BRAVO SUPREME COURT JUSTICE J. ALITO!!!!!

Offered below is an excerpt of the syllabus (summary) by Justice Alito who authored the majority opinion on Dobbs as published last Friday.

He completely eviscerated the flawed, muddle headed, contradictory thinking of the Court in the Roe and Casey decisions that gave us close to 50 years of permissive abortion in the U.S.

God bless him and his associates who stood courageously for truth, righteousness, fidelity to their oath to interpret the Constitution correctly UNDER the authority of God not free for all, untethered secular humanist principles.

We can be proud there are now six justices whose opinions are informed by their Christian faith.

This ruling restores substantially the credibility of the High Court and has profound consequences on constitutional law beyond abortion jurisprudence.

God bless the right thinking Justices. Their contribution to America’s transformation is historic, epic.

There is much to ponder and understand about the future course of our nation with Roe and progeny rulings consigned to the dustbin of history with other horrendous decisions like Dred Scott (undone by 13/14th amendments); Plessy, reversed by the Brown vs Board of Ed decision; Korematsu, the legal internment of Japanese Americans, only recently condemned in 2018 in Trump vs Hawaii. Roe will be understood like Korematsu, as a great travesty of justice against the dignity of every sacred human person.

Phil

T]he Court finds the Fourteenth Amendment clearly does not protect the right to an abortion. Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion.
No state constitutional provision had recognized such a right. Until a few years before Roe, no federal or state court had recognized such a right. Nor had any scholarly treatise. Indeed, abortion had long been a crime in every single State. At common law, abortion was criminal in at least some stages of pregnancy and was regarded as unlawful and could have very serious consequences at all stages. American law followed the common law until a wave of statutory restrictions in the 1800s expanded criminal liability for abortions. By the time the Fourteenth Amendment was adopted, three-quarters of the States had made abortion a crime at any stage of pregnancy.

Offered below is an excerpt of the syllabus (summary) by Justice Alito who authored the majority opinion on Dobbs as published last Friday.

He completely eviscerated the flawed, muddle headed, contradictory thinking of the Court in the Roe and Casey decisions that gave us close to 50 years of permissive abortion in the U.S.

We can be proud there are now six justices whose opinions are informed by their Christian faith.

This ruling restores substantially the credibility of the High Court and has profound consequences on constitutional law beyond abortion jurisprudence.

God bless the right thinking Justices. Their contribution to America’s transformation is historic, epic.

Phil

This consensus endured until the day Roe was decided. Roe either ignored or misstated this history, and Casey declined to reconsider Roe’s faulty historical analysis.

Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. The Court overrules those decisions and returns that authority to the people and their elected representatives. Pp. 78–79.

945 F. 3d 265, reversed and remanded.

ALITO, J., delivered the opinion of the Court, in which THOMAS, GORSUCH, KAVANAUGH, and BARRETT, JJ., joined. THOMAS, J., and KAVANAUGH, J., filed concurring opinions. ROBERTS, C. J., filed an opinion concurring in the judgment. BREYER, SOTOMAYOR, and KAGAN, JJ., filed a dissenting opinion.

This consensus endured until the day Roe was decided. Roe either ignored or misstated this history, and Casey declined to reconsider Roe’s faulty historical analysis.

945 F. 3d 265, reversed and remanded.

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

By ED WHELAN

June 29, 2022 2:57 PM

In the immediate aftermath of the Supreme Court’s ruling in Dobbs, the en banc Sixth Circuit (in Memphis Center for Reproductive Health v. Slatery) has unanimously vacated a district court’s preliminary injunction against two provisions of Tennessee abortion law. One of the provisions bars abortion, except in the event of a medical emergency, once a baby’s heartbeat is detected (typically around six weeks of gestational age). The other bars abortions sought for discriminatory reasons—specifically, on the basis of the child’s race, sex, or condition of Down syndrome. (The Sixth Circuit’s one-sentence order is appended on the last page of Tennessee’s emergency motion to vacate the injunction.)

Congratulations to Tennessee attorney general Herbert H. Slatery III on his vigorous and ultimately successful defense of the provisions.

A Sixth Circuit panel had initially affirmed the district court’s order, with Judge Amul Thapar dissenting as to the discrimination ban. (I will have a post next on my just-published Texas Review of Law & Politics article on Thapar’s outstanding opinion.) The en banc Sixth Circuit granted review of the panel decision last December.

My Law-Review Article on Judge Thapar’s Outstanding Abortion Opinion

By ED WHELAN

June 29, 2022 3:23 PM

Related to my previous post on the en banc Sixth Circuit’s order allowing two provisions of Tennessee abortion law to take effect:

The Texas Review of Law & Politics has just published my article praising Judge Amul Thapar’s separate panel opinion (concurring in part and dissenting) as “an outstanding example of his originalist craftsmanship.” Here are some excerpts from my article (the time frame of which reflects that I wrote it months before last week’s ruling in Dobbs):

Thapar’s stature as a prominent originalist is itself a testament to the transcendent appeal of originalism as a methodology of constitutional interpretation. The son of working-class immigrants from India, Thapar was born and raised in the heartland of America, Michigan and Ohio. The love for this country and its founding principles that his parents instilled in him is illustrated by his mother’s decision, in the aftermath of the 9/11 attacks, to close her successful restaurant business and dedicate herself to helping military veterans adjust to civilian life. In response to a colleague’s charge that many Americans want to shut our borders “to all potential immigrants who are not blond-haired and blue-eyed,” Thapar replied that “as someone who is neither blond-haired nor blue-eyed and who has benefited directly from the kindness of the American people, I believe that the American Dream is alive and well for persons of all stripes.” …

Drawing on a broad range of sources, [Judge Thapar] provides a clear, compelling, and comprehensive account of how the Supreme Court’s abortion precedents in Roe and Casey are “wrong as a matter of constitutional text, structure, and history.” He also depicts the damage that they have wreaked on the law. As the Supreme Court decides Dobbs v. Jackson Women’s Health Organization, Thapar’s opinion provides forceful support for overruling Roe and Casey….

