Justices Didn’t Lie About Abortion in Hearings

Susan Collins and other Senators claiming otherwise are just wrong.

Writing at FactCheck.org, Lori Robertson, D’Angelo Gore, and Robert Farley have a solid rundown of “What Gorsuch, Kavanaugh and Barrett Said About Roe at Confirmation Hearings.” Despite claims to the contrary, none gave assurances that they would uphold Roe v. Wade if confirmed.

A close examination of the carefully worded answers by the three Trump appointees, however, shows that while each acknowledged at their hearings that Roe was precedent, and should be afforded the weight that that carries, none specifically committed to refusing to consider overturning it.

Gorsuch and Barrett were in fact quite clear on the matter: they believed stare decisis, the principle of respecting precedent, was a crucial part of our legal system but that Roe had not achieved the status of “super precedent” and thus untouchable.

Kavanaugh, who in my judgment lied multiple times during questioning about his drunken escapades in high school and college, was the slipperiest on this subject.

During questioning, Kavanaugh avoided answering whether Roe v. Wade was correctly decided, or how he might rule in a future case challenging that court ruling. Instead, Kavanaugh repeatedly said that Roe v. Wade was “settled as precedent.”

Feinstein brought up news reports that Kavanaugh told Collins in an August 2018 private meeting that Roe v. Wade was “settled law.” When Feinstein asked Kavanaugh to explain what he meant by that, he said:

Senator, I said that it is settled as a precedent of the Supreme Court, entitled the respect under principles of stare decisis. And one of the important things to keep in mind about Roe v. Wade is that it has been reaffirmed many times over the past 45 years, as you know, and most prominently, most importantly, reaffirmed in Planned Parenthood v. Casey in 1992.

And as you well recall, senator, I know when that case came up, the Supreme Court did not just reaffirm it in passing. The court specifically went through all the factors of stare decisis in considering whether to overrule it, and the joint opinion of Justice Kennedy, Justice O’Connor and Justice Souter, at great length went through those factors. That was the question presented in the case.

[…]

Feinstein also asked Kavanaugh about an email he sent in March 2003 while working in the George W. Bush administration. In the message, in which he replied to an email that included a draft of an op-ed written to defend some of Bush’s judicial nominees, Kavanaugh wrote: “I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level since [the] Court can always overrule its precedent, and three current Justices on the Court would do so.”

“This has been viewed as you saying that you don’t think Roe is settled,” Feinstein said, after reading part of the email aloud during the hearing. “So please, once again, tell us why you believe Roe is settled law, and if you could, do you believe it is correctly settled?”

Kavanaugh again called Roe “an important precedent” that “has been reaffirmed many times”:

In that draft letter, it was referring to the views of legal scholars, and I think my comment in the email is that might be overstating the position of legal scholars, and so it was not a technically accurate description in the letter of what legal scholars thought. At that time, I believe Chief Justice Rehnquist and Justice Scalia were still on the court at that time.

But the broader point was simply that I think it was overstating something about legal scholars. And I am always concerned with accuracy, and I thought that was not quite accurate description of legal, all legal scholars because it referred to “all.”

To your point, your broader point, Roe v. Wade is an important precedent of the Supreme Court. It has been reaffirmed many times. It was reaffirmed in Planned Parenthood v. Casey in 1992 when the court specifically considered whether to reaffirm it or whether to overturn it. In that case, in great detail, the three-justice opinion of Justice Kennedy, Justice Souter and Justice O’Connor went through all the factors, the stare decisis factors, analyzed those, and decided to reaffirm Roe.

That makes Casey precedent on precedent. It has been relied on. Casey itself has been cited as authority in subsequent cases such as Glucksberg and other cases. So that precedent on precedent is quite important as you think about stare decisis in this context.

But Kavanaugh also told Republican Sen. Lindsey Graham that he would be open to hearing arguments if a particular case needed to be “revisited.”

“Of course. I listen to all arguments,” Kavanaugh said. “You have an open mind. You get the briefs and arguments. And some arguments are better than others. Precedent is critically important. It is the foundation of our system. But you listen to all arguments.”

Do I think Gorsuch, Kavanaugh, and Barrett thought at the time of their hearings that Roe was wrongly decided? Absolutely. Do I think they were at least leaning toward overturning it at the time of their hearings? Probably.

But, as I noted in the comments section the other day, I find this whole thing a bit of kabuki theater. It’s well understood that nominees to lifetime seats on our independent judiciary aren’t supposed to be asked to promise to rule in a certain way in cases that come before them. But Senators insist on trying to corner them into doing so and, at least in the post-Bork era, they give cagey non-answers.

