Also, just to be clear, the fact that I post a quote means it is interesting, but not necessarily that I agree with it. In the referenced work, it (non-transparently) actually means, don't get get yourself killed.
I'll probably do a full blog post on this the imminent overruling of Roe v. Wade by the U.S. Supreme Court (probably in June) soon, but the subject deserves more than a brief comment.
Even if one was going to modify Roe v. Wade (and its follow up case known as Casey), it would have been possible to do so in a fairly incrementalist manner - for example, basing a shift in the point in a pregnancy in which the government may regulate it based upon advances in medical science that have pushed the point at which a fetus can be viable outside the womb earlier than it had been when Roe and Casey, respectively, were decided.
But, the leaked draft opinion of Justice Alito writing for a five judge conservative majority doesn't take this approach.
Instead, it is a broad attack on substantive due process and indeed goes even further than rolling that to a stance that basically denies the authority of the court to apply the spirit and intent of constitutional rights protections which are mostly very vague, in favor of a crabbed interpretation of what was the law when the constitution and its respective amendments were adopted that doesn't address changes in the context in which they are applied in a changing world since then.
The draft opinion basically rolls back not just Roe v. Wade, but also, a very large share of the constitutional law jurisprudence of individual constitutional rights for the last fifty plus years. It is a radical departure from mainstream jurisprudence and one that most of the justices in the majority swore that they did not adhere to in their confirmation hearings (in several cases, very recently), and at a time when there has not been a major change in norms regarding the subject matter nationally, the status quo has wide public acceptance, and the status quo has not proved impossible to administer practically in a way that carries out the purposes of the constitutional provisions in question (each of which are circumstances that have driven the court to change course from its previous course and overrule past precedents).
Is that "flawed reasoning" in the sense of making an argument that isn't logically consistent if you are on board with rolling back half a century of widely accepted constitutional law that is part of the national identity? Not really.
Is it extremely radical and far outside the established norms of stare decisis (the system of creating case law via precedent)? Absolutely. It is an incorrect decision in the sense that it overrules a psst judicial decision in circumstances when there is no valid and established legal basis for overruling a past judicial decision, simply because the current majority of justices wouldn't have turned the same way at a major fork in the road of American constitutional law that all justices until now have adhered to.
your opinion to overturn Roe v Wade
ReplyDelete@neo
ReplyDeleteGroan.
Also, just to be clear, the fact that I post a quote means it is interesting, but not necessarily that I agree with it. In the referenced work, it (non-transparently) actually means, don't get get yourself killed.
ReplyDeleteany flaws in the legal reasoning ?
ReplyDelete@neo
ReplyDeleteI'll probably do a full blog post on this the imminent overruling of Roe v. Wade by the U.S. Supreme Court (probably in June) soon, but the subject deserves more than a brief comment.
Even if one was going to modify Roe v. Wade (and its follow up case known as Casey), it would have been possible to do so in a fairly incrementalist manner - for example, basing a shift in the point in a pregnancy in which the government may regulate it based upon advances in medical science that have pushed the point at which a fetus can be viable outside the womb earlier than it had been when Roe and Casey, respectively, were decided.
But, the leaked draft opinion of Justice Alito writing for a five judge conservative majority doesn't take this approach.
Instead, it is a broad attack on substantive due process and indeed goes even further than rolling that to a stance that basically denies the authority of the court to apply the spirit and intent of constitutional rights protections which are mostly very vague, in favor of a crabbed interpretation of what was the law when the constitution and its respective amendments were adopted that doesn't address changes in the context in which they are applied in a changing world since then.
The draft opinion basically rolls back not just Roe v. Wade, but also, a very large share of the constitutional law jurisprudence of individual constitutional rights for the last fifty plus years. It is a radical departure from mainstream jurisprudence and one that most of the justices in the majority swore that they did not adhere to in their confirmation hearings (in several cases, very recently), and at a time when there has not been a major change in norms regarding the subject matter nationally, the status quo has wide public acceptance, and the status quo has not proved impossible to administer practically in a way that carries out the purposes of the constitutional provisions in question (each of which are circumstances that have driven the court to change course from its previous course and overrule past precedents).
Is that "flawed reasoning" in the sense of making an argument that isn't logically consistent if you are on board with rolling back half a century of widely accepted constitutional law that is part of the national identity? Not really.
Is it extremely radical and far outside the established norms of stare decisis (the system of creating case law via precedent)? Absolutely. It is an incorrect decision in the sense that it overrules a psst judicial decision in circumstances when there is no valid and established legal basis for overruling a past judicial decision, simply because the current majority of justices wouldn't have turned the same way at a major fork in the road of American constitutional law that all justices until now have adhered to.