The Texas SCOTUS ruling shows that John Roberts has lost control.
When the Supreme Court released its opinions on the two Texas SB 8 cases this morning – the vigilante law that allows anyone to raise bounties of $ 10,000 against suspected abortion providers – it was on the news media not much clarity or consistency about how to frame what happened. Was it a “win” for abortion rights or another warning of the impending blow to abortion access in this country? The court allowed plaintiff abortion providers to continue filing lawsuits against a handful of state license officers tasked with enforcing the six-week ban, but declined to mandate the law that has prevented virtually all abortions in the state of Texas after six weeks since September 1st and makes no exceptions in cases of rape and incest.
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The difficulty the media have in agreeing on a coherent framework for this specific decision is both the problem and completely secondary. The true story of the two rulings, US v Texas and Whole Woman’s Health v Jackson, is that Chief Justice John Roberts has now lost control of his court. As with the very first shadow file arrangement that allowed SB 8 to come into force, it was 5: 4 today, again in court, despite numerous evidence that it caused material damage to pregnant people and Roe v. Wade clearly hurt to act like there was nothing unusual about the Texas system. The chief judge had over three months to change his mind on the conservative side of the court. He did not succeed. Neil Gorsuch writes for these five judges, setting out countless stumbling blocks and problems with abortion provider theory before giving them very limited relief against four state licensing officers who have some authority to enforce SB 8.
The presiding judge, partly approving and partly dissenting, pointed out that the purpose of the law was to evade judicial review: “Texas passed a law prohibiting abortion after approximately six weeks of gestation. This law contradicts the decisions of that court in Roe v Wade and Planned Parenthood of Southeastern Pa. against Casey. It will result in the exercise of our federal constitutional rights being denied. ”He describes Texas enforcement mechanisms as“ a series of ruses aimed at protecting its unconstitutional law from judicial review ”. He goes on to say that “among other things, these provisions are effective in deterring abortion in Texas.” All of these statements are facts. To address the problems they point out, he would put the Attorney General and a court clerk back on the list of people who could properly be sued.
The Chief Justice’s statement concludes with this dire warning:
The clear purpose and real effect of SB 8 was to set aside the judgments of that court. However, it is a rationale that the Constitution is the “fundamental and supreme law of the nation” and “[i]It is an emphatic duty and duty of the judiciary to say what the law is. “Indeed,”[i]When the legislatures of each state can, at their discretion, annul the judgments of the courts of the United States and destroy the rights acquired by those judgments, the Constitution itself becomes a solemn mockery. ”The nature of the federal law violated does not matter; it is the role of the Supreme Court in our constitutional system that is at stake.
The three liberals of the court agreed with his testimony.
The mistake was to believe that Roberts’ worries were both ends in themselves and shared by the imaginary centrists Barrett and Kavanaugh.
Perhaps now is the right time to end the calming notion of a 3-3-3 dish with a moderate and gracious Brett Kavanaugh as median judge and a pumping teenage Amy Coney Barrett that was circulated last spring Braking the most radical elements of the favorite projects of the Federal Society. Neither Barrett nor Kavanaugh seem to be swayed by the Chief Justice’s concern for institutional legitimacy, let alone institutional supremacy. If red states want to strangle federally protected rights, they have received the comprehensive roadmap. We will surely see red states do just that.
The mistake we’ve been making for over a year has been believing that John Roberts’ concerns about the reputation, independence, and legitimacy of the court were both ends in themselves and shared by the imaginary centrists Barrett and Kavanaugh. We have confused Roberts’ concern about the appearance of moderate independence (the “better lie next time” instruction for litigants) with concern about actual moderate independence. Given the public outcry over the way SB 8 was handled on its September emergency protocol (in the dark of night, with no explanation), the court planned real arguments and briefings from real life, then waited another month and then somehow to a decision with essentially the same outcome. This time it came with a detailed warning to the abortion providers that they can continue their lawsuit, but will likely fail again in the future – while the majority still congratulated themselves on having treated the plaintiffs with “extraordinary care at every turn”.
I’ve used up my allotment on the word gaslighting for 2021, but just to be clear, abortions after six weeks are still illegal in Texas. Real people suffer the real consequences, as Judge Sonia Sotomayor begins in her own partial rejection: “For nearly three months the Texan legislature has essentially suspended a constitutional guarantee: a pregnant woman’s right to control her own body.” Five conservatives Judges think that’s okay. Clever in fact. The ruse used to fiendishly enforce the Texas abortion ban has been blessed again by five Supreme Court justices, who tell you once again that this enforcement mechanism was just too brilliant to impose, and possibly too brilliant to be challenged successfully to be in the future. And only the Chief Justice seems willing to say that this is a “cancellation” of a fundamental constitutional freedom and perhaps should be addressed accordingly.
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The core problem with perceiving the moderating influence of John Roberts on the court was that it was always about public perception. When he theoretically headed the conservative super majority, his approach was actually that it can do anything, as long as it doesn’t look too radical. Some of us have mistaken this for moderation. But public perception is malleable and can be measured on a sliding scale. Five judges want you to call a narrow loss a “gain” for abortion rights, and they want you to see the repeal of the state as “novel”. They will say that over and over until it is admitted to be true, and when Dobbs comes down this summer, they will tell you that there is nothing radical in abolishing the right to vote. They expect to be open to open bans in the spring if you accept the lifting in September.
Roberts is credited with reassuring us that Supreme Court justices never do more than call for balls and strikes. But under his supervision, a conservative super-majority changed the hitting zone, corked the clubs and set the entire infield on fire – all while telling us the game stayed the same. They did all of this with the help of Chief Justice John Roberts. What this tiny, narrow, utterly radical judgment reveals is that Roberts is now alone with his concern that fans might find out all of this soon. His problem? He’s no longer the one calling the game.
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