As to the broader question, I think the following:

  1. Roe was thinly disguised judicial activism
  2. Casey, the current precedent, almost exactly captures my public policy preference on abortion: leaving it up to the mother until fetal viability and then making it subject to regulation thereafter
  3. Abortion is surely the most contested judicial issue of the last half-century, so of course it’s not “settled law.” Indeed, SCOTUS has allowed the precedent to be slowly chipped away by state legislatures for quite some time now.
  4. At the same time, women have indeed relied upon this judicially-created right for close to half a century. Overturning it at this point is a big step in the wrong direction.
FILED UNDER: Law and the Courts, Supreme Court, , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. MarkedMan says:

    There is a reason that Jesuits have identified many types of lies. The thing they all have in common? Intent to deceive.

    But even by your definition of lying, the Supremes in question lied. They had already made up their mind to overturn Roe as soon as they got the chance and were lying when they said they hadn’t.

    22
  2. SKI says:

    Couple of questions, James.

    First, what MarkedMan said. They intended to deceive. You hand wave it away as “a bit of kabuki theater” without taking the time to acknowledge that means that they were in fact intentionally lying.

    Nor do you grapple with the implications of that. You are stating that they knew they wouldn’t have been confirmed if they were honest, so you think it was ok for them to lie. It doesn’t get more basic than that. The question is why you think that makes it ok. Why do you think it is ok?

    Second, I have to ask why you felt that this was an important post to write? Why do you feel the need to defend them? You admit they were intending to deceive but write a whole post claiming that that intent doesn’t mean that they were “lying”. Why? What does this type of parsing accomplish? Is it a click-bait kinda thing (which would be out of character)? Or are you just instinctively compelled to defend traditional conservatives from incoming fire? I don’t get it.

    15
  3. Jay L Gischer says:

    @SKI: I don’t speak for James, who is quite capable of that. I read this post not as defending them, but parsing quite finely the question of whether they lied under oath during confirmation hearings. That seems an important question.

    5
  4. Jay L Gischer says:

    James, if you think Roe was poorly decided, I have a further question. What protects a citizen with an unusual condition from a state (or Federal) politician from declaring accepted medical procedures to be “abusive” and banning them, and prosecuting people who seek them out, assisting in seeking them out, and carrying them out. Because they see political gain in doing so.

    What protection from this sort of thing can we provide to citizens? How do you think James Madison would respond to that question?

    4
  5. SKI says:

    @Jay L Gischer: Why do you think it is an important question?

    They aren’t charged with perjury and will never be, so that isn’t relevant. James didn’t even raise the issue of such charges.

    If they are impeached (and they won’t be), the specific facts don’t matter as it is a political assertion (whatever a majority of the house and 2/3 of the Senate say is impeachable, is).

    So why is it “important” to assert that, despite the reality that they weren’t being honest, they weren’t lying?

    6
  6. Jay L Gischer says:

    It’s interesting that Susan Collins quite unequivocally said that “If they do this, it will mean Gorsuch and Kavanaugh lied to me in meetings”, and not, “lied under oath during their confirmation hearings”. During which time I expected them to be evasive and slippery. That’s how the game is played these days.

    7
  7. Jay L Gischer says:

    @SKI: It’s important to me. I do not like to let the facts of the situation be determined by any political impulse I might have. I have a lifetime of training and habit in this direction.

    1
  8. DK says:

    Okay so they didn’t lie. They were evasive, disengenuous, and deliberately declined to tell the whole truth.

    Six in one hand, a half dozen in the other. And everybody does the same thing in job interviews.

    2
  9. Beth says:

    It’s such a fortune to be a man. You get to debate whether someone lied or merely prevaricated, all the while comfortable in the knowledge that no matter the answer you will remain in control of your body and rights all times.

    21
  10. Sleeping Dog says:

    After hearing their testimony, anyone who believed that Barrett, Gorsuch and Kavanaugh, would do anything but reverse Roe, or at minimum hamstring it the point uselessness is either a naive, mentally deficient or a liar. Collins and her peers are simply dissembling to avoid the inevitable backlash from their constituents. The testimony was artful wordplay to avoid a direct answer.

    Good for Factcheck.org, in exposing them.

    3
  11. Beth says:

    @Jay L Gischer:

    What protection from this sort of thing can we provide to citizens?

    Nothing. “Those” people are disfavored and thus have no right to protection.

    BTW, the Rightwingers are starting to also talk about reviving anti-crossdressing laws. Talk about deeply held traditions.

    Seriously though, under the Alito Doctrine unless it is specifically and exactly mentioned in the constitution, there is no protection. Period.

    3
  12. KM says:

    They lied. Own it. Everyone lies.

