The Stench at SCOTUS1
Yesterday the contempt for the Constitution by the Republican judges was revealed in all of its naked partisan political hack glory during the oral argument regarding Dobbs v. Jackson Women's Health Organization, No. 19-1392. When they rule in favor of Mississippi, they will violate their oaths to the Constitution, and lay waste to our democracy. This is not news but it bears repeating. The stench at SCOTUS is the smell of life being choked out of our democracy to the horror of the founders.
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The decision for the Texas law2 stay and the decision to uphold the Mississippi abortion law violate the Supremacy Clause3 of the U.S. Constitution.
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Choosing the political expediency of gutting Roe4 by neutrality satisfies the “Four Corners Doctrine”5 and invalidates the entire Bill of Rights.
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The decision to reverse Griswold6, Roe, and Casey7 is contrary to the Due Process Clause, the Ninth Amendment, and the Fourteenth Amendment, thus destroying the New Hampshire Compact8 which invalidates the entire U.S. Constitution.
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Precedent and Statutory Construction mean nothing to political hacks.
1. The decision for the Texas law stay and the decision to uphold the Mississippi abortion law violate the Supremacy Clause of the U.S. Constitution.
States are allowed to overrule federal law or the decisions of the federal courts, including the Supreme Court? This is the lawless basis of the Texas stay decision and the coming decision in Dobbs. The moment the Texas or Mississippi laws were shown to be contrary to the precedent of the federal courts, from the lowest district courts to the appeals courts, to the Supreme Court itself, much less any federal law (or treaty), these laws should have been stayed. Any justice of any federal court who ruled against a stay or in favor of these laws should be required to successfully (B or better) retake every single Constitutional Law class at their local law university and complete a 5000 word essay on why the Supremacy Clause denies States the ability to revoke federal laws they do not like, or federal court decisions they do not like simply by passing their own replacements simply because Republicans want them to be. Anything less demonstrates a contempt for the Constitution shown by the insurrectionists in the civil war, and warrants removal of the justice by impeachment for cause.
2. Choosing the political expediency of gutting Roe by neutrality satisfies the“Four Corners Doctrine” and invalidates the entire Bill ofRights.
Starting ex nihilo that Roe was decided wrongly, during the Dobbs oral argument, Kavanaugh repeatedly argued9 that the Constitution was “silent and therefore neutral” on the issue of abortion. This amounts to mistakenly applying the “Four Corners Doctrine” to the Constitution. Contract law encourages statements such as ["There are no extraneousagreements or other understandings between the parties. The entire agreement is contained within the four corners of this document and any dispute to the meaning contained therein will be governed by this document."] whereas our Constitution has EXACTLY the opposite:“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” (9thAmendment)10. James Madison warned us during the debate on the Bill of Rights [“It has been objected also against a Bill of Rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.”] There are lots of other fraudulent arguments such as original intent that Republicans have used to argue against abortion rights, but this is the fraud we have today, so it is the one we fight. For any justice who has promoted this fraud against the Constitution, they should be required to successfully (B or better) retake both every single Constitutional Law class and Contract Law class at their local law university plus complete a 5000 word essay on why the rights protected by the Ninth Amendment cannot simply be ignored because Republicans want them to be. They should also have to complete another 5000 word essay on the Statutory Construction of the phrase “shall not be construed” and why it requires the federal government to NOT be neutral in the face of abrogation of constitutionally protected rights as determined by precedent. Anything less demonstrates a contempt for the Constitution shown by the insurrectionists in the civil war, and warrants removal of the justice by impeachment for cause. Further, even if there was some tortured construction of why Roe was wrongly decided, it would not overrule the Stare Decisis and reliance constraints imposed on 50 years of precedent and the rights established being demolished11.
3. The decision to reverse Griswold, Roe, and Casey is contrary to the Due Process Clause12,the Ninth Amendment, and the Fourteenth Amendment13,thus destroying the New Hampshire Compact which invalidates the entire U.S. Constitution.
