I Too Remain Pissed

Someone who in the past compared delays of abortion rights in Texas to litigation delays of some newspaper being interfered from covering something cited the latest in the SB8 case. The law professor grants the law clearly conflicts with current precedent and the Fifth Circuit is full of it.   

Probably by mistake, he left comments open, and someone responded:

If indeed the inferior federal court is getting out in front of SCOTUS (which is unclear), it is reminiscent of the same-sex marriage issue, where lower federal courts were overturning state laws and SCOTUS precedent in anticipation of the 5-4 Obergefell opinion, which Sotomayor joined. That is small consolation to those whose legal universe consists wholly of Roe v. Wade uber alles.

The reply didn't completely answer the claim:

Except: 1) No lower court screwed around with procedure in those cases; 2) those lower courts decided the substantive legal issue. If the Fifth Circuit had declared the law valid in anticipation of overturning Roe, the analogy works. Not this.

This is true, but incomplete.  The lack of good faith is suggested by the "above all else" (German) potshot.  The "SCOTUS precedent" here was Baker v. Nelson, which the person granted (and then comments were closed).  The person didn't (not writing in good faith, I'd argue) answer any of the rest of what the other replies said.  So it goes.

I covered this issue in the past when the same sex marriage litigation was ongoing in various posts.  Still, it's useful to repeat it, since these things clearly never really go away, do they?  Yes, the Supreme Court ultimately bluntly "overruled" Baker v. Nelson.  But, this doesn't change that the ruling was simply stating that the lower court opinion did not raise a substantial federal question.  That was the whole opinion.

The lower courts did not "overrule" (not having the power) Baker v. Nelson.  The courts argued that the opinion was limited and intervening events clarified that it did not block protecting same sex marriage. 

As I noted there, e.g., the state court did not address sexual orientation discrimination.  Lots of intervening Supreme Court opinions, not bare statements which don't say why the case wasn't worthy of more (plus at the time, SCOTUS was required to decide the case somehow) at the very least made it a substantial federal question.  As RBG noted in one of the oral arguments, even 1970s sex discrimination cases changed the law there.

Justice Kennedy's opinion clearly buried Baker v. Nelson, no matter what limited reach it had.  This did not make the lower courts in the same position of some lower court that blatantly ignored Roe v. Wade or acted in expectation it would be overruled.  Planned Parenthood v. Casey is still on the books; Roberts who provided the fifth vote in the latest substantive abortion dispute said as much.  

I think the reply basic skips over the fact that there is an argument that the lower court implicitly acted assuming Roe was going to be overruled (you know, that is partly why Sotomayor is "pissed," to cited the somewhat patronizing sounding title of the piece). So, the comparison is not necessarily wrong on that front.  

And, I think the rest is quite relevant.  A few lower court judges took a narrow view of their discretion given Baker v. Nelson. But, there was a lot more room there than for an honest lower court judge here.  A good faith reply not sneering at the apparent group (happy 49th) "Roe and that's it" would perhaps understand that.  Or, say more.

I have the "Someone Is Wrong On the Internet" comic near my computer.  But, sometimes error is a useful way to address certain things.  Plus, it is pretty timely.  I understand the desire not to have to deal with sometimes tiresome comments.  OTOH, the argument was germane and worthy of a full refutation.  

Guess he will be more careful about leaving comments open, most of the people there (as seems to be a trend at where I go) closing them.  When open, I will continue to type.