Will Roberts and Kavanaugh Stand With the Unborn or the Unjust?

[mystery-ak]

Will Roberts and Kavanaugh Stand With the Unborn or the Unjust?
Terry Jeffrey

Posted: May 19, 2021 12:01 AM

Chief Justice John Roberts and Justice Brett Kavanaugh, both nominated by Republican presidents, have both written absurd opinions on abortion laws.

The case of Dobbs v. Jackson Women's Health, which the Supreme Court will hear this year, could give them an opportunity to redeem themselves.

At issue, in this case, is a Mississippi law that bans most abortions after a baby's 15th gestational week. The question: Can a state prohibit doctors from killing unborn babies who are not yet old enough to survive outside the womb?

In the 2016 case of Whole Woman's Health v. Hellerstedt, Chief Justice John Roberts joined the minority of justices who opposed the court's decision to knock down less consequential abortion regulations that Texas had enacted. These regulations said that doctors performing abortions must "have active admitting privileges at a hospital" within 30 miles of the facility where they terminated babies and that any such facility must meet the state's "minimum standards ... for ambulatory surgical centers."

With Justice Antonin Scalia having passed away earlier that year, a then-eight-member court ruled 5 to 3 against this Texas law. Justice Stephen Breyer wrote the majority opinion, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan, and Anthony Kennedy (for whom future Justice Brett Kavanaugh had once clerked). Justices Clarence Thomas and Samuel Alito both wrote dissents. Roberts and Thomas joined Alito's dissent.

more
https://townhall.com/columnists/terryjeffrey/2021/05/19/will-roberts-and-kavanaugh-stand-with-the-unborn-or-the-unjust-n2589660

[Hoodat]

They called it out.  These are the only two that worry me.  I'm fully confidant that Thomas, Alito, Gorsuch, and Barrett will side with the Constitution.

[HoustonSam]

Some good examples of the Judiciary's "secret decoder ring" approach to law are cited in the linked article.

In his majority opinion in Whole Woman's Health, Breyer argued that the Texas regulations violated the "undue burden" test the Supreme Court had laid down in Planned Parenthood v. Casey. "An undue burden exists, and therefore a provision of law is invalid if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability," the court had said in that 1992 opinion co-authored by Justices Sandra Day O'Connor, Anthony Kennedy, and David Souter.

In the 2016 case, Breyer, citing Planned Parenthood v. Casey, said of the two Texas abortion regulations: "Each places a substantial obstacle in the path of women seeking a pre-viability abortion, each constitutes an undue burden on abortion access ... and each violates the Federal Constitution."

Although "undue burden" has been the standard now for almost 30 years, it remains undefined.  What SCOTUS suggests as a definition - "a substantial obstacle" - is absurd.  The very business of passing laws is to place "substantial obstacles" in the paths of people attempting to perform acts which the people, through their legislatures, have chosen to regulate.  "Undue burden" simply reserves to the judiciary an unconstitutional authority to reject legislative acts.  And the specific legislative act in question in 2016 was to apply to "clinics" where "women's health care" is provided the same standard applied to every other health care facility in the state.  Does routine state-level regulation of health care place an "undue burden" on anyone, or is this only a concern for abortion?  "Undue burden" is just a weasel word for the reality that courts will not allow regulation of abortion before "viability."

What the judiciary really thinks about the Constitution is revealed by the Chief Justice :

"I joined the dissent in Whole Woman's Health and continue to believe that the case was wrongly decided," Roberts wrote in a concurring opinion in June Medical Services. "The question today however is not whether Whole Woman's Health was right or wrong, but whether to adhere to it in deciding the present case."

"The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike," said Roberts. "The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana's law cannot stand under our precedents."

Stare decisis is real and should have some effect, else the law becomes unpredictable.  Some legal questions must be regarded as settled, and that can only happen when precedent is respected.  But what are the "special circumstances" Roberts mentions?  Apparently the "special circumstances" don't include that a previous court was simply wrong.  Roberts is actually arguing that what SCOTUS says about the Constitution is more important than what the Constitution itself actually says; the plain meaning of the Constitution is to be ignored if a previous Court ignored it.  Roberts would have the American people ruled not by law, but by judges.  Then what are the "special circumstances" that justify overturning precedent?  If precedent simply being wrong is not adequate, what is adequate?

