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Re: I guess it wasn’t “settled law” after all
Originally Posted by
Tim Porter
Jorn, I'm not sure your point works in the context here: The court says pretty explicitly that they want to get out of that game and push it back onto the legislative function. There's a pretty good argument that the Court stepped in it when they decided Roe in the style that a legislature would, making up the trimester tests almost out of the blue.
I agree that there are roles for the judicial, the executive and the legislative branch that exist without overlap. But I also think that there is a role for each individual branch when one or another of the branches exhibits rogue or absentee behavior. I see right of privacy and right of personal autonomy as areas where the current court wants to stand on the sidelines even as those rights are potentially being trod upon by the other branches. Extracting the court purely because it is "not my job" weakens of the overall structure of the government. I think the conservatives are potentially using the weakness of Roe as an argument for a smaller court, because the smaller court allows them convenient access to a moral agenda that is not necessarily an individual rights or constitutionally based one.
I get the aspect that abortion would in theory be best as a legislated solution, but when the result is absolute illegality (which I think is where we are headed in the next 5 years) is that correct constitutionally or a more accurately representative outcome? Will it eliminate the acrimony and division that Alito says is a product of the Court's over-reach on Roe? I doubt all of those things. I think this step-away from the center (and a center occupied by the three branches of government, not the Supreme Court as The Center) by the court creates a vacuum at that center that will not be wisely filled.
But that's my impression based on observation, not one made on any long-spent constitutional study.
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