Roberts Collides With Himself On Abortion

220px-File-Official_roberts_CJ_croppedBack in March, I wrote that Chief Justice John Roberts appeared to be on course for a collision with himself over abortion. Yesterday, he collided in a spectacular way. Due to my testimony in Congress on the Lafayette Park case, I was unable to share the opinion.

In the earlier column, Chief John Roberts Is Heading Down Collision Course With Himself, I wrote:

“Roberts will have to vote on a Supreme Court that can clearly deliver a victory for states’ rights and pro-life advocates. There are technical “off ramps” with both cases, but he will have to work hard to evade this clear vote. Clarity is something that Roberts likely does not relish in either area. On both ObamaCare and abortion, he would have to reject his own prior analysis to vote against the position of his conservative colleagues. So conservatives may not like the new destination of the chief justice if he decides to jump the track on both of his prior opinions.”

He hit himself on Monday in voting to strike down virtually the identical law that he declared constitutional in 2016 in a Texas case.  He cited the importance of stare decisis and respecting precedent but there has been a long debate over the importance of that doctrine when it comes to constitutional interpretation.  Some of us have long maintained that constitutional interpretation should be given added weight over institutional norms in such conflicts.

Roberts insisted that his earlier constitutional judgment would be set aside to follow precedent: “I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided. The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case.”

Roberts is the ultimate institutionalist who resists sweeping changes from the Court, particularly with great social impacts. His vote to save Obamacare from being struck down in its entirety is an example of that pattern.  His vote effectively gutted the very federalism principles that he embraced in the opinion.  Moreover, his vote in 2016 would have arguably changed precedent but he was one of a minority of members.  Now that he held the majority vote, he adopted the inverse position.

In fairness to Roberts, it is rare to have two similar statutes comes before the Court in such a relatively short time.  Roberts may have recoiled at the image of the Court careening from one side to the other based on the addition of a single member.  

I have discussed how stare decisis is more often cited in dissent or in a completely hypocritical way by politicians. Everyone insists on following precedent that they agree with while demanding the reversal of other cases.  When it comes to constitutional interpretations, I believe a justice is bound by the Constitution to rule consistently with what he or she believes the Constitution mandates.  Otherwise, justices seem to have a fluid concept of when precedent is worth preserving and when it can be ignored.

Whether it was sticker shock or stare decisis, time will tell.

Here is the opinion: June Medical Services v. Russo

82 thoughts on “Roberts Collides With Himself On Abortion”

  1. This of course sounds very strange. In general, all people have different opinions about abortion, some consider it the norm, and some oppose it. I read about them on the papersowl service and I can say that there are also different opinions on this topic. There is no ambiguity.

  2. Let’s give Chief Justice Roberts his due: he’s quite an accomplished alchemist for it takes a rare conjuror indeed to transform stare decisis into spineless decisis.

  3. A pundit said today that maybe we should replace Groundhog Day with Republican Senators Day. How can they see their shadows if they have no spine?

  4. Dozens of judicial misconduct complaints were filed against Kavanaugh after his confirmation hearings (https://www.uscourts.gov/courts/ca10/10-18-90038-et-al.O.pdf ), many alleging perjury. I recall Kavanaugh testifying about precedent in his confirmation hearings, but he would have ruled against it here, and I’m now curious whether any of his testimony about it meets the perjury standard; I’ll have to go back and reread the transcripts.

    Re: “In fairness to Roberts, it is rare to have two similar statutes comes before the Court in such a relatively short time,” the conservatives on the court shouldn’t have voted to rehear the issue so quickly.

    1. The conservative Justices were hoping that Roberts would vote with them based on his vote with them in the 2016 case.

      But Roberts stayed consistent with his Senate testimony that he would uphold the rule of stare decisis.

      On the other hand, Roberts does seem to be inching toward the center with his Obama Care vote and this one. It is not unusual for Justices who seemed to be conservative before they got on the Court to turn toward the left. Justice Souter is a prime example of this. The dynamic is that once you get on the highest court, two things come into play: 1) Your life’s ambition has been attained and you now need only satisfy your own values. 2) You have a lifetime appointment which insulates you from politics and other outside pressures.

    2. It seems that the appeals court kind of forced the Supreme Court to rule because the appeals court did not follow the Supreme Court 2016 precedent. Leaving the inconsistent appeals court decision out there would not have been a good result. Roberts was correct to follow the 2016 precedent and the other conservatives should have followed his lead.

  5. ‘When it comes to constitutional interpretations, I believe a justice is bound by the Constitution to rule consistently with what he or she believes the Constitution mandates.’

