It’s not an ultraconservative decision

This is to misunderstand the Constitution:

Samuel Alito has become the latest US supreme court justice to defend the panel’s political independence, labeling criticism of recent ultra-conservative decisions including a tacit approval of an abortion ban in Texas as attempted intimidation.

The SC rules on whether something meets constitutional tests. The TX law is very carefully crafted to meet such. Roe is that states can’t limit – so, the law says that it’s not officers of the state which do limit. It’s individuals bringing civil (?) suits which do. Very carefully crafted to step inside those constitutional restrictions.

To judge (sorry) the validity or even politics of the decision by the outcome is to miss the point of constitutional law in the first place. This is, by definition, what isn’t politics. It’s neither conservative, ultra or not, nor liberal. It’s the constitution.

16 thoughts on “It’s not an ultraconservative decision”

  1. Bloke in North Korea (Germany Province)

    So in the same way the state does not censor by contracting out censorship to tech giants.

    In the same way the state does not mandate vexxines by contracting out to restaurants, airlines etc.

    It does feel like some very creative and disturbing “public private partnerships” are coming into vogue these days.

  2. Fascism:

    (noun) an authoritarian system of government under absolute control of a single dictator, allowing no political opposition, forcibly suppressing dissent, and rigidly controlling most industrial and economic activities.

  3. denying court has been ‘capture by a dangerous cabal’

    That sounds a bit antisemitical. By “capture” do they mean “legitimately appointed”, and by “dangerous cabal”, do they not mean “judges”?

    Of course, it’s true that the US Supreme Court is a failed institution, it’s part of a failed experiment in limited government. If it was working successfully there wouldn’t be any bunfights over its composition and decisions, they’d be as boring and predictable as plumbing.

  4. The SC rules on whether something meets constitutional tests.

    Sometimes. But sometimes they just rule on legal technicalities. In this case they ruled that those bringing the case had not met the standards required for granting an injunction.

    It’s the constitution.

    Not in this case. The Supreme Court order:

    “In reaching this conclusion, we stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit. In particular, this order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts,”

    (emphasis mine)

    Your general point about US Supreme Court rulings being constitutional rather than political is naïve at best. That kind of power over the other branches of government is going to be raw politics, however polite. Hence the battles over court nominees.

    And Roe vs Wade was exactly the SC pulling the constitution out of their political arses.

  5. BlokeInBrum – I sometimes idly wonder about the highest form of governance. May it not be that our liberal democracy is more tyrannical and less representative than the kings of old, who ruled by Divine Right, or the Lord Protector who ruled through snaphaunces and harquebuses?

    I am a poor penman but the late Gene Wolfe was a master of letters:

    “Severian. Name for me the seven principles of governance.”

    “Attachment to the person of the monarch. Attachment to a bloodline or other sequence of succession. Attachment to the royal state. Attachment to a code legitimizing the governing state. Attachment to the law only. Attachment to a greater or lesser board of electors, as framers of the law. Attachment to an abstraction conceived as including the body of electors, other bodies giving rise to them, and numerous other elements, largely ideal.”

    “Tolerable. Of these, which is the earliest form, and which the highest?”

    “The development is in the order given, Master,” I said. “But I do not recall that you ever asked before which was highest.”

    Master Malrubius leaned forward, his eyes burning brighter than the coals of the fire. “Which is highest, Severian?”

    “The last, Master?”

    “You mean attachment to an abstraction conceived as including the body of electors, other bodies giving rise to them, and numerous other elements, largely ideal?”

    “Yes, Master.”

    “Of what kind, Severian, is your own attachment to the Divine Entity?”

    “Answer me, Severian.”

    “The first, if I have any.”

    “To the person of the monarch?”

    “Yes, because there is no succession.”

    “The animal [a dog] that rests beside you now would die for you. Of what kind is his attachment to you?”

    “The first?”

    There was no one there. I sat up. Malrubius and Triskele [the dog] had vanished, yet my side felt faintly warm.

  6. This is why the government should always stay out of our personal business. The Founding Fathers didn’t even set up government control of education, let alone our medical decisions. The Constitution gives a very limited amount of power to the federal government. All other legislation is to be handled by individual states. The only legislation allowed at the federal level is that which pertains to the Constitution. That is, issues of citizenship, national defense, basic human rights, etc. can be handled by Congress. That’s why Roe v. Wade simply *allows* abortion. It doesn’t fund abortion, or tell states how readily available abortion clinics should be. That’s for states to decide. And where is this distinction between state and federal government found? You guessed it, in the Constitution.

    Don’t like Texas’ law? Then move to California and get 50 abortions in a row if you’d like. You can still use the same U.S. currency and communicate in English when you get there.

