Justice ‘Misleadingly’ Quotes Lawrence Tribe in Roe Ruling
This could also be entitled; “leaving society largely intact” which is what the SCOTUS gang of six are selling to the rest of us. And to which a misquoted Lawrence Tribe exposes. Initially, I started at HuffPost and left feeling there must be more to this. I found it in another publicayion.
Mary Papenfuss has this topic up at HuffPost, “Harvard Constitutional Law Expert Says Justice ‘Misleadingly’ Quoted Him in Roe Ruling”
Saturday, and we find Constitutional Law expert Professor Laurence Tribe accusing conservative Supreme Court justices of “misleadingly quoting” him to justify their Roe ruling to throw out Roe v. Wade.
Lawrence Tribe:, “Don’t be fooled, the writings from which the Court cherry-picked my quotes were totally supportive of the result in Roe.”
The court meant to throw out Roe 100%.
So I go to reading the pages he cites as misquotations of his thoughts on Roe v Wade. There is not enough there.
I am not going to try to determine what was cherry picked from Tribes words. His comments were cherrypicked which leaves me with an incomplete understanding. I would need the rest of what Tribe was explaining.
However, The Guardian has an interesting article up also. “Don’t believe those who say ending Roe v Wade will leave society largely intact,” Lawrence Tribe (author).
Tribe offers up a pretty good argument of where this decision is going.
The argument such a ruling would simply return a divisive issue to the people had long since been widely dismantled. It certainly would not be returning to the people most profoundly affected. Once, women were told they may have to remain pregnant despite whatever urgent reasons they might have for seeking a safe and legal abortion. It could not be described as returning the abortion issue to the states, now that the possibility of a nationwide ban that the supreme court might uphold is on the horizon. And to the extent the issue is returned to the states, it would be returned to state legislatures so gerrymandered that they often represent the views of a distinct minority of the people anyway.
Lawrence Tribe explains further . . .
The argument that “only” abortion is involved because Alito’s draft assures readers that the supreme court’s opinion won’t be treated as precedent for anything not involving killing an unborn human is both profoundly insulting and manifestly misleading.
It insults every sentient person by minimizing the significance of commandeering the bodies and lives of half the population – and re-inserting government power into every family. And it misleads every reader of Alito’s words by suggesting that a court has the power to shape how future lawmakers and judges will build on its decisions and the reasoning underlying them.
Alito’s hollow promise brings to mind similar assurances in notorious cases like Bush v Gore, is inconsistent with how the judicial process works, and would not offer any solace to anyone who might become pregnant or whose miscarriage might be treated as a crime scene for police to investigate.
I am not going to add more as Tribe’s Guardian article is long and worthy of your read beyond my flailing about in abbreviating notes and explanation. I can not abbreviate this.
I changed my mind. As I read the quote by Tribe, it became a whoa, wait a minute here. There is more to this than the councilor objecting to misquoting him. Alito is denying his true intent to which Thomas is using as threats.
Lawrence Tribe makes the right and most correct argument. We are facing a court which can not be trusted to rely upon precedent. And yes, even their own rulings. Such would be struck and their new ruling inserted as precedent and then struck again.
Effectively, the court has done us a favor by angering us. We have only to take this in mid-term elections. This is something Chief Justice Roberts did not want to do as he knew the potential consequence. We should give them their just consequences multiple times over.
Back to Tribe . . .
The foolishness of the argument there is nothing to see here other than the future of abortion law is underscored by some of what is said in its support.
We’re told not to worry about the future of decisions like Loving v Virginia, ensuring the right to marry someone of a different race than your own because, after all, Justice Clarence Thomas is in an interracial marriage.
We’re told not to worry about the right to same-sex marriage because, after all, Justice Brett Kavanaugh would never vote to over-turn Obergefell v Hodges. The most iconic opinion written by his proud mentor, Anthony Kennedy – the man who left the court. Left, only after he had hand-picked Kavanaugh as his successor.
