When Justices Lie

With the leaked draft of the pending Supreme Court decision, apparently to overturn a woman’s right to abortion as established in Roe v. Wade, has come another not totally unexpected surprise. In their meetings before their confirmation hearings, both Justice Gorsuch and Justice Kavanaugh told Senator Susan Collins of Maine that Roe v. Wade was “settled law.”

In essence, they both lied to get confirmed.

Chief Justice Roberts is incensed that the draft opinion was leaked.

He ought to be even more incensed that the two newest justices blatantly lied to get confirmed.

Now, admittedly, Senator Collins was a fool to believe either, especially Neil Gorsuch, whose views on abortion were well known long before he was even considered for the Supreme Court, but the fact that they both blatantly lied speaks volumes about the far right.

We all know that too many politicians lie or mislead to get votes in the hope of getting elected. That’s nothing new. But one could hope for more from a potential appointee to the nation’s highest court. These two didn’t even have the decency to say, “My record speaks for itself.” Instead they, in effect, made a promise they had no intention of honoring.

Personally, I have a real problem with so-called idealists who will compromise every principle they supposedly hold dear in order to be able to impose, very selectively, their principles on others. But this is and continues to be the hallmark of supposed “conservatives,” who are in fact not conservatives, but religious zealots trying to impose church upon state.

The far right effectively espouses the right to shoot other people under certain circumstances, but they won’t allow a woman the right to decide what goes on with her own body. At least, the far left will let you go to hell in your own handbasket, even if they’ll overcharge you for using the handbasket.

20 thoughts on “When Justices Lie”

  1. KTL says:

    I had to laugh at the handbasket quip at the end LEM. Yes, I think they may overcharge for the handbasket but they won’t refuse to sell you one for being gay. 🙂

    As for your SCOTUS observations, I would quite agree. I recall that Don McGahn was the one who ‘shepherded’ Kavanaugh through the nomination process. I’m not sure if he also did the same for Gorsuch. I’m wondering if part of that ‘sheperding’ is teaching the candidate how to dissemble without outright lying in front of the camera. That, of course, says nothing about the closed door discussions with each interested Senator.

    Yes, one would expect the highes degree of ethical behavior from a potential Supreme Court justice. Sadly, that’s not what we’re getting.

    I like beer!!!!

  2. Sam says:

    This isn’t my area of expertise and I’m an outsider looking in – being Australian – but I’ve seen some comments from people who claim to be pro-choice that they believe the original Roe v Wade ruling was questionable. As such in the intervening decades pro-choice politicians should have made efforts to pass federal legislation guaranteeing rights to abortion but never did.

    I’m not a lawyer an I’m curious as to how accurate you believe that position is. As an outsider it often seems like interpretations of the law by judges in their rulings are stretched to serve whatever their political or ideological biases might be. Sometimes to the point of absurdity.

    1. I’m not a lawyer, either, but I worked with lawyers, laws, and regulations for years. I know more than a few lawyers who share the view that the legal basis of Roe v. Wade is shaky. Personally, I would have crafted that decision on the basis of equal rights.

      1. Sam says:

        Given the seemingly legitimate doubts about the legal validity of Roe v. Wade isn’t it somewhat problematic that both Kavanaugh and Gorsuch felt the need to lie in order to be granted their positions on the Supreme Court? As Supreme Court Justices shouldn’t their duty be to uphold the law to the best of their ability? Assuming that overturning Roe v. Wade is a legitimate and appropriate decision under the law then wouldn’t they be failing in their duty by not doing so?

        The fact that they lied is problematic although they could simply argue they changed their minds and so won’t likely face any legal consequences. However a Supreme Court candidate being required to pre-emptively declare how they will rule on issues in future feels like an issue in and of itself. If they are bound by those statements then it precludes them from giving cases a fair hearing by listening to and carefully considering legal arguments presented. After all there decision is already made.

        1. The problem with relying exclusively on legal reasoning is that it’s not always just. Slavery was once legal. Women couldn’t vote. Women at one point couldn’t own property or have credit cards in their own names. Alito’s argument relies on the lack of language in the Constitution dealing with women as individuals with their own legal rights[ because they didn’t have rights when it was drafted], and ignores the changes in legislation and case law since the Constitution. Taken to the extreme, he’s arguing that anything given by law can’t be supported unless the Constitution is amended. That strikes me as extreme.

