ConfirmThem

It still does allow for an "as applied" challenge to the law, but still, it does set a precedent (as Ginsburg said) in allowing the law to stand without a specifically stated exception for the health of the mother.

Signature disclaimer: I'm not currently paid by any campaign, but I am available. Current preferences for President: 1) F.Thompson; 2) Romney; 3) McCain; 4) Gingrich; Guiliani removed 04/03/07

For its unusual combination of people to uphold it:

Alito, Roberts, Kennedy, Souter, and Breyer.

The ends of the spectrum dissented (must be that liberal and conservative libertarian block).

Signature disclaimer: I'm not currently paid by any campaign, but I am available. Current preferences for President: 1) F.Thompson; 2) Romney; 3) McCain; 4) Gingrich; Guiliani removed 04/03/07

I think it was Scalia, Kennedy, Alito, Thomas, and Roberts in the Majority.

That was indeed the majority lineup.

Hopefully now, certain conservative pessimists who have doubted Bush's selection of Roberts and Alito will calm down. I really think Quin's post yesterday doubting Alito was a little reactionary. Without Alito, this first real blow against Roe would not have been struck. I think Quin owes Alito an apology.

As for Kennedy, he may be liberal on the environment but he certainly seems to be conservative on abortion. His opinion may not go far enough in banning abortion for some, but with his vote Alito's 1980's strategy for systematically gutting Roe is now coming into full fruition.

"As for Kennedy, he may be liberal on the environment but he certainly seems to be conservative on abortion. His opinion may not go far enough in banning abortion for some, but with his vote Alito's 1980's strategy for systematically gutting Roe is now coming into full fruition. "

You give him far too much credit. He had a chance to stop this nonsense with PP v. Casey, and he flipped.

From Ginsburg's tirade from the bench:

"For the first time since Roe, the Court blesses a prohibition with no exception protecting a woman's health."

So let the first chip fall from Roe.

Signature disclaimer: I'm not currently paid by any campaign, but I am available. Current preferences for President: 1) F.Thompson; 2) Romney; 3) McCain; 4) Gingrich; Guiliani removed 04/03/07

I recall a very perceptive comment that a law professor made in 2005 about Alito's jurisprudence: "He does not directly overrule. By indirection he eviscerates." This case shows a subtle approach by Alito and Roberts (and Kennedy?) that will gut Roe without assaulting it directly and incurring the possibly dire political consequences of doing so. Hopefully, the shell can be discarded later since it is an abomination of unrestrained judicial activism.

Ironically, Casey (which itself gutted Roe, as Scalia pointed out so ably in his dissent) can itself be used in the near future to further weaken Roe. Since the "undue burden" standard is so legally unmoored and flexible, it can be everything and nothing. Hence a conservative majority can rule in case after case that virtually no procedure constitutes an "undue burden."

At the end of the day, however, Scalia was right: Casey must be overruled. We shall see what Roberts and Alito do then.

I've had people tell me that Roe doesn't necessarily mean abortion on demand at any time. RBG makes it clear that it does as far as she's concerned, because anything that's required to include exceptions for the "health" of the mother (as opposed to for her "life") make it meaningless and you might as well say it's "on demand" because that's what it means in reality.

Thank you RBG for making it clear that the lefty view is that there can never be any restrictions on abortions period.

Thomas and Scalia made the Constitutionally correct decision. Roberts and Alito had an opportunity to sign the opinion. "Settled-law" Roberts and spouse-of-its-my-party-too-Mrs-Alito Alito did not. That was a betrayal of the Pro-life movement by Bush II. Excuses like "they didn't want to tip their hand," are pathetic.

Now, you may be happy that Bush II, acheived what Bush I could not with Souter, "an eighty-percenter," but I am not.

No apology is owned, except, perhaps, by you for insulting Quins intelligence!

The country was has a continuous leftward drift precisely because both the liberal and conservative movements have leaders that are far to the left of their respective memberships. The country will only turn to the right when rank-and-file conservatives accept only conservative actions and conservative results, not a bone, here and there.

Betrayal? For not joining the Thomas/Scalia concurrence? How is that?