We’re told not to worry about contraception (despite the way quite a few people view Plan B or IUDs as forms of abortion) because even supreme court nominees like Amy Coney Barrett, who were cagey about just how “settled” a precedent they deemed Roe v Wade, said they couldn’t imagine anybody today challenging Griswold v Connecticut.
All that prognostication is cold comfort to the millions of people whose lives are profoundly affected by these shaky predictions.
We were told by Kavanaugh and Gorsuch, Roe was precedent and was safe. We were told by Barrett, Roe was not “super-precedent” and there were questions. However, the questions did not mean it to be struck. Roberts knew the political risk of striking Roe down. Still, he went there. Does religion have such a big influence upon him?
Alito proves to be a dumb ass in his commentary on Hale and when not silent. What can I say about Clarence? His introduction to SCOTUS was rather crude and he still remains so today in his threats.
Tribe . . .
Yale’s Akhil Amar says every first-year law student learns the very same thing happened during FDR’s second term as president. The supreme court in 1937 in West Coast Hotel v Parrish overturned a long line of decisions blocking minimum wage and maximum hours and other worker-protection laws in the name of employers’ rights of “private property” and the “liberty of contract”. To be sure, Amar’s argument echoes that of the Alito draft, which cites Parrish and says, in effect, “nothing to see here, we did the same thing before” when we rolled back the liberty of contract line of decisions in 1937.
It might have placated us when Alito initial remarks were made and everyone had a look at it’s early version thinking there would be alterations. Nope! Now its early unannounced appearance seems planned rather than leakage. Get the anger out-of-the-way. Hell, it sold a lot of newspaper and advertising on TV.
Except, the alterations never came.
Reading parts of the opinion, Alito goes on at length how history does not include a right to abortion notably citing the “great(?)” Sir Matthew Hale. Hale a 17th century judge sentencing two “witches” to death and advocating for a husband’s right to rape his wife; and gives a nod to the historical idea of abortion being akin to eugenics. Seemingly perplexed by the idea other or any reliance interests may have developed around the 50-year-old abortion precedent.
In other words, Alito can not see how generations of people may have internalized the guarantee they have the right to plan and control their reproductive lives.
Tribe . . .
Justice Alito and Professor Amar are simply wrong: profoundly so. The so-called (and quite misleadingly labeled) “switch in time saved the nine” was nothing like the switch Dobbs State Health Officer v Jackson Women’s Health Organization represents.
The 1937 “switch” was no sudden politically driven turnabout but was in fact the culmination of long-simmering movements in legal and economic thought. Movements reflected both in scholarship and in judicial opinions from the earliest days of the 20th century in places like Justice Oliver Wendell Holmes’ dissent in Lochner v New York insisting that “the 14th amendment does not enact Mr. Herbert Spencer’s social statics.” Movements representing the growing conviction that the “freedom” to work at low wages and in miserable conditions was an illusion lacking both moral and legal foundations and one that simply helped perpetuate economic inequality and the exploitation of relatively powerless, not-yet-unionized workers by wealthy and powerful corporations.
“its real effect was to expand rights protections for millions of Americans subject to exploitation by powerful corporations.” Amar’s rebuttal? He says, and I’m serious here, that it’d be equally legitimate to say that;
“Dobbs’ real effect would be to expand rights protection for millions of innocent, unborn Americans . . . unborn humans, subject to extermination by society.”
This is more a matter of control by a rogue SCOTUS gang of six. This is what HuffPost did not expand upon and referenced Lawrence Tribe’s words. The Guardian article by Lawrence Tribe gives us the detail, an explanation which I attempted to cover much of it above.
Draft opinion could ultimately unravel other rights, legal experts warn”
Boston Globe – May 3
… Legal experts suggest the decision by the court’s conservative majority, which is not yet final, portends a flood of antiabortion laws across the country and could erode federal rights to same-sex marriage and access to contraceptives. …
The late Supreme Court Justice Ruth Bader Ginsburg found fault with the focus on privacy in Roe as opposed to gender equality. She noted in a lecture at New York University in 1992 that Roe tried to do too much, too fast, leaving it vulnerable to fierce attacks.
