[T]he 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.
That’s Supreme Court Justice Elena Kagan, dissenting in the decision by the Supreme Court’s conservatives, minus chief John Roberts, to end the protections of Roe v. Wade and Planned Parenthood v. Casey for the women of Texas. It is endorsing the most restrictive abortion ban that has come before it, ending abortion after six weeks—before most women even know they are pregnant—and including no exceptions. Not for rape. Not for incest.
“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,” Kagan wrote. “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.”
That’s a Supreme Court justice doing what would have been unthinkable in the days before Mitch McConnell and Donald Trump packed the court—sounding an alarm about the legitimacy of her own institution.
The majority opinion was one paragraph, unsigned. We know which five justices—Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—just upheld an unconstitutional law, however, because the four in dissent each wrote and signed their names: Chief John Roberts, Stephen Breyer, Elena Kagan, and Sonia Sotomayor. The majority did not, in fact, wait for the lower courts to work through pending litigation. The majority did not explain its reasoning.
The majority—three Trump judges and all Federalist Society darlings—just gave every Republican state a blueprint for stripping away civil and reproductive rights in the most cowardly, underhanded way possible. They told the states that the easiest end-run around the constitution and getting caught up in an appellate process is to simply outsource legal enforcement of the law to a group of rabid anti-abortion citizens, a group with a long history of violence. They will be deputized vigilantes, bounty hunters who will be rewarded $10,000 for turning in anyone who “aids and abets” a woman in getting an abortion—from doctors to nurses to the receptionist at a clinic, the cab driver, and anyone who helped to pay for it.
The wingnut majority simply threw up its hands, pretending that procedural technicalities prevent it from blocking the law from going into effect, again without having to put their names to it.
That’s being accepted at face value by far too many observers, the idea that the Texas legislature was so absolutely brilliant it found a way around the U.S. Supreme Court. But it’s nonsense. As prominent litigator Max Kennerly points out, “If California said you could sue everyone with an AR-15, it’d get enjoined without any trouble.”
Now that the Court’s conservative majority and Texas have shown the way, other states are going to pile on. Florida state Senate President Wilton Simpson told local media “there is no question” the Florida legislature is taking it up. “It’s something we’re already working on” for the next session, starting in January.
The White House issued another statement from President Biden, which again ignore the orange-hued elephant in the Supreme Court. Biden says he is “directing that Council and the Office of the White House Counsel to launch a whole-of-government effort to respond to this decision, looking specifically to the Department of Health and Human Services and the Department of Justice to see what steps the Federal Government can take to ensure that women in Texas have access to safe and legal abortions as protected by Roe, and what legal tools we have to insulate women and providers from the impact of Texas’ bizarre scheme of outsourced enforcement to private parties.”
But he says nothing about what he intends to do about the fact that, “Rather than use its supreme authority to ensure justice could be fairly sought, the highest Court of our land will allow millions of women in Texas in need of critical reproductive care to suffer while courts sift through procedural complexities.”
White House Press Secretary Jen Psaki was asked Wednesday, after the Court’s inaction on blocking the law, whether Biden’s position on expanding the Court has changed at all. “As you know, there’s an ongoing Court reform committee that has been meeting,” Psaki said. “It’s a diverse group.” Yes, a group that includes rabid anti-abortion and Federalist Society members. “They’re considering a range of issues and topics, including what the future of the Court looks like,” Psaki continued. “I think the President will wait for that process to complete before making any evaluations.”
Which means waiting until the slow-moving commission provides a report. It was given six months, 180 days, after its first meeting to come up with whatever it’s going to say. Its first meeting was on May 19, so it will be well into November and the court’s regular docket of cases—including another abortion case—before the commission advises Biden.
If you get the sense that leadership seems not to feel much urgency here, you’re right. Speaker Nancy Pelosi, promises that “Upon our return, the House will bring up Congresswoman Judy Chu’s Women’s Health Protection Act to enshrine into law reproductive health care for all women across America.” At the end of September. The bill will fail in the Senate which still has the filibuster.
Right now, Supreme Court justices Breyer, Sotomayor, and Kagan are blowing the whistle on their own institution. That’s telling us just how extraordinarily dangerous this moment of time in our republic is. President Biden, Speaker Pelosi, and Majority Leader Chuck Schumer have to hear that.
They have to act. Abolish the filibuster. Expand the court.
From Daily Kos at Read More. This article is republished from DailyKos under an open content license. Read the original article at DailyKos.