Saturday, October 9, 2021

"Home Cooking" for Texas in Abortion Case?

             The state of Texas seems likely to get a generous serving of “home cooking” when a panel of three federal appellate judges hear the state’s effort on Tuesday [October 12] to salvage the state’s patently unconstitutional ban on abortions after the sixth week of pregnancy. The panel, with two Republican appointees and one Democratic appointee, already gave the state a boost on Friday (October 9) by temporarily lifting the injunction that a federal district court judge issued earlier in the week to block enforcement of the law.

Two of the three judges on the panel have deep roots in the state’s conservative Republican politics: Catharina Haynes, a former state court judge appointed to the Fifth Circuit in 2008 on the recommendation of the state’s two Republican senators, and James Ho, a former Texas solicitor general appointed to the appeals court by President Trump in 2018. Ho may have the decisive vote in the appeal if, as seems likely, Haynes and the Democratic appointee on the panel, Carl Stewart, a former state appellate judge in Louisiana, disagree.

            In issuing the injunction against the law on Wednesday (Oct. 6), U.S. District Court Judge Robert Pitman emphatically rejected the state’s effort to avoid judicial review by vesting enforcement not with state officials but with private citizens he called “anti-abortion vigilantes.” Any private citizens suing to enforce the law, Pitman concluded, would be “state actors” subject to a federal court injunction.

Specifically, the so-called Texas Heartbeat Act incentivizes private citizens to enforce the law by allowing a private citizen to be awarded $10,000 for successfully suing anyone who performs or induces an abortion or aids and abets an abortion after “cardiac activity” in an embryo can be detected, usually around the sixth week of pregnancy.

The lawyer who designed the act’s unprecedented enforcement scheme was Jonathan Mitchell, a former state solicitor general and ex-law clerk to Supreme Court Justice Clarence Thomas. As it happens, Ho appears to be on ideologically compatible terms with Mitchell; Ho served as moderator with Mitchell as a panelist on a Federalist Society program at the University of Chicago Law School in February 2019.

Ho is also no stranger to abortion-related cases engineered by the Texas state legislature. Within months of taking his seat on the Fifth Circuit, Ho voted in July 2018 to uphold a Texas law requiring burial or cremation of fetal remains after an abortion. He added in his opinion that the Catholic bishops defending the law had the right “to express their profound objection to the moral tragedy of abortion, by offering free burial services for fetal remains.”  

Pitman, appointed to the federal bench in Austin by President Obama in 2014, wrote a comprehensive 113-page opinion that thoroughly answered all of the state’s defenses of the law and all of the state’s objections to the United States’ suit seeking to invalidate the law. Pitman began by stating what was surely obvious to the Texas legislators in enacting SB8. “A person’s right under the Constitution to choose to obtain an abortion prior to fetal viability is well established,” Pitman wrote. “Fully aware that depriving its citizens of this right by direct state action would be flagrantly unconstitutional, the State contrived an unprecedented and transparent statutory scheme to do just that.”

Pitman’s decisive action was in sharp contrast with the Supreme Court’s earlier decision on Sept. 1 to allow SB8 to take effect. The five Republican-appointed conservatives in the majority authored an unsigned, one-paragraph opinion that acknowledged “serious questions” about the constitutionality of the law, but they threw up at their hands because of the “procedural questions” created by the state’s private enforcement scheme. The abortion clinics who brought the case to the Supreme Court, Whole Woman’s Health v. Jackson, Judge, named as defendants the class of state court judges in Texas empowered to entertain the private enforcement suits authorized by the law.

Pitman circumvented the procedural question by directing the state to publish on “all of the public-facing court websites . . .  a visible, easy-to-understand instruction to the public that S.B. 8 lawsuits will not be accepted by Texas courts.” Pitman further instructed the state to distribute copies of his preliminary injunction to all of the state’s judges and all of the state’s court clerks. Pitman acknowledged that the court might not be in the best position to dictate the particulars and, instead, ordered the state to submit its plan for disseminating the information to him for “review and approval.”

If reviewed by a non-stacked panel, Pitman’s meticulous opinion would warrant an affirmance with an acknowledgment of its scholarly thoroughness In issuing the injunction against the law, Pitman sent the state’s lawyers packing by refusing to consider the state’s application for a stay pending the inevitable appeal.

