Oh well. I was not alone in thinking that the Texas abortion opinions were unlikely to be handed down when it was announced there would be a rare Friday opinion day in December. Various reasons. It was announced that they wouldn't show up. Figured someone would want to dissent from the bench. seemed a rather important duo of cases to hand down this way. And, if they waited this long, why not just wait until the Mississippi case was handed down to show what substantive abortion rights are left?
We were wrong. Gorsuch with the opinion in the clinics case, the United States lawsuit decided per curiam. Gorsuch? That's not ideal. And, certain law professors are already noting that the opinion seems to be a "how to" manual on how to narrowly leave open some path of litigation [so reasonable!] while doing do in a way that guides future legislators to close up even that "loophole."
The clear purpose and actual effect of S. B. 8 has been to nullify this Court’s rulings. It is, however, a basic principle that the Constitution is the “fundamental and paramount law of the nation,” and “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison (1803). Indeed, “[i]f the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.” United States v. Peters (1809). The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake.
Thus ended a partial dissent, one without the "respectfully." (Thomas would not blocked all lawsuits; he did toss that word in.) That great Sonia from the Bronx. Ah. No. That is Chief Justice Roberts, joined by the liberals. Recall he was part of the four, to quote Sotomayor, who wanted to "end to this madness months ago." But, the other five would not grant a stay.
Roberts would have allowed more people to be sued, which would make it much harder to prevent the clinics from obtaining actual relief at the end of the day. Roberts didn't think a state "declaratory" judgment handed down by a lower court judge solve everything either. The basic problem of a state nullification, which the federal courts have a duty to address, remains.
Sotomayor added her own dissent to underline just how bad this all is. "For nearly three months, the Texas Legislature has substantially suspended a constitutional guarantee: a pregnant woman’s right to control her own body." The right in question is of particular concern for her.
Sotomayor also in detail discusses how broad the law's scheme to block protection of constitutional rights truly is. She compares the Texas "nullification" scheme to the principles of John Calhoun, the seccessionist friendly slavery radical. Like Roberts, she sees this as a wider problem than merely a single issue.
The Dorf on Law analysis argues that the bottom line here is that abortion rights specifically are at risk here. Surely. "A chill wind blows" regarding what the Supreme Court will protect there. Rick Hasen on Twitter also noted he didn't think Gorsuch and company would be so cavalier if gun rights or something were at stake.
But, I do think there is an open-ended problem here. I don't trust the guy to be consistent, having read him over the years, but I agree with his overall sentiment here. Rules do matter. And, too many think they don't apply to them. The Texas law is a travesty.
The final issue would be the U.S. lawsuit against Texas. The Supreme Court, with Sotomayor dissenting without an opinion, merely notes (without an opinion) that they shouldn't have taken the case. Why? Well, they didn't show up. Why should they have to tell us? (To be fair, a so-called "DIG" regularly doesn't explain; it should). The Justice Department sued Texas since rules matter. To some of us.
As noted in the Strict Scrutiny Podcast, let's not bury this among the rest of the opinions, given the watered down majority relief here, the U.S. lawsuit is ever more important. If a real state remedy was present, it would not be as important. Also, note Kagan and Breyer didn't openly - the only way that really matters - join Sotomayor. Why not?
So, this goes to the district court, and we will see how it matters in the long run, especially in the Fifth Circuit. Or, state courts. The real long run will be seen when the Supreme Court rules on the merits of abortion.
The Supreme Court was wrong not to announce this in person. It comes off as cowardly. They showed up for oral arguments. They could have showed up to announce, with Roberts and Sotomayor if they desired, the opinions here. They should have. I assume, knowing the perils, such a thing was done by a majority vote at the very least. Whatever the procedure, this is one more failure to open things to public view.
There was a "conference" scheduled on the day this case was announced. What this meant in the days of the Big V when they often didn't show up in person is somewhat unclear. Was it a big conference call? Anyway, as that "occurred" (the usual set-up was them actually being in the Court's conference room together), they didn't show up to announce this very important duo of cases. That is wrong.
(Kimberly Robinson summarized the grants.)
The decision here depended on the membership of the Court. And, that is how it is going to be. Some law professor noted the political positions of various members in their past roles, including as solicitor general. Fine. Lots of justices in the past, from the very beginning, had such roles. One was a President! That by itself is not the problem either.
