- Jun 6, 2007
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The recent abortion case that was decided on June 24th of this year, Dobbs v. Jackson Women's Health Organization, is an America destroying disaster and the reason for it has nothing to do with the subject matter of the case, abortion, it has to do with the reality that with this case this Supreme Court eroded the standard the Supreme Court uses to determine if it is permissible to overrule a legal precedent to the point that there is now "no" protection for precedent in America's Supreme Court Jurisprudence, this Dobbs court established a standard that sitting Justices in deciding to overturn a precedent are permitted to substitute their views for the views of the Justices that heard the precedent case. The Dobbs court with its ruling permanently wiped out the concept of settled law in America in regards to Supreme Court law; all the abundance of Supreme Court law that the American people had taken for granted as a given in America prior to this Dobbs decision, in the areas of rights against illegal search and seizure, free speech rights, second amendment rights, every right the Supreme Court throughout its history has recognized is now subject to change. Politicians and legal experts in the media are just telling the American public that only their privacy rights that stem from the 14th amendments "liberty" due process clause in the Constitution are subject to change but it is way way more than that which is in jeopardy now!
Ordinary citizens need to understand how the Supreme Court had worked for the approximately two hundred and fifty years of its existence before the Dobbs case. The Justices of the Supreme Court hear a case the case has a legal issue the Justices make a decision on that legal issue that decision then gains precedent value meaning if that Supreme Court or lower courts face that same issue again they are required to follow that precedent, that prior decision. The Supreme Court was permitted to alter or overrule that precedent on a future case but had to comply with standards in the Doctrine of Stare Decisis (this Latin phrase means let the decision stand), this Doctrine or policy says a court must follow the precedent unless the Doctrine's analytical framework for analyzing precedent to change them calls for a change. The Doctrine's analytical framework seeks to prevent Justices from just substituting their views on a legal issue for the views of the Justices that heard the prior case; it had been the case that in American jurisprudence Justices don't have any right or authority to go around changing Supreme Court law (prior Supreme Court decisions) that they believe is erroneous that doesn't comport with their interpretation of the Constitution or Federal law. The Supreme Court in 2000 summed up the Doctrine well when it wrote in one case "Even in constitutional cases, stare decisis carries such persuasive force that the Court has always required a departure from precedent to be supported by some special justification." It is crystal clear from an examination of Supreme Court cases that the Doctrine requires more than just the situation that the precedent was wrongly decided for there to be found "special justification" to overrule a precedent.
It is not only this writer that recognizes what the Dobbs Court did here in eviscerating the Doctrine of Stare Decisis, the dissenting Justices in the Dobbs case (Justice Breyer, Justice Sotomayor and Justice Kagan) acknowledged it in their Dissenting Opinion written by Justice Kagan where she wrote "We fear that today's decision, departing from stare decisis for no legitimate reason, is its own loaded weapon. Weakening stare decisis threatens to upend bedrock legal doctrines, far beyond any single decision. Weakening stare decisis creates profound legal instability. And as Casey (the case) recognized, weakening stare decisis in a hotly contested case like this one calls into question this Court's commitment to legal principle. It makes the Court appear not restrained but aggressive, not modest but grasping. In all those ways, today's decision takes aim, we fear, at the rule of law."! Before explaining how the Dobbs Court overwhelmingly disrespected the Doctrine of Stare Decisis, it deserves to be said that the majority opinion (written by Justice Alito and joined in by Justice Thomas, Justice Gorsuch, Justice Kavanaugh and Justice Barrett) excluding consideration of whether the legal holding (decision) was right or wrong the legal opinion is atrocious it is pervasive with distortions, distortions in citing other Supreme Court cases distortions in utilized legal analysis; the legal opinion displays Judicial skills and Judicial character that are deficient for fulfilling the duties of a United States Supreme Court Justice. Considering the merits of this decision along with the aforementioned skills and character analysis, this case warrants the comment that these five Justices here have outstandingly disgraced themselves as citizens and as lawyers and will never be able to erase this disgrace; they have also here tarnished the reputation of the Supreme Court in such a manner that likewise it will never be able to be erased!
In the Dobbs case Justice Alito utilized a Stare Decisis framework in analyzing the Roe & Casey precedent to see if circumstances existed to overrule the precedent but it was just a formality it was clear from his analysis that there was no fair application of the standards that was taking place, that the court had an agenda to overrule the precedent that it was just making a record, an appearance, that the stare decisis framework was followed. Justice Alito used a five factor framework for analyzing the Roe/Casey precedent to find justification to overrule the precedent; I will examine Justice Alito's analysis of four of them because his finding of justification to overrule is clearly wrong there - I discuss selected arguments because as mentioned earlier this opinion is pervasive unbelievably pervasive in its distortions and faulty reasoning and space doesn't allot addressing every wrong point.
