Judge strikes down California gun law modeled on Texas abortion measure(politico.com)
politico.com
Judge strikes down California gun law modeled on Texas abortion measure
https://www.politico.com/news/2022/12/19/california-gun-law-texas-abortion-00074689
59 comments
Hacking the legal system. I doubt it'll work; everybody hates a smart ass, and judges are no exception. I'm surely looking forward to see the next step though.
Did you read the first two sentences?
CA is doing something very common, which is to try to prompt a SCOTUS decision on a controversy.
In this case, they're trying to get their own law ruled unconstitutional so that SCOTUS will have to agree that the TX abortion law is, too.
This is exactly the outcome CA wanted, which is why Newsom said as much and celebrated it.
CA is doing something very common, which is to try to prompt a SCOTUS decision on a controversy.
In this case, they're trying to get their own law ruled unconstitutional so that SCOTUS will have to agree that the TX abortion law is, too.
This is exactly the outcome CA wanted, which is why Newsom said as much and celebrated it.
Yeah, I did read it. I see what they try do. I just don't believe it will work.
This judge rejected an anti gun law. Next-up: scotus will reject certiorari
Even in the unlikely event that it will end up on the scotus calendar, scotus will no doubt find it much easier to defend a constitutional right to bear arms, then to reject abortion, which for better or worse, is not mentioned in the constitution.
Besides this court has ruled against precedent many times now. I don't see why this stunt would make a difference. (see e.g.: https://theconversation.com/the-supreme-court-has-overturned...)
Bottomline, I'll expect this to further women's right only indirectly by serving as publicity for Newsom
This judge rejected an anti gun law. Next-up: scotus will reject certiorari
Even in the unlikely event that it will end up on the scotus calendar, scotus will no doubt find it much easier to defend a constitutional right to bear arms, then to reject abortion, which for better or worse, is not mentioned in the constitution.
Besides this court has ruled against precedent many times now. I don't see why this stunt would make a difference. (see e.g.: https://theconversation.com/the-supreme-court-has-overturned...)
Bottomline, I'll expect this to further women's right only indirectly by serving as publicity for Newsom
The principle that people would like to defend is the idea that states can’t simply find end-runs around something that is (under then-current Supreme Court precedent) a constitutionally-protected activity. This is what the Court did with its finding on the Texas law.
You are correct that the Court has many ways to avoid providing a clear, consistent ruling that grounds its recent decisions in principle. But even this isn’t necessarily a bad thing: by doing so, the Court very clearly signals that it cannot be trusted to consistently enforce any legal principle, which is good support for the alternative solution: use the political and legislative process to remedy the situation.
You are correct that the Court has many ways to avoid providing a clear, consistent ruling that grounds its recent decisions in principle. But even this isn’t necessarily a bad thing: by doing so, the Court very clearly signals that it cannot be trusted to consistently enforce any legal principle, which is good support for the alternative solution: use the political and legislative process to remedy the situation.
I don't think the Supreme Court actually ever ended up ruling on whether the Texas law's attempts to do an end-run around constitutional protections were allowed; Roe v. Wade was overturned entirely before that ever had a chance to come up. They did rule against some of the attempts to do an end run around that end run so to speak by allowing aborrtion providers to pre-emptively sue the judges and clerks that would've been tasked with enforcing the law but given how fundamental not allowing that is to the functioning of the legal system that's no surprise.
>They did rule against some of the attempts to do an end run around that end run so to speak by allowing aborrtion providers to pre-
What a weird description. Texas passed a law that was, under legal precedent at that time, unconstitutional. Plaintiffs sued for injunctive relief by listing the state officials who would enforce those laws. The Court decided that they couldn't sue those officials, and then further blocked them from every other conceivable legal remedy.
I'm not sure how allowing states to write vigilante laws that punish people for Constitutionally-protected activity is a good thing, nor how asking the courts for relief of that would be an "end run" or how "not allowing that is [fundamental] to the functioning of the legal system," assuming "that" refers to some kind of remedy blocking enforcement of an unconstitutional law?