    This defines perfectly the conundrum of a constitution; ‘what he or she believes’… Constitutions exist to stabilize the opinions of the moment. However, they are always interpreted. When a judge or justice finds him or herself in a quandary, for any reason, they refer to precedent. Regarding constitutional matters, when a judge or justice wants to avoid making a difficult decision, they refer the matter to ‘state’s rights’. Scalia did it with the second amendment. This escape clause is what it is, a get out of an impossible situation free card. Roberts did it with Texas but then was forced by his conscience to actually address the issue. The issue is one evil that is lesser than another. The lesser evil is to allow abortions to protect women and women’s rights. Both decisions are evil. The matter will never go away but it can be reduced as regards instances if the right anti abortion side promotes social education regarding sex and free and easy access to early interruptions of pregnancies. The primary cause of the argument is abortions. The primary cause of abortions is unwanted pregnancies. The primary cause of unwanted pregnancies is ignorance and moral stupidity. Those who think that simply by passing a law, mindlessly, they can fix a problem are the primary part of the problem. It’s all about reducing, managing, and realizing that is the most that can be achieved.

  6. The Second Amendment. Gun rights. The militia is one ground. The right to defend ones home with a rifle is another. The media is pounding on the couple in st. Louis who defended themselves from a mob.

    1. Liberty2nd – Fredo was interviewing the homeowner and his attorney (I think) and the owner got the killer shot in when he said “There is no way you can get to the mayor’s house down this private street.”

      1. but the fake news doesnt care about the truth do they.

        they let st louis burn, retired police chief dorn was murdered by thugs; what do they expect any sane man to do? surrender? screw that.

        1. Mr Kurtz – I would really like to know where the mob went after it left the first house, because there are a row of houses. Did the cops finally show up? Did the private security show up? Did more home owners roll out armed? All the video ends at the first house. That is suspect.

    2. Liberty, the problem is there is nothing on the constitution that states one has a right to defend their home. The 2nd amendment isn’t about an individual right. It’s about a state’s right. When the constitution involves rights to individuals it addresses it to “persons”. When it involves a state. It refers it to “people”. Like the people of Texas, the people of Virginia, etc. Since it’s about a state right it makes sense that a state itself is the only authority that determines if individuals have a right to bear arms within their borders. Each state was seen as an individual sovereign entity within a small federal government.

      1. the problem is there is nothing on the constitution that states one has a right to defend their home.

        Correct me if I’m wrong, but you seem to believe the people receive all rights and the power to secure them at the constitutional will of government. Are you aware the constitution is written to limit what the government has the power to do, not what the people have the power to do? When conservatives argue about limited government, this is the limit we are talking about. If it doesn’t say government has the power to be the sole defender of our natural right to life, liberty or property, then the individual retains full power to the security of those rights. The 9th and 10th amendments reinforce this principle about the limits of government. The Bill of Rights in total were written to reinforce what was already implied in the constitution. Fundamentally, our system was designed for power to flow from the people to the states and the federal government. If you believe it to be the other way around, then the only thing standing between you and chains are folks like myself who are committed to defending your natural rights, whether you want them or not.

        1. Olly,

          “ Correct me if I’m wrong, but you seem to believe the people receive all rights and the power to secure them at the constitutional will of government”.

          You’re wrong. Remember our government is a government by the people for the people. WE granted ourselves these rights. The first word in the constitution is “We”. Meaning all of us. Correct?

          So being that WE consented to give ourselves thru OUR government the power to guarantee these rights.

          The power flows from the people…thru chosen representation. Those we chose to represent us are empowered to decide rights, laws, punishments, etc.

          The constitution doesn’t explicitly imply individuals have a right to bear arms. The 2nd amendment is a right of a state to maintain a well regulated militia, and the federal government is not to infringe on that right. Limited government was about limiting the federal government. Remember states individually each had their own military outfits (militias) to protect their own interests. At the time there was no national army. Only state militias. The 2nd amendment was designed so the federal government at the time couldn’t infringe on their right to have their militias.

          States themselves were not prevented from making individual right to bear arms a right granted by the state.

          1. WE granted ourselves these rights.

            WE didn’t grant ourselves rights. WE have certain rights merely because we exist.

            So being that WE consented to give ourselves thru OUR government the power to guarantee these rights.

            WE consented to establish government to secure these rights.

            Those we chose to represent us are empowered to decide rights, laws, punishments, etc.

            Again, they are empowered to secure rights that existed before government existed and to create positive rights and laws that we have a responsibility to follow.

            The 2nd amendment was designed so the federal government at the time couldn’t infringe on their right to have their militias.

            A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

            The actual text doesn’t say at this time, or until we have a standing army, or until such time as a police force is created. It describes the power of the states to form it’s own security force and the right of the people to keep and bear arms shall not be infringed.

            States themselves were not prevented from making individual right to bear arms a right granted by the state.

            The state does not grant this right. Their only purpose is to secure this right. They do have the legitimate power, by our consent, to disable some or all of this right for people that have violated certain laws that threaten the security of the people.

            1. “WE didn’t grant ourselves rights. WE have certain rights merely because we exist.”

              Rights are a human construct. They didn’t spring into being when our species, H. sapiens, first evolved hundreds of thousands of years ago; the concept arose much later in our existence on the planet, and there’s disagreement across people — both within countries and across countries — as to what rights people have. Agreed that governments secure rights.

              1. Rights are a human construct.

                Sure. As much as the concept that the earth is not flat and that it revolves around the sun.

                and there’s disagreement across people — both within countries and across countries — as to what rights people have.

