Court on a Hot Tin Roof: Airing Out “the Stench” from the Oral Argument Over Abortion

Below is a version of my column in The Hill on the statement of Justice Sonya Sotomayor on the “stench” of politics in the oral argument in Dobbs v. Jackson Women’s Health Organization, a challenge to the Mississippi abortion law. The statement seemed directed at Sotomayor’s three new colleagues and the effort to use the new court composition to seek the reduction or overturning of Roe v. Wade.

Here is the column:

In Wednesday’s Supreme Court oral argument in Dobbs v. Jackson Women’s Health Organization, Justice Sonya Sotomayor got a whiff of something she did not like. She said many abortion opponents, including the sponsors of the Mississippi abortion law at issue, hoped her three new colleagues would allow for the reversal or reduction of Roe v. Wade. With Justices Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett listening, she asked, “Will this institution survive the stench” created from such political machinations — and then answered: “I don’t see how it is possible.”

Of course, when justices begin to declare their disgust at the very thought of overturning precedent, there is another detectable scent in the courtroom. Indeed, it felt like a scene from Tennessee Williams’ play, “Cat on a Hot Tin Roof.” The only thing missing was the play’s central character, “Big Daddy” Pollitt, asking: “What’s that smell in this room? … Didn’t you notice a powerful and obnoxious odor of mendacity in this room? There ain’t nothin’ more powerful than the odor of mendacity.”

Justices Sotomayor and Stephen Breyer insisted that overturning Roe in whole or in part would bring ruin upon the court by abandoning the principle of stare decisis, or the respect for precedent. Yet neither showed the same unflagging adherence to precedent when they sought to overturn conservative doctrines. Notably, Sotomayor pointed out another allegedly “political” decision in the court’s recognition of an individual right to bear arms; she and Breyer both indicated a willingness to overturn the ruling in that case, District of Columbia v. Heller. After that decision, both continued to dissent and arguing that “the Framers did not write the Second Amendment in order to protect a private right of armed self-defense.” Indeed, they may reaffirm that position this term.

Sotomayor’s nose for judicial politics was also less sensitive when she recently called upon students to campaign against abortion laws — a major departure from the court’s apolitical traditions. After telling the students that “You know, I can’t change Texas’ law but you can and everyone else who may or may not like it can go out there and be lobbying forces in changing laws that you don’t like.” She added: “I am pointing out to that when I shouldn’t because they tell me I shouldn’t.” That was more than a whiff of politics, but the same legal commentators applauding her “stench” comment were entirely silent in condemning her direct call for political action on abortion. There also were no objections to the stench of politics when the late Justice Ruth Bader Ginsburg publicly opposed a presidential candidate.

They are not the only figures showing such selective outrage. During the confirmation hearing for Justice Kavanaugh, Sen. Sheldon Whitehouse (D-R.I.) demanded that Kavanaugh promise to respect stare decisis on cases like Roe, but then called for overturning cases like Citizens United v. Federal Election Commission. Democratic groups often decry the conservative majority as “partisan” while demanding the packing of the court to guarantee an immediate liberal majority.

On Wednesday, Kavanaugh and other justices balked at claims that Roe is somehow untouchable due to the passage of 50 years. The 1896 ruling of Plessy v. Ferguson was overturned in Brown v. Board of Education of Topeka, roughly 58 years after it was written; the court ruled that its Plessy decision was egregiously wrong — one in a long list of reversals celebrated today. This includes Lawrence v. Texas, which overturned prior precedent allowing the criminalization of homosexual relations.

There is a major difference, though, between the oral arguments in Brown and those in Dobbs. In Brown, the court had extensive discussion of the constitutional foundation for the “separate but equal” doctrine; in the oral argument on Dobbs, there was comparably little substantive defense of the analysis in Roe or its successor case, Planned Parenthood v. Casey.  Indeed, the thrust of much of the pro-choice argument was that, even if Roe was incorrectly decided, it takes more than being wrong to overturn such an “established” precedent.

When it was released, Roe was widely ridiculed as being extraconstitutional and excessive. That includes some who are now calling to pack of the Court criticized Roe. For example,  Harvard Professor Laurence Tribe objected  that “behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”

Even Justice Ginsburg once criticized it, declaring: “Roe, I believe, would have been more acceptable as a judicial decision if it had not gone beyond a ruling on the extreme statute before the court. … Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.”

In the Dobbs hearing, Roe was the opinion that many wanted to preserve but few seemed willing to defend. Part of the problem is that Roe died long ago. In Casey, the Supreme Court gutted Roe and adopted a new standard barring state actions that impose “an undue burden” on abortions. So it is hard to tell what precedent is being defended as “established” beyond a de facto right to abortion. Moreover, Casey was a mere plurality, and the court has often split 5-4 on later abortion cases.

While defending abortion as a “liberty interest,” efforts to explore the actual basis for Roe were largely brushed aside. Even when justices tried to push pro-choice advocates to defend the key “viability” standard, counsel defended it as a “principled” or “workable” line but did not actually say how it was constitutionally compelled. That seems odd, since this case is about whether Mississippi can impose a 15-week limit. (The United States is one of only seven among the world’s 198 countries that allow abortions after 20 weeks.)

It appeared particularly frustrating to Chief Justice John Roberts, who finally stated: “Viability, it seems to me, doesn’t have anything to do with choice. If it really is an issue about choice, why is 15 weeks not enough time?” He never received an answer, and the pro-choice counsel effectively declined to offer a meaningful alternative test when it was repeatedly requested by the justices.

Likewise, rather than defending the analysis underlying Roe, most legal commentators prefer to attack justices as ideologues for questioning such “established precedent.” Even Sotomayor portrayed the arguments against abortion as little more than a “religious view,” a statement that is wildly off-base and ignores the many secular critics of Roe as a legal case or of abortion as a medical practice. Others picked up on that theme, and one law professor demanded that Barrett recuse herself because of her own religious beliefs. It was a continuation of the disgraceful attacks on Barrett’s faith during her confirmation hearing by senators like Dianne Feinstein (D-Calif.).

