BREAKING: President Trump’s Pick for SUPREME COURT Has Just Been Revealed… Meet Neil Gorsuch

[montanajoe]

  Those wishing to overturn Roe should do it the right way - the Constitutional amendment process.   

This is the only way a Robert's Court will address the issue. Robert's does not want to legislate from the bench and have the SC be seen by those on either side as a quick way to get the law they want. I suspect with the passing of time the Court will simply refuse to hear more and more of the cultural issues and defer to Congress, the individual State Legislatures and ultimately the people to make the call. An approach I welcome and I suspect Gorsuch will join Roberts in, much to the dismay of those on the Right who want an activist Court as long as the activism comes from those they perceive as being on their side...Time will tell

[Weird Tolkienish Figure]

So it was perfectly ok by you for the Court to create law and a mythical "right" where there was none...but the same nine black robes can't fix a lousy decision the same way?

Can't do that. Once we go down that route the USSC will be reversing itself every few years or so.


Jazz is right, do it the right way, via an amendment.

[txradioguy]

This is the only way a Robert's Court will address the issue. Robert's does not want to legislate from the bench and have the SC be seen by those on either side as a quick way to get the law they want. I suspect with the passing of time the Court will simply refuse to hear more and more of the cultural issues and defer to Congress, the individual State Legislatures and ultimately the people to make the call. An approach I welcome and I suspect Gorsuch will join Roberts in, much to the dismay of those on the Right who want an activist Court as long as the activism comes from those they perceive as being on their side...Time will tell

IMO...I don't see reversing Roe as being activist...the Roe decision in and of itself was activism from the bench.

Any attempt to fix it is...as I said a couple posts ago...a course correction for the Constitution back to how it was written...not how it was interpreted.

[txradioguy]

Can't do that. Once we go down that route the USSC will be reversing itself every few years or so.


Jazz is right, do it the right way, via an amendment.

Not the first time they would have reversed themselves when one court rolls over into the next.  There have been important historical instances where the court reversed itself for the better of the Nation. 

I mean imagine if the courts have never reversed themselves and ruled the way they did on Brown v Board of Education?  Or if the SCOTUS hadn't ever reversed themselves on Plessy?

All trying to to this via the amendment process does is allow organizations like PP to fund raise off the back of the effort...gives abortion loving politicians a platform to run on and further divide the country over the issue.

Plus with an amendment it will end up back before the 9 black robes anyway because there will be legal challenges to the amendment intended to prevent its implementation that will last for decades.

The Burger court made a grievous and unconstitutional decision with Roe...it should be up to the Roberts court to fix what his predecessors broke.

[Bigun]

No, at this late date it would be radical judicial activism.  That "course correction" would deny the rights of 150 million women.

There is no activism involved in correcting a decision with absolutely zero constitutional basis!  Rendering that decision in the first place! Now THAT was activism!

[montanajoe]

....
The Burger court made a grievous and unconstitutional decision with Roe...it should be up to the Roberts court to fix what his predecessors broke.

I'm not disagreeing with that sentiment. The point I am making is that the Roberts Court will not go down that road, in his view the issue clearly should be solved through political means and he will be pushing the SC not to intervene. My speculation is that Gorsuch will join in that effort..time will tell.

[txradioguy]

I'm not disagreeing with that sentiment. The point I am making is that the Roberts Court will not go down that road, in his view the issue clearly should be solved through political means and he will be pushing the SC not to intervene. My speculation is that Gorsuch will join in that effort..time will tell.

Ahh ok I see what you mean.  Given how Roberts acted with the Obamacare challenges and immigration...I'm with you...he doesn't have the stomach for it.

[Bigun]

I'm not disagreeing with that sentiment. The point I am making is that the Roberts Court will not go down that road, in his view the issue clearly should be solved through political means and he will be pushing the SC not to intervene. My speculation is that Gorsuch will join in that effort..time will tell.

Possibly! But I see a very big difference between Obamacare - a legislative construct - and Roe which is entirely a court created mess!

We will see.

[Jazzhead]

Ahh ok I see what you mean.  Given how Roberts acted with the Obamacare challenges and immigration...I'm with you...he doesn't have the stomach for it.

Or, perhaps, he's too much of a principled conservative for it. 

