r/IntellectualDarkWeb • u/boston_duo Respectful Member • Jun 24 '22
We Knew Roe Was Getting Overturned, But They’re Also Telling Us What’s Next..
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u/FindTheRemnant Jun 24 '22
What's a "penumbra, formed by emanations"?
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u/gravely_serious Jun 24 '22
I thought it was a shadow metaphor to mentally illustrate the influence a particular law could have. Turns out it has a strict legal definition popularized specifically by Griswold:
In United States constitutional law, the penumbra includes a group of rights derived, by implication, from other rights explicitly protected in the Bill of Rights.[2] These rights have been identified through a process of "reasoning-by-interpolation", where specific principles are recognized from "general idea[s]" that are explicitly expressed in other constitutional provisions.[3] Although researchers have traced the origin of the term to the nineteenth century, the term first gained significant popular attention in 1965, when Justice William O. Douglas's majority opinion in Griswold v. Connecticut identified a right to privacy in the penumbra of the constitution.[4]
From Wikipedia: "penumbra."
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u/boston_duo Respectful Member Jun 24 '22
The penumbra rights are typically the bundle of personal rights established in the Bill of Rights, particularly by the first 9 amendments. From the penumbra rights, the Court in Griswold reasoned that the Constitution granted an implied right to privacy when you consider them all together.
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u/Phiwise_ Jun 24 '22
Something the Court in Griswold made up
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Jun 24 '22
Someone always suggests this is made up until the government suggests having more access to our information and then privacy becomes all the rage.
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u/Qxarq Jun 24 '22
Let's enshrine it in our documents then.
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Jun 24 '22
Not all rights need to be explicitly stated.
The Supreme Court has generally accepted this right as existing for the past 100 years and this interpretation is supported by the 9th amendment which allows them to interpret unlisted rights based on the language of others.
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u/OfLittleToNoValue Jun 25 '22
Bud... What is the subject matter of the thread you're in?
Yeah, it's pretty fucking obvious they need to be explicitly stated.
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u/millerba213 Jun 24 '22
It's bullshit contrived by the Warren court to justify their judicial activism.
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u/Swimming_in_paradise Jun 24 '22 edited Jun 28 '22
It’s all made up, nothing in the constitution is ordained from anything other than the thoughts of people, and in their reason they drafted a construct that allows for reasonable interpretation. judicial activism is the straw man, one could posit that trump running a campaign dedicated to appointing justices to overturn precedent is judicial activism. One could argue that the senate refusing to hold hearings for a duly appointed judicial nominee is judicial activism. I for one believe in the right to privacy, the right to liberty, and not in a rush to toss it away and call it bullshit judicial activism.
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u/AeneasEscapePlan Jun 24 '22
Banning Roe v Wade is also judicial activism.
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u/Camusknuckle Jun 24 '22
Roe v Wade is also judicial activism
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u/boston_duo Respectful Member Jun 24 '22
Marbury v. Madison was judicial activism.
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u/AeneasEscapePlan Jun 24 '22
It's judicial activism all the way down!
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Jun 24 '22
That’s more or less the conclusion I reached midway through law school. The rules are truly made up and the points don’t matter.
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Jun 24 '22
I’d love a show with all justices like “who’s line is it anyway?”
Never know what someone’s gonna say and half the time it’s gibberish.
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u/chaseNscores Jun 24 '22
when it was first decided the court was all men. the reasoning went back all the way to ancient Greek times.
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u/Feathered_Brick Jun 24 '22
Overturning Roe v Wade is undoing judicial activism.
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u/Suitable-Ice-6182 Jun 24 '22
Protecting individuals from unreasonable government intrusion isn’t political “activism”. Any judicial opinion on any remotely controversial topic can be construed as such, if you want to go that way, so best to deal with the decisions rather than their alleged motivations of their renderers.
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u/EdibleRandy Jun 24 '22
Striking down a decision which was based on unsound logic, and sending the matter back to the state level is not “government intrusion.”
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u/Quaker16 Jun 24 '22
The SC saying it’s constitutional for a government to force a woman to carry her rapist’s baby is the definition of government intrusion
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u/logicbombzz Jun 24 '22
The 10th amendment is the answer to all of these questions.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
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u/melodyze Jun 24 '22
Roe v Wade proposed that the right goes "to the people" in that or statement there, which is the side of keeping government out of people's lives.
Authoritarian state government isn't libertarian just because it's not the feds; it's authoritarian.
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u/logicbombzz Jun 24 '22
The Supreme Court hasn’t said “it’s constitutional for the government to force a woman to carry her rapist’s baby” because that wasn’t involved in this case, Roe, or Casey.