That is the problem with both politics and mendacity: They are a stench that one tends to smell only in others — and tends to be more pungent when one is in dissent.

There is no problem with changing one’s rationale for reproductive rights, or even changing one’s views on constitutional interpretations; that is part of honest intellectual development. However, the mere fact that a case is constitutional precedent — or even “super precedent,” according to some — is no substitute for constitutional principle.

Breyer and Sotomayor are known for often profound, detailed opinions. I expect both will ably defend reproductive rights in Dobbs, even if they do not defend the actual analysis in Roe. But Roe should stand or fall on constitutional merits — not on feigned outrage over changing constitutional precedent.

209 thoughts on “Court on a Hot Tin Roof: Airing Out “the Stench” from the Oral Argument Over Abortion”

  1. Here’s an idea: if you don’t want to be hated, then don’t give people a reason to hate you. Freedom of conscience means that people have a right to hate you.

  2. Viability has nothing to do either with the concept of a woman’s choice or with the state’s interest in potential human life. It is simply a line the court drew because it wanted to draw a line. Roberts seems to want to draw a new line based on the amount of time he thinks is needed for a woman to have an effective choice. Whether this is what he will ultimately decide, and if so whether he will be able to persuade one of the five others that drawing a line is necessary because a woman has a constitutional right to make a choice, is hard to say.

    The argument that Roe is a watershed precedent that can’t be overturned is weak. Plessey was at least as significant as Roe. As Alito argued, once five justices thought it was wrong, and a case came before them, they should have overturned it. I think Heller is wrong, because I believe the court incorrectly delinked the first clause from the second. I think the court should overturn it as soon as five justices believe it was wrongly decided. Would any of the “liberal” justices who believe it was wrongly decided nonetheless vote to retain it merely because the “conservative” justices characterise it as a watershed precedent to which special rules apply? Certainly not.

    Like all of the court’s decisions, Roe/Casey should stand or fall on its constitutional merits, not on some arbitrary view of its political or social significance.

  3. If you want your militia to be well-regulated, the commissary should stock plenty of prune juice.

  4. stare decisis if applied to all cases means things like segregation and Dred Scott would have lived on for ever.

  5. Anonymous,

    I don’t receive email notifications either for the same reason.

    Notwithstanding Darren claiming- in a fit of pique- that he would no longer heed my requests, it seems he removed Bogeyman’s uncivil remark at my urging:

    https://jonathanturley.org/2021/11/28/rittenhouse-should-pay-for-his-crimes-asu-students-demand-the-expulsion-of-kyle-rittenhouse/comment-page-3/#comment-2140064

    On the other hand, it would appear that Darren does not believe that this anti-Semitic and racial slur is sufficiently uncivil as it has NOT been removed:

    https://jonathanturley.org/2021/11/28/rittenhouse-should-pay-for-his-crimes-asu-students-demand-the-expulsion-of-kyle-rittenhouse/comment-page-3/#comment-2140055

    Apparently, Darren thinks it is not sufficiently uncivil for a presumably white Christian to scapegoat blacks and Jews.

    I don’t have time to engage other blogs. I cannot adjudge whether Darren is doing an adequate job since I can’t keep track of which comments he removes and who he bans. Needless to say, there is an abundance of hatefulness here and his is an unenviable job. I was nonplussed when these 3 hateful slurs were posted. I jumped the gun by accusing Darren for not removing the comments quick enough. I did apologize for doing so though I conditioned my apology provided that he saw fit to remove them. I suppose 2 out of 3 is not bad, but truly the “Jews and blacks” remark is intolerable. I’m shocked that Darren did not remove it. I’ve got a good mind to email Turley, but that would only antagonize Darren. As it is, I fear that I’m already on double secret probation for chastising him publicly. I don’t want to push my luck.

    I can’t believe that Turley and Darren desire an uncivil blog, but you can’t expect civility from a bunch of lying Trumpists! I emphasize *lying* because they lie that the election was stolen. And when you never relent shaming a Trumpist for his lies, it stands to reason he will strike out in an uncivil manner. Too bad. There is no impunity for those spreading the Big Lie.

    The problem for Turley is the plethora of Trumpists drawn to his blog. While he allows them to freely speak their minds, he cannot be proud of the caliber of people that follow his blog! I fantasize him throwing a meet-and-greet at GW for his followers to attend! Can you just imagine?

    I suspect Turley refuses to engage with his blog for the same reason he pretends to be oblivious of the commentary of his Fox colleagues. It allows him plausible deniability of his knowledge of the kind and extent of the bigoted attitudes among his followers. For a man who is decidedly a Never Trumper, it is ironic that his blog is inundated with MAGA and Q-Anon followers. No doubt due to his overtly vilifying Leftist media in a bid to defend his employer from their attacks. I would understand his doing so were he engaged in an attorney client relationship. However, he holds himself out as an objective legal analyst; otherwise, he is of no commercial value to Fox. Fox is relying on the perception that even an impartial *liberal* analyst supports their legal bona fides of a given storyline!

    Unfortunately, Turley is proving himself to be a hack because he will never criticize Fox and will not even point his finger at Newsmax or OAN! It is indefensible which explains why- like all propagandists on Fox, he will not sit for an interview with a hostile interviewer because he would be embarrassed by their tough questions.

    1. …there is an abundance of hatefulness here… — jeffsilberman

      And you make generous contributions to it, Jeff.

      …you can’t expect civility from a bunch of lying Trumpists! I emphasize *lying* because they lie that the election was stolen. And when you never relent shaming a Trumpist for his lies, it stands to reason he will strike out in an uncivil manner. — jeffsilberman

      You’ve accused me of being a liar and “Trumpist” when I am neither. Is that civil behavior, Jeff?

      Are blanket accusations that other posters are “a bunch of lying Trumpists” when any merely disagree with your comments civil behavior? Yet here you are complaining, yet again, about Darren not reacting fast enough to your hall monitor civility infractions against other posters.

