Roe down, Griswold, Lawrence and Obergefell next on chopping block

[Bludogdem]

I don't know, it would seem to me that the current court is looking to establish political policy.

Thomas has indicated that they should revisit some of the other decisions. Considering he voted against Obergfell and Lawrence he clearly sees them as not deserving of Constitutional protection. He now sits with the majority. So it would take two of Roberts, Alito, Kavanaugh, Barrett, or Gorsuch to vote with the "liberals". Roberts might be an outside chance but the rest seem...unlikely. Based on what I'm reading from you, you believe that two of those five would vote to retain the constitutionality of Griswold, Lawrence, and Obergefell. I don't share that confidence given that Thomas would appear to want to overturn them and welcomes the opportunity.

Why does everyone ignore this part of the opinion “ For example, we could consider whether any of the rights announced in this Court’s substantive due process cases are “privileges or immunities of citizens of the United States” protected by the Fourteenth Amendment.”.

I’ve read a half a dozen pieces and no one mentions this statement nor Justice Thomas’ belief that “substantive due process” is a “legal fiction”. Here he points out that the “privileges and immunities” clause are likely a better vehicle. He has a nuts and bolts belief that “substantive due process” simply doesn’t exist and is dangerous(Dredd Scott invented substantive due process to protect the slave owners rights) and that “privileges and immunities” are a better vehicle.

[gounion]

Actual title of this piece: Thomas calls for overturning precedents on contraceptives, LGBTQ rights

Also:

Obergefell, the plaintiff in the SCOTUS same-sex marriage ruling, said it's 'quite telling' Clarence Thomas omitted the case that legalized interracial marriage after saying the courts should go after other right to privacy cases - BI


[quote"He is opposed to our equality, he's opposed to our ability to actually be part of 'We the People,'" Obergefell said. "So this concurring opinion, to me, is just a roadmap for opponents of LGBTQ+ equality to come after those decisions and to make sure that we know they believe we are second class citizens not worthy of protection not worthy of equality, so I'm just concerned."

[/quote]
Oh, that's fucking HILARIOUS - the ONE case based upon a right to privacy that he omits is the one that benefits HIM.

Don't worry, after he leaves the Court they'll go back and pick that one up too as they destroy the very fabric of our nation because of their religious views.

[Bludogdem]

Can't have it both ways. If the right to privacy is "fabricated," then Griswold needs to go, also. Of course, I don't agree that it is.

Of course, I'm one of those folks, who doesn't think the Constitution only protects rights that are specifically and precisely enumerated at the founding, either. After all, it doesn't explicitly mention "executive privilege" either.

And as we all know, in 1776, the rights to women were not much being discussed, especially given as at that time they couldn't vote, have property in their own name, etc etc.

We knew from the leaked draft opinion Alito would also make the bogus claim that abortion has no legal tradition in this country. Once agan, a load of crap. While surgical abortion is a 19th century invention, pharma abortifacients were known, and as many legal scholars in this country have pointed out, most of the colonies and earliest states did not criminalize abortion until after "quickening". This is not that different from Roe's framework. You could note it is then rooted in traditions of this country.

The stricter laws on abortion are products of the 19th century, largely pushed, at least originally, by Catholics, the rise of the option for surgical abortion (which is WHY the Pope THEN felt the need for the encyclical on abortion and FIRST started pushing "life begins at conception"), and then later dovetailing with eugenics.

Not if you look at the “privileges and immunities” clause as Justice Thomas states.

[gounion]

Why does everyone ignore this part of the opinion “ For example, we could consider whether any of the rights announced in this Court’s substantive due process cases are “privileges or immunities of citizens of the United States” protected by the Fourteenth Amendment.”.

I’ve read a half a dozen pieces and no one mentions this statement nor Justice Thomas’ belief that “substantive due process” is a “legal fiction”. Here he points out that the “privileges and immunities” clause are likely a better vehicle. He has a nuts and bolts belief that “substantive due process” simply doesn’t exist and is dangerous(Dredd Scott invented substantive due process to protect the slave owners rights) and that “privileges and immunities” are a better vehicle.