          1. KTL says:

            Mr. Modesitt,

            I’d agree with that wholeheartedly. The problem as I see it is that the justices fashion themselves as expert historians when they wish to present an originalist position. The problem is that they are NOT historians. This was really evident when they twisted themselves in knots to justify their decisions around gun rights in recent years – as if modern weaponry and the need for it was at all similar to the times of the framers (or even envisioned back then).

            To that point, please have a read of this article from Slate today regarding the knowledge distributed around herbal abortifacients of the time, by none other than Ben Franklin.

            https://slate.com/news-and-politics/2022/05/ben-franklin-american-instructor-textbook-abortion-recipe.html

            I suppose Alito missed this?

  3. Darcherd says:

    As an American, I’ve always been a bit diffident about the imputed “right to privacy” discovered in a mysteriously unwritten state in the U.S. Constitution in order to justify the Roe v. Wade decision. Don’t get me wrong; I don’t have any major issue with abortion prior to a fetus’s viability outside the womb. I think that makes a perfectly defensible crossover point where the rights of the unborn child supersede the rights of a woman to determine what happens with her body. I’ve just never thought that those rights were ever enshrined in the constitution and that it would have been far better to have passed either a constitutional amendment to address it or federal legislation.
    The upshot of leaving abortion law up to the individual states is that in those states where it will now be essentially illegal, the situation will revert to the “good ol’ days” when wealthy women could get abortion on demand and poor women would either be forced to carry unwanted children to term or risk dangerous and illegal non-medical abortions. But oppressing the poor in favor of the rich does seem to be a common thread in right-wing politics in this country.

  4. Pathetic says:

    That the US is relying on the Roe v Wade ruling should be an embarrassment to every thinking American. That Congress and the Senate cannot come to a compromise on a sensible abortion law shows how dysfunctional they are.

    Even the Republic of Ireland, widely mocked throughout Europe for being so Catholic they couldn’t even permit contraception, managed to get a proper abortion act through its 2 houses of Parliament (Oireachtas). Yes, even the country where every sperm is sacred, could get the job done.

    It really is time for the US to stop excusing the dysfunction of its legislative body which is only able to agree to send more money to its arms manufacturers risking World War 3.

  5. Tom says:

    While the furor over abortion is appropriate, the matter of lying is in my view more problematic for us humans.

    Psychology research has apparently shown that lying can generally erode trust in between people and thus in society. Lying is bad because a generally truthful world is a good thing: lying diminishes trust between human beings: if people generally didn’t tell the truth, life would become very difficult, as nobody could be trusted and nothing you heard or read could be trusted – you would have to find everything out for yourself. But how?

    Honesty and truthfulness are not the same thing. Being honest means not telling lies. Being truthful means actively making known all the full truth of a matter. Lawyers must be honest, but they do not have to be truthful.

    A lie is a legal nothing. A lie runs the risk of becoming fraud if one expects the listener to act on the lie.

    Maybe … a quick impeachment and replacement is in order for us in the US …?

    1. Lourain says:

      With the political climate what it is, any ‘lies’ will disappear into the void (according to a particular political party).
      I had a little Shetland Sheepdog that I took to a herding clinic. She wouldn’t even look at the sheep. If she didn’t see them she didn’t have to do anything about them!

  6. R. Hamilton says:

    “religious zealots trying to impose church upon state” – there are atheists and agnostics that are also vehemently anti-abortion. See l4l.org (Libertarians for Life) which makes pro-life arguments without resort to religion. But my own simple version is that it is incredibly dangerous to fail to err on the side of what is human, as can be shown by the profitable trade in fetal tissue. Even those who support some limited right to abortion (before viability, perhaps…except viability is a moving target as technology improves) might not be comfortable with the idea of abortion providers profiting in that manner.

