Home / General / “Fuck you, that’s why” is a *kind* of jurisprudential theory, I guess

“Fuck you, that’s why” is a *kind* of jurisprudential theory, I guess


Great moments in self-refutation:

The Roberts court, more lawyerly than those that decided Roe or Casey, looks to text, history and precedent.

1)LOL that the Court that brought you Shelby County and Concepcion (and countless others like it) is “lawyerly,” or 2)that “text, history and precedent” are what drives outputs on the Roberts Court.

And just to put a cherry on top, the argument proceeds like this:

The Constitution’s text doesn’t mention abortion. And historically, by the time the 14th Amendment was ratified in 1868, a supermajority of states had banned abortion from conception.

These are points that would be raised by a C-list junior high school debate team, not arguments. “Durr, the Constitution does not mention the word ‘abortion’, durr” is transparently silly, and mentioning the legal status of abortion in 1868 isn’t much better, unless you’re prepared to say that Brown and Loving were wrongly decided and it would be constitutional for states to prevent women from practicing law or signing legal contracts. That this is all being done as an attempt to justify overruling Roe is also a reminder that one reason that assertions that the Court is relying on “text, history and precedent” are vacuous is that judges can very frequently pick whichever one of these happens to align with their policy preferences and ignore the rest.

I will give Girgis this: the argument that Mississippi’s abortion ban cannot be reconciled with Roe and Casey is obviously correct. But the existence of this op-ed is a recognition that a likely — and probably the most likely outcome — is that the plurality or majority opinion upholding the law will make up a bunch of fake-minimalist bullshit to avoid acknowledging that Roe has been overruled, because honesty would not be in the immediate interests of the Republican Party. It’s almost enough to make me think that the reactionary majority Roberts Court is not “lawyerly” at all!

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