      You decry hatefulness in others while ignoring your own.

      I’ve got a good mind to email Turley, but that would only antagonize Darren. As it is, I fear that I’m already on double secret probation for chastising him publicly. I don’t want to push my luck. — jeffsilberman

      What right have you to chastise Darren for any reason? Is it his duty to endure your incivility?

      I don’t have time to engage other blogs. — jeffsilberman

      One can only wonder why, if …there is an abundance of hatefulness here… which offends your delicate sensibilities.

      1. Spanky says:

        “You’ve accused me of being a liar and “Trumpist” when I am neither. Is that civil behavior, Jeff?”

        I asked you whether you believe the election was stolen on account of massive voter fraud. You have evaded answering my question. Yes or no?
        If yes, you are a lying Trumpist in my book. That is not a hateful statement but an accurate one.

        You say:

        “Are blanket accusations that other posters are “a bunch of lying Trumpists” when any merely disagree with your comments civil behavior?”

        I stand by my generalization that the great majority of contributors here are supporters of Trump, and they dishonestly deny that he is a chronic liar.

        You say: “You decry hatefulness in others while ignoring your own.”

        I don’t hate Trumpists; I pity them.

        You ask: “What right have you to chastise Darren for any reason? Is it his duty to endure your incivility?”

        I don’t need a right. I’ve got a mouth, and I use it to speak freely on this blog. Darren owes me no duty whatsoever. He owes a duty to Turley, and Turley undoubtedly would like to be informed if Darren is failing in his duty.

        I am offended by racism, anti-semitism and calls for violence as is Turley who instructs Darren to remove such hatefulness. I’m not surprised that you are not likewise offended.

        1. Jeff, you are consumed with obsessive hatred, and are usually quite uncivil on this blog. Your demanding that Turley and Smith bend to your wishes, or even notice your comments, is absurd. Turley doesn’t read the comments at all, so your constant scolding of him does not impact his day in any way. If you emailed a public figure like Turley, it would probably get filtered out by an administrative assistant and never see his desk.

          This is a free speech blog. Word Press filters out curse words, and more than 2 links at a time.

          If all incivility were excised from this blog, then nearly all your communications would be culled. Yet it appears that you desire tolerance for your own bad behavior, but heightened censorship of others.

          Do you really not comprehend how ludicrous is your position, constantly complaining that Turley and Smith are not performing their voluntary jobs as well as you’d like? That Turley doesn’t stay up at night after work writing blog content you want him to, and that you cannot control Darren?

          The problem is entitlement. You feel entitled to dictate what Turley writes about, and which comments Darren cuts, while remaining untouched. People, including you, say rude, terrible things every day. It’s a free speech blog. Censors only like censorship when they can control the outcome. Neither Turley nor Darren owe you anything. You should feel grateful that even though you make disparaging, often libelous remarks about Jonathan Turley and Darren, you are still free to post here. Because it’s a free speech blog.

          1. Karen says:

            “If all incivility were excised from this blog, then nearly all your communications would be culled.”

            Let’s see if you find these comments uncivil.

            You say:

            “Your demanding that Turley and Smith bend to your wishes, or even notice your comments, is absurd.”

            I don’t. I don’t flatter myself.

            “Yet it appears that you desire tolerance for your own bad behavior, but heightened censorship of others.”

            I insist upon an enforcement of the civility rule. That is what we all should expect. You apparently don’t.

            You say:

            “People, including you, say rude, terrible things every day.”

            Calling Trumpists “liars” is not rude when it is true.

            You say:

            “Censors only like censorship when they can control the outcome. Neither Turley nor Darren owe you anything.”

            I have said so repeatedly. Either you have missed my comments or you are lying. I have said Darren owes his duty to Turley not me. I am just pointing out where Darren has failed Turley, not me.

            You say:

            “You should feel grateful that even though you make disparaging, often libelous remarks about Jonathan Turley and Darren, you are still free to post here.”

            I am grateful to Turley. I praise him. Unlike you, I don’t believe he is a Trumpist. I believe he is a Never Trumper. Turley would be mortified to learn that so many of you Trumpists believe that he supports Trumpism. He doesn’t. He believes in law and order and honesty. I would love to see Turley and you Trumpists in a room discussing politics! That would reveal the huge ideological and moral gulf between people like yourself and him.

            I do not libel Turley. You would know that if you were an attorney. I give an opinion. Opinions are generally not subject to defamation lawsuits. When I accuse Turley of selling out to Fox News in tailoring his commentaries to disparage Fox’s cable competitors to the commercial advantage of his employer, I am not stating a fact; rather, I am giving you my opinion of his motivation.

            Instead of accusing me of being an ingrate and a libeler, why don’t you explain why Turley NEVER criticizes “advocacy journalism” at Fox, Newsmax and OAN but ONLY at CNN and MSNBC?

            You WON’T because the answer is obvious. You just ignore my criticism.

            1. Jeff writes: “I do not libel Turley.”

              In a matter of seconds I found these words from Jeff: “FOX pays Turley to keep his mouth shut “

              That is libel.

              1. Send that statement to Turley then to advise him that he has been libeled. He is an expert on defamation. Perhaps, he will write back to you to explain why that comment is NOT actionable.

                1. IIt’s actionable, but is it worth it? That is the question. But, then again, that has not been the only libel you have committed against Turley. Your acts of defamation have mounted up along with your other comments that demonstrate your state of mind that many would find objectionable.

                  Is it worth it to Turley to spend the time to see if he could create a decent case? If so, is it worth it financially for him to sue you? You are nothing more than a cockroach who one can squish with the sole of his shoe, but then that might mean he gets his shoe dirty.

                  1. Anonymous says:

                    “You are nothing more than a cockroach who one can squish with the sole of his shoe, but then that might mean he gets his shoe dirty.”