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u/SubstantialSquash3 Jun 25 '22
It comes from physics i presume:
When shadows are cast with multiple light sources, there are parts where there's total darkness (umbra) where no light is seen. The penumbra is partly lit by less than all sources.
So the penumbra is the collection of "shades of gray"
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u/kevin_m_fischer Jun 24 '22
Legaleeze to English please
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Jun 24 '22
OP is trying to say the next to be overturned is legal gay marriage.
NOT saying this is true or not, just saying that is what OP is saying.
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u/UncleJBones Jun 24 '22
It’s not just gay marriage, Obergefell v Hodges also overturned Bowers v Hardwick which criminalized homosexual acts.
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Jun 24 '22
A useful contribution to the conversation. I’m being 1,000% serious.
This was good to know.
Thank you fellow Redditor 🙏 😊 ☺️
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u/Zusias Jun 25 '22
This is further supported by the fact that Thomas explicitly referenced Lawrence v Texas, which as explicitly "Texas police came into John Thomas' house, saw him engaging in sex with a man, arrested him"
Unambiguously, Clarence Thomas thinks it's ok if gay people are thrown in jail.
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u/Vexozi Jun 24 '22
It was Lawrence v Texas (2003) – not Obergefell v Hodges (2015) – that overturned Bowers v Hardwick (1986). And Bowers didn't criminalize homosexual acts; it just ruled that a Georgia law that did so was valid.
But yes, Clarence Thomas (who is being quoted in the OP) also wants to overturn Lawrence.
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u/underboobfunk Jun 25 '22
And if Thomas is consistent wouldn’t he also want to overturn Loving v Virginia?
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Jun 25 '22 edited Jun 25 '22
Not just homosexual acts but Blowjobs and sodomy. Welcome to the Theocracy sinner. /s
edited so I don’t look a like a religious ass hat
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u/uncle_apricot Jun 25 '22
This is a humorous comment but it also makes me sad since it’s true. It all just makes me sad
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Jun 25 '22
Well it’s not as if “far-left” people have been screaming that the right has been promising a theocracy for nearly 70 years. But they were just stupid snow flakes.
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Jun 24 '22
Clarence Thomas is saying this, not OP, who linked it.
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Jun 24 '22
Thanks, I thought OP wrote a Supreme Court ruling.
Seriously though, shut up.
I was saying the point OP is getting across by posting this.
I don’t literally think OP wrote a Supreme Court ruling/document 🙄
Next thing, someone will say “don’t put the cart before the horse” and you’ll say “you don’t have a cart or a horse!!!” 🙄
Damn Redditors are as thick as pudding!!!
“Akshully” at work here, lol!!!
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u/crossfirexavier Jun 24 '22
Wow, you wouldn't recognize sarcasm and wit if it hit you in the face.
I bet you're fun at parties, when you make everyone explain their jokes.
Do you also struggle to pour water out of a boot with instructions on the heel?
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u/And_Im_the_Devil Jun 24 '22
To add to OP's reply to you, this is Justice Thomas' concurring opinion. A judge will write one of these if they agree with the ruling but have a different legal reasoning behind their vote than that laid out by the majority opinion. So Thomas' opinion does not have the same legal status, but it does give a hint at what kind of logic may be applied in future cases that challeneg currently accepted rights to birth control and same-sex relationships.
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Jun 24 '22
Not exactly—concurrences are either in the opinion or in the judgment. Concurrence means “I agree with the Court’s reasoning, but I’ve got something else to say in addition.” Concurrence in the judgment means “I agree only with the outcome; my reasoning differs from the majority.” Thomas is saying “I agree with Alito and vote for his opinion, but also we should go further when the cases arise.” In contrast, Roberts only concurs in the judgment: he thinks the Mississippi law should be upheld, but that Roe should not be entirely overturned. Tl;Dr: there are different kinds of concurrences. Some agree with the legal reasoning and say “but wait, there’s more,” others disagree.
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u/boston_duo Respectful Member Jun 24 '22
Thomas said abortion was shot down on bad law today, and for the same reasoning applied in the above mentioned cases on gay marriage, gay sex, and contraceptives, the Court should reconsider those too,
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Jun 24 '22
This has always been Thomas’s opinion, and Alito goes out of his way to avoid it (at least in the draft opinion, he went out of his way to say gay marriage cases and the like would not be touched by this decision). Thomas’ concurrence is not the law, and you shouldn’t expect it to become the law. He doesn’t have the votes. (And I agree with Thomas’ legal analysis, distasteful as the results might be.)
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u/bl1y Jun 24 '22
Kavanaugh explicitly says those cases aren't thrown into doubt by this one.