The state, Pitman wrote at the end of his opinion, “has forfeited the right to any such accommodation by pursuing an unprecedented and aggressive scheme to deprive its citizens of a significant and well-established constitutional right.” Other courts may rule differently, Pitman acknowledged, but he was unshaken in his decision. “This Court will not sanction one more day of this offensive deprivation of such an important right,” Pitman wrote in conclusion.

The Fifth Circuit panel took only five hours on Friday before issuing the temporary administrative stay to allow the law to go back into effect pending next week’s appeal. The panel wrote nothing by way of explanation for putting Pitman’s decision on hold; Haynes and Ho have their work cut out for them to come up with legal rationales to uphold the law, as they surely hope to do.

Saturday, October 2, 2021

Justices Unhappy With Unfavorable News Coverage

           Supreme Court justices have taken up a new pastime, media criticism, even though they have been working around the clock recently to issue momentous decisions late at night from the Court’s shadow docket. The so-called “shadow docket,” once an issue only for obsessive Court watchers, has emerged over the past few months into a concern for congressional committees and for newspaper editorialists and legal commentators generally.

            The concern peaked after the justices voted 5-4 in a shadow docket decision on September 1 to allow the state of Texas to put into effect a law banning abortions after the sixth week of pregnancy in direct contradiction to the landmark abortion rights decision in Roe v. Wade (1973). That ruling, reaffirmed as recently as 1992, allows a woman to terminate a pregnancy up to the 24th week of presidency.

            Five of the justices – most recently, Samuel A. Alito Jr. in a speech on Thursday [Sept. 30] at Notre Dame Law School – have reacted defensively to the general tone of recent news coverage suggesting that the justices are voting along partisan lines rather than according to law. The justices have taken to the lecture circuit to air their views just as their poll numbers are under water at an all-time low and as a growing number of Americans – 37 percent in the most recent survey -- consider the Court to be “too conservative.”

            Alito, speaking for nearly an hour to a seemingly friendly audience at Notre Dame Law School, objected to the six-year-old coinage “shadow docket” to refer to what he called instead the Court’s “emergency docket.” Regarding the ruling in the Texas case, Whole Woman’s Health v. Jackson, Alito contended that news coverage had wrongly conveyed what he called “the false and inflammatory claim that we nullified Roe v. Wade.”

            Instead, he noted that the unsigned one-paragraph opinion for the majority acknowledged the “serious questions regarding the constitutionality of the Texas law  . . . .” and expressly allowed legal challenges to the law in Texas courts. Speaking at a campus dominated by anti-abortion faculty, Alito seemed to gloss over the undeniable fact that the law, if enforced as intended, will prohibit virtually all abortions in the state.

            Alito contended that the Court had followed well-established procedures in dealing with the Texas law and, separately, in blocking the Biden administration from instituting a pandemic-related moratorium on evictions. The Centers for Disease Control (CDC) had issued the moratorium to try to protect financially strapped renters from the risk of community spread after being thrown out into the streets or into crowded shelters. The vote in that decision, Alabama Association of Realtors v. Department of Health and Human Services, issued on Aug. 26, was 6-3 with the three liberal justices in dissent: Breyer, Sotomayor, and Kagan.

            The liberal justices had also dissented in the Texas case, joined in that instance by Chief Justice John G. Roberts Jr. Dissenting in that case, Kagan specifically complained about what she called “too much of this Court’s shadow-docket decisionmaking—which every day becomes more unreasoned, inconsistent, and impossible to defend.”

            In the Notre Dame speech, Alito countered that what he called “the catchy and sinister term ‘shadow docket’ has been used to portray the Court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways.” “This portrayal,” he added, according to Adam Liptak’s account in The New York Times, “feeds unprecedented efforts to intimidate the Court and to damage it as an independent institution.”

            Earlier this month, Justice Amy Comey Barrett had somewhat similarly complained about news media coverage of the Court’s recent decisions in a Sept. 12 speech at the University of Louisville’s McConnell Center, according to the account by the Courier-Journal’s Mary Ramsey. “The media, along with hot takes on Twitter, report the results and decisions,” Barrett remarked, without citing any specific news account. “That makes the decision seem results-oriented. It leaves the reader to judge whether the Court was right or wrong, based on whether she liked the results of the decision.”        Justice Clarence Thomas aired a similar complaint a few days later in remarks at Notre Dame Law School on Sept. 16.