Which secret decoder ring do we need to get from which cereal box to understand the law today, and which other secret decoder ring will we need tomorrow?

[Hoodat]

"The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike," said Roberts.

In other words, Brown v. Board of Education was wrongly decided because stare decisis required the Court to treat it like Plessy v. Ferguson.

What the judiciary really thinks about the Constitution is revealed by the Chief Justice :

The only thing revealed is that he doesn't consider it to be a basis for determining 'Constitutionality'.

Roberts is actually arguing that what SCOTUS says about the Constitution is more important than what the Constitution itself actually says; the plain meaning of the Constitution is to be ignored if a previous Court ignored it.  Roberts would have the American people ruled not by law, but by judges.

Bingo.

[Hoodat]

This whole 'undue burden' spiel is complete bullsh!t.  It really doesn't matter what the issue is.   Access to a newspaper.  Access to an abortion clinic.  Access to a firearm.  Access to CNN.  Access to a voting booth.  Access to a car.  Access to oxycontin.  Access to the government itself.  All these are covered under the Constitution, and it is the Constitution alone that should determine the Constitutionality of any case.

With abortion, the Constitution loosely grants our Congress the right to regulate it.  And the Tenth Amendment specifically states that all powers not delegated to the US nor denied the States are reserved for the States.  To date, Congress has flat out refused to delegate any power to the US in regard to abortion regulation.  Nor is there anything in the Constitution denying States this power.  Therefore, it is up to each State to set it's own regulations on this matter, just as they do with homicide, burglary, fraud, etc.

THAT is what the Constitution says.  And it galls me to no end to see judges completely ignore the Constitution in their attempt to impose their will on the people at the point of a gun.

[Bigun]

This whole 'undue burden' spiel is complete bullsh!t.  It really doesn't matter what the issue is.   Access to a newspaper.  Access to an abortion clinic.  Access to a firearm.  Access to CNN.  Access to a voting booth.  Access to a car.  Access to oxycontin.  Access to the government itself.  All these are covered under the Constitution, and it is the Constitution alone that should determine the Constitutionality of any case.

With abortion, the Constitution loosely grants our Congress the right to regulate it.  And the Tenth Amendment specifically states that all powers not delegated to the US nor denied the States are reserved for the States.  To date, Congress has flat out refused to delegate any power to the US in regard to abortion regulation.  Nor is there anything in the Constitution denying States this power.  Therefore, it is up to each State to set it's own regulations on this matter, just as they do with homicide, burglary, fraud, etc.

THAT is what the Constitution says.  And it galls me to no end to see judges completely ignore the Constitution in their attempt to impose their will on the people at the point of a gun.

  Well said and exactly correct!

[Fishrrman]

I predicted elsewhere, and I'll state it again:
The Court will sidestep in its decision on this one.

I sense that even the conservatives realize that a decision that seriously dismantles Roe could have unintended consequences not only for the nation but for the Court itself.

An "overturn" of Roe would certainly lead to the demo-communists ramming through legislation to "pack the Court" with enough leftist/communist "justices" to reconsider and reverse such a decision. And that means ending the filibuster, which may not prove all that hard if they really want to do it.

So be careful what you wish for.
You might just GET it.
Along with other results that you DIDN'T...

[IsailedawayfromFR]

We do not need Kavanaugh and Roberts.  We need Kavanaugh or Roberts.

Just one of them.

[Sled Dog]

Stare decisis is real and should have some effect, else the law becomes unpredictable.  Some legal questions must be regarded as settled, and that can only happen when precedent is respected.  But what are the "special circumstances" Roberts mentions?  Apparently the "special circumstances" don't include that a previous court was simply wrong.  Roberts is actually arguing that what SCOTUS says about the Constitution is more important than what the Constitution itself actually says; the plain meaning of the Constitution is to be ignored if a previous Court ignored it.  Roberts would have the American people ruled not by law, but by judges.  Then what are the "special circumstances" that justify overturning precedent?  If precedent simply being wrong is not adequate, what is adequate?