We would not even have a Constitution without a Bill of Rights, and for the Anti-Federalists, the 9th was the most important right of all, saying that just because they left something out did not mean that the citizens did not have that right. The right to privacy, once established, cannot be withdrawn without violating the 9thamendment by denying and disparaging rights held by U.S. citizens for almost fifty years. Further, it would do it upon the basis of “states rights” (which led to the civil war), in violation of the Supremacy Clause. This achieves the Republican objective, which the Confederacy could not obtain, to upend federalism and makes States the dominant legal determinant. Due process in it’s simplest terms is the legal requirement that the state must respect all legal rights that are owed to a person, whether they agree with them or not. The Liberty interest of the 5thand 14thamendments requires that [“Although the Court has not assumed to define ‘liberty’ with any great precision, that term is not confined to mere freedom from bodily restraint. Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective."]14 There has been no proper government objective demonstrated in the Texas case nor in the Mississippi case, except the craven desire for power over women’s uteruses to force them to bear their rapists children. The Texas case goes further, to implement a “crowd sourced enforcement of terrorism” which is prohibited by Grendel’s Den15.Yet knowing this, neither the 5thCircuit Court of Appeals nor the Supreme Court would stay the enforcement of the Texas law (which also violates the Supremacy Clause, 5thand 14thamendments, and numerous precedents). For any justice who has promoted these frauds against the Constitution, they should be required to successfully (B or better) retake both every single Criminal Law class at their local law university plus complete a 5000 word essay on why the rights protected by the Due Process clauses of the Fifth and Fourteenth Amendments cannot simply be ignored because Republicans want them to be. They should also have to complete another 5000 word essay on the requirement the federal government does NOT allow the abrogation of constitutionally protected rights by the non-governmental enforcement of laws as determined by precedent. Anything less demonstrates a contempt for the Constitution shown by the insurrectionists in the civil war, and warrants removal of the justice by impeachment for cause.
4. Precedent and Statutory Construction mean nothing to political hacks.
Precedent, as noted previously, constrains what can be decided (Stare Decisis literally means “it has been decided”). The Supreme Court is supposed to consider several factors before overruling a precedent, such as the quality of the precedent’s reasoning, whether the workability of the precedent’s rule or standard is outdated, whether the precedent is inconsistent with related decisions (or even itself), whether there is a changed understanding of relevant facts, and whether reliance on the precedent means it must be retained because certain parties would suffer hardship if the precedent were overruled (summarizing CRS R45319). This means that the Emancipation Proclamation, 14thAmendment, and all slavery related issues (such as the pesky “any person who was not free would be counted as three-fifths of a free individual” repeal) when States decide they no longer subscribe to the federal requirements against slavery since the Supremacy Clause has, in effect by this court, been repealed. Even better, since Federal courts no longer enforce federal rights, there is no recourse (no right to petition government for redress of grievances, no right to make a complaint to, or seek the assistance of, one's government) – the Republican ideal. No more pesky environmental lawyers. This means the right to Substantive Due Process evaporates. This is possible because we no longer have the first fundamental - an impartial tribunal. When the right is not textual, but has to be obtained by reasoning in precedent, protected by an Amendment that forbids exclusion, simply, and fraudulently, argue the Four Corners Doctrine excludes it. When a right is communal rather than individual, simply (and fraudulently) do the Statutory Construction to eliminate “A well regulated Militia, being necessary to the security of a free State” from your decision. In short, cheat the text to make it into the text you want. Political hacks are free to do this in ways actual jurists cannot. Impartial tribunals make decisions upon the law and the facts, not the law as they wish it to be and the facts as they wish them to be. To say that a woman has no reliance interest in removing the child of her rapist from her body (or contributing to his procreation at all) is to say it is OK to repeal Griswold, Roe, and Casey. To say that it is OK for the Texas law to go into effect is to say the Supremacy Clause is no longer in effect. To say the Mississippi law can even be considered in the courts despite binding precedent to the contrary says the same thing. To allow the Texas scheme to even be considered in the courts despite binding precedent to the contrary turns the entire Republican party into a crime syndicate. The stench at SCOTUS is our democracy dying, and the stench is real.
2UNITED STATES v. TEXAS, ET AL., No. 21A85 (21-588) [JUSTICE SOTOMAYOR, concurring in part and dissenting in part. For the second time, the Court is presented with an application to enjoin a statute enacted in open disregard of the constitutional rights of women seeking abortion care in Texas. For the second time, the Court declines to act immediately to protect these women from grave and irreparable harm.]
6Griswold v. Connecticut, 381 U.S. 479 (1965) [Although the Bill of Rights does not explicitly mention "privacy", Justice William O. Douglas wrote for the majority, "Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship." Justice Arthur Goldberg wrote a concurring opinion in which he used the Ninth Amendment in support of the Supreme Court's ruling. Justice Byron White and Justice John Marshall Harlan II wrote concurring opinions in which they argued that privacy is protected by the due process clause of the Fourteenth Amendment.] https://en.wikipedia.org/wiki/Griswold_v._Connecticut
7Planned Parenthood v. Casey, 505 U.S. 833 (1992), which upheld Roe and established an undue burden standard on restrictions.
11The Supreme Court’s Overruling of Constitutional Precedent, Congressional Research Service report R45319
14Bolling v. Sharpe, 347 U.S. 497 (1954) held that the Constitution prohibits segregated public schools in the District of Columbia.
15Larkin v. Grendel's Den, Inc. (459 U.S. 116 (1982)), which held that laws cannot be enforced by non-governmental entities.