Letters 2 America for August 5, 2022

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Dear America,

Now that the Dobbs gratuitous decision reversing Roe v. Wade...and concurrently its subsequent affirmation in Planned Parenthood v. Casey...is fading from media focus, it is time to talk about the justices responsible for it.  I don't remember the confirmation hearings for Justice Alito, but he seems to have been the ringleader in this gratuitous decision to overrule a fifty year old precedent.  So, I won't comment on his personal integrity other than to note that his role in the propounding of Dobbs makes him just as culpable for its illegitimacy as are the others who voted for it.  As to the others--Thomas, Gorsuch, Kavanaugh and Coney-Barrett--they are not just hypocrites, they are perjurers.  Notably, Chief Justice Roberts more or less accused them of such when he effectively objected in part to the Dobbs decision by noting that the overruling of Roe was entirely unnecessary.  Coming from the malfeasors' fellow conservative, that is a serious indictment, not just a reproach.  Let me explain.

With regard to the assertion that they are hypocrites, all four of them, when asked about their positions on Roe during their confirmation hearings and in informal conversations with members of The Senate stated that they believed in stare decisis, the jurisprudential doctrine that precedent rules except in extraordinary cases, like Brown, et al vs. Board of Education of Topeka, Kansas, et al.  That case, which overruled the 1896 decision known as Plessy v. Ferguson, eliminated the racist doctrine that separate could be equal.  What Plessy stood for was profound, and overruling it was even more so.  It finally implemented the 14th amendment not just superficially but in principle and universally.  That profundity justified bypassing stare decisis as it rectified an enormous social injustice that pervaded our entire society deeply, in fact to the core.  It was such a profound matter that the then-Chief Justice, Earl Warren, urged each of the justices on the court who potentially opposed it or were equivocal at that time to concur in the decision as he argued that such a resonant matter had to be decided by unanimous vote, and that unanimity reified that profundity and gave the decision irrefutable legitimacy.  I would argue that the same is the case with Roe.  Overruling it was not a matter to be taken lightly, and not a cause for any justice to seek out, much less to fabricate the opportunity to violate stare decisis for.  Thus, Thomas, Gorsuch, Kavanaugh and Coney-Barrett went in to the Dobbs case intending to do what they swore under oath not to do--overrule settled law except when it was necessary.  But overruling Roe was unnecessary for them to reach the decision they wanted to reach in Dobbs.   The Mississippi statute in question there made abortion illegal after 15 weeks unless the mother's life was in danger.  That comports with Roe's fundamental finding that the absolute right of a woman to abortion lasted only through the first trimester, which Roe defined as only 12 weeks.  The fact that the statute in question in Dobbs was within the parameters set by Roe just confirms that these four justices lied about their commitment to precedent (and in Thomas's and Kavanaugh's cases other things as well, but that is another matter) and cogently leads in turn to the conclusion that they knew they would not honor Roe's status as precedent when they were asked about it during their confirmation hearings...under oath.  That is not just a lack of integrity, tendentiousness or dissembling.  That is not just hypocrisy.  It is perjury.

As to the merits of the Dobbs opinion, it would seem that, since the constraints on abortion implemented by the Mississippi statue comported with Roe, the decision not to deem the statute unconstitutional would have been correct.  And Chief Justice Roberts said so when he wrote his concurring opinion.  The last lines of that opinion, which analyzes Alito's majority opinion scrupulously, read like a dissent, and are as follows:

"I would decide the question that we granted review to answer--whether the previously recognized abortion right bars all abortion restrictions prior to viability, such that a ban on abortions after fifteen weeks of pregnancy is necessarily unlawful.  The answer to that question is no, and there is no need to go further to decide this case."

Technically, Roberts' decision is a concurrence in Alito's Dobbs opinion.  But in the final analysis, it is a dissent from the Roe portion of the majority's decision to indulge in something conservatives have complained about for as long as I can remember: judicial activism.  Apparently their righteous indignation was a function of who's ox was being gored.  Robert's, their leader, acknowledged that.  Impeachment is in order.

Your friend,


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This page contains a single entry by Michael Wolf published on August 5, 2022 2:08 PM.

Letter 2 America for June 17, 2022 was the previous entry in this blog.

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