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(Different person) The Supreme Court and other appeals courts typically are purely technical, across all political leanings and makeups. On this topic, the Su

(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.
  - spupe 4y ago
    > They didn't say they "would not change Roe" they said they recognized "Roe is precedent." As explained above, precedent can be overturned. You are right about this point, upon further reading I see that I based my question on social media bullshit that turned out to be biased. I agree with your distinction. Regarding the rest, I think you still don't quite grasp my point. I understand there can be a technical way of looking at these decisions. I can also concede that Roe is particularly hated by most scholars. But if we both agree that politics is why these technical aspects were overlooked for 50 years, it seems absolutely pointless to discuss this issue from any other standpoint. Political interference is why this decision was made in the first place, because as another user stated, it fit into the more libertarian ideology of the Court at that time. And politics is why it's getting struck down, technical aspects notwithstanding. You can of course disagree, as I think you do, but from my perspective the political aspect is much more interesting and a more powerful predictor than anything else.

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.
- spupe 4y ago
  > They didn't say they "would not change Roe" they said they recognized "Roe is precedent." As explained above, precedent can be overturned. You are right about this point, upon further reading I see that I based my question on social media bullshit that turned out to be biased. I agree with your distinction. Regarding the rest, I think you still don't quite grasp my point. I understand there can be a technical way of looking at these decisions. I can also concede that Roe is particularly hated by most scholars. But if we both agree that politics is why these technical aspects were overlooked for 50 years, it seems absolutely pointless to discuss this issue from any other standpoint. Political interference is why this decision was made in the first place, because as another user stated, it fit into the more libertarian ideology of the Court at that time. And politics is why it's getting struck down, technical aspects notwithstanding. You can of course disagree, as I think you do, but from my perspective the political aspect is much more interesting and a more powerful predictor than anything else.