SCOTUS Watch: Abortion Case Taken (etc.)

Order List: The big news is that -- after repeatedly putting off making a decision -- the Supreme Court WILL consider on a broad basis (they separately took a case determining when the government can bring a case to defend a law) the right to choose an abortion. Avoiding narrower questions, they will decide "whether all prevability prohibitions of elective abortions are constitutional."  One account here.

There is surely some behind the scenes going on (including delaying a big case in Barrett's first term), including why today (why not when other news might partially crowd out attention, such as the ACA case) and how that specific question was decided upon.  The lower court struck down the 15 week ban unlike another case where a law that in a somewhat narrow fashion blocked doctors openly agreeing to perform abortions on account of the fetus having Down Syndrome.  This created something of a circuit split, but the question presented widens the debate significantly.

It's something of a parlor game now to try to fashion how the Supreme Court is likely to rule.  But, of course, that is what one does.  Me?  I think the question might have an implicit implication that the answer is "that is a pretty extreme position" -- so, it would in some fashion leave open some sort of prohibitions of pre-viability abortions (like the Down Syndrome one?)  but will not go full Handmaid's Tale.  A surprise might be a Kavanaugh plurality making prohibitions disfavored (if not closing off all cases) but inviting a further watering down of Casey as to regulations.  

A basic point to underline here is that the SCOTUS is tainted. One third of the Court, in large part this issue is a major driver, was confirmed using corrupt methods.  It is simply not fit to decide such a basic question.  The hand-wringing of "packing" the Court is asinine. It was already packed. Meanwhile, Jen Psaki today again noted President Biden supports codifying Roe v. Wade.  How that would be done is a bit unclear, but state and political means to safeguard abortion rights is now that much more important. 

In a somewhat related action involving blocking the communication of certain abortion related information (via a Trump rule), a challenge was disposed of after the Biden Administration provided a letter brief as requested.  Thomas/Alito/Gorsuch dissented without opinion from the dismissal.  The whole procedural matter is a tad confusing, but seems to be that the whole matter is disposed of as of now.  (See here for more clarification.)

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Two other cases were taken for oral argument but much less hot button.  Justice Sotomayor again found a problematic criminal justice case, this one involving what can be used to help determine if someone should be sentenced to die.  As she does repeatedly, Sotomayor did not dissent from the grant, but inserted a statement on why she was concerned, even if the matter is not "cert-worthy."   

Opinions: The biggest case is a 6-3 opinion that did not retroactively apply the unanimous jury case.  In the process, it basically finished the job interring the possibility of doing so in other cases.  So, it amounts to a major criminal justice opinion, though experts can debate how much it matters given actual practice.  Kavanaugh, who briefly concurred in a federal courts case Kagan wrote to argue her opinion in effect narrowed two precedents (rightly so in his view), wrote the majority opinion.  

(Sotomayor wrote a separate concurrence in that case, arguing Kagan's opinion should be treated as a narrow one.  I wondered if Kavanaugh was making a bit of a dig on Justice Stare Decisis.  Gorsuch also wrote a federal courts case in which only Sotomayor dissented.  Alito didn't take part because of unstated financial conflicts; a pending bill would require justices to explain why they did not take part.  

I won't say anything else about these two technical cases, except to say that a typo was found -- the date the case was argued was misstated.) 

Kagan, who dissented in the original case on stare decisis grounds, wrote a strong dissent for the liberals.  She in part framed the jury case as a racial justice matter (Kavanaugh has made that one of his things), which is an easier case to make on the facts.  I personally thought there was a way to concur in judgment before without necessarily overrule the non-unanimous jury rule completely.  Anyway, another strong liberal dissent.

Easter Egg: The majority opinion attached an over hour long video of the confession (which the defendant tried to suppress) which is of unclear relevance. There was a dissenter on the jury -- inconveniently the sole black juror for a black male defendant -- and the current constitutional rule is that means a not guilty verdict.  11-1 isn't enough.  We aren't supposed to say "enough if the evidence is crystal clear" and who is going to watch the video anyway?  The Supreme Court nearly never attaches video and past cases repeatedly were separate opinions.  So, this stands out.

Edward Caniglia (petitioner) retrieved a handgun from the bedroom, put it on the dining room table, and asked his wife to “shoot [him] now and get it over with.” She declined, and instead left to spend the night at a hotel."

Justice Thomas wrote a four page (something of a record for a full press case) opinion noting it is obviously wrong to across the board allow no warrant entry into a home for "caretaker" reasons. That is, if the police act not for normal police investigatory reasons, but for something like to check in to see if someone is doing okay.  

The treatment suggests per curiam possibility, even with Roberts/Breyer concurring briefly separately to reaffirm that there is a special circumstances emergency medical treatment situation exception.  Kavanaugh basically covered the same ground, but with somewhat more verbiage and a lot more citations. Alito also had a concurrence reminding people that the opinion was narrow and that there were various  possible contingencies to cover along the way.  And, that leaves 29 opinions (per SCOTUSBlog).