In the midst of arguments DobbsI was thinking of Judge Sutton’s book. Who makes the final call?? Justices Breyer, Sotomayor and others would be well served by a reading. These justices both often show a deep respect for democracy, even though they are sometimes forced to intervene in it. Fittingly, in DobbsThe most dangerous branch of a tree is the one that’s least democratic.
Justice Breyer summarizes his misunderstanding of the seperation of powers in one sentence:
JUSTICE BRIEF: They say Roe is unique. It’s what makes it special? They claim it is rare. They refer to it as a watershed. Why? It is because the country has become divided. Because feelings run high? But the country, better than worse, resolved its differences with this Court which set a fundamental constitutional principle. This was in regard to women’s choices. It’s why it is rare.
Justice Breyer seemed to truly believe that abortion was resolved by the Country when it allowed the Court’s constitutional principle to be established. Roe Casey. Really? That national plebiscite must have been missed by me.
No. Roe CaseyThis issue was taken from the American people. Mississippi, Texas, as well as other states, clearly disagree with the rule. This is the idea that Roe CaseyFalse statements like “resolved any differences” are false. It is impossible to do better than Justice Scalia’s dissension in Casey:
Court describes the site of Roe in the social history of the United States is unrecognizable. It was not only that the United States had a long history of social injustices. Roe not, as the Court suggests, resolve the deeply divisive issue of abortion; it did more than anything else to nourish it, by elevating it to the national level where it is infinitely more difficult to resolve.
Scalia’s words are timeless over the last three decades.
Justice Sotomayor had a similar misunderstanding of the Court’s role. Because of all the interruptions and cross-talk, it is hard to understand her colloquy avec SG Stewart. Here’s the general idea.
Justice Sotomayor questioned about the consequences for overruling Roe. Are there any states that would challenge such cases? Love, Griswold, LawrencePlease see the following: Obergefell? Stewart could not deny this possibility. Stewart admitted that there will always be a range of opinions. Diversity of viewpoints is normal in every polity. Justice Sotomayor interrupted and said that she thought it was a good idea to have a “gotcha” moment. She stated, “That is the point.” In other words: The Court must accept that there will be disagreements. Roe Casey. Benighted Justices are more knowledgeable than ordinary people.
Stewart was not in agreement with the question. Stewart said that this diversity of opinions is “one benefit of our society.” He stated that “there is diversity in views, and people can debate and make their own decisions.” It isn’t a right that comes from a pedestal, it is self-governance. Declaration of Independence was founded upon the principle of non-representation. This is a key point. Roe CaseyThis foundational right was taken away from all 50 state. Justice Sotomayor believes that the fact people disagree can be a reason for judicial supremacy to continue.
Already, Justice Kagan’s question were completely unproductive. Justices Breyer, Sotomayor and others supported the argument that the Imperial Judiciary must be disarmed, although this may not have been intended.