Is the Supreme Court resorting to a 17th century legal rationale in SCOTUS cases?

CMS Butler points out in her article on Wednesday that “The justices are applying a logic that undermines the very foundations of the Constitution.” In his comments on Roe, Justice Breyer describes the vote…

Is the Supreme Court resorting to a 17th century legal rationale in SCOTUS cases?

CMS Butler points out in her article on Wednesday that “The justices are applying a logic that undermines the very foundations of the Constitution.” In his comments on Roe, Justice Breyer describes the vote on Roe as a “tragedy” and calls Roe’s strength as applying “minor principles of separation of powers as well as textualism” in explaining Roe’s plurality holding on privacy.

I, along with others in the law, will no doubt read Breyer’s comment in light of Justice Scalia’s remarkable comments in Justice Alito’s concurrence in Garnett that “the Court’s ‘originalism’ and ‘textualism’ do not generally connote anything beyond conservative continuity with original meaning,” and Judge Judy’s comment on the court’s questions in Perry v. Schwarzenegger where Judge Judy asks “What evidence is there in public court records that Roe was decided on any rational grounds other than on certain anti-abortion rights leaning political concerns?”

The Supreme Court has recently moved from the Supreme Court analogy: Planned Parenthood v. Casey where it established the right to privacy, to the Court analogy (just not in Roe) where Roe established the right to abortion but now courts are “quoting (applying) Gilbert’s logic… as a valid way to reach constitutional conclusions.”

Chief Justice Roberts appears to understand (beyond this weekend’s letter) the weight of Gilbert’s argument, commenting on oral argument in Perry v. Schwarzenegger: “Petitioner’s counsel commented that the Court’s holding in [Roe v. Wade] has never been, to the best of his knowledge, set aside, based upon any authentic, verifiable evidence.” If the main thrust of the Court was that Roe was based on originalism, one might expect that some real-world evidence, including the in-person testimony of doctors at the time of the decision, would be admissible as evidence of “a true statutory authority.”

Justices Scalia and Thomas have raised this question, as well as their own questions from [Roe v. Wade], in recent questioning in case law. The right to be heard raises the important question of historical precedent as well as legislative intent. Justice Sotomayor has noted that although the court is “dealing with large spaces of history, but moving through in real time…you need to have a proper deference to history.”

Justice O’Connor recently noted:

“A majority of Americans disagree with the [Roe v. Wade] court majority, and still debate the right to abortion, even today. I hope you will join me in looking forward, not back, to a time when we can hear all sides, hear the oral argument, and have a fair debate about our views.”

Justice Breyer called on the court to recognize that the public “offers sound arguments for itself…” in support of opposing legal positions. Justice Scalia has suggested that “There is great respect for the tradition…And if a majority says something is right, and I’m still objecting to it, it seems to me this is pretty irrational…I hope you’ll do a constitutional debate on that.”

Justice Breyer didn’t give a solution to this problem, but he did call for a change to precedent-keeping and concluded his oped with the following:

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