The Liberal, Living Constitution, wing of the Supreme Court is up in arms over losing a case with precedential implications. The proximate case concerned Franchise Tax Board v Hyatt, in which the Supreme Court overturned a 40-year-old precedent that held that States are not required to grant legal immunity to other States in interstate lawsuits. I won’t go into that because that’s not the crux of the matter.
Instead, that Liberal wing, led by Justice Stephen Breyer, objected to the precedent reversal not on its merits or on the merits of precedent overturning/preservation, but on the premise that overturning this precedent would lead to overturning the abortion ban restrictions in Roe v Wade.
[L]iberal Justices warn that conservatives by overturning Hall will “encourage litigants to seek to overrule other cases.”
This actually is an unqualified Good. Error should be corrected whenever it’s discovered.
That Liberal wing bellyached further:
It is far more dangerous to overrule a decision only because five members of a later Court come to agree with earlier dissenters on a difficult legal question[.]
This makes no sense, though. It took only five members of the prior Court to make the mistake in the first place, for all that other members might have agreed with it.
And the NLMSM weighed in, showing the Liberal wing’s worries about abortion.
“Clarence Thomas Just Showed How Supreme Court Would Overturn Roe v Wade,” declared one columnist. [Jay Michaelson of the Daily Beast]
This, though, is just another bit of Liberal disingenuosity. Roe is technologically-based. The circumstances under which States are permitted to regulate abortion to the extent of banning them are based on viability of the baby, which the Roe Court suggested began around the third trimester. Modern medical technology makes babies viable much earlier, and so abortions can be restricted much earlier—wholly within Roe.
Though I wouldn’t mind the question coming to court so that the technological aspect can be better emphasized.