Whether or not Roe should be overturned was not an issue that had to be resolved to decide the case in question before the Supreme Court. Since it was not an issue that was necessary to decide the case, it then was necessary not to decide that issue in this case. Even under the Roe/Casey line, the law is still upheld.

How was their decision not to comment on Roe when it was not in the least necessary to uphold the law a betrayal?

They did not rule any broader than they had to in order to decide the case. I do not see that as a betrayal. I see that as a stellar example of judicial conservatism.

It is almost an impossibility for a justice to conclude that the Constitution is silent on the issue of PBA, but not so on the issue of abortion.

The correct ruling is to note that the Constitution is silent on the issue of PBA, ergo, the Constitution is silent on the question of abortion, period.

The country was has a continuous leftward drift precisely because both the liberal and conservative movements have leaders that are far to the left of their respective memberships. The country will only turn to the right when rank-and-file conservatives demand total victory from totally conservative leadership.

Bigskybob,

I believe you missed my point.

Chief Justice Roberts and Justice Alito, by not signing onto the concurrence, were not saying that the Constitution is silent on PBA, but not silent on abortion. No such conclusion must be reached from their decision.

They ruled on the PBA ban, and they ruled only as broadly as needed to decide the cases before them. They did not say that the Constitution was not silent on abortion in general. They did not say it was silent. They said neither because it was not necessary to do either in order to decide the case. There was no need to overturn Roe or Casey to decide the current PBA cases. They, therefore, did not do so in upholding the law.

They did not rule the way you interpret their decision (silent on the former, but not the latter) because they did not rule at all on the latter. They did not because it was not necessary to decide the case.

Again, it is not a betrayal by either justice in question because they chose to not rule as broadly as you wanted them to. This was an excellent example of judicial restraint, of judicial conservatism.

This fits quite well in with the judicial minimalism that our current Chief Justice has advocated in the past, that judicial humility that Cubsfan has spoken about.

Given the cases before them, the two justices gave the correct ruling.

"The Court finds that on the question of PBA, the Constitution is absolutely silent."

To the extent they went beyond that position, which Thomas and Scalia did not on the narrower issue, they variated from that position.

They did not rule that the Constitution was silent on PBA.

That was an error, even if the voted for the "right" side.

The country was has a continuous leftward drift precisely because both the liberal and conservative movements have leaders that are far to the left of their respective memberships. The country will only turn to the right when rank-and-file conservatives reject their current moderate leadership in favor of true conservatives.

I did not claim that Alito and Roberts took the position that the Constitution was silent on PBA, but not abortion. Again, I stated that such a position would be a virtual impossibility. It would seem absurd on its face.

What I did state that is to properly rule on the case before the Court, the Court would have to conclude that the Constitution was silent on the issue before the court: PBA.

I stated that Roberts and Alito did not make such a ruling.

Why didn't they? If they believed that the Constitution was silent in the case of PBA they could have stated that position. They needn't futher state, "as the Constitution is, likewise, silent on abortion, in general," if they wished to only rule on this particular case.

Again, it would be ruling "on the narrowest possible grounds," and ruling correctly to state, "The Constitution is silent on the issue of PBA."

So why didn't they?

The country was has a continuous leftward drift precisely because both the liberal and conservative movements have leaders that are far to the left of their respective memberships. The country will only turn to the right when rank-and-file conservatives purge the moderate leadership that is sabotaging their movement.

"The Court finds that on the question of PBA, the Constitution is absolutely silent."

To the extent they went beyond that position, which Thomas and Scalia did not on the narrower issue, they variated from that position.

Actually, both Justices Scalia and Thomas signed onto the Kennedy majority. They went as far as Kennedy on the narrower issue that you speak of.

As for the Thomas concurrence, note his first sentence. He states the following:

"I join the Court's opinion because it accurately applies current jurisprudence, including Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992)."

That is what the majority opinion did. It applied current jurisprudence, as Justice Thomas noted, correctly. It never went beyond that, it never questioned controlling precedent because it did not have to in order to decide the cases. Justice Thomas did join the opinion, and it was because of this accuracy that he states that he did so.