                That is absolutely true. And if government can convince enough people that all their rights come from government, then the people lose any security of rights. That doesn’t mean government will necessarily take them away. It means if they did, the people have no justification to have them restored. And as history has proven time and again, this is how revolutions happen.

                1. The earth and the sun are physical entities that exist whether or not humans exist. The motion of the earth around the sun exists whether or not humans exist. The shape of the earth exists whether or not humans exist. None of those facts — the existence of the earth and sun, the motion and shape of the earth — are human constructs; however, our human understanding of these things (e.g., planets, stars, shape, motion) does involve human constructs, and for a long time, we misunderstood them, and there are still things for us to learn about them.

                  Rights, however, are not physical entities like the earth and the sun, so your analogy simply doesn’t work. Rights don’t exist whether or not humans exist; they depend on us for their existence. Rights didn’t even exist for a long period after we evolved.

                  Saying that rights are a human construct doesn’t imply that they come from the government.

                  1. Rights don’t exist whether or not humans exist; they depend on us for their existence.

                    Here’s how the analogy is appropriate. When I talk about the physical characteristics of our universe, or about what rights we have as human beings, all of it requires an understanding of what nature has provided us. Until it was discovered the earth was not flat, it was flat according to our understanding. We behaved according to our understanding. We behaved according to our degree of ignorance.

                    Until the Age of Enlightenment (AoE), it was determined that rights were what we were allowed to have according to whoever had the power. This idea was reinforced in more civil societies as the divine right of kings. The AoE brought us the understanding that we have certain rights not given to us by humans, but by our mere existence. Our nation was founded on that principle. Western civilization, for the most part, respects that principle. There is one thing that has never changed however and that is human nature. It doesn’t naturally respect things well established such as gravity, or rights. Nature has a way of weeding out those that try to defy its laws.

                    Regarding rights, if they were secure in nature, no government would be necessary. But our human nature has proven to be a greater threat to those rights outside of civilized society, than inside it. So we established a government to secure those rights. And we will maintain that government according to our degree of ignorance. If we as a culture no longer accept the understanding that we have rights that preexist government, then we have essentially regressed to a darker age. We will suffer that ignorance until the time we have once again accumulated enough grievances to alter or abolish the existing government.

                    1. The Age of Enlightenment isn’t the end-all. Many people believe “that we have certain rights not given to us by humans, but by our mere existence,” but that belief is still a matter of widely shared opinion that depends on our existence, not a factual matter like the existence of planets, etc., which precede our existence and will continue if we become extinct.

                      I simply don’t buy your attempt to treat things as analogous that aren’t, as with “[Human nature] doesn’t naturally respect things well established such as gravity, or rights. Nature has a way of weeding out those that try to defy its laws.” There are no “laws of rights” analogous to “laws of physics,” where the latter — again — existed before us and will continue to exist later. The only laws involving rights are those created by people, and just like the word “bank” has more than one meaning, so does the word “law,” and it’s being used in two different ways here.

                    2. I simply don’t buy your attempt to treat things as analogous that aren’t,

                      I don’t care or need you to buy it. We happen to disagree on our source of rights. I believe in our founding principles as identified in the DoI and our constitution. And as of now, you have the right to believe anything you want. Right up to the time your government takes away the right they gave you.

                    3. LOL. My ability to have beliefs is a consequence of my having a function brain, not something derived from the government. Same thing for everyone else. That people can “believe anything [they] want” isn’t a right; it’s a biological fact as long as they have a functioning brain. The government has no control per se over our beliefs, though it certainly tries to influence people’s beliefs in diverse ways (e.g., via reports, tweets, speeches, ads, funding).

                    4. “Until the Age of Enlightenment (AoE), it was determined that rights were what we were allowed to have according to whoever had the power. This idea was reinforced in more civil societies as the divine right of kings. The AoE brought us the understanding that we have certain rights not given to us by humans, but by our mere existence”

                      I take a sort of commie view of this. The Enlightenment guys were in favor of stripping kings of their power so they could have it themselves.

                      Now that was a bigger group of people than the kings aristocrats and established church hierarchies– the enfranchised people of democracies– but built into their logic was a contradiction. there is a sort of equality among citizens but then there is a sort of inequality of money that was considered normatively OK and necessary.

                      I don’t disagree with property rights as a social institution, I am not a communist; but I agree with the communists that a rich man is not equal to a poor man. Obviously what George Soros thinks about Donald Trump is more important than what I think of Trump, because, Soros is a high up billionaire. Every one of my dollars equals one of his dollars, but he’s a got a lot more dollars and the sum sure are not equal to mine!

                      We have to get past this contradiction fast, not in the future but now, because Trump and his project of nationalism contra globalism, is under strong pressure from coordinated billionaire financiers who hate his guts. And ours too., They want to grind what remains of the American middle class down into the dust and even to erase our national boundaries and borders and privileges as such. That is globalism and it’s good for third world people who can move here and take our jobs, and its good for billionaires who plan on employing them. It’s not good for us.