“Doctrinal limbs too swiftly shaped may prove unstable,” she said at the time.
In the draft, Alito himself quotes Ginsburg, as well as liberal Harvard Law professor Laurence Tribe, who at certain points in his career has taken issue with the reasoning in Roe and its impact on the political process. …
… (Laurence) Tribe, the famed Harvard legal scholar whose name is evoked several times in the draft opinion, raised the possibility of wider implications the nation could face if Roe falls.
Tribe wrote in a Twitter post Monday night: “If the Alito opinion savaging Roe and Casey ends up being the Opinion of the Court, it will unravel many basic rights beyond abortion and will go further than returning the issue to the states: It will enable a GOP Congress to enact a nationwide ban on abortion and contraception.”
Draft opinion could ultimately unravel other rights, legal experts warn
Boston Globe – May 3
The most dangerous conclusion from Alito’s draft that the opinion “won’t be treated as precedent for anything not involving killing an unborn human” is that he is looking for an opportunity to rule that every zygote is a citizen with full rights, and that abortion can be prosecuted as murder.
When can I start burning churches?
Ten Bears;
You are civilized and you will never do it. What if though? What if Uvalde was a church and a shooter went to it, shot the pastor and the assistant plus 20 or so parishioners? Would people then advocate for bullet-spewing-weapon control? They are pushing religious beliefs on everyone. What if? Would the court react then?
@run,
There have been plenty of church shootings in the past couple of decades. I don’t recall any that resulted in 22 deaths, but Dylann Roof killed nine.
“Would people then advocate for bullet-spewing-weapon control?”
I think you have your answer.
Joel:
I think everyone becomes an advocate when it arrives on their doorstep.
Both Justice Ginsburg & Prof Tribe suggest that Roe v Wade should have been decided on the basis of gender equality, not ‘privacy’. Note that 1972, the year of Roe v Wade, was also the year the Equal Rights Amendment was put forward for ratification, and 50 years later that didn’t ever happen. It is likely that Ginsburg & Tribe were both wrong on strategy, alas.
The whole privacy notion is a distinctly small government thought which is not surprising given Roes majority being largely GOP appointees. Then the politics of how the GOP could secure power as a minority party took over and they added government interfering in reproduction to guns and racism.
“One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.” (HLR, Vol 87: 1, p 7 – Laurence Tribe)
Roe enshrined bodily privacy in constitutional theory — seemingly no one disagrees with that today. Roe also ruled that it takes a “compelling state interest” to override fundamental privacy.
Then Roe fudged.
“One reads this passage several times before becoming convinced that nothing has been inadvertently omitted.”
‘ … the compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation … after viability thus has both logical and biological justifications.’ (my bolding)
“Truly, this mistakes a ‘definition for a syllogism’ and offers no reason at all for what the Court has held.” (Ibid. p 4 — quoting John Hart Ely, YLJ 1973 April; 82: p 924)
The Roe majority took upon itself the what is rightly considered a legislative undertaking — matching the compelling interest standard to the stages of prenatal development. There was no consensus on the worth or rights of the unborn “deeply rooted in this Nation’s history and tradition” to fall back on.
But instead of serving up a proper substantive delineation — Roe rolled out a fiat policy that gave prochoice advocates nearly everything they wanted.
Roe disguised its substantive findings on fetal life by not explaining its holdings in any part. Once any specific substantive scheme comes into view — e.g., a ban above a specific week — there can be no returning to Roe’s unexplaining camouflage.
What will any future Court be able to say when medical technology enables removing a fetus temporarily from the womb and then returning it to complete its gestation — when the cosmic question is legal personhood in the womb?
Coming soon?!