            Barrett opened her remarks at the ostensibly bipartisan McConnell Center – with the Senate’s Republican leader Mitch McConnell sitting on stage – by insisting that the justices are not “partisan hacks.” Even so, the shadow docket decisions with Donald Trump in the White House favored the Republican administration by granting more than a dozen applications to set aside lower court rulings unfavorable to Trump’s policies.

By contrast, the Court has dealt the Biden administration setback after setback, with three Trump appointees providing the votes needed to block policies sought by the Democratic administration. As one example, the Court on Aug. 24 effectively ordered the Biden administration to reinstitute the Trump-era policy that required asylum applicants to remain in Mexico rather than wait in the United States even after Biden’s Department of Homeland Security had rescinded the policy based on what the Court’s majority found to be inadequate process.

            The justices’ complaints about news coverage come straight out of the standard “shooting the messenger” playbook for politicians and are eerily reminiscent of the “fake news” mantra that Trump used to gain and maintain power even in the face of witheringly unfavorable news coverage. If the justices want to prove that they are not political hacks with black robes, they would do well to stop voting along partisan lines and to stop behaving like thin-skinned politicians.

 

 

 

 

 

 

Saturday, September 25, 2021

Court's Standing Sags as Politics Overtakes Law

             The Supreme Court is set to open a new term with two politically charged cases at the top of its agenda just as its standing with the American public is sagging, according to two recent public opinion polls. The justices ought not pay too much attention to their standing in the polls, of course, but three justices appear from their recent lecture circuit talks to have concluded that many Americans are viewing the Court today as a partisan branch of government instead of as a temple of equal justice under the law.

            None of the three – Breyer, Thomas, or Barrett – specifically referred to the higher-than-normal disapproval for the Court, as measured by the most recent Gallup Organization poll. But Justice Amy Comey Barrett seems to have had the Court’s image in mind when she spoke at the University of Louisville’s McConnell Center with McConnell himself on stage, less than one year after the Senate’s Republican leader fast-tracked her nomination through to a party-line confirmation vote.

            “My goal today,” Barrett told the audience, “is to convince you that this court is not comprised [sic] of a bunch of partisan hacks,” according to the account by Courier-Journal reporter Mary Ramsey. “Judicial philosophies are not the same as political parties.”

            Today, however, the justices of the 21st century Supreme Court are divided on judicial philosophies for the first time in history in exact correspondence to the political party of the president who appointed them: six Republican-appointed conservatives and three Democratic-appointed liberals.  

            The Court’s lopsided conservative majority results from the most partisan of tactics deployed by McConnell as Senate leader – first by blocking President Obama’s nomination of Merrick Garland in 2016 and then by changing Senate rules with Donald Trump in the White House to allow floor votes on Supreme Court nominees with fewer than sixty votes. Under the previous rules, none of Trump’s nominees – Barrett, Neil Gorsuch, or Brett Kavanaugh – would be sitting on the Supreme Court today.

            Now, the Court is about to hear arguments one month apart in two cases that each pose simple legal issues raised in the context of politically contentious issues: reproductive rights and Second Amendment gun rights. Conservative interest groups have engineered and mobilized behind the two cases: Mississippi’s effort to overrule a critical part of the Roe v. Wade abortion rights decision and an effort by New York gun rights groups to guarantee a personal Second Amendment right to carry firearms outside the home.

            Mississippi’s health director is the petitioner in Dobbs v. Jackson Women’s Health Organization, set to be argued on Dec. 1. Mississippi enacted a law that prohibits abortions after the fifteenth week of pregnancy, in flat contradiction – as found by two lower federal courts – of the Roe v. Wade line that guarantees a qualified right to abortion up to the point of fetal viability, roughly the twenty-fourth week of pregnancy.