                      We need to pierce the fog of Enlightenment propaganda about individualism and learn to act and coordinate our group social economic and political interests fast. Now’s no time to be a loner. The fastest way to get the picture is to understand that when they win, they will crush us, and there is no Jeffersonian Creator, no clever words on paper, that will stop them.

                      So in this way we need to understand as the post modernists do, that yes, “rights are a construct.” And we either keep them constructed to support our lives or they will be deconstructed and we will lose them.

                      In this way I would say, existence is the basis for rights– but only in the sense that our existence alone provides all the sufficient and necessary justification for our pursuit of our survival and flourishing,. in itself. We do not need to moralize our “rights” as being God given etc. Or good for the “humanity” or any other universalistic drivel. We protect our rights because we can and we will and they will know they are rights because our sword arm is strong enough to cancel those who would take them. It does come down to this.

                      And power, naked power, is exactly how the biggest political questions are answered, in war. War at times becomes civil war and revolutionary war. Such a moment may lie soon before us and we must fully understand how we will end up if we fail.

                    5. There’s a lot to unpack there. The Enlightenment guys were in favor of stripping kings of their power so they could have it themselves. Sounds reasonable until you have to reconcile their view on rights. You don’t have to be a communist to see that the wealthy have a distinct
                      advantage in nearly everything. Is there a legal system that has ever secured rights equally for all, that did not succumb to the power of wealth?

                      We need to pierce the fog of Enlightenment propaganda about individualism and learn to act and coordinate our group social economic and political interests fast.

                      Individualism is not propaganda. We are individuals before anything else. Understanding that promotes a strong desire for self-reliance. I agree with you that it doesn’t mean we should stand alone in this fight. So what’s your recommendation to get this group organized?

                  2. “My ability to have beliefs is a consequence of my having a function[ing] brain…”

                    Unfortunately not functioning well enough to catch all of my typos, though at least this one is amusing ; -)

                2. Olly,

                  “ Rights are a human construct.”

                  CTHD, is correct here. If rights are merely a result of our existence then there wouldn’t be a concept like slavery.

                  We created these rights to benefit a particular group which deemed itself privileged to have them as divine right. As rights GRANTED by a creator. So cannot agree that merely existing is the only reason we have rights.

              2. I agree rights are a construct that is to say an idea. They do however correspond not to arbitrary whims of the mob, but to the actual nature of mankind.

                So for example, property rights reward industry; and free speech stimulates ideas and creativity.

                But they are just ideas in the end. But ideas that matter.

                Government too is an idea. It is an idea of cooperation among the strong, to regulate force according to rules we call “law”

                What is the difference between a mob, a mafia, and a government? The government is the strongest. that’s the main difference. Legitimacy sure but power most of all.

                The rules of force laid down by government recognize rights, as ideas, and they are rules.
                An election or even a revolution or war can change the clique or form of government and the rights too.
                The point is rights can change if the government cancels them. Like it or not.

                So if you don’t like it you must be strong enough to win elections, wars, and revolutions. Win them with organized force, violence.
                This is Mao’s insight. Republicans need to ditch the failed Enlightenment tropes and go with Mao on this one, trust me, he was right.

                Right now, our government is weak and crumbling. There are factions attacking it, not just BLM but their paymasters. They want to grind us down as a legacy middle class population standing in the way of globalism. We either submit or we resist.

                So to resist we need to organized to be prepared to defend our rights presenlty, in coming months, then in November by election and then also in the next phase

                But remember the verse from a classic poem: “liberty has never been won/ except by deeds of war”

            2. Olly, “ WE didn’t grant ourselves rights. WE have certain rights merely because we exist.”. I can partially agree with this assertion. You’re right that we *secured* these rights. I was mistaken on saying they were granted.

              It is still a government that we consented to having the powers we complain about.

              I don’t fully agree that we have these rights merely because we exist. If that were true slavery wouldn’t have been accepted at the very beginning.

              “ It describes the power of the states to form it’s own security force and the right of the people to keep and bear arms shall not be infringed.”

              The phrase, “the right of the people to keep and bear arms shall not be infringed”. Has been twisted into the current understanding for a long time. It is not, “AND the right to keep and bear arms.” The phrase is still about the militias in a state. Not individuals.

              There were multiple debates about that amendment when it was first drafted and clearly they were not emphasizing the rights of individuals. It was about states having the ability to be secure in their own borders.

              1. Speaking of precedent: Heller would disagree with you about the second amendment not relating to individuals. You’re welcome to argue it until you’re blue in the face (no offense to blue-hued peoples intended), but Stare Decis is not in your favor on this point.

                1. He’s wrong but the main thing that secures the right to keep and bear arms are not courts–

                  they are the ARMS OF MEN which bear the arms and are willing to use them, effectively, not one by one, but in a group, to secure power

                  remember that. that will always be the bottom line. physical violence. you see the protesters do their riot because they are proving that violence works

                  remember that lesson., violence works. the protester-rioters are proving the point clearly,. do not fail to understand.

                  but it must be organized and effective. if it is the most organized and effective, then it “wins” the brass ring of government power

                  conservatives, republicans. Ditch all the enlightenment mumbo jumbo. This all comes down to who is stronger and more organized and bold, in the end.

