Dred Scott, Homer Plessy, and Fred Korematsu would like a word people who believe wrongly decided Supreme Court rulings should be left standing.
Roger Taney, John Ferguson, and Franklin Roosevelt are, and should be, maintaining an embarrassed silence.
I’ve skimmed the document which Politico alleges to be a draft decision by Justice Alito striking down Roe v. Wade and Planned Parenthood v. Casey. It seems to me the gist of his argument is that the Supreme Court exceeded its authority by inventing a right that had no foundation in either the Constitution or American common law or our civil traditions. Therefore, regulation of abortion is a matter for each state.
I’m not surprised by that reasoning. I hope the Court’s final ruling goes that way.
This leads me wonder what the reasoning in the pending New York State Rifle & Pistol Association case will be. That case deals with a state’s regulation of a right explicitly protected in the Bill of Rights, a right the Court has previously ruled is bound on the states via the Fourteenth Amendment. Will the justices find some new extra-Constitutional doctrine that will allow states to continue to suppress an enumerated right? Or will they tell the states that Second Amendment is fully applicable nationwide?
I was able to listen to most of the oral argument in Dobbs v. Jackson Women’s Health this morning. Upon reflection, I have the following comments—
Justice Thomas posed two important questions which I don’t believe were properly answered. First, where is a right to an abortion found in the Constitution? Second, could a women who uses illegal drugs before her baby is viable and thereby causes injury to the child be charged with child abuse?
Justice Sotomayor’s comparison of a child in utero with a brain dead person was bizarre. And ghastly.
It seems clear how Justices Thomas, Alito, Breyer, Kagan, and Sotomayor will vote.
Based on what I heard, I suspect the remaining four justices will vote with Thomas and Alito to put an end to Roe v. Wade, but I’m not sure.
I suppose we’ll see in late June.