SCOTUS In The Dead Of Night Acts

We had a deluge last night and I fell asleep early as the hard rain continued. It was bad -- saw reports of the subway being shut down for a time.  Waking up early in the morning, I checked my phone. (As an aside, since I am a Mets fan, the Braves lost, so the Mets did gain 2.5 games as the Braves were swept by the Dodgers, after going 2-1 vs. the Giants but 0-2 ... the losses regularly close ... vs the Yankees.)

To preview this, the Trump additions to the Supreme Court were a result of corrupt procedures that make them as a matter of sound government -- the moral guidance cited in the Declaration of Independence that still matters in this country -- are illegitimate. 

I don't say that about the rest of the majority. But, Roberts and Alito are the result of a minority POTUS, if one re-elected by the ONE case of Republicans getting a majority of the vote since 1988. The courts will not be simply a result of majority rule. But, at some point, things are so skewered that we are in trouble. It is a factor in why expanding the Supreme Court is so justified. Okay ...

At around midnight, via a brief unsigned order found in the "opinions related to orders page," the Texas abortion ban was left in place by a 5-4 vote. You can read Amy Howe's summary. To reminded, here by the lead guy SCOTUS commentator at Slate on Twitter, though Sotomayor also made reference to the basic point, this law:

Just want to reiterate that the first near-total abortion ban to take effect in the United States since Roe v. Wade allows random strangers to sue anyone who "aids and abets" an abortion—for $10,000+—including an abortion patient's friends, family, clergy, doctor, counselors.

It is a "heartbeat" law that can take effect as early as six weeks. It is the sort of law that I have said that SCOTUS rather not touch -- they rather attack abortion rights with easier lower hanging fruit like second trimester bans. But, Texas' approach provides a procedural slight of hand (rightly noted as one by the dissents, more so the liberals) to allow SCOTUS to have an excuse to let a more extreme law stay in place as clinics already are turning women away. 

And, it provides a signal to the states and conservative judges below. Or, we can talk about technical points and reference "hand-wringing" like this asshole.  The seriousness of this -- even if Roe is not totally in the ground yet -- is shown by the dissents, from Roberts (we need to hold things in place) to Breyer (this is bad and let's not let procedural tricks cover that up) to Sotomayor (fuck you) to Kagan (screw you too ... shadow docket edition).  

To underline something Breyer flags, we should not allow  procedural semantics handwave the purpose and effect (both factors flagged by Planned Parenthood v. Casey) of the law, which used just that to override abortion rights.  It's like the proverbial survival benefits being given to the person who murdered their parents.  

[Each justice had their own concerns. Michael Dorf flags how the CJ realized how Texas' approach can't be cabined to this subject, which results in an open-ended approach to attack rights.  

It is telling that the majority just ignores these dissents, including by the Chief Justice. Even if you think the case was decided correctly, why not respond to strong dissents from 4/9, including not all from your ideological opponents? To address another addendum below, this is not just "laziness." It is a choice to avoid basically doing your jobs.]

We also see the reactions on Twitter, including from one woman lawyer.

This feels like November 9, 2016.

Just devastating.

— KSV (@KSVesq) September 2, 2021

For a sane woman lawyer who lives in Texas, this is true for a variety of reasons.  First and foremost, you have the basic right over your body.  

But, it goes further than that.  It goes to the basic integrity of the law and the Supreme Court.  I'm just an amateur.  Imagine how someone who lives their life practicing (or teaching) law.  They look at what the Supreme Court did in the middle of the night.  In such a corrupt way.  How it let stand not only an anti-abortion law but one that uses a method that can cause a lot of damage in various ideological ways.  

What do you do?  Chris Hayes last night had the usual liberal voices (like Melissa Murray) and Elie Mystal for the angry guy vibe.  Such voices are valuable though there is a certain "yeah okay, I know what yo are going to say" vibe, and I wished he had a bit more diversity (not saying FOR the law or anything).  