Justice Thomas' concurrence did not go beyond that on that narrower issue you speak of because it did not say anything on that narrower issue. He signed onto the Kennedy opinion and added nothing else on that matter, except to state that his signing onto the Kennedy opinion was due to that accuracy I spoke of. One cannot speak of Justice Kennedy as going "beyond" on any issue here either Justice Scalia or Justice Thomas. What Justice Thomas added was his comments on Roe and the Commerce Clause.

If deciding the validity of Roe was not necessary to decide the case, than ruling as narrowly as possible would dictate not including that.

As for the interstate commerce comment, given that, as Justice Thomas noted, the point was never argued, then why bring it up? Given those facts, why bring up issues that were never argued and are not going to be used to decide the case?

These were the two reasons Justice Thomas decided to write separately, as he himself noted. It was not because the majority went "beyond" the position you wanted them to state on that narrower issue you spoke of.

Ruling as narrowly as possible would cause someone not to sign onto such a concurrence.

No error was made by the majority in not giving the declaration you stated. A more narrow ruling could and was made than the one you suggested. Justice Thomas and Justice Scalia had no problem signing onto the opinion. Were they in error, too?

What Justice Thomas added was that Roe was wrong again and the possibility of an interstate commerce clause challenge, neither of which were needed to decide the cases before them.

Chief Justice Roberts and Justice Alito were correct in not signing on, a decision that was still a mark of true judicial restraint, of judicial conservatism.

Of course, Justice Scalia signing onto Justice Thomas' opinion is an interesting one, given the second issue Justice Thomas brought up, is it not?

I did misunderstand you on that point.

Just to let you know, I only read your comment about misunderstanding you after I entered the #16 comment. Keep that in mind.

However, neither Justice Thomas nor Justice Scalia stated what you state to be the correct position for the Court to have taken on that one issue. What Justice Thomas added were two short comments on Roe and the Interstate Commerce Clause, both of which go against the idea of ruling as narrowly as possible.

No one made what you say would be the correct opinion.

What Justice Thomas stated on the PBA issue itself was that he signed onto the majority opinion because it accurately applied current jurisprudence.

No one signed onto such an opinion as you suggested. All five in the majority were satisfied with accurately applying current jurisprudence, as Justice Thomas noted the Justice Kennedy opinion did. How the two groups in the majority differed is on points that you yourself would agree that did not need to be mentioned: Roe and the Interstate Commerce Clause.

The majority did find a more narrow grounds to rule on then you suggested, and neither Justice Thomas nor Justice Scalia refused to sign onto any part of the analysis that upheld the law in question.

Why did they not, as you ask?

Current jurisprudence did not have to be challenged to uphold the law, and no one on the Court truly believes that stare decisis is just for suckas.

Presumably, a second concurrence stating "the Constitution is silent on the question of PBA," should have been filed by Alito and Roberts, IYHO. Do you not believe that the Supreme Court should not be a legislative body?

Or, asked this way, if Roberts and Alito had filed a second concurrent opinion stating "the Constitution is silent on the question of PBA,..." would you have supported that decision?

The country was has a continuous leftward drift precisely because both the liberal and conservative movements have leaders that are far to the left of their respective memberships. The country will only turn to the right when rank-and-file conservatives purge their current moderate leadership in favor of principled and effective conservatives.

First of all, no, I do not believe that such a second concurrence should have been given. Such a second concurrence would not be necessary to decide the case. I would not have supported such an action. I would not have supported it because it was not necessary to do so in order to uphold the law.

It is not a matter of being result-oriented. No conclusion they could have reached regarding the cases before them required them to make such a statement. It is a question of judicial restraint.

However, the original point was a questioning of the two new justices' judicial conservatism for not joining the Justice Thomas' concurrence. And that gets back to the point of questioning Roe when it is not needed to decide the case and bringing up the Interstate Commerce Clause issue when it was never argued and, thus, was not an issue in the case.