A problem, for sure, is how the Supreme Court membership changed. The 2000 election was not without problems there as a matter of constitutional structure. But, so it goes. The last three nominees, however, were a step way too far. And, how they act while on the Court matters. They do not seem to deem restraint too appropriate. Why would we expect they would?
The Presidential Supreme Court Commission submitted its final report to President Biden. You can go on my side panel and find it on their website. The thing is around 300 pages long. If I wanted to print it out, it would cost me over $40 at Staples. A better means to promote it, a report a cross section of the commissioners say is very worthwhile, needs to be available.
Anyway, two members -- Tribe (who argued one of the Bush v. Gore cases) and a former federal judge signed an op-ed supporting court expansion. They rejected, one might say directly speaking to Justice Breyer, the "illusion" of judicial neutrality or the idea that judicial independence was enough. Their signing on to the report should not ignore the core problem:
But make no mistake: In voting to submit the report to the president neither of us cast a vote of confidence in the Supreme Court itself. Sadly, we no longer have that confidence, given three things: first, the dubious legitimacy of the way some justices were appointed; second, what Justice Sonia Sotomayor rightly called the “stench” of politics hovering over this court’s deliberations about the most contentious issues; and third, the anti-democratic, anti-egalitarian direction of this court’s decisions about matters such as voting rights, gerrymandering and the corrupting effects of dark money.
A lot was written about the weeds of the abortion rulings, including SCOTUSBlog and spoken about it, including Strict Scrutiny Podcast. These and other cases also involve this wider matter. Finally, there is the oh so reasonable, concerned caucus.
Meanwhile, providers likely will continue to refrain from performing abortions, at least until they get that district court judgment of the law's constitutional invalidity to use as a defense. That is bad. But the reality is that constitutional litigation takes time. The NYT did not cover Alabama for more than a year prior to Sullivan.
This asshole. The NYT did "cover" Alabama -- were they unable to say a word about it? I assume this means sending a reporter there. Others continued to cover Alabama. NYT not being the only one in the world able to do so.
Meanwhile, people are unable to obtain abortions in the state after six weeks (as defined by the state's conservative counting scheme) as blocked by the law. A person's control of their body is not the same as a single paper's ability to send reporters to Alabama. This is "bad," but "litigation takes time." Bullshit is not required for reasoned constitutional analysis.
Early on, he condescendingly referenced "media" that he deemed to be unreasonably in effect saying the sky is falling. In time, he had to tweak things, when fellow law professors et. al. voiced similar concerns. I called him on it (without quoting him by name) at the now comment-free [some conservative trolls driving them to shut down comments] Dorf on Law, and he got annoyed. Without actually fully responding to my concerns.
I have the "someone wrong on the Internet" comic on my blog to remind that each wrong person is not the median. But, some opinions are broadly held enough to emphasize. Or, to underline how wrong they are. They can be useful in that fashion.
Again, a "chill wind blows," to cite Justice Blackmun, who I recall reading as a teenager. Various reports note how bad the result is. Surely. This is true without saying it "upheld" the Texas law, even if in practice it does that to some degree. Thus, judge applying current constitutional law still has to follow Planned Parenthood v. Casey, which Roberts himself cited as the law. For the time being.
President Biden dropped a "I'm concerned" statement, supporting abortion rights and a national abortion protection law. It's nice to have a pro-reproductive rights president, even if such a law is a long shot with the filibuster. As to if the Barrett Court would uphold such a law, we are far away from that. Ditto the idea (assumed as a given by some) that total Republican control would mean a national abortion ban.
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The importance of the opinion led me to write this extended stand-alone entry. I noted some cases were granted full review today, which is often noted before the Order List is released on Monday with denials and other odds and ends. Another sole order was dropped, which (without comment) rejected a request for a stay involving the sales of flavored e-cigarettes.
And, perhaps -- like me -- only finding some final mistakes after publication, a couple typos were already found in the abortion opinion. A dated link is now provided with two corrections.
These things tend to be typos (as is one of the two here, one number for another) or oversights, but the first correction added that Gorsuch "announced the judgment" of the Court. He actually did not really do this -- they didn't show up. It still says that at the "today at the Court" feature that they will not take the bench.
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