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How to Legitimately Overturn Precedent September 29, 2018

Posted by Sobek in News.
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From Hot Air: “ABC’s Terry Moran: Overturning Roe Won’t Be Legitimate if Kavanaugh and Thomas are Deciding Votes

And Allah notes that this isn’t really about Kavanaugh at all.  There’s enough wiggle room that the argument can change configurations as necessary to always reach the same conclusion.

Another thing that’s revealing is how many different arguments in the alternative against the legitimacy of overturning Roe are bundled into a clip that runs less than a minute in length. A simple argument capitalizing on the news du jour would be that any majority which includes Kavanaugh will be illegitimate because of the nature of the allegations against him. A more complex argument would be that any majority which includes Kavanaugh and Clarence Thomas is doubly illegitimate because they’ve both been accused on the record of sexual assault. Make that claim and you’ve got your bases covered even if Kavanaugh ends up being borked and his replacement ends up on the Court as the fifth anti-Roe vote. Was Clarence Thomas one of the five votes too? Then it doesn’t count.

But Moran[] … notes that any all-malemajority with Kavanaugh and Thomas that overturns Roe would be suspect. … Was the majority composed of five men? Well, then, it’s illegitimate.

And what if, say, Amy Coney Barrett were to replace Kavanaugh as nominee and provide the fifth vote? … If Gorsuch and a second Trump appointee are part of a majority that overturns Roe, it would mean that two of the five votes came from justices nominated by a president who lost the popular vote. … Plenty of people grasping for reasons to believe that an outcome they despise is unfair will grasp at it.

I agree with all of that – if you’re anti-fetus, then no set of circumstances could possibly arise that would mean you can legitimately overturn Roe.  It was a decision handed down from Mount Sinai itself, as canonical as Genesis and as inerrant as Revelation.

I want to talk about the problem with judicial activism that liberals have created for themselves.  I’m going to assume (contrary to the evidence) that their arguments are based on intellectual rigor, rather than stating the conclusion and working backwards for a justification.

To vastly oversimplify Constitutional interpretation and philosophy, you can either be an originalist or an activist – the kind of person who believes in a “living, breathing” Constitution.  If you are an originalist, then Roe was never legitimate, because the Constitution does not give the federal government power to mandate legalized abortion.  If you are an originalist, then striking down Roe is legitimate no matter who does it.

What if you’re an activist? Then right now you’re in a really bad spot.  The idea behind activism is that the Constitution must change and adapt with the times, and there’s no need to go through the pesky process of convincing other Americans to change – just get five Justices to say what the law is, and that’s the law.  The Constitution is wholly irrelevant, other than as window dressing.  If five out of nine – or in the case of Roe, seven out of nine – say that the Constitution now requires legal abortion, then it does.  Not because of the words in the Constitution, but because social attitudes have shifted since the 1790s, and our jurisprudence must reflect that.

But how do you determine that social attitudes have changed?  Surely not with polls – those are too unreliable, and the vagaries of public opinion are such that something might be legal today, illegal next week, and legal again in a month.  That’s no way to run a country.  And not with elections – you get the same problems, although over the span of election cycles.  Besides. if Congress is Republican but the White House is Democrat, or vice versa, then what does that mean for legality?  No, social attitudes are deemed to have changed when five out of nine justices say they have changed.  Never mind that our justices don’t really spend a lot of time hobnobbing with your average American in flyover country.  Their word is law, so long as five out of nine say so.

But there’s the real problem for the activist.  Suppose that America elects a Republican President, and that President nominates a Supreme Court Justice who does not believe that abortion is a Constitutional right.  Suppose now there are five such justices.  Does not that definitively prove that social attitudes have changed, such that their five votes conclusively demonstrate the legitimacy of their rulings?  If Americans vote for Democrats consistently enough that the Court gets packed with Ginsburgs and Breyers, so the argument goes, that must mean they like how Ginsburgs and Breyers vote, and Americans must love them some taxpayer funded abortion on demand.  But if Americans vote for Republicans consistently enough that the Court gets packed with Alitos and Thomases, that must mean they like how Alitos and Thomases vote, and Americans must be sick of murdering babies in the womb.  After all. social attitudes clearly have changed since the 1970s, before we could all see sonograms showing that undifferentiated mass of cells to have eyes, a nose, fingers, and a mouth.  They must have heard from enough abortion survivors, and seen enough of the Kermit Gosnells of the world to soundly reject Democrat dreams of an abortion clinic on every corner.  Right?

So either we adhere to the text of the Constitution, in which case overturning Roe is legitimate because of what the Constitution actually says, or else we adhere to changing social attitudes, realize that the man in the Oval Office just nominated Brett Kavanaugh, and admit that Roe can legitimately be overturned whenever five of nine justices feel so inclined.

[And what option is left to you if you believe in abortion so strongly that you are willing to see a good man slandered and vilified and his family receive death threats?  I suppose your only option would be violence…]

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Comments»

1. Sobek - September 29, 2018

There’s another important aspect of Moran’s claim. Suppose we agree that Kavanaugh and Thomas can’t legitimately overturn Roe. Then let’s suppose that the do anyway. Then what?

Moran doesn’t really get into the implications of his assertion, but they don’t end up with any healthy conclusion. I think he’s prepping his buddies for violence. Or I should say, more violence.

2. lauraw - September 30, 2018

If you have to spend much time around rabid lefties, as I do, it is all so depressing. They live in an alternate universe and really believe that violence is justified. They also uncritically swallow all the BS fed to them about their political enemies, such as Kavanaugh, who has gone from a solid establishment guy to a heinous frat animal overnight. ‘BAMN,’ you know. They may not engage in it themselves but they are certainly willing to turn a blind eye or make excuses.

3. Retired Geezer - October 3, 2018

lauraw, are the people you work with the lefties?

4. lauraw - October 7, 2018

Yes. I suspect there may be more like me in the place, but only because they say nothing while some lefty is obliviously ranting about their lunatic religion, as I do.

5. lauraw - October 7, 2018

Do they understand that screaming and shitting on the floor makes them just look crazy. and not persuasive? I guess not. They think this is catharsis but they don’t seem to be getting any better.


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