    “settled law” – feel good phrase that means very little. Precedent is not law. The Supreme Court can overturn its own precedents, and should be able to. The most it may mean IMO, is that it would take a case that presented Constitutional arguments that hadn’t come up before, in which case the Court would have a duty to reconsider in light of balancing different factors. So maybe it means they waited for a case that gave that cover to act, rather than acting on anything at all – not going out of their way to be activist, perhaps. But a reckoning was going to happen eventually, unless left-wing pro-death ideologues held the Court forever. Even before the current conservative justices were appointed, it was I think generally understood that Roe V Wade would not last forever.

    Abortion is ALWAYS legitimate AS SELF-DEFENSE, when the life of the woman is at risk significantly higher than in a normal pregnancy…or when the fetus was dead anyway – assuming lower risk that way than carrying it to term; those are medical and not policy issues.

    But abortion as birth control, WHY? You don’t want a bun in the oven, don’t boink, or make the guy use a condom, or use an IUD or the pill or patch or implant or a female condom, or even the morning-after pill, widely available (and unlike RU486, NOT a form of abortion unless one is so squeamish that the possibility of interfering with implantation is unacceptable). Execute convicted rapists (along with all other violent felons), which enforces the right to say “no”. (and yes, people are performing a public service if they shoot and kill a burglar or someone that puts them or another under their protection in imminent fear of their life, provided they’re careful not to harm anyone else; every dead criminal is one less future recidivist)

    Abortion as birth control is simply and ONLY trying to escape the consequences of one’s actions and/or inactions. Even if a blob is only a specific POTENTIAL person, that’s still shifting the consequences and not escaping them, not even counting that there are ample stories of those who regretted or at least had persistent second thoughts about having had an elective abortion, and occasional cases of physical complications as well.

    There’s already the option widely available to drop off an unwanted newborn at any hospital (or even fire station in some jurisdictions) without question. And even most libertarians would not necessarily object to compensation for medical care and lost work for those pregnant due to rape or incest – in fact, I encountered that very proposal years ago on a libertarian site.

    Last but not least, NATURE IS NOT EQUAL, and there is a point beyond which it becomes absurdity to regard that as a defect to be corrected. In most respects, men and women and persons in general (which if government can’t be metaphysical and say a blob is a human, they it also can’t legitimately say that a blob is NOT a human, leaving the just default to err on the side of human) should be equal before the law. In situations that specifically pertain to characteristics of male or female, that’s not so clear – even in performance (as the current controversy over trans women in sports shows) let alone in the function that some portion of the populace must engage in to continue the species. The biological father does not bear an equal physical burden at all, his physical role is done in 30 seconds or maybe half an hour if he’s considerate, but his RESPONSIBILITY is equal – and men should be held on the hook to ABSOLUTELY comply with consent, and to provide whatever is necessary as an ALTERNATIVE to abortion to mitigate the consequences if through their carelessness, unwanted pregnancy resulted.

    That’s why I say execute convicted rapists, and for that matter, enforce child support aggressively. Those are legitimate ways to equalize, WITHIN the physical limits, the burden. Maybe-it’s-murder-maybe-it-isn’t is NOT JUSTICE, it’s not even equal, it can’t be, because male and female ARE NOT THE SAME.

    But again, IF there are new Constitutional considerations, then the Court is doing its LEGITIMATE duty in being open to overturning precedent.

    If things go as the leaked draft suggests, it would not be unreasonable to (a) consolidate information and assistance on all alternatives to abortion and make them widely available (there are voluntary pro-life groups that do assist with some of the alternatives, but most don’t believe in all of the alternatives), and (b) ensure that the self-defense issue would not be violated by the states. That would be a lot more productive than calling out Antifa to “peacefully” riot, loot, and burn.

    1. While I agree with your point about “settled law,” my point was that both Gorsuch and Kavanaugh used that term to lie or mislead, and that’s a very different issue.

      1. KTL says:

        Mr. Modesitt,

        I’ll add one final bit of information to this contentious discussion with some news just published in HuffPo

        https://www.huffpost.com/entry/mitch-mcconnell-national-abortion-ban-possible-roe-v-wade_n_62772e80e4b0b7c8f0851155

        And there you have it. McConnell is saying the quiet part out loud now. A national ban is coming for abortion should the Republicans take the Legislature and White House. They will blow through the filibuster for this issue, for sure.