                    Darren,

                    Does this comment violate the civility rule? He/she is advocating that I’d be killed. I have respected your authority by NOT going over your head to email Turley about comments that may violate the blog’s rules. In this case, I might have to unless you act. Thanks.

                    1. Darren, Does this comment violate the civility rule? He/she is advocating that I’d be killed. I have respected your authority by NOT going over your head to email Turley about comments that may violate the blog’s rules. In this case, I might have to unless you act. — jeffsilberman

                      Climbing that moral molehill you believe a virtuous mountain, again, Jeff? Gotta love your (toothless) threat, hall monitor.

                    2. The libeler is now crying to the moderator because his feelings have been hurt. He was shown up. Just one libelous statement that Jeff wrote was immediately provided, demonstrating Jeff to be the liar he accuses others of being. Of course, we all know there is a lot more libel by Jeff, along with an objectionable mindset. He can’t handle that, especially since he calls himself an attorney and doesn’t truly understand the word ‘actionable’ he used in the argument above.

                      No, Jeff, there is nothing wrong with saying that you are like a cockroach that anyone’s shoe can squish. However, there is a problem with the mess on the shoe that would be created. That mess would be vile and base.

                      One of Jeff’s libelous statements: “FOX pays Turley to keep his mouth shut “

            2. Jeff, you are in a serious state of denial in regards to your rhetoric on this blog. Your constant petulance that Turley won’t write what you want him to, alone, is very off putting. And, yes, you regularly resort to libel. Lucky for you, this is a free speech blog where your excesses get blown off.

              You do not appear to grasp the irony in your demanding censorship of incivility. But we do.

              1. Karen,

                Did you read that article on the psychology of over-generalizations? Did you find it illuminating?

                You can’t find anything about me to compliment? Not even my doggedness? I was generous in giving you a compliment. I thought you might be a little gracious.

                I want to bury the hatchet and call a truce. I thought you might be the only Trumpist with whom I could have a good faith conversation.

                I’m extending an olive branch. Could there be anything more civil than that gesture of good will?

                1. “You can’t find anything about me to compliment? Not even my doggedness? “

                  Doggedness is a characteristic that can be favorable or unfavorable. In your case it is unfavorable and presents a very unflattering picture of Jeff Silberman. It also discloses a dislikable person who shows a lack of principles.

                  I love the tone of condescension in your offer of an olive branch. It is so Jeff Silberman.

                2. Jeffsilberman AND “Karen:”. Jeff, -Who are YOU to claim “generosity” in accepting Karen’s response to you? I smile again. We used to refer to new law school graduate “litigators” as “attack puppies,”—so eager to show the world how smart they are, even though they lose their cases, -they always come out flailing. Some never outgrow it, — and never learn from it.

          2. By the way, Karen, I compliment you on your writing skills- your grammar, punctuation, spelling and coherence are a cut above the norm here. I recently acknowledged that fact in one of my recent comments to Anonymous. You would never think of complimenting me for anything!

            My principal disagreement with you-as noted by Anonymous as well- is your penchant to make blanket statements- overgeneralizations.

            Take a look at this link:

            https://www.therapynowsf.com/blog/cognitive-distortions-understanding-overgeneralization

            You would be well served to be more mindful of this psychological tendency.

    2. Jeff Silberman refers to an earlier response, where he says: “Lookit, I’m NOT claiming that every Trumpist is a racist or anti-Semite. I’m ONLY claiming that every racist and anti-Semite voted for Trump.”

      Jeff doesn’t bother with facts. He’s a dunderhead. Look at the article from Newsweek,

      “White Nationalist Richard Spencer Votes for Joe Biden: ‘To Hell With Libertarian Ideology’”

      Nothing arising from the mouth of Jeff Silberman can be trusted. He knows it, but doesn’t care.

      Jeff and Spencer have a lot in common.

      https://www.newsweek.com/white-nationalist-richard-spencer-votes-joe-biden-hell-libertarian-ideology-1544572

  6. This is an issue that should be decided at the state level. Like Marijuana, it should be decriminalization at the federal level and the states should take over from there. Keep the almighty federal government out of our lives as much as possible.

  7. 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. — Second Amendment

    Under your contention, government could prohibit ownership of weapons by private citizens for any reason (or pretext). But, how are citizens supposed to protect …the security of [their] free State… from all enemies, foreign and domestic if their enemy is not only domestic, but their government itself?

    What you advocate is exactly what totalitarians desire — a disarmed populace. Do you think an enemy government might relent and restore citizens’ access to weapons to protect their free State from its own depredations?

    Do you believe the Founders (or the people) were ignorant of this? Perhaps they preferred the people, individually, be armed for their own defense as well as the collective defense of their free State, rather than trust government with a standing army.

    1. Well… something happened, and my above reply became untethered. In fact, the entire sub-thread to which it was attached seems to have disappeared. Huh.

    2. Spanky,

      “ Do you believe the Founders (or the people) were ignorant of this? Perhaps they preferred the people, individually, be armed for their own defense as well as the collective defense of their free State, rather than trust government with a standing army.”

      The term, “the people” in their context meant state governments. Not private individuals. During their time each state had their own militias regulated by their own state governments. They were responsible for their own security. That “collective defense” you speak of is a militia. Militias consisted of volunteer armed citizens specifically for the purpose of ensuring the security of their own state.

      Their security was not only from foreign threats , but threats within their own borders which were slave revolts. The federal government was not going to send troops to quell slave revolts that were entirely state matters at the time.

      They are not desiring an unarmed populace, they didn’t wave armed slaves. The right to bear arms didn’t apply to slaves, even freed ones. If it was really a right for any individual to bear arms. Slaves or former slaves would have had the same right. People keep forgetting that during those times slave populations were growing and that meant more chances of revolts. Which is why States insisted on the federal government not infringe on their right to bear arms. The “people”.

      1. The term, “the people” in their context meant state governments. Not private individuals. — Svelaz

        If your interpretation is accurate, why did the early federal government not arrest and try citizens for owning firearms illegally? Why were gun manufacturers permitted to make and sell firearms to private citizens?