What a weird description. Texas passed a law that was, under legal precedent at that time, unconstitutional. Plaintiffs sued for injunctive relief by listing the state officials who would enforce those laws. The Court decided that they couldn't sue those officials, and then further blocked them from every other conceivable legal remedy.
I'm not sure how allowing states to write vigilante laws that punish people for Constitutionally-protected activity is a good thing, nor how asking the courts for relief of that would be an "end run" or how "not allowing that is [fundamental] to the functioning of the legal system," assuming "that" refers to some kind of remedy blocking enforcement of an unconstitutional law?
It's not a weird description at all. Imagine that one day you had what you thought was a valid cause to sue some dodgy corporation over some dispute you had with them, only to discover that your ability to sue had been taken away because that corporation had already taken the judges and legal clerks in your state to court and won a lawsuit against them which neither you nor anyone else with actual reason to sue ever had a say in. Because the Texas law was structured as a purely civil remedy just like if you were to sue someone else or some business over a dispute, allowing this kind of lawsuit against judges would open a direct route to this happening. It would create a way to entirely bypass the part where cases and controversies actually went to trial with the parties involved able to present their case. There's probably more sensible ways that the Supreme Court could've defanged that law, if they wanted to and the issue hadn't been rendered moot anyway.
>and then further blocked them from every other conceivable legal remedy
They left room for clear legal remedy, it just wasn't a pre-emptive stay.
The remedy was challenge the the law after it was actually used to deny some ones right, which would require the state to become involved.
The "loophole exploit" is one which only serves to delay the time until an unconstitutional law can be struck down, not protect it forever.
They left room for clear legal remedy, it just wasn't a pre-emptive stay.
The remedy was challenge the the law after it was actually used to deny some ones right, which would require the state to become involved.
The "loophole exploit" is one which only serves to delay the time until an unconstitutional law can be struck down, not protect it forever.
It’s madness to allow an unconstitutional vigilante law to remain in force on the pretext that after enforcement took place, victims might be entitled to protection from the courts - on an individual basis and at their own risk. This creates a clear chilling effect. The plaintiffs knew this and the conservative judges on the Court also knew it. The politicians who passed the law also knew it: that’s precisely why they passed it.
Fortunately the elected branches provide a backstop for when Courts begin endorsing absurd arguments like this. I presume we’ll keep seeing results like the one we saw in November as long as voters keep hearing absurd and politically-motivated arguments like this.
Fortunately the elected branches provide a backstop for when Courts begin endorsing absurd arguments like this. I presume we’ll keep seeing results like the one we saw in November as long as voters keep hearing absurd and politically-motivated arguments like this.
The problem is finding someone to preemptively Sue. The parties named in the lawsuit where forbidden by law from enforcing the law. I agree it is a dumb loophole, but the US law doesn't have a method for preemptively staying a law or suing someone that isn't enforcing it.
You are stating a controversial legal opinion as though it's fact. In reality, the justices on the 5th circuit and the Supreme Court were closely divided on whether it was possible for the United States (the Plaintiff) to sue the judges and court clerks who would accept these lawsuits. The decision turned on whether the Sovereign Immunity doctrine applied to the United States government. The Supreme Court didn't even bother to resolve the issue, a majority (5/4) simply ducked the case. That's the reason we're doing this all over again with a new California law.
First off, My understanding is that no, we are not doing it over again with the California law. As far as I can tell, the case has not raised the same questions, but perhaps I am mistaken.
More to your point, there was no precedent for preemptively suing judges and clerks in this manner. It seemed to me that the case turned on setting new precedent due to the unusual situation intentionally created by the law. I think saying that the court system does not have a method to address this problem is a fair characterization. It didn't have an established path before, and it still doesn't.
This is a different question than if the court system should have a method, and if they should create one.
More to your point, there was no precedent for preemptively suing judges and clerks in this manner. It seemed to me that the case turned on setting new precedent due to the unusual situation intentionally created by the law. I think saying that the court system does not have a method to address this problem is a fair characterization. It didn't have an established path before, and it still doesn't.