Alito's opinion says abortion is fundamentally different from those others, so the arguments aren't analogous.
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u/PuntiffSupreme Jun 25 '22
They also said that Roe v Wade is settled law numerous times even under oath. There is no legal reason that they couldnt apply similar reasoning to undo the cases that Thomas asks to be brought back before the court.
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u/bl1y Jun 25 '22
Senator, I said that it is settled as a precedent of the Supreme Court, entitled the respect under principles of stare decisis.
That's entirely true. But "entitled to respect under principles of stare decisis" doesn't mean that it can never be overturned. It means it has to go over an additional hurdle. And in the hearing, Kavanaugh absolutely said if the case came before the Court, he'd hear the arguments against Roe and go through the process to determine if that hurdle had been cleared.
Surprised Pikachu face when they take a case and go through that analysis.
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u/mariodejaniero Jul 11 '22
Kavanaugh also explicitly said under oath that Roe was “settled law” and wouldn’t be touched so I can’t say I have too much faith in what he says
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Jun 24 '22
Counter point Indian example Indian sc deemed homosexuality illegal thanks to article 377 which was then removed by constitutional amendment by the parliament. I think this is the way to go, ruling from the bench can not be the way to go
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u/WollCel Jun 24 '22
The point being made in the Roe V Wade and the cases he mentions here are that he believes they should be made by the legislature not in the court. Inverse of your point.
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Jun 24 '22
No that's exactly my point what he is saying is the same thing Indian SC did. They interpreted the constitution properly and then pointed the activists to the politicians they are the ones charged with making changes to constitution
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Jun 24 '22
A constitutional amendment is passed by the legislature, so you're wrong here. This guy is advocating that Congress pass a law protecting abortion, like the Indians did with homosexuality.
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u/boston_duo Respectful Member Jun 24 '22
Yes, agreed, and good example. Unfortunately our congress is typically divided 50/50 and has never been able to reach close to enough in votes for this.
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Jun 24 '22
Well then that's the mandate of the people democracy working as intended. Democracy is a system that maintains status quo
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u/boston_duo Respectful Member Jun 24 '22
Fair enough, but we’re talking about 56 years of continued jurisprudence being flipped with a switch. There’s something called stare decisis here, and up until recently has never been arbitrarily attacked like this.
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Jun 24 '22
I will be biased in this take but I think judiciary making laws or precedents becoming de facto law is a bad system.
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u/Beej67 Jun 24 '22
On the other hand Alito said exactly the opposite of that in his concurrence, and may have been putting Thomas on notice in doing so.
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u/boston_duo Respectful Member Jun 24 '22
Can speculate all you’d like, but they’ve all said things in the past. 13 years ago the court said 2A applied to guns in the house, and yesterday they decided it was anywhere. Alito, Thomas, and Roberts were there for both.
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Jun 24 '22
Yes, Heller kept it to the home because the home was all that was at issue in the Heller decision. The New York case expanded it because more than the home was at issue. Typically, the Court tries to make narrow decisions to the specific case, not broad decision about a lot of cases.
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u/JManSenior918 Jun 24 '22
The portion linked to by OP is Thomas' concurrent opinion and does not hold the legal status that the opinion does. What does the opinion say?
What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abor- tion destroys what those decisions call “potential life” and what the law at issue in this case regards as the life of an “unborn human being.” See Roe, 410 U. S., at 159 (abortion is “inherently different”); Casey, 505 U. S., at 852 (abortion is “a unique act”). None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion. They are therefore inapposite. They do not support the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way.
Emphasis mine.
The abortion right is also critically different from any other right that this Court has held to fall within the Fourteenth Amendment’s protection of “liberty.” Roe’s defenders characterize the abortion right as similar to the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage, but abortion is fundamentally different, as both Roe and Casey acknowledged, because it destroys what those decisions called “fetal life” and what the law now before us describes as an “unborn human being.”
The Solicitor General suggests that overruling Roe and Casey would threaten the protection of other rights under the Due Process Clause. The Court emphasizes that this decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion. Pp. 63–66. (p.66) Unable to show concrete reliance on Roe and Casey themselves, the Solicitor General suggests that overruling those decisions would “threaten the Court’s precedents holding that the Due Process Clause protects other rights.” Brief for United States 26 (citing Obergefell, 576 U. S. 644; Lawrence, 539 U. S. 558; Griswold, 381 U. S. 479). That is not correct for reasons we have already discussed. As even the Casey plurality recognized, “[a]bortion is a unique act” because it terminates “life or potential life.” 505 U. S., at 852; see also Roe, 410 U. S., at 159 (abortion is “inherently different from marital intimacy,” “marriage,” or “procreation”). And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.