        Elsewhere in the Constitution, the framers differentiate between people and states, why not this clause as well? Could it be they meant exactly what they wrote — …the right of the people to keep and bear Arms, shall not be infringed?

        That “collective defense” you speak of is a militia. Militias consisted of volunteer armed citizens specifically for the purpose of ensuring the security of their own state. — Svelaz

        Thanks for reiterating my point and contradicting yourself in the process.

        1. Spanky,

          “ If your interpretation is accurate, why did the early federal government not arrest and try citizens for owning firearms illegally? Why were gun manufacturers permitted to make and sell firearms to private citizens?”

          The early federal government had no manpower or any federal laws against citizens owning firearms. It want illegal to own a firearm. But it wasn’t a right to protected by the constitution. The 2nd amendment was a prohibition on the federal government from disarming states which kept militias after the revolution to keep slave revolts in check. They were becoming a problem as slave populations kept growing. Plantation owners had no effective means to quell a slave revolt, but states thru their militias did. That’s why it was important to have the right to be armed not be infringed by the federal government. They wanted to be able to deal with their own security issues instead of relying on the federal government.

          There were no gun manufacturers just prior to the revolution. At the time of the revolution the majority of Americans had no guns of their own. In fact they relied on smuggled European weapons. The majority of colonial citizens were farmers. Very few hunted for food. Here’s the truth about firearms during that period.

          “ But getting back to guns; firearms were not part of early American culture and no, most colonial Americans not only did not own guns prior to the war, most had never even fired one. Our forefathers and leaders of revolt knew this. They spent the few years leading up to hostilities struggling to smuggle guns from Europe. So, when the time came, they were able to provide their militias with something other than pikes and axes and a few well laid oaths against the bloody redcoats.”

          https://www.revolutionarywarjournal.com/contrary-to-myth-most-americans-did-not-own-guns-at-the-start-of-the-american-revolution/

          1. The author of that piece believes Howard Zinn to be an accurate historian.

            “Howard Zinn’s A People’s History of the United States – an excellent text that breaks down many American myths”

            One can always find a crackpot if they look hard enough. The left is not credible because if the left likes something they automatically adopt it as true.

            1. Anonymous (S. Meyer),

              “ The author of that piece believes Howard Zinn to be an accurate historian.”.

              He never made such a claim. All he’s doing is pointing out that Howard Zinn exposes certain myths which have not been refuted, criticized perhaps, but not refuted.

              Zinn mentions other Historians research and he describes the revolutionary era’s history through the lens of ordinary people at the time. Not the victors or those who embellished or exaggerated certain aspects of what really happened.

              Every well known historical account will have exaggerations and embellishments designed to mask embarrassing truths. Like what happened at the Alamo, or the true meaning of the thanksgiving holiday.

              “ The left is not credible because if the left likes something they automatically adopt it as true.”

              So by your own reasoning the right is not credible either because of they like something they automatically adopt as true?

              You seem to have a lot of that going on.

              The article certainly seemed to give a more realistic perspective on why the 2nd amendment is not what many believe it is today. This guy has a better argument than what is being trotted out these days. Isn’t that the whole idea of having different perspectives about history? That all perspectives need to be considered?

              1. There is a lot of history I take exception to , but understand it as a difference of opinion.

                I wrote: “ The author of that piece believes Howard Zinn to be an accurate historian.”.

                You wrote: “He never made such a claim.”

                The author wrote: “Howard Zinn’s A People’s History of the United States – an excellent text “

                You are a waste of time and ignorant to boot.

                1. Anonymous (S. Meyer),

                  So you admit that’s not what the author said. You lied.

                  Excellent is not synonymous with accurate. Not by a long shot.

                  Excellent; extremely good, outstanding.

                  Accurate; free from error or defect. Consistent with a standard.

                  Nowhere did the author state Zinn was an accurate Historian. You lied about what the author said. Looks like that credibility issue is your own problem.

                  1. You are an absolute dummy. I will quote the author: “Howard Zinn’s A People’s History of the United States – an excellent text” If it is an excellent text, then it is accurate or reasonably so.

                    You are unable to incorporate what you read. Your mind is perverted. To you, an excellent textbook is an inaccurate one. That is why you are worthless to discuss anything with.

                    You make up things like you did with Robert Moses and everything else. You even argue about a person’s credentials. When the actual author says he doesn’t have his Ph.D., you argue that is not true. One can only laugh at your foolishness.

                    1. Anonymous (S. Meyer),

                      “ You are an absolute dummy. I will quote the author: “Howard Zinn’s A People’s History of the United States – an excellent text” If it is an excellent text, then it is accurate or reasonably so.”

                      LOL!!!! S. Meyer, “Excellent” is not a phrase that implies “accuracy”. You tried to put words in the author’s mouth and claim it was his belief. You lied.

                      No English teacher would ever accept that poor excuse for a lie that “excellent” implies “accuracy”. They are two entirely different meanings that you are hilariously trying to conflate into something that implies they are similar just to save a bad lie.

                      An “excellent” text just means it’s a good one. It doesn’t mean it’s accurate. An “accurate” text means it’s true according to a standard.

                    2. Svelaz, I will leave it up to others to determine what type of dummy you are. According to your logic, an excellent textbook is full of inaccuracies.

        2. Spanky,

          “ Elsewhere in the Constitution, the framers differentiate between people and states, why not this clause as well?

          Because the 2nd amendment was about states, not individuals. Elsewhere the differentiation is noted by referring the people as “persons”. It’s the context in which they are phrased that makes the difference.

          1. “Because the 2nd amendment was about states, not individuals. “

            Absolutely horrid.

            Svelaz has no understanding of the Constitution, its history or the law.

            “[A] bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse.”
            – Thomas Jefferson, December 20, 1787

            1. S. Meyers,

              Your failure to grasp context is legendary.
              We are talking about the 2nd amendment and using the definitions AND context of the time. It was referring to the state. You can refer to a state legislature as “the people of Texas”. It’s how they referred states as a singular entity.

