SCOTUS opinion leaked: Roe v Wade

[dukkha]

The reversal of Roe would strengthen federalism. It is more than an afterthought but, yes, I agree it is weakened. Republicans and Democrats would like Congress to pass laws allowing or prohibiting abortion which they do not have the authority to do (the House already passed it). The court already upheld the federal marijuana laws, so abortion might be a similar issue (interstate commerce).

yes that's it. Interstate Commerce can be used for virtually any product - even taxation like upholding Obamacare by Roberts
But I wonder if Congress can pass a statutory law (say use the 14th as a basis) to enshrine "abortion rights"

It devolves back to the state now because there is no federal law (reliance on Roe instead)
but what's to stop Congress from passing such a law that upholds Roe's tenets?

[LV426]

That is one of the dumbest things you have ever said--and that says a lot.

The job of a SCOTUS justice is to determine the Constitutionality of laws, not the personal belief in the morality of them.

Your thinking is really fucking juvenile and wrong.

You think the justices who ruled in favor of segregation or to overturn segregation were not influenced by their personal beliefs?

Have you read the decision in Brown v. Board?

Before opening your big, fat fucking mouth any further, why don't you read that decision and see that it was made not from personal tastes but from the basis of Constitutional law?

Fucking lazy as always.

What law changed that would have changed their opinion?

Read the Brown decision, you flipping idiot.

Or requiring students to salute the flag and reversing themselves three years later?

WHY did they reverse themselves? You think it was all done because of personal tastes and not because of Constitutional Law.

You'll never know that because you're too fucking lazy to read the decisions you're talking about abstractly.

Or upholding laws making sodomy illegal (between same sex or even opposite sex couples) and then reversing that decision were not influenced by their own personal beliefs? What law changed?

READ THE DECISIONS.

All the answers to your stupid questions are there.

You just can't be fuckin' lazy about it.

[Flash]

No, they become precedent.

Only Congress can write laws.

But you don't know that because you think SCOTUS wrote Roe into law, when it merely set precedent.

The Nazi judges didn't erase or write a new law, they tossed precedent.

It set precedent which must be followed by lower courts and is usually recognized in subsequent SC opinions.

If the SC rules states cannot prohibit abortion for the first trimester, that sets precedent which lower courts must follow because it is now constitutional law.

We know only Congress can write laws but the Constitution is the "supreme law of the land" which must be followed.

If Roe was not constitutional law no state would have to follow its rulings and people would not be complaining or happy because it might be overturned. People were not upset over precedent but over constitutional law.

[Flash]

Flash, does the Constitution grant the Supreme Court the power to write and enact laws?

It gives them the power to interpret the Constitution (judicial review) which determines law. The Constitution means what the Supreme Court says it means.

Actually, the Constitution does not say the court can interpret it, the Supreme Court gave itself that power in Marbury v. Madison.

You are confusing statutory law with constitutional law.

[Flash]

Look at that parenthetical...that's a goalpost shift.

And no, the Constitution was not changed...it can only be changed by amendment, not by SCOTUS decisions.

What SCOTUS decided in 1970 set precedent, it didn't write a new law.

Jesus fucking Christ...

The Constitution changes through amendment, court decision, and custom and usage.

Roe did not write a new law but changed the interpretation of the Constitution. If it did not create new constitutional law then Roe was not binding on anything.

[Flash]

The job of a SCOTUS justice is to determine the Constitutionality of laws, not the personal belief in the morality of them.

Your thinking is really fucking juvenile and wrong.

Have you read the decision in Brown v. Board?

Before opening your big, fat fucking mouth any further, why don't you read that decision and see that it was made not from personal tastes but from the basis of Constitutional law?

Fucking lazy as always.

Read the Brown decision, you flipping idiot.

WHY did they reverse themselves? You think it was all done because of personal tastes and not because of Constitutional Law.

You'll never know that because you're too fucking lazy to read the decisions you're talking about abstractly.


READ THE DECISIONS.

All the answers to your stupid questions are there.

You just can't be fuckin' lazy about it.

What constitutional law changed between the time the Court ruled separate but equal was constitutional and the time it overturned that decision and ruled it was not constitutional?