Roberts is right that the status and authority of the Court is compromised when it wades into the political arena.  And nothing is more politicized than abortion.  The Constitutional amendment process is the proper means of rolling back Constitutional rights and protections (or granting new ones, such as to the unborn).   For all the squawking about Roe not being grounded in the text of the Constitution,  there's absolutely no basis in the Constitution for extending the rights of a citizen to a non-viable fetus.   

Is changing the Constitution by amendment easy to do?  Of course not - and that's by design.   After forty years,  women have settled expectations concerning their rights, and will fight to protect them.   That reality should not, however,  justify judicial activism as an acceptable alternative to following the procedures set forth in our founding document.

Justice Roberts knows that, and so does,  I hope and believe, Judge Gorsuch.     

[Weird Tolkienish Figure]

Not the first time they would have reversed themselves when one court rolls over into the next.  There have been important historical instances where the court reversed itself for the better of the Nation. 

I mean imagine if the courts have never reversed themselves and ruled the way they did on Brown v Board of Education?  Or if the SCOTUS hadn't ever reversed themselves on Plessy?

All trying to to this via the amendment process does is allow organizations like PP to fund raise off the back of the effort...gives abortion loving politicians a platform to run on and further divide the country over the issue.

Plus with an amendment it will end up back before the 9 black robes anyway because there will be legal challenges to the amendment intended to prevent its implementation that will last for decades.

The Burger court made a grievous and unconstitutional decision with Roe...it should be up to the Roberts court to fix what his predecessors broke.

If we give up on stare decisis, why would the other side? Would you really be ok with the court reversing itself every few years or so? Imagine the chaos that would cause?

[Jazzhead]

Possibly! But I see a very big difference between Obamacare - a legislative construct - and Roe which is entirely a court created mess!

We will see.

A "court created mess" is, of course, your opinion.   But Roe recognized and acknowledged the Constitutional rights of women - it did not take away or deny such rights.   That's the key difference between Roe and, say, Plessy,  which held that African Americans could lawfully be treated as chattel.   And even with respect to slavery, it took a Constitutional amendment to take away slaveowners' property rights.   

No,  a Constitutional amendment is the only valid way to roll back the choice right.   If you think you can do it, get working.  But don't expect the Court to do your work for you - that's the job, and solely the job, of the citizenry.   

[txradioguy]

Or, perhaps, he's too much of a principled conservative for it.

A principled conservative would see the error in the judicial activism involved in Roe and move to overturn the decision on the basis of the fact it was an unconstitutional decision.

A principled conservative would never try to defend roe or say that abortion on demand is a Constitutional "right". 

Roberts is right that the status and authority of the Court is compromised when it wades into the political arena.  And nothing is more politicized than abortion.  The Constitutional amendment process is the proper means of rolling back Constitutional rights and protections (or granting new ones, such as to the unborn).     

 

Funny how you have no problem with how it wades into the political arena when it suits your purpose.

For all the squawking about Roe not being grounded in the text of the Constitution,  there's absolutely no basis in the Constitution for extending the rights of a citizen to a non-viable fetus.

Remind me again how exactly you're a conservative that doesn't like abortion?  That's pure unadulterated Planned Parenthood/DemocraticUnderground talking points right there.

Is changing the Constitution by amendment easy to do?  Of course not - and that's by design.   After forty years,  women have settled expectations concerning their rights, and will fight to protect them.   That reality should not, however,  justify judicial activism as an acceptable alternative to following the procedures set forth in our founding document.

Why are you only in favor of judicial activism when it suits your Liberal bent?

Hypocrite much?

Justice Roberts knows that, and so does,  I hope and believe, Judge Gorsuch.     

If Gorsuch turns out to be as much of a squish as Roberts has...the Constitution is in trouble.

[txradioguy]

A "court created mess" is, of course, your opinion.   But Roe recognized and acknowledged the Constitutional rights of women - it did not take away or deny such rights.   That's the key difference between Roe and, say, Plessy,  which held that African Americans could lawfully be treated as chattel.   And even with respect to slavery, it took a Constitutional amendment to take away slaveowners' property rights. 

There is nothing in the Constitution that gives women the right to an abortion.

What Roe has in common with Plessey is that it was a bad ruling that was unconstitutional.

No,  a Constitutional amendment is the only valid way to roll back the choice right.   If you think you can do it, get working.

