NationStates Jolt Archive

I am not and don't pretend to be very knowledgable about the current justices of the United States Supreme Court. With the nomination of John Roberts, I've noticed that some liberal/pro-choice advocates are concerned and even outraged at the proposition of him serving as a justice, mostly regarding his past attitudes against abortion and the ruling of Roe v. Wade. Now, I've read that his most obvious dissent against abortion was written when he was serving as an attorney representing the goverment under H.W. Bush. However, I've also heard that he's expressed a negative attitude against Roe v. Wade and other traditionally liberal-backed practices throughout the history of his career. So, to those in the know, what chances do you belive Roe v. Wade has at being overturned based upon John Roberts confirmation as a Supreme Court Justice?

I am not and don't pretend to be very knowledgable about the current justices of the United States Supreme Court. With the nomination of John Roberts, I've noticed that some liberal/pro-choice advocates are concerned and even outraged at the proposition of him serving as a justice, mostly regarding his past attitudes against abortion and the ruling of Roe v. Wade. Now, I've read that his most obvious dissent against abortion was written when he was serving as an attorney representing the goverment under H.W. Bush. However, I've also heard that he's expressed a negative attitude against Roe v. Wade and other traditionally liberal-backed practices throughout the history of his career. So, to those in the know, what chances do you belive Roe v. Wade has at being overturned based upon John Roberts confirmation as a Supreme Court Justice?

Zero. The speculation makes for higher ratings on the evening news, but there's no question that Roberts' replacement of O'Connor on the court isn't enough to tilt that body's balance on the legality of abortion.

Zero. The speculation makes for higher ratings on the evening news, but there's no question that Roberts' replacement of O'Connor on the court isn't enough to tilt that body's balance on the legality of abortion.

Hmm. I'd like to think that was true.

The question has 2 parts: (a) what is the likelihood that Roberts's vote would differ from O'Connor's on the issue and (b), if so, what would be the likely effect of such a vote shift.

I'm going to skip (a) as we lack information. There is certainly cause for concern that Roberts would vote against abortion rights.

As to (b), the issue isn't clear-cut.

Planned Parenthood v. Casey (http://laws.findlaw.com/us/505/833.html ), 505 U.S. 833 (1992), was the last clearest test of Roe.

It was a 5-4 decision. Five Justices clearly upheld Roe: O'Connor, Kennedy, Souter, Stevens, and Blackmun. Five Justices dissented, saying Roe should be overturned: Rehnquist, White, Scalia, and Thomas.

Of that 5-4 split, White and Blackmun have been replaced by Ginsburg and Breyer. So, the current court could be assumed to be a 6-3 split in favor of abortion rights.

Replacing O'Connor with an anti-abortion vote (and I am obviously oversimplifying here) would theoretically make the Court 5-4.

Thus, it would move the Court closer to overturning Roe, but be far from a death blow.

Somewhat instructive is Stenberg v. Carhart (http://laws.findlaw.com/us/000/99-830.html ), 530 US 914 (2000), which overturned the State of Nebraska's ban on so-called "partial birth" abortion.

Breyer, Stevens, O'Connor, Ginsburg, and Souter were in the majority. Rehnquist, Scalia, Thomas, and Kennedy dissented.

This suggests Kennedy is not a solid vote for abortion rights. (Not that O'Connor always was.) Thus, the outcome of many cases could be changed by a Justice that is less sympathetic to abortion rights than O'Connor.

Also, part of the fear is that this appointment cannot be looked at alone. If it moves the Court closer to overturning Roe, retirement by Stevens could be the last blow. Simply because a single Justice might not lead to the overturn of Roe does not mean that abortion rights are jeapordized by a hostile Justice replacing O'Connor.

Hmm. I'd like to think that was true.

The question has 2 parts: (a) what is the likelihood that Roberts's vote would differ from O'Connor's on the issue and (b), if so, what would be the likely effect of such a vote shift.

I'm going to skip (a) as we lack information. There is certainly cause for concern that Roberts would vote against abortion rights.

As to (b), the issue isn't clear-cut.

Planned Parenthood v. Casey (http://laws.findlaw.com/us/505/833.html ), 505 U.S. 833 (1992), was the last clearest test of Roe.

It was a 5-4 decision. Five Justices clearly upheld Roe: O'Connor, Kennedy, Souter, Stevens, and Blackmun. Five Justices dissented, saying Roe should be overturned: Rehnquist, White, Scalia, and Thomas.

Of that 5-4 split, White and Blackmun have been replaced by Ginsburg and Breyer. So, the current court could be assumed to be a 6-3 split in favor of abortion rights.

Replacing O'Connor with an anti-abortion vote (and I am obviously oversimplifying here) would theoretically make the Court 5-4.

Thus, it would move the Court closer to overturning Roe, but be far from a death blow.