This is a different question than if the court system should have a method, and if they should create one.
In the case of the California law, a judge found constitutional defects in the law and preempted it before the law could take effect. In the case of the Texas law, a different set of judges declined to rule on whether the law was defective and decided that they would punt on the decision. Courts are given latitude to make these sorts of decisions: the corollary is that we need to hold them accountable when they misuse that latitude to achieve political ends, or even appear to be misusing that latitude.
It seems absurd that the legislature is considered the “alternative solution”.
Why that’s not the primary solution for law-making surrounding reproductive rights continues to mystify me.
Part of me thinks that if the parties were to actually accomplish their stated goals, they‘d lose the power that they get to fund-raise and drive turnout by highlighting how much work still remains…
Why that’s not the primary solution for law-making surrounding reproductive rights continues to mystify me.
Part of me thinks that if the parties were to actually accomplish their stated goals, they‘d lose the power that they get to fund-raise and drive turnout by highlighting how much work still remains…
That's the point: you can't use the political and legislative process to remedy the situation. The court can overturn any remedy you might create.
They are the unchecked entity in the system of checks and balances. The only nominal checks on them are impeachment and the Constitution, both of which are politically impossible. A Constitutional amendment is an absurdly high bar that has not been crossed in a half century (with the exception of one piece of administrative and historical trivia passed as an undergraduate exercise). Impeachment is deployed only in extreme cases, and is too blunt an instrument for fixing any specific issue.
If the judicial branch is dominated by any one entity, that entity has arbitrary capacity to pass any rules it wants, and there is nothing to be done that isn't tantamount to declaring the entire system irretrievably broken.
They are the unchecked entity in the system of checks and balances. The only nominal checks on them are impeachment and the Constitution, both of which are politically impossible. A Constitutional amendment is an absurdly high bar that has not been crossed in a half century (with the exception of one piece of administrative and historical trivia passed as an undergraduate exercise). Impeachment is deployed only in extreme cases, and is too blunt an instrument for fixing any specific issue.
If the judicial branch is dominated by any one entity, that entity has arbitrary capacity to pass any rules it wants, and there is nothing to be done that isn't tantamount to declaring the entire system irretrievably broken.
tiahura(1)
I doubt Newsom will actually get the Supreme Court to rule on the case, or that he'll even try to appeal. And even if he does there's substantial differences between the laws so there's room for the courts to say the constitutionality isn't 1:1.
And in the mean time, I think it's pretty messed up that Californians had their rights suppressed and chilled so that Newsom could score political points. I guess it's a good gig for those expert witnesses making $600/hr, and the plaintiff's attorney who was worried about having to empty out his 401(k) if they lost.
And in the mean time, I think it's pretty messed up that Californians had their rights suppressed and chilled so that Newsom could score political points. I guess it's a good gig for those expert witnesses making $600/hr, and the plaintiff's attorney who was worried about having to empty out his 401(k) if they lost.
> I think it's pretty messed up that Californians had their rights suppressed and chilled so that Newsom could score political points
Their rights were never chilled. It didn't affect consumers at all, and the law was never enforced before it was (swiftly) struck down. The law didn't harm anyone.
Texas's law, on the other hand, is actively harming people now, and this harmless California law is an attempt to help them (and fix a potential loophole in the Constitution).
Their rights were never chilled. It didn't affect consumers at all, and the law was never enforced before it was (swiftly) struck down. The law didn't harm anyone.
Texas's law, on the other hand, is actively harming people now, and this harmless California law is an attempt to help them (and fix a potential loophole in the Constitution).
>Their rights were never chilled. It didn't affect consumers at all, and the law was never enforced before it was (swiftly) struck down. The law didn't harm anyone.
I don't see how you can say that the right was never chilled, as far as I know there's no way to determine how many lawsuits weren't filed because the potential plaintiffs and their lawyers were afraid of losing their homes due to the fee shifting provision, even if they filed a successful lawsuit.
