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Thread: Clarence Thomas Just Showed How Supreme Court Would Overturn Roe v. Wade, Obergefell

  1. #1

    Thumbs up Clarence Thomas Just Showed How Supreme Court Would Overturn Roe v. Wade, Obergefell

    In 1992, the Supreme Court looked poised to overturn Roe v. Wade, the landmark case protecting abortion rights. They didn’t, however, and the main reason was respect for precedent—specifically, the legal doctrine known as stare decisis, or “let the decision stand.”
    Would it do the same today, with over 250 laws meant to test the case pending in states across the country?
    An otherwise obscure case decided this week, Franchise Tax Board of California v. Hyatt, suggests that a majority of the court would not.
    Hyatt was, in large part, about stare decisis. A 1979 Supreme Court case, Nevada v. Hall, held that citizens can sue a state in another state’s court. In 1998, Gilbert Hyatt did just that as part of a tax dispute, with tens of millions of dollars at stake. This week, the court overruled its 1979 decision by a vote of 5-4 and tossed out Hyatt’s claim. The split was on ideological lines, with the court’s five conservatives in the majority and four liberals in the minority.
    Of the 18 pages in the majority opinion written by Justice Clarence Thomas, 17 are about the legal question in the case, which revolves around states’ rights, sovereign immunity, and the Constitution. It’s no surprise that Justice Thomas, in particular, wrote this opinion, as states’ rights have been a focus of his for three decades.
    What was surprising is that stare decisis warranted only 318 words in Justice Thomas’ opinion, almost like an afterthought, and that Justice Thomas summarily waved away this important judicial doctrine.
    If this is how the court’s conservatives treat sovereign immunity, how will they treat abortion rights?
    That’s what Justice Stephen Breyer asked in his dissent. Unlike the majority opinion, Justice Breyer’s dissent devoted over a quarter of its space to stare decisis. And he concluded, “today’s decision can only cause one to wonder which cases the Court will overrule next.”
    It’s not hard to guess which cases Justice Breyer was wondering about. Because the same logic applied in Hyatt would overturn not only Roe v. Wade but also the court’s precedent on same-sex marriage, Obergefell v. Hodges.
    How? Let’s look at Justice Thomas’ reasoning.
    First, Justice Thomas notes that stare decisis is “‘not an inexorable command” and is “at its weakest when we interpret the Constitution because our interpretation can be altered only by constitutional amendment.”
    Now, some would say that stare decisis is at its strongest when fundamental constitutional rights are at issue. But for Justice Thomas, in cases like Roe and Obergefell, stare decisis is at its “weakest.”
    Thomas then goes on to apply a version of the usual stare decisis test, taking into account “the quality of the decision’s reasoning; its consistency with related decisions; legal developments since the decision; and reliance on the decision.”
    The first prong is the most important. Here, Thomas finds that the 1979 precedent “failed to account for the historical understanding of state sovereign immunity.” But that’s not the same as the decision’s being of poor quality—it’s an imposition of Justice Thomas’ specific, historically oriented “originalism” philosophy.

    This is the central question in cases like Roe and Obergefell. No one denies that abortion was banned for much of our country’s history, and that same-sex marriage would have been anathema to the Founders of the republic. The debate is over whether history gets a vote or a veto.

    If this same standard is applied to Roe and Obergefell, they would go down in flames.

    More at: https://news.yahoo.com/clarence-thom...092246997.html
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  3. #2

  4. #3
    Obergefell is solid. If government is in the business of issuing licenses of any sort, it must do so indiscriminately. The author incorrectly invokes the founders. Obviously the founders would say the government shouldn't be in the marriage business at all.
    I just want objectivity on this forum and will point out flawed sources or points of view at my leisure.

    Quote Originally Posted by spudea on 04/20/16
    There won't be a contested convention
    Quote Originally Posted by spudea on 05/30/17
    The shooting of Gabrielle Gifford was blamed on putting a crosshair on a political map. I wonder what event we'll see justified with pictures like this.

  5. #4
    This assumes that there are 5 justices on the court who would support overturning Roe on ideological grounds. I don't believe there are. I highly doubt Kavanaugh would. I don't know about Roberts.

  6. #5
    Quote Originally Posted by spudea View Post
    Obergefell is solid. If government is in the business of issuing licenses of any sort, it must do so indiscriminately.
    The whole point of the government issuing any license at all is that it cannot be indiscriminate but must be a recognition of the licensee meeting certain criteria. I can't think of any exceptions, including marriage licenses even now after Obergefell.

