Saturday, May 07, 2022

“Quick, now. Here now. Always.”

I have trouble making comments on my own blog (i.e., I often can't), which leads to me overlooking comments (apparently!) which deserve more attention.  Especially when I agree with them (Hey, it's my blog!)  So here we are:

Given Alito reaches back to 1602 for one opinion to show that abortion has no long term basis in law, I doubt any substantive rights delineated since the 19th century could stand up to his analysis. He bemoans that the court shouldn't be acting like a legislature, saying there is no basis for the trimester analysis of Roe, but then rambles on engaging in the exact same behavior he objected to when talking about how everything is different now with adoption, maternal and natal healthcare and more. He is at his weaseling worst when he throws in the footnote that abortion is based in the racism of driving down the birth rate of blacks, but then says he has no opinion on the truth of the statement. The exact same analysis of this decision would overturn Griswold, Lawrence, Obergefell, and much more. It's not just the privacy cases, Miranda wouldn't stand up to this analysis either. Substantive rights are frozen in 1788 when the constitution was ratified. He is however careful to exempt excessive fines (need to preserve the right of the court to make corporate fines meaningless) and gun rights. We wouldn't want lower courts to get any ideas. The hightlights "Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. Zero. None. No state constitutional provision had recognized such a right." That applies to pretty much everything. "The Court did not claim that this broadly framed right is absolute, and no such claim would be plausible. While individuals are certainly free to think and lo say what they wish about “existence,” “meaning,” the “universe,” and “the mystery of human life,” they are not always free to act in accordance with those thoughts. License to act on the basis of such beliefs may correspond to one of the many under- standings of “liberty,” but it is certainly not “ordered liberty.” Yuck So, I guess you can believe birth control, or oral sex, etc. are liberties, you can't act on them. (He is careful to say however that guns are important for "ordered liberty"). The opinion is really a mess. Alito goes into a long discussion on how 400 years ago courts determined "quickening", but then he blithely sweeps away the whole analysis as irrelevant (I am guessing it would leave open the possibility of some right of very early abortion or even the right to drugs that prevent implantation. He wants his sweeping right to ban it in all forms at all times). Finally, this one really stood out on the future of SCOTUS jurisprudence: "West Coast Hotel signaled the demise of an entire line of important precedents that had protected an individual liberty right against state and federal health and welfare legislation" Now we are at the heart of another of Alito's longer term arguments. Just what I am looking for, protection of my liberty right to fall off a tall building and be killed rather than have my liberty right crushed by OSHA demanding my employer provide a safety harness. 

One point made there I hadn't paid attention to until Nina Totenberg mentioned it the other morning discussing the leaked Dobbs opinion.  That's the idea (brought up again here) of "quickening."  Yes, it is an old idea adopted into the common law, and it refers to the child kicking in the womb.  Which usually happens in the second trimester.  Which, as Ms. Totenberg pointed out, is why Roe established the three trimester limits:  no state action can violate the individual right to privacy in the first trimester; some state interests may arise in the second; and in the third, the state can overrule the right to privacy in order to preserve the interests of the child. The Roe court adopted the common law concept of "quickening" as a basis in law and tradition for its ruling.

Ironic, no? Tradition is clearly what 5 Justices declare it to be at the time of the declaration.

Somehow, Alito decides that both doesn't mean anything, and is a substantive analysis in the common law which requires Roe to be overruled.  Why?  Not because Alito finds a new legal justification, but (yes, I am a broken record, why do you ask?) because Alito hates the outcome of Roe.  Pure and simple.  Unable to find a legal justification to reverse it, he just smashes at it with a hammer and declares his efforts an analytical success.

Nice work, if you can get it.

And remember, Dobbs is about substantive due process:

He wants his sweeping right to ban it in all forms at all times). Finally, this one really stood out on the future of SCOTUS jurisprudence: "West Coast Hotel signaled the demise of an entire line of important precedents that had protected an individual liberty right against state and federal health and welfare legislation" Now we are at the heart of another of Alito's longer term arguments. Just what I am looking for, protection of my liberty right to fall off a tall building and be killed rather than have my liberty right crushed by OSHA demanding my employer provide a safety harness. 

It isn't about undoing as many court rulings as possible until Alito & Co. are satisfied. Except that’s exactly what it is.

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