On top of the difficulty of proving a negative, it turns out there actually are instances of people whose rights are being harmed by this law. There are quite a few court cases that were put on hold while the constitutionality of this part of the law was determined. When it comes to civil rights, I'm in the camp of "a right delayed is a right denied". Every single person whose civil rights lawsuit was put on hold or stayed pending the outcome of this ruling was harmed by it.
On top of that, there's clear evidence that 1021.11 was used to harm people. The judge calls some of these instances out in his ruling (e.g. the Abrera and Defense Distributed cases).
I don't see how you can say that the right was never chilled, as far as I know there's no way to determine how many lawsuits weren't filed because the potential plaintiffs and their lawyers were afraid of losing their homes due to the fee shifting provision, even if they filed a successful lawsuit.
On top of the difficulty of proving a negative, it turns out there actually are instances of people whose rights are being harmed by this law. There are quite a few court cases that were put on hold while the constitutionality of this part of the law was determined. When it comes to civil rights, I'm in the camp of "a right delayed is a right denied". Every single person whose civil rights lawsuit was put on hold or stayed pending the outcome of this ruling was harmed by it.
On top of that, there's clear evidence that 1021.11 was used to harm people. The judge calls some of these instances out in his ruling (e.g. the Abrera and Defense Distributed cases).
Just to add on to my now-uneditable comment, Junior Sports Magazine just filed their freedom of speech lawsuit yesterday because they were waiting for the outcome of Miller v Bonta II. IMO that's another clear instance of chilling 1st amendment rights.
Clever, reminds me of The Onion's Anthony Novak's amicus:
https://www.supremecourt.gov/DocketPDF/22/22-293/242292/2022...
https://www.supremecourt.gov/DocketPDF/22/22-293/242292/2022...
> In this case, they're trying to get their own law ruled unconstitutional so that SCOTUS will have to agree that the TX abortion law is, too
No, they'll just find some other area of the law that is unconstitutional such that CA stays down and TX stays up.
Similar to how on death row you're required to get a Priest (Christian) but not an Imam (Muslim). For the Imam case they ruled that the guy waited to long to sue but obviously the guy can't sue before his request has been denied and then actually writing a lawsuit takes time [1].
[1]: https://www.vox.com/22279878/supreme-court-death-penalty-rel...
No, they'll just find some other area of the law that is unconstitutional such that CA stays down and TX stays up.
Similar to how on death row you're required to get a Priest (Christian) but not an Imam (Muslim). For the Imam case they ruled that the guy waited to long to sue but obviously the guy can't sue before his request has been denied and then actually writing a lawsuit takes time [1].
[1]: https://www.vox.com/22279878/supreme-court-death-penalty-rel...
'shall not be infringed' will make a difference.
How about "well regulated militia"?
Heller 2008 explains how the Court interprets that.
I feel like that's a good thing to know, I never knew that until now:
In Heller, the U.S. Supreme Court answered a long-standing constitutional question about whether the right to “keep and bear arms” is an individual right unconnected to service in the militia or a collective right that applies only to state-regulated militias.
[deleted]
Many court cases interpret or discard wording to make whatever ruling they want. For example, the blatant disregard of the 9th amendment when it comes to privacy and health care decisions.
Heller explains how a Court interpreted (and disregarded) the militia clause. All it takes is a concerted effort to pack the courts to overturn precedent. We saw that with the overturn of Roe.
Heller explains how a Court interpreted (and disregarded) the militia clause. All it takes is a concerted effort to pack the courts to overturn precedent. We saw that with the overturn of Roe.
If you're looking for awful decisions, how about starting with Wickard and Raich, or even Roe, widely recognized as weak judicial argumentation. Heller is well argued and historically sourced, as opposed to the divination of a right to abortion from an amendment ensuring that newly freed slaves were full citizens.
>All it takes is a concerted effort to pack the courts to overturn precedent. We saw that with the overturn of Roe.
Ah yes, yet another attempt to redefine court packing as "naming a judge I don't like", as opposed to what FDR actually tried (and failed) to do.