        2. Nonsense. Without government there would be no ‘people’. The second amendment was written to protect the people’s right to regulate their defense, ie. govern their defense. It stipulated that it would be in the form of a well regulated militia or a well governed organized and government sanctioned group; sanctioned and governed by the state or the people. That an individual had the right to ‘bear’ an arm for hunting and protection was a given from the time the first colonist stepped ashore. The reason there is not one word in the second amendment that refers to the individual is because it was a given. Every document ever written by any country for thousands of years has always been to establish a governance of the people for the benefit of the people, that would not vary as do elected or otherwise chosen leaders. No government means chaos and anarchy. Of course, you can offer yourself and ‘folks like you’ up as an alternative; but then Idaho is waiting, but not for long. ‘Natural rights’ are only there because a well designed group of people governs or protects them.

          1. Nonsense. Without government there would be no ‘people’.

            That is nonsense. Without people, there would be no government. The former creates the latter, not the other way around.

      2. There are lots of unenumerated rights, per the 9th and 10th Amendments: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” “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.” The distinction between “States” and “people” there is also a counterexample to your claim that “When the constitution involves rights to individuals it addresses it to “persons.”

        1. CTHD, to me states and people in the constitution are synonymous terms user to define the body of the state.

          When the constitution implies specific rights to individuals it addresses it to persons. Meaning meaning individuals. The term people addresses the general population of a given state.

          I see three distinctions, the state referring to the governing body. The people the general population of a given state meaning a right applies to everyone, and persons when it involves a specific right cannot be applied to the general population due unique views of individuals.

          1. Svelaz, I don’t understand what you mean by “a specific right [that] cannot be applied to the general population…” Could you give an example of such a right?

            Seems to me that in talking about individual rights (rather than rights given to state or federal governments), the Constitution uses both “people” and “person(s).”

            For ex., Section 1 of the 14th Amendment — “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. … nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” — doesn’t have anything to do with a person’s views.

            1. CHTD, the 5th amendment specifies an individual, “ No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

              It certainly seems to imply that it applies to everyone, but it emphasizes an individual. Otherwise it would be worded as “the people shall not be held to answer for a capital….”

              Then there’s the 4th amendment, “ The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

              Here it makes a distinction between an individual “persons” instead of “people” and a state.

              1. Svelaz, there’s sometimes a distinction between “persons” (pl.) and “person” (sing.), but I think you’re reading something into the use of “people” vs. “persons” (both plural) that isn’t there. They just as easily could have written “The right of persons to be secure …,” except that they wanted to talk about being secure in one’s person (i.e., physical being) and for clarity’s sake chose to use “people” and “persons” rather than using “persons” for both (even though we’re capable of distinguishing different meanings of a single word, for ex,. if I said “the person entered a bank near the bank of the Mississippi”). Likewise, they could have said “nor shall any State deprive people of life, liberty, or property, without due process of law.” On the flip side, they could have said “the right of persons peaceably to assemble, and to petition the Government for a redress of grievances …,” but worded that as “people.” So yes, they’re sometimes talking about individual rights vs. collective rights, but I don’t think they’re consistently making that distinction by using “people” vs “persons.” Rather, they use both in contrast with state and federal government.

          2. CTHD, to me states and people in the constitution are synonymous terms user to define the body of the state.

            The states and people are different and separate entities from the federal government. All power, first and foremost, originates from the people. The states and the people created and empowered the federal government with constitutionally-limited power. The people also empowered the state governments with constitutionally-limited power. The 10th amendment specifies:

            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.

            As for representation, the states as an entity have the Senate and the people as an entity of the House.

    1. Quickening occurs in the middle of pregnancy. The vast majority of abortions occur before then.

    2. Thanks Darren. I had not heard that term before. Quickening can occur as early as 13 weeks, which would put that stage in the 1st trimester. Of course that matters little to those that see abortion as a reasonable alternative to individual’s taking personal responsibility over their reproductive choices.

      1. Elective abortions are a subset of “individual’s taking personal responsibility over their reproductive choices.”

        And the large variability in the timing of quickening for individual pregnancies (most often between 16-22 weeks, and which also varies with whether the woman has previously given birth) is one reason that it’s a poor choice for a legal distinction. It’s a holdover from a time when we knew less about prenatal development and when many fewer diagnostic tools were available.

        1. Now, videos of witnesses under oath show that not only did the abortion giant profit from the sale of fetal organs, but that Planned Parenthood and its business partner, Advanced Bioscience Resources (ABR), violated federal law that mandates a fetus born with a beating heart is a human being equally entitled to protections under the law.
          https://thefederalist.com/2020/06/30/under-sworn-testimony-planned-parenthood-officials-admit-infanticide-occurs-in-organ-harvesting/

          1. Our laws specify legal death in two ways: cardiopulmonary death and brain death. Just as it isn’t considered murder to remove organs after brain death from a donor’s body that has a beating heart, it wouldn’t be murder to remove organs from a just-aborted fetus with a beating heart if it hasn’t yet developed the kind of brain activity that determines brain death or if it lacks a brain (e.g., is anencephalic), as the fetus is legally dead despite having a beating heart.

