politics

[tikiera]

So, a majority of the judges on the Supreme court are Catholic.

The pope has come out stating that those in politics who support abortion, at all, are to be excommunicated.

Yeah, that's going to turn out well.

Comments

[diabhol.livejournal.com]

Technically, judges aren't in politics.

Besides, this isn't news. Catholics have always known this. Thing is, the Pope isn't gonna do any excommunicating himself and neither are any of the American Bishops. It's not Good Business.

[jamesofengland.livejournal.com]

I'm not sure where you get your technical definition of "in politics", but yeah, it's not a big change.
Kennedy is the central vote on the issue and will almost always have 4 justices on either side of him, since abortion is, for the most part, not one of the more complex issues the court faces. He co-wrote Casey, the 1992 case that forms the basis for modern constitutional abortion law. There, and in other cases since, he's been all about a relatively lax "undue burden" test. He's long supported, for instance, the idea that the law should allow laws that limit abortions in the interest of protecting pre-natal life. It seems pretty likely that there'll be a fair few more restrictions permitted over the next few years. It's not likely that there'll be a particularly significant restriction permitted.
Kennedy is Catholic, but he's not likely to pay much attention to the Pope on this matter. He knew church doctrine when he wrote Casey. He knew church doctrine on homosexuality when he wrote Lawrence.
The Pope's words are bad for abortion because they mean that Catholics from the pro-choice wing of their party, like Guiliani and Pelosi, could have more difficulty finding support. For the most part, though, the impact of the words will be felt much more in places where abortion is still hard; the pronouncement was much more closely linked with abortion becoming legal in Mexico City than anything significant in the US. Benedict isn't terribly interested in the US, for the most part.
And yes, Kennedy is incredibly unlikely to be excommunicated. It's an issue that it makes sense to be depressed about, but there's nothing catastrophic coming.

[tikiera.livejournal.com]

It is more likely that some idjit is going to do now that they are positive they have papal backing. And having read the last supreme court decision, I will no longer say that technicallity exists. If the damn decision had more to do with law then "lets protect the poor stupid womjin from the possiblity of _regret_, I could let that slide.

But sadly, in this day in age, supreme court justices are in the game of politics, not law.

Hey, I should be done with my dentist appoint around 4. Wanna pick me up earlier and Elisa, you and I can go walking?

[tikiera.livejournal.com]

Alas, alack, I meant abortion decision, not decision. I am certain they have had decisions since.

[diabhol.livejournal.com]

I'm not sure where you get your technical definition of "in politics",

Let me put it this way: once you're a Supreme Court Justice, you aren't in politics. You've won at politics. :)

[diabhol.livejournal.com]

Trust me, darlin', Catholic Bishops are a lot of things, but they're not idjits.

If you're not gonna believe me, listen to the Brit. I think it's fair to say that anything we essentially agree on can get taken to the bank. :)

[tikiera.livejournal.com]

That still places in you politics. Only you can go neener neener from the top at all the people who would love to displace you but can't.

[diabhol.livejournal.com]

I disagree. Once you've won, the game is over.

[jamesofengland.livejournal.com]

I can see that. There's no need to please anyone when you're in position for life. There's certainly no need for politicking in the field in which they're vitally important. Still, in other fields they're totally politicians. They all have their pet schemes that they try to get promoted. Roberts wants other judges to be paid more. Ginsburg still actively promotes feminist causes. Breyer wants politicians to go on more international junkets. Kennedy wants people to worship Kennedy. All that is stuff that they can't mandate, so they have to go press the flesh, pay account of interest groups, and so on.

[jamesofengland.livejournal.com]

Why would you be concerned? Might the threat bring Scalia or Thomas to the papal view? They're already there. Roberts and Alito haven't made it clear where they stand (just one consolidated abortion case since they were appointed, in which they didn't write opinions). Still, assuming all four are Jerry Falwells in disguise, it is very unlikely that His Holiness is going to be a terribly great influence on Souter, Ginsburg, Stevens or Breyer. It all comes down to Kennedy. Kennedy has written reasonably large amounts about his views on this. He's also been very, very clear that he's not terribly interested in Catholic doctrine.

For what it's worth, the abortion cases aren't very heavy on law, for obvious reasons (although the broad rule that abortion is protected by privacy may be old, the details of the legal principle aren't clear, resulting in each case being relatively fact and hot air heavy, with legal expertise not being terribly necessary). If you're interested in this, Kennedy wrote an opinion in Hodgson v. Minnesota, 497 U.S. 417 (1990) which said that he was happy to require a 48 notice periods and both parents being notified, joined an opinion in Webster v. Reproductive Health Services, 492 U.S. 490 (1989), saying that states could deny funding to abortion clinics and demand testing for viability. He co-wrote the more complex and difficult opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), which said that parental notification was still OK, as were notice periods, but spousal notification was not. It also transformed the basis of constitutional protection of the right to choose and gave the modern rule that regulation was OK if it did not place an "undue burden". Since then cases have argued over what burdens are "undue" because there's no real guidance on what that means. In Stenberg v. Carhart, 530 U.S. 914 (2000) and Gonzales v. Carhart, 550 U.S. ___ (2007) he claimed that bans on partial birth abortion are not undue.

It's not easy to know the details of where he stands, because the man is incapable of writing a legal opinion; of all the SCOTUS justices, he's the most likely to use emotive terms rather than legal ones. In the first Carhart case he suggested that the state's interest was in maintaining the dignity of the medical profession was the basis on which partial birth abortion should be banned. I'm not sure if you know what that means for other regulations, but I'm convinced that I wouldn't want to play an RPG that Kennedy wrote the mechanics for. He is also the justice most inclined to write in emotional detail about the procedures, despite the degree to which the "fetus.. ..dies just as a human adult or child would: It bleeds to death as it is torn from limb from limb" is completely irrelevent. He's not suggesting that there's a constitutional rule that says that they can be killed, but not in a way that is common for humans to die, he's just engaging in emotional masturbation. Likewise, on the other side, he's written in Casey that the reason Abortion should be protected is that "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life". Again, if you can take that legal ruling and apply it to any situation with confidence, you're a better lawyer than I am. It doesn't, incidentally, mean that you can practice Native American spirituality, since Kennedy voted to strike down federal attempts to protect religious peyote use.

[jamesofengland.livejournal.com]

In other words, we're going to be stuck with Kennedy's opinion in all future abortion cases. Kennedy is not interested in the pope's view. Kennedy does believe that there is a woman's right to choose in the constitution. Kennedy has upheld a number of restrictions, but not spousal notification requirements. While Kennedy is writing the opinions, there's really no way that anyone is going to know what the constitutional principles are. It's totally worth reading the opinions themselves if you are interested in the subject, because they don't require much legal knowledge (they require a bit, but it's not too much work to look up the stuff that's confusing on wiki) and because there aren't many of them. If you learn those cases, you basically know as much about abortion law as anyone in the world. With luck, we'll be agreed that Kennedy, whether he's on the right side or the wrong side of any specific case, and he's. often on both, needs to be stabbed, painfully, in the eye, more often (ie. >0).