02 September 21
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My generally unfocused red-eyed rage at what the Supreme Court did late Wednesday night cleared momentarily and I realized that, according to the 5-4 decision allowing the blatantly unconstitutional anti-choice Texas law to stand, a state can pass all kinds of blatantly unconstitutional laws as long as they leave the enforcement of those laws to bounty hunters.
Jesus, we're back at the Kansas-Nebraska Act again.
This moment of clarity passed, quickly, and unfocused red-eyed rage reasserted itself. This was completely appropriate when directed at a corrupted Supreme Court majority which did what it wanted to do, legitimate precedents be damned, and through such preposterous playground illogic that William Blackstone should rise from his unquiet grave and smack all five of those hacks upside their watery heads with copies of his Commentaries. We all knew that Brett Kavanaugh and Amy Coney Barrett were bag-job nominations for the specific purpose of voting the way they did late Wednesday night, and we all knew that Neil Gorsuch and Sam Alito were just waiting in the weeds with Clarence Thomas, who’d been there longer than any of them. But, at their moment of ultimate triumph, they at least could have tried a little harder. I mean, look at this mess.
The State has represented that neither it nor its executive employees possess the authority to enforce the Texas law either directly or indirectly. Nor is it clear whether, under existing precedent, this Court can issue an injunction against state judges asked to decide a lawsuit under Texas’s law…
Finally, the sole private-citizen respondent before us has filed an affidavit stating that he has no present intention to enforce the law. In light of such issues, we cannot say the applicants have met their burden to prevail in an injunction or stay application. In reaching this conclusion, we stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit. In particular, this order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.
The Supreme Court of the United States is saying two things here: 1) that it really doesn’t understand the law it is being asked to adjudicate, and 2) that the Texas law, which depends upon a transparent scheme to dodge judicial review, is beyond the Supreme Court’s reach because its transparent scheme to dodge judicial review is so cleverly drawn. No wonder the five cowards in the majority issued their order unsigned. I wouldn’t want my name attached to this pile of offal, either.
Justices Sonia Sotomayor and Elena Kagan were not so reticent, and they clearly can see a church by daylight. From Sotomayor:
The Court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand…Because the Court’s failure to act rewards tactics designed to avoid judicial review and inflicts significant harm on the applicants and on women seeking abortions in Texas, I dissent…In effect, the Texas Legislature has deputized the State’s citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors’ medical procedures.
The Legislature fashioned this scheme because federal constitutional challenges to state laws ordinarily are brought against state officers who are in charge of enforcing. By prohibiting state officers from enforcing the Act directly and relying instead on citizen bounty hunters, the Legislature sought to make it more complicated for federal courts to enjoin the Act on a statewide basis.
Today, the Court finally tells the Nation that it declined to act because, in short, the State’s gambit worked. The structure of the State’s scheme, the Court reasons, raises “complex and novel antecedent procedural questions” that counsel against granting the application, ante, at 1, just as the State intended. This is untenable. It cannot be the case that a State can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry.
For her part, Kagan expanded her anathemas to include the Court’s continuing abuse of its “shadow docket,” of which this order is the apotheosis.
Today’s ruling illustrates just how far the Court’s “shadow-docket” decisions may depart from the usual principles of appellate process. That ruling, as everyone must agree, is of great consequence. Yet the majority has acted without any guidance from the Court of Appeals—which is right now considering the same issues. It has reviewed only the most cursory party submissions, and then only hastily. And it barely bothers to explain its conclusion—that a challenge to an obviously unconstitutional abortion regulation backed by a wholly unprecedented enforcement scheme is unlikely to prevail. In all these ways, the majority’s decision is emblematic of too much of this Court’s shadow-docket decision-making—which every day becomes more unreasoned, inconsistent, and impossible to defend.
(It is notable that Chief Justice John Roberts joined the minority in dissent. This further reinforces my belief that the only issues on which Roberts is reliably implacable are restricting the franchise and enhancing the corporate power of the oligarchy. That’s why Citizens United is his defining decision. For Roberts, that was a two-fer.)
Expand the Court. Do it tomorrow. Jesus Christ, a 5-4 majority just ruled that a cheap legal three-card monte game at the heart of a law was too clever for the Constitution to address. This whole decision reeks of the same kind of corruption that afflicted the 1919 World Series.
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