SCOTUS Watch

The problem wasn’t just the losses; the problem was that his team moved the game to another field, then stole the ball and replaced it with a time bomb, then changed the rules, then lied about it, and then set the entire field ablaze. Now he wants everyone to shake hands and go home. The public is not so inclined. He is far too smart to believe we are all this stupid, which suggests to me that he knows we are right.

Dahlia Lithwick is back on Twitter, after being off a long time, in part because she has a new book out. 

She continues to strongly make her case at Slate. When Slate had a "fray," I read her takes on the Supreme Court. I thought they were a bit too snarky and coy sounding myself. Her bluntness (shared by Mark Joseph Stern, who is also a lead analyst there) is useful and on point though here. 

This immediate issue here is Chief Justice Roberts coming out last week (I first saw commentary of it late Friday night after posting my last wrap-up) at a judicial conference and being concerned about the strong attacks. He wanted to make clear merely opposing results does not make the Supreme Court illegitimate. Good thing there wasn't a range of other things!

And, if the opinions are so bad not to be credible, what opinions say can be a problem.  His argument was wrong all around. As Dahlia notes, the guy knows this.  He was bullshitting  and knew it.  This might add to why Justice Kagan is out there saying things like this:

“When courts become extensions of the political process, when people see them as extensions of the political process, when people see them as trying just to impose personal preferences on a society irrespective of the law, that’s when there’s a problem — and that’s when there ought to be a problem,” Kagan said during an event at Northwestern University School of Law.

Kagan is savvy enough to know how her comments are being picked up here.  When justices in public forums move past bland statements, they probably are trying to send a message.  Sotomayor has mixed kumbaya (just love Gorsuch! he's my pal!) with some bite (if you want change, speak out).  Kagan has been more diplomatic.  But, she has maneuver room on a 6-3 Court, and sees how things are going.

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In our last episode, we had a cliffhanger regarding a dispute involving the Jewish Yeshiva University recognizing a LGBT student club.  The matter was held up with the expectation that we would get a full judgment soon.

The Supreme Court 5-4 (per curiam with Alito in dissent for the usual suspects, here joined by Barrett) this week correctly noted it was too soon for them to take a pending state case.  There were other means of relief.  I do think even here, as compared to simply denying it as clearly premature, sends a message. Be careful, or we will grant relief.  It is not great. 

Alito started off misstating the facts (talk of instruction when only recognizing a club, one of many).  He tossed in some bad argument. And, a general "why don't you just give us what we want, we will win long term anyway" message.  The whole thing was only a few pages.  It is not some life and death matter.  

The actual issue is tricky. But, this shadow docket maneuvering is a sign of the times, including SCOTUS favoring of some religions.

One little inside baseball bit here also is that the order was placed on the "opinions related to orders" page since Alito's opinion is to an order.  But, the Supreme Court itself also released an order with a brief opinion attached.  So, why not put on it the more known Orders Page?  It would be even better if the front page had the "most recent" stuff that happened.  The website had gotten somewhat better, but it still has issues. 

ETA: There hasn't been a correction for a while. I noticed that the opinion here has a correction, "Alito dissenting" placed too soon.  The first page was the order of the Court.  It was corrected the next day though if that was immediately posted, I missed it. 

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Topical Book: After being lucky, I had some trouble finding a good book. One attempt was The Abortionist by Rickie Solinger, which had a 25th Anniversary edition a few years ago.  This might be influenced by my not liking some books that once upon a time I did (online reading being a big factor in not being able to consume some stuff), but I did not like the style.  

The book seemed clunky, instead of just going with a straightforward account of her life.  (Born in 1895, the subject performed abortions illegally for around fifty years, settled in the Northwest.)  The first chapter involves a woman getting an abortion in the 1960s.  It is a good discussion, including her fears and her horror when the the abortionist was arrested, and the woman was put on the stand, her intimate life put on display.

The subject material is surely of interest, including dealing with abortion in the criminal age.  But, I did not like the style of the book.  It also didn't help that the woman is not really portrayed as a very likable person, even if she provided an essential service, often helping those who needed it without charging them. She had a narrow escape, but eventually was prosecuted after decades of openly providing abortions in the 1950s.

The fact she made lots of money (and allowing her daughter to live a comfortable, if not very happy, life), living it up, didn't come off well either.  It wasn't some moral failing as much as "this isn't pleasant reading, really."  I also simply don't believe this talk of never losing a patient or even having any problems.  After saying that, eventually we hear she did have a patient have serious complications (there was a bit of an asterisk, since it wasn't her normal office), causing that first legal scare.

She performed thousands of abortions in early to mid-20th Century. I don't think it is realistic that there were never any complications. She has to be both a fantastic operator and lucky for that not to happen. This is also not the same thing as someone dying.  That would cause problems publicly and I think it is not something she would easily hide.  But, there was likely a few hard cases at the very least.  How would we know about it since we are left with her own self-reporting mostly here.  

Anyway, the book tells an important story, but I stopped reading it not that long into things. The last thing I skimmed was the account of some guy setting up a sort of abortion cartel on the West Coast, a sign of what happens when you make things illegal.  It again shows the book is an important historical resource.  

I simply did not like its style.  

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As we approach a new term with foreboding, let us honor what should be as well as recognizing what has been.  9/17 is Constitution Day (aka Citizenship Day), the day when the original document was signed.  We the People still have a role to play here.