RSN: FOCUS: The Supreme Court's Abortion Ruling Is Even More Unsettling Than It May Seem

 

 

11 December 21

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FOCUS: The Supreme Court's Abortion Ruling Is Even More Unsettling Than It May Seem
Moira Donegan, Guardian UK
Donegan writes: "Don't be fooled by the supreme court's nominal hedging on its endorsement of SB8, the Texas abortion ban that deputizes private citizens to sue anyone who assists in an abortion after six weeks' gestation."

In allowing Texas’s outrageous abortion ban to stay in place, the court signaled that it is willing to sacrifice its own legitimacy and power in order to destroy Roe

Don’t be fooled by the supreme court’s nominal hedging on its endorsement of SB8, the Texas abortion ban that deputizes private citizens to sue anyone who assists in an abortion after six weeks’ gestation. In a ruling on Friday, the court held that a lawsuit by Texas abortion providers could go forward – but only on narrow grounds. Only those state officials responsible for licensing medical providers may be sued, the court ordered – no one else involved in the state’s practical maintenance of SB8 is liable. The ruling said, for instance, that the providers could not sue court clerks, those bureaucrats tasked with actually docketing the lawsuits that would enforce SB8.

For providers, it seems that the best possible outcome for the suit now is that they may be able to secure an injunction preventing medical providers from being delicensed. These perplexing limits placed by the court on which parties can be sued to challenge SB8 ensures that though the suit against the law will be at least partly allowed to go forward, it will be largely toothless.

In the meantime, SB8 will remain law. Women in Texas are effectively banned from securing a legal abortion in the state, even though the still-standing Roe v Wade decision says that they have a right to one. It’s likely that SB8 will remain in effect at least for the duration of Roe’s lifetime – meaning that Texas women will not be able to obtain legal abortions after six weeks for the foreseeable future. Many of the initial media responses to the court’s opinion emphasized that since the suit was allowed to go forward, on technical grounds, the ruling was a narrow win for the abortion providers. But in reality Friday was a massive win for the rightwing Texas government, and for anti-choice forces nationwide.

That SB8 has been allowed to take effect – now for the second time – by the supreme court reflects the justices’ eagerness to gut abortion rights. The fact of the matter is that the court is already set to overturn Roe and allow states to ban abortion outright. That much was clear to anyone who listened to last week’s oral arguments in Dobbs v Jackson Women’s Health, a case surrounding the constitutionality of a 15-week ban in Mississippi, which devolved into grim misogynist spectacle as the Republican appointees held court on the supposed ease of giving infants up for adoption and their own robust comfort with overturning long-settled precedent.

That ruling is scheduled to come down in late May or early June. When it does, a slim majority of states are expected to ban abortion, either immediately or very soon thereafter. That means that soon SB8 – and the copycat bills that it has inspired in states like Florida and Arkansas – won’t be necessary for the anti-choice lobby to achieve their aims. Instead of concocting an elaborate enforcement process in which rogue anti-woman vigilantes enforce their abortion bans, the states will be able to enforce their bans themselves.

SB8, then, and the supreme court’s embrace of it, can be understood not only as a harbinger of the justices’ deep contempt for the abortion right, but also of their childish impatience to exert this contempt upon American women. They can’t even wait six months. They want to ban abortion right now. In pursuit of this goal, the supreme court has proven itself willing to undermine its own capacity to oversee state laws, to enforce federal supremacy, and to protect constitutional rights.

The anti-choice substance of the court’s decision in SB8 was not surprising; its embrace of Texas’s tactics perhaps was. Aside from its direct attempt to undermine women’s rights, SB8 also took aim at judicial authority. By banning abortion long before viability, the law flouted the supreme court’s precedents in Roe and Planned Parenthood v Casey. But that much a slew of vehemently anti-choice justices would probably forgive: all six of the Republican appointees clearly believe that Roe was wrongly decided, and at least five of them (all but Roberts, who seems more trepidatious) appear eager to overturn it. But in its novel enforcement mechanism, SB8 sought specifically to evade judicial review – not just to give the court an opportunity to overturn its own precedent, but to make it so that within Texas borders supreme court precedent didn’t matter.

In her dissent, Justice Sonia Sotomayor compared SB8 to the views of John C Calhoun – a nineteenth-century pro-slavery campaigner who argued that states have the right to nullify federal laws that they do not like. America fought its civil war in no small part over this question. By first allowing the SB8 to go into effect, in September, and then by gutting the lawsuit against it this Friday, the supreme court has, shockingly, endorsed a scheme to undermine its own power, and granted a state the ability to evade federal precedent. Nullification, it seems, is back in style.

For years, court watchers have wondered whether the justices’ institutionalist instincts would overcome their misogynist ones: if the Court had to choose between maintaining its own power and legitimacy, and overturning Roe, which would it choose? Now, it seems, we have our answer.