              The statement by Thomas Jefferson is an entirely different context when using the term “ the people”.

              “ The Second Amendment tied the right to bear arms to the concept of a well-regulated militia. Therefore, the notion that individual citizens would rise to protect the nation bore out when America was attacked. A look at the War of 1812 is proof this did not happen. When the nation’s capital in Washington was attacked by 4,300 British troops in 1814, there were 50,000 militia within a day’s march. What occurred next, as they say, is history. The majority of the militia did not show up. Most of those who did were unarmed. And among those with firearms, they generally fled when fired upon by the British. The few thousand British marched largely unopposed into the capital and burned it.”

              That’s why the 2nd refers to a state right. Not an individual.

              1. You don’t know what you are talking about and you even don’t know why the Bill of Rights was written. You are making things up. We can read Thomas Jefferson elsewhere and see more comments like the one above repeated here, “[A] bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse.”

                I think it was monument who told me I was crazy to deal with an idiot like you. Maybe it was another and maybe he chose a synonym, but whoever it was, was 100% correct.

                1. A. Meyer,

                  “ You don’t know what you are talking about and you even don’t know why the Bill of Rights was written. You are making things up. We can read Thomas Jefferson elsewhere and see more comments like the one above repeated here, “[A] bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse.”

                  LOL! you obviously don’t understand what context is. Just as you conflate “excellent” with “accuracy” and assume they mean the same thing.

                  To make up for your serious understanding deficiencies you resort to petty insults and nonsensical rationalizations on entirely different subjects.

                  Everything I posted is considered a rational perspective by a historian who knows what he’s talking about. He’s had his critics as it has been with any other historians who buck the trend of what is considered common knowledge. His claims are on historical records and he used research from other respected historians to back up his assertions.

                  Monumentcolorado was right though. You are indeed crazy.

                  1. Svelaz, you are correct, I was crazy to deal with an idiot like you. It is crazy from his perspective. But, there aren’t multiple perspectives when it comes to being an idiot. You are an idiot no matter how one looks at things.

                    You don’t understand context. An excellent history textbook is accurate, not inaccurate.

                    As far as the Bill of Rights is concerned, you have created a new level of Stupidity.

        3. Spanky,

          “ That “collective defense” you speak of is a militia. Militias consisted of volunteer armed citizens specifically for the purpose of ensuring the security of their own state. — Svelaz

          Thanks for reiterating my point and contradicting yourself in the process.”

          No. Only those who volunteer to be in a state militia are the ones with the right to bear arms because they are state defenders and why they can’t be infringed by the federal government. Just being individuals who had weapons is not the definition of a militia. They had to be state sanctioned and regulated as such. States didn’t have the funding of infrastructure to have their own standing armies. When the National military was created to protect the states militias were essentially obsolete.

          1. So, the framers wrote the people when they meant a state, and vice versa. You’ve tortured both language and logic to arrive at your conclusion, but the framers’ plain words are the right of the people which means exactly that — the only confusion is that which you bring to the table.

            1. When the video showed Antifa rioting, burning, looting, etc., Svelaz would be one of those concluding it was a peaceful protest.

            2. Spanky,

              “ So, the framers wrote the people when they meant a state, and vice versa. You’ve tortured both language and logic to arrive at your conclusion, but the framers’ plain words are the right of the people which means exactly that — the only confusion is that which you bring to the table.”

              There’s no torturing involved here. The term “the people” changes meaning when used in a different context. It’s one of the more complex functions of the English language. That’s why you and S. Meyer are not understanding it.

              The meaning of a word usually depends on the context in occurs.

              “The people” used in the context of the 2nd amendment is referring to a state’s militia due to the preceding statements referring to the state.

              S. Meyer referenced a quote by Thomas Jefferson that began and mentioned only “the people”. In that context the term is not referring to the state. The English language is complicated enough as it is, but to have English native speakers get confused over changing meanings according to context, especially with language from the 1700’s is not surprising.

              1. The term “the people” changes meaning when used in a different context. — Svelaz

                Torturous language and logic… easily changed on momentary whim.

                Ron DeSantis, governor of Florida, recently announced formation of a state guard independent of its National Guard contingent. That militia, unlike the National Guard, would be only be responsive to state authority. It couldn’t possibly be that Florida’s right to form a well regulated militia is secured by the Second Amendment, as well as the right of the people [of Florida] to keep and bear arms, privately and individually, could it?

                A plain language interpretation of the Second Amendment secures the rights of both states and people to arm themselves in self-defense.

                If there is no right of the people to keep and bear arms in the Second Amendment, why specifically use that language? Are you accusing the framers of abusing the plain meaning of words, such as the people, in order to fool them into ratifying the new Constitution? If so, of what value are the other rights enumerated in the Bill of Rights?

                Similarly, if there is no individual right, why would Congress not consider laws restricting firearms ownership in the wake of such events as Shay’s Rebellion or the Whiskey Rebellion? Why was private firearms ownership not outlawed in the southern states following the Civil War? According to you, it certainly would have been within the power of Congress to do so in the face of such populist and anti-federalist threats.

  8. “No, Spanky. That would be S. Meyer”

    ATS, it sounds like you are afraid of people with opinions that don’t match yours. I believe in your freedom to make an A$$ of yourself and will fight for it, though there is no doubt that you lack the intellect to understand why.

  9. Long ago, I came to the legal conclusion that life begins at conception, but that abortion is justifiable homicide, or self-defense.

    I can see no rationale, at all, that a person’s body is anything but that person’s most basic property. A free society must not force anyone to put anything into a person’s body, nor deny them from removing anything.

    That said, the fetus does have rights, as was argued during the oral arguments. At some point, a woman has a “contract” to give birth. This pint must be long enough into the pregnancy for the woman to realize she’s pregnant (missing a couple of periods, for example), and enough time to reason what to do about it.

