Abortion, Justice Roberts, Justice Thomas and Stare Decisis

By Rich Kozlovich

On July 1, 2020 Terry Jeffrey posted this piece, Clarence Thomas Versus John Roberts and Good Versus Evil, saying:

Chief Justice John Roberts essentially argued in the opinion he filed in an abortion case this week that his opinion was both right and wrong. Justice Clarence Thomas, meanwhile, offered perfect clarity in his dissenting opinion in the same case, June Medical Services v. Russo. He argued that Roberts and the four liberals with whom Roberts concurred were unreservedly wrong.

The author goes on to show the lack of consistency in Robert's thinking, and understanding of the law, and ends with this statement from Justice Clarence Thomas:

Justice Thomas rebutted Roberts with the truth. "The plurality and The Chief Justice ... conclude that Louisiana's law is unconstitutional under our precedents," Thomas wrote. "But those decisions created the right to abortion out of whole cloth, without a shred of support from the Constitution's text," said Thomas. "Our abortion precedents are grievously wrong and should be overruled," said Thomas.

Jeffery goes on to state:

Precisely. Neither God nor the Constitution created a "right" to kill an unborn child. A group of unjust justices did. John Roberts is now standing on their shoulders and blaming it on stare decisis. Chief Justice John Roberts essentially argued in the opinion he filed in an abortion case this week that his opinion was both right and wrong.

This pattern of flip flopping is common among leftist thinkers, like John Kerry who voted for it before he voted against it.  Always finding ways of perverting right from wrong.

Below are two articles I originally published some time ago.  The first one, Stare Decisis is Like a Street Sign: "Drive Only On the Left!, was on 7/15/18,  and then again on 2/21/19.  Part II was originally published on 5/14/19.  However, with all this interest in Judge Roberts failings, and comments by Judge Clearance Thomas over the Constitutionality of his decision, and commentators defending that decision as "settled law" under the concept of Stare Decisis, I felt it necessary to re-publish both here.

As a side bar: For years everyone kept declaring the Thomas was Scalia's follower.  Don't believe it.  I read his book, My Grandfather's Son, and then I followed his actions on the court over the years and if anyone was following anyone.  Scalia was following Thomas.  He's one of the finest thinkers in America today.

Justice Brett Kavanaugh has been a bit of a disappointment also, but not as bad as Roberts, and I hope that will change.

Please enjoy:

Stare Decisis is Like a Street Sign: "Drive Only On the Left!"

I just read Bastasch’s article, Brett Kavanaugh put a serious damper on EPA power grabs, which gave me more confidence in this man, at least until he ended the article saying this about overturning the Endangerment Finding. He says:

"However, Adler (a professor at Case Western Reserve University School of Law) said it’s unlikely the court overturn Massachusetts v. EPA because of its strong tradition of “stare decisis” — latin for “to stand by things decided.” “It’s one thing to overturn a bad constitutional decision because Congress can’t fix that,” Adler said, though he added a Kennedy-less court could narrow the application of Massachusetts v. EPA. “It’s not going to be overturned,” he said."

For a law professor to say such a thing on such an issue is clearly demonstrating his bias in my opinion, especially since the adoration to "stare decisis" is a one way street for leftists.

I’m not sure how Kavanaugh would vote on a new Endangerment Finding case, but we need to get rid of this idea of “stare decisis” as the deciding factor.

These leftist justices have overturned “stare decisis” over and over again, and have been lauded by the very leftists who claim to adore the concept. Let's try and get this right - "stare decisis" - is not written in stone and the only reason to openly support it as something that’s “sacred” is nothing more than a public relations scam by anyone involved in politics or law. The left only 'adores' the concept if someone supports any of the leftist decisions that overturned "stare decisis" decisions of the past.

Any effort to overturn leftist decisions that have no Constitutional basis other than what's called the "penumbra of the Constitution" is sacrilege to the law and the Constitution according to the left.

"In United States constitutional law, the penumbra includes a group of rights derived, by implication, from other rights explicitly protected in the Bill of Rights. These rights have been identified through a process of "reasoning-by-interpolation", where specific principles are recognized from "general idea" that are explicitly expressed in other constitutional provisions......."