The first factor is the nature of the Court error. First there is no error and even if there is Justice Alito has a screwed up (no legitimate authority) definition of constitutional error that requires a precedent on a constitutional issue to be overturned. Justice Alito argues that Roe precedent was error. He argues that a right to be considered a liberty right must be rooted in our Nation's history and tradition and whether it is an essential component of what we have described as ordered liberty. He appears to argue this is a dispositive test that if the right doesn't pass this test it isn't a liberty right. This judicial view isn't universally held many Justices think this test is just the beginning of the analysis; they think at least the plain meaning of the word "liberty" should be the next step in the analysis. Furthermore both Roe and Casey believe that the Right to an abortion at the early stages of a pregnancy can find its legal roots in two categories of Supreme court cases ones that recognize a person's rights of autonomy over their own body and ones that recognize that a person's right to decide for themselves the issue of whether or not to have children, to procreate. Justice Alito dismisses all these cases because he says none of these cases deal with the Roe/Casey issue of terminating fetal life. But the key point here is that Justice Alito never elaborates he never explains why this difference matters; the reasonable assumption is that if he explains he will reveal fatal flaws in his case. If he explained he would have to say that this difference matters because this fetal life has a right to life which means he is giving person status to the fetus and the question then arises how do you justify giving the fetus person status throughout the entire gestation period that cuts against human reason at the beginning of this period the human embryo is just a collection of cells it doesn't have a beating heart, brain function, human form there is no persuasive basis for giving the fetus person status early in the gestation period.
In regards to the "nature" of the error Justice Alito seems to be saying that if the wrongful precedent, precedent which violates the Constitution, takes power that should be resting with the people so that they can exercise through their state representatives it must be overruled. He cites the West Coast Hotel case, a 1932 case, for providing authority for this standard. It is a distortion of that case to say it makes any type of statement on preserving power for the people. The West Coast Hotel case overturned a precedent which said that state minimum wage laws violated peoples substantive due process right of freedom to contract the reasons for Court's overturning was that the Great Depression had occurred, and many employers were paying worker wages that the worker and the workers' family could not live on and so the Court essentially ruled that the freedom of contract is not an absolute freedom that states have protection (police) powers amongst them to set a minimum wage to insure that the wage maintains for the worker and the workers family the ability to exist - its a state police power case! Another authority that Justice Alito cites is part of Justice White's dissenting opinion in the Thornburgh case (1983) the meaning of Justice White's thinking there would be that all wrongful or erroneous constitutional precedents where a state law or a state regulation are blocked from taking effect must be overruled because it is taking power from the people no lawyer that claims to legitimately respect the Doctrine of Stare Decisis would hold that view such a view would put an abundance of critical Supreme Court law in jeopardy where if such law was overturned it would have a decimating effect for our nation.
The second factor is the quality of the reasoning (in Roe and Casey). When the United States Supreme Court hears a case on an issue or issues of law it should evaluate the current state of the law this is Judicial Ruling 101. Justice Alito spends a lot of time criticizing Roe's trimester framework of permissible state regulation of a women's right to abortion; Roe ruled state's cannot have regulation on abortion concerned with protecting the life of the mother until after the first trimester ends and cannot have regulation protecting the public interest in protecting potential fetal life until after the end of the second trimester. The Casey court explicitly overruled Roe's trimester framework the state can have regulations furthering both of these interests now anytime during a women's pregnancy the issue is whether it is an undue burden on a women's right to an abortion up until the point of viability. It is completely faulty analysis here by Justice Alito the trimester analysis framework is no longer part of the Supreme Court precedent it doesn't belong in the analysis.
Justice Alito condemns the reasoning of Roe and Casey insofar as Roe and Casey found roots for finding a right to an abortion in the early stages of her pregnancy for a women in the two categories of Supreme Court precedent cases, the cases saying a person has the right of autonomy over his or her own body and the cases saying that a person has the right to decide for him or herself on the issue of having a child. Justice Alito writes "(Roe) disregarded the fundamental difference (that they did not involve the issue of terminating fetal life) between the precedents on which it relied and the question before the Court. I agree with Justice O'Connor about the quality of legal reasoning here when she essentially wrote in the Casey case that the basis for finding the right to an abortion in these two areas of Supreme Court precedents is so strong that if ultimately it is found that the U.S. Constitution does not support a right to an abortion it will not be because of this precedent and related analysis it will be because the public interest doesn't allow for it meaning in Justice O'Connor's view when the fetus is found to be a person then the public has a compelling interest in protecting the life of that second person so that if the authority on the issue required a finding that the fetus was a person throughout the gestation period that is the only way the Constitution could be found to not support a right to an abortion.
Justice Alito took issue with the viability line importance in Roe and Casey that at that point in the gestation period the government can begin prohibiting an abortion as he put it "(it) makes no sense". I think good legal analysis would conclude that it makes perfect sense to at least begin prohibiting abortions at this point. the point of viability is the point in a women's pregnancy when the fetus is capable of living outside the womb, I think Casey put that point at twenty-three to twenty-four weeks into the pregnancy. Justice O'Connor did a good job in Casey defending this viability line aspect of the law when she wrote, "The second reason is that the concept of viability, as we noted in Roe, is the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb, so that the independent existence of the second life can in reason and all fairness be the object of state protection that now overrides the rights of the women." In short what Justice O'Connor is saying it that at the point of viability the law can say with definiteness that the life of a second person that of the fetus's has now come into the picture and deserves to be protected.