            Do you object to the legal definition of death including brain death?

            I’ll add that David Daleiden was previously found to have deceptively edited his videos (e.g., the video shows a stillborn fetus but pretends that it’s an aborted fetus) and to have falsely claimed that video is from Planned Parenthood when it wasn’t. He’s lost at least one lawsuit related to his deceptive videos. It’s pretty easy to misrepresent testimony by cutting it out of context. If he were honest, he’d make the entire testimony available and then direct our attention to a specific part. If he doesn’t present the entire testimony, we don’t know whether it’s taken out of context. So you should be wary about giving that article and the videos much credence.

  7. Sitting with Kagan and Sotomayor when Roberts admits he’s wrong on the law has given him starry diseases.

  8. I told before many times the Republicans are fake opposition on a lot of things but very fake on abortion.

    When Newt had a majority he could have stripped article III courts of subject matter jurisdiction over abortion with a simple majority and the federal blackrobe tyrant judiciary would have been out of the picture and the matter left to the states as it had been before row. That’s all it took. But they didn’t do that and they never talk about it to the prolifers who are a sort of pet constituency that are not taken seriously.

    Listen not even Catholic priests are serious about abortion, They’re not even serious about the sacraments, look at how they all stood down and quit during the covid restrictions.

    This issue is not one we can vote on whatsoever. This should be clear. We need to focus on what can actually help the situation of we the living. Right now we got a bigger pickle to deal with than how many poor women can get abortions. See below link.

    But how could we restrict abortion now anyways since they can hand out big doses of female hormone that will induce abortions anyways? Can get them through the mail even if a state could prevent them from being prescribed.

    This one is going by the wayside. The leadership against it is fake and it’s not up to a vote anyways. Roberts has made it clear all over again. Forget about this and move on.

    Want an issue? Call your local Republican party turncoat who’s considering voting to ditch qualified immunity for cops and tell him to reverse course or he’ll be in big trouble. This is something really important to our law and order and it’s about to get screwed out from under us. Dont’ worry about something like abortion thats not up for vote worry about this.

    https://thehill.com/homenews/senate/503496-republican-rift-opens-up-over-qualified-immunity-for-police

    Smite them on this. If we don’t we will be very sorry. Act now, at least call their offices and complain for God’s sake. This one is a biggie.

  9. If Roberts thought that the issue was settled Law, why is he not railing against the decision to hear the case?
    Putting that issue aside, this disgrace to the Supreme Court is arguing that he would have upheld Plessy because no matter how unconstitutional it had to be respected as Stare Decisis

    This dolt is on the wrong side of too many Issues.

  10. “Roberts Collides With Himself On Abortion”

    – Professor Turley
    ______________

    I’m going to take a wild guess that the illustrious Justice Roberts has collided not only with himself but with God.

    Ten Commandments

    1. You shall have no other gods before Me.
    2. You shall make no idols.
    3. You shall not take the name of the Lord your God in vain.
    4. Keep the Sabbath day holy.
    5. Honor your father and your mother.
    6. You shall not murder.
    7. You shall not commit adultery.
    8. You shall not steal.
    9. You shall not bear false witness against your neighbor.
    10. You shall not covet.

    How in the world can a person who collides with God on essential law call himself a Chief Justice of the United States?

    I presume such a “collider” as Chief Justice would be appropriate only under totalitarian communism where there is no law, no justice and no God.

    Wait a minute. Is it possible that America is under totalitarian communism?

    No. That’s not possible.

    The invading parasitic consumers of generous state benefits and entitlements don’t covet, lie then steal, do they?

    1. George,

      “ How in the world can a person who collides with God on essential law call himself a Chief Justice of the United States?”

      The Chief Justice swore an oath with his hand on a bible to god that he would uphold the constitution. It was not an allegiance to god.

      He couldn’t rule against a law that was deemed unconstitutional because was identical to a prior law. He would have created a quandary that would put his court in danger of being politicized.

      1. Svelaz — “He would have created a quandary that would put his court in danger of being politicized.”

        I regret to inform you that that particular horse has been long absent from the stable. Llloooonnnngggg absent.

      2. The words “state” and “federal” collided in Roberts confused cranial vault when he “commingled” them with reference to the Obamacare “exchanges.”

        Either that or Roberts corruptly and deliberately usurped and abused power as he “legislated from the bench.”

  11. In days of old when knights were bold and rubbers weren’t invented….
    They tied a sock around the cock…
    And babies were prevented!

    1. At oral argument some guy complained about rates of babies and Roberts said: “Put a sock on it!”
      No one knew what he meant.

  12. Some of us have long maintained that constitutional interpretation should be given added weight over institutional norms in such conflicts.

    Isn’t this the fundamental purpose of SCOTUS, to make decisions over whether the established norms are constitutional?