Ah yes, yet another attempt to redefine court packing as "naming a judge I don't like", as opposed to what FDR actually tried (and failed) to do.
Ah yes, another attempt to pretend that the single Supreme Court justice nominated by the former (D) president was blocked for anything other than partisan political reasons and that Trump didn't add the most number of SC justices since Reagan, all of whom were put forward by the totally-not-partisan Federalist Society and one of whom actually cried about how much he loves beer while testifying during a job interview, which is definitely normal and the type of behavior we expect from a judge in the highest court.
Totally not court packing. Just business as usual.
Totally not court packing. Just business as usual.
Nope, your recent discovery of partisanship in DC, or the strength of your personal hatred of a justice or two, still does not make their appointment "court packing".
Packing the court with partisans does, in fact, count as court packing. Here's a helpful article: https://www.rutgers.edu/news/what-court-packing
From the article:
"People often use "court packing" to describe changes to the size of the Supreme Court, but it's better understood as any effort to manipulate the Court's membership for partisan ends. A political party that's engaged in court packing will usually violate norms that govern who is appointed (e.g., only appoint jurists who respect precedent) and how the appointment process works (e.g., no appointments during a presidential election).
"Seen from this perspective, the Barrett appointment is classic court packing. The president nominated a hardline conservative who appears to question major parts of U.S. constitutional law. And the Senate majority changed its procedural rules – invented to deny Merrick Garland a hearing – to ram through the nomination as people were voting."
You siding with the partisan politics of members of a supposedly-neutral court who were put there to make the court partisan, doesn't make it normal.
From the article:
"People often use "court packing" to describe changes to the size of the Supreme Court, but it's better understood as any effort to manipulate the Court's membership for partisan ends. A political party that's engaged in court packing will usually violate norms that govern who is appointed (e.g., only appoint jurists who respect precedent) and how the appointment process works (e.g., no appointments during a presidential election).
"Seen from this perspective, the Barrett appointment is classic court packing. The president nominated a hardline conservative who appears to question major parts of U.S. constitutional law. And the Senate majority changed its procedural rules – invented to deny Merrick Garland a hearing – to ram through the nomination as people were voting."
You siding with the partisan politics of members of a supposedly-neutral court who were put there to make the court partisan, doesn't make it normal.
They "packed" a court with a single justice? That's "packing"? In no other area would you ever consider the addition of a single individual to be "packing" anything. The term "packing" is being misused here as an emotional trigger word to cynically attack the court's legitimacy. That is propaganda, not precision.
Precisely, packing refers to what the cited article explains as the Democrat long term plan to fill the court with liberal justices: "If Democrats win 53 or 54 seats, it's far more likely that Congress will expand the Court."
Precisely, packing refers to what the cited article explains as the Democrat long term plan to fill the court with liberal justices: "If Democrats win 53 or 54 seats, it's far more likely that Congress will expand the Court."
>In this case, they're trying to get their own law ruled unconstitutional so that SCOTUS will have to agree that the TX abortion law is, too.
I dont think that is true. The SCOTUS didn't rule on the constitutionality of Texas's citizen enforcement.
>The U.S. Supreme Court's ruling in Whole Woman's Health v. Jackson, leaves abortion providers without any possible defendants to sue in a federal pre-enforcement lawsuit challenging the constitutionality of SB 8, because there are no state officials charged with enforcing the law.[1]
https://en.wikipedia.org/wiki/Texas_Heartbeat_Act#Whole_Woma...
I dont think that is true. The SCOTUS didn't rule on the constitutionality of Texas's citizen enforcement.
>The U.S. Supreme Court's ruling in Whole Woman's Health v. Jackson, leaves abortion providers without any possible defendants to sue in a federal pre-enforcement lawsuit challenging the constitutionality of SB 8, because there are no state officials charged with enforcing the law.[1]
https://en.wikipedia.org/wiki/Texas_Heartbeat_Act#Whole_Woma...
> > In this case, they’re trying to get their own law ruled unconstitutional so that SCOTUS will have to agree that the TX abortion law is, too.
