SCOTUS and Roe v Wade (updated)
It’s not JUST Roe it is also CASEY Cand frankly upending Stare Decisis. Justice Alito’s twisted logic used in his draft isn’t just maddening —it’s down right meniscal and evil
Updated at 12:09AM DC Local time to now include previous Senate Confirmation hearings for Trump’s SCOTUS Nominees in their own words…
I took some time off because I was dealing with two unexpected deaths, one of which was by suicide. To say that these events completely upended my work and personal life —might be an understatement. How ever and I feel the need to disclose this upfront, I’m not exactly in a very good head space.
Which is why I took time off from publishing. Grief doesn’t come with a handbook and grief is a messy business that does not have a timetable. It comes in unexpected and arguably rogue waves. In short this is me telling you that I’m not okay and I don’t know when I’ll be…also to the folks who say:
…Time heals all wounds…
NO. IT. DOES. NOT. and saying that insensitive phrase, is in fact one of the cruelest things you can say to someone who’s grieving a death. Do not and I mean do not ever say that “colloquialism” to a person otherwise you will be met with hostility and rage which is fueled by profound sadness or you’ll end up the recipient of an actual throat punch. Last week someone was the lucky recipient of the latter… and no I am not sorry for doing it. Asshole what makes you think “time heals all wounds”? it doesn’t it only pushes the tragedy into the deeper recess of your mind… So now that you know where my head has been for about 5 days, thusly I felt an even greater compulsion to strictly focus this article on facts, not feelings but actual facts.
In light of last night’s SCOTUS leak I’m going to walk you through some tiny details… I think most of my readers can (or at least should) recall the many and I mean many Twitter Threads concerning Mississippi and Judicial Crisis Network. However I’d like to remind you of these previous publications…
On April 5, 2022 Senate Democrats published the following report, which explained how the
“Judicial Crisis Network and its dark-money donors operate, and reveals why it’s time to end anonymous special interests’ hold on the Court”
The 98-page opinion, written by Justice Samuel Alito (and his clerks) and (in my view an intentional leak. And I don’t think it’s incorrect to view this leak as a “major breach of confidentiality” , the leaked memo states in part:
"Roe was egregiously wrong from the start… "we [the Supreme Court majority] hold that Roe and Casey [another ruling on the right to abortion from 1992 which upheld the previous court decision] must be overruled."
I’m serious this isn’t just about Roe v Wade it also weaponize Casey and Stare Decisis in ways none of us ever thought possible. In Alito’s radical 98 page draft opinion he attacks both long held and respected legal doctrines/binding precedence in ways that are illogical and frankly it reads like a perverted dystopian Hand Madian-esq draconian patriarchal regression into “the good old days” —according to Alito and the four Conservative Justices, a non-medically viable zygote has more rights then the mother who’s carrying the pregnancy…
I made it to page 3 and literally yelled WTINGF is this? Are you going to say Marbury v Madison isn’t binding too? How about the equal protection clause is Alito going to subjugate Americans of Color, Female Americans as unworthy of those protections too? No really Alito’s weaponization of stare decisis is one of the most egregious and offensive arguments I’ve read in a while. Moreover his draft Memo is both illogical and offensive. Purportedly Alito has support/votes of; Thomas, Kavanaugh, Gorsuch and Coney-Barrett…
Listen to me -CALM DOWN -take a deep breath
But first let’s acknowledge the real emotion and reaction to the recent leak. And I apologize for yelling:
THE -OUTRAGE- IS - ABSOLUTELY- JUSTIFIED
It is unfathomable to me, that here we are in 2022 and we are facing the same fight our Mothers, GrandMothers, and Aunts successfully fought nearly fifty years ago. But the reality is Roe v Wade was never codified (made into law) by Congress and ultimately signed by POTUS. That is literally the crux of Alito’s radical and extreme “first draft” Opinion… seriously read the first 4 pages of Alito’s (draft) 98-page opinion misogynistic, radically ultra conservative manifesto… it’s there in black and white —Alito’s view is even in cases of rape and incest abortions are “ungodly and unjust”…
Also in case you didn’t know: Women's Health Protection Act, a bill which is currently in Congress that would prevent abortion bans and other restrictions. H.R.3755 — 117th Congress (2021-2022) was passed by the House on September 21, 2021 (Passed/agreed to in House: On passage Passed by the Yeas and Nays: 218 - 211 (Roll no. 295)..) and it went to the Senate and died because of Mitch McConnell is the grim reaper and I can’t believe Kentuckians keep re-electing him. So this current mess is on your hands, for re-electing McConnell
I can actually break down each statement: “Republicans never actually wanted to overturn Roe v Wade —they just love the millions in donations from groups like judicial crisis network…and THANKS for handing the Democrats the House and the Senate in the midterms —you insane ultra conservative turd blossoms…
But in the spirit of transparency I think you should read their respective statements and then formulate your own opinion (whispers I’m pretty sure you’ll agree with my summation) By far Speaker Pelosi’s statement (technically it’s a joint statement with leader Schumer) is the most forceful and her statement reads in part:
"If the report is accurate, the Supreme Court is poised to inflict the greatest restriction of rights in the past fifty years – not just on women but on all American…The Republican-appointed Justices’ reported votes to overturn Roe v. Wade would go down as an abomination, one of the worst and most damaging decisions in modern history.
