To be honest, we seem to have an issue in the US with our three branches (Legislative, Executive, and Judicial) doing their jobs, and only their jobs. I support everything the ruling in Roe v....
To be honest, we seem to have an issue in the US with our three branches (Legislative, Executive, and Judicial) doing their jobs, and only their jobs. I support everything the ruling in Roe v. Wade stands for, but this isn't the first time we've had the wrong branch making what we consider to be laws, but actually aren't. Net neutrality comes to mind with the FCC, an executive organization (but separate from the branch of government) making a rule that can be revoked for something that ought to be a law.
Granted, what's happening right now is unprecedented, at least in the context of the Supreme Court, but the same thing happened with the arguably less important net neutrality (things aren't all bad on that front if we consider what could have happened), but it's the same failure: We took this rule as having legal strength, when it really didn't.
The issue is the same: We used the Judicial branch to legislate, which is to say we misused the Judicial branch. We're unfortunately paying for it now, but we'd also never expected we would. As I mentioned in the thread about the leaked opinion, the only real way forward now would be to start legislating new laws based on some of these major rulings before the Court can reverse them, but our political landscape is also such that it would be difficult to do. Anything the Court will reverse is a contentious topic that is a contributing reason for the way Justices were appointed, and so likely to be a source of a filibuster in Congress.
OTOH, I don't think a different Court than the one that made the ruling should be able to reverse a damn thing as that's also too close to legislation, but that's a different issue.
the problem is the constitution doesn't open the door for any other option. the only way by law to get something like Roe on the legislative books would require an amendment, which would never...
the problem is the constitution doesn't open the door for any other option. the only way by law to get something like Roe on the legislative books would require an amendment, which would never pass in a thousand years. what we really need is an amendment to make amendments easier to pass. scalia is pretty reasonable i feel in theory (maybe less so in practice especially re second amendment rulings)
That's definitely a better solution, as legislation still answers to party whims. However, it is harder to undo a law than it is to undo legal precedent, apparently. I agree with Scalia, because...
That's definitely a better solution, as legislation still answers to party whims. However, it is harder to undo a law than it is to undo legal precedent, apparently. I agree with Scalia, because it's much harder to undo an amendment than a law, and if 2% of the population can stop an amendment, that's obviously not going to be a decision of the people.
arguably the only solution as the only way congress could really claim constitutional authority for a law would a contrived commerce clause argument a la obamacare but even worse
That's definitely a better solution, as legislation still answers to party whims.
arguably the only solution as the only way congress could really claim constitutional authority for a law would a contrived commerce clause argument a la obamacare but even worse
Blackmun based his ruling on the idea that the Constitution protects a broad right to privacy, which is implied by the 14th Amendment.
The amendment says “no state shall ... deprive any person of life, liberty or property without due process of law.” The court had cited this privacy right before, most notably in 1965 to strike down a Connecticut law that made it a crime for married couples to use contraceptives.
While the Constitution “does not explicitly mention any right of privacy,” he wrote, its protection for personal liberty and privacy “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”
Those critics included a young Ruth Bader Ginsburg. In the years before she became a justice, she said the court made a mistake by going too far, too fast in its first ruling on the constitutionality of abortion.
Ginsburg had been the leader of the ACLU’s Women’s Rights Project in the 1970s, and later an appeals court judge in the 1980s. She gave several speeches criticizing the court’s handling of the abortion issue.
Roe vs. Wade “became and remains a storm center,” she said at the time, “because the court ventured too far in the change it ordered.”
Rather than resolve the issue, the court’s broad ruling “halted a political process that was moving” to liberalize abortion already, she said, and instead launched “the mobilization of the right-to-life movement” that changed American politics.
She said the court would have been wiser to issue a brief ruling that struck down the “extreme statute before it,” referring to the Texas law dating to 1854 that made all abortions a crime, except for “saving the life of the mother.”
“There was no Republican-Democrat divide on abortion during the 1970s,” said Neal Devins, a William & Mary law professor. “In a poll taken shortly before Roe was decided, 68% of Republicans and 58% of Democrats said the decision to have an abortion should be made by a woman and her physician.”
To be honest, we seem to have an issue in the US with our three branches (Legislative, Executive, and Judicial) doing their jobs, and only their jobs. I support everything the ruling in Roe v. Wade stands for, but this isn't the first time we've had the wrong branch making what we consider to be laws, but actually aren't. Net neutrality comes to mind with the FCC, an executive organization (but separate from the branch of government) making a rule that can be revoked for something that ought to be a law.
Granted, what's happening right now is unprecedented, at least in the context of the Supreme Court, but the same thing happened with the arguably less important net neutrality (things aren't all bad on that front if we consider what could have happened), but it's the same failure: We took this rule as having legal strength, when it really didn't.
The issue is the same: We used the Judicial branch to legislate, which is to say we misused the Judicial branch. We're unfortunately paying for it now, but we'd also never expected we would. As I mentioned in the thread about the leaked opinion, the only real way forward now would be to start legislating new laws based on some of these major rulings before the Court can reverse them, but our political landscape is also such that it would be difficult to do. Anything the Court will reverse is a contentious topic that is a contributing reason for the way Justices were appointed, and so likely to be a source of a filibuster in Congress.
OTOH, I don't think a different Court than the one that made the ruling should be able to reverse a damn thing as that's also too close to legislation, but that's a different issue.
the problem is the constitution doesn't open the door for any other option. the only way by law to get something like Roe on the legislative books would require an amendment, which would never pass in a thousand years. what we really need is an amendment to make amendments easier to pass. scalia is pretty reasonable i feel in theory (maybe less so in practice especially re second amendment rulings)
That's definitely a better solution, as legislation still answers to party whims. However, it is harder to undo a law than it is to undo legal precedent, apparently. I agree with Scalia, because it's much harder to undo an amendment than a law, and if 2% of the population can stop an amendment, that's obviously not going to be a decision of the people.
arguably the only solution as the only way congress could really claim constitutional authority for a law would a contrived commerce clause argument a la obamacare but even worse