    Quote Originally Posted by spudea View Post
    Obviously the founders would say the government shouldn't be in the marriage business at all.
    They certainly didn't believe the federal government should be. But I don't know if this extends to state governments. They were tolerant, if not fully supportive, of states having established religions, so that functions of the state church and the state itself were naturally intermingled. Of course many of the founders were married as colonists and British citizens, many of them (I assume) within the Church of England with their marriages being recognized and approved by both that church and the crown by virtue of the union between the two. Some founders didn't approve of that intermingling of church and state, but others did, as evidenced by the requirement put in the First Amendment that the federal government absolutely refrain from interfering with any states having established religions.
    Last edited by Superfluous Man; 05-15-2019 at 06:27 AM.

  7. #6
    Overturning Roe v Wade isn't happening anytime soon. Republicans say every election cycle that if they get reelected/elected they are going to overturn it. They don't really mean it. They only say that to get christian conservatives to vote for them. Essentially they're just pandering to them. Plus they say overturning will be really easy. If that was the case, they would have been successful at it years ago.
    Last edited by Anti Globalist; 05-15-2019 at 07:35 AM.
    "Perhaps one of the most important accomplishments of my administration is minding my own business."

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  8. #7
    Quote Originally Posted by Anti Globalist View Post
    Overtuning Roe v Wade isn't happening anytime soon. Republicans say every election cycle that if they get reelected/elected they are going to overturn it. They don't really mean it. They only say that to get christian conservatives to vote for them. Essentially they're just pandering to them.
    Exactly. If they ever actually did overturn it, they'd weaken that selling point that they get to recycle every election. SCOTUS being just on the brink of tilting one way or the other is a carrot they dangle in front of us and don't want to lose.

    If Republicans really wanted to overturn Roe, they have had plenty of opportunities to do so legislatively when they controlled both houses of Congress and the White House. But they never even brought it up for a vote.

  9. #8
    Quote Originally Posted by Superfluous Man View Post
    The whole point of the government issuing any license at all is that it cannot be indiscriminate but must be a recognition of the licensee meeting certain criteria. I can't think of any exceptions, including marriage licenses even now after Obergefell.



    They certainly didn't believe the federal government should be. But I don't know if this extends to state governments. They were tolerant, if not fully supportive, of states having established religions, so that functions of the state church and the state itself were naturally intermingled. Of course many of the founders were married as colonists and British citizens, many of them (I assume) within the Church of England with their marriages being recognized and approved by both that church and the crown by virtue of the union between the two. Some founders didn't approve of that intermingling of church and state, but others did, as evidenced by the requirement put in the First Amendment that the federal government absolutely refrain from interfering with any states having established religions.
    Licenses are supposed to be for anything that would otherwise be unlawful. An example would be having a license to haul products & indulge in commerce across state lines.

    Most licenses are unconstitutional.

    The marriage license was specifically to stop inter-racial marriages; the drivers license was basically to track citizens, as was the SSN. The right to travel was never supposed to be licensed.

    Also- the 1st Amendment states that Congress "shall make NO LAW regarding religion". This has also been infringed upon in many ways- one is the "legal" non-profit status that gives the gov authority in religious orgs. Churches do NOT have to become non-profits, as they already are, under the Constitution- but most people no longer know this.
    There is no spoon.



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  11. #9
    Quote Originally Posted by Ender View Post
    Licenses are supposed to be for anything that would otherwise be unlawful. An example would be having a license to haul products & indulge in commerce across state lines.
    Where did you get this definition?

    I also don't see how hauling products and indulging in commerce across state lines without a license should be (or is in practice) unlawful.

  12. #10
    Quote Originally Posted by Ender View Post
    Also- the 1st Amendment states that Congress "shall make NO LAW regarding religion".
    That's not what it says. Notice that you omitted the crucial word "establishment."

    The First Amendment positively prohibited Congress from passing laws that had anything to do with the establishment of religion. If any states had established religions, then Congress was explicitly forbidden from passing laws having anything to do with that.

    Quote Originally Posted by Ender View Post
    Most licenses are unconstitutional.
    Prior to the 14th Amendment, how could licenses for any of the things you mentioned, issued at the state level, be unconstitutional?
    Last edited by Superfluous Man; 05-15-2019 at 08:02 AM.

  13. #11
    Quote Originally Posted by Superfluous Man View Post
    Where did you get this definition?

    I also don't see how hauling products and indulging in commerce across state lines without a license should be (or is in practice) unlawful.
    States used to be independent- until Lincoln ended that.

