Chief Justice Roberts (the subject of an upcoming biography, which might be subtitled "Part 1") is often seen as a crafty type concerned about the long game and the overall integrity of the Supreme Court. The two late night (after 9PM, admittedly not that late for the last minute death penalty order) actions might be seen as a mixed bag in that respect.
As tends to be the case, the capital case of Domineque Ray (spoiler alert: he was executed last night) had various due process concerns. But, the matter at hand was a rather novel one -- could he have an imam present at his side instead of the Christian minister provided by the state. To be clear, it is not about only disallowing Muslim religious personnel. And, some years ago, the Supreme Court in Holt v. Hobbs protecting Muslim prisoners who wished to wear short beards for religious reasons. So, this seems like a fairly easy way for the Supreme Court to show they are consistent regarding religious liberty claims, instead of such reactions. Especially after the travel ban ruling.
The not overly liberal Eleventh Circuit basically so agreed in a strong opinion, holding that the result here favors one religion over another. It is unclear why the state could not tweak its process to carry out the prisoner's wishes. Thus, Justice Kagan (who rarely dissents in these late execution appeals) ala her Town of Greece v. Galloway dissent, provided an eloquent call for religious liberty, evenly applied. The majority (and often responses to these orders are merely "denied" or "we dissent") merely noted that the challenge was too late. Kagan dealt with that claim as well.
This case suggests the difficulties with usage of state religious officials, the specifics of this state's practices perhaps novel. This was also an issue, to again return to the legislative prayer conext, in the 1980s case of Marsh v. Chambers. Justice Stevens specifically noted that usage of a single chaplain of a particular faith for so long had a tendency to favor one religion in practice. Kagan's dissent in the later case was similarly moderate, accepting usage of legislative prayer generally, but critiquing the nature of the practice at hand. Religion is touchy and in practice nuance is key. Bending over backwards should not just occur when birth control is involved. The result is religious favoritism.
[It perhaps can be the case that the justices missed the religious liberty claim because all they saw was a late appeal in a death penalty case. They did protect prisoners in general, but this was someone due to die in a few weeks. Maybe. But, this didn't impress many who were appalled, including some who are conservative in general. Finally, compare the majority here with Justice Alito and Thomas flagging the religious and moral concerns of a constitutional nature in allowing non-lethal weapons. Which I respected; I even sent Alito a letter thanking him.]
====
The case getting more attention involved handling an appeal upholding a restrictive abortion law out of Louisiana that seemed blatantly in conflict with a 5-3 Supreme Court precedent from a few years ago. The lower court en banc (with a strong dissent) argued there were differences. How much that really matters is dubious but it flagged a quite possible means of not totally overturning Roe (Casey) but severely weakening it in practice. When a state might very well have one clinic, a "fetal heartbeat" law is not the only way to stop abortion rights in practice. There is a difference here, to be clear, but rights are not an all or nothing affair either. The test is after all "undue burden."
Since the membership of the Court has now changed, some are basically merely waiting for Roe to be gone. I think the rhetoric is a tad overblown, admitting that I can't get pregnant or anything. Again, we are talking about many laws that severely burden women here. This drip by drip approach has occurred since the 1970s. This case to me seemed like a landmine since it offered a chance for five justices to provide, as the law of the land, a weaker test (cushioned in so-called neutral fact based language or not). Not taking the case would send a signal, but not change the law. To me, this might be a best of a bad situation choice.
What we got last night was in effect a "to be continued," which on the abortion rights side per one account was "not nothing" but a limited win at best. The majority didn't even provide a brief comment this time so the reasoning is basically by implication. Basically, Roberts (and the liberals) appear to be saying that the law is dubious enough per the earlier precedent that it should not go into effect while the case is pending. The rule tends to be that this is done when there is a strong case of reversal, at least when the alternative would be burdensome to those affected.
It is rather risky, however, to assume that Chief Roberts would serve as the fifth vote to strike down the law. As referenced here, there is an argument that the state is more protective of the rights of doctors and abortion providers than Texas was, an argument that long term would seem to be a good "out" for Roberts. A sort of "minimalist" approach. The article also suggests how much respect we should give to Kavanaugh's "I'm just being reasonable here" dissent. If the law is unconstitutional, delaying striking it down, providing more chances for burdens because maybe the state will play nice, is basically the whole thing the original ruling meant to avoid. The dissent, however, very well might foreshadow the eventual approach on the merits.
The result sends a message to other judges that similar laws are at least dubious though again it has no formal legal meaning in that respect. It also shows that Roberts does not want to speed up things in regards to abortion rights. We will have another partisan gerrymandering case soon, in part since the Supreme Court has less ability to avoid certain voting rights cases. They took a Second Amendment case for full review after around a decade. A religious display case is coming. Hot button issues now that we have the start of a Trump Court will come. But, like driving on urban streets, Roberts rather it go a bit slow.
