So flip the entire thing and say Congress and the presidency were hyper-progressive. Do you not think this court would use the constitution to strike down their laws (say universal healthcare or something)? They are only rolling back these excesses because it fits their ideology.
> Do you not think this court would use the constitution to strike down their laws (say universal healthcare or something)?
They upheld Obamacare again just last year.
> They are only rolling back these excesses because it fits their ideology.
This is just liberal projection. Liberal justices almost always vote as a unified bloc on major cases based on the results. It's always the conservative justices that go wobbly: Thomas voting against federal marijuana prohibition, Roberts repeatedly voting to uphold Obamacare, Roberts opposing overtrning Roe, Kennedy finding that the Constitution protects same-sex marriage, Gorsuch and Kavanaugh finding that the Civil Rights Act protects sexual orientation, etc.
I would not be surprised if the current right leaning super majority guts Obama care too (if a case comes along.) Thomas has already indicated he supports rolling back gay marriage etc.
>Thomas has already indicated he supports rolling back gay marriage etc.
That is not exactly accurate. What Justice Thomas wrote was that cases setting precedence in the area of due process may need to be reconsidered due to the same shaky legal underpinning that Roe v. Wade sat on.
It is the result of that revaluation that could impact Obergefel. Certainly, he could very well hold a negative opinion personally about gay marriage, but his suggestion could create issues for his own marriage legality as well. I am sure he is intelligent enough to realize this—which begs the question why would he suggest it if it could negatively impact him?
I suspect that the answer may be that perhaps he feels it’s important to correct a legal error, so that subsequent judgements are stronger. He likely feels that congress should be creating the laws, as opposed to us relying on legal fiats. I know I agree with that. Congress has a duty to us set forth in Article 1…it’s time they started taking that seriously. If they did their jobs and wrote good laws, what we have seen in the last week is less likely to occur.
While I understand your point, the issue is most progressive issues aren't easily traced back to clear laws or the Constitution. These very frequently depend on loose interpretations or extrapolations such as "general welfare", etc.
It would be better if these were clearly codified in laws vs being on shaky ground forever. E.g Roe v Wade
They have been hyper-progressive, and hyper-regressive. As RBG noted - the USSC got out "in front of" the law with Roe V. Wade - which resulted in it invalidating every state law (pro or anti-abortion) and caused a era of dramatically increased polarization.
They also wrote Dredd Scott, Ferguson, Citizens United, and Korematsu.
At what point do you constrain the power of the supreme court to make law as opposed to interpret it?
The Supreme Court has done far more damage then help, historically.
Saying that Roe v Wade resulted in an era of increased polarization is completely sidelining the facts that
A) women we're suffering from the lack of the right at the time.
B) that churches and GOP actually drove the polarization, they chose to use it as a device to divide.
It would be like saying abolition of slavery was too soon because it caused the civil war... Who cares the law shouldn't have to wait for cave men to move forward.
Funny enough - all of the actions that the Supreme Court took to entrench and strengthen slavery arguably were one of the things that caused the Civil War.
a) no. States were in the process of legalizing it - with restrictions far more in line with the rest of the democratic world.
b) no. In fact, most churches (the SBC for example) polarized _after_ roe v. wade. In fact, most evangelicals were left-leaning prior to this ruling. (Some partisan hacks will insist that it was desegregation that led to this, but Brown versus Board was 1954, and the SBC was still solidly liberal in 1972). Roe v. Wade lit everything on fire. (See RBG's comments on Roe V. Wade), precisely because it was a un-elected court making a change that no law could challenge.
It's telling that simply saying "this is not a matter for the supreme court but the people's representatives" is so incredibly controversial.
My hope on all of this is that this ends the imperial court - and abortion stops being the mother of all wedge issues, and allows some elements that moved to the right because of the undemocratic change to move back to the left now that the democratic norms are re-established.
> It's telling that simply saying "this is not a matter for the supreme court but the people's representatives" is so incredibly controversial.
There are of course two followup questions here:
1. Would the current supreme court allow a federal abortion law that codifies roe? The SC opinion explicitly notes that their ruling returns this to the states, but federal representatives are representatives too.
2. Does it really make sense for rights to be up to the whims of the legislature? If it takes 60 votes to pass a national abortion legalization, and 50 senate votes to repeal it, will we end up with lasting legislation, or just a de-facto ban because abortion is repealed every 2-4 years?
Regarding #2, the congress legislatively and the constitutional amendment process is truly the only place that makes sense to establish federal abortion rights. Frankly the amendment process is literally the best place because it’s the only way to establish enumerated rights.
Will it be hard? Extremely. Is it likely to fail before it’s done? Absolutely. But when it’s finally done, at whatever compromise, those rights will be enumerated and well established and it will take millions of people to take them away…instead of six people.
In the meantime we have states democratically choose their path.
1. Yes, they say as much in the opinion. (Take it for what it's worth). I think conservatives have not factored this into their plan.
2. I think at some point people will punish parties for that. Right now both parties could take absolutionist positions on abortion (late term versus outlawing for all reasons) because they didn't have the power to do anything because the USSC ruled on the issue. That made it a red meat promise to their supporters, without them ever having to really do anything about it..