Thapar launches his originalist analysis by setting forth what public-meaning originalism entails. The meaning of a constitutional provision “is fixed when it is enacted and does not change unless the [Constitution] itself has been changed.” Courts determine this original meaning “by looking to the Constitution’s ‘text, structure, and original understanding’”—in other words, “by asking what a reasonable reader at the time of ratification (the intended audience) would understand the Constitution’s text to mean in light of the Nation’s history and legal backdrop.”…

As Thapar points out, there is no constitutional text, in the Fourteenth Amendment or elsewhere, that “explicitly provides a right to abortion.” Nor can such a right be said to be “deeply rooted” in our nation’s “history, legal traditions, and practices.” The Roe majority’s claim to the contrary badly “rewrote history” by relying heavily on the shoddy, and now thoroughly discredited, scholarship of abortion proponent Cyril Means. As Thapar discusses in detail, Means was flatly wrong to contend that abortion at common law “was not an offense of any kind, no matter at what stage of gestation it was performed.” On the contrary, abortion was a criminal offense at common law, at least from quickening (when the unborn child’s life could first be discerned), even if evidentiary challenges often prevented prosecution. And even if the common law, in light of the primitive state of embryology, did not forbid abortion before quickening, that would not mean that abortion was “affirmatively protected” as a right.

This Day in Liberal Judicial Activism—June 29

By ED WHELAN

June 29, 2022 8:00 AM

1972—In Furman v. Georgia, five justices vote to overturn a death penalty as cruel and unusual punishment in violation of the Eighth Amendment but can’t agree on a rationale. Each of the five justices instead issues his own opinion. Despite the fact that the Fifth and Fourteenth Amendments expressly assume the existence of the death penalty, Justices Brennan and Marshall each assert that the death penalty is in every instance an Eighth Amendment violation. The Court’s per curiam declaration creates massive confusion and requires states to rewrite their capital-sentencing laws.

1992—By a vote of 5 to 4, the Supreme Court bungles an opportunity to dismantle the regime of Roe v. Wade and to restore abortion policy to the democratic processes. In Planned Parenthood v. Casey, Justices O’Connor, Kennedy, and Souter combine to produce a joint opinion so breathtaking in its grandiose misunderstanding of the Supreme Court’s role that it makes one long for the modest incoherence of Justice Blackmun’s opinion in Roe v. Wade. [OVERRULED BY DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION]

The joint opinion is perhaps most infamous for declaring, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” What this gauzy New Age rhetoric obscures is that the justices are claiming the unconstrained power to define for all Americans which particular interests they think should be beyond the bounds of citizens to address through legislation.

But it gets far worse. Consider, for example, these passages on stare decisis considerations:

“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.”

“To all those who will be so tested by following [the Court], the Court implicitly undertakes to remain steadfast, lest in the end a price be paid for nothing. The promise of constancy, once given, binds its maker for as long as the power to stand by the decision survives and the understanding of the issue has not changed so fundamentally as to render the commitment obsolete.”

“Like the character of an individual, the legitimacy of the Court must be earned over time. So, indeed, must be the character of a Nation of people who aspire to live according to the rule of law. Their belief in themselves as such a people is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals. If the Court’s legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals. The Court’s concern with legitimacy is not for the sake of the Court but for the sake of the Nation to which it is responsible.”

Subject yourself to parts I, II, and III of the atrocity, and then read Justice Scalia’s devastating response. Some excerpts from Justice Scalia:

“The Court’s description of the place of Roe in the social history of the United States is unrecognizable. Not only did 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. National politics were not plagued by abortion protests, national abortion lobbying, or abortion marches on Congress, before Roe v. Wade was decided. Profound disagreement existed among our citizens over the issue—as it does over other issues, such as the death penalty—but that disagreement was being worked out at the state level.”

“Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since. And by keeping us in the abortion umpiring business, it is the perpetuation of that disruption, rather than of any pax Roeana, that the Court’s new majority decrees.”

“The Imperial Judiciary lives. It is instructive to compare this Nietzschean vision of us unelected, life tenured judges—leading a Volk who will be ‘tested by following,’ and whose very ‘belief in themselves’ is mystically bound up in their ‘understanding’ of a Court that ‘speak[s] before all others for their constitutional ideals’—with the somewhat more modest role envisioned for these lawyers by the Founders: ‘The judiciary . . . has . . . no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will but merely judgment.’ The Federalist No. 78.” 

2018—By a 5-2 vote, the Iowa supreme court rules (in Planned Parenthood v. Reynolds) that the state constitution requires that regulations of abortion be subject to strict judicial scrutiny and, applying such scrutiny, bars a state law that requires a 72-hour waiting period between the time a woman seeking abortion provides informed consent to the abortion and the time the abortion takes place.

In June 2022, the Iowa supreme court will repudiate this ruling.

2020—Presented an opportunity to begin making headway against the Supreme Court’s illegitimate Roe/Casey abortion regime, Chief Justice Roberts instead adopts a wooden view of stare decisis in June Medical Services v. Russo. While reiterating his belief that the Court’s 2016 ruling in Whole Woman’s Health v. Hellerstedt  was “wrongly decided,” Roberts casts the decisive fifth vote against Louisiana’s admitting-privileges law for doctors.

From this and other recent votes by Roberts, the Left draws the lesson that bullying him pays big dividends.