    As far as the 1st Amendment goes, it says:
    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;
    Last edited by Ender; 05-15-2019 at 08:07 AM.
    There is no spoon.

  14. #12
    Quote Originally Posted by Ender View Post
    States used to be independent- until Lincoln ended that.

    As far as the 1st Amendment goes, it says:
    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;
    The word "Congress" is the subject of both parts. It doesn't prohibit the states doing that, and in fact, it prohibits the federal government from interfering in the event that any state did establish or prohibit any religion.

    Mind you, I'm not arguing that states should do that. But if they do, the federal government must let them.
    Last edited by Superfluous Man; 05-15-2019 at 09:29 AM.

  15. #13
    Quote Originally Posted by Superfluous Man View Post
    The word "Congress" is the subject of both parts. It doesn't prohibit the states doing that, and in fact, it prohibits the federal government from interfering in the event that any state did establish or prohibit any religion.

    Mind you, I'm not arguing that states should do that. But if they do, the federal government must let them.
    Exactly.

    The Constitution was written for the central government; the states were originally free & independent self-governing territories.

    The Constitution was actually a Hamiltonian coupe to build & powerful ruling central government- the anti-federalists were correct in their POV about the dangers that were inherent in the take-over..
    There is no spoon.

  16. #14
    Quote Originally Posted by Superfluous Man View Post
    The word "Congress" is the subject of both parts. It doesn't prohibit the states doing that, and in fact, it prohibits the federal government from interfering in the event that any state did establish or prohibit any religion.

    Mind you, I'm not arguing that states should do that. But if they do, the federal government must let them.
    What you are suggesting is totally loony. To think the founders chained down the federal government from unreasonable search and seizures, freedom of speech and religion, etc, but if the states ignored these fundamental rights, they would say that's fine? Wrong. They left it open to the states to further expand freedom protections, not diminish or infringe on the protections of the US constitution.
    I just want objectivity on this forum and will point out flawed sources or points of view at my leisure.

    Quote Originally Posted by spudea on 04/20/16
    There won't be a contested convention
    Quote Originally Posted by spudea on 05/30/17
    The shooting of Gabrielle Gifford was blamed on putting a crosshair on a political map. I wonder what event we'll see justified with pictures like this.

  17. #15
    Quote Originally Posted by spudea View Post
    What you are suggesting is totally loony. To think the founders chained down the federal government from unreasonable search and seizures, freedom of speech and religion, etc, but if the states ignored these fundamental rights, they would say that's fine? Wrong. They left it open to the states to further expand freedom protections, not diminish or infringe on the protections of the US constitution.
    Absolutely. Just a minimal set of game rules the states must not abuse or breach in the game. The founders knew that without some common protection individual rights would be taken away by local tyranny and the masses. And it was not forced on them, they had to agree in contract and charter for their state to enter the union. It was designed to prevent the exact tyranny that is happening in California right now. How is Ca getting away with this? They have chosen to ignore the Constitution and those minimal basic game rules.

  18. #16
    Quote Originally Posted by spudea View Post
    Obergefell is solid. If government is in the business of issuing licenses of any sort, it must do so indiscriminately. The author incorrectly invokes the founders. Obviously the founders would say the government shouldn't be in the marriage business at all.
    Obergefell is garbage, marriage is something that takes place between two individuals of the opposite sex and anyone can have a marriage with someone of the opposite sex recognized.

    Your argument is like saying I am not given equal protection under the law if the state won't give me a hunting license and tags for people but will for deer.
    Never attempt to teach a pig to sing; it wastes your time and annoys the pig.

    Robert Heinlein

    Give a man an inch and right away he thinks he's a ruler

    Groucho Marx

    I love mankind…it’s people I can’t stand.

    Linus, from the Peanuts comic

    You cannot have liberty without morality and morality without faith

    Alexis de Torqueville

    Those who fail to learn from the past are condemned to repeat it.
    Those who learn from the past are condemned to watch everybody else repeat it

    A Zero Hedge comment



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  20. #17
    Quote Originally Posted by Swordsmyth View Post
    Obergefell is garbage, marriage is something that takes place between two individuals of the opposite sex and anyone can have a marriage with someone of the opposite sex recognized.

    Your argument is like saying I am not given equal protection under the law if the state won't give me a hunting license and tags for people but will for deer.
    Your comparison is garbage. Yes governments can treat different things differently, and can discriminate if there is a good underlying reason to treat a person differently. However, no good reason exists for government to ban same sex marriage except homophobia. This was all laid out in the case if you remember and if not go read the arguments and the SCOTUS decision.
    I just want objectivity on this forum and will point out flawed sources or points of view at my leisure.