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RSN: FOCUS: Charles Pierce | Roe v. Wade and Planned Parenthood v. Casey Are Dead Precedents Walking

 

 

02 December 21

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FOCUS: Charles Pierce | Roe v. Wade and Planned Parenthood v. Casey Are Dead Precedents Walking
Charles Pierce, Esquire
Pierce writes: "This one is over, folks. The decision will be 6-3 or, perhaps, 5-4. Roe v. Wade and Planned Parenthood v. Casey are dead precedents walking."

The Supreme Court conservatives signaled as much in oral arguments regarding a Mississippi abortion law.

This one is over, folks. The decision will be 6-3 or, perhaps, 5-4. Roe v. Wade and Planned Parenthood v. Casey are dead precedents walking. Chief Justice John Roberts tipped his hand late in the session. In a colloquy with U.S. Solicitor General Elizabeth Prelogar, Roberts made the astonishing assertion that the Mississippi law was not “a prohibition” because women in Mississippi can still avail themselves of their current constitutional rights up until the 15th week of their gestation.

This is nonsense. The Mississippi law was specifically designed to prohibit abortion, and it was specifically designed by its authors to take advantage of the carefully engineered new majority on the Supreme Court, where Merrick Garland’s nomination was slow-walked into oblivion while that of Amy Coney Barrett’s was sent up on a rocket sled, and where Brett Kavanaugh was confirmed despite his having clearly bullshitted his way through his confirmation hearings—most notably, given our current moment, on his great respect for stare decisis. Roberts is not a stupid man. He knows the history of the Mississippi law as well as anybody does. He knows what it does and he knows why it does it. He also knows that a complete, unambiguous prohibition is the obvious next step. There are already laws ticking away in state legislatures, including Mississippi’s, to do that very thing.

(Personally, I can easily envision state laws prohibiting women from going out of state to access abortions. Welcome back to the Fugitive Slave Law. I can envision that as easily as I can envision the eventual state-based assaults on gay marriage, and the constitutional right to privacy itself.)

Here, however, as Roberts pretends he doesn’t know any of these things, I think we see him fashioning the “reasonable” camouflage for his eventual vote to overturn 50 years of precedent. And, even if he doesn’t employ the camouflage, there are clearly still five votes to read reproductive freedoms out of the Constitution, so Roberts would be free to join the minority if he so chose. The coffin is now complete and sealed.

We should pause here to commend Scott Stewart, the solicitor general of Mississippi, for being one of the most unctuous presences to grace the halls of government since the departure of Kenneth Starr. I don’t know if I’ve ever heard a more revolting set of remarks than listening to the solicitor general of Mississippi Goddamn praising the wisdom of Brown v. Board of Education as a reason to restrict established constitutional freedoms. Justice Kavanaugh also ran down a whole litany of important rulings that overturned precedents, as though he would have been with the majority on any of them. The gorge rose steadily and stayed at high tide.

In reality, the opposing counsel were merely accessories. This was a case in which the justices were clearly contending with each other. Justices Sonia Sotomayor and, surprisingly, Justice Stephen Breyer came in very hot on the issue of how the Mississippi law’s stated reliance on the ideological shift on the Court was an arrow aimed dead at the heart of the Court’s credibility.

"Will this institution survive the stench that this creates in the public perception," asked Sotomayor, "that the Constitution and its reading are just political acts? I don’t see how it is possible."

This point is profound enough on its own. But implicit in it was a rebuttal to one of Mississippi’s sub rosa attacks on Roe: that the decision has been so “divisive” that, somehow, leaving it up to the individual states will ameliorate the anger it has provoked. It is considered impolite to point out that the divisiveness has come mainly from the one side of the debate that has an actual body count. Or that, if this view prevails, it’s not just a victory for conservative politicians and ambitious theocrats, it’s also a victory for snipers and clinic bombers, for Eric Rudolph, and James Kopp, and Paul Hill. That part of the anti-choice movement doesn’t get discussed at fundraising parties, but that is the most graphic historical evidence of what the “divisiveness” of the debate has been about.

In any event, it’s hard to see any result out of Wednesday’s arguments that doesn’t leave the Mississippi law intact. This will open the floodgates fully, not only on reproductive freedom, but also on a lot of the social progress that has come about since the Court decided all those cases that Stewart and Kavanaugh pretended to honor as they equated Roe with Supreme Court decisions that legitimized racial segregation and abusive police tactics. The law isn’t supposed to exist this far beyond the looking glass.

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RSN: FOCUS: Charles Pierce | Expand the Supreme Court. Do It Tomorrow.

 

 

02 September 21

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FOCUS: Charles Pierce | Expand the Supreme Court. Do It Tomorrow.
Charles Pierce, Esquire
Pierce writes: "In an unsigned order, the highest court's coward majority ruled that unconstitutional laws are cool so long as they're enforced by bounty hunters."

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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