The third factor is workability. Justice Alito says the Roe/Casey holding is unworkable because it has an undue burden test to determine if a state regulation passes constitutional muster and the Justice finds this very problematic. He also finds particular problems with the three subrules that Casey produced to apply the no undue burden rule. The vast vast majority of Justice Alito's problems here can be defined as problems with the broad and general terms used in these rules and the challenge of applying such broad and general standards. Justice Kagan in the dissent addressed this consideration appropriately when she wrote "General standards, like the undue burden standard, are ubiquitous in the law, and particularly in constitutional adjudication. When called on to give effect to the Constitution's broad principles, this court often crafts flexible standards that can be applied case-by-case to a myriad of unforeseeable circumstances. -------- Applying general standards to particular cases is, in many contexts, just what it means to do law." In some of Justice Alito's criticisms of the Casey three sub-rules he is just acting like an idiot, a twit! Justice Alito writes "Consider a (state) law that imposes an insubstantial obstacle but serves little purpose. As applied to pre-viability abortion, would such a regulation be constitutional on the ground that is does not impose a "substantial obstacle"? Or would it be unconstitutional on the ground that it creates an "undue burden" because the burden it imposes, though slight, outweighs its negligible benefits? Casey does not say, and this ambiguity would lead to confusion down the line." This is a goofball argument! Casey doesn't say if a state regulation doesn't create a substantial obstacle you still have to weigh the value of the benefit of the regulation against the burden to determine constitutionality. The Casey case has just three subrules, it is illegitimate to create other sub-rules, the sub-rules are: one if the purpose or effect of the regulation is to place a substantial obstacle in the path of the women seeking an abortion it has created an undue burden; two, regulations that seek to inform the women seeking an abortion will not be found unconstitutional as long as their purpose is to persuade the women to choose childbirth over abortion and three, unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a women seeking an abortion impose an undue burden.
The fourth factor is the effect (of the precedent) on other areas of the law. Justice Alito condemns the Roe/Casey precedent for changing Supreme Court jurisprudence in the area of application of various legal doctrines and cites the dissenting opinion of Justice O'Connor who made this claim in the Thornburgh case. This is the deal this Thornburgh case was a 1986 case it was before the Casey case which was in 1992, the Casey case dramatically changed abortion law in America as stated it did away with the rigid trimester framework for evaluating state regulations of abortion; the basis for Justice O'Connor criticisms no longer lies so one should conclude the criticism no longer lies. Another of Alito's criticism is that the application of the Roe/Casey precedent has somehow altered the application of the Doctrine of Res Judicata (which basically stands for the principle that once you have your day in court you have to accept the outcome, you cannot bring another case which just relitigates the prior case) and he cites the Whole Women's Health vs. Hellerstedt case. This case was about a Texas statute that mandated that physician working at abortion clinics had to have admitting privileges at a nearby hospital and that abortion clinics meet minimum standards for ambulatory surgical centers. This case involved something like two abortion clinics and a bunch of abortion doctors challenging the law as violating the Roe/Casey abortion law. The Res judicata issue came up because some of the plaintiffs had brought a lawsuit in state court shortly after the Texas law was passed calling for the law to be enjoined on Roe/Casey grounds, the earlier plaintiff's lost at the state appellate level and didn't appeal to the Supreme Court; and, Justice Alito thinks their case shouldn't have been permitted to go forward on Res Judicata grounds, Justice Breyer and four other Justices said no way it doesn't violate the doctrine. The majority was right, the facts of the case differed; the earlier case was before the Texas law was put into effect and the Texas appellate court just lavished praise on the two Texas mandates and ruled it would not cause abortion clinics to shut down and lo and behold the law was put into effect and all these Texas abortion clinics ended up closing because of the Texas law, so the plaintiffs brought a lawsuit to save their clinics!
What is really going on here for America with this outcome in the Dobbs case from a big picture standpoint. Lawyers learn in law school that there is two types of statutory construction [ways to interpret the constitution, federal law and state law]: strict constructionism and ordinary constructionism. In strict constructionism one is limited by the text of the statute, that is, follow and apply the meaning of the text don't go looking outside the text to determine the intent or purpose of the statute. In ordinary constructionism you are supposed to try to determine the intent or purpose of the statute and give effect to this. What America generally has today is a bunch of Republican strict constructionists on the court (Justice Kagan, Breyer and Sotomayor called them textualists but basically it's the same thing) with an agenda to alter America's law to get it to conform to their narrow view of what the respective statute says and since they essentially with the Dobbs case relegated the Doctrine of Stare Decisis to a formality and since they are in the majority on the Court they are all teed up to go on their tirade changing American law. Now the Democrat nominated members of our dear Court have recognized that the rules have changed on how the Supreme Court operates how the majority now gets to work their will on what they think the law should be across the board in Supreme court jurisprudence now no law is off limits to being changed; they have layed the groundwork for when they get into the majority so that they can go on a tirade changing America's law to their suiting. Justice Kagan wrote in her dissent in Dobbs about the Doctrine of Stare Decisis "we are not saying that a decision can never be overruled just because it is terribly wrong"; I read several of these Justices opinion where they addressed Stare Decisis and they never wrote that they interpreted the Doctrine in this manner. It shouldn't be a stretch for the American people to conclude that Democrat nominated Justices for any legal issue they deem important to describe the wrongful or erroneous prior Court decision as "terribly wrong"!