You're reading what you want to read, and ignoring the reality of what Thomas said. He wants to overturn these decisions (Loving v. Virginia accepted), otherwise he wouldn't have mentioned them. And he knows he has five votes, otherwise he wouldn't have directed the religious right to use the next months spending lots of money to tee up cases so they can do so.

[ProfX]

The reason I am not interested is Justice Thomas' view on substantive due process is because he is frequently full of shit. You yourself noted all the other concurring justices disagreed with him on another point. They often do. That is another of his beliefs I am not interested in.

https://en.wikipedia.org/wiki/Substantive_due_process

The originalist view tends to oppose it. As I've said many times, I don't hold to that inherently conservative judicial philosophy, nor do many current and past SCOTUS justices. Thomas is entitled to his opinion. Others, including others who have sat on SCOTUS, disagreed with it. I side with them.

You asked. Oracle, you are entitled to your views on the Lemon Test, Substantive Due Process, or anything else SCOTUS has held in the past. I will not deny people have argued against it -- mostly judicial conservatives. That does not mean other people on the Court with differing opinions were wrong. On Lemon, or Substantive Due Process.

[Bludogdem]

The reason I am not interested is Justice Thomas is frequently full of shit. That is another of his beliefs I am not interested in.

You asked.

Rather ignorant to avoid the clause that invites the recognition of individual rights because you don’t like the guy who proposes it. Me, I’ll pursue that line as an effective opportunity. It would be a logical and effective reading of the 14th amendment. I could see Justice Roberts and Justice Gorsuch, maybe even Justice Kavanaugh and Justice Barrett, joining Justices BREYER, SOTOMAYOR, and KAGAN in use of the “privileges and immunities” clause.

[gounion]

Rather ignorant to avoid the clause that invites the recognition of individual rights because you don’t like the guy who proposes it. Me, I’ll pursue that line as an effective opportunity. It would be a logical and effective reading of the 14th amendment. I could see Justice Roberts and Justice Gorsuch, maybe even Justice Kavanaugh and Justice Barrett, joining Justices BREYER, SOTOMAYOR, and KAGAN in use of the “privileges and immunities” clause.

Yeah and you’ll be SHOCKED when they vote with Thomas to overturn all these cases. The religious right didn’t work 40 years to stop now. These judges were recommended because they would vote the way they are voting, not to vote with Breyer, Sotomayor and Kagen.

[bird]

Same can be said for “Plessy v Ferguson”

Roe was a fabrication. “Made up out of Whole Cloth”.

If the court had simply declared the law unconstitutional on equal protection grounds it might have stuck. But once they fabricated the right to privacy and legislated the trimester it had a target. It’s what happens when the court tries to establish political policy.

The court ALWAYS establishes political policy. If you think it doesn’t then you are naive as hell.

Political economy establishes who gets what, where, when, how and why. The judicial branch is a political construct established by the constitution itself a political construct established by a group of men. Thus the judicial branch by its nature and existence is political.

The fourth amendment can definitely be construed to establish a right to privacy.

[gounion]

Same can be said for “Plessy v Ferguson”

Roe was a fabrication. “Made up out of Whole Cloth”.

If the court had simply declared the law unconstitutional on equal protection grounds it might have stuck. But once they fabricated the right to privacy and legislated the trimester it had a target. It’s what happens when the court tries to establish political policy.

It didn’t stick because of the religious right who doesn’t care about anything but their religious attempts to control others.

I believe we have a Constitutional right to privacy. You don’t. I’m not surprised, as you want to control others.

[ProfX]

So ....

I still am not a lawyer, nor do I play one on TV. I grok some of the arguments here, but ...
https://www.theusconstitution.org/blog/ ... al-rights/

I'm very much a pragmatist. If the rights to bodily autonomy and integrity (aka abortion) are better argued from the privileges and immunities clause, then substantive due process, .... fine. However we get to those rights, I really don't care.

