Posts Tagged ‘supreme court’


Right to Privacy?

October 16, 2008

In last night’s debate Abortion finally came to the forefront.  McCain called Obama out on voting against partial birth abortions, and against legislation which would protect babies born after failed abortions.  Obama tried to weasel his way out by presenting his side of the story.  It seemed viable…except for the small fact that it was all lies.  Obama is a great speaker and I see why those who don’t do their homework would vote for this guy.  However, I don’t believe one word which comes out of his mouth.  I do my homework and find the truth. 

Related to abortion, the topic of Judicial Appointees was covered by the candidates.  Obama said some things which made me cringe.  While speaking, Obama, a supposed Constitutional scholar, misspoke on Roe v. Wade.  It is true that in Roe, when it first came down, the Court created a new right to privacy under the 14th amendment.  The right to privacy, in this sense, is nowhere to be found in the Constitution.  In fact, the only place in the Constitution that infers a right to privacy are in the 4th, 5th, and 6th amendments.  In these amendments “the people” or the accused have the right for the government to not illegally search or seize, to be deprived of liberty without due process, and the right to a public and speedy trial free from inducement during “trial like confrontations”.  There is also some mention of the right to privacy in the 3rd amendment during times of peace. 

Nevertheless, the Court in Roe held that during the first trimester, the mother’s doctor had the right to terminate the fetus.  During the second trimester, the mother’s doctor had the right to terminate the fetus if the mother’s health outweighed the health of the fetus.  During the third trimester, the state’s interest in the baby prevailed and could only be terminated if there was a substantial risk for the mother’s health.  This right to privacy was “borrowed” from Griswold v. Connecticut under the cloak of substantive due process

However in 1992, the opinion in Roe was “reinterpreted” in Casey v. Planned Parenthood of PA.  In this case the Court did away with the trimester system completely.  The Court opined that the right to privacy was bogus, and the Roe court really wanted to say there was a right to choose.  The government may infringe upon the women’s right to choose unless there is an undue burden on the mother’s right.

Obama, and the majority of pro-death pro-choice advocates, still don’t understand that abortion is no longer a privacy issue.  It kills me to think that he, a Harvard law grad, either doesn’t understand the issue or he doesn’t acknowledge that the right to privacy is a bogus concept.  To tell you the truth, the right to choose is not a right endowed by the Constitution, but don’t get me started.

There will be some Supreme Court Justices who resign in the next 4 years.  We cannot allow Obama, and a Democratic majority in both houses, to appoint and sustain Judges who look beyond the framer’s intent.  Nor can we allow Judges to create law from the bench by creating substantive due process rights.  This is an important issue and I wish the GOP would have begun hammering this issue a year ago.  I hope not all is lost.



Chemerinsky on the Coming Supreme Court

October 7, 2008

Erwin Chemerinsky may be a dyed in the wool lib, but one of his treatises was one of my best friends through law school. His opinion matters:

The issue of judicial appointments is particularly important in this election because there are almost sure to be vacancies on the Supreme Court during the next presidential term. It seems unlikely that Stevens will remain on the court until 2013, when he would be 93. Ginsburg is 75, and there is speculation that she might retire. It also has been widely rumored that David H. Souter wants to retire and go home to New Hampshire.

If McCain gets to replace any of these justices, let alone more than one, there likely will be dramatic changes in many areas of constitutional law. There are almost certainly four votes on the current court — Roberts, Scalia, Thomas and Alito — to overrule Roe vs. Wade and allow the government to prohibit abortion. In light of McCain’s emphatic opposition to abortion rights, he likely would appoint the decisive fifth vote to end constitutional protection of those rights. Obama, by contrast, would almost certainly appoint individuals who would reaffirm Roe.

The disagreements between McCain and Obama about issues of constitutional law extend far beyond just abortion rights. McCain said that the Supreme Court’s decision in June protecting the right of those held as prisoners at Guantanamo Bay to have access to federal court hearings was one of the worst in history. Obama praised it for upholding the rule of law and ensuring compliance with the Constitution. Because it was a 5-4 decision that included Stevens, Souter and Ginsburg in the majority, McCain’s replacing even one of these justices could cause the court to reverse itself.


Moreover, the candidates — especially Obama — seem to want to avoid the underlying constitutional issues. For example, Obama rarely emphasizes his support for abortion rights, being content to say that the goal should be to decrease the number of abortions. Nor does he see political gain in defending affirmative action or the rights of suspected terrorists.

The Court only got back into session in the past few days. Topics of debate stemming from the Court’s jurisprudence will come up either tonight or next week.