Thoughts on Last Week’s Revelation About Overturning Roe

The revelations last week about the deliberations of the court during  Dobbs deliberations came as no surprise to me.  The concurring opinions had given me a great deal of insight.  Now I want to pull back just one moment.  There was a lot of discussion about whether or not some of the justices might have changed their mind.  Of course that i not untrue, but if they might have changed their minds that means the court hadn’t made up their minds.  

But as I mentioned, the three justices who wrote consensus exposed a degree of non-consensus that I found extremely disturbing because their reasoning was even worse than Alito’s non-majority(only two others signed on–,a very poor, or weak decision that should be revisited.

First of course was Thomas’ ridiculous dissent.  Not really ridiculously written, but ridiculous judicially criminal.  Roberts shouldn’t have even allowed it to be published, and in my mind he probably did do what he could, but I suppose there’s no absolute power any chief has to forbid another justice’s opinion.   But suppose a judge, any judge, has a dispute with someone and makes it public if someone brings a case (either criminal or civil) to his court he will insure the party he  dislikes is punished.  Of course that judge would be disbarred.  He possibly could even be charged criminally, but certainly no decision he had made would stand.  Even in countries that courts decide only civilly , it wouldn’t stand, and more than likely civil justice systems would consider it a statutory violation and it is more than probable the judge would be criminally prosecuted.  Even in Russia where Putin certainly imposes his will on the judiciary, I sincerely doubt he would permit such brazenness from a judge.  Putin would probably consider the justice had gone way over the line of authority and impinged on his authority over the judiciary.  I imagine if such a thing occurred the judge might fall from a window or disappear.

No judge can say, “bring me a case to rule against”.  First it already states of deciding a case on any merits of the case, but that you want to vengenize a decision just to do so.  It is exactly the same as a judge asking someone to bring a case against someone he wants to take vengeance upon. That exposes Thomas to criminal violation of almost any judicial ethical impartiality and would be considered so in almost any judicial system anywhere in the world.  

And that is why I don’t believe it was Alito that leaked Dobbs.  I don’t think Alito’s quite bright enough to realize that releasing the decision early would “lock” it if it was not yet fully determined.  Now he probably has been telling people over dinner what the court might be leaning towards.  But those dinner partners hadn’t leaked documents and Alito probably didn’t take the actual decision home with him.  But Thomas?  Of course his own concurrence tells us how eager he is to distort the entire judicial procedure of making decisions on any merits and simply wants to use his position to pay America back for treating him as first a nigger and then as a hired boy.  Sorry to be so vulgar in my language, but that, not an ideology, that drives Clarence Thomas.  Hurt as many people as possible, make the community as contentious as possible and turn the streets of American into as much of a chaotic mess as possible.  He had every reason in the world to benefit his ideologically propensity to use justice as a tool to upset the community.  (I have no more evidence than anyone who has accused Samuel Alito.)

Roberts concurrence was  peculiar.  He doesn’t directly say he would have supported Casey, but he does say he agreed to hear the case as a challenge to Casey, but if the case was to be on whether to overturn Roe, then he would vote to overturn Roe.  Kavanaugh goes the way.  He says Casey is too litigious and he doesn’t want to keep deciding cases based on it.  I don’t need to say much else because Breyer excoriated him properly in his dissent. “Kavanaugh,” Breyer more or less, “if you don’t want to decide cases on the merits of each case and fine tune the common law then go home and collect garbage, ‘cause you’re in the wrong business.”

So I doubt sincerely the case was in any way decided when the leak was exposed.  Kavanaugh couldn’t sign on to Aito’s decision, but he was not a proponent of abortion, so he just kind of abdicated the judiciary’s role.  Roberts, on the other hand indicates he thinks Casey was a good decision, that he wouldn’t have overturned Casey, and that he was perfectly willing to decide each abortion case independently.  Roberts confuses a lot of court watchers.  But I think he really does attempt  to make distinctions in each case (agree with him or not), and he often personally writes  some of more controversial decisions.  That he  didn’t do so in a decision of this magnitude was telling in itself that he had some reservations.  

Now I want to end up by discussing Casey’s decision just briefly.  I personally think there is hardly a better decision (with the possible exception of West Virginia v. Barnette) that explains exactly how our judicial should work.  I know abortion purists didn’t like it, but they never really understand what Roe actually said.  I have been in favor of abortion rights as far back as ‘61 when a friend (not my girl friend) nearly died attempting to perform a self-abortion with a coat hanger.  I was fourteen and I began arguing that abortions will happen so they should be done safely under medical provision.  In my mind, at that time, it had nothing to do with a women’s rights.  Of course a woman should have rights as an autonomous individual ad we need a constitutional amendment that disallows male participation in determining a woman's right on any issue.  But safety is still my prime concern.  But I am concluding with selected excerpts from Casey, but  I encourage everyone, even if they’ve never actually read any judicial decisions to read the whole argument written by Sandra Day O’Connor.  If for no other reason, there was a new conservative justice who had just been appointed to the court, named David Sutter.  Sutter not only signed on to Casey, the brilliance of her argument transformed his entire judicial philosophy for the rest of his court tenure.