> I dont think that is true.
It was approximately true when the law was adopted, before Roe was struck down. Specifically, they were trying to present a situation where the Court would either be forced to rule that the mechanism the Texas law used to try to avoid federal court review of the substance by calling it something other than state action would be ruled as not serving that purpose, or states would be free to do whatever they want by the same method, including things that judges that preferred avoiding reaching the merits of the Texas case given Roe would not approve of.
With Roe overturned, that fork no longer works to protect abortion rights, but that was the (fairly overt) purpose of the law. And it still works on other things, and other states have either adopted or discussed using the Texas mode to attack other rights which remain federally protected that California would have the same issue with by the same means Texas used on abortion, so the basic concern is still active even if the particular issue is less so.
> I dont think that is true.
It was approximately true when the law was adopted, before Roe was struck down. Specifically, they were trying to present a situation where the Court would either be forced to rule that the mechanism the Texas law used to try to avoid federal court review of the substance by calling it something other than state action would be ruled as not serving that purpose, or states would be free to do whatever they want by the same method, including things that judges that preferred avoiding reaching the merits of the Texas case given Roe would not approve of.
With Roe overturned, that fork no longer works to protect abortion rights, but that was the (fairly overt) purpose of the law. And it still works on other things, and other states have either adopted or discussed using the Texas mode to attack other rights which remain federally protected that California would have the same issue with by the same means Texas used on abortion, so the basic concern is still active even if the particular issue is less so.
I think my point was that California's attempt was Dead on Arrival from a strategic perspective because it required its opponents to seek preemptive relief to force the SCOTUS to apply the law equally (or expose hypocrisy) .
This is something that the opponents could simply sidestep by not challenging it preemptively, and waiting to challenge it later.
The California Strategy only makes sense from the PR perspective because so many people erroneously believe that the SB8 ruling found the law constitutional, when in fact the actual ruling was that constitutional challenges needed to proceed at a later date.
With that said, I do believe citizen enforcement is problematic in both cases, as well as the less discussed precedent of environmental regulations.
This is something that the opponents could simply sidestep by not challenging it preemptively, and waiting to challenge it later.
The California Strategy only makes sense from the PR perspective because so many people erroneously believe that the SB8 ruling found the law constitutional, when in fact the actual ruling was that constitutional challenges needed to proceed at a later date.
With that said, I do believe citizen enforcement is problematic in both cases, as well as the less discussed precedent of environmental regulations.
It’s interesting though. The TX law was one of many attempts to find some loophole in Roe v. Wade that might survive long enough to get SCOTUS to reconsider Roe. When Roe was overturned in an unrelated case, a conventional abortion ban came into effect in TX. In other words, SCOTUS isn’t going to end up making abortion legal in TX even if they uphold this precedent, because TX simultaneously has the kind of law that was already upheld in Dobbs.
> which is to try to prompt a SCOTUS decision on a controversy.
Given that 4 justices have to agree to hear the case, I'd expect the court would simply decline to do so.
Given that 4 justices have to agree to hear the case, I'd expect the court would simply decline to do so.
> Given that 4 justices have to agree to hear the case, I'd expect the court would simply decline to do so.
Very possible. The court is essentially an imperial force now, as some spectators have said.
It's worth a try, at least.
Very possible. The court is essentially an imperial force now, as some spectators have said.
It's worth a try, at least.
>Very possible. The court is essentially an imperial force now, as some spectators have said.
Oh, good grief. "4 justices have to agree to hear the case" = granting certiori, as said elsewhere in this thread. It is the completely normal and usual way of the court deciding whether to hear a case at all.
I know that you got the "imperial" adjective from breathless recent media, but if you don't know even the basics of how the court works, refrain from commenting.
Oh, good grief. "4 justices have to agree to hear the case" = granting certiori, as said elsewhere in this thread. It is the completely normal and usual way of the court deciding whether to hear a case at all.
I know that you got the "imperial" adjective from breathless recent media, but if you don't know even the basics of how the court works, refrain from commenting.