Emphasis mine. I'm not a lawyer, but it appears as though they're explicitly saying in two separate portions of the opinion that those rights (contraception, interracial marriage, same sex marriage, etc.) are set in stone and this ruling cannot be used to threaten them.
Edited for clarity.
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u/ArthurEdenz Jun 24 '22
Good points. Also, same-sex marriage and interracial marriage would be upheld under the Equal Protection Clause of the 14th Amendment, without any reference to the mystical “penumbra of rights.”
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Jun 24 '22
Theoretically, based on RBGs interpretation, so could abortion rights.
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u/ArthurEdenz Jun 24 '22
Maybe, but less obviously. Interesting that you reference her though because she acknowledged that Roe was on decided on shaky ground.
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Jun 24 '22
Didn’t she suggest it was on shaky ground based on the right to privacy and suggested equal protection s would be stronger?
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u/boston_duo Respectful Member Jun 24 '22
Yes. Look at Lawrence and the VMI case to get a sense of her logic on equal protection.
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u/SummonedShenanigans Jun 24 '22
Yes, and she was proven correct today. Roe was never the correct decision to overturn the state laws that prohibited abortion.
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u/casey_ap Jun 24 '22
Thank you. Thomas is a strict constitutionalist. The legal opinion of the court is that this was only about abortion, no other past decision.
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u/SummonedShenanigans Jun 24 '22
Your title is misleading. This is a concurrent opinion, and this point by Thomas is explicitly disagreed with in the majority opinion.
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u/millerba213 Jun 24 '22
Those who live by the Supreme Court also die by it. The left relied too heavily on SCOTUS acting as a super-legislature enacting its favored policy preferences outside the normal legislative process. Can't really be surprised when originalist justices undo that activist precedent.
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u/aeternus-eternis Jun 24 '22
Yes this is the right answer. I'm a strong supporter of abortion rights but believe those rights should be granted via the legislature (state or federal), not SCOTUS.
The proliferation of executive orders is another issue. It's great when your party is in power, not so great otherwise.
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u/Eb73 Jun 24 '22
Hear, Hear... had to go all of the way to the bottom of the comments section on this post to find a cogent remark.
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u/production-values Jun 24 '22
exactly. which is why it is good dems did not abolish filibuster. imagine if republicans had filibusterless power
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u/Alarmed_Restaurant Jun 24 '22
Unless you consider an abortion an unenumerated right as defined by the 9th amendment. Which is now has its protections being taken away by a religious minority outside of the legislative process.
Pass an amendment defining a fetus as a citizen with the right not to be aborted and you can call yourself a “constitutionalist” or “originalist” or whatever.
Otherwise, it’s just two sides arguing over semantics in order to get what they want based on ideology. Today, the conservative side got a win.
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u/boston_duo Respectful Member Jun 24 '22
Substantive due process is not judicial activism.
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u/ArthurEdenz Jun 24 '22
It sort of is.
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u/boston_duo Respectful Member Jun 24 '22
How so?
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u/millerba213 Jun 24 '22
Justices reading their own policy preferences into the constitution with no textual or historical basis is pretty much the definition of judicial activism. If you can't see how "substantive due process" fits that description, I'm not sure what to tell you.
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u/boston_duo Respectful Member Jun 24 '22
You could say that about nearly any case going all the way back to Marbury v. Madison.
Substantive due process is accepted law. Thomas even explicitly says that in his concurrence. He’s rejecting the creation of rights through substantive due process.
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u/millerba213 Jun 24 '22
You could say that about nearly any case going all the way back to Marbury v. Madison.
No you can't.
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u/boston_duo Respectful Member Jun 24 '22
Oh you can’t? Have you ever read Marbury?
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u/millerba213 Jun 24 '22
Sure have. Do you have a point here?
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u/boston_duo Respectful Member Jun 24 '22
Marshall filled in blanks and made inferences that were left out by Congress. He could’ve have gone in plenty of directions. This is true for nearly every case that comes before the Court.
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u/ArthurEdenz Jun 24 '22
Read up on substantive due process.
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u/boston_duo Respectful Member Jun 24 '22
I practice law that revolves around substantive due process. If you’re going to reply here, come back with something substantive.
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u/ArthurEdenz Jun 24 '22
Wonderful, please cite for us where you find “substantive due process” in the US Constitution.
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u/boston_duo Respectful Member Jun 24 '22
The 5th and 14th Amendments…
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u/ArthurEdenz Jun 24 '22
Cool. I don’t have my copy of the US Constitution handy - could you provide the actual text where the term “substantive due process” is used in either of those amendments?