An open ended concept that allows for abuse!

The word penumbra originally was a scientific term "created to describe the shadows that occur during eclipses." And I think the word shadows is more than appropriate when its used in relationship with the Constitution.   The "penumbra" of the Constitution "implies" rights not actually written in the Constitution, and in fact the concept allows for the ability to define, redefine and even ignore the actual and simple language of the Constitution, all of which has been done by the federal judiciary at every level. All in an effort to make the Constitution a "Living Document".

The problem with that is all the "living" changes are determined by the wrong branch of government. The Constitution never gave the federal judiciary to right to "legislate" via some indefinable term that's been adopted by those whose one desire is to destroy the Constitution. The unelected Judiciary have overstepped their Constitutional bounds into the territory the Constitution assigns to the Legislature.

It's always amazing how devoted progressives, socialists, leftists and liberals are to the Constitution, when it's convenient. But in reality, this is the document they've called a dusty old document and many early Progressives like Teddy Roosevelt and Woodrow Wilson considered an "impediment to human progress".  Nothing has changed!  Any concerns they express about devotion to "stare decisis" is strictly politics.

Now, that brings me back to green issues, Kavanaugh and the Supreme Court. Here’s one thing I don’t think many know and I think could be a big factor in deciding any green issue that comes before SCOTUS.

Who was Justice Neil Gorsuch’s mother?

Ann Burford Gorsuch, a one time head of the EPA during the Reagan administration who was eviscerated by the left and the green movement in and out of government, and those she called "pack journalists." I have no doubt about his view of the leftist swamp and their green misanthropic allies.

Will that have an impact on Kavanaugh?    I don't know, except I have no doubt Gorsuch has a much clearer understanding of all these green issues and the people involved than any of the rest.  And I'm confident he has the ability to explain them properly.

As for Breyer, Ginsburg, Kagan and Sotomayor? They're hopeless. They couldn't be convinced day was light or night was dark if it wasn't supportive of some kind of leftist clabber or other.  Not a one of them pass the test of unbiased open mindedness the left demands of Trump's appointments or a rational understanding of what the Constitution really says, often times creating policies that have shattered generations of Americans.

However, they support those who believe the following:

• 58% of Democrats believe in UFOs, but only 32% are proud to be American. Only 37% of Republicans believe in flying saucers, but a full 80% are proud of their country.
• Almost twice as many Democrats are willing to believe in being abducted by space aliens than in their country. Hillary Clinton had promised that if elected, she would find out the truth about the little green men and suggested that the planet had already been visited by aliens. "Maybe we could have, like, a task force to go to Area 51," she suggested.
• The chair of Hillary Clinton’s campaign, John Podesta, an obsessive UFO buff, appeared on an episode of Ancient Aliens which claimed that Hillary Clinton was defeated to suppress the truth about space aliens.
• Democrats are the party least likely to know that the earth revolves around the sun once a year. Only between 48% to 27% of the enlightened supporters of the Party of Science actually knew this.
• 45% of liberals believe in astrology.
• Three-quarters of Democrats believe that thoughts can influence the physical world.
• Over half believe in ghosts.
• Almost a third of Democrats, twice as many as Republicans, believe in “spiritual energy”. 35% of liberals compared to 18% of conservatives are believers.
• A fifth of Democrats fear the “evil eye”.
• If you can name a superstition, knocking on wood, walking under ladders or stepping on a crack, polls show that Democrats are more likely to believe in it.
• Democrats are 60% more likely to fear black cats than Republicans (so much for the anti-racist party)
• 33% more likely to fear the number 13.
• The rational and enlightened elite who want to make all our decisions are also 54% more likely to think that opening an umbrella indoors is bad luck.
• A fifth of Democrats believe it’s unlucky to walk under a ladder.
• Nearly a fifth believe in fortune telling.

But then.......to be on the left is a one way street, and being open minded to the left means being so open your brains fall out.