How does the American people stop the Supreme Court from proceeding on their new order where the majority at will gets to create major legal earthquakes in America and the American people have to suffer the fallout. First let's examine how we got here, the Court used to have more moderate Justices they weren't activist idealogues which we have today and this is because nominees for the Court used to have to get sixty votes to stop the filibuster on their nominations so the nominations could come up for a vote on whether they should be confirmed; as a matter of fact there was a sixty vote threshold to end the filibuster for all Federal Judiciary appointment which benefited the country because it produced a moderate, nonactivist federal judiciary because judicial candidates had to get bipartisan support to meet the sixty vote threshold to get confirmed. Democrat Majority leader ended the sixty vote threshold (the nuclear option) for all Federal non-Supreme Court Judicial nominees in 2013 and Republican Majority Leader Mitch McConnell end it for Supreme Court nominees in 2017. The reason for endings of this system is that the Senate and Senators were abusing the system individual Senators would block a nominee they didn't like by blocking his or her nomination for coming up for a vote and the Senate as a whole was allowing court nominations to get caught up in the politics of Washington and nominees were not getting a vote because of nothing that had to do with them or the Court system. America needs to get back to super majority of Senators requirements for federal court nominees to get confirmed so we can end this activists Justice history America is beginning to see. This can be done by amending the constitution to require a sixty percent senator vote rule to end a filibuster to fill a Judicial seat after a year has expired from either when the President first nominates a candidate to fill the seat or the seat opens up whichever is sooner the threshold drops to fifty-five percent and stays at that requirement until the seat is filled, dropping it will make it a little easier to get confirmed but still will likely require a bi-partisan support for a nominee to get confirmed thereby bringing moderates to the court. The Amendment could also mandate that a nomination be brought up for a confirmation vote within six months of the nomination submission and it could be extended for up to another six months by either the Senate Majority leader calling for it or twenty percent of the Senator seats in the body calling for it and if the Senate doesn't conduct the vote the Chief Justice of the Supreme Court or if none exist the senior ranking Justice has the power to conduct such vote and if sitting Senators will not cooperate that Justice has the power to rule that the nomination was constructively not confirmed on the basis that members of the Senate did not cooperate. The Amendment could say that the process starts over with a new President and a President cannot renominate a candidate that was already nominated.
Many Americans with the death of Ruth Bader Ginsburg at the age of 87 while a sitting Justice and the imbalance of her untimely death caused on the Court have spoken of amending the constitution to have a mandatory retirement age for Judges at like seventy-five years of age. If such is pursued to amend the Constitution the above could be implement as well as solving this gutting of the Doctrine of Stare Decisis problem. The amendment could say; The Court shall not overrule a precedent that is wrong even egregiously wrong if essentially the basis for the overruling involves the Court just substituting its views on the legal issues involved for the prior court; otherwise in overruling a precedent the standards of the Doctrine of Stare Decisis shall be complied with. Justices that have said especially during the confirmation process that a precedent is settled law or the like are never considered to be required to recuse themselves from hearing a case involving that issue they are always deemed in a general sense open to the possibility of reopening the issue of a settled law principle subject to being persuaded to do so by the arguments of a party to the case. Senators are to consider nominee's position on settled law questions in deciding whether to vote in favor of the nomination, part of Senators duties is to protect the stability of America's Court Jurisprudence.
There is possibly another way to overcome this destruction of the Stare Decisis doctrine by the Dobbs case which would require luck or the intervention of God's hand so to speak to do so. It would require a Democrat President to be able to get confirmed two more Justices to the Supreme Court confirmed and keep the three Democrat nominated ones on the Court so the Democrat President could get a fair hearing on the following issue. I wrote about this back in 2018 during the Judge Kavanaugh confirmation process. If a Democrat President gets this fair hearing Court he or she should file a case in Federal Court for him or her to be able to fill the Justice Kavanaugh seat that the Justice Kavanaugh occupation of that seat does not conform with the Constitution. The Constitution requires the Senate give advice and consent on the nomination. During Judge Kavanaugh's confirmation process two serious sexual misconduct allegations came to light and the FBI was only given one week to conduct such allegations, one week isn't sufficient to meet a due diligence obligation which a submit lies here. What was going on here was Senate majority leader McConnell had an unpopular nominee that was growing more unpopular by the day and you had the midterms coming up in November with no one able to say for sure that the Republicans would hold on to the Senate so to be able to get a replacement nominee for Judge Kavanaugh that would suit President Trump's right wing ideology requirement through the confirmation process so Senator McConnell orchestrated a rushed process to get the Kavanaugh confirmation vote to pass a process that included an FBI investigation where the agency would definitely not have enough time to do a thorough job. If the Supreme Court hearing the case found that the constitutional requirements were not met and that the Supreme Court seat is open for the President to fill they could also at the same time rule which would not be able to be challenged because they are the senior court in America that all cases that Judge Kavanaugh heard as a Justice cannot be reopened because when he was part of the court that decided the respective case his seat was held in compliance with the constitution. Then the Supreme Court in future litigation could dismiss the commentary and ruling on the Doctrine of Stare Decisis in the Dobbs case as invalid and of no precedential value because one of the Justices in the majority on that case did not lawfully hold his seat!
