Roe v. Wade overturned in 1992

[Elektronaut]

Jackson, I suggest that Scalia and Thomas saying 'Well, if someone would be prepared to argue against national abortion restrictions on a very restrictive reading of the Commerce Clause, then...' is an example of them trolling the Libs as much as anything else. It's not a serious guide to how they would rule on national abortion laws.

And yes, I already said that under the O'Connor court there wouldn't be a chance of very sweeping national restrictions being sustained. (Nor, I think, the political opportunity to even enact such)

But here is the authentic voice of Scalia, Thomas and Alito when it comes to Congressional power, when it's doing things they approve of:

United States v. Windsor - Wikipedia

en.wikipedia.org

"This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today's opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation."

This would be the line of originalism on national abortion restrictions in this ATL, I submit.

 

[Vidal]

Not so sure about Pennsylvania. Specter was pro-choice.

Fair, but Specter featured prominently in the Thomas hearings, and a lot of people will associate Thomas as the decisive vote. Of course, knowing what we know, Kennedy was the swing vote who would prove decisive, but Thomas is replacing Thurgood Marshall -- a liberal vote who would never have voted to gut Roe.

 

[Ricardolindo]

Jackson, I suggest that Scalia and Thomas saying 'Well, if someone would be prepared to argue against national abortion restrictions on a very restrictive reading of the Commerce Clause, then...' is an example of them trolling the Libs as much as anything else. It's not a serious guide to how they would rule on national abortion laws.

And yes, I already said that under the O'Connor court there wouldn't be a chance of very sweeping national restrictions being sustained. (Nor, I think, the political opportunity to even enact such)

But here is the authentic voice of Scalia, Thomas and Alito when it comes to Congressional power, when it's doing things they approve of:

United States v. Windsor - Wikipedia

en.wikipedia.org

"This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today's opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation."

This would be the line of originalism on national abortion restrictions in this ATL, I submit.

In Gonzales v. Raich, Scalia broke with his legal principles while Rehnquist, O'Connor and Thomas stood by their legal principles.

 

[Jackson Lennock]

DOMA was about a section of the tax code, and what marriages the IRS (the Federal Government) would recognize for the sake of an estate tax exemption. The provision was struck down under substantive due process grounds, which is a legal theory originalist don't believe in. That's very very different from a Commerce Clause based Federalism challenge.

Gonzales v. Raich, Scalia is peculiar because he himself had said that had he been on the court in the 1930s he'd have been ruling with the three musketeers in the economic cases. Scalia was more skeptical of judicial limits on federal regulatory authority where you couldn't draw what he considered a fairly clear line than his conservative colleagues were (see Chevron Deference, Employment Division v. Smith, etc.)


From here:
There is no question that Justice Scalia would agree with Justice Black's view of the scope of federal power under the Commerce Clause. Justice Scalia has even admitted that had he been on the Court in the 1930s, he would have sided with those justices, including Justice Black, who voted to uphold the constitutionality of progressive economic and social measures enacted by the Congress pursuant to its Commerce Clause power. (citing from 8 Dan Izenberg, Clinging to the Constitution, JERUSALEM PosT, Feb. 19, 1990 (quoting Justice Scalia).)

 

[Ricardolindo]

DOMA was about a section of the tax code, and what marriages the IRS (the Federal Government) would recognize for the sake of an estate tax exemption. The provision was struck down under substantive due process grounds, which is a legal theory originalist don't believe in. That's very very different from a Commerce Clause based Federalism challenge.

Gonzales v. Raich, Scalia is peculiar because he himself had said that had he been on the court in the 1930s he'd have been ruling with the three musketeers in the economic cases. Scalia was more skeptical of judicial limits on federal regulatory authority where you couldn't draw what he considered a fairly clear line than his conservative colleagues were (see Chevron Deference, Employment Division v. Smith, etc.)


From here:
There is no question that Justice Scalia would agree with Justice Black's view of the scope of federal power under the Commerce Clause. Justice Scalia has even admitted that had he been on the Court in the 1930s, he would have sided with those justices, including Justice Black, who voted to uphold the constitutionality of progressive economic and social measures enacted by the Congress pursuant to its Commerce Clause power. (citing from 8 Dan Izenberg, Clinging to the Constitution, JERUSALEM PosT, Feb. 19, 1990 (quoting Justice Scalia).)

I am inclined to think Scalia's vote in Gonzales v. Raich was simply because the case was about cannabis, though.

 

[Jackson Lennock]

I am inclined to think Scalia's vote in Gonzales v. Raich was simply because the case was about cannabis, though.

It could be. There's long been a perceived 'drug war distortion' of American law where Justices seem to behave inconsistently around that subject. You could sort of point to the same thing in Employment Division v. Smith, but that was the 5 conservatives limiting religious protections over the loud dissent of the 4 liberals (what a crazy thing to think about) because the adopted standard was in many ways less discretionary.

The counterpoint would be Kyllo v United States where Scalia, writing for 5 Justices (Scalia, Thomas, Ginsburg, Souter, and Breyer) said police couldn't use thermal imaging to spy on your house to look for marijuana without a warrant. Scalia was heterodox and often liberal-leaning on Criminal Procedure issues though.

This is a long way of saying, it's possible that Scalia was acting in bad faith but you could fairly argue to the contrary as well.

 

[Ricardolindo]

It could be. There's long been a perceived 'drug war distortion' of American law where Justices seem to behave inconsistently around that subject. You could sort of point to the same thing in Employment Division v. Smith, but that was the 5 conservatives limiting religious protections over the loud dissent of the 4 liberals (what a crazy thing to think about) because the adopted standard was in many ways less discretionary.

The counterpoint would be Kyllo v United States where Scalia, writing for 5 Justices (Scalia, Thomas, Ginsburg, Souter, and Breyer) said police couldn't use thermal imaging to spy on your house to look for marijuana without a warrant. Scalia was heterodox and often liberal-leaning on Criminal Procedure issues though.

This is a long way of saying, it's possible that Scalia was acting in bad faith but you could fairly argue to the contrary as well.

Employment Division v. Smith was actually a 6-3 decision. Stevens joined the conservatives.