My opinion is that Roe v Wade was a dumb jurisprudential decision that has maybe led to good policy, while Citizens United was a good jurisprudential decision that has maybe led to bad policy. People need to be more comfortable admitting when those two things don't line up.
I'm not sure I agree with your examples but your larger point is 100% correct. The constitution does not always lead to good policy. It'd be really strange if a document that hasn't received substantive amendments in a century did.
With respect to the Constitution itself, I would say regarding the enumerated powers it specifically lays out, unless a constitutional amendment is passed giving Congress the authority to do so, Congress cannot supersede state legislation regarding abortion. Congress could pass a law doing so, but if it were challenged on constitutional grounds, a strict interpretation would strike it down.
Josh, do you think Roe should be overturned since it is widely viewed as bad jurisprudence but is somewhat of a compromise in terms of policy? I used to be hesitant about the prospect of overturning it and Casey, but Kavanaugh made an interesting point in the Dobbs oral argument saying it’s really not that uncommon for the Court to overturn bad precedent. Lawrence v. Texas is a good example of the Court reversing precedent that was a win for the LGBTQ community. That made me think that, you know what, maybe Roe should fall and the abortion issue should return to the states. 🤷🏼♂️
Right - but before the court was well to the left of American society. It's no more to the right of median opinion today than it was to the left pre-Kavanaugh. So if that's OK then this should be too.
Funny what you say about Kelo -- it's a case that conservatives I respect like to cite as an example of one that is clearly correctly decided, though contrary to their own policy preferences. I would have guessed this to be your view.
The court seems pretty fair to me, not too far right. I'm honestly much more afraid of the liberal justices who vote as a bloc together much more often than the conservative justices. Liberal justices are happy to legislate from the bench (see the Obamacare, Roe, and recent Civil Rights Act cases). You can think those outcomes were good or bad, but I think it's clear they were reading things into laws/the Constitution that are simply not there.
I think this under appreciates the how fast the rules of engagement changed during the GWB-Obama-Trump years. Republicans we’re mad that the Democrats had attempted to put a filibuster together on Alito and that confirmations went to a trickle after the Democrats took the senate. While, they had not mounted an attempted filibuster against Sotomayor or Kagan, the number of republicans voting to confirm dropped dramatically.
Then in 2013, Harry Reid did the nuclear option but made a big show of leaving the filibuster in place for Supreme Court nominations. Under the prospect of needing 60 votes, RBG believed there was no way to get a replacement as “liberal” as her confirmed. She said as much.
Should she have retired in 2014? Yes, especially with the benefit of hindsight. But she had no idea how badly things would go over the next 6 years when the Garland blocking, Trump election and removal of the filibuster for SCOTUS. Things went basically as bad as they could go for RBG. But it’s a mistake to think that a 2014 retirement would have been clean and easy.
To my mind Heller is one of the most bizarre supreme court decisions of recent decades and I am wondering how you agreed with it given what seems like an overall lack of gun nuttery on your part.
I find the passionate opposition to this case--especially among libertarians--to be a little confusing.
I'm guessing your opposition to the case derives from the inner--or earlier in career--libertarian in you, though of course I could be wrong about that.
This might be an opportunity to elaborate in more detail--perhaps in a mayo clinic point--if you think worthy.
My opinion is that Roe v Wade was a dumb jurisprudential decision that has maybe led to good policy, while Citizens United was a good jurisprudential decision that has maybe led to bad policy. People need to be more comfortable admitting when those two things don't line up.
I'm not sure I agree with your examples but your larger point is 100% correct. The constitution does not always lead to good policy. It'd be really strange if a document that hasn't received substantive amendments in a century did.
I think I might be the only person left in America who thinks Roe is well-reasoned as well as correct. But it's a view I hold pretty strongly.
With respect to the Constitution itself, I would say regarding the enumerated powers it specifically lays out, unless a constitutional amendment is passed giving Congress the authority to do so, Congress cannot supersede state legislation regarding abortion. Congress could pass a law doing so, but if it were challenged on constitutional grounds, a strict interpretation would strike it down.
Josh, do you think Roe should be overturned since it is widely viewed as bad jurisprudence but is somewhat of a compromise in terms of policy? I used to be hesitant about the prospect of overturning it and Casey, but Kavanaugh made an interesting point in the Dobbs oral argument saying it’s really not that uncommon for the Court to overturn bad precedent. Lawrence v. Texas is a good example of the Court reversing precedent that was a win for the LGBTQ community. That made me think that, you know what, maybe Roe should fall and the abortion issue should return to the states. 🤷🏼♂️
The first time in decades that the court is right of center is when it is "too far right"... hmm...
Just say that you want it to be a progressive rubber stamp.
This "too far right" court will end the evil practice of affirmative action. Makes everything else worth it.
Right - but before the court was well to the left of American society. It's no more to the right of median opinion today than it was to the left pre-Kavanaugh. So if that's OK then this should be too.
Funny what you say about Kelo -- it's a case that conservatives I respect like to cite as an example of one that is clearly correctly decided, though contrary to their own policy preferences. I would have guessed this to be your view.
The court seems pretty fair to me, not too far right. I'm honestly much more afraid of the liberal justices who vote as a bloc together much more often than the conservative justices. Liberal justices are happy to legislate from the bench (see the Obamacare, Roe, and recent Civil Rights Act cases). You can think those outcomes were good or bad, but I think it's clear they were reading things into laws/the Constitution that are simply not there.
I think this under appreciates the how fast the rules of engagement changed during the GWB-Obama-Trump years. Republicans we’re mad that the Democrats had attempted to put a filibuster together on Alito and that confirmations went to a trickle after the Democrats took the senate. While, they had not mounted an attempted filibuster against Sotomayor or Kagan, the number of republicans voting to confirm dropped dramatically.
Then in 2013, Harry Reid did the nuclear option but made a big show of leaving the filibuster in place for Supreme Court nominations. Under the prospect of needing 60 votes, RBG believed there was no way to get a replacement as “liberal” as her confirmed. She said as much.
Should she have retired in 2014? Yes, especially with the benefit of hindsight. But she had no idea how badly things would go over the next 6 years when the Garland blocking, Trump election and removal of the filibuster for SCOTUS. Things went basically as bad as they could go for RBG. But it’s a mistake to think that a 2014 retirement would have been clean and easy.
To my mind Heller is one of the most bizarre supreme court decisions of recent decades and I am wondering how you agreed with it given what seems like an overall lack of gun nuttery on your part.
Is Kelo an error because the policy is bad or is Kelo wrong because the Court interpreted the underlying constitutional provisions incorrectly?
The latter. I think the court was too expansive on what could constitute a “public use.”
I find the passionate opposition to this case--especially among libertarians--to be a little confusing.
I'm guessing your opposition to the case derives from the inner--or earlier in career--libertarian in you, though of course I could be wrong about that.
This might be an opportunity to elaborate in more detail--perhaps in a mayo clinic point--if you think worthy.
(em-dashes)