Ordinary citizens need to understand how the Supreme Court had worked for the approximately two hundred and fifty years of its existence before the Dobbs case. The Justices of the Supreme Court hear a case the case has a legal issue the Justices make a decision on that legal issue that decision then gains precedent value meaning if that Supreme Court or lower courts face that same issue again they are required to follow that precedent, that prior decision. The Supreme Court was permitted to alter or overrule that precedent on a future case but had to comply with standards in the Doctrine of Stare Decisis (this Latin phrase means let the decision stand), this Doctrine or policy says a court must follow the precedent unless the Doctrine's analytical framework for analyzing precedent to change them calls for a change. The Doctrine's analytical framework seeks to prevent Justices from just substituting their views on a legal issue for the views of the Justices that heard the prior case; it had been the case that in American jurisprudence Justices don't have any right or authority to go around changing Supreme Court law (prior Supreme Court decisions) that they believe is erroneous that doesn't comport with their interpretation of the Constitution or Federal law. The Supreme Court in 2000 summed up the Doctrine well when it wrote in one case "Even in constitutional cases, stare decisis carries such persuasive force that the Court has always required a departure from precedent to be supported by some special justification." It is crystal clear from an examination of Supreme Court cases that the Doctrine requires more than just the situation that the precedent was wrongly decided for there to be found "special justification" to overrule a precedent.
It is not only this writer that recognizes what the Dobbs Court did here in eviscerating the Doctrine of Stare Decisis, the dissenting Justices in the Dobbs case (Justice Breyer, Justice Sotomayor and Justice Kagan) acknowledged it in their Dissenting Opinion written by Justice Kagan where she wrote "We fear that today's decision, departing from stare decisis for no legitimate reason, is its own loaded weapon. Weakening stare decisis threatens to upend bedrock legal doctrines, far beyond any single decision. Weakening stare decisis creates profound legal instability. And as Casey (the case) recognized, weakening stare decisis in a hotly contested case like this one calls into question this Court's commitment to legal principle. It makes the Court appear not restrained but aggressive, not modest but grasping. In all those ways, today's decision takes aim, we fear, at the rule of law."! Before explaining how the Dobbs Court overwhelmingly disrespected the Doctrine of Stare Decisis, it deserves to be said that the majority opinion (written by Justice Alito and joined in by Justice Thomas, Justice Gorsuch, Justice Kavanaugh and Justice Barrett) excluding consideration of whether the legal holding (decision) was right or wrong the legal opinion is atrocious it is pervasive with distortions, distortions in citing other Supreme Court cases distortions in utilized legal analysis; the legal opinion displays Judicial skills and Judicial character that are deficient for fulfilling the duties of a United States Supreme Court Justice. Considering the merits of this decision along with the aforementioned skills and character analysis, this case warrants the comment that these five Justices here have outstandingly disgraced themselves as citizens and as lawyers and will never be able to erase this disgrace; they have also here tarnished the reputation of the Supreme Court in such a manner that likewise it will never be able to be erased!
In the Dobbs case Justice Alito utilized a Stare Decisis framework in analyzing the Roe & Casey precedent to see if circumstances existed to overrule the precedent but it was just a formality it was clear from his analysis that there was no fair application of the standards that was taking place, that the court had an agenda to overrule the precedent that it was just making a record, an appearance, that the stare decisis framework was followed. Justice Alito used a five factor framework for analyzing the Roe/Casey precedent to find justification to overrule the precedent; I will examine Justice Alito's analysis of four of them because his finding of justification to overrule is clearly wrong there - I discuss selected arguments because as mentioned earlier this opinion is pervasive unbelievably pervasive in its distortions and faulty reasoning and space doesn't allot addressing every wrong point.
The first factor is the nature of the Court error. First there is no error and even if there is Justice Alito has a screwed up (no legitimate authority) definition of constitutional error that requires a precedent on a constitutional issue to be overturned. Justice Alito argues that Roe precedent was error. He argues that a right to be considered a liberty right must be rooted in our Nation's history and tradition and whether it is an essential component of what we have described as ordered liberty. He appears to argue this is a dispositive test that if the right doesn't pass this test it isn't a liberty right. This judicial view isn't universally held many Justices think this test is just the beginning of the analysis; they think at least the plain meaning of the word "liberty" should be the next step in the analysis. Furthermore both Roe and Casey believe that the Right to an abortion at the early stages of a pregnancy can find its legal roots in two categories of Supreme court cases ones that recognize a person's rights of autonomy over their own body and ones that recognize that a person's right to decide for themselves the issue of whether or not to have children, to procreate. Justice Alito dismisses all these cases because he says none of these cases deal with the Roe/Casey issue of terminating fetal life. But the key point here is that Justice Alito never elaborates he never explains why this difference matters; the reasonable assumption is that if he explains he will reveal fatal flaws in his case. If he explained he would have to say that this difference matters because this fetal life has a right to life which means he is giving person status to the fetus and the question then arises how do you justify giving the fetus person status throughout the entire gestation period that cuts against human reason at the beginning of this period the human embryo is just a collection of cells it doesn't have a beating heart, brain function, human form there is no persuasive basis for giving the fetus person status early in the gestation period.