    Quote Originally Posted by spudea on 04/20/16
    There won't be a contested convention
    Quote Originally Posted by spudea on 05/30/17
    The shooting of Gabrielle Gifford was blamed on putting a crosshair on a political map. I wonder what event we'll see justified with pictures like this.

  21. #18
    the 3rd wavers will be in the streets for 5 weeks and then give up.
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  22. #19
    Quote Originally Posted by spudea View Post
    Your comparison is garbage. Yes governments can treat different things differently, and can discriminate if there is a good underlying reason to treat a person differently. However, no good reason exists for government to ban same sex marriage except homophobia. This was all laid out in the case if you remember and if not go read the arguments and the SCOTUS decision.
    You don't get to redefine marriage, marriage is something that takes place between two individuals of the opposite sex, if you want an equivalent legal relationship for people who are of the same sex then you can create one, some states did that and others rejected it.
    Never attempt to teach a pig to sing; it wastes your time and annoys the pig.

    Robert Heinlein

    Give a man an inch and right away he thinks he's a ruler

    Groucho Marx

    I love mankind…it’s people I can’t stand.

    Linus, from the Peanuts comic

    You cannot have liberty without morality and morality without faith

    Alexis de Torqueville

    Those who fail to learn from the past are condemned to repeat it.
    Those who learn from the past are condemned to watch everybody else repeat it

    A Zero Hedge comment

  23. #20
    Quote Originally Posted by Swordsmyth View Post
    You don't get to redefine marriage, marriage is something that takes place between two individuals of the opposite sex, if you want an equivalent legal relationship for people who are of the same sex then you can create one, some states did that and others rejected it.
    Its been redefined throughout history, otherwise divorce wouldn't exist.
    I just want objectivity on this forum and will point out flawed sources or points of view at my leisure.

    Quote Originally Posted by spudea on 04/20/16
    There won't be a contested convention
    Quote Originally Posted by spudea on 05/30/17
    The shooting of Gabrielle Gifford was blamed on putting a crosshair on a political map. I wonder what event we'll see justified with pictures like this.

  24. #21
    Quote Originally Posted by spudea View Post
    Its been redefined throughout history, otherwise divorce wouldn't exist.
    It has never been between people of the same sex and it never will be.
    Even if you want to redefine marriage you don't get to do it through judicial fiat.

    Obergefell is garbage and needs to be overturned.
    Never attempt to teach a pig to sing; it wastes your time and annoys the pig.

    Robert Heinlein

    Give a man an inch and right away he thinks he's a ruler

    Groucho Marx

    I love mankind…it’s people I can’t stand.

    Linus, from the Peanuts comic

    You cannot have liberty without morality and morality without faith

    Alexis de Torqueville

    Those who fail to learn from the past are condemned to repeat it.
    Those who learn from the past are condemned to watch everybody else repeat it

    A Zero Hedge comment

  25. #22
    Quote Originally Posted by Swordsmyth View Post
    It has never been between people of the same sex and it never will be.
    Even if you want to redefine marriage you don't get to do it through judicial fiat.

    Obergefell is garbage and needs to be overturned.
    Individual rights and liberties are not defined only by those who exercised them in the past. We're done. Have a nice evening.
    I just want objectivity on this forum and will point out flawed sources or points of view at my leisure.

    Quote Originally Posted by spudea on 04/20/16
    There won't be a contested convention
    Quote Originally Posted by spudea on 05/30/17
    The shooting of Gabrielle Gifford was blamed on putting a crosshair on a political map. I wonder what event we'll see justified with pictures like this.

  26. #23
    Quote Originally Posted by spudea View Post
    What you are suggesting is totally loony. To think the founders chained down the federal government from unreasonable search and seizures, freedom of speech and religion, etc, but if the states ignored these fundamental rights, they would say that's fine? Wrong. They left it open to the states to further expand freedom protections, not diminish or infringe on the protections of the US constitution.
    The First Amendment doesn't mention unreasonable searches and seizures. You're thinking of the 4th Amendment, which makes no mention of Congress or any specific limitation to the federal government, the way the 1st Amendment plainly does.

    What I have said about the meaning of the First Amendment is plainly, undebatably, and provably, exactly what the founders unanimously understood it to mean. If you were not aware of this, it's only because you've never looked into it, and possibly never actually stopped to read it carefully and think about what it literally and plainly says.

