that was the first error that I think deserves to be mentioned in this context--the error apparent in the fact that the Supreme Court ignored the fact that the plaintiffs before the Court lacked standing. They just glossed over this issue. Why? Well, because it involves abortion, and I guess abortion is different. The explanation provided by the plurality and by the Chief Justice-- understanding that in order to form a majority, sometimes you have to cobble together a concurring opinion with a plurality opinion, and that is what happened here. Their analysis on the standing issue in this case simply doesn't wash. It doesn't add up. In fact, I believe it defies what every first- year law student is taught in American law schools. It doesn't work. Secondly, this draws attention to another problem with the Court's jurisprudence in this area. When abortion is treated differently than other things, it leads to a fair amount of tail-chasing by the Court because the Court has stepped in--starting with Roe v. Wade and continuing with Casey and the other cases since then on this topic--the Court has stepped in essentially as a superlegislative body, and it has attempted to set out a rule saying that you can't undermine what the Court has declared to be a right to access abortion. So let's set aside, for a moment, that question of what we would be looking at if we were dealing with a law prohibiting abortion, but this isn't that.…
On the recordJune 30, 2020
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