Somewhat instructive is Stenberg v. Carhart (http://laws.findlaw.com/us/000/99-830.html ), 530 US 914 (2000), which overturned the State of Nebraska's ban on so-called "partial birth" abortion.

Breyer, Stevens, O'Connor, Ginsburg, and Souter were in the majority. Rehnquist, Scalia, Thomas, and Kennedy dissented.

This suggests Kennedy is not a solid vote for abortion rights. (Not that O'Connor always was.) Thus, the outcome of many cases could be changed by a Justice that is less sympathetic to abortion rights than O'Connor.

Also, part of the fear is that this appointment cannot be looked at alone. If it moves the Court closer to overturning Roe, retirement by Stevens could be the last blow. Simply because a single Justice might not lead to the overturn of Roe does not mean that abortion rights are jeapordized by a hostile Justice replacing O'Connor.

You have a good point, but I am disinclined to think that Casey could have overturned Roe. As the majority opinion in that case pointed out, the overturn of Roe was never contemplated. Even if that was a possibility, I believe that Justice Kennedy would not have voted with the majority, but would have written a concurring opinion, thereby giving a victory to the Casey camp, but not giving a majority to overturn Roe.

I am not and don't pretend to be very knowledgable about the current justices of the United States Supreme Court. With the nomination of John Roberts, I've noticed that some liberal/pro-choice advocates are concerned and even outraged at the proposition of him serving as a justice, mostly regarding his past attitudes against abortion and the ruling of Roe v. Wade. Now, I've read that his most obvious dissent against abortion was written when he was serving as an attorney representing the goverment under H.W. Bush. However, I've also heard that he's expressed a negative attitude against Roe v. Wade and other traditionally liberal-backed practices throughout the history of his career. So, to those in the know, what chances do you belive Roe v. Wade has at being overturned based upon John Roberts confirmation as a Supreme Court Justice?

Based upon John Roberts confirmation, I don't believe there is any chance of it. That said however, I believe it is inevitable based on the next two confirmations that follow him and the fact that I do not see a way for democrats to elect a president until 2016 at the earliest. Never know though, after all we are talking about lawyers here, and there is no way to accurately guage what you are dealing with by talking to one. Their firm convictions tend to take on the consistency of the pillsbury doughboys belly.

You have a good point, but I am disinclined to think that Casey could have overturned Roe. As the majority opinion in that case pointed out, the overturn of Roe was never contemplated. Even if that was a possibility, I believe that Justice Kennedy would not have voted with the majority, but would have written a concurring opinion, thereby giving a victory to the Casey camp, but not giving a majority to overturn Roe.

I am very confused by your answer.

Are you saying it was unlikely that Casey could have come out differently? That seems easy to say in hindsight. At the time, it was considered quite likely Roe would be overturned.

Casey was brought with the hope that Roe would be overturned and it was expressly argued. (Just as Roberts himself expressly argued for the overturn of Roe in other cases like Rust.)

I thought it was rather clear in Casey that they were expressly reaffirming the principle of Roe (because it was at issue) but rejecting some of Roe's schema. The four dissenters clearly wished to overturn Roe.

Is there some other case you think was a clearer challenge to Roe?

Are you saying Roe cannot be overturned? Why?

Are you saying Roe will not ever be overturned? Why?

Liverbreath']Based upon John Roberts confirmation, I don't believe there is any chance of it. That said however, I believe it is inevitable based on the next two confirmations that follow him and the fact that I do not see a way for democrats to elect a president until 2016 at the earliest. Never know though, after all we are talking about lawyers here, and there is no way to accurately guage what you are dealing with by talking to one. Their firm convictions tend to take on the consistency of the pillsbury doughboys belly.

And the first George Bush, who had the highest approval rating in history at one point, was unbeatable in 1992. :)

From the 2003 Senate Hearings.

Schumer: "How about Roe v. Wade?"

Roberts: "Roe v. Wade is an interpretation of the court's prior precedents. ... The court explained in its opinion the legal basis, and because the court has done that, I don't think it's appropriate for me to criticize it as judicial activism. The dissent certainly thought it was and explained why, but the court has explained what it saw as the constitutional basis for its decision."

- April 2003

"I do not believe it is proper to infer a lawyer's personal views from the position taken on behalf of a client. Roe is binding precedent and, if I were confirmed as circuit judge, I would be bound to follow it. Nothing in my personal views would prevent me from doing so."


I think he should be pressed for an answer now, but I think it to early to judge him.

JMayo

And the first George Bush, who had the highest approval rating in history at one point, was unbeatable in 1992. :)

But then came the Clintons and there went the base. Unfortunately, as long as these people run the show the middle class working stiff isn't coming back.