            Apart from President Trump’s vow to name justices who would vote to overrule Roe v. Wade, Mississippi’s appeal would have called for a summary affirmance of the lower court decisions without full briefing and oral arguments. The Court has reaffirmed Roe v. Wade time and time again since a Republican-majority Court issued the 7-2 decision in 1973. Two decades later, another Republican-majority Court in Casey v. Planned Parenthood (1992) rejected by a 5-4 vote a plea by anti-abortion groups to overrule Roe v. Wade.

            The law has not changed since 1992, but the Court’s politics has changed in deference to the Republican Party’s lockstep alliance with so-called pro-life groups. The anti-abortion groups that have massed behind Mississippi’s effort to salvage its anti-Roe v. Wade law are arguing, wrongly, that the trimester framework the Court crafted in the 1973 decision has proved to be unworkable. Respect for precedent is one fundamental principle of Supreme Court jurisprudence; an equally important corollary teaches that the Court ought not overrule a prior decision merely because of changes in the composition of the Court.

            In the other of the two hottest-button cases, the Court will consider an effort by New York gun rights groups to invalidate a state law that requires an applicant for a gun permit to show “proper cause” for needing to carry a firearm on the streets, outside the home. The Court in its landmark Second Amendment decision in Heller v. District of Columbia (2010) took care to limit the personal right to “keep and bear arms” to the home. In writing the majority opinion, Justice Antonin Scalia said that the decision did not cast doubt on laws that prohibited possession of firearms by felons and the mentally ill or laws that prohibited carrying weapons in sensitive places such as schools and government buildings.

            The various briefs supporting New York’s position in New York State Rifle and Pistol Association v. Bruen highlight the long tradition of municipal laws – dating from colonial days – regulating the authority to carry firearms in public. New York’s law fits comfortably within the tradition and history of local regulation that dates from the adoption of the Second Amendment. In today’s urban environment, those regulations are all the more important to protect innocent citizens from gun violence perpetrated by concealed-carry permit holders.

            The law in these two cases is clear, apart from the Republican Party politics that has transformed the Court and taken over the federal judiciary. The justices who worry about the Court’s image can best serve that goal by setting aside their politics just as they claim that black-robed justices do as a matter of course. As the Court opens a momentous term, however, many signs point toward to the likelihood of political decisions in both of the high-profile cases.

Friday, September 17, 2021

In Torture Case, No Secrets Left to Protect?

            Abu Zubaydah, wrongly suspected of being an Islamic terrorist, was tortured cruelly and secretly two decades ago at a Central Intelligence Agency (CIA) black site in Poland. The details of his torture – waterboarding and half a dozen other “enhanced interrogation techniques” – have been laid out in a Senate Intelligence Committee report, a federal court opinion, and extensive news media coverage.

            Despite all that publicity, the government is now invoking the “state secrets privilege” before the Supreme Court in an effort to prevent Zubaydah’s lawyers from gathering sworn testimony from the two CIA contractors who designed the interrogation techniques used for a period of time in the CIA’s now discredited detention and interrogation program.

            The justices will hear oral arguments in the case, United States v. Zubaydah, on Wednesday, Oct. 6, two days after the opening of the 2021 term. A government lawyer will argue, implausibly, that it is immaterial that the “secrets” have been reported officially and unofficially in the United States and worldwide for more than a decade.   

            Pakistani authorities cooperating with the CIA captured Zubaydah in Pakistan in March 2002 based on the mistaken assumption that he was a high-ranking member of al Qaeda. He was taken to the CIA’s black site in Poland, held there for nine months, and was subjected to waterboarding more than eighty times and to other torture-like techniques developed by two psychologists, James Mitchell and Bruce Jessen, who were paid $80 million for their work in developing and implementing the techniques.

Mitchell and Jessen, who were doing business as Mitchell Jessen Associates in Spokane, Washington, based the so-called “enhanced interrogation techniques” on their work in training Air Force pilots and other U.S. service members on resistance to the enemy if captured.

            Zubaydah was transferred in September 2003 to the prison camp that the Bush administration established for “enemy combatants” at the Guantanamo Bay Naval Base in Cuba. He is still being held at Guantanamo today even though the Senate Intelligence Committee’s 2014 report on the CIA program concluded that his designation as a high-ranking enemy terrorist was “erroneous.”

