One minor debate going on is who exactly assigned the opinion. Roberts concurred in result, but not in the overruling Roe/Casey. Some, but not the joint dissent, handwaves the difference. The majority is not just a minor change from Roberts' position. It is shades of Justice Brennan not assigning a death penalty case because he strongly disagreed with the plurality only finding the specific law a problem.
And, why in the heck would he assign it to Alito of all people? If you are going to overturn Roe without being a total ass about it, which when dealing with something like this is sensible, Kavanaugh or Barrett makes some sense. Barrett knows how to sound reasonable and professional. Kavanaugh seems more forced about it in my view. Gorsuch always lays it on a bit too thick and his originalism sentiments makes him too Thomas-y.
Anyway, Thomas' concurrence is short (under seven pages). Kavanaugh takes twelve pages. Since he along with Roberts (see the gun case) are likely "swing voters" here, the concurrence is fairly important. There is also a matter of how reliable the whole thing is. The comment about travel is strongly written, leading Kate Shaw (Strict Scrutiny Podcast / Chris Hayes' wife) to think it likely to stick. Her co-hosts were doubtful.
If Roberts, like he did in the gun case, went along with the majority, he very well might have signed on to this Kavanaugh concurrence as well. Now that the opinion is here, it is somewhat academic to imagine if there is any anti-abortion law that Roberts would not agree with but Kavanaugh would. Perhaps, something of the sort of SB8, that screws up normal judicial rules.
I write separately to explain my additional views about why Roe was wrongly decided, why Roe should be overruled at this time, and the future implications of today’s decision.
This is again typical O'Connor/Kennedy sort of thing to try to frame a majority opinion and explain why a "centrist" type is going along. Such people are just ideologues, mind you, they are just looking at this in a reasonable sort of way. It is clearly his view of himself at this point.
And, putting aside the "it's the law, we just have to see how it falls" (which Kavanaugh joined) Alito remarks, finessing societal reaction like this is part of the game, so to speak. That is a basic assumption regarding the respect for how Chief Justice John Marshall handled things in Marbury v. Madison. That is, a judicial, in a form of that word, approach that carefully addressed public and institutional realities.
The issue before this Court, however, is not the policy or morality of abortion. The issue before this Court is what the Constitution says about abortion. The Constitution does not take sides on the issue of abortion. The text of the Constitution does not refer to or encompass abortion.
Usual stuff -- abortion is a matter of deep dispute and there is no reason for the courts to step in. The Constitution is "neutral" on the question. This is false. I have spent decades now talking about this and in "Joe's Constitution," I spend a chapter running down the multiple constitutional provisions involved here. A basic point here is that enslaving people is something the Constitution does not allow.
(The Constitution is "neutral" -- to be clear -- on the result, just as it is "neutral" regarding if someone needs to believe a certain idea or religious belief. The very right, the very equal liberty, to make these decisions and all that entails, is something the Constitution is not neutral on.)
The concurrence is striking in that it tosses in some conservative shibboleths (to use Mark Tushnet's term). Some might not expect this sort of thing from this guy:
The Constitution does not grant the nine unelected Members of this Court the unilateral authority to rewrite the Constitution to create new rights and liberties based on our own moral or policy views
This is the usual strawman (straw-bro?) bullshit. There is no need to "rewrite" things here. "New" rights are not being created out of whole cloth. The right to choose allows individuals themselves to choose their own moral views, with clear religious liberty aspects, here. The "policy views" are based on constitutional principles. There is a strong debate on what they are. But, it is not just justices relying on their "own" views.
As I see it, the dispositive point in analyzing American history and tradition for purposes of the Fourteenth Amendment inquiry is that abortion was largely prohibited in most American States as of 1868 when the Fourteenth Amendment was ratified, and that abortion remained largely prohibited in most American States until Roe was decided in 1973.
One thing covered in the discussions of this case is the complexity of how "largely prohibited" abortion was in 1868. The same can be said for its prohibition afterwards. The discussion in Lawrence v. Texas comes to mind. For instance, there was a general opposition to targeting women themselves in enforcing anti-abortion laws. A telling point that is just one reason why abortions occurred in large numbers during this time period.
Abortion was legal in various ways during this time period. Also, one reason why we have constitutional rights is to serve as checks against legislative violations. The Thirteenth and Fourteenth Amendments were ratified to override many current policies and the decades afterwards were filled with state laws that were later found to violate its terms.
Finally, why the laws were in place is a rather important matter. Medicine significantly developed. Times changed, and a growing understanding that women should have control of their own health care arose. Such things reflects other cases where courts determine that merely because something was illegal did not mean constitutional rights were not present.