In regards to the "nature" of the error Justice Alito seems to be saying that if the wrongful precedent, precedent which violates the Constitution, takes power that should be resting with the people so that they can exercise through their state representatives it must be overruled. He cites the West Coast Hotel case, a 1932 case, for providing authority for this standard. It is a distortion of that case to say it makes any type of statement on preserving power for the people. The West Coast Hotel case overturned a precedent which said that state minimum wage laws violated peoples substantive due process right of freedom to contract the reasons for Court's overturning was that the Great Depression had occurred, and many employers were paying worker wages that the worker and the workers' family could not live on and so the Court essentially ruled that the freedom of contract is not an absolute freedom that states have protection (police) powers amongst them to set a minimum wage to insure that the wage maintains for the worker and the workers family the ability to exist - its a state police power case! Another authority that Justice Alito cites is part of Justice White's dissenting opinion in the Thornburgh case (1983) the meaning of Justice White's thinking there would be that all wrongful or erroneous constitutional precedents where a state law or a state regulation are blocked from taking effect must be overruled because it is taking power from the people no lawyer that claims to legitimately respect the Doctrine of Stare Decisis would hold that view such a view would put an abundance of critical Supreme Court law in jeopardy where if such law was overturned it would have a decimating effect for our nation.
The second factor is the quality of the reasoning (in Roe and Casey). When the United States Supreme Court hears a case on an issue or issues of law it should evaluate the current state of the law this is Judicial Ruling 101. Justice Alito spends a lot of time criticizing Roe's trimester framework of permissible state regulation of a women's right to abortion; Roe ruled state's cannot have regulation on abortion concerned with protecting the life of the mother until after the first trimester ends and cannot have regulation protecting the public interest in protecting potential fetal life until after the end of the second trimester. The Casey court explicitly overruled Roe's trimester framework the state can have regulations furthering both of these interests now anytime during a women's pregnancy the issue is whether it is an undue burden on a women's right to an abortion up until the point of viability. It is completely faulty analysis here by Justice Alito the trimester analysis framework is no longer part of the Supreme Court precedent it doesn't belong in the analysis.
Justice Alito condemns the reasoning of Roe and Casey insofar as Roe and Casey found roots for finding a right to an abortion in the early stages of her pregnancy for a women in the two categories of Supreme Court precedent cases, the cases saying a person has the right of autonomy over his or her own body and the cases saying that a person has the right to decide for him or herself on the issue of having a child. Justice Alito writes "(Roe) disregarded the fundamental difference (that they did not involve the issue of terminating fetal life) between the precedents on which it relied and the question before the Court. I agree with Justice O'Connor about the quality of legal reasoning here when she essentially wrote in the Casey case that the basis for finding the right to an abortion in these two areas of Supreme Court precedents is so strong that if ultimately it is found that the U.S. Constitution does not support a right to an abortion it will not be because of this precedent and related analysis it will be because the public interest doesn't allow for it meaning in Justice O'Connor's view when the fetus is found to be a person then the public has a compelling interest in protecting the life of that second person so that if the authority on the issue required a finding that the fetus was a person throughout the gestation period that is the only way the Constitution could be found to not support a right to an abortion.
Justice Alito took issue with the viability line importance in Roe and Casey that at that point in the gestation period the government can begin prohibiting an abortion as he put it "(it) makes no sense". I think good legal analysis would conclude that it makes perfect sense to at least begin prohibiting abortions at this point. the point of viability is the point in a women's pregnancy when the fetus is capable of living outside the womb, I think Casey put that point at twenty-three to twenty-four weeks into the pregnancy. Justice O'Connor did a good job in Casey defending this viability line aspect of the law when she wrote, "The second reason is that the concept of viability, as we noted in Roe, is the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb, so that the independent existence of the second life can in reason and all fairness be the object of state protection that now overrides the rights of the women." In short what Justice O'Connor is saying it that at the point of viability the law can say with definiteness that the life of a second person that of the fetus's has now come into the picture and deserves to be protected.