No it's not.  It is a process that you abortion loving Libs would love to see happen in order to ensure that any repeal of Roe and a return to the states right to decide if this is legal within their borders per their rights under the 9th and 10th Amendments never gets implemented.

But don't expect the Court to do your work for you - that's the job, and solely the job, of the citizenry.

And yet you sit there and want to bypass the will of the citizen by activism from the bench when it suits your Liberal agenda.

[Bigun]

A "court created mess" is, of course, your opinion.   But Roe recognized and acknowledged the Constitutional rights of women - it did not take away or deny such rights.   That's the key difference between Roe and, say, Plessy,  which held that African Americans could lawfully be treated as chattel.   And even with respect to slavery, it took a Constitutional amendment to take away slaveowners' property rights.   

No,  a Constitutional amendment is the only valid way to roll back the choice right.   If you think you can do it, get working.  But don't expect the Court to do your work for you - that's the job, and solely the job, of the citizenry.

I'm through arguing with you Jazz! It's like playing ring around the rose bush! And I grew out of that many years ago!

The fact is that the court created Roe out of whole cloth and the court can damned sure fix it! The question is will they!
 

[Maj. Bill Martin]

But Roe recognized and acknowledged the Constitutional rights of women - it did not take away or deny such rights.

It didn't "recognize" or "acknowledge" those rights -- it created them out of thin air.  Abortion had been illegal in many states for a very long time, and it never occurred to anyone that banning abortion was unconstitutional.  The Framers would be stunned to learn that someone read that into the Constitution.

It was a Court-created right -- that's inarguable.  It was not created by legislatures or the Constitution.  Your argument amount to saying "it's okay if the Court removes state authority and creates new rights out of thin air, but it's not okay if the Court later reverses itself and returns the issue back to the states."

That's the "ratchet effect" that anyone who cares about the Constitution should oppose.  The easy answer is that if you want abortion rights, pass them at the state or federal level.  But by elected representatives, not unelected judges.

[Bigun]

It didn't "recognize" or "acknowledge" those rights -- it created them out of thin air.  Abortion had been illegal in many states for a very long time, and it never occurred to anyone that banning abortion was unconstitutional.  The Framers would be stunned to learn that someone read that into the Constitution.

It was a Court-created right -- that's inarguable.  It was not created by legislatures or the Constitution.  Your argument amount to saying "it's okay if the Court removes state authority and creates new rights out of thin air, but it's not okay if the Court later reverses itself and returns the issue back to the states."

That's the "ratchet effect" that anyone who cares about the Constitution should oppose.  The easy answer is that if you want abortion rights, pass them at the state or federal level.  But by elected representatives, not unelected judges.

VERY well said and absolutely correct in it's entirety!

[jpsb]

But I was told he would never nominate a conservative, instead he'd nominate his sister.

[chae]

@jpsb


Considering that Trump himself said that his sister would make a great Supreme Court Justice, and she's a partial-birth abortion advocate, I was very worried he'd pick someone else just like her.

[txradioguy]

If we give up on stare decisis, why would the other side? Would you really be ok with the court reversing itself every few years or so? Imagine the chaos that would cause?

As was pointed out earlier Roe is probably the weakest case out there for stare decisis you could find.

There is nothing wrong with the court admitting that it's predecessors made a bad ruling.  It could possibly go a long way towards stopping Liberals from using the court as the end all be all final word on issues when they can't get their way at the ballot box.

Imagine the chaos if we reversed Plessy?

Imagine the chaos if the court reversed itself and found in favor of Brown?

The desirability of a restricted use of the stare decisis rule in this connection has found forceful expression by Mr. Justice Jackson, who sees grave
danger in the strict adherence to precedent:

"Precedents largely govern the conclusions and surround the reasoning of lawyers and judges; ... in constitutional law, they are the most powerful influence
in forming and supporting reactionary opinions."

Very often the question of the applicability of the stare decisis rule will be decided by the caliber of the men who administer the law at the given
time

Roe was very much a reactionary opinion of the court.  And there is precedence for the SCOTUS in reversing course.

http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1559&context=clr

[txradioguy]

But I was told he would never nominate a conservative, instead he'd nominate his sister.

There are still a couple of the nine that are due to retire...give him time.