Which secret decoder ring do we need to get from which cereal box to understand the law today, and which other secret decoder ring will we need tomorrow?

Stare decisis is only a valid concept if the concept of the previous rulings are based on sound Constitutional reasoning.

The decision by the Court usurping state regulation of the murder of babies was not founded on the Constitution.    It violates the Fifth Amendment.   Clearly the murderer's Right to Privacy enshrined by the Fourth Amendment is overridden by the victim's right to life.  Any court decision reversing Roe v Wade on these grounds would be a valid rejection and provide a sounder basis for future stare decisis decisions.

Or we can do what needed to be done to reverse stare decisis from Judge Taney's famous false decision.

How about if we decide the courts shouldn't be able to rule that murdering babies is constitutional, regardless of the whims of the ruling fascist classes at the time?

[Sled Dog]

We do not need Kavanaugh and Roberts.  We need Kavanaugh or Roberts.

Just one of them.

I have no use for Roberts.   Definitely have no need for the guy.  Not even if my toilet needs a good lickin' to keep on tickin'.

[Sled Dog]

I predicted elsewhere, and I'll state it again:
The Court will sidestep in its decision on this one.

I sense that even the conservatives realize that a decision that seriously dismantles Roe could have unintended consequences not only for the nation but for the Court itself.

An "overturn" of Roe would certainly lead to the demo-communists ramming through legislation to "pack the Court" with enough leftist/communist "justices" to reconsider and reverse such a decision. And that means ending the filibuster, which may not prove all that hard if they really want to do it.

So be careful what you wish for.
You might just GET it.
Along with other results that you DIDN'T...

A pack the court vote would have to overcome a filibuster.

Not likely.

And a ruling restoring the protections babies deserve is long overdue.   Let's be men, protect the children, and fight the animals trying to murder them, okay?  And if that means the Pink Hats join (b)LM and Auntyfa on the streets, fine. 

[Bigun]

Stare decisis is only a valid concept if the concept of the previous rulings are based on sound Constitutional reasoning.

And, if I may add, without having to resort to the reading of the Constitution's penumbras for their basis.

The decision by the Court usurping state regulation of the murder of babies was not founded on the Constitution.    It violates the Fifth Amendment.   Clearly the murderer's Right to Privacy enshrined by the Fourth Amendment is overridden by the victim's right to life.  Any court decision reversing Roe v Wade on these grounds would be a valid rejection and provide a sounder basis for future stare decisis decisions.

Or we can do what needed to be done to reverse stare decisis from Judge Taney's famous false decision.

How about if we decide the courts shouldn't be able to rule that murdering babies is constitutional, regardless of the whims of the ruling fascist classes at the time?

 

[Sled Dog]

This whole 'undue burden' spiel is complete bullsh!t.  It really doesn't matter what the issue is.   Access to a newspaper.  Access to an abortion clinic.  Access to a firearm.  Access to CNN.  Access to a voting booth.  Access to a car.  Access to oxycontin.  Access to the government itself.  All these are covered under the Constitution, and it is the Constitution alone that should determine the Constitutionality of any case.

With abortion, the Constitution loosely grants our Congress the right to regulate it.  And the Tenth Amendment specifically states that all powers not delegated to the US nor denied the States are reserved for the States.  To date, Congress has flat out refused to delegate any power to the US in regard to abortion regulation.  Nor is there anything in the Constitution denying States this power.  Therefore, it is up to each State to set it's own regulations on this matter, just as they do with homicide, burglary, fraud, etc.

THAT is what the Constitution says.  And it galls me to no end to see judges completely ignore the Constitution in their attempt to impose their will on the people at the point of a gun.

The Fifth Amendment is the controlling article on abortion.   Something about requiring a trial and the right to confront accusers before being deprived of life....

...the Tenth Amendment is subservient to that.

[Hoodat]

The Fifth Amendment is the controlling article on abortion.   Something about requiring a trial and the right to confront accusers before being deprived of life....

...the Tenth Amendment is subservient to that.

I like your reasoning.   But it can't be applied to the current case.  The challenge is whether the Great State of Mississippi has the right to establish its own abortion laws.  Mississippi is not arguing against the deprivation of life.  The law in question will still allow it up until Week 16.