The problem is much of the left’s gains over the last few decades have been based on shaky legal/constitutional ground. Even leftist judges like Ginsberg admitted that, and they were counting on the mistakes being in place for too long to correct (precedent).
Now all that technical debt is coming back to kick our ass.
This isn’t the end of the world though, Congress can fix everything that’s happened in the last few weeks via proper laws.
Reminder: decisions like Roe v. Wade (and many others in the era before this court) weren't passed by "the left" in a political sense. For example: five of the seven-justice majority in Roe were Republican appointees.
Roe v. Wade was decided in 1971. That's not too soon after the great realignment from the election of 1964. Some of those Republican appointments like Brennan and Stewart happened well before the realignment. And even then, the author of the opinion was written by Blackmun who was appointed by Nixon. Nixon, the guy who brought us the EPA and many other things the modern Republican party likes to hate. Meanwhile one of the dissents to Roe was written by White who was appointed by JFK.
The parties of 1971 were both very different compared to today. You can't assume that someone active in the party in 1956 (Brennan) holds the same values as what's talked about on OAN today.
> Congress can fix everything that’s happened in the last few weeks via proper laws.
Can it?
In principle, sure, anything can happen.
In practice, given how it's not possible to pass any legislation without a filibuster-proof majority?
As others have commented in this and related threads, this is a win for industry precisely because congress CAN'T do anything in practice, given the reakpolitk of how congress actually "works" today.
I wish folks would stop saying "well, it should just go back to the spec, problem solved". This isn't code. This is the convoluted and complex world of political reality, where, unfortunately, might does often mean right. And more often than not, addressing the root cause isn't even possible, much less practical.
If anything, it's the current supreme court that is taking a binary view of legal interpretation and have "fixed the glitch". Glitches which in reality are patches which have been added organically over time to address changes to the underlying OS, new and unheard of use cases, changing specs and requirements, etc.
Unfortunately, a full rewrite often requires systemic overhall and reboot (something I would hope people are averse to doing in practice)
This is very much the opposite of calvinaball. The rules are in the constitution and that hasn't changed in quite a while.
EDIT: RE: no right to poop(sic) in the constitution
It's a list of things the government may not do, not a list of things you may do. Try reading it, it's very short. I would imagine the court would rule a law against that would violate the right to life.
That rule has been there since the beginning even if you don't acknowledge it.
EDIT: It didn't need to be acknowledged because there wasn't a strong push to disarm the population until fairly recently.
EDIT2: It looks to me like they only really go back to just after the civil war, largely to keep African Americans from carrying firearms. The first attempt by the Federal Government to ban them was in the mid 20th century which was exactly what I expected.
EDIT3: James Madison tried and failed to pass the legislation (presumably because it was unpopular), at the state level (not federal level) and it didn't prevent people from owning guns just carrying them in public.
But isn't it strange that it was there in the beginning and no one acknowledged it for about two centuries?
EDIT for your edit: Huh? When I was a kid in Texas way back in the 90's, it was illegal to carry a gun period. You could take them out hunting or to the range or whatnot, but carrying a gun was illegal. The first concealed handgun law was 1995 if memory serves. Carry bans go back to the colonial era.
> It's a list of things the government may not do, not a list of things you may do.
And yet, they saw fit to include the Ninth Amendment, so some nincompoop wouldn't go "there's no right to privacy!"
> I would imagine the court would rule a law against that would violate the right to life.
The wording is "nor shall any state deprive any person of life, liberty, or property, without due process of law"; what happens if pooping is made a capital crime?
Why is banning abortion, marijuana, and whatnot not a similar violation of the "liberty" part of the same clause?
(and what's with this edit-to-reply thing you've got going?)
In this new climate, it will take more than laws. Permanence will require constitutional amendments (which is actually how most things get rooted at the state level, the state constitutions change pretty regularly).
Exactly this. And by putting this off, we've avoided the hard work to get the laws we deserve. After all, if the courts can just wave a wand and make something a `right`, who cares who you vote for or if you even vote at all?
I think the temporary pain will be worth it in the long run as we do the hard work to pass the laws the majority agrees will improve the environment, human rights, and so on.
It's abundantly clear from the Dobbs majority opinion they will not accept a Roe statue from Congress, that they would overturn it on 10th amendment grounds. It's not an express power Congress has, thus it's strictly up to states. Since they also stated in Dobbs they'd use rational basis scrutiny, the lowest scrutiny possible, when judging state laws on abortion restrictions, I expect they will accept state laws that:
* define moment of conception as murder
* fetus as citizen in fact, meaning out of state abortions are also subject to murder charges
* high burden of proof on women, low burden of proof for the state, that a miscarriage rather than abortion occurred
* hold abortion-is-legal states to article 4, section 1 "full faith and credit", i.e. civil fines and extradition for persons fleeing judgements in abortion-is-not-legal states
* hold companies paying for abortion procedures and travel as party to a crime
The Court is lost for a generation, short of expanding the Court. There is no chance 3/4 of the states will ratify a constitutional amendment on this issue. And there's a lot more litigation to come.
And should it come to the Court, I expect they will set aside Griswold, Lawrence, Obergefell using the same logic - it's not a federal power. How they could possible not reverse Loving, I'm not sure, except that likely no state is as yet backward enough to try and making interracial marriage illegal once again.
I think there is merit in the argument that we've been asking the Court to be expedient, while then not doing the dirty work of putting these rights in constitutional amendments. Instead we're kicking the can down the road, but then we are also avoiding a lot of public contention arguing about it - for good and probably not for good to some degree. But look at the polling. Most Americans now disapprove of the judiciary nearly as much as Congress. With all three branches of government at historic low approval, it is very damaging to representative democracy that this has happened, not least of which is that an unpopularly elected president put these three justices on the Court who lied under oath that these cases are "settled law", and yet just deeply unsettled one of them.
By the standards of the Soviet Union, both US political parties are extremely far right; by the standards of Pharaonic Egypt, they're incomprehensibly far left. Whose standards for center are you using? The objective standard? Are you sure that exists? Are you sure you're not just taking your own personal beliefs about what seems reasonable, declaring the middle of that the objectively correct center, and then getting angry when the real Overton Window isn't centered around that point? People act as if you should just be able to take the leftmost thing imaginable, the rightmost thing imaginable, draw a line between them, find the middle, and then get angry if both US parties are on the same side of that line. But maybe they have poor imaginations. The leftmost thing I can imagine is an insectoid hive-mind; the rightmost thing I can imagine is a rapidly expanding cloud of profit-maximizing nanobots. Are we sure that a line drawn exactly midway between those two things lands on Joe Biden? What if it lands on anarcho-capitalism? Does that mean every existing human is left-wing?
Taken as a relative claim, it at least could make sense. But relative to what?
Relative to the US? False; both parties usually get about half of the vote, suggesting one is to the right of the median American, and the other to their left. You can probably argue that the Republican Party’s structural advantages cause both parties to be a little to the right of where they’d be without them, or that Americans’ ignorance of party platforms means you can smuggle a few points in that are slightly more extreme than what they’d endorse, but it’s going to be a small effect.
The problem is much of the left’s gains over the last few decades have been based on shaky legal/constitutional ground. Even leftist judges like Ginsberg admitted that, and they were counting on the mistakes being in place for too long to correct (precedent).
Now all that technical debt is coming back to kick our ass.
This isn’t the end of the world though, Congress can fix everything that’s happened in the last few weeks via proper laws.