"legislating from the bench"=BS?

[Alaska Darin]

I couldn't agree more. And there are a lot of studies the directly relate abortions to education. The less or worse the education a woman has, the more likely she is to have an abortion. So, why don't we do something like...oh I don't know...help out our poor school districts.

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More money isn't going to make school districts any better. That's yet another fallacy proliferated by politicians.

[TheMadCap]

If they outlaw abortion, it will continue to happen.  Whoopie.  There are ALOT more pressing problems facing our society than Mary Jane Rotten Crotch and Freddie Joe Mouth Breather not being savvy enough to use the plethora of birth control choices available.

 

But let's waste valuable coin and time worrying about such things.

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On the contrary, I think that is EXACTLY the problem. Too many stupid people out there reproducing...

[Alaska Darin]

On the contrary, I think that is EXACTLY the problem. Too many stupid people out there reproducing...

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I blame the government. OSHA in particular.

[Mickey]

The vote in Roe V Wade was 7-2.

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Thanks, I was thinking of Brown. Even so, a 7-2 decision is a stronger precedent than a 5-4 decision, especially one that has been interwoven into a number of other decisions of similar weight as has Roe. An excellent discussion of precedent and what is necessary to overturn a major ruling in the specific context of Roe is contained in the majority opinion in Planned Parenthood v. Casey, here is a clip of that discussion:

 

The obligation to follow precedent begins with necessity, and a contrary necessity marks its outer limit. With Cardozo, we recognize that no judicial system could do society's work if it eyed each issue afresh in every case that raised it. See B. Cardozo, The Nature of the Judicial Process 149 (1921). Indeed, the very concept of the rule of law underlying our own Constitution requires such continuity over time that a respect for precedent is, by definition, indispensable. See Powell, Stare Decisis and Judicial Restraint, 1991 Journal of Supreme Court History 13, 16. At the other extreme, a different necessity would make itself felt if a prior judicial ruling should come to be seen so clearly as error that its enforcement was for that very reason doomed.

 

Even when the decision to overrule a prior case is not, as in the rare, latter instance, virtually foreordained, it is common wisdom that the rule of stare decisis is not an "inexorable command," and certainly it is not such in every constitutional case, see Burnet v. Coronado Oil Gas Co., 285 U.S. 393, 405-411 (1932) (Brandeis, J., dissenting). See also Payne v. Tennessee, 501 U. S. ____, ____ (1991) (slip op., at ___) (Souter, J., joined by Kennedy, J., concurring); Arizona v. Rumsey, 467 U.S. 203, 212 (1984). Rather, when this Court reexamines a prior holding, its judgment is customarily informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case. Thus, for example, we may ask whether the rule has proved to be intolerable simply in defying practical workability, Swift & Co. v. Wickham, 382 U.S. 111, 116 (1965); whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation, e. g., United States v. Title Ins. & Trust Co., 265 U.S. 472, 486 (1924); whether related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine, see Patterson v. McLean Credit Union, 491 U.S. 164, 173-174 (1989); or whether facts have so changed or come to be seen so differently, as to have robbed the old rule of significant application or justification, e. g., Burnet, supra, at 412 (Brandeis, J., dissenting).

 

So in this case we may inquire whether Roe's central rule has been found unworkable; whether the rule's limitation on state power could be removed without serious inequity to those who have relied upon it or significant damage to the stability of the society governed by the rule in question; whether the law's growth in the intervening years has left Roe's central rule a doctrinal anachronism discounted by society; and whether Roe's premises of fact have so far changed in the ensuing two decades as to render its central holding somehow irrelevant or unjustifiable in dealing with the issue it addressed.

 

Although Roe has engendered opposition, it has in no sense proven "unworkable," see Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 546 (1985), representing as it does a simple limitation beyond which a state law is unenforceable. While Roe has, of course, required judicial assessment of state laws affecting the exercise of the choice guaranteed against government infringement, and although the need for such review will remain as a consequence of today's decision, the required determinations fall within judicial competence.

 

The inquiry into reliance counts the cost of a rule's repudiation as it would fall on those who have relied reasonably on the rule's continued application. Since the classic case for weighing reliance heavily in favor of following the earlier rule occurs in the commercial context, see Payne v. Tennessee, supra, at ____ (slip op., at ___), where advance planning of great precision is most obviously a necessity, it is no cause for surprise that some would find no reliance worthy of consideration in support of Roe.