The third factor is workability. Justice Alito says the Roe/Casey holding is unworkable because it has an undue burden test to determine if a state regulation passes constitutional muster and the Justice finds this very problematic. He also finds particular problems with the three subrules that Casey produced to apply the no undue burden rule. The vast vast majority of Justice Alito's problems here can be defined as problems with the broad and general terms used in these rules and the challenge of applying such broad and general standards. Justice Kagan in the dissent addressed this consideration appropriately when she wrote "General standards, like the undue burden standard, are ubiquitous in the law, and particularly in constitutional adjudication. When called on to give effect to the Constitution's broad principles, this court often crafts flexible standards that can be applied case-by-case to a myriad of unforeseeable circumstances. -------- Applying general standards to particular cases is, in many contexts, just what it means to do law." In some of Justice Alito's criticisms of the Casey three sub-rules he is just acting like an idiot, a twit! Justice Alito writes "Consider a (state) law that imposes an insubstantial obstacle but serves little purpose. As applied to pre-viability abortion, would such a regulation be constitutional on the ground that is does not impose a "substantial obstacle"? Or would it be unconstitutional on the ground that it creates an "undue burden" because the burden it imposes, though slight, outweighs its negligible benefits? Casey does not say, and this ambiguity would lead to confusion down the line." This is a goofball argument! Casey doesn't say if a state regulation doesn't create a substantial obstacle you still have to weigh the value of the benefit of the regulation against the burden to determine constitutionality. The Casey case has just three subrules, it is illegitimate to create other sub-rules, the sub-rules are: one if the purpose or effect of the regulation is to place a substantial obstacle in the path of the women seeking an abortion it has created an undue burden; two, regulations that seek to inform the women seeking an abortion will not be found unconstitutional as long as their purpose is to persuade the women to choose childbirth over abortion and three, unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a women seeking an abortion impose an undue burden.
The fourth factor is the effect (of the precedent) on other areas of the law. Justice Alito condemns the Roe/Casey precedent for changing Supreme Court jurisprudence in the area of application of various legal doctrines and cites the dissenting opinion of Justice O'Connor who made this claim in the Thornburgh case. This is the deal this Thornburgh case was a 1986 case it was before the Casey case which was in 1992, the Casey case dramatically changed abortion law in America as stated it did away with the rigid trimester framework for evaluating state regulations of abortion; the basis for Justice O'Connor criticisms no longer lies so one should conclude the criticism no longer lies. Another of Alito's criticism is that the application of the Roe/Casey precedent has somehow altered the application of the Doctrine of Res Judicata (which basically stands for the principle that once you have your day in court you have to accept the outcome, you cannot bring another case which just relitigates the prior case) and he cites the Whole Women's Health vs. Hellerstedt case. This case was about a Texas statute that mandated that physician working at abortion clinics had to have admitting privileges at a nearby hospital and that abortion clinics meet minimum standards for ambulatory surgical centers. This case involved something like two abortion clinics and a bunch of abortion doctors challenging the law as violating the Roe/Casey abortion law. The Res judicata issue came up because some of the plaintiffs had brought a lawsuit in state court shortly after the Texas law was passed calling for the law to be enjoined on Roe/Casey grounds, the earlier plaintiff's lost at the state appellate level and didn't appeal to the Supreme Court; and, Justice Alito thinks their case shouldn't have been permitted to go forward on Res Judicata grounds, Justice Breyer and four other Justices said no way it doesn't violate the doctrine. The majority was right, the facts of the case differed; the earlier case was before the Texas law was put into effect and the Texas appellate court just lavished praise on the two Texas mandates and ruled it would not cause abortion clinics to shut down and lo and behold the law was put into effect and all these Texas abortion clinics ended up closing because of the Texas law, so the plaintiffs brought a lawsuit to save their clinics!
What is really going on here for America with this outcome in the Dobbs case from a big picture standpoint. Lawyers learn in law school that there is two types of statutory construction [ways to interpret the constitution, federal law and state law]: strict constructionism and ordinary constructionism. In strict constructionism one is limited by the text of the statute, that is, follow and apply the meaning of the text don't go looking outside the text to determine the intent or purpose of the statute. In ordinary constructionism you are supposed to try to determine the intent or purpose of the statute and give effect to this. What America generally has today is a bunch of Republican strict constructionists on the court (Justice Kagan, Breyer and Sotomayor called them textualists but basically it's the same thing) with an agenda to alter America's law to get it to conform to their narrow view of what the respective statute says and since they essentially with the Dobbs case relegated the Doctrine of Stare Decisis to a formality and since they are in the majority on the Court they are all teed up to go on their tirade changing American law. Now the Democrat nominated members of our dear Court have recognized that the rules have changed on how the Supreme Court operates how the majority now gets to work their will on what they think the law should be across the board in Supreme court jurisprudence now no law is off limits to being changed; they have layed the groundwork for when they get into the majority so that they can go on a tirade changing America's law to their suiting. Justice Kagan wrote in her dissent in Dobbs about the Doctrine of Stare Decisis "we are not saying that a decision can never be overruled just because it is terribly wrong"; I read several of these Justices opinion where they addressed Stare Decisis and they never wrote that they interpreted the Doctrine in this manner. It shouldn't be a stretch for the American people to conclude that Democrat nominated Justices for any legal issue they deem important to describe the wrongful or erroneous prior Court decision as "terribly wrong"!