However: it looks like we still have a problem, Houston.

https://texaslawreview.org/a-distinctio ... ifference/

[snip]

For over 160 years, the Supreme Court has interpreted the Due Process Clause to protect a discrete set of fundamental rights and no more.116116See Chemerinsky, supra note 4, at 949. CLOSE For over 140 years, the Supreme Court has interpreted the Privileges or Immunities Clause to protect an even narrower set of rights.117117Id. at 548. CLOSE To now replace the Due Process Clause with the Privileges or Immunities Clause would run counter to this robust history and jurisprudential tradition.118118But see Ilya Shapiro & Josh Blackman, The Once and Future Privileges or Immunities Clause, 25 Geo. Mason L. Rev. (forthcoming 2019) (manuscript at 25). CLOSE

For decades, the Supreme Court has rejected the distinction between rights and privileges in constitutional analysis.119119See, e.g., Goldberg v. Kelly, 397 U.S. 254, 262 (1970); Shapiro v. Thompson, 394 U.S. 618, 627 n.6 (1969); see also Rodney A. Smolla, The Reemergence of the Right-Privilege Distinction in Constitutional Law: The Price of Protesting Too Much, 35 Stan. L. Rev. 69, 69 (1982); William W. Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 Harv. L. Rev. 1439, 1439–42 (1968); Charles A. Reich, Individual Rights and Social Welfare: The Emerging Legal Issues, 74 Yale L.J. 1245, 1245–46 (1965). CLOSE It would be regrettable if the Court resurrects this distinction to limit fundamental rights through the Privileges or Immunities Clause. That this reasoning is found in Timbs v. Indiana—a decision that sought to curtail government overreach—is somewhat ironic.

[snip][end]

Having read through their argument that the rights guaranteed by Privileges & immunities are narrower, ... (plus the very substantive problem of the difference between "privileges" and "rights" and this problematic argument of saying these are rooted in the liberty rights of 17th century British citizens) ... I agree with their argument.

I also don't see the current justices agreeing to abortion rights under a different "P & I" framework so this is, once again, uninteresting, that Thomas brought it up. It doesn't seem like they would agree to (federal) abortion rights under this framework, either.

https://www.law.cornell.edu/wex/substantive_due_process

Following Carolene Products, the U.S. Supreme Court has determined that fundamental rights protected by substantive due process are those deeply rooted in U.S. history and tradition, viewed in light of evolving social norms. These rights are not explicitly listed in the Bill of Rights, but rather are the penumbra of certain amendments that refer to or assume the existence of such rights. This has led the Supreme Court to find that personal and relational rights, as opposed to economic rights, are fundamental and protected. Specifically, the Supreme Court has interpreted substantive due process to include, among others, the following fundamental rights:

The right to privacy, specifically a right to contraceptives. Griswold v. Connecticut, 381 U.S. 479 (1965)
The right to pre-viability abortion. Roe v. Wade, 410 U.S. 113, (1973)
The right to marry a person of a different race. Loving v. Virginia, 388 U.S. 1 (1967)
The right to marry an individual of the same sex. Obergefell v. Hodges, 576 U.S. 644 (2015)

[snip][end]

This once again, very much, works for me. I'll stick with substantive due process. That conservative justices don't like it is not a sufficiently persuasive argument against it.

[ProfX]

6 myths about Roe v. Wade, debunked
Roe is a much-criticized decision. Most of the criticism is dead wrong.
https://www.vox.com/the-big-idea/2018/7 ... reme-court

It’s not true that Roe isn’t rooted in well-established constitutional principles

Once again, worth reading, particularly this point.

[ProfX]

How Clarence Thomas Became the Supreme Court's Strangest Justice
The Anita Hill hearings were just the opening chapter in a long, and deeply bizarre, career.
https://www.vice.com/en/article/yvezmk/ ... rt-justice

[snip]

EVEN SCALIA THOUGHT HE WAS NUTS

Thomas is far and away the most conservative justice on the bench, and has been ever since his confirmation, surpassing even the late conservative legal lion Antonin Scalia in anti-gay, small-government, tough-on-crime zeal. Like Scalia, Thomas is an originalist, with a staunch belief that the US Constitution should be interpreted based on what the framers intended when it was adopted.

But while Scalia described himself as a "fainthearted originalist," and could occasionally be swayed by shifting judicial norms, Toobin writes that "there is nothing fainthearted about Thomas's convictions about the meaning of the Constitution." Specifically, Thomas is eager to override legal precedents that don't meet his strict originalist interpretations, rejecting the principles of judicial restraint that even the court's more conservative justices have usually followed. Comparing himself to Thomas, Scalia once famously stated, "I'm a textualist. I'm an originalist. I'm not a nut."