    1. Olly —

      No, you’ve got it backwards. SCOTUS only exists to see which version of precedent they should use to decide cases. Actually, they were not created to write “decisions” per se: rather, to ensure that every case before them is bound by every single past case of similar circumstance. Indeed, oral arguments are simply a relic–a throwback to English law and similar nonsense. Instead of even scheduling cases, they really should just 1) accept every appeal, 2) find a similar case from the past, and then 3) post the outcome of that case and assume it applies to the present case. Notions such as “hearings,” “arguments,” “the Constitution” (which is really just a dog whistle for white supremacists and Repubtards), and “decisions” are out moded on their face and should be done away with altogether. Why bother listening to lawyers from both sides of an issue drone on and on and on, when it is immediately evident which side seeks to challenge the Rule Of Decisions Past and which does not. That’s why they’re called Justices instead of Judges. They don’t judge between “this” or “that.” They ensure that justice never wavers from the past. Duh!

      No! What we really need to invent is some venue positioned above SCOTUS who is better equipped to determine if past decisions were correct or not. A Super-Duper Mega-Supreme Court of the United States, or perhaps an Ultimate COTUS? It should, rightly, be very difficult for them to ever revisit past decisions. It should, even more rightly, be nigh-impossible to overturn past decisions. After all, how would SCOTUS ever be able to ensure every single unique case is bound to a uniform, immutable, traceable lineage of the past?

      1. For some reason my {sarc} … {/sarc} tags got eaten. I think I messed up and used angle brackets. Apologies if anyone thought that post was serious.

          1. Paul — No, not really. I just typed angle brackets >< in my post, but guess WordPress didn't like it very much. It prolly filters out certain HTML tags, and 'sarc' is definately not a standard-issue tag. 🙂

            1. kydave – I was so hoping. I usually have to put a winkie or a smilie so people understand it is not serious.

  13. john roberts twists himself into a pretzel AGAIN. When he did it with obambacare, everyone should have realized then that this guy either has a serious lack of integrity or skeletons in his closet. Either way, the guy has turned out to be a serious mistake, and history will bear that out.

  14. Roberts’ role mirrors the role Justice Kennedy played on Obergefell. There was no Constitutional position to be found on gay marriage,
    but, nonetheless, Kennedy went with a very pragmatic alternative to throwing marriage contract law into total disarray in the 50 separate states.

    I suspect Roberts has weighed the legal chaos that would be unleashed by walking back Casey and Roe. There is something to be said for order, which is why stare decicis carries so much weight. An orderly, predictable legal system is a responsibility of all high government officials.

    Going all the way back to Roe, the Court has been guided by bringing order to reproductive law — for instance, a punitive approach to outlawing abortion has always suffered from easy workarounds (e.g., going to Scandinavia or Canada for the abortion), and from who should be punished and how. The U.S. is not a country where it’s easy to send M.D.s to prison.

    1. gay marriage another matter we don’t get to vote on

      meanwhile the Republicans are chimping out getting weak and supporting and end to qualified immunity for cops

      america will be a very much more unsafe place if this crazy bill passes. first we must stop the turncoat enemies of the people who call themselves Republicans

      https://thehill.com/homenews/senate/503496-republican-rift-opens-up-over-qualified-immunity-for-police

      it will be riots unending if this thing passes. this is a big one. very big. dont worry about abortion tomorrow worry about this.

      1. Mr. Kurtz, the issue with qualified immunity is that it has been abused for too long. Even justices cleranceThomas states it needs to be revisited.

        When crooked cops know they can get away with abuses because of qualified immunity and years of abusing the privilege comes to a head it begs to be rethought.

        1. Svelaz – I am fine with looking at qualified immunity as long as we also include politicians and judges.

          1. You beat me to it Paul. As long as it exists in its current form, justice in this country will be tiered in favor of the state. I cannot imagine the founders ever intended to empower the government to be immune from prosecution, or at the very least, be held to a different standard of justice than that of the people.

            1. they always have been immune. it is integral to any form of government that its actors are immune, to one degree or another, acting within the proper scope of agency. the government does not punish itself.

              and it always has had ways to punish rogue actors

              qualified immunity is the contemporary form of that in the context of 18 USC 1983 lawsuits. It is a complicated subject but trust me, the government can cut loose an abusive cop and they do from time to time all around the country. there is no need to “revisit” this and make the police afraid as ever to do their jobs.

              do you want them all to quit? Then we’ll be out there facing down the mob like McCloskeys and hiring lawyers if we live past the drama long enough to be charged with crimes for exercinging rights of self defense.

              This is a very bad very bad idea. The trends in law are moving fast like earthquakes, right now, i feel the foundations lurching like a dog, i can feel it before you do. trust me this is going very very badly very fast now

              1. Kurtz,
                My agreement with Paul regarded addressing qualified immunity with respect to equal justice under the law. I agree that government entities need to have a degree of immunity to perform their lawful duties, but the system currently seems to enable immunity from prosecution and the sentencing guidelines for those violating their oaths.