How does the American people stop the Supreme Court from proceeding on their new order where the majority at will gets to create major legal earthquakes in America and the American people have to suffer the fallout. First let's examine how we got here, the Court used to have more moderate Justices they weren't activist idealogues which we have today and this is because nominees for the Court used to have to get sixty votes to stop the filibuster on their nominations so the nominations could come up for a vote on whether they should be confirmed; as a matter of fact there was a sixty vote threshold to end the filibuster for all Federal Judiciary appointment which benefited the country because it produced a moderate, nonactivist federal judiciary because judicial candidates had to get bipartisan support to meet the sixty vote threshold to get confirmed. Democrat Majority leader ended the sixty vote threshold (the nuclear option) for all Federal non-Supreme Court Judicial nominees in 2013 and Republican Majority Leader Mitch McConnell end it for Supreme Court nominees in 2017. The reason for endings of this system is that the Senate and Senators were abusing the system individual Senators would block a nominee they didn't like by blocking his or her nomination for coming up for a vote and the Senate as a whole was allowing court nominations to get caught up in the politics of Washington and nominees were not getting a vote because of nothing that had to do with them or the Court system. America needs to get back to super majority of Senators requirements for federal court nominees to get confirmed so we can end this activists Justice history America is beginning to see. This can be done by amending the constitution to require a sixty percent senator vote rule to end a filibuster to fill a Judicial seat after a year has expired from either when the President first nominates a candidate to fill the seat or the seat opens up whichever is sooner the threshold drops to fifty-five percent and stays at that requirement until the seat is filled, dropping it will make it a little easier to get confirmed but still will likely require a bi-partisan support for a nominee to get confirmed thereby bringing moderates to the court. The Amendment could also mandate that a nomination be brought up for a confirmation vote within six months of the nomination submission and it could be extended for up to another six months by either the Senate Majority leader calling for it or twenty percent of the Senator seats in the body calling for it and if the Senate doesn't conduct the vote the Chief Justice of the Supreme Court or if none exist the senior ranking Justice has the power to conduct such vote and if sitting Senators will not cooperate that Justice has the power to rule that the nomination was constructively not confirmed on the basis that members of the Senate did not cooperate. The Amendment could say that the process starts over with a new President and a President cannot renominate a candidate that was already nominated.
Many Americans with the death of Ruth Bader Ginsburg at the age of 87 while a sitting Justice and the imbalance of her untimely death caused on the Court have spoken of amending the constitution to have a mandatory retirement age for Judges at like seventy-five years of age. If such is pursued to amend the Constitution the above could be implement as well as solving this gutting of the Doctrine of Stare Decisis problem. The amendment could say; The Court shall not overrule a precedent that is wrong even egregiously wrong if essentially the basis for the overruling involves the Court just substituting its views on the legal issues involved for the prior court; otherwise in overruling a precedent the standards of the Doctrine of Stare Decisis shall be complied with. Justices that have said especially during the confirmation process that a precedent is settled law or the like are never considered to be required to recuse themselves from hearing a case involving that issue they are always deemed in a general sense open to the possibility of reopening the issue of a settled law principle subject to being persuaded to do so by the arguments of a party to the case. Senators are to consider nominee's position on settled law questions in deciding whether to vote in favor of the nomination, part of Senators duties is to protect the stability of America's Court Jurisprudence.
There is possibly another way to overcome this destruction of the Stare Decisis doctrine by the Dobbs case which would require luck or the intervention of God's hand so to speak to do so. It would require a Democrat President to be able to get confirmed two more Justices to the Supreme Court confirmed and keep the three Democrat nominated ones on the Court so the Democrat President could get a fair hearing on the following issue. I wrote about this back in 2018 during the Judge Kavanaugh confirmation process. If a Democrat President gets this fair hearing Court he or she should file a case in Federal Court for him or her to be able to fill the Justice Kavanaugh seat that the Justice Kavanaugh occupation of that seat does not conform with the Constitution. The Constitution requires the Senate give advice and consent on the nomination. During Judge Kavanaugh's confirmation process two serious sexual misconduct allegations came to light and the FBI was only given one week to conduct such allegations, one week isn't sufficient to meet a due diligence obligation which a submit lies here. What was going on here was Senate majority leader McConnell had an unpopular nominee that was growing more unpopular by the day and you had the midterms coming up in November with no one able to say for sure that the Republicans would hold on to the Senate so to be able to get a replacement nominee for Judge Kavanaugh that would suit President Trump's right wing ideology requirement through the confirmation process so Senator McConnell orchestrated a rushed process to get the Kavanaugh confirmation vote to pass a process that included an FBI investigation where the agency would definitely not have enough time to do a thorough job. If the Supreme Court hearing the case found that the constitutional requirements were not met and that the Supreme Court seat is open for the President to fill they could also at the same time rule which would not be able to be challenged because they are the senior court in America that all cases that Judge Kavanaugh heard as a Justice cannot be reopened because when he was part of the court that decided the respective case his seat was held in compliance with the constitution. Then the Supreme Court in future litigation could dismiss the commentary and ruling on the Doctrine of Stare Decisis in the Dobbs case as invalid and of no precedential value because one of the Justices in the majority on that case did not lawfully hold his seat!
