The fetal pain study that Sotormayor was referring to was done by a Dr. Derbyshire in 2010. However, in 2020, Dr. Derbyshire modified his opinion to conclude that fetal pain is experienced as early as 12 weeks.
    https://townhall.com/tipsheet/rebeccadowns/2021/12/05/during-dobbs-oral-arguments-justice-sotomayor-referenced-some-of-the-worst-proabo-n2599962?utm_campaign=rightrailsticky3

    Science can change, and it can change fairly rapidly, which is why laws that are based on science need to be made by legislators, not by unelected judges with lifetime tenure. Sotormayor is not a doctor or a scientist, and she has no medical or scientific background, and yet here she is arguing for an abortion law that she’s trying to justify based on outdated science. That is not the proper role of a judge.

    Debates about whether, when, or if abortion should be allowed belong in the legislatures, not in the courts. These are political decisions, not legal ones. This is one of the reasons why Roe v. Wade was such a terrible decision, and why it should be overruled.

This assertion is laughably absurd —.>> “As Andrew Sullivan pointed out in a substack article, Roe v. Wade has not achieved any consensus despite almost 50 years as the law of the land” It ignores Planned Parenthood v. Casey, 505 U.S. 833; Whole Woman’s Health v. Hellerstedt; It was expressly reaffirmed in Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (Akron I ), and Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 106 S.Ct. 2169, 90 L.Ed.2d 779; and, in Webster v. Reproductive Health Services, 492 U.S. 490, 109 S.Ct. 3040, 106 L.Ed.2d 410, a majority either voted to reaffirm or declined to address the constitutional validity of Roe’s central holding.

    Milhouse in reply to dnpiercy. | December 4, 2021 at 11:29 pm

    So ****ing what? How do any of those decisions reflect a national consensus?

      dnpiercy in reply to Milhouse. | December 4, 2021 at 11:43 pm

      Probably because this particular issue has the MOST consensus of all in the judiciary. And popular opinion or political consensus are wholly irrelevant.

        Milhouse in reply to dnpiercy. | December 5, 2021 at 4:36 pm

        Nobody gives a shit about a “consensus” among a tiny group of people who are all pals, and whose values are no better than anyone else’s.

        This entire discussion is about an alleged national consensus, or the lack thereof. Sotomayor imagines that there is a national consensus for Roe, such that overturning it will be seen by the nation as creating a “stench” and declaring that the court has become political.

        The truth is the exact opposite. There has never been a national consensus for Roe, it was imposed on the nation at gunpoint, and that act created a stench of illegitimacy that still rests over the court to this day.

      dnpiercy in reply to Milhouse. | December 4, 2021 at 11:47 pm

      Roe has been explicity re-affirmed at least four times. Casey, Akron, Webster and Thornburgh. To suggest there is no national consensus is just plain intellectual dishonesty.

        Milhouse in reply to dnpiercy. | December 5, 2021 at 4:29 pm

        On the contrary, it is dishonest, both intellectually and every other way, to claim that the number of times the same tiny judicial clique has upheld a decision somehow creates or indicates a national consensus for it. Judges do not reflect or represent the nation, and the nation doesn’t look to judges to form its views.

          Arminius in reply to Milhouse. | December 5, 2021 at 9:08 pm

          Of course, Milhouse, dnpiercy is right. Admit it. I know when I speak of national consensus I mean, I want to know what my intellectual and moral superiors are teach law school students in Cambridge, Massachusetts and New Haven, Connecticutt. Six of the nine justices who decided Roe went to Harvard or Yale law schools and of those six only Byron White dissented.

          Occasionally justices who don’t qualify for membership in an Ivy League secret society like Yale’s Skull and Bones or Harvard’s Porcellian might be allowed on the bench. But never in the private dining room at the exclusive club.

          I don’t know about you, but that just screams “diversity” and “national consensus” to me. Not to mention absolute moral authority. Where do I go to genuflect to the Supreme Court?

          Nope, nothing incestuous there.

        Close The Fed in reply to dnpiercy. | December 5, 2021 at 7:14 pm

        Projection much?

