3 ms·

But somehow, some people only feel the need to mention it when they don't like the result.

yanderekko 3y ago
Yep. Roe vs. Wade was one of the most egregious examples of "legislating from the bench" in the latter 20th century? How many people who would hand-wring over recent SCOTUS decisions oppose Roe on these grounds? Or is this a convenient exception? Griswold? How about Lawrence vs. Texas?
- mehlmao 3y ago
  Please explain how Henry Wade could enforce the overturned Texas Penal Code statutes without violating the constitutional right to privacy.
  - Aunche 3y ago
    In the right to privacy is so broad that it applies to abortion, it should also apply to self-medicating yourself with narcotics. I'm not saying that decriminalization of drugs is a bad thing, but it's something that obviously shouldn't be decided by the Supreme Court.
    - yanderekko 3y ago
      Yep, and if it applies to abortion, why not third-trimester abortion? Why is that relevant to a privacy interest? Where is the right to privacy in the Constitution, btw? Sounds like the whole thing is legislating from the bench! Maybe we should bring back Lochner-style scrutiny of minimum wage laws under a newly-discovered "right to earn a living"?
      - dragonwriter 3y ago
        > Where is the right to privacy in the Constitution, btw? People inevitably making this argument was actually the primary argument against adopting a Bill of Rights at all, and the Ninth Amendment was the compromise solution to have some enumerated rights while hoping to negate this exact argument.
ericmay 3y ago
Right, like how the SCOTUS rejected the Independent State Legislature theory case. Some people were like "we really shouldn't be legislating from the bench", but when the SCOTUS overturned Roe v Wade they cheered it on.
- ellisv 3y ago
  How was rejecting ISL was legislating from the bench?
- JustBreath 3y ago
  > Some people were like "we really shouldn't be legislating from the bench", but when the SCOTUS overturned Roe v Wade they cheered it on. That's internally consistent. Roe V. Wade was the bench legislation in this case. The citizenship rights in the constitution were not written or otherwise intended to provide a right to abortions. Even the concept of privacy the decision was based on is inferred only from the statement "deprive any person of life, liberty, or property, without due process of law."
  - mywittyname 3y ago
    The constitution doesn't enumerate every right a citizen has. It's a framework for judges (and congress) to determine what laws can and cannot be applied to citizens. The right to abortion was ruled to be protected by the 4th amendment. While this case is held up as being the legislating from the bench case, it's really not. We don't generally pass laws that make something legal, except as exceptions to other laws. Saying that government access to a person's medical records is protected by the constitution is exactly the function of SCOTUS.
    - lolinder 3y ago
      Justice Ruth Bader Ginsburg would have disagreed with you there, and I think she's more qualified than you to comment on the function of the Court: > Casual observers of the Supreme Court who came to the Law School to hear Justice Ruth Bader Ginsburg speak about Roe v. Wade likely expected a simple message from the longtime defender of reproductive and women’s rights: Roe was a good decision. > Those more acquainted with Ginsburg and her thoughtful, nuanced approach to difficult legal questions were not surprised, however, to hear her say just the opposite, that Roe was a faulty decision. For Ginsburg, the landmark 1973 Supreme Court decision that affirmed a woman’s right to an abortion was too far-reaching and too sweeping, and it gave anti-abortion rights activists a very tangible target to rally against in the four decades since. > “My criticism of Roe is that it seemed to have stopped the momentum on the side of change,” Ginsburg said. She would’ve preferred that abortion rights be secured more gradually, in a process that included state legislatures and the courts, she added. Ginsburg also was troubled that the focus on Roe was on a right to privacy, rather than women’s rights. https://www.law.uchicago.edu/news/justice-ruth-bader-ginsburg-offers-critique-roe-v-wade-during-law-school-visit https://www.law.uchicago.edu/news/justice-ruth-bader-ginsbur...

Yep. Roe vs. Wade was one of the most egregious examples of "legislating from the bench" in the latter 20th century? How many people who would hand-wring over recent SCOTUS decisions oppose Roe on these grounds? Or is this a convenient exception? Griswold? How about Lawrence vs. Texas?

mehlmao 3y ago
Please explain how Henry Wade could enforce the overturned Texas Penal Code statutes without violating the constitutional right to privacy.
- Aunche 3y ago
  In the right to privacy is so broad that it applies to abortion, it should also apply to self-medicating yourself with narcotics. I'm not saying that decriminalization of drugs is a bad thing, but it's something that obviously shouldn't be decided by the Supreme Court.
  - yanderekko 3y ago
    Yep, and if it applies to abortion, why not third-trimester abortion? Why is that relevant to a privacy interest? Where is the right to privacy in the Constitution, btw? Sounds like the whole thing is legislating from the bench! Maybe we should bring back Lochner-style scrutiny of minimum wage laws under a newly-discovered "right to earn a living"?
    - dragonwriter 3y ago
      > Where is the right to privacy in the Constitution, btw? People inevitably making this argument was actually the primary argument against adopting a Bill of Rights at all, and the Ninth Amendment was the compromise solution to have some enumerated rights while hoping to negate this exact argument.

ericmay 3y ago

Right, like how the SCOTUS rejected the Independent State Legislature theory case. Some people were like "we really shouldn't be legislating from the bench", but when the SCOTUS overturned Roe v Wade they cheered it on.

ellisv 3y ago
How was rejecting ISL was legislating from the bench?
JustBreath 3y ago
> Some people were like "we really shouldn't be legislating from the bench", but when the SCOTUS overturned Roe v Wade they cheered it on. That's internally consistent. Roe V. Wade was the bench legislation in this case. The citizenship rights in the constitution were not written or otherwise intended to provide a right to abortions. Even the concept of privacy the decision was based on is inferred only from the statement "deprive any person of life, liberty, or property, without due process of law."
- mywittyname 3y ago
  The constitution doesn't enumerate every right a citizen has. It's a framework for judges (and congress) to determine what laws can and cannot be applied to citizens. The right to abortion was ruled to be protected by the 4th amendment. While this case is held up as being the legislating from the bench case, it's really not. We don't generally pass laws that make something legal, except as exceptions to other laws. Saying that government access to a person's medical records is protected by the constitution is exactly the function of SCOTUS.
  - lolinder 3y ago
    Justice Ruth Bader Ginsburg would have disagreed with you there, and I think she's more qualified than you to comment on the function of the Court: > Casual observers of the Supreme Court who came to the Law School to hear Justice Ruth Bader Ginsburg speak about Roe v. Wade likely expected a simple message from the longtime defender of reproductive and women’s rights: Roe was a good decision. > Those more acquainted with Ginsburg and her thoughtful, nuanced approach to difficult legal questions were not surprised, however, to hear her say just the opposite, that Roe was a faulty decision. For Ginsburg, the landmark 1973 Supreme Court decision that affirmed a woman’s right to an abortion was too far-reaching and too sweeping, and it gave anti-abortion rights activists a very tangible target to rally against in the four decades since. > “My criticism of Roe is that it seemed to have stopped the momentum on the side of change,” Ginsburg said. She would’ve preferred that abortion rights be secured more gradually, in a process that included state legislatures and the courts, she added. Ginsburg also was troubled that the focus on Roe was on a right to privacy, rather than women’s rights. https://www.law.uchicago.edu/news/justice-ruth-bader-ginsburg-offers-critique-roe-v-wade-during-law-school-visit https://www.law.uchicago.edu/news/justice-ruth-bader-ginsbur...