... what chances do you belive Roe v. Wade has at being overturned based upon John Roberts confirmation as a Supreme Court Justice?
Slim to approching zero as a limit. Roberts has also stated that Roe v. Wade is a well-established precendent in American jurisprudence, and he's never been one to overrule precedent, based on his judicial history.

Slim to approching zero as a limit. Roberts has also stated that Roe v. Wade is a well-established precendent in American jurisprudence, and he's never been one to overrule precedent, based on his judicial history.

OK.

Let's correct this.

In hearings on his confirmation to a Court of Appeals -- a court that is required to follow Supreme Court precedent and cannot overturn it -- Roberts said that Roe was the law of the land and he would follow it. Hardly a bold statement. :rolleyes:

But the stakes are greater now, and Roberts' role would be different. Appeals court judges carry out Supreme Court decisions; Supreme Court justices can rewrite them.

He did not say he would not overturn Roe if he could.

I'm not sure what you base your position that Roberts would not seek to overturn any precedent. Care to provide some explanation or support?

I'm not sure what you base your position that Roberts would not seek to overturn any precedent. Care to provide some explanation or support?
Actually, nowhere has he noted his stance on what he personally thinks of abortion as his only real defining comment on it pointed out the fact that the Feds had no business deciding the matter, which really they didn't. That should have been left up to the states. It's possible that he might try to overturn it for that reason, and no other. Then again, given the mess it would create, he might not. He seems to be one to pick his battles.

I am very confused by your answer.

Are you saying it was unlikely that Casey could have come out differently? That seems easy to say in hindsight. At the time, it was considered quite likely Roe would be overturned.

Casey was brought with the hope that Roe would be overturned and it was expressly argued. (Just as Roberts himself expressly argued for the overturn of Roe in other cases like Rust.)

I thought it was rather clear in Casey that they were expressly reaffirming the principle of Roe (because it was at issue) but rejecting some of Roe's schema. The four dissenters clearly wished to overturn Roe.

Is there some other case you think was a clearer challenge to Roe?

Are you saying Roe cannot be overturned? Why?

Are you saying Roe will not ever be overturned? Why?

Hi.

1. There's no doubt that, at the time, many were hoping/concerned that Casey could overturn Roe, but, as I said, I don't think that Kennedy would have allowed that to happen. Let's pretend that Roberts had replaced O'Connor and voted with Scalia, Thomas, and Rehnquist. I feel pretty confident that, despite the firm language of the dissent, Kennedy would have written a concurring opinion that would have precluded the outright overturn of Roe. You thus would have had 4 justices writing for the majority calling for the elimination of legalized abortion, 4 justices dissenting, calling for the preservation of legalized abortion, and 1 justice concurring, stating that he agrees with the majority's decision to increase the limitations on legalized abortions, but making clear that his intent is to not overturn Roe.

Of course, in writing all this out, I'm beginning to see how many assumptions went into my analysis!

2. I can see a much clearer way that Roe could be overturned. California has a law that says that if a pregnant mother is murdered and the unborn baby dies, the murderer can be charged with a double murder--thereby making the perp eligible to receive the death penalty. So let's say we have a Scott Peterson-type case (if you don't know the facts, google it). Or, if you prefer, Texas has a law that allows someone to be convicted of murder for killing an unborn child if not properly licensed--some guy was recently convicted of murder for killing his girlfriend's unborn child, though she wanted the child to be aborted. The logic is basically the same either way.

Ok, so Peterson gets convicted of the double murder and is sentenced to death, though he wouldn't be if it was a single murder. So his attorney argues to the appellate court that under the rulings of Roe and Casey, the unborn is merely "potential life", and thus cannot meet the legal criteria of a person and therefore a murder. The appellees argue that it was Lacy's decision whether it was a person, and she was going to have the baby, so it's murder. The lower-level appellate courts disagree with the appellant, and the case gets bumped up to the U.S. Supreme court, who takes the case. The legal question then becomes "can an unborn child be considered a person for the purposes of a murder conviction?" A Supreme Court that already considers unborn children as persons would have no problem issuing a ruling that says unborn children are people, and privileged to all the rights and protections of the U.S. constitution.

Likewise, in the Texas scenario, the defendant boyfriend appeals his case under the same argument that he made at the trial level--that the unborn child is not a person, and therefore its death cannot meet the legal criteria for a murder. Both the boyfriend and girlfriend plead to the appellate courts, saying that it only represented "potential life", that the boyfriend accomplished the exact same thing that an abortion doctor would have, and the only thing he could be criminally guilty of would be practicing medicine without a license. The lower appellate courts do not agree, and the matter is adopted by the Supreme Court. The question then becomes whether a state has the right to define human life. This controversy would easily allow a court to overturn Roe.

I'm sure there are others. Just be creative :)

3. Roe could be overturned someday, but I don't think it was in danger either actually or theoretically in Casey.

4. Anyone who claims to know whether Roe, or any other legal opinion for that matter, will someday be overturned needs to get his/her head examined.