 

While neither respondents nor their amici in so many words deny that the abortion right invites some reliance prior to its actual exercise, one can readily imagine anargument stressing the dissimilarity of this case to one involving property or contract. Abortion is customarily chosen as an unplanned response to the consequence of unplanned activity or to the failure of conventional birth control, and except on the assumption that no intercourse would have occurred but for Roe's holding, such behavior may appear to justify no reliance claim. Even if reliance could be claimed on that unrealistic assumption, the argument might run, any reliance interest would be de minimis. This argument would be premised on the hypothesis that reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions.

 

To eliminate the issue of reliance that easily, however, one would need to limit cognizable reliance to specific instances of sexual activity. But to do this would be simply to refuse to face the fact that for two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail. The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives. See, e.g., R. Petchesky, Abortion and Woman's Choice 109, 133, n. 7 (rev. ed. 1990). The Constitution serves human values, and while the effect of reliance on Roe cannot be exactly measured, neither can the certain cost of overruling Roe for people who have ordered their thinking and living around that case be dismissed.

 

No evolution of legal principle has left Roe's doctrinal footings weaker than they were in 1973. No development of constitutional law since the case was decided has implicitly or explicitly left Roe behind as a mere survivor of obsolete constitutional thinking.

 

It will be recognized, of course, that Roe stands at an intersection of two lines of decisions, but in whichever doctrinal category one reads the case, the result for present purposes will be the same. The Roe Court itself placed its holding in the succession of cases most prominently exemplified by Griswold v. Connecticut, 381 U.S. 479 (1965), see Roe, 410 U. S., at 152-153. When it is so seen, Roe is clearly in no jeopardy, since subsequent constitutional developments have neither disturbed, nor do they threaten to diminish, the scope of recognized protection accorded to the liberty relating to intimate relationships, the family, and decisions about whether or not to beget or bear a child. See, e.g., Carey v. Population Services International, 431 U.S. 678 (1977); Moore v. East Cleveland, 431 U.S. 678 (1977).

 

Roe, however, may be seen not only as an exemplar of Griswold liberty but as a rule (whether or not mistaken) of personal autonomy and bodily integrity, with doctrinal affinity to cases recognizing limits on governmental power to mandate medical treatment or to bar its rejection. If so, our cases since Roe accord with Roe's view that a State's interest in the protection of life falls short of justifyingany plenary override of individual liberty claims. Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261,278 (1990); Cf., e.g., Riggins v. Nevada, 504 U.S. ____, ____ (1992) (slip. op., at 7); Washington v. Harper, 494 U.S. 210 (1990); see also, e.g., Rochin v. California, 342 U.S. 165 (1952); Jacobson v. Massachusetts, 197 U.S. 11, 24-30 (1905).

 

Finally, one could classify Roe as sui generis. If the case is so viewed, then there clearly has been no erosion of its central determination. The original holding resting on the concurrence of seven Members of the Court in 1973 was expressly affirmed by a majority of six in 1983, see Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983) (Akron I), and by a majority of five in 1986 , see Thornburgh v. American College of Obstetricians andGynecologists, 476 U.S. 747 (1986), expressing adherence to the constitutional ruling despite legislative efforts in some States to test its limits. More recently, in Webster v. Reproductive Health Services, 492 U.S. 490 (1989), although two of the present authors questioned the trimester framework in a way consistent with our judgment today, see id., at 518 (Rehnquist C. J., joined by White, and Kennedy, JJ.); id., at 529 (O'Connor, J., concurring in part and concurring in judgment), a majority of the Court either decided to reaffirm or declined to address the constitutional validity of the central holding of Roe. See Webster, 492 U. S., at 521 (Rehnquist, C. J., joined by White and Kennedy, JJ.); id., at 525-526 (O'Connor, J., concurring in part and concurring in judgment); id., at 537, 553 (Blackmun, J., joined by Brennan and Marshall, JJ., concurring in part and dissenting in part); id., at 561-563 (Stevens, J., concurring in part and dissenting in part).