    Weasel wording and “yeah buts” only serve to emphasis the point that they always meant to do this but don’t want to be seen in a bad light for doing so. How can we possibly be expected to honor the Court and its supposedly impartial authority when it’s apparently fine to be deceitful upon entering it for ideological or political goals? The simple truth was these Justices were pre-selected for this outcome, deliberately manipulated the process and their answers to get access and then rendered the decision not based on the case but their beliefs.

    That, dear @James, is intentional deceit and lies. And you are only lying to yourself and us to pretend otherwise. The public is not stupid and insisting they “didn’t lie but prevaricated” just makes people less inclined to trust anyone pushing that line.

    9
  13. Scott says:

    When they overturn Roe, are we to believe the justices when they write that this just applies to abortion and not the other unenumerated rights assumed under the right to privacy? Talk about slippery language.

    7
  14. Modulo Myself says:

    The real kabuki theater is about originalism being an ideal. None of the guys have ever cared. They want power. They are filled with hate for actual life and liberty. After we get our quasi-theocracy, I’d be curious what Republicans who went 80% of the way on the journey thought they were getting on the 80% before they bailed. I doubt there will be any answers–just hand-waving and good german what-ifs.

    3
  15. Beth says:

    @Scott:

    It’s gonna be like that old Saddam Hussain video where he had the legislators dragged out and shot while he cried.

    Alito is going to get his fun trashing Roe. Everything else will fall away under polite pretenses.

    1
  16. SKI says:

    @Jay L Gischer:

    It’s important to me. I do not like to let the facts of the situation be determined by any political impulse I might have. I have a lifetime of training and habit in this direction.

    I have also been so trained, particularly in parsing language. That isn’t an answer as to why James thought that making the distinction between “lying” and “intentionally deceiving” was something important enough to disserve a post.

    4
  17. Scott says:

    @Beth: Just like those who keep saying this is a State’s Rights and Federalism issue. Yet, they are now talking Federal law.

    State’s rights just like the Fugitive Slave laws were. And John Roberts is like Roger Taney.

    6
  18. Kathy says:

    “When we can’t lie, we must make the truth lie for us,” Isaac Asimov.

    8
  19. Just nutha says:

    @Jay L Gischer:

    That’s how the game is played these days.

    And yet we wonder at shambles of the present day SC. Hmmm

    3
  20. gVOR08 says:

    Words! Words! Words!
    I’m so sick of words!
    I get words all day through;
    First from him, now from you!
    Is that all you blighters can do?

    We’re not arguing here about what they did, we’re arguing about what “lie” means. The old W Bush and Iraq argument.
    Did they commit perjury? No.
    Did they intend to deceive, yes.
    Did they succeed? Depends on which audience you mean.
    Cynics? No, we knew why they were doing. The MSM? No, they also knew what was happening. The audience of the MSM? Some yes, some no. Susan Collins? No. She knew exactly what they were doing and deemed it sufficient cover.

    Reprising. Did they commit perjury. No. Are they, in a vernacular sense, lying sacks of shit. Oh yes. James, the question of the most skilled lawyers in the country is, “Did they lie?”, and your answer is, “They very artfully evaded perjury.” Unsatisfactory.

    14
  21. Just nutha says:

    @SKI:. Because in his heart Dr. Joyner agrees with the decision, but hopes, for the sake of his daughters, that we haven’t opened Pandora’s Box?

    2
  22. Assad K says:

    Wile E Coyote, SUPER Genius.

    1
  23. mattbernius says:

    @Jay L Gischer:

    It’s interesting that Susan Collins quite unequivocally said that “If they do this, it will mean Gorsuch and Kavanaugh lied to me in meetings”

    Unless there is another quote from Collins where she used the “L” word, that is a misreading of what she said. The original quote was:

    “If this leaked draft opinion is the final decision and this reporting is accurate, it would be completely inconsistent with what Justice Gorsuch and Justice Kavanaugh said in their hearings and in our meetings in my office.”

    Saying someone was “completely inconsistent” is not the same as saying they lied. This is also why perjury is a difficult thing to prove in most cases.

    6
  24. Jon says:

    Well, I’ve read parts of the embarrassing transcripts, and I have seen the proud statement of a former attorney general, who protected his boss, and now brags on the fact that he tiptoed through a mine field and came out quote clean unquote. You know, I — I can’t — I can’t imagine somebody like Thomas Jefferson tiptoeing through a mine field on the technicalities of the law, and then bragging about being clean afterwards.

    Jimmy Carter, 1974

    8
  25. Rick DeMent says:

    “Roe was thinly disguised judicial activism”

    Declaring that a blastocyst and a fetus has rights under the constitution is blatant, in your face judicial activism.