        Arminius in reply to dnpiercy. | December 5, 2021 at 8:37 pm

        Casey didn’t affirm Roe v. Wade, no. 1. The SCOTUS simply agreed with the Roe decision that a woman has a basic right to an abortion. But Casey permitted states increased power to regulate abortion both pre and post-viability. Pre-viability as long as the state didn’t place an “undue burden” on a woman seeking an abortion, but never defined what constitutes an “undue burden.”

        The Pennsylvania law that Planned Parenthood was trying to overturn in its entirety placed five restrictions on all abortions. The court let three restrictions stand that PP wanted overturned. That the woman has to give informed consent before she can have an abortion, that she be given that information upon which she gives her consent 24 hours ahead of time (basically a 24 hour waiting period), and that a minor must have written consent from at least one parent before she can have an abortion.

        I’m not 100% sure what the court decided when the PA legislature placed additional reporting requirements on abortion clinics as that doesn’t get as much attention since that isn’t a restriction placed on the woman seeking an abortion. But the court did rule the requirement that a married woman notify her husband (not get permission; just notify him) was unconstitutional.

        PP didn’t get what they wanted only going 2 for 5 (possibly only 1). But other than agreeing with Roe that there is a basic right to an abortion, Casey has superseded Roe as the law of the land. Even the “notorious RBG” knew Roe v. Wade went too far and consequently was a bad decision. And again is why, no, Casey didn’t affirm the decision but placed constraints on abortion that you won’t find in Roe.

        https://www.msnbc.com/the-last-word/liberal-justice-ruth-bader-ginsburg-says-roe-msna58364

        “Liberal Justice Ruth Bader Ginsburg says Roe v. Wade went too far”

        Second, it’s plain intellectual dishonesty to pretend that what the majority of 9 unelected lawyers in black robes decide somehow represents a national consensus. Only Justice Barrett didn’t go to law school at either Harvard or Yale. She went to Notre Dame; the other 8 are split evenly between those other two law schools. Hell, six of the nine also got their undergrad degrees at Ivy League schools.

        That’s not even geographic diversity, let alone something that “looks like America” as we are constantly lectured is what we need to pervert our military into. Nine justices produced by two law schools in Massachusetts with one outlier from the Midwest.

        Yeah, some broad cross section of society you’ve got there. I suppose next you’ll tell me that the “Supreme Leader” of Iran combined with the 38 other unelected black robed mullahs he appoints to act as his advisors on Expediency Discernment Council of the System represent some “national consensus” in Iran. And, by the way, they don’t even represent more geographical diversity that the SCOTUS as just like these justices the black robed clerics all went to law school in the same cities. Shariah law schools in Iran tending to cluster in the same “holy” cities as do our “holy” law schools.

        Sure, that’s what the authoritarians there will tell you. After all, it says so in the Quran.

        Surah 33:36:

        “It is not for a believer, man or woman, when Allah and His Messenger have decreed a matter that they should have any option in their decision. And whoever disobeys Allah and His Messenger, he has indeed strayed in a plain error.”

        But I’m more than a few women who’ve been stoned to death for “adultery”* would disagree that the black robed men represent those women at all. If, of course, they were still alive to disagree.

        Now, tell me where it says in the Constitution that I have to accept an awful, clearly outcome-based ruling that has no basis in the Constitution simply because leftists have dogmatic faith in a religious concept called stare decisis.

        Note stare decisis is only sacred when leftists like the outcome. I note Democrats like Schumer can grill Republican nominees to extract a loyalty oath to stare decisis when it comes to Roe but in the same 5 minutes practically demand they promise to overturn Citizens United. So much for stare decisis.

        Like the results of an election. Express concerns about outcome of an election and it’s a threat to “our democracy” if you have an R after your name. If you’re Stacey Abrams or Hillary Clinton you can get sweet gigs to go on TV and claim for years to be the real winner of a governor’s race that was stolen do to the demonstrably false assertion of racist voter suppression, or you can go on a four year book tour about how you’re only not President because the Russians!