            While Zubaydah was held in Guantanamo, his lawyer, Cornell law professor Joseph Margulies, sued Poland before the European Court on Human Rights seeking damages for the Polish government’s role in Zubaydah’s detention and interrogation. That court ordered Poland in 2014 to pay Zubaydah and a second detainee 100,000 Euros each for having exposed them to the risk of torture through its complicity in the CIA’s interrogation program.

            The current Supreme Court case stems from a legal move in 2018 by Margulies asking a federal judge in Yakima, Washington, to issue a subpoena for Mitchell and Jessen for testimony to be used in a second proceeding against Poland pending before the European tribunal. U.S. District Court Judge Justin Quackenbush initially granted Margulies’ request, but he quashed the subpoena after the Trump administration raised a “state secrets privilege” objection.

            On appeal, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit held on September 18, 2019, that Quackenbush should not have quashed the subpoena. The appeals court instead remanded the case with instructions for Quackenbush to redact any testimony specifically found to expose national security secrets.

            The lame-duck Trump administration asked the Supreme Court to review that decision in a petition for certiorari filed on December 17, 2020. The administration argued that discovery would risk exposing  “classified information” and contended that previous unofficial disclosure of the information did not supersede the state secrets privilege.

            Margulies countered the government’s petition by stressing that the existence of the covert CIA facility, now closed, was “already a matter of public record” and Poland’s cooperation was “no secret at all.” 

            The Biden administration reaffirmed the government’s earlier position in a reply brief filed on March 4, 2021, by the acting solicitor general, Elizabeth Prelogar. The Court granted certiorari seven weeks later, on April 26. More than a dozen civil liberties and human rights organizations filed amicus briefs over the summer urging the justices to allow the limited discovery that the Ninth Circuit panel had ordered.

            In one of those briefs, David Schulz, a lawyer with the Media Freedom and Information Access Clinic at Yale Law School, argued aptly that the Court “should not expand the state secrets privilege to shield discussion of publicly established facts.” Courts, Schulz added, “should not defer to the executive in deciding whether a fact is secret.”

            In another of the amicus briefs, Physicians for Human Rights and several other professional associations argue that Mitchell and Jessen violated ethical standards and that transparency about their roles is “paramount for the mental health profession and society at large.”

            The complete history of this shameful episode has yet to be written. The government may have no interest in a full history, but the Supreme Court owes it to future generations now to allow one of the torture victims to put the architects of his abusive treatment under oath to get a more complete record of their foul deeds.

            It is worth noting that seventy-seven years ago, the Court wrongly deferred to the government’s ill-founded claims about national security in upholding the internment of Japanese Americans during World War II. The decision in Korematsu v. United States (1944) is a stain on the Court’s record, but to its credit the Court five years ago pronounced the decision “gravely wrong” and “overruled by history.” With 20/20 hindsight, the Court ought not make a similar mistake again.

 

 

 

 

Saturday, September 11, 2021

Justices' Misplaced Priorities in Reviewing Capital Cases

             John Henry Ramirez committed a senseless and savage murder in Corpus Christi, Texas, in 2004 when he was twenty years old. He killed a convenience store clerk by stabbing him more than two dozen times and then robbing him of the paltry sum of $1.25.

            Nothing about Ramirez’s offense or the trial and death sentence four years later cries out for special consideration in the courts. Even so, the Supreme Court granted Ramirez a reprieve on Wednesday [Sept. 8] based solely on a religious freedom claim that he is entitled to be ministered to by his spiritual adviser as he is being put to death.

            The justices granted Ramirez a stay of execution on Wednesday night, three hours after the scheduled start of the lethal injection protocol. Along with the stay of execution, the Court also agreed to hear Ramirez’s substantive appeal in Ramirez v. Collier that the state must allow his spiritual adviser to lay hands on him and pray aloud inside the execution chamber once the execution begins.

            As an opponent of capital punishment, this writer cannot begrudge Ramirez the reprieve that the Court granted last week. But the justices’ solicitude for Ramirez’s plea is in stark contrast with the justices’ usual indifference toward pleas from death row inmates based on claimed legal errors in their convictions or sentences.