    12
  26. MarkedMan says:

    @mattbernius:

    Saying someone was “completely inconsistent” is not the same as saying they lied. This is also why perjury is a difficult thing to prove in most cases.

    This parsing, while it may have legal significance, is juvenile. When my kids were ten I didn’t let them get away with lying if they could somehow show that in some pedantic way nothing they said was technically false. If they intended to deceive me, they were lying. If you asked your spouse if they were having an affair and they artfully managed to create the impression they weren’t, would you feel less lied to when you found out they were doing the horizontal cha-cha with your best friend?

    If you want to argue the Republican judges did not commit perjury, fine. But expanding that to say it means they didn’t lie just insults our intelligence.

    6
  27. Jay L Gischer says:

    @Just nutha: I don’t wonder at all. I find it alarming. I do recognize the trend.

    For instance, I was just reading a piece on Hannah Arendt, which gave her description of the kind of mentality that is receptive to totalitarianism. That mind is cynical and lonely. So, the march toward nihilism, toward “there’s nothing good in government”, toward “they’re all the same” is in addition a march toward totalitarianism.

    As to whether what they said in hearings constituted deception, I for one did not come away with the impression that they had decisively committed themselves to upholding Roe and Casey. That stuff just strikes me as a sort of political theater playing out in public for the cameras. Senator tries to pin them down, they don’t let themselves get pinned down. Senator gets credit, politically, for trying.

    I dunno, it doesn’t seem all that deceptive to me, except in the sense of theater. Theater is all lies, from beginning to end, and yet conveys, at times, deep truths.

    2
  28. Jay L Gischer says:

    @mattbernius: I’m not a lawyer. To me, “completely inconsistent” is just a more polite way of describing a lie or deception.

  29. Jay L Gischer says:

    @Jon: Wow, that’s a nice speech.

    1
  30. Drew says:

    The hysterical nature of the debate is amusing. A more tempered take:

    https://jonathanturley.org/2022/05/04/no-conservative-justices-did-not-commit-perjury-in-confirmation-on-reversing-roe/

    Both in Europe and in proposed legislation here something like a 16 week standard +/- is a feature of law. I understand the concerns over incrementalism, but I think they are overwrought as a practical matter. However it gives the left a taste of their own medicine when it comes to the hard stance against additional gun laws.

    It is amazing to watch these debates – with so much ink spilled – and nary a word about a baby’s rights – or when those rights might be reasonably be deemed to have been conferred.

  31. mattbernius says:

    @Jay L Gischer:
    I understand you are not a lawyer. You don’t have to be.

    My only point is that saying that Collins “unequivocally” (your words) said “they lied to me” (in quotes to suggest a verbatim statement) is false on 2 counts: not only did she not use any form of the word “lie,” but her choice of phrasing means something different than that.

    Are they “weasel words?” Yes, to the degree that any type of carefully crafted statement at this moment is made up of “weasel words.” And the fact remains that phrasing does matter whether we want it to or not.

    1
  32. MarkedMan says:

    @Drew:

    nary a word about a baby’s rights

    Right, because we aren’t talking about a baby. Your religion may dictate you believe a zygote is equivalent to a baby, but that doesn’t make it any less ridiculous.

    12
  33. Jon says:

    @Jay L Gischer: Oddly enough I first learned about it in a Hunter S. Thompson book, The Great Shark Hunt, some 30-odd years years ago. It always stuck with me.

  34. DaveD says:

    @Drew: They also have universal health care and free birth control. I’ll take a 16 week standard in exchange for those.

    5
  35. Chris says:

    @Modulo Myself: Originalism would be a ill conceived concept to our founders who brought about a new government in order to form not a “perfect union” but a “more perfect union.” In other words, they understood progress and advancements were in the offing.

    3
  36. Michael Reynolds says:

    A genuinely stupid take, @James. There was clear intent to deceive. The first stop each of these half-wit religious nuts makes is at the White House where they are instructed on just how to lie. Just dumb, dude, inexcusably dumb.

    10
  37. Michael Reynolds says:

    @Drew:
    You suckle at the teat of Russian disinformation and worship the biggest liar in the history of American politics. You are not competent to assess true or false. If you say it’s not a lie, that pretty well proves it’s a lie.

    5
  38. Rick DeMent says:

    @Drew:

    A baby born has rights, blastocyst, zygote or a fetus dose not. Show me in the constitution where is says that. And if you are going to pull some “originalists” mumbo jumbo, don’t bother, there was a who class of people who not only didn’t have rights, but were only counted as 3/5th human.

