Sotomayor asks Stewart how the question of when life begins is anything other than a religious question. Even if that were true — which it’s not — it doesn’t excuse the Court answering that question for the whole country in Roe and Casey.
Sotomayor: How is your view anything other than a religious view?
(Really dumb question.)
Sotomayor seems to be a lot more interested in defending the Court’s rationale (very poorly) than in getting actual answers from Stewart.
Sotomayor on Obergefell, Griswold – “they all rely on substantive due process…so, they're just as wrong.”
Well, yes. And Stewart has to pretend otherwise. But Griswold, at least won't get challenged in court.
Stewart: We are very comfortable looking to Washington v. Glucksberg.
The obvious problem here is that Griswold and Obergefell are nonsense, but of course Stewart can't say that.
Sotomayor: You're saying that there is no substantive due process.
Stewart: No.
Breyer: there's only two cases overruling watershed precedents. You want this to be the third.
This is a silly line of argument, Stewart refuses to name something else.
A good answer to Sotomayor's question came from the (pro-choice) legal scholar, John Hart Ely, who wrote a few months after Roe was decided that the Court had created a “super-protected right” that “is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure,” and thus answered “a question the Constitution has not made the Court’s business.” Roe “is bad,” Ely concluded, “because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.”
Justice Barrett asks Stewart to bat away Justice Sotomayor's suggestion that overruling Roe will endanger Obergefell, Griswold, etc., which he does.