Supreme Court Plays Stupid
Last night, in the dead of night, the Supreme Court voted to uphold the ridiculous Texas abortion bounty hunting law. Not the way they did it the night before, by simply ignoring it, but by straight up voting to allow it to continue (it had already gone into effect), at least for now.
The vote was 5-4, as it will likely be for every other abortion decision until someone falls down dead (or we pack the court). Gorsuch, Kavanaugh, Barrett, Thomas, and Alito voted to let Texas keep it, while Chief Justice Roberts, Breyer, Sotomayor, and Kagan voted against.
The majority opinion, which is unsigned basically says, "Oh boy, this is such a novel and unprecedented approach to undermining a constitutional right that we really just can't think of any way to legally refute it or prevent it from going into effect!" which is definitely some bullshit.
"The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue. But their application also presents complex and novel antecedent procedural questions on which they have not carried their burden. … 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."
Ooh! It's just too hard! Whatever shall they do? There's just nothing in the official Supreme Court handbook addressing such an incredibly brilliant chess move that just so happens to coincide with their personal dreams of ending Roe v. Wade. It's like they're a genie and someone wished for infinite wishes. Their hands are simply tied.
Shockingly, however, the other justices on the court were able to see right through the scam.
Justice Sonia Sotomayor's dissent called the rest of the court on their bullshit, pointing out that allowing a state to "evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry" is maybe not the most solid of ideas. Because, duh, if Texas can do this, then what is preventing any other state from taking away other constitutional rights by allowing citizens to sue.
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. Last night, the Court silently acquiesced in a State's enactment of a law that flouts nearly 50 years of federal precedents. Today, the Court belatedly explains that it declined to grant relief because of procedural complexities of the State's own invention. [...]
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.
Justice Elena Kagan's dissent was short and scathing and addressed not only the fact that Texas was obviously scheming here, but also the way the court is using the "shadow docket" to allow unconstitutional laws to go into effect.
Without full briefing or argument, and after less than 72 hours' thought, this Court greenlights the operation of Texas's patently unconstitutional law banning most abortions. The Court thus rewards Texas's scheme to insulate its law from judicial review by deputizing private parties to carry out unconstitutional restrictions on the State's behalf. As of last night, and because of this Court's ruling, Texas law prohibits abortions for the vast majority of women who seek them—in clear, and indeed undisputed, conflict with Roe and Casey.
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 un-reasoned, inconsistent, and impossible to defend.
I would be willing to bet that the judges voting to uphold the law would be able to see right through this scheme if this were about guns instead of abortion. Or really, about anything instead of abortion. But they want abortion to be illegal so badly that they are just going to put up horse blinders and let this all go through because it's frankly easier for them to do this without sufficient explanation than it would be for them to actually overturn Roe and Casey. Because they'd need to provide an actual explanation for that.
If this is not good reason to pack the damn court, I don't know what is. The conservative justices — including two Trump appointed that should not have been his to appoint in the first place — have made it clear that they will not do their jobs when it comes to abortion, and possibly any other pet issue they may have.
It should be incredibly clear at this point that the Right is not playing fair, they're not playing by the rules, and they do not give a flying shit about the rules or have any respect for anyone who follows the rules. This is not a thing where the bad guys cheat and lie and the good guys keep playing fair and are eventually rewarded in the end for their decency. There's not going to be some big romantic scene at the end of the movie where Democrats take off their glasses and let down their hair and the "reasonable Republican" BMOC's finally realize it was them they truly loved all along. It's not fucking happening. They are taking down abortion by any means necessary, while Democrats occupy two branches of government.
All is not lost, there are still things we can do to protect reproductive rights. There is the Women's Health Protection Act (WHPA), there is the Equal Access to Abortion Coverage in Health Insurance Act (EACH). We can support those laws, we can pack the court, we can end the filibuster and we can damn well play Calvinball if that's what they're going to play. Or, you know, we can sit around blaming each other on Twitter, venting spleens and reopening wounds all day. It's up to us.
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Robyn Pennacchia is a brilliant, fabulously talented and visually stunning angel of a human being, who shrugged off what she is pretty sure would have been a Tony Award-winning career in musical theater in order to write about stuff on the internet. Follow her on Twitter at @RobynElyse