    Most importantly, if you don’t want the government to control something, then don’t make them (i.e., taxpayers) pay for it. Sure, it sounds nice to think that the government provides funding for what you consider a “human right.” But think about it for two more seconds, and you realize that anyone who pays you also has some say over how their money is spent. A deli employee doesn’t collect $6 to make a grilled cheese sandwich, and then start adding peanut butter and mayonnaise to the mix. The deli has to make the sandwich in the way that the customer decides. Otherwise, they are ultimately stealing other people’s money to fulfill their own whims. If however, you spend your *own* money for ingredients, and are making a sandwich for yourself, then you can make whatever strange concoction you want. Power doesn’t come from begging for money. It comes from solving your own problems.

    One surefire way to resolve the abortion issue, is to figure out how to make abortions less necessary. If you have less pregnant minors, less rapes, less unprotected sex, less glorification of single motherhood, less deadbeat fathers and less government incentives, then you’ll have less women trying to get an abortion in the first place.

  7. “That’s why Roe v. Wade simply *allows* abortion.” But SCOTUS ignored the Constitution when it ruled on Wade-Roe. The Constitution is unambiguous on the point – no power not given explicitly to the Federation resides in the States or the People.

  8. Chbddjjd
    October 3, 2021 at 5:03 pm

    This is why the government should always stay out of our personal business.

    Not everyone considers it to be just personal businesses though.

    One surefire way to resolve the abortion issue, is to figure out how to make abortions less necessary. If you have less pregnant minors, less rapes, less unprotected sex, less glorification of single motherhood, less deadbeat fathers and less government incentives, then you’ll have less women trying to get an abortion in the first place.

    We used to do that. Then there were a bunch of people who said that all that was their personal business and so leveraged the power of government to make sure they could live like they wanted to.

  9. dearieme
    October 3, 2021 at 8:56 pm

    “That’s why Roe v. Wade simply *allows* abortion.” But SCOTUS ignored the Constitution when it ruled on Wade-Roe. The Constitution is unambiguous on the point – no power not given explicitly to the Federation resides in the States or the People.

    *All* powers not given to the Federal government are held either by the states or the people.

    And Roe says that the ‘power’ of getting an abortion resides with the people by virtue of a right to privacy.

  10. @dearieme,

    One can argue about whether abortion is an inalienable right, though SCOTUS’ decision was that it is. However, it’s certainly an issue for the federal government to decide—should abortion be treated the way we treat murder? Roe v. Wade’s purpose was to decide that abortion should be considered a personal issue that the government should not intrude upon. So it wasn’t SCOTUS ignoring the Constitution. Rather, they were deciding that allowing abortion was in line with the natural rights the Constitution affords.

    @Agammamon That’s the complicated part of this. It’s a similar dilemma we face with drug abuse. We shouldn’t be governing people’s bodies, but there are also problems that arise from certain bad behavior, a cost which the rest of us have to bear. With the drug issue, I believe we should either legalize all drugs, but leave individuals responsible for rehab costs and have stuff legal consequences when they cause harm, or we can have strict enforcement against illegal substances, but have taxpayers fund rehabs and needle exchange programs. To have the ambiguous policies we have now is to continue all of the problems we’re facing with the drug trade.

    So for abortion, I say either outlaw abortion, but provide assistance for any mother facing tough choices (guarantee adoption, free parenting resources, etc.), or keep abortion legal, but force Planned Parenthood to become a 100% private enterprise. There will always be grey area, as well as cases where abortion is necessary to save the life of the mother, but you can’t both demand money from taxpayers *and* insist that they have no say in how their money is spent. Personally, I think women who have beyond a certain number of abortions, or beyond a certain number of children they are unable to care for, should be sterilized to prevent further child abuse, but good luck getting that passed through Congress.

    The best illustration of the absurdity of the abortion debate came just yesterday. The Women’s March in New York City drew celebrities and thousands of protestors against the law in Texas. A common picket sign you tend to see at these events is, “No uterus, no opinion.”

    Amy Schumer was there. She’s had a hysterectomy.

  11. The only legislation allowed at the federal level is that which pertains to the Constitution.

    The constitution gives congress the power to regulate interstate commerce. It’s amazing what congress can squeeze out of that.

  12. Don’t like Texas’ law? Then move to California and get 50 abortions in a row if you’d like. You can still use the same U.S. currency and communicate in English when you get there.

    I assume you haven’t been to California recently. (And who could blame you?) The chances of encountering a fluent English speaker are rapidly diminishing (in the large cities, at least).

Leave a Reply

Your email address will not be published. Required fields are marked *