This is not “hacking” —- this is just what passes for lawmaking in the US with an impotent federal legislature.
Making a law with the express intent of having it overturned, is not what I'd call lawmaking.
True, but it sure can be good election campaigning, which is where the incentives are aligned.
> Hacking the legal system. I doubt it'll work
It’s more commonly done by finding sympathetic plaintiffs with actual harms and financing their case.
It’s more commonly done by finding sympathetic plaintiffs with actual harms and financing their case.
The US reliance on judges and (poorly written, centuries old) "amendments" to decide what is or is not a right is badly dysfunctional and actively politicises the judiciary.
It is a good system to have judges vet the legality of new laws. The problem is that the judiciary has increasingly been relied on to modify law via interpretation in the absence of clear updates to rights from congress.
Roe was a classic example of this where the legal underpinning was tenuous at best.
Roe was a classic example of this where the legal underpinning was tenuous at best.
I agree completely.
One of the issues with the US system is it has so many "checks and balances" it is basically impossible to do anything. Except that SCOTIS can do anything and is controlled completely by the senate alone. So decisions that are political and not legal end up with them when they shouldn't AND the senate is free to make those decisions by appointing political proxies instead of real judges.
Every other western country has managed to get reasonable abortion rights by political processes. In the US you can make no progress unless 99% of people agree or SCOTUS step in. So everything relies on them because you can never get the ultra super majority that the US system requires otherwise.
Ditto Gun rights, healthcare, workers rights, democratic reform, civil liberties etc...
One of the issues with the US system is it has so many "checks and balances" it is basically impossible to do anything. Except that SCOTIS can do anything and is controlled completely by the senate alone. So decisions that are political and not legal end up with them when they shouldn't AND the senate is free to make those decisions by appointing political proxies instead of real judges.
Every other western country has managed to get reasonable abortion rights by political processes. In the US you can make no progress unless 99% of people agree or SCOTUS step in. So everything relies on them because you can never get the ultra super majority that the US system requires otherwise.
Ditto Gun rights, healthcare, workers rights, democratic reform, civil liberties etc...
>Every other western country has managed to get reasonable abortion rights by political processes. In the US you can make no progress unless 99% of people agree or SCOTUS step in.
It's because of the Supreme Court's mistake with Roe v. Wade in the first place.
By the early 1970s various US states had legalized abortion. In Roe the Supreme Court suddenly ruled that abortion was a constitutional right, abruptly legalizing it nationwide with more or less no restrictions whatsoever; even many abortion-rights supporters believed before Dobbs overturned Roe that the legal theory behind Roe was faulty, including Justice Ginsberg. The result was so across-the-board that, among other things, the US still allows abortions to occur later than anywhere else. (More on this later.)
Preventing the full political debate process from occurring is why abortion remains so controversial in the country 45 years and counting. Because such issues are polarizing and partisan, they need full discussion in a legislature, as opposed to unelected judges unilaterally short-circuiting the debate.
Again: Dobbs, by overturning Roe, did not "ban abortion nationwide in the USA". As one of the justices wrote, all it did was to restore the court's proper silence on the matter and let the states decide.
Further, as s1artibartfast told you, it was not true before or after Dobbs that "every other western country has managed to get reasonable abortion rights" (by which you mean, more allowing of abortion than the US, since the US surely is the world's most restrictive on abortion). Let's take Germany as example:
* Abortion is always illegal in Germany, because courts have repeatedly found that the fetus has a right to life. (This occurred at almost the same moment as Roe v. Wade.)
* However, Section 218 of the criminal code has decriminalized abortion in some circumstances:
* Before 12 weeks, with counseling and waiting period.
* After 12 weeks, when rape or medical necessity is involved, with approval by two doctors, and possibly counseling and waiting period.
It's because of the Supreme Court's mistake with Roe v. Wade in the first place.
