What makes anyone think Roe v. Wade will be overturned?

Plessy was BS, Fenian. The difference is that Plessy didn't establish segregation--the way Brown vs. Board of Ed. or Griswold or Roe v. Wade established things that weren't already in place by legislative enactment. The Louisiana state legislature had established Jim Crow laws. And even though Plessy upheld what was an abhorrent practice, it didn't ascribe anything to the Constitution that wasn't in it. And that is the big difference. The court has always been a politicized institution. The difference is that with the Warren Court, it became an activist politicized institution. And that is why we have such a mess today. The court is no longer a court. It is a separate, unelected, extralegal legislature--they actually are creating our laws for us, instead of sitting on the sidelines and letting us evolve for ourselves, which is the only way societally-accepted change can happen.

It was fine when you were dealing with segregation, because the winds of change were already blowing. But what it did was open the door for increasingly activist judges to start tackling their social agendas that don't reflect the will of hundreds of millions of people they are making social decisions for. It opened the door for them to tackle anything. And we now see the end results. You get a new judge with a loonytunes agenda and he is now free to turn his political leanings into de facto laws, without regard for anything the constitution actually says.

In 1880, we were not enlightened enough as a country to not have Jim Crow laws. Just as in 1787 we weren't enlightened enough to not have slavery. And in 1900 we weren't enlightened enough to allow women to vote. And so on.

To get to those places where attitudes changed, we needed social movements and attitudes to change; we needed to do it for ourselves. It couldn't be done by nine, old unelected people making decisions for millions of people.

I am finally blowing through Jonathan Eig's book about Jackie Robinson's first year right now, and it touches on how civil rights unrest was gaining steam after WWII--when blacks came back with the attitude that if they were fighting for their country, at home they shouldn't be second-class citizens. Jackie Robinson broke in in 1947, because the time was ripe for things to start changing. It was happening endemically. And it was going to continue to happen regardless of Brown vs. Board of Ed. The Civil Rights movement would have gained steam throughout the 1950s and 1960s, without Brown. And Rosa Parks would have been Rosa Parks with or without the ruling. As would Martin Luther King Jr. We would have reached the ends of desegregated schools without nine old, unelected people doing it for us--because as a people, we were ready for it and people were demanding it.

Abortion is different because there isn't that sort of grassroots storm brewing around it. It divides the country. There is an anti-abortion movement. And there is a movement by those who want to see it legal. And they are both VERY passionate. It is divisive. And that is true whether or not the court has hijacked it. It's why Roe v. Wade is at risk if you change the activist agendas of the justices on the court.

Think about it. Brown vs. Board of Ed was never at risk if you shuffled up the court--it isn't a judicially sound ruling (it effectively created a law and gave the court the power to enforce the law it created), but it didn't do something that the country wasn't starting to do on its own. Roe v. Wade has no root in the Constitution, either. But it has not done something that is the clearcut will of the country. So because we have nine, old appointed people deciding it instead of us deciding it for ourselves, the political agendas of judges are what make it legal or illegal. Is that really how our country supposed to be? What if a new ruling makes abortion illegal by mandate of a court that makes up things in the constitution to justify it? Do you still feel that is the way our country was ever meant to operate?

I don't mind being called an originalist. The ninth amendment is the most opaque thing in the constitution. But Madison certainly never meant it to be a black hole that could be used as justification for the changing whims of nine justices. It's almost certain that the ninth amendment came about for the exact opposite reason, actually. They were afraid that by spelling out the rights in the first eight amendments, they would be giving the Constitution too much power and they wanted to assuage the fears of the state ratifying committees that they would not retain their sovereignty. They founding fathers wanted to narrow the rights ascribed to the Constitution, not make the thing so vague that it would be more powerful than the words actually printed in the document.

Griswold is strained -- even if you want to twist the ninth amendment to say it means anything the court makes up is therefore a right in the constitution (for example, a vague right to privacy), the ninth amendment only applies to the Federal government. To get to where they did in Griswold, they not only had to make up the new right -- they actually had to throw the ninth amendment in a hat with the 14th amendment and shake it up, in order to be able to apply it to the local level. Can you get any more strained than that? They shouldn't have bothered. They should have just said, "This is our agenda. We don't need justification."