SCOTUS Watch: Abortion Pills, Court Expansion etc.

Of more than 20,000 FDA-approved drugs, mifepristone is the only one that patients must pick up in person in a clinical setting but are permitted to self-administer elsewhere, unsupervised.

So, maybe there was a reason the lower court found it a substantial obstacle to abortion rights to require it during the Big V. The Supreme Court (which will go telephonic for the rest of the year) punted. They sent it back (Alito and Thomas upset, again we have someone quoting Roberts solo concurrence about letting locals deal with medical issues, the specifics ignored, putting aside again it is just one justice who said that) so the district judge could get more facts. Noted it might result in a more narrow order. Do it within forty days. So, see ya in November?

This is a fairly notable thing, but it is again part of the "shadow docket," though we get a few words about what they are doing this time. It isn't put on the Order List page -- not sure how they figure these things out -- just the "Opinions Related to Orders." Meanwhile, Justice Kagan as circuit justice summarily rejected a mail-in ballot related request from Republicans without comment. We might get around seventy full opinions by a Supreme Court for three hundred and thirty million people, but they do some other stuff along the way.

Showing there are other ways to promote religious group, a liberal leaning group put forth a report summarizing its principles. Meanwhile, the Republicans are continuing in the most crappy way possible (members of the Judiciary Committee are even avoiding to get tested) to put someone on the Court promoting a different view. Third time might be the straw for some with those honestly wary about doing so arguing for court expansion. A basic point here, simply ignored by another "reasonable" [half-serious, half-sarcastic] take, is that it is necessary TO reaffirm norms.

Orin Kerr annoys me repeatedly, even if he also is a reasonable sort (he on the record voted for Hillary Clinton) enough to respect, putting aside his specific areas of expertise (Fourth Amendment). So, he calmly reasons things out -- good -- but goes off the rails at some point. I still am annoyed at his latching on to some senator comparing Trump to Stalin for attacking the press, skipping over the rest. He also was confused (he does a Columbo act at times) why dissenting Republicans are supposed to actually vote against their policy priors to reinforce basic norms. Such a mentality makes it seem asking too much to even temporarily stop a few judges to set a few basic boundaries.

it seems to me that the real cause of the claimed "norm breaking" is the gradual devolution, in both parties, to purely partisan Supreme Court votes in the Senate. This wasn't a big problem when Presidential and Senate control were form the same party. Partisan = confirmed.

"Claimed" norm breaking? Both sides do it! He later notes that he undertands the support for court expansion as the Dems "catching up" in the the game of constitutional hardball. Yeah, Orin. See, BOTH SIDES DON'T DO IT. Do they over time to some degree (Miguel Estrada was cited by someone -- some lower court judge held up in part since he was seen as a possible future SCOTUS nominee -- a favorite example) use politics in judicial nomination wars? Surely. Still, even there, one side played hardball more. This is seen by Leahy respecting blue slips while a similar courtesy is not done the other way. This matters. It isn't just that I vote Democratic.

The basic idea seems to be it was just inevitable and Democrats just had the unfortunate fate of being on the wrong side of things. As if, you know, if things were switched, the Democrats would do the same thing in each case. I don't believe it. This is not some appeal to purity. It just is that Democrats in 2016 would have been more wary (Kerr says as much! Dems are NOW being pushed to play catch-up) both given some traditionalists in key positions and if their candidate had as long of a shot as Trump. For good or ill, also, Democrats didn't go all in as much on nominations.

So, I call bullshit. Anyway, it doesn't matter on some level if the result is chance. The Republicans now three fucking times (oh so reasonable, Orin, I understand I'm just being emotional here) screwed in different ways with the nomination process. Talk of "real cause" here is again somewhat besides the point, putting aside that it's b.s. too. As at least one person noted, it isn't merely that Garland was not confirmed. It's HOW. Fortas had a hearing. It didn't go well and then cloture failed.

And, so it goes. Republicans specifically broke the norms -- again are doing so in a particularly crude way now as their dear leader going off the deep end -- and cannot even provide the fig leaf of "well, the public gets to pick." The solution provided is an amendment that locks in the seats at nine (since 1869, so I guess it has gone fairly well, but seems off to set it at that for all time) and have some sort of term limit scheme (details perhaps forthcoming). I think term limits with something to provide a time limit to help avoid confirmation delays is fine as far as it goes.

But, basically the other side gets to keep their ill gotten gains. Which isn't even accepted as ill gotten! Both sides do it! Just being reasonable -- hey, I said it was "lawful" to expand the Court and that I "understand" the sentiment. Just ignoring that something specifically blatant by one side is being done. This is on one hand aggravating, but again it is a problem in purely cerebal fashion too. I understand that in the real world that what might in the long run work very well will be imperfect and less than what seems "fair" to some people. So, you know, getting three or more seats in the end seems dubious. But, ignoring a basic principle here is problematic.

The norm violations or whatever you want to call it -- want to call it just blatant bad acting? Fine -- is also fit into somewhat related issues. So, e.g., it is more painful and so on because a minority gets long term power. The means there is as before not even the basic problem on some level though it is part of the mix. I have seen some specifically concerned about how SCOTUS handles voting rights as a reason to support expansion. And, it is part of a wider picture anyway -- Electoral College etc.

This op-ed mixes a discussion of the pro-democracy etc. value of expansion along with the need to not just let Republicans to get away with what they are doing. He goes off the limb a bit later on. If the Republicans manage to win an election, it isn't really fine if they have a "tit for tat" expansion. A train of abuses etc. is not the same as managing somehow to get back in power. Thus, there is a value in finding a way to avoid that. In past cases, that was really extended party control [Republicans, e.g., controlled the presidency for a while from the 1860s on.] Orin Kerr's amendment keeping things at nine (another person suggested eleven) tries for that. It's hard but maybe some sort of compromise or something will be managed long term. There were precedents.

Relatedly, you get the idea that there might not be enough support to expand the Court until it blocks some major legislation or something. I just do not know how far Biden and the Democrats will go to address things. We have a ways to go there, it being early October. Meanwhile, even people like Sen. Booker (who favors flashy ideological takes) are reportedly talking with Amy Coney-Barrett as if things will just go as normal. Pelosi spoke over all the "quivers" Dems had to use. Uh huh.

And, this makes a good argument that talking about the religious views of nominees is not a constitutional violation but realistically it is done so badly that pragmatically we should largely avoid it. Moving past all that ... Breyer is just so reasonable. And, maybe, just maybe, I'm about done editing this post.

(The above focused on the Supreme Court, but the lower courts also factor in here, especially control of circuit courts. Moscow Mitch has been filling those lower court judges like a drunken sailor or something, after Republican control held up a bunch of Obama nominees. It would be easier to expand lower courts to some degree, especially if there is a workload reason. Lower courts have significant power within their specific spheres. But, they have less than justices, obviously, and thus there is more flexibility there.)

One more thing -- noting by the way that I realize lately this blog had more courts related stuff than other matters -- I am in the middle of Judge Sutton's book honoring using state courts more to develop constitutional law. I wish I could find a book on New York's constitution and how it was applied by its courts. Anyway, it is fairly interesting, and do actually support the overall principle. Not sure about some of the specific arguments about the effects of let's say them arguably going too fast in respect to certain cases etc. But, it's an interesting book.