In her reaction to Monday night’s SCOTUS leak, “The View” co-host Joy Behar set her willful ignorance on display in expressing fears of “fascism down the line” and suggesting “they’ll go after gay marriage” and reinstitute racial segregation, all while smearing a third of the Supreme Court Justices as liars.
After she heard about Justice Samuel Alito’s majority draft opinion on Dobbs v. Jackson Women’s Health Organization that would overturn the 1973 decision of Roe v. Wade, Behar announced, “I couldn’t go back to sleep. It’s that devastating.” What the decision ultimately means is a return of authority back to the states to make their own laws regarding an issue that is not covered in the Constitution, as set forth by the Tenth Amendment.
What the decision does not represent is an act of a rogue judiciary making declarations as the talk show host seemed to portray.
“It sounds to me that all of them felt that there was precedent set, and that they would honor the precedent. And now it’s the complete opposite that’s happening, not that I’m surprised. You and I were talking before, we’re not surprised. We saw this coming,” Behar told her cohosts.
“My worry,” Behar went on, demonstrating that she had not read the draft, “is that this is just the beginning, next they’ll go after gay marriage and maybe, maybe the board, the, what is it Brown versus Board of Education. They already eroded our voting rights a little bit. So, I see fascism down the line here.”
In her setup, clips were played from the Senate confirmation hearings for Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett where they each affirmed that Roe was precedent. The legal framework of their arguments led Behar to react with confusion and dismissal, “Heh? Whatever.”
“During those hearings, all these people that are voting to overturn this lied. Didn’t they lie?” she argued ahead of the snippets that were pulled from hours of sworn testimony.
For one, if Behar had actually reviewed the opinion, she would see that Alito addressed that precedents get overturned and that Brown v. Board of Education had done exactly that in overturning Plessy v. Ferguson, “Some of our most important constitutional decisions have overruled prior precedents. We mention three. In Brown v. Board of Education, the Court repudiated the ‘separate but equal’ doctrine, which had allowed States to maintain segregated schools and other facilities.”
“In so doing, the Court overruled the infamous decision in Plessy v. Ferguson…along with six other Supreme Court precedents that had applied the separate-but-equal rule,” Alito added.
“On many other occasions, this Court has overruled important constitutional decisions…Without these decisions,” he went on, “American constitutional law as we know it would be unrecognizable, and this would be a different country.”
Furthermore, he stipulated, “No Justice of this Court has ever argued that the Court should never overrule a constitutional decision, but overruling a precedent is a serious matter.”
Additionally, had Behar looked at more than one excerpt from the hearings, she would have found the Justices consistently argue that they do not make law from the bench. They merely apply the law to the cases set before them.
— CSPAN (@cspan) March 21, 2017
Precedent, Gorsuch explained, “adds to the determinacy of law. We have lots of tools that allow us to narrow the realm of admissible dispute between parties…It’s part of the reason why the rule of law in this country works so well. We have statutes. We have rules. We have a fact-finding process in a judicial system that’s the envy of the world.”
“And precedent is a key part of that because…once a case is settled, that adds to the determinacy of the law,” Gorsuch continued. “What was once a hotly contested issue is no longer a hotly contested issue. We move forward.”
When asked by Sen. Diane Feinstein (D-Calif.) if he viewed Roe as having super-precedent, the Justice replied, “it has been reaffirmed many times. I can say that.”
This is not, by any means, a contradiction to the snippet played by Behar where Sen. Dick Durbin (D-Ill.) questioned Gorsuch.
“The Supreme Court of the United States has held in Roe v. Wade that a fetus is not a person for purposes of the 14th Amendment, and the book explains that.” When Durbin asked, Gorsuch accepted and answered, “That’s the law of the land, I accept the law of the land Senator, yes.”
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