This is of limited relevance, but is rather interesting.

Wife of Nominee Holds Strong Antiabortion Views (http://www.latimes.com/news/nationworld/politics/la-na-wife21jul21,1,2051458.story?coll=la-news-politics-national)

While Supreme Court nominee John G. Roberts Jr.'s views on abortion triggered intense debate on Capitol Hill on Wednesday, there is no mistaking where his wife stands: Jane Sullivan Roberts, a lawyer, is ardently against abortion.

A Roman Catholic like her husband, Jane Roberts has been deeply involved in the antiabortion movement. She provides her name, money and professional advice to a small Washington organization — Feminists for Life of America — that offers counseling and educational programs. The group has filed legal briefs before the high court challenging the constitutionality of abortion.

....

This is of limited relevance, but is rather interesting.

Wife of Nominee Holds Strong Antiabortion Views (http://www.latimes.com/news/nationworld/politics/la-na-wife21jul21,1,2051458.story?coll=la-news-politics-national)

Nancy Regan and Barbara Bush (the one married to the first George Bush) have both declared themselves pro-choice.

But as you stated, the spouse's views are of limited relevence, at best.

This is of limited relevance, but is rather interesting.

Wife of Nominee Holds Strong Antiabortion Views (http://www.latimes.com/news/nationworld/politics/la-na-wife21jul21,1,2051458.story?coll=la-news-politics-national)

Ahh, but believe it or not, it is possible to be impartial - that's what a Judge is supposed to be, correct?

Just because his wife holds strong views and even Roberts himself could hold strong views, but that does not mean he'll base his decisions on the legality of abortion on his own beliefs.

If such an action is such a large concern, perhaps a more impartial member of the legal community should be nominated...

OK.

Let's correct this.

In hearings on his confirmation to a Court of Appeals -- a court that is required to follow Supreme Court precedent and cannot overturn it -- Roberts said that Roe was the law of the land and he would follow it. Hardly a bold statement. :rolleyes:

But the stakes are greater now, and Roberts' role would be different. Appeals court judges carry out Supreme Court decisions; Supreme Court justices can rewrite them.

He did not say he would not overturn Roe if he could.

I'm not sure what you base your position that Roberts would not seek to overturn any precedent. Care to provide some explanation or support?
Nowhere did I state that "Roberts would not seek to overturn any precedent." Please refrain from putting words in my mouth.

For any actually interested in the man's background, you might want to read the lead post in this thread: http://forums2.jolt.co.uk/showthread.php?t=433320

Ahh, but believe it or not, it is possible to be impartial - that's what a Judge is supposed to be, correct?

Just because his wife holds strong views and even Roberts himself could hold strong views, but that does not mean he'll base his decisions on the legality of abortion on his own beliefs.

If such an action is such a large concern, perhaps a more impartial member of the legal community should be nominated...

I agree that whether a judge has a personal belief about whether abortion is wrong or should be illegal should not effect his or her opinion. Most judges -- but not all -- strive to make this so.

On the other hand, whether a judge has a personal belief that abortion is not a constitutional right and/or Roe v. Wade should be overturned is much more likely to effect his or her judgment isn't it?

Stare decisis is a powerful consideration. But few would argue that a Justice's personal view of whether something is constitutional is (or should be) irrelevant to his or her decisions.

Nowhere did I state that "Roberts would not seek to overturn any precedent." Please refrain from putting words in my mouth.

Fine. What did you mean? And what evidence supports it?

For any actually interested in the man's background, you might want to read the lead post in this thread: http://forums2.jolt.co.uk/showthread.php?t=433320

I read the lead post from that thread, but -- as already explained in that thread -- I have not read that entire article because it requires a subscription.

I have read a great deal about Roberts. Probably more than you. Just because you linked an article that requires a subscription does not give you a claim to superior knowledge.

Now that we've dismissed those smokescreens, care to address my actual point?

Just to say (and please don't attack me, I support roe v. wade), roe v. wade is pretty screwed up. Norma McCorvey, the anonymous plaintiff Jane Roe in this case, later asked the court to overturn the ruling after she converted to christianity. She claimed that her attorney forced her into it. She also had a long time female partner (22 years, i believe), before she converted to christianity (i believe she is now roman catholic). So yea, there are a lot of problems with the plaintiff, but the case itself should be left alone. My little version of Norma's life: Little Texas lesbian is in deep denial; she goes out, has an interesting time, winds up pregnant. Gets upset, wants abortion, goes to court, gets one, eventually realises that her life has been miserable and decides to convert to a god- fearing religion, becomes catholic, busies herself in fighting against everything she believed in.

if everyone in this country would just be responsible about their sexual activities, this would hardly be an issue.