Thomas asks again what constitutional right is at issue here. Rikelman says liberty. Thomas: “So, it's all of the above.” He accuses her of relying on reasoning that comes from Lochner.
Now, Rikelman invokes a common law “tradition” of abortion being permitted, but then flip flops to saying the right is needed to defeat “historic discrimination.”
Rikelman says that the issue at stake here is the right to liberty. What about the right to life?
Now running through the justices one more time, in order of seniority.
Rikelman: Abortion is grounded in liberty.
Thomas: Nothing more specific?
R invokes pseudo-history on common law.
The argument that the Court can’t change its rulings, even bad ones, if a lot of angry people want them to, doesn’t strike me as a very coherent rationale.
The Casey argument Breyer is making–we can't overrule when there's a big public argument about our decision–would have ruled out Brown v. Board.
Two American institutions that still permit filibusters: the Senate and the Supreme Court
Breyer sounds like a professor who is sad that the students don't listen anymore.
Stream of consciousness from Breyer
More speechifying from Justice Breyer right now.
Breyer: “we're an institution more than a court of appeals…we have to have public support.” Giving an ode to “we do our job, we use reason.”
Frankly, this feels like a combination of his answer to the people who want him to retire, and maybe the windup to a speech on why he's retiring after Roe is overruled.