Understanding the "New" Court
It's All About Deincorporating the 14th, Isn't It?
My response to The Status Kuo by Jay Kuo
Brown v. Board was not just suddenly overturning the precedent of Plessy. When Plessy was decided the general theory was not incorporating the states to the bill of rights, though Harlan suggested it should in its dissent, but in the 20th the court began to reevaluate Justice Harlan's argument. And then there were some minor decisions granting minorities equal access to higher education, followed by Sipuel which was extremely monumental, I believe, in leading to Brown v. Board. There was no radical reevaluation that just out of the blue overturned Plessy as usually assumed.
Nor was Roe just an out of blue, it followed on a decade and a half of precedent that led to moderately conservative Harry Blackmun to write Roe. And Brennan stated he was only an encouragement to Blackmun, and not the author of Roe. In fact, Brennan thought that Blackmun writing Roe made it more solid and more precedential., so Alito's first contention of error certainly was incorrect because strong precedent established the "viabileness" (like that word) for Roe. If we compare "quality of reasoning," the Alito, not only in Roe, but in Vega v. Tekoh makes one wonder how his reasoning got him through kindergarten, let alone law school. If Roberts had any guts he would set Alito down and explain to him he doesn't have the slightest ability to write a "reasoned" legal decision and disqualify from ever writing anything but solo dissents. Roberts should just flat out tell him that he has polemical positions, but little writing skills or comprehension of the law.
On the third point, I have no comprehension of what he means by "workability" of Roe. Were there legal challenges to Roe,? Yes, and Casey was very carefully written to give a proper pathway to such challengers, but I do not see any indications that Roe or Casey were "unworkable". As far as workable goes they provided a safe avenue for abortions instead of the unworkable backstreet butchershops. As for Kavanaugh's concurrence that Casey was too litigious, then Breyer's chastisement said more than I can, basically telling Kavanaugh if you don't like litigation, get off the court, you have no business here.
"Disruptive effect on other areas of law"? What in God's name has Dodds led to pray tell? Didn't O'Connor say in Casey that overturning Roe would do that very thing. Alito's boast that O'connor lacked guts but he did have the guts, well, then let him face the consequences of his guts and when a woman is turned away from care during a miscarriage, let him have the guts to be prosecuted for the crime if she becomes ill. Or maybe the govt. should have the guts to prosecute criminals that create crime by words that lead to criminal activity.
"Absence of concrete reliance?" Concrete reliance on the idea that women are capable of making decisions? Or concrete reliance on a dictatorial government that makes all decisions for people? Or concrete reliance on a court that is King?
Finally, Alito doesn't understand his own "history" lesson with constant chatter about "quickening". Does he know when quickening occurs, does he understand when quickening occurs? Does he know what the term means? Basically abortions were allowed after quickening (12-15 weeks, essentially the first trimester of Roe) when it was too medically dangerous to do one and because at that time it was true that most abortions post quickening usually would end in death. The flip that women didn't know they were pregnant until quickening is ridiculous. Quickening may have been proof, but by the second missed period many women pretty well knew they were pregnant. Women with regular periods pretty well know after one missed period.
The recent decisions essentially, but especially the idea of returning "issue(s) to the state or about deincorporating the incorporation of the 14th to the first ten and that is primarily where this court wishes us to go.