            As one example, the Court refused on April 19 to hear Frederick Whatley’s effort to challenge the death sentence he received in Georgia for killing a liquor store clerk during an armed robbery. Whatley asked the justices to review his sentence because he had been shackled with leg irons while testifying in his capital sentencing hearing. Dissenting from the Court’s refusal to hear the case in Whatley v. Warden, Justice Sonia Sotomayor argued that the shackling was “unnecessary” and “plainly prejudicial” based on the Court’s precedents and evident grounds for finding the death sentence unconstitutional.

            Sotomayor had dissented three months earlier from the Court’s order in United States v. Higgs (January 15) that brushed aside questions about the lethal injection protocols that the federal government was using as it resumed federal executions after a seventeen-year hiatus.

            Referring to a succession of cases, Sotomayor minced no words in complaining. “This Court has consistently rejected inmates’ credible claims for relief," she wrote. "The Court has even intervened to lift stays of execution that lower courts put in place, thereby ensuring those prisoners’ challenges would never receive a meaningful airing.”

            Earlier, Sotomayor and Kagan had joined in dissent when the Court refused to hear Alfred Bourgeois’ effort to avoid execution for the killing of his infant daughter based on an intellectual disability defense. The majority in Bourgeois v. Watson (December 12, 2020) refused to hear the case on the ground that Bourgeois could not raise the issue a second time after a lower federal court had rejected the defense.

            “Bourgeois presents a serious question that is likely to recur,” Sotomayor wrote in dissenting from the denial of certiorari. “Waiting to grant certiorari may mean permitting the illegal execution of people with intellectual disabilities.”

            Sotomayor dissented again, along with Breyer and Kagan, when the Court refused in Johnson v. Precythe (May 24) to consider an Eighth Amendment challenge brought by a Missouri inmate, Ernest Johnson, who claimed that because of a brain tumor, he would suffer “excruciating seizures” if put to death by lethal injection of the drug pentobarbital. Sotomayor argued that the federal appeals court that rejected Johnson’s plea had abused discretion by refusing permission for him amend his appeal. “We should not countenance the infliction of cruel and unusual punishment simply for the sake of expediency,” she wrote.

            The stay of execution for Ramirez marked the second time this year that the Court had granted a reprieve for a death row prisoner based on a religious freedom claim. The Court’s ruling in Dunn v. Smith (February 6) effectively upheld a ruling by the Eleventh Circuit that Alabama could not execute inmate Willie Smith without granting his last wish to have his pastor with him during the execution.

            Four justices – Kagan, Breyer, Sotomayor, and Barrett – joined in an opinion decrying Alabama’s policy of leaving inmates to die without spiritual attendance. “Alabama’s policy,” Kagan wrote, “substantially burdens Smith’s exercise of religion.”

            With that opinion in the books, it would have been inconsistent at the least for the Court last week to have denied Ramirez the solace of his spiritual adviser during the planned execution. By granting certiorari in Ramirez’s case, the Court is now preparing to lay down guidelines for states to follow when a condemned prisoner asks for a chaplain at his side.  

            In Ramirez’s case, Texas argued that his request for his spiritual adviser’s presence would jeopardize security and detract from the decorum of the execution. In the Alabama case, Kagan rejected that concern. “[P]ast practice, in Alabama and elsewhere, shows that a prison may ensure security without barring all clergy members from the execution chamber,” she wrote.

            After considering Ramirez’s religious freedom claim, the justices would do well to give just as much attention to their responsibility to guard against legal errors in capital trials and sentencings rather than brush those issues aside.

Saturday, September 4, 2021

Supreme Court Yields to Domestic Enemies in Texas

             Five Supreme Court justices labored up to the midnight hour on Tuesday night to produce a tortured legal opinion allowing the state of Texas to nullify reproductive rights for the state’s 14 million women.

            Anyone reading the unsigned opinion in Whole Woman’s Health v. Jackson will look in vain for the reason why the five justices concluded that they cannot enforce the U.S. Constitution and the Court’s own decisions in the country’s second most populous state.

            Instead, the five justices – Thomas, Alito, Gorsuch, Kavanaugh, and Barrett – simply threw up their hands when facing “complex and novel antecedent procedural questions” about the decision by Texas legislators to deputize private citizens to enforce a blatantly unconstitutional law prohibiting abortions as early as the sixth week of pregnancy.

            These self-styled conservative justices did not flinch when confronted with the truly Orwellian plan that Texas’s nullificationist legislators devised to secede from the United States’ constitutional republic.

