Breyer is making the institutionalist pitch here, trying to convince his fellow Justices – the only audience that matters here – that it would “subvert the Court's legitimacy” (quoting Casey) to overrule Roe.
Very long Breyer question on Casey's (absurd) stare decisis principles.
Breyer's voice drips with sarcasm in referencing there being feelings running high against the Court's precedents.
Breyer says “the country decided to resolve its differences” over abortion through the Court’s decision in Roe, which seems somewhat self-contradictory.
Of course, “clarifying the undue burden standard” is just perpetuating the sin of Roe.
Thomas, characteristically, asks very open-ended questions that give the advocate room to work. He asks whether Stewart has a fallback argument besides overruling Roe and Casey, and the answer is, in essence, rational basis review.
Stewart says in response to Justice Thomas that if the Court doesn’t overturn Roe and Casey, it might issue a clarified version of the undue burden standard, “untethered from any bright line viability rule.”
I was not expecting Justice Thomas to ask the first question.
Stewart has a fine answer on privacy: Yes, the Constitution protects aspects of it; that doesn't meant it protects a right to abortion.
Scott Stewart says in response to Justice Thomas that focusing on autonomy and privacy are one step further away from what the Constitution says.