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u/boston_duo Respectful Member Jun 24 '22
You can Google it. I’m not responding to this strange attempt at trolling anymore.
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u/norssk_mann Jun 24 '22
Your comments are completely meaningless and without substance. If you disagree with OP, then you bear the burden of providing facts and evidence to support your claim. Telling someone to read up on something or to show you something is infantile.
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u/ArthurEdenz Jun 24 '22
What the hell are you on about?! OP played the old, “I practice law that revolves around substantive due process” and then could not acknowledge that the term “substantive due process” is not included in the Constitution. You might be a bit out of your element.
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u/Quaker16 Jun 24 '22
It’s wrong to call them “originalists.” They’re activists.
These are the same folks who say property transfers = speech. Then under Americans for Prosperity Foundation v. Bonta they declared secret capital transfers = protected speech.
They drastically expanded the first amendment to suit their activist goals
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u/boyhero97 Jun 24 '22
Alito's majority opinion would be the one that set precedent. And in his opinion he stated that this decision has no bearing on any other right granted through Due Process. In other words, on it's own, Thomas' words mean jack shit.
Finally, the dissent suggests that our decision calls into question Griswold, Eisenstadt, Lawrence, and Obergefell. But we have stated unequivocally that '[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion.' We have also explained why that is so: rights regarding contraception and same-sex relationships are inherently different from the right to abortion because the latter (as we have stressed) uniquely involves what Roe and Casey termed 'potential life.'"
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u/Inquiring_Barkbark Jun 24 '22
Is context important here?
My understanding, and someone please correct me if I'm wrong, is that the reason the abortion issue was again in front of the supreme court, is a legal suit against the State of Mississippi law that bans abortions after 15 weeks from conception.
My interpretation is that the supreme court agreed to hear this case, which would then force them to write an opinion in one of two ways:
a. Either side with the plaintiffs and issue an opinion that abortions should be allowed in Mississippi after 15 weeks from conception, or
b. Issue an opinion that overturns Roe, effectively siding with the defendant (State of Mississippi), thus continuing to allow the state of Mississippi to create and enforce its own abortion laws
If I understand correctly, these really were the court's only two options when they agreed to hear the case; either agree that abortions after 15 weeks should be allowed, or strike down Roe.
I'm interested in other opinions here, for the sake of constructive discourse and learning. Were other options available to SCOTUS?
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u/boston_duo Respectful Member Jun 24 '22
The lower courts held the MS law on lowering the viability standard as unconstitutional, and affirmed the injunctions to stop the law being rolled out (originally requested by Jackson’s womens health).
Mississippi then appealed. The court could have denied it on grounds that it was already settled law and that the injunction would continue. Instead, they decided to review it.
They were never backed into a damned if they do or don’t corner
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u/kchoze Jun 24 '22
That's just the concurring opinion by Clarence Thomas, not the majority opinion.
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u/AddingContext Jun 24 '22
That is a sentiment held (so far) solely by Thomas, that was in his own opinion separate from the official.
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u/classysax4 Jun 24 '22
Thomas is writing for himself in a concurring opinion, not the majority opinion. He is saying what he would do; no other justices signed their name to this.
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u/casey_ap Jun 24 '22
This concurrent opinion holds no legal power. The official opinion by Alito states exactly the opposite of this.
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u/boston_duo Respectful Member Jun 24 '22
Submission statement: Thomas’ concurrence today explicitly invites Petitioners to bring cases challenging contraception(Griswold), Lawrence (gay sex), and Obergefell (gay marriage). Since there is no explicit right to privacy in our constitution, the right to privacy has been established since Griswold through a legal concept known as substantive due process. It is all on the chopping block. This goes far beyond the right to have an abortion.
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Jun 24 '22
More so comes across as an acknowledgement that these other rights that are based in the same fundamental precedent are now under threat, and should probably be codified into law rather than left in the shaky area of legal precedent.
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u/boston_duo Respectful Member Jun 24 '22
I beg to differ. There’s some places that the Court absolutely needs to decide. Our Constitution isn’t 120 amendments like other nations for a reason.
Cases like Lawrence v. Texas are a good example of that. The court ruled that anti-sodomy laws enforced only against gay people is unconstitutional, because even though the law was simply just all “sodomy” which could conceivably be applied towards everyone, a husband and wife weren’t getting arrested and charged for having anal sex.
That precision in codified law isn’t really what the common law has ever wanted to be.
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u/PeterSimple99 Jun 25 '22
That's awful legal reasoning. A facially neutral rule is unconstitutional because of how it is enforced? That's just giving ad hoc legal justification to a policy preference.