        “To suggest there is no national consensus is just plain intellectual dishonesty.”

        Whether it is intellectually dishonest depends on whether you mean a national consensus of the people and their elected representatives, of which there definitely is not, or a national consensus of federal supreme court judges? Even then it isn’t a consensus, strictly speaking. There were dissents.

        tom_swift in reply to dnpiercy. | December 9, 2021 at 9:11 pm

        To suggest there is no national consensus is just plain intellectual dishonesty.

        What establishes a “national consensus”? I certainly don’t remember voting for it.

      dnpiercy in reply to Milhouse. | December 4, 2021 at 11:50 pm

      The current media hysteria suggesting that there is any chance at all that a case which has been explicitly re-affirmed four times is now going to be overturned is just plain silly.

        Milhouse in reply to dnpiercy. | December 5, 2021 at 4:31 pm

        You’re either dishonest or oblivious. There are no guarantees, but we have been fighting for fifty years to replace the judicial dictators who imposed this horrible decision on us, and it finally looks like this time it’s more likely than not that we’ve succeeded.

      henrybowman in reply to Milhouse. | December 5, 2021 at 3:08 am

      Totally bogus argument. Lower courts don’t “reaffirm” a SCOTUS decision, they have no other choice. SCOTUS following its own precedent isn’t a reaffirmation either. And, contrary to your elitist worldview, the consensus of popular opinion is damn well relevant.

    20keto20 in reply to dnpiercy. | December 5, 2021 at 7:28 am

    Consensus? Your argument makes as much sense as saying that there was consensus in the 2020 election. Roe is likely the single most divisive ruling in the past 50 years and more likely in the history of the country. For years, all the emphasis has been on the “woman’s right to choose”, the “My Body, My Choice” argument. That My Body My Choice argument will very effectively shoot down a vax mandate, a mask mandate AND any forced government passport or shutdown.

    Steven Brizel in reply to dnpiercy. | December 5, 2021 at 11:40 am

    The above strong cite of cases all rely on Griswold v Connecticut which created the right to privacy and is the judicial basis of all the above cases was also a product of unwarranted judicial activism All of these cases are a house of cards and examples of courts improperly asserting the judicial function . If Roe is overruled which I doubt will happen Griswold also is of doubtful validity as are all of the cases cited in the above comment

Roberts will push hard to gain consensus not to overturn Roe v. Wade explicitly, preferring in the interest of the Court to dismember it limb by limb.

Which I suppose would be poetic justice.

Sotomayor seems to think that if a decision hasn’t been challenged before the court in 30 or 50 years then it’s not controversial, and that if 15 justices have supported it then it represents a national consensus. This is an astonishing example of living in a bubble.

    henrybowman in reply to Milhouse. | December 5, 2021 at 3:18 am

    Someone needs to remind her that SCOTUS didn’t take their first freedom-of-the-press case until 1907; and took until 2008 to decide that the Second Amendment was in fact an individual right.

“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?”

Lady, that is precisely the public perception that Roe itself created, and the stench has been hanging over it for 50 years. Overturning Roe is probably insufficient to dispel that perception and disperse that stench, but not overturning it will make it impossible.

I have been in front of a slow witted judge a couple times. I remember the first time sent chills through my body as I stood there and realized the judge did not understand anything I was saying nor the factual knowledge necessary to make a ruling. That everything I was addressing was intellectually beyond the judges education.
Fortunately I prevailed.

“Roberts will push hard to gain consensus not to overturn Roe v. Wade explicitly, preferring in the interest of the Court to dismember it limb by limb.”

A shocking yet fitting hidden analogy–well done.

If the Court overrules Roe, Kavanaugh’s Senate impeachment trial won;t be far behind.

Judge Brett Kavanaugh on Wednesday said that Roe v. Wade has been “reaffirmed many times.”

“Senator, I said that it’s settled as a precedent of the Supreme Court entitled to respect,” Kavanaugh told senators in response to a question from Sen. Dianne Feinstein (D-Calif.). “It has been reaffirmed many times over the past 45 years, as you know, and most prominently, most importantly, reaffirmed in Planned Parenthood v. Casey.”