    Notice also that the view I've presented should not be at all strange to anyone here, since it's the same view that is the basis for Ron Paul's We the People Act.
    Last edited by Superfluous Man; 05-16-2019 at 06:16 AM.

  27. #24
    Quote Originally Posted by spudea View Post
    Its been redefined throughout history, otherwise divorce wouldn't exist.
    How do you figure that? Was there a time in history when divorce didn't exist?



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  29. #25
    Quote Originally Posted by Superfluous Man View Post
    The First Amendment doesn't mention unreasonable searches and seizures.

    What I have said about the meaning of the First Amendment is plainly, undebatably, and provably, exactly what the founders unanimously understood it to mean. If you were not aware of this, it's only because you've never looked into it, and possibly never actually stopped to read it carefully and think about what it literally and plainly says.
    You have it backwards, the US constitution is supreme over the states, to suggest the states can do something the feds can't is backwards. Maybe you are an anti-federalist and favor a weak central government, that's a fine opinion to debate, however you cannot ignore the present reality:

    #1 incorporation of the amendments through judicial cases apply to the states #2. maybe you disagree with the application of incorporation, fine, but all states were required to adopt bill of rights in their own constitutions to meet the same minimal standard of rights protections as in the US constitution, prior to acceptance to the Union. Example in Texas bill of rights: "No human authority ought, in any case whatever, to control or interfere with the rights of conscience in matters of religion, and no preference shall ever be given by law to any religious society or mode of worship. But it shall be the duty of the Legislature to pass such laws as may be necessary to protect equally every religious denomination in the peaceable enjoyment of its own mode of public worship."
    I just want objectivity on this forum and will point out flawed sources or points of view at my leisure.

    Quote Originally Posted by spudea on 04/20/16
    There won't be a contested convention
    Quote Originally Posted by spudea on 05/30/17
    The shooting of Gabrielle Gifford was blamed on putting a crosshair on a political map. I wonder what event we'll see justified with pictures like this.

  30. #26
    Quote Originally Posted by spudea View Post
    You have it backwards, the US constitution is supreme over the states
    Perhaps it has become that today via a history of legislation from the bench, partly on account of the 14th Amendment and partly on account of rulings that extended the 14th Amendment beyond its intent.

    But you referred above to the founders, and this is clearly not the way the founders understood the Constitution.

    Moreover, it goes against what the 1st Amendment explicitly says. And the 1st Amendment is the specific part of the Constitution we're discussing here.

    There are other parts of the Constitution that, even in their original intent, did limit state governments. But the 1st Amendment plainly only limits Congress, and explicitly limits is in precisely the authority it had over state governments. It explicitly prohibits Congress from passing any law that has anything to do with the establishment or religion. A number of the states that ratified the Constitution *had* established religions at the time the ratified it, and continued to for some years to come. When they all went on to cease that, it was voluntarily on their own parts as individual states, and not under any compulsion from the federal government. Had any in Congress ever wanted to pass a law imposing their will on those states to compel them to cease to have established religions, they would run into the 1st Amendment, which explicitly prohibited them from passing any such law, because it would be a law "respecting [i.e. having to do with] the establishment of religion."

  31. #27
    Quote Originally Posted by spudea View Post
    however you cannot ignore the present reality:
    I can when we're talking about the founders, which is what you said in post #14.

    If you want to change the subject to what obtains now as a result of all of the legislation from the bench that has taken place since the Constitution was ratified, then we can discuss that, and I may well agree with you on the fact that such legislation from the bench indeed has taken place.

    But I would also note that this discussion would bring us right back to the claim of the OP, which is that the current SCOTUS is more open to overturning past SCOTUS rulings than most of its predecessors have been, so that past precedent, which used to seem set in stone, now may not be.

    That said, I reiterate that I hold out no hope of the current court overturning either Roe or Obergefell, regardless of the fact that they were both horrible rulings.

  32. #28
    Quote Originally Posted by Anti Globalist View Post
    Overturning Roe v Wade isn't happening anytime soon. Republicans say every election cycle that if they get reelected/elected they are going to overturn it. They don't really mean it. They only say that to get christian conservatives to vote for them. Essentially they're just pandering to them. Plus they say overturning will be really easy. If that was the case, they would have been successful at it years ago.
    Roe v Wade has already been nullified by Murphy/New Jersey v. NCAA (online gambling case). Now they just need to get a relevant specific case on the books that can be widely cited.
    Last edited by devil21; 05-16-2019 at 04:46 PM.
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