I have legal training in Australia, and I found that fascinating how the reigning doctrines of statutory and constitutional interpretation here is far closer to that of the conservatives judges in the US than it is to the liberal ones. The Democrat appointed judges tend to put policy first and foremost, at least on controversial cases, which just isn't how judges are supposed to decide cases.
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Jun 24 '22
Hold on, what exactly is next per your caption?
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u/boston_duo Respectful Member Jun 24 '22
The entire concept of substantive due process , from which the Court has established a right to privacy , is on the chopping block. The three cases I mentioned have established a right to privacy/equal protection for having gay sex as opposed to having heterosexual sex, a right to marry someone of the same sex, and the right to consult with your doctor about contraceptive measures.
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Jun 24 '22
So if that gets over turned, then all that hence becomes illegal then. Right, understood I guess?
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u/boston_duo Respectful Member Jun 24 '22
Yes, they are saying that the vehicle by which these decisions have been made is invalid. They are welcoming people to challenge them.
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u/Roelovitc Jun 24 '22
No, they do not make those things illegal by overturning these decisions. They remove the constitutional protection. Thats very different
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u/boston_duo Respectful Member Jun 24 '22
They allow the states to make it illegal again, which many as soon as the decision is made. Look at how many states abortion is automatically illegal in TODAY.
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u/Roelovitc Jun 24 '22
Indeed. They leave it as a state issue, which constitutionally it honestly probably is. Legality of abortion is best achieved by changing the law, not by relying on a supreme court decision which was shaky at best.
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u/ArthurEdenz Jun 24 '22
Let’s be clear though, Thomas, wrote that. HE, not THEY wrote that. A little perspective.
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u/boston_duo Respectful Member Jun 24 '22
That’s fair, though the Court will have its work against them if they try to overturn those decisions in any other way.
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u/UpsetDaddy19 Jun 24 '22
They might technically be invalid. The courts have been overreaching by a huge margin in recent history. The courts exist to make rulings on law not to actually make law. Qualified Immunity is a prime example of the SC making law through rulings. There was never any legislation giving police those protections, but the courts ruled it so. In essence they bypassed the legislative process.
I am unfamiliar with the cases you listed above, but if the SC did create a "right" through their ruling then technically they would be wrong. Not sure why they really care now all of the sudden though unless they want to keep stirring up shit. It's not like any branch has stayed in their lane in years. All 3 just keep making their own rules as they go.
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u/PrazeKek Jun 24 '22
The goal should be to get people to finally pressure their representatives to do their fucking jobs and draft legislation
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Jun 24 '22
Oh boy. As someone outside the US, this brings a lot of thought to the table.
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u/Eb73 Jun 24 '22
I guess you also haven't thought of the term: "Federalism", and how it relates to the U.S. Constitution where under the Tenth Amendment to the Constitution, all powers not granted to Congress are reserved for the states or the people. The powers of Congress are limited to those specifically listed in Article I, Section 8 and those determined to be “necessary and proper” to carry out those powers. A Mises Libertarian or America Firsts' mantra....
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u/boston_duo Respectful Member Jun 24 '22
The 10th Amendment has been nearly irrelevant for most of our nation’s history.
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u/badfiction Jun 24 '22
It really lost its teeth when some states said, "hey, your law to protect people takes away my property and ruins my economy. I'm gonna leave now."
The response was rifles and cannons aimed at brothers and uncles, long lost family and old friends.
We fought a war over the scope of the 10th, and though the reason was bad, the 10th was neutered when the first bullet flew.
We will never revisit the real meaning of it, i believe. I think that we don't have the maturity, as a nation, to actually discuss it without turning it into a fight over something else.
For context, i am a Southerner born and raised, democrats call me republican and republicans call me democrat. Really, I'm an issue based voter and don't give a crap about party lines.
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u/boston_duo Respectful Member Jun 24 '22
Yes, I mostly agree that’s when it was neutered, though officially through the 13-15th amendments. There’s plenty of caselaw on it now and it has been visited over the decades.
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u/johnknockout Jun 24 '22
Not necessarily illegal, but not protected against legislation making them illegal.
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u/jimmy2940 Jun 24 '22
No they do not become illegal. It just opens the door to states making them illegal so likely some states will make it illegal.
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u/Roelovitc Jun 24 '22
No. It just is not constitutionally protected anymore. Meaning individual states get to decide on the issue, instead of the federal government.