By the early 1970s various US states had legalized abortion. In Roe the Supreme Court suddenly ruled that abortion was a constitutional right, abruptly legalizing it nationwide with more or less no restrictions whatsoever; even many abortion-rights supporters believed before Dobbs overturned Roe that the legal theory behind Roe was faulty, including Justice Ginsberg. The result was so across-the-board that, among other things, the US still allows abortions to occur later than anywhere else. (More on this later.)
Preventing the full political debate process from occurring is why abortion remains so controversial in the country 45 years and counting. Because such issues are polarizing and partisan, they need full discussion in a legislature, as opposed to unelected judges unilaterally short-circuiting the debate.
Again: Dobbs, by overturning Roe, did not "ban abortion nationwide in the USA". As one of the justices wrote, all it did was to restore the court's proper silence on the matter and let the states decide.
Further, as s1artibartfast told you, it was not true before or after Dobbs that "every other western country has managed to get reasonable abortion rights" (by which you mean, more allowing of abortion than the US, since the US surely is the world's most restrictive on abortion). Let's take Germany as example:
* Abortion is always illegal in Germany, because courts have repeatedly found that the fetus has a right to life. (This occurred at almost the same moment as Roe v. Wade.)
* However, Section 218 of the criminal code has decriminalized abortion in some circumstances:
* Before 12 weeks, with counseling and waiting period.
* After 12 weeks, when rape or medical necessity is involved, with approval by two doctors, and possibly counseling and waiting period.
I agree there are some system design headwinds, but don't think they are the leading problem. In my opinion, the biggest problem is that both parties have a vested interest in not resolving the issue. There are common sense policies, especially when it comes to abortion, that Congress has had the political power to pass and sufficient public support.
Unfortunately, the topic is too valuable as a wedge issue to solve. As a result, neither party will accept Common Sense abortion law like what is generally seen in Europe. It is not extreme enough for either the left or right.
Because it is such a political football, the general public is also grossly misinformed on what the actual abortion policies are in Europe. When you look at them in detail, they are very much a compromise, not an unlimited right to abortion, and often more restrictive than the Roe standard.
Unfortunately, the topic is too valuable as a wedge issue to solve. As a result, neither party will accept Common Sense abortion law like what is generally seen in Europe. It is not extreme enough for either the left or right.
Because it is such a political football, the general public is also grossly misinformed on what the actual abortion policies are in Europe. When you look at them in detail, they are very much a compromise, not an unlimited right to abortion, and often more restrictive than the Roe standard.
Most developed countries do similar things; it’s just that their human rights laws were written more recently for historic reasons. For instance, the Canadian Charter of Rights and Freedoms was written in 1982 because that’s when Canada rewrote their constitution to more completely break away from British rule, and the European Convention on Human Rights was drafted in 1950, in the immediate post-war era.
It's not the best, but I don't think it politicizes the judiciary. Appointment of judges by politicians is much more blameworthy in that regard.
What is a better solution?
A solution could be amending the constitution with ‘modern’ amendments. The founders knew times will surely change and made provisions about how to change the constitution.
> The founders knew times will surely change and made provisions about how to change the constitution.
They also made it really, really hard to do so.
And also didn’t expect the federal government to be all up in everyone’s business through the commerce clause. It used to take a constitutional amendment to outlaw a thing (prohibition) but now it’s a simple majority vote.
They also made it really, really hard to do so.
And also didn’t expect the federal government to be all up in everyone’s business through the commerce clause. It used to take a constitutional amendment to outlaw a thing (prohibition) but now it’s a simple majority vote.
The American people do that any time they feel like it.
When it came to abortion and Texas' SB8 ( Whole Woman's Health v. Jackson), the problem was that there was no State representative responsible for enforcing the law that could be pre-emptively sued to prevent it being used.
It seems that the California law was ill-conceived to test this aspect of citizen enforcement, because the challengers did not seek pre-enforcement relief, but maybe I missed that aspect of the ruling. I would be interested to hear the thoughts of others.
Here is the ruling I was able to find, Ironically from a much better sourced, if more biased NRA article.
https://shared.nrapvf.org/sharedmedia/1510684/2064261_2019-0...