SCOTUS Watch: More Orders

Mifepristone

The Supreme Court released the expected order list with additional grants. The most notable involves the abortion pill cases that have played out in the Fifth Circuit. Two issues are involved: rules regarding use and a more expansive request that would turn the clock back over twenty years. 

The Fifth Circuit pared back the breadth of the district court case regarding access. The other case was blocked. The Supreme Court did not grant the request to take the broader case. It might have purposely emphasized the point by singling it out as the one case on the order list that was not accepted. 

(The Supreme Court regularly does not explain itself in its orders or at best writes very little, leaving a lot unsaid. It is left to lower court judges, advocates, and the press to "read between the lines" as appropriate. This includes choices regarding what cases to take  and what questions to decide.)  

The federal government asked them to review the access case (or it would have gone into effect). They did so. One analysis summarized:

Mifepristone and other abortion pills account for half of abortions in the United States and mifepristone has been safely used by over 5 million people since its FDA approval. Which is not to say there have been 5 million abortions. Drugs like mifepristone are often prescribed by OBGYNs to manage miscarriages which have already begun naturally.

If the decision is upheld, the drug could no longer be delivered by mail, even in states like California or Massachusetts where abortion is legal. It would have to be prescribed by a doctor after three medical appointments and only up through the seventh week (right now it’s available through the tenth).

I agree that "decisions of faith, personal autonomy, health, and family planning are private."  The author of the substack also wrote a book on the first cabinet. Suitable reference to Bill of Rights Day (12/15/1791 was when it was ratified). 

More On Dobbs

Underling that SCOTUS news comes even when nothing new is expected, there is an extended "behind the scenes" article on the Dobbs opinion. 

The NYT "drew on internal documents, contemporaneous notes, and interviews with more than a dozen people from the court — both conservative and liberal — who had real-time knowledge of the proceedings." Good to see leaks stopped. 

One notable bit is that Barrett did not vote to grant cert. Breyer was willing to vote with Roberts (15 weeks ban okay) if held the line from overturning Roe. Before the justices (5-4) refused to hold up SB8, the Texas law that foreshadowed the end of Roe, Sotomayor wrote “What a pity that we cannot do the right thing,”

Yeah. The abortion pill case underlines -- going against social consensus -- how far ahead of the public the Supreme Court could be these days. These cases are a result of Dobbs v. Jackson. My feelings about stripping fundamental rights away are still raw. Imagine how those directly affected feel. 

Oh. Can't leave out (given my hobbyhorse) that Gorsuch and company [Kavanaugh ultimately disagreed] were ready to stop all opinion announcements, including dissents from the bench. Gorsuch is singled out as thinking it would promote public respect. Ha ha. Breyer wanted to have an oral dissent in Dobbs. They did not have them given COVID protocols.

A lot of "Alito leaked" takes too. The article reaffirms (at least in effect) that the leak helped stop any last-ditch Roberts/Breyer compromise.  The loyalty of clerks to liberal justices makes it hard for me to suspect a liberal clerk did it. Breyer and likely Kagan would clearly strongly oppose the tactic. Sotomayor is also no major rule breaker either. 

Abortion was the "white whale" for Alito and Thomas. Thomas has a modicum of respect for Court culture. I think Alito > Thomas is fair odds. I also think more than the Politico people involved in the release know, perhaps this piece's authors.

I understand journalistic concerns here. It does aggravate me that we do not know. If we can leak a draft opinion, it might be time to expose the leaker. 

Other Grants 

The Supreme Court also granted other cases, including a capital matter. 

One petition involves a January 6th defendant, which has some implications for Trump's prosecution. Nonetheless, it looks like they purposely took a narrow case, and it should not be a problem regarding the Trump prosecution. 

Meanwhile, Thomas should recuse.  He can consider the matter as the briefing in the Trump immunity case continues. We might see more action there before the end of the year.  

Second Amendment

Supreme Court also refused to block Illinois’s ban on assault weapons and high-capacity magazines during litigation. No justice said a word of explanation. The court of appeals already upheld the law and rejected a request for the full panel to hear the case. 

So, the law can go into use with the challengers only left with the hope the Supreme Court grants cert through the normal process, which would at least take things into 2024 and perhaps beyond. 

The Supreme Court has taken a case involving carrying guns outside the home. It has recognized a right to own handguns in the home. It has yet to show much interest in dealing with assault weapons or whatever gunsplainers want to call them.

We have to pick our spots for optimism and sanity these days. 

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Next week concerns honoring Justice O'Connor. The Senate unanimously voted on a bipartisan resolution:

A resolution acknowledging the lifetime of service of Sandra Day O'Connor to the United States as a successful Arizona State Senator, trailblazer, expert collaborator, educational advocate, and one of the great Justices of the Supreme Court of the United States. 

There also is the holiday party. Meanwhile, I will continue to keep track of things.

One more tidbit. At the end of the tax case that Alito did not recuse from, Roberts accidentally started to say the "case is dismissed" (see here), which was edited out (see here, where you just get the "uh" where he caught himself).

Little petty thing that is gratuitous.