The comments were in response to the first questions Kavanaugh received about the 1973 abortion case during his second day before the Senate Judiciary Committee, which is holding a days-long hearing for his Supreme Court nomination.
“I understand the importance the people attach to the Roe v. Wade decision,” Kavanaugh added. “I don’t live in a bubble. I live in the real world.” https://thehill.com/homenews/senate/405135-kavanaugh-roe-v-wade-has-been-reaffirmed-many-times

    Milhouse in reply to Juris Doctor. | December 5, 2021 at 4:46 pm

    I wouldn’t put anything past the current House, so yes, it might dare to impeach a justice for how he rules on the bench, flying in the face of 200 years’ national consensus that it is improper to do so.

    If so, he may turn to his colleagues to rule that this violates the separation of powers. And he would probably not be required to recuse himself.

    But even if it goes to the senate, there is no possible way that he could possibly be convicted, and those who pushed it would then have to deal with his vengeance for the next 25 years.

    Bring it on.

    Close The Fed in reply to Juris Doctor. | December 5, 2021 at 7:19 pm

    Scary. Kavanaugh and all Trump’s appointees have only earned a C-, and that’s grading on a curve.

I’m totally in favor of leaving this issue to the states. Not so much because of how I feel about abortion, but because of how I feel about federalism.

But the timing of dealing with this issue right now kind of sucks. The Democrats have been busy self-destructing and eroding support for their idiot leftist nostrums. I hope the political blowback from overturning Roe-vs-Wade doesn’t wind up turning the tide in their favor.

    The Friendly Grizzly in reply to Rand. | December 5, 2021 at 5:17 am

    Your first paragraph defines my position perfectly. I am pro-choice, but the Roe vs Wade decision stunk on Constitutional grounds from the word “go”.

    I just don’t understand how the constitutional “right to life” is not a SCOTUS issue. It goes straight to the most important God-given right of all. How do you work your way to the opinion that states are not bound by the US Constitution? They cannot pass unconstitutional laws.

    As to Kavanaugh, even during his Senate hearings, he was signalling to Diane Feinstein that he wasn’t against Roe v. Wade. Even his first statements once this case was accepted by SCOTUS made it clear that he isn’t happy about having to be ruling on this. I fully expect Roberts to pull another sneaky wording trick to rescue Roe v. Wade and would be very surprised if Kavanaugh did not deliver the deciding vote in support of Roberts.

    There is something fundamentally $$$$wrong$$$$ about these two (maybe three) “conservatives”.

      Couldn’t agree more. They all stink, don’t have the backbone, morals, or fortitude for the job…

      Steven Brizel in reply to Pasadena Phil. | December 5, 2021 at 11:32 am

      Kavanaugh told Collins that he respected Roe as a case decided by SCOTUS as opposed to saying he agreed with the nonexistent rationale of the decision

      Close The Fed in reply to Pasadena Phil. | December 5, 2021 at 7:24 pm

      Technically, the U.S. Constitution, at the beginning, applied to the federal government. Through the Doctrine of INcorporation via the 5th Amendment, many amendments have been made to apply to the States. So it is quite possible that this question is more properly decided at the State’s levels. Before I gave a final opinion, I’d have to do a ton of research, which I’m not going to do.

      As far as every Justice on the Court, though I loathe Lincoln mightily, he was write when he said,

      At the same time, the candid citizen must confess that if the policy of the government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.

EVERYTHING that Sotomayor argues in her “questioning” is an argument AGAINST any vaccine mandate. The RIGHT TO CHOOSE cannot be legally limited to abortion but also to a forced vaxxine or the forced wearing of a mask which has no ability to stop a virus from being transmitted (that is assuming the government enforcement does not include providing properly fitted N95 masks for all who they are requiring rather than allowing the mandated person to choose the mask–nor does the mask mandate define what the mask is).
It also appears that Dobbs is not defending Roe v Wade but the defense of Roe is coming from Sotomayor and Breyer.