Several of these conservative Justices, who are in no way accountable to the American people, have lied to the U.S. Senate, ripped up the Constitution and defiled both precedent and the Supreme Court’s reputation – all at the expense of tens of millions of women who could soon be stripped of their bodily autonomy and the constitutional rights they’ve relied on for half a century.
The party of Lincoln and Eisenhower has now completely devolved into the party of Trump. Every Republican Senator who supported Senator McConnell and voted for Trump Justices pretending that this day would never come will now have to explain themselves to the American people."
And her statement is largely echoed and amplified by President Biden’s own forceful and unyielding statement —keep in mind both statements were issued under the (smart) assumption that the SCOTUS leak wasn’t authenticate hence why that’s the first portion of aforementioned statements) Biden’s statement which also reads in part:
First, my administration argued strongly before the Court in defense of Roe v. Wade. We said that Roe is based on “a long line of precedent recognizing ‘the Fourteenth Amendment’s concept of personal liberty’… against government interference with intensely personal decisions.” I believe that a woman’s right to choose is fundamental, Roe has been the law of the land for almost fifty years, and basic fairness and the stability of our law demand that it not be overturned.
Second, shortly after the enactment of Texas law SB 8 and other laws restricting women’s reproductive rights, I directed my Gender Policy Council and White House Counsel’s Office to prepare options for an Administration response to the continued attack on abortion and reproductive rights, under a variety of possible outcomes in the cases pending before the Supreme Court. We will be ready when any ruling is issued.
Third, if the Court does overturn Roe, it will fall on our nation’s elected officials at all levels of government to protect a woman’s right to choose. And it will fall on voters to elect pro-choice officials this November. At the federal level, we will need more pro-choice Senators and a pro-choice majority in the House to adopt legislation that codifies Roe, which I will work to pass and sign into law.
But now we all know for sure —the draft opinion is very much authentic and that’s affirmed by Chief Justice Roberts statement and decree of an investigation into the unauthorized leak… and yes I still maintain that this leak likely came from the Conservative justices. Although if I were to speculate my initial impression was: the leak likely came from Roberts or Alito’s Clerk’s office… not to belabor that point but this draft was circulated at the end of February —so why leak now? My guess is someone in the SCOTUS literally pulled the fire alarm…or at least that’s what I keep telling myself…
…that the draft Opinion is real but it’s not the final Opinion —I know that’s scary and I know that many are (rightfully) upset. But I want to remind you that those in DC know that the (majority) in the GOP don’t want to overturn Roe v Wade because they know the unyielding rage they will face from voters. The problem is the “threat” of overturning a nearly 50 year old legal precedence has now become an actual reality, where the Conservative Justices have the votes to do this.