 

Nor will courts building upon Roe be likely to hand down erroneous decisions as a consequence. Even on the assumption that the central holding of Roe was in error, that error would go only to the strength of the state interest in fetal protection, not to the recognition afforded by the Constitution to the woman's liberty. The latter aspect of the decision fits comfortably within the framework of the Court's prior decisions including Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942), Griswold, supra, Loving v. Virginia, 388 U.S. 1 (1967), and Eisenstadt v. Baird, 405 U.S. 438 (1972), the holdings of which are "not a series of isolated points," but mark a "rational continuum." Poe v. Ullman, 367 U. S., at 543 (1961) (Harlan, J., dissenting). As we described in Carey v. Population Services International, supra, the liberty which encompasses those decisions

 

"includes `the interest in independence in making certain kinds of important decisions.' While the outer limits of this aspect of [protected liberty] have not been marked by the Court, it is clear that amongthe decisions that an individual may make without unjustified government interference are personal decisions `relating to marriage, procreation, contraception, family relationships, and child rearing and education.' " Id., at 684-685 (citations omitted).

 

For the full opinion, see Casey

[Mickey]

On the contrary, I think that is EXACTLY the problem. Too many stupid people out there reproducing...

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Behind every rags to riches story is two "stupid" people having a child who turns out to be not so stupid and making it big time. As it turns out, "stupidity" is not inherited which is why lots of smart people have not so smart kids and vice versa. Educational quality and opportunity along with committed family support is a far better predictor for academic and career success than anything else. In short, too many "stupid people reproducing" is not necessarily the problem.

[Terry Tate]

Well first of all, I think Exiled was referring in general to those whom he believes are using states rights as a false front.  He used the word "they" and was replying to someone elses post.  I don't see why you think he is calling you a liar. 

 

Second, I was exchanging a little humor with Exiled about what would happen to the practice of abortion in a post Roe world such as black markets and the mob.  Do you think abortions will stop if made illegal?  No?  I thought not.  Is it unreasonable to assume that someone is going to make a load of cash from illegal abortions?  If you are this determined to be offended and self righteous, find someone elses posts to over react to.  You are clearly spoiling for a fight tender man.

I'm spoiling for a fight? You made a call for a civil discussion - then turn to insults when there's an opposing view. Actually, you began with insults, then made a call for civil discussion, then turned to insults again.

 

"Legislating from the bench=BS?" I think you eloquently defined what legislating from the bench is, which disagreed with your premise and subject title that it has no meaning. You seem to have abandoned your (stated) premise for the thread, since you've ignored my replies to it in favor of attempting to demonstrate I am for a total ban on abortion, which I do not believe in.

 

Of course, you don't believe me. EII calls pro-lifers (me) liars, and you agree. Oh, but EII doesn't think I should be offended by being called a liar, because I'm actually in denial - I really am a liar and I just haven't figured it out yet. And you declare you guys are just yukking it up, and then insult me again for being offended.

 

But I'm the one spoiling for a fight. OK, if you say so. I would disagree, but I don't want to start unintentionally lying or something. Best solution I can think of is not to respond to any more of your posts. That'll do.

[ExiledInIllinois]

Well first of all, I think Exiled was referring in general to those whom he believes are using states rights as a false front.  He used the word "they" and was replying to someone elses post.  I don't see why you think he is calling you a liar. 

 

Second, I was exchanging a little humor with Exiled about what would happen to the practice of abortion in a post Roe world such as black markets and the mob.  Do you think abortions will stop if made illegal?  No?  I thought not.  Is it unreasonable to assume that someone is going to make a load of cash from illegal abortions?  If you are this determined to be offended and self righteous, find someone elses posts to over react to.  You are clearly spoiling for a fight tender man.

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Exactly.

 

Oh well.

 

Maybe THEY will accuse us of talking in code.

 

I guess the thread went to pot from THEIR standpoint?<<<------

[ExiledInIllinois]

More money isn't going to make school districts any better.  That's yet another fallacy proliferated by politicians.

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In a way I agree. The point where we differ is where we have come from in this country in regards to education and health.

 

The standards (health and education) were pretty deplorable until the money was introduced.

 

Do you propose a return to the standards of the early 20th century?

 

Wow... I am scaring myself, am I using "Bill tactics?"

 

:lol:

[Mickey]

I'm spoiling for a fight? You made a call for a civil discussion - then turn to insults when there's an opposing view. Actually, you began with insults, then made a call for civil discussion, then turned to insults again.

 

"Legislating from the bench=BS?" I think you eloquently defined what legislating from the bench is, which disagreed with your premise and subject title that it has no meaning. You seem to have abandoned your (stated) premise for the thread, since you've ignored my replies to it in favor of attempting to demonstrate I am for a total ban on abortion, which I do not believe in.

 

Of course, you don't believe me. EII calls pro-lifers (me) liars, and you agree. Oh, but EII doesn't think I should be offended by being called a liar, because I'm actually in denial - I really am a liar and I just haven't figured it out yet. And you declare you guys are just yukking it up, and then insult me again for being offended.