    5
  39. KM says:

    @Rick DeMent:
    Originalist would mean the understanding of pregnancy and birth in 1776, a time when advertisements in newspapers spoke of health products for “blocked menses” . After all, it’s a normal thing for a woman to have once a month so if it’s not happening, that’s a medical issue in need of treatment! Also, unless you were Catholic, it was an article of faith that is was not an issue as only papists cared about that sort of thing.

    Roe was decided under originalist thinking in so much as that’s how a Founder would have parsed privacy vs governmental control. Its revocation is being done under judicial activism based on religious beliefs and logical as per it’s own written opinion.

    7
  40. DaveD says:

    @KM: don’t forget before we papists were classified as white our lack of birth control lead to the original replacement theory. It wasn’t until Schlafy untied the catholics and the evangelicals into the moral majority that any protestants cared one bit about abortion.

    3
  41. Just nutha ignint cracker says:

    @Drew: The baby starts to have rights when it becomes a citizen of this “Greatest of all Nations on God’s Green Earth.”* So [checks notes] that would be at birth, it seems.
    * h/t Michael Medved.

    6
  42. grumpy realist says:

    @Drew: If “rights of the unborn baby” are that important to you, volunteer your own body to act as life support for it, will ya?

    Otherwise, shaddup. You have NO idea how absolutely infuriating this has been for those of us in danger of being turned into wombs-with-legs.

    As it is, if the Louisiana bill passes, a dead woman in the US will have more rights over her bodily integrity than a live woman will.

    6
  43. Kathy says:

    Absolutely Democrats care not a bit about babies. that’s why they want universal healthcare, daycare, child tax credits, and an end to school shootings among other things. That’ll show those babies to be born!

    9
  44. mattbernius says:

    I hope to god that everyone on here finds (or has already found) someone who loves you as much as right-wing commenters love Jonathan Turley.

    Also,@Michael Reynolds aren’t you supposed to be disconnecting for a bit?

    2
  45. Michael Reynolds says:

    @mattbernius:
    See today’s open thread for context.

  46. mattbernius says:

    @Michael Reynolds:
    Sorry to read about the extended layover. Thankfully (sandwiches aside) it doesn’t sound too bad.

  47. Paul L says:

    Here is former DOJ prosecutor Glenn Kirschner who kept us safe saying all Supreme Court Justices that may rule to overturn Roe should be investigated and impeached.
    #teamjustice #JusticeMatters
    In my judgement Christine Blasey Ford lied multiple times during questioning about her sexual assault. But Believe All Women especially accusers of College rape culture that require Title IX protections.

    Kavanaugh, who in my judgment lied multiple times during questioning about his drunken escapades in high school and college, was the slipperiest on this subject.

  48. Daryl and his brother Darryl says:

    In my corner of the world these things are called “Weasel Words.”
    These are words or statements that are intentionally ambiguous and/or misleading.
    My suspicion is that law school students spend and entire semester on just this topic.
    Not a single sentient being thought for a minute that any of these people had any other job but to destroy Roe. Trump himself admitted that.
    Anyone who says anything else is the liar.
    So yes, Collins is a liar.

    3
  49. steve says:

    “Seriously though, under the Alito Doctrine unless it is specifically and exactly mentioned in the constitution, there is no protection. ”

    Hmmm. The word abortion does not appear in the Bible. I wonder…

    Steve

    1
  50. Michael Reynolds says:

    @mattbernius:
    If you have to be stuck in any airport business lounge, this is the one. But I’ve got thirteen hours to go, so I doubt my mood will improve. I can go to a hotel outside the airport but then we need visas and the sheer hassle will kill hours.

    I remind myself that I used to ride Franco-era trains in Spain that moved at walking speed, and oversold so I’d end up in the hallways next to the bathroom lying on my backpack for 19 hours.

    2
  51. Barry says:

    James:

    “Roe was thinly disguised judicial activism”

    Two points – first, it was a 7-2 SCOTUS decision; by this standard any precedent can be declared that. And the Dobbs case is pretty much undisguised judicial activism.

    ” Abortion is surely the most contested judicial issue of the last half-century, so of course it’s not “settled law.” Indeed, SCOTUS has allowed the precedent to be slowly chipped away by state legislatures for quite some time now.”

    Which means that political refusal to accept a law is OK, and the only standard is political power and the willingness to use it.

    “At the same time, women have indeed relied upon this judicially-created right for close to half a century. Overturning it at this point is a big step in the wrong direction.”

    In addition it’s no longer honestly deniable that the effects of this will be to enable a sweeping wave of government power over women as not been seen in the USA for quite a long time.

    The majority, probably the overwhelming majority of the anti-Roe political coalition seek to control women.

    6
  52. Paul L says:

    @Barry:
    “first, it was a 7-2 SCOTUS decision; by this standard any precedent can be declared that.”