Part of our new justices' understanding of ruling as narrowly as possible includes not overturning precedent when it is not necessary to do so in deciding the cases before them. Even in applying current jurisprudence accurately, they upheld the law. They did not have to overturn Roe to do so. They did not overturn any precedent in doing so, and Justice Thomas was satisfied enough to sign on to it.

So why, in addition to signing onto the majority opinion, did Justice Thomas write the separate concurrence?

I know some people wanted them to address the Interstate Commerce issue. However, it was never argued by either side, and Justice Thomas never used that point as a reason for making his decision one way or another. What he seemed to be doing was giving hints to future litigants as to path of challenging the law that he would be favorable to.

I know some people want Roe overturned at the first possible chance. However, overturning Roe was not necessary to decide the cases in question. Therefore, according to the judicial conservatism advanced by such justices as our two new ones, it was necessary not to overturn it, to not address the issue at all. Given how they upheld the law correctly applying current jurisprudence, the same goes for even the lesser concurrence you had suggested.

Chief Justice Roberts and Justice Alito are not less judicially conservative because they are less anxious to overturn past precedent they disagree with than Justice Thomas. It is a question of whether or not you should overturn bad precedent because you can give a rational justification for addressing the case law in question or you should do so only if required to do so in order to decide the cases before you.

The route that our Chief Justice Roberts and Justice Alito has taken, IMHO, is the route that should be taken. It appears to me that this is the part of our two new justices that you object to. It means that they are not like Justice Thomas, but it does not mean they are not judicially conservative.

I am very pleased with the two picks that President Bush got onto the Supreme Court.

Again, "overturning Roe" would only be an unstated inference from correctly noting the Constitution is silent on the issue of PBA.

Quibbling over whether, or not, it is a necessary argument deflects from the real issue that it is the best argument.

The way to stop judicial activism is to reject the premises of judicial activism.

The country was has a continuous leftward drift precisely because both the liberal and conservative movements have leaders that are far to the left of their respective memberships. The country will only turn to the right when rank-and-file conservatives d

The question of whether or not it is not necessary is neither merely quibbling nor a deflection from the real issue.

First of all, I was getting back to the issue of Justice Thomas' concurrence, why our two new justices did not join, and how that does not show they are not judicial conservatives.

The point about Roe was due to the fact that HE brought that up. NO ONE made the point that you mentioned in #20, that the Constitution is silent on PBA specifically. THAT argument was never made. If you do not believe in commenting on Roe for the sake of ruling on narrower grounds or if you simply do not believe in bringing up issues not raised in the case (the interstate commerce clause comment), you would not join Justice Thomas' opinion. This had been about why our two new justices did not join Justice Thomas' opinion, and why that should not be a matter of concern that they are not judicial conservatives.

The addressing of "overturning Roe" was addressing Justice Thomas' concurrence.

The question of whether or not it is a necessary argument is not quibbling nor is it deflection from the best argument.

It is a matter of differences of judicial temperment. Our two new justices see judicial minimalism as part of their judicially conservative outlook. They did not have to challenge current jurisprudence in deciding the cases before them. For them, this was the best argument. It was the most appropriate argument. They were addressing issues ONLY insofar as it was necessary to decide the cases before them. If it was not necessary to address it, it was necessary to not address it.

The question of necessity of the argument is a fundamental one. It is the question of whether or not the argument is trying to resolve more issues or the issue in question more broadly than is required to resolve the case. It is a question of the role of the individual justice.

"The way to stop judicial activism is to reject the premises of judicial activism."

Quite true. That happens when we have justices who understand their role as our current Chief Justice does. Putting the resolution of cases back to its primary position, and only resolving issues as broadly as necessary to resolve them is fundamental to reversing such activism. Viewing cases as means to changing constitutional law in this area or that and judging their soundness on how much they do that, even in a way one agrees with, is not going to change that fundamental problem that we have with so many judges.

What we need is more of that judicial humility.

I am very happy with how our two new justices have turned out.

The Supreme Court was asked to strike down a federal ban on PBA.

Surely, when asked to strike down such a ban, it would entirely appropriately for a judge to respond, "the relief demanded of X is not granted, because this Court does not have the power to grant it. This Court only has the power to enforce the Constitution. The Constitution is silent on the issue of PBA."

