“You’re arguing that the Constitution is silent and, therefore, neutral on the question of abortion. . . but leaves the issue for the people of the states or perhaps Congress to resolve in the democratic process?”
Justice Brett Kavanaugh, looking for a "yes" answer. He got it.
The Supreme Court majority has a policy: Dance with the one that brought them to the dance.
The abortion case tops this week's news, pushing out the gun control case of a month ago. In the gun case, New York State Rifle & Pistol Association Inc. v. Bruen, the Justices' questions pointed in the direction of voiding a New York State law that required permits for people to carry concealed weapons. Although the Court noted there might be justification for stopping people from carrying concealed weapons into courtrooms like theirs or crowds at Yankee Stadium, their questions implied that they thought the right to bear arms trumped the interest in states to regulate guns. The 2nd Amendment reads: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. The Court focuses on the second half of the Amendment. Rights are rights.
The American system gives authority to both states and national government. The Civil War and subsequent Amendments brought more power to the central government. The 13th, 14th, and 15th Amendments established rights which, imperfectly, created national standards bearing on equality of all citizens. The constitution does not address abortion directly. The constitutional right to have an abortion was found in the 4th Amendment rights of privacy and in the 14th Amendment's equal protection clause. Some questioned that such a right exists. Unlike most Supreme Court rulings that settle in with time, this one got more contentious.
Without the issue of guns, the Supreme Court might have started a multi-decade movement toward greater federalism, with the intention of pushing more hot potato issues toward the states. It would be part of a long-term effort to re-establish the credibility of the Court as a non-partisan, non-political institution.
Guns confound that project.
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| Permitless carry in Oklahoma |
The Supreme Court is not rudderless. They are following a path. It isn't principle. It is loyalty. They are dancing with the team that brought them to the dance.
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| https://www.youtube.com/watch?v=wcBplbfXgSY |
"Don't let the green grass fool you
Don't let the moon get to you
Dance with the one that brought you and you can't go wrong."
10 comments:
In Roe v. Wade a compromise was struck. 20 weeks. We have learned in the interim that the "pro-life" side of that compromise did it in bad faith.
While those that advocate for women's equality do believe that Roe in principle is incorrect, for the most part they have not agitated to loosen the restrictions. The same cannot be said for the other side for they began their campaign to overturn it at the moment it was announced. It's not a particularly morally driven effort.
Republicans have used abortion rights as a wedge issue, and up until recently were pretty half hearted in advocating for overturning it for obvious reasons. However, as their base shrank the religious right has gained more power to the point where now the most extreme elements control the party forcing McConnell to act.
Two steps back...
As far as I’m concerned, the Supreme Court lost their credibility in the Gore ruling, effectively deciding the presidential election in George Bushes behavior. It has been a political entity ever since in my opinion. Before that, I viewed the Supreme Court as non biased. Those were the days when I was especially naïve.
Rick--
Supposed "bad faith" in this connection usually rises and falls with whose social and political ox is being, er, Gored. After the Bakke case and then subsequent cases rejecting race-explicit affirmative action in universities, for instance, schools simply changed the names and explicit focus of their affirmative action programs, never ceasing the practice based on a good-faith, sincere belief in its rightness and ultimate legality. Every slightly-different fact pattern is a theoretical basis to te-test precedent. Dobbs is 15 weeks instead of the Roe 20.
Dave--
Would you had the SCOTUS in Bush v. Gore reject the Florida Secretary of State's official certification, as Trump asked courts to do recently? Had it been Gore who held the narrow electoral college pending final SCOTUS ruling, would you have called a Gore ruling "political", and the Court "biased" ever since, even on the occasions you agreed with a ruling? Much lay understanding of the law and the Court is indeed naive in that it attaches a figleaf of supposed process-fairness objection when the the true objection is to substantive outcome.
The Republican Party opposes gun regulation and abortion, so of course the Supreme Court does too.
Republicans also oppose universal health care. They even voted against the infrastructure bill. They aren’t really FOR anything. Rather than bother with a platform in 2020, they simply announced they agree with whatever Trump wants. It isn’t a political party anymore, it’s an angry mob devoted to a scam artist whose highest aspiration is to become a two-bit dictator.
Some might dismiss this as partisan, but it’s the truth.
Gun rights are explicitly there in the Second Amendment. Abortion rights were, as Peter said, “found” in the Constitution. The reasoning underlying this finding was quite oblique and metaphorical. Many other people have a looked into the Constitution and not “found” that particular right.
It’s an open question how far to take interpretation of the Constitution from what it explicitly says. It’s kind of like disputes about the Bible.
Speaking as a computer scientist here for a moment, Gõdel’s Incompleteness Theorem tells us that any system of logic will raise questions that cannot be answered within that system of logic; new arbitrary assertions have to be created to answer those questions. Both the Bible and the Constitution are systems of logic and are subject to the implications of this theorem.
Republican voters picked Republican presidents. Republican presidents picked conservative Supreme Court justices.
Democracy in action.
Michael--
Moreover, concerning your second entry, above, there are many examples over the years of purported conservative SCOTUS justices nominated by Republicans who either make surprise progressive rulings, e.g., Justice Roberts saving Obamacare, or who l become liberals altogether, as with Roe's own Harry Blackmun, known initially as the "Minnesota Twin" because he was expected to be another Warren Burger. It's liberal justices nominated by Democrats who since WWII have voted lockstep partisan left with no occasion for independent or nonconformist thought. "Political"?!
Low Dudgeon –
I’m not sure what second entry you’re talking about since I only had one post.
“Obamacare” wasn’t progressive. It was Obama’s effort mollify Republicans by taking an incremental step toward universal health care based on a model developed by Republicans, nicknamed “Romney care.” Justice Roberts “saved” it on a technicality.
Conservatives are fond of asserting that all statements in the Constitution must be interpreted based on the original understanding at the time it was adopted. Based on that approach, the only firearms that should be allowed are muskets and flintlock pistols.
This is not about abortion.
It's about controlling women so they do not achieve economic, educational or political equality.
Mike,
I think LD was talking to me.You’re Mike. I’m Michael.
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