    It has nothing to do with adoption, abstinence, birth control, and the like. It’s truly about the woman’s Liberty, as was also argued in the oral arguments.

    Religion has no place in our laws or government operations. It must be allowed to flourish outside of government.

    Abortion is no easy decision for the women. It’s a medical procedure and nobody wants to undergo them. They have to live with their decisions for the rest of their lives. As a medical procedure and condition, we should leave it up to the woman and her doctor.

    Being a matter of Liberty, it matters not the reason a woman makes the choice. It’s her body. Her right to choose.

      1. it is the same kind of “homicide” as a soldier killing an enemy soldier in combat, a policeman shooting an armed gunman threatening the public, the state executing a convicted murderer, or more appropriate, a person killing an intruder in their home. SELF DEFENSE.

        1. Oh well then that explains it.

          Unplanned infants are like enemy soldiers, armed gunman and convicted murderers.

          I see …, then we definitely need to arm ourselves against them,… yes .. rally the troops.

    1. “[T]he fetus does have rights . . .”

      It does? Via what theory of rights? And what proof that that theory is correct?

  10. “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”

    ATS, do you understand what “well regulated” meant? It wasn’t the type of regulation seen in our uniformed troops today. It talks about well-armed people who were prepared to protect themselves and others. That was the responsibility of the well regulated militia.

    Do you understand what” to the security” actually meant at the time? Protection against threats from the outside and the dangers of tyranny from a government that overstepped its boundaries.

    1. S. Meyer,

      “ ATS, do you understand what “well regulated” meant? It wasn’t the type of regulation seen in our uniformed troops today. It talks about well-armed people who were prepared to protect themselves and others. That was the responsibility of the well regulated militia.”

      “Well armed wasn’t the requirement. It was simply to be armed. The regulation consisted of being organized as a cohesive unit that trained together under the command of a state designated leader for the purpose of securing the state from other states or foreign entities AND most importantly slave revolts. Militias were necessary especially in states where slave populations were large enough to be a concern. States had an interest in being able to keep their slave populations under control. The federal government wasn’t going to do that for them.

      If the 2nd amendment really meant individuals right to bear arms. Freed slaves would have had that right was well. They didn’t. It only applied to states that needed the guarantee that their militias couldn’t be disarmed by the federal government. Especially when the idea of slave ownership was losing favor around the world.

      1. There is no point in reading or correcting what you say because afterwards you run away only to repeat the same garbage. Let me provide some examples in prior postings.

        1. Anonymous (S. Meyer),

          “ There is no point in reading or correcting what you say because afterwards you run away only to repeat the same garbage. ”

          But you did read it. You wouldn’t be commenting on it if you didn’t. You won’t correct anything because there’s nothing to correct.

          Not running away here. It’s not a busy day…so far.

          1. You run away so I will post another example. It is not a time issue with you. It is an issue of mental disability likely of your own doing.

  11. “Will this institution survive the stench”

    That is what one gets with low level thinking by a SC justice.

    1. Sotomayor is referring to the stench of aborted, rotting carbon-based “burdens” produced by the planned parent/hood protocol. The product of a wicked solution. She worries about the tell-tale hearts that beat sooner and ever louder. Out, damned spot. Out!

      The Matrix – Morpheus interrogation by agent Smith

      I can taste your stink and every time I do, I fear that I’ve somehow been infected by it.

      Some people are repulsed. For Sotomayor, it’s probably that all’s fair in lust and abortion. Is she culpable for women and men who choose to abort their Posterity for light, social, redistributive, and fair weather causes? Perhaps we overestimate the dignity and agency of people… persons, and underestimate their value as a negotiable asset, a taxable commodity, a democratic primitive.

  12. America now stands overwhelmed by hysteria and incoherence. Human beings exist primarily to self-perpetuate. Abortion is eminently counterintuitive, if not outright insane.

    Sotomayor must recuse herself from Dobbs and resign from the Supreme Court. Sonia Sotomayor must be impeached and convicted by a post-2022 American Congress and Senate for misfeasance – failure to know and support the U.S. Constitution – failure to uphold a sworn oath and engage in jurisprudential objectivity – dereliction, negligence, abuse of power, usurpation of power, etc.

    The Constitution does not address abortion and abortion can and will never be a constitutional, natural, or God-given right or freedom. Is abortion part of a natural process? Did God create to abort, that which he created?

    Sotomayor demonstrates either a dearth of cognitive complement or engages in subversion and treason against the Constitution and America.

    Any power related to abortion is reserved to the people, or to the States; abortion is not a right reserved to the people, abortion must be collectively addressed by the people and is, therefore, reserved to States.
    ______________________________________________________________________________________________________________________________________________________________________

    Sotomayor’s oblivious and antithetical statements “…complicate and confound public opinion:…” and demonstrate the cogency of the rationale of the Founders against immigration of unassimilable foreigners who corrupt the national spirit causing “discordant intermixture” having an “injurious tendency,” all of which led to the Naturalization Act of 1790 requiring immigrants to be “…free white person[s]…” and vote criteria of the same era which included “male” and “European.”
    __________________________________________

    “The influx of foreigners must, therefore, tend to produce a heterogeneous compound; to change and corrupt the national spirit; to complicate and confound public opinion; to introduce foreign propensities. In the composition of society, the harmony of the ingredients is all-important, and whatever tends to a discordant intermixture must have an injurious tendency.”

    – Alexander Hamilton
    ________________

    Naturalization Acts of 1790, 1795, 1798 and 1802 [four iterations – they meant it]

    United States Congress, “An act to establish an uniform Rule of Naturalization,” March 26, 1790

    Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That any Alien being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof…

    1. One-child or selective-child (one-child, delegated, effectively hari-kari or self-abortion in an evolutionary frame), and normalization of dysfunctional behaviors, through religious (i.e. behavioral) advocacy and activism, backed by special and peculiar articles of faith, are not only intuitive but perfectly sane. Essentially, it is war without borders.. All’s fair in lust and abortion for light, social, medical, redistributive, and fair weather causes in pursuit of capital and control, per chance redistributive and retributive change.