Stare Decisis is Like a Street Sign: "Drive Only On the Left!" Part II

The Washington Post reported that the Supreme Court’s conservatives overturn precedent. Of course this means liberals are now going to start panicking because they have to wonder which ruling will they overrule next.  The article went on to say:

"The Supreme Court’s conservative majority overturned a 41-year-old precedent Monday, prompting a pointed warning from liberal justices about “which cases the court will overrule next.”

It was a 5/4 decision overruling a 41 year precedent regarding the concept that States had sovereign immunity from other States and whether they could be hauled into court by other States. The 1979 ruling claimed “there is no constitutional right to such immunity."

The article goes on to say:

The “new conservative majority conservative majority overruled that decision, saying there was an implied right in the Constitution that means states “could not be hauled involuntarily before each other’s courts,” in the words of Justice Clarence Thomas, who wrote Monday’s decision. Thomas acknowledged the departure from the legal doctrine of stare decisis, in which courts are to abide by settled law without a compelling reason to overrule the decision.”  But he said the court’s decision four decades ago in Nevada v. Hall “is contrary to our constitutional design and the understanding of sovereign immunity shared by the states that ratified the Constitution. Stare decisis does not compel continued adherence to this erroneous precedent.”

Justice Breyer claimed it was “dangerous” for the court to change the rules with just five justices in agreement. Breyer believes “Stare decisis requires us to follow Hall, not overrule it,” In short, stare decisis should hold no matter how flimsy the grounds were for the original decision, or how radical was the design of the Court at that time. Breyer worried: “Today’s decision can only cause one to wonder which cases the court will overrule next.”

Dangerous!  Really?  To whom?  There is a compelling reason for overturning these kinds of rulings and that is the continued destructive direction the federal government and the federal judiciary have taken that have consistently eroded what was clearly understood as state's rights from the founding of the Constitution.

The fact some things weren't spelled out was because some things were clearly understood by the founders, the States and society as a whole, and it never occurred to them it had to be spelled out.

Abortion became a right because the Supreme Court found a right of privacy in the "penumbra of the Constitution" that allows mothers to murder their unborn innocent children.  That never appears in the Constitution, or can anyone demonstrate how it's implied in the Constitution through the practice of time, and this is a "right" the Founders would have been aghast at.  If you read the Constitution you will find there is no section defined as the "penumbra".  We'll come back to that.

In my February 21, 2019 article, Stare Decisis is Like a Street Sign: "Drive Only On the Left!",;I stated:

These leftist justices have overturned “stare decisis” over and over again, and have been lauded by the very leftists who claim to adore the concept. Let's try and get this right - "stare decisis" - is not written in stone and the only reason to openly support it as something that’s “sacred” is nothing more than a public relations scam by anyone involved in politics or law. The left only 'adores' the concept if someone supports any of the leftist decisions that overturned "stare decisis" decisions of the past.

But I have to think Judge Thomas’ view has logic and history on his side when he says:

“the states’ sovereign immunity is a historically rooted principle embedded in the text and structure of the Constitution.”

Although isn’t directly addressed in the Constitution it certainly is implied. He says:

“there are many other constitutional doctrines that are not spelled out in the Constitution but are nevertheless implicit in its structure and supported by historical practice.”

Leftist judges have been overturning rulings and understandings that stood for decades.  All done without a whisper of concern about precedent, especially the precedents established by history and practice for over 150 years. They have twisted the plain language of the Constitution to create rights that were never stated in the Constitution, claiming these rights were "implied" by the "penumbra" of the Constitution.

I went on to say in my article:

"Any effort to overturn leftist decisions that have no Constitutional basis other than what's called the "penumbra of the Constitution" is sacrilege to the law and the Constitution according to the left."  

"In United States constitutional law, the penumbra includes a group of rights derived, by implication, from other rights explicitly protected in the Bill of Rights. These rights have been identified through a process of "reasoning-by-interpolation", where specific principles are recognized from "general idea" that are explicitly expressed in other constitutional provisions......."

"An open ended concept that allows for abuse!"

It's time for those abuses to be overturned.