    In a landmark case, the United States Supreme Court decided 7–2 against Dred Scott, finding that neither he nor any other person of African ancestry could claim citizenship in the United States, and therefore Scott could not bring suit in federal court under diversity of citizenship rules. Moreover, Scott’s temporary residence outside Missouri did not bring about his emancipation under the Missouri Compromise, as the court ruled this to have been unconstitutional, as it would “improperly deprive Scott’s owner of his legal property”.

  53. Crusty Dem says:

    @Paul L:

    Excellent example, if you can simply point to which court decision overturned Dred Scott??

    bzzzzt. I’m sorry; it was the 13th and 14th amendments of the constitution.

    2
  54. Just nutha says:

    @Paul L: Well, that was incoherent.

    2
  55. Just nutha says:

    @Paul L: So Dred Scott was not “judicial activism?” Good to know. Thanks.

    1
  56. Jax says:

    @Paul L: I noticed on your own blog you had some run-in’s with having to moderate the content in your comments section. Good on you for deleting the worst of the worst.

    I’ve always wondered, though….what IS your deal with sexual harrassment and rape cases? Why do you continually ride those ponies, and come down on the side of the accuser being a liar?

    1
  57. Just nutha ignint cracker says:

    @Jax: I would guess it’s because that’s what he says when he appears in court. But I’m trying to be a better person just for today, so I won’t say that.

    1
  58. Jax says:

    @Just nutha ignint cracker: Glad to see you’re up and typing!

    Yes. Methinks Paul doth protest too much. Almost like it’s personal.

  59. Ken_L says:

    The former guy appointed the three. He also said he was confident Roe would be overturned after he’d had the chance to stack the court. While accounts of his pre-appointment conversations with the three justices have yet to be leaked, it would be astonishing if he hadn’t asked them point blank whether they would vote to reverse Roe. That’s the kind of blunt, down-to-earth president he was.

    If people didn’t believe him, that’s their fault.

    1
  60. Paul L says:

    @Crusty Dem: Schuette v. Coalition to Defend Affirmative Action
    A 6-2 decision, with the dissent that the 14th amendment does not apply to white people.
    @Jax:
    I believe the the feminists and their allies should not be able to slither away of that verboten from the OTB community topic especially since their standard of proof and evidence for sexual harrassment, assault and rape has gotten more lax these days.

  61. matt bernius says:

    @Paul L I hate to interrupt one of your typical free-association gish gallops, but I have to bite on this one.

    Schuette v. Coalition to Defend Affirmative Action
    A 6-2 decision, with the dissent that the 14th amendment does not apply to white people.

    First, in case you were unaware, a dissent, even in the case of the Supreme Court, sets no legal precedent.

    Second, I’d be interested to understand where in that dissent Justice Sotomayor lays out that the 14th Amendment doesn’t apply to white people. And whose interpretation of the text are you relying on for that read? Do you have a reference to any legal scholar making that argument? Because that seems like, well, “big news if true.”

    1
  62. Barry says:

    @Paul L: And your point is?

  63. Jim Brown 32 says:

    @Paul L: Psst–Genius…. The SCOTUS rationale for Dred Scot is EXACTLY the same logic Alito used: “Well it aint in the Constitution….”

    Thank you for illustrating the flaw in “Originalism”…which by the way is itself–NOT IN THE CONSTITUTION as a prescribed method of interpretation.

  64. Paul L says:

    @Jim Brown 32:
    Democratic party hack Roger B. Taney just ranted against Black people.
    @matt bernius:
    Do you have a reference to any legal scholar making that argument?

    Antonin Scalia
    My goodness, I thought we’ve — we’ve held that the 14th Amendment protects all races.
    I mean, that was the argument in the early years, that it protected only — only the blacks.
    But I thought we rejected that.
    You — you say now that we have to proceed as though its purpose is not to protect whites, only to protect minorities?
    Shanta Driver
    I think it is — it’s a measure that’s an antidiscrimination measure.
    Antonin Scalia
    Right.
    Shanta Driver
    And it’s a measure in which the question of discrimination is determined not just by — by power, by who has privilege in this society, and those minorities that are oppressed, be they religious or racial, need protection from a more privileged majority.
    Antonin Scalia
    And unless that exists, the 14th Amendment is not violated; is that right?
    So if you have a banding together of various minority groups who discriminate against — against whites, that’s okay?
    Shanta Driver
    I think that–
    Antonin Scalia
    Do you have any case of ours that propounds that view of the 14th Amendment, that it protects only minorities?
    Any case?
    Shanta Driver
    –No case of yours.