The ruling will be 5-4 in favor of Roe .
I doubt much besides a toe filing will be done

Contrary to her manifestly narcissistic and self-congratulatory remarks praising herself — pre-SCOTUS confirmation — for the alleged sagacity conferred upon her by dint of her sex and her ethnicity, Sotomayor is more accurately and aptly characterized as “the dim-witted Latina.”

I thin on it is important to note in this conversation that while secular and heterodox Jewish groups support so called “reproductive freedom” Orthodox Jewish groups which rely on Halacha are opposed to supporting abortion on demand but do not view it as absolutely banned by Halacha

When you read or hear about certain Jewish groups that support reproductive freedom it is crucial to note that those groups are the heterodox and secular groups that long ago abandoned any fealty to Jewish tradition and now worship the false god of social justice on issues of race gender and climate

    Milhouse in reply to Steven Brizel. | December 5, 2021 at 4:51 pm

    Halacha sees abortion the same way it sees killing any human being. Sometimes killing a person is justified, e.g. when the person is attacking someone else and threatening their life, and the only way to save that person’s life is by killing the attacker. That is the only circumstance in which Halacha permits abortion after 40 days.

      Steven Brizel in reply to Milhouse. | December 5, 2021 at 8:11 pm

      Defining what is an attack and threat on a woman’s life is determined by great scholars in Halacha on a case by case basis

“Roberts will push hard to gain consensus not to overturn Roe v. Wade explicitly, preferring in the interest of the Court to dismember it limb by limb.”

You mean like a D&E procedure?

Subotai Bahadur | December 5, 2021 at 3:26 pm

Something that I toss out for discussion, or not, this morning.

1) We know from recent examples that the process of voting is regularly disconnected from the process of vote counting and the announcement of winners. This limits the input of the citizenry into the process of being governed.

2) We know from generations of examples that the appointment of judges, by the Executive Branches of either party, is based on expected future rulings in favor of what the appointing party wants, and against what they do not want, with some corruption in other matters possibly thrown in.

3) We know from generations of experience that Legislative branch members regularly lie to their constituents as to what they want to do and what they will not do regardless of party, with more corruption thrown in. This also limits the effective input of citizens into their own governance.

4) We know that regardless of party, that the Executive Branch will rule by Executive Orders, rules, regulations, violations of statutes, or just ignoring what the people say; and that the process of trying to fight a rigged system is part of the punishment for opposing what our supposed betters do.

5) To the Left, abortion as unrestricted and perhaps mandatory as they can make it is a sacrament. And that to the Left, violence in defense of what they want is now the norm without punishment as exemplified by ANTIFA, BLM, and going all the way back to the Weathermen.

6) So let us say that the court decision restricts or . . . aborts . . . Roe-v-Wade in all or some states. How long before there are “mostly peaceful” attacks on and fires at pre-natal clinics and birthing centers?

Just tossing it out.

Subotai Bahadur

“Wise Latrina” … Time for a new latrina cake. Something smells.

“It’s a 6-3 court since Barrett filled the Ginsburg seat.”

I’m skeptical of that claim. Roberts seems a swing vote at best, and I’m still not sure about Kavanaugh and Barret, or even Gorsuch. My prediction, and I hope I’m wrong, we see 5-4 to strike down the law and uphold Roe.

Sometimes, Robert’s tendency toward compromise bothers me. But then I think: Get real. These folks aren’t high priests of constitutional purity. They are appointed politicians in black robes with lifetime tenure. What do we really expect?

I would prefer to see the precedent on abortion evolve in increments through compromise rather than a rash wholesale change. It’s not everything, but stare decisis should count for something.

And don’t get me wrong. This whole damn mess was caused back when Roe was decided by the supremes using nonsense and sophistry, rather than sound legal reasoning. It was essentially a political decision. But I’m not averse to the thought of compromise to help keep things constructive.

and never challenged
That’s bullcarp. The challenges have never been accepted by the Supreme Court for their look. You’ve avoided the question. But it has absolutely been questioned.

Regardless of her self-worth. She is the dumbest woman to ever serve on the SCOTUS.

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