[Weird Tolkienish Figure]

As was pointed out earlier Roe is probably the weakest case out there for stare decisis you could find.

There is nothing wrong with the court admitting that it's predecessors made a bad ruling.  It could possibly go a long way towards stopping Liberals from using the court as the end all be all final word on issues when they can't get their way at the ballot box.

Imagine the chaos if we reversed Plessy?

Imagine the chaos if the court reversed itself and found in favor of Brown?

Roe was very much a reactionary opinion of the court.  And there is precedence for the SCOTUS in reversing course.

http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1559&context=clr

I know there is precedance for it, I'm just saying, it exist for a good reason is all.


If we reversed on RvW it would lead to retaliations once there's a liberal majority (which is inevitable IMO). Then we'd have a situation where court decisions are reversed every few years depending on the direction of the prevailing winds of the time.

[Jazzhead]

The easy answer is that if you want abortion rights, pass them at the state or federal level.  But by elected representatives, not unelected judges.

But that horse is out of the barn, and has been for 40 years.  Generations of American women have relied on the choice right,  and the Court's decision - which was not derived from "whole cloth" but rather from the natural rights of privacy and self-determination - makes the choice right as much a part of the Constitution as the gun right.

Don't like it?   Then amend the Constitution - the remedy the Founders provided.     

A right spun from whole cloth would have been a SCOTUS ruling that abortions must be banned nationwide, citing the entirely fictional "rights" of a non-viable fetus vis a vis its own mother.   A woman cannot be compelled by the state to carry an unwanted pregnancy to term.   She must have the ability to consent, because she has sovereignty over her own body.   

[Maj. Bill Martin]

Don't like it?   Then amend the Constitution - the remedy the Founders provided.

You've got it backwards.  Amending the Constitution is the remedy for adding a new right to the Constitution.  Not asking the Courts to make one up, which is what happened in Roe.  If the Court was wrong on Roe, then it is the Court's mistake to fix.  Holding otherwise ignores the incredibly high hurdle deliberately set for amending the Constitution, and places that burden on the wrong party.

A right spun from whole cloth would have been a SCOTUS ruling that abortions must be banned nationwide, citing the entirely fictional "rights" of a non-viable fetus vis a vis its own mother.

You're now making the argument that Roe was correctly reasoned from a legal point of view, and I think that is such a terrible argument that there's no point in debating it further.  I've had liberal colleagues who love Roe admit that the legal reasoning of Roe is an abomination.   But I do agree with the limited point that the Constitution no more bans abortion than it does mandate its legality.  It is an issue unaddressed in the Constitution, and therefore one left to the states.

A woman cannot be compelled by the state to carry an unwanted pregnancy to term.   She must have the ability to consent, because she has sovereignty over her own body.

That's a policy argument, not a constitutional argument.  And if you were going to buy "body sovereignty" as some sort of implicit, unstated Constitutional right (which should be a non-sequitur), then suicide should be constitutional right as well.

[roamer_1]

As someone who has read his opinions and even appeared before him, you've got nothing to worry about.  You're looking at the specific issue of abortion as the only reliable indicator of where he would stand on that issue.  In fact, the core of his judicial philosophy -- everything he's been ever since he's been on the bench -- is the antithesis of Roe.  He will oppose Roe not because he's anti-abortion personally (though he probably is that as well) but because the legal reasoning behind Roe is absolutely indefensible for someone who sees the law as he does.  He has never once swayed from holding that the Constitution should be interpreted as it was meant when it was written, focusing on the text.  Roe simply cannot be defended on that ground.

I would hope so - My own primary argument against abortion rests not in religion at all, but rather in the right to life, and equality under the law. Roe v Wade is an horrid decision.

However, Gorsuch is such a brilliant shade of plaid... so very bright beige, that I cannot find a reason to be excited. He is certainly not Scalia.

And btw, abortion is not my 'only' anything... It is merely paramount.

[Jazzhead]

If the Court was wrong on Roe, then it is the Court's mistake to fix. 

Not after 40 years it isn't.   Every woman of child-bearing age has had reproductive liberty for her entire adult life.

No, this is a political issue,  and if the political solution is the reversal of the Constitutional right found by Roe (and there are plenty more efficacious solutions to abortion than that), then it must be done by means of a Constitutional amendment.