The SC created new constitutional law when it overturned Plessy. If Plessy was precedent, why wasn't that precedent followed in Brown v. Board? Brown v. Board overturned Plessy and the precedent it created.

The Supreme Court hears very few cases each session that interprets the constitutionality of laws.

[Flash]

yes that's it. Interstate Commerce can be used for virtually any product - even taxation like upholding Obamacare by Roberts
But I wonder if Congress can pass a statutory law (say use the 14th as a basis) to enshrine "abortion rights"

It devolves back to the state now because there is no federal law (reliance on Roe instead)
but what's to stop Congress from passing such a law that upholds Roe's tenets?

The House did pass such a law but it stalled in the Senate. That would further increase federal power at the expense of the states.

[LV426]

It set precedent which must be followed by lower courts and is usually recognized in subsequent SC opinions. .

Right, but that doesn't magically turn it into a law.

It sets precedent.

Precedent is not law.

Only Congress can write laws.

If Roe was not constitutional law no state would have to follow its rulings and people would not be complaining or happy because it might be overturned.

Again, Roe isn't a law.

It is a decision that set precedent.

There is no "Roe Law" on the books and there never has been.

People were not upset over precedent but over constitutional law.

What are you talking about?

[LV426]

It gives them the power to interpret the Constitution (judicial review) which determines law.

No, determines the Constitutionality of laws.

SCOTUS doesn't determine law, they determine whether or not the law is Constitutional.

You are confusing statutory law with constitutional law.

In this context, there is no law that SCOTUS writes or creates.

All they do is set precedent, and those precedents should be followed unless there is a Constitutional reason they should not be.

[LV426]

The Constitution changes through amendment, court decision, and custom and usage.

NO!

The only way the Constitution can be changed is through the amendment process.

What the courts do is set precedent based on Constitutionality.

But precedent, as we know, is fungible.

Roe did not write a new law but changed the interpretation of the Constitution.

Right, and another term for that is "setting precedent".

[Flash]

Therefore, if the right to privacy no longer is precedent for abortion, then it isn't for Griswold and birth control either.

That is not the way it works. That draft was only ruling on the MS abortion law. If the SC rules privacy does not protect abortion does not change its application in Griswold. It was only ruling on this one issue.

Over the years the SC has added new rights under the right to privacy (consensual sex) and rejected others (drug tests for school athletes). Rejecting one does not throw out all the others.

NO!

NO!

NO!

It became precedent because Congress is the only entity that can create laws.

Your thinking that SCOTUS has the power to write laws is completely fucked. Unless you can point to anywhere in the Constitution that grants it that power. Can you do that? Of course not.




The precedent was set by the decision that the right to privacy extends to abortion, but that is not a law.

That's why Congress must pass a federal law codifying the legality of abortion.

That's the only way around this decision.

Roe is constitutional law, not statutory law. The Supreme Court creates constitutional law through its interpretations.

If you would bother to read the draft you might understand it better.

[LV426]

What constitutional law changed between the time the Court ruled separate but equal was constitutional and the time it overturned that decision and ruled it was not constitutional?

Again, READ THE DECISION, Flash.

[Flash]

Again, READ THE DECISION, Flash.

In other words, you cannot explain the constitutional law that changed to change this decision. I have read this decision many times. The studies about school performance in segregated v. integrated classrooms was not constitutional law.

Read the dissents in Brown if you do not believe the personal views of the justices affected their decisions.

[Flash]

NO!

The only way the Constitution can be changed is through the amendment process.

What the courts do is set precedent based on Constitutionality.

But precedent, as we know, is fungible.

Right, and another term for that is "setting precedent".

If precedent is fungible, then changing precedent means changing the meaning of the Constitution (constitutional law). That means the Constitution changes through court interpretation and not just amendment. Most changes have been through interpretation and not the 27 amendments.

When you say the SC (and lower courts) sets precedent based on constitutionality, what was the constitutionality in Roe?

[zymurgy]

If precedent is fungible, then changing precedent means changing the meaning of the Constitution (constitutional law). That means the Constitution changes through court interpretation and not just amendment. Most changes have been through interpretation and not the 27 amendments.

When you say the SC (and lower courts) sets precedent based on constitutionality, what was the constitutionality in Roe?

well said. clear debate winner!