Taken to its logical conclusion, Toobin writes, Thomas' judicial philosophy would "transform much of American government and society," overturning almost a century of progressive social policies. "By Thomas's reading," Toobin writes, "Social Security and the National Labor Relations Act, to say nothing of Medicare and Medicaid, might all be unconstitutional."

HE LOVES TO IMAGINE WHAT AMERICA LOOKED LIKE IN THE 18th CENTURY

A natural consequence of this aggressive originalism is that Thomas spends quite a lot of time imagining what life might have been like in 18th century America. His dissents, particularly the ones he has written solo, tend to be fascinating and weird, eschewing traditional legal arguments for enthusiastic and lengthy historical surveys of the habits and cultural mores that might have informed the Founding Fathers.

A particularly strange example of this is his 2008 opinion in the case of Baze v. Rees, in which the majority upheld the use of the three-drug "cocktail" in lethal injections. In a concurring opinion, Thomas went further in his defense, arguing that the Eighth Amendment was written with far more torturous punishments in mind than a botched execution with intravenous drugs.

To illustrate, he detailed the grisly torture methods of yore that framers of the US Constitution may have been familiar with, like burning at the stake and "hanging the condemned in an iron cage so that his body would decompose in public view." Lethal injection, he concluded, couldn't possibly be cruel and unusual because it wasn't "deliberately designed to inflict pain," even if slow, agonizing death happens to be the end result.

[snip][end]

So, the 8th Amendment cannot possibly refer to drug cocktails that did not exist in the 18th century, only torture devices that were apparently already in use at the time, like iron maidens, I guess.

That is the idiotic rabbit hole originalist dogma can land you in, I suppose.

[ap215]

Woman who brought down Roe vs. Wade to take fight to Calif.

Perhaps more than any other woman, Marjorie Dannenfelser is responsible for the fall of Roe vs. Wade.

The president of Susan B. Anthony Pro-Life America, a nonprofit group that works to end abortion in the United States by electing antiabortion politicians, Dannenfelser has dedicated her adult life to outlawing abortion. In 2016, she played a key role in getting President Trump to commit to appoint U.S. Supreme Court justices who oppose abortion.

https://www.aol.com/news/woman-brought- ... 13942.html

[bird]

I would add that originalism is a bullshit philosophy.

Under the concept of originalism, many things which exist today either brought into being through legislation or via the political economy would be “unconstitutional”. The reality according to the original document itself and the bill of rights very little is unconstitutional. Discussions over the general welfare clause devolve to the individual opinions of the jurists. The same applies to Roe. It is the opinion of Thomas and the others. It is not based on evidence. It is opinion, nothing more, nothing less. In addition, imo, it is religious opinion cloaked in legalistic jumbo-jumbo.

[Toonces]

Why does everyone ignore this part of the opinion “ For example, we could consider whether any of the rights announced in this Court’s substantive due process cases are “privileges or immunities of citizens of the United States” protected by the Fourteenth Amendment.”.

I’ve read a half a dozen pieces and no one mentions this statement nor Justice Thomas’ belief that “substantive due process” is a “legal fiction”. Here he points out that the “privileges and immunities” clause are likely a better vehicle. He has a nuts and bolts belief that “substantive due process” simply doesn’t exist and is dangerous(Dredd Scott invented substantive due process to protect the slave owners rights) and that “privileges and immunities” are a better vehicle.

And why are you ignoring that Thomas had voted against those things (as well as Alito and Roberts)? Surely, that should be an indication as to what he feels about the constitutionality. His own actions demonstrate his position and it seems unlikely he's the only one or are you saying that he was in favor but just simply dissented over a technicality? It is absolutely no accident that a majority of the justices are Catholic. They've positioned the court to be in line with the express purpose of overturning that which they find "immoral".

So, there are three justices who have already said that gay people have no constitutional right to marry, so we're down to Kavanaugh, Gorsuch, and Barrett (who has already said she disagreed with Obergfell), two of which would have to vote to maintain the legal rights of gay people. Thomas and Alito reaffirmed their opposition two years ago. Whatever you think he said, the fact remains that Thomas opposes same-sex marriage, and believes it should be undone.