And that should send a chill down your spine. But the silver lining here is if SCOTUS does this, their institutional credibility will be null and turning over FIFTY YEARS of legal precedence almost assuredly hands the House and Senate over to the Democrats during the midterms…a price will be paid and debts should not be forgiven. In short yes I’m saying use your power at the ballot box. Some of you might be offended with the scope of my argument. That’s not intentional that’s me trying to explain how the floodgates will open and how off the charts Alito’s circuitous (and illogical) argument…
And of course your salt water therapy —also Substack is having an issue and as of now I am unable to add pictures of the memorandum and report however you can view a lightly highlighted copy here
Again I’m sorry for taking a few days off —I needed to process what happened last week and I’m not okay or even close to being okay…because I keep asking myself why didn’t I see the warning signs. This person was in my life, like every day for almost 14 years and they were my compass. For now my True North is lost because they died by suicide and I haven’t fully processed or grieved this loss…and I don’t know when I’ll be okay…
Trump SCOTUS nominees public position in Roe and Stare Decisis:
Not to belabor this point but I do think it is time to remind you what Trump’s (then) SCOTUS Nominee stated during their confirmation hearings. Again I’d like to remind you of what each of Trump’s nominees stated because being called a bald face liar —I thunk that’s an apt assessment… for example on March 27, 2017 SCOTUS nominee Gorsuch stated the following on a direct question from *then* Senate Judiciary Chairman Grassley….
2017 Gorsuch’s confirmation hearing —he stated the following facts & positions…
”Roe v Wade was decided in 1973…Court it has been reaffirmed the…reliance interest considerations are…important there and all of the other factors that go into analyzing precedent have to be considered it is a precedent of the United States Supreme Court was…reaffirmed in Casey in 1992 and in several other cases so a good judge will…consider it as precedent of the United” (emphasis added)
2018 -Kavanaugh’s answer during his confirmation hearing…
There’s no fuzz here, Kavanaugh wad unequivocal and made a public promise that he would “respect” the SCOTUS’ previous rulings, especially the re-affirmed, repeatedly —this is one of the primary reasons I originally stated the breadth and scope of Justice Alito’s onerous and grotesque distortion of both PP v Casey and stare decisis and purposefully pivoted to the equal protection clause because nothing in our Constitution guarantees marriage,
Sept. 5 that Roe v. Wade has been "reaffirmed" multiple times. "I don't live in a bubble. I live in the real world. I understand the importance of the issue…Wade is that it has been reaffirmed many times over the past 45 years, as you know.
And most prominently, most importantly, reaffirmed in Planned Parenthood vs. Casey in 1992… I know, when that case came up, the Supreme Court didn't just reaffirm it in passing. The Court specifically went through all the factors of stare decisis…in considering whether to overrule it. …And the joint opinion of Justice Kennedy, Justice O'Connor, and Justice Souter, at great length, went through those factors. That was the question presented in the case.
Grassley asked: Could I interrupt you to say, since you mentioned stare decisis, and I've sat on nine of these hearings, and when the subject comes up, the person says,
Kavanaugh answers: "I will follow stare decisis."
October 2020 -Coney-Barrett stated…
Senator Dianne Feinstein directly asked then nominee Supreme Court Coney about Roe v Wade and Stare Decisis…Barrett didn’t pull a Gorsuch or Kavanaugh. In fact declined to say whether the landmark 1973 abortion case Roe v. Wade was wrongly decided, her response:
"I can't pre-commit or say I'm going in with some agenda, because I'm not…What I will commit is that I will obey all the rules of stare decisis."
In 1791 our Country‘a Bill of Rights was enacted —thereafter in 1868 the fourteenth amendment ratified which is why Alito’s main argument concerning the due process clause is so incredibly disturbing and problematic. And when I stated earlier that the vast majority of Republicans (I’m talking about the moderate conservatives and veteran lawmakers) do not want to see Roe v Wade overturned —that’s likely due to their own internal polling data and other news organizations polls. For Example, below is a recent Yahoo/YouGov polling data (see embedded yahoo article) - which reflected:
Last month, only about 3 in 10 U.S. adults said the Supreme Court should overturn Roe v. Wade (30%) and transform abortion into a procedure that “individual states” are “able to outlaw” (27%), according to the most recent Yahoo News/YouGov survey.
In contrast, about twice as many Americans — a 54% majority — said in the same poll that abortion is “a constitutional right that women in all states should have some access to.”
And if you made it all the way through the update of this article then your patience shall be rewarded…. By a second dose of saltwater therapy dusk via Timelapse.
Enjoy and truly — thank you for your support, your kind words and your empathy. The past six days has felt like a slow moving train wreck. As the old folklore says “bad things come in threes” ←that is what I keep telling myself. I do think my other boss is somewhat concerned. He asked me to meet him at the Alexandria marina early tomorrow morning. My guess is he’s going to let me drive his boat in “full throttle” or let me release as many cleansing primal screams while he steps on the pedal…