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I would imagine that there is criticism for every decision the Court has ever made. However, this one has been challenged numerous times over these 50 years and

by spupe 4y ago

I would imagine that there is criticism for every decision the Court has ever made. However, this one has been challenged numerous times over these 50 years and stayed in place. Either we believe that law is a purely technical matter and the Court has failed at that job for 50 years, or we believe that politics are far more important and the technical arguments simply follow from that. I find it absurd to believe that you can treat law as some sort of math proof.

_dain_ 4y ago
Yes, every decision has its share of criticism. Roe is unusual in that it rested on such a remarkably flimsy basis (part of which was rejected in Casey). It is not the first time that a longstanding doctrine has been completely thrown out, even after a gap of decades. Courts aren't infallible. Are they supposed to persist in error forever? And yes, Roe absolutely was in error, and yes the Court has been deficient in its duties over the past 50 years in not correcting it, undoubtedly for fear of the political impact.
- spupe 4y ago
  > It is not the first time that a longstanding doctrine has been completely thrown out, even after a gap of decades. Courts aren't infallible. Are they supposed to persist in error forever? Again, this dichotomy only arises if you subscribe to the view that any decision from the Court is purely technical in the first place. If you think it has been maintained for 50 years because of its political impact, I don't see any reason to discuss the technical aspects at all, as they are irrelevant. What we should be asking is what changed in politics recently, what caused it, and where it is going to take us. Each political side can always find legal experts and reasonable arguments to justify changing a decision they dislike. Some stones are best left unturned, as there are costs for the Court to act like this. I predict a ton of judicial uncertainty, a weakening of the SCOTUS and eventually radical solutions like court packing.
  - vmception 4y ago
    (Different person) The Supreme Court and other appeals courts typically are purely technical, across all political leanings and makeups. On this topic, the Supreme Court reverted to a purely technical view, auditing those two prior cases on their technical merits because they are outliers in being untechnical. They returned it to the states, not taking any extreme approach at all. The extreme options would be: invalidate all state laws that destroy fetuses, prohibit Congress from having any ability to review. Nope, nothing like that was done because overturning roe v wade was never as political as suggested with regard to a child bearer’s body, they simply returned it to the states, and there has always been an absence of a superseding law from Congress, which is Congress’ fault for never even trying
    - spupe 4y ago
      Why did they wait 50 years to correct this obvious outlier? And why did several of the judges lie to Congress when they said they would not change Roe? One would think they could publicly announce their views if they were purely technical.
      - rayiner 4y ago
        To be clear, even liberal scholars have recognized the infirmity of Roe as a legal decision for decades: https://www.washingtonexaminer.com/tim-carney-defense-of-abortion-built-on-a-foundation-of-lies https://www.washingtonexaminer.com/tim-carney-defense-of-abo... > "One of the most curious things about Roe," wrote liberal Harvard Law professor Laurence Tribe "is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found." > Alan Dershowitz, another legendary liberal Harvard Law professor, called Roe "judicial activism" lacking "clear governing constitutional principles." > There are plenty more like this. Pro-choice Yale and Harvard Law professor John Hart Ely wrote that Roe "is not constitutional law and gives almost no sense of an obligation to try to be." > Why did they wait 50 years to correct this obvious outlier? Because once a precedent has been set, the Supreme Court isn't obliged to revisit it, even if everyone comes to believe the decision is wrong. Whereas the merits of the original decision are quite technical, whether to overrule precedent or not is highly discretionary. It considers factors like whether the original decision failed to settle the underlying controversy, whether it creates a rule that is hard to apply in practice, etc. See: https://www.law.cornell.edu/wex/stare_decisis https://www.law.cornell.edu/wex/stare_decisis It's this discretionary aspect that made Roe a sitting duck. Liberals obviously had no reason to overrule Roe even if they, like Justice Ginsburg, believed the decision was flawed. And for a long time, Republicans appointed social liberals to the Court who were happy to kick the can down the road because they were worried about the political ramifications. Note that the politics doesn't matter for whether the decision is correct or not in the first place, but it's an entirely reasonable basis for deciding whether or not to go to the trouble of overruling an incorrect precedent. > And why did several of the judges lie to Congress when they said they would not change Roe? They didn't say they "would not change Roe" they said they recognized "Roe is precedent." As explained above, precedent can be overturned.
vmception 4y ago
As an additional example, 110 years ago that same court ruled that “motion pictures” were not subject to 1st amendment protections. punting that to the states and straight up censorship boards for half the century. a reality not revisited until the 1950s, where the supreme court bought it back under the federal domain, overruling itself because “obviously this has 1st amendment protections” and creating the “free speech and expression” reality that seems profoundly American, but really hasnt been for long. you can have an opinion, but you need to incorporate what the court actually says and their logic behind. Just because a ruling is convenient for you or your causes (multiple times) doesnt mean its on solid ground. on this specific topic, its important to repeat over and over again that the federal government and even its supreme court could have reached the same outcome of privileging the pregnant person’s choice, but yes, that outcome would need to be closer to a math proof if from that court factoring in very different variables. I get that its comfortable (or at least familiar) to view that the means justify the ends, where any authority using any rationale can extend rights that you like. I get that its scary that rights are so flimsy and people dont trust their states and that they will be immediately denied services they expected to be available. None of that lets the incorrect authority do its job wrong.