  65. Matt Bernius says:

    @Paul L:
    So you just cited oral arguments… which are not legal precedent either. And it should be noted that Scalia’s style in oral arguments (in a different case than the one you cited) [ty for the correction Paul – mb] was to make grand and far-reaching arguments that were typically not represented in his actual decisions. Additionally, the person he was speaking to, Shanta Driver, was an advocate in one of the cases.

    So I don’t think that except of the oral arguments (again from an entirely different case than the dissent you are citing… nor does it make reference to the dissent) actually supports the point you think it does. In fact, that’s such weak tea I’m not sure its even tea at all.

    I did visit your blog entry, and since I expect that your next step will be to copy pasta the following exceprt from the dissent in question, I thought I’d deal with that as well:

    [passage 1] That view drains the Fourteenth Amendment of one of its core teachings. Contrary to today’s decision, protecting the right to meaningful participation in the political process must mean more than simply removing barriers to participation. It must mean vigilantly policing the political process to ensure that the majority does not use other methods to prevent minority groups from partaking in that process on equal footing. [… passage 2] Relatedly, Justice Scalia argues that the political-process doctrine is inconsistent with our precedents because it protects only the minority from political restructurings. This aspect of the doctrine, he says, cannot be tolerated because our precedents have rejected “mentions… [passage 3] the political-process doctrine has not been applied to trigger strict scrutiny for political restructurings that burden the majority. But the doctrine is inapplicable to the majority. The minority cannot achieve such restructurings against the majority… mentions [note that “mentions seems to be something that sneaked in and doesn’t appear anywhere in the text related to the quotes cited… passage 4] Race matters. Race matters in part because of the long history of racial minorities’ being denied access to the political process… [passage 5] Race also matters because of persistent racial inequality in society

    Source: Sotomayor Dissent Schuette v. Coal. Defend Affirmative Action

    Wow, that’s a frankenstien of a paragraph… I count 5 different passages from the dissent mashed together. You’re connecting paragraphs that are pages apart in the decision. And at least once in there, you make a paragraph jump without even putting in an ellipsis. And in some cases you change the ordering of the quotes.

    So basically what you have done is string together sentences from a much larger dissent to make the point you want them to make. And sadly even then it’s NOT actually saying that the 14th Amendment does not apply to white people (which was your original claim). You could make the far more narrow claim about Sotomayor and Ginsberg’s view about the Political Process Doctrine.

    So again, it’s just weak tea being prepared by someone who apparently doesn’t actually understand the laws.

    1
  66. Paul L says:

    @Matt Bernius:

    oral arguments (again from an entirely different case than the dissent you are citing… nor does it make reference to the dissent)

    What oral arguments am I referencing in my quote if not Schuette v. Coalition to Defend Affirmative Action?
    You’re connecting paragraphs that are pages apart in the decision.

    Context: “Please cite the part in the dissent where anyone says that the 14th Amendment doesn’t apply to whites.”

    I cherry picked the highlights of the dissent that supported my argument. I am interested what cherry picked parts you can pull out of the dissent disprove my argument that they(RBG/Sotomayor) don’t believe the 14th Amendment applies to the majority/whites. At least for the time being.

    Race matters. Race matters in part because of the long history of racial minorities’ being denied access to the political process… Race also matters because of persistent racial inequality in society

  67. Matt Bernius says:

    @Paul L:

    What oral arguments am I referencing in my quote if not Schuette v. Coalition to Defend Affirmative Action?

    My apologies, you were totally right, those are oral arguments from Schutte v. CDAA. I’ve corrected the above.

    However, my point still stands that (a) oral arguments are not precedent-setting and (b) are not mustered as “legal evidence.” Nor does that excerpt of that oral argument relate to a dissent that had not been written at the time that argument happened in a way that’s immediately obvious. At best it’s telling us something about Scalia’s perspective on the topic and an advocate’s perspective on the topic. It says nothing about the dissent itself.

    That’s the challenge, Paul, I really don’t understand how you are supporting the argument you are trying to make. You might think you are making a clear and coherent argument and I’m just being a pain. I’m serious though, I, and many others here, don’t understand what you are laying down. You have a bit of a tendency to skip a few steps in your logic, which gets us to:

    I cherry picked the highlights of the dissent that supported my argument. I am interested what cherry picked parts you can pull out of the dissent disprove my argument that they(RBG/Sotomayor) don’t believe the 14th Amendment applies to the majority/whites.

    Paul, you see, here’s the problem you think that quote from the dissent proves your argument. It doesn’t. Now, you might have a strong underlying argument here and just haven’t built the case. But if that’s the case, you should be able to find a legal scholar who can unpack it well enough that you can cite it. I did a quick google search for one before I started this response and couldn’t find one that did that. There were definitely critiques of the dissent, but none remotely suggested that Sotomayor and Ginsberg believed that the 14th Amendment didn’t apply to white people.