So, unlike the first case, this is a "to be continued."
As tends to be the case, the capital case of Domineque Ray (spoiler alert: he was executed last night) had various due process concerns. But, the matter at hand was a rather novel one -- could he have an imam present at his side instead of the Christian minister provided by the state. To be clear, it is not about only disallowing Muslim religious personnel. And, some years ago, the Supreme Court in Holt v. Hobbs protecting Muslim prisoners who wished to wear short beards for religious reasons. So, this seems like a fairly easy way for the Supreme Court to show they are consistent regarding religious liberty claims, instead of such reactions. Especially after the travel ban ruling.
The not overly liberal Eleventh Circuit basically so agreed in a strong opinion, holding that the result here favors one religion over another. It is unclear why the state could not tweak its process to carry out the prisoner's wishes. Thus, Justice Kagan (who rarely dissents in these late execution appeals) ala her Town of Greece v. Galloway dissent, provided an eloquent call for religious liberty, evenly applied. The majority (and often responses to these orders are merely "denied" or "we dissent") merely noted that the challenge was too late. Kagan dealt with that claim as well.
This case suggests the difficulties with usage of state religious officials, the specifics of this state's practices perhaps novel. This was also an issue, to again return to the legislative prayer conext, in the 1980s case of Marsh v. Chambers. Justice Stevens specifically noted that usage of a single chaplain of a particular faith for so long had a tendency to favor one religion in practice. Kagan's dissent in the later case was similarly moderate, accepting usage of legislative prayer generally, but critiquing the nature of the practice at hand. Religion is touchy and in practice nuance is key. Bending over backwards should not just occur when birth control is involved. The result is religious favoritism.
[It perhaps can be the case that the justices missed the religious liberty claim because all they saw was a late appeal in a death penalty case. They did protect prisoners in general, but this was someone due to die in a few weeks. Maybe. But, this didn't impress many who were appalled, including some who are conservative in general. Finally, compare the majority here with Justice Alito and Thomas flagging the religious and moral concerns of a constitutional nature in allowing non-lethal weapons. Which I respected; I even sent Alito a letter thanking him.]
====
The case getting more attention involved handling an appeal upholding a restrictive abortion law out of Louisiana that seemed blatantly in conflict with a 5-3 Supreme Court precedent from a few years ago. The lower court en banc (with a strong dissent) argued there were differences. How much that really matters is dubious but it flagged a quite possible means of not totally overturning Roe (Casey) but severely weakening it in practice. When a state might very well have one clinic, a "fetal heartbeat" law is not the only way to stop abortion rights in practice. There is a difference here, to be clear, but rights are not an all or nothing affair either. The test is after all "undue burden."
Since the membership of the Court has now changed, some are basically merely waiting for Roe to be gone. I think the rhetoric is a tad overblown, admitting that I can't get pregnant or anything. Again, we are talking about many laws that severely burden women here. This drip by drip approach has occurred since the 1970s. This case to me seemed like a landmine since it offered a chance for five justices to provide, as the law of the land, a weaker test (cushioned in so-called neutral fact based language or not). Not taking the case would send a signal, but not change the law. To me, this might be a best of a bad situation choice.
What we got last night was in effect a "to be continued," which on the abortion rights side per one account was "not nothing" but a limited win at best. The majority didn't even provide a brief comment this time so the reasoning is basically by implication. Basically, Roberts (and the liberals) appear to be saying that the law is dubious enough per the earlier precedent that it should not go into effect while the case is pending. The rule tends to be that this is done when there is a strong case of reversal, at least when the alternative would be burdensome to those affected.
It is rather risky, however, to assume that Chief Roberts would serve as the fifth vote to strike down the law. As referenced here, there is an argument that the state is more protective of the rights of doctors and abortion providers than Texas was, an argument that long term would seem to be a good "out" for Roberts. A sort of "minimalist" approach. The article also suggests how much respect we should give to Kavanaugh's "I'm just being reasonable here" dissent. If the law is unconstitutional, delaying striking it down, providing more chances for burdens because maybe the state will play nice, is basically the whole thing the original ruling meant to avoid. The dissent, however, very well might foreshadow the eventual approach on the merits.
The result sends a message to other judges that similar laws are at least dubious though again it has no formal legal meaning in that respect. It also shows that Roberts does not want to speed up things in regards to abortion rights. We will have another partisan gerrymandering case soon, in part since the Supreme Court has less ability to avoid certain voting rights cases. They took a Second Amendment case for full review after around a decade. A religious display case is coming. Hot button issues now that we have the start of a Trump Court will come. But, like driving on urban streets, Roberts rather it go a bit slow.
So, unlike the first case, this is a "to be continued."
No comments:
Post a Comment
Thanks for your .02!