You can try and explain constitutional legal nuances all you'd like but, as they say, actions speak louder than words.

[ProfX]

Oh and one more thing.

He has a nuts and bolts belief that “substantive due process” simply doesn’t exist and is dangerous(Dredd Scott invented substantive due process to protect the slave owners rights)

Once again, he's wrong.

[from the above Wiki article]
Advocates of substantive due process acknowledge that the doctrine was employed in Dred Scott but claim that it was employed incorrectly. Indeed, abolitionists and others argued that both before and after Dred Scott, the Due Process Clause actually prohibited the federal government from recognizing slavery. Also, the first appearance of substantive due process, as a concept, had appeared in Bloomer v. McQuewan, 55 U.S. 539 (1852).[end]

Also, I will concede the Court used Substantive Due Process during the Lochner Era to support a lot of crap also (like arguing against the minimum wage). But just as I say you can't invalidate Darwinism, because of the way Social Darwinists misused it ... likewise, here.

[carmenjonze]

the end game is to get rid of the Civil Rights Act of 1964, and don't think Uncle Clarence won't be satisfied when that happens....this is a black man that hates himself, but not as much as he despises black folx, especially black women....

And one further, they’re after the 14th, the nemesis of white conservatism.

so I guess now that I can get a gun, I'll have to to protect my nieces from rapists that now have free reign to assault their next vic, err, vessel.....

we told certain fauxgressives in 2016 that SCOTUS was important regarding the vote, but they said we were being too emotional....yeah, whateva bytches....they still on socmed still tryin to justify their fucc up....

as an aside, I think this was planned to drop now, especially after how bad shyt went for them in yesterday's Jan. 6th hearings.....

He is Justice Taney-level corrupt. The only type of Black person conservative whites like.

[ZoWie]

I'm not going to get into a lot of arguments on historical minutiae because they are not particularly relevant to the current situation. Yes, they should be, since precedence is the basis of legal interpretation, but they're not and stare decisis is obviously dead as a legal doctrine in the Supreme Court.

The court was bought by the well funded pressure groups fronting for That Old Time Religion. In particular, the current lineup is practically hand picked by the ultra-right Federalist Society. And don't forget that the court was packed by Republicans using every political dirty trick they could get away with. McConnell stole a nomination from Obama and blocked it until a Republican could get elected, then of course he let every Federalist Society old-boy stooge sail right through when drumpf was gifted with an electoral win by the money classes and their buddies in Russia and Saudi Arabia.

Bit late to be hand wringing, or (in extreme cases) taking to the streets now. Might have helped in 2016, but probably not. This country leads the world in locking barn doors after the horses disappear.

Until there's even a small vestige of political awareness in the USA, these periodic right wing surprises will continue. The right spent the money, organized from the bottom up, and did decades of grunt work. Everyone else was more interested in fitness fads, diets, and cooking.

[carmenjonze]

In particular, the current lineup is practically hand picked by the ultra-right Federalist Society.

^^^^^

[Libertas]

https://www.yahoo.com/news/woman-brough ... 13366.html

The woman who brought down Roe vs. Wade wants to take abortion battle to California

People with tiny IQ's and maturity levels of a 9 yr old should not be involved in politics at all.

[ZoWie]

Nor should cynical billionaires who fund one side because along with a return to the Middle Ages morality, they might even get some of their miniscule tax burden reduced even further.

[carmenjonze]

Dannie D
@DannieD01

Two known sex offenders overturned Roe vs. Wade. Let that sink in.

https://twitter.com/DannieD01/status/15 ... 5952335872

[carmenjonze]

[carmenjonze]

Reportedly from 1987

[ZoWie]

Obviously a history of exploitation of women was not of great interest to the Federalist Society when it picked the last several justices. That particular component of the oligarchy has other priorities. The oligarchy also controls most of the media that reach the middle of the country, and it takes vast sums of money from international billionaire oligarchs.

The cameras are much smaller now than the one in the cartoon, but they're pointed at the same charlatans.