  13. Democrats are terrified. Terrified that the American people could soon be allowed to solve the abortion debate through the democratic process. Roe and its progeny are among the most divisive rulings in the long history of the Supreme Court. They are profoundly anti-democratic. Built on the “penumbras” of activist judges’ nocturnal “emanations,” they form a vast wet spot on the constitution. For fifty years, Democrats have forced the American people to sleep on their wet spot. Democrats are terrified that the soiled sheets are headed to the laundry. That the American people might decide the issue at the ballot box.

    Democrats are terrified of the American people. Terrified of the democratic process. Terrified of change. They will do anything to stop it. Ask Jeanne Shaheen. Or Sonya Sotomayor.

  14. Blah, blah, blah, Turley. More fart noise coming from you. Here’s the thing: the Missouri Legislature specifically said that they passed that stupid 15-week law BECAUSE OF BARRETT, KAVANAUGH AND GORSUCH getting shoved onto the SCOTUS. Justice Sotomayor was spot-on in calling it the stench of politics contaminating the chamber and questioning whether the Court could withstand it. The whole idea behind stare decisis is that politics are not supposed to play any role in reconsidering prior rulings, so the situation is not comparable to Brown v. Board of Education, Obergfell, Griswold v. Connecticut or Loving v Virginia because there has been no substantial change in society, medicine, politics or anything else since Roe was passed. The only change is 3 radicals shoved onto the SCOTUS by someone who cheated to get into office, who lost the popular vote, and who nominated these 3 after vetting by the Federalist Society specifically because of their anti-abortion advocacy. And, contrary to Turley’s passionate defense of Barrett, adoption is not a valid response or consideration for the state forcing a woman to continue with a pregnancy she doesn’t want, especially in the cases of incest and rape. There was adoption back in 1973, too. Just more fallout from Trump, who cheated to get into office in the first place. “Everything Trump touches dies.” ~ Rick Wilson. Maybe he’s killed the SCOTUS, too. If they reverse or curtail the holding in Roe, the backlash will be fierce.

  15. In the Federalist Papers – series of articles explaining the then proposed U.S. Constitution to the American people – Alexander Hamilton clearly stated that “constitutionality” should supersede “unconstitutional precedent”. When the U.S. Supreme Court ignores Hamilton’s wise words, bad things usually happen. Akin to building a home’s foundation wrong and not level (or plum), then keep building on top, you end up with a leaning tower of Pisa. Today we have an American Stasi essentially that not only tortures but polices and punishes legal constitutional activity. Stare Decisis was always meant to be “constitutional” by the Framers of the Constitution.

    For example: the 1968 U.S. Supreme Court essentially ignored Hamilton’s guidance in rulings like “Terry v. Ohio”. The court literally amended the “spirit” of the 4th Amendment – without the legally required constitutional amendment process. In the past 50 years, since rulings like “Terry v. Ohio” literally over a million African-Americans were incarcerated using “preemptive searches” that violated both the letter & spirit of the 4th Amendment. If not for rulings built upon those “unconstitutional precedents”, most judges would have suppressed or thrown out that illegally obtained evidence. The dissenting Justice Douglas warned America in 1968 was taking a big step toward totalitarianism and demanded a constitutional-amendment before destroying the 4th Amendment.

    With the unconstitutional “War on Drugs” precedents – that destroyed the 4th Amendment restraints on authority – the Bush Administration exploited it even more after 9/11 with the Bush Preemption Policy. That policy likely destroyed or caused the premature deaths of thousands of innocent Americans since 9/11. Punishing the wrong people, makes all of us less safe. Figuratively you are making the “haystack” of suspects gargantuan making it harder to find the “needle” (real bad guys).

    The good news: today in 2021 the ruling “Carpenter v. US” makes totalitarian style “warrantless” surveillance – longer than 2 weeks – illegal for any police chief, FBI Director or any security agency. Legitimate cases can still obtain a warrant from a judge but it helps minimize covert-blacklisting tactics (ie: Cointelpro).

  16. A judge should not make an attempt to prejudice a case before the case comes before the court and all arguments both pro and con have been made. A judge who does so is simply a politician in a black robe. If we want your opinion we will ask for it after “all” the evidence has been presented. Sotomayor has simply received her instructions from precedence left behind by judge Roy Bean. Since she begin the stench theme my answer is that a fox smells her own hole first.

    1. The birth of a human being does not occur in a vacuum. Newborn humans, in order to develop normally, need more than life itself. They need love, nurturing, and care-taking. Without these, their minds and personalities cannot develop. For this reason alone, it is morally wrong to force unwanted babies onto unwilling women. Birth is relational for complex beings. Therefore, let the woman choose.

      1. :Newborn humans, in order to develop normally, need more than life itself. They need love, nurturing, and care-taking. … For this reason alone, it is morally wrong to force unwanted babies onto unwilling women. Birth is relational for complex beings. Therefore, let the woman choose.”
        ****************************
        Your argument fits the old and ifeeble, too. Who gets to decide their life worthiness? Their caretakers? The government? Oh and for the notion that no one will do it if mom doesn’t, how’s about adoption? Or dad in custody or other family member in custody? Playing God may work for you but not for a lot of us.

        1. Trauma therapists and brain researchers have been discovering the importance of the first three years — and especially the first few months — to the development of the infant brain. Unloved, solitary, forgotten (or abused) children rarely end up happy and fulfilled individuals. I’m not talking about “worthwhile;” I’m talking about endless undeserved pain and misery. Avoidable pain and misery. Sure, a woman could carry her unwanted child to term and then turn it over to an adoption agency. But what happens to the lonely child awaiting adoption? Why do this to anyone? Why not recognize the centrality, the absolute necessity, of love and belonging from the very start? Let parenthood be chosen, planned, intentional. Or if the pregnancy comes as a surprise, let be a happy surprise. Don’t force unwilling women to bear unwanted children.

Leave a Reply