It is appropriate that the words “no basis in the Constitution” were uttered within the first minute. That, right there, is the whole ballgame.
Stewart opens more or less by echoing Scalia's dissent in Casey.
Very forceful opening by Mississippi SG Stewart: Roe and Casey haunt America.
We go right to argument. No decisions today.
Good morning everyone, and thanks for following along with us here.
If there is a ruling today in the Texas Heartbeat Act cases, the Chief Justice will let us know right at the start. (I assume that the authoring justice would then announce the opinion, and a dissenter would probably summarize the dissent, but COVID might have altered things.)
We knew the Cold War was really over when former Communists began resigning themselves to running for office as small-d democrats. In that light, it is an encouraging sign that even the New York Times editorial board this weekend was talking about the importance of making the case for abortion at the ballot box.
Look for one of the liberal justices–probably Justice Kagan–to press Mississippi SG Scott Stewart on what overturning Roe would mean for a series of hypothetical state laws (including laws that no state has ever enacted or would ever enact).
In Catholic doctrine, we have the concept of scandal: the particular sin when a person teaches something that is untrue (say, teaching that a sin is not a sin), and thereby leads others into sin. It is the sin most forcefully condemned in the Gospels. I tend to think of Roe as a scandal in an analogous sense: it is such an obvious offense to the rule of written law that it operates as a teacher of anti-constitutionalism. In order to embrace Roe, one must embrace an entire theory of justification for constitutional law without the text or history of the Constitution.
I hope and expect that my fellow Catholics among the Justices will decide this case on the basis of law, not the basis of faith. But at least six Justices know fully well that Roe is a scandal in the constitutional sense: it is made-up hokum. If you are the praying sort, I'd pray most of all for them to have the courage to do what their oath to the Constitution demands, and what their consciences as lawyers tell them is already the right thing to do.
There is also an effort on the part of some to persuade the Court to dismiss the case on the ground that Mississippi supposedly pulled a “bait and switch”: seeking certiorari on one ground and then, once cert was granted, asking the Court to overturn Roe and Casey. I explain here why that argument is baseless. If it gets any traction with conservative justices, that would be a very troubling sign.