 

But I'm the one spoiling for a fight. OK, if you say so. I would disagree, but I don't want to start unintentionally lying or something. Best solution I can think of is not to respond to any more of your posts. That'll do.

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I have asked you several times now about your statement regarding Roe, to wit:

 

"I think it should be overturned, and the issue left to the states"

 

You haven't responded except to complain about nonexistent insults in an exchange you were not even a part of.

 

The absolute and legitimate role of the Supreme Court is to determine the constitutionality of enacted legislation and state actions. Constitutional law can be a very rich and complex study, one that can hardly be dumbed down to a slogan like "legislating from the bench". If you took the time to read that portion of the Casey decision I posted or followed the link I provided to read the whole opinon, maybe you would see that what the court did in that case was to engage in exhaustive analysis and thorough study to try and arrive at the proper decision under the law. The right would boil all that down to "legislating from the bench" for no reason other than that they don't agree with the ultimate decision. Their evaluation of the law is outcome determinative. Whatever gets them to Roe being over turned is fine with them.

 

If you can honestly read the entire opinions in Casey and Griswold and so many other cases and ignore the intellectual struggle, insightful analysis and forceful logic of the justices, even if you disagree with the outcome, and label what they have done as nothing more than "legislating from the bench" than there is no point really in discussing this with you. This is just one conservative talking point that is so drilled in that there is no way to excise it. I'll tell you one thing, among constitutional scholars of any merit, right or left, there is not one who, when the TV cameras are off and the fundraiser over, thinks that phrase is anything more than a jingle.

 

Instead of arguing catch phrases, read the opinion in Casey and tell me what you disagree with and why. Instead of whining about insults, why not explain and defend the position you have taken with regard to Roe, ie, "...it should be overturned, and the issue left to the states" as I have asked?

[ExiledInIllinois]

I'm spoiling for a fight? You made a call for a civil discussion - then turn to insults when there's an opposing view. Actually, you began with insults, then made a call for civil discussion, then turned to insults again.

 

"Legislating from the bench=BS?" I think you eloquently defined what legislating from the bench is, which disagreed with your premise and subject title that it has no meaning. You seem to have abandoned your (stated) premise for the thread, since you've ignored my replies to it in favor of attempting to demonstrate I am for a total ban on abortion, which I do not believe in.

 

Of course, you don't believe me. EII calls pro-lifers (me) liars, and you agree. Oh, but EII doesn't think I should be offended by being called a liar, because I'm actually in denial - I really am a liar and I just haven't figured it out yet. And you declare you guys are just yukking it up, and then insult me again for being offended.

 

But I'm the one spoiling for a fight. OK, if you say so. I would disagree, but I don't want to start unintentionally lying or something. Best solution I can think of is not to respond to any more of your posts. That'll do.

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Wow!

[Mickey]

EII calls pro-lifers (me) liars, and you agree. Oh, but EII doesn't think I should be offended by being called a liar, because I'm actually in denial - I really am a liar and I just haven't figured it out yet. And you declare you guys are just yukking it up, and then insult me again for being offended.

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I don't get it, if I pointed out that pro-lifers have killed doctors, would you think I was calling you, as a pro-lifer, a murderer? Pro-lifers have killed doctors so the statement would be prefectly accurate. Clearly though it would not be intended to mean that every pro-lifer on the planet has shot a doctor and to interpret it that way would be, in my opinon, looking to be offended.

 

I see why you want to skedaddle.

[Mickey]

   

 

 

 

Wow!

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See what you did, are you happy now?

[ExiledInIllinois]

See what you did, are you happy now?

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No. I am (still) deeply disturbed.

 

[Bill from NYC]

No.  I am (still) deeply disturbed.

 

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I don't think that anyone will argue with this.

[Mickey]

I don't think that anyone will argue with this.       

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...and they say there are no ultimate truths.

[Ghost of BiB]

I don't think that anyone will argue with this.       

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None from my seat.

[ExiledInIllinois]

I don't think that anyone will argue with this.       

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[Ghost of BiB]

   

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Yeah, you're an idiot. We like you anyway.

[ExiledInIllinois]

None from my seat.

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And what seat might that be? From the top of the campus steeple with your .30-06 Springfield?

 

[ExiledInIllinois]

Yeah, you're an idiot. We like you anyway.

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I got "sticking power"...