                1. Olly, the reforms already happened. about the only thing they can do now is force cops to prove that they are innocent. burden shifting of evidence in cases is what is being planned. the burden will be shifted on to them., if this happens then thousands of police brutality cases that are not supported by evidence will suddenly become viable and eventually just screw the taxpayers

                  who will be stuck in the meantime with an ineffective police force that no longer keeps even a facsimile of law and order. they will not throw themselves into the fray anymore, sitting around wondering if they will end up in jail for pointing a gun at some criminal. they will stop doing the job. this idea is the worst one in the whole range, right up there with outright defunding police and disbanding ICE. Yes you can bet they will get rid of border guards too. After the chaos will come an invasion.

                  this will be a disaster. oh, this is a very bad time. we are on the precipice of a major failure in public institutions. this is all out of control now. it must stop and fast

                  1. You continue to direct your concerns regarding the police and the point Paul and I have brought up regards the political class. Any qualified immunity reforms must include the political class. They need reforming, not the police.

        2. qualified immunity is already qualified. it doesnt need to be revisited in the slightest bit

          actually we are running scared from a violent uprising. the government is weak and showing amazing incompetence just at defending its own existence.

          you stupid liberals have unleased dogs of what that can’t be called back. coddling this insurgency was a big mistake. you think you’re smart and it will just get rid of Trump; oh it probably will get rid of him but they won’t stop after that,. no way.

          the BLM guy on tv ysterday made it plan: GIVE IN TO BLM DEMANDS OR THEY WILL BURN DOWN THE SYSTEM AND REPLACE IT

          words to that effect. Now I have to add BLM to the terrorist list and not just ANTIFA. they are literally seeking to over throw the United States berfore your blind eyes

          I’m going to give you clueless liberals a little advice. Nobody will be safe if they get their way, nobody. and you are a lot vulnerable than me. you are vulnerable because of your naivete and your charity and your feckless ideals. you will not react fast enough in your own interests when the moment has come, and you see the chaos descends upon you personally, it will be too late. this has gone way too far way to fast. Republicans are zeros and didn’t unleash it in the first place. Democrat leadership and the rich boys did but if you think they will just stand down when you win in November, you are crazy. this dynamic won’t stop until it is PHYSICALLY STOPPED.

          Like this Democrat rep from Wisconsin who was attacked by ANTIFA mob. he just got out of surgery yesterday to fix his injuries, by the way

          https://www.nytimes.com/2020/06/24/us/tim-carpenter-wisconsin-senator-protest.html

          1. You get rid of qualified immunity how? oh i think i know what they have planned, in a nutshell:

            COPS GUILTY UNTIL PROVEN INNOCENT

            this can’t be allowed to happen. it must be resisted. Republican scum like Mike Braun who back it must be punished and the Democrats too.

            The police unions need to strike. It doesnt matter if it’s legal or not. None of this is legal.

            IF THEY GET RID OF QUALIFIED IMMUNITY THAN NOBODY DECENT WILL WORK AS A COP. THEY WILL ONLY BE ABLE TO HIRE LOSERS

            it will be a major step into the abyss. This is very dangerous. Police must acty to save America from this insanity by a massive walkout, strike, you name it.
            This will be dangerous for us all but this MUST be stopped

            Now or never– total incompetence lies beyond if it is not, which means, total corruption, a failing state, anarchy. this is very very bad

        3. Svelaz dont pretend you care for Thomas. You don’t. You’re not talking to a sucker here.

          And you are a clueless sort of liberal who prattles on about things he doesn’t understand. the very type who needs the police a lot more than I do. You are going to hoist yourself from your own petard if you keep at this insanity. You will find out the hard way.

          trust me, i can survive the coming chaos if you get your way; but can you?

    2. Re: “easy workarounds (e.g., going to Scandinavia or Canada for the abortion),” that workaround exists for the wealthy, but going to Scandinavia or Canada is not an “easy workaround” for the poor. And that’s a key problem with anti-abortion laws: the wealthy can always get around them.

  15. It’s wrong but just to appear consistent, I’ll stick with it. That’s not interpretation; its sophistry. Exactly like the earlier decision on DACA: its unconstitutional but you didn’t end it right, so on it goes as unconstitutional as ever.

    God, how do you get picked for SCOTUS? The winning ticket in a candy bar?

    1. Hear, hear!

      Oh look. Mr. Hamilton will have a few words on the bizarre behavior of one “Justice” Roberts.

      Alex? OK, Alex, go ahead.

      Ahem!

      “[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

      – Alexander Hamilton

  16. He said Whole Women’s Health was wrong but decided to adhere to it. What nonsense. How can he not be embarrassed in front of his colleagues?

    1. Prof Turley may feel that there was something dishonest in Roberts’ ruling in the new case because the Constitutional issue was so important that stare decisis should not apply to the 2016 decision. But every nominee for Justice of the Supreme Court testified in their Senate hearings that they would honor the rule of law by upholding precedential decisions (i.e., the principle of stare decisis). Further, the split among the Justices in both cases shows that the Constitutional question is not as clear cut as Turley suggests it is.

      When questioned specifically about Roe v. Wade in their Senate hearings, every Justice swore that they would uphold stare decisis. So, Prof Turley, wouldn’t you agree that any Justice who voted to overturn Roe would be acting dishonestly?

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