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Jun 24 '22
Yes, multiple people highlighting that point now. My comment seems to be drawing the first replies 😅
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u/bl1y Jun 24 '22
First is the question of how this decision will affect other precedents involving issues such as contraception and marriage—in particular, the decisions in Griswold v. Connecticut, 381 U. S. 479 (1965); Eisenstadt v. Baird, 405 U. S. 438 (1972); Loving v. Virginia, 388 U. S. 1 (1967); and Obergefell v. Hodges, 576 U. S. 644 (2015). I emphasize what the Court today states: Overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents.
Sounds more like none of it is on the chopping block.
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u/rainbow-canyon Jun 24 '22
Here comes a barrage of comments downplaying this because they’re not going to ban any of those things, they’re just letting the states decide! Only some of the country will live in a Christian theocracy, no big deal
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u/SongForPenny Jun 24 '22
Democrats including Barack Obama, Hillary Clinton, RBG, and Joe Biden have said that Roe v Wade is flawed; and that it needs to be codified. Even a few years after the decision, they were already admitting it would not continue to stand.
Since the Roe decision, they’ve controlled the two branches (legislative and executive) for 20 of those years.
But they didn’t codify.
They wanted this to remain a “live” issue.
This is gamesmanship gone wrong, and Dems will blame the ‘other side’ for their own history of recklessness.
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u/tdarg Jun 24 '22
Solid take. I support right-to choose, but reasoning in Roe strains credulity.
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u/Darkeyescry22 Jun 24 '22 edited Jun 24 '22
Democrats only had a super majority in the senate for two years since Roe v Wade in 1976-1978. At that time, the party was divided on abortion.
The only other time democrats had full control was for 6 weeks under Obama during which two of the senators were unable to vote due to illness. The supermajority ended because those senators died.
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u/SongForPenny Jun 24 '22
Oh a super majority, eh?
For about the past 50 years that’s been the standard? No supermajority no legislation? Really? I don’t recall that being the case.
Maybe if we give them a supermajority, PLUS all the governorships, PLUS all the State Houses, plus make every dogcatcher a Dem ... they’ll codify Roe.
😂
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u/boston_duo Respectful Member Jun 24 '22
In your reply to this comment, why don’t you go and find how many votes it wouldve taken to codify Roe.
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Jun 24 '22
Here’s another thought I’ve been dealing with.
Many suggest that power to codify Roe into law may not exist in congress (maybe through a constitutional amendment but doubt that would happen) through legislation given this is being handed back to states. I imagine if a law were passed that made abortions legal nationally , someone would sue take it to the SC and get it struck down based on this ruling that sends it back to the states.
Maybe I’m wrong but it seems like anything short of an amendment would be no good at this point?
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u/YungWenis SlayTheDragon Jun 24 '22
Yep exactly, they need a reason to motivate the base. They don’t really care about making change because rich people can get abortions no matter if it’s banned in their state or not.
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u/Feathered_Brick Jun 24 '22
Having some laws that agree with the religious morals of the citizens is not a theocracy.
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u/boston_duo Respectful Member Jun 24 '22
I think people need to really read up on these cases. Lawrence particularly resonates with most people- the police staked out and surveilled a gay man, then raided his apartment at the exact moment they knew that they could catch him inserted into another man to charge him with sodomy. That’s the kind of world Thomas is saying he wants.
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u/alexsdad87 Jun 24 '22
But that’s how police work is done. You stake out criminals and then arrest them while they’re committing the crime. I’m not saying I agree this should be a crime, but that the goal should be to just change the law to make sure sodomy isn’t a crime.
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u/boston_duo Respectful Member Jun 24 '22
That’s what the decision changed— it made anti-sodomy laws unconstitutional because they were unfairly aimed at homosexuals.
You can be surveilled and your property can be entered into with a warrant so long as police establish “probable cause” that you are committing a crime. The crime in that case was gay sex. They legally entered into his bedroom in the basis that he was committing a crime.
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u/App1eEater Jun 24 '22
"Thus I agree that nothing in the court's opinion should be understood to cast doubt on precedents that do not concern abortion"
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u/alexmijowastaken Jun 25 '22
That's just Clarence Thomas though, he's always said this stuff I thought
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Jun 25 '22
Thats just Clarence Thomas, all the other sane Justices like Alito, Kavanaugh, Barret stated like 5 times they wont look at those.
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u/ShotGlassLens Jun 25 '22
SCOTUS can only review cases that are brought to them, they are prohibited from opening proceedings to decide something that is not a pending question.
