Roe, Roe, Roe, the Boat

Bad law is always bad law. It is not like wine, it doesn't get better with time.

Roe was an example of how the Supreme Court has been used as a super-legislative body to social engineer at a national level and to create and grant a "right" that never existed in the Constitution.

If you take the time to really read Alito's draft, he never addresses whether abortion is right or wrong, his focus is the role of the court in the Roe decision. His point is that SCOTUS should have never become involved in that decision in the first place.

The greatest fear of the left, and it is a legitimate question, is that SCOTUS overturning Roe will put at risk other decisions made by the court that they neve should have been involved in.

That does put some of the progressive favorites - like Obergefell - in the crosshairs. The fundamentals of Obergefell, which legalized same sex unions across America, are very similar to the rationalizations used by the Burger Court to legalize abortion.

The four dissenting justices (Roberts, Scalia, Alito and Thomas) made a very similar argument that the Court deciding Obergefell was a procedural error because, in the words of Scalia, the democratic process had been unduly halted. Scalia argued the Court was stepping in where only the state legislatures had power.

I know that Alito's draft says it cannot be used as a means to overturn any other decision, that it addresses Roe only, but a misapplication of authority in one case cannot be ignored if the same misapplication exists in another case.

Kennedy authored the majority opinion, and in my opinion it was an embarrassment of emotion and political opportunism. Kennedy's writing feels like a high school love letter. Obergefell was never about whether people of the same sex could or should love one another, it was whether those unions should be treated as legal equals to traditional marriages across the several states. The left wing of the Court, plus the McCain clone Kennedy, overlooked the existing legal and contractual mechanisms that already existed in order to engage in social engineering.

In my opinion, Kennedy's conclusion was an embarrassment:

"No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right."

No.

Protection from "loneliness" is not a function of the Constitution, nor is it the province of the Supreme Court to consider the emotions of people involved in any union. Marriage is a religious concept and state's concept of marriage is a legal construct. The Constitution never speaks of marriage in any way and As Justice Scalia said, the Constitution says what it says and doesn't say what it doesn't say.

The majority opinion in Obergefell reads like a script from Dr. Phil or Judge Judy.

My primary problem with cases like Roe and Obergefell is the inconsistency of the Court with respect to the rights specifically enumerated in the Constitution.

Using the reasoning by the four liberal justices plus the bi-decisional Anthony Kennedy in Obergefell, all restrictive gun laws in states that use onerous fees and restrictions to discourage legal gun possession should be abolished. Both the Roe and the Obergefell decisions violate the Tenth Amendment, the simple language of which states:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

The Roberts Court further damaged itself when it refused to hear the Texas election lawsuit brought against Pennsylvania.

Roberts' cowardice was in full display in all the 2020 election lawsuits when those were rejected on lack of standing.

Unwinding mistakes (as was done with Plessey, Lochner, Pace, et al) made by the Supreme Court is hard and painful, but necessary.

The Burger Court saw an opportunity to legalize abortion because a majority of the court wanted to legalize it - and they tortured logic and law until they gave in to get it.

Overturning Roe has been a necessity for half a century.