The Court in Roe erroneously assigned itself the authority to decide a critically important moral and policy issue that the Constitution does not grant this Court the authority to decide.
How? It can't just be that some disputed moral issue was involved. The courts (see Tocqueville) decide a range of greatly disputed moral issues. How did it "distort" its role? How is Roe different, for instance, from Griswold? Other than pointing out that Casey did not end the big debate, I see no ... NONE ... discussion about this. It's just his ipse dixit.
Be sure, tossing in his usual weasel, he has "deep and unyielding respect" for the Casey plurality. I'm sure you are quite supportive of your predecessor. Not sure how far Souter or O'Connor (if she was competent) would want to toss you though.
I emphasize what the Court today states: Overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents.
Like the majority (and Thomas to the degree he claims abortion is unique), Kavanaugh assures us that contraceptives, same sex marriage, interracial marriage, and so on won't be threatened. On some level, that is somewhat reassuring, and I don't think Roberts or Kavanaugh really want to go as far as some make out is liking. Can we stop with the "Loving is next" stuff?
But, Roe reflects the basic principles of these precedents. It is hard to believe Dobbs (especially given some of its language that is far from so easily cabined) will be so limited. A basic thing that is clearly next is just what "abortion" entails, including IUDs, abortion pills, and so forth. And, what about in vitro fertilization or stem cell research?
And, why exactly is same sex marriage different? The Chief Justice strongly dissented in that decision. It was 5-4. It was a greatly disputed moral matter. There was a long history of non-recognition of same sex marriage. The dissent's "well, we want to believe you but" replies as much as those from those specifically affected (GLBTQ) have bite.
For example, may a State bar a resident of that State from traveling to another State to obtain an abortion? In my view, the answer is no based on the constitutional right to interstate travel.
There will be -- as noted last time -- a slew of legal questions to determine in state and federal courts. Not even "will no longer decide the fundamental question of whether abortion must be allowed" is likely to be true unless "fundamental" does a lot of work. As the dissent notes, what about if it is necessary to protect health? Mind you, every pregnancy is a risk to health. Would a ban be even "rational" then?
I surely think you cannot block a person from traveling to another state to have an abortion (or any number of things). Move beyond the burden in place from having to travel. But, it is far from clear how the courts will finally determine various issues here. For instance, can a state penalize a doctor licensed in said state for providing abortion services elsewhere?
(The linked article -- also cited by the dissent -- provides various complexities about how a state might penalize out of state action. And, what exactly -- as it notes -- will "interstate" quite mean? What if you call a clinic for an appointment or help someone go there? Is this "in" a state and something the state can criminalize as aiding and abetting an abortion?)
And, he tosses in an unlikely concern about states penalizing people for abortions before Dobbs. That would clearly violate the Ex Post Facto Clause. But, any "liability" (see SB 8) is less clear. That clause from the 1790s only applied to criminal behavior. It would be a question of procedural due process to determine. Anyway, even that, seems not really a major concern.
greatly respect all of the Justices, past and present
Sure you do. You just assume they are blatantly violating their judicial duties, including the "constitutional principle of judicial neutrality."
The concurrence ends thusly:
The Court today properly heeds the constitutional principle of judicial neutrality and returns the issue of abortion to the people and their elected representatives in the democratic process.
The "issue of abortion" will remain subject to a range of legal disputes. The state of California regulated crisis pregnancy centers and the Supreme Court struck down as unconstitutional a reasonable disclosure law. Tell me again how ...
As Justice Scalia explained, Roe “destroyed the compromises of the past, rendered compromise impossible for the future, and required the entire issue to be resolved uniformly, at the national level.”
The Supreme Court allowed the states discretion on how to regulate abortion, including as applied to waiting periods, who performs them, parental involvement, medical regulations of a varied type, how exactly to frame informed consent, and more. No, it did not allow states to enslave people by forcing them to be incubators. See, Amendment 13.
And, it is so very rich that the same people who support reduction of voting rights talk about tossing things back to the the people themselves. Plus, this result came via minority rule, mixed with other skullduggery. Normal practices put in place a Supreme Court that upheld Roe.
I'm not inclined to go all the way like those who attack the Court as a historical institution, but talking about the one in place now, the general sentiment when people like Kavanaugh talk in this fashion is STFU. And, yes, we should not merely accept them ala Breyer being so pleased with the respond to Bush v. Gore. The start of a solution is often a change in mindset.
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Thanks for your .02!