EM was like "we need to do something big, pack the court ... I don't care about Joe Manchin. Don't talk to be about him." etc.  Charming.  He exists though.  At some point, this sort of tough guy talk is annoying.  Not saying that he is wrong on a basic level, at least regarding the need to go big. But, a 50-50 Senate and all the rest (including all it has to do vs. insurrection enabling trolls) can't be handwaved.  

One guy on a blog whose tone annoys me was the first one there who flagged the ruling.  He ends his comments on a sort of realistically forlorn note:

There must be some kind of way out of here, but I can’t see it right now.

Yes.  But, at some point, events happen, instigation happens, that forces your hand.  Direct action protests, if not 1960s level, have been in place to pressure Manchin and others to act on voting rights. The same might be at hand here.  Waiting for the presidential commission to release it's report in November has a feel of token bullshit at this point. 

One possible route, though it is seems pie in the sky since it goes against his very soul, is Justice Breyer admitting the Court is broken, announcing his retirement, and the confirmation hearing not only brings in a middle aged black woman justice, but an opening for a platform for action.  Again, I don't see that happening.  I like the idea -- unlike expansion of the Court, which is proper -- there is a shot in hell of it happening. 

So, goes the line, we have a chance?  Meanwhile, "This is bad."  I still won't say Roe v. Wade is dead.  Some federal judge still has the authority and obligation to strike down this sort of law if given the chance. Ditto state judges.  That matters.  But, a chill wind blows.  It is starting to howl.

ETA: There are various accounts that argue the result is really just a trivial procedural matter or at most a result of how procedure works. But, again, four justices (including Roberts) and many other critics really doubt that. 

And, it is gaslighting to suggest that the Court's actions have nothing to do with their beliefs on the merits.  It is a charade to think there is merely some procedural trick that lets the state pass this law with this purpose and effect, but get away with blocking abortion services by "this is just private" dodge.  

It wouldn't work with a regular abortion law, blocked pre-enforcement for litigation purposes.  I might not know all the nuances of procedural law, but all the lawyers et. al. are not morons about that.  They know there are ways to do that.  It is a choice to let a blatantly unconstitutional law to remain in place.  

I still question if the ultimate abortion decision that they will decide next term will blatantly allow for this sort of law. But, since you need two of them to provide a "less bad for now" approach, perhaps that too is somewhat less likely.  

Also, more no comment dubious-ness -- I don't think the shadow docket is just the Supreme Court being "lazy."  Did they suddenly become lazy last year?  Also, the reference to the summer recess is bad too, as if that is the only time they used it.  That is high asinine cluenessness. 

... One more thing.  Among all the commentary, I saw more than one person note the basic conceit here -- the "private" action (bounties) is a result of state action. The bounty hunters are serving as agents of the state, in promotion of a state based anti-abortion law.

Compare this to "private" covenants, property restrictions at times based on wrongful things such as race [court enforcement was deemed "state action" but perhaps a better framing is that it is a sort of badge of slavery, the 13A not requiring state action], a result of individual contractual acts. 

Such things are not free from problems and property rights ultimately are a creation of the government.  There is still a notable difference. 

===

* As a footnote, we have the delay.  This is all guesswork and on some level is academic.  But, then, this is a footnote.

Why?  One suggestion would be that the majority are chickenshit.  Well, clearly that is part of it.

There is also the need to write dissents. Eh.  Twelve pages total. They could have, if necessary, announced the ruling and said writing was pending. This is done elsewhere with time sensitive rulings. Having us wait in the darkness for a day was not a great look.  You'd think they'd care a little.

Rick Hasen suggests on Twitter that maybe the liberals (maybe Roberts?) wanted to show that the law in action had serious effect.  Maybe. What is the point there though really?  The majority could have claimed not to know what would happen? That itself could have been used against them, given what happened.  Also, because it would be ridiculous, given what was clearly going to happen.  Maybe though.

Maybe, part of it was some attempt to talk reason into at least one of the majority.  Roberts would have special reason here to be upset. His Court is also passing him by.

Also, I saw someone note that Kagan's reference to the "shadow docket" is a first.  Directly speaking of it seems to be, doing a search on the SCOTUS website.  But, back on 9/11/19, Sotomayor flagged it as part of how the Trump Administration used it, citing an article by a leading voice.