And Also: See my back/forth with someone here who compares the burdens of pregnancy to being hit by a pebble or wind. On the issue of not serving people in public accommodations, the person is a strict libertarian sort. Forcing people to be a good Samaritan here? Eh. To allude to Glenn Greenwald, the person is not special himself -- it is that the sentiment is sadly not atypical. Selective concerns are key here.
All involved used a balancing test that took into consideration various concerns. It is not apparent that each prong has to be met, so not sure how Scalia shows the dissent fails. For instance, yes, the likely success of the provision on appeal was one factor, but ultimately it is left to a "balance of harms" test. The closing down of clinics provide direct harms to those who currently need them in a "permanent" fashion. A stay that stops the state from enforcing the law is only a temporary burden.
This puts aside the fact that the district court ruling was probably too narrow. Interfering with lower court procedures in these cases is something the Supreme Court really never seems to do, so this result is far from surprising, even beyond the abortion context. The vote was as close as it was because the move here was particularly dubious. The USSC has not shown any desire to actually take any abortion restriction cases, though the slew of efforts in recent years just might force their hand eventually. Given Kennedy is the swing vote, this might be benign neglect.
[Added] Rick Hasen, who usually blogs about elections, discusses the order as a matter of remedies. He notes that is unusual for there to be an opinion in such a case at all, how it is a red flag that the case is a loser (at this stage, unlike Bush v. Gore which was cited, I think that's a bit premature) and noted that it used to be that the status quo (clinics not closing etc.) would be a concern. This has changed of late:
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* I first read about this via Twitter, the reporter not just informing us about how "Sotomayor says she wears a continuous blood testing device for her diabetes. It beeps during her speech- so she asks for a sugar cube!" or Sotomayor's opinion that "people w/ defense backgrounds or civil rts or small practice or solo practice.” Still, nice sentiment -- again, thanks Obama, for two good justices.
As to lower court judges, it is time to end the filibuster there, or at least seriously alter it. Obama should take it up a notch. On that front, the moronic quote from the day, usually reasonable sort edition:
abortion clinics in Texas whose physicians do not have admitting privileges at a hospital within 30 miles of the clinic were forced to cease offering abortions. And it means that women who were planning to receive abortions at those clinics were forced to go elsewhere—in some cases 100 miles or more—to obtain a safe abortion, or else not to obtain one at all.After a federal district judge in a limited way blocked Texas' new restrictive abortion law, some noted the weakly reasoned nature of the appellate court's removal of the stay. The logic expressly got support of two justices (Scalia/Alito), three aiding it by inaction -- it was left to the four liberals (led by Breyer) to explain why the original stay order was correct. Scalia argued that the dissent didn't really make their case.
All involved used a balancing test that took into consideration various concerns. It is not apparent that each prong has to be met, so not sure how Scalia shows the dissent fails. For instance, yes, the likely success of the provision on appeal was one factor, but ultimately it is left to a "balance of harms" test. The closing down of clinics provide direct harms to those who currently need them in a "permanent" fashion. A stay that stops the state from enforcing the law is only a temporary burden.
This puts aside the fact that the district court ruling was probably too narrow. Interfering with lower court procedures in these cases is something the Supreme Court really never seems to do, so this result is far from surprising, even beyond the abortion context. The vote was as close as it was because the move here was particularly dubious. The USSC has not shown any desire to actually take any abortion restriction cases, though the slew of efforts in recent years just might force their hand eventually. Given Kennedy is the swing vote, this might be benign neglect.
[Added] Rick Hasen, who usually blogs about elections, discusses the order as a matter of remedies. He notes that is unusual for there to be an opinion in such a case at all, how it is a red flag that the case is a loser (at this stage, unlike Bush v. Gore which was cited, I think that's a bit premature) and noted that it used to be that the status quo (clinics not closing etc.) would be a concern. This has changed of late:
Justice Scalia’s rejection of the status quo represents yet another change in injunction practice before the Supreme Court, part of a broader change I plan to write about soon in which injunctions are harder for plaintiffs to get and easier for defendants to get blocked or overturned.Such nuances often have major effects.
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* I first read about this via Twitter, the reporter not just informing us about how "Sotomayor says she wears a continuous blood testing device for her diabetes. It beeps during her speech- so she asks for a sugar cube!" or Sotomayor's opinion that "people w/ defense backgrounds or civil rts or small practice or solo practice.” Still, nice sentiment -- again, thanks Obama, for two good justices.
As to lower court judges, it is time to end the filibuster there, or at least seriously alter it. Obama should take it up a notch. On that front, the moronic quote from the day, usually reasonable sort edition:
Sen. Carl Levin (MI), a consistent Democratic opponent of filibuster reform, said the GOP's recent judicial blockade hasn't changed his mind. "If the majority can change the rules, there are no rules," he told reporters.Great logic there.
2 comments:
Levin continues to be a real jerk about this. He was there when
Frist twisted the Democrats arms with a nuclear option threat and caused the Democrats to give the Republicans what they wanted. He has been there when Harry Reid attempted to do the same thing and got his bluff called repeatedly. Levin's concern for what may happen to the Democrats when they are in the minority is incredibly naive for a man of his experience.
Yes, we might have Janice Rogers Browns or Priscilla Owens types on the bench ... oh wait. I admit to supporting filibustering in the Bush years, but after the Gang of 14, there was little real benefit. And, "both sides aren't the same" -- Obama is getting beef from the LEFT for being too soft. Anyway, I'll take the long term effects. There are ways to pressure w/o the filibuster too.
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