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.

The soundness or unsoundness of that constitutional judgment in no sense turns on whether viability occurs at approximately 28 weeks, as was usual at the time of Roe, at 23 to 24 weeks, as it sometimes does today, or at some moment even slightly earlier in pregnancy, as it may if fetal respiratory capacity can somehow be enhanced in the future. Whenever it may occur, the attainment of viability may continue to serve as the critical fact, just as it has done since Roe was decided; which is to say that no change in Roe's factual underpinning has left its central holding obsolete, and none supports an argument for overruling it.

In two circumstances, however, the Court would almost certainly fail to receive the benefit of the doubt in overruling prior cases. There is, first, a point beyond which frequent overruling would overtax the country's belief in the Court's good faith. Despite the variety of reasons that may inform and justify a decision to overrule, we cannot forget that such a decision is usually perceived (and perceived correctly) as, at the least, a statement that a prior decision was wrong. There is a limit to the amount of error that can plausibly be imputed to prior courts. If that limit should be exceeded, disturbance of prior rulings would be taken as evidence that justifiable reexamination of principle had given way to drives for particular results in the short term. The legitimacy of the Court would fade with the frequency of its vacillation.

That first circumstance can be described as hypothetical; the second is to the point here and now. Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court's interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.

88

The Court is not asked to do this very often, having thus addressed the Nation only twice in our lifetime, in the decisions of Brown and Roe But when the Court does act in this way, its decision requires an equally rare precedential force to counter the inevitable efforts to overturn it and to thwart its implementation. Some of those efforts may be mere unprincipled emotional reactions; others may proceed from principles worthy of profound respect. But whatever the premises of opposition may be, only the most convincing justification under accepted standards of precedent could suffice to demonstrate that a later decision overruling the first was anything but a surrender to political pressure, and an unjustified repudiation of the principle on which the Court staked its authority in the first instance. So to overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court's legitimacy beyond any serious question. 

The Court's duty in the present case is clear. In 1973, it confronted the already-divisive issue of governmental power to limit personal choice to undergo abortion, for which it provided a new resolution based on the due process guaranteed by the Fourteenth Amendment. Whether or not a new social consensus is developing on that issue, its divisiveness is no less today than in 1973, and pressure to overrule the decision, like pressure to retain it, has grown only more intense. A decision to overrule Roe's essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court's legitimacy, and to the Nation's commitment to the rule of law. It is therefore imperative to adhere to the essence of Roe's original decision, and we do so today.

Yet it must be remembered that Roe v. Wade speaks with clarity in establishing not only the woman's liberty but also the State's "important and legitimate interest in potential life." Roe, supra, at 163, 93 S.Ct., at 731. That portion of the decision in Roe has been given too little acknowledgement and implementation by the Court in its subsequent cases.

The trimester framework no doubt was erected to ensure that the woman's right to choose not become so subordinate to the State's interest in promoting fetal life that her choice exists in theory but not in fact. We do not agree, however, that the trimester approach is necessary to accomplish this objective. A framework of this rigidity was unnecessary and in its later interpretation sometimes contradicted the State's permissible exercise of its powers.

 In Maher v. Roe, 432 U.S. 464, 473-474, 97 S.Ct. 2376, 2382, 53 L.Ed.2d 484 (1977), the Court explained: "Roe did not declare an unqualified 'constitutional right to an abortion,' as the District Court seemed to think. Rather, the right protects the woman from unduly burdensome interference with her freedom to decide whether to terminate her pregnancy." See also Doe v. Bolton, 410 U.S. 179, 198, 93 S.Ct. 739, 750, 35 L.Ed.2d 201 (1973) 

Some guiding principles should emerge. What is at stake is the woman's right to make the ultimate decision, not a right to be insulated from all others in doing so. Regulations which do no more than create a structural 

mechanism by which the State, or the parent or guardian of a minor, may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman's exercise of the right to choose. See infra, at ---- - ---- (addressing Pennsylvania's parental consent requirement). Unless it has that effect on her right of choice, a state measure designed to persuade her to choose childbirth over abortion will be upheld if reasonably related to that goal. Regulations designed to foster the health of a woman seeking an abortion are valid if they do not constitute an undue burden.

111

(b) We reject the rigid trimester framework of Roe v. Wade. To promote the State's profound interest in potential life, throughout pregnancy the State may take measures to ensure that the woman's choice is informed, and measures designed to advance this interest will not be invalidated as long as their purpose is to persuade the woman to choose childbirth over abortion. These measures must not be an undue burden on the right.

114

(c) As with any medical procedure, the State may enact regulations to further the health or safety of a woman seeking an abortion. Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.

Our Constitution is a covenant running from the first generation of Americans to us and then to future generations. It is a coherent succession. Each generation must learn anew that the Constitution's written terms embody ideas and aspirations that must survive more ages than one. We accept our responsibility not to retreat from interpreting the full meaning of the covenant in light of all of our precedents. We invoke it once again to define the freedom guaranteed by the Constitution's own promise, the promise of liberty.