by spupe 4y ago

_dain_ 4y ago

Yes, every decision has its share of criticism. Roe is unusual in that it rested on such a remarkably flimsy basis (part of which was rejected in Casey). It is not the first time that a longstanding doctrine has been completely thrown out, even after a gap of decades. Courts aren't infallible. Are they supposed to persist in error forever? And yes, Roe absolutely was in error, and yes the Court has been deficient in its duties over the past 50 years in not correcting it, undoubtedly for fear of the political impact.

spupe 4y ago
> It is not the first time that a longstanding doctrine has been completely thrown out, even after a gap of decades. Courts aren't infallible. Are they supposed to persist in error forever? Again, this dichotomy only arises if you subscribe to the view that any decision from the Court is purely technical in the first place. If you think it has been maintained for 50 years because of its political impact, I don't see any reason to discuss the technical aspects at all, as they are irrelevant. What we should be asking is what changed in politics recently, what caused it, and where it is going to take us. Each political side can always find legal experts and reasonable arguments to justify changing a decision they dislike. Some stones are best left unturned, as there are costs for the Court to act like this. I predict a ton of judicial uncertainty, a weakening of the SCOTUS and eventually radical solutions like court packing.
- vmception 4y ago
  (Different person) The Supreme Court and other appeals courts typically are purely technical, across all political leanings and makeups. On this topic, the Supreme Court reverted to a purely technical view, auditing those two prior cases on their technical merits because they are outliers in being untechnical. They returned it to the states, not taking any extreme approach at all. The extreme options would be: invalidate all state laws that destroy fetuses, prohibit Congress from having any ability to review. Nope, nothing like that was done because overturning roe v wade was never as political as suggested with regard to a child bearer’s body, they simply returned it to the states, and there has always been an absence of a superseding law from Congress, which is Congress’ fault for never even trying
  - spupe 4y ago
    Why did they wait 50 years to correct this obvious outlier? And why did several of the judges lie to Congress when they said they would not change Roe? One would think they could publicly announce their views if they were purely technical.
    - rayiner 4y ago
      To be clear, even liberal scholars have recognized the infirmity of Roe as a legal decision for decades: https://www.washingtonexaminer.com/tim-carney-defense-of-abortion-built-on-a-foundation-of-lies https://www.washingtonexaminer.com/tim-carney-defense-of-abo... > "One of the most curious things about Roe," wrote liberal Harvard Law professor Laurence Tribe "is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found." > Alan Dershowitz, another legendary liberal Harvard Law professor, called Roe "judicial activism" lacking "clear governing constitutional principles." > There are plenty more like this. Pro-choice Yale and Harvard Law professor John Hart Ely wrote that Roe "is not constitutional law and gives almost no sense of an obligation to try to be." > Why did they wait 50 years to correct this obvious outlier? Because once a precedent has been set, the Supreme Court isn't obliged to revisit it, even if everyone comes to believe the decision is wrong. Whereas the merits of the original decision are quite technical, whether to overrule precedent or not is highly discretionary. It considers factors like whether the original decision failed to settle the underlying controversy, whether it creates a rule that is hard to apply in practice, etc. See: https://www.law.cornell.edu/wex/stare_decisis https://www.law.cornell.edu/wex/stare_decisis It's this discretionary aspect that made Roe a sitting duck. Liberals obviously had no reason to overrule Roe even if they, like Justice Ginsburg, believed the decision was flawed. And for a long time, Republicans appointed social liberals to the Court who were happy to kick the can down the road because they were worried about the political ramifications. Note that the politics doesn't matter for whether the decision is correct or not in the first place, but it's an entirely reasonable basis for deciding whether or not to go to the trouble of overruling an incorrect precedent. > And why did several of the judges lie to Congress when they said they would not change Roe? They didn't say they "would not change Roe" they said they recognized "Roe is precedent." As explained above, precedent can be overturned.

vmception 4y ago

As an additional example, 110 years ago that same court ruled that “motion pictures” were not subject to 1st amendment protections. punting that to the states and straight up censorship boards for half the century. a reality not revisited until the 1950s, where the supreme court bought it back under the federal domain, overruling itself because “obviously this has 1st amendment protections” and creating the “free speech and expression” reality that seems profoundly American, but really hasnt been for long. you can have an opinion, but you need to incorporate what the court actually says and their logic behind. Just because a ruling is convenient for you or your causes (multiple times) doesnt mean its on solid ground. on this specific topic, its important to repeat over and over again that the federal government and even its supreme court could have reached the same outcome of privileging the pregnant person’s choice, but yes, that outcome would need to be closer to a math proof if from that court factoring in very different variables. I get that its comfortable (or at least familiar) to view that the means justify the ends, where any authority using any rationale can extend rights that you like. I get that its scary that rights are so flimsy and people dont trust their states and that they will be immediately denied services they expected to be available. None of that lets the incorrect authority do its job wrong.