That would be both constitutionally correct, and, as you put it, "humble."

Thomas and Scalia made that point. "Settled-law" Roberts and Alito did not.

That troubles me.

The country was has a continuous leftward drift precisely because both the liberal and conservative movements have leaders that are far to the left of their respective memberships. The country will only turn to the right when rank-and-file conservatives reject the moderates that currently lead them in favor of true, principled conservatives.

that your sort of approach is what liberal activist judges love to do - expand the ruling beyond the case at hand? It seems much safer from a conservative viewpoint to have these decisions be as narrow as possible WAY more often than not. I can live with the 5% of the time I'd prefer the ruling be more broad in exchange for the 95% of the time I wish they'd stayed in check.

Bk,

You are quite correct. That is exactly what liberal activist judges love to do. They love expanding the ruling beyond the case at hand. Apparently, they are not the only ones who prefer such judicial methods.

Justice Thomas' concurrence did not say anything about the Constitution being silent on PBA. What he stated was that Roe was wrong. He was ruling on Roe, not what Bigskybob claimed in #22. No one mentioned any such argument. Not one of the nine.

Even if such a ruling were not expanding the ruling beyond what is necessary to decide the case at hand. The two justices, Thomas and Scalia, went way beyond that in their concurrence. That concurrence was most certainly going beyond the case at hand. Justice Thomas was ruling on Roe, not on any question of the silence or non-silence of the Constitution on PBA specifically.

Justices Thomas and Scalia never made the point that Bigskybob claimed they did.

However, the ruling that the majority gave, which all five, including Justices Thomas and Scalia signed onto completely, gave a more narrow ruling than the one suggested in #22. They applied current jurisprudence accurately and upheld the law doing so.

In this analysis, Justice Kennedy stated the following:

"The considerations we have discussed support our further determination that these facial attacks should not have been entertained in the first instance. In these circumstances the proper means to consider exceptions is by as-applied challenge."

Bk,

Given that he wanted to expand the ruling beyond the case at hand, it is interesting to note that one of the two challenges involved, void-for-vagueness, would not have been addressed by his solution. His solution would have expanded the ruling beyond the case without even addressing the case.

That would have some interesting effects, to say the least.

Bigskybob,

The Court was asked was not simply to strike down the PBA law, but to do so on specific grounds.

One of those, void for vagueness, would not be addressed in the least by your suggested ruling.

"As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient defititeness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson 461 U.S. 352, 357 (1983)

This argument would not be in the least undermined by your ruling.

The second point was about covering D&E abortions, as well. This the Court determined was false. There is no reason to address whether or not it would be constitutional cover said procedure when the statute is carefully worded to neither cover D&E nor a D&E that non-intentionally results in an intact D&E. Only intentional intact D&Es are covered. Rules of statutory interpretation address this issue. That is as far as was needed to address this argument.

Again, with the health of the mother claim, Justice Kennedy's opinion answers this, ultimately, by addressing the burden, in the context of abortion laws, that must be met for a facial challenge to be entertained. Here he notes the following:

"The considerations we have discussed support our further determination that these facial attacks should not have been entertained in the first instance. In these circumstances the proper means to consider exceptions is by as-applied challenge."

The latter he states is "the proper manner" for bringing such a claim, not a facial challenge.

Bigskybob,

No one simply asks the Court to strike down a law. They have specific arguments for doing so. Here, one of them would not be answered by your response, and the other two were addressed by general statutory and constitutional rules.

The ruling was correct, and was the narrow ruling that should have been given.

Again, as I had pointed out before.

Neither Justice Thomas nor Justice Scalia made such a point. They were stating that Roe was wrong and not the point about the silence of the Constitution on PBA specifically.

To say that they made that point and Chief Justice Roberts and Justice Alito did not is incorrect. None of the four did so.

The latter two did not sign on because addressing the issue of Roe went beyond settling the case. All five signed onto the majority opinion in question, the entire opinion.

This was a judicially conservative decision. Hopefully, we shall get more like this.