        Think about the enormity of change that would come to this country in such a short amount of time based on the written opinion leveraged by just one Justice.

        And I think all of us should be very hesitant to believe his draft opinion would be ring fenced only to the issue of abortion. It is written so poorly that it will be the launching point for attacks on other privacy concerns. Concerns that people contributing to this blog take for granted, perhaps? Maybe that search history you have on that laptop or phone is something that would be considered unacceptable in the future? Remember, digital feet are like dinosaur fossils.

  7. Mayhem says:

    Abortion reform is a red herring for patriarchal keeping women under control, and deeply enmeshed with the underlying issue of white supremacy. Heck, the last traces of coverture in law lasted late into the 90s.

    If the zealots in the US were actually interested in human life, they would have far more policies around what to do with unwanted children and social care. Instead they argue the life is sacrosanct until it’s born, then it becomes someone else’s problem.

    By comparison under Jewish law, the life of the mother is paramount. Explicitly in scripture, until the baby is actually born it is not considered a person. The moment it is, it gets rights, up until then it is considered part of the mother and is part of any and all rights attributed to her. Hence why forcing miscarriage incurs a monetary penalty as an injury suit for loss of possessions, whereas causing the mother actual “harm” is a capital offence.

    1. R. Hamilton says:

      While I do not believe in large scale long term government assistance to any except those injured in the line of duty in public service, I think there ARE “policies around what to do with unwanted children and social care”. I think that most are PRIVATE (as IMO they should be). But surprise, surprise, the state perhaps most under the spotlight for attempting to restrict abortion also created a program to provide support as an alternative:
      https://www.hhs.texas.gov/services/health/women-children/alternatives-abortion

      At the STATE level, I can’t really complain about it; the Constitution doesn’t forbid socialism there, but only forbids it (not being an enumerated power, everything but those powers and what’s needed to implement them is forbidden by default to the federal government) at the federal level (which is why with a wink and a nod, various federal social programs have state involvement).

      But as an alternative, respecting the notion that the states are NOT supposed to be identical but rather each experiments in different flavors of democracy (within some common limits) according to their residents, I would like to see at least a few states go full-on libertarian, and have as much as possible that people thought they needed done by private volunteers, from fire department (there are a lot of VFD’s in various states!) to any sort of assistance people needed. Since as a species we’re wired to think that kids are cute (so we don’t let them die, with exceptions like unwanted girls in China) at least until they turn into teenage monsters attempting to assert themselves, I doubt there would be a severe shortage of assistance available to the young needy in such an arrangement, esp. with government NOT sucking up crazy amounts of resources and imposing rules that often have unintended (to give the benefit of the doubt that failure is not a scheme to pursue absolute power) consequences.

  8. Mayhem says:

    There’s a reason behind that – the Texas adoption program is designed around a steady income stream from the federal government. Wink. Nod.

    https://imprintnews.org/featured/bigger-in-texas-adoptions-and-parents-who-lose-their-rights/30990

    Add in a regular supply of unwanted newborns, and I’m sure they’ll get even more funding. The Federal Government wouldn’t want to be accused of letting newborns die after all. Even better, make it private so some unscrupulous individuals can make even more profit off human misery instead of the funds going into state coffers. Hey, it works for the privatised prison systems and their slave labour camps sorry company towns sorry rehabilitation centres.

    By the way nothing in the constitution forbids any form of social assistance, it just requires that it be democratically agreed upon through your methods of representative democracy, whatever they might be.

    But then, the libertarian arguments always fall flat when looked at closely. It’s a philosophy of selfishness above all, combined with the idea that enough money will buy your way out of consequences.

    1. R. Hamilton says:

      “By the way nothing in the constitution forbids any form of social assistance”

      9th Amendment:
      The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

      (in other words, rights are not limited to those enumerated in the Constitution…which doesn’t make everything a right, but it does make the default that something is a right if not explicitly forbidden)

      10th Amendment:
      The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

      (in other words, FEDERAL powers ARE limited to those enumerated in the Constitution, and those clearly required to implement them; and no, the preamble does NOT enumerate powers) This is why federal social programs tend to be run via the states, to pretend to remain within federal enumerated powers.

