Supreme Court: People's Court ... and more abortion fictions

And Also: The December calendar of oral arguments was released, as you recall with live audio, and the big one is the Mississippi abortion case.   Some from the look of it  not really notable procedural order by Kavanaugh was also released. It is not really clear why it warranted a posting on the main orders page as compared as just on the case's docket page.  [Update]

Law professor Eric Segall, a nice guy who is right about various things, keeps on saying things like this (per a recent tweet):

Good morning. In 1870 SCOTUS stunned the country by ruling Congress could not make paper money legal tender for prior debts. Huge decision. One year later with 2 new Justices the Court overruled the decision. Changing judges changed the law on a huge case 1 year later. 1870-71.

This is a reference to the Legal Tender Cases, when the Supreme Court first held paper money was unconstitutional and later changed its mind. The first was 5-3 opinion; a change in court personnel (the nominees were picked in part for their different views on the issue) later made it 5-4 the other way.  

The message is that this is a sign that the Supreme Court is not really a "court," that personnel and their values is what basically determines things.  The justices didn't change the law on a range of issues.  On a particular issue, one strongly divided and novel, they did change.  

Because humans, picked by other humans (in our system, politically), are involved.  Nominations provide a key time for the people (indirectly) to affect the path of the law.  The system encourages this.  In some other system, perhaps some nominating board or something, itself regularly appointed by political actors with different views, might be involved.   

President Lincoln in his first inaugural argued the importance of allowing the people to influence the law in this fashion in novel cases.  He was talking about the principles of Dred Scott v. Sandford, and how it was appropriate for Congress and others to push back, to try to convince the Supreme Court it was wrong.  And, one might add, put new judges on the bench that might see things differently.

In practice, this does not result in rapid changes of the law in short period of times.  It can lead to changes in some respects, especially on certain issues that are given special attention.  In this case, it could very well be argued that the two new justices corrected a serious error, one that wrongly handcuffed the discretion of Congress to make fiscal policy.  The system basically worked as it should work.

A person might say, but reading his work, I don't think this is all he is saying, that the Legal Tender Cases is a red flag on the limits of judicial review.  That it is a lesson that it should be used with strong restraint.  That's a valid concern.  But, at times, there will be a quick turnaround, the people's representatives putting on the bench new people who strongly feel that something was wrongly decided.  This should be done with care. The justices surely thought they were doing so.  It is part of the system.

The justices are still acting like a court.  And, sometimes, this will be done in ways that people like me will find very wrong.  But, the law does change. So, we have to take the bitter with the sweet, though it is quite possible the judges are bad for some other reason.  Thus, the talk of how the Trump bunch got there.  The way the system should work, including its hard complexities, only make not being able to respect the legitimacy of new members that much more troubling. 

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Abortion Briefs: The architect of the Texas anti-abortion choice / bounty law is involved in an amicus brief in support of the Mississippi law due to be heard by the Supreme Court.  It's a doozy, including use of scare quotes for "rights," aiming for rights for gays, and arguing women can just not have sex, so why do they really need abortion rights?

We also have a "moderate" originalist argument for abortion rights -- supposedly history shows that quickening is the line and quickening basically happens around fifteen weeks.  My general understanding is that it really comes closer to twenty.  On top of that, though a quick read over doesn't suggest they cover this, even pre-quickening will -- going by history -- justify a lot of other barriers such as for minors.

The level of assurance on the history and what it offers at various points seems a bit too assured.  Also, there were a variety of laws in place in 1868, including bans pre-quickening, if "minor" in nature.  They still were in place.  Originalism by this account would suggest that states had a wide discretion to basically totally ban abortion.  

Finally, this sort of thing underlines the limits of originalism, at least some fairly strict version of it.  Quickening, to remind, is feeling fetal movement. The reason it was used is that the knowledge of the time was such that was the only way to determine the fetus was alive.  Modern science, however, provides technology to do so.  Mere movement in itself does not seem to be independently much of a line.  A brain dead fetus might move. 

The article (retweeted by Segall) is a fairly common example of trying to make firm judgments, often in a way open to criticism, regarding something that doesn't truly offer what is trying to be sold. The article might appeal as a "reasonable" approach, a compromise of sorts. I think that is a sort of fool's game here based on sand.  Not that I think it would work well either.