    So given the lack of coherent argument or expert support, what we have here is a clash of opinions about a dissenting opinion. And neither of us our lawyers last I checked. So unless you can find an expert who can actually lay out the support for the argument, there’s not much more conversation to be had.

    I suspect you will accuse me of making an “appeal to authority” (as you have in the past). Aas I have pointed out in the past as well, that isn’t a fallacy when dealing with an expert domain knowledge issue (like Consitutional Law):

    “Be very careful not to confuse “deferring to an authority on the issue” with the appeal to authority fallacy”

    https://www.logicallyfallacious.com/tools/lp/Bo/LogicalFallacies/21/Appeal-to-Authority

    If memory serves you are a computer programmer or software engineer with no legal training (or at least none that you’ve mentioned in the past). While IANAL I have gone through legal training for my work and also have a partner who is a lawyer with a specialty in parsing Supreme Court decisions. So there’s a reason why I’m asking for some legal writing to back up your point.

    Beyond that, I’ve been down this path with you on climate models in the past and I know it’s not worth the effort.

    1
  68. Matt Bernius says:

    Also Paul, this is probably a good point to jump off this as I just discovered we have been through this argument at least once already. And I’ll point out that at the time the Late Doug, who went through law school and passed the bar reached the same conclusion as me on your ability to read and accurately represent whats in a decision or dissent.

    https://www.outsidethebeltway.com/second-federal-judge-places-hold-on-trump-administration-decision-to-end-daca/

    The fact that in four years you have (a) not found any additional support and (b) not improved your style of mustering evidence (again relying on the same things you are using here) leads me to suspect that now that you have developed an opinion, nothing will lead you to seriously reconsidering it.

    So good luck with that.

    2
  69. grumpy realist says:

    @Paul L: If you quote paragraphs separated by many pages and do not indicate that you are doing so such that they seem to be continuous, you’re lying. Period.

    I would be rightly chewed out by my supervisor if not fired if I tried to carry out in a legal brief the same shenanigans you are indulging in.

    And yes, I AM a lawyer.

  70. Paul L says:

    @Matt Bernius:
    Doug was defending New York v. Trump as DACA is a law and not just a DHS memo.

    I forgot about this wonderful part.

    We ask this Court to uphold the Sixth Circuit decision to reaffirm the doctrine that’s expressed in Hunter-Seattle, and to bring the 14th Amendment back to its original purpose and meaning, which is to protect minority rights against a white majority…

    Looks like the 6th Circuit and Hunter-Seattle doctrine ruled that the 14th Amendment didn’t apply to white people.
    Is that expert support enough?
    @grumpy realist:
    You must not work for the DOJ. I am not subject to the legal brief standard. I am held to the internet bad faith hack standard like most pundits.

  71. wr says:

    @Paul L: ” I am held to the internet bad faith hack standard like most pundits.”

    And yet you can’t even manage to rise to that level. Pretty sad, really.

    1
  72. Matt Bernius says:

    Sigh… one mo gain…

    The quote that you included is part of an argument submitted to the court, not a production of the court. It’s an advocacy organization’s argument and no statement of precedence. It’s also an interpretation of the 14th Amendment that Scalia notes has historical merit (in the oral argument quote you cited) but has been superseded. So yes, a party in the case wanted that.

    That doesn’t tell us much beyond what one party wanted.

    However, despite your fever dream reading of the dissent, which was again a *dissent*, (or the 6th circuit decision or the Hunter-Seattle doctrine), none of them say what you claim they say. And

    I am held to the internet bad faith hack standard like most pundits.

    Well while you might not be a pundit, your trail of posts across here and on your own site seem to suggest you seem to fall into the “internet bad faith hack” category.

    Or rather that you really don’t seem to hold yourself to any standard other than “I’m always right and the rest of you have no idea what you are talking about.”

    1
  73. Paul D says:

    internet bad faith hack
    All the Justices said they would uphold Roe v. Wade. (No) Lying under oath is Perjury. Merritt Garland is going to cost women in America their reproductive rights.

    I have a question. Why wasn’t Amy Coney Barrett put on trial for committing Perjury? Why wasn’t Brett Kavanaugh put on trial for committing Perjury? Why wasn’t Neil Gorsuch put on trial for committing Perjury? Why haven’t the SCOTUS Justices been held accountable? I’m ANGRY!

    1
  74. Paul L says:

    Sorry, fat fingered the above post.

    1
  75. Matt Bernius says:

    @Paul L:
    No worries. Happens to us all.

  76. John430 says:

    There are 23 states that ban capital punishment. They forbid the execution of hardened, vicious murderers but are OK with killing the unborn. Go figure.