            Texas’s plan is “Big Brother” on steroids. It offers nosy anti-abortion zealots a bounty of at least $10,000 for suing anyone who aids or abets a woman in getting an abortion legal in 49 states but not in Texas. The aiders and abettors could be the Uber driver or the friend who takes the woman to the nearby abortion clinic. There is nothing conservative about this scheme; it is instead radically totalitarian—un-American.

            In her dissenting opinion, Sotomayor is quite correct to say that “a majority of Justices have opted to bury their heads in the sand.” The ruling, she went on to say, “rewards tactics designed to avoid judicial review. . . .”

            In his dissenting opinion, Chief Justice Roberts made the same point. The law, he explained, seeks “to insulate the State from responsibility for implementing and enforcing the regulatory regime.”

            The law purportedly bars any state officials from enforcing the law, but any enforcement necessarily depends on judges in Texas’s courts. For that reason, the women’s clinics challenging the law named one state judge as the defendant—representative of the entirety of the state’s judiciary.

            For seventy years, ever since Shelly v. Kraemer (1948), state judges have been prohibited from enforcing racially restrictive covenants. There is no evident reason why the Supreme Court cannot similarly prohibit Texas’s judges from enforcing this blatantly unconstitutional law.

            In their majority opinion, the five conservatives indulged the fiction that it was “unclear” whether the law would be enforced. In his dissenting opinion, Justice Stephen Breyer answered by noting that the Court in previous rulings had allowed “pre-enforcement challenges” in cases in which the threatened harm was less serious and less clear.

            Breyer also noted the edict from a prior Supreme Court decision, Planned Parenthood v. Danforth (1976), that “a State cannot delegate . . . a veto power [over the right to obtain an abortion] which the state itself is absolutely and totally prohibited from exercising during the first trimester of pregnancy.”

            Admittedly, the majority specified that they were not passing on the constitutionality of the law and stated that legal challenges could proceed in state courts. It is a curious inversion of constitutional law, however, for the Supreme Court to pass the buck to state court judges to enforce “the supreme law of the land.”

            With four separate dissenting opinions, it is telling that none of the five justices in the majority took the opportunity to write a concurrence to elaborate or to answer the dissenters. Indeed, what could they have said: “This isn’t as bad as it looks.”

            On the ground in Texas, however, it appears to be as bad as it looks. Waiting rooms in abortion clinics emptied at the stroke of midnight on Wednesday, as the clinics’ staffs explained in frustration that they would be complying with the law.

In her opinion, Sotomayor noted the likely effects. “[T]he Act,” she noted, “immediately prohibits care for at least 85% of Texas abortion patients and will force many abortion clinics to close.”

            In her dissenting opinion, Justice Elena Kagan made the added point that the ruling was “emblematic of too much of this Court’s shadow docket decisionmaking – which every day becomes more unreasoned, inconsistent, and impossible to defend.” And, indeed, none of the justices in the majority bothered to try.

            Perhaps those five have already decided to vote to overrule Roe v. Wade in the Mississippi case slated for oral arguments in December and decision by the end of the term. So, they may be asking themselves, why not let Texas have its way now?

            The entire episode brings to mind Justice Robert Jackson’s famous aphorism acknowledging the risk of error at One First Street. “We are not final because we are infallible,” Jackson wrote, “but we are infallible only because we are final.”

            For true constitutionalists, the hope remains that the Court’s tortured reasoning is not the final word for women’s rights in Texas. Indeed, in his opinion, Roberts envisioned that the Court will revisit the issues later after “full briefing and oral argument” and consider “whether interim relief is appropriate should enforcement of the law be allowed below.” 

            In other words, the buck stops down there, not here. Compare, however, the justices’ solemn oath to “support and defend the Constitution of the United States against all enemies foreign and domestic . .  .” (emphasis added).

 

Sunday, August 29, 2021

Court Torpedoes Biden Policies on Border, Health

           The Supreme Court threw judicial restraint out the window last week [Aug. 24-26] with hastily considered decisions that torpedoed Biden administration policies on border security and public health. The rulings in two “shadow docket” cases, issued without full briefing or oral argument, forced the administration to reinstitute the so-called “remain in Mexico” policy for asylum applicants and scrapped the administration’s policy to protect financially strapped tenants from evictions during the COVID-19 pandemic.