      No, libertarian is NOT ABOUT SELFISHNESS. One could be a libertarian and VOLUNTARILY give more than one pays in taxes; I’m not strictly a libertarian (I’m closer to a bloodthirsty neocon from the borders outward, but with some limits; we do tend to vastly underestimate costs in blood and treasure, and one sometimes has to wonder about who profits from conflict), but I have certainly given more (with no legal obligation to do so) than I paid in taxes (without loopholes, and usually without deducting it) in more than a few years, not through any plan to do so, but simply because I thought it necessary – some to individuals, some to the more efficient charities dealing with certain disasters. So don’t even give me the selfishness argument, I’ve practiced to the contrary myself, and I cannot possibly be the only one.

      I see a false dichotomy here, of those who propose that anything other than a safety net that must cover everyone, is selfishness. Bull. Outcomes are foremost the responsibility of those who need or desire them, and then to those close to them, then to volunteers wishing to reach beyond acquaintances, but not at all to the entirety of a society or species. If we can’t muster enough INDIVIDUAL charity to preserve the society and species without compulsory means (which does not imply assured best outcomes for all!), we’ll end up extinct and good riddance to us. But government programs steal liberty even more than property, and to those who propose them, that’s frequently the point, even if their supporters don’t realize that. ALL POWER IS EVIL; some is a necessary evil, but only the least necessary to prevent chaos; the rest is just plain evil.

  9. Tom says:

    History 101: do welearn?

    “In 1919, the Eighteenth Amendment to the U.S. Constitution went into effect.”

    “The repeal of Prohibition (1933) didn’t reverse the Depression, as some of the most optimistic wets predicted. But it did fund much of the New Deal, with alcohol and other excise taxes bringing in $1.35 billion, nearly half the federal government’s total revenue, in 1934.”

    So: Prohibition produced some interesting statistics concerning the health of Americans.
    Deaths caused by cirrhosis of the liver in men dropped to 10.7 men per 100,000 from 29.5 men per 100,000 from 1911 to 1929.

    On the other hand, adulterated or contaminated liquor contributed to more than 50,000 deaths and many cases of blindness and paralysis. It’s pretty safe to say this wouldn’t have happened in a country where liquor production was monitored and regulated.

    Alcohol consumption during Prohibition declined between 30 and 50 percent.
    Conversely, by the end of the 1920s there were more alcoholics and illegal drinking establishments than before Prohibition.

    Statistics for illegal activity of any kind are usually erroneously underestimated but before Roe about 200 women per year died from illegal (usually self-induced) abortions. During the period from 1998–2010, of approximately 16.1 million abortion procedures, 108 women died, for a mortality rate of 0.7 deaths per 100,000 procedures overall … (Obstet Gynecol. 2015 Aug; 126(2): 258–265.).

    Given the male attitude towards females, not only in the US but world-wide, one wonders what post-reversal of ‘Roe versus Wade’ statistics will show in the US.

  10. Hanneke says:

    I found this blog about bodily autonomy made an interesting point:
    https://www.jimchines.com/2022/05/thoughts-on-blood-donation-and-bodily-autonomy/

    The legal precedents there appear to be very clear: no one can be forced to donate blood, or bone marrow, or other organs, under any circumstances – a person’s right to bodily autonomy trumps another person’s right to life.
    Why is that not considered clear precedence in this one specific case that only impacts women?

    And why is restricting women’s rights over their own bodies considered a good solution to unwanted pregnancies, but any measures that are known to lessen the chance of an unwanted pregnancy arising are outright blocked or a big problem to get implemented (early comprehensive sex education and cheap universal availability of anticonceptives and condoms are the most urgent, and after that readily accessible free or nearly-free clinics for reproductive advice and healthcare, that aren’t legally obliged to inform a teenager’s parents if they ask for contraceptives or a test for sexually-transmitted diseases).
    These are measures that are *known to work*, and don’t cause other health issues such as dangerous illegal abortions.
    Is it because they might diminish the constant replenishment of poor, badly educated and desperate people to be exploited?

    1. Tom says:

      Good points.

Leave a Reply

Your email address will not be published.