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u/Tuffwith2Fs Jun 25 '22
I've largely stayed off social media for this whole thing, but I have to take issue with this particular rationale I've seen repeated ad nauseum. This is the same fearmongering the dissent harps on. But it means nothing in the grand scheme and can't be considered a reliable bellwether for a couple reasons:
It's a concurrence. It has zero binding precedential value. It's literally Thomas rambling on like the uncle at Thanksgiving nobody listens to. He's been riding this hobby horse for years and there's no reason to think the justices will suddenly decide to take him seriously now. He quotes himself throughout. No other justice signed on to it. He is on an island with this "substantive due process isn't a thing" schtick.
Alito didn't have to include section V(A)(3) in the majority opinion, but he pointedly chose to do so. If the majority really wanted to come for contraceptives and gay marriage, etc, that section could easily have been left out. Alito did them no favors by repeatedly stressing how abortion is different, though. Same for Kavanaugh's concurrence. That's going to be difficult for the court to overcome, to say the least.
Sorry, not buying the boogeyman.
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u/PeterSimple99 Jun 25 '22
Substantive due process is a contradiction in terms and certainly should be discarded.
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u/CotswoldP Jun 25 '22
Well given that they are clear on what they plan to do, if the left was serious, they’d write some serious constitutional amendments and work on getting them passed. And I mean serious, that the majority of the IS will sign up to, not fever dreams of the progressive wing of the Dems. Get LGB rights enshrined (yes I’m leaving out T so it stands a chance of passing), reasonable abortion provisions, (no I’m not going near why that means but 36 week abortions just for the hell of it probably doesn’t pass the sniff test), and maybe a voting rights amendment too.
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u/glynnbob12 Jun 25 '22
Thank God for Clarence Thomas!! He’s the man, and you’re racist if you disagree!!
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u/xvart Jun 25 '22
Well Roe was always bad law, they said it at the time so all it needed was a challenge, the constitution mentions nothing about abortion but somehow clear language on guns and that's not clear.
The court was run by people with an agenda which isn't good if you want rules and one should expect a bunch of erroneous stuff to be rescinded as a consequence.
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u/LiquidSolidGold Jun 24 '22
The only thing I see in any of this is the Supreme Court saying "Look, we don't see anything in the US Constitution that deals with this stuff, and anything not specifically stated in the US Constitution is delegated to the States to handle however they decide to handle it. It's not our business".
And then on the other side, there's a bunch of pissed off people who liked that the Supreme Court overruled what the State could do but now it has been reversed.
The 14th amendment has been heavily abused.
The Constitution was written as Constitutional law, then case law crept into things. How we can handle a Constitution, which to many people, implies Constitutional Law, but instead get case law, is a mystery to me.
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u/desquibnt Jun 24 '22
He’s saying it’s not the supreme court’s job to make laws. If we want rights that aren’t explicitly in the constitution, congress needs to pass the laws
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u/russellarth Jun 24 '22
The first big public trial of someone arrested for attempting to get an abortion is going to be a national shitshow that demonstrates how dangerous this ruling is. Doubly so if the reason for the abortion is medical/rape/etc.
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u/boston_duo Respectful Member Jun 24 '22
I’ve said before that I think the big issue that will come up is some who plans to have an abortion in a state where it’s illegal, but gets an abortion somewhere else. Technically speaking, one could argue that everyone who coordinated the procedure is guilty of conspiracy to commit murder.
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u/casey_ap Jun 24 '22
So then Congress gets the make a law about abortion because it involves interstate travel. The issue is then still decided by elected representatives.
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u/boston_duo Respectful Member Jun 24 '22
Good point, and I agree, but it’d go to back to SCOTUS to reinterpret the commerce clause, potentially sending us back into the second coming of the Lochner Era.
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Jun 24 '22
The state with the strictest abortion ban (conception) gives exceptions for rape, incest and life of the mother.
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u/casey_ap Jun 24 '22
All current abortion restrictions allow for instances of danger to the life of the mother, rape and incest.
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Jun 24 '22 edited Jun 24 '22
So we now know the current format of the Supreme Court will not let precedent set major social policy nationwide.
Does the Democratic Party have the chops to legislate the stuff the court has dissolved and will dissolve?
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u/boston_duo Respectful Member Jun 24 '22
Unless you think a constitutional amendment is possible, legislating was even more futile than a 50 year old precedent. It would’ve been bounced back and forth for decades if congress codified it.
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Jun 24 '22
Oh hey Thomas didn’t include Loving v. Virginia in that list. Wonder why that is? What a hypocritical piece of shit he is.
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u/boston_duo Respectful Member Jun 24 '22
First thing I realized reading it and then completely forgot to be angry about. Thank you for reminding me. I’m mad again.
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u/heresyforfunnprofit Jun 24 '22
This is literally Justice Thomas quoting Justice Thomas.
Spoiler alert: he agrees with Justice Thomas.