            Elections have consequences, it is often said, but apparently not when the unelected Supreme Court takes charge of contentious policy issues. The Biden administration’s O-for-two batting average in its first shadow docket cases is in stark contrast to the Trump administration’s record of prevailing in two-thirds of the unprecedented number of emergency applications that Trump’s lawyers brought to the Court over a four-year period.

            Chief Justice Roberts may believe that the justices shed their partisan backgrounds after donning their black robes, but the record of the Republican-majority Court strongly suggests the opposite. As one telling example, the nine justices split precisely along partisan lines in Alabama Ass’n of Realtors v. Health and Human Services on a straightforward question of statutory interpretation in striking down the CDC’s moratorium on evictions in areas with high incidence of COVID transmission.

            In issuing the moratorium, the CDC relied on a broadly phrased grant of authority in a public health statute “to make and enforce such regulations as . . . are necessary to prevent the introduction, transmission, or spread of communicable diseases . . .”

            The code section’s opening sentence is followed by a second sentence that lists fumigation, pest extermination, and destruction of infected animals or articles as some of the steps authorized. The six Republican-appointed justices who provided the votes for the unsigned decision construed that list to limit the permissible steps, while three Democratic-appointed justices in dissent applied a different maxim of statutory construction to reach the opposite conclusion that the list was illustrative, not exhaustive.

Writing for the three liberal justices, Breyer noted the historical precedent that New York City had imposed limits on evictions at the height of the Spanish flu epidemic. “If Congress

had meant to exclude these types of measures from its broad grant of authority,” Breyer reasoned, “it likely would have said so.”

            In short, a “plain text” approach to the statute in question could have supported either of the two possible outcomes in the case. The Court’s majority – presumably, the six Republican-appointed conservatives – resolved the question by finding that the “balance of equities” favored the landlords’ finances over the tenants’ health and the government’s interest in limiting community spread.

            To be clear, the choice between those two turned not on law, but on policy. In a tweet, Eric Segall, a law professor at Georgia State University, aptly suggested that the Court “should stay out of policy disputes and stay in its lane.”

Liberal justices were oddly silent two days earlier when the Court effectively forced the Biden administration to adopt a Trump-era policy – misleadingly labeled as “migrant protection protocols” -- to force asylum applicants to wait in Mexico while authorities in the United States consider their applications.

The issue in Biden v. Texas et al. was whether how far the Biden administration needed to go in elaborating the reasons for rescinding the Trump administration’s policy on asylum applicants. A Trump-appointed federal judge in Texas agreed with the red states challenging the administration that Biden’s Department of Homeland Security had been “arbitrary and capricious” in rescinding the policy.

In fact, DHS secretary Alejandro Mayorkas had written a seven-page memorandum detailing the reasons for his decision—specifically, that the program was unjustified by the resources required to implement it and incompatible with the  administration’s border strategy and foreign-policy objectives. Judge Matthew Kacsymaryk found Mayorkas’s reasons inadequate and ordered the administration to reinstitute the disfavored policy.

The administration asked Kacsymaryk to delay the injunction, but he refused. The federal appeals court in Texas similarly refused to stay the ruling to give the administration time to develop an orderly plan to restart a policy suspended seven months earlier and unenforced for Trump’s final months in office.

At the Supreme Court, the administration quoted an assistant DHS secretary as saying that it would be “near impossible” to re-establish the policy by the deadline that the judge had set. The administration also quoted a State Department official as warning that resumption of the policy would create “a humanitarian and diplomatic emergency.”

The Trump administration had come to the Court in eleven cases with similar pleas to get out from under adverse rulings in lower courts. And each time the Court obliged.     But the Court declined to give the same consideration to a Democratic president, elected with a popular vote majority.

Instead, the Court refused the administration’s plea with a single paragraph that found the administration was unlikely to show that it had not been “arbitrary and capricious” in rescinding the previous policy. Others have written at greater length than allowed here about the irony of the Court’s decision to take over immigration policy, an area traditionally left to the executive branch, not the courts. Here, as one example, is Ian Milhiser’s excellent analysis.